Grunseth & Wighton
[2022] FedCFamC1A 132
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Grunseth & Wighton [2022] FedCFamC1A 132
Appeal from: Grunseth & Wighton [2021] FedCFamC2F 602 Appeal number(s): NAA 106 of 2021 File number(s): SYC 7621 of 2017 Judgment of: ALSTERGREN CJ, ALDRIDGE & BRASCH JJ Date of judgment: 26 August 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from orders dividing the parties’ property so the appellant received 47.5 per cent and the respondent received 52.5 per cent – Where the appellant contends that such a finding could not be made because she contributed over half of the property to be divided – Small adjustment under s 90SF(3) of the Family Law Act 1975 (Cth) – Short relationship – Where the property division cannot be reconciled – Delay in judgment delivery – Error established – Findings of family violence open on the evidence – Where each party sought the possession of a dog purchased by the appellant – Appeal allowed – Relevant orders set aside – Discretion re-exercised – Orders made to adjust the split in sale proceeds upon the sale of the property – The appellant is to retain the dog – The respondent is to pay the costs of the appellant in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 4AA(1), 90SF Cases cited: Anson & Meek (2017) FLC 93-816; [2017] FamCAFC 257
Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jess & Jess (2021) FLC 94-055; [2021] FamCAFC 159
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Number of paragraphs: 91 Date of last submissions: 23 June 2022 Date of hearing: 16 June 2022 Place: Sydney Counsel for the Appellant: Mr Jackson Solicitor for the Appellant: McCabe Partners Counsel for the Respondent: Mr Blackah (direct brief) ORDERS
NAA 106 of 2021
SYC 7621 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS GRUNSETH
Appellant
AND: MR WIGHTON
Respondent
order made by:
ALSTERGREN CJ, ALDRIDGE & BRASCH JJ
DATE OF ORDER:
26 August 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 10(b), 14 and 15 made on 24 December 2021 are set aside.
3.The following orders made on 24 December 2021 are varied as follows:
7.Upon completion of the sale of the said property, the parties must pay the proceeds of sale in the following manner and priority:
(a)All costs and expenses of sale, including legal costs and disbursements, agent’s commission, advertising expenses, valuer’s fees and auction expenses, including repayment of any such expenses as have been paid by either of the parties;
(b)In discharge of any charges running with the land necessary to effect the transfer of the property;
(c) To divide the net balance between the parties as follows:
(i) The appellant receives 70 per cent less $160,800, and
(ii)The respondent receives 30 per cent plus $160,800.
…
9. The appellant is to retain all assets in her name and possession, and the following items:
(a)All items of furniture, whitegoods and furnishings located in the loft and main bedroom of the main dwelling of the said property;
(b)The dog “Patricia” registered in her name and in her possession and control; and
(c)The dog “Roxy” identified by microchip … , which dog is currently registered in her name and in her possession and control.
10.The respondent is to retain all assets in his name and possession, and the following items:
(a)All items of furniture, whitegoods and furnishings located in the main dwelling of the said property, with the exception of the appellant’s furniture and furnishings located in the main bedroom which will be retained by the appellant.
4.The respondent is to pay the appellant’s costs fixed in the sum of $12,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grunseth & Wighton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTSERGREN CJ, ALDRIDGE & BRASCH JJ:
Introduction
This is an appeal from property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 December 2021, which divided the parties’ property so that the respondent, Mr Wighton, received 52.5 per cent and the appellant, Ms Grunseth received 47.5 per cent. The appellant contends that such a finding could not have been made because she had contributed over half of the property to be divided, the other contributions also favoured her and a small adjustment in her favour was made under s 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”).
These reasons explain why the appeal must be allowed, the orders set aside and the basis for the orders we make on the re-exercise of the discretion.
The following is taken from his Honour’s reasons and appears not to be controversial.
