H v G - [2005] SASC 344

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
H v G
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Layton)
14 September 2005
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - GENERALLY
Appeal by defendant against orders awarding the plaintiff a sum pursuant to the De Facto Relationships Act 1996 - whether just and equitable - consideration of legal principles in making orders for a divison of property - consideration of contributions to the relationship before and after separation - overall assessment of contributions and benefits - whether assessment should be calculated at the date of separation or the date of trial and whether to take into account "means and needs" of parties for the future - whether an error in the exercise of the judge's discretion - observations on submissions at trial differing from submissions on appeal - Held: Appeal dismissed.

PROCEDURE - COSTS - APPEALS AS TO COSTS
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - GENERALLY
Cross-appeal by plaintiff - whether award was manifestly inadequate - whether trial judge erred in assessing financial contributions of the parties - whether judge erred in refusing to award costs on a solicitor and own client basis - consideration of a Calderbank letter and Rule 41.01 offer - Held: Cross-appeal dismissed.
De Facto Relationships Act 1996 (SA) s 9, s 10, s 11, s 12; Limitations of Actions Act 1936 (SA) s 48; Family Law Act 1975 (Cth) s 79; Supreme Court Rules 1987 (SA) r 41.01; De Facto Relationships Act 1984 (NSW); Domestic Relationships Act 1994 (ACT), referred to.
ACCC v Australian Safeway Stores Pty Ltd (No 3) (2002) ATPR 41-901; Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280; Arnold v Dalton (2002) 84 SASR 482; Callaghan v Callaghan (No 2) (Unreported, Supreme Court of South Australia, Perry J, Jud. No S5562, 3 May 1996); Casley-Smith v Egans & Sons (1989) 148 LSJS 483; Chapman v Chapman & Holmes [1946] SASR 217; Cretazzo v Lombardi (1975) 13 SASR 4; De Winter v De Winter (1979) 23 ALR 211; Dwyer v Kaljo (1987) 11 Fam LR 785; Evans v Marmont (1997) 42 NSWLR 70; Ferris v Winslade (1998) 22 Fam LR 725; Gardner v Cleggs (1983) 2 All ER 398; Gleeson v Hammerton (No 2) [2004] SADC 153; Gronow v Gronow (1979) 144 CLR 513; Hogg v Roberts (2003) 87 SASR 248; House v The King (1936) 55 CLR 499; Anastasio & Anastasio (1981) FLC 91-093; Holmes & Holmes (1990) FLC 92-181; McTaggart & McTaggart (1988) FLC 91-920; Zappacosta & Zappacosta (1976) 26 FLR 412; Zyk & Zyk (1995) 19 Fam LR 797; Love v Chidley (2002) 219 LSJS 287; Mahon & Mahon (1982) FLC 91-242; Morris v McEwen [2005] SASC 284; National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 668; Norbis v Norbis (1986) 161 CLR 513; Pirrotta v Citibank (1998) 72 SASR 259; Port Jackson Stevedoring Pty Ltd v Salmond & Sporaggon (Aust) Pty Ltd (The New York Star) (1978) 139 CLR 231; Re Elgindata Ltd (No 2) [1993] 1 All ER 232; Ritter v Godfrey [1920] 2 KB 47; Ruddock v Fadarlis (2002) 188 ALR 143; Southern Resources Ltd v Residues Treatment and Trading Co Ltd (1990) 56 SASR 455; Water Board v Moustakas (1988) 180 CLR 491, considered.

H v G
[2005] SASC 344
Full Court: Sulan, White and Layton JJ

SULAN J: I would dismiss the appeal and the cross-appeal. I agree with the reasons of Layton J.
WHITE J: I would dismiss the appeal and the cross-appeal. I agree generally with the reasons of Layton J.
LAYTON J: This is an appeal and cross appeal from orders made by a District Court judge on 8 October 2004, pursuant to the De Facto Relationships Act 1996 (SA) (“the Act”). Dr H is the appellant on the appeal and respondent on the cross appeal and I will refer to him hereafter as “the defendant”, this being his party status in the District Court trial. Ms G is the respondent on the appeal and the cross appellant and I will correspondingly refer to her as “the plaintiff”.
The composite orders made following the trial of the action and arguments as to costs, are as follows:[1]
[1] AB 1552.
1.The application by the plaintiff that the costs of action, in whole or in part, being on a solicitor and client basis is dismissed.
2.The defendant’s application that the defendant have the costs of the issues described as the "hand injury issue" and "concealed assets issue" is dismissed.
3.The plaintiff to have her costs of action against the defendant taxed if not agreed and for certainty those costs to be on a party/party basis.
4.The defendant pay to the plaintiff the sum of $210,000.00 inclusive of interest.
5.In full discharge of order 4 hereof the defendant to direct Bank SA to transfer the amount payable pursuant to order 4 from the monies held in Billflex Account Number 022/4035736460 to the plaintiff or at her direction, that upon the giving of such direction in this order 5 the defendant is discharged from the undertaking given by him to the Court on 4 April 2002.
6.The plaintiff’s counsel’s fees are certified fit for senior counsel as sole counsel.
7. The parties may apply to speak as to the Minutes on 24 hours notice.
The defendant appealed against each of the above orders, save for orders 1 and 7, in a document termed a “supplementary notice of appeal” but which was in fact an amended notice of appeal (“the Notice of Appeal”) and sought the following orders:
1.That orders 1,2,4,5 and 6 be set aside and that in lieu thereof the following orders be made:
1.1     That the [defendant] do not pay any further monies to the [plaintiff] and that the [plaintiff] do repay to the [defendant] forthwith the sum of $90,000.00 already paid by the defendant to the[plaintiff] pursuant to the judgment of the learned Judge and order number 1 referred to on page 2 hereof (namely that the defendant pay to the plaintiff the sum of $210,000.00 inclusive of interest).
1.2     That the sum of $90,000.00 paid into the Trust Account of the [plaintiff’s] solicitors, Robinson & Mason Pty Ltd, pursuant to the order number 4 of the orders made by Master Norman in District Court Action no 1773 of 2001 on 12 November 2004 (plus interest, if any) be paid to the [defendant] forthwith.
1.3     That the order numbered 3 of the said orders made by Master Norman in District Court Action no 1773 of 2001 on 12 November 2004 be cancelled, revoked, rescinded or set aside.
1.4     In the alternative to the order sought in subparagraph 1.1 above, that the [defendant] do pay to the [plaintiff] such sum of money as the Full Court considers as just and equitable pursuant to Section 10 of the De Facto Relationships Act.
1.5     That the [plaintiff] do pay to the [defendant] his costs of and incidental to the District Court Action no 1773 of 2001 to be taxed in default of agreement on a party and party basis or, in the alternative, to make an order for costs in favour of the [defendant] against the [plaintiff] in relation to the two discrete issues upon which the [plaintiff] wholly failed, namely her allegations of concealment of assets by the [defendant] and of the alleged assault by the [defendant].
The plaintiff cross-appealed in relation to orders 1 and 3.
Overview of trial and background facts
The plaintiff instituted proceedings against the defendant seeking an order pursuant to s 10(1) of the Act as well as an extension of time within which to make an application for that order pursuant to s 9(3) of the Act. In addition, the plaintiff sought damages against the defendant for an alleged assault upon her by him as well as an extension of time pursuant to s 48 of the Limitations of Actions Act 1936 (SA), within which to claim such damages.
When the action came on for trial, the defendant consented to an order under s 9(3) of the Act but resisted the order for extension of time pursuant to the Limitations of Actions Act 1936.
In her claim for relief, the plaintiff, in the absence of full particulars, nominated that she obtain an order that the defendant pay the sum of $500,000.00.
The defendant filed a defence and counterclaim. In his counterclaim the defendant sought an order that a house property at Hill Street, North Adelaide (“Hill Street”) be sold and the proceeds divided between the parties in proportion to their relative contributions, that the plaintiff deliver up any of his belongings retained by her and that the balance of the contents be divided equally.
The hearing proceeded over two weeks and a detailed judgment of some 52 pages was delivered in which his Honour found that it was just and equitable that the defendant pay to the plaintiff the sum of $210,000 inclusive of interest pursuant to s 10 of the Act. His Honour refused the application for an extension of time within which to bring an action for damages pursuant to s 48 of the Limitation of Actions Act 1936. His Honour later made an order that the plaintiff have her costs on a party and party basis.
The background facts
Further facts will be addressed under particular grounds of appeal, but the basic facts are as follows.
The plaintiff was born in 1957, and at the date of judgment was aged 47 years. She had previously been married for a period of four years. After having occupied various positions as a personal secretary and performing some radio and television work, she was working full-time with an advertising company at the time she met the defendant in January 1986.
The defendant was born in 1954 and was aged 49 years at the date of judgment. He was an ophthalmologist when he first met the plaintiff. He was married but separated from his wife.
In May 1986 the plaintiff and defendant commenced living together as husband and wife. They separated in June 1998. There is one child, T, of the relationship born in 1991.
Housing arrangements
The defendant first lived with the plaintiff in her Glenelg unit. In late 1988 the parties moved to rented accommodation, and in March 1991 they moved into Hill Street, which was purchased in February 1991 in joint names. At that time the plaintiff was pregnant with T. She resigned from her employment on 30 December 1990. A month after the parties moved into Hill Street, T was born.
The parties continued to live at Hill Street until they separated in June 1998 when the defendant left the house. The defendant initially lived with his mother in Gawler, and commuted to his practice rooms. He later began living with Dr M, whom he eventually married in May 2002.
In the meantime, the plaintiff and T continued to live in Hill Street until 16 August 2002 when the house was sold. The plaintiff then purchased a unit at Maylands where she and T lived until it was sold on 7 April 2003. They moved into rental accommodation; this remained their housing situation at the date of trial.
Employment and income of the parties
At the time when the parties met, the plaintiff earned a salary of $27,000 per annum and was provided with a company car. When the defendant commenced living with her at the Glenelg unit, for almost two years he contributed nothing towards the rent or other costs. By 1987 the plaintiff was promoted to the position of manager with a resulting increase in her salary to $38,000 per annum plus bonuses and a company car. In late 1987, it was agreed that the defendant would pay the rent and the plaintiff would pay the other outgoings. This arrangement continued when the parties moved to another rental property in Gover Street, North Adelaide, until the plaintiff resigned because of pregnancy. The plaintiff has not worked since December 1990 and has been financially supported by the defendant in various ways including after separation as discussed hereafter. Since July 2001 the plaintiff has received a sole parent benefit and as at the date of trial was receiving $635 per week comprising Supporting Parents Pension, Family Assistance payments and child support payments of $352 paid by the defendant.[2]
[2] However, as a result of a re-assessment on 4 June 2003 to increase by $10,951 per annum with the effect that from 4 February 2003, the child support payments to T from the defendant increase by about $2,500 per month. The defendant applied to vary this reassessment. See [194].
