GODDARD & PATTERSON - [2011] FamCAFC 14

FAMILY COURT OF AUSTRALIA

GODDARD & PATTERSON

[2011] FamCAFC 14

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – loans made by the parties’ business to the parties – whether the trial judge double counted the loans – whether the trial judge erred in identifying a loan as a joint liability of the parties – whether the trial judge erred in accepting that the husband was not in a position to repay the loans – no merit in any ground.

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – valuations – whether the trial judge erred in relation to the valuation of a property – whether the trial judge erred in not accepting the figure for goodwill assigned to the business by the single expert –whether the trial judge erred in not utilising the single expert’s valuation of the business – no merit in grounds.

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – whether the trial judge erred in finding that the husband’s father provided a monetary gift to the parties which was applied to the purchase of a property – whether the trial judge erred in the weight attributed to this contribution on behalf of the husband – no error established.

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT –whether the trial judge erred in finding that there should be no adjustment in favour of the wife on account of shares held by the husband – no merit in ground.

FAMILY LAW - APPEAL – SPOUSAL MAINTENANCE – whether the trial judge erred in not awarding the wife a lump sum payment of spousal maintenance in addition to monthly maintenance – whether the trial judge erred in relation to the amount of spousal maintenance the husband was to pay to the wife and the period of time during which spousal maintenance should be paid –– no merit in ground.

FAMILY LAW - APPLICATION IN AN APPEAL – application to adduce further evidence – application dismissed.

FAMILY LAW - APPEAL – COSTS – where the appeal was wholly unsuccessful – financial circumstances of the wife – no order for costs.

Family Law Act 1975 (Cth) ss 72, 75(2), 79 & 93A(2)

Evidence Act 1995 (Cth) s 69(3)(a)

Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

SSHontestroom v SS Sagaporack [1927] AC 37

APPELLANT:

Ms Goddard

RESPONDENT:

Mr Patterson

FILE NUMBER:

PTW

6286

2006

APPEAL NUMBER:

2009

DATE DELIVERED:

7 February 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Coleman and Strickland JJ

HEARING DATE:

29 June 2010

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

12 August 2009

LOWER COURT MNC:

[2009] FCWA 103

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Thillagaratnam

SOLICITOR FOR THE APPELLANT:

Mr Scott Thillagaratnam Barrister & Solicitor

COUNSEL FOR THE RESPONDENT:

In person

Orders

The appeal be dismissed.
The wife’s Application for leave to adduce further evidence be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Goddard & Patterson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 24 of 2009
File Number: PTW 6286 of 2006

Ms Goddard

Appellant

And

Mr Patterson

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms Goddard (“the wife”) against certain orders made by Crisford J on 12 August 2009 with respect to property settlement and spousal maintenance in proceedings between the wife and Mr Patterson (“the husband”).
In summary, Crisford J determined that the net asset pool was to be divided 62.5 per cent/37.5 per cent in favour of the wife. This division included a 27.5 per cent adjustment in favour of the wife on account of s 75(2) factors. Her Honour made orders, inter alia, for the wife to pay to the husband $65,925 by way of property settlement and for the husband to contemporaneously transfer to the wife his interest in a property at L purchased following separation. In default of the wife paying the sum to the husband, such sum was to be satisfied from the net proceeds of sale of the L property. Her Honour also made an order for the husband to pay the wife the sum of $350 per week by way of spousal maintenance for the period from January 2010 to June 2011.
The husband seeks that the wife’s appeal be dismissed.

Background

At the time of trial the wife was aged 46 years and the husband was aged 47 years. Both parties have degrees.
The parties commenced living together in 1988 in the United States of America and were married in the United States in October 1990.
From 1991 until 1997 the parties lived in Singapore, where their children were all born.
There are three children of the marriage, M Goddard-Patterson, A Goddard-Patterson and K Goddard-Patterson. The children were aged 16, 13 and 12 years respectively at the time of trial.
In 1996 the parties purchased a property at W in Perth which they rented out until they moved to Australia in 1997, at which time they commenced to live in the property. The parties subsequently “upgraded” their homes on three occasions.
While living in Singapore the parties established a business TD. In approximately 1999 TD Pty Ltd (“TD”) was established in Perth with the husband and wife as directors and shareholders of the company. The wife held one share in the company and the husband held two shares.
In 2004 TD completed a project in Asia for P Pty Ltd. The company was also appointed … for a project at B in Asia.
The parties separated on 16 June 2006. Following separation the former matrimonial home in W was sold and most of the proceeds of sale were put towards the purchase of a property at L, where the wife lived at the time of trial.
On 17 November 2006 the wife commenced proceedings in the Family Court of Western Australia seeking parenting and property settlement orders.
On 2 January 2008 Magistrate Andrews made orders that the wife pay the costs of the husband in the sum of $6,500 arising from a Form 2 Application filed by the husband in relation to interim issues. Execution of this order for costs was stayed pending the final determination of the proceedings before the court and the manner of payment was reserved to the trial judge.
On 25 August 2009 Magistrate Monaghan made orders that the wife contribute towards to the husband’s costs in relation to interim proceedings in the sum of $3,500. Execution of this order was again stayed pending the final determination of the proceedings.
The trial in relation to the property settlement proceedings was heard before Crisford J on 26 and 27 May and 11 June 2009. At the time of trial the parties’ eldest child lived with the husband and the two younger children lived with the wife.
On 12 August 2009 her Honour made final orders and delivered her reasons for judgment.
On 15 October 2009 the wife filed an application seeking an extension of time to file an appeal. On 3 December 2009 Martin J granted the wife an extension of time until 11 December 2009.

Orders of 12 August 2009

Crisford J made the following orders on 12 August 2009:
1.     …
2.      Within 60 days the wife pay to the husband the following amounts:
(i)$65,925 (property settlement); and
(ii)$10,000 pursuant to the costs orders of 25 August 2008 and 2 January 2008.
3.     Contemporaneously with such payment to the husband, he transfer to the wife all his right, title and interest in the property situate at and known as [the L property], in the State of Western Australia with the wife indemnifying the husband for all and any debts relating to the property.
4.     In default of the wife complying with paragraph 2 hereof, the property at [L] be forthwith placed on the market for sale and from the net proceeds of sale the payments set out in paragraph 2 herein be made, with the balance then remaining being paid to the wife.
5.      Subject to these orders:
(i)the husband transfer to the wife his interest in any chattels, choses in action or other property in the possession of the wife; and
(ii)the wife transfer to the husband her interest in any chattels, choses in action or other property in the possession of the husband.
6.      The husband and the wife do all acts and things and sign all documents necessary to transfer to the wife the Ford Fiesta motor vehicle in the possession of the wife.
7.      The husband pay any amount outstanding to Forsythes and indemnify the wife in relation thereto.
8.      Within 30 days of these orders being made:
(a)the wife transfer to the husband and/or his nominee, her share in [TD] Pty Ltd;
(b)the wife transfer and assign to the applicant absolutely, all her right title and interest in and to the following entities, including but not limited to any loan accounts of the respondent in those entities:
(i)[TD] Pty Ltd;
(ii)[TDT] Ltd;
(iii)[TD International] Inc;
(iv)[A] Pty Ltd;
(v)[C] Pty Ltd;
(vi)[P] Ltd;
(vii)[K] Investment Trust;
(hereinafter collectively refereed to as “the Entities”); and
(c)the husband do all acts and things and sign all necessary documents to have the wife released and discharged from any loan contract, debt, surety and/or guarantee given and/or executed by the wife in relation to the Entities.
9.      The wife transfer to the husband any debts or liabilities she has or is deemed to have to any of the Entities and the husband thereafter indemnify the wife with respect to the said debts of liabilities.
10.    The husband pay and indemnify the wife in respect of any debts or liabilities which crystalise [sic] after the making of these orders between the wife and any of the Entities.
11.    The husband pay and indemnify the wife in respect of any assessed or yet to be assessed taxation liability between the wife and the Australian Taxation Office arising out of any income or capital received or deemed to be received by the wife from any of the Entities.
12.    There be liberty to apply in relation to the implementation of the property settlement orders.
13.    The husband pay the wife the sum of $350 spousal maintenance each week commencing Friday 1 January 2010 and continuing each Friday thereafter up to and including the last Friday in June 2011.
…
The wife, by her “Re-Amended” Notice of Appeal filed on 2 March 2010 only appeals orders 2(i), 4, 12 and 13.