The parties met in 2004 and slowly developed a relationship which became a de facto relationship (as defined by s 4AA(1) of the Act) in late 2013. At that time, they purchased a property in B Town (“the B Town property”) for $1,040,000, which was financed, in part, by a mortgage of $99,223.50. The appellant’s direct contribution to that purchase was $716,423.27, most of which came from the sale of a property previously owned by her. The respondent contributed $320,000, of which $20,000 came from his savings and $250,000 as a gift from his mother. The respondent’s father also made an immediate payment towards the mortgage of $50,000.
The parties recognised these various contributions in the ownership of the home, which was registered in the name of the parties as tenants in common with 70 per cent held by the appellant and 30 per cent held by the respondent.
The respondent received inheritances in June 2015 of $750,000 and in September 2017 of $128,211.92, making a total of $878,211.92.
On 17 June 2015, the respondent paid out the balance of the mortgage in the sum of $43,846.42.
In January 2016, the respondent paid the appellant $160,000. In short, the respondent’s evidence was that this was pursuant to an earlier oral agreement to the effect that if he made that payment, he would become a one-half owner of the B Town property.
The appellant agreed that the payment was for an increased share of the property but not for equal shares because of the increase in value of the property. She said that no percentage increase was ever agreed. No adjustment to the nature of the registered ownership was made.
The primary judge extensively considered the evidence on this issue at [68] to [80] but did not determine the dispute, saying instead:
213.I am persuaded that there probably was an informal agreement between the parties which lead the [respondent] to deposit $160,000 into the [appellant’s] bank account, and her not to return it. I am not persuaded that this is of great relevance, and that it is the actual contributions made, and their timings, in the context of the entire relationship … which must be considered and weighed …
The parties separated in October 2016, although they both remained living in the B Town property until November 2019.
The period of the de facto relationship was, therefore, very short, being just under three years.
Was the division ordered by the primary judge erroneous (Grounds 1–5 and 10) and what is the impact of the delay in the delivery of reasons for judgment (Ground 5A)?
It is convenient to deal with these grounds together as they overlap significantly. Before going into the detail of his Honour’s reasons, it is useful to repeat the principles that apply to appeals from discretionary decisions.
In House v The King (1936) 55 CLR 499 at 504–505, the Court said:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
(Emphasis added)
In this matter, the determination of what property division was just and equitable turned on the parties’ original financial contributions. This was because the appellant was found to have made greater non-financial contributions than the respondent (at [88] and [215]) and that there were no considerations under s 90SF(3) of the Act which required adjustments, save for “some allowance” in favour of the appellant “for her lesser total future earning capacity” (at [217]).
His Honour also found that, apart from the inheritances, the parties’ financial contributions throughout the relationship were equal.
Of course, given such a short relationship, such contributions may well carry less weight than if they had been made over a longer period.
Thus, his Honour’s reasons and the submissions made to us focused on the parties’ initial contributions.
There was no dispute about the property to be divided, save as to the sum of $160,000 already mentioned. The primary judge found it to be:
ASSETS No. Ownership Description Value 1 A 70/100 share in [the B Town property] $910,000 2 R 30/100 share in [the B Town property] $390,000 3 A [R Bank] Bank Account #... $7,230 4 A [R Bank] Bank Account #... $786 5 A [R Bank] Bank Account #... $180,062 6 R [T Bank] Bank Account #... $135 7 R [T Bank] Bank Account #... $399,137 8 R Loan to [Mr X] $30,000 9 A [Motor vehicle A] $5,000 10 R [Motor vehicle B] $16,500 11 R [Motor vehicle C] $3,500 12 R Household contents $2,000 13 A Household contents $12,500 14 A Jewellery $5,000 15 R Jewellery $1,000 16 R Gym equipment $500 17 R … Shares $3,878 Total $1,967,228 ADD BACKS No. Ownership Description Value 18 R Money transferred to [Mr Y] $50,000 19 Total $50,000 LIABILITIES No. Ownership Description Value 20 Total SUPERANNUATION No. Member Name of Fund & Type of Interest Value 21 A [Super Fund A] – Accumulation $372,712 22 R [Super Fund B] – Accumulation E$40,000 Total E$412,712
We have deleted the original item 21 as it erroneously duplicated the preceding entry.
