Mabb & Mabb - [2020] FamCAFC 18

FAMILY COURT OF AUSTRALIA

MABB & MABB AND ANOR

[2020] FamCAFC 18

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Contributions – Where the husband’s parents transferred a property to the parties jointly – Where the husband challenges her Honour’s finding that the property was intended by his parents to be gifted to both parties – Where the husband contends that property was to be gifted solely to him – Where the benefit of the gift is dependent on the intention of the husband’s parents at the time of transfer – Where the evidentiary onus lies on both parties to establish facts to support their contentions – Where the transfer of land to the parties jointly is a strong indicator of intention – Where the husband’s challenges are not made out – Where her Honour’s conclusion was open on the evidence – Where the husband challenges her Honour’s finding that the husband’s conduct in deliberately refusing to accept offers of sale had a direct financial effect on the parties – Where there is no error in her Honour’s finding or approach – Appeal dismissed.

Family Law Act 1975 (Cth) ss 75(2), 79

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gosper and Gosper (1987) FLC 91-818; [1987] FamCA 43
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Kessey and Kessey (1994) FLC 92-495; [1994] FamCA 162
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Bell, Virginia, AC, “Appellate review of the facts” (2014) 39 Australian Bar Review 132

APPELLANT:

Mr Mabb

RESPONDENT:

Ms Mabb

INTERVENOR:

Ms B Mabb by her Case Guardian Ms Scrivener

FILE NUMBER:

PTW

5491

2016

APPEAL NUMBER:

WEA

2018

DATE DELIVERED:

31 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Perth

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Kent JJ

HEARING DATE:

15 October 2019

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

26 October 2018

LOWER COURT MNC:

[2018] FCWAM 140

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Beckerling

SOLICITOR FOR THE APPELLANT:

Culshaw Miller Lawyers

RESPONDENT:

In person

INTERVENOR:

No appearance

Orders

The appeal WEA 42 of 2018 against the orders of Magistrate Walter made on 26 October 2018 is dismissed.
The Application in an Appeal filed by the appellant on 26 September 2019 is dismissed.
There be no order as to costs.

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

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

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WEA 42 of 2018
File Number: PTW 5491 of 2016

Mr Mabb

Appellant

and

Ms Mabb

Respondent

and

Ms B Mabb by her Case Guardian
Ms Scrivener

Intervenor

REASONS FOR JUDGMENT

Ainslie-Wallace & Aldridge JJ

Mr Mabb (“the husband”) appeals final property settlement orders made by Magistrate Walter on 26 October 2018. The orders effect an alteration of the property interests between the husband and Ms Mabb (“the wife”) together with those of Ms B Mabb (“the husband’s mother”) who appeared by her Case Guardian, Ms Scrivener.
The primary judge made the orders sought by the husband’s mother which, in essence, provided that she receive $300,000 from the sale of a property owned by the parties. There was no challenge to that order. Consequently the husband’s mother took no part in the appeal.
It is helpful to set out some uncontentious facts taken from the primary judge’s decision to give context to the issues argued on the appeal.
The parties began living together in 1997 and married in 1999. They separated in about 2011 or 2012. The husband had four children from previous relationships who lived with the parties from time to time. There are two children of the relationship, X who was born in 2003 and Y who was born in 2006.
The husband’s parents owned a block of land in Town C which they purchased in 1969 and which they later subdivided into several blocks.
In August 2001 the husband’s parents transferred 60 acres of that property to the parties jointly. The wife said, and the primary judge accepted, that the property was given to the parties on the basis that the husband’s parents would eventually build a house on the property and the husband and wife would look after them if they needed it.
In 2003 the husband’s parents built a house on that property in which they lived until July 2017, albeit sometime before then the husband’s father moved to live in supported care.
Her Honour found that the husband’s parents enjoyed a good relationship with the wife and that relationship continued after she and the husband separated.
From 2000 the parties worked to establish a cropping business on the property and in about 2001 wanted to build a retail business which opened in March 2003. The development of the processing business was funded by the parties’ savings of $60,000 and borrowings of $225,000 that were secured by mortgage over the property.
At the time that the processing business commenced the parties both worked in it, although the husband had other paid employment as did the wife. From about 2003, the wife said, and her Honour accepted, that she devoted most of her time to the retail business which was open on the weekends, public holidays and later during school holidays. Her Honour found that although the husband assisted, the bulk of the work in this aspect was done by the wife. The husband undertook other employment such as food deliveries and selling meat to supplement the parties’ income.
Her Honour found that from 2011, the husband commenced full time work away from the processing business and the wife with the assistance of the husband’s mother, did the work in the cropping business and in the retail business.
In 2013 the husband left the property and moved to Queensland for work and the primary judge found that from that time the wife was solely responsible for harvesting the crop with assistance from the husband’s mother and from friends, although her Honour found that the husband returned to the property on six occasions during which he assisted with the processing.
Her Honour found that other than that, the wife ran the processing business, attended to the crop and met all of the financial costs of the business from the income generated by it.
In 2015 the wife obtained a Violence Restraining Order against the husband which was made final for two years after a hearing in June 2016. As a result the wife from that time was solely responsible for the running and upkeep of the processing business. Although the takings from the business were usually sufficient to pay for itself, when unexpected expenses occurred, the wife fell behind in payments.
In February 2016 the crop could not be processed because the husband complained, wrongly, to the government department that the processing business had been moved and the government department prohibited the commencement of production. Later in that same year, the crop could not be harvested because of a fire on the property which meant that there was no power to the property and the crop could not be chilled after picking.
In November 2016 the wife commenced full time employment to assist her in meeting the debts on the processing business and she continued to maintain the property and run the retail business during the weekends.
In January 2017, having been again given permission to commence production by the government department, the wife found that product she had made was contaminated and could not be sold. A further quantity of the product made in an earlier year was also suspected of being adulterated and it too could not be packed.
Her Honour noted at [28] that there were incidents of “sabotage” in 2016 and 2017 at the processing business.
In 2018 the husband caused the business overdraft to be frozen and thus the business fell further into debt and there was no money to maintain the crops and to spray them. Ultimately, starved of funds, the business closed in April 2018.
The parties had been attempting to sell the processing business since 2010. Offers had been made which did not result in a contract for sale. The wife contended that the husband refused to countenance some offers, others were made and later withdrawn for various reasons.
Ultimately, in 2018 a purchaser who had made earlier offers but which had not resulted in a sale, offered $1.35 million. At trial, the husband sought orders which would allow him some time to purchase the property and to pay the wife her assessed entitlement. Orders to that effect were made and the property was sold for $1.35 million. After payment of debts and other associated liabilities, and by agreement, the parties paid $300,000 to the husband’s mother as she had sought from the proceeds of sale, $445,500 was disbursed to the wife and $148,241 paid to the husband. The remaining sum of $173,461.84 is held in a joint account pending the outcome of the appeal.
Her Honour found that during the marriage the parties’ contributions were equal. However she found that since separation the wife had made the overwhelmingly greater contributions. Her Honour found that these contributions were made more difficult by the husband’s actions such as complaining to the local government department which stopped production in 2016 and freezing the bank accounts.
Her Honour therefore assessed the wife’s contributions at 60 per cent.
Taking into account the matters to which s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) relate, her Honour made a further adjustment in the wife’s favour of 10 per cent thus leading to a division of the property as to 70 per cent in the wife’s favour.

