Goswami & Rapozo (No 2) - [2020] FamCAFC 282

FAMILY COURT OF AUSTRALIA

GOSWAMI & RAPOZO (NO. 2)

[2020] FamCAFC 282

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – APPLICATION FOR ADJOURNMENT OF APPEAL – Where the husband appeals final property settlement orders – Pattern of non-compliance – Application for adjournment – Procedural fairness – Significant financial non-disclosure by the husband – Where the grounds of appeal lack particularity – Challenges unmeritorious – No appealable error established – Appeal dismissed – Costs order made against the husband in favour of the wife.

Evidence Act 1995 (Cth) s 50
Family Law Act 1975 (Cth) ss 75(2), 79(2), 94AAA(3)

Akston & Boyle (2010) FLC 93-436; [2010] FamCAFC 56
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hearne & Hearne (2015) 53 Fam LR 454; [2015] FamCAFC 178;
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabour & Jabour (2019) FLC 93-893; [2019] FamCAFC 78
Maine & Maine (2016) 56 Fam LR 500; [2016] FamCACF 270
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

APPELLANT:

Mr Goswami

RESPONDENT:

Ms Rapozo

FILE NUMBER:

SYC

4628

2015

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

19 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

4 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 May 2020

LOWER COURT MNC:

[2020] FCCA 1612

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Gardiner

SOLICITOR FOR THE RESPONDENT:

Steiner Legal

Order made 4 November 2020

That the appellant’s Application in an Appeal filed 30 October 2020, seeking to adjourn the appeal hearing be dismissed.

it is further ordered

The appeal be dismissed.
The husband pay the wife’s costs of the appeal in the amount of $18,000 within twenty-eight (28) days from the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Goswami & Rapozo (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 80 of 2020
File Number: SYC 4628 of 2015

Mr Goswami

Appellant

And

Ms Rapozo

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 20 July 2020, Mr Goswami (“the husband”) appeals property settlement orders made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) in proceedings with Ms Rapozo (“the wife”).
The primary judge determined that the parties owned property worth $712,916 net [6]. However, the wife established that the husband received a further $764,027 for which he failed to account, gambled, hid or wasted [19], [101]. With those transactions taken into account as property retained by the husband, the parties’ contributions and s 75(2) of the Act were evaluated by reference to a notional property pool in the amount of $1,476,943 [102].
The wife’s contributions were assessed at 57.5 per cent compared to the husband’s 42.5 percent [121]. The application of s 75(2) resulted in a 2.5 per cent adjustment in favour of the wife and thus, his Honour was satisfied that the wife should have 60 per cent of the notional property pool compared to the husband’s 40 per cent [159]. The effect of this was that the wife was entitled to receive more than the obviously available property. However, the wife recognised the difficulties involved in her securing more than $712,916 and she adopted the commercially rational stance of seeking no more than this. His Honour recognised the wisdom of her approach and was satisfied that “the only order that could possibly do justice and equity between the parties” was that the wife receive the entirety of the net tangible assets [161].
The husband contends that he should have received $201,807 being the proceeds of sale of a property at Suburb F and a further $200,000 from the wife [21].
The husband’s case at trial and on appeal is predicated on facts which were not established, or facts contrary to those as found.
The primary judge was understandably critical of the husband’s failure to give full and frank disclosure and made damning findings in relation to his testimony. His Honour’s analysis of a statement from H Shares at [50]–[53] reveals there can be no doubt that the adverse findings and criticisms of the parlous state of his documentary evidence were justified. This is but one example of many where his evidence was plainly unsatisfactory. For the husband to succeed in demonstrating error in relation to the $764,027 and, for example, that contrary to the husband’s evidence that he could not work, the husband was probably working [153], he needed to demonstrate that the findings concerning his selective and inadequate disclosure and the reliability of his evidence were not available. It is easy to understand why he made no serious attempt to challenge the approach taken to his evidence or his Honour’s decision to prefer the wife’s evidence where it conflicted with his. Against this background, the scope for appellate intervention narrowed and for the reasons which follow, the appeal will be dismissed.
In accordance with s 94AAA(3) of the Act, the Chief Justice directed that the appeal be determined by a single judge.

