GWH & PGH

[2005] FamCA 388

[2005] FamCA 388

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 117 of 2004

File No. SYF 4880 of 2003

IN THE MATTER OF:

GWH

Appellant/Husband

- and -

PGH

Respondent/Wife

REASONS FOR JUDGMENT

BEFORE:Coleman, May and Boland JJ

HEARD:3 May 2005

JUDGMENT:            20 May 2005

APPEAL SUMMARY

MATTER:GWH and PGH

APPEAL NUMBER:  EA 117 of 2004 (SYF 4880 of 2003)

CORAM:Coleman, May and Boland JJ

DATE OF HEARING:  3 May 2005

DATE OF JUDGMENT:  20 May 2005

CATCHWORDS:               

APPEAL – Property – Whether trial Judge failed to give sufficient weight to the husband’s pre-marriage contributions in assessing his contribution entitlement at 70 per cent – Whether trial Judge should have adopted an asset by asset approach rather than a global approach – Whether a s 75(2) adjustment of 15 per cent in favour of the wife was outside the reasonable ambit of the trial Judge’s discretion – Open to trial Judge to adopt global approach: Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712 – Contribution assessment within reasonable range of the trial Judge’s discretion considering the myriad of contributions made by each of the parties over their almost 19 years of cohabitation and marriage – Section 75(2) assessment within reasonable range of the trial Judge’s discretion considering the parties’ “not dissimilar” earning capacities, the disparity in financial positions in husband’s favour and wife’s care of the children – Costs order in wife’s favour

Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712

Pierce v Pierce (1999) FLC 92-844

Appeal dismissed.

Introduction

1. This is an appeal by the husband in respect of orders made under s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Le Poer Trench J on 18 October 2004 as varied pursuant to the slip rule on 11 November 2004. The effect of the trial Judge’s orders was to divide the parties’ assets of $1,638,818.93 between them as to 55 per cent (or $901,350.41) to the husband and 45 per cent (or $737,468.52) to the wife.

1. The gravamen of the husband’s appeal is that the trial Judge failed to give sufficient weight to the husband’s pre-marriage contributions and in particular to the value of a commercial property (“the commercial property”) located in the inner-west of Sydney.  The second major area of complaint of the husband is the trial Judge’s assessment of relevant factors under s 75(2).  The husband submits that the trial Judge’s adjustment of 15 per cent or $245,822 is outside the reasonable ambit of his Honour’s discretion.

Amended notice of grounds of appeal

1. The husband filed an Amended Notice of Appeal on 6 December 2004.  Before us the husband abandoned grounds 5, 6 and 7.  The remaining grounds relied on, as set out in the Amended Notice of Appeal, are as follows:

“1.His Honour erred in not treating the Husband’s interest in the [commercial] property…on an asset by asset approach AND His Honour failed to provide any or any proper reasons.

2. His Honour failed in any event to properly weigh and assess the contributions made by the Husband in compared (sic) with those made by the Wife and the findings made in relation to the parties respective contributions were manifestly unjust and outside the range of a reasonable discretion.

3. His Honour erred in finding, if he did, that the earning capacities of the parties were equal and as a consequence His Honour’s findings as to the future needs of the parties was in error AND His Honour failed to provide any or any adequate reasons.

4. His Honour mistook or failed to understand the facts of the case causing error, and inter alia:

(a)   His Honour at paragraph 49 mistook the unequivocal and unchallenged evidence as to the income derived by the Husband as Landlord of a ½ interest in the business premises; and

(b) His Honour failed at various crucial points of the Judgment to appreciate the implications of this historically and prospectively AND as a result His Honour erred and his discretion miscarried …”

1. Before us, counsel who appeared on behalf of the husband, argued grounds 1 and 2 which dealt with contribution together and also grouped grounds 3 and 4 which address issues under s 75(2).  We find it convenient to deal with the grounds in the same groupings as used by counsel for the husband.

Relevant background

1. Both parties’ written submissions set out factual matters which are not in dispute.  The husband was born in August 1949 and is according aged 55 years.  The wife was born in May 1964 and is accordingly aged 41 years. 

