Gibbons & Gibbons
[2007] FamCA 26
•31 January 2007
FAMILY COURT OF AUSTRALIA
| GIBBONS & GIBBONS | [2007] FamCA 26 |
| APPEALS – Property settlement – property pool of $1,688,555 was found to be contributed 55-45 percent in favour of the husband – adjustment of 7.5 percent to the wife for s 75(2) factors - divided 52.5 per cent to the wife and 47.5 per cent to the husband – no error in determining contributions and s 75(2) factors as he did – they were within the range - no error by trial Judge in adding-back $14,100 of the appellant wife’s savings to the property pool after determining that money to be an amount retained by the appellant – the trial Judge also failed to add-back $24,000 received by the wife since separation as well - trial Judge did err in determining a percentage split of the property pool and then allocating to the husband in the Orders a particular monetary payment which might not accord with the percentage split – appeal upheld and discretion re-exercised. |
| Family Law Act 1975 (Cth) |
Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
AMS v AIF (1999) 199 CLR 160
CDJ v VAJ (1998) 197 CLR 172
De Winter v De Winter (1979) FLC ¶90-605
Norbis v Norbis (1986) FLC ¶91-712
Bennett v Bennett (1991) FLC ¶92-191
Pettitt v Dunkley [1971] 1 NSWLR 376
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378
Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247
Suttor v Gundowna Pty Ltd (1950) 81 CLR 418
Metwally v University of Wollongong (No. 2) (1985) 60 ALR 68
Coulton v Holcombe (1986) 162 CLR 1
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Townsend and Townsend (1995) FLC ¶92-569
Chorn and Hopkins (2004) FLC ¶93-204
M v M [1998] FamCA 42
C v C [1998] FamCA 143
S and S [2000] FamCA 262
Waters v Waters (1981) FLC ¶91-019
Pierce and Pierce (1999) FLC ¶92-844
Coghan and Coghan (2005) FLC ¶93-220
Crampton v Crampton (2006) FLC ¶93-269
In the Marriage of Bevan (1995) FLC ¶92-600
Wv W (2005) FLC ¶93-222
| APPELLANT: | Ms GIBBONS |
| RESPONDENT: | Mr GIBBONS |
| FILE NUMBER: | SY 2753 of 2003 |
| APPEAL NUMBER: | EA127 of 2004 |
| DATE DELIVERED: | 31 January 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Faulks DCJ, Coleman and Boland JJ |
| HEARING DATE: | 29 July 2005 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 November 2004 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Connor |
| SOLICITOR FOR THE APPELLANT: | Bayside Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Stewart |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Gibbons v Gibbons.
Orders
That the Full Court allows the appeal.
That Order 7 of the orders of the trial Judge be varied to read:
7.That both parties do all things necessary to cause a sale of the Seahampton properties being Lots 8 and 9 Balmoral Drive, SEAHAMPTON. Following the sale of the properties the sale proceeds be applied as follows:-
To pay:
(a) Real Estate Agents’ commission,
(b) Legal costs on sale,(c)To the husband the sum of $12,512 to cover his anticipated CGT;
(d) To the wife the sum of $11,023 to cover her anticipated CGT.
(e)That the proceeds then be divided between the parties so as to achieve an overall division of the net assets of the parties, as determined by the trial Judge of 52.5 percent to the wife and 47.5 percent to the husband.
That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.
That the Court grants to the respondent husband 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 husband in respect of the costs incurred by the respondent husband in relation to the appeal.
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA127 of 2004
File Number: SY 2753 of 2003
| Ms GIBBONS |
Appellant
And
| Mr GIBBONS |
Respondent
REASONS FOR JUDGMENT
Deputy Chief Justice Faulks, Coleman and Boland JJ:
Introduction
This is an appeal by Ms Gibbons (“the wife”) against orders made by Le Poer Trench J on 16 November 2004 in property settlement proceedings between herself and Mr Gibbons (“the husband”). The effect of his Honour’s orders was to divide the net value of the parties’ property 52.5 per cent to the wife and 47.5 per cent to the husband. His Honour found that the total assets of the parties were worth $1,937,062, and that the liabilities of the parties were $248,507 (at [117]), resulting in a net property pool of $1,688,555, including the parties’ superannuation interests.
In his Reasons for Judgment, his Honour found that the husband had made a greater financial contribution, the parties had made equal homemaker contributions, and that both parties had made post-separation contributions. His Honour determined that the contributions should be assessed 55 per cent - 45 per cent in the husband’s favour; and that there should be an adjustment in favour of wife of 7.5 per cent pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). This resulted in a final distribution of 52.5 per cent - 47.5 per cent in favour of the wife.
The trial Judge’s Orders inter alia provided that both the husband and the wife received a property each, and that the parties were to cause the sale of two parcels of land (the Seahampton properties). From the sale of the Seahampton properties, the parties were to pay real estate agents’ commission, legal costs associated with sale, stamp duty, sums to cover capital gains taxes. From the net proceeds the sum of $158,379 was payable to the husband, with the remainder being payable to the wife.
The Grounds of Appeal
The amended Notice of Appeal filed by the wife on 16 June 2005 contained sixteen specific grounds of appeal at Attachment A, pages 4-6. At hearing, only ten grounds were pursued as identified in the wife’s Summary of Argument.
The grounds of appeal which were agitated before us in summary asserted his Honour:
1.(a) erred in adding-back into the property pool $14,100 in possession of the wife at the time of separation as it was spent upon the wife’s reasonable living expenses.
(b) erred by allocating to the husband a specific sum from the sale of the Seahampton properties, and that the learned trial Judge should have included in his orders an order specifying payment of all costs of sale. It was also asserted his Honour erred in calculating the husband’s entitlements in failing to have regard to the sum of $14,550 representing the furniture retained by the husband.
2.(a) incorrectly assessed the contribution based entitlements at 55 per cent - 45 per cent in favour of the husband.
(b) erred by omitting to take into account a financial contribution by the wife of $84,981.
3.Failed to give any or sufficient weight to the wife’s contributions - including direct and indirect financial contributions and homemaker contributions;
4.Erred in placing excessive weight upon the contributions of the husband – including his findings as to the care and support of one of the wife’s children, and an interest-free loan advanced to the parties by the husband’s father;
5.Failed to properly weigh all relevant matters bearing upon the exercise of discretion under s 75(2);
6.Erred in making an adjustment of 7.5 per cent to the wife under s 75(2) of the Act such adjustment being “manifestly inadequate”;
7.Erred in finding that the wife’s gambling constituted “waste” and/or taking into account gambling losses under s 75(2);
8.Failed to adequately consider whether the husband had the capacity to pay spousal maintenance and or whether the wife had the capacity to support herself adequately and/or to have regard to relevant matters under s 75(2);
9.Failed to give adequate reasons and/or consider whether the orders were just and equitable;
10.Erred in taking into account in a general way that the husband had contributed towards the increase in the value of his superannuation from the date of separation.
We discern the most significant grounds are those articulated in our summary of grounds 1(a) and (b).
The wife sought, as set out in her counsel’s written submissions, the following orders in lieu of those made by the trial Judge:
1.An order that the Appeal be allowed.
2.An order that the Respondent pay to the Appellant in addition to that which she is to receive pursuant to his Honour’s Orders, such further sum by way of adjustment as is required to provide that the Appellant receive 60% of the total net assets of the parties as determined by this Court.
3.An order that the Orders made by his Honour Justice Le Poer Trench on 18 May 2005 be vacated and the matter be remitted to his Honour for determination of any application of the Appellant and or the Respondent in relation to the costs of and incidental to the hearing before His Honour (under Appeal).
In the alternative to Order 3 hereof
4.An order that each of the Appellant and Respondent file and serve all affidavits and other materials in relation to the issue of costs of and incidental to the hearing before his Honour (under Appeal) in the Appeals Registry of the Family Court of Australia within 21 days hereof to be heard on a date to be fixed by the Registrar.
5.An order that the Appellant be granted a Certificate pursuant to Section 7 of The Federal Proceedings Costs Act 1981.
6.An order that the Respondent pay the Appellant’s costs of and incidental to this Appeal.
The husband resisted the appeal and sought an order that the appeal be dismissed with the wife to pay the husband’s costs.
Background
For present purposes the factual background of this appeal can be stated briefly. The trial Judge comprehensively set out the history of the parties in his judgment and the main facts are not in dispute.
The husband was born in 1958 and the wife in 1946 in England. The parties commenced cohabitation in 1982, and married in 1984. The wife had two adult children of a previous marriage (aged 35 and 26 at the date of the trial), however the parties did not have any children together. The parties separated in November 2000. During their lives together, “as a result of hard work and being the recipients of damages payments, workers compensation settlements, redundancies and superannuation payouts”, the parties were able to amass a substantial number of assets (at [1]).
