JM & RM

[2005] FamCA 271

[2005] FamCA 271  JFJMRM

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 72 of 2004
File No. SYF 528 of 2002

IN THE MATTER OF:

JM

Appellant/Husband

- and -

RM

Respondent/Wife

REASONS FOR JUDGMENT

BEFORE:  Finn, Coleman & Boland JJ
DATEOF HEARING:          7^th day of February 2005

DATE OF JUDGMENT:     13^th day of April 2005

Name of Appeal  JM & RM

Appeal Number  EA 72 of 2004

Date of Appeal hearing  7^th day of February 2005

Date of Judgment  13^th day of April 2005

Coram  Finn, Coleman and Boland JJ

Catchwords:  Asserted that a 5 per cent adjustment in the wife’s favour with respect to contributions was outside the ambit of a reasonable exercise of discretion in light of the facts and circumstances supporting such adjustment – trial Judge’s decision not shown to have fallen outside the generous ambit of a reasonable exercise of discretion, nor to be a substantial wrong – House v The King (1936) 55 CLR 499, Norbis v Norbis (1986) 161 CLR 513 followed.

10 per cent s 75(2) adjustment in the wife’s favour not reasonably open in light of the facts and circumstances – fell outside the ambit of a reasonable exercise of discretion.

Re-exercise of discretion – 5 per cent s 75(2) adjustment appropriate.  

Appeal allowed – re-exercise of discretion

Costs certificates ordered

1. By Amended Notice of Appeal filed 13 August 2004 JM (“the husband”) appealed against orders made by Rose J on 16 June 2004 in proceedings for settlement of property between the husband and RM (“the wife”).
2. The husband sought that, in lieu of a division of the net assets of the parties in shares of 65 per cent to the wife and 35 per cent to the husband, there be a division of such assets in shares of 55 per cent to the wife and 45 per cent to the husband. The effect of such variation of the trial Judge’s orders would be that, in lieu of the wife paying the husband a sum of $30,243.00 as provided by his Honour’s orders, the wife be ordered to pay to the husband the sum of $128,667.00.  The wife resisted the husband’s appeal and sought to maintain the trial Judge’s orders.

BACKGROUND

3. The parties were married in August 1984 and separated under the same roof in April 2002. 
4. In July 2002 the husband vacated the former matrimonial home of the parties.  Thereafter the wife and the children of the marriage had sole use and occupation of the home.
5. The husband was 41 years of age at the date of judgment whilst the wife was 38 years of age.  The husband was then a pensioner whilst the wife had employment as a sales representative on a part time basis.
6. There were three children of the marriage, they having been born in January 1986, September 1989 and January 1991.  The two youngest children attend school whilst the eldest child attends university.  All three children live with the wife in the former matrimonial home. 
7. The trial Judge found the assets of the parties to be worth $984,041.00.  There is no challenge to that finding in this appeal.

THE TRIAL JUDGE’S JUDGMENT

8. Having recorded the matters of background referred to above, the trial Judge determined the net asset pool of the parties and evaluated the parties’ contributions.  A number of findings were recorded by the trial Judge in that context, few of which have been challenged in this appeal. 
9. His Honour concluded that the parties had made equal initial financial contributions in the form of a “small joint equity” in the property which became the matrimonial home and “a motor vehicle, clothing and personal effects”. 
10. During cohabitation the wife contributed as homemaker and parent and, other than when she went on maternity leave, was “constantly employed either on a full-time or part-time basis”, including employment “at times over six days a week”.  The wife’s income from employment was “applied towards meeting living expenses and liabilities of the parties”.  His Honour found that the wife “joined with the husband in the progressive purchase and sale of real estate” and “carried out substantial work in assessing subdivision potential of various properties and making detailed submissions to council in order to obtain approval of the subdivision plans and subsequent development applications”. “[S]hort-term significant loans made to the parties” by the wife’s parents were found to have been an indirect contribution by the wife. 
11. His Honour found that in the post separation period the wife contributed to the welfare of the family “in the care and support of the three children of the marriage” which contribution “included the sole financial support of each of the three children”, the husband having paid child support “for a short period of time”, albeit for a “negligible amount” and having accumulated arrears of child support of “approximately $3,000.00”.
12. The trial Judge found that the husband had been “consistently employed on a full-time basis….apart from a short period of unemployment” during cohabitation and had “applied his income towards meeting the living expenses and liabilities of the parties”. In addition to joining with the wife “in the progressive purchase and sale of real estate”, the husband was found to have performed “substantial labouring work in relation to the former matrimonial home”.  The husband had made a “limited contribution to the welfare of the family in the role of home-maker and parent” in the post separation period.
13. Under the heading “ASSESSMENT OF CONTRIBUTIONS”, the trial Judge recorded the concessions made with respect to the contributions of each party to which he had earlier referred.  He concluded that:

“Were it not for the wife’s significant contribution in relation to the subdivision of various real estate properties and the financial benefits that subsequently flowed from that, and her contributions since separation I would have found that the parties [sic] contributions as being equal [sic].” (Judgment, paragraph 78)

14. His Honour further concluded:

“However, all of those contributions of the wife that I have singled out attract significant weight. The period of the past two years have been [sic] arduous for the wife in that she has been virtually the sole home-maker and parent for the three children of the marriage and the sole source of their financial support.” (Judgment, paragraph 79)

15. The wife’s contributions were thus assessed at 55 per cent and the husband’s at 45 per cent.
16. The trial Judge considered “RELEVANT SECTION 75(2) MATTERS”.  There is no suggestion that his Honour failed to have regard to any relevant s 75(2) factor nor is it suggested that he had regard to any extraneous or irrelevant matters in that context. 
17. Reference was made to the wife’s age and her “good health” and the husband’s absence of “good health”. 
18. The wife was found to have a current income of $400.00 per week whilst the husband was not found to have any capacity to earn income from personal exertion by reason of his health.  On a “review” of the medical evidence before him, the trial Judge concluded that the husband did not have the mental or physical capacity for gainful employment.   
19. His Honour found that the wife had “the capacity to be employed as a real estate agent as she is qualified and experienced in that field having ceased such employment only in January last”.  Having discussed the possibility of the wife having more extensive and remunerative employment than she currently enjoys, the trial Judge concluded that she had “the capacity to be engaged in her current employment earning the income” to which his Honour had earlier referred of $400.00 per week.  The wife was found to have “the capacity to be employed as a real estate agent” although the trial Judge was unable to make findings with respect to her “prospects of employment” and “range of income” in that occupation. 
20. Reference was made to the two children of the marriage who have not attained 18 years of age, the trial Judge concluding that financial support was likely in the future to be “almost solely provided by the wife” as had been the case since the separation of the parties. The wife also had the “care and responsibility” of the two children.
21. Having thus identified and discussed relevant s 75(2) matters, the trial Judge concluded that an adjustment of 10 per cent should be made in the wife’s favour.  Such adjustment was reached after having “taken into account the husband’s lack of income and capacity to earn income as well as his unsound health”. “[B]alancing against those matters” were a number of “aspects of the wife’s financial circumstances”. 
22. The wife having the current and future care of the two youngest children who were then aged 14 and 13 was taken into account under s 75(2).  His Honour recorded that the youngest child “has significant emotional problems requiring the wife’s support whenever possible”.  Reliance was also placed upon the wife having to “meet all of the commitments of the children including private school fees which the husband conceded was appropriate” and which would continue for “several years”.  The wife had the obligation to provide “adequate accommodation not merely for herself but for at least the two youngest children”. 
23. The trial Judge referred to the husband “living with his mother in her home and paying a small amount of board”.  The husband’s living requirements were found to be “attended to by the husband’s mother and sister” there being “no evidence to suggest that those arrangements will not continue for the foreseeable future”. 