The defendant was admitted into partnership in an ophthalmology practice in 1985 which cost him $45,000 payable over three years.He remained in that partnership throughout the period of the de facto relationship to the date of trial. The defendant’s taxable income in or about 1991/1992 was $140,901.00, roughly six years after the commencement of the relationship in 1986. As of 30 June 1998 (the month in which the parties separated), it was $258,672 and in the year to 30 June 2003, being the closest to the date of the trial, it was $347,195.00.
General financial arrangements
After the plaintiff ceased work, the defendant provided all the monies for the parties’ rent, living and other expenses. Monthly payments were paid into the plaintiff’s bank account upon which the plaintiff drew for household and personal expenditure. These payments were approximately $2000 per month plus a payment of $405 increasing to $435 per month in September 1992 by way of the practice service trust (which made payments to the spouse or partner of each of the members of the partnership).
In addition to the above arrangements, over the period of the relationship, the defendant paid for several trips overseas for the plaintiff and later for T. The defendant also provided the plaintiff with $8,400.00 to purchase a car, and there were later arrangements for subsequent cars including a leasehold vehicle in the defendant’s name for the use by the plaintiff.[3]
[3] There was significant evidence concerning financial arrangements of the leased car after the respondent was involved in a motor vehicle accident in which the car was damaged: see AB 1508, 1518, but none of these matters specifically affect the issues which are the subject of appeal.
After the separation, the plaintiff and T remained in the Hill Street house rent-free during which time the defendant paid all of the mortgage payments and outgoings until the property was sold. In addition, the defendant paid the plaintiff $1000 per week into her cheque account; $435 per month from the practice service trust; and also paid utility accounts, her various department store accounts and car expenses. There was disputed evidence about the receipt of later payments, the amounts paid, and whether or not they were by cheque or in cash. The learned Judge concluded that he was not prepared to find that the discrepancy in the payments alleged by the plaintiff was as great as she indicated.[4] The Judge did not make any findings as to the quantum of this discrepancy.
[4] The defendant alleged that he paid $93,285 and the respondent said she received $35,694.15 leaving a deficit of approximately $46,000: see AB 1516, 1517.
In September 2000 the financial arrangement between the plaintiff and the defendant was varied and on legal advice the defendant began paying $800 per week to the plaintiff; the plaintiff continued to receive the trust payment of $435 per month until November 2000 when that payment reduced to $350 per month, and he ceased payment of any of the utilities, department store accounts or car expenses.
In November 2000 the plaintiff applied for a sole parent benefit which she eventually began to receive in July 2001 until the date of trial. The plaintiff also received significant payments from her father to assist with various expenses for herself and T.
Property at the date of trial
The Judge found that the assets of the plaintiff at the date of trial were as follows:
Cash at banks or on deposit  $80,276.55
Motor vehicle  $20,000.00
Furniture  $24,070.00
Additional amount for furniture  $7,300.00
Total  $131,600.55
The Judge found that the assets of the defendant at the date of trial were as follows:
Partnership capital account  $46,259.00
Goodwill  30,000.00
Bank accounts
Cheque account  52,815.01
Bill flex account (460)  276,674.33
(This is the balance of the proceeds
of the sale of Hill Street, plus interest)
Bill flex account (No.2)  100,000.00
*Superannuation  73,512.12
Motor vehicle  35,000.00
Furniture  5,290.00
Jewellery, wine, pictures  12,000.00
*Australian Scholarship Group  43,610.00
(education fund)  _________
  $675,170.12
less liability for income tax
(ignoring cents)  $123,228.00
$551,942.00
The items asterisked were the subject of specific challenge during this appeal. Therefore the combined assets of the parties, which were to be distributed between the parties, were $683,542.
Grounds of appeal
There are some 35 separate appeal particulars in the defendant’s Notice of Appeal. Many of them can be grouped together for consideration. Essentially there are two major grounds. First, the defendant contended that the Judge had erred in exercising his power to make orders which were just and equitable pursuant to s 10 of the Act. Second, the defendant alleged that the Judge had erred in giving insufficient allowance for the assets, income and resources of the plaintiff at the date of the commencement of the de facto relationship.
The plaintiff cross-appealed on two bases. First is that in assessing the adjustment of property, the Judge failed to make any or sufficient allowance for the plaintiff's withdrawal from the workforce, the plaintiff’s reliance upon the defendant's promise of marriage, the respective means and needs of the parties and the plaintiff's past and prospective contribution to the care of the child of the relationship. Second is that the learned Judge erred in law in failing to rely upon the Rule 41.01 offer and the Calderbank letter dated 22 October 2003 when rejecting the plaintiff's claims for costs on a solicitor and own client basis. The plaintiff in her outline of argument sought in particular that, in lieu of the sum of $200,000, being the Court ordered distribution, an appropriate award was $450,000.
There are three major issues which arose which were common to both the appeal and cross-appeal.
The first is the allegation by the defendant that the Judge wrongly took into account matters after the date of separation, namely, the plaintiff’s loss of career and restricted capacity for employment (Ground 1.1.8 of the Notice of Appeal at AB 1600) which is also relevant to Ground 1 of the Cross-Appeal.
The second major issue was whether the Judge erroneously failed to attach any or sufficient weight to the benefits provided by the defendant to the plaintiff and their son. In particular the rent-free use and occupation of the Hill Street property and other significant payments made after separation and before the sale of the Hill Street property (Ground 1.1.4 of the Notice of Appeal AB 1600 and [19] –[26] of the Outline of Submissions).
The third issue was whether the Judge was correct in characterising the $270,000 received by the defendant from his ophthalmological practice and used to purchase Hill Street, as a financial contribution of the defendant (Grounds 1.2, 1.3 and 1.6 of the Notice of Appeal), which is also relevant to Ground 1 of the Cross Appeal.
The appeal documentation
The documentation provided to this Court by the defendant, for its assistance, was voluminous and excessive.
Apart from a list of authorities, the defendant's Summary of Submissions extended over 31 pages, which in itself is already a lengthy document. In addition, the defendant provided:
·a detailed chronology (7 pages);
·a summary of submissions on the fact (25 pages);
· written submissions on the question of costs on both the appeal and cross-appeal (14 pages);
·reply to plaintiff’s submissions and response to questions from the Bench (53 pages);
·written submissions in relation to the appeal and cross-appeal (12 pages);
·a schedule to the transcript of trial (13 pages).
This is a total of 155 pages of summarising submissions. Whilst I recognise the considerable effort taken by solicitors and counsel for the defendant, the volume of summarising material is not only excessive, it is often repetitive. It is unhelpful to have the same or similar arguments using slightly different wording. It also is confusing in that the grounds of appeal get buried in the overwhelming detail. It is far preferable to have concise, synthesised and focused submissions on key issues on the appeal.
Legislation

The relevant provisions of the De Facto Relationship Act 1996 are:
10.   Power to make orders for division of property
(1)     On an application for the division of property, the Court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.
(2)     For example, the Court may make orders for –
(a)the transfer of property from one de facto partner to the other; or
(b)the sale of property and the division of the net proceeds between the de facto partners in proportions decided by the Court; or
(c)the payment by one de facto partner of a lump sum to the other.
11.   Matters for consideration by the Court
(1)     In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the Court –
(a)must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to –
(i)the acquisition, conservation or improvement of property of either or both partners; or
(ii)the financial resources of either or both partners; and
(b)must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c)must have regard to the terms of any relevant cohabitation agreement; and
(d)may have regard to other relevant matters.
(2)     If a relevant cohabitation agreement –
(a)     is a certificated agreement; and
(b)provides for the exclusion of the Court’s power to set aside or vary the agreement,
an order for the division of property under this Part must be consistent with the terms of the agreement.
12.   Duty of Court to resolve all outstanding questions
In proceedings under this Part, the Court must (as far as practicable) finally resolve questions about the division of property between the de facto partners and avoid further proceedings between them.
Legal principles on Appeal
A number of legal principles are relevant to the appeals in this matter.
Appeal against orders
In both the appeal and the cross-appeal, it is important to bear in mind that it is an appeal against the judgment and the orders and not the reasons for judgment or the individual findings or steps by which the Court reached its conclusion; see Chapman v Chapman.[5] This is particularly relevant when considering a number of discrete grounds which challenge specific findings and which are then used individually or collectively to argue that the amount of the judgment was therefore either manifestly excessive (the defendant) or manifestly inadequate (the plaintiff).
[5] [1946] SASR 217, also Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280.
Appeal involving discretion
The orders involve the exercise of discretion[6] and there are some limitations which circumscribe the manner in which that exercise of discretion can be challenged. The High Court in House v The King[7] set out the well known principles which in essence indicate that some error must be shown in the exercise of the judge’s discretion, such as that a judge has acted upon a wrong principle; has given weight to extraneous or irrelevant matters; has failed to give weight to relevant matters; or has erred in any finding as to fact upon which the estimate of the amount of damages is founded in whole or in part. Further, a judgment may be challenged if, notwithstanding that the precise nature of the error is not discoverable, the result is so unreasonable or plainly unjust that the Court will infer that an error has been made.
[6] De Winter v De Winter (1979) 23 ALR 211; Gronow v Gronow (1979) 144 CLR 513.
[7] (1936) 55 CLR 499.
The High Court in Norbis v Norbis[8] considered the approach which should be taken in relation to the exercise of discretion by a Judge sitting in the Family Court of Australia. There are close analogies to the exercise of discretion under this Act. Justices Mason and Deane analysed the meaning of “discretionary” and stated at 518:
Here, the order is discretionary because it depends on the application of a very general standard- what is "just and equitable" which calls for an overall assessment in the light of the factors mentioned in s.79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion.
They continued at 518 after citing the case of House v The King,
If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a Court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance….According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the Court at first instance is an indispensable condition of a successful appeal.
[8] (1986) 161 CLR 513.