The total property available for distribution was $2,429,940 (noting that $50,000 which was transferred to Mr Y was notional only and no longer existed in the hands of the parties).
The parties did not suggest that either had made any relevant contributions to the other’s superannuation. That is not surprising given the short relationship. The evidence was that $150,000 of the appellant’s superannuation accrued after separation.
The payment of $160,000 by the respondent to the appellant is reflected in item 5 (the appellant’s bank account with a balance of $180,062).
The appellant’s primary submission is that, given it is accepted she contributed $910,000 as her share of the house and her superannuation of $372,712, a total of $1,282,712 or 52.79 per cent of the total property, the findings as to the appropriate division of the property are untenable. When the appellant’s other assets are included, but leaving out the sum of $160,000, the appellant’s property increases to nearly 55 per cent (54.87 per cent) of the total. The submission continued, noting that the financial contributions during the relationship were equal, that the non-financial contributions favoured the appellant and that there was to be a slight adjustment in her favour under s 90SF(3) of the Act.
His Honour first recorded that the appellant had contributed more to the assets to be divided, saying:
24.The total net assets of the parties is $2,429,940. The [appellant’s] net position, reflecting her greater share of [Town B], is $1,493,290 61.5% and the [respondent’s] is $936,650 or 38.5%.
25.It is relevant to note, given the manner in which the case was argued by each party, that if [Town B] is removed from the balance sheet that the total net assets of the parties is $1,129,940. The [appellant’s] net position is $583,290 or 51.5% and the [respondent’s] is $546,650 or 48.5%.
The primary judge said:
Post-separation Superannuation
47.The [respondent’s] superannuation at separation was $20,000 [… [60]]. It has increased only to approximately $40,000. This is a post-separation contribution to the pool of $20,000.
48.The [appellant’s] superannuation at 30 June 2016, a few months before separation, was $223,990. At February 2020 it was $372,712. The majority of that period was post separation. That was, as the [appellant] submitted, a significant post-separation contribution of approximately $150,000 to the pool as a result of the [appellant] electing to increase her superannuation contributions at the cost of access to current disposable income.
Lump Sum Contributions – Summary
49.The [appellant] made a lump sum contribution to the relationship at cohabitation of $726,000, almost all of which went directly to the purchase of [Town B].
50.The [respondent] made lump sum contributions to the relationship totalling $1,198,211.92. $320,000 went to [Town B] at the time of purchase, $43,846.42 went to pay off the mortgage in June 2015, and $160,000 went to the [appellant] in January 2016. Some of it he still holds and it is represented on the balance sheet. That was a total of approximately $1,924,000 in lump sum contributions. Added to that the parties have accrued an additional $170,000 in superannuation between them post-separation and that is approximately $2,094,000 in identifiable financial contributions, or 86% of the total pool of $2,429,940.
(Emphasis in original)
It is not entirely clear, but [50] seems to suggest that the parties made contributions of $1,924,000 of which the respondent made $1,198,211.92 or 62.23 per cent. The finding seems to assume, wrongly, that all those contributions found their way into the property to be divided. It is impossible to reconcile this finding with the undisputed fact that when just the house and the superannuation are taken into account, the appellant contributed 52.79 per cent of the property to be divided.
His Honour referred to the initial contributions as follows:
210.The parties were in a short de-facto relationship of 2 years and 9-10 months. The parties purchased [Town B] as to 70% to the [appellant] and 30% to the [respondent] based on their contributions of $726,000 by the [appellant] and $320,000 by the [respondent] in December 2013. The [respondent] then contributed lump sums from inheritances totalling $878,211.92 over the following years. The timing of those payments is noted elsewhere. $43,846.42 of that went to pay off the mortgage in June 2015 and $160,000 to the [appellant] in January 2016.
