M & M
[2006] FamCA 868
•22 August 2006
FAMILY COURT OF AUSTRALIA
| M and M | [2006] FamCA 868 |
PROPERTY SETTLEMENT – Section 75(2) adjustment - expert evidence of the wife’s potential earnings from paid employment - whether employment was available to wife having regard to the practical realities of her age, experience and time outside the workforce - effect on spousal maintenance application
PROPERTY SETTLEMENT – Effect of Orders made – Capacity to service residual liabilities - Just and Equitable Order
PRACTICE AND PROCEDURE – Miscarriage of Justice by reason of delay in trial judgment – effect of letters of complaint relevant to that delay
| Family Law Act 1975 (Cth) ss 72, 75, 79 |
| Federal Proceedings (Costs) Act 1981 (Cth) s 6 and s 9 |
| De Facto Relationship Act 1999 (Tas) |
Allesch v Maunz (2000) FLC 93-033: (2000) 173 ALR 648
Boodhoo v Attorney General of Trinidad and Tobago [2004] 1 WLR 1689
Clauson and Clauson (1995) FLC 92-595
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568
Goose v Wilson Sandford and Co. (1998) 142 SJLB 92
Gronow v Gronow (1979) FLC 90-716; (1979) 144 CLR 513
Hadid v Redpath [2002] NSWCA 16
House v The King (1936) 55 CLR 499
Mitchell v. Mitchell (1995) FLC 92-601
Monie v the Commonwealth [2005] NSWCA 25
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
Norbis v Norbis (1986) FLC 91-712 at 75,178; (1986) 161 CLR 513 at 540
R v Maxwell (1998) 217 ALR 452
APPELLANT: CAM
RESPONDENT: GCM
FILE NUMBER: HBF 1891 of 2000
APPEAL NUMBER: SA 34 of 2005
DATE DELIVERED: 22 August 2006
PLACE DELIVERED: Melbourne
JUDGMENT OF: Bryant CJ, Finn and Coleman JJ
HEARING DATE: 3 October 2005
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 27 April 2005
LOWER COURT MNC: [2005] FamCA 299
COUNSEL FOR THE APPELLANT: Mr Tree SC
SOLICITORS FOR THE APPELLANT: Dobson Mitchell & Allport
COUNSEL FOR THE RESPONDENT: Mr Proctor SC
SOLICITORS FOR THE RESPONDENT: Murdoch Clarke
Orders
That the Appeal be allowed.
That in lieu of the amount of $56,336 referred to in paragraph 8 of the Order of his Honour Justice Hannon dated 27 April 2005 the figure of $112,000 be substituted.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
Introduction
This is the wife’s appeal against orders made by Hannon J on 27 April 2005 in proceedings between the husband and wife and an intervenor (the latter having been in a domestic relationship with the husband following separation between the husband and wife). The intervenor’s proceedings were found to have been bought pursuant to the De Facto Relationship Act 1999 (Tas), the legislation governing de facto relationships in Tasmania at the cessation of the relationship between the husband and intervener. The proceedings between the husband and wife related to parenting orders about the two children of the marriage aged nine and six years respectively and property settlement issues between the husband and wife and the intervenor’s claim pursuant to the De Facto Relationship Act 1999 (Tas). The judgment also dealt with the wife’s application for spouse maintenance which the trial Judge ultimately dismissed.
By Notice of Appeal filed 25 May 2005 the wife appealed against the orders for property settlement and the dismissal of her spousal maintenance application. The wife sought a new trial in relation to property adjustment and spousal maintenance. In the alternate, the wife sought an Order that the sum of $56,336 which the husband was required to pay to her be increased to $112,000 and that the husband pay spousal maintenance in the sum of $120 per week.
The husband resisted the appeal and sought to maintain the Orders of the trial Judge, which provided relevantly for present purposes:-
7.That within 28 days of 27 May 2005 the husband sign all such documents and do all such acts as may be necessary to transfer to the wife all his right, title and interest in the property situated and known as [S] in Tasmania.
7A.That contemporaneously with the transfer referred to in paragraph 7 hereof the wife discharge the mortgage to the National Australia Bank secured on the property situated and known as [S] Tasmania to the extent of $90,000.
8.Contemporaneously with the transfer referred to in paragraph 7 hereof the husband pay to the wife the sum of $56,336.00 with interest to accrue at the rate prescribed by the Family Law Rules from the due date until the date of payment.
9.That the wife will indemnify the husband in relation to any payments of interest in relation to the mortgage to the National Australia Bank that he may pay or be liable to pay during the period 27 May 2005 until compliance with paragraphs 7, 7A and 8 hereof.
[10].Whenever a splittable payment is payable in respect of the superannuation interest of GCM in the Retirement Benefits Fund:
a)CAM is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 using a base amount in the sum of $131,000.00 at the operative time of four days from the date of service of this order upon the Retirement Benefits Fund;
b)there be a corresponding reduction in the entitlement of GCM
c)the above order binds the trustee or trustees from time to time of the Retirement Benefits Funds.
[11].That the husband relinquish in favour of the wife any interest he may have in the following:
a)the motor vehicle registered in the name of the wife;
b)the wife’s superannuation interest with the Retirement Benefits Fund;
c)any monies, savings at bank or investments in the name of the wife;
d)any furniture or chattels in the possession of the wife with the exception of –
i)the blackwood dining suite;
ii)the blackwood bedside tables;
iii)the blackwood hall table;
iv)the blackwood china cabinet;
v)the large Georgian blackwood dresser
to the intent that the wife shall be the sole and absolute owner thereof.
[12].That the parties shall assume responsibility for any debts and any liabilities in his or her sole name and each shall indemnify the other and keep the other indemnified in respect of the said debts.
[13].That within 28 days the wife shall sign all such documents and do all such acts as may be necessary to transfer to the husband any right, title and interest she may have in the property situated and known as [N] in Queensland subject to any encumbrance thereon.
[14].That the wife relinquish in favour of the husband the following:
a)any interest in any long service leave, annual leave, workers compensation payments, retrenchment, redundancy, damages and/or other monies received or to be received by the husband in consequence of the termination of his employment and/or appointment with the Department ….;
b)the husband’s superannuation entitlement with Zurich Superannuation;
c)any motor vehicle registered in the husband’s name;
d)any furniture or chattels in the possession of the husband or to which the husband is entitled pursuant to these orders
to the intent that the husband shall be the sole and absolute owner thereof.
[15].That within 28 days the wife deliver up to the husband the following items of furniture;
i)the blackwood dining suite;
ii)the blackwood bedside tables;
iii)the blackwood hall table;
iv)the blackwood china cabinet;
v)the large Georgian blackwood dresser
[16].That within 60 days or such other time as the intervener and the husband shall agree in writing, the husband shall pay to the intervener the sum of $62,000.00.
[17].That within 28 days hereof the husband sign all such documents and do all such things as may be necessary to transfer to the intervener the property situated and known as [H] subject to any encumbrances thereon.
[18].That contemporaneously with the transfer referred to in paragraph [17] of these orders the intervener shall pay to the husband the sum of $2,000.00 but she may elect to offset that amount against the amount payable by the husband pursuant to paragraph [16].
[19].That the wife’s application, the husband’s response and the intervener’s application be otherwise dismissed.
[20].That the proceedings be removed from the Pending Cases List.
The orders so described are in the form as we understood them to be after a variation to the original orders on 26 May 2005 under the `slip rule’.
Background
At the time of the hearing the husband was aged 51 and the wife aged 43. They met in 1985, commenced cohabitation in the former matrimonial home at [S] in April 1987 and were married [in 1992]. They had two children and separated [in July 2000]. Since separation the wife and children continue to reside in the former matrimonial home.