Trial judge’s reasons for judgment

The trial judge first outlined the orders that the parties sought at trial. In summary, the wife sought to retain the home in which she lived and for the husband to pay her a cash amount of $100,000. She also sought that the husband pay to her $10,000 being the total amount that she had previously been ordered to pay to him by way of costs orders. The wife proposed that she transfer to the husband her interest in their various business entities, with the husband to assume responsibility for any related debts or liabilities. She also sought half of the husband’s frequent flyer points and that a motor vehicle be transferred to her. Finally, the wife also sought that the husband pay her spousal maintenance of $24,000 per annum for 5 years.
The husband was self represented and it was his position at trial that the best the wife could expect was an equal division of property. He sought the sale of the property in which the wife resided.
After recording a brief chronology, her Honour turned to the issue of disclosure. In this respect, the wife accused the husband of failing to make full disclosure as to his financial position. Her Honour formed the view that the wife was “sometimes prone to exaggeration” and that she provided little proof or concrete detail of her expansive claims. Her Honour found at times the wife’s evidence to be “quite contradictory” and often unconvincing and that there was some doubt as to the veracity of the wife’s claims. On the other hand, her Honour found the husband to be measured and careful in giving his evidence and that he had made concessions where they were warranted. In light of these findings, the trial judge recorded that where there was a factual dispute she accepted the version of the husband unless otherwise stated.
Her Honour next considered the pool of assets available for division The parties had been able to agree as to the identity and value of a number of assets, although there were some outstanding areas of dispute.
The first area of dispute was in relation to TD and its associated entities, namely, TDT Ltd and A Pty Ltd. A court appointed single expert had provided a report in relation to the parties’ interests in the entities. Her Honour recorded that the parties agreed that the value of their interests in the three entities as at 20 June 2008 was $1,172,500, which was the value attributed by the single expert. This value also encompassed the value of the B villa, a motor vehicle and the parties’ loan accounts in the entities.
Her Honour determined that some assets which has been included in the valuation were reflected separately in the asset pool, and thus they needed to be deducted from the value attributed by the single expert [at paragraph 29]. Her Honour thus calculated that after deducting the value of these assets, the adjusted value of the business was $394,176.
The trial judge accepted the evidence of the husband that following the valuation he borrowed a further amount of $64,274 from TD. Her Honour recorded that there were three remaining loans totalling $160,943, and that the likelihood of repayment of the loans appeared slim.
Finally in relation to the value of the business, her Honour addressed the issue of goodwill. The single expert had attributed an amount of $459,000 to goodwill of the company, including the interest of the husband’s brother I. The trial judge accepted that most of the goodwill centred on the personal goodwill of the husband.
The trial judge ultimately concluded that on the evidence it was extremely difficult to attribute a present value to the business apart from the separately accounted for assets. In the circumstances her Honour did not consider it was possible, but indicated she intended to return to this as a factor warranting consideration pursuant to s 75(2).
Turning to the liabilities, in issue was a taxation liability on company loans. The issue of the parties’ tax exposure in relation to company loans had not been considered by the single expert. Her Honour considered it useful to evaluate how the loans the subject of the likely taxation had been utilised by the parties. Her Honour found that the funds from the company prior to separation were used in their entirety for the benefit of the family. In relation to the money received since separation, her Honour was not satisfied that all of these funds had gone towards the family, but that most had, and that the husband had had reasonable living expenses. Her Honour thus considered that any tax debt should be joint.
In reaching her conclusion in relation to the issue of tax on the loans, her Honour was satisfied that the funds from the company were applied in the main to meet living expenses, children’s expenses and some liabilities, and that these funds to a significant extent came from monies upon which tax had not been paid. Her Honour accepted that both parties had had the benefit of these loans. Her Honour determined to include the lower tax liability of $67,896 in the pool of assets, and indicated she would deal with the issue again in the context of s 75(2) factors.
The trial judge thus found the net asset pool to be $1,328,596.
With respect to superannuation, the parties each had modest superannuation entitlements and in circumstances where there was little evidence as to contributions to their superannuation and where neither party sought a splitting order, her Honour proposed to deal with this in the same manner as the other assets.
Her Honour did not consider it appropriate to make any orders with respect to the husband’s frequent flyer points as sought by the wife, given the paucity of factual material in relation to the issue.
The trial judge then turned to consider the parties’ contributions. The wife submitted that the parties’ contributions were equal. The husband also submitted that the parties’ contributions were equal as at the date of separation, save as to an amount of $250,000 he said his father provided by way of gift towards the purchase of their first home in Australia, for which the husband sought an adjustment in his favour. In relation to post separation contributions, the husband asserted he had made a greater financial contribution and a substantial contribution to the parties’ children, and that the wife had made a “negative contribution” to the business, all of which warranted an adjustment in his favour.
The first issue addressed was the “gift” of $250,000 by the husband’s father to the parties for them to purchase the property at W. Her Honour ultimately concluded that the parties were able to purchase the property as a result of a gift provided by the husband’s father and that as the proceeds of sale from that property were used to purchase “better properties”, the gift was a foundation for the parties’ present position.
The second issue was post separation contributions. The husband asserted that he had made the overwhelming financial contribution post separation. In this regard, her Honour took into account that the husband was employed and pursuant to a contract dated November 2008 he received a salary of $175,000 per annum and in addition a car allowance and superannuation. In May 2009 his salary was reduced to $150,000 inclusive of superannuation with no car allowance. Her Honour noted the husband also had access to funds from TD in the form of both wages and loans. Her Honour accepted that whilst the majority of the money was used for family purposes, nonetheless the husband had been able, until recently, to maintain a higher standard of living than the wife.
Her Honour also had regard to the wife’s primary responsibility for the care of the two younger children. Her Honour said that while the wife had attempted to work, she was unable to, apparently due to problems with child care arrangements. The trial judge observed that the husband had been able to obtain employment and maintain business activities overseas substantially because the wife had been available for the day to day care of the two younger children.
The trial judge was ultimately not satisfied that there should be any adjustment in favour of the husband on account of his substantial financial contributions post separation. The trial judge was satisfied that the wife had done the best she could in the circumstances, that the husband was well remunerated and the wife had two children with her. Her Honour reiterated that the husband alone had been able to access money from TD.
The final issue addressed by the trial judge with respect to contributions was the wife’s alleged negative contribution due to her asserted “difficult behaviour” since separation, including allegedly disrupting the business and irritating the husband. The husband attributed the downturn of the business to this. Her Honour commented that from a perusal of the interim applications it was evident that a vast amount of time and effort was required to be spent by the husband and his legal advisers in dealing with the numerous and varied issues raised by the wife. Her Honour had no doubt that the wife had caused considerable difficulties for the husband, but was not of the view that her behaviour came within that described in Kowaliw and Kowaliw (1981) FLC 91-092. The trial judge, while stating she did not “minimise or discount [the wife’s] often inflammatory, time consuming and bitter behaviour” was not satisfied that her behaviour had the character or economic consequences that the husband sought to attribute to it, namely a negative contribution.

