GOULD & GOULD - [2010] FamCAFC 197

FAMILY COURT OF AUSTRALIA

GOULD & GOULD

[2010] FamCAFC 197

FAMILY LAW - APPEAL - PROPERTY SETTLEMENT - Adequacy of reasons - Contributions - Whether trial Judge gave adequate reasons for concluding contributions during the relationship were equal

FAMILY LAW - DISCRETION - Contributions - Section 75(2) adjustment - Whether trial Judge properly considered post separation contributions - Where the trial Judge recognised the husband had solely contributed to the farming property since separation - Whether the trial Judge had erred in making an adjustment in the wife's favour based on the husband's "use and control" of the parties' assets over five years post separation - Whether the trial Judge had "double counted" when taking this into account in considering contributions and the section 75(2) adjustment - Where the trial Judge had not ultimately taken this factor into account when assessing contributions - The outcome would have been the same regardless of where the trial Judge had considered this factor

FAMILY LAW - JUST AND EQUITABLE - Whether the trial Judge properly considered the effect of the orders on the husband's earning capacity - Whether the trial Judge properly considered the husband's desire to remain a farmer - Where the husband had retained the farm and his needs were basic

FAMILY LAW - COSTS - Order for lump sum costs to be paid - Whether the trial Judge had adequate evidence on which to determine the quantum of costs - Trial Judge had sufficient information

FAMILY LAW - COSTS - Of first trial - Where the trial judge had taken into account the costs of the first trial - Where the Full Court in ordering a retrial had not fettered the trial Judge's discretion to determine the costs of the entire proceedings - Costs of the first trial were properly taken into account

FAMILY LAW - COSTS - Of previous appeal - Where the trial Judge had taken into account the costs of the previous appeal - Costs issues associated with an appeal are for the Full Court to determine - The trial Judge did not have jurisdiction to make a costs order in relation to the previous appeal - Appeal allowed in part - Quantum of costs redetermined

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Bennett and Bennett (1991) FLC 92-191
Braithwaite & Braithwaite [2007] FamCA 468
Brookvista Pty Ltd v Meloni [2009] WASCA 180
House v The King (1936) 55 CLR 499
Gronow v Gronow(1979) 144 CLR 513
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
White and Tulloch v White (1995) FLC 92-640

APPELLANT:

Mr Gould

RESPONDENT:

Ms Gould

FILE NUMBER:

PTW

4767

2002

APPEAL NUMBER:

2008

DATE DELIVERED:

8 October 2010

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Boland, Thackray & Crisford JJ

HEARING DATE:

22 March 2010

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

18 July 2008; 7 November 2008

LOWER COURT MNC:

[2008] FCWA 87; [2008] FCWA 135

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr M Rynne

SOLICITOR FOR THE APPELLANT:

Haynes Robinson

COUNSEL FOR THE RESPONDENT:

Ms P Giles

SOLICITOR FOR THE RESPONDENT:

Lewis Blyth & Hooper

Orders

The appeal against the orders made by the Honourable Justice Martin on 7 November 2008 be allowed in part.
Order 5 of the said orders be varied by deleting “$45,000” and substituting in lieu “$40,500”.
The husband pay 75% of the wife’s costs of the appeal, to be assessed if not agreed.

IT IS NOTED that publication of this judgment under the pseudonym Gould & Gould 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 31 of 2008
File Number: PTW 4767 of 2002

Mr Gould

Appellant

And

Ms Gould

Respondent

REASONS FOR JUDGMENT

This is an appeal against orders made by Martin J on 7 November 2008 in property settlement proceedings between the appellant husband and the respondent wife.
The trial Judge decided that the assets, which she found to be worth $2.45 million, should be divided 58 per cent to the husband and 42 per cent to the wife. The asset pool included inherited properties worth $355,000 retained by the husband to which the wife made no claim. Her Honour also ordered the husband to pay the wife $45,000 in costs.
The appeal challenges her Honour’s assessment of contributions; the s 75(2) adjustment; the way in which the assets were distributed; and the costs order.

Brief background

The facts as found by her Honour are now not controversial.
At the time of trial the husband was a 64 year old farmer. The wife was 66 years old and was working as an administrative officer.
The parties married in 1973 and were divorced in 2006. There were two children of the marriage, both now independent.
Although there was dispute concerning the date of separation, her Honour found “there were enough elements of a marriage present that the parties should not be regarded as separating until 2001”, which is when the wife moved to Perth.
Prior to separation, the husband and wife lived on a farm known as “[the farm]”. Portion of the farm was acquired by the husband and his brother in 1970 at a cost of $59,000. The husband’s father provided the $24,000 deposit and the balance was borrowed. The land was subdivided in 1978 and the husband ended up with 701 acres.
After the farm was subdivided, the husband acquired the adjoining property (“Location [A]”) at a cost of $26,000. He borrowed $31,000 to finance the acquisition. The liability was secured on the farm and Location A.
In 1975 the husband purchased a property at C at a cost of $60,000. The entire purchase price was borrowed. The husband and wife lived on the property in “basic” conditions during the shearing season.
The loans relating to the properties were all discharged during the marriage.
In 1988 the husband received $30,000 by way of compensation after his application for permission to clear the C land was refused.
In 1997 the husband inherited two other properties adjoining the farm, but only after a “legal battle” lasting more than two years. He also inherited $80,000.
In 1998 the wife inherited $21,000.
In 1999 the husband entered into profit a prendre agreements authorising a plantation company to grow trees on portion of the C land. The agreements involved the husband receiving annual payments of approximately $55,000 to $60,000 (“the plantation income”).
In May 2001 the wife left the farm and moved to the city. In August 2002 she commenced proceedings for spousal maintenance and property settlement.
In October 2002 a consent order was made for the husband to pay spousal maintenance of $600 a fortnight. The husband paid a total of $5,850 but then ceased making payments in June 2003.
In January 2004 an injunction was granted restraining the husband from receiving the plantation income. The money was instead to be deposited in an interest bearing account. The husband failed to comply and the wife sought be “credited” with $12,178, described as “lost interest”.
The matter first proceeded to trial in early 2006. Tolcon J decided that the assets, other than the two inherited properties, should be divided equally. There was no adjustment for s 75(2) factors. His Honour declined to order payment of arrears of maintenance, which the wife said amounted to $33,750. He elected instead to take the arrears into account when determining the substantive property settlement.
The husband successfully appealed against the orders and a new trial was ordered. Martin J conducted the retrial in January 2008 and published her reasons in July 2008. Her Honour required further submissions on a number of issues, including costs. The orders the subject of this appeal were finally made on 7 November 2008.
We propose to first refer to the trial Judge’s reasons in respect of the property adjustment and then consider the challenges to the property order. We will then refer to her Honour’s separate reasons in respect of the costs order and the challenge to that order

Reasons of the trial Judge – property settlement

The trial Judge recorded that the wife was seeking an equal division, apart from the two properties the husband had inherited. Amongst the assets the wife wished to receive were the husband’s interest in the C property and his share of the plantation income. In addition, the wife sought $50,000 by way of lump sum spousal maintenance/arrears of maintenance.
Her Honour recorded that the husband proposed that the wife receive 60 per cent of the C property, 60 per cent of the plantation income and a lump sum of $100,000 (as well as some other assets). Her Honour noted that the husband estimated that such an outcome would give the wife 40 per cent of the assets (if the two inherited properties were included in the pool).
The trial Judge then set out the background facts, some of which we have referred to above. She then made her findings concerning the composition and value of the asset pool. In the absence of challenge it is unnecessary to discuss her Honour’s findings, other than to note that she added into the pool:
·    the $12,178 in “lost interest”, for which the husband was “held responsible”;
·    $82,176 legal fees paid by the husband; and
·    $99,036 legal fees paid by the wife.
The trial Judge found the pool to be worth $2,100,034 net, excluding the two inherited properties worth $355,000. Set out below in an abbreviated form is the table of assets and liabilities as found by her Honour.

