Kite and Kite

[2011] FamCAFC 13

FAMILY COURT OF AUSTRALIA

KITE & KITE [2011] FamCAFC 13

FAMILY LAW – APPEAL - PROPERTY SETTLEMENT – APPELLANT BY CASE GUARDIAN – Not established that her Honour erred in finding the former matrimonial home was subject to a mortgage when it was agreed that the parties’ only mortgage was secured over an investment property, resulting in two unencumbered properties and thereby leaving the wife with an unintended benefit under the orders – Not established that her Honour erred in finding there should be no adjustment in favour of either party in relation to s 75(2) factors –Not established that her Honour erred in her findings as to “weight” attributed to particular factors relating to s 75(2) and evidence concerning the husband’s poor state of health – Not established that her Honour erred in failing to write back a significant sum of money retained by the wife following separation of parties – Not established that her Honour erred in fact and law in finding that the net property of the parties including superannuation should be divided equally between parties – Appeal dismissed – Wife application to adduce further evidence dismissed.

Family Law Act 1975 (Cth) s 93A, s 75(2) s 79(2)
Family Law Rules 2004

Abalos v Australian Postal Commission (1990) 171 CLR 167
CDJ v VAJ (1998) 197 CLR 172
De Winter v De Winter (1979) FLC ¶90-605
Farmer v Bramley (2000) FLC ¶93-060
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Mims & Green and Green (2008) FLC ¶93-359
Norbis v Norbis (1986) 161 CLR 513
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588

APPELLANT: Mr Kite by his case guardian Mr R Kite

RESPONDENT: Mrs Kite

FILE NUMBER: PAF 1073 of 2006

APPEAL NUMBER: EA 98 of 2009

DATE DELIVERED: 4 February 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Faulks DCJ, Coleman & Strickland JJ

HEARING DATE: 11 November 2010

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 31 July 2009

LOWER COURT MNC: [2009] FamCA 896

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Judge

SOLICITOR FOR THE APPELLANT: Kent Attorneys

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

(1)That the husband’s appeal be dismissed.

(2)That the wife’s application for leave to adduce further evidence be dismissed.

(3)That any party to the appeal seeking an order for costs of and incidental to the appeal file and serve written submissions in support of such claim within 28 days and thereafter within a further period of 14 days any party against whom a costs order is sought file and serve submissions in opposition to any such order.

IT IS NOTED that publication of this judgment under the pseudonym Kite & Kite is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 98 of 2009
File Number: PAF 1073 of 2006

Mr Kite

Appellant

And

Mrs Kite

Respondent

REASONS FOR JUDGMENT

Introduction

1. By further amended notice of appeal filed 6 September 2010 Mr R Kite (“the case guardian”), the case guardian for his brother, Mr Kite (“the husband”) appealed against orders made by Stevenson J on 31 July 2009 in proceedings for settlement of property between the husband and his former wife Mrs Kite (“the wife”).

2. Notwithstanding that, technically, the case guardian is the appellant, our reasons will be more readily followed if we refer instead to the husband as the appellant.

3. The trial judge’s orders provided that the parties share equally their non- superannuation assets and superannuation interests. In lieu of the trial judge’s orders, the husband sought that “the matrimonial assets be divided in such a way that the husband be granted an equivalent of 75 per cent of the net value thereof; based upon the balance sheet as adopted by the trial judge and amended as a result of the appeal”. The wife resisted the husband’s appeal and sought to maintain the trial judge’s orders.

4. On 7 October 2010 the wife applied for leave to adduce further evidence in the appeal pursuant to s 93A of the Family Law Act 1975 (Cth) (“the Act”). The further evidence sought to be adduced by the wife was contained in an affidavit sworn by her on 1 October 2010.

5. On 1 November 2010 the husband filed a response to the wife’s application for leave to adduce further evidence in the appeal seeking the dismissal of such application or, if the application be granted, that the husband also have leave to adduce further evidence in the appeal. The further evidence was contained in the affidavit of the case guardian sworn 1 November 2010.

Background

1. On 17 June 2010, the Full Court (Bryant CJ, Thackray and Cronin JJ) dismissed an application by the wife for summary dismissal of the husband’s appeal against Stevenson J’s orders of 31 July 2009. In the course of so doing, Bryant CJ and Cronin J provided a concise summary of the reasons for judgment of the trial judge with which Thackray J agreed.

2. Rather than necessitate reference to the Full Court’s earlier judgment, and as we cannot more succinctly summarise the reasons for judgment of Stevenson J of 31 July 2009 than did their Honours, we reproduce hereunder the relevant passages from the judgment of Bryant CJ and Cronin J:

   2.        The proceedings concern property proceedings between the wife and         husband which were filed on 31 August 2006. On 21 July 2008 the trial         commenced but due to the husband’s ill health and consequent difficulty         giving evidence, it was adjourned and the husband’s brother, who is a      solicitor, was appointed as case guardian. The hearing resumed and           continued with written submissions over five separate days concluding      on       30 March 2009.

   3.        The husband has been diagnosed with Multiple Sclerosis and his condition          has deteriorated to the extent that, albeit his 53 years of age, he requires          full-time nursing care and is residing in a high care nursing home which        provides extra services. The need for that standard of care is not likely to     change.

   4.        The parties were married for 25 years at the time of separation in 2006,      with three children aged 16, 18 and 22 at the date of the hearing, all of   whom are living with the wife.

   5.        There were a number of issues between the parties at trial but the major                issues fell into three categories:

   a.        The husband’s argument that the sum of $376,656 removed by the             wife from the joint bank account should be added back to the asset                  pool and be treated as an asset of the wife. [Footnote omitted].

   b.        The assessment of the contributions in which the husband   contended that there should be a contribution finding in his   favour of 55% compared to 45% to the wife regarding:

   ·    in particular, the receipt by the husband of $1.2 million as total and permanent disability benefits following an action against his former employer with the wife asserting that the funds received should properly be viewed as contributions on and behalf of each of the parties because it was effectively income of the husband; and

   ·    the wife’s assertion of a significant contribution once the husband’s illness was diagnosed and his health deteriorated.

   c.The husband’s contention that he should receive a further adjustment of 10% because of his future needs, in particular his total permanent disability and reliance on his superannuation and whatever else he received by way of property to support him into the future. The wife contended that she would remain financially responsible for the children and, although child support was then being received for the youngest child, the Court could find it was improbable the husband would voluntarily provide any financial support for the continuing education of the children following their attaining 18 years of age.

   6.        At the commencement of the trial the husband’s position was that he          should receive 65% of the assets compared to the wife’s 35%. The wife        contended that she should receive 60% compared to the husband’s 40%.     The wife’s claim for a greater share was based upon her contributions to       the husband’s care and to the parenting of the children and the maintenance           of the parties’ property and finances.

   7.        In the judgment the trial Judge noted all of the areas of dispute between the                    parties, including the major ones which we have set out. With regard to the   add-back of the $376,656 sought by the husband, her Honour analysed the                monies withdrawn by the wife, the manner of their expenditure and added                   back $45,400 being expenditure which the wife failed to properly identify            as necessary for the day-to-day living expenses, paid legal fees of $152,042                 and payments of $75,000 to the parties’ children.

   8.        Having dealt with all of the issues regarding the asset pool, her Honour      then turned to the contributions of the parties and noted that the two main    issues relating the contribution seemed to be:

   ·    whether Mr [Kite’s] $1.2 million settlement should be regarded as a contribution solely attributable to him; and

   ·    what weight should be given to the wife’s care of the husband as his illness progressed, in the context of her contribution as homemaker and parent and generally.

   9.        In summary, her Honour found that the wife’s efforts and commitment   were very significant in the functioning of the family unit as the husband’s   condition deteriorated and that it was clear she carried out her homemaker,                parent and carer role “in arduous circumstances”.

   10.      She was also satisfied that the husband made a substantial effort to sustain           his employment for as long as possible, despite his illness. Her Honour      said:

   It seems to me that Mr and Mrs [Kite] bravely faced together his health problems and the consequences for their family.  It is my view that each did all that they could to make the best of their very difficult situation. 

   11.      Her Honour noted in addition that since the separation, the wife had been   solely responsible for the care of the children and maintenance of the   parties’ real estate assets, and that she had made all of the post-separation           homemaker and parent contributions.

   12.      Her Honour did not accept the submission that the $1.2 million settlement received by the husband from his former employer should be treated as his         sole contribution despite the fact that the money was largely characterised         as a total and permanent disability benefit. The trial Judge noted that not only had the wife assisted the husband in obtaining the settlement, but the         quantum of the settlement was clearly linked to his final salary and that the           nature of its characterisation was done for the best financial advantage for           the family. At the conclusion of the trial her Honour found that the parties had contributed equally to the acquisition, conservation and improvement of the property which she had found to comprise the asset pool.

   13. Her Honour then turned to the question of the matters under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) in respect of which both parties claimed an adjustment in their favour. Her Honour considered the relevant matters in s 75(2) and in particular matters concerning the husband’s future support given his total and permanent incapacity. Expert evidence from a Chartered Accountant regarding the husband’s needs was referred to by her Honour. She also took account of the wife’s age and the fact that she had no specialised employment or qualifications. Her Honour concluded, in regard to those matters, that the factors that favoured the wife were her responsibility to care for the child under the age of 18 for a further two years, her limited capacity for gainful employment and her modest superannuation benefits. In comparison, her Honour noted that the husband was in a position of physical dependency and relied solely on his superannuation fund for financial support. Her Honour further accepted that he was entitled to the best quality of life as provided by the current facility he is living in. When her Honour balanced these considerations against each other she concluded that there should be no adjustment in favour of either party on account of s 75(2) factors and thus her Honour found that the assets should be divided equally between the parties.