Following separation in July 2000 the husband formed a relationship with the intervener and shortly thereafter they commenced cohabitation in her rental premises. A few months later the husband and the intervener agreed to jointly purchase a property [H] as tenants in common in equal shares. They contributed equally to its purchase and most of the funds were borrowed. The relationship between the husband and the intervener ceased [in September 2002] and at the time of trial it was agreed that the value of the husband’s interest in [H] was $2,000.
In August 1997 the husband purchased land at [N] in Queensland and a home was subsequently built on that land with the intention it be used as an investment property. At the date of separation the property was subject to a mortgage to the Commonwealth Bank of Australia and it was that property that was the principal subject of the intervener’s application. It was agreed at the hearing that the value of the [N] property was $650,000. During 2001 the parties had agreed to sell the property but it was ultimately withdrawn from sale. The highest offer received was $340,000. It was common ground between the husband and the intervener that the husband could not have met the interest payments on the mortgage without her assistance and such assistance was provided on the understanding that she would receive a benefit from the [N] property. Hannon J found that the intervener had made relevant contributions pursuant to the Act and was entitled to $62,000 from the husband representing her equity in the [N] property, such entitlement to be deducted from the husband’s entitlement to share in the net proceeds of sale in accordance with the judgment under s 79 of the Family Law Act 1975 (Cth) (‘the Act’). There is no appeal by the wife in relation to his Honour’s order about the intervener and it is therefore of no direct relevance to this appeal save only that it is a liability that the husband had to meet flowing from the trial Judge’s orders.
The husband had been employed in the State Public Service since the age of 17 and had a Bachelor of Economics Degree from the University of Tasmania and a Graduate Diploma in Corporate Management. He had held senior positions in the Public Service until July 1999 when he accepted a five year contract appointment as Director of a Government Department. His salary in that position was $99,589 together with other benefits such as the use of a fully maintained car. In May 2003 he was advised that there was a deficiency in the passage of an amendment to legislation relevant to his position with a consequential effect of voiding both his statutory appointment, and his five year contract under the Tasmania State Service Act. He was told it was not the intention of the Minister to appoint him to the position he had been offered and he was offered the alternatives of a re-appointment as a permanent employee at his last substantive position or a payout in accordance with the provisions of his contact. The payout equated to eight weeks salary. There was a time limit on the husband’s election and he elected to be re-appointed as a permanent employee at a salary of $60,994 effective from the 19 September 2003.
In May 2003 he commenced sick leave and was still on sick leave at the date of the trial but was being paid at the higher salary rate and his hope and expectation at that time was that he would continue to be paid at the rate of $99,598 until the expiration of his contract on 30 June 2004.
10. The wife had not been in paid employment outside the home since 1996. In 1991 she graduated with a Bachelor of Arts Degree from the University of Tasmania and she stated in her affidavit at trial that it was her intention to use the time when she was not working to improve her qualifications and to that extent had enrolled to take a Post Graduate Bachelor of Teaching two year Degree course in 2004.
11. His Honour found the net assets of the parties to be $1,114,028 and there is no challenge to that finding.
12. On the question of contributions Hannon J found that the husband had made by far the more substantial financial contributions both at the commencement of cohabitation, during and since cohabitation and, that having regard to all of the contributions under s 79(4) the husband’s relevant contributions outweighed those of the wife. His Honour determined that on the basis of contribution the net assets should be divided in proportion of 60 per cent to the husband and 40 per cent to the wife. There is no challenge to his Honour’s findings in relation to contribution.
13. In relation to s 75(2) factors the trial Judge gave the wife an adjustment of 10 per cent. He found that although the husband was on sick leave at the time of trial and receiving treatment from his general practitioner and from a psychiatrist, it was not part of his case that he would not be able to return to work. The trial Judge found that he had or would regain the capacity for gainful employment and, that on the balance of probability, his earning capacity would be restricted to the figure to which he was to revert at the end of June 2004 with normal increases as opposed to salary increases based on promotions.
14. The trial Judge found that the wife had not been in paid employment outside the home since 1996 but had an Arts degree and experience in the workforce. When she resigned in 1996 she was employed as a section head in the Public Service at level 7 with managerial responsibilities on a salary of $36,000 to $37,000 per annum.
15. The trial Judge found the wife had a capacity for gainful employment at the present time and in the long term. He acknowledged that she had primary responsibility for two young children but said “that should not affect her capacity for at least part time employment”. His Honour referred to the evidence adduced on behalf of the husband from a manager for a recruitment company as to the availability of employment. The witness, Mr [R], had not interviewed the wife but had a detailed brief from the husband’s solicitor setting out the personal and family particulars of the wife and her employment history and responsibilities in the position that she had held. The trial Judge noted that Mr [R]’s opinion, based on the material provided, was that the wife appeared to be well qualified, had a wide range of experience, was highly computer skilled and had obtained senior levels of responsibility. The witness addressed her responsibility for the children, leading to a conclusion that she would seek to limit her hours and said that whilst there was competition in that area with her multi skilled background she would be a stronger contender than some. In conclusion the witness said that the overriding factors in securing employment were perseverance, initiative and genuine desire. The trial Judge acknowledged that the wife did not display any of those attributes when cross examined about her employment future. She had not sought employment and apart from undertaking a course with a view to becoming a teacher at some time in the future his Honour found that she had not “done anything to realise upon the skills that she has”.
16. The trial Judge then compared the income position of each of the parties. He found that the wife was in receipt of a supporting parent benefit, tax benefit and child support providing her with an income of $569 per week or nearly $30,000 per annum. He noted that if the husband’s income substantially reduced, his liability for child support would decrease accordingly, but was satisfied that he would provide for the children to the best of his financial capacity. His Honour noted that the wife estimated her fixed expenditure at $801 per week and her recurring expenses at $488 per week but found that some of the items that she had claimed in relation to recurring expenses were grossly exaggerated.
17. The trial Judge found the husband’s income was $1,553 per week inclusive of the rent from the [N] property that may or may not continue. He noted that it also included the husband’s income from personal exertion at the high scale and that that was likely to be substantially reduced from the end of June 2004. The trial Judge noted that the husband had stated his fixed expenditure at $1,485 per week but that this would also be reduced with a lower tax rate, lower liability for child support and the absence of responsibility for the former matrimonial home. He found that the recurring expenditure of the husband to meet the commitments of himself and the children when they were with him in the amount of $371 per week was not unreasonable.
18. The trial Judge balanced the husband’s financial situation, continued liability for child support and reasonable commitments for his own living expenses, with the wife’s primary responsibility for the care of the children, financial circumstances and her un-utilised earning capacity, and concluded that little adjustment was required for any disparity in their financial circumstances. He found that the major factor favouring the wife was that the children are presently aged nine and six and that she would be primarily responsible for their care for many years. He concluded that there should be an adjustment of 10 per cent in favour of the wife for s 75(2) factors which resulted in the assets being equally divided between the parties.
19. Given the assets that each of the parties had in their possession a cash adjustment from the husband to the wife of $187,336 was required. The trial Judge then considered whether to make a splitting order in relation to the husband’s superannuation and gave effect to the adjustment between the parties by making a splitting order on the husband’s retirement benefit fund superannuation with a base amount of $131,000 and providing for the balance to be made up of a cash payment of $56,336 from the husband to the wife.
20. The trial Judge then considered the wife’s application for spousal maintenance. He observed that the wording of s 72 places a high onus on the applicant to establish that he or she cannot support himself or herself adequately. His Honour found that the wife’s primary care for the two children of the marriage would impinge upon her ability to engage in full time employment. He found however that the evidence established that despite the time that had passed since she had worked outside the home:-
`[S]he has skills that would on the balance of probabilities make her employable in the positions identified by Mr [R]. The difficulty that the wife has in satisfying the threshold question is that she has not made any attempt to obtain employment. She has had the opportunity to do so, particularly as the children have reached school age but has not availed herself of that opportunity.’
