M & M

[2005] FamCA 1334

[2005] FamCA 1334

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. NA51 of 2005

(No. BRM11182 of 2003)

BETWEEN:
  M
  Appellant Wife

AND:
  M
  Respondent Husband

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing:              14 November 2005

Date of Judgment:            18 November 2005

Appearances:  Mr Smart of Counsel, instructed by Jensens, Solicitors, appeared on behalf of the Applicant Wife

Mr Tester, solicitor, instructed by Tester & Associates, Solicitors, appeared on behalf of the Respondent Husband

M and M       NA51 of 2005 (BRM11182 of 2003)
Heard:           14 November 2005
Delivered:     18 November 2005

APPEAL FROM FEDERAL MAGISTRATES COURT – PROPERTY SETTLEMENT – SECTION 75(2) FACTORS – FINANCIAL RESOURCES – LONG SERVICE LEAVE – The parties were married for just under 10 years – Orders for property settlement were made by the Federal Magistrates Court – The trial magistrate made an adjustment under s 75(2) factors of 7.5% in favour of the wife on the basis of the primary child care burden – Wife argued that the husband’s long service leave entitlement which she valued at approximately $54,000, taking no account of taxation liability, should have been included as a financial resource under s 75(2) factors –Taking account of the uncertainty as to the manner in which leave entitlements might be taken by the husband, lack of evidence that he would receive any financial advantage therefrom and the extent to which the entitlement accrued outside the period of cohabitation of the parties, it was not a matter which required mention.

ERROR OF FACT – The wife argued the trial Magistrate made an error of fact in relation to the parties’ assets by failing to include trade-in value of a motor vehicle in the husband’s possession in the property pool – At trial the husband conceded  its inclusion in property pool – The wife failed to include the value of the husband’s car in the agreed asset values table she submitted to the Federal Magistrate – The value of the wife’s car was also not included in the agreed asset table submitted – The wife cannot argue that the Magistrate ought to have included the trade-in value of the husband’s car.

SECTION 75(2) FACTORS – The wife argued that the learned Magistrate’s assessment of section 75(2) factors was manifestly inadequate – The major factor favouring weighting to the wife, namely the impact of ongoing child care, was to be set against the clear disadvantage to the husband arising from the discrepancy in the ages of the parties with its impact on anticipated working life – The Federal Magistrate’s assessment of the section 75(2) factors was not manifestly inadequate or unjust or inequitable.

Garside and Young [2001] FamCA 214

Gleeson and Gleeson [2004] FamCA 1179

Gould and Gould (1996) FLC 92-657

Harrison and Harrison (1996) FLC 92-682

Tomasetti and Tomasetti [2000] FamCA 314

Appeal dismissed.  Parties at liberty to make submissions within 21 days.

1. In June 2005 Federal Magistrate Jarrett made orders determining a property settlement application between the parties. The essential conclusions underpinning those orders were that, based on contributions alone, the wife be entitled to 40% of the net assets of the parties as calculated ($545,000 approximately), but that after considering factors relevant under section 75(2) of the Family Law Act 1975 an adjustment in the wife’s favour of 7.5% be made. The end result was that, if, as she did, the wife wished to retain the former matrimonial home subject to mortgage, she pay the husband $5,300.

2. The wife has appealed and these reasons relate to the disposition of that appeal.

3. The wife seeks that, rather than paying the husband $5,300, a flagging order be placed against his superannuation, that he pay her about $35,600 when he becomes entitled to superannuation.  In short, she wishes to receive 7.5% more than the Federal Magistrate awarded her.

4. There is no challenge to the trial Magistrate’s assessment of contribution, but there are challenges, on several bases, to his assessment of section 75(2) factors. It is also asserted that there was a mistake of fact in the compilation of the table of assets, by the omission of a trade-in value received by the husband for a motor vehicle.

5. I will return to examination of the arguments on appeal and conclusions flowing therefrom after a short background and summary of the reasons of the Federal Magistrate.