It has also been stated that, where such errors are identified, even if they are relatively slight, it would be sufficient grounds for reviewing the exercise of discretion.[9]
[9] De Winter v De Winter (1979) 23 ALR 211 at 217 per Gibbs J also in Mahon and Mahon (1982) FLC 91-242, 77,333.
Party taking different approach on appeal than before trial judge
A further issue of legal principle is the extent to which a defendant should be permitted to take a different approach before this Court on appeal, than was taken before the trial Judge. This issue emerges in relation to a number of arguments which the defendant seeks to raise before this Court which differ from the approach which was taken before the trial Judge.
In Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon(Aust.) Pty Ltd[10], Barwick CJ in relation to a concession made by a party as to a fact said at 241:
Suffice it to say it should only be in the clearest case and for the most cogent reasons that a party who has conceded matter at trial should be allowed to make the validity of what has been conceded the basis for overturning the result of the trial.
[10] (1977-1978) 139 CLR 231.
In Water Board v Moustakas[11] Mason CJ, Wilson, Brennan and Dawson JJ stated:
More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, the Court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.
[11] (1988) 180 CLR 491, 497.
Their Honours continued at 498:
It is true that… it was recognized that in "very exceptional cases" a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant.
In another context, the High Court in National Australia Bank Ltd v KDS Construction Services Pty Ltd[12] considered a fresh claim for relief which had not been claimed before a trial judge and whether or not it was open to a defendant to rely upon this fresh claim. The fresh claim for relief relied on a question of fact.[13] The High Court considered that although that fact was not litigated, there was nothing in the evidence which negated the fact. The Court therefore allowed the fresh claim but denied the defendant its costs of the appeal.
[12] (1987) 163 CLR 668, 679-680.
[13] Namely as to whether a lien was in existence.
Whether assessment should be global or asset by asset
Finally, an issue arises in relation to the principles applicable to the assessment to the division of property under the Act. In Norbis, Mason and Deane JJ considered whether a guideline by the Family Court prescribing judges to use a “global” assessment approach as distinct from an “asset - by - asset” assessment was apposite. Their Honours stated at 523:
Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court. In saying this we are not to be understood as denying the legitimacy of the trial judge's ascertainment in the first instance of the financial contributions of the parties by reference to particular assets. It is difficult to conceive how the trial judge in many cases could otherwise take account of such contributions as he is required to by… the Act. In this respect we agree with the comment of Nygh J in G and G… that although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party's contribution to them. (Citations omitted).
In summary on this point, mathematical precision is not required but a Court in assessing the contributions would usually have regard to particular assets.
Case presented before the Trial Judge
Counsel for the defendant contended that the division of property ordered by the Judge was not just and equitable but excessively favoured the plaintiff. He proffered arguments on appeal which varied in a number of important respects from those argued before the trial Judge. Counsel for the defendant on appeal, who was not the same counsel as appeared before the trial Judge, appears to have taken this appeal as an opportunity to recast the argument for the defendant in what he considered to be a more favourable light and used different figures from those proffered when the case was argued before the Judge. No regard appears to have been taken as to the manner in which the defendant’s case was previously argued.
The defendant’s contentions on appeal differed from those at trial in the following ways:
·At trial counsel for the defendant agreed that “equity would be achieved” if the plaintiff received an additional total sum of $75,000. On appeal, counsel for the defendant submitted that no monies should be paid and that the sum of $90,000 already paid by the defendant pursuant to the judgment, should be ordered by the Court to be repaid. Effectively the defendant argued that the trial Judge was wrong in ordering the defendant to pay the plaintiff anything, in spite of the concession recorded in his Honour's reasons for decision at [211]. It is inappropriate and prejudicial for the defendant to now resile from that concession, especially when no argument has been put to this Court to the effect that the concession was erroneously made.
·The defendant on appeal contended that the Judge was wrong in failing to consider the financial and non-financial contributions at four particular points of time, namely the date of the commencement of the relationship, the period of the relationship, the period between the date of separation and the date of sale of the Hill Street house and the date of trial. Nowhere in the argument before the Judge did the then counsel for the defendant suggest such an approach. Instead the approach taken by the defendant at trial was to consider the circumstances of the parties at the commencement of the relationship, then track the progress of the circumstances of the parties through to separation, and then finally separately identify the period from separation until the date of trial. This approach proffered by the defendant was followed by the Judge. Not only is this a highly unsatisfactory alteration of approach but for reasons similar to those adopted in Norbis, a Court is not obliged to take a “four-staged” approach in assessing contributions.
·On appeal a substantial argument was mounted by the defendant that there was a failure of the Judge to give any or sufficient weight to the financial benefits provided by the defendant to the plaintiff and the son, in particular the rent-free use and occupation of the Hill Street property and other significant payments. This argument in turn involves a number of discrete examples of changed approach as indicated hereunder.
·The figures presented to the trial Judge by the defendant in relation to his “post separation support” of the plaintiff, aggregated $292,838.85 excluding “mortgage payments” but including $58,725.00 for value of rent and expenses. This contrasts with the defendant’s claim on appeal of $278,707.74, excluding mortgage payments in addition to which it was claimed that a sum of $117,450 for the value of rent and expenses should be added. This would bring the asserted financial contribution by the defendant for this period to $396,157.74, an increase of more than $100,000 to the figures agreed before the trial Judge.
·The defendant on appeal set out a list of what were asserted to be his financial contributions between the date of separation (June 1997) and the sale of Hill Street (16 August 2002). Two of the largest financial items claimed were “Hill Street column”, $51,800.47; and “T column” $70,202.63, which are in turn set out in Exhibit D70. Exhibit D70 purports to cover the period up until 24 October 2003, and not the period to August 2002, when the house was sold. This submission is unhelpful because of the different period involved, but more importantly, when looking at the Defendant’s Summary of Argument before the Judge, the approach taken by the defendant differs on these two items. The Hill Street property is stated to be $56,171 and payments for T are stated to be $33,850 “excluding all child support maintenance payments for T and/or plaintiff”. The difference is inexplicable, especially when the figures purport to be so precise.
·The defendant claimed on appeal that “insufficient regard or insufficient allowance was given for the financial contribution made by the defendant, and the benefit of the plaintiff and T residing in the house for no rent”. The market rental value claimed on appeal was $117,450 which is quite contradictory to the approach which was taken before the Judge in which the value of rent and expenses-free accommodation was stated to be half of that, namely, $58,725. This latter halved amount was the figure which was accepted by the trial Judge in his reasons.
·The defendant on appeal alleged wrong treatment of the Australian Scholarship Fund of $43,610 by the Judge as a cash resource in the hands of the defendant. However, I note that in the defendant’s summary of argument before the trial Judge, that same sum was specifically included as part of the defendant’s current assets and this was accepted by the trial Judge.
·The defendant argued that the Judge wrongly treated the defendant's superannuation entitlements as if the same constituted a cash resource in the hands of the defendant. In the alternative, the defendant argues the Judge gave excessive weight to the defendant's superannuation entitlements. This argument contradicts the way in which the defendant’s case was argued before the Judge. The defendant at trial treated the superannuation as current property of the defendant and conceded that when looking at the “current assets pool”, equity would be achieved if the plaintiff received in addition a sum of $58,561, including within it half the value of the defendant's superannuation of $73,512 - namely $36,756.
·A final example is that the defendant complains that the Judge erred in finding that the assessment of assets and subsequent division of property should be calculated “at the date of trial” instead of “at the date of separation”. This again contrasts with the manner in which the case was conducted before the trial Judge. The defendant’s counsel in the Summary of Argument assessed the assets of the parties as they stood “at the date of trial”.
Specific Grounds of Appeal
All grounds will be discussed chronologically, save when a number of grounds are linked or are overarching and dependant on other grounds.
Just and equitable division
Grounds 1.1, 1.1.1, 1.1.3, 1.4 and 1.5
These are overarching grounds which contend an apparent failure by the Judge to exercise his power correctly so as to effect a just and equitable division of property. They will therefore be discussed after the other grounds have been addressed.
Financial contributions after separation
Grounds 1.1.2, 1.1.4, 1.8, 1.9, 1.10, 1.11, 1.12 and 1.20
These grounds complain in various ways that the Judge failed to give sufficient weight to the financial contributions made by the defendant to the plaintiff after the date of separation up until the date of trial. In particular it is asserted that insufficient regard was given by the Judge to the rent-free use and occupation of Hill Street as well as other significant payments including mortgage repayments.
The trial Judge at [193] – [199] of the reasons for decision made detailed findings and concluded at [200]:
In all the circumstances I do not consider this is an appropriate case in which there should be some adjustment to account for notional rent.
The findings and conclusions of the Judge in itemising the contributions of the defendant were heavily reliant on the submissions and specific figures submitted to him by the defendant’s counsel. Further, as indicated earlier in these reasons, many of these figures raised on appeal differ from the manner in which the case was argued before the trial Judge.
At trial, counsel for the defendant when addressing the topic of “Post-separation support” addressed the contribution of the defendant without naming a total figure. It was submitted that “it’s been huge. I believe that what I set out is accurate in terms of dollars”.[14]
[14] AB 1543.
On the specific topic of the plaintiff’s rent-free residence of Hill Street, the following exchange occurred between counsel for the defendant and the Judge:
His Honour: But it was on the basis, as I understand it, that it was intended that they stay in the house – that is, the plaintiff and the child – until there was some discussion about the sale of the house in ’91; the first discussion.
Mr Howard:2000 was the first reference, and nothing came about for a long time. The parties were at odds. I can’t put it higher than that. The evidence doesn’t go any further than that. She has had that benefit and the defendant has not. I don’t want to overemphasise it, but she has had that benefit, and if your Honour says ‘Well, for the first couple of years, until issues arose in the middle of 2000, it should be excluded from consideration’, a reasonably easy calculation can be done from D86, I think.
I simply say it is something that ought to be brought into account in the defendant’s favour, because she has had that benefit and he has had to make alternative arrangements.
The reliance by the Judge on these submissions and the figures is illustrated by the findings made on the following items. The sum of $34,700 for child support (at [193]), $33,000 for school fees (at [193]), $43,610 for the Australian Scholarship Group is accepted, and accounted for as an asset of the defendant (at [193]),[15] and the defendant’s figure for rent-free accommodation as half of $117,450, namely, $58,725 is accepted (at [195]).
[15] This matter is the subject of a separate ground of appeal addressed hereafter.
