Gipps & Ning
[2023] FedCFamC1A 141
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gipps & Ning [2023] FedCFamC1A 141
Appeal from: Gipps & Ning [2023] FedCFamC2F 325 Appeal number(s): NAA 75 of 2023 File number: CAC 2087 of 2018 Judgment of: CHRISTIE J Date of judgment: 21 August 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY– PRACTICE & PROCEDURE – Where appellant asserts that the primary judge was biased – Where primary judge’s intervention is proper – Where appellant is mistaken that the primary judge encouraged the respondent’s counsel to advance a particular argument – Where errors of fact do not support allegation of bias nor warrant appellate intervention – Justice and equity – Where the exercise of discretion has not miscarried – Challenge to weight given to evidence by primary judge – Where primary judge’s assessment of weight was open – Whether error in finding in favour of an asserted loan – Where finding was open – Adequacy of reasons – Where adequate reasons provided as to a life insurance policy of the respondent and a joint bank account between the respondent and her sister not forming part of the matrimonial pool for adjustment – Whether failure to consider financial resources of the respondent amounts to error – Where ground is misconceived – No error established warranting appellate intervention – Appeal dismissed – Costs – Where appellant wholly unsuccessful – Order for costs in favour of the respondent. Legislation: Evidence Act 1995 (Cth) s 41
Family Law Act 1975 (Cth) s 75
Limitation Act 1985 (ACT)
Cases cited: Af Petersens & Af Petersens (1981) FLC 91-095
Biltoft & Biltoft (1995) FLC 92-614
CDJ & VAJ (1998) 197 CLR 172; [1998] HCA 67
De Winter & De Winter (1979) FLC 90-605
Galea v Galea (1990) 19 NSWLR 263
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
House & The King (1936) 55 CLR 499; [1936] HCA 40
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Strahan and Strahan (Disqualification) (2009) FLC 93-414; [2009] FamCAFC 204
Number of paragraphs: 77 Date of hearing: 31 July 2023 Place: Melbourne via Microsoft Teams For the Appellant: Litigant in person Counsel for the Respondent: Mr Haddock Solicitor for the Respondent: Parker Coles Curtis ORDERS
NAA 75 of 2023
CAC 2087 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GIPPS
AppellantAND: MS NING
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
21 AUGUST 2023
THE COURT ORDERS THAT:
1.Appeal NAA 75 of 2023 is dismissed.
2.The appellant pay the respondent’s costs in the sum of $12,339.67.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gipps & Ning has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal against orders made on 23 March 2023 concerning property adjustment between the parties at the conclusion of their relationship.
On 29 March 2023 the appellant filed a Notice of Appeal.
THE TRIAL
The appellant appeared at the trial on his own behalf while the respondent was legally represented.
The primary judge found the relationship was at least eight years in length before separation in September 2015.
When the relationship started the appellant was the owner of two properties one which became the parties’ home and one which was occupied by his mother until October 2011. A further parcel of real estate was purchased in the appellant’s name in 2013 and the parties built a home on that land.
The respondent had a share portfolio in Country E at the commencement and conclusion of the parties’ relationship.
The primary judge found at [69] that the appellant had made a “significant initial financial contribution”.
The parties have two children born 2008 and 2011. Those children were seven and four at the time of separation and 14 and 11 at the time of the hearing. Consent Orders for their care were made on 9 May 2016 dividing the children’s holidays equally between their parents and providing that during term time they live with the respondent and spend time with the with the appellant five nights per fortnight.
After an initial separation under the one roof the respondent left the home she had occupied with the appellant and moved into a property which had been acquired with funds advanced by her sister.
The advance of funds by the respondent’s sister to the respondent included $107,000 in December 2015 which was utilised by the respondent to pay the deposit on a townhouse, buy a car, pay rent and some legal expenses. The respondent required further funds to settle the purchase and in total $723,000 was provided by the respondent’s sister to the respondent. The respondent and her sister documented $650,000 as a loan in February 2016 the remainder being treated by them as a gift. The appellant disputed the character of the advance asking the primary judge to conclude that the entirety of the funds were a gift. Between the advance and the trial the respondent had made repayments totalling $10,215. The primary judge accepted that the $650,000 advanced was repayable.