Short background and summary of the Federal Magistrate’s reasons

1. Under this heading, facts not otherwise attributed are taken from the reasons of the Federal Magistrate.

2. The parties cohabited for some 13 years, commencing at the end of 1988.  They married in April 1992.  Final separation occurred in January 2002.  They have two children, J born in November 1994 and A born in January 1999.

3. The husband was 58 years of age at trial, the wife 34 years.  Both were school teachers.  The wife had qualified during the marriage and commenced work as a teacher in about July 1993.  Subject, in the case of the wife, to time associated with the births of the children, both parties worked full-time throughout the relationship.

4. As to matters after separation, the learned Magistrate said:

   “6.    At separation, the husband left the former matrimonial home and after a short period residing in a caravan, took up rented accommodation.  Two months later he formed a new relationship.  He continues in that relationship.

   7.     The wife has had the care of the children since separation.  They have had contact with the father from time to time.…”

5. His Honour found the assets of the parties to be as follows:

   “Assets:
   [Northern NSW] property  $387,000
   Furniture (H)  $2000
   Furniture (W)  $10,000
   Campervan (H)  $1000
   Superannuation (W)  $43,000
   Superannuation (H)  $284,330        $727,330

   Liabilities:
   Mortgage on [Northern NSW] property          $175,500
   Buyers Edge credit card  $1450
   Visacard account  $4660        $181,610    

   Nett assets:  $545,720”

6. Following discussion of the assets, his Honour turned to contributions.  He recorded the husband receiving, in the first 12 months of the relationship between the parties, some $66,000 approximately from the property settlement with his first wife and as bringing in his membership of the superannuation fund, which had commenced accumulating when he began employment as a teacher in 1977.  The wife had no property at the commencement of the relationship.

7. His Honour discussed some other contributions, including a gift of $11,000 from the husband’s mother in 1997, before reaching his conclusion about the appropriate apportionment based on contributions, namely 60/40 to the husband, in relation to which he mentioned, in particular, the contributions of the husband at the outset, by way of superannuation and the property settlement with his first wife.

8. As to section 75(2) factors, the learned Magistrate noted that both parties were in good health. The husband was 20 years older than the wife and submissions on the husband’s behalf asserted that he would retire within two years of trial. This the learned Magistrate did not accept the husband would necessarily do. His Honour noted the husband’s salary at $73,300 approximately, before tax and the wife’s at $64,000 per annum, but that the wife had:

   “…another 26 or 27 years (or longer if she wishes to work beyond the age of 60) in which she can earn and accumulate superannuation.…”

9. His Honour noted the primary child care burden falling on the wife but recorded his satisfaction that the husband would continue to pay child support until his retirement, as assessed by the Child Support Agency.  As to the period after retirement, he said:

   “25.  …If and when the husband retires, however, his financial support for the children (who are still young) will diminish.  Thus, a large a proportion of the financial burden for the children will fall upon the wife.”

10. His Honour noted that the husband and his new partner, also a teacher, had entered into a binding financial agreement.  His Honour was:

    “…satisfied that the husband derived some minor financial benefit from his relationship with his new partner but that it is their intention to keep their financial affairs separate.”

11. His Honour then said:

    “28.  Taking the above matters into account, I am satisfied that there ought to be an adjustment of 7.5% of the nett property (approximately $40,900) in favour of the wife, primarily because of the age of the children and the fact that the husband will probably retire, perhaps not in two years time, but before the children are independent, and his financial support for them will significantly decrease.  Whilst it is true to say that the longevity of the husband's earning capacity is much less than that of the wife, the husband will nonetheless, be left with a significant portion of the parties' property.  The wife's commitments for the children will continue for at least another 12 years.”

12. Finally, his Honour, under the heading “Just and equitable” addressed the consequences of his proposed orders on the composition of the assets which each party would retain or receive and said:

    “31.  …On the above figures, the wife will have to pay to the husband $5,300.  I am satisfied that the wife has capacity to do that by raising those funds against security of the former matrimonial home, if necessary.

    32.    Orders in those terms will preserve for the husband his superannuation which will provide him with a capital sum in a few years time.…”

Arguments on appeal

1. I have largely followed the grouping of grounds in the written summary of counsel for the wife, although I have considered together grounds relating to the broader criticism of the section 75(2) adjustment.