Description	Husband $	Wife $
The Farm	805,000
Location A	275,000
The C property	605,000
Savings	260,521
Legal fees paid added back	82,176	99,036
“Lost interest” added back	12,178
Plantation profits for 2007	67,912
Sundry other assets	119,258	81,800
Subtotal	1,898,612	509,269
Liabilities	(291,124)	(16,723)
Net Assets	1,607,488	492,546

The next part of the trial Judge’s reasons was set out under the heading “Contributions – s 79(4)(a), (b) and (c) of the Family Law Act 1975”. Her Honour commenced this part by reciting the subparagraphs of the legislation mentioned in the heading, all of which relate to contributions to the property. (The importance of the heading, which omitted any reference to s 79(4)(e), will become apparent when we discuss the grounds of appeal.)
Her Honour recorded it was not in dispute that at the commencement of the marriage the husband “had some equity in the [farm] property with a run down house on it, some sheep and a motor vehicle under hire purchase”. She also recorded that the wife accepted that the husband had largely cleared the property by the time of the marriage.
The trial Judge noted that the wife maintained that the equity in the farm at the time of marriage was “approximately $12,000 to $16,000, being the amount of the deposit advanced on behalf of the husband by his father about a year before the parties became engaged”. The husband’s position was noted as being that he had contributed $24,000 “as he, in effect, subsequently received the benefit of his brother’s initial equity”. Her Honour ultimately found that the value of the husband’s equity was $12,000. There was no challenge to that finding.
The wife’s initial contribution to the marriage was recorded as being “a motor vehicle, some savings, personal effects and household utensils and items”. The savings were used by the wife to purchase items for the home.
Her Honour found that the husband worked hard on the properties during the marriage. She found that the wife assisted him when required, although her assistance “reduced over time, particularly when she started work”. The wife was the primary homemaker and was “almost entirely responsible for the care of the children”, although the husband did help with transport. The husband did the paperwork and banking, and controlled the finances. He also did some work off the farm. The wife assisted with a “mail run” early in the marriage.
The wife was initially employed as a secretary and then, in 1977, commenced part time cleaning work off the farm. From 1985 she was employed on a “substantial part‑time basis” and then, from 1996, on a full‑time basis. Her Honour found that until the wife began earning an income “the family lived frugally and there was no money for extras”. The wife made most of the children’s clothing and the soft furnishings. After the wife commenced work the husband gave her $90 per week housekeeping, which had not increased by the time she left the home in 2001.
Her Honour next referred to the inheritances received by the husband following the death of his mother in 1994 and by the wife following the death of her mother in 1998. She found that the two parcels of land the husband received were each worth $80,000 when they were inherited, but she was unable to make a finding concerning the funding of the “legal battle” in which the husband engaged over the estate. The $80,000 cash which the husband also inherited was used to reduce debt. The $21,000 the wife inherited was also used to reduce debt and meet expenses. There was $6,000 left over, which the wife invested and then used to support herself after separation (along with her modest superannuation of $11,458).
Prior to the marriage the parties had prepared the “run down” house on the farm in readiness for occupation. During the marriage the home was renovated, enlarged and improved using borrowed funds.
Having referred to the acquisition of the C land and Location A, her Honour concluded this part of her reasons with findings that are of such importance to this appeal that we propose to set them out in full.
87After separation, the husband had the use and control of almost all the assets of the parties, receiving [tree] plantation payments from 2001. The payments [from the plantation] for 2004 and 2005 were eventually distributed to the wife. The payment for 2007 pursuant to orders of Justice Tolcon, was distributed as to $39,168 to the wife and $25,459 to the husband.
88The husband also received the income generated from stock run on the farming property, including the sale of lambs, and of wool shorn from the parties’ flock of sheep. The income from the farming operations had been quite modest. However, he has run the property without assistance from the wife since 2001.
89The wife has incurred debts and used savings and cashed-in superannuation to rehouse herself and meet her living expenses, but she has had to pay significant legal fees. She still remains living in rental property, and has saved much of the balance of the funds she has received, pending finalisation of the case.
The trial Judge completed her treatment of the contribution issues under a new heading, “Conclusion – contributions”. Given the challenge made to her Honour’s reasons it is also important we set out those paragraphs in full.
90The wife’s position was that, although the husband had some equity in the properties at the outset, having regard to the length of the marriage, if the land inherited by the husband is excluded from consideration, then contributions to the reduced pool should be seen as at least equal.
91The husband’s position is that he brought the [farm] property into the marriage, and it was the springboard from which the adjoining Lot [A] was purchased. Not only was he the person primarily responsible for working on conserving and improving the farming property during cohabitation, and the only party responsible for this since separation, he was also responsible for the parties’ entering into the profit a prendre deal. As well as the properties inherited from his mother, he had also contributed $80,000 in cash from her estate, which was used to meet debts.
92I accept that during the relationship, both parties have worked hard, and the parties’ contributions should be regarded as being equal, if the inherited properties are excluded. The wife’s income eased the parties’ financial situation considerably. However, it is the case that the husband’s original equity in the farming property of $12,000 (a significant sum in the early 1970’s) was the springboard from which the parties’ main assets grew. The husband received an additional contribution from his mother’s estate of $80,000, but the wife also received $21,000.
93I accept the husband should be given some credit for this, and that, even excluding the two inherited properties from the pool, he should be regarded as, overall, having contributed 55%, and the wife, 45%.
The trial Judge turned next to the s 75(2) factors. The husband’s position was there should be no adjustment for those factors. The wife’s position was that if contributions were assessed as being equal (excluding the inherited properties) and if the husband was ordered to pay lump sum maintenance, there would probably be no need for any adjustment. However, if she was not successful in achieving these outcomes, the wife sought an adjustment in her favour because of her need for rehousing and a reasonable lifestyle in retirement.
Having recorded the parties’ ages, the trial Judge noted that whilst the husband and wife both had “some health problems”, there was no evidence these had any impact on their life expectancy. Her Honour noted that the wife had estimated her earning capacity was about $30,000 per annum and that whilst she had become eligible for a pension in December 2006, and would have liked to retire, she had kept working, as she needed the income. The wife’s intention was to stop work during 2008.
The trial Judge recorded that the husband was still farming and claimed he was earning $294 per week (in addition to the plantation income). Her Honour also observed that whilst the taxable income from the farm was “very modest”, there were “many tax advantages from the farming operation”. The husband would become eligible for a pension in 2009. Like the wife, he had only “modest superannuation”.
Her Honour found the parties had had “a fairly difficult life and both had worked hard” and were entitled to a reasonable standard of living. Neither had any commitments to support any other person. The wife estimated her weekly expenses were about the same as her income and the husband said his expenses were about $400 per week.
The trial Judge then noted (at paragraph 100) that “the wife’s position is that it is the husband’s actions that have caused unnecessary costs and delay at a time when he retained the bulk of the parties’ assets”.
Having recorded she would not make orders for lump sum maintenance or for the discharge of arrears (partly because the wife earned enough to support herself during much of the relevant time), the trial Judge went on to say:
104… it is relevant the husband retained almost all the parties’ assets for five years after separation, and I consider this an appropriate issue to take into account pursuant to s 75(2)(o) of the Act.
The trial Judge then found “it is just and equitable for there to be a modest adjustment for s 75(2) factors in the wife’s favour, but not quite to the extent that the parties’ assets, less the inherited property, be divided equally between them”. Instead, her Honour determined there should be a distribution of assets 50.9 per cent to the husband and 49.1 per cent to the wife (excluding the inherited land). This meant, of course, that there had been a s 75(2) adjustment of 4.1 per cent.
Her Honour had already informed the parties (a few days before the reasons were published) that the wife would be keeping the C land and the associated plantation income. It was in these circumstances she went on to observe that while the wife could retain a substantial income if she chose, this “would be at the expense of having some of her possible capital available for rehousing or other purposes”. On the other hand, she said the husband would “not have the income from the plantation, but will retain substantial assets, and sufficient earning capacity to manage”.