211.The parties have accrued an additional $170,000 in superannuation post-separation, $20,000 contributed by the [respondent] and $150,000 by the [appellant].
212.That was approximately $2,094,000 in identifiable financial contributions, or 86% of the total pool of $2,429,940. In the context of a short relationship, these are a significant factor to be taken into account, noting also the timing of the different contributions.
213.I am persuaded that there probably was an informal agreement between the parties which lead the [respondent] to deposit $160,000 into the [appellant’s] bank account, and her not to return it. I run not persuaded that this is of great relevance, and that it is the actual contributions made, and their timings, in the context of the entire relationship considered holistically which must be considered and weighed, see e.g. Horrigan & Horrigan [2020] FamCAFC 25 at [35] (Horrigan).
(As per the original)
Reference was made to the other contributions and adjustments at [214]–[217]. His Honour then said:
219.Weighing all of these matters as best I can, and noting the requirement as described in Horrigan at [55] to “from a qualitative description of contributions to a quantitative one”, I consider that the parties’ property interests should be altered so that the [appellant] receives 47.5% and the [respondent] receives 52.7% of the total asset pool. I have in mind the [respondent’s] Orders, but once the parties left the decision to me I felt that my obligation was to make Orders that reflect what I considered reflected the justice and equity of the matter based on my findings as set out above.
(As per the original)
His Honour does not return to the earlier finding that the appellant held 61.5 per cent of the assets (which included the disputed $160,000) (at [24]).
It must also be recognised that not all of the respondent’s inheritances were reflected in assets available for division. Those that remained were the $160,000 in the appellant’s bank account, $399,137 in the respondent’s bank account and possibly a loan owed to the respondent in the sum of $30,000 (as well as the ‘notional’ property of $50,000). About $43,000 was used to pay out the mortgage. There was no evidence as to what happened to the rest.
At [41], the primary judge said that “the [respondent] retains much of his inheritance on the balance sheet”.
In an often quoted passage in Steinbrenner & Steinbrenner [2008] FamCAFC 193, Coleman J said:
234.Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case. In some cases, the “leap” is so great, and so unheralded by the discussion which precedes it as to render the reasoning process defective. …
(Emphasis added)
With respect to the primary judge, we cannot understand how his Honour arrived at the property division he did.
The proceedings were heard between 17 February 2020 and 18 August 2020 with judgment unfortunately not being delivered until 24 December 2021. In such cases, it is “necessary to look with special care at the findings of fact challenged on appeal” (Jess & Jess (2021) FLC 94-055 at [58]). The Full Court in Manifold & Alderton (2021) FLC 94-015 explained that “the focus is not on the delay per se, but the failure by the primary judge to take relevant matters into account, to engage with the father’s case and with the evidence, and to provide adequate reasons for her conclusions” (at [37]).
Such an approach is warranted in this case.
In short, we cannot reconcile the ultimate determination of a 47.5/52.5 per cent division with the central fact that the appellant contributed over 52.5 per cent of the overall assets and with assets to which the respondent made no contribution to at all. Unfortunately, this tension cannot be resolved by reference to the reasons.
Whether it be categorised as a lack of adequate reasons or as a decision which is unreasonable, the outcome is that the appeal must be allowed and the orders set aside.
In the circumstances, we do not need to traverse the detail of Grounds 1–5 and 10 (Boensch v Pascoe (2019) 375 ALR 15). It is sufficient to say that Grounds 1 and 2 have been established.
Did the primary judge err by failing to make the findings of family violence sought by the appellant? (Ground 6)
The appellant contended that the respondent was violent to her throughout the relationship which caused her contributions to be more onerous. She sought that the conduct be taken into account in determining the appropriate division of property having regard to the principles set out in Kennon & Kennon (1997) FLC 92-757 (“Kennon”).
