G & L

[2006] FamCA 255

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA86 of 2005

(No. TVM2981 of 2004)

BETWEEN:
G

Appellant Husband

AND:
L

Respondent Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 1 March 2006

Date of Judgment: 20 March 2006

Appearances: Mr Galloway of Counsel, instructed by Wilson Ryan Grose, Solicitors, appeared on behalf of the Appellant Husband

Mr Fellows of Counsel, instructed by Purcell Taylor Lawyers, appeared on behalf of the Respondent Wife

G and L NA86 of 2005 (TVM2981 of 2004)

Heard: 1 March 2006
Delivered: 20 March 2006

APPEAL FROM FEDERAL MAGISTRATES COURT – PROPERTY SETTLEMENT – CONTRIBUTIONS – INITIAL CONTRIBUTIONS – The parties cohabited for 9 years – The Federal Magistrate made a 60/40 finding in relation to initial contributions in favour of the wife – Husband asserted the Federal Magistrate failed to take into account some, and arbitrarily reduced the value of other, initial contributions – There was ample evidence to support the Federal Magistrate’s findings in relation to the valuation of initial contributions

CONTRIBUTIONS – BUSINESS LOSSES – The Federal Magistrate made a further 20% adjustment in favour of the wife because of business losses attributed to conduct of the husband and other contributions – The Federal Magistrate held that there was no evidence of reckless, negligent or wanton action on the husband’s part in the running of the business, but that the husband should bear more of the responsibility for the losses than the wife based on instances of unreasonable conduct – Husband argued the adjustment made by the Federal Magistrate’s could only have been made if the Federal Magistrate had affirmatively found that there had been reckless, negligent or wanton acts on behalf of the husband – No error in the exercise of discretion by the Federal Magistrate.

SECTION 75(2) FACTORS – Federal Magistrate made no adjustment for section 75(2) factors – Husband argued that the Federal Magistrate failed to have regard to the wife’s cane-farming interests and also the age and state of health of the husband – It is not the purpose of a consideration of section 75(2) factors to make an adjustment that renders the parties in an equal position – The treatment of the factors relating to each party as equal was not beyond a legitimate exercise of discretion.

Bremner and Bremner (1995) FLC 92-560

Browne and Green (No 2) (1999) FLC 92-873

Bruno and Bruno (No 2) [2005] FMCAfam 402

Kowaliw and Kowaliw (1981) FLC 91-092

Pierce and Pierce (1999) FLC 92-844

Appeal allowed in part. No order as to costs. Application for costs certificate refused.

The husband appeals the decision of Coker FM in relation to the question of property settlement between the husband and the wife. The parties had cohabited for some 9 years, the relationship commencing when the husband was about 52 years of age and the wife some 35 years. Each brought assets to the relationship but during cohabitation the assets of the parties diminished, as a result of losses in business. A central issue in the trial was how those losses ought be treated. The learned Magistrate adopted an agreed property pool of net $265,000 approximately, which however did not include “cane farming interests of the wife”. The Federal Magistrate assessed initial contributions as favouring the wife 60/40 and he made a further 20% adjustment in her favour after considering other contributions and the diminution in assets that had occurred through the business losses. He considered, but made no adjustment for, section 75(2) factors.
The orders made required the wife to pay the husband $49,788.95 and otherwise each party was to retain what that party then presently held.
The appeal challenges the learned Magistrate’s assessment of contributions, both as to initial contributions and the further adjustment. It challenges the treatment of the wife’s cane farming interests. There is also a challenge, which is conceded, to some parts of the learned Magistrate’s calculations. Correction results in the wife being required to pay the husband $62,593.86.
The end result that the husband seeks on appeal is “such sum as this Honourable Court’s re-exercise of discretion shall compel”, but an assessment of “at least equal” contribution is sought as a step to the final result.
I will return to the grounds of appeal after provision of a short background, including a summary of the reasons of the Federal Magistrate, discussion of the principles applicable to the appeal and before moving to an overall conclusion and the consequences thereof.