   14.      The orders themselves provided for a transfer to the wife of the husband’s           interest in the former matrimonial home in [N] in New South Wales. The     husband was to receive the bank accounts and the AMP Whole of Life Plan      policy. The wife was to indemnify the husband against all liabilities arising           pursuant to the mortgage registered over the [N] property.

   15.      A property in [BH] was to be sold with an adjusting figure to the husband   which would mean that the assets were divided equally between the parties.    The husband was to retain his superannuation.

3. It is convenient, and hopefully logical, to first consider the husband’s challenges to the trial judge’s decision. Unless any of those challenges enliven appellate intervention, it would be unnecessary to consider the further evidence application of the wife and the husband’s response to it. That is essentially because, as counsel for the wife confirmed, the further evidence was sought to be adduced on her behalf to “buttress” the trial judge’s decision (see CDJ v VAJ (1998) 197 CLR 172).

4. The further amended notice of appeal of the husband articulated a number of challenges to the trial judge’s decision. In support of those challenges counsel for the husband provided a comprehensive written summary of argument. Counsel for the wife provided a similarly comprehensive written summary of argument in opposition to the various challenges raised by the husband.

Ground 1

1. The first ground of appeal asserted:

   1.        Her Honour erred in fact and law in:

   a.        finding that the former matrimonial home (“the [N] property”) was            subject to a mortgage in the sum of $142,480.00 (at paragraphs 157                  and 160 of the judgment) when it was an agreed fact, acknowledged                   by Her [sic] Honour earlier in her judgment (at paragraph 107), that   the parties’ only mortgage in the sum of $142,480.00 was secured                    over a jointly owned investment property (“the [BH] property”),

   b.        carrying the aforementioned errors through to the final orders in   wrongly structuring orders 1, 2 and 3 on the basis that the [BH]   property was unencumbered and the [N] property   was encumbered, when the agreed facts were to the contrary and

   c.        thereby leaving the wife with an unintended benefit under the   orders.

2. The basis upon which this challenge was articulated is not in doubt, or controversial.

3. In her reasons for judgment, the trial judge referred to there having been a mortgage in the sum of $142,480.00 secured against the parties’ jointly owned investment BH property. Later in her judgment, the trial judge referred to that mortgage being secured on the parties’ jointly owned N property. That property was, pursuant to her Honour’s orders, to be retained by the wife on the basis that the wife would be liable for the $142,480.00 mortgage.

4. It was common ground at trial that the BH property was to be sold. Such sale would generate selling expenses and an unquantified, and at that time unquantifiable, contingent liability for Capital Gains Tax. The trial judge’s orders provided only for the deduction of real estate agent’s commission and expenses, legal costs and expenses of the sale and, as and when it materialised, the payment of any Capital Gains Tax arising from the sale. The net proceeds of sale thus resulting were to be distributed between the parties as to 53 per cent to the husband and 47 per cent to the wife.

5. It is not in doubt that the foregoing division of the proceeds of sale of BH property would, on the agreed valuation of the property at the time of her Honour’s judgment of $350,000.00, generate funds which, when divided in the percentages proposed by her Honour, resulted in the parties sharing equally their non-superannuation assets and superannuation interests.

6. As it is not in doubt, the $142,480.00 mortgage having in fact been secured over the BH property, which has subsequently been sold, the net proceeds of its sale, if apportioned as the trial judge’s orders literally provide, would have the unintended consequence of both parties receiving significantly less of the proceeds of sale of the property than her Honour’s reasons for judgment envisaged. That is because the $142,480.00 mortgage was discharged from the proceeds of sale, thus reducing the net proceeds of sale by that amount. The wife would potentially retain the N property free of the $142,480.00 mortgage which her Honour’s reasons for judgment contemplated that the property should be subject to.

7. We have little doubt that, either by the application of a modicum of commonsense by the parties and their legal representatives, or referral to the trial judge pursuant to the Family Law Rules 2004 – Rule 17.02 (“the Slip Rule”), the apparent difficulty which gives rise to this challenge could be resolved.

8. Given that the selling expenses and legal fees associated with the sale of BH property are known, determining the husband’s 53 per cent entitlement to such net proceeds of sale (exclusive of the mortgage secured over the property), and the wife’s 47 per cent entitlement, would be a matter of simple arithmetic. To the extent that the actual net proceeds of sale of the BH property were sufficient to enable the husband to receive the share of the proceeds of sale intended by the trial judge, they could be paid to him. Any surplus would be received by the wife. To the extent that the actual net proceeds of sale were insufficient to enable the husband to receive his full entitlement, as intended by the trial judge, the wife would have to pay the shortfall to him, either by liquidating assets, or borrowing against the N property for that purpose.

9. Counsel for the husband submitted that, under the trial judge’s orders, the wife would receive “an outcome significantly more favourable” to her than the trial judge intended which “cannot be amended by the application of the Slip Rule”. That is literally correct.

10. In support of her contention that the problem could only be cured by appellate intervention, counsel for the husband provided this Court with two schedules, one headed “appellant’s short summary of inapplicability of slip rule” the other “proceeds of assumed sale after mortgage and CGT [sic] and expenses”.  

11. Whilst, in a literal sense, the calculations appearing in the former document may have been correct, the document overlooks the reality that the difficulty arising from the error of the trial judge’s order with respect to the BH property proceeds of sale as a result of the wording of order 3 can be readily and permissibly rectified by application of the Slip Rule. So far as the latter document is concerned, the repeated notation “no evidence at trial”, and similar absence of evidence before us in relation to those matters, deprives the document of any force in these proceedings.

12. We are not persuaded that this ground should enliven appellate intervention. It is manifestly obvious that the trial judge’s order does not reflect the intention she clearly articulated in the passages of her reasons for judgment to which we have referred. Save to the extent that other challenges to the trial judge’s exercise of discretion may find favour with this Court, no aspect of her Honour amending her order to reflect her published intentions involves any factual controversy. Nor in our view is there any scope for uncertainty as to how her Honour’s order should be read.

1. Although not conceding that her Honour’s order could permissibly be amended pursuant to the Slip Rule in order to reflect her reasons for judgment, the submissions of counsel for the wife, and particularly the submission that the trial judge’s reasons for judgment “proceed on the basis that, the Respondent [wife] is to assume liability for the mortgage” of $142,480.00 would in our view preclude the wife from successfully contending that the trial judge could not, or ought not, amend order 3 so that it reflected her Honour’s intention.

2. We are thus not persuaded that this challenge has merit.

Ground 2

1. Ground 2 of the further amended notice of appeal provided:

   2. Her Honour erred in fact and law in finding on the evidence that there should be no adjustment in favour of either party on account of Section 75(2) factors (at paragraph 146 of the judgment) and in failing to make a significant adjustment in favour of the husband on account of Section 75(2) factors; in particular in so far as she failed to:

   a. properly weigh up the evidence of the particular factors relating to Section 75(2) as between the parties,

   b.        consider or in the alternative give any or sufficient weight to the   evidence of the stability of the wife’s employment and flexibility of   hours,

   c.        give sufficient weight to the evidence concerning the husband’s   significant disability and extremely poor state of health and the   wife’s corresponding good health,

   d.give sufficient weight to the evidence of the husband’s need for substantially more financial resources to meet his increasing health related and care costs,

   e.give sufficient weight to the evidence of the husband’s urgent need to access a lump sum amount of at least $250,000.00 immediately to pay a bond to the nursing home,

   f.give any or sufficient consideration to the reasonable sums required by the husband for his day to day life over and above his basic care costs,

   g.consider the matters in Section 75(g) [sic] particularly having regard to the husband’s living circumstances,

   h.properly consider and give sufficient weight to the vital importance to the husband of his superannuation fund as his only real source of financial support and its decrease in value between July 2008 and March 2009,

   I.consider or give sufficient weight to the fact that the husband has no financial “cushion” against possible eventualities such as loss of nursing home accommodation and his bond,

   j.give sufficient weight to the evidence of the husband’s total lack of capacity to earn as opposed to the wife’s flexible capacity to earn,

   k.correctly acknowledge the extent of the wife’s continuing parental responsibility for the child [C] (said to be for a further 24 months) (at paragraph 144) when in fact the finding should have been 13 months, the child being at the date of judgment one month short of 17 years and in giving this factor excessive weight, and

   l.consider at all the context of section 75(2) or in the alternative give any or sufficient weight in the context of Section 75(2), to the matters specifically referred to in paragraph 162 of the judgment in referring to the just and equitable requirement.

2. Although clearly expressed as “weight” challenges, during the course of her submissions, counsel for the husband sought in various ways to expand the challenges articulated in this ground to encompass adequacy of reasons complaints and contributions challenges. We will consider those complaints notwithstanding. Before dealing with each of the various “weight” challenges advanced on behalf of the husband, it is convenient to deal with the challenge to the adequacy of her Honour’s reasons with respect to s 75(2).