The primary judge set out the contested evidence as to a number of events at [115], including that of third parties at [183]. His Honour’s conclusion was:
184.The [respondent’s] evidence on family violence was not impressive, but ultimately neither was the [appellant’s]. Her apparent mixing of threats of the use of the criminal justice system with her insistence that the [respondent] settle on what she considered acceptable terms raises real concerns in my mind about the weight I can give to her complaints, even with such independent evidence as exists. That is a significant factor where she bears the evidentiary onus on a grave issues, noting s140 Evidence Act 1995, see for example Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 esp at 449-450.
185.I was very also concerned about the [appellant’s] evidence around her involvement with [Charity BB]. It would not have been inconsistent with her case, given that she works full-time, that she might also continue doing voluntary work despite suffering from psychological and emotional trauma an persevere though the work was more onerous because of the family violence and its impact on her.
186.However, my very strong impression at the time she was giving her evidence, not diminished by a review of the transcript, was that the [appellant] was not candid in the giving of her evidence and was seeking to minimise and avoid.
187.Her initial evidence was that she was a volunteer doing “mainly email work” for “maybe an hour” a week. Then she agreed she was the President, but sought to minimise that by saying that it did not really matter what the title was. She was also uncertain how long she had been a board member. It was only once she was shown annual President's Report is going back to the 2015-2016 financial year that the true extent of her involvement became apparent. Extracts from the documents are Exhibit 3. (T.56.40)
188.This gave the very strong impression that she considered that this evidence would not assist her case, and would in fact significantly harm it, and her unwillingness to give frank answers about this topic means that I have grave doubts about the veracity of her evidence on the topic of the impact of any family violence on her psychological health and on her capacity to function.
189.Ultimately, whilst the [respondent’s] evidence on family violence was in many respects unsatisfactory, when I consider both the [appellant’s] text messages, and her most unsatisfactory evidence on her involvement in [Charity BB], in the context on the alleged global impact of the alleged family violence on her, and noting the onus she bears pursuant to s.140 Evidence Act 1995, on balance I am not persuaded that the [appellant] has established a course of family violence as alleged.
(As per the original)
The appellant again relied on the delay in the delivery of judgment and submitted that greater scrutiny than usual should be applied to this finding. However, the appellant did not suggest that in his extensive summary of the evidence his Honour mistook any of the evidence or omitted a material factor. Rather, the submission on appeal was that the primary judge wrongly adopted an “unsatisfactory broad brush approach” and failed to make specific findings on each and every incident alleged by the appellant (Appellant’s Summary of Argument filed on 22 March 2022, paragraph 57).
We do not accept that submission. If the reason for not accepting the evidence of the appellant is the same for each incident it would be entirely pointless for that explanation to be constantly repeated. The appellant did not point to the features of any specific incident to show that those features required a different approach.
There is a long line of authorities in the High Court of Australia that point out that where the advantages of a trial judge play a part in determining what evidence is to be accepted, that finding can only be challenged in limited circumstances, such as where the trial judge has misused his or her position or where the findings are contrary to incontrovertible facts or compelling inferences or are glaringly improbable. See, for example, Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; Lee v Lee (2019) 266 CLR 129.
The appellant submitted that the issues of the text messages and her role at Charity BB were too slight to justify the non-acceptance of the appellant’s evidence and that allegations of family violence should not be dismissed on such a flimsy basis.
In cases where there is no supporting evidence which assists in choosing between competing testimony of witnesses, the task of deciding which evidence to prefer can be difficult and sometimes a close decision. Here, the primary judge decided that the content of the appellant’s evidence as to Charity BB and importantly, the manner in which she gave answers to questions on them, was evasive.