Background and summary of the reasons of the Federal Magistrate

Facts stated are taken from the reasons of Coker FM.
The parties commenced cohabitation in about July 1994. The wife had been previously married. Following the death of her first husband, she had become administrator of a trust (the cane-farming interests) which provided income for her and for the support of her 3 children.
After examination of a number of contentions about initial contributions the learned Magistrate determined that the husband had introduced at the commencement of cohabitation about $200,000. The wife had approximately $300,000, as well as the trust assets.
After the commencement of their relationship, but prior to marriage (on 4 February 1995) the husband had become seriously ill and as a result was unable to work for about 9 months. The wife nursed him and supported him during that time.
As to the manner in which the parties behaved with regard to financial affairs, Coker FM said:
“…there was a significant blending of the matrimonial assets, purchases of business,…and there was significant change in the financial circumstances that each party had, prior to the commencement of the relationship, between them.”
The husband had a background of involvement in the building industry. The businesses established were connected with the building industry and as to these businesses, the learned Magistrate further said:
“In a nutshell, the husband agreed to the suggestion, that he had been the person principally responsible for the operation of the business and that at least, on a moral level, he had been the person responsible for the decline of the businesses.”
and:
“…The husband acknowledged that it was he that would be responsible for arrangements with regard to the accounting necessary in relation to the operation of the business and he also acknowledged that it was he who fell substantially behind in relation to the operation of the business, at least in so far as the preparation of accounts and accounting records.
It appears clear, that it was nearly 3½, years, after the business began to be operated, that the first accounts were prepared.”
However, as to the wife’s knowledge about the state of the businesses, the learned Magistrate found:
“…it was not a case where she did not have some involvement in relation the operation of the business or, at least, some knowledge of how the business was progressing.”
And later:
“…It is clear, therefore, that while she may not have had full knowledge, in relation to the circumstances of the business she, at the very least, has some knowledge and understanding of the position of the company, and of its profitability.”
His Honour also said:
“The husband gave me the distinct impression and I find that whilst he was not a businessman with an instinct for development and establishment of a business…he was, certainly, a person with some expertise and would have done the best that he could in relation to the operation of those particular businesses.”
After discussing aspects of the evidence, particularly that about the business losses, his Honour considered over some pages, the law applicable to section 79 applications, commencing with the law relating to such applications generally and then turning to that relating to the treatment of losses. More of the latter consideration will be set out later, in discussion of the ground which challenges it.
During the course of his discussion of the law relating to how the losses might be treated, his Honour also in some instances applied the law to the facts. He said:
“74. I have no doubt, that the husband's involvement in the companies was an attempt to produce income and to provide for the needs of he, the wife and the wife's children, of her prior relationship. There could be no suggestion that the husband had, in any way, acted in a way which was, as stated in general principles from Kowaliw (supra), a course of conduct designed to reduce or minimise the effective value, or worth, of the matrimonial assets.
75. What needs to be looked at, however, is whether he had acted in a manner that was reckless, negligent or wanton with regard to the matrimonial assets, and that the overall effect of those actions, was to reduce or minimise their value. The wife, as I have commented already, acknowledged that the husband had made decisions in relation to the operation of the business and, as it was put, she had trusted the husband in relation to those decisions.”
Then, in paragraphs 77 and 78 the learned Magistrate said:
“77. …The wife says that such findings should be made but I struggle, on the evidence that is presented, to find that there is cogent evidence of reckless, negligent or wanton action, on behalf of the husband.…
78. …I am not satisfied that that has occurred.”
As to the calculation of the table of assets for division, the learned Magistrate said:
“It was agreed, that there was not a requirement that the assets held by or on behalf of the wife or the children of her first marriage, should be included. They do have a value however, and they do at least at the present time, produce some income. There is a figure of $318,000 being the total value proposed and I intend for the purposes of consideration as a financial resource, to include that sum.”
The learned Magistrate then turned to assess contributions, commencing with initial contributions and making the findings set out earlier in this summary.
He said:
“104. On the face of it, therefore, it would seem that the contribution by the wife was greater than the contribution by the husband. That needs to be looked at on the basis of approximately $300,000, balanced against $200,000 contributed by the husband which would seem to be somewhere in the vicinity of 60/40 contribution, on the part of the wife.”
After dealing with initial contributions, the learned Magistrate examined other, subsequent contributions. However, two comments that he made in the course of addressing initial contributions relate to subsequent contributions.
The first was in relation to a termination payment received by the husband. The Federal Magistrate said:
“99. The husband, in his outline provided to the Court, suggested that his assets totalled approximately $378,000 at the start of the relationship, and before marriage. However, as I have said, I have some doubts in relation to the values attributed to at least some of the assets and, in particular, note that that includes a termination payment of approximately $90,000, which was not received until some two years or so after the relationship had commenced.
100. Whilst it certainly was a contribution during the course of the relationship, it was just as clearly one that had, at least in small part, been derived as a result of the time that the parties spent together. It was submitted, therefore, that the net property of the husband was $370,000 however, I am far more inclined to the view that it was significantly less than that and, I would have thought, more appropriately fixed in the vicinity of $200,000, at the commencement of the relationship.”
The second was in respect of the income from the wife’s cane-farming interests, as to which his Honour said:
“ …it is clear that it was an asset that produced income for the wife and brought income to the relationship, during the period of the relationship.”
The learned Magistrate then referred to the parties’ earnings during cohabitation, the husband’s illness, and the wife’s consequent contributions, saying:
“106.… there would have been significant costs also attaching to the treatment received and the need for travel, such that the wife's contribution would have, again, been greater than that of the husband.”
He further said:
“107. It was the wife's assets, during the marriage, which were to a very significant degree, utilised in relation to the acquisition of the various real property and business interests of the parties and that also is a contribution, which must be looked at.”
He then referred further to the business losses as to which he said:
“108. …it is not a situation where he should not bear some of the responsibilities, over and above the wife, in relation to the proceedings.
110. He failed to take proper steps in relation to that and it was, as a result of that, that the liabilities of the parties increased very significantly. In the wife's case, from no liabilities at the commencement of the relationship, to perhaps nearly $300,000 worth of liabilities in the year 2000 and it was also he who knew the situation with regard to the poor trading of the company, and yet continued to trade.”
His Honour then expressed his conclusions about contributions:
“113. In light of those considerations, as I have indicated, there should be an adjustment made in relation to the contributions of the parties and, in my assessment, the appropriate position with regard to contribution, is for a further 20% in favour of the wife. That would result in the 80/20 assessment in favour of the wife.”
The parties separated in April 2003. The husband was 63 years of age at trial. He was employed as a salesman. The wife was 46 years of age. Her youngest child was nearly 16 years of age at trial.
As to section 75(2) factors, the learned Magistrate noted that though the husband was in employment, he had very limited financial resources. The wife had assets, though with liabilities attached and limited capacity for gainful employment. She had commitments to the support of her children. There was little real expectation of the wife being in a position to further her financial situation to any significant degree as a result of a course of study and obtaining work. His Honour thought it unlikely that the husband would be able to acquire significant assets between the trial and retirement.
In the end, the learned Magistrate saw no need for an adjustment on account of any of these factors.