The primary judge found that the parties’ contribution-based entitlements favoured the appellant by seven per cent as a consequence of his initial contribution and made a 15 per cent adjustment in favour of the respondent in consideration of matters in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The resulting division was consequently that the appellant receive 42 per cent of the parties’ net assets and the respondent 58 per cent.
THE APPEAL
Ground 6
By Ground 6 the appellant contends bias on the part of the primary judge and accordingly, consistent with principle, this ground will be considered first.
Ground 6 was expressed: “[t]he primary judge denied the [appellant] natural justice by ignoring unchallenged evidence in depositions and biased conduct throughout the proceedings.”
The appellant did not raise any question of apprehended bias when the matter was before the primary judge. While this may not prevent the issue being ventilated on appeal it is relevant to the assessment of the merit of the allegation as a basis for appellate intervention.
The appellant contends that the primary judge’s bias was apparent in her rulings during the trial – in broad terms that those rulings favoured the respondent. A judge may rule in favour of one party repeatedly without that fact supporting a claim of bias and so it is necessary to examine the specific examples relied upon.
This particular complaint brings to mind the observations of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 cited by the Full Court in Strahan and Strahan (Disqualification) (2009) FLC 93-414:
… It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he [or she] will decide the case adversely to one party…
Under this ground the appellant lists asserted factual errors of the primary judge. A judge may make a factual error without any conclusion of bias being available and not all factual errors will amount to appellate error. Again it will be necessary to address each example.
I will start with the two contentions of the appellant which if accepted would constitute bias as it is commonly understood:
(1)That the primary judge “engaged in hectoring and intimidation” of the appellant; and
(2)That the primary judge “encouraged the counsel for the [respondent] to consider making a Kennon [v Kennon (1997) FLC 92-757] argument…”
As the appellant conducted the trial on his own behalf he cross-examined the respondent. The appellant asserts that the “hectoring and intimidation” was in relation to “the conduct of the [respondent] when she breached parenting orders”. The transcript reference relied upon by the appellant to ground his submission that the primary judge engaged in “hectoring and intimidation” is as follows:
[APPELLANT]: All right. Is it true that when you abducted the children on 6 January 2016 contrary to interim Family Court orders - - -
HER HONOUR: No, stop. Stop, stop, stop. Don’t use the word ‘abduct’, please. Find a different word. ‘Took’ for instance.
[APPELLANT]: Is it true that when you kidnapped the children on 6 January contrary to interim Family Court orders - - -
HER HONOUR: Mr [Gipps] - - -
(Transcript 18 July 2022, p.117 lines 30-40)
The exchange goes on:
[COUNSEL FOR THE RESPONDENT]: Objection, your Honour.
HER HONOUR: Mr [Gipps], could you use a non-emotive language, please? For instance, ‘took’.
[APPELLANT]: Is it true that when you took the children on 6 January 2016 contrary to interim Family Court orders and left the marital home in the [Motor Vehicle 2] purchased for you by your sister for $39,500 - - -
HER HONOUR: Okay. Stop, stop, stop. Stop. Too many questions there, and the groundwork hasn’t been laid. So, first of all, you can ask, “Did you take the children contrary to Family Law orders”, secondly, “Did you use this vehicle”, thirdly, “Blah, blah, blah”, and then ask whatever question you want to do. You have to break it down, because she can’t say yes or no to something that contains 15 different propositions. Go ahead.
[APPELLANT]: Okay.
Is it true that you took the children on 6 January 2016 contrary to interim Family Court orders and left the marital home?---Yes.
