Horrigan & Horrigan - [2020] FamCAFC 25

FAMILY COURT OF AUSTRALIA

HORRIGAN & HORRIGAN

[2020] FamCAFC 25

FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge failed to undertake a holistic assessment of contributions – Whether the primary judge’s findings did not reflect the wife’s contributions to the properties – Where the primary judge did not adopt, as the wife contends, a purely mathematical calculation as a starting point to assess the impact of subsequent contributions – Where it is not possible to conclude that without the wife’s assistance the husband’s properties would have become financially unviable – Where the primary judge did not err by failing to prescribe interest under the orders – Where the primary judge provided adequate reasons to conclude that the contribution based entitlements were 85 per cent to the husband and 15 per cent to the wife – Appeal dismissed – Wife to pay the husband’s costs.

Family Law Act 1975 (Cth) s 75 and s 79

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Lee Steere and Lee Steere (1985) FLC 91-626; [1985] FamCA 57
Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168
Magas and Magas (1980) FLC 90-885; [1980] FamCA 67
Marsh & Marsh (2014) FLC 93-576; [2014] FamCAFC 24
Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74
Sexton & Sexton [2012] FamCAFC 218
Singerson & Joans [2014] FamCAFC 238
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Ms Horrigan

RESPONDENT:

Mr Horrigan

FILE NUMBER:

HBC

690

2017

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

7 February 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland, Kent & Tree JJ

HEARING DATE:

11 September 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 November 2018

LOWER COURT MNC:

[2018] FamCA 937

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ayliffe SC with Mr McKenna

SOLICITOR FOR THE APPELLANT:

Ogilvie Jennings

COUNSEL FOR THE RESPONDENT:

Ms Gibson

SOLICITOR FOR THE RESPONDENT:

Charmaine Gibson

Orders

The wife’s Amended Notice of Appeal filed 9 May 2019 be dismissed.
The wife pay the husband’s costs in the sum of $20,000 by way of deduction from the payment in the sum of $164,912 due to be made by the husband to the wife on 16 February 2020.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Horrigan & Horrigan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 93 of 2018
File Number: HBC 690 of 2017

Ms Horrigan

Appellant

And

Mr Horrigan

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Horrigan (“the wife”) appeals from orders of a Family Court judge made on 16 November 2018, which divided the parties’ property, such that she received 22 per cent of the net pool, and Mr Horrigan (“the husband”) received 78 per cent. That outcome was effected by each party retaining the real properties then held in their respective names, together with some specified chattels, and the husband paying the wife $500,000.00 within 90 days of the date of the orders, and a further $164,912.00 within 15 months of the date of the orders.
The husband opposes the appeal. For the reasons which follow, the appeal must be dismissed.

Background

As at the time of trial, the wife was 47 years of age and the husband 64. Both had a long history in farming in Tasmania. By the time they commenced their relationship in September 2009, both had been previously married, to which marriages the wife had three children and the husband four, all of whom were adults by the time of trial.
The parties commenced cohabitation in October 2009 and married in 2010. In 2011 the sole child of the parties’ marriage was born, who was seven years of age at the time of the primary judgment.
At the time the parties commenced their relationship, the wife owned a residential property at J Town, and the husband owned two grazing properties, one at L Town and the other at Z Town. It is uncontroversial that for many years of the marriage, the husband’s grazing properties were affected by drought.
The parties separated on 20 June 2017 and property settlement proceedings were commenced by the wife on 3 August 2017. In October 2017 an order was made that the husband pay interim spouse maintenance to the wife, by meeting some of her expenses, and paying her a cash sum of $400 per week. That order continued in operation at the time of the primary judgment.
Post separation, the parties also conducted acrimonious parenting proceedings, although they settled on 29 August 2018 on terms which saw the child live with the wife, but spend five nights per fortnight with the husband. By then, the property trial, which had been heard separately in May 2018, had concluded, with judgment reserved, albeit that the parties had agreed that the evidence in the parenting proceedings would also form part of the evidence in the property proceedings. Upon the settlement of the parenting proceedings, the property proceedings re-opened, and further submissions were made.