Principles applicable to the appeal

The circumstances in which an appellate Court should interfere with a discretionary judgment were set out in House v The King (1936) 55 CLR 499 at 504‑505 where Dixon, Evatt and McTeirnan JJ said:
“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 the allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some of the 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 orders, 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 discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
I discussed the principles applicable to assertions that a decision appealed was unreasonable or plainly unjust in G and G [2004] FamCA 1179. Some of the statements I quoted there are also pertinent to the level of satisfaction necessary before an appellate court will find a mistake of fact. In G and G, I said:
“82. 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)
83.    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)
84.    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.”
85.    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.”
86.    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)
87.    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.
88.    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”.
89.    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.
90.    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.
91.    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)

Grounds of appeal

General

The Notice of Appeal contains 8 grounds and in his Outline of Argument counsel for the husband made submissions separately in support of each ground. However, there is a degree of overlap between grounds and submissions relating to them. Therefore, I have grouped grounds 1 and 2, grounds 3 and 8 and grounds 5 and 6. Moreover, because of the overlap, it will not be necessary to say much in relation to some grounds.

Grounds 1 and 2

“1. The learned Federal Magistrate erred in law and in fact in determining (if he did) that apart from a further adjustment later made in respect of the parties’ business, the contributions of the parties should be assessed as 60% to the Respondent and 40% to the Appellant.
2. The learned Federal Magistrate erred in failing to give reasons or adequate reasons for the purported determination.”