In 1982 the wife and her former husband separated, and shortly after that time the parties commenced cohabitation in a rental property. At the commencement of cohabitation, the wife had her interest in her superannuation and some jewellery (which was stolen shortly thereafter). The husband had very few assets. The wife also had a debt - the exact amount was the subject of a dispute between the parties.
In early 1984 (at about the time that the parties married), the wife’s daughter, then aged about 15, commenced living with the parties, and she continued to reside with the parties until December 1986. The wife asserted that at that time the daughter had a part-time job which had enabled her to pay board. No support was received from the child’s father during this period.
In 1976 the wife commenced employment with Telstra and joined the Commonwealth Superannuation Scheme (CSS). At the commencement of the relationship both parties were employed by Telstra, and the husband earned slightly more than the wife. In 1986 the wife completed ten years service with Telstra and received approximately $7,000 long service leave pay.
In late 1987 the wife was injured in a motor vehicle accident. The wife took 18 months off work due to her injuries. During this period, she received a payment of $375 per week, and for a six month period, home care assistance.
In April 1988 the parties jointly purchased the family home at Lansvale. The husband’s father lent the parties about $52,000 which the parties applied to the purchase price with the balance being made up of savings of $30,000 and a bank loan.
In about November 1988 the wife suffered an episode of severe depression and was hospitalised. The wife suffered a number of similar episodes between December 1988 and January 1999.
In mid-1989 the wife returned to work with Telstra. She commenced working four hours a day for a three month period and then returned to full-time employment.
In 1990, the wife received a compensation payout for the motor vehicle accident in 1987 of $23,970. This money was applied to joint living expenses and acquisition of furniture. In the same year, the wife was promoted to a senior accounts payable clerk at Telstra earning $670 per week.
During 1992 and 1993, the wife’s health further deteriorated and she underwent several operations in 1993.
In January 1996, the parties purchased a caravan.
In the middle of 1996, the wife was hospitalised for two weeks, and in October 1996 the wife fell from a chair at work. As a result of the injuries sustained in the fall the wife was off work for two months, and commenced proceedings for worker’s compensation. She returned to work in December 1996 but left after a few weeks. The wife did not work thereafter.
After leaving work, the wife received worker’s compensation payments and sick pay until June 1997. In early 1997 the wife consulted a psychiatrist, Dr Green. She also consulted a neurologist in relation to ongoing pain.
The parties separated under one roof for most of the period from the end of 1997 until early 1999. During this time, the wife received Centrelink payments of $326 per fortnight. The wife contended that, despite the separation, she continued to perform housekeeping roles, to the extent that she was not restricted by her injuries. The wife further asserted that she used her pension to buy groceries, and pay house-related bills. In mid-1997 the wife had further surgery on her wrist.
In October 1997, the wife purchased 2,000 Telstra shares, using an interest-free loan from Telstra of $6,600. The wife used the dividends from these shares to reduce the loan.
In September 1998 the wife settled her worker’s compensation claim with Telstra, receiving an amount of approximately $42,000. The wife also received a redundancy payout of $77,313.14. After leaving employment, the wife made an application to Comsuper to enable her to access her superannuation entitlements. From February 1999 onwards, the wife received her superannuation pension of $246 per week, which had increased to $254.50 at the date of the hearing.
In about early 1999, the wife started socialising with friends at clubs, at which she played poker machines. She ceased gambling shortly prior to the hearing. The quantum of the wife’s gambling losses was subject of dispute. Under cross-examination, it was put to the wife that she had lost approximately $37,000. The wife denied this, and stated that she believed that the figure was about $7,000.
In May 1999, the wife received approximately $84,982 by way of lump-sum superannuation payment.
The moneys received by the wife by way of workers’ compensation, redundancy and superannuation were spent on discharging the wife’s loan a purchase of a motor vehicle, the acquisition of the property at Hawks Nest, the purchase of furniture and other household items, gifts and living expenses. Approximately $12,000 was used for the purchase of jewellery and cosmetic surgery.
In March 1999, the parties purchased a set of taxi plates for $285,000. The purchase price was funded from savings and a mortgage over the family home. The taxi was run as a partnership between the parties with income derived from lease payments. This income was deposited into a cheque account.
In December 1999, the parties bought a property at Hawks Nest for $136,000. The parties borrowed $60,000 to purchase the property with the balance of the funds provided by the parties. The property was rented and the income applied towards expenses.
In November 1999 the wife underwent surgery to her right knee. She underwent further surgery in December 2000.
In July 2000 the husband was issued NRMA shares.
In about March 2001 the parties separated for a short period of time and the wife left the family home. At that time, the wife engaged solicitors to act on her behalf, and paid them $4,000. To meet these expenses, the wife sold her Telstra shares for $16,137. Of this sum, $12,000 was subsequently used to renovate the family home.
In late 2001 the wife used about $60,000 of her own funds to purchase a new car - a Toyota Land Cruiser. The vehicle was registered in the husband’s name as the wife did not hold a driver’s licence.
In December 2001, the wife fell at a shopping centre, suffering injury. She subsequently commenced an action seeking damages.
In March 2002, the wife underwent surgery for an injury to her knee.
In July 2002 the husband accepted a redundancy from Telstra of $123,347. Following the redundancy payment the husband secured employment at a local Council in Sydney.
In August 2002 the parties purchased the Seahampton properties for $160,000. Of the purchase price, $95,000 came from the husband’s redundancy and the balance was borrowed. At about this time the parties also purchased a small dinghy.
In November 2002, the parties separated. An interim apprehended violence order was obtained by the wife against the husband, and the husband pleaded guilty to a charge of common assault. The husband vacated the family home in December 2002 and moved to his sister’s residence.
At separation the husband retained the vehicle. The wife asserted that the husband had $15,000 in cash in the house which was denied by the husband.
At the date of separation the wife had $14,247 in her retirement account. Following separation, the wife resided with a friend. The wife continued to pay electricity, water, telephone and mowing accounts in respect of the family home. The husband also made some payments in respect of the telephone account.
The wife asserted that by April 2003 she had spent all of her savings. In March 2003, she commenced proceedings in the Court.
On 9 May 2003 an Order was made by a Registrar for the husband to pay spousal maintenance of $50 per week.
In May 2003, the wife borrowed $4,000 from a friend which she applied to living expenses. In August 2003, the wife borrowed $4,000 from another friend, which she also applied to living expenses. In that month the wife also obtained an extension to the credit limit on her credit card from $4,000 to $6,000. In October 2003, the wife borrowed $7,000 from a third friend, with the moneys again used on living expenses.
In August 2003, the husband paid the wife’s tax liability of $6,877 with borrowed funds.
In October 2003 the wife was admitted to a clinic for counselling and other therapy, and was later admitted to a hospital. The wife was released in mid-November 2003, but was re-admitted in late November 2003 until early December 2003.
In December 2003 the wife received $24,004 as compensation for her fall in the shopping centre. These funds the wife used to repay part of her debts, meet her living expenses and install a security system in the family home. In January 2004 the wife resumed occupation of the family home.
The wife’s income at the time of the hearing consisted of her superannuation pension and spousal maintenance paid by the husband.
The husband left his employment with the Local Council in April 2004 and obtained employment as a bus driver, earning on average $1,067 through working six days a week and overtime shifts at the date of trial. The husband was then making the repayments on the taxi plate of $1,229 per month and received $270 a week by way of income from the taxi.
Factual matters for Determination by the Trial Judge (‘MFD’)
Counsel for the parties assisted the trial Judge at the commencement of the hearing by providing an agreed list of contested facts for determination by the trial Judge. Relevantly, these included (at [125(1)]):
1.The identity, existence and value of particular assets and/or liabilities (ie the pool);
2.….
3.Wife RSA dissipation since separation (H); (add back?)
4.CGT, vendors exit tax and expenses of sale(s);
5.….
6.Should there be a further adjustment in favour of the husband or the wife under section 75(2) to take into account the particular nature of the parties respective superannuation entitlements and the valuation of the same included in the balance sheet;
7.Initial contributions including;
8.…
9.What contribution, if any, did the husband make towards the care and support of the wife’s children?
10.Concession - it was agreed by the parties that the husbands’ father advanced $52 000 towards the purchase of the former matrimonial home interest free.
11.…
12.Other contribution issues;
13.Concession - The husband does not allege the wife malingered during the cohabitation.
14.Has the wife wasted funds in gambling between 1999 and the date of hearing?