21. The trial Judge as a consequence found that although she would have an obligation to meet the mortgage instalments on the former matrimonial home which would be passing to her as a result of the property orders and other outgoings on that property, income from part-time employment would offset the payments which up to the time of trial had been paid by the husband. The trial Judge had found that the wife had failed to establish that she could not maintain herself adequately and therefore it was not necessary to consider the husband’s capacity to pay spousal maintenance. Accordingly he dismissed the wife’s application for spousal maintenance.
22. The relevant orders required the husband to transfer to the wife his interest in the former matrimonial home and that the wife discharge the mortgage on the property to the extent of $90,000. The husband was required to pay the wife the sum of $56,336 and the wife was required to transfer to the husband any interest in the [N] property.
23. A splitting order was made in favour of the wife in relation to the husband’s interest in the retirement benefits fund superannuation fund with a base amount of $131,000. The husband was required to pay to the intervener the sum of $62,000 within 60 days and otherwise the parties retained the assets in their respective possession.
24. There is one further matter relevant to the appeal. The hearing concluded on the 3 March 2004. Judgment was delivered on 26 April 2005, 13 months after judgment was reserved. It was common ground that correspondence was sent by the Executive Director of the Law Society Tasmania on behalf of the parties and by a member of the House of Representatives on the wife’s behalf, to express concerns to the Chief Justice of the Family Court in relation to the delay in the delivery of his Honour’s judgment.
25. It was common ground further that on the 26 February 2005 reports appeared in the print and subsequently electronic media concerning, amongst other things, the delay by the trial Judge in the delivery of reasons for judgment in some cases.
26. The reasons for judgment do not touch upon the delay save that the trial Judge observed in paragraph 9 that there had not been any application to reopen the proceedings and that therefore the facts stated in the reasons were as he found them to be at the completion of the trial on the 3 March 2004. In addition he considered it appropriate to set out the chronology of relevant applications “so that the total proceedings may be seen in perspective”. That chronology commenced with the wife’s initial application for maintenance filed on the 6 October 2000 and concluded on the 9 December 2003 when further orders were made against the wife “in an attempt to ensure that the matter was ready for trial”.
Grounds of Appeal
27. The appellant’s notice of appeal contained three grounds:-
1. That the trial Judge erred in concluding that an adjustment of just 10 per cent should be made in favour of the wife pursuant to s 75(2) of the Family Law Act 1975, taking into account the wife’s current employment circumstances, income and her responsibility for the care of the children.
2. That the trial Judge erred in dismissing the wife’s application for spouse maintenance.
3. That in all the circumstances the wife has not had or may not have had a fair trial of her case and/or there has been a miscarriage of justice arising from:
i.The delay of nearly 14 months after the hearing had concluded before judgment was given;
ii.The fact that the decision was made following letters of complaint to the Chief Justice, the Deputy Chief Justice and to Mr Duncan Kerr MP concerning the delay and following substantial media and political attention concerning the delay.
28. There is considerable overlap between Ground 1 and Ground 2. It is therefore convenient to consider Ground 2 challenging the dismissal of the wife’s spousal maintenance application before dealing with the ground attacking the s 75(2) adjustment. A determination that the trial Judge has erred in rejecting the wife’s application for spousal maintenance would be likely to affect the findings about the wife’s income, earning capacity for the purpose of s 75(2) of the Act. Counsel for the wife in fact argued grounds 1 and 2 together both in written and oral submissions.
Ground 2 – Spousal Maintenance
29. Counsel contended that while the trial Judge correctly noted that the wife’s means tested benefits would be disregarded for the purposes of her application for spousal maintenance, his Honour erred in failing to make a finding as to the monetary value of the employment income that would be available to the wife. It was further submitted that he failed to give any consideration to the provision of even time - limited support by the husband for the wife to enable her to re-train, make provision for and accommodate the needs of the children and to make attempts to obtain part time or full time employment outside the home.
30. Section 72 of the Act provides:
`A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only it, that other party is unable to support herself or himself adequately whether –
a.by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
b.by reason of age or physical or mental incapacity for appropriate gainful employment; or
c.for any other adequate reason,
having regard to any relevant matter referred to in sub-section 75(2).’
Thus, “the apparently absolute terms” of s 72 are to operate “having regard to the relevant matters referred to in s 75(2)”: Mitchell v. Mitchell (1995) FLC 92-601 at p 81,994.
31. The question whether an applicant can support his or herself “adequately” is not to be determined by reference to any fixed or absolute standard but by having regard to the matters referred to in s 75(2): Mitchell (supra at p 81,995).
32. The question is not to be determined upon a “subsistence level” but upon consideration of whether the applicant can support himself or herself “adequately” importing a standard of living reasonable in the circumstances: Mitchell (supra); Evans and Evans (1978) FLC 90-435; Brady and Brady (1978) FLC 90-513 at 77,701; Gamble and Gamble (1978) FLC 90-452; Wilson and Wilson (1989) FLC 92-033 and Bevan and Bevan (1995) FLC 92-600.
33. It is not necessary for an applicant for maintenance to use up all of his or her assets and capital in order to satisfy the requirement that he or she is unable to support him or herself “adequately”: Mitchell (supra).
34. The court is entitled to consider the “notorious circumstance” that there is (Mitchell at p 81,997):
`[A] significant gap between theory and reality for employment, especially for people in middle age, lacking experience and confidence, and who have been out of the skilled work- force for many years, and in the context of current high unemployment. Loss of security, missed promotion opportunities, loss of retraining in developing skills in an increasingly skilled work-force with the loss of confidence which this brings, particularly in times of high unemployment, are notorious circumstances of which the Court must take notice and apply in a realistic way.’
35. Thus in our view the trial Judge was required to consider:-
(a) whether employment was available to the wife having regard to the practical realities of her age, experience and confidence having been out of the workforce for a number of years; and
(b) if so, the level of income the applicant might earn from such employment and whether in the circumstances of this case such income fell below adequate support and thus met the requirements of s 72.
36. The trial Judge clearly acknowledged that if the wife was the primary carer of the two children, that responsibility would impact upon her ability to engage in full time employment. However, he noted that the evidence established that despite the length of time that had passed since she had worked outside the home she had skills that would on the balance of probabilities make her employable in the positions identified by the witness called for that purpose, Mr [R]. He noted that the difficulty she had in satisfying the threshold question as to whether she was unable to support herself adequately was that she had not made any attempt to obtain employment despite having had the opportunity to do so. Counsel for the wife contended that Mr [R] had never met the wife nor spoken to referees so that the weight that the trial Judge gave to this evidence should have accommodated those shortcomings.
37. It was also submitted by Counsel for the wife that his Honour did not take into account the re-training the wife would need, namely ten weeks, in concluding that she had the present capacity for gainful employment and did not address that aspect of the evidence.
38. It was further contended that the trial Judge did not otherwise analyse:
§ The hours the wife might work;
§ The balance between child care and work;
§ The amount of income she would have; and
§ The ability to immediately obtain employment.
39. In the wife’s evidence-in-chief the following examination on the question of the wife’s capacity to work occurred:
`…[The husband] makes reference to the fact that you had not been a paid worker since late 1995?--- That is correct.
He said that, “This decision to remain at home and not work on a full-time or part-time basis was mutually agreed between the parties.” Do you have any comment about that? --- Well, actually I wanted to stay home because I worked 17 years and had obtained a reasonably senior – well, what I call a senior position within the public service. [The husband] had us a good job and I thought and we had agreed that I would stay home and look after the children.
Could you just – he actually was putting pressure on me to go back to full-time work but I didn’t want to go back because I do believe that looking after young children is an incredibly important job and I did go back to work for one month, but I resigned in 1996 because I would prefer to stay home and look after our daughter.
So his next sentence was, “it had been intended that the wife would return to work when both children were in full-time schooling”? --- That is correct.
But as events turned out that didn’t occur? --- Well, the children are now in full-time schooling and I always wanted to be a teacher for a long time, but I wasn’t able to take that opportunity when I was young because I was very ill in my late teen years and I now am in a position to now take that opportunity which I really, really want to do because it’s something I’ve wanted to do for a long time.