The trial Judge then carried out a “cross check” by noting that her orders would result in a division by which the husband would receive about 58 per cent of the pool, including the inherited properties.
Her Honour concluded this part of her reasons by noting that she reserved the right to make some “slight adjustments to the amounts, and the percentages” arising out of matters which were to be the subject of further submissions. She said, “[a]t this stage, I would consider the best case for the wife, for example, is 49%, and the worst, 47.5% of the non inheritance assets”. (In supplementary reasons to which we will later refer, the trial Judge found on an adjusted pool of assets including the inherited properties, the husband would receive 58 per cent of the entire pool, including the inherited properties, and the wife would receive 42 per cent.)
The trial Judge then embarked on what she described as “the fourth step”. Although her Honour did not make clear what this step involved, it is well understood that it is the stage of the process at which the court determines whether or not the proposed orders are “just and equitable”.
In considering the fourth step, her Honour again noted what each party had sought. She observed that the husband’s proposal to keep 60 per cent of the C property and the associated contracts would involve him having to service a loan in circumstances where that property could not be sold until 2011.
The trial Judge noted the wife was keen to finalise the financial relationship, which her Honour considered to be “appropriate, having regard to the very poor relationship between them, and the long drawn out proceedings”. She also noted that the wife should be able to realise significant funds and purchase a property if she wished, albeit it would be “reasonably modest in today’s market”. On the other hand, she noted that the husband “wished to continue his farming operations for as long as possible”.
The trial Judge noted that on the division proposed, the husband had the option of using the funds payable by the wife (less any costs ordered) to meet debt and his living expenses. Her Honour observed that the husband would retain four lots of land and could, for example, sell the inherited lots, discharge all his debts and still have funds left to enable him to continue to run the home farm. She also found that the husband would have “very modest living expenses” if he remained living on the farm and was not involved in litigation.
Her Honour then set out in tabular form the manner in which the assets would be distributed pursuant to the orders proposed. The table showed that the wife was required to pay the husband $69,872 to bring about the division.

Grounds of Appeal – property settlement

In their amended form, the Grounds dealing with the property adjustment read as follows [grammatical and typographical errors are in the original]:
1.In assessing the parties’ contributions to property for the purposes of section 79(4)(a), (b) and (c) of the Family Law Act, the learned Trial Judge manifestly erred in the exercise of discretion by:
a.Failing to give adequate reasons for conclusions that during the relationship the parties contributions were equal;
b.Failed to take into account a relevant matter namely the fact that the husband’s “use and control” of the parties assets post separation included significantly reducing the parties’ farm debt and accumulating savings and that it was the husband who solely made the contributions to the farming property.
2. The Trial Judge:
a.erred in law and/or the exercise of her discretion in assessing the parties respective section 75(2) factors by justifying an adjustment in favour of the wife pursuant to section 75(2)(o) on the basis that the husband retained almost all the parties’ assets for five years after separation [Reasons for Judgment para 104]; or alternatively
b.Failed to provide adequate reasons for a section 75(2) adjustment in favour of the wife; and/or
c.Failed to take into account hat the wife as well as the husband had enjoyed the benefit of the income produced from a tree plantation.
3.The learned Trial Judge erred in the exercise of her discretion at the fourth step by:
a.Failing to take into account a relevant matter namely that the farming property to be retained by the husband was “of marginal economic size”; and
b.As a result thereof erred in considering the effect of the proposed order in relation to section 79(4)(d); and/or
c.Failed to give adequate reasons for altering the property interests as was done.

Appellate principles

It will be observed that the appeal against the property orders was mounted on two fronts – error in the exercise of discretion and inadequacy of reasons. The principles relating to such complaints are well established.
The principles enunciated by the High Court in House v The King (1936) 55 CLR at 504-5 concerning the restraint required in dealing with complaints about the exercise of judicial discretion are so well known as not to require restatement. Those principles were emphasised in Gronow v Gronow(1979) 144 CLR 513 at 519 where Stephen J said:
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.
The principles relating to the adequacy of reasons also require little discussion. The appellate court must be able “to discern either expressly or by implication the path by which the result has been reached”: Bennett and Bennett (1991) FLC 92-191 at 78,267.