15.…
16.Did the husband have any assets at separation he has not disclosed?
17.What is the wife’s future capacity for gainful employment?
18.Is the evidence of Ms Johnstone about the wife’s statements made to her and the wife’s attendance at clubs and gambling to be accepted by the Court?
19.Having determined the percentage division of the parties’ assets between them how should the division be achieved?
The Judgment of the Trial Judge
Having identified the issues in dispute between the parties, and recorded the relevant background history, the trial Judge set out the parties’ assets and liabilities, adjusted in accordance with his findings. As that balance sheet (produced below) reveals, and as noted by the trial Judge the parties had diverse assets and liabilities.
Item Joint Assets 236 Mitta Cres, Lansvale (“Mitta Cres”) 1 420,000.00 Lot 8 Balmoral Drive, Seahampton - 5 acres (“Lot 8”) 2 170,000.00 Lot 9 Balmoral Drive, Seahampton - 5.1 acres (“Lot 9”) 3 165,000.00 57 Madjura Cl, Hawks Nest (“Hawks Nest”) 4 267,500.00 Taxi Plate 5 234,222.00 TOTAL 6 1,256,722.00 Liabilities 7 Mortgage Mitta Cres re Taxi Plate 8 131,871.00 Mortgage Hawks Nest to CBA 9 38,658.00 Wife’s CGT Lot 8 10 5,699.00 Husbands CGT Lot 8 6,515.00 NSW State Stamp Duties Tax On Sale Lot 8 11 3,825.00 Wife’s CGT Lot 9 12 5,324.00 Husbands CTG Lot 9 5,997.00 NSW State Stamp Duties Tax On Sale Lot 9 13 3,712.00 CGT Hawks Nest 14 8,288.00 NSW State Stamp Duties Tax On Sale Hawks Nest 15 6,018.00 Total Sale Costs 16 ___________ TOTAL 17 215,907.00 Husband 18 Assets 19 Paid Legals 20 26,361 Husb Termination Payment Local Council 21 Cash retained by the Husb at separation 22 Write back Hawks Nest rental/Taxi Plate Income 23 - Local Govt Superannuation Scheme 24 239,810.31 Telstra Shares 25 NRMA Shares 1,223 [W103] Now IAG 26 6,384.00 Landcruiser 2001 GF984 27 56,000.00 Yamaha Trial Bike 28 4,000.00 Caravan [Registered to Husb] 29 14,000.00 Collapsible trailer/Rhino Roof Rack & Winch 30 - Tools and Personal Effects 31 1,500.00 32 WRX Model Car 33 TOTAL 34 348,055.31 Liabilities 35 Loan to Mr Phillip 36 8,600.00 TOTAL 37 8,600.00 Wife: 38 Assets 39 Paid Legals [Thornton’s] Estimate Only 40 2,821.00 CSS Retirement Pension 41 245,399.00 Wife’s savings at separation 42 14,100.00 Wife’s Jewellery 43 3,265.00 Contents Mitta Cres 44 29,100.00 Dinghy 45 1,600.00 Haines Signature Boat 46 28,500.00 Royal Albert Dinner Set 47 7,500.00 TOTAL 48 332,285.00 49 Liabilities 50 Loan from Mr Johnstone 51 5,000.00 Loan from Mr Todd 52 - Loan from Mr Ibrihim 53 10,000.00 Mastercard 54 9,000.00 55 ____________ TOTAL 56 24,000.00 TOTAL ASSETS 57 1,937,062.31 TOTAL LIABILITIES 58 248,507.00 NET ASSETS 1,688,555.31
In relation to the issue of the wife’s savings at separation (MFD1(b)), his Honour found that this money ($14,000) should be added back pursuant to the decision in Chorn v Hopkins,[1] to which he referred. His Honour interpreted Chorn as providing that the source of the funds was the relevant consideration when determining an “add-back”. As such, the trial Judge determined that such “add-back” was appropriate because the source of the funds was the marriage itself (at [103]).
[1] (2004) FLC ¶93-204
Whilst his Honour found the parties had failed to provide evidence of the anticipated costs of sale of the Seahampton and Hawks Nest properties (paragraph 116) he noted there was little issue between the parties about likely capital gains tax and vendor duty tax:
In relation to the Seahampton properties it is agreed that they are sold and it is agreed that capital gains tax is payable by each party upon the sale. Both parties submitted that it would be inappropriate to order a transfer of the properties to the wife and then order a sale with the stated purpose of reducing the amount of capital gains tax which would be payable if the parties effected a sale under the current ownership. I agree with these submissions... The parties have also agreed that New South Wales vendor stamp duty will be payable on the sale and they have agreed on the amount. That sum will be included in the balance sheet. (at [125(1)(r)])
His Honour made similar findings with respect to the Hawks Nest property (at [126]).
In relation to superannuation, the trial Judge determined that no further adjustment should be made either under s 75(2) or the “just and equitable” provision of s 79(2) as a result of the nature of the parties’ superannuation interests (MFD2). His Honour stated,
If there be any discretion reposing in me to deal with the superannuation of the parties in a way which excludes the wife’s superannuation from the balance sheet or to make an adjustment as sought by the wife, then I would decline to exercise that discretion in this case. It seems to me on the evidence that the parties are very much in the same circumstances in the sense that each can say that their superannuation asset is illusory. That neither can access the capital at this time. On the wife’s part it seems she never can access the capital and on the husband’s part it seems he may be able to access part of his capital at a later time however that time is unlikely to occur for about 20 years. (at [131])
The trial Judge made a series of findings relevant to the parties’ contributions. In considering the issue of the husband’s care for the wife’s daughter (MFD3(a)), the trial Judge noted that “…there was no direct cross-examination of either party about the extent of the husbands’ contribution to the care or support of the wife’s children” (at [135]). He then noted,
In the circumstances of this case I am unable to make any clear finding about the support the husband may have provided for Gada during her time living with the parties. On the balance of probabilities however, I think it is likely that the parties did contribute, in some small way financially, to the support of Gada. (at [138])
In relation to the issue of waste (MFD4(b)), the trial Judge discussed the “guidelines” laid down by a decision of Baker J in Kowaliw v Kowaliw (at [140]-[141]),[2] and decided that the “waste” of $20,000 by the wife through gambling was a relevant factor to be taken into account under s 75(2) (at [153]). In doing so, the trial Judge accepted the evidence of Ms Johnstone (MFD7) (at [153] and [162]).
[2] (1981) FLC ¶91-092
The trial Judge determined that the contributions were 55 per cent - 45 per cent in favour of the husband (at [196]). His Honour then went on to consider factors relevant to s 75(2). He took into account the wife’s age, the fact that she kept her damages payout of $24,004, the gambling “waste” of $20,000, the reality that the wife would probably have to sell the Hawks Nest property thereby incurring sale expenses which were not included in the balance sheet, the wife’s use of the family home since separation, and the parties’ health. The trial Judge noted that “[c]learly these matters require a substantial adjustment in favour of the wife” (at [197]-[204]). He then made an adjustment of 7.5 per cent to the wife on the basis of these factors (at [206]). This resulted in a distribution of 52.5 per cent - 47.5 per cent in favour of the wife (in monetary terms this was $886,491 to the wife and $802,063 to the husband) (at [205]).
The trial Judge did not make any adverse credit findings about either of the parties (at [118]-[119]).
Appellate Principles
At this stage, it is important to identify the principles governing an appeal, particularly one against a discretionary judgment.
The law with respect to appellate principles is clear. In Australian Coal and Shale Employees Federation v The Commonwealth,[3] Kitto J, at page 627 described the restraint that an appellate court should take in respect of discretionary judgments as follows:
There is a strong presumption in favour of the correctness of the decision appealed from and that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.
[3] (1953) 94 CLR 621
In Gronow v Gronow,[4] Stephen J stated at page 519,
The constant emphasis of the cases is that before a reversal an appellant court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
[4] (1979) 144 CLR 513
The statement of principle from House v The King[5] is supported by the decision of Kirby J in AMS v AIF,[6] who commented at page 211 that:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
[5] (1936) 55 CLR 499
[6] (1999) 199 CLR 160
Earlier in the decision of CDJ v VAJ[7] Kirby J had also stated at pages 230-231:
[7] (1998) 197 CLR 172
Discretionary and evaluative decisions
186. A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they 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 difficult 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. This is an inescapable feature of the nature of this jurisdiction.’
10.A final consideration is pertinent, both to the approach that is proper to the Full Court reviewing the primary judge and to this Court reviewing a decision of the Full Court involving the evaluation of competing considerations and the exercise of a judicial discretion. Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, whilst they must be adequate for the purposes of the exercise of any right to appeal (192) cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision (193).