(Transcript 18 July 2022, p.117-118 lines 41-15)
I do not accept that the primary judge’s intervention is properly characterised as, nor able to be perceived by a reasonable lay observer as, either hectoring or intimidation. In Galea v Galea (1990) 19 NSWLR 263 Kirby A-CJ (with whom Meagher JA agreed) when dealing with a case which raised the related question of excessive judicial questioning set out a number of principles, the sixth of which is applicable here:
The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid…
Her Honour was entitled, and indeed obliged (per s 41 of the Evidence Act 1995 (Cth)), where appropriate, to control the processes in the courtroom. Her Honour’s request that the cross-examiner adopt less emotive language is no more than the primary judge discharging her obligation to control the proceedings in her courtroom.
The second issue which the appellant raised under the heading of alleged bias was his perception that the primary judge had “encouraged” the counsel for the respondent to consider making a Kennon argument.
The appellant’s written submissions reference the transcript of the proceedings after the conclusion of the evidence. The primary judge was explaining the process of submissions to the appellant including the matters about which she would expect to hear submissions. In that context the primary judge asked counsel for the respondent, “What I want to know… are you running a Kennon argument?”: Transcript 19 July 2022 p.164 lines 43-44.
This inquiry was designed to assist the appellant so that he would know the case he had to answer in submissions. Upon the counsel for the respondent answering her Honour’s question, further assistance was given to the appellant:
HER HONOUR: So, Mr [Gipps], what that’s about is the [respondent] says that she was suffering some pretty arduous circumstances during the marriage, that you were very controlling about the finances, etcetera, which made her contributions to raising the children, her contributions as homemaker and parent, more difficult because of your behaviour. And so what her argument is going to be is that the weight to be attributed to her contributions is increased by the circumstances in which those contributions were made and your behaviour. So that’s what’s suggested. And I’m just letting you know that’s what we were talking about, and it has been – I’ve been wondering about whether that’s going to be raised because of some of the evidence, the way it’s presented.
And, yes, it is going to be raised, so I’m just letting you know in advance so you can have a think about that, and so that you understand what’s happening when those submissions are made, okay?
[APPELLANT]: Yes, your Honour.
(Transcript 19 July 2022, p.165 lines 7-22)
Phrased as it was, at the conclusion of the evidence and in the context set out above by the primary judge it could not be conceivably be regarded as an encouragement to the respondent to pursue a particular argument.
The other matters relied upon by the appellant said to demonstrate bias relate solely to alleged errors of fact and cannot either individually or cumulatively even if accepted as errors support the allegation of bias. They include:
(a)a reference in the table of the assets and liabilities to the loan between the respondent and her sister as a “mortgage”;
(b)a reference to the respondent parenting alone (in Country E) for 5 months (when the appellant says it was 3);
(c)a reference to the children as young when the appellant does not consider they are young; and
(d)the primary judge’s reference to the appellant selling a property in “haste”.
The reference to the loan as a mortgage in the table was an error without any significance as regards the outcome. The primary judge did not find that the loan was supported by a mortgage or otherwise secured.
The parties’ child X was born in 2008 in Country E. The appellant was in Australia. The respondent says she (and X) came to Australia in February 2009. The appellant says the respondent came to Australia in January 2009. There is no dispute that the mother had the sole responsibility to provide care from the time of the child’s birth until the time she arrived in Australia. Even if the evidence established the timeframe for which the father contends it could not have affected the underlying correctness of the assessment of contribution.
Whether the primary judge regarded the children as young is a subjective description. There is no question that she knew how old they were. This is of no moment.
The primary judge wrote at [93]:
Section 75(2)(o) of the Family Law Act 1975 requires the Court to take into account any fact or circumstance which the justice of the case requires to be taken into account. I take into account that, in his haste to move closer to where the children attended school, the [appellant] sold the former matrimonial home at [L Street, Suburb J] in 2017 for a capital loss of $204,000 and that the value of the property pool was accordingly diminished by that amount.
The appellant’s complaint is that the property was not sold hastily but rather 21 months after separation. The primary judge was not concerned with the amount of time which had passed since separation but rather whether the decision of the appellant made, he says to live closer to the children’s school, if delayed may have avoided the capital loss. The observation of the trial judge is neither error nor demonstrative of bias.