40. In cross examination of the wife the following passage occurred:
You have now enrolled at university to do a teaching course because that’s what you’ve always wanted to do? --- Yes
You expect your husband to pay for you to do that course? --- No.
Yes, you do, because you’re seeking spouse maintenance from him?--- I have two children to support. I can’t rely on [the husband]’s financial support. I also have to look out for my own future and my own needs for when I grow old and get greyer. If you wish to look at my application for the teaching position, I was very ill in my late teens. Although I matriculated I never applied for any scholarships which I deeply regretted. I have a base degree in areas that I’m particularly interested in and I now have the opportunity to take up something that I dearly have always wanted to do. It’s nothing to do with [the husband] and his support. It’s for me to be independent of [the husband]; to provide certainty for my own financial future.
But [the wife], you could do that now. You could go back to work now? --- I wouldn’t – I don’t want to go back into the public service.
You don’t want to? --- Because of the embarrassment of sitting here and all the horrible things I’ve had to endure over the last three years. I couldn’t stand the pain and the embarrassment. I want to move on away from the public service.
But, [the wife], you haven’t been in the public service since 1996? --- The public service people don’t change too much. The (sic) roll over slowly. I want a fresh start away from the public service. I think I have a right and I have an opportunity to make my life decisions myself. I want to be independent and I want to do something that I enjoy.
We understand that, [the wife], that you have a right to do that, but it is not a right that you should be seeking if you’re requiring your husband to pay for you to be able to do that? --- He’s my former husband and I am making a go at finding a job, unlike him who’s not trying to do anything to support his family. I am making long-term plans.
You’re suggesting [the wife] that [the husband] isn’t supporting his family. Are you seriously suggesting that? --- [the husband] has a workers compensation claim and he’s told me he no longer wishes to work and I feel that that has put me in a situation where I need to create financial certainty in my own life and for the children.
Why don’t you get a job, [the wife]? --- I want to get a job that is well paid that I can actually be able to put away for the children’s future and given them opportunities if they wish to go to tertiary education and provide for them.
But, [the wife], you told us yesterday that you could get $55,000 if you went back to the public service straightaway? --- No, I was at a level 7 when I was in the public service. Since I have been out of work that long, my skills are rusty. I have ability. I am motivated and I wish to improve myself so I can have a decent salary to provide for the children and support myself in my old age.
You can do that by going back into the public service now? --- I don’t want to sit in an office.
You don’t want to sit in an office? --- Why should I if I have a choice of doing something that I really love and enjoy and I could make a worthwhile contribution to society?
That would be fine, but you’re asking your husband to support you - - - ? --- No, I’m not asking him.
- - - during that period - - - ? --- No.’
41. There was a further passage during cross examination:
`[the wife], you’ve enrolled for a 25-hour course per week? --- I can’t exactly recall the timetable.
That’s what you said yesterday? --- I said “approximately” because they haven’t got things quite settled, because there’s a lot of interrelation between going into schools per week and also school contact and there’s one part of the course where the lecturer is in Singapore and hasn’t come back, so that - - -
Whether it’s 20 hours or 25, it’s roughly about that. Is that correct? --- That’s what I said yesterday.
If in fact you worked for that period of time you would be able to earn a reasonable income? --- That is for a short period of time and that is a short-term option. I’m trying to manage the future for the long-term. I don’t want to take short-term options.
So you’re going to go full-time into teaching, are you, after two years? --- That is correct.
How much will you earn then as a first-year teacher? --- A minimum of 45; it may be greater.
So you could actually earn more if you went back to the public service now? --- No, because I have been out of the public service I would not automatically go back to the same level.
Yes, but given your skills and given your experience and the fact that you’re very talented and what you do, you would quickly get back onto that salary, wouldn’t you, [the wife]? --- I don’t know. I haven’t inquired.
You haven’t inquired and you haven’t looked for any employment, have you? --- I did actually go down. Several years ago I went to Centrelink.
I’m talking about recently? --- I have been to Centrelink several times and I’ve spoken to the Jet employment people and I always went to the university to look at their careers advice.
When did you do this – each one. When did you go to Centrelink, because you’d go there regularly, wouldn’t you? --- No, and that’s derogatory. Don’t please, do that. I want to have long-term financial security. I don’t want to stuck in part-time, temporary clerical work. In fact there was a recent article in the Mercury saying that this sort of employment is decreasing and that these salaries are not very good.
Have you been to any agencies to register for employment? --- I was going to stay home and look after my children until they were in - - -
Answer the question, please? --- I have no intention of doing that because - - -
Yes or no? --- I said no, because I want to get a - - -
I don’t want to know? --- Of course you don’t want to know, because - - -
You’ve said, “No”, you haven’t been? --- You don’t want me to have a fulfilling long-term future. Your client is trying to push me into temporary, clerical work which will not be very satisfactory and not will it draw a very good salary.
You need to be retrained. It’s going to take you two years? --- Well, that’s a very short period of time.
If you went back into the public service you could be retrained there, couldn’t you? --- I don’t want to go back into the public service.
No, that’s your choice. You’ve chosen - - - ? --- Yes.
You’ve chosen not to? --- I chose to be able to provide for the children.
You’ve chosen to go to university for two years to get a second degree because you want to? --- Well, I think it provides a long-term financial security for myself and for my children, as my former spouse is unreliable in that area.’
42. Mr [R], the manager of D P and T Recruitment, filed an affidavit and gave evidence although he had not met the wife. He indicated that from her qualifications she appeared to be well qualified, had a wide range of experience, was highly computer skilled and had obtained senior levels of responsibility. He assumed that she would wish to limit her hours to between 9 am and 3 pm and that she may wish to be available for her children through some periods of the school holidays. He noted that many applicants sought those limited hours and there was competition for such requirements but with her multi skilled background she would be a stronger contender than some. He noted that the overriding factors in securing work are perseverance, initiative and a genuine desire which would be recognised. Mr [R] was cross-examined by counsel for the wife. He acknowledged that she would require some re-training and that in the last five to six years there has been rapid movement in computer technology. He indicated that there are organisations providing specific learning packages which might involve two or three hundred hours training. Counsel contended that the duration of such a course would be about 10 weeks.
43. The trial Judge clearly understood that s 72 of the Act created a threshold test to be overcome by the wife, namely that she was unable to support herself adequately for one of the reasons set out in the Act. The trial Judge was aware that the wife had the responsibility for the care of the children and would be unlikely to engage in full-time employment. He was aware that she would require some re-training and he was aware that it was her desire to obtain teaching qualifications rather than to return to work in the public service. His Honour was not satisfied however, that the wife had established that she was unable to maintain herself, because she had made no attempt to obtain employment and eschewed seeking employment that, on the balance of probabilities, would have been available to her.
44. Section 72 requires that a party establish that they are unable to support themselves, not that they are unable to support themselves in a particular area of endeavour as opposed to another which may be available to them. In this case the wife’s own evidence enabled his Honour to conclude that she had not sought and did not want the kind of work that she had done previously, albeit that such work may have been available to her with a relatively short period of training. The trial Judge was also aware that the husband had been paying spousal maintenance of $215 per week since separation in July 2000, a period of over four years and that during that period she had made no attempts to obtain employment.
45. Although the written submissions in support of Ground 2 assert that the trial Judge erred, inter alia, because he did not even consider “time limited” support, to enable her to retrain, the wife’s case at trial was not presented on the basis that his Honour should order maintenance for the duration of the teacher training course she had just commenced. In fact counsel put the wife’s case as follows:
`….I’d ask the court to find that it will be difficult for her to obtain work in the future. She has not worked since 1996. She has a hope and perhaps a dream that she will teach and she’s doing what she can to meet that long term need but on income levels alone I’ve asked the court to find that it will be many years and perhaps never before [the wife] can ever enjoy the income which even on a worst case is available and will remain available to [the husband].’