As the first step in the appellate process it is necessary to establish whether there is any recognised ground for reviewing the discretionary judgment of the trial Judge. If there is such a ground then, unless the result is plainly right notwithstanding an appealable error, per Gibbs J in De Winter v De Winter,[8] the Court is obliged to allow the appeal, set the orders made aside, and if possible, substitute its own decision after considering the matter anew.
[8] (1979) FLC ¶90-605
In discretionary decisions, an appellate body is entitled to interfere where the effect of the orders exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, per Brennan J in Norbis v Norbis[9] at page 75-178.
[9] (1986) FLC ¶91-712
As some of the wife’s grounds of appeal attack the adequacy of the reasons provided by his Honour, the Full Court’s decision in Bennett v Bennett[10] is relevant. In this case, the Full Court reviewed authorities on the subject, particularly those of the New South Wales Court of Appeal, including Pettitt v Dunkley,[11] Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor[12] and Soulemezis v Dudley (Holdings) Pty Ltd.[13] In the latter case, McHugh JA (as he was then) at page 279 discussed the fact that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for the provision of reasons served at least three purposes: to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge’s decision; to further judicial accountability; and to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
[10] (1991) FLC ¶92-191
[11] [1971] 1 NSWLR 376
[12] [1983] 3 NSWLR 378
[13] (1987) 10 NSWLR 247
Some of the wife’s appeal grounds (in effect) seek that matters not raised at hearing should be subject to re-determination either through a re-hearing, or by the Full Court re-exercising the trial Judge’s discretion. In relation to this matter it is important to note the line of authority about the subjective nature of appeals.
In Suttor v Gundowna Pty Ltd[14] the High Court said at page 438:
The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.
[14] (1950) 81 CLR 418
In Metwally v University of Wollongong (No 2)[15] the High Court said at page 71:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
[15] (1985) 60 ALR 68
In Coulton v Holcombe[16] Gibbs CJ, Wilson, Brennan and Dawson JJ said at page 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
[16] (1986) 162 CLR 1
In Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd,[17] Mason CJ and Gaudron J said at page 284:
Some aspects of that rule appear to derive from public policy considerations directed to ensuring the finality of litigation. On the other hand, some aspects of the rule may have their genesis in estoppel by election in the conduct of litigation, although, if so, the relevant consideration is not that the other party is put in a worse position but that he or she may have been so placed. See, for example, Moustakas, where the refusal to allow the appellant to raise a new case was rested on `the possibility that the [other party] may, if it had been raised below, have wished to call evidence in response to it'. So far as the rule may derive from public policy, the relevant consideration is that the case sought to be made on appeal is a new or different case from that which emerged at the trial. See Browne v Dunn, cited with approval in Rowe v Australian United Steam Navigation Co Ltd; Moustakas. (footnotes omitted)
Grounds of Appeal
[17] (1990) 169 CLR 279
Ground 1 contained a number of complaints with respect to “pool of property for division”. Three of the four grounds therein contained were pressed on the hearing of the appeal, although no submissions were made with respect to the fourth part of Ground 1, which is not in reality a challenge with respect to the “pool” in any event.
Ground 1(a) provided :
1.That his Honour erred in law in assessing the pool of property for division in that:
(a) His Honour ‘wrote back’ into the pool the sum of $14,100.00 in savings in the possession of the Appellant at the date of separation.
In support of this challenge the Court was referred to a number of earlier decisions, including Townsend v Townsend,[18] M v M[19] and Chorn v Hopkins (supra). Beyond referring to those authorities, it was submitted that the Trial Judge erred in that he
[18] (1995) FLC ¶92-569
[19] [1998] FamCA 42
…failed to take into account that the Appellant’s evidence was that she spent this $14,100.00 and had spent it within four or five months following separation and prior to bringing application [sic] for interim spousal maintenance (pages 2-3 of Appellant’s Summary of Argument).
The trial Judge’s finding that the wife
…has had a relatively small income since the date of separation. Since her occupation of the former matrimonial home in May 2003, she has met expenses associated with her occupation. She has also supported herself (at [106])
was relied upon in this context.
On behalf of the husband it was submitted that the trial Judge had not erred in the exercise of his discretion, as the exercise of that discretion has been explained in the authorities referred to by Counsel for the wife, particularly Chorn v Hopkins (supra). It was further submitted for the husband, consistent with the Full Court’s decision in C v C,[20] that the decision as to whether or not to add-back moneys disposed of after separation is an exercise of discretion for the trial Judge which the Full Court should not seek to fetter.
[20] [1998] FamCA 143, unreported, delivered 8 October 2006
In particular it was submitted that the trial Judge had been
…mindful of the relevance of the living expenses of the Appellant post-separation when he had regard of the inclusion into the balance sheet of the Appellant’s MasterCard debt of $9,000.00… and other post-separation debts of the Appellant totally $15,000.00. (page 2, Respondent’s Summary of Argument)
It was thus submitted that the “…debts totalling $24,000.00 incurred by the Appellant” had already been added-back by the trial Judge, and averaged throughout the relevant period to about $230 per week. Together with spousal maintenance of $50, and a pension payment of $254, the wife had thus already received $304 per week. It was submitted that if the further sum of $14,100 were added back, this would have provided the wife with $366 per week for the relevant period, together with her pension and spousal maintenance of $304 per week. This would have provided a total weekly income of $670 per week, which was submitted to have “well exceeded” what could be described as reasonable in the light of the fact that the wife herself had asserted were her “reasonable necessary living expenses” in support of her claim for “an order for $300 per week” by way of spousal maintenance (page 2, Respondent’s Summary of Argument).
The issue was considered by the trial Judge. Having referred to what both Counsel submit as being the most recent relevant authority, Chorn (supra), the trial Judge examined the issue of the sum of $14,100 which the wife had at the date of separation and accepted the submission on behalf of husband that such sum should be “…added as an asset on the balance sheet” (at [103]).
His Honour then, importantly for present purposes, declined, for reasons which he gave, to add-back a sum of $24,004.45 received by the wife in December 2003 as an asset to the balance sheet (at [104]). Those funds had been received by the wife following a “…successful damages claim instituted by the wife consequent upon injury as a result of a fall in a shopping centre” in late 2001. His Honour gave reasons for so concluding with respect to that sum, the most significant of which was his conclusion that there was “…no identifiable connection between the payment received by the wife and any contribution claimed by the husband or the wife to the asset” (at [105]).
Reference was then made to the husband’s assertion that the wife’s MasterCard debt should be reduced from $9,000 to $1,000 as “…the evidence discloses the wife had a credit card debt of $1,000 at the date of separation and the balance of the debt has been incurred since that time” (at [106]). For reasons which his Honour gave, the husband’s assertion in that regard was not accepted by the trial Judge
106. The husband argues that item 54 on the Balance Sheet, being the wife's liability to MasterCard in the sum of $9,000 should be reduced to $1,000. The reason the heirs [sic] are that the evidence discloses the wife had a credit card debt of $1,000 at the date of separation and the balance of the debt has been incurred since that time. The balance would have been greater but for a payment of $6,200 in reduction of the credit card debt in December 2003 when the wife received her damages award payment. It is submitted that the wife conceded she had cash advances of $3,190 drawn against her credit card. It is submitted that the wife made no direct or indirect contribution for the benefit of the husband post separation. The husband said all of the expenses on the credit card are personal to the wife. I am unable to accept this submission. The wife has had a relatively small income since the date of separation. Since her occupation of the former matrimonial home in May 2003 she has met expenses associated with her occupation. She has also had to support herself. True it is, on her own admission, she has gambled some of her moneys. I will deal with the issue of "waste" later in these reasons. I do not see that it is appropriate to ignore the wife's liability to MasterCard (at [106]).
Thus, as submitted on behalf of the husband, $9,000 in credit card debt of which the wife had had only $1,000 at the date of separation, was included on the balance sheet, whilst a fund received before separation worth $24,000 was not included, and an additional $15,000 of post separation debt was included.
It is not suggested that the exercise of the trial Judge’s discretion in relation to this “add-back” was based upon any mistake of fact. The issue was, as the submissions of Counsel for both sides recognised, one involving the exercise of discretion. The reasons why the trial Judge exercised the discretion in the manner in which he did is not in doubt. His Honour may well have reached a different conclusion on the evidence before him but that is not the test as the authorities make clear.