Ground 1 – contributions

The first complaint in Ground 1 is that the trial Judge failed to give adequate reasons for concluding that contributions during “the relationship” were equal.
Although not immediately apparent from reading the ground, the gravamen of the complaint was that the trial Judge did not deal with the contributions in the period between separation in 2001 and trial in 2008.
Given the way the ground was argued, it is important to recall precisely what her Honour said in paragraph 92 of her reasons, namely:
I accept that during the relationship, both parties have worked hard, and the parties’ contributions should be regarded as being equal, if the inherited properties are excluded.
Counsel for the husband submitted that the finding that contributions were equal related only to the period from the date of marriage to the separation in 2001. In support of this proposition he observed that nowhere in her reasons did the trial Judge define what she meant by “the relationship”; however, he took us to comments her Honour made during submissions which suggested she regarded “the relationship” as concluding in 2001. It was submitted that if this was the period her Honour had in mind when finding that contributions were equal, then she failed to deal with the seven years after separation, which was such a long time that it warranted being addressed.
When read in context, we consider her Honour was saying that both parties had worked hard during the relationship and that their contributions overall should be regarded as being equal (so long as the inherited assets were excluded). That sense would have been better conveyed had the first comma in paragraph 92 been deleted. Indeed, the sentence as it appears is grammatically incorrect, unless the first comma is removed.
Properly construed, paragraph 92 represents the trial Judge’s summing up of all of the contributions she had described. Putting aside the inherited land, her Honour can be seen as finding that all contributions, both before and after separation, were equal, save for the inequality in initial contributions and the cash inheritances. It was this inequality which led to the finding that there was a 10 per cent disparity in contributions. This represented a weighting in favour of the husband of $210,000 (in addition to him keeping the inherited land worth $355,000).
Read in the fashion we have described, we are satisfied her Honour provided adequate reasons for the finding of equality of contributions made in paragraph 92. She had set out in paragraphs 70 to 86 the contributions made up to the time of separation in 2001 and then, in paragraphs 87 to 89, she set out the contributions made after separation. Subject to the error alleged in the second limb of Ground 1, those findings support the finding of equality, subject to the 10 per cent disparity which reflected the disparity in initial contributions and the value of the cash inheritances.
The second complaint in Ground 1 is that the trial Judge, while taking into account that the husband had the “use and control” of assets after separation, failed to take into account that during that period he had also significantly reduced the farm debt; accumulated savings; and solely made the contributions to the farm.
In his written outline of argument, counsel for the husband noted that her Honour’s reasons made no reference to the husband’s evidence that he had used the income from the farm after separation to discharge pre‑separation debts of $70,000 and to increase savings to $41,000. In these circumstances it was submitted that the reasons were inadequate in that it was “not known the extent to which the husband’s contributions have been assessed both in the pre and post separation phase”. In particular it was submitted that the trial Judge had “failed to give adequate or arguably any weight to the fact that for the 7 years since separation the husband had solely physically contributed to the farm, reduced debt and accumulated savings”.
In his oral submissions, counsel for the husband described these arguments as the “nub” of the appeal. It was claimed that not only had the husband not received any credit for these post-separation contributions, but that he had also been penalised in the s 75(2) adjustment for having had the use of the assets which he had used to reduce debt and increase savings.
When counsel was asked to direct us to the evidence of the husband deposing to the contributions he had made following separation we were taken to the following portion of the husband’s affidavit (Appeal Book 417):
70.I have steadily kept working the farm. Due to my efforts and applying the annual plantation funds (which stopped being paid to me after 2003), I paid out the $70,000 ANZ Bank mortgage and saved around $41,000 in an ANZ Bank term deposit.
71.As stated above, I have not received any of the plantation funds since 2003 but I have continued to operate the farm and until I had to pay money to my wife in 2006 I did not obtain another mortgage. Debts have accrued and plant and equipment has run down.
Counsel for the wife submitted that this aspect of the appeal proceeded on a false premise, namely that farm debt had been significantly reduced and that the husband had accumulated savings after separation. It was submitted that the farm debt had, in fact, increased and that the husband had not accumulated any savings at all. Counsel for the wife supported this submission by detailed reference to the material in the Appeal Books (see paras 15 to 22 of her written outline of argument).
In his oral submissions in reply, counsel for the husband said:
It’s not contended, your Honours, that by the time of trial that [the husband] had reduced liabilities and accumulated savings. It’s contended that those two issues referred to in the submissions were but steps in the chain of reasoning necessary to properly analyse the seven years since [separation] leading up to trial. The grievance or the complaint of the appellant is the analysis of what actually occurred after 2001 didn’t take place and had it taken place, he contends that ultimately he would have received or should have received an additional percentage …
In other words, counsel abandoned the basic premise of the second limb of Ground 1, namely that the husband had reduced liabilities and accumulated savings after separation. Instead, the complaint boiled down to reliance on the assertion that the trial Judge had not recognised it “was the husband who solely made the contributions to the farming property” after separation.
There is no substance in that remnant of the complaint. The trial Judge clearly recognised (at paragraph 88) that the husband had “run the property without assistance from the wife since 2001”. Balanced against this were the contributions the wife had made in the post-separation period, which her Honour had recorded at paragraph 89. This recognition of the wife’s contributions also needs to be read in the context of the findings at paragraphs 27 and 29 concerning the wife’s employment history following the separation.
There is no merit in Ground 1.

Ground 2 – the s 75(2) adjustment

This ground seeks to impugn the exercise of her Honour’s discretion in making an adjustment in favour of the wife on account of s 75(2) factors and in particular her reliance on the fact that the husband retained almost all the parties’ assets for five years after separation. In the alternative it was claimed her Honour failed to give adequate reasons for making the adjustment. It was also said that her Honour had failed to take into account that the wife, as well as the husband, had enjoyed the benefit of the plantation income.
Counsel for the husband submitted that in the event the trial Judge had arrived at her contribution assessment on the basis that the husband had had the control of the assets after the separation, her Honour had double counted because she had also taken that into account when dealing with the s 75(2) factors. Counsel submitted that whilst there might be a number of reasons why her Honour made the s 75(2) adjustment, it was impossible to determine the exact reason from reading her judgment. He noted that whilst the wife’s outline of argument gave a number of reasons for the adjustment, it was not possible to discern any of those reasons by reference to her Honour’s reasons.
There was a suggestion in the oral submissions of counsel for the husband that, in seeking an adjustment pursuant to s 75(2), the wife had relied only on the “differential in age between the parties and the difference in intention in terms of their future income earning activities”. As emerged in the course of argument, however, the wife also relied at trial on a number of other factors, including the fact that “subsequent to separation the husband has had the use and control of almost all of the assets of the parties and the income generated therefrom” (Wife’s Papers for the Judge, paragraph 11 at page 16).
In dealing with the double counting argument, counsel for the wife submitted that the portion of her Honour’s judgment under the heading “Contributions – s 79(4)(a), (b) and (c) of the Family Law Act 1975” should be seen as dealing not only with contribution issues but also, in part at least, with the s 75(2) adjustment. In effect, counsel for the wife submitted that it had been convenient for her Honour to set out her findings together, rather than disturb the flow of her narrative by separating out all the contribution issues from all the issues she found to be relevant to the s 75(2) adjustment.
Counsel for the wife also relied on the decision of this Court in White and Tulloch v White (1995) FLC 92-640, which she said made clear that there is a broad range of matters which can be taken into account pursuant to s 75(2). She referred in particular to the following passage from that decision (at page 82,458):
… s. 75(2)(o) directs the Court to consider “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”. As the task of the Court is to make an order which is “just and equitable” in all the circumstances, the role of that paragraph is to enable consideration of matters which would not otherwise fall within s. 79, including the other paragraphs of s. 75(2), but which are relevant to the making of a just and equitable order, and are such that the justice of the case requires them to be taken into account.
It was submitted that had the trial Judge not taken into account the husband’s use of the assets post-separation in dealing with the s 75(2) factors, her Honour would have been ignoring a five year or longer period in circumstances where both parties were well into their sixties and had limited earning capacity, and where the wife had left the matrimonial home with scarcely any possessions. (Counsel referred to uncontested evidence of what the wife took with her at Appeal Book 128 and 129.)
Counsel for the wife painted a picture, based on other evidence to which we were taken, of a wife of advanced years forced to expend her modest savings and her superannuation entitlements, being required to continue working in order to maintain herself, in circumstances where the husband had refused to comply with a spousal maintenance order. In contrast, she said the husband had stayed in the former matrimonial home and continued to receive the plantation income for three years. He also had the benefit of the income and produce from the farm, whilst having very modest living expenses and significant tax benefits associated with ownership of the farm.
Counsel for the wife conceded that these matters could have been taken into account at the contribution stage, but submitted it was not obligatory they be considered at that stage, since s 79 is a “flexible provision which intends to give the Court very wide discretion in the manner in which it determines issues of contributions and future needs”.
Counsel for the wife submitted that whilst it is customary to deal only with “prospective” rather than “retrospective” factors when considering the s 75(2) adjustment, there is nothing in the wording of the subsection itself which would prescribe such an approach. She went on to submit that regardless of the stage at which these matters were considered, the outcome would have been the same. She submitted her Honour was required to take into account that during the period of nearly seven years in which she was denied the use of the assets, the wife had been struggling financially, albeit less so when she was finally granted access to some of the plantation income.
We consider there is merit in at least some of the submissions made on behalf of the wife. In particular, we accept that the trial Judge did not double count the benefit to the husband of having the use of most of the assets after separation. We accept that her Honour did refer to this factor in paragraph 87 of her reasons, which was part of the discussion under a heading relating to contribution issues. However, when her Honour came to express her conclusion on contributions she made no reference at all to this factor. It is apparent from reading paragraphs 92 and 93 of her Honour’s reasons that the basis upon which she found contributions had been made in proportions 55:45 was because of other factors, in particular the disparity in the cash inheritances and in the initial contributions.
On the other hand, it is apparent from paragraph 104 of her reasons that the trial Judge did take into account, as a factor under s 75(2)(o), the fact that the husband had “retained almost all of the parties’ assets for five years after separation”. Without expressing a concluded view, we accept it may have been more appropriate for her Honour to have had regard to this factor as a matter for consideration in the assessment of contributions. The fact that the husband had the use of almost all of the assets in the long period after separation might have been characterised as an indirect contribution made by the wife. Nevertheless, the process of property adjustment mandated by s 79 is designed to bring about an outcome that is just and equitable. Had the trial Judge not taken this factor into account at this stage she would inevitably have taken it into account in the assessment of contributions. There is no reason to think the outcome would have been any different, wherever her Honour considered it.

