GBT & BJT

[2005] FamCA 683

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE Appeal No. SA 3 of 2005

File No. ADF1694 of 2001

IN THE MATTER OF: G B
T

Appellant Husband

AND: B J
T

Respondent Wife

CORAM: KAY, HOLDEN, WARNICK JJ

DATE OF HEARING: 27 JUNE 2005

DATE OF JUDGMENT: 26 JULY 2005

JUDGMENT OF THE FULL COURT

On 16 December 2004, Strickland J made orders by way of alteration of property interests between the parties. The broad effect of those orders was to divide assets held by one or other of the parties and totalling approximately $3 million, in the proportions 82.5% to the husband and 17.5% to the wife. This is the husband’s appeal against those orders. Whereas the orders of the trial Judge required payment by the husband to the wife of approximately $477,000.00, the husband proposed an order that he pay the wife $216,000.00, or transfer to the wife assets of that value.
Though the Amended Notice of Appeal contains 5 grounds (4 of which were argued) the thrust of the Appeal is as set out in the first paragraph of the Summary of Argument on behalf of the husband, as follows:
“1. The Appellant husband accepts the findings of fact of the learned trial Judge. However, it is submitted that the learned trial Judge’s conclusions as to contributions and S.75(2) factors, based on those findings, were beyond a reasonable exercise of his discretion, and thus fell outside the generous ambit within which reasonable disagreement was possible, and as such warrant the intervention of the Full Court.”
We will return to the grounds for Appeal after a summary of the facts and reasons of the trial Judge and reference to the principles applicable to this appeal.
Neither counsel sought to put any further evidence before us in the event the appeal succeeded and, each sought we do in that event, re-exercise the discretion.