The Trial and the Primary Judgment

There were two significant disputed factual matters which occupied much of the property trial. The first was the wife’s claim that during the course of the relationship, the husband had been physically and sexually abusive to her, on the basis of which she mounted an argument based on Kennon v Kennon (1997) FLC 92-757, that the husband’s violence had made her contributions to the relationship significantly more onerous than they ought to have been. The primary judge was not satisfied that the assaults and sexual abuse alleged by the wife were established on the evidence. No challenge is made to that finding in this appeal.
The second significant matter of contention between the parties was the husband’s allegation that the wife had, unbeknownst to him, gambled extensively during the course of the relationship, and thereby lost a considerable sum. The wife asserted that it was one or more of her children who had been using her money to gamble, and not her. The primary judge rejected that contention, and found that during the period between June 2014 and June 2017, she gambled about $98,249, and allowing for winnings of somewhere between $54,000 and $58,000, found that she had suffered a net loss of about $40,000. The primary judge also found that, first, earlier in 2012 the wife had used the husband’s bank account to gamble, although the husband discovered it and stopped her continuing to do so, and secondly, that the wife’s gambling activities had otherwise pre-dated 2014. The primary judge’s ultimate conclusion at [185] was that the wife’s gambling “lost at least $40,000 between 2012 and 2017”. No challenge is made in this appeal to any of those findings.
Before the primary judge, there was an agreed balance sheet of the parties’ assets and liabilities as at the time of trial. This disclosed that the pool of property had a net value of $3,634,582. Significant items in the balance sheet were the Z Town property at $2,840,000, the L Town property at $1,800,000, and the J Town property at $145,000. Against Z Town and L Town, there were borrowings of $2,120,000, and there was the sum of $45,000 owing on the mortgage secured over the J Town property.
Having identified the asset pool, the primary judge set about assessing the parties’ contributions to it. He began by identifying what the parties brought into the relationship at its commencement. He identified that the wife brought in the J Town property, together with some household contents, plant, equipment, livestock and shares. As there was no valuation of the J Town property at the time of cohabitation, the primary judge inferred that it then had a value of no more than its value at trial, of $145,000.
The primary judge then identified that, at the commencement of cohabitation, the husband owned the Z Town and L Town properties, together with plant, equipment, livestock, household contents and bank accounts. Again, there was no retrospective valuation of the Z Town and L Town properties, although the primary judge accepted at [199] that the “estimated value at the time of cohabitation” of the Z Town property was $1,972,300, and noted that L Town had been purchased by the husband in 2009 for a price of $1,250,000, which his Honour appears to have accepted was still its likely value when cohabitation commenced a little later that year.
Based upon these figures, the primary judge concluded that the net assets of the husband at the commencement of the relationship had an approximate value of a little over $1.5 million, and that “at best” (at [205]), the value of the wife’s assets at the commencement of cohabitation was $195,000. His Honour incorrectly said that the latter figure was 13 per cent of the asset pool at the time cohabitation commenced; before us it was conceded that $195,000 was 13 percent of $1.5 million, whereas the net pool, adopting the wife’s initial contribution value of $195,000, was $1.695 million, and hence the calculation of the wife’s contribution ought to have been 11.5 per cent.
His Honour’s ultimate conclusion was that he was satisfied that the husband’s financial contributions were far greater than those of the wife at the time of the commencement of cohabitation. No challenge is made to that finding in this appeal.
Part of the wife’s initial contribution of $195,000 was a $105,000 compensation payment which she received shortly after the parties commenced cohabitation. In dealing with the wife’s submission at [218] that this sum “was a particularly effective asset to provide liquid funds to enable the farm to prosper”, his Honour accepted at [219] that “[it] was an asset which was of value to the parties as the properties came out of drought”.
His Honour then went on to consider the parties’ contributions during the course of the relationship. Ultimately his Honour was satisfied “that the parties have contributed equally since they commenced cohabitation in late 2009 and that they have each continued to do so up to separation and following separation” (at [223]). Again, no challenge is made to that finding by either party in this appeal.
At [239] of the reasons, his Honour concluded as follows:
Given all of the facts and circumstances about contributions, I am satisfied that the value of the overall contributions, including initial contributions, contributions during the relationship and contributions post-separation, are as to 85 per cent by the husband and 15 per cent by the wife.
His Honour then went on to consider the relevant factors under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), and concluded that they favoured the wife to the extent of a further 7 per cent adjustment in her favour. The primary judge then determined that a division of the parties’ assets and liabilities, which saw the husband retain the Z Town and L Town properties, (and responsibility for the associated liabilities), and the assets of the livestock business conducted on them, and the wife retain the J Town property, livestock, shares and chattels, but receive a further payment of $664,912 from the husband, achieved a just and equitable outcome.
Having observed that the husband was still trying to recover from the impact of drought on his properties, the primary judge continued at [260]:
The husband has limited borrowing capacity but can, over the years, borrow to pay out the wife. Given that the husband is a farmer and has been a farmer for many years and seeks to retain his properties, I am satisfied that his practical proposal for payment of the wife over fifteen months is, in all of the circumstances, just and equitable. Given the relative contributions, to force the husband to sell the properties if there is a facility available to him to otherwise pay out the wife would not be just and equitable.
Next, his Honour determined that the spouse maintenance order made on 19 October 2017 should be extended for 90 days, at which time under his orders, the sum of $500,000 was due to be paid by the husband to the wife, and noted that if the husband did not then make that payment, the interest which would thereafter accrue on that sum “would more than compensate for any maintenance otherwise sought by the wife” (at [262]). His Honour also acceded to the wife’s application that she retain sole occupation of the house at L Town until 30 days after the payment of the $500,000.