Background

So as to provide context to the appeal, a brief factual background is required.
The husband was born in 1972 and, at the time of trial, was 47 years of age.
The wife was born in 1976 and, at the time of trial, was 44 years of age.
In 2000 the husband purchased E Street, Suburb F (“the Suburb F property”) in his sole name. There was no evidence of its purchase price or how the purchase was funded.
The parties met online in 2003.
At some stage, the husband borrowed $400,000 from his mother. The loan agreement post-dated the purchase of the Suburb F property and was secured by a mortgage and caveat lodged against that property on 1 November 2007.
On 18 July 2006, the husband entered into a mortgage in the amount of $920,000 which was secured against Suburb F. It was not clear whether this refinanced another mortgage but, irrespective, the primary judge was satisfied that by July 2006, Suburb F was encumbered to at least $1.32 million [39].
The parties commenced cohabitation in November 2006 and for the next few months they lived with the husband’s parents. His Honour proceeded on the basis that when the parties commenced living together, there was no equity in the Suburb F property [46]. Initial contributions were thus roughly equal [56].
The parties were employed and, to a considerable degree, they maintained separate finances. For example, between March 2007 and January 2010 the wife paid the parties’ rent for a property they lived in at Suburb V. The husband made a handful of rent payments as well. During this period, the Suburb F property was rented for $900 per week with the rental income applied to the mortgage. Notwithstanding the mortgage payments, the balance due under the mortgage increased [58].
In September 2009 the parties purchased a property at A Street, Town B in the wife’s sole name. A Street, Town B Property was purchased for $399,950 using largely borrowed money following which it was rented out and the rental income was used for its outgoings.
The parties moved into the Suburb F property in early 2010 and later in 2010, their son was born. The wife took a year of maternity leave of which 36 weeks were paid leave.
In addition to his work as an employee, the husband owned a business which sold household equipment. At his behest, in early 2011, the wife acquired the business. For the next 18 months, she managed the business as well as working part time. Thereafter, the husband resumed operation of the business which he ran with the assistance of an employee. Between September 2011 and February 2015, the business paid $102,000 in loan payments (interest not capital) to the husband’s mother [105].
In 2012, the husband established a company which sold kitchen equipment online.
The Suburb F property was listed for sale in 2013, which saw the husband enter into an option agreement with a third party that entitled the third party to purchase the property by mid-2014 for $1.5 million. In accordance with the option agreement, the husband was paid $250,000 by cheque and $300,000 (possibly $200,000) in cash [41]. It is uncontroversial that the $250,000 was paid into the larger mortgage secured against the Suburb F property. The husband’s use of the cash payment was controversial and, to some extent, it forms part of the $764,027 mentioned earlier.
The parties separated in November 2014 and the wife, together with the child, vacated the Suburb F property.
Without informing the wife, the husband listed the Suburb F property for sale by auction which sold pre-auction for $2.36 million. Prior to settlement of the sale, the other party to the option agreement lodged a caveat against the Suburb F property. The husband commenced proceedings to have the caveat withdrawn. Those proceedings settled on the basis that the husband would pay the third party $250,000 on settlement of the sale of the Suburb F property and costs.
With the parties unable to agree on the disposition of the proceeds of sale of the Suburb F property, in July 2015 the wife commenced proceedings for property settlement and to preserve the proceeds of sale. Interim orders were made on 20 July 2015 and 29 July 2015, which ensured the payment of selling costs, mortgages, certain of the husband’s debts, distributed some funds to him and preserved the balance.