SUMMARY OF FACTS AND REASONS OF THE TRIAL JUDGE

The parties commenced cohabitation in June 1993. They married in April 1997 and separated in November 1999. Each party had been previously married. The husband had two children, one born in 1979, the other in 1982. There were no children of the wife’s earlier marriage.
The husband was, and had been since 1985, a partner in an accountancy firm. The wife was employed as a secretary at that firm. From September 1993, the husband’s older child lived with the husband and wife for six months. Toward the end of 1993, the husband made the first of a series of investments in vineyards and related activities.
In mid 1994, the husband resigned from the accountancy practice and, with another person, commenced a new practice. The wife, who had resigned from the first practice shortly before the husband left, commenced work full time in an administrative capacity in the new practice.
In 1995, the husband’s mother gifted the husband $26,000.00, which was used to fund investments. In the same year, the wife reduced her working time to four days per week and commenced part-time study. Also, the husband made a further investment in another enterprise in the wine industry.
In January 1996, the wife reduced her working time to two days per week, and shortly after ceased employment entirely.
In April 1996, the T Superannuation Fund was established.
In February 1997, the wife undertook full time study, but withdrew shortly afterwards, and resumed part time studies, though she ceased all study in 1997.
A further investment in the wine industry was made in July 1997, with $150,000.00 borrowed from a bank.
In January 1999, the wife commenced full time employment, and in that month became a member of the Australian Retirement Fund.
Shortly after the final separation, the husband purchased a residential property, borrowing a large amount of the purchase price. In 2000, the husband, through the Family Trust, obtained a Wine Producer’s Licence and commenced a business, G T Wine Sales.
In 2001, the husband invested in yet another wine venture, using part of his superannuation fund and savings from his income. A sales “vehicle” was also established at this time.
In May 2002, the wife and a Mr H commenced cohabitation. In August 2003, the wife commenced employment as a marketing sales manager with a wine vendor. In late 2003, the wife and Mr H registered a business partnership which operated an onsite bottle labelling service directed towards the wine industry.
At trial, the wife was aged 36 years. She and Mr H resided in a house owned by the wife’s father, for which they paid rental. They intended to purchase the property on which they had spent $15,000.00 for renovations, and a purchase price of $400,000.00 had been agreed.
The wife was earning $65,000.00 per year and had her motor vehicle and mobile telephone expenses paid. Mr H worked in the bottle labelling business and for that business the wife compiled management accounts and attended to marketing matters. The wife hoped that the business would shortly provide an income of between $650.00 and $2,000.00 per week.
The trial Judge noted that there was no evidence of the financial circumstances of Mr H.
The husband was aged 54 years at trial. He resided in the house he had purchased after separation. His income as a partner in the accounting firm was $15,000.00 per month. He maintained the investments in wineries and vineyards, primarily through the family trust. He had a superannuation entitlement as the only member of the T Superannuation Fund.
The parties had agreed that all of the business interests of the husband would be valued at the end of the 2002 financial year.
In his Reasons for Judgment, Strickland J addressed issues in dispute in relation to the asset pool and to contributions, as well as in respect of the identification and assessment of section 75(2) factors
He stated the principles applicable to the matters before the Court.
He then turned to the evidence in the case of each party. In the course of so doing, he stated that he was not impressed with the evidence of the wife, and referred to “… instances where she did not tell the truth…” He said also that the wife was “… deceitful in the lead up to separation:…” and moreover that
“Apart from the falsehoods and the deceit, I find that the wife exaggerated in her evidence of her contributions. …” and
“Finally, I was far from impressed with the wife’s failure to either reveal the full details of the income, property and resource of her partner, or, if she truly did not know them, to not call him as a witness. …”
On the other hand, his Honour said:
“The husband gave his evidence in a straightforward manner, and I found him to be a witness of credit.”
His Honour then proceeded to determine the assets, liabilities and financial resources of the parties, at the commencement of cohabitation, at the date of separation, and at the date of hearing. He then turned to an assessment of contributions. As to initial contributions, his Honour said
“Given my finding that the value of the husband’s interest in the accounting practice of [P and M] was approximately $400,000.00 at about that time, it is readily apparent that in this regard the husband has made a substantially greater contribution than the wife was able to.”
As to contributions during cohabitation, his Honour referred to the husband’s full time work in the accountancy practices, and his total income from all sources, approximating $1,400,000.00, used for the benefit of the husband and wife and to a limited extent for the benefit of the husband’s two children from his previous marriage. His Honour said:
“The Court also recognises that it would be ‘doubled counting’ to take into account as entirely separate and discreet contributions the value of the husband’s interest in the accounting practice at the start and his income over the next few years. Because of how the husband’s interest is valued, there is a necessary overlapping of the two.”
His Honour reminded himself of the inheritance of $26,000.00 that the husband received from his mother in 1995, that the husband had made the overwhelming contributions to the establishment of the new accountancy practice and had worked long hours and made a significant and substantial contribution to the development and growth of that firm. He said there was no dispute about the value and importance of the husband’s contributions with regard to the winery and vineyard interests, but added:
“However, another potential for ‘double counting’ should be recognised with the husband’s contributions to the accounting practice and to the winery and vineyard ventures. One result of these efforts is the income that the husband has received, and thus it is not open to take that income into account as an entirely separate and discrete contribution.”
Finally, with regard to the husband’s contribution, Strickland J noted that the husband had made the direct financial contributions to the T Superannuation Fund of which the husband was the sole member.
As to the wife’s contributions during cohabitation, the trial Judge again noted the wife’s employment history and her total earnings from employment of $98,511.00 and an allocation to her of $45,000.00 from the family trust in 1997 and 1998. As to the wife’s use of her wages, his Honour recorded:
“The wife conceded in cross-examination, that she used very little, if any of this money for the joint benefit of her and the husband. She used it almost entirely for her own purposes. She agreed that it was the husband who met all expenses of the household, including the provision of domestic help.
In addition to her income, the wife had unlimited access to the parties’ cheque account and to various credit cards.”
His Honour discussed an issue about the level of the wife’s expenditure, concluding:
“… In my view, although the wife readily conceded that shopping was her form of entertainment, there is no basis for a finding that this in some way diminished her contributions or should be viewed as a negative contribution.”