3. It was submitted in that regard:

   9.        It is not possible to ascertain from Her Honour’s reasoning how she           reached the finding in paragraph 146 at AB 38. With respect, it is difficult          to see how Her Honour could equate the circumstances of an extremely          disabled and ill man with no ongoing capacity to earn an income and with     only a depleting and fixed fund to support him, to the circumstances of a         healthy, able bodied woman who is not exercising her full capacity to earn           and has the opportunity to accumulate further superannuation entitlements and assets.  

4. As is apparent from reading counsel for the husband’s submission, beyond asserting that it was not “possible” to ascertain the reasoning process which led her Honour to her conclusion, nothing more has really been advanced. Moreover, the reference in the balance of this submission to the particular matters referred to in her Honour’s reasons is inconsistent with any asserted inability to discern the trial judge’s reasoning process. In reality, though not so expressed, the challenge is to her Honour’s conclusion, and is a submission that, having regard to the matters there referred to, the trial judge could not reasonably conclude as she did with respect to s 75(2).

5. Having discussed a number of s 75(2) factors, in circumstances where it has not been submitted that her Honour either failed to have regard to any relevant s 75(2) factor, or had regard to irrelevant s 75(2) factors, or proceeded in reliance upon material errors of fact, under the heading “Conclusion As To Section 75(2) Factors”, the trial judge recorded:

   144.    Principally, the factors which favour Mrs [Kite] are her responsibility to     care for [C] for the next two years and her limited capacity for gainful          employment. Of course, she could increase her work hours and earn a         larger income if she wished to do so.  She has a modest superannuation        benefit, to which she can contribute greater sums if she so wishes.

   145.Mr [Kite] is in a position of physical dependency and relies solely on the superannuation fund for his financial support. It seems to me that he is entitled to the best quality of life which nursing home care can provide to him, which means that he should stay at [S nursing home]. I did not understand there to be any submission on behalf of Mrs [Kite] that he should accept the cheaper option of mainstream care. Mr [Kite] is also entitled to enhance his quality of life as much as possible by having access to funds in excess of the cost of his nursing home care. Again, I did not understand there to be any submission to the contrary on behalf of Mrs [Kite]. 

6. Her Honour ultimately concluded:

   146. When these considerations are balanced against each other, it seems to me that there should be no adjustment in favour of either party on account of section 75(2) factors.

7. It is in our view clearly apparent that, whether or not so doing fell outside the ambit of a reasonable exercise of discretion, the trial judge regarded the factors favouring the wife pursuant to s 75(2) (referred to in Reasons for Judgment, par 144) as being counterbalanced by those favouring the husband (referred to in Reasons for Judgment, par 145). We are thus not persuaded that the trial judge’s reasons for judgment with respect to s 75(2) were inadequate.

8. Before proceeding to consider the particular “weight” challenges agitated on behalf of the husband, it is perhaps appropriate to briefly refer to the authorities which are relevant to such challenges. We do so, at least in part, because a number of the written submissions of counsel for the husband, and a considerable number of her oral submissions to us, were more in the nature of submissions appropriate to be made at first instance, than submissions appropriate to be made to an intermediate appeal court. As the authorities clearly recognise, there is a significant difference.

9. There is a presumption that the decision of the trial judge is correct. The trial judge enjoyed advantages which we lack. In Mims & Green and Green (2008) FLC ¶93-359 their Honours there referred to the High Court’s decision in Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 178) where McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] AC 37 (at 47):

   Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.

10. McHugh J also said, at 178:

    Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v. Thomas [1947] A.C. 484, at p. 488.

11. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588, having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages”. In the course of his judgment (619, paragraph 90) his Honour said:

    The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. [Footnotes omitted].

12. The grounds upon which appellate interference with discretionary judgments may be enlivened were iterated by the High Court in House v The King (1936) 55 CLR 499. Their Honours recorded at 504:

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

13. In the circumstances of this case, it is the last of the bases there discussed by the High Court which potentially assumes significance.

14. In Norbis v Norbis (1986) 161 CLR 513, Brennan J said at 539:

    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 is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at 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 a 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”.

15. In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230:

    Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified. [Footnotes omitted].

16. As the authorities make clear, the fact that members of an appeal court may have reached a different conclusion had they been determining the proceedings at first instance does not render the trial judge’s decision erroneous. It is in the nature of the exercise of judicial discretion that different minds will reach different conclusions, without any of those conclusions necessarily being erroneous. The authorities leave no uncertainty that this is the law.

17. In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:

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

18. Against the background of the principles governing the “weight” challenges, we turn to consider the twelve particular matters agitated under the umbrella of ground 2.

Ground 2 a

1. Ground 2 a asserted that her Honour failed to:

   2 a. properly weigh up the evidence of the particular factors relating to Section 75(2) as between the parties.

2. Whilst we are not entirely clear as to what is meant by the expression “properly weigh up the evidence”, we do not understand the challenge to her Honour’s exercise of discretion to be that the “weighing up” process involved either failing to have regard to relevant factors or having regard to irrelevant factors. If we are wrong, and that is the intention of this complaint, we are not satisfied that it has been made out. We have not been referred to any relevant “evidence of the particular factors” to which the trial judge did not direct her attention.

Ground 2 b

1. Ground 2 b asserted that her Honour failed to:

   2 b.     consider or in the alternative give any or sufficient weight to the   evidence of the stability of the wife’s employment and flexibility of   hours.

2. There can be no doubt that the trial judge did “consider” the evidence in relation to the wife’s employment. Her Honour found:

   143.    The marriage was of 24 or 25 years duration, during which Mrs [Kite]        largely devoted herself to the homemaker and parent role. She has no specialised employment qualifications and is now 50 years old.             

3. We do not understand those findings of fact to be challenged, but to the extent that they may have been, nothing to which we have been referred persuades us that any of them was unsafe.

4. Her Honour further found that the wife “… could increase her work hours and earn a larger income if she wished to do so …” As counsel for the wife demonstrated in his submissions in reply, that finding was entirely consistent with the evidence before her Honour. In what other respect the trial judge could or should have “considered” the evidence before her with respect to the wife’s employment, its stability, and flexibility of hours has not been suggested.

5. In isolation, and as her Honour did not, and was not required to purport to quantify the significance which the wife’s employment had in the exercise of her discretion pursuant to s 75(2), it is not possible to usefully say more about the “weight” which her Honour gave, or should have given to that factor. As will be seen, the issue before us really is whether counterbalancing the factors favouring the wife pursuant to s 75(2) with those favouring the husband pursuant to s 75(2) resulted in a determination which fell beyond the ambit of a reasonable exercise of discretion. Only by looking at the totality of those factors can any conclusions in that regard be reached. On any view of the evidence however, the wife’s capacity for employment was modest.

Ground 2 c

1. Ground 2 c asserted that her Honour failed to:

   2 c.     give sufficient weight to the evidence concerning the husband’s   significant disability and extremely poor state of health and the   wife’s corresponding good health,

2. Again the challenges to the “weight” given to those factors, save with respect to the claim that the trial judge failed to appreciate the dramatic difference in the states of health of the parties, really fell within the broad s 75(2) complaint we have earlier identified. Her Honour recorded that the wife was “in good health” but that the husband suffered from “a serious, debilitating illness which means that he requires permanent, full time nursing care”. Her Honour accepted the expert medical opinion evidence of Dr M, in that regard.

3. As with a number of particular complaints articulated in ground 2, only by having regard to the totality of the competing s 75(2) factors can any conclusion be reached with respect to the appropriateness or otherwise of the weight given to this factor. What is not in doubt from her Honour’s reasons for judgment is that her Honour was acutely aware of the husband’s “extremely poor state of health” and its financial implications. It is not in doubt that this factor was, correctly, seen as favouring the husband within the context of s 75(2).

Ground 2 d

1. Ground 2 d asserted that her Honour failed to:

   2 d.     give sufficient weight to the evidence of the husband’s need for       substantially more financial resources to meet his increasing health related         and care costs.

2. Counsel for the husband relied upon the expert medical opinion evidence of    Dr M that:

   The husband is likely to become more dependent and require more assistance with regard to his personal care in the future, that there are other ongoing medical problems associated with his condition and the husband is likely to develop progressive cognitive impairment which “may have a number of implications including added difficulties with both medical and nursing management” – Amended [sic] AB at 536-07. Her Honour referred to this evidence in paragraph 131 at AB 35.

3. Dr M recorded that the expert medical evidence which he had seen raised “the risk that Mr Kite may be developing progressive abnormalities of upper limb function and therefore the need for additional care for tasks which he can now accomplish without assistance, such as feeding”.

4. It was conceded by counsel for the husband that neither in the evidence of      Dr M, nor in any other evidence before the trial judge, was there any quantification of the likely financial implications of the husband’s need for increased assistance. There was in fact no evidence before the trial judge as to the likely cost of any future increased “health related and care costs”. No evidence to which we have been referred establishes the nature or identity of any “increasing health related and care costs” which the husband was likely to incur.

5. In the absence of any evidence before her in that regard, or any submission of that kind, it is difficult to see how the trial judge can fairly be criticised for failing to have regard to such matters. On the assumption, which her Honour made, that the husband would pay an accommodation bond of $250,000.00 to the nursing home in which he was residing, the monthly expenses that the husband would have for the “extra services” which he currently receives as a resident of the nursing home would be $4238.00 per month. At the time of her Honour’s judgment, the husband was drawing $9000.00 per month from his superannuation. The husband was then paying $772.00 per month by way of child support for the youngest child of the marriage who was at that time almost 17 years of age. Thus, whilst there was no evidence of “increasing health related and care costs”, the evidence before the trial judge revealed that the husband’s pension payments significantly exceeded the cost of his nursing home care and obligation to pay child support, by approximately $4000.00 per month.