46. This passage demonstrates in our view that the wife’s case, as put to the trial Judge, was not that the wife required maintenance for a limited period during which she would retrain, but that she had an ongoing need for maintenance for an indeterminate period, perhaps forever. This is consistent with her application. In our view on the case presented to him, it was open to the trial Judge to conclude that the wife had made no effort to seek employment since separation and that she had deliberately eschewed seeking re-employment in the public service or in some other form of clerical work because she did not want that work and preferred to become a teacher. We are satisfied that the wife’s answers to questions in cross-examination that we have set out, demonstrate that the considerations the Full Court in Mitchell (supra) was concerned with, such as lack of experience, being out of the skilled workforce for years and high unemployment rates, was not apposite in this case where there was evidence that the wife had refused to contemplate or enquire into part time work commensurate with her past experience, and which on a reasonable enquiry, it appeared on the evidence, would be available to her albeit after a relatively short period of re-training.
47. We observe that in paragraph 35 of her Affidavit constituting her evidence-in-chief at hearing, the wife said:-
`I intend to use the time when I am not working in order to improve my qualifications. I have enrolled to undertake a post graduate Bachelor of Teaching course in 2004, a two (2) year degree.’
48. The affidavit was sworn on 5 November 2003. The reasonable inference to be drawn is that the wife’s two year course would take place during 2004 and conclude at the end of 2005. The hearing took place in March 2004 and at that time the wife had commenced her course. Judgment was delivered on 26 April 2005, and as the trial Judge noted no application had been made to reopen the proceedings. Again in our view the only reasonable inference open in the circumstances was that the wife would conclude her two year course at the end of 2005 and be able to re-enter the workforce.
49. Nevertheless it was still incumbent upon the trial Judge to consider the second part of the enquiry under s 72 as to whether, given his findings that the wife could return to employment, such employment that might be reasonably open to her would enable her to support herself “adequately” having regard to a standard of living reasonable in all the circumstances. A significant part of Counsel’s submissions were directed to the contention that the trial judge did not sufficiently explore this aspect of s 72.
50. In considering whether the wife, had she returned to some form of clerical employment, could adequately maintain herself having regard to a reasonable standard of living and other factors relevant to the case, his Honour was correct in finding that the wife had the onus of satisfying the provisions of s 72. The difficulty for the wife was that she chose to run her case on the basis that she was not prepared to return to a clerical position and therefore she adduced no evidence of any income that might be available to her from that source. Again, the passage of cross-examination already referred to is apposite:-
`How much will you earn then as a first-year teacher?--- A minimum of 45; it may be greater.
So you could actually earn more if you went back to the public service now? --- No, because I have been out of the public service I would not automatically go back at the same level.
Yes, but given your skills and given your experience and the fact that you’re very talented and what you do, you would quickly get back onto that salary, wouldn’t you, [the wife]?--- I don’t know. I haven’t inquired.’
51. Mr [R] was asked about part-time employment of 25 to 30 hours per week, and his evidence was that the wife could expect to earn $16.50 per hour plus superannuation at the guaranteed level applicable. This equates to approximately $495 per week. Mr [R]’s evidence as to the hourly rate that the wife might expect to receive was not the subject of challenge.
52. At paragraph 106, his Honour dealt with the wife’s financial position and found that the wife was in receipt of a supporting parent’s benefit of $249 per week, tax benefit B of $88 per week and child support of $249 per week, providing her with a weekly income of $569, or nearly $30,000 per annum.
53. The trial Judge found that the wife’s fixed expenditure was $801 per week and her recurring expenses were $488, but that “other necessary commitments” had been grossly exaggerated. His Honour faced the added difficulty that the wife did not present her case by setting out a list of her commitments in light of the orders that she sought from the Court. Her Amended Application sought that the former matrimonial home be granted to her and the mortgage reduced to $60,000. His Honour’s decision provided the wife with the home, but the mortgage was reduced to $90,000 rather than $60,000 as the wife had sought.
54. Counsel for the wife submitted that his Honour erred in that he:
assessed the wife’s income as including her maintenance which was to cease;
included the husband’s child support liability which would also reduce when the husband’s income reduced on 30 June 2004;
failed to record her dependence on Centrelink benefits; and
failed to note that the husband would be relieved of responsibility for the mortgage of $90,000 over the former matrimonial home and that responsibility would fall to the wife.
55. The difficulty for his Honour was that the wife did not lead evidence of what her financial position would be if his Honour made Orders as sought by her, given that even on her case, she would be taking on a liability of $60,000. He noted that the child support would decrease as the husband’s income reduced. Failure to particularise her financial position post- hearing may be explained by the wife’s submission that any shortfall in the wife’s entitlement to property settlement be made up by a cash payment of $135,000 and a percentage split of the Retirements Benefit Fund superannuation or a flagging of that superannuation (reasons for judgment paragraph 113).
56. If the wife had received $135,000 then she would have been able to discharge the mortgage if not in its entirety, then to a substantial degree as well as pay off her credit card loan of $9,300 and car loan of $12,000 (which she set out in her financial statement as being her liabilities). In respect of the credit card loan of $9,300 to Visa, she claimed expenditure of $625 per week, a significant sum that logically the trial Judge might have expected her to discharge to improve her situation. None of these matters were the subject of submissions by the wife’s Counsel to the trial Judge and we can only speculate that this may be because the wife’s case included a payment of $135,000 from which she would have discharged these liabilities or a substantial portion of them. Given the absence of any submissions or evidence as to these matters, and the onus on the wife to satisfy the Court she was unable to maintain herself, it would be unreasonable to expect his Honour to construct an argument in support of the wife’s case for her. What his Honour did find was that the wife had an earning capacity which was unutilised, and which on the evidence seems to have been in the region of about $495 per week. Even allowing for cessation of the husband’s maintenance of $215 per week, and a reduction in child support, his Honour was entitled to conclude that, as he did in paragraph 119 of his Reasons:-
`As a consequence of the orders in the property proceedings she will have the obligation to meet the mortgage instalments and other outgoings on the former matrimonial home but income from part-time employment would off-set the payments being made for those purposes by the husband.’
57. It was also obvious that some of the liabilities could have been reduced by application of some of the cash funds being paid to the wife.
58. Given the specific evidence from Mr [R] and the wife’s refusal to contemplate any employment (other than teaching) and therefore the absence of any evidence as to what it might yield, his Honour was not obliged to speculate on the wife’s income and outgoings absent a cogent case by the wife.
59. In our view given the wife’s evidence and the way her case was conducted, his Honour did not fall into error, in finding that she had not satisfied the threshold test in s 72, namely an inability to support herself without maintenance from the husband.
Ground one – Section 75(2) factors
60. It was submitted by the appellant that the trial Judge was in error in concluding that an adjustment of just 10 per cent should be made in favour of the wife taking into account the wife’s current employment circumstances, income and responsibility for the care of the children.
61. Counsel for the wife contended that the trial Judge had considered the change in the husband’s financial situation, his continued liability for child support and reasonable commitments for his own living expenses but, balancing those with the wife’s primary responsibility for the care of the children, financial circumstances and her “unutilised earning capacity”, he then concluded that “little adjustment is required for any disparity in her financial circumstances” finding that the major factor favouring the wife was that she would be primarily responsible for the care of the children presently aged nine and six for many years. The result of these considerations was an adjustment of 10 per cent in the wife’s favour.
62. Counsel for the wife submitted that the trial Judge’s assessment and balance of the relevant s 75(2) factors did not give significant recognition to all of the factors favouring the wife and was outside the “generous ambit within which reasonable disagreement is possible” (Norbis v Norbis (1986) FLC 91-712 at 75,178; (1986) 161 CLR 513 at 540).
63. Counsel for the wife contended that the trial Judge did not give significant recognition to the following factors:
1.The differential between the parties’ contribution based entitlements and in particular the fact that the husband stood to receive assets to the value of $668,416 and the wife stood to receive assets to a value of $445,611.