Thus the only factor that her Honour considered warranted an adjustment was the gift from the husband’s father, and for that her Honour determined to make an adjustment of 15 per cent in the husband’s favour.
In relation to s 75(2), her Honour noted that the wife sought a “substantial” adjustment in her favour in this regard, and at the time of trial the total percentage she sought was 71 per cent of the assets. The husband’s position was that at the “very most” an adjustment of 10 per cent in favour of the wife would be appropriate.
In considering the relevant s 75(2) factors, her Honour had regard to the fact that the wife suffered depression and that it would take some time after the conclusion of the proceedings for the wife to regain her confidence and return to the workforce in a meaningful way. Her Honour had regard to the wife’s qualifications and the steps she had taken to obtain employment. The trial judge found that the wife was talented and motivated but needed some time post judgment to establish herself.
Turning to the husband, her Honour found that he was also very talented in his field and had considerable business acumen. Her Honour had no doubt that the husband would have a reliable income stream however he chose to pursue his career.
Her Honour noted the wife would be primarily responsible for the two younger children and that while the parties’ eldest child lived with the husband, given his age (17) and his hopes to move overseas on a sports scholarship, the husband was likely to be without the same responsibility in relation to the children as the wife.
Her Honour then turned to revisit the issue of TD. Her Honour recorded that while she had expressed some “disquiet” about attributing a specific value to it over and above its separately identified assets, her Honour accepted that it was likely to have an additional value in the future not capable of exact quantification. Her Honour considered that given the husband’s ability, the business was likely to be of some worth in the future. Her Honour thus concluded that well into the future the husband’s ability to earn income and make contributions to superannuation would far outstrip the wife’s.
Her Honour then considered shares the husband had received in P Pty Ltd. Her Honour found it was not possible to realistically evaluate the future of the shares and that there should not be any adjustment in the wife’s favour as a result.
Her Honour noted that the husband had concerns regarding the B unit and wanted to ensure that the court was aware that the unit was conditional upon his completion of the work in relation to the resort. Again, her Honour did not consider that this matter warranted any adjustment in the husband’s favour.
Her Honour was cognisant that both parties had personal debts to repay that had been incurred since separation and that the wife also had to meet costs orders made against her.
Finally her Honour addressed the issue of the income tax to be paid on the company loans. In this regard her Honour accepted that the husband would pay any tax required. Her Honour included in the schedule of assets the lower amount calculated by the husband given the uncertainty of the status of the loans in relation to Division 7A of the Income Tax Assessment Act1936 (Cth) and the wife’s refusal to sign documents. Her Honour did accept, however, that there was a possibility that the amount of tax would be considerably higher, namely $187,461. The trial judge was not satisfied that the wife’s failure to sign the appropriate documents for likely future tax was reasonable, and found that that failure could result in the higher amount being assessed.
In conclusion, her Honour found that the husband’s position in the workforce was far more positive than the wife’s and that the husband was better placed to acquire assets in the future. Her Honour considered this to be the most important factor. Her Honour also took into account the tax debt the husband was likely to incur. An adjustment of 27.5 per cent in the wife’s favour was thus considered appropriate.
A division of the net assets 62.5 per cent/37.5 per cent in the wife’s favour required a payment by the wife to the husband of $65,925. In considering whether this division was just and equitable, her Honour took into account that the wife was also required to pay $10,000 to the husband pursuant to previous costs orders. Her Honour recorded that the wife would be able to retain the home by taking out a “relatively small” loan to pay the husband. If the loan could not be raised, the property would need to be sold. Her Honour found that while the husband would have some short term “financial discomfort”, his future was secure.
Her Honour then turned to consider the wife’s spousal maintenance application. Her Honour recorded that since separation the husband had paid child support and continued to pay the children’s private school fees. The husband disputed at trial that the parties had the ability to continue to meet private school fees. The trial judge accepted that the husband could not afford to meet private school fees and pay spousal maintenance. Her Honour noted there was no application before the court in relation to child support and that the husband was not bound to continue to pay child support at the level he had been, but that it was desirable that the children remained in their current schools for the balance of the year. The husband deposed that he paid child support of $450 per week and school fees of approximately $1,107 per week in addition to other expenses of the children and the costs of the eldest child living with him.
The trial judge accepted that the wife was not able to adequately support herself, in that she had the care of two children under the age of 18, had some health problems (depression) and lacked recent experience in the workforce. Her Honour determined the husband should pay spousal maintenance of $350 per week for 18 months, commencing in January 2010, by which time the children could have changed schools if the husband could not continue to pay the fees and he would have a reduced commitment to his eldest child. Her Honour proposed that the spousal maintenance would end in June 2011, by which time her Honour was satisfied the wife would be able to adequately support herself.

Application in an Appeal

On 1 June 2010 the wife filed an Application in an Appeal seeking to adduce further evidence. That evidence was annexed to her affidavit also filed on 1 June 2010.
Section 93A(2) of the Family LawAct 1975 (Cth) (“the Act”) provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. In CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. McHugh, Gummow and Callinan JJ said at 201:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Their Honours then said:
111.… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
And finally their Honours said at 203:
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
The wife seeks that this Court receive the following documents by way of further evidence:
1.      Agreement To Lease a Condominium Unit dated 2^nd February 2007 made between [B Company Pty Ltd.] and [TD Pty Limited]; [Exhibit A to the wife’s affidavit filed 1 June 2010]
2.      A Price List for Penthouses at “[B Residences]” as at April 2009; [Exhibit C to the wife’s affidavit filed 1 June 2010]
3.      A current Price List for Penthouses at “[B Residences]”; [Exhibit C to the wife’s affidavit filed 1 June 2010]
4.      An extract from a “[B unit]” Brochure”; and [Exhibit D to the wife’s affidavit filed 1 June 2010]
5.      An email exchange between the Respondent and [Mr G] dated 20 and 21 October 2008. [Exhibit E to the wife’s affidavit filed 1 June 2010]
The husband opposes the wife’s application.
At the hearing of the appeal we refused the wife’s application and indicated that we would provide our reasons as part of the reasons for judgment on the appeal itself. Accordingly, we set out our reasons for the refusal of the wife’s application as follows.