To amount to error (leaving aside establish bias) the error would need to be established on the available evidence and material. None of the matters upon which the appellant relied if established would amount to error requiring appellate intervention in the sense discussed in De Winter & De Winter (1979) FLC 90-605 at 78,091-78,092.
Ground 1
Ground 1 asserted that “[t]he orders made by the primary judge are unjust and inequitable”.
Justice and equity can only be understood in context – the context is provided by the individual contributions, financial and non-financial, direct and indirect and by the parties’ respective financial positions post-separation. In effect, a complaint on appeal that the resulting order or orders are not just and equitable is best understood as a complaint that the result fell outside the wide ambit of judicial discretion conferred by the statutory regime.
In this case the primary judge weighed the respondent’s greater non-financial contributions against the appellant’s greater financial contributions and then assessed their financial positions in light of the appellant retaining a defined benefit pension scheme in the payment phase, a higher earning capacity, a history of child support arrears and a parenting regime which saw the children in the mother’s care for the majority of the term time.
Having regard to the principles in House & The King (1936) 55 CLR 499 at 504-505, Gronow v Gronow (1979) 144 CLR 513 and CDJ & VAJ (1998) 197 CLR 172 the discretion exercised by the primary judge has not miscarried.
To the extent that the Summary of Argument of the appellant dealt with the primary’s judge’s treatment of the monies advanced by the respondent’s sister to the respondent after separation under this ground I will defer that discussion to my reasons under Ground 3.
Ground 2
Ground 2 was articulated as follows:
the primary judge, erred in her assessment of the contributions of the parties by failing to attach sufficient weight to the greater initial contributions of the [appellant], his non-financial contributions and his contributions to the welfare of the family.
Challenges based on the weight given to evidence are notoriously difficult to establish. Here the appellant does not say that the primary judge ignored his contributions but rather that the judge did not give them the weight that he says they deserved.
The appellant’s significant initial contributions were given weight by the primary judge at [69]. Her Honour regarded the parties’ respective financial and non-financial contributions during the relationship as equivalent at [72]. There is no sense that this finding was contrary to the evidence or against the weight of evidence. It was plainly open.
Ground 3
Ground 3 asserted that the primary judge “erred by deducting from the property pool an unsecured, interest, free liability of $650,000 that was unreasonably incurred by the [respondent] and is unlikely to be enforced”.
After separation, in circumstances where the respondent’s sole asset of significance was her share portfolio in Country E, her sister advanced her funds with which she purchased a townhouse to accommodate herself and the parties’ children. That property appears in the balance sheet with a value of $900,000. As against that the primary judge recorded a liability of $639,785.
The concept that the judge would include the respondent’s property in the balance sheet but exclude the debt would have required that primary judge to have made a finding either that the monies advanced by the respondent’s sister were a gift and/or the loan was a sham or in the alternative that the terms of the loan were unlikely to be enforced by the respondent’s sister.
The appellant argued each of these in the alternative, unsuccessfully. In fact, the primary judge found that the loan was repayable and the respondent intended to repay it. Accordingly, the loan was properly included as a liability of the respondent.
The appellant contended that this determination was out of step with case law which has allowed for the exclusion of liabilities which are vague, unenforceable or unlikely to be enforced. I accept that the court has the power to treat a debt as personal to the individual and not to be brought to bear on the net assets available for adjustment in circumstances which dictate that same would not be just and equitable.
The difficulty in this case was that, after separation, the respondent acquired an appreciating asset which forms part of the pool absent direct or indirect financial contribution from the appellant. Put simply, but for the advance from the respondent’s sister the respondent would not own a property which appears in the balance sheet.
The appellant’s argument about why the loan should not be taken into account is multi-faceted. He says that the respondent could have acquired property without the loan. That cannot be factually accurate since the respondent’s assets would not have been sufficient to acquire the townhouse.
The respondent has made repayments to her sister. Those repayments appear to be commensurate with her current financial circumstances. The making of repayments by the respondent to her sister was part of the factual matrix by which the primary judge concluded that the advance enjoyed the character of a loan.