It is uncontroversial that from the proceeds of sale of the Suburb F property, payments were made including:
·approximately $11,000 in council rates and other costs accrued against the property;
·$939,692.25 to fully repay the mortgage;
·$406,400 to fully repay the mortgage to the husband’s mother;
·$104,800 to fully repay a loan raised by the husband from Ms K;
·$252,074 to the other party to the option agreement; and
·$22,165 for the husband’s legal fees incurred in relation to the caveat proceedings.
From the proceeds of sale from the Suburb F property, the husband personally received $359,930.56 (the deposit was released to him). By reason of the interim orders, the husband was required to:
·pay roughly $55,000 to Bank L to discharge a debt in his sole name;
·receive the sum of $200,00 for his own purposes, the characterisation of which would be determined by the trial judge; and
·place the balance of approximately $105,000 into an account in the husband’s sole name which could not be utilised without seven days’ notice to the wife’s solicitors.
As it transpired, the husband spent the $360,000 without giving the wife notice where required and did not repay Bank L. He conceded that he gambled and lost between $160,000 and $180,000 and went further into debt to the tune of an additional $53,000.
The husband then applied to have the monies held in the controlled monies account released to him. His application failed and in relation to the husband’s use of funds post separation, his Honour said:
72.At that time, just two years post-sale of Suburb F, and having also had $160,000, the husband deposed to having spent $360,000 as well as increasing his debt to $108,000 which was said to be expenditure of $468,000. Now, the husband points out that the $108,000 included the $55,000 he already had, so at its best, he is saying that he expended $360,000 and added another $53,000. So he spent $413,000 in two years, and it was particularly noted, so that there can be no doubt that the husband knew that disclosure, and how this money was to be used, even though self-represented later, was absolutely at the heart of this case. Her Honour said,
He offers no explanation in his affidavit as to how he has applied those funds despite the Court’s orders for financial disclosure and despite the Wife’s repeated requests for financial disclosure.
73.It was also noted that, at the commencement, the husband’s counsel advised the Court the husband has lost $160,000 to $180,000, perhaps more, by gambling. It is absolutely clear that the husband knew for the last three years that what happened to that $360,000 and why he increased his debt by $53,000 in a two-year period, was something he was required to give disclosure of, and he has not done it.
Ultimately, his Honour determined that each of the amounts listed below were premature distributions of property in the husband’s favour:
·the $200,000 interim payment to the husband [88];
·the additional $160,000 he received from the sale proceeds and used contrary to the interim orders [89];
·cash withdrawals of $365,000 he made between September 2013 and November 2014 and may, in part, have used gambling [99]; and
·$38,977 used gambling pre-separation of funds he transferred through electronic payments [100].
At some stage, the husband cashed in his superannuation for which he received $45,000.
The parties divorced in 2017.
The wife has re-partnered and she and the child live with her partner in rented accommodation.
The husband resides with his parents and the child is with him on weekends and an evening mid-week.
His Honour was satisfied that the wife’s contributions during cohabitation, mainly because her non-financial contributions, were greater than those of the husband, they favoured her at 55 per cent [116] and for the post separation period, an additional 2.5 per cent in her favour was warranted [121].