6. We are unable to accept that this complaint can succeed in isolation, for the reasons we have suggested earlier. It remains to consider whether, relative to the other relevant s 75(2) factors to which the trial judge directed her attention, her determination with respect to s 75(2) exceeded the ambit of a reasonable exercise of discretion.

Ground 2 e

1. Ground 2 e asserted that her Honour failed to:

   2 e.give sufficient weight to the evidence of the husband’s urgent need to access a lump sum amount of at least $250,000.00 immediately to pay a bond to the nursing home,

2. There can be no doubt that the trial judge appreciated that the husband could pay $250,000.00 by way of accommodation bond to the nursing home in which he was living, and that doing so would be in his best interests, both in terms of the quality of care he would continue to receive, and his finances.

3. Her Honour recorded:

   155.If the [BH] property is transferred to Mr [Kite] he would hold total net property valued at $1,147,345, which exceeds his entitlement by $164,863. The only way in which he could make such a payment to Mrs [Kite] would be to withdraw money from his superannuation fund. That option is most undesirable, given his need to pay a bond of at least $250,000 to [S nursing home] and the cost of his future care. It is unsurprising that Mr [Kite] sought no orders that would require him to make a lump sum payment to Mrs [Kite].

4. Her Honour reiterated:

   161.Mr [Kite] will retain his superannuation of $586,887. He will take or retain other property which, if liquidated, would realise a gross sum of around $99,000.  

5. As it is not in doubt, receipt of his entitlement to the BH property proceeds of sale of $185,137.00 plus the proceeds of liquidating his T shares would have provided the husband with the sum of $250,000.00 needed to be paid by way of bond to the nursing home, without the husband needing to draw against his superannuation interest.

6. This complaint needs to be considered in conjunction with those to which reference has previously been made and to which reference will shortly be made. In isolation however the complaint is unsustainable.

Ground 2 f

1. Ground 2 f asserted that her Honour failed to:

   2 f.give any or sufficient consideration to the reasonable sums required by the husband for his day to day life over and above his basic care costs.

2. This complaint overlaps to a considerable extent with 2 d which we have earlier considered and with the complaint in ground 2 i.

3. As we have earlier recorded, there was no evidence of “the reasonable sums” required by the husband for his day-to-day living over and above his “basic care costs”. Lest there be any uncertainty about it, the trial judge clearly accepted that the husband ought not, for reasons which her Honour suggested, be limited to the services provided by “mainstream” nursing home services, but rather should continue to have the benefit of the more expensive “extra services” which he had been receiving as a resident of his current nursing home. The costs of the more expensive “extra services” were clearly those to which the trial judge had regard.

4. As we have also earlier recorded, to the extent that the husband may have incurred unquantified expenses over and above his day-to-day living expenses, the trial judge was conscious of that. [Reasons for Judgment, par 145]. The evidence before the trial judge, to which we have earlier referred, revealed that the husband had considerable capacity to meet any such additional expenses out of the superannuation benefits which he was drawing.

5. This complaint cannot succeed in isolation. As with others, it remains to be considered in the context of the husband’s broad s 75(2) challenge.

Ground 2 g

1. Ground 2 g asserted that her Honour failed to:

   2 g.consider the matters in Section 75(g) [sic] particularly having regard to the husband’s living circumstances.

2. In what way the trial judge is asserted to have erred is not clear to us. The trial judge’s reasons reveal that the standard of living of the parties, and particularly of the husband, was a matter which she closely considered. It has not been suggested that either party would be denied a reasonable standard of living by her Honour’s orders.

Ground 2 h

1. Ground 2 h asserted that her Honour failed to:

   2 h.properly consider and give sufficient weight to the vital importance to the husband of his superannuation fund as his only real source of financial support and its decrease in value between July 2008 and March 2009.

2. The trial judge was clearly aware of the decrease in the value of the husband’s superannuation interest over the period referred to in this ground (see Reasons for Judgment, par 141). Her Honour correctly noted that the husband’s superannuation had reduced from $1,009,696.00 to $586,887.00 over that period, which did not “auger well for capital growth in the immediate future”.

3. There was no evidence before her Honour that the value of the husband’s superannuation interest was likely to further decrease. Her Honour did not find that the value of the husband’s interest would increase. The trial judge was in not the slightest doubt, as her reasons reveal, as to the husband’s dependence upon his superannuation interest as “his only real source of financial support”.

4. Her Honour accepted, as she clearly had to, that the husband suffered from a “serious, debilitating illness which means that he requires permanent, full time nursing care”, with not only no prospect of that improving, but, as we have earlier recorded, expert opinion evidence suggesting that the husband’s condition may further deteriorate. Her Honour concluded, as she clearly also had to, that the husband had no capacity for employment and would not have any such capacity in the future.

5. As we have earlier recorded, her Honour regarded as “most undesirable” any payment from the husband’s superannuation interest of capital sums, whether for the purpose of an accommodation bond at the nursing home in which he was residing, or otherwise. Her Honour was concerned to make sure that her orders enabled the husband to preserve his superannuation of $586,887.00 in order that the husband’s ongoing needs could be funded. That is the only value of the husband’s superannuation to which her Honour had regard.

6. In isolation, this challenge cannot succeed, although it remains to be considered in the context of the husband’s broader s 75(2) challenge.

Ground 2 I

1. Ground 2 I asserted that her Honour failed to:

   2 I.consider or give sufficient weight to the fact that the husband has no financial “cushion” against possible eventualities such as loss of nursing home accommodation and his bond.

2. We have not been referred to any evidence before the trial judge which established that, provided he paid the bond which her orders enable him to pay, the husband was at risk of losing his place in the nursing home in which he was residing at the date of her Honour’s judgment. There can be no doubt that the trial judge appreciated, that, for all practical purposes, once the husband paid the nursing home bond, it was lost to him.

3. Nowhere in the evidence of Ms O, the director of care at the nursing home in which the husband was living, was it suggested or implied that the husband could be obliged to vacate the nursing home and be deprived of the totality of his accommodation bond, once he had paid it.

4. In her affidavit evidence, Ms O unequivocally said:

   25.Once [S nursing home] has accepted a person as a permanent resident the Nursing Home will not terminate their accommodation and care provided such resident continues to meet the monthly fees applicable to the accommodation agreed to with [S nursing home].

5. She further deposed:

   29.Mr [Kite] is classified as a Category 2 resident at [S nursing home]. This means that Mr [Kite] is unable to manage his day to day care without a fulltime carer. In my opinion I do not believe that Mr [Kite] will be able to return to an independent living outside of the nursing home without 2 fulltime nurses to care for him 24 hours a day. Such care would exceed the [sic] Mr [Kite’s] current costs of care at [S nursing home].

6. We have not been referred to any evidence in which Ms O resiled from or qualified that evidence. No other “possible eventualities” were identified by counsel for the husband. In the absence of any evidence of these matters, the trial judge cannot in our view be criticised for failing to consider the topic or give weight to it.

Ground 2 j

1. Ground 2 j asserted that her Honour failed to:

   2 j. give sufficient weight to the evidence of the husband’s total lack of capacity to earn as opposed to the wife’s flexible capacity to earn.

2. We have largely dealt with the substance of this complaint in the context of a number of earlier challenges. In isolation, it is demonstrably unsustainable.

3. The trial judge recorded that the husband had “no capacity whatsoever for gainful employment”, whilst the wife worked three days per week and “could increase her hours if she chose to do so”.

4. As with other “weight factors”, this challenge can only be properly evaluated in the context of a consideration of the balancing of factors favouring the wife pursuant to s 75(2) against those favouring the husband pursuant to section 75(2).

Ground 2 k

1. Ground 2 k asserted that her Honour failed to:

   2 k. correctly acknowledge the extent of the wife’s continuing parental responsibility for the child [C] (said to be for a further 24 months) (at paragraph 144) when in fact the finding should have been 13 months, the child being at the date of judgment one month short of 17 years and in giving this factor excessive weight.

2. It is correct to submit that, rather than 24 months future dependence, 13 months would elapse before the youngest child of the parties attained 18 years of age. The factual error complained of could not in our view, of itself, vitiate, or have vitiated the exercise of the trial judge’s discretion (see De Winter v De Winter (1979) FLC ¶90-605). That is essentially because, whether 13 or 24 months, the difference in weight able to be attached to this factor would in our view be quite limited. It remains to consider whether, albeit overstated by some 11 months, that factor, in conjunction with others upon which the trial judge relied, rendered the trial judge’s exercise of discretion with respect to s 75(2) “plainly wrong”.

Ground 2 l

1. Ground 2 l asserted that her Honour failed to:

   2 l.consider at all the context of section 75(2) or in the alternative give any or sufficient weight in the context of Section 75(2), to the matters specifically referred to in paragraph 162 of the judgment in referring to the just and equitable requirement.