The first aspect of the challenge to the learned Magistrate’s assessment of initial contributions was expressed in written submissions as:
“A basic error appears in his Honour’s reasoning when he excludes from the pool of assets an interest in a cane farm owned by the wife. It is true that the application of the husband proposed to isolate that asset and that it should be given to the wife undivided but that did not mean it was to be (excluded) from the pool. His Honour made an error of principle.”
The learned Magistrate said:
“94. It was agreed, that there was not a requirement that the assets held by or on behalf of the wife or the children of her first marriage, should be included.…”
In the husband’s Outline of Case before the Federal Magistrate the husband did not list the cane farm under the headings “Wife’s property at start of the relationship/marriage”. He did, under the heading “Wife’s Financial Resources”, say:
“The wife also owned interests in cane farming assets in the [I] area worth $220,000-$250,000.” (emphasis added)
Nor did the cane farm appear under the list of matrimonial property at “2003 SEPARATION/AT PRESENT”. Again, it was referred to under the heading “Financial Resources”. Under the heading “Contribution Based Entitlement” no reference was made to any contribution by the husband to the cane farm and indeed it was stated:
“It is submitted that the husband should receive at least 50% of the value of the parties’ assets in [T], for his contribution based entitlement.” (emphasis added)
Consistently with that, under the heading “Other Relevant Matters and section 75(2) factors” the husband referred to:
“…the wife’s assets held by her in Ingham which continue to provide her with income and which will provide for her in her retirement, have approximately equal value to all of the matrimonial assets in [T] …consideration must be given to an adjustment in the husband’s favour on the division of the [T] assets, to take into account the wife’s [I] assets.”
The wife’s Outline of Case did not include the cane farm interests as an initial contribution. In final addresses, Mr Quirk then appearing for the husband, referred to “the trust property” and said:
“So, your Honour, she has significant financial resources.”
In my view, in view of the conduct of the case below, the point under discussion is not now open to the husband.
Counsel for the husband submits that the learned Magistrate made two factual errors in calculating what the husband introduced into the marriage.
In his written outline Counsel for the husband said:
“…Firstly, without proper evidence or reasoning he has rejected the husband’s case that he introduced $200,000 from his superannuation fund and he has arbitrarily reduced that figure to ‘$125,000-$130,000.”
In his oral submissions Counsel for the husband acknowledged that the figure of $200,000 for the husband’s superannuation was approximate to the value received when the husband realised his entitlement some years after the commencement of the parties’ cohabitation. Moreover, the evidence showed that following the beginning of the parties’ cohabitation, the husband had significantly increased his contributions to superannuation. In oral submissions, Counsel for the husband conceded that the learned Magistrate was entitled to regard the husband as initially contributing something less than $200,000 on account of his superannuation interest.
The learned Magistrate dealt with the issue in this way:
“96. For example, the husband says that his superannuation entitlements, at the commencement of the relationship, accumulated since 1977, were in the vicinity of $200,000. However, it is just as clear that, at the time of the funds being made available, they only totalled a little in excess of $200,000 and the husband's own evidence was to the effect that he had made, since the commencement of the relationship, very significant contributions by way of salary sacrifice, and that the figure at the time of the commencement of the relationship was probably closer to $125,000 to $130,000, than the $200,000 that he relied upon.”
Exhibit 3 before the Federal Magistrate was a document showing superannuation of $124,000 as at 30 June 1993. In cross-examination the following exchange occurred between counsel for the wife at trial and the husband:
“Would you look at this document? Would you agree with me, sir, that at 30 June 1993, that is at least a year after the commencement of the boyfriend/girlfriend period, your superannuation was valued at $124,000?…Well, I have to agree with it because it’s a [S] document which is…”
The question of initial contributions was alive before the Federal Magistrate and needed to be determined by him on the evidence put before him. In my view, there was ample evidentiary support for the conclusion to which the Federal Magistrate came in relation to the approximate value of the husband’s superannuation interest at about the time cohabitation between the parties commenced.
The next issue raised in the written submissions of Counsel for the husband was:
“Next, the learned Federal Magistrate purports to take into account a ‘lesser’ figure for savings than the husband suggests, but does not show what figure he has elected.”
The learned Magistrate said:
“97. Just as clearly, his submissions for suggestions in relation to savings, were not able to be verified on the financial documentation provided, and I am more inclined to think that the husband's savings were considerably less, than the $10,000 to $12,000, that he had suggested was the case.”
Counsel for the husband conceded that at trial the husband had acknowledged that in early 1994 his bank statements showed an average balance of only $2,500. The criticism that Counsel for the husband made of the Federal Magistrate was for not saying specifically whether he accepted that figure as the amount of savings contributed by the husband or some other figure. However, the husband’s evidence was not entirely precise as to amount and time, relative to the commencement of cohabitation in particular. In my view, it was clearly open to the Federal Magistrate to make an approximation as he did.
The next point in Counsel for the husband’s written submissions was:
“Thirdly, the learned Federal Magistrate purports to take into account the husband’s contribution of the proceeds of sale of his property at 42 [C] Street, but does not show that he has taken it into account at any figure.”
The Federal Magistrate said:
“98. The husband also had an interest in a property at 42 [C] Street, [CR], which was sold and, following sale, the proceeds were utilised towards the parties' joint ventures, both in relation to the purchase of the home at [S] Court, though not initially, as well as devoted toward the acquisition of the businesses operated by the parties, including the property at [Y] Street, from which the businesses operated.”
True it is that the learned Federal Magistrate did not state expressly the particular figure of which he had taken account for the husband’s interest in the real property in question but, unless there was some issue of fact about the value of that interest which required determination, it would in my view be a harsh criticism to say that a failure to express the unquestioned value constituted an error, when account was clearly taken of the contribution.
It does not seem that there was doubt about the value of this contribution. In cross-examination, the husband acknowledged that he received about $53,000 on sale of the property which occurred in January 1995, only some 7 months or so after the commencement of cohabitation. I was not taken to any challenge to that evidence. The only other evidence going to the point was the husband’s deposition in evidence in chief that he had a net equity in the property of $70,000 “at the time when our relationship commenced” but that was established by evidence as being early in 1992, at the latest. In those circumstances, it was unnecessary for the learned Magistrate to say more than he did.
The final point raised by counsel for the husband in his written submissions was that:
“…the learned Federal Magistrate did not properly deal with the termination payment received by the husband in the sum of $90,000 ‘some 2 years or so after the relationship had commenced’.
The acknowledgement by the learned Federal Magistrate of the entitlement ‘at least in small part’ had been derived during a time when the parties were together was not properly reflected in his assessment of the value of the husband’s overall contribution.”
Counsel for the wife said the evidence actually was that the termination payment was received even later, 3-4½ years after the relationship commenced.
As earlier seen, the learned Federal Magistrate said:
“99. The husband, in his outline provided to the Court, suggested that his assets totalled approximately $378,000 at the start of the relationship, and before marriage. However, as I have said, I have some doubts in relation to the values attributed to at least some of the assets and, in particular, note that that includes a termination payment of approximately $90,000, which was not received until some two years or so after the relationship had commenced.
100. Whilst it certainly was a contribution during the course of the relationship, it was just as clearly one that had, at least in small part, been derived as a result of the time that the parties spent together. It was submitted, therefore, that the net property of the husband was $370,000 however, I am far more inclined to the view that it was significantly less than that and, I would have thought, more appropriately fixed in the vicinity of $200,000, at the commencement of the relationship.”
This may be a point better referred to later, when discussing grounds related to the assessment of contributions during the cohabitation, rather than to assessment of initial contributions, for the learned Magistrate expressly stated that it went to the former. However, in so far as the assertion is that there was a failure to deal with the termination repayment received by the husband some 2 years after the relationship commenced, as an initial contribution, in my view, unless there was some evidence establishing the accrual and evaluation of an entitlement at commencement of cohabitation, albeit crystallised upon the husband’s termination, it was appropriate for the learned Magistrate not to have regard to it when assessing initial contributions and to decide as he did.
Counsel for the husband also offered some criticism of the “rounding down” of the husband’s initial contributions exacerbated by the omission of the husband’s chattels of a very modest value and the “rounding up” of the contributions of the wife, but I am not satisfied that approximations arrived at by the Federal Magistrate were not open to his Honour.
The final complaint in respect of ground 1 is that, even if the learned Magistrate was correct in assessing initial contributions as 60% by the wife and 40% by the husband, in the light of contributions between then and the time of separation 9 years later, those contributions ought to have been assessed as equal.
To some extent the arguments in support of Grounds 1 and 3 (that ground attacking the treatment of business losses) with regard to the assessment of contributions, ascribe a structure to the learned Magistrate’s reasons which does not exist. He did not, as the grounds may imply, take a three step process assessing initial contributions, then other contributions, making no alteration to his original assessment on account of those other contributions, and then adjust his initial assessment on account of business losses.
The idea that his Honour continued the apportionment of initial contributions after consideration of other contributions (not counting business losses) through to the time of separation or indeed trial, before adjusting for business losses may come from the terms used in paragraph 113 of the reasons of Coker FM, which are repeated here:
“113. In light of those considerations, as I have indicated, there should be an adjustment made in relation to the contributions of the parties and, in my assessment, the appropriate position with regard to contribution, is for a further 20% in favour of the wife. That would result in the 80/20 assessment in favour of the wife.”
But leading up to that paragraph his Honour had considered a range of contributions, as well as business losses.
As seen from paragraphs quoted in the summary of the Federal Magistrate’s reasons, his Honour considered, apart from initial contributions:
·the husband’s $90,000 termination payment
“100.       Whilst it certainly was a contribution during the course of the relationship, it was just as clearly one that had, at least in small part, been derived as a result of the time that the parties spent together.”
·Income
“105.       Of course, the husband was in employment and certainly, in the early stages of the relationship, significantly remunerative employment, though the wife also, it would appear, had income in the vicinity of $30,000 to $40,000 per annum, which was also contributed to the matrimonial pool.”
·contributions of the wife arising from the husband’s ill health
“106.       As I indicated earlier in my reasons, however, the husband had a period of approximately nine months where, due to his health, he was not in employment and whilst evidence was not called, I am of the view that there would have been some benefits, be it sick leave or sickness benefits received, but that there would have been significant costs also attaching to the treatment received and the need for travel, such that the wife's contribution would have, again, been greater than that of the husband.”
·the use made of initial contributions
“107.       It was the wife's assets, during the marriage, which were to a very significant degree, utilised in relation to the acquisition of the various real property and business interests of the parties and that also is a contribution, which must be looked at.”
His Honour also considered the question of the losses and the husband’s conduct in relation to those losses. He made some observations of the extent of those losses (in paragraphs 110 and 111 later quoted). The losses were large.
Only after all of these findings and conclusions, did his Honour reach a final decision on assessment of contributions which he expressed by increasing the disparity arising from initial contributions.
Cases such as Bremner (1995) FLC 92-560 and Pierce v Pierce (1999) FLC 92-844 make it clear that the weight of initial contributions might either be “eroded” by subsequent contributions (whether those of one party outweigh subsequent contributions of the other party or not) (Bremner) or, as was said in Pierce:
“…It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife…”
While such an approach may diminish the impact of initial contributions, there is no dictate that a disparity of initial contributions must be reduced as a result of subsequent contributions. Of course, in the instant case, the disparity between the parties was exacerbated by subsequent events, as assessed by the Federal Magistrate, but only after, as seen, he weighed all considerations.
Having regard to what I earlier said of challenges to an exercise of discretion, based on arguments that the decision was unreasonable or plainly unjust, I am not satisfied that his Honour’s discretion miscarried.
As to ground 2, that asserts a failure by his Honour to give adequate reasons for the assessment of initial contributions, it follows from what I have said that in my view the path taken by the learned Magistrate is ascertainable. As was said in Bennett v Bennett (1991) FLC 92-191, at p 78,267:
“The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties.…”
In my view, there is no merit in either ground 1 or ground 2.