The husband’s application for an adjournment

On 30 October 2020, the husband filed an application to adjourn the appeal hearing listed on 4 November 2020. Assuming an adjournment, the husband proposed orders enabling him to file an Amended Notice of Appeal, Summary of Argument and List of Authorities and to withdraw the Amended Notice of Appeal and Summary of Argument filed on his behalf by his lawyers. The husband deposed to a disagreement between him and the solicitor and counsel then retained to act on his behalf. The husband was particularly unhappy that the solicitor filed the Amended Notice of Appeal and Summary of Argument drafted by counsel without giving him the opportunity to approve the documents.
The husband’s Summary of Argument was due by 14 October 2020. The Summary of Argument and proposed Amended Notice of Appeal were filed by the due date and, on 15 October 2020 the husband filed an application for an extension of time within which to file his documents. It would seem that he filed the application without reference to the solicitor or counsel and, with the application pending, on 15 October 2020 the Eastern Appeals Registry accepted an Amended Notice of Appeal and Summary of Argument filed by the solicitor. Counsel appeared for the husband on the application and an extension of time was granted unopposed. Given that the documents had been filed, the proceedings were unusual and unnecessary. In any event, counsel advised that an additional ground of appeal would be presented.
By 27 October 2020 at the latest, the husband decided to dispense with the solicitor and counsel and thus he wrote to the Court and the solicitor for the respondent advising that he sought an adjournment of the appeal and the opportunity to retain a fresh legal team. This would have been his third legal team retained for the appeal and, taking into account the proceedings at first instance, at least his fifth in the proceedings.
In response to the husband’s email, on 28 October 2020 the Appeals Registrar, Eastern Region, wrote to the husband by email in the following terms:
…
Dear Mr Goswami,
I refer to your attached email.
I confirm that the appeal remains listed for hearing on 4 November 2020 as previously advised. The Court will expect both parties to be in a position to proceed.
In the event that you seek to adjourn the hearing, you must file and serve an Application in an Appeal seeking appropriate orders together with an affidavit in support immediately. Any such application would be listed before the Honourable Justice Ryan for consideration at the hearing on 4 November 2020.
You should not, however, presume that the appeal will be adjourned.
…
The wife opposed an adjournment. Simply put, she is weary of litigation that has been on foot since mid-2015.
The husband’s approach to the appeal was similar to the approach he took to trial directions and timelines in the Court below. His Honour made carefully crafted trial directions designed to ensure a fair and efficient hearing. The husband complied with some but not all of the directions and the first part of the hearing was taken up with applications and rulings necessitated by the husband’s (also the wife’s) failure to comply with directions. Having participated in that hearing, the husband can have been in no doubt that courts strive to finish cases in the time allocated so as to minimise the trouble and expense for litigants and to avoid the inevitable costs if proceedings are adjourned. No less importantly, to ensure that finite court resources are not wasted.
The husband must have understood that it was his responsibility to prepare and present his case so that the appeal could proceed. Having fallen out with his lawyers, it was incumbent on him to retain further legal representation, if this is how he wished to proceed or, prepare to conduct the appeal himself.
Given the frequency with which the husband changed lawyers, his non‑compliance with trial directions and his cavalier approach to his obligation to give full and frank disclosure, it was distinctly possible that even if the appeal was adjourned, the husband would not have legal representation when it resumed.
It would have been terribly unfair to the wife for the appeal to be adjourned, in all probability for about six months. Notably, the husband did not propose that the wife be immediately reimbursed for her costs thrown away by an adjournment and did not identify any funds from which the Court could be satisfied an order for costs against him would be paid at all. The controlled monies account has been preserved, but given the presumption in favour of the correctness of the decision under appeal, it was not appropriate to proceed on the basis that the husband would receive that money which could be used to pay the wife’s costs. Thus, notwithstanding the factors which weighed in support of an adjournment, it was in the interests of justice that the appeal proceed.
Having refused the adjournment, the hearing was adjourned for half an hour before the husband commenced his submissions in the appeal.

The grounds of appeal

It needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499 (“House”). A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519.
It is important to remember that the reasons for judgment were given ex tempore on the next sitting day following the hearing. Appellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely it was overlooked (Akston & Boyle (2010) FLC 93-436 at [28]). Such an approach is appropriate in this appeal.