1. The parties commenced cohabitation in May 1982 and were married in March 1986.  They separated under one roof in January 2001, before physically separating in December 2002.

1. There are two children of the marriage, namely [A] born in October 1987 (aged 17 years) and [S] born in February 1997 (now aged 8 years).  The husband was previously married and had two children from his first marriage.

1. At the date of the hearing the husband was conducting a retail footwear shop in the inner-west of Sydney and the wife was employed as a nursing assistant.

Trial Judge’s judgment

1. At the commencement of his reasons for judgment the trial Judge noted a brief history of the parties and that they had accumulated assets of at least $1.6 million.  The trial Judge thereafter set out a list of issues in dispute between the parties, and noted a concession by the husband that the wife had made the majority of the homemaker and parenting contributions.  His Honour also noted there was a concession by the husband that the wife should be given a reasonable opportunity to acquire the husband’s interest in the matrimonial home (“the matrimonial home”) on the north shore of Sydney. 

1. The trial Judge set out relevant background facts noting that at the commencement of cohabitation the husband had “a considerable quantity of property” including a residential property (“the residential property”) on the north shore of Sydney and the commercial property.  The husband’s property was noted to have a then total net value of $274,000.  There is no challenge to this finding of the trial Judge or any other factual matter save and except the trial Judge’s findings about rents from the commercial property to which we will return later. 

1. The trial Judge noted the following:

(a)at the commencement of cohabitation in May 1982 the wife was aged 18 years and was employed by the husband and his sister in their retail shoe shop.  The wife owned a Holden motor vehicle and had a small quantity of personal goods;

(b)in April 1984 the husband and his first wife agreed on a property settlement pursuant to which the husband paid to his former wife the sum of $110,000 and in addition paid $3,500 towards her legal costs.  In order to pay out the husband’s first wife, the husband borrowed the sum of $105,000 by way of mortgage secured against the residential property.  The trial Judge noted the effect of the borrowing was that the husband had virtually no equity in the residential property;

(c)the parties were married on 1 March 1986.  He also noted that throughout their cohabitation that both parties worked hard.  This work included the wife’s employment in the retail shoe business until 1987 shortly prior to their eldest child’s birth; 

(d)the parties carried out improvements to residential properties owned by them during their cohabitation.  In December 1995 the wife’s father lent them the sum of $68,950 which was used by the husband, together with the sum of $90,000 (which was raised by borrowings against the matrimonial home), to purchase the husband’s sister and brother in law’s interest in the retail shoe business.  The trial Judge noted that the husband’s sister retained a half interest in the commercial property from which the retail shoe business was conducted;

(e)in 1997 the parties’ second child [S] was born and that the wife ceased working prior to her birth.  He also noted that the wife did some bookwork for the husband’s company from the home;

(f)in September 1999 the parties sold the residential property for a sale price of $440,000 and purchased the matrimonial home for a purchase price of $730,000.  The parties borrowed $275,000 from the Commonwealth Bank to complete the purchase of the matrimonial home;

(g)in November 2000 the wife returned to work at a nursing home working night shifts; 

(h)the contributions made by the wife’s father to the parties by way of provision of funds.  In 1992 the parties received $8,000 to purchase a car, in 1995 they received $3,000 to erect a fence at the matrimonial home, in 1997 a further sum of $4,000 to purchase a car and in 1999 provision of $1,742 to provide for tiling of the billiard room at the matrimonial home;

(i)the parties physically separated in December 2002 when the husband left the former matrimonial home.  At that time the parties’ repayments on the home loan had been paid in advance by about $7,000; and

(j)in 2003 the husband received an inheritance of $183,625 from his mother’s estate.  At the date of the trial the husband had retained $120,000 in a term deposit and had applied $30,000 towards his legal costs of the proceedings. 