The defendant’s written submissions at trial at [39] to [41] did not refer to a specific amount for the mortgage and other payments. The Judge found at [193] that “for the reasons I have already stated I cannot determine the precise sum of those payments but it was substantial”. This finding relates back to [80] and [87] of the reasons for decision in which the Judge referred to the defendant’s claim to have made cash payments to the plaintiff in the sum of $93,285 (being the figure referred to in [39] of the Defendant’s Summary of Argument at trial) whereas the plaintiff claimed to have received $35,694.15.

In relation to these two conflicting submissions, the Judge at [91] indicated that he did not accept the plaintiff’s assertion that she received approximately $46,000 less than the figure which was asserted by the defendant. He indicated “I am not prepared to find there was a discrepancy of such a large order”. In short, the Judge did not accept the figure proffered by the plaintiff, nor however was he prepared to find that the amount asserted by the defendant was the correct figure.
While his Honour did not quantify the total amount of the payments after separation, there seems to be no dispute as to the quantum of the mortgage payments as being $168,000 as set out in the Defendant’s Outline of Argument.[16] Similarly there seems to have been no challenge to the quantum of the other payments made by the defendant set out in Exhibit D70. His Honour was referring in general to those items, without specifying particular amounts.
[16]A separate argument to be addressed as to the second of the loans.
The issue on appeal is whether the trial Judge was in error or alternatively gave insufficient regard to the payments of the mortgage and other outgoings as well as the benefit of rent-free accommodation as claimed by the defendant.
As discussed in Norbis, although mathematical precision is not required, there is ordinarily a need to know the general extent of each party’s contribution. Applying this principle, it would have been preferable for the Judge to indicate the extent of the financial contribution of the defendant, at least in a general sense, even if greater precision were not possible. Importantly, it was also incumbent on counsel for the parties to assist in that process. To the extent that the defendant now complains that this was not done, he has contributed to the circumstance of which he now complains.
The quantum of those payments did not appear to be an issue. The additional payments which were not quantified and appear not to have been in dispute included half of the mortgage payment, $84,000; outgoings on Hill Street of $25,900; miscellaneous Visa, car and other payments, $13,900. There were additional cash payments which were disputed. The parties agreed these amounted to at least $36,000 up to June 2000 and a further unquantified amount from June 2000, (which was probably in the order of $22,000 being maintenance payments at varying rates referred to previously). These amounts excluded payments made specifically for T.
A further payment asserted by the defendant to be taken into account as a contribution is the repayment of the Business Development Loan of $84,000. It is unclear on the evidence what proportion of this loan was used to assist the funding of the renovations as distinct from what was of benefit to the defendant’s business practice. These additional amounts not specifically identified by the Judge amount to $181,800 over the period from June 1998 to the date of trial. The majority of these unquantified payments relate to the plaintiff and T continuing to live in Hill Street.
Therefore, whilst the payments for the mortgage together with these other payments were “substantial”, the relativity of income levels and the needs of T for housing and parenting, together with the non-financial contribution of the plaintiff at that time, must also be considered. If the defendant wanted T to remain in the house and be cared for by the plaintiff, these payments were required to achieve this purpose.
In his reasons, the Judge addresses whether there should be an adjustment to account for the rent-free accommodation at [197] - [199], and at [199] explains his reasons why it is not appropriate to do so. His Honour’s reasons in summary are that the defendant was living in rent-free accommodation during that time and although the defendant was paying the mortgage payments, rates and taxes and insurance as they fell due, this was a factor which would also benefit the defendant and they would have modified the child support which would otherwise have been payable by him for T. These findings are made following an indication by the Judge at [196] that, before the defendant met Dr M in February 2000, he “still harboured the possibility of there being a reconciliation with the plaintiff” and that he left the house because “it was better for T to remain in familiar surroundings”.
These matters indicate that the plaintiff continuing to live at Hill Street rent-free was not solely a benefit to her but it was also a benefit to the defendant and T.
In my view the Judge took a commonsense attitude in acknowledging the payments by the defendant post separation as being substantial, but nonetheless considering that any final amount due to the plaintiff in a property division should not be specifically reduced by reason of these historical payments. The Judge acknowledged the contributions without quantifying all of them, but he considered, in the exercise of his discretion, that no specific reduction should be made. I do not consider there was either error or any indication that insufficient weight was given by the Judge to these matters for the reasons which he expressed himself.
I therefore reject these grounds of appeal.
Dissipated assets after sale of Hill Street
Grounds 1.1.5, 1.1.6, 1.16, 1.17, 1.18 and 1.19
These grounds in various ways assert that the Judge erred in that he failed to attach any or sufficient weight to what was claimed to be the plaintiff’s excessive and unaccounted spending from the date of the sale of Hill Street until the date of trial.
The findings made by the Judge as to the financial circumstances of the plaintiff after the date of the sale of Hill Street to the date of trial are detailed in [101] – [105] of his reasons set out below:
To ready the house for sale $3,968 was spent, for cleaning and other services or items, which, as I understand the evidence, was paid as to $1,400 by the defendant and as to the balance by the plaintiff, or on her behalf by her father.
In August 2002 the plaintiff purchased a unit at Maylands for the total price of $423,923, including various fees and adjustments; the plaintiff paid $225,313 and borrowed the balance ($198,609) from Westpac upon the security of a mortgage over the property (Exhibit P39). The plaintiff’s evidence is that the mortgage repayments were $260 per week “which was cheaper than renting a three bedroom home” (T140); she said a house of three bedrooms was necessary so that [T’s] percussion instruments could be accommodated.
The plaintiff sold the Maylands unit in April 2003 for $450,000; after discharging the mortgage to Westpac, and payment of various fees and adjustments, the net proceeds of sale were approximately $241,000 from which the plaintiff paid $31,000 to her father to repay debts she had incurred to him. The plaintiff said she had to sell the Maylands unit “for these proceedings”. In April 2003 the plaintiff rented a three bedroom house, the rent for which is $400 per week.
The plaintiff called Mr Trevor Clark, an accountant, who from records and other material provided to him, by, or on behalf of, the plaintiff, prepared a report (Exhibit P69) which he deposed shows the receipts and expenditure, by the plaintiff in the period from August 2002 (when the Hill Street house was sold) to approximately the date of trial, to derive a figure of $80,276.55 as the sum of the plaintiff’s assets; the report includes expenditure of:
$80,000 legal and accounting
                 $58,482 paid to the plaintiff’s father
                 $14,377 car purchases
                 $41,401 living expenses
$193,960
In a supplementary report dated 5 November 2003 (Exhibit P66) Mr Clark revised his assessment of the plaintiff’s assets to be $101,558.12, less liabilities of $1,281.57 producing $100,276.55. The item “car purchases” was explained by the plaintiff to be the cost of the car the plaintiff most recently acquired, after an allowance for the trade-in value of the car she previously owned. The report (Exhibit P69), as I understand, does not include the value of furniture and effects; the allocation of furniture between the parties had been the subject of continuing dispute between them, but counsel informed the Court that had been resolved including furniture which had been in storage for many months. (Ex D98)
The substance of Mr Clark’s report (Exhibit P69) is not substantially challenged by the defendant. However, the defendant does submit that the plaintiff has been extravagant and self indulgent in the purchase of motor cars, furniture, clothing and entertainment since she obtained a proportion of the proceeds from the sale of Hill Street. Having regard to the defendant’s admission that from the time Hill Street was sold he “probably tried to spoil myself a little bit”, the defendant’s submission is much weakened. As to some of the things which each of them purchased those they have been brought to account in identifying their respective assets. In relation to the plaintiff’s other purchases; between June 2002 and September 2003 she purchased clothing, at a cost of $12,867, and food and entertainment at a cost of $12,878, a total of some $26,700. That is a substantial sum but there is insufficient evidence from which it could be found to have been extravagant and self indulgent.
Further, at [219], the Judge concluded:
I have considered whether some adjustment should be made to bring to account the substantial sum received by the plaintiff when Hill Street was sold. To the extent part of that sum has been expended on fees for legal and other services I have already dealt with it. From Exhibit P69, it would appear the plaintiff lived at an expensive level after the settlement of Hill Street occurred. However there is insufficient evidence to bring me to find she has so wastefully dissipated assets it would be appropriate to reduce what in my judgment would otherwise be a fair and equitable division of property between the parties.
These findings were made within the context that his Honour had recognised that before the date of separation both parties had lived an affluent and extravagant lifestyle.
The defendant on appeal relied on a number of receipts to argue that the plaintiff had dissipated $237,026.45 over a fifteen-month period, and that there was no evidence adduced at trial by the plaintiff to account for the use of the funds.
The receipts relied upon were set out in the Outline of Argument.
34.1   PLAINTIFF’S RECEIPTS
Proceeds from sale of the Hill Street house
(para 99 Judgment, p 1519 AB)  $265,110.00
Sale proceeds from Maylands Unit April 2003
(exhibit P39, p 913AB)  $240,676.00
Less paid on purchase (funded by part sale
Proceeds of the Hill Street house)   -$225,313.00
(para 101 Judgment p1519AB)
Profit on sale of the unit at Maylands  $15,363.00
Maintenance payments from the defendant
(estimated)  $22,750.00
Centrelink payments  $14,080.00
TOTAL RECEIPTS  $317,303.00
34.2    CASH STILL HELD OCTOBER 2003  $80,276.55
(See para 143 of the judgment at p. 1530 AB)
34.3    DISSAPATED(sic) IN PERIOD 15 MONTHS       $237,026.45
The defendant complains that there was a failure to attach any or sufficient weight to these dissipated assets and as a result there was a wrongful award made to the plaintiff which had the effect of making the defendant pay for one half of the $237,026.45. The defendant asserts that the Judge, in effect, allowed the plaintiff to unjustly “double dip” into the assets of the defendant by failing to add back the unexplained dissipation of $237,026.45 as well as $35,000 of child support payments from September 2000 to the sale of the Hill Street house and another $96,485[17] in cash payments to the plaintiff by the defendant from separation to the date of the sale of the house. I have previously considered the contested cash payments of $96,485.[18]
[17] I note this amount of $96,485 now claimed differs from the amount asserted at trial which was, $93,285.
[18] Ground 1.1.2 and related grounds at “Financial Contributions after Separation” .