The husband presented eight grounds of appeal which assert that his Honour erred by:
·failing to properly consider the evidence (Ground 1);
·failing to accord the husband procedural fairness (Ground 2);
·denying the husband natural justice (Ground 3);
·wrongly departing from his initial case management orders (Ground 4);
·failing to consider evidence filed by the husband, and to provide adequate reasons (or reference to his approach and/or the relevant Act) in his reasons for judgment that his reasons to make his findings were just and equitable (Ground 5);
·making factual errors regarding disclosure (Ground 6);
·making errors of fact on important issues that were “very fundamental” in the outcome of this matter (Ground 7); and
·making findings inconsistent with the evidence of both parties and not open to the Court (Ground 8).
There is notable absence of particularity to these grounds and, as drafted, they are incapable of establishing House error. Although this must be a real review, it is not the Court’s task to rummage through the trial record and reasons looking for error. Rather, the expectation is that an appellant will identify with some precision the manner in which the primary judge is said to have fallen into error and the record is examined through the prism of the challenge raised against the outcome. To proceed otherwise would be unfair to the respondent and feasibly deny the Court an opportunity to receive considered argument on the point. The grounds of appeal contained in the withdrawn Amended Notice of Appeal, provide the type of particularity which is required. Having had the benefit of that document, the husband can have been in no doubt, that for his challenges to be made good, he would need to provide some specificity in his grounds of appeal.
The husband withdrew the summary of argument filed on his behalf and he did not file another. Although the husband could properly have been denied the opportunity to make submissions in the appeal other than in reply to the wife’s summary of argument, he was permitted to make oral submissions in support of his Notice of Appeal. Thus the husband made submissions in support of Grounds 4, 5 and 7. As nothing was said in support of the remaining grounds, they need not be considered further. However, it is appropriate to recall that the husband was represented by counsel at trial. Counsel did not raise concerns with his Honour about the trial process, or say anything which suggested he thought the trial was procedurally unfair or there was a want of natural justice. An examination of the trial record amply demonstrates this was a fair trial that proceeded in an entirely conventional fashion.

Case management orders

The husband complains that his Honour departed from the trial directions. This is a reference to directions made on 6 November 2019, which relevantly required that voluminous bank statements be proved using a summary identifying the documents, relevant transactions and comply with s 50 of the Evidence Act 1995 (Cth) (“Evidence Act”). By reference to Orders 3 and 7 of the same directions, those bank statements and the s 50 Evidence Act summary were to be served well in advance of the trial. Neither party complied with these directions and his Honour refused to receive the underlying documents. However, the possibility that the documents could be used in cross-examination and subsequently tendered was left open. Counsel for the wife availed himself of that opportunity.
Some two years prior to trial, at the wife’s behest, many of the husband’s bank records were produced under subpoena. Access to the documents was given long before the trial commenced. At the end of the first day of the trial and in anticipation of his cross‑examination, the husband was invited to read his bank records overnight. He was cross-examined the following day on those documents and, in particular, in relation to cash withdrawals including at gaming venues.
It is the husband’s contention that his Honour could not initially rule against admitting his bank records into evidence and then permit the same records to found cross-examination and then be admitted into evidence. His point being that the rulings were internally inconsistent and procedurally unfair. He is wrong about this and his complaint about the approach taken to his bank records is not made out.

Section 79(2)