We are not satisfied that his Honour determined the issue of which evidence to accept by erroneous means. The primary judge was entitled to follow the course that he took. In particular, we do not accept the submission that the appellant’s evidence was not accepted “largely because she did not properly disclose that she was engaged in volunteer charity work” (Appellant’s Summary of Argument filed on 22 March 2022, paragraph 66). That is an unfair and inaccurate summary of his Honour’s reasons.
Did the primary judge err in “failing to take account the expert evidence of Professor N”? (Ground 7)
Professor N is a psychiatrist who provided a report in which he opined that the appellant had a post-traumatic stress disorder (“PTSD”) which was consistent with the family violence she had described to him.
The primary judge said:
178.Because of the view I have formed that the [appellant’s] evidence on her mental state and the alleged impacts of family violence on her is unreliable, and as [Professor N’s] opinion can only be as good as the factual foundation on which it is based, I will deal with his opinion in as much detail as I usually would.
Such an approach is entirely in accord with the authorities such as Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
The appellant also submitted that the finding of Professor N that she had PTSD bolstered her evidence because there was no other explanation for the disorder. However, as Professor N’s report makes plain, it is based on an acceptance of the appellant’s allegations (Affidavit of Professor N filed on 9 July 2019, Annexure “A”, p.8).
This ground does not succeed.
Roxy the Spoodle (Grounds 8–9)
Roxy is a Spoodle who was acquired at some time in 2014. Perhaps, unsurprisingly given her age and likely limited economic value, Roxy did not appear in the list of assets to be divided. Nonetheless, each party sought an order for her possession.
The primary judge devoted some 25 paragraphs to this issue. After consideration of the evidence, the primary judge found that the appellant was the registered owner of Roxy, who had paid for her and was her legal owner. The primary judge also concluded that:
112.[Roxy] was joint de facto property. Though paid for by the [appellant], on her own evidence, in the context of an intact relationship the parties assumed would continue [… [64]] “we had purchased [Roxy] to be with [Ms T] [the respondent’s daughter from a previous relationship]”. Consistent with that it was [Ms T] who chose [Roxy], [Ms T] who named [Roxy], albeit from a list of names chosen by the [appellant], and [Ms T] attended with the [appellant] to collect [Roxy]. In colloquial terms [Roxy] was clearly [Ms T’s] dog. [Patricia] was later purchased to be a companion for [Roxy]. [Roxy] was not purchased as a companion for [Patricia].
113.[Ms T] is not a party to these proceedings. She has no legal nor equitable interest in [Roxy] and it is not appropriate that an order be made transferring [Roxy] to [Ms T].
114.However, given that [Roxy] is joint facto property purchased during the de facto relationship at a time the parties funds were intermingled, and in particular given the circumstances in which [Roxy] was purchased, and that the [respondent] also has an emotional interest in the ownership of [Roxy], I am satisfied that justice and equity would be best served by adjusting the property interests of the parties so that ownership of [Roxy] is transferred from the [appellant] to the [respondent], or his nominee. I will make orders to that effect.
The issue of registration was not in contention at trial as the respondent acknowledged that Roxy was registered to the appellant (Transcript 18 February 2022, p.166 line 1).
However, throughout the primary proceedings, there was significant debate over who paid for Roxy and who the owner of Roxy was.
With respect to the payment of Roxy, the appellant’s evidence was that she paid for Roxy, her desexing operation, registration, food, vaccinations, medications and grooming (Appellant’s affidavit filed on 28 June 2019, paragraph 64). In cross-examination, the appellant clarified that she paid the deposit for Roxy and then the balance of $700 upon purchase, and that she had supporting bank statements evidencing the cash withdrawals (Transcript 17 February 2020, p.43 line 35 to p.44 line 22).
The respondent’s evidence on the payment of Roxy was that he gave Ms T, his daughter from a previous relationship, $800 in cash to pay for her (Respondent’s affidavit filed on 29 July 2019, paragraph 165). However, when challenged on whether there was supporting evidence, the respondent stated, “the three of us know the truth, and we’re the only three who saw it happen” (Transcript 18 February 2020, p.166 lines 16–17). There was no other evidence of this payment.