The plaintiff contends that the submission by the defendant of the dissipation of assets is an example of submissions put to this Court in a form not put to the Judge. I agree with this contention. At trial, the alleged dissipation was claimed as being $100,000 and not the $237,026.45 now claimed. Although it was not put in the same form to the Judge as it was on appeal, his Honour did consider at [219] that the plaintiff lived at an “expensive” level after the settlement of Hill Street, but found there was insufficient evidence to reduce what would otherwise be a fair and equitable division of property between the parties. I do not consider that the child support payments should be included in assessing the alleged extravagance of the plaintiff. Further, the submission of the defendant fails to take account of the expenditure of $193,960 found by the Judge at [103] of his reasons.
The “expensive” level of spending found by the Judge must be considered in the overall context of the history of spending of both parties during the relationship. This aspect of spending continued after separation to the date of sale of Hill Street without apparent protest by the defendant. As the case of Kennon and Kennon[19] considered in a slightly different context but one nonetheless relevant to this argument:
The standard of living which one party provides to the other is not to be seen as a down-payment on a subsequent property settlement … the circumstance that the parties during the marriage lived to a very high standard largely due to the wealth of one of them does not mean that at the end of that period that circumstance cancels out or largely diminishes the contributions which were expected of the other party and which that person provided.
[19] (1997) 22 Fam LR 1, 29-30.
After the sale of Hill Street, the detailed “Funds Flow” chart for the plaintiff demonstrates generous spending by the plaintiff,[20] but in my view such spending falls short of a wasteful dissipation of funds. Whilst views of judges may differ on this, I note, as did Brennan J (as he then was), in reference to an appeal based on discretion and weight to be given, that there is a “generous ambit within which reasonable disagreement is possible”.[21]
[20] Exhibit P69.
[21] Norbis v Norbis (1985-86) 161 CLR 513, 540 per Brennan J.
I also note that unlike the defendant, the plaintiff had only the net proceeds from the sale of the jointly owned Hill Street as her sole asset and when she had to make expenditure, it necessarily had to come from that.
I consider that there is no error in the approach taken by the Judge on this point.
Expectations of marriage
Ground 1.1.7
This ground alleges that the Judge wrongly took into account or attached excessive weight to the plaintiff’s unfulfilled expectations of marriage.
The finding by the Judge on this topic is as follows:
The plaintiff and the defendant embarked on a relationship in which, as I find, it was the plaintiff’s expectation that they would marry, an expectation often reinforced by the defendant’s proposal’s of marriage and the steps each of them took, with the knowledge and consent of the other, to try to arrange for a marriage to take place. The plaintiff, at the request of the defendant, declined an offer for advancement in her employment made to her more than two years after the relationship between them began. The plaintiff’s expectations concerning the permanency of the relationship were the basis upon which the plaintiff ordered her life. That is also a relevant matter in my opinion.
This finding occurs at a point in the reasons for decision in which the Judge is reflecting on the “needs and means” of the parties in the context of s 11(1)(d) of the Act.[22] The Judge commences his consideration at [208] and then at [210] refers to the New South Wales decision of Evans v Marmont[23] and the majority view there that a consideration of “needs and means” enabled a Court to consider “promises or expectations of marriage”.
[22] At [218].
[23] (1997) 42 NSWLR 70.
In Marmont, the NSW Supreme Court majority considered Dwyer v Kaljo[24] and endorsed the comments of Hodgson J in that case. Justice Hodgson specifically adverted to:
…circumstances which may be relevant include such matters as the length of the relationship, any promise or expectations of marriage, and also I think opportunities lost by the plaintiff by reason of the plaintiff’s contributions…I do not think any limit can be set on what circumstances may be relevant, remembering always that the relevance must be to question, what is just and equitable having regard to the plaintiff’s contributions. (emphasis added) [25]
[24] (1987) 11 Fam LR 785.
[25] Ibid 793.
Counsel for the defendant referred to Hogg v Roberts,[26] in which the Full Court of the South Australian Supreme Court held that “relevant matters” mean matters relevant to the “just and equitable division of property”,[27] and that “relevant matters” is not so wide as to encompass “disappointed or unfulfilled expectations.”[28]
[26] (2003) 87 SASR 248.
[27] Ibid [12], 250.
[28] Ibid [13], 250.
The relevant facts are that the defendant and plaintiff had discussed getting married in the latter part of 1993 when they travelled to the UK. The evidence adduced at trial was that the parties each announced to relatives, who lived in the UK, that they intended to marry but certain details as to this arrangement were contested at trial. There were several other occasions when the parties discussed marriage including when the plaintiff became pregnant with T and when the parties were in Florence in 1995.
In assessing the needs and means of the parties, the trial Judge did not, as the defendant contends, wrongly take into account or attach excessive weight to the plaintiff’s unfulfilled expectations of marriage. Although considering it in the context of “other relevant matters” as was justifiably within his Honour’s discretion, he did not rely exclusively on an expectation of marriage which could somehow be quantified in calculating the “just and equitable division of property.” It was simply a consideration amongst others including “…the financial circumstances of the parties, the length of the relationship, promises or expectations of marriage and opportunities lost by reason of contributions.”[29]
[29] AB 1547, [210].
I particularly note that the Judge at [182] and also in [217] immediately above the finding at [218], as well as in [218] itself, specifically referred to the plaintiff’s “expectations” of marriage and the security of a relationship. The Judge referred to the effect which they had on her decision to reject promotion in her employment, followed later by her pregnancy and the birth of T and the resulting consequences of ever decreasing opportunities to resume or re-enter employment. Therefore, her “expectation of marriage” was not considered in isolation as an exclusive factor which should by itself increase the plaintiff’s entitlement to a division of property. It was simply a relevant factor which explained her preparedness to relinquish employment with its consequential effect on her “needs and means”. The approach which the Judge took did not offend the approach by the Court in Hogg. It did not demonstrate that the Judge had taken an erroneous approach, or that he had attached excessive weight to that factor.
Loss of career and restricted employment capacity
Ground: 1.1.8
This ground contends that the Judge wrongly took into account or attached excessive weight to the plaintiff’s loss of career and restricted capacity for employment.
The defendant’s first major argument on this point was that in making an order for the division of the property under s 10 of the Act, s 11 limited the Court’s consideration of the circumstances of the parties only up to the date of the judgment and not beyond.
The second argument was that the Judge placed excessive weight on this factor.

As to the first argument, the defendant in particular relied on passages from Hogg, a decision of the Full Court of this Court. The particular passage relied on by the plaintiff in Hogg is set out below in bold, as part of a quote from the reasons for decision given by the Chief Justice, with whom the other members of the Court agreed.
My understanding of the Act is that the requirement to make an order that is “just and equitable” does not give rise to a general and unfettered discretion. First of all, the Court is dividing property, not settling all outstanding financial issues as between the partners. Second, s 11(1) indicates that the contributions referred to in that provision are important considerations in deciding what is just and equitable. The initial and primary focus must be on the property in question, contributions to that property, contributions to financial resources and then contributions by one party to the other and to the children.
However, the obligation under s 11(1)(d) to have regard “to other relevant matters” means the contributions are not the only matter for consideration. It is to be noted that the Court must have regard to “relevant matters”. I think that must mean matters relevant to a just and equitable division of property. The provision is not as wide as, for example, a direction to have regard to such matters as the Court thinks fit.
Bearing that in mind, I consider that it is not the role of the Court to use the division of property to remedy any justified grievances that one party may have against the other, or to compensate one party for disappointed or unfulfilled expectations. The focus appears to me to be on a just and equitable distribution of property, after considering primarily contributions of the kind identified by s 11(1) of the Act. The task of the Court is a narrower one than the task of the Court under s 79 of the Family Law Act 1975 (Cth). The relevant considerations are more narrowly confined. Matters that are likely to be relevant are the length of the relationship and the immediate needs of the parties. I say “immediate needs” because the Court’s focus is on the division of property. In deciding what is “just and equitable”, the needs of the parties at that time will be relevant. However, the Court is not dividing property with a view to providing, for example, for the continuing maintenance of the parties, or taking into account their future financial prospects.
Other matters may be relevant. It would be dangerous to try to draw a line here in the abstract. I go no further than to say that the focus is on the just and equitable division of property, and not on an order that is fair having regard to all the circumstances surrounding, and everything that happened during, a relationship. (Emphasis added).[30]
[30] At 249 – 250.
It was submitted by counsel for the defendant that the sentences highlighted in [13] indicated that this Court has concluded that when considering “needs”, a Court should not have any regard to the likely needs and means of the parties after the date of decision.
In order to ascertain whether this narrow interpretation is correct it is necessary to consider the legislation and the intention of Parliament, as well as previous interpretation in this State and elsewhere.
Legislative provisions
Legislation with regard to de facto relationships exists in a number of States; however, there are some notable differences. The legislation in the Australian Capital Territory and South Australia are the only examples which specifically empower the Court to have regard to "other relevant matters", in addition to stated mandatory matters of financial and non-financial contributions. The case law from New South Wales must be viewed cautiously as the NSW legislation does not contain the final unconditional discretionary consideration, which may be regarded as a "catchall" provision. Having stated this, both s 20 of the De Facto Relationships Act 1984 (NSW) (“the NSW Act”) and s 11 of the SA Act provide that the Court, in exercising its discretion to make an order for division or adjustment of property, should do so in a manner "which is just and equitable". In addition, both of these legislative schemes require consideration to be given specifically to the financial and non-financial contributions made directly or indirectly in respect of property or financial resources, as well as the contributions including homemaking or parenting made by either of the de facto partners to the other partner or to the children of either or both partners.
Case Law
Judicial interpretation of the NSW legislation is well developed through case law. There has been a marked difference of opinion within the Supreme Court in relation to whether the Court in exercising its discretion to do what is "just and equitable", is confined to the matters specified in s 20 of the NSW Act or whether other general discretionary considerations may apply.
This difference of opinion and the outcome is succinctly expressed by Judge Smith in one of the few South Australian cases on point. In Love v Chidley,[31] Judge Smith said at [128]:
The liberal view of the construction of s20 is found, inter alia in the decisions of Black v Black (1991) 15 Fam LR 109 and Dwyer v Kaljo (1992) 27 NSWLR 728. The moderate view is represented by the decision in Wallace v Stanford (1995) 37 NSWLR 1…. The opposing view is effectively the converse. The conflict was settled by a specially constituted five member Full Court Bench in the case of Evans v Marmont (supra). The majority Justices, Gleeson CJ, McLelland CJ in Equity with whom Meagher JA concurred, refused to follow Dwyer v Kaljo (supra) and approved Wallace v Stanford (supra). They held that the exercise of the discretion was constrained by the two types of “contributions” particularised in s20. At p768, their Honours said:
“Most importantly, s20 specifies, in pars (a) and (b), the matters to which the Court is to have regard. As was pointed out above, those matters will ordinarily have to be considered, and a judgment as to what is just and equitable having regard to those matters will ordinarily have to be made, in a context, and that context may well include factors of the kind referred to by Hodgson J at first instance in Dwyer v Kaljo. However, pars (a) and (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations. It is by having regard to those matters that the Court may adjust property interests in a just and equitable manner.