The lease agreement (Exhibit “A”)

The issue in dispute to which this agreement is said to be relevant is the value of the unit at the B resort that the husband was to receive as part of the remuneration for work done by TD.
The document sought to be tendered and relied on is a lease document dated 2 February 2007 of the relevant property.
The wife’s counsel submits that this document was not discovered, but the husband denies that. Apparently, it was annexed to the valuation report of the licensed valuer Mr E dated 20 May 2009, and which report the wife’s legal representatives received just before the commencement of the hearing.
In any event, the wife’s counsel was not able to demonstrate to us how this lease agreement was relevant to the assessment of the value of the property, and indeed during argument that was ultimately conceded. Thus, there is no basis to admit this as further evidence.

The price lists and email (Exhibit “C”)

Again, it is suggested that the price lists and the email of 14 May 2010 from the Managing Director of the resort are relevant to the dispute as to the value of the unit to be received by the husband. However, where there is a licensed valuation available as in this case and which was relied on by the trial judge, we cannot be satisfied that price lists or an email from a third party, which of course are not evidence of value, would have produced a different result if they had been available (and admissible) at trial.
We also note that the price list dated April 2009 was in fact printed out by or on behalf of the wife on 5 May 2009, and thus the wife had this list before the trial commenced but it was not used by her in that trial.
Further, with the email dated 14 May 2010, not only is that inadmissible even as an exception to the hearsay rule (s 69(3)(a) of the Evidence Act 1995 (Cth)), but it advises asking prices as at 14 May 2010, as does the accompanying price list, and clearly these prices cannot be relevant to the value of the property as at the date of the hearing.

The brochure extract (Exhibit “D”)

It is alleged that the extract from the brochure for the B resort indicates that the husband failed to disclose that he had “been involved in projects in India … Bangkok … and Phuket …”. More particularly, it is said that the husband failed to disclose “income he received on behalf of the business for these projects”.
We fail to see how the exhibit demonstrates any of these things. It says:
[…]
[The husband], of [TD] [email address] has strong […] experience in Asia and Australia. His most recent work includes [P] [email address], […] and […] in India.
It was well known that the husband, through the business, undertook projects in Asia, and he discovered all of the relevant financial statements of the various entities and of him personally. The extract from the brochure does not demonstrate a failure by the husband to disclose income and/or assets.
It has not been demonstrated to us how this “evidence” would have produced a different result if it had been available at the trial, and thus it should not be admitted.

The email correspondence (Exhibit “E”)

It is suggested that these emails again demonstrate that the husband has failed to disclose his involvement in further projects and the income/assets that the business has received.
However, as with the previous item, we fail to see how these emails demonstrate these things. The emails reveal nothing more than proposals, and there is no evidence of the outcomes. Indeed, the email for the developer indicates that the project may not even proceed because of the Global Financial Crisis.
Once more, it has not been demonstrated to us that this “evidence” would (and not might) have produced a different result if it had been available at the trial.
We again note that the wife had these emails well before trial but they were not presented to the trial judge. We reiterate what was said by McHugh, Gummow and Callinan JJ in CDJ v VAJ at paragraph 116, namely:
Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion.

Conclusion

Thus, we confirm that the wife’s Application in an Appeal should be dismissed.