2.The husband’s greater income – at the time of trial $99,598 but on the balance of probabilities returning to $61,000 at the end of June 2004.
3.The wife’s dependence on Centrelink benefits.
4.The fact that the wife had not been in paid employment outside the home since 1996.
5.The wife’s lack of immediate earning capacity as a result of her home maker role and her lack of current workforce skills and experience.
6.The wife’s undisputed role as primary caregiver for the two children and her significant and ongoing responsibility for the care of those children for the next 12 years or so.
7.The fact that the property adjustment orders that the trial Judge considered to be just and equitable relieved the husband of the responsibility for the mortgage loan of $90,000 secured over the former matrimonial home and imposed that responsibility upon the wife.
64. The wife’s counsel submitted that the reality of her situation was and is that her earning capacity in the paid workforce was non-existent or at best likely to be modest.
65. Counsel for the wife also submitted that the trial Judge had placed inordinate weight on Mr [R]’s assessment of the wife’s employability and in doing so overlooked or neglected to bring to mind any reasonable view of her capacity to hold and maintain appropriate gainful employment based on her evidence during the trial.
66. Further it was contended that his Honour failed to give due consideration to “the need to protect the party who wishes to continue that parties role as a parent” (s 75(2)(1)). It was further submitted that the wife’s evidence and demeanour during the course of proceedings in the trial demonstrated an anxious, naive and at times eccentric nature and that had his Honour bought this to mind, coupled with the wife’s lack of immediate work skills and experience and responsibility to the children, he ought not to have concluded that she had a capacity for gainful employment at the present time. Thus, it is submitted that on the evidence before the trial Judge the appropriate adjustment having regard to the relevant s 75(2) factors identified should have been in the order of 20 per cent in her favour. Counsel submitted that the range within which the result should fall should have been 17 – 22 per cent.
67. In argument counsel focussed upon the trial Judge’s lack of finding about:
the number of hours the wife could work;
the need for re-training of at least 10 weeks before she would have the skills to enable her to seek employment;
that he assessed her income including spousal maintenance (which is to cease);
he failed to have regard to the fact that the wife would be responsible for the mortgage and how it would be funded; and
how she would balance childcare and work.
68. It was submitted that by giving her an extra $114,000 for the future his Honour failed to have regard to the matters referred to and also ignored the fact that after payment of legal costs she would have only $56,000 to effectively compensate her for the difference in her earning capacity both immediately and for the duration for which she will be responsible for the children.
69. The circumstances in which the Full Court should interfere with a discretionary judgment are well known. In Gronow v Gronow (1979) FLC 90-716; (1979) 144 CLR 513 Stephen J said at FLC 78,848-78,849; CLR 519:
`The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.’
70. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
`The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
71. The issue therefore that falls for determination under this ground is whether his Honour has failed to have adequate regard to relevant matters or given inappropriate weight to other matters, such as to render the result manifestly unjust, or whether the trial Judge has simply exercised his discretion in a manner which, although members of the Full Court might not agree, is within his discretion and beyond appellate interference.
72. In our view, his Honour did fall into error in considering the various factors under s 75(2). First, his Honour failed to have regard to the disparity in the financial position of each of the parties as s 75(2)(b) required him to do. The distribution arrived at by his Honour’s assessment of the contribution of the parties was to put the husband in a position where he would have assets to the value of $668,416 whereas the wife would have access to the value of $445,611. Given the size of the net asset pool the position of the husband was over $200,000 greater than that of the wife and required, in our view, some consideration by the trial Judge. Secondly, we agree with counsel for the wife that his Honour had no regard to the reality of the wife’s position at trial. Although he found she could have worked part time and thus did not meet the criteria for an order for spousal maintenance, the effect of his finding was that she was capable of working part-time but still had the primary responsibility for two young children. The effect of Mr [R]’s evidence as to what the wife could be expected to earn was approximately $495 per week or $25,740 per annum. This is significantly less than the amount that the husband was earning, after accepting that his income would reduce to $61,000 at the end of January 2004. It is not clear to us that his Honour took into account the ongoing spousal maintenance for the wife that she was then receiving, but it is clear that his Honour looked at the child support that the wife was then receiving and noted that the husband’s liability for child support would decrease. Whilst his Honour was satisfied that the husband could provide for the children to the best of his financial capacity, that is not a factor in our view which overcomes the disparity between the earning capacity of the husband and wife.
73. We also agree that his Honour failed to consider how the wife would meet her responsibility for the mortgage of $90,000. Although not argued by counsel in this way, it may be that his Honour fell into error in failing to consider the wife’s application about how the adjustment to her should be paid. His Honour found, on the basis of an equal division of the assets of the parties, that the wife was entitled to a cash adjustment from the husband of $187,336. The wife’s Counsel submitted that any shortfall in her entitlement be made up by a cash payment of $135,000, and a percentage split of the retirement benefit fund superannuation or alternatively, the flagging of that superannuation. His Honour did not accede to that submission and ordered the wife receive a cash payment of only $56,336 with the balance to be made up by the splitting order on the retirement benefit fund superannuation. In our view, his Honour does not appear to have considered the effect of these orders on the wife’s capacity to meet her liabilities in general and the mortgage in particular, from this sum. The wife had also sought that the mortgage be reduced to $60,000, and his Honour had ordered that it be reduced to $90,000. The wife was therefore left with a liability larger than that she had sought, and a cash payment significantly less.
74. His Honour was required as part of his decision to consider the justice and equity of the order. Although his Honour expressed the opinion in paragraph 115 of his judgment that the order he proposed to make would be "a just and equitable order", he appears not to have considered whether the effect of the orders he was making upon the wife's capacity to meet the mortgage, her other liabilities and support was just and equitable. We think that this also led to his Honour into error.
Ground three
75. It is asserted by the appellant that in all the circumstances the wife has not or may not have had a fair trial of her case and/or there has been a miscarriage of justice arising from:
a.The delay of nearly 14 months after the hearing had concluded before judgment was given; and
b.The fact that the decision was made following letters of complaint to the Chief Justice, the Deputy Chief Justice and to Mr Duncan Kerr MHR concerning the delay and followed substantial media and political attention concerning the delay.
76. It was common ground that there was a delay of more than 13 months between the completion of the evidence and the delivery of reasons for judgment by the trial Judge. It was also common ground that correspondence was sent by the Executive Director of the Law Society of Tasmania, on behalf of the parties, and Mr Duncan Kerr MHR on the wife’s behalf, to express concerns to the Chief Justice in relation to the delay of the delivery of the trial Judges reasons for judgment. It was common ground that on the 26 February 2005, reports appeared in the print and subsequently electronic media concerning, amongst other things, the delay by the trial Judge in the delivery of some reasons for judgments in other cases (but with no specific mention of this case). In R v Maxwell (1998) 217 ALR 452, Spigelman CJ, Sperling and Hidden JJ said that “although mere delay is not a ground of appeal, this Court must apply the strictest of scrutiny to a criminal judgment which may have been effected by the inevitably adverse consequences of delay”.
77. Their Honours adopted the analysis of the English Court of Appeal in Goose v Wilson Sandford and Co. (1998) 142 SJLB 92. In Goose the delay was approximately 21 months. Their Lordships said (extracted in Maxwell at 463):
`Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to provide decisive on an appeal unless it can be shown that he failed to use or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge’s advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when it comes to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J denied himself the opportunity of making this further check in any meaningful way.’
78. Having adopted the approach of the English Court of Appeal in Goose, the New South Wales Court of Criminal Appeal in R v Maxwell made the following observations (at 25):
`[C]onsiderations such as these have informed this Court in it’s review of the reasons for judgment given by his Honour, specifically the statements made by his Honour in his judgment of a general assertive character which in the normal course would be accepted as encompassing the detailed consideration of the evidence before him, had been treated by us with a reserve. Indeed, a delay of the order of 10 months is, of itself, such as to require a more comprehensive statement of the relevant evidence than would normally be required, in order to manifest, for the parties and the public, that the delay has not effected the decision.’