Ground 5 contends that his Honour erred by failing to determine that it was just and equitable to make an order that there be an adjustment of property. By reference to Maine & Maine (2016) 56 Fam LR 500 (“Maine”), the husband contends that his Honour’s reasons fail to consider s 79(2) and that the absence of a consideration of the s 79(2) question is an error or law. Maine is readily distinguished from this case. In Maine, some four years after separation, the parties reached an informal agreement in relation to the settlement of property and the husband’s application for property settlement, was filed some six years later. Unlike this case, in Maine, it was an element of the wife’s case that s 79(2) was engaged such as to render it unjust and inequitable to make any s 79 order. In other words, that the circumstances of the case did not admit the “ready satisfaction” of the s 79(2) requirement referred to in Stanford v Stanford (2012) 247 CLR 108 at 42.
In relation to this issue, factually this case is on all fours with Hearne & Hearne (2015) 53 Fam LR 454 (“Hearne”). In Hearne, Strickland J said (Ryan and Austin JJ agreeing on the point):
80.First, it was not the husband’s case before the trial judge that it was not just and equitable to alter property interests. Indeed, as identified above, the husband, as much as the wife, was seeking from his Honour an order for property settlement altering the interests of the parties. Thus, can this point be raised on appeal?
81.It is beyond doubt that a party is generally bound on appeal by the case argued below (Metwally v University of Wollongong (No. 2) (1985) 60 ALR 68), with the exception being if the point agitated on appeal is a pure question of law (Waterboard v Moustakas (1988) 180 CLR 491 at 497). It can be argued that the issue raised here is a question of law, but as the authorities also recognise, where that question is one that, if it had been raised below further relevant evidence might have been tendered for example, or more specifically, if it is a matter that is one peculiarly for the trial judge, and the trial judge should have been given the opportunity to address it as part of the husband’s case, then it will still be too late to raise on appeal (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418). For example, in Metwally, the appellant’s counsel was prevented from arguing on appeal that the Racial Discrimination Act 1975 was unconstitutional, where his argument at first instance had proceeded upon the premise that the Act was valid. That of course has striking similarities to the argument in this case.
82.Secondly, I consider that to seek to raise this issue is an abuse of process. As already identified, it was not the husband’s case at trial that it was not just and equitable for the trial judge to make an order altering the property interests of the parties, and if the appeal is successful, and the property settlement proceedings are remitted to the Federal Circuit Court of Australia for rehearing, the husband does not intend to argue before the new trial judge that it is not just and equitable for that trial judge to make an order altering the property interests of the parties; indeed, the husband will seek that such an order be made...
Although in the Notice of Appeal the husband seeks that this Court re‑exercise his Honour’s discretion, he clarified that he in fact seeks that the proceedings be remitted for re-hearing by a judge other than the primary judge. Wherever the proceeding is determined, the husband pursues an order for the adjustment of property and thus maintains that s 79(2) is satisfied. Whether it be a re‑hearing by this Court or a remitted hearing, the same outcome pertains. Namely, that when the principles in Hearne are applied to this appeal, for the same reasons discussed in that case, this challenge cannot succeed.