His Honour then addressed an issue about the contributions of the wife in relation to setting up the new accounting practice of the husband, concluding:
“... I prefer the evidence of the husband on this topic, and I do find that the wife has exaggerated her contributions in this regard. In cross-examination it became apparent that very little time was involved in this exercise, and that what the husband was saying was the more accurate version.
The wife conceded in cross-examination that once she ceased working at [T R] in March 1996, there was almost no input by her to that practice. Indeed, she agreed that there was very little business entertaining undertaking by her either in the home or elsewhere.”
His Honour then turned to a consideration of a claim by the wife, that she had assisted the husband with his vineyard and winery interests, and said:
“However, she agreed in cross-examination, that it was not a significant contribution, and that the husband made all the necessary decisions. …”
Following this review of some of the parties’ contributions, his Honour said:
“There is no doubt that overall, the contributions of the husband, pursuant to Section 79(4)(a) and (b) of the Family Law Act, far outweigh the contributions of the wife made under those headings. Indeed, the husband’s contributions can be considered overwhelming.”
The trial Judge then turned to consider contributions as homemaker/parent and in particular, the contention of the wife that she “… ran the household with little or no assistance from the husband because of his work ethic and his commitment to the accounting practice and his winery and vineyard interests.” Of this contention his Honour said:
“However, the parties lived in rented accommodation, and they had no children of their own. Further, there was a house cleaner, an ironing person, and the parties ate out several times a week.
In these circumstances the husband says, and I accept, that the wife has exaggerated her contributions in this regard. There is no doubt that she did do housework, but I find that in the latter years, when the wife’s commitment to the marriage waned significantly, so did her attention to such things as the household duties”
As to contributions by the wife to care and support of the husband’s two children, his Honour said:
“However, in her affidavit, the wife acknowledged that these contributions were not significant, and that is quite apparent from the evidence. …”
Further in this regard, his Honour said:
“Both Counsel chose to identify the issue of the wife’s care for and support of the husband’s children as a relevant matter to be taken into account under Section 79(4)(c). However, that is not the law. This is a matter that should be taken into account, if at all, under Section 75(2)(oa) of the Act…”
In relation to a submission on behalf of the husband, that the wife’s contributions as a wife and homemaker over the last two years of cohabitation were minimal, his Honour said:
“I accept that the wife’s contributions over this period were minimal, but I have already taken that into account in considering the specific categories of the wife’s contributions under this heading
I find that the wife’s contributions pursuant to Section 79(4)(c) are greater than the husband’s, but in the overall assessment of the parties’ respective contributions they have minimal impact.”
His Honour then turned to the question of post-separation contributions. In this regard, Strickland J noted that:
“The effect of the parties’ agreement to only present valuations of the husband’s interests in the accounting practice, and in the winery and vineyard ventures as at 30 June 2002, is that it is not possible to take into account any contributions to those interests since then.”
His Honour then addressed contributions to that time, which included significant contributions from the husband’s earnings, borrowings and from the T Superannuation Fund, to the winery and vineyard ventures, as well as the purchase of the residential property by the husband.
In relation to the wife’s contributions, he said:
“For the wife’s part, there have been no relevant contributions, save and except that she has remained employed, resulting in her Superannuation Entitlement now having an agreed value of $18,233.00. …”
The trial Judge then moved to his conclusion on contributions and said:
“The husband has clearly made the greater financial and non-financial contributions, and although the wife has made the greater contributions as a homemaker, that is only of marginal significance, leaving the husband’s contributions overall, at so much more than the wife’s that in my view they should be assessed at 87.5% to the husband and 12.5% to the wife.”
His Honour then turned to a consideration of relevant factors under Section 75(2). Among his observations in this regard, he said:
“The husband says that the wife has a longer working life ahead of her than he does, and this is a relevant factor to be taken into account, and I agree. The husband is approaching the age, when he can start to consider retirement, but the wife has many years before she will be in that position. However, it must not be forgotten that the husband has a higher income earning capacity than the wife, and thus the difference in their ages may not be as important when comparing what they may each earn during the balance of their working lives.”
His Honour then referred to the evidence about the earnings of the parties, and a claim by the husband that he needed to slow down, as to which his Honour noted an absence of medical or other evidence. The trial Judge concluded:
“On the basis of this comparison, it is quite clear that the husband has a greater income than the wife, as well as a greater earning capacity, and these disparities need to be taken into account.”
He also said:
“As a result of my findings on contributions, the husband is entitled to a greater percentage of the net assets of the parties than the wife, and thus this is another disparity that needs to be taken into account.”
Strickland J then turned to a consideration of the wife’s cohabitation with Mr H. He drew the inference that the evidence of Mr H, who was not called, would not have assisted the wife’s case, but recognised that that inference could not provide evidence that was not there. He concluded:
“What I can say though, is that they appear to be comfortable financially, the wife works full time and earns a relatively substantial income, they have a business that [Mr H] works in and which has the potential to provide a good income for both of them, they live in a house property which they intend to purchase for $400,000.00 and which they have already renovated, and the wife has a motor vehicle and furniture of her own, together with net savings and a small share-holding.”
His Honour then reminded himself of the factor of the wife’s care for and support of the husband’s two children, but also that it was not a significant issue, and was of minimal effect, and concluded that there should be an adjustment of 5% in favour of the wife, referring again to the significant disparity between the parties’ income and earning capacities and their property.
Next, his Honour turned to a consideration of the effects of his proposed orders, finding that the earning capacity of either party would not be affected by those orders, and there was nothing else which required consideration.
Accordingly, he reiterated the conclusion that the net assets of the parties be divided 82.5% / 17.5% in the husband’s favour.
Finally, his Honour addressed the question of whether the proposed orders were just and equitable. He considered what each party would have in consequence of them, the question of sharing of capital gains tax on any sale of assets necessary to meet payment to the wife, and after expressing himself to have revisited the history of the relationship between the parties, their respective contributions and “the relevant section 65(2)(sic) factors” (clearly section 75(2)), said that he was satisfied that the proposed orders were just and equitable.