THE GROUNDS OF APPEAL

24. In the original Amended Notice of Appeal three grounds were relied upon, two of which contained a number of parts.  At the commencement of the hearing of the appeal, with leave, the husband added two additional paragraphs to ground 2 of the Amended Notice of Appeal.
25. In their thorough and comprehensive written submissions, learned Counsel for the parties addressed the grounds of appeal relied upon by the husband under three headings.  It is convenient to apply that approach to a consideration of the husband’s grounds of appeal.

THE CONTRIBUTION GROUNDS – GROUND 1

26. Ground 1 of the husband’s Amended Notice of Appeal provided:

“That His Honour erred in finding the contributions of the parties to have been 55% to the Wife and 45% to the Husband in that:

1.1  His Honour erred in finding that the Wife had carried out “substantial” work in relation to various sub-divisions, that the Wife’s parents had made “significant loans” and consequently that the Wife had made “a significant contribution” in relation to the various sub-divisions;

1.2  His Honour erred in finding that the post-separation contributions favoured the Wife so as to lead to an adjustment in her favouring [sic] circumstances where inter alia the Wife had sole use and occupation of the matrimonial home;

1.3  His Honour gave too much weight to such contributions by or on behalf if [sic] the Wife in any event;

1.4  His Honour failed to give sufficient reasons for his conclusion in respect of contributions; and,

1.5  such finding was outside the reasonable range of discretion open to His Honour.”

27. It was sensibly and realistically conceded by learned Counsel for the husband that the thrust of this challenge concerned the weight appropriate to be given to a limited number of facts or circumstances.  There was no challenge to the findings of fact relied upon by the trial Judge in determining the contribution entitlement of the parties. The submission on behalf of the husband was that neither the combination of factors relied upon by the trial Judge, nor either of the two factors upon which he particularly relied, could support an adjustment of 5 per cent in favour of the wife.  The effect of the 5 per cent adjustment in the wife’s favour was to increase her entitlement by approximately $50,000.00 and to reduce that of the husband by a corresponding amount, a disparity of approximately $100,000.00 in the wife’s favour thus resulting.  An adjustment of such magnitude was asserted to fall outside the generous ambit of the trial Judge’s discretion.
28. The challenge raised by this ground falls within a narrow compass.  His Honour said with respect to contributions that but for “the wife’s significant contribution”, “since separation I would have found that the parties [sic] contributions as being equal [sic]”.  It was submitted on behalf of the husband that there was no evidence of financial benefit to the parties by reason of the wife’s contributions towards the subdivisions undertaken by them during their cohabitation. It was conceded that there had been benefits which had not been financially quantified.  It was fairly conceded that the wife had attended to subdivision applications to the Council and the work relating to such subdivisions.  There was no challenge to any of the trial Judge’s findings in that regard.
29. On behalf of the husband it was submitted that the trial Judge had, in evaluating the contributions to the parties, failed to have regard to the “substantial labouring work” which the husband had performed on the former matrimonial home, although his Honour had referred to such work earlier in his judgment. Such work was asserted to have offset the wife’s contribution to the subdivisions.  It was thus submitted that no part of the 5 per cent adjustment to contribution entitlements could properly be based upon the wife’s contribution to the subdivisions undertaken by the parties during the period of cohabitation.
30. On behalf of the wife it was submitted that the evidence before the trial Judge entitled him to recognise the wife’s contributions as greater than the husband by virtue of her efforts in relation to the subdivisions notwithstanding the husband’s building contributions.  Learned Counsel for the wife relied upon evidence of the wife in her affidavit of evidence in chief sworn on 18 September 2003 and to various paragraphs in such affidavit.  The wife’s contributions in this regard were to be found in the following paragraphs of her affidavit:

“29. In early to mid 1987, I inspected a property at [34 O Street] … which was a home on a large block of land that I believed could be subdivided. During this period we were living in rented accommodation.

30. The Husband and I agreed to purchase the house at [34 O Street], and I made all the arrangements. I liaised with the Real Estate Agent, arranged meetings with our solicitor and organised the deposit. We purchased it in early to mid 1987 for $65,000.00 cash, which meant we had no mortgage on the property.