Regarding the ownership of Roxy, the appellant gave evidence that she was the legal owner of Roxy, as Roxy is registered in her name with Council D (Transcript 17 February 2020, p.45 lines 27–30). There is no evidence that she ever relinquished such ownership. It was submitted that Roxy had always been in her possession since purchase, and save for a period where Roxy was in “protective custody” that appears to have been the case (Transcript 17 February 2020, p.47 lines 22–23).
The respondent maintained that Roxy was purchased for Ms T as her dog. Consistent with this, the respondent deposed that two days prior to this event, on 10 May 2019, he attended Council D with Ms T to try and transfer Roxy’s registration into Ms T’s name, as Ms T was going to turn 18 years old in a weeks’ time (Respondent’s affidavit filed on 29 July 2019, paragraph 300–302). The respondent deposed that Ms T signed a statutory declaration stating that Roxy is her dog, that she is turning 18 next week, and that she was scared to approach the appellant about the registration transfer as there had been difficulties with the appellant regarding Roxy (Respondent’s affidavit filed on 29 July 2019, Annexure “JJ”).
However, the appellant is the registered and legal owner of Roxy. Whilst there is conflicting evidence that the appellant paid for Roxy, it is not in dispute that she at least paid for the deposit and ongoing costs. It was open to the primary judge to find on the evidence that the appellant paid for Roxy.
It does appear that there was a mutual intention of the parties that Roxy was purchased for Ms T, which is consistent with the respondent’s evidence that he tried to register Roxy in Ms T’s name before she turned 18 years of age.
Notwithstanding this, as correctly stated by the primary judge, Ms T is not a party to the proceedings and has no legal or equitable interest in Roxy, and therefore it is not appropriate for the Court to make an order transferring Roxy to Ms T.
As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case in respect to them.
If the animals have significant value, they can be valued in the usual way. Of course, as with other assets, a party may have a particular reason for wishing to keep the animal, and that can simply be dealt with in the ordinary course.
It is more difficult in the case of a family pet of limited financial value. If the ownership is contested, there is much to be said for each party making a blind bid for the pet, with the highest offer accepted and taken into account in dividing the property.
The appellant submitted that the primary judge erred in taking into account the emotional attachment of the respondent and his daughter, Ms T, to Roxy, and in failing to take into account the attachment of the appellant to Roxy.
These submissions are fundamentally inconsistent. However, we do not need to resolve them. For the above reasons, all the orders will be set aside and the fate of Roxy determined as part of the re-exercise of the discretion.
What property orders should be made?
The parties asked us to re-exercise the discretion in the event that the orders were set aside. They were content to do so on the basis that the relevant property to be divided was that set out above. Neither sought to adduce any further evidence. We have had the benefit of further written submissions directed to the re-exercise.
The appellant’s position was that she should receive 70 per cent of the parties’ property and the respondent 30 per cent, because she has a contributions based entitlement of 65 per cent and that a further 5 per cent adjustment should be made taking into account the s 90SF(3) considerations.
For his part, the respondent submitted that any adjustment to the result arrived at by the primary judge should be “at the lower end of a minor adjustment” (Respondent’s Written Submissions filed on 23 June 2022, paragraph 27).
We pause here to observe that our task is not to adjust the primary judge’s outcome, but to re-exercise the discretion afresh.
Both parties sought the possession of Roxy.
A particular feature of this matter is the shortness of the relationship. In such a case the comments in Anson & Meek (2017) FLC 93-816 at [181] are apt. Justices Aldridge and Cleary said:
181.If the point is that, where there is a short marriage, where there are no children and where the parties’ contributions to their assets and to the welfare of the family from the commencement of the relationship to the time of the hearing is equal, any disparity in initial financial contributions is of critical importance in determining the overall contributions of the parties, then such a position is easily arrived at by the application of principle alone.