Grounds of appeal and orders sought

The wife’s grounds of appeal as contained in her “Re-Amended” Notice of Appeal filed on 2 March 2010 are quite detailed and provide as follows:
1.      The learned Judge erred in law in accepting the evidence of the respondent that he was not in position to repay the amounts he had borrowed from [TD] and absolving the Respondent from liability to repay the loans to [TD] [Judgment: paragraph 28]. Such a finding diminished the value of [TD] and accordingly, the asset pool available for division.
2.      The learned Judge erred in accepting the evidence of the Respondent that [TD] had made a loan to the Appellant [Judgment: paragraph 28]. No such loan was ever made to or received by the Appellant from [TD]. The learned Judged erred in law in deducting the sum of $104,490 as regards the loan attributable to the Appellant [Judgment: paragraph 29] from the assets of [TD]. Such a finding diminished the value of [TD] and accordingly, the asset pool available for division.
3.      The learned Judge erred in law by deducting the sums of $341,031 in respect of loans payable by the Respondent from the assets of [TD]. Further, the learned Judge erred in deducting the sum of $341,031 and $104,490 when the actual sum owing by the Respondent was $236,540. There was in fact a “double counting” of the sum of $104,490. The Respondent should not have been absolved of his liability to repay the sum of $236,540 while there was no such loan of $$104,490 [sic] to the Appellant. Such a finding diminished the value of [TD] and, accordingly, the asset pool available for division.
4.      The learned Judge erred in finding that the [B Unit] was valued at $324,694 when the Single Expert had valued it at $740,000 and erred in law in deducting the sum of $324,694 from the assets of [TD] [Judgment: paragraph 29] as this was an asset of [TD]. There was no basis for its devaluation and exclusion from the list of assets of TDPL. The decision to devalue and exclude this asset diminished the value of [TD] and, accordingly, the asset pool available for division.
4A. The learned Judge erred in law in failing to take into account the increase in the valuation of the [B unit] from $740,000 to $863,000. The Single Expert had valued the [B unit] at $740,000 as at March 2008 on the basis that the Unit would not be completed until mid 2009. The learned Judge failed to include the difference of $123,000 in the value of the [B unit] and thereby reduced the value of [TD] and the asset pool available for division.
5.      The learned Judge erred in finding that a further loan of $64,274 by [TD] to the Respondent and 3 other loans totalling $160,943 by [TD] to the Respondent’s brother [I Patterson] ($92,540), [TDT Ltd] ($64,068) and [A Pty Ltd] ($4,335) reduced the value of [TD] by accepting the evidence of the Respondent that all these loans were unlikely to be repaid [Judgment: paragraph 31]. This finding had the unjust and direct effect of reducing the value of [TD] and consequently, the asset pool available for division.
6.      The learned Judge erred in finding that any commercial element of the goodwill of [TD] is minimal despite the fact that the single expert had quantified the goodwill of [TD] to be $459,000 [Judgment: paragraph 32]. This finding reduced the value of [TD] and accordingly, the value of the asset pool available for division as the Appellant would have been entitled to a one-third share in the assets of [TD].
7.      The learned Judge erred in law and in fact in making a finding that it was extremely difficult and impossible to attribute a present value to the business of [TD] [Judgment: paragraph 33]. Such a finding was in direct contradiction to the Single Expert’s valuation of [TD] of $1,675,000. Consequently, the learned Judge, erred in attributing a zero value to the assets of [TD] which deprived the Appellant of any equity as a shareholder of [TD] save for the assets like the [B unit] and the two motor vehicles which were treated separately.
8.      The learned Judge erred in finding that the Appellant and Respondent were able to purchase the [W] property as a result of a gift of $250,000 from the Respondent’s father [Judgment: paragraph 89]. The learned Judge granted an adjustment of 15% in the Respondent’s favour (judgment:paragraph 93). There was no documentary support for this finding.
9.      The learned Judge erred in finding that there should not be any adjustment in the Appellant’s favour as regards the shares held by the Respondent in [P], which the Respondent valued at $37,000, based on the assertions of the Respondent that no value should be attributed to this asset [Judgment: paragraph 109]. There was no credible documentary support for such a finding.
10.    The learned Judge erred in law by ordering the Respondent to pay the Appellant spousal maintenance of $350 a week for a period of 18 months only commencing January 2010 until 30th June 2011 on the grounds that the Appellant would be able to support herself adequately by the latter date [Judgment: paragraph 131]. The learned Judge erred in ruling that the Appellant had sought for the payment of maintenance in January 2010 [Judgment: paragraph 122] when the Appellant had made no such request. The learned Judge failed to take into account that the 2 children in the Appellant’s care and custody will not attain the age of 18 until 2013 and 2015 respectively and that until such time, it will be difficult for the Appellant to undertake full time employment.
The wife sought the following orders:
1.      An order that the deduction of the value of loans of $341,031 payable by the Respondent to [TD] be reversed and that the amount of $236,540 be added to the net assets of [TD] available for division;
2.      An order that the deduction of the value of the loan attributed to the Appellant in the sum of $104,490 be reversed and be added to the liability of the Respondent (who was the actual borrower) and that the amount of $104,490 be added to the net assets of [TD] available for division;
3.      An order that the deduction of the value of the [B unit] valued at $324,694 from the assets of [TD] be reversed and that the amount of $863,000, as valued by the Single Expert, be added to the net assets of [TD] available for division;
4.      An order that the deduction of a further loan of $64,274 by [TD] to the Respondent and further loans totalling $160,943 by TDPL to 3 other parties from the assets of [TD] be reversed and that the total sum of $225,217 be added to the net assets of [TD] available for division;
5.      An order that finding that the goodwill of [TD] was minimal be reversed and that the amount of $459,000 (being the quantified goodwill of [TD]) be added to the net assets of [TD] available for division;
6.      An order that the adjustment of 15% in relation to the purported gift of $250,000 be reversed and the Appellant’s entitlement be increased from 62.5% to 77.5% and the Respondent’s entitlement be reduced from 37.5% to 12.5%;
7.      An order that there be an adjustment in favour of the Appellant as regards the [P] shares and that the value of the shares amounting to $37,000 be added to the pool of assets available for division;
8.      An order that paragraph 4 (sale of the Appellant’s property) of the Order of the Court dated 12^th August 2009 be set aside;
9.      An order that paragraph 12 (that there be liberty to apply in relation to the property settlement orders) be set aside;
10.    An order that paragraph 13 of the Order of Court dated 12^th August 2009 be varied to provide that the Respondent pay the Appellant $500 spousal maintenance each week commencing on 12^th August 2009 and continuing each Friday thereafter up to and including Friday 6^th December 2013 and thereafter at a reduced amount of $250 each week until and including Friday 15^th May 2015; and
11.    An order that the Respondent do pay the Appellant the costs of this Appeal and of the proceedings in the court below.

The orders sought reveal a fundamental misconception of what an appeal court should do if re-exercising discretion, and confuses findings with orders.
Here, orders are sought to add assets to the pool of assets, but they are not orders that this Court would make on an appeal. If it is established that the trial judge has made an appealable error in, say, excluding an asset from the asset pool then that may lead to the appeal being allowed and the final orders being set aside. Then it is a question of whether the case is remitted to the lower court for re-hearing or whether the Full Court re-exercises the discretion of the lower court and makes final orders.
That is how we will determine this appeal.
We also note that a week before the hearing of the appeal the wife filed an amended written outline which ran to 56 pages. Not only was this in breach of the Family Law Rules 2004 (Cth) (r 22.22(2)(c)) (“the Rules”), and there was no application to dispense with compliance with the Rules, but the husband did not have sufficient time to read and consider the outline before the commencement of the hearing. Nevertheless, we determined to receive the outline and allow the wife to rely on it, but on the basis that if the husband sought to respond to it he had 14 days to do so. We note that no response has been received from the husband.

Principles applicable to an appeal from a discretionary judgment

This is an appeal against a discretionary judgment. The principles applicable to such an appeal are well settled.
The limitation of an appellate court hearing an appeal from a discretionary judgment was discussed by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 where his Honour said at 627:
…the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said at 504:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if 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. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J stated at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Similarly, in Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343 at 345, Asquith LJ said:
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.
Against the background of these principles we turn to consider the grounds of appeal.