As his Reasons for Judgment confirm, the trial Judge had to consider a number of competing factors relevant to the exercise of his discretion in relation to this issue. It has not been demonstrated that he failed to refer, accurately, to any such matter. It is also to be remembered that his Honour also carefully evaluated post-separation contributions in the course of his judgment. As his Reasons for Judgment confirm, the trial Judge gave the wife the “benefit of the doubt” with respect to some disputed expenditure. To the extent that he did so, these amounts are more than ample to offset the amount which is suggested to have wrongly been added back against her interests. Nothing to which we have been referred persuades us that the exercise of discretion by the trial Judge was not reasonably open to him. This challenge thus lacks merit.
Ground 1(c)
Ground 1(c) provided:
1. That his Honour erred in law in assessing the pool of property for division in that:
(c) His Honour failed to include a liability to legal costs and agents commission which might reasonably be expected to be paid in relation to the sale of the Hawks Nest and Seahampton properties which in the circumstances of his Honour ordering the Appellant to pay a fixed sum from the proceeds of sale of the Seahampton properties to the Respondent, such legal costs and agents commission was borne by the Appellant.
In support of this ground, it was submitted that the trial Judge in making
…the Order 7… for the sale of the Seahampton properties, his Honour should not have ordered that the Respondent receive a fixed sum, namely $158,379.46… and should have included all costs associated with the sale (including land tax) as a liability - so that both parties equally bear such impost. (page 3, Appellant’s Summary of Argument)
In reliance upon a number of authorities, all of which were submitted to have been approved by the Full Court in the unreported case of S v S,[21] it was submitted that the trial Judge erred in not making a formulaic order, which would have obviated the difficulty of which this ground complains. Albeit not finding expression in the ground of appeal, it was further complained in the wife’s Summary of Argument in support of such ground, that the trial Judge had “…made an arithmetic error” with respect to the contents of one property, the effect of which was that the husband “received an ‘overpayment’ of $14,050.50” (in fact $14,550) (page 3, Appellant’s Summary of Argument).
[21] [2000] FamCA 262
On behalf of the husband it was submitted that the trial Judge’s orders provided the wife with a “…capital sum and the potential of two sources of income”, that it was “anticipated” that the wife “…may wish to sell the Hawks Nest property, however his Honour wanted to keep this as an option for the appellant” (page 3, Respondent’s Summary of Argument). It was thus submitted that the trial Judge had not erred, particularly as there was an absence of evidence concerning the sale costs of the Seahampton properties or the Hawks Nest property. As a result, “…it is difficult to know what his Honour could have done other than to take into account the likelihood of sale when he considered the factors under s 75(2)” (page 3, Respondent’s Summary of Argument).
It was further submitted on behalf of the husband that
…in circumstances where the value of the realty is agreed and the extent of the liabilities secured over the property is agreed, … it is open to His Honour to approach the matter in which he did, bearing in mind the paucity of evidence on this point. In circumstances where no attempt was made to lead the evidence, it is submitted that it is inappropriate now for the appellant to complain (Respondent’s Summary of Argument, page 3).
The trial Judge addressed the issue of sale expenses. Under the heading “Orders to be Made by the Court”, his Honour referred at some length to the implication of the division of the property of the parties which he had concluded to be just and equitable. His Honour noted that each party “…now seeks an order for the sale of the Seahampton properties” and that such order would be made (at [223]). He further observed that
[t]he sale expenses, as I have commented earlier, were not the subject of agreement between the parties. However as it transpires that the husband will receive about half of the net proceeds from that property and so some justice fortuitously appears in that each will accordingly contribute about half of the sale expenses from their respective shares of the proceeds.
His Honour then dealt with the family home of the parties noting that each party wished to retain that property (at [224]). For reasons which his Honour detailed, which do not appear to assume significance in this appeal, his Honour concluded that the husband should have the opportunity to acquire the property.
This challenge in Ground 1(c) does not involve any challenge to the trial Judge’s findings of fact. In reality, the submissions for the wife, consistent with the cases relied upon by her Counsel (page 3, Summary of Argument) was that the trial Judge’s orders had the potential to produce an inequitable and unjust outcome in that they precluded the wife from sharing in the proceeds of sale in any increased sale price of the properties at Seahampton in the event of those properties selling for more than the valuations agreed at trial on the one hand, yet, on the other, guaranteed the husband such sum in the event of the properties selling for less than the valuation upon which the case proceeded before his Honour. Prima facie, the complaint of the wife has substance. The submission on the wife’s behalf is not new, as a reading of the cases demonstrate, commencing with Waters v Waters[22] 25 years ago and subsequent decisions consistent with it confirm.[23]
[22] (1981) FLC ¶91-019
[23] See for example, In the marriage of Williams and Williams (1988) FLC ¶91-959, In the marriage of Abdo and Abdo (1989) FLC ¶92-013, In the marriage of Doctors Van Leeuwen and Doctors Van Leeuwen (1990) FLC ¶92-148, In the marriage of Smith and Smith (1991) FLC ¶92-261, Joshua (1997) FLC ¶92-767 and Noetel v Quealey (2005) FLC ¶93-230
At trial no specific submissions were made as to how the proceeds of any sale should be divided on behalf of the wife. There was some general discussion about the final amount which could be received from the sale of the Seahampton properties of about $150,000,[24] and then a mention of “[h]alf of Seahampton”,[25] but the trial Judge was not urged at any time to apply a formula, nor was any other method of dividing proceeds of sale advanced.
[24] Transcript of proceedings, 27 October 2004 at page 474, lns 20-21
[25] Transcript of proceedings, 27 October 2004 at page 476, ln 37
With the greatest of respect to his Honour, who received little assistance in relation to the issue, whose intention in making the order in the form in which he did was both clear and understandable, the weight of the authorities upon which the wife relies suggest that an order for sale and percentage division after payment out of all expenses payable upon or triggered by a sale of the property would have been the preferable order.[26] We are thus persuaded that this challenge has substance. The authorities to which we have earlier referred ought not in our view preclude the wife from succeeding with this challenge despite the manner in which her case was conducted at trial.
[26] Waters v Waters (1981) FLC ¶91-019 and cases following
To the extent that the wife complained,
[t]he order in relation to the Hawks Nest property should mirror that in relation to the Seahampton properties in all of the circumstances. Whilst the Appellant sought an order that the Respondent transfer all of his right title and interest in the Hawks Nest property to her, it is clearly an order sought along with the order that the Respondent transfer his right title and interest in the home to her. In circumstances where his Honour refused to make the other order sought by the Appellant that she retain the home, it was evident that the Appellant would have to sell the Hawks Nest property to purchase a home for herself. In making the order that he did, his Honour did not ‘safeguard’ the percentage distribution that he sought to bring into effect by his determination and orders (Appellant’s Summary of Argument, page 4)
we are not entirely sure of what this submission complains. If the complaint is that the trial Judge erred in awarding the husband the family home, which is not suggested by the grounds of appeal, we cannot accept that such is the case, an order in those terms clearly being within the scope of his Honour’s discretion. In the absence of clear evidence, and we have been referred to none, of a probable injustice to the wife by virtue of the order that the trial Judge made with respect to the family home, we cannot accept that his Honour’s orders were erroneous. Save to the extent that we have indicated, we thus find the challenges referred to in this paragraph not to have been made out.
Ground 2
Ground 2 provided
7.That his Honour erred in assessing the Appellant’s contribution at only 45% of the total net pool as determined by him
As noted earlier, after carefully considering the evidence before him, the trial Judge concluded that contributions favoured the husband by 55 per cent to 45 per cent on the part of the wife. In the pool of property, the 10 per cent differential thereby resulting represented the sum of $168,855.53. The submissions made in support of this ground do not assert that the trial Judge failed to have regard to any relevant fact or circumstance or had regard to irrelevant or extraneous facts or circumstances, proceeded upon a material mistake of fact, or otherwise arose other than by virtue of giving insufficient “weight” to facts and circumstances which were relevant to the exercise of his discretion. A number of submissions were made on behalf of the wife in support of this challenge.
On behalf of the husband, it was submitted, by reference to identified portions of his Honour’s reasons, that the trial Judge had not failed to have regard to any matter asserted on behalf of the wife or have been other than “mindful” of contributions asserted on the wife’s behalf, or have failed to take into account such contributions (Respondent’s Summary of Argument at page 4).
Throughout his lengthy and careful reasons, the trial Judge chronicled the not-uncomplicated contribution history of the parties. It is apparent from such exercise that the parties made contributions of capital sums at different times and of varying amounts as a result of various occurrences during the course of their time together and after their separation. Careful regard to decisions such as Pierce v Pierce[27] is there discernable. Assessing the comparative significance of those contributions was not in our view a simple or straightforward matter, and involved a broad exercise of discretion, which always has the potential to produce a range of divergent conclusions, all falling within the ambit of a reasonable exercise of discretion.