2. In paragraph 162 of her judgment, the trial judge recorded:

   162.Mr [Kite] has a greater need for liquid assets for his future support than does Mrs [Kite]. She has options, such as increasing her hours of employment and superannuation contributions, to consolidate her asset base. I appreciate that she is 50 years old and has no particular vocational skills.  On the other hand, Mr [Kite’s] position is static outside of the prospect of growth in his superannuation fund. I regard this outcome as just and equitable.

3. As we have earlier recorded, no relevant s 75(2) factor was not referred to by the trial judge. Nor did her Honour refer to irrelevant facts or circumstances. What is meant to be conveyed by this complaint is not entirely apparent. No fact or circumstance referred to in paragraph 162 of her reasons was not referred to earlier in the course of her Honour’s consideration of s 75(2). None of those matters has been shown to have lacked an evidentiary foundation.

The broader s 75(2) challenge

1. The crux of the husband’s complaints in relation to the trial judge’s conclusion with respect to s 75(2) was that it was not reasonably open to her to “equate the circumstances of an extremely disabled and ill man with no ongoing capacity to earn income and with only a depleting and fixed fund to support him, to the circumstances of a healthy, able bodied woman who is not exercising her full capacity to earn and has the opportunity to accumulate further superannuation entitlements and assets”.

2. Counsel for the wife submitted that the matters relied upon by the husband, taken in conjunction, did not demonstrate appealable error by the trial judge “in what was a clearly difficult discretionary determination”.

3. As is not in doubt, the trial judge concluded that the s 75(2) factors favouring the wife were her responsibility to care for the youngest child of the marriage “for the next two years” and “her limited capacity for gainful employment”. As we have earlier recorded, the responsibility in fact to care for the parties’ youngest child would be for 13 months.

4. The wife had no “specialised employment qualification” and was 50 years of age at the date of the trial judge’s judgment [Reasons for Judgment, par 143]. As her Honour had earlier found, the wife could increase her work hours, from three days a week, and earn a larger income “if she wished to do so”. How much larger that income might be has not been suggested. The unchallenged evidence before the trial judge was that the wife was earning $561.00 per week prior to tax from personal exertion.

5. The factors favouring the husband pursuant to s 75(2) were his “physical dependency” and reliance “solely on the superannuation fund for his financial support”. Her Honour accepted, in reliance upon the matters to which she had earlier referred, that the husband was “entitled to the best quality of life which nursing home care can provide to him”, which meant that he should continue to live at the nursing home in which he was then resident, and continue to receive the level of care which he was then receiving. Her Honour further accepted that the husband was “… also entitled to enhance his quality of life as much as possible by having access to funds in excess of the costs of his nursing home care”.

6. Her Honour ultimately concluded that the s 75(2) factors favouring the parties should be regarded as equal.

7. As we have earlier observed, the trial judge was exercising an undoubtedly broad discretion. Others may have reached different conclusions with respect to s 75(2) without thereby being in error. It does not follow that because others may have been less generous to the wife that her Honour’s conclusion with respect to s 75(2) exceeded the generous ambit of her discretion. To the extent that the exercise of discretion proceeded on an error of fact as to the future dependency of the youngest child of the marriage, we do not accept that such error of fact could have vitiated the exercise of the trial judge’s discretion. The difference between an adjustment for a child for 2 years as opposed to 13 months could not have had that impact. It could only have been of limited significance in either case.

8. Although not so expressed, the crux of the challenge agitated by counsel for the husband was really that the trial judge should have elevated what she asserts were the husband’s needs to primacy over the entitlements of the wife. There may be cases where such an outcome is appropriate. In this case however, the trial judge was required to, and did, carefully balance the competing s 75(2) factors. Had the wife’s capacity for income been substantial, or potentially substantial, this challenge may have had merit. But the only evidence before her Honour suggested that the wife had a modest ability to earn income, and would have a mortgage to service with respect to the home which she was to retain. The husband’s needs, and capacity to meet them, were clearly understood by the trial judge, and were accommodated by the orders she made.

9. Support for concluding that the trial judge’s discretion did not miscarry can be gleaned from the passages of her judgment which followed her determination that no s 75(2) adjustment should be made. Having reached a prima facie “conclusion” as to a just and equitable determination of the proceedings before her, the trial judge proceeded to carefully consider the implications of that conclusion. This her Honour did with particular reference to the position of the husband.

1. As we have earlier recorded, the trial judge was careful to ensure that the outcome she proposed would enable the husband to pay the $250,000.00 accommodation bond which the expert financial opinion evidence satisfied her was in his best interests without needing to draw upon his superannuation interests.

2. After considering her proposed outcome in a balance sheet context, the trial judge reiterated that the husband would be able, by drawing upon the proceeds of sale of the BH property, and liquidating other property not required for his daily care or living expenses, to pay the $250,000.00 bond to the nursing home without reducing his superannuation interest.

3. We are not satisfied that the trial judge could only have concluded that there should be no s 75(2) adjustment by erroneously affording excessive weight to the factors supportive of an adjustment in favour of the wife, and/or affording inadequate weight to the factors supportive of an adjustment in favour of the husband. Her Honour balanced all the relevant factors. Others may not have concluded as she did. That is not the test, as the authorities confirm. We are not persuaded that the trial judge’s discretion fell beyond the ambit of a reasonable exercise of discretion.

Ground 3

1. Ground 3 provided:

   3.Her Honour erred in law and in fact in failing to adjust in favour of the husband (whether by way of contribution or as a section 75(2) factor) the lump sum payment of $1,230,950.00 received in 2002 by the husband from his employer in settlement of Industrial Relations Commission proceedings.

2. As agitated, this ground really challenges the trial judge’s conclusion with respect to the contribution entitlements of the parties. As is not in doubt, the payment received by the husband in 2002 in the Industrial Relations Commission in settlement of his claim against his former employer represented, both at the time of its receipt and the date of trial, a significant proportion of the property of the parties. As is also not in doubt, its impact was considerable, and remained so.

3. It is not correct to suggest that the trial judge did not consider the contribution of the “$1.2million settlement” as a “contribution by or on his behalf”. Her Honour rejected the contention of the husband that it should be treated as his “sole contribution”. Why her Honour concluded as she did is not in doubt, as her extensive reasons for judgment in relation to this topic reveal. Her Honour identified the two not unrelated “main issues” with respect to contributions as being “whether Mr [Kite’s] $1.2million settlement should be regarded as a contribution solely attributable to him”, and “what weight should to [sic] be given to Mrs [Kite’s] care of Mr [Kite] as his illness progressed, in the context of her contribution as homemaker and parent and generally”.

4. The trial judge then recounted briefly the contribution history of the parties:

   110.During a marriage of 24 or 25 years’ duration, Mr and Mrs [Kite] adopted traditional roles of major income earner and primary homemaker and parent respectively. In addition Mrs [Kite] worked full time from the date of the marriage until 1986 and part-time between 1986 and 1987.  She has been employed for three days per week from 1997. 

   111. Mr [Kite] travelled overseas in the course of his employment for several years during the marriage. He acknowledged the additional burden which his absences placed on Mrs [Kite] in a book which he wrote …, about his experiences with multiple sclerosis (exhibit 2). He noted that he was away from home for three to five months each year between 1989 until 1996.  He wrote: “this placed an enormous strain on Mrs [Kite] to run the household with three small children, handle household maintenance issues, finances, sporting activities, music lessons, et cetera”.

   None of the findings of fact there referred to has been challenged.

5. In what way the contributions of the wife were asserted to have been deficient, or the trial judge’s conclusion to have not been reasonably open to her has not been specified. There is no doubt that the husband’s disability gave rise to the proceedings, or that the monies agreed to be paid by his former employer were referrable to his condition. That, however, did not mean that the trial judge could not go behind the settlement. Indeed, her Honour was obliged in the circumstances of the case to do precisely that.

6. Reference was then made by the trial judge to the wife’s evidence in relation to the assistance she rendered the husband “as his illness progressed and his condition deteriorated”. Her Honour recorded:

   113.In her primary affidavit Mrs [Kite] set out a detailed account of her assistance to Mr [Kite] as his illness progressed and his condition deteriorated. On her behalf it was submitted that this evidence of the difficult circumstances in which she cared for Mr [Kite] was corroborated by the contents of his book (exhibit 2). Having carefully read Mr [Kite’s] writings, I accept this submission. I include in these reasons two extracts from Mr [Kite’s] book which illustrate his recognition of the extent of Mrs [Kite’s] efforts.  

7. As can be seen reliance was also placed upon a book which the husband had written. The book became an exhibit in the proceedings before her Honour. Her Honour quoted from the husband’s book. The very moving statements made by the husband in his book were able to be relied upon. In reality, in concluding as she did, her Honour did no more than the husband himself had so frankly acknowledged in his book.

8. In reliance upon the wife’s evidence, and the husband’s own frank admissions, the trial judge was “satisfied that Mrs [Kite’s] efforts and commitment were very significant in the functioning of the family unit as Mr [Kite’s] condition deteriorated. It is clear that she carried out her homemaker, parent and carer role in arduous circumstances”. We have not been referred to any evidence which precluded her Honour from making findings in those terms.

9. Having referred to the husband’s “substantial efforts to sustain his employment for as long as possible in spite of his illness”, the trial judge concluded that the parties “bravely faced together his health problems and the consequences for their family. It is my view that each did all that they could to make the best of their very difficult situation”.

10. The trial judge was acutely aware of the origin of the husband’s settlement and its nature. She recorded that the “money was largely characterised as a total and permanent disability benefit” relating to the husband who was “totally and permanently disabled and it was for this sad reason alone that a very substantial sum of money came into the family”.