The respondent was challenged about the requirement for repayment and did not waiver from her evidence. The primary judge was within her rights to accept this evidence.
The appellant said various of the factual matters upon which the primary judge based her determination were in error. He concentrated specifically on the characterisation of the advance by the respondent’s sister as a loan. He submitted that this conclusion was in error. His argument was that the primary judge ought to have found that the funds were a gift. He says that conclusion was inevitable given the funds were unsecured and interest free and there was not a repayment schedule and/or statements. This misunderstands the legal position. A loan may be granted on terms which plainly may include that the loan is both unsecured and interest free. The absence of a schedule of repayments and statements is consistent with the terms of the loan and does not impact on its characterisation.
The next matter said by the appellant to be relevant to the characterisation is the “suspicious timing” of the advance. It is not clear what the appellant means by this expression. The respondent and her sister entered into a loan agreement at the time the respondent required funds to buy her townhouse. The timing seems objectively understandable.
The appellant also raised, as purportedly relevant to the characterisation of the advance as a loan, “conversion of a gift of $107,000 into a loan instalment”. It was not controversial that the respondent’s sister advanced fund in more than one tranche and that the funds totalled $722,964.49: [34] of the reasons for judgment. The respondent’s sister treated all the monies which had been provided over and above $650,000 as a gift to the respondent. The appellant says that because the original tranche ($107,000) was described in the bank transfer as a gift it was not open to the respondent to argue or the primary judge to conclude that any part of the $107,000 was repayable (as part of the $650,000). The primary judge accepted at [34] the evidence of the respondent and her sister that when the time came to provide further funds they agreed that the amount which would be required to be repaid was $650,000. She was entitled to accept that evidence.
The appellant labels the repayments made by the respondent to her sister as “bogus”. The basis for this appears to be that they were made into the joint account of the respondent and her sister. Given the findings of the primary judge about the beneficial entitlement of the respondent’s sister to the funds in that account the mere fact that the repayments were made to that account cannot without more render the payments bogus.
The authorities have consistently supported a position that where the judge finds that a loan will not, on the available evidence, be repaid then the judge will be entitled to disregard this loan as a liability for the purpose of calculating the net assets of the parties available for adjustment: Af Petersens & Af Petersens (1981) FLC 91-095; Biltoft & Biltoft (1995) FLC 92-614. The primary judge here found that the respondent both intended to repay the loan and had begun to repay the loan. There is no error.
The appellant raised as indicative that the advance should not be regarded as a loan what he said were inconsistencies in the evidence which the respondent gave about the outstanding loan balance. In a letter from the respondent’s lawyers dated 24 April 2020 details of repayments are provided resulting in an outstanding balance at that date of $628,500. The respondent’s financial statement indicates a balance outstanding of $639,785. I accept there is an inconsistency. This however, appears on the face of the documents to be explained by the solicitor’s letter having referred to a repayment of AUD19,500 when the affidavit of the respondent’s sister says the repayment was actually [Country E currency]19,500.
The appellant submits that the loan was “unnecessarily incurred”. It is not plain what he intended by the submission. The respondent did not have the capital necessary to acquire the property without a loan.
The failure of the respondent to seek that her sister be joined to the proceedings (or for the respondent’s sister to herself seek to be joined) does not speak to error in the characterisation of the advance as a loan. She was a witness and cross-examined by the appellant. There is no legal principle that requires a creditor to be a party before his or her loan will be regarded as such. Similarly, I do not accept that the question of whether or not the respondent and her sister have previously entered into a loan was a relevant consideration for the primary judge nor does it appear that the appellant raised this in submissions in the Court below.
Finally, the appellant contends that the primary judge was in error in treating the advance by the respondent’s sister as a loan because it was statute barred. The appellant made no submissions about the Limitation Act 1985 (ACT) before the primary judge. Indeed, he made no submissions about the issue on appeal save for the assertion that enforcement was statute barred. He declined to engage with the respondent’s contention on appeal that the limitation period had not commenced to run on a proper reading of the loan agreement and accordingly he has not established error.