1. Grounds 1 and 6

   “1.    The Magistrate omitted identifying the financial resources of the husband being $54,000, at the time of the hearing.

   …

   6.     The Magistrate erred in not taking into account the financial resources being the accumulated long service leave of the husband when assessing the matters to be taken into account pursuant to Section 75(2)(b) and should have provided a further 5% adjustment to the wife.”

1. Counsel for the wife acknowledged during the hearing that the sum of $54,000 referred to in ground 1 is not strictly a valuation of the husband’s long service leave entitlements.  It is a proportional calculation derived from the nine months (three-quarters of a year) long leave to which the husband is entitled, being applied to the husband’s gross annual salary as earlier noted.  However, in support of this approach counsel for the wife pointed out that the husband had acknowledged during evidence that the value of long service leave was calculated pro-rata.

2. On the other hand, as counsel for the wife also acknowledged, the calculation of $54,000 took no account of taxation.

3. Further, counsel for the wife acknowledged the evidence that the husband had not made up his mind whether he would take his long leave entitlements as a lump sum or as paid leave and that there was no evidence about what the husband intended to do if he took his long leave as paid leave, in particular, there was no evidence that he intended to turn the period to his financial advantage.

4. Nonetheless, in his written submissions, counsel for the wife said:

   “11.  The caselaw establishes that long service leave is either a financial resource or occasionally property and should be taken into account to greater degrees when the entitlement is payable in the near future.  As to whether long service leave is taken as paid leave or a lump sum the entitlement is still a financial resource.  It retains the same monetary value to the respondent.  If taken as paid leave it simply delays the need for the Respondent to use his superannuation.  See Harrison and Harrison (1996) FLC 92-682 at 83,089 and 83,090, Tomasetti and Tomasetti (2000) Fam CA314: paras 34 to 49 and Gould and Gould (1996) FLC 92-675. paras 77 to 81.

   12.    A reasonable proportion of this financial resource that should be effectively distributed to the Appellant by way of property distribution is 50%.”

5. I do not consider that the authorities quoted support the proposition put in counsel’s submissions.  In Gould and Gould (1996) FLC 92-657 at 82,774 the Full Court of this court said:

   “As a matter of principle, we find it difficult to accept that an entitlement to substantial long service leave may only be regarded as a financial resource when the employee spouse is likely to retire and receive a lump sum payment in lieu of leave taken.  The ability to take a lengthy period off work, but still be paid a normal salary during that period, may constitute a financial resource in at least some circumstances.  In a given case, for example, that ability may enable the relevant party to undertake other temporary employment, pursue a course of further education or retraining, or even commence or develop a business during such paid leave, none of which would otherwise be available to him or her.  In such circumstances such a facility would be likely to give that party an economic advantage which can properly be categorised as a financial resource.

   In this case, however, our attention has not been drawn to any evidence which would lead to a conclusion that the husband would be likely to engage in any of the sorts of activities which we have identified above in the event that he took his 12.4 weeks of accrued long service leave, or that he would even wish to do anything other than merely enjoy a period of leave.  In those circumstances we are unable to conclude that his Honour erred in failing to treat this long service leave entitlement as a financial resource sufficient to call for an adjustment of the parties’ property interests in favour of the wife.” (emphasis added)

6. Counsel for the wife referred to a passage in Harrison, as follows (at 83,090):

   “The husband may, of course, take his entitlement in the form of paid leave, or he may choose to take the cash value of such entitlement in a lump sum on his retirement.  Either way, that entitlement is clearly a resource, and was treated as such by the trial Judge.”

7. That statement in my view, firstly, says as to principle no more than what the Full Court said in Gould and Gould.  Secondly, the statement must be read with what immediately follows, which is:

   “It was submitted that there was no evidence upon which the trial Judge could have made the following finding, which appears on page 38 of the Appeal Book:-

   “When he retires he will be owed a reasonably substantial sum by way of long service leave pursuant to statutory provisions, however that is at least 14 years away.”