11. Counsel for the husband complained that the settlement was received “late in the marriage”. That of itself did not preclude her Honour from finding as she did (See Farmer v Bramley (2000) FLC ¶93-060). Her Honour was clearly aware of when the settlement was received. She was also aware of the history of the husband’s employment, all of which “fell within the parties’ cohabitation”. Her Honour examined the interaction between the wife’s acceptance of “additional responsibility on the home front” in the absence of the husband on “extensive overseas business travel”, and the consequence that the husband “advanced his career and his salary increased progressively”. Her Honour found that the husband was “able to continue to work for several years after he could no longer undertake business travel, in no small measure because of Mrs [Kite’s] assistance to him”.

12. Nothing to which we have been referred establishes that it was not reasonably open to her Honour to find as she thus did. Nor has it been established that her Honour’s finding that the wife’s “efforts in the home and her care for him were important components of his [the husband’s] achievements in the workplace”. For reasons which the trial judge detailed, and which are not suggested to lack an evidentiary foundation, her Honour concluded that the “proceedings in the Industrial Relations Commission were a joint enterprise of the parties, undertaken to secure the maximum financial benefit for their family”.

13. The trial judge was acutely aware of the nature and implications of the husband’s illness and the origin and basis of the settlement he received. Her Honour recorded:

    124.If it were not for considerations arising from Mr [Kite’s] illness and the settlement money, I would have little difficulty in concluding that the contributions of the parties were equal. In a long marriage, Mr and Mrs [Kite] adopted traditional and complementary roles which enabled them to raise their family and build their asset base.

14. Her Honour also recorded:

    125.In my view, Mr [Kite’s] illness meant that greater efforts were required of each of the parties. As I have already observed, Mrs [Kite] carried out her homemaker, parent and carer role in arduous circumstances.  On the other hand, Mr [Kite] strove to continue his employment for as long as possible, despite the difficulties which he faced. The parties together addressed the implications of his employer’s failure to award bonuses and salary increases. For these reasons it seems to me that they continued their joint and complementary efforts until the time of the separation. To that point, I regard their contributions as equal.

15. Not insignificantly, the trial judge also had regard to joint funds utilised by the wife “not all of which I have added back to a list of assets” in assessing the parties’ post separation contributions.

16. Nothing to which we have been referred establishes that her Honour erred in concluding as she did with respect to the contribution entitlements of the parties generally, or with respect to the husband’s settlement in particular. No fact or circumstance relevant to those determinations has been shown to have been ignored or overlooked, nor has any irrelevant fact or circumstance been shown to have been taken into account in that process. The trial judge’s conclusion was not based upon any erroneous finding of fact. We are not persuaded that the trial judge’s conclusion with respect to contributions was erroneous in principle, or fell beyond the generous ambit of the undoubtedly broad discretion which she was exercising.

17. Whilst our conclusions with respect to the various s 75(2) challenges agitated pursuant to ground 2 might be thought sufficient to dispose of the s 75(2) complaint articulated in this ground, for more abundant caution, we will address some specific submissions made in support of the s 75 (2) complaint.

18. Counsel for the husband submitted:

    37.The settlement represented the husband’s personal future financial security upon which he on any version of the facts was certain to be permanently reliant. The fact that the husband would not work again was central to the calculation and receipt of the amount involved.

19. The trial judge was not in doubt as to any of these matters. The passages of her judgment to which we have earlier referred are replete with references to them. As we have recorded in the context of the earlier s 75(2) challenges, having concluded as she did with respect to the husband’s settlement monies, the trial judge carefully considered both the husband’s reasonable needs and the cost of them, and the importance of preserving the husband’s superannuation interest in order to enable the husband to meet his ongoing expenses and “enhance his quality of life as much as possible by having access to funds in excess of the cost of his nursing home care”.

20. Her Honour was understandably concerned to preserve the husband’s superannuation interest for the purpose which she had, no doubt correctly, identified and, to the extent that the evidence permitted her to, quantified. The trial judge had further regard to the nature and significance of the husband’s superannuation interest within the context of her s 75(2) deliberations.

21. It was further submitted on behalf of the husband:

    39. Further and in the alternative it is submitted that these matters ought to have been taken into account and were relevant pursuant to Section 75(2), particularly section 75(20(o) [sic].

22. The short response to this complaint is that all of the matters articulated in support of this ground were taken into account by the trial judge pursuant to s 75(2). They were revisited by her Honour in the context of s 79(2), as we have earlier recorded. Largely for reasons which we have earlier articulated, we find no error in her Honour’s conclusion with respect to those exercises. We thus do not accept that this ground has substance.

Ground 4

1. Ground 4 provided:

   4.Her Honour erred in fact and law in failing to write back into the asset pool a significant portion of the fund $449,177.00 retained by the wife for her own use following separation from the parties’ joint BankWest account.

2. Having regard to the oral submissions of counsel for the husband, it is ultimately less than clear to us what sum the trial judge is asserted to have erroneously failed to write back into the asset pool with respect to monies  retained by the wife from the parties’ joint funds after their separation.

3. It is convenient to first deal with the $28,000.00 figure referred to in paragraph 43 of counsel for the husband’s submissions. It was there submitted:

   43.At paragraph 84 Her [sic] Honour specifically found that it was inappropriate to add back a total of $116,916.00 that had been paid for joint benefit of the parties or for conservation of the assets – see AB 25. This figure included the amount of $28,000.00 for mortgage repayments in respect of the mortgage over the [BH] property and strata fees which should have been met by rental income from the [BH] property – see paragraph 100 at AB 155.

4. In his responding oral submissions, counsel for the wife was unable to refer us to the source of that figure. The evidence before the Court of the wife in relation to the topic, to which counsel for the wife referred, revealed:

   6.Since [Mr Kite] redirected payments from his superannuation pension fund following our separation, I have been responsible for ensuring that the monthly mortgage repayments have been made on our two investment properties at [BH] and [NB] – primarily the shortfall in rent versus minimum mortgage repayment, and in particular all mortgage payments upon the [NB] property becoming vacant some four months ago. I have reviewed my bank statements, and say that in addition to the expenses already set out at 123.1-123.4 of my Affidavit filed 20 November 2007, I have expended a further $17,550 on mortgage payments which has either been directly transferred by me from accounts under my control to the joint Commonwealth Bank Passbook Account from which the monthly mortgage repayments are directly debited, or otherwise paid directly from accounts under my control to this same account or directly to the mortgage accounts.

5. By reference to the wife’s earlier affidavit filed on 27 November 2007, a further sum of $5,257.63 emerged. Accordingly, approximately $22,000 of the $28,000.00 referred to by the trial judge was thereby, and uncontroversially, accounted for. Whilst the evidence was less than entirely clear, and other findings and conclusions may reasonably have been open to her, we are not persuaded that the trial judge erred in finding as she did with respect to the sum of $28,000.00

6. To the extent that the figure was perhaps $6,000.00 in excess of that which emerged clearly from the evidence, it is de minimis, and not a sum which could properly vitiate the exercise of her Honour’s discretion with respect to add-backs.

7. Counsel for the husband referred us to the submissions of her predecessor at trial. We have read those submissions, and particularly note the following passages appearing in them:

   2.57… There remains of the $449,177.00 and [sic] amount of $281,521.00. The Husband [sic] contention is that it is open to the Court within the exercise of its discretion to find that the whole or a very significant part of this sum has been wasted and ought be added back to the pool of assets available for distribution. It is conceded that there is an air of artificiality to the precise figure.

   …

   2.66The Husband contends for add-backs of $75,000 (monies distributed by wife to children), $92,656 (monies paid by wife for legal fees), and so much of what remains of the $281,521 as the Court finds appropriate (with the suggestion of $200,000 being made as appropriate), totalling $376,656.

   …

   2.68The alternative (excluding add-backs with respect to monies distributed to children and for legal fees) is that it is suggested that of the $281,521.00 the Wife has wasted or failed to properly husband [sic] is, if not a waste, then a contribution by the Husband to the welfare of the parties and the family in the post separation period and would be reflected as such in the Courts contribution findings. 

   Nowhere in the submissions of counsel for the husband at trial do we discern any specific complaint in relation to the topic of expenses paid out of joint funds with respect to the real estate of the parties.

8. Although reference was made to “extravagances” in relation to the wife’s application of joint funds after separation, we have not been referred to any evidence before the trial judge establishing that any monies not added back by her constituted such “extravagances”. As will be seen, the trial judge was conscious of the assertion of the husband that the wife’s “detailed accounting” was “little more than an attempt after the event to obfuscate and justify the fact that significant funds no longer exist”.

9. For reasons which she detailed, the trial judge found in that regard that:

   82.Mrs [Kite] attempted to provide a breakdown of her expenditure of this money.  She annexed to her affidavits various spreadsheets containing a highly detailed breakdown of expenditure.  In the analysis which follows I make no attempt to trace every dollar from these funds expended by Mrs [Kite].  My purpose is to try to identify amounts which should be excluded from the list of assets; sums in relation to which there could be argument and expenditure which should be treated as add-backs.

10. In that paragraph of her judgment, the trial judge recorded that she made no attempt to trace “every dollar” of the joint funds expended by the wife after separation. Such approach was clearly consistent with the authorities which leave little scope for doubt that, albeit exercised judicially, the question of add-backs, or “write-backs” as counsel for the husband has referred to them in this case, involved the exercise of discretion.