PRINCIPLES APPLICABLE TO THE APPEAL

There being no error of fact asserted nor any suggestion that a wrong principle was applied, this appeal rests squarely on the last of the circumstances in which, according to the passage in the well-known High Court judgment of Dixon, Evatt and McTeirnan in House v The King (1936) 55 CLR 499, at pp 504-505, an appellate court can interfere in a discretionary judgment. That passage is:
“…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.”

GROUNDS OF APPEAL

Ground 4 was not argued. Ground 1 simply asserts that the orders made were beyond a reasonable exercise of discretion, and outside the generous ambit thereof. Ground 5, simply asserted that the ultimate outcome was not just and equitable. It is in ground 2 where one finds the particulars of the complaint of the trial Judge’s dealing with contributions, and in ground 3, the particulars of the complaint about the trial Judge’s dealing with factors under section 75(2). In these two grounds, the real matters of argument lie, and accordingly, we deal with those.

Ground 2

This ground is
“Having regard to the following findings of fact:
a)That the wife had exaggerated her evidence of her contribution [Judgment paragraph 84];
b)The husband’s pre-cohabitation contributions [Judgment paragraph 110];
c)The husband’s contributions under Section 79(a) and (b) [Judgment paragraph 111];
d)The absence of any contribution under Section 79(a) and (b) on the part of the wife which the learned trial Judge could find to be of any consequence or significance [Judgment paragraph 112];
e)The fact that the wife’s greater contribution under Section 79(4)(c) had a “minimal impact” on the overall assessment of the parties contributions [Judgment paragraph 120];
f)The very substantial post separation contributions (amended by leave to read “husband”) [Judgment paragraph 127];
the learned trial Judge erred in his assessment of the contributions of the parties in the proportions of 87.5% to the husband and 12.5% to the wife.”