[27] (1999) FLC ¶92-844
As was stated by his Honour Brennan J in Norbis (supra), at pages 539 – 540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at p.345 Asquith LJ. stated the rationale of an appellate court’s approach:
“…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
It was clearly enunciated in House v The King (supra) at pages 504-505 that:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
No error of principle or material error of fact having been asserted, no irrelevant or extraneous circumstance having informed the trial Judge’s exercise of discretion and no material fact or circumstance having been omitted in that process, the wife’s challenge in Ground 2 to the trial Judge’s conclusion with respect to contributions is necessarily constrained to the “unreasonable or plainly unjust” challenge referred to in House v the King (supra).
The trial Judge referred in considerable detail to the various areas in which the parties contributed. We have earlier set out in some detail his Honour’s careful analysis of those matters. In some areas, his Honour expressed conclusions as to the relative significance of the parties’ contributions, whilst in other areas his conclusions were less clearly expressed. The cumulative effect of the respective contributions, it is clear, led his Honour to the conclusion herein complained of. Whilst it may be that if the members of this Court were hearing the matter at first instance the husband’s contribution entitlement may have been less. As the authorities make clear, that is not relevant for present purposes. It may be that the trial Judge’s conclusion with respect to contributions represented the “top of the range” from the husband’s perspective. It has not been established that the trial Judge’s conclusion must have resulted from excessive or insufficient weight having been afforded any relevant fact or circumstance. We are not persuaded however, by anything to which we have been referred on behalf of the wife that the trial Judge’s conclusion with respect to contributions was not reasonably open to him. This ground accordingly fails.
Grounds 3 and 4
Grounds 3 and 4 are in effect, merely subsets of the general challenge to the trial Judge’s conclusion with respect to contributions. They provide:
3. That his Honour erred in law in that he failed to give proper weight to the contributions of the Appellant and in the circumstances the order made in favour of the Appellant was such as to render their consideration manifestly inadequate.
4. That his Honour erred in law in that he placed excessive weight on the contributions by the Respondent, including but not limited to:
a.The repayments associated with the debt determined by his Honour to be owed by the Appellant at the date of commencement of cohabitation;
b.The contribution to the care and support of the Appellant’s children;
c.The $52,000.00 advanced by the Respondent’s father on an interest free basis but subsequently repaid by the Appellant and the Respondent;
d.The income of the Respondent
and in the circumstances the order made in favour of the Respondent was manifestly excessive.
None of the matters asserted above under this ground on behalf of the wife was not considered by the trial Judge. It is convenient to deal with these challenges together. As the submissions on behalf of the husband make clear, none of the matters referred to or relied upon on behalf of the wife failed to receive consideration by the trial Judge. The fact that his Honour may have attached more or less weight to some of those matters is not relevant for present purposes. Nothing to which we have been referred persuades us that the trial Judge failed to exercise his discretion judicially.
To the extent that the findings of fact of the trial Judge upon which the exercise of his discretion turned have not been challenged, the trial Judge’s preference for the evidence of the husband to that of the wife in relation to a number of matters, to which he referred in his judgment, and which are identified in the submissions of the husband (page 6, Respondent’s Summary of Argument) reinforce our conclusion that no error in the exercise of the discretion on the part of the trial Judge has been made out. As we have noted, the parties made contributions in a variety of ways, some of which are quantifiable with some precision, others of which are not capable of any significant quantification. Weighing the various contributions, and attaching to them the weight which was reasonable in the circumstances was the task which confronted his Honour. No significant fact or circumstance relevant for that purpose has been identified as having been omitted or overlooked. No irrelevant fact or circumstance has been identified as having intruded upon the exercise of judicial discretion. The weight liable to be given to the various facts and circumstances, both individually and cumulatively, on the facts of this case, always had the potential to produce a range of outcomes without such outcomes necessarily failing to constitute a reasonable exercise of discretion. Nothing to which we have been referred, cumulatively or individually, persuades us that the trial Judge’s discretion miscarried.
Grounds 5 and 6 (Grounds 8 and 13)
Grounds 5 and 6, which expressly incorporate Grounds 8 and 13 provide:
5. That his Honour failed to give any or adequate reasons for giving the Appellant 45% by way of contribution and or the Respondent 55% by way of contribution
6. That his Honour erred in making an adjustment under Section 75(2) of only 7.5% in favour of the Appellant in that he failed to give any or adequate weight to such factors, including but not limited to:
8. That his Honour erred in law in holding, in all of the circumstances, that the Appellant wasted not less than $20,000.00 on gambling since separation and or in taking it into account under Section 75(2).
13.That his Honour erred in law in failing to make any adjustment in favour of the Appellant under Section 75(2) or the “just and equitable” requirement of Section 79 in that his Honour, inter alia:
a.Found that the Appellant would [sic] have assets of $886,491.54 which sum included the assessed value of the appellant’s superannuation entitlements albeit finding that it was commuted to a pension and would never be received as a lump sum in whole or in part;
b.Failed to take into account the particular nature of the Appellant’s superannuation entitlements and or the particular nature of the superannuation entitlements of the parties generally;
c.In ordering the Appellant to vacate the matrimonial home in favour of the Respondent failed to take into account additional expenses and costs that would be faced by the Applicant in re-housing herself.
These grounds essentially challenge the trial Judge’s findings and/or determinations pursuant to s 75(2) (page 6, Appellant’s Summary of Argument). For the reasons which the trial Judge gave, an adjustment of 7.5 per cent was provided to the wife after an examination of factors under s 75(2). That is a differential of 15 per cent, which translated in monetary terms as a disparity in the shares of the parties of about $253,282.50. The effect of such adjustment was that the wife received 52.5 per cent of the assets of the parties and the husband the remaining 47.5 per cent. As with other challenges to the trial Judge’s conclusions, these grounds do not assert that the exercise of the trial Judge’s discretion was based upon a material mistake of fact. Nor do these grounds contend that the trial Judge failed to have regard to any relevant fact or circumstance or that he had regard to irrelevant or extraneous facts or circumstances. No error of principle is asserted to have been made by the trial Judge.
In support of the challenges it was submitted that the trial Judge
…failed to properly weigh all of the relevant matters bearing upon the discretion, and or, if he did consider same, he weighed them only in a token manner in relation to the Appellant (Summary of Argument, page 6).
Reference was then made by the Counsel for the wife as to the disparity in the ages of the parties, the husband being 46, the wife being 58. Reliance was also placed upon the evidence with respect to the health of the parties and “…their respective abilities to earn income into the future”, it being submitted on behalf of the wife that such matters “…required a substantial adjustment in favour of the wife” and that “…the adjustment that his Honour made could not reasonably be described as substantial.” There was then set out in some detail extracts of the medical evidence before the trial Judge.
It does not seem to be suggested that the trial Judge was unaware of such evidence, nor was it submitted on behalf of the wife that the trial Judge’s conclusions were inconsistent with such evidence. Indeed, it seems to have been acknowledged that the trial Judge correctly concluded that the “it was most unlikely” that the wife would return to the workforce in the future by reason of her ill health (at [161]). It was submitted that this factor was dealt with “…in only a token manner in the overall award under s.75(2) of 7.5%” (page 7, Appellant’s Summary of Argument). Albeit one might think that in so doing was only a re-stating of earlier complaints, it was further submitted that the husband had a greater capacity to obtain employment in the future (page 8, Appellant’s Summary of Argument), despite the clear finding by the trial Judge that “I think therefore that the husband has a good working life ahead of him. He has always worked hard and I cannot see any reason that he would change.” (at [154]).
In addition, it was submitted that the trial Judge
…was in error in ‘equating’ the superannuation of the Appellant to that of the Respondent. It is submitted they were of substantially different character and in treating them in the manner in which he did, lead to his Honour adjusting only 7.5% under s.75(2) in favour of the Appellant (page 8, Appellant’s Summary of Argument).
Further it was asserted that the trial Judge failed to assess the reasonable needs of the wife “…particularly in the circumstances of depriving her, by his Orders, of the home” (page 8, Appellant’s Summary of Argument). A complaint was also made that the wife’s contributions “…to the income, earning capacity, property and financial resources of the Respondent”, and the fact that the duration of the cohabitation (some twenty years) had, “…affected the earning capacity of the wife” was inadequately recognised and addressed by the trial Judge.
On behalf of the husband it was submitted that the trial Judge dealt with each of the matters raised and made findings which were open to him on the evidence and drawn conclusions which were supported by his findings of fact. It was ultimately submitted that the trial Judge’s conclusion with respect to s 75(2) thus fell within the ambit of a reasonable exercise of his discretion (page 8, Respondent’s Summary of Argument).