Ground 4
Ground 4 asserted the primary judge “erred by failing to provide adequate reasons as to why three bank accounts and the life insurance policy of the [respondent] were omitted from the property pool”.
At the hearing of the appeal the appellant indicated that the ground needed to be amended to refer to one bank account of the respondent (and not three). The bank account which the appellant says ought to have been included in the assets of the parties is a joint bank account which the respondent holds at Bank D, with her sister.
The circumstances in which the joint bank account was opened are set out in the affidavit of the respondent’s sister. It receives the rental income and pays the rental expenses of an apartment owned by the respondent’s sister in Queensland. It is not an account to which the respondent has made any financial contribution. The respondent’s sister indicated she has authorised the respondent to use the account to purchase gifts for the parties’ children and family friends and the respondent has adhered to these terms of use. The appellant accepted that those withdrawals were not significant. The respondent’s sister also gave evidence that she herself would use the joint bank account whenever she visits Australia.
The primary judge dealt with that bank account at [31] and [35]. The balance at the time with respondent filed her financial statement was $9,459.31.
The primary judge was entitled on the evidence before her to exclude that bank account as an asset of the respondent notwithstanding the bank account was styled as a joint account. No error is established.
In the appellant’s trial affidavit he referred to the respondent having failed to disclose two insurance policies with Insurer U.
The primary judge dealt with this in her reasons at [57]. The respondent gave evidence that the policy was medical insurance (which pays for medical treatment when she is in Country E) and an endowment policy which she held in Country E. The respondent was explicitly asked (by the primary Judge) about the surrender value and indicated it was minimal which rendered the policy not worth surrendering.
It seems apparent that the appellant sought to include the payout figure as an asset of the respondent. If a party has a life insurance policy – it is never the value of the payout which is appropriately included as an asset – since that sum is payable upon loss of life. There was no evidence of the surrender value of the property – the respondent indicating it was negligible – and its inclusion would therefore, in the circumstances of this case be de minimis and particularly so when the evidence supported the conclusion that it was not going to be surrendered. There is no error established.
Ground 5
Ground 5 asserts the primary judge “erred by failing to consider substantial financial resources available to the Wife from her sister including $722,000 post separation.”
The ground is misconceived. The primary judge did consider the money received after separation and did so in the form of inclusion of property (as opposed to a financial resource) on the balance sheet.
A financial resource is not defined in the Act. The case law has provided guidance in respect of the distinction between property and financial resources. The High Court in Hall v Hall (2016) 257 CLR 490 at [54] observed:
The reference to “financial resources” in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to “a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency”. The requirement that the financial resource be that “of” a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee’s discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation.
(Footnotes omitted)
The appellant argued that the primary judge ought to have, consistent with the dicta of the High Court in Hall v Hall, treated the respondent’s sister as a financial resource.
The appellant fails to appreciate that he has benefitted from his sister in law’s actions after separation. There is a $900,000 asset in the pool against which the respondent owes $639,785. The respondent’s sister gifted the respondent the funds necessary to enter into the transaction (over and above the amount of the loan).
There is no evidence that the respondent has access to anything more than a loan on favourable non-commercial terms, a matter that the primary judge was well aware of.
The appellant submitted that the respondent’s sister is a woman of considerable means. Even if he was able to point to an evidentiary foundation for that proposition (and he did not), this could not, without more, be sufficient to establish that the primary judge was in error in failing to treat the assistance provided by the respondent as akin to an ongoing financial resource of the respondent.
The appellant has not established ground 5.
DISPOSITION
As none of the grounds have been established the appeal will be dismissed.
COSTS
The respondent sought her costs in the event the appeal was dismissed. The appellant submitted that his finances were “minimal” and he would be “short of cash” if a costs order were made. The appellant has been wholly unsuccessful and the respondent should receive her costs at scale. No submissions were made about the quantum which the schedule fixed at $12,339.67.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 21 August 2023
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