In written Summary of Argument it was submitted on behalf of the husband that the substantial adverse findings against the wife on issues of contribution, did not support the conclusions reached by the trial Judge. The findings already noted in the summary of the judgment were then listed, and are conveniently summarised in paragraph 5 of the Written Submissions as follows:
“5.It is submitted that the learned trial Judge grossly over-valued the wife’s contribution at $395,917.00 (12.5%) given his findings inter alia that:
(a)       The wife brought no asset into the marriage;
(b)       The husband brought substantial assets into the marriage;
(c)The husband made the total financial contribution during the marriage to the acquisition and conservation of assets;
(d)      The husband contributed his income to the parties’ lifestyle;
(e)When the wife did work in paid employment (for a minimal period of time she applied almost all of her income for her own purposes [Judgment para. 112.1];
(f)       The insignificant homemaker contribution by the wife;
(g)The overwhelming financial contribution by the husband post-separation.”
We think that, merely on a reading of ground 2 and the paragraph of the written submissions quoted, an apparent argument about the magnitude of the trial Judge’s apportionment in the wife’s favour arises. However, to more fully summarise the findings of the trial Judge about contributions, we set out the following, which represents an abbreviation of his Honour’s reasons already quoted.

Initial contributions – husband made a substantially greater contribution.

Contributions during cohabitation

Income - husband $1,400,000
- wife $98,511, used almost entirely for wife’s own purposes
Husband’s inheritance $26,000
Wife – nil
Contributions to establishment of practice
Husband – overwhelming contribution to establishment
Wife – very little time
Contributions to conduct of practice
Husband – significant and substantial contribution to the development and growth
Wife – almost no input; very little business entertaining
Contributions to winery and vineyard interests
Husband provided the funds and committed considerable time and effort
Wife – not a significant contribution
Homemaker contributions
Husband – virtually none
Wife – did housework, but parties lived in rented accommodation, had no children of their own and there was a house cleaner, an ironing person, and the parties ate out several times a week and the wife’s attention to household duties waned in the latter years and was “minimal”. Overall, wife’s contributions greater than husband’s but in the overall assessment, of “minimal impact”

Post-separation contributions

Wife – none except towards her superannuation
Husband – significant contributions