The Appeal Generally

By her Amended Notice of Appeal filed on 9 May 2019, the wife abandoned what had previously been grounds 3, 4 and 8, and during the course of submissions, she also abandoned grounds 9, 9A and 10(b) and (d). Otherwise we shall deal with the grounds of appeal in the groupings identified by the wife.

Grounds 1, 2, 5 and 6

These grounds provide as follows:
1.The learned Trial Judge erred in law and fact by:
(a)failing to assess the Wife’s contribution holistically over the whole asset pool;
(b)categorizing the Parties contributions into certain time frames and certain assets;
(c)misdirecting himself that he ought not assess the contribution of the wife’s compensation funds over the entire marriage because he had assessed it as a contribution at the commencement of cohabitation;
2.Further and/or in the alternative to grounds 1(a) to (c) the learned Trial Judge erred in law and fact in having assessed the Wife’s contributions as being equal to the husband (apart from initial contributions) he did not divide equally the increased value of the asset base from the commencement of cohabitation but rather distributed only approximately 15% of the increase in value to the Wife.
5.The learned Trial Judge erred in law and fact in allowing the initial contribution of the Husband to dominate his finding as to the respective contributions assessing the Wife’s initial contribution to be 13% in assessing the Wife’s total contribution of the pool at trial at 15% not withstanding her equal contributions during cohabitation and post separation and the growth in asset value of approximately $2,000.000.
6.The learned Trial Judge failed to take into account adequately or at all or give adequate reasons for any assessment of the Wife’s contribution to:
(a)the “conservation or improvement” of the two grazing properties during periods of and immediately after drought;
(b)the increase in stocking and plant and equipment levels;
(c)and the acquisition of valuable water rights;
(d)and the payment of the mortgage leading to the retaining of the farms during cohabitation;
(e)the acquisition of the entire equity in L Town after commencement of co-habitation.
(As per the original) (Emphasis omitted)
These grounds were argued by the wife collectively, as they are, to a large extent, inter-related.
As identified both in her Summary of Argument filed on 9 May 2019 and orally, under the cover of these grounds, the wife contended three main deficiencies, or errors, on the part of the primary judge. The first was that the finding that she had made a contribution of 15 per cent to the net pool of assets, did not properly reflect the fact that her efforts and contributions had conserved the husband’s properties, which otherwise would have been imperilled. Secondly, she said that the finding of equal contribution during cohabitation was not reflected in the outcome, in that there ought to have been an equal split between the parties of the increase in value of various items in the balance sheet over the period of cohabitation. Thirdly, his Honour had not undertaken an assessment of contributions holistically, but had quarantined pre-cohabitation contributions. We will deal with those matters in that order.