   Although at this point in time one could not forecast how the husband may take his entitlement to long service leave, nevertheless, the trial Judge formed the opinion when in fact the husband does retire, he will take out his long service leave by way of a lump sum which he described as “reasonably substantial”.

   In our opinion, that finding was open to the trial Judge, having regard to the evidence and, as she treated the long service leave entitlement as a resource and not property, we are unable to be satisfied that any error of principle has occurred.”(emphasis added)

8. The case is distinguishable from the instant case because the trial Judge was able to make the finding underlined.

9. As to the decision in Tomasetti, a first point of difference from the instant case is that the court was there considering after tax “values” of leave entitlements.  Secondly, the primary issue with which the Full Court was there concerned was not whether the evidence enabled weight to be given to the leave entitlements, but rather the trial Judge’s treatment of the entitlements as “property”.  As the Full Court said at paragraph 46:

   “In this case it was not disputed by counsel for the husband before her Honour that the husband’s leave entitlements should be taken into account as a financial resource.  The issue was whether her Honour should go further and treat them as property.”

10. In short, whether weight should be given to a leave entitlement when considering section 75(2) factors depends on the evidence.

11. True it is that the learned Magistrate did not mention long service leave in his discussion of section 75(2) factors, or elsewhere. It does not necessarily follow that he did not have regard to it. When one takes account of the uncertainty as to the manner in which leave entitlements might be taken by the husband, the lack of evidence that he would receive any financial advantage therefrom and the extent to which the entitlement accrued outside the period of cohabitation of the parties, I am not satisfied that it was a matter which, to achieve sufficiency of reasons, required mention.

12. In Garside & Young [2001] FamCA 214 Lindenmayer, Coleman and Joske JJ said:

    “The adequacy of reasons of the trial Judge depends upon the circumstances of the case, but the reasons will generally be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based.  Not every matter relevant to the reaching of the trial Judge’s conclusion is required to be stated.  Matters essential to reaching that conclusion are.  Matters peripheral to that process are not.  We are able to ascertain the reasoning upon which the trial Judge’s decision is based.  His Honour did not fail to state the matters relevant to the reaching of his conclusion.”

13. In my view, this ground fails.

Ground 2

“2.    The Magistrate omitted the value of the Subaru motor vehicle being $5,500.”

1. The evidence disclosed that the parties had a jointly owned Subaru motor vehicle which the husband took on separation.  The husband’s evidence was that the trade-in value was $5,000, not $5,500, as asserted in the ground of appeal and as had been put to him during cross-examination.

2. When it came to submissions at trial, the legal representative for the husband said:

   “…My friend will probably argue that the $5,000 for the Subaru should be written back into the pool on the basis of Townsend.  I’d probably have trouble arguing against that.  I can’t foreshadow whether there is any.”

3. Shortly after, the Federal Magistrate asked:

   “…So, you concede it goes back into the pool?”

   to which the husband’s legal representative said:

   “It probably will have to, yes.”

4. However, the Federal Magistrate said:

   “There is no evidence about what that money was spent on is there?”

   to which the solicitor answered:

   “No.”

5. Following that, there was discussion about some liabilities that existed at separation and then whether or not there was an agreed asset schedule.  Subsequently, a schedule was handed to the Magistrate which became Exhibit 20.  The exhibit was headed “Agreed values”, but its tender was not accompanied by any suggestions that it was other than an agreed list of assets.  It listed all of the assets ultimately included by the learned Magistrate in the asset table in his reasons.  That exhibit did not include a “writing-back” of the trade-in value of the husband’s car.

6. An item for the wife’s car at $8,000 had a line drawn through it.  As the learned Magistrate said in his discussion of the asset table:

   “11.  …

   c)The wife has a motor vehicle.  The parties agree that it should not be taken into account for the purposes of this hearing.”

7. In these circumstances, I do not believe that the wife can now argue that the Magistrate ought have included the trade-in value of the Subaru

Ground 3

“3.    The Magistrate erred in stating that the children were to reside each alternate weekend with the husband from after school on Thursdays to before school Mondays whereas the orders were from after school on Friday to before school Monday and as a result less responsibility for the care of the children is by the husband.”