The concept of remedying an injustice the applicant would otherwise suffer because of his or her reasonable reliance on a relationship or his or her reasonable expectations from the relationship seems to us, with respect, to involve a major shift in the focus dictated by s20, as does the notion of importing, by analogy, the principles according to which equity awards compensation for breach of equitable duties. This appears to us to broaden the scope of the enquiry well beyond that contemplated by the legislature”.
[31] (2000) 219 LSJS 287.
Further, as Judge Smith notes in [130] of his reasons for decision, the majority in Evans’ case specifically approved what had been said by Hodgson J, the Judge at first instance in Dwyer v Kaljo. The relevant passages from the reasons of Hodgson J are set out below:
I also agree with Young J that this is not the only factor which can be taken into account. In my view, if one considers the plaintiff’s contributions and nothing else, this cannot conceivably lead to any view of what is just and equitable in the circumstances. However, it seems to me that the other factors can have no independent bearing on what is just and equitable. Their relevance is only by reason of such relevance as they may have to the question: “what is just and equitable having regard to the plaintiff’s contributions?’
In my view, some other factors will be relevant in this way in all cases. One such factor arises from the question whether the contributions of the plaintiff have been sufficiently compensated. The relevance of this question is confirmed by the terms of s17 of the Act. This in turn requires the Court to reach some view of the value of the contributions of the plaintiff, and some view of the value of what the plaintiff has received in return.
In most cases, I think the financial circumstances of the parties will be relevant. Certainly, it is necessary for the Court to ascertain what the property of the parties comprises at the time of the hearing, because it is to this that any adjustments of interest have to be made. Further, I think that in most cases the needs and means of the parties will have general relevance, as subsidiary factors, to the question of what is just and equitable having regard to the plaintiff’s contributions. However, as indicated earlier, I accept that the needs and means of the parties has no relevance except via its relevance to this question: in particular, the Court cannot say that because the defendant has $11 million, and the plaintiff has something less than $50,000, for that reason it is just and equitable to make an adjustment.
Other circumstances which may be relevant include such matters as the length of the relationship, any promise or expectations of marriage, and also I think opportunities lost by the plaintiff by reason of the plaintiff’s contributions. This is by no means intended to be exhaustive. I do not think any limit can be set on what circumstances may be relevant, remembering always that the relevance must be to the question, what is just and equitable having regard to the plaintiff’s contributions. (emphasis added). [32]
[32] (1987) 11 Fam LR 785, 793.
The New South Wales case law thus adopts the approach that a Court, when considering making orders which are “just and equitable”, may have regard to “financial circumstances” as well as the “needs and means” of the parties, in addition to considering the financial and non-financial contributions including any contributions in the capacity of homemaker or parent as specified in the legislation.
Two important principles emerge from the majority view in Evans case, which appear apposite to the interpretation of ss 10(1), 11(1)(a) and (b) of the SA Act, without any reliance being placed on the “catch all provision” of s 11(1)(d).
·the “financial circumstances of the parties” are relevant, even though this was not a matter specifically referred to in the legislation
·“the needs and means of the parties” will have general relevance, although those matters are not specified in the Act.
These principles are further reinforced by the existence in this State of s 11(1)(d), which may permit “needs and means” to be regarded not merely as a “subsidiary factor” as in Evans case, but may be given greater prominence in South Australia.
In relation to this issue, some further assistance can be obtained from the reasoning of Cooper J in Ferris v Winslade[33] in considering s 15(1)(e) of the Domestic Relationships Act 1994 (ACT) (“the ACT Act”), which is the equivalent catchall provision to s 11(1)(d) of the SA Act.
[33] (1998) 22 Fam LR 725, 732.
Justice Cooper noted that the equivalent of s 15(1)(e) of the ACT Act, did not appear in the New South Wales legislation, but the section was to the same effect as s 75(2)(o) of the Family Law Act 1975 (Cth).
Justice Cooper also observed at 732, [29] of his reasons for decision:
The ACT legislature has not sought to equate a de facto marriage to a legal marriage. Nor has it, in relation to adjustment of property rights between parties to a domestic relationship, replicated, exactly, the Family Law Act for the adjustment of property rights. However, the similarities in the nature of the discretion to be exercised in making orders adjusting property rights, in my view mean that recourse can and should be had to decisions of the Family Court of Australia (the Family Court) under s 79 of the Family Law Act as to the appropriate principles which guide the exercise of the discretion under s 15 of the Act. Further, the New South Wales cases which limit the matters to which the Court may have regard in exercising its discretion, under s 20 of the NSW Act, do not in my view constrain the approach of this Court in considering applications under s 15 of the Act.
Justice Cooper in addressing the income, property and the resources of the de facto wife noted in [103] - [104] of the reasons for decision that she had,
…limited financial resources in her future earning capacity…it is evident that the plaintiff’s age at 56/57, is against gaining any permanent long-term appointment. Her position is only going to be exacerbated as she grows older.
When assessing the income, property and the resources of the de facto husband (the defendant), Cooper J took into account the likely entitlement in the future to a lump sum of superannuation.[34] Further, in considering the financial needs and obligations of each party, the Judge referred to future liabilities and expenses which went beyond the date of the trial.[35] More importantly, when considering factors of significance to whether or not relief should be granted, having regard to the matters contained in s 19(2) of the ACT Act, Cooper J referred to the plaintiff’s
…present lack of earning capacity which establishes a real impact upon her in respect of future economic need,… the plaintiff’s lack of any real likelihood of obtaining sustained remunerative employment and her future costs of living will impact seriously on the plaintiff. It is a factor which justifies a further adjustment to the property interests of the parties, unless outweighed by the defendant’s relevant circumstances.[36]
[34] At [104] - [106].
[35] At [108] - [109].
[36] At [120] - [122].
Whilst there are more expansive provisions within the ACT Act which are not contained in the SA Act, the ACT provisions likewise do not specify the “future earning capacity, assets and liabilities”; yet the Court in considering the financial resources of each party and the financial needs and obligations of the parties, had regard to matters going beyond the date of trial.
The reasons for decision in the case of Ferris therefore give support to a Court having regard to the future needs and means of the parties when calculating a property division as at the date of judgment.
This approach appears apposite given the fundamental aim of the Act as expressed in s 10(1) of the Act, which is to bring a “just and equitable” division of property in relation to de facto cases. It is not a unique situation that a de facto partner gives up employment opportunities in order to rear children who are the product of such a de facto relationship. The effect of this contribution made during the period of the relationship may continue beyond any date of judgment and is a direct sequelae of the de facto relationship. It therefore seems appropriate and within the objectives of the legislation to have regard to these matters. In the majority of cases this is more likely to affect a female partner who gives up employment to care for a child or children and who is likely as a consequence to suffer increasing difficulties after the relationship has ceased. This is exacerbated by workforce impediments of increasing age and difficulties of re-engaging in employment.
Returning to South Australian cases, this Court, in Arnold v Dalton[37] considered two matters of particular relevance to this case. There the first ground of appeal complained that the trial Judge took into account the relevant contributions of each party to the maintenance of the children of the relationship, thereby in effect giving practical expression to a notional order for past maintenance of the children when the Court had no jurisdiction pursuant to the Act to order maintenance payments. Bleby J, with whom the other members of the Court concurred, concluded that, although there was no jurisdiction of the Court to order maintenance payments, in considering whether to make orders for the division of property, it was necessary to bring into account the relevant contributions made by both parties to each other or to the children and that this included homemaking or parenting contributions.[38]
[37] (2002) 84 SASR 482.
[38] Ibid [34] and [49].
A second relevant ground of appeal in Arnold’s case complained that the trial Judge should have brought to account only contributions made or not made during the subsistence of the de facto relationship and not after it has ceased. Bleby J concluded that there was no reason to so limit the period, and stated at [50]:
…There is nothing to suggest that the financial contribution by way of maintenance of or addition to property made by one partner after the relationship has ceased should not be brought into account. The same should apply to contributions (including homemaking and parenting contributions) made during such a period. Furthermore, the definition of “de facto partner” contained in s 3 of the Act includes “a person who has lived in a de facto relationship”. For the purposes of the Act, the former de facto partners remain de facto partners until the time that an order is made. So construed, s 11(1)(b) would include reference to contributions made after cohabitation has ceased. I therefore conclude that s 11(1)(b) requires an assessment of the financial and other contributions of the partners to the maintenance of each other and of their children up to the time that the order is made. However, it cannot look beyond that date. (emphasis added)
In relation to this paragraph, counsel for the defendant submitted to this Court that the italicised words above indicated that the question of contributions should only be considered up until the date when an order is made and not beyond.
In my view, these words are to be viewed in the context in which they appear. The Court was addressing an argument related to the interpretation of s 11(1)(b) of the Act, which specifically has regard to contributions “made” by the partners, which is referable to past contributions to the date of trial. The Court was not, for example, considering the scope of the phrase “just and equitable” and the concept of “needs and means” nor was it considering the scope of s 11(1)(d) of the Act. Further, as the Court was only dealing with the period after separation up until the date of the order, no argument was put as to any later time. Therefore, the Full Court should not be interpreted as intending to view the “needs and means” of the parties as frozen at the date of judgment.
The case of Hogg, as discussed above, was an appeal in relation to a simpler fact scenario than that in this case. The parties had lived in a de facto relationship for about five years and there were two children. Only one asset was to be divided, namely the house property, which was in joint names. The property was valued at $140,000. The trial Judge after considering all the issues ordered that the defendant, Mr Hogg, pay a sum of $56,000 to Ms Roberts in return for the transfer of her interest in the house property to him.
The appellant had been a police officer when the parties met. Shortly after they commenced cohabitation he retired from the police force and received a retirement benefit. Thereafter he was in receipt of unemployment benefits or Austudy payments when he began to study for a new career. He had also commenced a boat building business. At the time of trial he was continuing with study and living on Austudy payments.