Grounds 3 and 8

“3. The learned Federal Magistrate erred in finding that there should be a further adjustment of 20% in favour of the Respondent arising with respect to the parties’ business. In particular the learned Federal Magistrate –
(a)Failed to give any or any adequate reasons for his calculation of the 20% adjustment;
(b)Gave contradictory reasons concerning the conduct of the parties’ businesses and his findings thereon;
(c)Determined (if he did) contrary to the evidence and his earlier reasoning, that the Respondent made a greater contribution (or was entitled to an even greater share) on account of the Appellant’s conduct to the parties’ business.

8. The learned Federal Magistrate has otherwise erred in failing to provide adequate reasons for his findings with respect to contributions.”

As earlier observed ground 3 supposes a structure of the learned Magistrate’s approach which is not accurate.
In support of the contention that the Federal Magistrate failed to give any adequate reasons for his calculation of the 20% adjustment, counsel in written submissions argued:
“● …he has provided no indication in the judgment that the ‘further 20%’ that he has provided to the wife has any basis in calculation or logic. Further, it is not possible to infer any calculation or reasoning from the judgment as a whole or from the evidence before his Honour.
·The effect of the finding was to create a further differential between the parties of 40% and in the circumstances of this case that lead to such an extraordinarily unjust result that error and wrong reasoning must be discerned (Norbis v Norbis (1986) FLC 91-712).”
In relation to the absence of calculation or logic for the creation of a 40% differential between the parties, it has of course often been said that the exercise of discretion need not be a mathematical exercise. In any event, the mathematical effect of the learned Magistrate’s assessment can be calculated.
Having regard to the monetary effect of the learned Magistrate’s assessment is also appropriate in considering the argument that the result was “extraordinarily unjust”. Forty percent of the net asset pool amounted to $104,000 approximately. On figures he had previously set out, the learned Magistrate had found that, leaving aside the cane farming assets, the parties between them had contributed $500,000 at the commencement of their relationship. That had reduced to net $264,000 approximately. On the basis of an 80/20 division, the wife would emerge from the relationship with approximately $200,000 having brought in $300,000, that is, losing $100,000. The husband having brought in $200,000 emerged with $50,000 approximately, a loss of $150,000.
Having regard to the learned Magistrate’s findings as to conduct and the principles applicable to appeals against the exercise of discretion, such an apportionment of the losses was not beyond parameters open to the Federal Magistrate.