1. The trial Judge thereafter discussed the list of assets and liabilities provided by the parties’ counsel at the commencement of the hearing and noted that the list of assets and liabilities included the balance of the husband’s inheritance as well as paid legal costs.  His Honour said:

“I raised with each party whether it was appropriate to include this sum in the balance sheet.  I suggested a fairer way may be to remove it from the balance sheet, for the purpose of weighing the parties (sic) contributions to the assets acquired at date of separation, but nevertheless have regard to it when I consider the matters relevant under section 75(2).  Both Counsel agreed I would not be in error if I followed that course.”

1. The trial Judge thereafter set out the list of the parties’ assets and liabilities.

1. At paragraphs 39-42 inclusive of his reasons for judgment the trial Judge dealt with the issue of the wife’s capacity for future employment.  He noted:

“Although this was identified as an issue at the commencement of the proceedings there was no submission made about this issue at the conclusion of the proceedings.”

1. The trial Judge noted:

“…The wife’s evidence is that since August 2004 she has been working at a retirement village.  She is a permanent part-time employee and works 4 days from 9am to 5pm.  She earns $19 per hour and works 30 hours per week.  This provides her on average $570 per week.  In addition she works one shift per week, and occasionally more, at Wesley Garden.  Her shift earns her $115.52.  This provides her with a total income of $685.52 per week.  In addition, as I have said, she occasionally does a further shift at [a retirement village].”

1. The trial Judge further noted:

“The wife is currently 40 years of age.  Prior to the separation she was earning more than she currently does, however, she worked a different type of job at that time.  It appears that her income for the 2002 tax year was nearly $80,000, of which, $13,000 was sourced from…the husband’s company.  In the 2003 tax year her gross taxable income was about $67,000.  Her income in the current year, if she continues to earn at the rate she deposed to in her evidence, will be about $35,000.”

1. The trial Judge commented on the lack of explanation for the difference in the wife’s income for the year ended 2003 and anticipated income for the year ended 2004 and said:

“…Certainly since December 2002 the wife has not had the capacity to work a nightshift because the husband has not been available to care for the children.  It may be that this in part provides the answer.

In any event, it appears that the wife may have the capacity to earn an income higher than $35,000 per year.  It is difficult to quantify this and it is difficult to determine when the wife may be in a position to increase her income.  This capacity however, would seem to be curtailed by the wife’s responsibility to care for the children and or her ability to obtain assistance in supervising them during her work hours.  The supervision may come at a cost.”

1. At paragraph 48 of his reasons for judgment the trial Judge discussed the parties’ initial contributions and concluded:

“Clearly the husband’s initial contributions overwhelm those made by the wife and there needs to be an adjustment in his favour having regard to same.”

1. The trial Judge then discussed the contributions of the husband to the date of separation.  The trial Judge discussed income received by way of rent for the commercial property, and made the following finding:

“It was submitted by the husband that the property generated income for him.  I could find no clear evidence of this, however, I accept it must have contributed to his income either by a lease type agreement between the…Company and he and his sister as owners of the property or otherwise providing rent free occupation to the company.”

It is asserted on behalf of the husband that the trial Judge was in error in so finding. 

1. The trial Judge noted that the husband’s contributions included:

·applying his income towards the purposes of the family;

·the application of the net proceeds of the residential property to the purchase of the matrimonial home;

·the contribution of the husband’s inheritance of $183,625.04 (this was qualified by the recording of the application of $30,000 for legal costs and $120,000 represented by a term deposit being removed from the parties’ list of assets and liabilities);

·non-financial contributions including removal of lantana and scrub from the rear of the matrimonial home and maintenance and improvement of the parties’ residential properties; and

·some contribution as homemaker and parent.

1. The trial Judge noted the wife’s contributions to include:

·employment in the husband’s business until the birth of the parties’ first child;

·her employment from 1992 to 1997 and thereafter from 2000 until the date of the hearing;

·the majority of contributions as homemaker and parent;

·the sums advanced by her father applied to purchase motor cars and to the matrimonial home;

·the loan of $68,950 from her father; and

·the joint borrowing of $90,000 secured against the matrimonial home to purchase the interest of the husband and his sister in the retail shoe business. 