79. In [H & H & O] [2001] FamCA 113 the Full Court of the Family Court said `whilst we do not necessarily accept that the same considerations apply to proceedings in this Court as, for compelling reasons, apply to proceedings in Courts of criminal appeal, we have approach the issues in this appeal which involve challenges to the trial Judges findings of fact, drawing of inferences and reaching conclusions, with “the strictest of scrutiny’ (at page 22).
80. In Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568 at 574, the Full Court of the Federal Court (Carr, Emmett and Giles JJ) having referred to Goose v Wilson Sandford and Co. were of the following view:-
`The delay in the present case went beyond the minimum period of ‘operative delay’. In those circumstances, in his reasons for judgment his Honour was required to carry out a detailed consideration i.e. a more comprehensive statement of the relevant evidence (to use the words of the Court of Criminal Appeal in Maxwell) than would normally be required. The purpose of doing so would have been to demonstrate to all concerned that the delay had not affected his decision. This is not a case in which, sitting as an appellate court, it can be assumed that the mere failure to refer to evidence did not mean that it had been overlooked.
In the absence of some special circumstances, where his Honour rejected the evidence of the witness on grounds of lack of credit, one would expect him to explain how, despite the delay, he was well able to recollect the oral testimony.’
81. In Monie v the Commonwealth [2005] NSWCA 25 the New South Wales Court of Appeal referred to the relevant authorities including Goose v Wilson and Stamford and Co; Expectation Pty Ltd v PRD Realty Pty Ltd and R v Maxwell and noted that Australian Courts had developed the approach to be taken on appeal. At paragraph 43 they summarised the approach taken as follows:
`In a series of cases, stemming largely from a decision of the English Court of Appeal in Goose v Wilson Sandford & Co (1998) 142 SJLB 92, the Australian Courts have dealt with the consequences of a judge’s delay in giving judgment. In particular, there has been one decision of the Court of Criminal Appeal (Regina v Maxwell unreported, 23 December 1998), one of this Court (Hadid v Redpath [2002] NSWCA 16), and one of the Full Court of the Federal Court (Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568) which have developed the approach to be taken on appeal. That approach may be stated as follows:
(1) Appellate courts usually give deference to findings of fact made by a trial judge on the basis that the judge has had the advantage, not open to the appellate court, of having seen and heard the witnesses give evidence and of observing their demeanour when they do so.
(2) That advantage will ordinarily prove decisive on appeal unless it can be shown that the trial judge either failed to use that advantage or misused it. Statements made by the trial judge of a general assertive character — such as that the witness’s demeanour when giving the particular evidence cast doubt on the truth of that evidence — can usually be accepted as encompassing a sufficient consideration of the evidence.
(3) Moreover, the appellate court is entitled in such cases to assume that the mere failure of the trial judge to refer to evidence relevant to a particular finding does not mean that such evidence has been overlooked or that some other form of error has occurred.
(4) However, incontrovertible facts of the case or uncontested testimony may nevertheless demonstrate error in the findings of the trial judge notwithstanding that they are stated to be based on credibility findings.
(5) But the trial judge’s advantage does weaken with time. Where there is a significant delay between seeing and hearing the witnesses and the delivery of judgment, the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made. If, for example, the judge is able to explain in the judgment given that contemporaneous notes had been made of the impressions formed of the evidence given by the relevant witnesses, confidence in the decision given would no doubt be maintained despite the delay.
(6) If, after such delay, the trial judge has not given specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance in the appeal, and where there does not exist any indication in the transcript or the evidence which clearly explains the judge’s finding, the appellate court is obliged to give careful scrutiny and consideration to those findings. Where there has been significant delay, there can be no assumptions that statements of a general assertive character made by the judge are based on a sufficient consideration of the evidence, or that evidence relevant to a particular finding not considered in the judgment has not been overlooked by the judge in making that finding where that evidence, if accepted, could have supported a different finding.
(7) The consequences of significant delay in delivering judgment are not limited to the judge’s failure to use the advantage given to a trial judge of having seen and heard the witnesses give evidence and of observing their demeanour when they do so. With the emphasis placed for some years now on the need for cases to be resolved expeditiously — not only for the benefit of the parties to that particular case but also for the benefit of the parties in other cases waiting to be heard — the judge who has delayed, for whatever reason, giving judgment in the particular case will inevitably be subjected to considerable pressure to complete and deliver the judgment.
(8) That pressure will come in large part from the conscientious judge him or herself because of a recognition that the case needs to be resolved expeditiously. In many cases, the pressure will come from the Chief Judge who has administrative responsibility for the Division to which the judge is assigned, whether or not a complaint has been made concerning that case. In some cases, it will come from one or other or both of the parties to the case itself. In a few cases, it will come from the media, through either a party’s complaint or the public interest in the case itself. All of this pressure has an insidious effect on the judge, in that it may well lead to a subconscious effect on the judge’s decision-making process — not necessarily one of bias but rather on the speed with which, in the end, the decision has to be reached and on the degree of attention which the judge is able to give to the often difficult issues to be decided within that time. A decision which is rushed because of the pressure placed on the judge to apply him or herself to writing the judgment speedily after a significant delay may well cause the judge to overlook matters which should have been given more careful and unrushed consideration.
(9) And, finally, the long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility that such an apprehension may be held by the losing party requires the judge to deal with that party’s arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning.’
82. Hunt AJA went on to state, with Giles and Bryson JJA concurring (at paragraph 44):-
`It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given. Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial. Delay may assist an appellant in establishing such error because, as the approach identified by the Full Federal Court demonstrates, the inference will more readily be drawn that a trial judge’s failure to deal in a significantly delayed judgment with particular matters on which the appellant relied in contradiction of the findings made in that judgment resulted from those matters being overlooked by the judge — either because of the time which has passed or because of the pressure on the judge in the end to complete the judgment. In Boodhoo v Attorney General of Trinidad and Tobago [2004] 1 WLR 1689 at [11], the Privy Council acknowledged that the delay in giving the decision may adversely affect its quality to such an extent that it cannot be allowed to stand. That is what must be shown in order to demonstrate error resulting from delay which warrants either a reversal or a new trial.’
83. In the recent judgment of NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 the High Court considered whether a decision of the Refugee Review Tribunal to refuse the appellant’s application for protection visas under the Migration Act 1958, involved a jurisdictional error in the form of a denial of procedural fairness. The alleged denial of procedural fairness was premised in a significant delay between application and determination. The application to the Tribunal to review the delegate’s decision was made on 5 June 1997. Oral hearings proceeded in May 1998 and December 2001, with the Tribunal rendering their decision on 14 January 2003. The appeal was ultimately allowed by a majority of the Court[1]. A member of that majority, Kirby J, examined the nature of delay in the context of an appeal from a discretionary judgment at paragraph 68:-
`The general unwillingness of the courts, conducting an appeal or judicial review, to go behind findings as to credibility of parties or witnesses is a well-known feature of all litigation where a determination is challenged after a first instance decision. This fact reposes a great responsibility upon primary decision-makers. Respect for their decisions comes at a price. That price is the reasonably prompt determination of contested questions of credibility whilst memories of impression are fresh and true reasons can be given for preferring some, and rejecting other, evidence.’ [Footnotes omitted]
[1] Separate judgments were delivered by Gleeson CJ, Gummow, Kirby, and Hayne JJ. Callinan and Heydon JJ delivered a joint judgment. Gummow and Hayne JJ dissenting.