As to the assertion in paragraph (b) of this ground, that the learned Magistrate gave contradictory reasons and findings concerning the conduct of the parties’ businesses, it was not argued that there was express contradiction, but that the contradiction is to be inferred. The submission was that the learned Magistrate, having said he was not satisfied that there had been reckless, negligent or wanton conduct by the husband, effectively “acted” contrary to that finding, through the combination of what he said in paragraph 108, namely:
“108. The husband is not to wholly bear the responsibilities in relation to that but, just as clearly, it is not a situation where he should not bear some of the responsibilities, over and above the wife, in relation to the proceedings.”
and the 40% differential which he created to apportion the impact of the losses.
The argument was that the adjustment in percentage terms could only have been made if the Federal Magistrate had affirmatively found that there had been reckless, negligent or wanton actions on behalf of the husband.
This argument is defective. If the adjustment was within the range of discretion, as I have previously concluded it was, the inference which counsel for the husband submits must be drawn, need not be so and indeed, is contrary to what the learned Magistrate expressed.
Counsel further submitted that the Federal Magistrate had misinterpreted passages from the cases of Kowaliw and Kowaliw (1981) FLC 91.092 and Bruno (No.2) (2005) FMCA fam 402. Counsel wrote:
“…In particular, the learned Federal Magistrate draws from the latter decision one of its enumerated principles, namely:
“(xiv)Even if it does not involve waste, the economic consequences of a significant reduction in the asset pool must be considered.”
Of course, that is not inconsistent with the words of Justice Baker in the former case. However, both Justice Baker and Federal Magistrate Ryan speak of reduction of assets and the consequences of businesses reverses having an impact upon the asset pool. The size of the pool always has a bearing on whether an order is in the end ‘just and equitable’. But that is not to say that in circumstances where ‘waste’ as such cannot be discerned, there may still be ‘blame’ attached because the business has not gone well.
·There are at least two major difficulties with his Honour’s reasoning here. He has found the Wife had some involvement in and knowledge of the running of the business and certainly would have been in a position to enjoy the benefit of any profits. To find as he has done would be to effectively rule that a spouse in the position of the Wife in this case was to be insured against losses to a greater or lesser degree, but entitled wholly to share in any gain. The next difficulty inherent in his Honour’s reasoning is that a court will be required to undertake a business analysis and to review each business decision made during the course of the conduct of the enterprise to determine whether it was conducive of loss or profit. In this way a wholly collateral case will be run. This is not possible and is positively undesirable. It has an exact analogy in the reluctance of courts to attempt to evaluate the quality of a wife’s housekeeping which of course is neither possible nor desirable.”
There are some assumptions underlining these submissions which do not bear scrutiny. It cannot be assumed that the learned Magistrate’s decision to make an adjustment so that the husband bore the losses of the business to a greater extent than the wife, was to “effectively rule that a spouse in the position of the Wife in this case was to be insured against loss to a greater or lesser degree, but entitled wholly to share in any gain.” There was not a gain, so any discussion of that prospect is hypothetical, but it does not follow from the conclusions of the Federal Magistrate about the impact of the losses that if there had been a gain, it would have been shared equally.
As to the suggestion that it follows from the Federal Magistrate’s approach that a court will be required to undertake a business analysis and to review each business decision made during the course of the conduct of an enterprise, the extent of enquiry necessary in any particular case will depend upon the relevant issues raised by the parties. If it be in particular cases that relevant issues require examination of business decisions, whether that is to determine the significance to the assessment of contributions of a profit or of a loss, then on the current state of the law, that would seem to be an enquiry that must be made. However, absent claims of special contribution, or that one party as against the other should bear responsibility for a loss, such an examination is unlikely to be considered necessary. The floodgates have not opened.
As to the suggestion that the learned Magistrate misapplied the law, his Honour commenced his discussion of relevant authorities by reference to the decision of Baker J in Kowaliw and then said:
“72. More recently, Federal Magistrate Ryan in Bruno (No.2) 2005 FMCAfam 402 considered a number of previous decisions of the Full Court, including the more recent decision of the Full Court of the Family Court in Chorn & Hopkins (2004) FLC 93-204 and drew additionally on the ex judicial writings of Justice Boland of the Appeal Court to distill a more comprehensive set of principles. Those principles were as follows:
…
(iv)If the losses occurred in the course of the pursuit of the objectives of the marriage then such losses should be shared by the parties although not necessarily equally.
…
(xiv)Even if it does not involve waste, the economic consequences of a significant reduction in the asset pool must be considered”.
“The set of principles outlined by Federal Magistrate Ryan, address comprehensively those matters which were raised by Justice Baker in Kowaliw (supra), over 20 years ago. In particular the fourth point detailed in Bruno (No.2) (supra) is worth further consideration. One of the factors to be considered is whether the losses occurred in the course of the pursuit of the objectives of the marriage. If it is found that such is the case, then such losses should be shared by the parties, though as Justice Baker indicated, it may not be on an equal basis. The losses can be apportioned and in this case some responsibility must fall upon the husband in relation to the loss, even if it were not a case of it being a wilful or determined act, on the part of the husband.
73.As Federal Magistrate Ryan appropriately noted in the fourteenth point of the set of principles:
“Even if it does not involve waste, the economic consequences of a significant reduction in the asset pool must be considered”.
Each party has clearly sustained reduction in the position that they were in, prior to the relationship. It is unfortunate that that is the case, as the general experience of all persons before the Court and certainly of practitioners, is that the division of the “matrimonial pie”, no matter how big that might be, results in concerns expressed by parties to proceedings, as to whether they are or are not receiving their proper entitlements. When the matrimonial pool is significantly reduced, be that as a result of the action of one party intentionally or because of an unfortunate set of circumstances leading to loss, the concern expressed by each party, as is obvious in this particular matter, is significantly increased.”
His Honour’s comments in paragraph 73 of his reasons relating to paragraph (xiv) of the “principles” set out in Bruno (No.2) are no more than observations about the reactions of parties in cases where losses reduce wealth introduced to a relationship.
The paragraph from Bruno (No.2) which his Honour applied was paragraph (iv).
As to that application, it is to be remembered that the instant case is not one in which business losses were suffered despite the reasonable conduct of the enterprise. The learned Magistrate found that in several important respects the conduct of the husband was unreasonable, though he did not use that term.
There was, as already seen, a failure to ensure accounts were prepared in a timely manner, and as well:
“27. …nor,… had he properly prepared business plans …” and
“110. …it was also he who knew the situation with regard to the poor trading of the company, and yet continued to trade.”
These findings distinguish the instant case from the facts in Browne v Green (1999) FLC 92-873, in which the Full Court overturned a trial Judge’s decision placing the full burden of losses on the husband where:
“42. …her Honour’s reasons for attributing sole responsibility to the husband seemed to be that the husband was the initiator of the project and he was the one who had control of it.”
In the same case, their Honours comprising the Full court said:
“40. A practical difficulty, however, arises in relation tot eh recognition of contributions to a project which has failed, or to property which may no longer exist, if the overall pool of property ultimately available for division between the parties has been reduced by the failure of the project in question, or the absence of the property previously in existence, and to which project or property the contributions have been made. It is in this context that the Court has to turn its mind to the question of whether one party, or alternatively both parties, should as a matter of justice and equity bear the financial loss in question.…”
In my view, what is described in this passage is what the Federal Magistrate did.
A finding that the wife had some knowledge of the business operations is not inherently inconsistent with findings of the husband’s primary responsibility for these operations.
I am not satisfied that his Honour made any error of principle in his consideration and application of authority.
All that was said in support of the third paragraph of this ground was that it was defended for reasons already advanced. It is a paragraph a little unusually expressed, as it asserts that the Federal Magistrate “determined (if he did)…” that the wife “made a greater contribution (or was entitled to an even greater share)” because of the husband’s conduct of the parties’ businesses. It is clear, in my view, that the learned Magistrate increased the apportionment to the wife, not because of a recognition of greater contributions made by her on account of the husband’s conduct of the businesses, but rather after consideration of all other relevant contributions and responsibility for the business losses.
In my view there is no merit in ground 3.
As to ground 8, no further submissions were made in support beyond those already discussed. Again, it follows from what I have already said, that the path which his Honour followed is discernible.