1. The trial Judge recorded that post-separation the wife had the benefit of occupation of the matrimonial home, but retained the major responsibility for the care of the children.  He noted a significant contribution by the husband by way of child support and payment of private school fees for [A].  He finally noted that on and from 2002 the wife made interest only payments on the mortgage.

1. His Honour thereafter dealt with the parties’ submissions including the following:

“The husband urged me to adopt a method of the assessment of contributions which requires a consideration of asset by asset.  I was referred to the decision of Norbis and Norbis.  I do not think this is a case which warrants the approach submitted and I propose therefore to consider all contributions on a global basis.”

1. The trial Judge noted the submission made on behalf of the husband that contributions should be assessed in the range of 80-85 per cent on his behalf.  The basis of such submission, which was repeated before us, was “said to arise out of the husband’s initial contributions”.  The trial Judge recorded:

“But for the husbands (sic) initial contributions, it is submitted on his behalf, the parties (sic) contributions should be assessed as equal.”

1. His Honour also noted the submissions made on behalf of the wife that contributions should be assessed as to 55 per cent to the husband and 45 per cent to the wife.  The trial Judge set out his findings on contribution as follows:

“In my assessment, substantial weight must be given to the initial contributions of the husband.  The [commercial] property which was brought into the marriage by him, on the evidence before me, this (sic) has required little or no contribution by the parties since the cohabitation.  That property currently has a value to the husband of $837,500.  It is unencumbered and therefore represents about one half of the parties (sic) current equity in the totality of their assets.  There is no doubt that the other assets brought to the marriage by the husband have provided a very significant springboard from which the parties have been able to establish their wealth.

I am of the opinion that the contribution of the husband should be seen as greater than that of the wife and I assess the contributions to the date of hearing as 70 per cent to the husband and 30 per cent to the wife.”

1. The trial Judge then turned to assessment of relevant factors under s 75(2).  His Honour noted the difference in the parties’ ages and concluded that it appeared reasonable to assume that the husband would work for another 10 years. 

1. The trial Judge found “[t]he husband’s present income is modest and not dissimilar to that of the wife”.

1. He noted the submission made on the husband’s behalf that the wife had a capacity to earn a greater income than that of the husband.

1. The trial Judge made a finding that the husband’s income in prior years had exceeded his present income and concluded “I think it is reasonable to conclude that the parties have an earning capacity which appears to be not dissimilar”. 

1. The trial Judge thereafter referred to the wife’s responsibility for the two children of the marriage.  His Honour recorded that, as a result of his assessment of contributions, the husband’s entitlements exceeded those of the wife by $655,527.  He also recorded that the husband would retain the term deposit being the balance of his inheritance of $120,000. 

1. The trial Judge noted the submissions made by the wife that there should be an adjustment in her favour under s 75(2) of 15-20 per cent, and the husband’s concession an adjustment in the wife’s favour was appropriate, but that the adjustment should be 10 per cent.  The trial Judge, having weighed the relevant factors under s 75(2), concluded that an adjustment of 15 per cent or $245,822 should be made in the wife’s favour. 

1. The trial Judge then considered the overall effect of his orders noting that the wife would receive assets to the value of $737,468.52 and the husband would receive $901,350.41 together with his inheritance of $120,000.  His Honour concluded that the husband would retain assets of $283,881.89 more than the wife and that this result was a just and equitable one. 

The relevant law

1. This is an appeal against a discretionary order.  The circumstances in which the Full Court should interfere with a discretionary judgment are well known.  In Gronow v Gronow(1979) 144 CLR 513 Stephen J said at 519:

   “The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.”

1. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:

   “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 

The contribution grounds

1. The thrust of counsel for the husband’s submissions in relation to the trial Judge’s assessment of the parties’ respective contributions falls into two areas:

(a)the adoption by the trial Judge of a global rather than an asset by asset approach; and

(b)the weight given to the husband’s initial contributions.

(a)The asset by asset/global approach

1. In his oral submissions before us, counsel for the husband submitted that the trial Judge had failed to give reasons as to why he adopted a global approach.