1. It is not in contest before me that when, early in his reasons the learned Magistrate had set out the contact orders, he was in error.  What he said was:

   “7.    …Final orders were made by me in December, 2004 and provide for the children to reside with the wife and to have contact with the husband:

   a)each alternate weekend from after school on Thursdays to before school on Monday;

   b)for one night in each week immediately following a non-contact weekend;

   c)one half of all school holidays; and

   d)on other special occasions.”

1. Apparently, when the orders were issued initially, they incorrectly recorded the contact as set out by the Federal Magistrate above, but subsequently amended orders issued correctly setting out contact details.  As indicated in the ground of appeal, the difference in question is that alternate weekend contact started after school Fridays, not Thursdays.

2. On behalf of the wife, the difference numerically over the balance of the infancy of the children was calculated and was an impressive figure. However, several comments might be made about that. Firstly, an extra night in the school week, once a fortnight, seems a relatively minor percentage increase in primary parenting duties. Secondly, in considering any calculations relating to the division of residence and contact, it might be observed that arrangements need not necessarily stay precisely as they were at trial, for the balance of the children’s infancy. Finally, when he set out the particulars of the contact orders (as he understood them to be) in paragraph 7 of his reasons, the learned Magistrate was simply considering the background to the matter. When he came to consider section 75(2) factors, he was obviously and rightly, less concerned with the particulars but more with the broader effect, namely the primary parenting role. As earlier indicated, in considering section 75(2) factors, the learned Magistrate said:

   “25.  By reason of the orders I made with respect to parenting issues, the children reside primarily with the wife and she will be primarily responsible for their care.…”

3. There is not error in that statement.

4. In the circumstances, I do not consider that there is merit in this ground.

Ground 4

“4.    The Magistrate erred in assuming that the child support payments pursuant to the Child Support Agency assessment would remain at $757.67 per month when as a result of the orders made by the Magistrate, that amount reduced to $630 per month.”

1. Counsel for the wife conceded the difficulty in argument of this ground deriving from the circumstance that no further evidence was placed before me in relation to child support assessments after the trial.

2. In any event, it is in my view not established that the learned Magistrate did “assume” that child support would remain at the then current amount per month. What he said in addressing section 75(2) factors was, as earlier seen:

   “25.  …I am satisfied that the husband will continue to pay child support until his retirement at a rate assessed by the Child Support Agency which, is presently set at about $757.67 per month.…” (emphasis added)

3. There is no merit in this ground.

Grounds 5, 7 and 8

“5.    The Magistrate erred in not providing 5% adjustment per child to the mother pursuant to Section 75(2)(c).

…

7.     The total adjustment pursuant to Section 75(2) of 7.5% was not adequate to provide for the needs of the wife caring for the children given the reduced financial support from the husband upon his retirement.

8.     The Order that the wife be entitled to 47.5% of the property is not just and equitable in all the circumstances of the wife’s need to provide for the children of the relationship for the next twelve years.”

1. As to ground 5, in written submissions counsel for the wife said:

   “20.  The caselaw establishes that there should be adjustment for dependent children in the general order of 5% per child to allow the parent to continue to care for the children at a similar standard to before separation.  See Clauson and Clauson (1995) FLC 92-595 at 81,910 and 81,911.”

2. However, during the hearing of the appeal, counsel for the wife acknowledged that there is no principle or formulated guideline that adjustments on account of ongoing parental responsibility for children are calculated on the basis of 5%, or any specified percentage, per child. In the circumstances, this ground really adds nothing to the broader challenge to the assessment of section 75(2) factors.

3. Another narrower issue raised by counsel for the wife, both in his written submissions and more specifically orally, was that there were inferences or findings available to the Federal Magistrate about the husband’s attitude to payment of child support.  In the absence of a ground of appeal challenging either findings of fact made by the learned Magistrate and bearing upon future child support, or asserting that relevant matters were not taken into account, I do not think it open to the wife to challenge the factual basis of the Magistrate’s conclusions about the future of child support, as distinct from the weight given by the learned Magistrate to identified matters.