84. His Honour went on to summarise the relevance of delay at paragraph 85:-
`The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involved no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, whilst regrettable, might not affect the acceptability or validity of what has been done. The court conducting the appeal or judicial review could judge that matter for itself. Where, however, the matter for decision involves an assessment of the truthfulness of a party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay, especially protracted delay, in the provision of a reasoned decision may cast doubt on the validity of that decision. Commonly, this is explained by reference to the need to ensure that "the trier of fact can recall the testimony and the demeanour of the witnesses as well as the dynamics of the trial”.’ [Footnote omitted]
85. The appellant’s argument supporting this ground is couched in broad terms. At 3.3 of the appellant’s Summary of Argument she states:
`[I]t is submitted that the delay of over 13 months in the delivery of reasons for judgment was not satisfactorily explained by the Judge and that, in all the circumstances, the delay was inordinate. The wife’s submits that, in consequence, the trial Judge’s findings on the contested issues between the husband and wife were unsafe and unsatisfactory. Given the significant delay, it is submitted that it was incumbent upon the trial Judge to give detailed reasons referring to the parties [sic] evidence and observations of their demeanour during the trial. In relation to one specific issue, the trial Judge expressed his preference for the evidence the husband to that of the wife with neither explanation nor further comment.’ (Paragraph 70 of the Reasons for Judgment).
86. Noting that the trial Judge referred to criticisms levelled at the Court in relation to the conduct of the proceedings, the wife submitted that the trial Judge:
1. failed to use or palpably misused the advantage he had in properly considering the evidence given by the parties and on their behalf; and/or
2. the trial Judge had forgotten and/or had no clear recollection or impression of the demeanour of the wife or the husband by the time he came to formulate his reasons for judgment and that as a result the wife had or may not have had a fair trial if there had been a miscarriage of justice.
87. It is apparent from these submissions that the only specific matter on which the trial Judge had expressed a preference for the evidence of one party over the other was at paragraph 70 of the reasons for judgment. Paragraph 70 reads as follows: `as to the specific items of furniture that are the subject of the husband’s application, I accept his evidence to that of the wife and I will make and order that those items be delivered up to the husband’.
88. It is notable that that order is not the subject to this appeal.
89. We are conscious of the need to give `careful scrutiny and consideration’ to the findings of the trial Judge. However, there are no statements of a general assertive character made by the trial Judge regarding the credit of the parties in general or on any particular issue, and the appellant did not assert that evidence relevant to a particular finding had not been considered in the judgment. Nor in this case, did the demeanour of any witness when giving evidence play any relevant part.
90. Counsel for the appellant conceded that this was not a trial where findings of credit were an important feature and that the appellate case was `weak’ on the connection between the Judge’s findings and the advantage he had in seeing and hearing the witnesses.
91. We have carefully considered whether the pressure referred to in Monie v Commonwealth (and of which the trial Judge was aware) to bring the matter to conclusion has resulted in his Honour overlooking matters which should have been given more careful and unrushed consideration. Significantly, the appellant did not direct argument to any considerations that the trial Judge had overlooked.
92. Finally, we have considered whether the delay might give rise to a reasonable apprehension by the appellant that the Judge delayed giving judgment because he had been unable to grapple adequately with the issues and in the end had become attracted to the decision which was the easiest to make. Again, we were not directed by counsel for the appellant to any matter which would have demonstrated that his Honour had taken that course in this case. Having considered the reasons for judgment carefully and with the scrutiny required when there is a delay between the conclusion of the hearing and the reasons for judgment, we are satisfied that the trial Judge dealt with the arguments in such a way as to demonstrate that the arguments had been understood and that their rejection is based on a clear and rational process of reasoning.
93. The appellant did not submit, other than in a general way, that the trial Judge’s reasons were not clear and rational or clearly articulated and we find no support for that general submission. In this case his Honour gave reasons for the findings that he made with reference to the evidence and a “careful scrutiny” does not indicate that the trial Judge had misused the advantage that he had as trial Judge or that he had forgotten or forsaken his impression of the demeanour of the wife or husband by the time he delivered his judgment. Specifically, it is clear that consideration of their demeanour was not in fact integral to his judgment.
94. Whilst careful scrutiny is called for by the Appellate Court, subject to that scrutiny, as the Court of Criminal Appeal said in R v Maxwell, and a majority of the High Court said in NAIS v. Minister for Immigration and Multicultural and Indigenous Affairs, delay is not itself a ground of appeal.
95. The delay though regrettable in this case did not deprive the trial Judge of the advantage denied to this Court, of having seen and heard witnesses, form the impressions in relation to their evidence and last being prima-facie, the best place to decide the issue before him. Nothing to which would have been referred persuades us that the “inevitably adverse consequences of delay” vitiate any finding of fact made by the trial Judge. In this case most of the evidence relied on by the trial Judge came from the wife herself and not by preferring the evidence of one witness over the other. For those reasons we do not find that ground three to have substance.
Re-exercise of the Discretion
96. Having determined that the wife has been successful on ground two, it is necessary for us to consider what orders should be made. As this ground relates only to the exercise of the trial Judge’s discretion, there was no challenge to his Honour’s findings on contribution and neither party sought to admit any further evidence (see Allesch v Maunz (2000) FLC 93-033: (2000) 173 ALR 648) we see no impediment to re-exercising the trial judge’s discretion.
97. We consider in the circumstances of this case that an appropriate adjustment in favour of the wife having regard to the differential in their asset position, after contributions were considered, the wife’s limited part-time earning capacity, her responsibility for two young children and the requirement to meet the mortgage and other expenses, that an adjustment of 15 percent in all of the circumstances would be appropriate. That would result in a division of the proceeds as to 55 percent to the wife, and 45 percent to the husband. We are conscious that the adjustment is a modest one , but also aware of what was said by the Full Court in Clauson and Clauson (1995) FLC 92-595 at p 81,911:
‘There is we think at times a tendency to assess s 75(2) factors in percentage terms without considering it’s real impact, and we think there is a legitimacy in the views expressed in more recent times that the court has tended to operate in this area within artificially delineated boundaries’.
98. The asset pool is $1,114,028 entitling the wife to receive $612,715. As she presently holds assets worth $369,678 (including superannuation of $82,800) she should receive from the husband an adjustment of $243,037. No submissions by the Respondent took issue with the Order made by his Honour for a splittable payment of the superannuation interest of the Husband using a base amount of $131,000, so if that order remains in place the cash adjustment to the wife should therefore be $112,000. That is the amount sought by the wife in her Notice of Appeal.
99. Consequent upon the other orders made by his Honour which we would leave in place, the wife will be required to service a mortgage of $90,000. She would have $112,000 to pay off her credit card loan, car loan, legal fees and reduce the mortgage. That, in our view, would give her the opportunity to reduce her liabilities to a manageable amount, to enable her to retain the home for the benefit of the children and her capacity to work part-time whilst the children still require her attention.
As far as the husband is concerned, his position, exclusive of superannuation will be as follows:
Assets
[N] $650,000
Husband’s interest in [H] $2,000
Husband’s vehicle $1,000
TOTAL ASSETS $653,000
Liabilities
Mortgage on [N] $267,925
Credit Card / Overdraft $8,647
Amount payable to the Intervenor $62,000
TOTAL LIABILITIES $338,572
To be added to the liabilities identified above is the sum of $112,000 payable to the wife, resulting in total liabilities of $450,572 giving him net realisable assets of $202,428. In addition he has superannuation. Although there is no other obvious fund from which the husband could pay the wife, it would appear that he could either increase his borrowings or sell his property. It is clear that the husband will have substantial debt as a result of the amount payable to the wife and the intervenor. Nevertheless the husband’s property is a valuable one and he has the option of acquiring a smaller property with less debt and has an income significantly greater than the wife’s, even allowing for his child support obligations.
It is also the case that whilst the wife has the benefit of an Order in respect of the husband’s superannuation interest in the Retirement Benefits Fund with a base amount of $131,000, the husband retains the greater share in the superannuation and has the opportunity to improve his superannuation position as a result of his employment.
We consider that having regard to these matters the orders are just and equitable.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Full Court.
Associate:
Date: 22 August 2006
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