A number of submissions on behalf of the husband (page 8, Respondent’s Summary of Argument) addressed the complaint “…made by the Appellant concerning his Honour’s treatment of superannuation”. Reliance was placed upon the fact that the wife’s retirement pension was valued at $245,399 while the husband’s interest in his superannuation scheme was valued at $239,810 (at [185]). It was also submitted that the trial Judge had not erred in determining to examine the superannuation question by way of “global approach” (at [131] and following). Notwithstanding this case was decided prior to the decision of the Full Court in Coghlan,[28] nothing to which we have been referred persuades us that the trial Judge erred in adopting a global approach to the valuation of contributions, or that any aspect of his Honour’s approach led him to err in the exercise of his discretion with respect to the superannuation interests of the parties. As was submitted on behalf of the husband, the trial Judge identified the “…three fundamental issues that are relevant on the facts of the present case” (page 8, Respondent’s Summary of Argument), they being: that the wife’s superannuation benefit is a pension; the age of the husband and the fact that he is unlikely to be able to gain access to any capital from his superannuation for approximately twenty years; and that the superannuation entitlements of both of the parties have the same approximate value. It was thus submitted that, albeit with hindsight having regard to when Coghlan (supra) was decided, the trial Judge’s approach to superannuation was open to him. With this contention, we agree. As was submitted on behalf of the husband, at trial the value of the superannuation interests of the parties was agreed. As was also submitted on behalf of the husband, there was
…no further evidence called on behalf of the Appellant to vary or challenge any aspect of the valuation in circumstances where one superannuation entitlement was to a pension and the other superannuation entitlement was to a lump sum. For the Appellant to properly argue that special weight or consideration attaches to the superannuation, evidence is required to detail the relevant issues. No such evidence was called. (page 9, Respondent’s Summary of Argument)
[28] (2005) FLC ¶93-220
The trial Judge identified (at [127] and following) the nature of the superannuation interests of each of the parties. His Honour was mindful of the differences between the superannuation interests of the parties, and it is not suggested that his Honour erred in fact in any relevant sense in that regard. His Honour considered the implications for each party of their ages, with respect to their superannuation interests (at [128]) and concluded (at [129]) “[i]n the circumstances, it appears that both of the parties are very much in the same position”.
Read in context, what the trial Judge concluded was that in the case of the wife, her superannuation interest was being received by way of pension payments and would not increase, whereas in the case of the husband the superannuation interest was likely to increase but was unlikely to be receivable for potentially for almost two decades. Nothing to which we have been referred persuades us that his Honour’s conclusion that “…it appears” that “…both parties were very much in the same position” was not open to him. Lest there be any doubt as to how his Honour concluded as he did, he also recorded
[o]n the wife’s part it seems she can never access the capital and on the husbands [sic] part it seems he may be able to access part of his capital at a later time however that is unlikely to occur for about 20 years (at [131]).
While nothing turns on it, his Honour, somewhat prophetically one might think having regard to the subsequent decision in Coghlan (supra), directed his mind to the outcome had he adopted an “asset-by-asset” approach as that term became understood after the High Court of Australia in Norbis (supra), or, as it could be described after Coghlan (supra), a “two-pools” approach (at [132]).
As noted earlier, a 7.5 per cent adjustment in favour of the wife pursuant to s 75(2) represented a 15 per cent disparity in the interests of the parties, which in monetary terms, was approximately $253,282.50. In our view, the facts and circumstances relevant to the exercise of discretion under s 75(2) rendered an adjustment of that magnitude well within the ambit of a reasonable exercise of discretion. We are thus not persuaded that the s 75(2) challenges have substance.
So far as Ground 8 is concerned, it was submitted that the trial Judge erred in concluding that the wife had “…expended not less than $20,000 on gambling post separation”, it being submitted that the
…evidence neither disclosed a course of conduct designed to reduce or minimize the effective value or worth of matrimonial assets (it not even being established that matrimonial assets were used for such gambling as the Appellant undertook) or that the Appellant acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has [sic] minimized their value. The evidence in this regard, if it pointed to anything at all, was that a woman suffering from depression and loneliness and absent of any requisite intention to waste or diminish the assets of the parties but becoming involved in uncharacteristic behaviour (Applicant’s Summary of Argument, pages 8-9).
Complaints were made about the trial Judge’s approach to the credit of the wife, in his finding that she was a “truthful” witness, yet in not accepting that she lost only $7,000, based upon figures provided by her in her financial statement (at [146]), that “[w]ith respect it is difficult to comprehend exactly what adjustment his Honour was making in relation to the alleged ‘waste’”.
It was also submitted that his Honour’s reasoning in relation to the s 75(2) matters was “not discoverable from his Honour’s judgment” (page 9, Appellant’s Summary of Argument). We disagree with this submission. The trial Judge’s reasoning was clear and the reasoning process adopted by his Honour is apparent. Soulemezis v Dudley (Holdings) Pty Ltd (supra) and other authorities were followed by the Full Court of this Court in Bennett v Bennett (supra). The Full Court there said at page 78,266:
Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
On behalf of the husband, reference was made to the trial Judge’s approach to the wife’s gambling losses, that of not reflecting it in the balance sheet and submitted that such “…approach was clearly to the advantage of the appellant” (Respondent’s Summary of Argument at page 10). There is force in that assertion.
Reliance was placed upon the trial Judge’s careful consideration of the evidence, it being submitted that it was reasonably open to the trial Judge by reference to the wife’s own evidence of her financial expenses and the trial Judge’s unchallenged finding with respect to credibility, to conclude as he did with respect to the wife’s gambling losses. It was submitted, correctly in our view, that it was open to the trial Judge to treat the $20,000 which he found the wife to have lost by gambling pursuant to s 75(2). There has been no successful challenge to the trial Judge’s conclusion with respect to the wife having in fact gambled some $20,000. Seen in context, the reflection of that loss could have had only a minimal impact upon the exercise of the trial Judge’s discretion.
The submission on behalf of the wife that the wife lacked the relevant “intention” is not supported by any evidence, medical or otherwise, to which this Court has been referred. These circumstances are to be contrasted with those in the Full Court’s decision in Crampton v Crampton,[29] in 2006. In that case, the wife participated in gambling which resulted in a net loss to the property pool of more than $140,000. The wife attended upon a psychiatrist and was treated for depression and prescribed medication, and that evidence was provided at the trial. The consultant psychiatrist, Dr H recorded that the wife had a
[29] (2006) FLC ¶93–269
“…‘dysthymic disorder’ …which had caused an episode of pathological gambling over a period of around 12 months… and a ‘depressive relapse’ …[during which time the wife had] an ‘inability …to control impulsive behaviours…’” (at [42]).
As their Honours in the Full Court observed, at [52]:
52. The essential question was whether overall the evidence about gambling losses, including the wife’s secretiveness, demonstrated conduct which should result in her bearing the entirety or some other proportion of the losses. The trial Judge accepted evidence which established:
§the pathological nature of the wife’s gambling
§her irrational belief she would recover her losses
§the estrangement in her relationship with the husband, from as early as 1995
§that the wife suffered an illness, symptoms of which included “an inability to understand what one is doing”, preoccupation “with worry” and inability “to concentrate”
53. We consider that in these circumstances, it was open to the trial Judge to make the finding that he did, namely that the wife’s conduct was not such as should see her bear the gambling losses.
We are not persuaded that the trial Judge erred either in finding as he did with respect to the wife’s gambling losses or in treating such losses in the manner in which he did. Indeed, on the evidence before him, to have declined to do so may have constituted an appealable error by the trial Judge.
None of the challenges raised on behalf of the wife with respect to superannuation having succeeded, these challenges, save for Ground 13 which we will now consider, fail.
In support of Ground 13, which is in substance a s 79(2) challenge, it was submitted that the trial Judge failed to address the justice and equity of the orders he proposed making, largely by reference to the superannuation interests of the parties. The submissions in support of this ground have earlier been traversed by us and we do not propose to restate them, save to acknowledge that the approach taken by the trial Judge was, having regard to the nature of the superannuation interests, the form of such interests and their characteristics, an approach which has not been shown to have been other than reasonably open to him. Whilst other approaches to the superannuation interests may have been adopted, the trial Judge’s approach was not one which was not open to him and had the considerable attraction of being logical, sensible and “fair” to both parties. We thus consider that Ground 13 lacks merit.
Grounds 9-11
Grounds 9-11 “…raise issues on appeal relating to findings and or determinations of his Honour in relation to spouse maintenance.” Those grounds assert:
9.That his Honour failed to consider:
a.Whether the Respondent had the capacity to pay spouse maintenance;
b.Whether or not the Appellant is able to support herself adequately
and or having regard to or by reason of Section 75(2) of the Act.