Discussion

Grounds 1, 2 and 3

These grounds all relate to her Honour’s findings as to loans made by TD to the parties. There are three issues, namely the husband’s capacity to repay the loans, whether there was in fact a loan at all to the wife, and whether in any event there has been a double counting by the trial judge.
Her Honour found that there were total loans of $341,031 payable by the husband, and a loan of $104,490 payable by the wife, and these amounts were deducted from the agreed value of the business on the basis of lack of capacity by both parties to repay them. [Paragraph 29]
Addressing the third issue first, there is no doubt that the trial judge has double counted when one looks at the valuation of the single expert, however, as we will demonstrate in a moment, that error made no difference to the ultimate finding of her Honour as to the value of the business.
The wife also submits that the deduction of the loans from the agreed valuation was an error by the trial judge and should be reversed. However, putting to the side for the moment what amounts should be “added back”, and also putting aside whether any amount at all should be “added back”, the outcome would still be the same. In other words, whatever amount is “added back” to the valuation of the business would then have to be deducted from the gross pool of assets in any event as a personal liability of one or both of the parties. Thus there is no utility in allowing the appeal on this basis. On a re-exercise of discretion the outcome would be the same.
To return to the issue of double counting, once her Honour had deleted the loans, and discounted the goodwill, her Honour found that it was impossible to attribute a value to the business outside of the separately accounted for assets [Paragraph 33]. Thus, to add-back the $104,490 as having been double counted would make no difference to that finding. Accordingly, there is also no utility in allowing the appeal on this basis. On a re-exercise of discretion the outcome would be the same.
In the orders sought the wife seeks that the deductions of $341,031 and $104,490 by the trial judge be “reversed”, and the amount of $236,540 be added back, being the amount of the loans said by the wife to be attributable to the husband. However, in the amended written outline of the wife the “orders sought” were to add-back to the valuation of the business the amount of $104,490, and an amount of $503,347 which it is said is the total amount of the loans at the time of the hearing before the trial judge. However, in these calculations not only has the wife’s counsel added back the $104,490 twice, but he has not taken account of the fact that the figures used by the single expert in her valuation of the business were those as at 30 June 2007, and thus it would be inappropriate to just insert the updated loan figure without addressing any changes to the other relevant figures since that time.
It also must be remembered that an increased loan figure will result in a higher tax assessment which the husband will have to pay. Thus the liabilities to be taken into account would need to be increased as well.
As to the second issue, the wife says that she did not borrow $104,490 from the company, and thus she should not be responsible for it. It should be added back on the husband’s side.
The evidence is that as at 30 June 2007 there was a joint loan of $208,980 in the balance sheet of the company TD. Her Honour found that these monies were used for the benefit of the family. This is because, as at 30 June 2006, namely just after separation, the amount of this joint loan was $208,981, and her Honour was in no doubt that “the money from the company prior to the date the parties separated, was used in its entirety for the benefit of the family.”
The wife challenged the trial judge’s finding that this money was used for the benefit of the family, but during argument before us the wife’s counsel agreed that there was a concession at trial by the wife’s counsel as to the money spent prior to separation and accepted that that money “would have gone towards the family expenses”. As to the post-separation expenditure, her Honour said (at paragraph 48), “in conclusion, I consider that the funds from the company were applied, in the main, to meet the living expenses, children’s expenses and some liabilities.” Despite an invitation from the bench to take us to some evidence, concessions, cross-examination and/or documentary evidence, which impugned that finding, counsel for the wife was unable to do so. Consequently we can find no error by her Honour in identifying the loan of $208,980 as a joint loan and finding that the wife was responsible for half of it.
Turning then to the first issue identified above, namely whether the husband was in a position to repay the loans, the evidence of the husband was that he could not repay the loans, and this was accepted by the trial judge.
The difficulty for the wife in demonstrating an error by the trial judge in this regard is that the trial judge was in the best position to assess the credibility of the husband as a witness. The advantages of a judicial officer at first instance in seeing and hearing the parties are well known. There is for example the High Court’s decision in Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 178) where McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] A.C. 37 (at 47):
… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
Here the trial judge found as follows:
20 On the other hand I found [the husband] to be measured and careful in the giving of his evidence. He made concessions where concessions were warranted. He was able to give credible reasons for adopting a certain stance or position.
21 Where there is any factual dispute between the parties I have little hesitation in accepting the version advanced by [the husband] unless otherwise stated.
The husband was cross-examined as to the payment of these loans, however, he was not shaken in his evidence. There was also no other evidence to which were taken by the wife’s counsel which demonstrated that the trial judge was precluded from making the finding that she did.
Thus we are not persuaded that these grounds of appeal have merit.

Grounds 4 and 4A

These two grounds can usefully be dealt with together because they both relate to the value of the B unit.
As we indicated during the hearing, these grounds simply cannot succeed.
In his opening at the commencement of the trial, the wife’s counsel, Mr Berry, advised her Honour that a valuation of the property by a Mr E dated 20 May 2009 at 18.5 million Baht had been received and that that valuation was agreed by both parties. Thus her Honour used that value for the purposes of her judgment. This valuation was the only licensed valuation which was presented by either party. The figure of $740,000 used by the single expert was her calculation based on an advertisement provided by the wife detailing the sale of a unit for $863,000 in March 2008, and which the wife claimed was a similar property.
However, fatal to the contention of the wife is the fact that the valuation used was the agreed valuation at trial. It came about as a result of the parties agreeing that there needed to be a valuation obtained, and Mr E was chosen by them from a list of three valuers. Thus, to suggest, as the wife does, that this was a valuation commissioned by the husband is simply not correct, and nor is it correct to suggest, as the wife also does, that the valuation was not disclosed.
The wife also complains that this valuation was not formally tendered and made an exhibit, but given that it was an agreed valuation, that was unnecessary. The wife’s counsel then submits that the wife’s counsel at trial, Mr Berry, should not have agreed to the valuation, claiming a lack of understanding on his part. However, the grounds of appeal do not go to the conduct of Mr Berry. The wife’s counsel went to great lengths in his written submission in attempting to demonstrate that “Mr Berry’s unprofessional error or incompetence in this regard resulted in a substantial miscarriage of justice.” However, this attempt was both misguided and unsuccessful in any event. To repeat, there was no ground of appeal directed to this issue.
Thus there can be no error by the trial judge in utilising the value agreed by both parties and based upon a valuation which was commissioned by both.
As to the complaint that the trial judge should not have deducted the value of the property from the assets of the company, that was clearly an exercise encouraged by the parties themselves at trial. As her Honour said:
29 If the valuation of 20 June 2008 is considered in tandem with the pool of assets relied upon by the parties certain adjustments need to be made. … I also take into account the fact that some assets are reflected separately in the pool and hence need to be deducted from the Single Expert’s value …
Thus again there is no merit in this aspect of these grounds of appeal.

Ground 5

The gravamen of the complaint here is that the trial judge erred again in accepting the evidence of the husband that these loans were not able to be repaid. For the same reasons that we have articulated in finding no merit in the complaint comprised in ground 1, we are not persuaded that there is any merit in this ground. We also observe that, upon an examination of relevant passages of cross-examination, it is clear that the husband gave evidence that he had no means to repay the loans. He was not seriously challenged about that evidence, nor was anything put to him or led by the wife to demonstrate the evidence he gave was not inherently believable. The trial judge accepted his evidence and nothing has demonstrated to us that she was not entitled to do so.
It must also be remembered that if the loan to the husband is not deducted from the assets of the company then it would have to be included in his personal liabilities and thus the result would be the same in relation to this aspect.

Ground 6

The complaint here is that the trial judge erred in not accepting the figure for goodwill assigned by the single expert in her valuation of 20 June 2008.
The single expert capitalised the future maintainable earnings of the business, deducted the tangible assets, and the balance became the goodwill of the business. There was no issue as to this methodology, but her Honour, on the basis of the evidence of both the husband and the wife, found as follows:
32 Given the above the remaining component of the valuation requiring comment is that of goodwill. The single expert attributes a figure of $459,000 to the goodwill of the company, to include the interest of [I]. I am satisfied that most of the goodwill centres on the personal goodwill of [the husband]. [The wife] made the point that [the husband] had considerable skill, experience and good relationships with his clients. This is evidenced by the gift of the [P] shares to him. He accepted he had good working relationships with the people he dealt with. As the single expert points out, these personal skills are not transferable. I have little trouble accepting that the business activities are dependent on [the husband] and that he is the creative focus of the practice. He works with his brother and they form a team. In the main the clients are gained through [the husband’s] skill and reputation. I consider that any commercial element of the goodwill is minimal.
We consider that on the basis of the evidence before her Honour, her Honour was entitled to reach this conclusion, and thus no appealable error has been demonstrated.