Wife’s conservation of husband’s farms

The wife contends that both her financial contributions derived from her compensation payout, and her hard work on the farming properties, meant that those farms were able to be conserved, in the sense that if it had not been for those contributions, they would likely not have been able to be retained by the husband during the relationship.
However this argument is pure conjecture, and is not reflected in any evidence, or indeed submissions, before the primary judge. Whilst it is the case that, particularly during shearing, the wife provided monumental assistance, and significant assistance in performing farming duties at other times, it is not possible to conclude that absent those efforts, the husband’s properties would have been so financially unviable as to be required to be sold, or that the mortgages over them would have been unable to be serviced.
Moreover, in the context of this contention, one cannot overlook the unchallenged finding of the primary judge that the wife sustained gambling losses of about $40,000 from 2014 onwards, together with unquantifiable earlier losses.
This aspect of the wife’s claim fails.

Finding of equal contribution during cohabitation not reflected in outcome

As developed in his oral submissions, Senior Counsel for the wife asserted that the finding of equal contributions by both parties after cohabitation commenced, necessitated that the parties should equally share in the increase in value of pre-cohabitation assets, and particularly, that the wife should be entitled to 50 per cent of the increase in value of the husband’s farming properties, livestock, machinery and the like. Unsurprisingly, no authority was quoted in support of this proposition.
The primary judge’s finding of equal contributions by both parties after cohabitation commenced is informed by the reasons which precede that conclusion. Particularly his Honour found that:
a)      For some years during cohabitation, the wife’s three children would stay with the parties, but the government assistance which was paid in respect of them was probably inadequate to cover the costs of them doing so;
b)      The wife’s receipt of drought assistance from the government to assist the family was not a contribution by either party;
c)      The parties’ care of the wife’s grandson for some period of time, again in respect of which government assistance was received, probably also required other monies to help provide for him;
d)      The wife’s receipt of family tax benefits for the parties’ child was not a contribution by either party;
e)      The wife’s rental income in respect of the J Town property was simply used to service the mortgage repayments on that property;
f)      The husband’s income was very modest given the drought;
g)      The wife made significant physical, emotional and financial contributions to the husband’s farming business, at least in the early years of the relationship;
h)      During the relationship, the husband applied all of the funds available to him, whether by means of income or recourse to his overdraft, to the parties’ needs;
i)      During the course of the relationship, the husband worked “hard in the family and on the farm” (at [222]); and
j)      The wife also worked hard during the course of the relationship, in terms of being a homemaker, mother and on the farm.
We assess those findings, and the conclusion that followed, to the effect that, during the relationship, each party worked as hard as the other, and contributed both financially and physically to the maximum extent that they could.

They provide no warrant for the argument raised by the wife that, in effect, at the commencement of cohabitation, a line is ruled across the balance sheet, and the parties should thereafter share in any increase in value of pre-cohabitation assets in the percentage of their other contributions during the course of the relationship. Indeed such an approach would be the very antithesis of the holistic assessment of contributions during the course of the relationship, which the exercise of the discretion under s 79 of the Act requires.
Of course that does not mean that the husband thereby is to be regarded as having contributed all of the subsequent increase in value of the properties. The holistic assessment process requires the myriad of contributions to be identified and weighed.
This aspect of the wife’s challenge also fails.