Grounds 5 and 6

“5. The learned Federal Magistrate erred in failing properly to take into account the whole of the assets of the parties.
“6. The learned Federal Magistrate erred in failing properly to take into account the age and state of health of the Appellant, particularly in circumstances where by reason of his Honour’s findings the Appellant would be left with very little property.”

In so far as submissions in the written outline in support of this ground repeat the proposition that the trial Judge should have included the cane farming assets in the “pool”, they have already been dealt with.
In so far as the submissions are to the effect that the Federal Magistrate’s orders were manifestly unjust, because the result was that the husband received 9% of the property of the parties, comprised of the asset pool that his Honour developed and the cane farming interests, those submissions will be considered in the discussion of ground 7.
In so far as the submissions were that, in considering section 75(2) factors, the learned Magistrate failed to have regard to the cane-farming interests, those submissions are dealt with now, together with discussion of ground 6.
Counsel for the husband argued that the learned Magistrate had failed to have proper regard to the cane farming interests and their production of income and thus there was a failure to give proper consideration to the comparative financial circumstances of the parties and to the income earning capacity of the parties, particularly having regard to the husband’s age and past poor health. Counsel submitted that the husband was unable to work and necessitous, but the evidence before the Federal Magistrate was that the husband was in employment at trial and no further evidence has been received by me. Further, I was not taken to any evidence that showed a continuing relevance to employment capacity of past health problems.
To reinforce his argument, counsel for the husband referred to the effect of the division based on contributions, taking account also of the cane farming interests, as leaving the wife with 91% of the assets. Counsel submitted that there was no discernible way in which that result could be produced after a proper assessment of section 75(2) factors.
As to these arguments, it seems that little attention was paid to the position at law of the wife in respect of what has been referred to as “the cane-farming interests”. Although (from matters referred to by counsel on the hearing of the appeal) it seems that the evidence before the Federal Magistrate might have supported an argument that the “cane-farming interests” were de facto property of the wife, as seen, the cases of both parties were presented on the basis that the interests were a resource, notwithstanding that the interests were also referred to as the “wife’s Ingham assets” in the husband’s case outline.
In these circumstances, the significance of the cane farming interests as section 75(2) factors may have been not much more than their capacity to produce an income. Further, as to “trust income”, the learned Magistrate said:
“8. …The trust provides income for her and for the support of her children.”
Moreover, while the mathematical calculation of 91% against 9% may have some legitimacy as a demonstration of the result of the Federal Magistrate’s orders, caution in placing weight on the demonstration must be exercised, in circumstances where neither party contended that the cane farming interests be included in an asset pool for the purpose of division according to assessments of contribution and section 75(2) factors.
It is not of course the purpose of a consideration of section 75(2) factors to make an adjustment that renders the parties in an equal position. It is also true that, because of the terms of the paragraphs of section 75(2), the length of a marriage, the impact of it on the earning capacity of each party and, in particular, whether either party is burdened with the ongoing care of children of the marriage, are all factors which provide a context in which weight is given to individual section 75(2) factors. Here, there were no children of the marriage, the husband was already 52 years of age when he entered into it and it was of but 9 years duration. It was not as a result of any role adopted during the marriage that the husband’s earning capacity had been affected.
Coker FM’s consideration of section 75(2) actors was as follows:
“114. I am required, also, of course, to turn my mind to issues in relation to the factors needed to be considered pursuant to section 75(2) of the Family Law Act. The wife is 46 years of age, as I have indicated, and the husband is 63 years of age at this time.
115. The husband is in employment and, at the present time, finds himself with very limited financial resources. The wife has assets but also has liabilities which attach to the property of herself and, of course, to any entitlements that might be held, in relation to assets. The wife has limited capacity for gainful employment. She has commitments in relation to the support of her children, though they are getting to an age where those liabilities, or responsibilities, will be somewhat reduced.
116. The wife has limited skills and, of course, the evidence to which I have already referred, indicates that she has difficulty with regard to many of the issues that would be associated with clerical or office work, including particularly, skills in relation to accounting or bookkeeping. The wife says that she has expectations and hopes of continuing studies but balanced against that, is the fact that she has not studied for a considerable period of time and that there have been circumstances relating to her health, including depression or clinical depression, which means that there is little real expectation of the wife being in a position to further her financial situation, to any significant degree, as a result of a course of study and obtaining of work.
117. The husband has a surplus of income over expenditure, at least insofar as his financial statement is concerned. However, that cannot continue indefinitely. His income at the moment is in the vicinity of $750 to $800 per week and liabilities are in the vicinity of $650 or more per week. There is a surplus but it is not a situation where one would expect that he would be able to acquire significant assets, between now and retirement.
118. The husband will, no doubt, qualify for a pension but it would not be a retirement which is overly comfortable, if only the pension was received and there was no other income or provision, made for his future.
119. In the circumstances, I would think that there are factors which weigh in relation to both the husband and the wife. I am not of the view, therefore, that there should be an adjustment either in favour of the husband or in favour of the wife, pursuant to the provisions of section 75(2).”
In the circumstances, again having regard to the applicable principles, though another judge might well have made some adjustment in the husband’s favour, I am not satisfied that the treatment of the factors relating to each party as equal was beyond the legitimate exercise of discretion vested in the Federal Magistrate.