…

32. I worked on the lengthy submissions to [the] City Council for subdivision of the block on which the matrimonial home was situated. The Husband did not assist me in these submissions.

…

38. In mid 1988 our subdivision application was approved, and we subdivided the land upon which the matrimonial home was situated at [34 O Street] … and then commenced building our new home on the subdivided land at [34a O Street].

…

40. As I was on maternity leave, I supervised the construction next door  and made all the arrangements with the builder including materials and colours. The Respondent Husband did not assist me in these arrangements.

…

50. I arranged for the second [T] property to be rented out from June 1991 to September 1992, but I cannot recall the rental income.

…

53. In or around mid 1993, I inspected a house at [29 T Esplanade] …, which had subdivision potential. I discussed the potential of the property with the Husband and we purchased it for $135,000.00 in August 1993, using the remainder of the proceeds of sale from the [W Street] property. This property was rented out.

54. I worked on the subdivision submissions and applications for the [29 T Esplanade] property. After lengthy submissions the property subdivision was approved and I arranged for a new home to be built on the subdivided land.

55. In or about late 1993 or early 1994, I also completed the lengthy and complicated submissions and paperwork in applying for dual occupancy of our matrimonial home at [72 M Road]. This dual occupancy took two years to obtain.

…

58. In our [sic] about 1996 I noticed a further property for sale [at 54 E Street] that I was interested in. We inspected the house, and in 1996 the Husband and I purchased that property at [54 E Street] for $155,000.00. We obtained the funds from the purchase of the property mainly by way of a loan from IMB. We discussed redeveloping this property into our dream home. In the meantime, it was rented out, but I cannot recall the rental income.

…

60. In or around 1997, at my suggestion the Husband and I inspected a block of four units at [70 P Road] … for sale as a block. The Husband and I agreed to purchase the block as an investment, and paid $265,000.00. I made the purchase arrangements and organised the mortgage. We borrowed the entire purchase price along with ??? [sic] legal costs. The rental income from the property was used to pay the mortgage and the Husband and I jointly contributed to the shortfall of payment.

61. During 1998, the Husband and I had organised extensive construction and renovation of the [54 E Street] home.

62. In early 1998, the Husband and I became aware that the construction costs of our [54 E Street] … house had increased from $100,000.00 to $200,000.00. I approached my parents and requested they lend us some money to help with the construction. The loan was to be for a short period, until our properties at [29 and 29a T Esplanade] were sold. In July 1998, the properties at [29 T Esplanade] … [sold] for $115,500.00, and [29a T Esplanade] … [sold] for $157,000.00. The sale proceeds were utilised by us to complete our home at [54 E Street] and pay back my parents. My parents leant us about $100,000.00 interest free for about 6 months.”

31. The Court has not been referred to any cross examination of the wife in relation to any of these allegations, or with respect to the “financial benefits that subsequently flowed” from them. 
32. In our view, having clearly taken into account the husband’s “substantial labouring work” with respect to the matrimonial home, it was open to the trial Judge to regard the wife’s contributions to subdivisions as elevating her contributions above the 50 per cent which would otherwise have been appropriate.
33. The second component of the 5 per cent contribution adjustment in the wife’s favour related to the post separation period. In this respect his Honour said:

“Were it not for the wife’s significant contribution … since separation I would have found that the parties [sic] contributions as being equal [sic].