Ground 7

The complaint here is that the trial judge erred in not utilising the valuation of the business presented by the single expert. However, the fact of the matter is that it is the trial judge who determines the relevant value of an item of property on the basis of the entirety of the evidence before him or her. Given the evidence accepted by the trial judge that the loans were unlikely to be repaid, that most of the goodwill centred on the personal goodwill of the husband, the potential tax liabilities not yet brought to account and the fact that the parties themselves chose to separate out certain assets of the business, we consider that is was reasonably open to the trial judge to find that it was not possible to “attribute a present value to [the] business apart from the separately accounted for assets.”
Importantly, the trial judge found that although she was unable to attribute a value to the business, it was appropriate to revisit this issue when considering the relevant s 75(2) factors. Her Honour did this and said as follows:
105 It is now necessary to revisit the issue of [TD]. Although I expressed some disquiet about attributing a specific value to it over and above its separately identified assets, I accept it is likely to have an additional value in the future that is not capable of exact quantification. Presently its value is at a low ebb but, given [the husband’s] ability, I consider that in the future it is likely to be a business of some worth.
Thus, in this way the future prospects of the husband in relation to the business were adequately taken into account by the trial judge.
We emphasise again the principles articulated in the authorities referred to above. As these principles make clear, the fact that the members of an appeal court may have reached a different conclusion does not render the trial judge’s decision erroneous. This was reinforced by Kirby J in CDJ v VAJ at 230 :
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. (Footnotes omitted)

Thus, there is no merit in this ground of appeal.

Ground 8

Again, the gravamen of this ground is that the trial judge erred in accepting the evidence of the husband and rejecting the evidence of the wife.
It emerged at trial that in relation to the purchase of the W property the husband contended that a gift of $250,000 from his father was crucial to the capacity of the parties to be able to purchase the property. The wife agreed that the parties had a significant injection of funds but denied the husband’s father’s gift and contended that $220,000 had come from the sale of the parties’ business in Asia. This in turn was denied by the husband. Conclusive documentary evidence from both parties in support of their respective positions was lacking and there was no effective cross-examination of either.
In the actual ground of appeal it is said that there was “no documentary [evidence to] support … [this] finding”. In fact, there was documentary evidence but only one bank statement in the joint names of the husband and his brother. The husband’s evidence was that he had sought further documentary evidence from the relevant bank (NAB), but there was none forthcoming because of the passage of time.
Thus, the only evidence before her Honour was the one bank statement and the oral evidence of the husband and the wife. There was no affidavit from the husband’s father but in the circumstances the trial judge was not persuaded to draw any adverse inference as a result of that. In any event, there is no ground of appeal directed to that issue.
When addressing ground 1 we referred to the trial judge’s findings on credit, and they are again relevant here. The trial judge was quite entitled to accept the evidence of the husband, and also where it conflicted with the evidence of the wife, and this is what occurred here. In his written submission counsel for the wife complained that there was no “actual evidence” on which to base her Honour’s finding. That is clearly incorrect; there was the oral evidence of the husband. What her Honour said on this topic was as follows:
65    It is now necessary to consider the actual evidence surrounding [the husband’s] father’s alleged gift.
66     [The husband] deposes in detail to the receipt by him of the $250,000 he says was used as a deposit for the purchase of the [W] property. He accepts in his trial affidavit that he mislead the lending institution in relation to his assets in order to secure a loan for the balance of the money needed to complete the purchase. However, he was never successfully challenged on the receipt by him of the money from his father or the circumstances in which it arose.
67     The purchase of the home took place in about November 1996 and this accords with the time frame deposed to by [the husband] in relation to the receipt of the money. There is no evidence from [the wife] which I accept as to how the purchase price for the property was generated.
68     [The wife’s] counsel drew the Court’s attention to the fact that [the husband’s] father had not filed an affidavit in relation to the gift. [the husband’s] father is alive and lives in [South America]. Counsel invited the Court to draw an adverse inference against [the husband] in this respect. In such circumstances a Court may draw such an inference but I am not persuaded I should do so in the circumstances of this case. It is not mandatory for a Court to draw an adverse inference, it is merely discretionary.
69     Initially, and understandably, [the husband] had proceeded on the basis this issue of the gift was admitted. Although it was raised as a contested issue in November 2008, it was certainly not accepted that the Notice would automatically be set aside. [The husband’s] father presently lives in what appears to be difficult circumstances. [the wife] deposes to him living under house arrest. I am not prepared to accept that an affidavit by him would have satisfied [the wife], in any event.
70     I accept that the parties did not acquire any savings whilst they were in Singapore and that, by and large, they have lived under the pressure of mounting debt during the course of their marriage. Any money they did accumulate in Singapore was used in relocating to Perth and establishing themselves and the children here.
71     [The husband] deposes:
“Had it not been for my father’s gift, [the wife] and I would not have been able, in our then quite precarious financial position before and on arrival in Australia in 1997, to have acquired our own home, nor indeed to have used the later net proceeds of sale of it to fund the acquisition of our later upgraded home.”
In his written submission the wife’s counsel suggests as follows:
(a)because the relevant account was in the joint names of the husband and his brother, the husband’s father could not have withdrawn the $250,000 from it and provided it to the husband. However, apart from the fact that the husband could have withdrawn the money himself with the consent of his father, the husband gave evidence of a power of attorney allowing his father to operate this account.
(b)because, in correspondence from the husband’s solicitors, the wrong year was identified when setting out the husband’s position in relation to this gift, the husband’s evidence should not be accepted. We consider that this is an exercise in clutching at straws, particularly when the wife herself in her affidavit had the wrong year for the date of the purchase of the property.
The evidence of the husband was clear that at this time the parties had insufficient savings and the business had insufficient money from whence an amount of $250,000 could come, and the wife had no other credible suggestion as to an alternative source of these funds. Thus we find no error by the trial judge in finding that there was a gift of $250,000 to the husband by his father which the husband then applied to the purchase of the property.
By this ground of appeal the wife also challenges the finding by the trial judge that this gift warranted a 15 per cent adjustment in the husband’s favour when assessing the respective contributions of the parties.
The wife suggests that the trial judge’s reference to this gift as having come “late in the marriage” was not correct, and that coming as it did namely six years after the marriage and nine years and nine months before the separation, no adjustment was warranted. However, what the trial judge in fact said was this:
89 The parties were able to purchase the [W] property as a result of the gift from [the husband’s] father. The proceeds of sale of that property were used to purchase better properties with the result the home in which [the wife] now lives is the most valuable asset the parties retain. The gift from [the husband’s] father was a foundation for their present position …
…
92 The only aspect that I do consider warrants adjustment is the gift from [the husband’s] father. I see that as a significant gift coming relatively late in the marriage. It is the foundation of the parties’ present position and needs to be acknowledged. (Emphasis added)
Thus, what the trial judge was saying was not that the gift was received late, but that it was received “relatively late”. We consider that that is an accurate description. In any event it is quite apparent that the timing of the gift was not the sole reason for the adjustment.
In oral submissions the wife’s counsel also suggested that a 15 per cent adjustment was not warranted because that equates to $200,000 of the net asset pool whereas the gift was only $250,000. This is a challenge to the weight that the trial judge accorded to this contribution, but it has not been demonstrated that her Honour erred in this regard. As her Honour said, this was a significant contribution because it enabled the parties to purchase the property, and that was the springboard for the subsequent accumulation of assets, including the most valuable asset the parties now have, namely, the home in which the wife lives. [Paragraph 89]
Thus, we can find no error by the trial judge here.