Ground 7

“7. The learned Federal Magistrate, through errors of reasoning and through contradictory findings, has made an Order that is not just and equitable.”

In support of this ground counsel repeated previous submissions but added that “…however, the final determination was arrived at, the order made in the circumstances of the husband is not ‘just and equitable’ as required by the Act.”
To the extent that in support of this ground, counsel for the husband argued the result of the Federal Magistrate’s order could be seen, on one approach, to divide property 91% to the wife and 9% to the husband, this submission has already been dealt with.
Other than submissions addressing the assessment of contributions and the assessment of section 75(2) factors, which submissions have also already been dealt with, no submission was made to show that if there was no error in those assessments, some additional factor rendered the orders otherwise not just and equitable.
Accordingly, there is no merit in this ground.

Ground 4 – the conceded errors in calculation

“4. The learned Federal Magistrate erred in calculating the entitlement of the Appellant by failing to take into account that the Appellant would be responsible for certain liabilities that had been taken into account in the calculation of the net matrimonial estate namely:
(a)A debt owing to [BCK] of $3,500.00.
(b)A tax liability of $3,546.00; and
(c)A credit card liability relating to matrimonial matters of $5,939.00.”

In the table of assets, the learned Magistrate set out the liabilities as follows:
LIABILITIES
[BCK] Account  $3,500.00
Husband 2001/02 tax  $3,546.00
Husband’s credit card relative
to the marriage  $5939.00
$12,085.00
In fact, the liabilities listed amount to $12,985. Accordingly, the net equity of the parties should be $263,934.28 (not $264,834.28 as found).

Of more significance is that, when determining the terms of orders, the learned Magistrate said:
“120. On that basis, then, the equity in the assets of the parties are $264,834.28. If the husband were to receive 20 per cent of the value of those assets, it would be $52,966.85.…
…
124. I need to look at the justice and equity of circumstances that would exist, pursuant to the terms of any orders that I make. The husband has limited superannuation of $862.00, and shares in the Boral company which, as best I can assess, have a value of $1316.00. The husband also has a Ford Fairmont sedan valued at about $1000. Thereafter, the assets that the husband has, other than those of a personal nature, are minimal.
125. If those items, to which I have just referred, are taken into consideration, then the justice and equity of the case would provide for a further payment to be made by the wife to the husband of $49,788.85.”
In these calculations his Honour overlooked that for the husband to receive 20% of the net assets, the correct calculation would be (as submitted by Counsel for the husband):
“●     On the finding of the learned Federal Magistrate that the Husband should be entitled to 20% of the parties’ nett divisible assets, he ought to have in value a sum worth $52,786.86. Because, as the following table shows, he has assets of a negative value of $9,807.00, he will need to receive from the Wife $62,593.86 in order to have his proper entitlement..
NETT  $263,934.28
Husband has:
Ford Fairmont  1,000.00
Superannuation  862.00
Boral shares  1,316.00           $3,178.00
Debt to BCK  ($3,500.00)
Debt to ATO  ($3,546.00)
Debt Credit Card  (5,939.00)       ($12,985.00)
NETT  ($9,907.00)
20% OF $263,934.28 IS $52,786.86
Therefore:
Husband must have from Wife  $62,593.86
And what he has  (9,897.00)
NETT  $52,786.86”
As a result of these errors, the orders of Coker FM will need to be amended to provide for the wife to pay the husband $62,593.86 in lieu of $49,788.85.
Both counsel were agreed that, if this was the only point upon which the appeal succeeded, the appropriate course was merely to make the mathematical corrections.

Conclusion

No merit having been found in any of the other grounds of appeal, it follows that the appeal will succeed, but only to the extent that the mathematical corrections are made.

Costs

Counsel for the husband submitted that since the appeal was necessary to correct the miscalculations, the husband should have his costs, but if not, should be granted a certificate.
The wife sought costs if the appeal failed, and a certificate if it succeeded.
In my view, having regard to the substantial failure of the appeal on the one hand, but to the limited success in respect of the miscalculation and to the comparative financial positions of the parties as appears from the reasons of the Federal Magistrate, there should be no orders as to costs, and no grant of certificates.

ORDERS

That the appeal be allowed in part.
That order 1 of the orders of the Federal Magistrates Court of Australia be amended to substitute the figure of $62,593.86 for the figure of $49,788.85.
That there be no order as to costs.
That the request of each party for a certificate pursuant to the Federal Proceedings (Costs) Act 1981, be refused.
I certify that the preceding 118 paragraphs
are a true copy of the Reasons for Judgment
herein of the Honourable Justice Warnick.
………………………………….
Associate
Date: 20 March 2006

[2006] FamCA 255

20 March 2006

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