The extent of the post-separation contributions can be measured by the unchallenged findings of the trial Judge where he described them in the following terms
“121.1 The husband contributed $378,000.00 to [A V].
121.2   In 2000, through the [G T Family Trus]t, the husband obtained a wine producers license and registered the business name [G T Wine Sales]. He then purchased grapes, made bulk wine and sold it. The husband borrowed $300,000.00 from the Commonwealth Bank to fund this enterprise, but by the 30^th June 2002 he had acquired stock holdings of $126,714.00 over the Bank debt.
121.3   In 2000 the husband invested in a wine industry venture known as [G Vineyard]. The T Superannuation Fund contributed $90,000.00 and the husband contributed $45,000.00 from his own earnings.
121.4   In 2001 the husband and others commenced [H Wines Pty Ltd]. The husband’s initial contribution was $26,000.00.
121.5   The husband contributed his labour and expertise to the development and maintenance of his winery and vineyard interests.
121.6   The husband continued to work long hours in the accounting practice of [T R] increasing its profitability and the current account of the [G T Family Trust].
122.     An indication of the extent of the husband’s contributions to all of these interests is that according to [Mr M] his interests were valued at $1,870,000.00 at separation, yet by 30^th June 2002 they were valued at $2,826,000.00. This includes an increase in the net assets of the superannuation fund of $15,000.00.
123.     The husband contributed $65,400.00 to his superannuation fund since the separation, and currently the agreed value is $114,897.00
124.     Following separation the husband purchased a house property. The purchase price was $310,000.00 and the husband borrowed $255,000.00. That home now has an agreed value of $425,000.00 and the husband has reduced the mortgage by $55,000.00.
125.     The husband paid off the credit card debt of $9,558.00 incurred by the wife in purchasing items of furniture and household effects for herself in the lead-up to the separation. In addition, he continued to make the lease payments on the wife’s motor vehicle including the residual payout at the conclusion of the lease. He also paid the registration and insurance costs until December 2001.
126.     The husband covered the wife’s private medical insurance until the 6^th April 2001.”
We recognise, as his Honour did, potential for “double counting” because of an overlap of some contributions. Nonetheless, the trial Judge himself found that the husband’s contributions under section 79(a) and (b), far outweighed those of the wife and were “overwhelming”.
Moreover, as earlier seen, in his ultimate conclusion on contributions, his Honour found that the husband had clearly made:
“…the greater financial and non-financial contributions, and although the wife has made the greater contributions as a homemaker, that is only of marginal significance…” (emphasis added)
Having regard to such ultimate conclusions, against the fact that 12.5% of the assessed pool meant a payment to the wife on account of contributions of $395,917.00, we are of the view that the assessment was manifestly excessive. We consider that on the findings made, an assessment within a narrow band of 5-7.5% to the wife, was the range of discretion.
Taking the view most favourable to the wife and assessing her contributions at 7.5%, results in an assessment 5% less than that nominated by the trial Judge. While in circumstances dealing with much more substantial and even contributions by each party, 5%, more or less, than awarded by a trial Judge might not render the trial Judge’s award manifestly insufficient or excessive, here 5% less represents a 40% reduction in the amount awarded.
Accordingly, we consider that this ground has merit. We add that, while we are unanimously of a substantially different view to the trial Judge as to the ultimate worth of the wife’s contributions, and that is sufficient for the appeal to proceed, there is otherwise nothing about the detailed well-organised findings or any of his Honour’s subsidiary assessments in respect of contributions which justifies any critical comment.
Indeed, it is substantially because of the meticulous and methodical approach of the trial Judge, including subsidiary assessments, that we are led to the conclusion we have reached, rather than that ultimately reached by his Honour.

GROUND 3

“3. The learned trial Judge erred in the manner in which he applied the factors under Section 75(2) in that:-
a)When comparing the parties’ income earning capacity the learned trial Judge should also have considered the effect of Section 74(2)(k) which, if applied correctly to the facts as found, would have diminished the significance of the disparity in the parties’ income earning capacity;
b)The learned trial Judge took into account eh husband’s income earning capacity having found that the husband’s practice (from which he derives the bulk of his income) had a valued based on capitalising in the future maintainable earnings. In so doing the learned trial Judge “double counted” the husband’s income both as an asset which was divisible (and divided) between the parties and as income which caused an increase in the amount payable under the order.
c)The learned trial Judge failed to take into account that the husband came into the marriage with an already established high income earning capacity.
d)Having regard to the wife’s failure to adduce evidence to enable the court to make a finding under Section 75(2) (contrary to her duty to make full and frank disclosure) the learned trial Judge should have taken a “robust” approach to the non-disclosure and drawn inferences against the wife’s interests;
e)When looking at the effect of the adjustment under Section 75(2) in money terms the learned trial Judge incorrectly applied the principle in Clauson and Clauson (1995) FLC 92-595.”