Failure to holistically assess contributions

It is well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment. (Pierce v Pierce (1999) FLC 92-844; Singerson & Joans [2014] FamCAFC 238; Dickons v Dickons (2012) 50 Fam LR 244 and Marsh & Marsh (2014) FLC 93-576; Lovine & Connor and Anor (2012) FLC 93-515 at [39]-[42]). The wife contends that the primary judge erroneously constructed a balance sheet as at the commencement of cohabitation, and then, in effect, quarantined those assets or contributions. She is also critical at paragraph 1.3(a) of her Summary of Argument of the allegedly “purely mathematical exercise” which the primary judge undertook in assessing the parties’ contributions at the commencement of the relationship.
However that is not what the primary judge did. Rather, in attributing a figure of 13 per cent as to her contribution to the asset pool at the commencement of cohabitation, it is plain that by describing it at [205] as being “at best” the wife’s initial contribution, the primary judge was attempting to gauge the materiality of the parties’ respective contributions, and in any event, the error which affected that calculation favoured the wife. Further, his Honour went on to say at [206]:
…[t]he amount contributed by the wife on those calculations by the wife are likely to be high given the findings I have made about the wife’s application of significant funds towards gambling and there being no evidence of value of J Town other than the current value.
(As per the original)
As we observed earlier, the unchallenged finding is that his Honour was “satisfied that the husband’s financial contributions were far greater than those of the wife at the time of cohabitation” (at [207]). That much was self-evidently true. Moreover, that conclusion makes it plain that his Honour was not adopting some mathematical calculation as a starting point to assess the impact of subsequent contributions. We reject this aspect of the wife’s appeal.
Turning then to the contention that there was thereafter no holistic assessment of contributions, but rather that the initial contributions were quarantined, a proper reading of his Honour’s reasons does not support that conclusion. Particularly, his Honour recognised at [219] that the wife’s compensation payment of $105,000 “was an asset which was of value to the parties as the properties came out of the drought”. However his Honour immediately then went on to say that “[s]imilar things could be said about owning the property, owning a core of livestock, and having the machinery for the farm” (at [219]).
Those comments were preceded with the sentence “[i]n that respect I have treated [the wife’s $105,000 compensation payment] as a significant initial contribution. I needed to be careful not to count it twice” (at [219)]. The wife says that, in so observing, the primary judge imposed an impermissible restraint upon himself as to how he treated that payment.
However it is plain from the very next sentence at [219] that his Honour did not do so. Rather, in saying that he “needed to be careful not to count it twice”, what his Honour was emphasising was that the $105,000 ought not to be treated both as a contribution at the commencement of cohabitation, and a contribution during the course of the relationship. However his Honour was well aware at [219] that the asset “was of value”, in that it was in the form of liquid funds which enabled the farm to move forward as the properties came out of drought. We reject that the impugned observation is indicative of some quarantining of the compensation monies. We are satisfied that his Honour, far from quarantining that contribution, clearly acknowledged its particular value, being a cash sum, but balanced that by, at the same time, recognising that the ownership of the properties, machinery and livestock were also necessarily of value to the parties as the properties came out of drought. Inferentially, without those things, the compensation monies would not have been as valuable as they otherwise were.
We are not satisfied that the primary judge quarantined the parties’ initial contributions from their subsequent contributions.
As to the wife’s broader claim of an overall failure to holistically assess the parties’ contributions, the necessary starting point is a line of authorities most recently culminating in Jabour & Jabour (2019) FLC 93-898 (“Jabour”).
In Jabour, a parcel of land bought into the long marriage by the husband, was “serendipitously” re-zoned, effecting a very large increase in its value. In allowing the appeal, the Full Court held that the trial judge had erred by failing to holistically assess the parties’ myriad of contributions across the whole relationship (of which the contribution of the land was but one). Rather the trial judge weighed the other myriad of contributions against the contribution of the land, and thereby quarantined the latter (at [86]).
However that is not what the primary judge did here. Rather his Honour was cognisant of the myriad of financial and non-financial contributions which both parties made during the relationship. For instance, at [70] the primary judge said:
In many ways the husband acknowledged that the wife’s contributions to the farm in a physical, emotional and financial sense were significant, at least in the earlier years of the relationship. I have given that evidence of the husband significant weight.
Later at [129] his Honour further said:
The husband had a modest income. He had money to meet the needs of the family, although he relied upon the wife in terms of assisting him on the farm. He provided accommodation for the wife and her children of previous relationships.
In addition, his Honour had regard to the wife’s financial contributions as discussed earlier in these reasons. Further recognition of both parties’ various financial and non-financial contributions appears at [138]-[143], [171], [185], [208]-[222] and [237].
Unlike in Jabour, the primary judge here did not isolate the husband’s contribution of the farming properties from the myriad of other contributions, and, in effect, weighed them against each other. Nor did his Honour embark upon some quest to find a “nexus” between the contributions of the parties and particular items of property.
In any event, Jabour and many of the authorities it traverses, involved a long relationship of over 24 years. Inevitably the length of the relationship under consideration informs the holistic assessment of contributions. Here the parties’ relationship subsisted for a little less than eight years.
This aspect of the wife’s challenge also fails.

Conclusion

It therefore follows that the three aspects promoted by the wife as arising under Grounds 1, 2, 5 and 6 are not made out. Thus there is no merit in those grounds.