However, all of those contributions of the wife that I have singled out attract significant weight.  The period of the past two years have been [sic] arduous for the wife in that she has been virtually the sole home-maker and parent for the three children of the marriage and the sole source of their financial support.” (Judgment, paragraphs 78 & 79)

34. Two particular matters were raised in support of this complaint. It was submitted that the trial Judge had “failed to have regard” to the wife’s continued use and occupation of the former matrimonial home post separation, and to the husband’s “concession that, whilst in arrears of child support in an amount of approximately $3,000, such arrears would be met upon settlement pursuant to the property orders”.
35. So far as the former complaint is concerned, there was no challenge to any finding of fact of the trial Judge in relation to the post separation period.  The evidence established that, save for a one off payment of $2,500.00 by each party towards a mortgage secured over the former matrimonial home, neither party made mortgage payments in the post separation period. 
36. There is no challenge to the trial Judge’s finding that the wife had, in the post separation period, been “virtually the sole home-maker and parent for the three children of the marriage” and “the sole source of their financial support”.  It was conceded on behalf of the husband that, when it had been paid, a “very minor amount” had been paid by the husband by way of child support.  When child support was paid, the sum provided was in fact $21.00 per month.  It is apparent that very little child support could ever have been paid for arrears of approximately $3,000.00 to have accrued given the quantum of the assessment.  In the post separation period, the husband was living with his mother and paying $50.00 per week by way of board.  He was being assisted by other family members as the trial Judge recorded. 

34. It has not been demonstrated that the trial Judge erred in increasing the wife’s contribution entitlement by reference to the post separation period.  In our view, the evidence before the trial Judge with respect to that period entitled him to adjust the wife’s contribution entitlement. Nothing to which we have been referred demonstrates that the adjustment determined by his Honour fell beyond the ambit of a reasonable exercise of discretion.
35. It remains only to consider the assertion on behalf of the husband that, though based upon facts and circumstances which could be relied upon for that purpose, the quantum of the adjustment of contributions in the wife’s favour fell outside the ambit of a reasonable exercise of discretion.  In our view, it has not been demonstrated that the trial Judge’s discretion miscarried in this fashion.

39.Our conclusions with respect to the particular challenges to the trial Judge’s conclusions with respect to contributions render such an outcome with respect to this challenge almost inevitable. In summary, having concluded, as we have, that it was reasonably open to the trial Judge to “adjust” the wife’s contribution entitlement by reference to particular contributions upon which he relied in part, and by reference to the particular post separation factors upon which he relied, the only basis upon which this challenge could succeed is that the magnitude of the adjustment was manifestly excessive and, as such, erroneous.

40.In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-505:

“…although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”   

41. In Norbis v Norbis (1986) 161 CLR 513 Brennan J said at 539 – 540:

“The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made in not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite (1948) 1 All ER 343 t p.345 Asquith LJ. stated the rationale of an appellate court’s approach:

‘…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order.  We are here concerned with a judicial discretion, and it is of the essence of such discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’

The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.”

42. It has not been demonstrated that the trial Judge’s conclusion with respect to contributions fell outside the “generous ambit” of a reasonable exercise of discretion. Nor has a “substantial wrong” been established. We are thus not persuaded that ground 1 has substance.

GROUND 2

43. Ground 2 (as amended) provided:

“That His Honour erred in finding an adjustment of 10% to the Wife on account of section 75(2) in that:

2.1 His Honour denied the Husband procedural fairness in failing to bring to the Husband’s attention the possibility of an adjustment outside the range sought by each of the parties;

2.2  His Honour failed to properly recognise and give weight to the Wife’s earning capacity;

2.3  His Honour failed to give appropriate or any weight to the discrepancy in the parties’ financial circumstances as a result of the proceedings and generally;

2.4  His Honour failed to give sufficient reasons for concluding as he did in relation to the adjustment to be made; and,

2.5  such finding was outside the reasonable range of discretion open to His Honour.

[additional grounds]

2.6  That His Honour erred in finding that the youngest child has significant emotional problems requiring the support of the Respondent where there was no evidence to support the same; and,

2.7  That His Honour erred in finding that the Appellant had conceded that the incurring of private school fees was an expenses [sic] appropriate to be met by the Respondent.”