Turning to the next complaint in Ground 2, we do not find any merit in the submission that the trial Judge did not give adequate reasons for the s 75(2) adjustment. Her Honour discussed all of the relevant matters and determined that they collectively warranted a “modest adjustment” (i.e. 4.1 per cent of the asset pool, excluding the inherited properties). It is important also to observe that her Honour carried out a “cross check”, which indicated that the outcome would involve the husband receiving 58 per cent of the assets (including the inherited properties). As the husband’s case at trial was that he should receive 60 per cent of the assets, including the inherited properties, it is difficult to see how it could be reasonably suggested that the outcome was outside the range of discretion.
We also find no merit in the final element of this ground, which asserts that the trial Judge failed to take into account that the wife had also enjoyed the benefit of the income from the plantation. Her Honour recognised (at paragraph 87) that the wife had indeed received income from the plantation and found (at paragraph 89) that the wife had “saved much of the balance of the funds she has received”. Although these findings were included amongst findings directed to contributions, there is no indication that the receipt of this income was overlooked when her Honour came to make the s 75(2) adjustment. On the contrary, in paragraph 102, when discussing the s 75(2) factors, her Honour recorded that the “last three years’ tree plantation payments were held for a long time by the plantation company as distribution was not agreed”. When read with the findings contained in paragraph 87 it is apparent her Honour still had in mind the fact that the wife had received income from the plantation, albeit there had been significant delay in distribution of the money.
There is accordingly no merit in Ground 2.

Ground 3 – failure to consider effect of proposed orders

By this ground it was asserted that the trial Judge erred in the way she distributed the assets between the parties in that she failed to take account of the evidence of one of the valuers that the farming property to be retained by the husband was “of marginal economic size” and she therefore failed to take account of the impact of the orders on the husband’s earning capacity.
It was also submitted that the trial Judge had failed “to give adequate reasons for altering the property interests as was done”. The primary complaint in this regard was the alleged failure of her Honour to give sufficient reasons to explain why orders had not been made for the plantation property to be held in joint ownership, as the husband had proposed.
Counsel for the husband submitted in his outline of argument that as a result of the trial Judge’s alleged failure to take into account the marginal nature of the faming property the husband was to receive, she had “failed to properly explain how it was that the husband would have sufficient earning capacity to manage”.
In oral submissions, counsel for the husband acknowledged that the value of the farming land had been agreed and therefore the valuers had not been called to give oral evidence. He also conceded that the “issue of what was in fact the capacity of the husband to operate the farm beyond the conclusion that it was of marginal size was not an issue that was addressed in the proceedings before her Honour”. Counsel for the husband further conceded that, prior to acquisition of the C land, the farm had been able to sustain the family, albeit with them living frugally. Although he suggested that the farm would no longer be able to sustain a family because of what he called the “history of the ever diminishing returns of Australian farmers”, he acknowledged there was no evidence of that phenomenon before the Court.
Counsel for the husband also conceded that after delivery of her substantive reasons the trial Judge had given liberty to the parties to make submissions concerning a variety of matters including “the terms of the orders if desired”. Counsel acknowledged that he could not find in the transcripts “where that liberty was taken up with any true degree of rigour”, save at Appeal Book 1076 where counsel for the husband is recorded as making a submission that “things have got worse for [the husband] on the farm in recent times” and he therefore wanted to have the property revalued.
Notwithstanding the many concessions properly made by counsel for the husband, his proposition remained that the trial Judge had not adequately taken into account the fact that the husband had been a farmer all of his life; wanted to remain a farmer; and would be unable to manage on the income he could earn from the property he had received in the settlement.
Counsel for the wife submitted that given the agreement about the value of the farm, the affidavits of the valuers were not properly in evidence and hence there was no reason for the trial Judge to have any regard to the opinion of the valuer concerning the “marginal economic size” of the farm.
Counsel for the wife also drew attention to the fact that the trial Judge, at paragraph 110, had considered the husband’s income position in the event that the wife received the C property. She submitted her Honour had therefore obviously considered the effect on the husband of leaving him with the farm and transferring the plantation property to the wife. Counsel also observed that the husband had made it abundantly clear during both trials that he wanted to keep the farm, regardless of his financial position.
Counsel for the wife drew our attention to a line of questions (commencing at Appeal Book 932) in which it was put to the husband that he had been advised he could earn $120,000 per annum in the event he allowed the farm to be used as a plantation, which would have allowed him to receive a substantial income without doing a lot of “backbreaking work”. The husband responded by saying:
Well, I look at it differently. Money is not everything and I think to be doing what you like doing and what you’ve been brought up to what you know and whatever, I think that means more to me… than a heap of money.
Counsel for the wife submitted this answer demonstrated that the husband wanted to continue working as a farmer, even if that was contrary to his own economic interests. Counsel further submitted that given the husband wished to continue farming, and that this constituted a source of income for him, the decision of the trial Judge to order that he retain the farm property was entirely appropriate.
Counsel for the wife observed that if the husband kept the whole of the farm, and took the C property as well, there would be nothing left for the wife (albeit of course the husband was not proposing that he keep all of the plantation property). She finally submitted this was a case where the parties badly needed to have a “clean break”.
We do not consider it necessary to discuss the merits of the submission about the evidentiary status of the valuation evidence. We are content to proceed on the basis that her Honour was or should have been aware that the husband’s valuer had said “each of the [farm lots] are not of sufficient size to be economically viable as individual units and we consider that the most appropriate purchaser would likely be lifestyle buyers” and that the wife’s valuer had said the farm properties together were “considered to be of marginal economic size in the prevailing conditions and the highest and best use would be for sale as 4 lifestyle hobby blocks or to near neighbours for farm expansion” (Appeal Book 485 and Appeal Book 519).
There are many flaws in the husband’s core complaint that he should have been left with a share of the C land and its associated income in order to supplement the inadequate income he anticipated he would earn from the farm. The most fundamental is that the evidence did not support the proposition that the husband could not earn sufficient from the farm to maintain himself. The evidence of the valuer was only to the effect that the farm was of “marginal economic size in prevailing conditions”. Whilst the evidence was that the farm was generating only a modest income at the time of trial, the evidence also indicated that the husband’s needs were basic.
The second difficulty with the proposition is that whilst the Court will strive to ensure that a party retains an income earning asset, the prejudice to the other party associated with bringing about that state of affairs is a necessary matter for the Court to take into account. Any additional assets the husband might retain to help him achieve a higher level of income could only be obtained at the expense of the wife, who had her own needs for housing and support in retirement. There was no compulsion for the husband to retain the farm if he considered it was uneconomic. It was open to him to sell the entire property, or portions of it, in order to realise capital. There was also, at least at one stage, the possibility of the husband earning a very handsome income from the land if he allowed it to be used as a plantation.
The third difficulty with the husband’s proposition is that her Honour’s assessment of contributions and the s 75(2) adjustment meant it would not have been just and equitable for the husband to retain not only the farm but also a significant share of the C property. The wife’s entitlement was 42 per cent of the entire asset pool and the assets to bring about this division had to be found from somewhere within the pool.
Finally, the evidence made clear this was a case where it was highly desirable for there be a “clean break” between the parties. Any outcome that involved them holding property jointly would have been likely to lead to further disputes and litigation. Such an outcome would not have been in accordance with s 81, which directs the Court, as far as practicable, to “make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them”.
We also find no merit in the final element of this ground (the alleged failure to give adequate reasons for dividing the property in the way it was). It is apparent from reading paragraphs 108 and following of her reasons that the trial Judge paid careful attention to the relevant considerations. In our view the division achieved was not only within the range of discretion, it was the most appropriate division in light of her Honour’s findings.