The appellant in that case complained about the failure of the Judge to make an allowance for the fact that he had given up his career in the police force and was presently “studying to pursue another career”. He further complained about the respondent’s actions in respect of the statutory child support scheme. The Chief Justice noted that the appellant was unrepresented and that he had in effect re-argued his whole case on appeal.

I consider that there is no error in the exercise of discretion by the Judge and neither ground warrants that the plaintiff be deprived of her costs. In relation to the third issue, I would dismiss that for the additional reason, namely that it was not the subject of previous argument before the Judge and is a fresh factual argument addressed only for the first time on this Appeal.
As to the second issue, namely the failure of the plaintiff in regard to the alleged assault, that appears to be different. This was a discrete issue in the trial which gave rise to specifically different evidence. The Judge in exercising his discretion on this issue concluded that the time taken on the issue was of “insignificant effect”. This is borne out by the defendant’s own submissions in which he adverts to the trial evidence occupying 52 pages, out of a total of 858 pages. The approach of the Judge in the exercise of his discretion appears apposite. This was no identifiable error, nor was the approach so unreasonable or unjust as to warrant interference.[57]
[57] See Southern Resources Ltd v Residues Treatment and Trading Co Ltd (1990) 56 SASR 455, 480.
This ground is rejected.
Overall assessment of contributions and benefits
Grounds 1.1, 1.1.1, 1.1.3, 1.4 and 1.5
These grounds complain, in various ways, that the Judge wrongly assessed the financial and the non-financial contributions and benefits of the parties. These grounds are all embracing and are dependant in part upon the specific grounds of the Notice of Appeal which have already been addressed.
These grounds require an overall consideration of the conclusions leading to the balancing by the Judge of relevant factors in reaching a final assessment as to the distribution of assets. I have previously set out the legal principles relevant to an appeal in relation to the exercise of discretion, in particular where an assessment calls for value judgments to be made and where there is room for reasonable differences.
The assessment of the financial contributions of the parties is more in the nature of an accounting exercise, with due application of the correct legal principles in characterising some specific contributions. I have found no errors of principle or errors of findings of fact in the approach taken by the Judge in assessing the contributions of the parties as challenged by the defendant. (I have yet to consider the cross appeal of the plaintiff.)
With regard to the non-financial contributions, I have considered the defendant’s challenge to the approach taken by the Judge in assessing the non-financial contribution of the plaintiff and have rejected Ground 1.1.8. A further argument was addressed to us by counsel for the defendant, namely, that there was a failure of the Judge to consider the non-financial contribution of the defendant both to the relationship and to the needs of T.
There are two blocks of time which are relevant to the parties’ non-financial contribution; the first is during the relationship up to separation and the second is from separation up until the date of trial.
The evidence of the defendant regarding non-financial contribution was:
·Early in the relationship he assisted in household duties which included vacuuming, occasional floor washing, sometimes assisting with bathroom cleaning, washing dishes, chopping vegetables, carving turkey.
·After the purchase of Hill Street he assisted the respondent and her father with painting. He mowed lawns.
·He chopped out a lot of overgrown creepers, went to the dump twice each weekend for about 6 months, after cleaning up the garden.
·Whilst at Hill Street he continued the same type of household activities as before until the employment of a woman who assisted with ironing and cleaning for the last two to three years before separation.
·After the birth of T the defendant helped wash, bathe and change him and also nursed him in the night. Later when he commenced school, the defendant was the one who woke him in the mornings to help him shower, dress and have breakfast and take him to school. In the evenings he played with T with his toys or later cricket, tennis or in the swimming pool.
This evidence was tempered by the plaintiff’s evidence that the household tasks were performed by the defendant if she requested it and she denied that this assistance was given most weekends and said that she performed most of the work inside and outside of the house. The plaintiff also indicated that whilst the defendant did assist in the care of T, she was far more responsible than the defendant, even prior to separation. After separation the plaintiff’s evidence was that she had the sole responsibility for the care of T.
The findings of the Judge on the non-financial contribution of the defendant to the role of housekeeper and parent are set out at [145] where his Honour found that:
… several months before the birth of [T] the plaintiff resigned from her employment and thereafter she fulfilled the role of home-maker and parent; that is not to say the defendant played no part in either role during the time the parties cohabited, but in my view the plaintiff carried out the majority of the activities required by those roles, thus freeing the defendant to pursue his career which I accept involved, not infrequently, evening and weekend work. After cohabitation ceased, the plaintiff provided, almost exclusively, the day to day parenting of [T] and the home making tasks inherent in caring for a child.
This appears to accurately summarise the evidence and must be read in conjunction with the Judge’s findings at [70], [74], [190], [204] and [213] of his reasons for decision.
There is therefore no failure by the Judge to recognise the non-financial contribution of the defendant. The issue is whether the Judge erred in placing too much emphasis on the plaintiff’s contribution and too little emphasis on the defendant’s contribution.
The Judge in reaching his conclusion as to the division of assets between the parties, considered that the defendant’s financial contribution and the plaintiff’s contribution as homemaker and parent “was equal to the defendant’s financial contribution which produced the assets of both of them”.
The defendant argues that this suggests that the Judge wrongly commenced with a starting point of equal contributions, the financial on the defendant’s part and the non-financial on the plaintiff’s part. There is nothing in the reasons for decision which suggests that his Honour wrongly approached the assessing of contributions from an assumption of equality; equality, rather, was his conclusion.
There is also nothing which suggests that the Judge’s assessment was manifestly inadequate. The evidence of the plaintiff, supplemented by that of Dr Bertram who was a psychiatrist assisting with the treatment of T, endorsed the very traumatic and difficult contribution which has been made by the plaintiff in sole care of T after separation. Whilst it would have been preferable for the Judge to articulate in more detail the contribution by the defendant, both as homemaker and parent, I do not consider that the Judge erred either in principle or in fact; nor do I consider that his conclusion demonstrated either a manifestly inadequate recognition of the non-financial contribution of the defendant, or, to put it the other way, that it demonstrates a manifestly excessive approach in assessing the non-financial contribution of the plaintiff.
These grounds are rejected.
Cross Appeal
The plaintiff filed a cross appeal on 8 November 2004 to this Court against the judgment of the Judge, naming two grounds of appeal.
Ground 1 Cross Appeal
This ground is an all-encompassing ground which claims that the Judge erred in assessing the adjustment of property between the parties by failing to make any sufficient allowance in relation to four specific matters:
·the plaintiff’s withdrawal from the workforce;
·reliance upon the promise of marriage;
·the respective means and needs of the parties;
·the past and future contribution to the care of T.
The argument was in effect the obverse of the defendant’s complaint on appeal which was that the Judge had excessive regard to these factors. Both parties in their respective appeals appeared to be repeating their unsuccessful arguments which they put to the trial Judge.
The plaintiff’s cross appeal, in spite of its breadth in ground 1, essentially argued that overall the award was manifestly inadequate and that the Judge should have ordered that the plaintiff be awarded 80% - 90% of the combined assets. The combined assets were as the Judge found, a sum of $683,542 of which $131,600 is comprised by her own assets. The plaintiff’s counsel submitted that the plaintiff ought to be paid $450,000. This is a repeat of the submission which was put before the Judge by the plaintiff at trial.
The Judge in his final analysis rejected the plaintiff’s argument. His reasons for doing so are set out in [214] – [217]. The approach which the Judge took was that the plaintiff’s submission made no allowance for the fact that the defendant provided $270,000 towards the purchase of Hill Street. He noted in [217] that $270,000 was equal to about 40% of the asset pool and “to allow for that, the pool might be apportioned 70/30 in the defendant’s favour”. His Honour continued in his approach to adjustment to say at [217]:
…However that contribution is to be set against the length of the relationship, the plaintiff’s steadily reducing opportunity, as each year passed, to resume or re-enter upon her former career or to successfully compete for other employment, the plaintiff’s needs and means at the date of the hearing, and the more advantageous position of the defendant, compared with that of the plaintiff, in relation to future financial security as a consequence of him being able to successfully pursue his career during the relationship while the plaintiff provided the majority of the homemaking and parenting tasks. Also for two to three years from the date of hearing the plaintiff will need to be available for [T] at pre and post-school hours.
His Honour then refers in [218] to the plaintiff’s expectation of marriage, and in [219] to the recognition of the sum which the plaintiff received when the Hill Street house was sold. He then concluded that the lump sum to be awarded to the plaintiff should be $200,000. The Judge did not in specific mathematical terms, articulate all of the deductions and additions, nor is it required of him.
Counsel for plaintiff submitted that in effect the Judge had taken the starting point that the plaintiff obtain 80% - 90% of the asset pool, i.e. between $540,000 - $661,500 less $270,000 less $131,500 which resulted in broad terms with the outcome of $200,000. This may not have been the actual approach taken by the Judge, but it was the net mathematical outcome. The plaintiff then argued that the deduction by the Judge of $270,000 for the defendant’s contribution to the purchase of Hill Street was wrong, as it was a “windfall” and should instead have been considered to be the contribution of both parties.
This characterisation of the $270,000 as a “windfall” was not argued before the Judge and therefore he did not have the benefit of the argument which the plaintiff addressed to this Court. This is very unsatisfactory and the Judge can hardly be criticised for any failure to approach this amount in the correct way. This is in spite of the Judge’s indicating to the plaintiff that he would be grateful for the assistance of counsel as to the identification of the assets and sums.
The approach which the Family Court has taken to the “windfall” element is that it has not been treated in the past as being a contribution by either party. In Mahon the Court decided that it was “a mistake to treat the windfall element caused by the rise in property values as a contribution by the party fortunate enough to hold the property in his or her name”.
In McTaggart and McTaggart,[58] the Court decided that the proceeds of a lottery which was won by the husband “…was a windfall. It is nothing more. It was not the fruit of some labour or skill of the husband. It was not a contribution by him to the matrimonial property.” The Court in that case also referred to other examples where the Court has declined to recognise windfalls as contributions.[59]
[58] (1988) FLC 91-920.
[59] Zappacosta and Zappacosta (1976) FLC 90-089; Anastasio and Anastasio (1981) FLC 91-093.