44. In support of this challenge, it was conceded that the s 75(2) adjustment determined by the trial Judge was based upon facts and circumstances upon which his Honour was entitled to rely, that no extraneous or irrelevant matters had been relied upon and that no relevant matters had been ignored.  The case for the husband was thus that an adjustment of 10 per cent, a figure of approximately $100,000.00, fell outside the ambit of a reasonable exercise of discretion.  It was conceded that a s 75(2) adjustment in the wife’s favour was reasonably open to the trial Judge, for the reasons relied upon by him, but that such adjustment could not properly be of the magnitude his Honour determined had appropriate weight been given to s 75(2) factors favouring the husband. It was conceded by learned Counsel for the husband that an adjustment of 5 per cent would have been a reasonable exercise of discretion.   
45. Having made findings of fact with respect to relevant s 75(2) factors, which have largely been unchallenged, the trial Judge provided reasons for adjusting the contribution entitlement by 10 per cent in the wife’s favour.  Whilst his Honour had “taken into account the husband’s lack of income and capacity to earn income as well as his unsound health”, it was submitted that there could not have been a 10 per cent adjustment in the wife’s favour had those factors been given the weight to which they were entitled.  There is no challenge to the trial Judge’s reliance upon the wife having “the current and future care of the two youngest children who are now aged 14 and 13 respectively” although it was submitted on behalf of the husband that there was no evidence that the youngest child had “significant emotional problems requiring the wife’s support whenever possible”. 
46. Learned Counsel for the wife directed the Court to the evidence of the wife in her affidavit of evidence in chief (filed 11 March 2004) wherein the wife deposed:

“[the child] was experiencing some difficulties at school and I want to be more involved to help with any problems he has.” (Paragraph 9)

And to the wife’s oral evidence at trial:

“[the child] is at an age where he has gone through a lot of emotional stress over the last two years and I think me being there this last six months has really helped him.” (Transcript 10/06/04 at p 35, line 22)

And:

“… my son’s at a vulnerable age and I’m not going to be putting myself in that position [working full time].

…

As I said [the child]’s not very stable and if he goes off the track that’s [15] going to be even a worse age than he is at the moment.”  (Transcript 10/06/04 at p 39, lines 27 and 47)

47. In final submissions before the trial Judge the following exchange occurred between the trial Judge and Counsel then appearing for the husband:

“[COUNSEL FOR THE HUSBAND] The reason she says that she doesn’t wish to engage in full time employment now is because of some difficulties with the children’s behaviour. In my respectful submission, your Honour, there is no evidence as to difficulties in the children’s behaviour, but in my respectful submission, your Honour, there is no evidence as to difficulties in the children’s behaviour [sic].

HIS HONOUR: Well there is.

[COUNSEL FOR THE HUSBAND]: I am sorry, your Honour?

HIS HONOUR: Her evidence is the evidence, is it not?

[COUNSEL FOR THE HUSBAND]: Her evidence?

HIS HONOUR: Yes. That is the evidence.

[COUNSEL FOR THE HUSBAND]: Her evidence is the evidence.”

(Transcript 10/06/04 at p 73, line 8)

48. His Honour clearly accepted the wife’s evidence, as was sensibly conceded to be open to him. It has not been demonstrated that his Honour erred in relying upon such evidence to conclude that the youngest child has “significant emotional problems requiring the wife’s support whenever possible”.
49. The trial Judge relied upon the wife’s part time employment and obligation “for several years” to “have to meet all of the commitments of the children including private school fees which the husband conceded was appropriate” and provide “adequate accommodation not merely for herself but for at least the two youngest children”.  His Honour was also entitled to rely on the fact that:

“… the husband is living with his mother in her home and paying a small amount of board.  His living requirements are attended to by the husband’s mother and his sister.  There is no evidence to suggest that those arrangements will not continue for the foreseeable future.”