10.That his Honour was in error in failing to assess the reasonable needs of the Appellant.
11.That his Honour was in error in failing to find that the Respondent did not have the capacity to contribute to the needs of the Appellant.
It was submitted that the trial Judge “…failed to adequately consider whether the Respondent had the capacity to pay spousal maintenance and or whether the Appellant had the capacity to support herself adequately.” (Appellant’s Summary of Argument at page 9). Reference was made to the trial Judge’s conclusion (at [221]) that the husband’s
…expenses could, in my opinion be pruned for a limited period of time as must the wife’s. In particular his stated $50 for pocket money and his $60 for hobbies.
222. Having regard to both parties financial circumstances I think it is reasonable for the husband to continue paying the spouse maintenance at the rate of $50 per week until the expiration of 4 weeks following the transfer to the wife of the husbands interests in both the Taxi Plate and the Hawks Nest property.
On behalf of the wife it was asserted that the trial Judge specifically erred in rejecting expenditure of the wife of $73 per week by way of expenses of smoking, “…had little or no regard to the unchallenged evidence of the Appellant’s expert witnesses about the need for surgery and or ongoing medical care”, and “…took a narrow and unrealistic view of the Appellant’s current and future needs in limiting to her to the ‘cap’… now guaranteed by the government” (Appellant’s Summary of Argument at page 10). It was further complained that the trial Judge failed to “…give any real consideration to the needs of the Appellant in circumstances where he ordered her out of the home,” and that his Honour erred by bringing “…to account rental from the Hawks Nest property and other sources, which property would clearly have to be liquidated in order for the appellant to achieve such goals such as purchasing a new residence for herself” (Appellant’s Summary of Argument at page 10).
On behalf of the husband it was submitted that none of the findings upon which the trial Judge relied in relation to the wife’s claim for spousal maintenance were shown to have been erroneous and that his Honour’s conclusion with respect to the topic fell within the ambit of a reasonable exercise of discretion (Respondent’s Summary of Argument at page 10).
The trial Judge considered the question of spousal maintenance subsequent to determining the property settlement proceedings before him. So doing he was consistent with authority. In the case of In the Marriage of Bevan[30] it was held by their Honours in the Full Court that issues of spousal maintenance should be determined following the determination about property settlement. Their Honours stated, at page 81-979:
It is true that in Kauiers and Kauiers (1986) FLC ¶91-708 at 75,137, the Full Court said that there was no binding principle that the Court must always consider and announce its proposed property orders before considering [81-980] what, if any, maintenance orders should be made for the spouse or the children.
However it made it clear that in making the maintenance orders, the Court was bound to consider the proposed property orders and their effect, either on the wife’s needs or the husband’s capacity to pay maintenance. In that case the Court found that as the trial Judge had not mentioned the proposed property orders and did not appear to have taken their effect into account, he had not complied with the requirements of s.75(2)(n).
[30] (1995) FLC ¶92-600
The trial Judge directed his mind to the question of whether “…having regard to the determination of the property proceedings… the wife will have a need for maintenance” (at [210]). His Honour referred to the pension which the wife received ($254 per week) and her stated expenses of $565 per week. He then noted a concession made by the wife pursuant to which she would not have to pay more than $23 for pharmaceutical expenses (at [211]). His Honour rejected the wife’s claim in the sum of $73 per week for cigarettes (at [211]). In our view, it was open to his Honour to do so, without expressing any views as to the desirability or otherwise of the wife’s smoking. Whilst the wife was perfectly entitled to smoke if she wished, that was not an expense which his Honour was obliged to take into account when assessing the wife’s reasonable weekly needs. He concluded, as was open to him, that the wife had “…expenditure of $470 per week as against income of $254. This then leaves a short fall of $216 per week” (at [211]). His Honour then noted the need to “…consider that the effect of the orders about the house at Lansvale will be the wife will have to obtain accommodation for herself” (at [212]).
His Honour then addressed the question of what the wife would have “…in the way of liquid assets following the orders of the Court” (at [213]). He found, correctly on the figures before him, that the wife would have “…$647,661.33 worth of assets in addition to her superannuation”, subject to some variations to which his Honour referred. He noted that the wife would have “…two income earning assets in the form of the property at Hawks Nest and the Taxi Plate [and that] [s]he will not own a residence in Sydney” (at [214]). His Honour noted that “[u]ntil the wife has determined how to invest her assets she will have income from two assets and liabilities to service. She will also have cash from the sale of the Seahampton properties” (at [215]). Reference was made to the income from the taxi plate (“…of about $270:00 [sic] per week”) and to the fact that the Hawks Nest property “…runs at a small loss having regard to mortgage and other outgoings” (at [217]). The trial Judge thus concluded that “[o]nce the wife takes control of the Taxi plate I think about 4 weeks thereafter she should be able to support herself. This will be significantly easier for her after the sale of the Seahampton properties.” His Honour then thus concluded that for a period of “…about 6 weeks from the date of the Court orders” (at [220]) the husband should pay maintenance in the sum of $50 per week.
Even if his Honour erred in relation to the husband’s capacity over that period, which we are not persuaded that he did, to the extent that he may have, any resulting disparity would be so minimal as not to warrant interference by this Court. Nothing to which we have been referred establishes that the trial Judge erred in determining the spousal maintenance application. These challenges thus fail.
Ground 14
Ground 14 provided
That his Honour erred in taking into account in a general way that the Respondent must have made some contribution towards the increase in the value of his superannuation from the date of separation to the date of hearing
In support of this ground it was submitted
Whilst it is not discernable in what general way his Honour took this into account, it was argued at trial, that the superannuation figure(s) had been the subject of agreement and that it was not open to the Respondent to now seek to dissect that agreed figure by reference to another value alleged to be attributable to this asset at the date of separation.
In any event, and in circumstances, inter alia, where the Respondent was at material times in control of joint income of the parties e.g. from Hawks Nest etc. - there is no real basis for his Honour to have concluded that the application of funds to the superannuation of the husband was a contribution solely attributable to him (Appellant’s Summary of Argument, page 11).
To the extent that we understand this submission, we are not persuaded that it has merit. We agree with the submission of Counsel for the husband that it is important that a trial Judge does take into account an increase in value in superannuation between separation and hearing. As their Honours in the Full Court stated in W v W[31] at page 79,674:
In our opinion, the increase in value of the husband's superannuation between separation and trial and the reasons for that increase were important matters in the circumstances of this case where the assets are relatively few and the husband had continued his employment in the post separation period. It could be assumed in the absence of any other evidence that the reason for the increase in the value of the husband's superannuation was his continuing employment. Her Honour's failure to refer to these matters (other than in her findings concerning the pool of property) would support the conclusion that she failed to give these matters adequate, or indeed any, weight. We consider that this was a significant error which requires our intervention.
Nothing to which we have been referred persuades us that the trial Judge’s conclusions with respect to the husband’s post-separation contributions were erroneous, or that his discretion was based upon any material error of fact.
[31] (2005) FLC ¶93-222
We also agree with the submission by Counsel for the husband that his Honour dealt with the justice and equity of the orders he proposed to make in his judgment (at [207]-[206]), and dealt comprehensively with the impact that his orders would have upon both parties. We are thus not persuaded that this ground has substance.
Conclusion
Save to the extent that we have found that the trial Judge erred in failing to provide by way of formula by way of the division of proceeds of sale of the Seahampton properties, taking into account the adjustment of $14,550 to the assets to be retained by the husband, no ground of appeal raised on behalf of the wife has been found to have substance. We accordingly propose allowing the appeal, but only to the extent that we would do so to substitute a formula in that order. In so doing we note that since the hearing the impost of vendor duty has been abolished by the New South Wales government. We propose allowing the appeal and varying Order 7 to read in the following terms:
7.That both parties do all things necessary to cause a sale of the Seahampton properties being Lots 8 and 9 Balmoral Drive, SEAHAMPTON. Following the sale of the properties the sale proceeds be applied as follows:-
To pay:
(a)Real Estate Agents’ commission,
(b) Legal costs on sale,
(c)To the husband the sum of $12,512 to cover his anticipated CGT;
(d) To the wife the sum of $11,023 to cover her anticipated CGT.
(e)That the proceeds then be divided between the parties so as to achieve an overall division of the net assets of the parties, as determined by the trial Judge of 52.5 percent to the wife and 47.5 percent to the husband.
Costs
Each party should have a costs certificate to cover the costs of the appeal.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 31 January 2007
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