A more recent case has questioned the extent to which a Court should treat the windfall as though it is an asset to which neither party has any greater or lesser claim. The case of Holmes and Holmes[60] considered the situation of a Lotto win and Cohen J, rather than regarding the win automatically as though there was no contribution by either party, concluded that a windfall must be looked at in all of the circumstances; in particular to have regard to the effort made by a party to achieve the windfall, as well as the timing of the windfall.
[60] (1990) FLC 92-181.
A case which gave detailed consideration to the question of a windfall is Zyk and Zyk.[61] Here the Full Court of the Family Court analysed the above cases as well as some further cases concerning “windfall”. The Court specifically addressed whether a lottery payment should be regarded as a “windfall” to which neither party has contributed and whether it should be regarded as a contribution to the relevant pool of property of one or both parties.
[61] (1995) 19 Fam LR 797.
The Court indicated that it would prefer to consider the issue in the context of “contributions” of either party. It noted that whilst at first sight this might appear to be a matter of semantics, it was preferable to consider such an amount as a contribution of property and have it then assessed on that basis. In the case which they had before them, if the lottery amount was regarded as a contribution instead of a windfall to which neither party contributed, then there was a different outcome by way of division of property. The Court also noted that it was common parlance for a windfall to be described as a chance or unexpected benefit which the people involved neither anticipated nor made any effort towards acquiring. The Court expressed doubt as to whether that was a correct analysis for the purposes of s 79 of the Family Law Act 1975 (Cth). In their view, parties purchase a ticket and expend part of their earnings or capital for the express purpose of winning a prize. Whilst that hope may not be fulfilled, if there is success, it is the product of chosen expenditure. The Court considered that the preferable description is that it is a contribution.[62] The Full Court decided that the Lotto win should, on the facts before them, be treated as a joint contribution of the parties.
[62] Ibid.
These cases support the view that in considering the financial contributions made by the parties under this Act, there is similarly a need to look behind the $270,000 characterised by the plaintiff as a “windfall” in this case, to see whether that is apt.
In this case the $270,000 was not similar to a lottery win. It was a sum that was related to be defendant's professional practice. Whilst it was the product of the actions of a third party that wished to buy out the lease of the partnership, it arose as a consequence of the employment efforts of the defendant in his ophthalmology practice. It would not be regarded as a windfall in ordinary parlance but a commercial benefit incidentally acquired by his practice. The defendant then put that same money towards a jointly held house with a net result of benefit to the plaintiff. It does not seem appropriate for this amount to be regarded as a contribution by neither party nor as a joint contribution of both parties. It appears better to characterise and acknowledge the $270,000 as a contribution by the defendant to the relationship.
I therefore reject the argument of the plaintiff that the amount was a “windfall” which should be regarded either as a contribution of neither party, or a joint contribution.
I also reject the argument of the plaintiff that the Judge was wrong in deducting this sum of $270,000 when reaching his conclusion as to the division of assets between them having regard to that contribution. It was appropriate for the Judge to have regard to the source of funds of the purchase of Hill Street and to regard those funds as having been a contribution of the defendant. It was also appropriate for the Judge to have concluded that:
…Except for that, in my view the plaintiff’s financial contribution and her contribution as homemaker and parent was equal to the defendant’s financial contribution which produced the assets of both of them; an equal division between them of the assets would have seemed appropriate subject to any adjustment by reason of other relevant matters within Section 11(1)(d).
Therefore, the Judge appropriately took into account the plaintiff’s non-financial contribution as a homemaker and parent and made that interim adjustment.
This then left the contribution of the defendant for the purchase of Hill Street, in relation to which the plaintiff received the financial benefit of its renovations, remaining in the house rent-free, benefiting from the net proceeds of sale.
I consider the approach taken by the Judge in deducting this amount in all of the circumstances, to have been appropriate recognition for this item.
I note that the Judge, in the plaintiff’s favour, took all the matters of which the plaintiff complains into account. I consider that the approach of the Judge does not disclose error nor is the amount ordered by him “manifestly inadequate”. He appears to have taken an appropriately balanced approach and aimed at a figure which he considered “just and equitable” in all the circumstances, and I do not consider he was wrong in the manner that he exercised his discretion.
This ground of cross appeal is therefore dismissed.
Ground 2 Cross Appeal
The second appeal ground of the cross appeal by the plaintiff relates to the decision by the Judge not to award costs on a solicitor and own client basis. The plaintiff claims the Judge erred by failing to rely on the Rule 41.01 offer filed by the plaintiff and a Calderbank letter dated 22 October 2003 offering $200,000 in settlement of her claim, which was subsequently withdrawn on 29 October 2003.
The Judge considered the application by the parties on the question of costs and the history of the offers:
[3] On 9^th August 2002 the plaintiff lodged with the Registrar of the Court an offer to accept $150,000; the offer is not before the Court but the submissions of counsel with respect to it proceeded on the footing that it complied with Rule 41.01. On about 30^th October 2002 the action was set for trial on 6th May 2003; it was not reached. On 21^st May 2003 the plaintiff withdrew her Rule 41.01 offer. A new date for trial on 6th November 2003 was allocated.
[4] On 2^nd October 2003 the defendant lodged a Rule 40 offer in the sum of $85,000. On 22^nd October 2003, the trial date being less than 21 days hence, the plaintiff in a letter to the defendant (Calderbank letter) offered to accept $200,000 in settlement of her claim. That offer was withdrawn by the plaintiff on 29^th October 2003.
The Rules of the Supreme Court provide that any time up to 21 days before trial, a plaintiff may lodge and serve an offer to accept an amount, together with costs, in satisfaction of the plaintiff’s causes of action.[63] A defendant may file and serve a notice of acceptance of the offer up to seven days prior to the trial.[64] If this offer is not accepted and the plaintiff recovers a sum equal to, or greater than, the amount contained in the plaintiff’s offer, the Court, unless it thinks proper to order otherwise, shall order the defendant to pay the whole of the plaintiff’s costs to be taxed between solicitor and client.[65]
[63] Rule 41.01.
[64] Rule 41.01(2).
[65] Rule 41.04.

The plaintiff made an application that the defendant pay her costs of action on a solicitor and client basis or alternatively that there be an order in respect of the plaintiff’s costs incurred until 21 May 2003, the date of the withdrawal of a filed offer pursuant to Rule 41.01. However, the Judge in having regard to the withdrawn filed offer and the withdrawn Calderbank letter did not see sufficient grounds for departing from the usual party and party costs.
The Judge undertook a careful analysis of the relevant Rules including the predecessor to Rules 39 and 40, namely Order 22 Rule 6A(2)(b) which specifically provided that where an offer to consent to judgment was withdrawn “it shall be deemed never to have been made”. He noted that this Order and Rule under the 1947 Rules was not imported into the current rules.
Counsel for the defendant drew the attention of the Judge to Gardner v Cleggs.[66] This was an English decision in which RCS Ord 22 Rule 1(1)(B) and (5) permitted a payment of money into Court and withdrawal only on leave of the Court. In the trial at first instance when costs were sought in the window of time between the date of filing and the date of withdrawal, the Judges held that the withdrawal of money from Court, nullified the payment. This was overruled on appeal after noting RCS Ord. 62 Rule 5 which provided:
The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account …(b) any payment of money into Court and the amount of such payment.
[66] (1983) 2 All ER 398.
Lord Justice Lawton concluded that the Judge was wrong and that account should be taken of that period of time when the plaintiff in that case took “a gamble”.
After citing this case the trial Judge in his reasons for decision, concluded, in my view correctly, that the English case and its reasons could be distinguished. There is no South Australian equivalent to RSC Ord. 62 Rule 5, nor is there the requirement of the previous South Australian Order 22 Rule 6A(2)(d). I further note that under the English Rules, a withdrawal can only be with leave. It therefore is a “gamble” when deciding to file an offer.
In South Australia a withdrawal does not require leave; the only restriction is one of timing. The fact that Order 22 Rule 6A(2)(d) was not reinstated does not imply the opposite outcome, namely that costs will be allowed in respect of a period prior to withdrawal. It is therefore a factor which can be taken into account when the Court is exercising discretion, being the conclusion correctly reached by the trial Judge in this case.
The Judge quoted the case of Casley-Smith v Evans & Sons[67] and said, at [22]:
An order for solicitor/client costs “can be awarded in appropriate cases where there is some special or unusual feature in the case to justify the Court exercising its discretion in that way…the proper rationale for such an exceptional order will, in fact be expressed in terms of either improper motive or conduct on the part of the party concerned, which has inevitably imposed an undue burden upon some other party.” [68]
[67] (1989) 148 LSJS 483, 488.
[68] Gleeson v Hammerton (No.2) [2004] SADC 153.
The trial Judge also cited the case of Callaghan v Callaghan (No.2)[69] in support of his own conclusion, finding that the withdrawn offer and the withdrawn Calderbank letter did not in the circumstances justify any order for solicitor/client costs in favour of the plaintiff.[70]
[69] (Unreported, Supreme Court of South Australia, Perry J, Jud No S5562, 3 May 1996).
[70] Gleeson v Hammerton (No.2) [2004] SADC 153, [23].
In ACCC v Australian Safeway Stores Pty Ltd[71] the Federal Court held that the power of the Court to award costs was an unfettered discretionary power and to order the payment of costs other than on the usual party/party basis depended on the particular facts of the case. In a recent decision of this Court Morris v McEwen,[72] White J, with whom Debelle J agreed, noted, at [69] that:
the Rules do not appear to contemplate the lodgement of an offer which is expressed to be open for a limited period only.
[71] [2002] FCA 1294.
[72] [2005] SASC 284.
His Honour went on to refer to the decision of in Debelle J in Pirrotta v Citibank[73] and to say that:
It suggests that in order for effect to be given to a Calderbank letter, it should be framed in terms which are consistent with the spirit and intent of r 40. In particular, for effect to be given to a Calderbank letter where an offer in accordance with the Rules of Court could have been lodged, the Calderbank letter should not impose more onerous obligations on the recipient than would an offer filed in accordance with the Rules.[74]
[73] (1998) 72 SASR 259, 266-7.
[74] At [74].
In my view, the Judge in this case made no error of law. There do not appear to be any special circumstances that might justify an order for costs other than the usual party/party costs.[75] Here the plaintiff made an offer and withdrew the offer and is claiming costs between the offer and the withdrawal; this does not in my view amount to circumstances where the defendant is liable to pay for client and own solicitor costs of the plaintiff. The cross appeal is therefore dismissed.
[75] Ritter v Godfrey [1920] 2 KB 47.