Though, in view of our conclusion in relation to what, in effect, was ground 1 as partly particularised in ground 2, it may not be strictly necessary to deal with ground 3, in view of its presence and the fact that it will be necessary for us to consider a re-exercise of discretion, it may be useful to make some brief remarks about the issues raised by ground 3.
We are inclined to the view that, in addressing the weight to be given to the disparity in the parties’ incomes and earning capacities, his Honour may well have given insufficient weight to the shortness of the marriage (relevant under section 75(2)(k)) and to the minimal nature of the wife’s contributions, particularly having regard to the fact that such contributions as she did make were mainly in the homemaker sphere, the husband paid for the provision of a great deal of domestic assistance, and there were no children of the parties (relevant under section 75(2)(j)).
Moreover, although his Honour referred to the difference in the ages of the parties, a factor which advantaged the wife, his Honour may not have given that factor sufficient weight in balancing it against the much higher income earning capacity of the husband.
We also consider that, particularly when his Honour cautioned himself against “double-counting” of contributions when considering both the initial introduction of the husband’s interest in the accountancy practice and the income produced from it during the first few years of cohabitation, he may have overlooked repeating that warning to himself when he came to consider the husband’s income and earning capacity.
Bearing in mind that the value of the husband’s practice was included in the asset “pool” for division and the wife was to receive a (albeit small) division of that “pool”, what the Full Court said in Cunningham v Cunningham [2005] FamCA 159 had application, though reduced in effect because of the amounts in question.
“24. …There is no general principle within the Act that supports the proposition being put by the husband, namely that if he buys the wife out of the business the judge is prohibited from taking into account the relative income positions of the parties brought about because of the husband’s retention of the business. Moreover, the husband’s earning capacity is grounded not just on the capital investment in the business but upon his qualifications and experience.
25. While the trial Judge focused upon the income differential of the parties in determining an appropriate adjustment, his Honour seemingly overlooked the fact that for the husband to maintain the income differential represented by the business’s profits he has to keep invested $160,000 from his half share of the assets invested in the business whilst the wife has available to her an equivalent sum to invest as she sees fit. It can be assumed that those monies will securely return her a sum which will diminish the gap between the parties’ income and earning capacity either by way of income or capital growth.”

RE-EXERCISE OF DISCRETION

As it is not necessary in this re-exercise to adjust any findings of fact, we adopt those of the trial Judge. We also think it unnecessary to repeat the conclusions about contributions here. We adopt the terminology used by the trial Judge in his assessment of those contributions, but for the ultimate conclusion, as to which we have already indicated that we consider a correct application of section 79(4) to the subsidiary findings and conclusions, would not result in an award to the wife beyond 7.5%.
As to section 75(2) factors, having regard to those matters that we have referred to in the discussion of ground 3, and to his Honour’s findings as to the comfortable financial position of the wife which included her cohabitation with Mr H, we are of the view that there ought to be an adjustment in the wife’s favour, but limited to a further 2.5%.

TERMS OF THE ORDERS

A 10% adjustment in favour of the wife of the asset pool as found by the trial Judge, equals $316,734.00. We were informed during the hearing of the appeal that the husband had already paid $216,000.00. Moreover, his Honour the trial Judge found that the wife had or had had the benefit of assets totalling $67,446.00 and that the wife should reimburse the husband the sum of $9,558.00 on account of the husband’s discharge of a credit card debt of the wife at separation. We thus calculate that there is payable by the husband to the wife the further sum of $23,730.00.

COSTS

The husband sought, in the event of his success, that the wife pay his costs of and incidental to the appeal. We consider that in view of the comparatively much superior financial position of the husband to that of the wife, notwithstanding the success of the appeal, the wife ought not be ordered to pay his costs. If each party was to bear own costs, the wife sought a certificate. Although her resistance to the appeal has only been partly successful, we think that the grant of a certificate is still warranted.

ORDERS

That the appeal be allowed.
That order 1 of the orders made 16 December 2004 be amended by substitution for the date “18 February 2005” of the date, “31 July 2005” and the substitution for the amount of “$477,281.00” of the amount of “$239,730.00”.
That order 2 of the orders made 16 December 2004 be amended by substitution for the figures (wherever it appears) “17.5%” the figure “10%”.
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.

I certify that the 71 preceding
Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd: ………………

Associate

[2005] FamCA 683

26 July 2005