The appeal against the costs order

There were two grounds of appeal dealing with the costs order, although the first of these comprised two separate elements. The complaints were expressed as follows:
4.a. That the learned Trial Judge erred in law in determining a power to award costs in respect of the first hearing and the appeal; and or
b.The exercise of the Trial Judge’s discretion miscarried in that there was an absence of any precision in the evidence as to the amount of costs referrable to each stage of the proceedings or the amount that was payable as to party and party or indemnity costs.

The trial Judge’s reasons for the costs order

Upon delivery of the substantive reasons, the proceedings were adjourned to allow for submissions on costs and other matters identified by the trial Judge. After submissions were made, her Honour made final orders on 7 November 2008, including the order for costs. Reasons for this decision were published on 13 November 2008. Given the narrow compass of the appeal against the costs order it is unnecessary for us to refer to all of the reasons.
Having noted that the wife had sought $66,000 costs, which was said to represent “about half her total costs of the proceedings”, her Honour continued:
35The wife had paid about $100,000 to the commencement of the second trial and the balance since. I was informed that, to 28 July 2008 [i.e. shortly after the conclusion of the second trial], the wife had paid costs totalling $138,286. From this, should be deducted $6,000 which the wife ought to receive from the Attorney General pursuant to the Costs Certificates provided at the end of the appeal. The husband is apparently due to receive $6,000. The calculations were $2,000 for the costs of the appeal, and $4,000 for the retrial.
36The costs were subject to a costs agreement. Very roughly, it was estimated that, at scale, the costs would have been about half to two‑thirds of the total sum paid.
Her Honour then addressed at length the relevant factors pursuant to s 117(2). Amongst matters she noted was the fact the Full Court which heard the first appeal had granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981. She recorded that the certificates were for costs relating to the conduct of the appeal and costs relating to the retrial. She also noted that the wife had drawn attention to the fact there had been no costs certificate in relation to the original trial before Justice Tolcon. (We might add there would be no legislative basis for such a certificate.)
The trial Judge recorded that although Tolcon J had ordered the husband to pay the wife’s costs from the commencement of the first trial, and although there had been no appeal against that decision, it had been accepted that the costs order should be set aside. Her Honour then went on:
69For the wife, it was submitted there is no order effectively as to costs in respect of the first trial. The Full Court issued costs certificates in respect of the appeal and the second trial, amounting to $2,000 for each party to the appeal and $4,000 for the actual retrial, leaving a substantial sum to be paid by the parties. Therefore, since the costs order made by Justice Tolcon should be regarded as being set aside, it would leave it open to me to make costs orders in respect of the first trial before Justice Tolcon, in respect of the appeal to the extent not covered by the costs certificates, and in respect of the second trial to the extent it was not covered by the amount received by way of costs certificates.
70It was submitted that there is nothing in the Federal Proceedings (Costs) Legislation which would preclude a court from making a costs order to, in effect, top up a party who has received money, or will receive money pursuant to a costs certificate, but who has spent in excess of that in reasonable costs of litigation. The court has very broad discretion pursuant to s 117 of the Family Law Act 1975.
71 The costs of the appeal were about $12,000.
72The submission on behalf of the husband was that the costs of the first trial, and matters leading up to the first trial, were deal [sic] with by the Full Court. The trial Judge’s orders for property settlement and costs were set aside. It was therefore considered that the costs order must also be set aside, having regard to the fact that one of the reasons for that order was the husband’s lack of success. The husband was successful in appealing against the property orders and the costs orders. It was submitted that this matter cannot now be raised to say the costs were left in abeyance. For the husband, it was submitted that the initial costs order was set aside and should not be revisited.
…
75For the wife, it was further submitted that the existence of the costs certificates in respect of the appeal and the second trial should go to the question only of quantum that is ordered, and that has been taken into account by reducing [sic] $6,000 the total amount paid by the wife in respect of her legal fees. There is no reason why the existence of those certificates should in any way detract from my discretion to make a costs order pursuant to s 117 of the Act.
The trial Judge then recorded her conclusions. She expressed her satisfaction that there were circumstances justifying an order for costs (and we note no complaint has been made in relation to that finding). Her Honour then said:
78I accept that the appeal having been allowed against the judgment of Justice Tolcon, and the case remitted for rehearing, that costs of the proceedings overall remained at large, and the issue of the costs certificates was relevant only in reducing the amount paid.
Having considered other matters, her Honour concluded by saying:
82I accept that, overall, the wife’s costs of the proceedings have been significantly increased by the husband’s conduct, and approach, and that it is just in those circumstances for an order for costs to be made. The wife’s costs since judgment have also been increased, to some extent, by some lack of cooperation by the husband.
83As to the amount, it was clearly not in anyone’s interests for the parties to have to have the costs taxed, and this in itself would significantly increase the costs.
84It would have been helpful if the wife’s legal adviser had provided a more accurate estimate of the costs at scale, as I do not accept the circumstances, difficult and unusual though they have been, are such as to warrant an order for indemnity costs being made.
85I have decided to adopt a broad brush approach and have concluded that it is just to require the husband to contribute the sum of $45,000 towards the overall costs of the proceedings. This represents approximately one-third of the total costs said to have been incurred by the wife, and between 50% and 68% of the very rough estimate of the wife’s costs incurred at scale.