Asset-by-asset approach

The husband contends that his Honour erred by failing to apply an asset-by-asset approach to the evaluation of contributions. Without an articulation of the consequences of the asserted error, this challenge could not establish error in the House sense. It seemed to me that the underlying complaint might be that his Honour erred by failing to treat the proceeds of sale of the Suburb F property as a contribution made solely by the husband. However, these challenges were raised in the Amended Notice of Appeal and the husband’s summary of argument which were then withdrawn. If the husband wished to agitate those points, fairness to the wife demanded he say so. He did not and the challenge plainly focussed on his Honour’s methodology.
For the avoidance of doubt, his Honour did not overlook the fact that the husband owned the Suburb F property when the parties commenced cohabitation and he rejected the husband’s contention that he alone contributed the funds received from its sale. As his Honour explained at [47], the husband brought in a heavily encumbered property which:
The parties could have decided to sell it but they decided instead to keep it, as a joint decision, and to work on an asset that was then worth nothing to see if they could make it worth something.
Greater weight was thus given to the maintenance and preservation of the property than was given to the husband’s ownership when the parties commenced cohabitation and took into account the myriad of other contributions made throughout the course of the relationship. In this respect his Honour’s exercise of discretion is consistent with the approach adopted in Jabour & Jabour (2019) FLC 93-893 and in and of itself does not demonstrate error.
In advancing his argument in favour of an asset by asset approach, the husband highlighted evidence where the parties deposed to them keeping separate finances. He sidestepped evidence of where they intermingled their finances and the wife’s financial contributions which benefitted him, for example, paying rent and day to day living expenses.
In deciding whether to adopt a global or asset by asset approach to the assessment of contributions, his Honour said:
106.The loan repayments during the 12-18 month period when she was operating the business were the direct result of her personal exertion labour, because she was not paid, and the money went to pay the Suburb F loan. Nevertheless, the husband seeks to argue that the fact that the Suburb F property was legally in his name, it is relevant that this business was legally her business. Legally, all of those contributions were her contributions to the mortgage.
107.The argument that these properties were kept entirely separate, and the husband paid for them, is a fanciful nonsense. The parties’ purchased the property at A Street, Town B Property in the wife’s name, and the husband provided some payments to her in the period prior to the purchase. Although, she says these repayments were return for payments she had given to him, the wife does not argue that A Street, Town B Property was her sole contribution, or that it is other than a matrimonial asset, as with the Suburb F property.
108.The question of trying to track back payments as between the parties in that regard is irrelevant here as the one wife says A Street, Town B Property is a joint matrimonial asset and one looks to their incomes and the intermingling.
109.The husband’s argument was that their finances were kept separate in terms of intermingling. The wife says, noting her evidence of him keeping his taking of cash and other issues secret, that she used her credit card to buy tens of thousands of dollars of computer equipment for a business her husband did not own, but worked for, and he would then repay her, and she got the benefit of the frequent flyer points. That is a benefit she got, one amongst a myriad of contributions the parties made to each other, but again, it makes it fanciful to suggest that their finances were separate, and there was other evidence about transactions moving tens of thousands of dollars back and forth between them.
His Honour continued:
119.There are certainly cases where an asset‑by‑asset approach would be appropriate or required. If the husband had brought the Suburb F property to the relationship with equity in it and/or if the husband had solely paid the mortgage it may have been appropriate to deal with it that way. Although, even then, the cross-subsidisation by the wife of his rent would probably have made it inappropriate. The reality is the facts of this case just do not bring it within the kind of case where the Suburb F property should be dealt with on an asset-by-asset basis. I find that all of the assets of the parties in that respect were joint assets.
The underlying facts were not challenged, in consequence of which, the conclusion that the parties intermingled their finances was available as were findings about how they both contributed to the retention of the Suburb F property. This is sufficient to reject the ground of appeal.
However, it is appropriate to acknowledge that in Norbis v Norbis (1986) 161 CLR 513 (“Norbis”) the High Court explained that either a global approach or asset-by-asset approach is legitimate, and in some cases either approach may be adopted in part or in whole. An examination of the reported cases reveals the global approach is more generally adopted. The rationale for its predominance is identified in Norbis at [16]:
Although it is natural to assess financial contributions under s 79(4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties’ property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, ie on a global or, alternatively, on an “asset-by-asset” basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court. In saying this we are not to be understood as denying the legitimacy of the trial Judge’s ascertainment in the first instance of the financial contributions of the parties by reference to particular assets. It is difficult to conceive how the trial Judge in many cases could otherwise take account of such contributions as he is required to by s 79(4)(a) of the Act. In this respect we agree with the comment of Nygh J in G v G that, although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party’s contribution to them.
As has already been mentioned, his Honour appropriately acknowledged the wife’s non-financial contributions and in this regard, the rationale for the approach adopted is consistent with the discussion in Norbis above.
His Honour explained why the capital growth to Suburb F, as reflected in the net proceeds of its sale, should be treated as the parties’ joint contribution. This was their home, both parties paid expenses in relation to it, the wife paid others, and she thus enabled the rental income earned from Suburb F to be applied to its mortgage. Furthermore, the husband’s submission that his Honour gave the wife credit for $102,000 paid to the husband’s mother pursuant to a mortgage misstates the findings. The $102,000 is the total amount paid between September 2011 and February 2015 from income earned from G Business [105]. Of this larger sum, the wife was assessed as having contributed the amount paid during the 12-18 months that she ran the business [106].
This ground has not been made out.

Conclusion and costs

The husband has failed to establish any grounds of appeal and, the appeal will be dismissed. In these circumstances, the wife sought that the husband pay her costs in the amount of $27,860.95. However, this sum included costs unrelated to the appeal and additional items which cannot be justified. Having regard to the work undertaken for the appeal, the respondent’s costs could not reasonably exceed $18,000.
Given the husband’s total lack of success, the wife has incurred legal expenses unnecessarily. The husband, who has taken legal advice in relation to the appeal can have been in no doubt, that if he was unsuccessful, there was a real possibility he would be required to pay the wife’s costs. He chose to run that risk and, even if it occasions him a degree of financial discomfort, it is appropriate that the wife have her costs in the identified amount.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 November 2020.

Associate:

Date: 19 November 2020