1. It is submitted by counsel for the wife in his written submissions on behalf of the wife “that the Court was entitled to approach the assessment of contributions on a ‘global’ rather than an ‘asset by asset’ basis”.  It is further submitted that this approach is consistent with authority and, significantly, conceded by counsel for the husband at the trial.

1. The approach to be adopted by a trial Judge in assessing contributions under s 79 of the Act is well known, the relevant principles being set out by the High Court of Australia in Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712 where Mason and Dean JJ said:

“Although it is natural to assess financial contributions under sec. 79(4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties' property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an ‘asset-by-asset’ basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient.”

Their Honours also said:

“What the Full Court asserts is that the global approach is the only ‘realistic’, that is, convenient, means of arriving at the entitlements of the parties.  Again, it seems to us that it will depend on the circumstances of the particular case, though in the majority of cases the global approach will be the more convenient and for this reason the Full Court is entitled to prescribe its adoption as a guideline in the majority of cases.  The Family Court has rightly criticised the practice of giving over-zealous attention to the ascertainment of the parties' contributions, and we take this opportunity of expressing our unqualified agreement with that criticism, noting at the same time that the ascertainment of the parties' financial contributions necessarily entails reference to particular assets in the manner already indicated.” 

1. At the trial the following exchange occurred between the trial Judge and counsel who appeared on behalf of the husband at trial:

“[COUNSEL FOR THE HUSBAND AT TRIAL]: Thank you, your Honour. Those are the submissions that I would make in relation to why your Honour ought to treat that on an asset by asset approach.
HIS HONOUR:           Yes.
[COUNSEL FOR THE HUSBAND AT TRIAL]: Having said all of that, at the end of the day ---
HIS HONOUR:           Yes.
[COUNSEL FOR THE HUSBAND AT TRIAL]: --- as observed by their Honours, it probably won’t matter much whichever approach is taken in terms of your Honour coming to a view.”

1. We are satisfied, having regard to the principles espoused in Norbis, and the concession made by counsel for the husband at trial, that it was open to the trial Judge to adopt a global approach.  Accordingly we find no merit in the husband’s assertion that the trial Judge was in error in failing to adopt an asset by asset approach.  We are further fortified in this finding having regard to the actual consequences of the trial Judge’s finding on contributions which we discuss below. 

(b)Assessment of contribution

1. It is submitted on behalf of the husband that the agreed value of the commercial property of $837,500 comprised approximately half of the asset pool as found by the trial Judge of $1,638,818.  On this basis it is submitted that contributions should have been assessed on the basis that the wife made no contribution, direct or indirect to one half of the asset pool and that the highest evaluation the wife could achieve in respect of the balance of the assets was 40 per cent, leading to a contribution based entitlement of the wife of 20 per cent. 

1. By contrast, it is submitted on behalf of the wife, that having regard to the totality of the wife’s contributions, including her role as primary homemaker and parent, her work in the husband’s business and other employment, together with the loan of $68,950 by her father, other financial assistance received from her father, and her indirect contributions in respect of the mortgage of $90,000 secured against the matrimonial home, the trial Judge’s contribution assessment of 30 per cent to the wife and 70 per cent to the husband was justified.  It is further submitted that such an assessment was within the reasonable ambit of the trial Judge’s discretion. 

1. It is further submitted on behalf of the wife that to quarantine the commercial property would be “inconsistent with established authority and in particular that of the Court in Money (supra, per Fogarty J in dissent), Way (1996) FLC 92-702 (Barblett DCJ, Finn and Butler JJ), Aleksovski (1996) FLC 92-705, (Baker, Rowlands and Kay JJ) and Pierce (1999) FLC 92-844, (sic) Ellis, Baker and O’Ryan JJ)”.

1. The approach to be adopted in assessing initial contributions was considered by their Honours Ellis, Baker and O’Ryan JJ in Pierce as follows:

“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home…”

1. We are also cognisant that before the trial Judge it was conceded on the husband’s behalf that the parties’ contributions, other than that of the commercial property, should be regarded as equal.  We record the concession made by the husband’s counsel to the trial Judge as follows:

“[COUNSEL FOR THE HUSBAND AT TRIAL]: --- in terms of the exercise of your Honour’s discretion.  Take the other property out, when we’d be then pretty close in contributions, I would’ve thought, putting aside perhaps the inheritance – or maybe even leaving it in – close to around the 50/50 on contributions, I would’ve thought.”