Ground 4 – the costs order

The first part of this ground asserts that the trial Judge erred in law in determining she had power to award costs not only in respect of the first trial but also in relation to the appeal against the orders made at the first trial.
The trial Judge’s treatment of the costs of the appeal against the orders made at the first trial was somewhat unsatisfactory in that she set out all of the submissions, without seeming to make a ruling as to their merit. Nevertheless, it was properly conceded by counsel for the wife that her Honour ultimately did take the costs of the appeal into account in arriving at her decision.
Apart from noting that concession, we do not propose to set out the other submissions made in relation to this first part of Ground 4, since we consider the position is clear beyond doubt.
Her Honour did not have power to deal with the costs of the appeal against the orders made at the first trial. Issues of costs associated with that appeal were within the exclusive province of the Full Court which heard the appeal. It is apparent that the Full Court intended not to make any order for costs of the appeal since it granted costs certificates pursuant to ss 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth). Section 9(1)(b) of that legislation provides that a costs certificate can only be granted pursuant to that subparagraph if each party to the appeal is to bear their own costs.
In light of the concession properly made by counsel for the wife, we proceed on the basis that her Honour took into account all of the costs the wife had incurred; reduced those costs by the amount recovered pursuant to the certificates; and then determined what proportion of the balance the husband should meet. In doing so, she had been led into error by the misconceived submission that the wife was entitled to a “top up” of that portion of the costs of the appeal for which she had not already been reimbursed.
The submissions advanced on behalf of the husband in relation to the costs of the first trial were equally misconceived. The costs order made by Tolcon J had been set aside by the Full Court, along with the substantive property settlement orders. The effect of the order of the Full Court remitting “the parties’ applications for property settlement matter for rehearing” was that the Judge conducting the second trial was still dealing with the original applications.

Issues concerning the costs of those applications were at large in the absence of any order of the Full Court re-determining the exercise of discretion in relation to the costs of the first trial (or seeking to fetter the discretion of the Judge conducting the rehearing to determine costs issues). Accordingly, Martin J was entitled to consider the costs incurred in the first trial when dealing with the wife’s application for the husband to contribute to her costs of the proceedings: See Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 and the line of authorities mentioned at 523. See also GE Dal Pont, Law of Costs (LexisNexis Butterworths), 2^nd edition, 2009 at [20.21] and Quick R and Garnsworthy D, Quick on Costs (Thomson Reuters) at [4.6900].
This brings us to the other limb of this ground, namely the alleged inadequacy of the evidence upon which her Honour based her decision to fix costs in the sum of $45,000.
In addressing this complaint, counsel for the husband made clear that he did not cavil with the proposition that a trial judge has a discretion to fix costs. However, he submitted it was inappropriate for the Court to engage in the guesswork he asserted her Honour had been forced to undertake in fixing the amount of costs. He referred to paragraph 36 of the costs judgment, in which her Honour had recorded that “very roughly, it was estimated that, at scale, the costs would have been about half to two-thirds of the total sum paid”. Counsel for the husband submitted that judges should not be “required to act very roughly in circumstances where there’s an issue that can be easily resolved”.
Counsel for the husband accepted that the litigation had gone on for many years; that the parties were no doubt emotionally exhausted; and that the authorities suggest a fairly robust approach should be taken in dealing with costs. He nevertheless submitted there was insufficient information before her Honour to fix costs in circumstances where the difficulty could have been cured by a short adjournment. Her Honour had proceeded without even having reliable information concerning the portion of the costs attributable to the appeal, instead relying on the fact that she had been “told” the costs of the appeal were $12,000.
Counsel for the husband also referred us to Brookvista Pty Ltd v Meloni [2009] WASCA 180 (“Brookvista”) where a lump sum costs order was set aside, inter alia, on the basis that the assessment of quantum had involved an element of “guesswork”. Newnes JA, with whom Buss JA agreed, said:
26As I have mentioned, a court has a wide discretion in relation to costs… The purpose of fixing costs is to avoid the expense and delay involved in taxation. Consistent with that objective, in fixing the sum the court will not subject the costs to the detailed scrutiny often applied in taxation of costs. It is appropriate instead to apply a 'much broader brush' than would be applied on a taxation: see Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; (2005) 215 ALR 788 [197] - [200]; Hadid v Lenfest Communications Inc [2000] FCA 628 [35].
27But in fixing the amount of the costs, the approach of the court should be 'logical, fair and reasonable': see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 123; Nine Films and Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 [8]. And the power to award a fixed sum should only be exercised when the court considers that it can determine the amount of the costs fairly. That means the court must have available to it sufficient material that it is confident it can arrive at an appropriate sum: see Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 [22].
Later, when identifying the three considerations it seemed the primary judge had taken into account in Brookvista, Newnes JA said:
33Thirdly, having recognised the difficulty in making an assessment of the costs thrown away on the material before him, his Honour appears to have accepted that the assessment may involve an element of ‘guesswork’. However, with respect, it was not open to his Honour to engage in guesswork. In circumstances where it was not known when the action would be relisted, to what extent (if at all) the matters in issue would change, and whether the respondents would be able to retain the same counsel for the trial, it is not surprising that his Honour found it difficult to make any real assessment of the costs thrown away. In that situation, however, the proper course was either to defer the assessment until proper material could be put before him or to order that the costs be taxed, so that an appropriate determination could be made.
34I should make it clear, however, that it does not follow that it is never open to make an order for costs thrown away in a fixed amount. Whether or not such an order can be made will depend upon the particular circumstances of the case. But in any case where such an order is to be made, what will be required is sufficient information to enable the court to be confident that it can fix an amount which is ‘logical, fair and reasonable’. It is not necessary that the information, or the enquiry into it, be of the detail that would be involved on a taxation of costs but it must be sufficient to enable the court (albeit with a somewhat broader brush than might be applied on a taxation) to do justice between the parties.
With respect, we would adopt all that Newnes JA said in relation to the approach to be taken by a trial Judge when asked to fix costs. It is important, however, to recognise that in Brookvista, the Western Australian Court of Appeal was dealing with “costs thrown away” in circumstances where the proceedings had not been concluded. Until the proceedings were completed it would be difficult to be sure of the full extent of the costs “thrown away”. Counsel for the husband therefore properly conceded that the present case is distinguishable from Brookvista, since here all of the costs had been incurred. In our view, the question therefore becomes whether her Honour had sufficient information to fix an amount which was “fair, logical and reasonable”.
The trial Judge recognised that she did not have precise information. For example, in paragraph 36 she acknowledged she had been informed that the wife’s costs of the proceedings at scale had been estimated “very roughly” as being between one half and two thirds of the total costs incurred. This uncertainty was carried through to the concluding paragraph of her costs judgment where her Honour said:
85I have decided to adopt a broad brush approach and have concluded that it is just to require the husband to contribute the sum of $45,000 towards the overall costs of the proceedings. This represents approximately one-third of the total costs said to have been incurred by the wife, and between 50% and 68% of the very rough estimate of the wife’s costs incurred at scale.
The Appeal Books contained no documents setting out any information concerning the costs the wife had incurred in the proceedings; however, during the course of submissions before us reference was made to a “skeleton costs schedule” having been provided to the trial Judge. It was agreed we could obtain this document from the Family Court of Western Australia file, which we were able to do after the hearing concluded. The document was in the following form (formalities excluded):