11. As is apparent from the trial judge’s reasons, whilst the fate of every dollar was not traced, her Honour examined in considerable detail the utilisation by the wife of joint funds to which she had “helped herself” in the post separation period. Her Honour correctly identified that her task was to “try to identify amounts which should be excluded from the list of assets; sums in relation to which there could be argument and expenditure which should be treated as add-backs”.

12. The trial Judge, uncontroversially, added back the wife’s paid legal expenses of $152,042.00. The evidence left little room for doubt that those expenses were paid from the $435,400.00 which the wife obtained from the parties’ joint funds in the post separation period.

13. Her Honour then identified nine amounts which she concluded ought not be added back. Those items totalled approximately $117,000.00. We do not understand the husband to complain about any of those payments, other than the $28,000.00 mortgage repayments referred to in the written submissions of counsel for the husband

14. The trial Judge then referred to concessions made by the husband, and to other items which clearly, and uncontroversially, were not added back to the list of assets.

1. For reasons which she detailed, the trial judge rejected the wife’s contention that she had “repaid” significant sums to each of the children of the marriage. Her Honour recorded:

   87.Mrs [Kite] claimed that she “repaid” $25,000 to each of the children from the funds under consideration. She alleged that the parties “had always saved money for the children”. She said ‘to my knowledge each child had approximately $25,000’” and “from time to time during the latter years of the marriage [Mr Kite] and I dipped into the children’s savings for day to day expenses, holidays and other household expenses”. Mr [Kite] was not consulted about this supposed “repayment” to the children. 

   88. Bank statements for the children’s ANZ Progress Saver accounts were in evidence (exhibit 6 and annexures to Mrs [Kite’s] affidavit sworn on 23 March 2009). These documents show that [C’s] account was opened with a deposit of $25,000 on 3 May 2006. There were numerous small deposits and lump sums of $2,270 on 6 September 2006 and $7,000 on 16 January 2007. There were no withdrawals until 11 March 2009, when Mrs [Kite] withdrew $10,000. The balance then remaining was $39,892.

   89.This documentary evidence sits most uncomfortably with Mrs [Kite’s] claim that the parties “always saved money for the children” and that “each child had approximately $25,000”. [C] had no “savings” until 3 May 2006.

   90. The evidence did not indicate when [J’s] account was opened. Mrs [Kite] deposited $25,249 on 27 September 2005 into an already existing account. Between 22 July 2005 and 24 April 2008 there were numerous small deposits and a lump sum of $7,000 on 18 January 2007. The balance of $42,550 on 16 July 2007 was reduced to $14.84 by 20 March 2008, after these withdrawals:

   16 July 2007           $19,500

   3 March 2008                   $10,000

   4 March 2008                   $10,000

   5 March 2008                   $  4,975

   $44,475

   91.[R] had an account into which Mrs Kite deposited $25,000 on 21 September 2005. There were small deposits between 3 June 2005 and 4 September 2008 and a withdrawal of $20,000 on 15 August 2008, leaving a balance of $21,582. This amount was reduced to nil by 7 January 2009, after these withdrawals:

   4 September 2008    $5,000

   4 November 2008    $10,000

   7 January 2009        $6,695

   92. Mrs [Kite] claimed that she was obliged to “borrow” a total of $51,696 from [R] and [C] to meet the day to day living expenses of herself and the children.  It seems clear, however, that she dealt with the money lodged in the children’s account as her own. Her evidence was that the children were not aware of the access codes and could not have withdrawn funds themselves. In my view Mrs [Kite] simply diverted approximately $75,000 from joint funds to her ultimate benefit via these accounts in the names of the children. I find that an amount of $75,000 should be added back to the list of assets.

2. The trial judge accordingly added back $75,000.00 to the list of assets in relation to those matters. Her Honour then examined whether the balance of funds remaining of $74,800 should be added back.

3. The wife’s evidence in relation to those expenditures was then considered. Her Honour recorded:

   94.Mrs [Kite] alleged that she needed to resort to joint funds for the financial support of herself and the children, after Mr [Kite] placed his pension payments into an account beyond her control in October 2005. It is useful to consider her evidence as to the extent of the day to day expenses of her household.

   95. In her affidavit sworn on 28 April 2008 Mrs [Kite] said that she withdrew $650 in cash each week and spent this money on a variety of items including food, car expenses, tuition/coaching for the children, music lessons, gifts, clothing and household items. In her affidavit sworn on 20 November 2007 she said that she spent a total of $12,902 on “household expenses” between June 2006 and November 2007, which equates to about $185 per week. I infer that Mrs [Kite] included in this category outgoings such as electricity, gas and telephone bills. It thus seems that the day-to-day living expenses of Mrs [Kite’s] household amounted to about $835 per week.

   96.Mr [Kite] began to pay child support in December 2007. There was thus a period of around two years and two months during which Mrs [Kite] had sole responsibility for meeting the expenses of the household, although there could have been contributions from Mr [Kite] between September/October 2005 and June 2006. As noted, it was during this period that Mrs [Kite] alleged that there were attempts at reconciliation.

   97. The sum of $74,800 equates to about $740 per week for the period between October 2005 and July 2008. I do not suggest that Mrs [Kite] actually spent this amount from joint funds on a weekly basis. As I have acknowledged, these calculations are somewhat arbitrary but this exercise assists me in forming a view about the reasonableness or otherwise of Mrs [Kite’s] use of these funds.

4. The conclusion of the trial judge was thus that:

   98.I am not inclined to add back any amount referable to the period between October 2005 and June 2006, when there did appear to be a level of common purpose at times between the parties. This period consisted of about 36 weeks, for which the figure of $740 per week amounts to approximately $26,600. I find that this sum should not be added back to the list of assets. .

5. Her Honour earlier in her consideration of the disputed “write-backs” referred to the wife’s attempt to provide a breakdown of her expenditure of the $435,400.00 which she had obtained from joint funds in the post separation period, and to the spreadsheets annexed to her affidavits “containing a highly detailed breakdown of expenditure”.

6. The trial judge had also earlier recorded:

   44.I gained the impression that Mrs [Kite] made a calculated attempt to justify retrospectively her use of the money which she removed from the parties’ joint account.  I do not suggest that this part of her evidence was untruthful but it did appear to be deliberately crafted to address a difficulty in her case.  Having made that observation, however, I accept that Mrs [Kite] was a truthful witness.

7. The spreadsheets to which her Honour referred were indeed detailed, as a perusal of their more than sixty pages confirms. As noted earlier, we have not been referred to any challenges to the evidence of the wife in the spreadsheet to which we have referred, notwithstanding which the trial judge rejected a number of the wife’s claims.

8. For reasons which she detailed, the trial judge concluded that $45,400.00 should be added back to the asset pool in relation to “expenditure for which Mrs Kite failed properly to identify as necessary for day to day living expenses”.

9. In our view the trial judge explained clearly why she added back what she did, and declined to add back what she did not. No error of fact vitiates the exercise of her Honour’s discretion in that regard. To the extent that there was no “satisfactory explanation” by the wife of use of joint funds they were added back. We thus find this ground lacks substance.

Ground 5

1. Ground 5 provided:

   5.Her Honour erred in fact and law in failing to give sufficient weight to the post separation contribution of the husband through the use by the wife of the funds removed by her from the parties’ joint BankWest account either pursuant to Section 79(a), (b) or (c) or pursuant to Section 75 (2) [sic].

2. The submissions on behalf of the husband in support of this challenge were concise and asserted:

   46.That the amount of $449,177.00 to which the wife has access following separation to the exclusion of the husband represented the whole of the liquid funds available to the parties at that time and comprised the proceeds of the investment of the sum of $485,00 [sic] for the sale of a property owned by the parties at [D] as well as interest and some small savings – see paragraph 77 at AB 24.

   47.It was the only fund available to the parties at the time from which the husband could have paid an accommodation bond. He could not pay his bond from his superannuation fund without incurring [sic] significant taxation penalty. The husband was therefore required to continue to make large monthly payments from this superannuation fund in order to secure his care and accommodation.

   48.This is a very significant matter that should have been reflected in a finding of an enhanced contribution by the husband or alternatively ought to have been recognised pursuant to section 75(2) or in the overall justice and equity of the case.

   49.At paragraph 127 of the judgment at AB 34 Her [sic] Honour found that the husband had made an indirect contribution to the wife and the support of the children post separation by virtue of the wife having access to large amounts of joint funds not all of which had been added back into the asset pool. It is submitted that the contribution of the husband in this regard was greater than assessed by the trial judge and ought to have been found to be so.

   50.Further and in the alternative the fact that the wife had access to the funds over and above her most reasonable needs and the fact that the husband was denied the use of any part of those funds, particularly to pay his accommodation bond ought to have been taken into account in the husband’s favour in the consideration of section 75(2) factors, particularly pursuant to Section 75(2)(o).

3. Counsel for the wife submitted in response that:

   37.It is unclear from this ground of appeal, and the accompanying submissions, as to the further “weight” that the Appellant contends Her [sic] Honour ought to have afforded the Appellant’s contributions because of the Respondent’s use of funds.

4. As with other challenges articulated on behalf of the husband, it is ultimately unclear whether they are assertions that her Honour’s discretion was vitiated by her reliance upon material errors of fact or, as seems more probable, are assertions in the nature of “weight challenges”.