1. That approach would have resulted in the wife receiving a contribution based entitlement in the range of $400,659 to $460,659.  The trial Judge’s assessment of her contributions at 30 per cent resulted in a contribution based entitlement of the wife at $491,645.  We are not satisfied that this was outside the reasonable range of the trial Judge’s discretion particularly having regard to the myriad of contributions made by each of the parties over their cohabitation and marriage which extended for 18 years and 8 months, and also having regard to the fact that the exercise being conducted by the trial Judge was not a strict accounting exercise.

Section 75(2) factors

1. In his written submissions, counsel for the husband submits that “[t]he earning capacity of the wife, however, historically is significantly greater than the Husband, and on the evidence, she has been able to earn income in the sum of $67,000.00”.

1. Counsel for the husband compares and contrasts these earnings of the wife with the husband’s earnings and his liability to pay child support.  He submits that the proper adjustment to be made in the wife’s favour is 10 per cent.

1. He further submits that the trial Judge was in error in ignoring the husband’s financial statement which disclosed a net weekly income as landlord of the commercial property of $570 per week.  We do not find anything of significance turns on the trial Judge’s discussion of the rent derived from the commercial property.  The trial Judge dealt with that fact in his assessment of the parties’ contributions.  There is nothing to suggest that the trial Judge had before him a history of rents received over the parties’ 18 years cohabitation.  Rather the evidence before his Honour was limited to the husband’s current receipt of rental income. 

1. On behalf of the wife it is submitted that the trial Judge did not err by finding that the parties’ earning capacities were equal, but rather the finding made by the trial Judge was that “the earning capacities of the parties were not dissimilar”. 

1. In his written submissions, counsel for the wife analyses the evidence of the wife’s earnings, including the income earned by way of income splitting with the husband, resulting in the wife receiving actual earned income as follows:

2000	$1,732
2001	$34,256
2002	$66,613
2003	$67,315

Counsel for the wife notes in the periods listed below the husband earned:

2000	$100,443
2001	$85,801
2002	$54,693

1. He further notes at the time of the trial the wife’s gross earnings were $35,620 per annum (with the concession that she might undertake an occasional extra shift) and the husband’s earnings were approximately $55,900.

1. We are satisfied that the trial Judge had careful regard to the parties’ respective ages, the husband’s future projected working life, and made a finding that the parties’ earning capacities were not “dissimilar”.  At the same time his Honour noted the restrictions on the wife’s ability to earn at the rate she had in the past, which involved night time work, and her need in the future to provide for childcare arrangements to facilitate her employment.

1. We are also satisfied that the trial Judge had proper regard to the wife’s care and control of the children, particularly the younger child of the marriage who was aged 7 years at the date of the trial. 

1. We are further satisfied that the trial Judge gave appropriate weight to the disparity in the parties’ capital positions by reason of his contribution based assessment, and the retention by the husband of the balance of his inheritance.

1. Noting that the husband concedes an adjustment of 10 per cent should be made in the wife’s favour, we are not satisfied that the trial Judge’s assessment of factors under s 75(2) requiring adjustment in the wife’s favour exceeded the reasonable ambit of his discretion by assessing those factors at 15 per cent or $245,822.  Accordingly we find no merit in grounds 3 and 4. 

Costs of the appeal

1. At the conclusion of the appeal counsel for the husband submitted in the event that the appeal was dismissed that his client should pay the wife’s costs in the sum of $3,500.  Counsel for the wife accepted that such an amount would be an appropriate sum to be awarded to the wife by way of costs.

ORDERS

1. That the appeal be dismissed.

1. That within 28 days of the date of this order the husband pay the wife’s costs in the sum of $3,500.

I certify that the preceding 57 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.



Associate