Stage of proceedings	Amount paid by Applicant to her solicitors/counsel	Source of information
Commencement of first trial	$7,988	Wife’s Papers for the Judge filed 16 March 2008
Commencement of appeal
Commencement of second trial	$99,036	Reasons of Martin J published 23 July 2008, para 60
Costs of trial	$34,934 for solicitors and counsel fees for trial, less $1638 held in trust = $33,296.	Documents tendered 28.7.08
As at time of costs application	$954 in solicitors fees in including correspondence re expert evidence up to 20.6.08 $5,000 (est) counsel fees for settling orders, preparing & presenting costs application $... (est) solicitors fees from 20.6.08 to 28.7.08	Documents tendered 28.7.08
Total solicitors and counsel fees expended by wife as at 28.7.08	Total $138,286 plus solicitors fees between 20.6.08 and 28.7.08
Less $6,000 from Commonwealth for costs of appeal and retrial	~~$138,286~~ $132,286 [handwritten amendment made by trial Judge at invitation of counsel Appeal Book 1020]	Certificates granted by Attorney-General

Counsel for the wife observed that the compulsory cost notification letters had been exchanged by the parties throughout the proceedings and submitted there was “never any contest from the husband that those … were not the wife’s total costs at that point”. She further submitted that the trial Judge was very concerned about the escalation in costs and wanted to put an end to the litigation. She submitted in effect that any “guesswork” involved in her Honour’s decision had to be seen in the context of the cost and difficulty associated with a taxation involving two separate trials in circumstances where the parties were well into their 60s and had limited income earning capacity.
Counsel for the wife also adopted a suggestion made from the bench that it seemed from consideration of the final paragraph of the trial Judge’s reasons that it did not matter to her Honour whether the figure she proposed to order represented 50 per cent or 68 per cent of the wife’s costs at scale. Wherever in that range the figure fell, she considered the amount was “just”.
The trial Judge’s decision needs to be understood in light of the fact that the wife’s application was for the husband to pay one half of the wife’s total legal costs, less the amount recouped under the costs certificates. The application therefore was for costs to be fixed at $66,143. The amount ordered was $45,000. It will be recalled that the “very rough” estimate given to her Honour was that “at scale, the [wife’s] costs would have been about half to two‑thirds of the total sum paid” – in other words, the wife’s total costs at scale would be between about $66,143 and $88,190. In deciding to fix costs at $45,000 her Honour was therefore requiring the husband to pay between 51 per cent and 68 per cent of the wife’s total costs calculated at scale. Give or take one percent, this was her Honour’s finding.
We accept there was an element of what might be regarded as “guesswork” because of the “very rough” estimate given to her Honour concerning the difference between the costs incurred by the wife calculated pursuant to her costs agreement with her solicitors and her costs calculated at scale. However, there was no “guesswork” about the amount the wife had in fact been charged, given the absence of any challenge by the husband that the wife had incurred the level of fees claimed. In this regard this matter is clearly distinguishable from Braithwaite & Braithwaite [2007] FamCA 468 where this Court (Kay, Warnick and Boland JJ) set aside a lump sum costs order in circumstances where there was an insufficient evidentiary basis for the amount awarded.
Whilst we accept it was an option for her Honour to adjourn the proceedings to allow more detailed evidence to be provided, we are nevertheless satisfied that the approach her Honour adopted was “fair, logical and reasonable”. It must not be overlooked that this litigation had been on foot since 2002. There had been a hearing extending over four days in March/April 2006; a further trial of two days in January 2008, then appearances on five different days in July and October 2008. It was in the interests of both parties and the Court for the litigation to be brought to an end.
Whilst we ultimately have determined there is no merit in the second limb of Ground 4, we have found merit in the first limb of that ground relating to her Honour’s decision to take into account the costs incurred by the wife in the conduct of the appeal. The result is that her Honour’s discretion miscarried and the appeal against this part of her Honour’s orders must be allowed.
Counsel for the husband acknowledged it was open to us to re‑determine the trial Judge’s discretion in the event we found appealable error, but submitted that it would be necessary for the wife to provide further material to allow us to do so. We are not satisfied that the further expense and delay associated with seeking further material is required. Her Honour was advised by counsel that the costs incurred on the appeal were $12,000, not taking into account the amount recovered on the certificate. In the absence of challenge, we accept that was the amount incurred. On this basis, the wife’s total costs at first instance were $126,286. From this should be deducted the $4,000 the wife received under the costs certificate for the retrial. The wife was therefore out of pocket to the extent of $122,286.
Her Honour was in a unique position to determine the apportionment of costs between the parties. We see no reason to depart from the position she adopted that the husband ought to contribute to the wife’s costs to the extent of about one third of the costs she had actually incurred, provided the costs related to the appeal are excluded. This would mean the husband should pay $40,762 which we propose to round down to $40,500.

Costs of the appeal

Counsel for the husband sought an order for costs in the event that the appeal succeeded. In the alternative, if there was to be no order for costs, he sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981. In the event that the appeal failed, counsel for the husband ultimately accepted that costs should be awarded in favour of the wife.
The wife’s position was that in the event the appeal was dismissed the husband should pay her costs. In the event the appeal succeeded it was submitted that there be no order as to costs, particularly as it was submitted (wrongly in our view) that the law was unclear in relation to the position concerning the payment of costs associated with the husband’s successful appeal. Counsel for the wife also sought a certificate under the Federal Proceedings (Costs) Act 1981 in the event the appeal succeeded and no order for costs was made.
The appeal has succeeded on a question of law, but only in relation to one discrete element of the husband’s complaints, which has resulted in the husband being ordered to pay $4,500 less than what the trial Judge ordered him to pay. We have otherwise found there was no error in the exercise of her Honour’s discretion in determining the division of the asset pool.
Notwithstanding the partial success of the appeal, we are not satisfied this is a case where certificates should be issued to either party. The wife would be considerably out of pocket (again) if we determined there be no order for costs and granted costs certificates. In our view, the proper outcome is for the husband to pay 75 per cent of the wife’s costs of the appeal, to be assessed if not agreed. The wife should not recover her entire costs because she continued to maintain on appeal the misconceived notion that it was permissible for the trial Judge to take into account the costs of the previous appeal in determining the allocation of costs of the proceedings at first instance.

I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 8 October 2010.

Associate:

Date: 8 October 2010