5. On behalf of the wife, it was concisely submitted in relation to the substance of these challenges:

   38.Her Honour made no adjustment in favour of either party on account of the period post-separation, recognising the Appellant’s indirect contribution to the Respondent, children, and household as a result of the Respondent’s use of the funds [AB1:34]. It is noted that sole financial and non-financial responsibility for all such matters fell to the Respondent.

   39.Whilst the relevance of such matters is not entirely clear, the submissions of the Appellant are responded to more particularly as follows:

   39.1    [para.46] the funds utilised by the Respondent following       separation      did not represent the entirety of the funds available to the parties,      the Appellant having access to and disbursing considerable funds          in addition to those drawn from his           superannuation entitlements;        and,

   39.2    there was no suggestion that the Appellant sought to access any       funds for the purpose of payment of a bond prior to the         determination of the proceedings, indeed the Appellant himself    maintained until trial that he sought to return to the matrimonial           home.

6. It was accordingly submitted on behalf of the wife that appealable error had not been demonstrated. We agree with that proposition. The matters complained of in paragraph 47 of the submission of the husband, if correct, have not been shown to have had any bearing on the determination of the proceedings, as is apparent from the terms of the submission. In any event, the husband had not drawn against his superannuation for that purpose. Under the trial judge’s orders, he would not need to do so.

7. Given that it was the husband who benefitted from the expenditure thus incurred, and that the trial judge was clearly aware of the parties’ circumstances in the post separation period, there is no basis upon which the contention articulated in paragraph 48 could succeed.

8. The matter complained of in paragraph 49 was one to which her Honour directed her attention. Whist other conclusions may have been open, nothing to which we have been referred establishes that her Honour erred in concluding as she did.

9. So far as the complaint articulated in paragraph 50 is concerned, the trial judge “wrote back” what she found on the evidence to be an appropriate sum with respect to joint funds retained by the wife. For the reasons which we have earlier provided, we find no error in what her Honour concluded in that regard, or in how she reached that conclusion. Nothing to which we have been referred, individually or collectively, persuades us that this ground has substance.

Grounds 6, 7 & 8

1. Grounds 6, 7 and 8 were argued concurrently and provided:

   6.Her Honour erred in fact and law in finding that the overall result, namely that the net property of the parties including superannuation should be divided equally between the parties, was just and equitable, particularly having regard to the matters in paragraph 162 of the judgment.

   7.Her Honour erred in failing to take into account and give sufficient weight to the difference in the character of the assets received by the parties as a result of her orders and the inevitable requirement of the husband to reduce his superannuation fund over time to pay for his accommodation and care as against the wife receiving the unencumbered home.

   8.Her Honour failed to give any or sufficient weight to the evidence in relation to the requirements of the husband to secure his present accommodation including the requirement for an accommodation bond and the requirement that he hold other assets over and above the bond.

2. We have dealt with virtually all the matters asserted by counsel for the husband in support of these challenges. As we have earlier recorded, the submissions proceeded on the false premise that, in order to pay the accommodation bond of $250,000.00, the husband would be obliged to draw upon his superannuation interest. As her Honour’s reasons for judgment make clear beyond doubt, that was not her intention. Nor was it the effect of her orders.

3. As we have earlier recorded, the trial judge’s orders permitted the husband to pay the $250,000.00 accommodation bond which the expert opinion evidence persuaded her Honour was in his interests, without touching his superannuation fund. Nothing to which we have been referred suggests that her Honour’s intentions were misguided, or unfounded.

4. The trial judge’s reference to the husband’s position as “static”, read in context, makes clear that her Honour made no assumptions that the husband’s superannuation interest would increase materially in the future, either to its former balance of approximately $1million or any other sum. We have not been referred to any evidence, actuarial or otherwise, which established that the husband’s superannuation interest would be exhausted by any particular date. We do not accept that the trial judge should have found that the husband’s position was “more likely to get worse than better”. As was submitted on behalf of the husband, her Honour was in no doubt that the husband’s “pension position is dictated by market forces over which he has no control”. Her Honour’s discussion of the changes in value of the husband’s superannuation interest leaves no room for doubt in that regard.

5. It was submitted by counsel for the husband that:

   57.As a result of Her [sic] Honour’s orders the wife is left with an unencumbered house and further assets which she is at liberty to use to her best financial advantage by selling, spending or mortgaging. She has the option of increasing her working hours and her superannuation.

   That assertion is simply incorrect.

6. The wife would not, and will not be left with an unencumbered home, as her Honour’s reasons for judgment make clear, and we have earlier discussed in the course of our consideration of ground 1. None of the matters accurately referred to in support of these grounds was not taken into account by the trial judge in determining the overall entitlements between the parties, or in “considering the justice and equity of the result”.

7. As we have earlier recorded, both within the context of her consideration of s 75(2) and her consideration of s 79(2), the trial judge had close and careful regard to all relevant facts and circumstances, and did not have regard to irrelevant facts or circumstances. We have earlier explained why we reject the husband’s contentions that the exercise of her Honour’s discretion in those respects was erroneous.

Ground 9

1. Ground 9 provided:

   9.Her Honour erred in failing to include as part of the asset pool of the parties or in the alternative in failing to add back into the asset pool the sums held by the wife in her ANZ Bank Ltd Premium Cash management Account and various joint accounts totalling $13,146.00 which had been reduced between the date of adjournment of the trial and the date of submission to $1,042.86.

2. In support of this challenge counsel for the husband submitted:

   59.In the wife’s Further Updating Affidavit sworn 21 July 2008 at AB 466 she disclosed that there was $11,868.42 in her ANZ Bank Ltd Premium Cash Management Account. This was item 16 on the balance sheet promoted on behalf of the wife – see AB 672.

   60.The wife had also disclosed joint savings of $1,266.00 at AB 466 (Commonwealth Bank NetBank Saver …, Commonwealth Streamline Account and Commonwealth Passbook Account) which were collectively referred to by Counsel as item 18- see AB 673.

   61.By the date of swearing of the wife’s affidavit on 23 March 2009 all of those accounts totalling previously $13,146.00 had been reduced by $12,103.14-see affidavit of Mrs [Kite] sworn 23 March 2009 at AB 486 and annexure “C” at AB 499.

   62.Apart from a vague assertion that these accounts had been used to “fund various expenses for [Mr Kite], myself and the children” in paragraph 8 of her affidavit at AB 729 no satisfactory explanation was given as to the use of these funds.

   63.It is submitted that the balances should have been included in the asset pool in the sum of $13,146.00, as submitted on behalf of the husband at AB – 730. Her Honour did not include this figure in the asset pool at AB – 30. She included savings totalling $1,043.00.

3. In response, counsel for the wife submitted:

   46.This ground of appeal appears to seek the ‘add-back’ against the Respondent of an amount of $12,103.41 expended by the Respondent in the period from July 2008 until March 2009. The Respondent gave evidence that such amount had been expended on “various expenses for the benefit of [the Appellant], myself and the children” .

   47.It is submitted that in not including such amount against the Respondent her Honour has not erred but rather:

   47.1accepted, as Her [sic] Honour was entitled to, the Respondent’s       unchallenged evidence;

   47.2    acted in accordance with well-recognised authority in relation to the           expenditure of amounts following separation on living expenses: see          for example GVC v HPC [1998] FamCA 143; SMB v MFB (Full    Court, Bryant CJ, Holden and Coleman JJ, 10 February 2006).

   particularly in circumstances where the Respondent’s income was not of significance during this period.

4. Counsel for the husband has not referred us to any cross-examination of the wife, or to any other evidence which precluded the trial judge from accepting the evidence of the wife to which her counsel has referred us. Whilst other findings may have been reasonably open to the trial judge that is not the test for present purposes. Nothing to which we have been referred establishes that her Honour’s finding was not reasonably open to her. This challenge fails.

Ground 10

1. Ground 10 provided:

   10.Her Honour erred in failing to make provision in her judgment for the benefit that would flow to the wife through the reduction of the mortgage balance by the continued payment of the mortgage from the husband’s share of the rental proceeds of the [BH] property between the date of submissions and the date of judgment.

2. As was not in doubt, the mortgage over the BH property was being paid from the rental income generated by it. Counsel for the husband submitted that the trial judge “failed to have regard to the likely reduction” of the capital sum due pursuant to it. The wife was thus asserted to have unfairly benefited “in the vicinity of $4,000.00”.

3. No evidence to which we have been referred establishes that there was a “likely reduction in the mortgage payout figure” as asserted by counsel for the husband. Moreover, the submission ignores the unchallenged evidence of the wife that the property BH income generated a shortfall rather than a surplus.

4. As counsel for the wife also submitted, the trial judge was not urged to make the “provision” now complained of on behalf of the husband.

5. This challenge fails.

Conclusion

1. The husband’s appeal having failed, it is unnecessary to consider the further evidence sought to be adduced by the wife to bolster the trial judge’s decision. It is also unnecessary to consider the further evidence upon which the husband would have relied, had the further evidence of the wife been received pursuant to s 93A of the Act.

Costs

1. By agreement with counsel for the parties, we will make directions for the filing of submissions in relation to the costs of the appeal.

I certify that the preceding one hundred and seventy five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 4 February 2011

Associate: 

Date:  4 February 2011