4. As to the more general challenge to the weight given to section 75(2) factors, taking into account what I have already said about the grounds of appeal challenging the absence of reference to long service leave and the incorrect recording of contact orders, and as to the narrower arguments just discussed, the remaining complaint about the learned Magistrate’s assessment of section 75(2) factors is essentially one that asserts the award was manifestly inadequate.

5. I discussed the principles applicable to appeals in such circumstances in Gleeson and Gleeson [2004] FamCA 1179, as follows:

   “82.  The statements of principle applicable to appeals from discretionary judgments are familiar.  Revisiting those statements, one is struck by the regularity with which the width of discretion of the trial court and the caution that the appeal court should exercise, are stressed.  This is demonstrated by adding emphasis within some of the often quoted statements of principle.  In Bellenden (formerly Satterthwaite  v Satterthwaite) (1948) 1 All,ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach:

   “…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.” (emphasis added)

   83.    In Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Brennan J stated:

   “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.” (emphasis added)

   84.    Kitto J in Australian Coal & Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 at 627 said:

   “…there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.”

   85.    In Gronow & Gronow (1979) 144 CLR 513 at 520, Stephen J said:

   “…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.”

   86.    Finally, in CDJ & VAJ (1998) 197 CLR 172 at 231, touching upon the features applicable to the exercise of discretion in the Family Court, Kirby J said:

   “1.…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.

   2.Such reasons for appellate restraint…have particular relevance to appeals within, and from, the Family Court of Australia.  This is because of the functions and purposes of that Court and the difficulty and evaluative decisions which it often has to make.  The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review.  They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions.” (emphasis added)

   87.    While I think one must be careful not to lose the ordinary sense of a passage by focussing excessively on one or two words, I note that the passages refer to the ambit being wide enough, at a minimum, to contain reasonable disagreement.  In other words, something more even than actual disagreement is required before interference is justified.  Attention is then drawn to the strength of disagreement, to determine whether the appellate court may interfere or not.

   88.    It seems reasonable to imagine that, along the continuum of levels of disagreement, before a conclusion is reached that the result below was plainly wrong or manifestly excessive, the appellate Judge may pass through a stage of uncomfortable uncertainty about the result below, of which uncertainty that result is entitled to the “benefit of the doubt”.

   89.    Reinforcing the proper reluctance of an appellate court to interfere, is the observation that a trial Judge, in exercising a discretion, may have an advantage over the appellate court in reviewing that exercise.  We are, of course, familiar with discussion of the advantage of a trial Judge, particularly in relation to conclusions about the credibility of witnesses.  But there are other reasons for such advantages beyond the opportunity to observe witnesses.

   90.    In Fox v Percy [2003] HCA 22, the High Court considered a decision of the Court of Appeal of the Supreme Court of New South Wales, reversing a judgment of the District Court of that State, following a review by the Court of Appeal of findings of fact based on the trial Judge’s assessment of the credibility of witnesses, but which findings were inconsistent with other incontrovertibly established facts.

   91.    In discussing the powers and functions of the Court of Appeal, Gleeson CJ, Gummow and Kirby JJ said: [para 23]

   “[the appellate court] …must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record.  These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share.  Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial.  Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (emphasis added)

6. In circumstances where the major factor favouring weighting to the wife, namely, the impact of ongoing child care, both financial and non-financial, was to be set against the clear disadvantage to the husband arising from the discrepancy in the ages of the parties with its impact on anticipated working life, I am not satisfied that the assessment of the learned Magistrate for section 75(2) factors was manifestly inadequate or not just and equitable.

Conclusion

1. It follows from the discussion of each of the grounds of appeal that the appeal should be dismissed.

Costs

1. As discussed with the parties during the hearing, I will make directions for applications for costs to be made by way of written submissions.

ORDERS

1. That the appeal be dismissed.

2. That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other party within 21 days of the date hereof.

3. That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other party.

4. That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Brisbane Registry of the Family Court and serving them on the other party within a further 7 days.