Therefore, there is much to be said for the proposition that the parties should simply receive the property owned by them. This is particularly so when the ownership of the B Town property was deliberately structured so as to reflect the parties’ contributions to it.
There are, however, some other matters that require consideration.
The first is the payment of $160,000. It is common ground that it was paid by the respondent to gain an increased share of the B Town property, but there the agreement ends. We are unable to resolve that dispute but the parties asked us to deal with the issue, as best we can, in the overall property division. Clearly an allowance must be made in the respondent’s favour for at least that sum.
The respondent, via his inheritance, paid off the mortgage in the sum of $43,846.42. This is a contribution by him which must be recognised.
The appellant submitted that she made greater contributions during the relationship, including caring for the respondent’s daughter. We accept that to be so, but note that the contributions cannot be regarded as substantial given the short relationship.
The appellant submitted that she contributed significantly to the receipt of the inheritances because of the assistance she provided to the respondent’s mother and grandmother.
Her evidence does not persuade us that her contributions, the majority of which were provided just before or after the paternal mother and paternal grandmother’s deaths, are likely to have any impact on the receipt of the inheritances. The contributions are best regarded as non-financial contributions pursuant to s 90SF of the Act.
The appellant has not lived in the B Town property since November 2019 and has resided in rented premises. The respondent has remained living in the property, rent free. This consideration must be taken into account in favour of the appellant. Regrettably, neither the evidence nor the further written submissions identified the amount of rent paid by the appellant. Therefore, we will just have to do the best we can as things stand.
As to the s 90SF(3) considerations, the appellant is significantly older than the respondent and has a shorter working life ahead of her. The appellant does however, have a greater earning capacity than the respondent and has, unlike the respondent, the benefit of considerable superannuation. The appellant gave evidence that her work prospects have been hampered due to psychological difficulties she has suffered arising from the parties’ relationship. These matters favour a slight adjustment in the appellant’s favour, which will be achieved simply by returning the sum of $160,000 to the respondent without further adjustment.
We will not take into account the principles set out in Kennon, because the primary judge’s findings on that matter have survived the appeal.
Finally, because of the short relationship, many of these considerations do not attract substantial weight.
The total assets available for distribution are $2,429,940. If the disputed sum of $160,000 is returned to the respondent, the appellant would hold $1,333,290 or 55 per cent and the respondent $1,096,650 or 45 per cent.
We have already set out the financial contributions to that property pool and there is no need to repeat them. We offset the respondent’s contribution to the mortgage against his use of the B Town property for nearly three years.
We consider that, in broad terms, the above division, which simply returns the $160,000 to the respondent without any allowance for any increase in value of the B Town property, adequately takes into account the above matters.
Accordingly, the order will provide for the sale of the B Town property and the division of the proceeds 70 per cent to the appellant and 30 per cent to the respondent. The orders will provide for the payment of $160,000 by the appellant to the respondent and for the parties otherwise to retain the assets in their possession or name.
With respect to the possession of Roxy, and doing the best we can on the evidence, the appellant should retain her. However, the order will provide for an adjustment of $800 to the respondent for the purchase price of Roxy, in the absence of Roxy being on the parties’ list of assets and liabilities and any evidence advanced by the parties as to Roxy’s current value. The respondent may in turn consider giving this sum of $800 to Ms T towards the purchase of another dog.
We consider these orders just and equitable.
Costs
The appeal has been partially successful, although a number of grounds have failed. However, quite properly, there was little that counsel could say on the grounds raising the error as to the contributions. The appeal should have been conceded at an earlier time. Given that, and the amount claimed by the appellant in her costs schedule, the respondent will be ordered to pay the appellant’s costs fixed in the sum of $12,000.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren and Justices Aldridge & Brasch. Associate:
Dated: 26 August 2022
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