Ground 9

In this ground it is said that the husband valued the shares at $37,000, and in the orders sought the wife wants this amount to be added to the pool of assets. However, this only restates half of the story. The husband also said that loans had been taken out on the security of the shares and the loan outstanding in relation to his shares was $51,800, in other words, more than they were worth.
Her Honour, as was open to her to do, again accepted the evidence of the husband in relation to these shares. Her Honour said this:
109 [The husband] explained that the company [P] had taken loans against the shares which remain as security for the loans. The purpose of the loans was to finance a property development. The loans are currently more than the worth of the shares. Despite this there may be some future prospects for them. [The husband] said his understanding is the shares are worth approximately $37,000 but the loans are of $51,800. [The husband] said he was pessimistic about the shares ever having a value. It is not possible for the Court to realistically evaluate the future of these overseas shares. The single expert was in the same position. I do not consider there should be any adjustment in [the wife’s] favour as a result of the shares [the husband] holds.
A basis of the wife’s challenge to the findings of the trial judge is that the husband failed to provide any documentary evidence as to the value of the shares and limited documentation as to the liability. That is correct, but as with other topics, the trial judge was prepared to accept the oral evidence of the husband. Importantly, we also note that the husband was not cross-examined at all about these shares.
Curiously, we note that despite the basis of the complaint, the wife wants to adopt the husband’s evidence of value and add-back $37,000, but still not taking any account of the evidence of the liability.
We also note that adopting a value of $37,000 and adding that to the asset pool was not how this issue was put before the trial judge. What was put to her Honour was that these shares comprise “a potential benefit to [the husband] in the future” [Appeal Book 3 p 581]. Indeed, the wife’s counsel said this in his final address [Appeal Book 3 p 581, line 11 – 16]:
So, your Honour, we would say that it wouldn’t be reasonable or fair to say this has got a nil value. The fair way to characterise this shareholding is that it has got a value which just isn’t known at this stage and there’s a range of possibilities about what it might be in the future.
It is not now open to the wife to attempt to run a different case before us.
There is no merit in this ground of appeal.

Ground 10

There are two challenges here. First, in effect a general claim that the trial judge erred in making the orders she did, albeit it was also part of this general claim that the trial judge failed to take into account that until the two children in her care attained 18 years it would be difficult for her to undertake full time employment. Second, a specific claim that the trial judge erred in “ruling that the Appellant had sought for the payment of maintenance in January 2010 ... when the Appellant had made no such request.”
In relation to the second challenge, that was expanded in the wife’s written submissions to suggest that the wife had claimed “maintenance in the form of a lump sum and monthly maintenance” (emphasis added), and her Honour had erred in not awarding her a lump sum by way of maintenance.
We find this aspect of this ground of appeal to be without foundation.
The initial orders sought by the wife for spousal maintenance were for $500 per week, the payment of private health insurance, car registration and insurance, car repair costs, and life insurance premiums. At trial though, and there is no dispute about this, the wife sought the following orders:
2. The husband pay the wife:
2.1by way of property settlement a sum which equals the total of unpaid costs ordered to be paid by the wife to the husband in these proceedings.
2.2by way of property settlement the sum of sum of $100,000 within 60 days.
2.3by way of spousal maintenance the sum of $24,000 per annum for five years commencing 1 January 2010, to be paid at the rate of $2,000 on the first business day of each month by electronic funds transfer into an account nominated by the wife.
Thus, there was no lump sum payment of spousal maintenance sought by the wife, and the spousal maintenance that was sought was to commence in January 2010. The sum of $100,000 sought by the wife was a payment by way of property settlement, and not spousal maintenance. Accordingly, there is no error demonstrated by the trial judge.
We also note that at no stage was it suggested to the trial judge that the commencement date of January 2010 was dependent upon the wife receiving $100,000 by way of property settlement as argued on appeal.
Turning to the other challenge. First, as to the amount of $350 per week, that was less than the amount the wife sought, but it has not been demonstrated to us that the trial judge erred in the exercise of her discretion in determining that that was the amount that should be paid.
Her Honour was well aware of the relevant statuary provisions, setting out s 72 and s 75(2) of the Act in full in her reasons for judgment.
Her Honour appropriately determined that the wife at the date of the hearing was unable to support herself adequately because she still had “two children in her care under the age of 18”, she had “some health problems”, and she lacked “recent experience in the workforce”.
In determining the appropriate weekly amount for spousal maintenance, the trial judge had to overcome the distinct disadvantage of the wife failing to present any evidence of her weekly expenses. On the other side of the coin, the trial judge appropriately took into account that the husband was paying and would continue to pay child support pursuant to an assessment, that he in fact had been paying more than he was required to, and that in addition he had been paying the children’s school fees at private schools. It was doubtful that he could continue to afford to do so though even without the additional impost of spousal maintenance of $350 per week.
In these circumstances we cannot discern any error by the trial judge in fixing on $350 per week as the amount of spousal maintenance to be paid.
In relation to the period of time during which spousal maintenance should be paid, the wife complains that she needed spousal maintenance for five years to encompass the period during which the two youngest children would complete high school. She argued that only then would she be able to undertake full time employment. The difficulty with that submission is that that is not the test. The test under s 72 is whether the wife is able to support herself adequately by reason of any of the factors set out in s 75(2) of the Act. In this regard it is apparent that the trial judge carefully took into account the evidence of the wife’s circumstances including her history of employment, her health, and her own evidence of her ability to work in the future. For example, her Honour said this:
96 [The wife] suffers from depression. She is currently on daily medication to assist her in this regard. I accept the breakdown of her marriage caused her considerable anguish and that she has required assistance in coming to terms with it. I also accept that it will take her some time after the conclusion of court proceedings to regain confidence in her life and return to the workforce in a meaningful way. She deposes to having the mental capacity to return to work and I accept that to be correct.
The determination by her Honour of the appropriate period of time for spousal maintenance to be paid was another exercise of discretion on the part of her Honour and again it has not been demonstrated that her Honour erred in that exercise of discretion. Thus, there is no merit in this ground of appeal. In addition, as we pointed out to the wife’s counsel in argument, the wife is not precluded from seeking spousal maintenance from the husband at the expiration of the period fixed by her Honour if her circumstances warranted a continuing order.

Conclusion

Having found that there is no merit in any of the grounds of appeal, the appeal must be dismissed.

Costs

At the conclusion of the hearing we invited the parties to make submissions on costs depending on the result of the appeal.
In the event of the appeal being unsuccessful the husband sought an order for costs. He appeared on his own behalf at the hearing of the appeal, but we understand that he incurred legal costs in relation to the preparation of the appeal and the Application in an Appeal.
The wife opposed a costs order being made on the grounds of her financial circumstances as set out in her trial affidavit.
Although the appeal was wholly unsuccessful, as was the Application in an Appeal, the wife’s financial circumstances dictate that there should not be an order for costs.

I certify that the preceding one-hundred and fifty six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Coleman and Strickland JJ) delivered on 7 February 2011.

Legal Associate:

Date: 7 February 2011