Ground 7

Ground 7 provides as follows:
Further and/or in the alternative to ground 4 if the learned Trial Judge had a different pathway to his assessment of the Wife’s contribution at 15% other than the dominant value of the Husband’s initial assets then His Honour erred in that the reasons for such decision are inadequate.
(As per the original) (Emphasis omitted)
The test for the adequacy of reasons has been articulated in a number of cases. In Bennett and Bennett (1991) FLC 92-191, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at [18] as follows:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a) The Appeal Court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the Appeal Court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In her Summary of Argument, the wife says at paragraph 2.2 “[i]t is difficult to conclude other than the Trial Judge has used the initial (but mathematically incorrect) finding that the wife contributed 13% to the pre-cohabitation ‘Asset Pool’ and has re-applied this with a mere 2% variation to arrive at 15%” (As per the original). However, somewhat contradictorily, it is then later said at paragraph 2.3 that “[i]n any event and further, it is not possible to perceive from the Trial Judge’s reasoning the pathway to the finding of 15%” (As per the original).
We reject both of those claims. We have extensively recited the findings of his Honour above, both in relation to contributions at the time cohabitation commenced, and the contributions made during the course of the relationship. Further, at [237] and [238], his Honour specifically adverted to the fact that the wife had been the primary carer for the parties’ child since separation, along with her grandchild, who had lived with the parties for periods during their relationship, and that the husband had been paying spouse maintenance since the orders in October 2017.
Inevitably, in moving from a qualitative description of contributions to a quantitative one, there will be a “leap” (Sexton & Sexton [2012] FamCAFC 218 at [72]; Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234]), but we are well satisfied there was a sufficient exposure of the matters and reasoning which led the primary judge to conclude that the contribution based entitlements of the husband and wife were respectively 85 per cent and 15 per cent.
As to the alternative argument, that, in effect, the primary judge merely added two percent to the wife’s initial contribution, there is simply no warrant for reading the primary judge’s reasons in that way. Demonstrably, that is not what the primary judge did. This claim also fails.
It follows that Ground 7 fails.

Ground 10

The remaining aspects of ground 10 assert:
The Learned Trial Judge erred in law and fact in making order 1 by allowing the Husband 15 months to pay the Wife $164,000.00 of her entitlement to the asset pool without:
(a)Interest at the prescribed rate under the Family Law Rules 2004 (C’th); or
(c)providing adequate reasons as to why the Wife should use 23% of her cash payment to support the Husband retaining two grazing properties; and
(As per the original)
This ground may be shortly dealt with. It is said by the wife that the primary judge’s error was to not in some way compensate her for, in effect, being a passive investor in the husband’s business until 15 months after the primary judgment. However spouse maintenance would continue until the payment of $500,000, and the amount of interest that would accrue on the balance over the 12 months until the husband was due to pay it to the wife would only be about $8,000. In the context of the $3,634,582 pool, such a figure is approaching de minimis.
In any event, as was said in Lee Steere and Lee Steere (1985) FLC 91-626 at 80,075, quoting from the Full Court in Magas and Magas (1980) FLC 90-885 at 75,591:
“[if] arrangements can be made which would relieve the spouse who is working a farm as a farmer, from selling the farm but at the same time doing proper justice to the claim of the spouse who was not living on the farm, then of course those arrangements should be made”.
We are not satisfied that by failing to prescribe interest, the primary judge failed to afford proper justice to the wife. We are otherwise not satisfied that the primary judge’s reasons are inadequate, or that otherwise there is merit in the balance of this ground of appeal.

Ground 11

The wife’s Senior Counsel in submissions conceded that there was no need to address ground 11 in these reasons. We therefore do not propose to do so.

Outcome

It follows that no ground of appeal has been made out. Therefore the appeal fails and will be dismissed.

Costs

In the event that the appeal was dismissed, the husband sought that the wife pay his costs in the sum of $20,000. This was opposed by the wife on the basis that her financial position was unchanged from the time of trial.
The wife has been wholly unsuccessful in this appeal. We are satisfied that any adverse impact of a costs order in the claimed sum upon her financial circumstances can be adequately accommodated by ordering that the husband’s costs in the sum of $20,000 be met by way of deduction from the final payment in the sum of $164,912, which is due for payment on 16 February 2020.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Tree JJ) delivered on 7 February 2020.

Associate:

Date: 7 February 2020