50. Learned Counsel for the husband stressed that the impact of the s 75(2) adjustment determined by the trial Judge, an adjustment in the wife’s favour of almost $100,000.00, represented a disparity of approximately $200,000.00 in her favour.  It was submitted that such an adjustment failed to take adequate account of the husband’s lack of income, capacity to earn income and state of health. 
51. It was further submitted that:

“Whilst referring to the net assets as determined by the Court [AB 21-22] it is not apparent that the Court has had any real regard to the disparity in the financial position of the parties as a result of the findings as to contributions and section 75(2).” (Appellant’s Summary of Argument, paragraph 24)

52. On the trial Judge’s findings of fact, the comparative earning capacities of the parties were $400.00 per week in the case of the wife and nil in the case of the husband. 
53. As earlier recorded, the disparity of capital as between the parties by virtue of the contribution finding of the trial Judge was $100,000.00.  Significantly, as was submitted by learned Counsel for the husband, $48,411.00 of the husband’s entitlement was represented by superannuation which is not currently able to be accessed compared with superannuation worth $27,000.00 of the wife’s entitlement.  Over the next five years the wife could, on the trial Judge’s findings, expect to earn approximately $100,000.00 more than the husband.
54. With great respect to the learned trial Judge, we are unable to accept that an adjustment of 10 per cent in the wife’s favour was reasonably open given the factors to which we have referred. We cannot accept that an adjustment of $100,000.00 in the wife’s favour could, in the circumstances of this case, properly accommodate the s 75(2) factors favouring the husband.
55. We are accordingly persuaded that this ground has merit.

GROUND 3

56. Ground 3 provided:

“That the overall result imposed by His Honour was manifestly unjust and outside the reasonable range of discretion.”

57. Given our conclusion with respect to Ground 2, it unnecessary to consider this challenge.

CONCLUSION

58. Ground 2 having been made out, the appeal should be allowed.  We were invited by both Counsel to re-exercise the trial Judge’s discretion.  Neither party wished to adduce further evidence.

RE-EXERCISE OF THE TRIAL JUDGE’S DISCRETION

59. For the reasons earlier advanced, the contribution finding of the trial Judge of 55 per cent ought not in our view be disturbed.  It remains however to determine the s 75(2) adjustment appropriate to be made.
60. As has been acknowledged throughout the appeal, the learned trial Judge correctly identified all relevant s 75(2) factors.  This Court has the benefit of extensive findings of fact, none of which has been successfully challenged in this appeal.  It is clear, and acknowledged on behalf of the husband, that a s 75(2) adjustment in the wife’s favour is appropriate.  In our view, giving proper weight to the husband’s lack of earning capacity and state of health, the wife’s current superior earning ability, and qualifications for employment in the future, combined with the greater entitlement to property by virtue of the parties’ contribution entitlements, a s 75(2) adjustment in the wife’s favour of 5 per cent is appropriate. This represents an adjustment in her favour of approximately $50,000.00 or a disparity of $100,000.00.  Arrears of child support remain payable to her.
61. The effect of our conclusion with respect to s 75(2) is to produce an overall entitlement on the part of the wife of 60 per cent or 40 per cent on the part of the husband. A disparity in their entitlements of approximately $200,000.00.  In our view, such a disparity properly reflects the matters to which the trial Judge referred and which we have considered.

COSTS

62. Counsel for the husband sought an order for costs in the event of the appeal succeeding. Such order was opposed by Counsel for the wife. Largely for the reasons which have led us to allow the husband’s appeal, we do not consider that an order for costs should be made against the wife. Beyond recording that we have been advised of the costs sought by the wife, it is unnecessary to refer further to such costs.
63. Each party urged upon this Court the granting of cost certificates under the Federal Proceedings (Costs) Act 1981 in the event of the appeal succeeding and there being no order for costs made as between the parties. We are satisfied that such a course is appropriate. The appeal was allowed by reason of an error of principle or question of law thus enlivening the appropriate sections of the Act.

ORDERS

1.   That the appeal be allowed.

2.   That Order 2 of the Orders of Justice Rose made on 16 June 2004 be varied to replace “65%” with “60%”.

3.   That Order 4 of the Orders of Justice Rose made on 16 June 2004 be varied to replace the sum of “$30,243.00” with the sum of “$79,455.40”.

4. That the Court grants to the Appellant Husband a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.

5. That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.

I certify that the preceding
63 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.Coleman
Associate
Date: 13/03/05