Gift to the parties or to the husband?

The husband challenges her Honour’s finding that the transfer of the processing business land to the parties was intended by his parents to be a gift to each of them.
The husband’s case at trial was that the property had been given to him by his parents long before the relationship with the wife commenced. Her Honour rejected this assertion, finding it to be inconsistent with the actions of the husband’s parents in subdividing the land before transferring it to the parties. Further, her Honour found that the husband’s account was inconsistent with him telling the wife that he wanted a portion of the land on which to start a processing business; a conversation that the primary judge found to be consistent with him not being the owner of the land.
Neither, her Honour said, did the husband explain how, if he already owned the land, it was transferred by his parents into the joint names of him and the wife.
It is safe to conclude that her Honour rejected the husband’s account of the ownership of the land.
There is no challenge to these findings.
What then is the proper complexion to be ascribed to the husband’s parents’ gift of the processing business land?
The husband placed significant reliance on Kessey and Kessey (1994) FLC 92-495 (“Kessey”), in particular where the Full Court at 81,149, citing Gosper and Gosper (1987) FLC 91-818 at 76,168 (“Gosper”) said:
The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to Court in such a case to look at the actuality and treat that as a “financial contribution made directly ... on behalf of” the spouse relative…
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage…
(Citations omitted)
The Full Court in Kessey at 81,149 held that these principles:
…should be regarded as being applicable in all cases where there has been an advance of money or property by a parent (or perhaps even by some other relative) of one of the parties, to one or both of the parties (or to their property), and the circumstances of the advance cannot be categorized as a loan, or as any other recognized commercial transaction.
Two important distinctions must be exposed. First, Kessey involved the gift of money which enabled renovations to be done to a property in the sole name of one of the parties. Secondly, there was no evidence of the intention of the donor, who in that case, was the wife’s mother.
In Gosper at 76,167–76,168, Fogarty J said:
Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction. Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been
ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or other or both of the parties, that is an important finding.
Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of the intention of the donor.
(Emphasis added) (Citations omitted)
Thus, whether, as the husband contends, the gift of the land was to benefit him alone, depends on the intention of his parents at the time of its transfer.
It is the husband’s position on appeal that it was for the wife to prove the intention of his parents.
We do not agree. Each party bore an evidentiary onus to establish the facts to support their respective contentions. While it is reasonable to assume, as the Full Court did in Kessey, that the presumed intention of the donor is to advantage the child in the marriage, it is no more than an evidentiary device. Clearly as Fogarty J said in Gosper, that presumption can be rebutted by evidence of the actual intention that accompanied the gift and in this case, the transfer of the land to the parties jointly is a “strong indicator” of intention.
True it is that in this case, there was no direct evidence from the husband’s mother about what she (and her husband) intended when they transferred the land to the parties, her Honour’s conclusion was an inference drawn from the facts and circumstances of the evidence before her Honour which included the fact that the transfer of the property was to both of the parties. There is no error in such an approach and the wife was not obliged to call evidence from the husband’s parents.

On what evidence did her Honour base her finding as to the intention?

Her Honour found that the land was transferred to the parties after they married, although the parties had commenced work on the processing business before the transfer took place.
Her Honour clearly accepted the evidence that at the time of the transfer, the husband’s parents said that they were transferring the land on the basis that the husband and wife would support them if needed (Husband’s affidavit filed 5 April 2018, paragraph 30).
True to their expressed intention, in 2003 the husband’s parents constructed a house on the property in which they lived until the husband’s father could no longer live there independently. The husband’s mother lived there until July 2017.
After the parties separated, the wife continued to support the husband’s parents.
From this evidence, her Honour concluded:
74.I accept the intention of [the husband’s] parents was the property be gifted to both [the husband] and [the wife], and they both receive the benefit of that gift, and both also had the obligation to support the parents if they needed. [The wife] had a good relationship with [the husband’s] parents, which relationship continued after separation, and also after [the husband] vacated the property. Therefore I am satisfied the gift was to both parties.
In argument it was submitted by the husband however, that her Honour’s conclusion was not open on the evidence. The argument devolved into a dissection of her Honour’s reasons, taking each part of the evidence on which her Honour relied and contending that that particular piece does not support the conclusion her Honour reached. This approach misconceives the nature of the process of drawing a conclusion from the evidence. In a case far removed from the instant, but nonetheless of applicable principle, in R v Baden-Clay (2016) 258 CLR 308 at [47], the High Court said of the process of drawing inferences in a criminal trial, a process which obtains here, save for the level of proof:
…Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence”. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
(Footnotes omitted) (Emphasis added)
It is not therefore legitimate to do as the husband’s argument would have it, to parse her Honour’s reasons, but instead her Honour’s conclusion has to be looked at in the light of all of the evidence including that to which she referred to see whether it was available.
It was also argued by the husband that her Honour ought to have considered the evidence which told against the drawing of that conclusion. For example it was argued that the primary judge “appears” to have drawn an adverse evidentiary inference against the husband for not calling evidence from his mother, and suggested that her Honour ought to have drawn an inference adverse to the wife for failing to cross examine the husband’s mother about her intention. We assume this is a reference to Jones v Dunkel (1959) 101 CLR 298.
We do not see where in her Honour’s reasons such a suggestion arises but in any event, while that submission was advanced in the husband’s Summary of Argument filed 19 August 2019, in fact at trial neither party wished to cross examine the husband’s mother. During the hearing, counsel then appearing for the husband set out the reasons why the husband’s mother was not to be cross examined, including her age and health. No submission was made to the primary judge that any inference should be drawn against the wife from her too declining to cross examine the husband’s mother and that argument cannot be raised on appeal (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
Next it was argued that the primary judge ought to have taken into account the husband’s evidence that he had always lived on the property and his evidence that his parents had, in the past, intended to give the land to him. Of course, whether or not that was the case, at best it reflected their intentions in the past at a time apparently before he and the wife commenced their relationship. It says nothing about the intention of the husband’s parents at the time that they transferred the land to both parties.
Counsel pointed to the husband’s evidence that he and the wife began work establishing the cropping business before the land was transferred, and that in order to effect funding the land needed to be in their names. This evidence does not displace the evidence of the intention of the transfer into joint names, indeed, it appears to support the desire that both parties benefit from the gift.
Finally, it was argued that her Honour ought to have given greater weight to the husband’s assertion that his parents intended that he receive the benefit of the transfer and that there was no evidence that the wife had done anything to benefit his parents.

As we have said, it is clear that her Honour rejected the husband’s evidence about the ownership of the land and, as her Honour’s reasons indicate at [60] there was much about his evidence which was unsatisfactory. There was every good reason for her Honour to not place much, if any, reliance on his assertions as to his parents’ intentions.
It must be remembered that a successful challenge to this conclusion by her Honour must involve the husband demonstrating that the conclusion drawn by her Honour was not open on the evidence, not that another conclusion that preferred his view could have been drawn.
We do not find the challenge made out. Her Honour’s conclusion was available on the evidence and this ground will fail.
The next two challenges go to her Honour’s findings about the husband’s conduct.
In this regard, her Honour said:
Is there any fact or circumstance which the justice of the case requires to be taken into account?
121.[The wife’s] task of maintaining the processing business and retail business, the property, and meeting the expenses relating to that were made more difficult by [the husband’s] actions, particularly by him having the mortgage and overdraft business accounts frozen. Even though there were surplus proceeds of sale from the sale of the 4WD motor vehicle, and it was brought to [the husband’s] attention there was a capital gains tax liability arising out of that sale, he refused to pay the tax liability so [the wife] entered into a payment plan with the ATO and is making those payments.
122.[The husband] refused to accept offers made by [Ms D] to purchase the property for $1,600,000 in both 20 August 2016 and 7 August 2017. [The husband] said he did not accept the 2016 offer as he believed the property was worth more, and did not sign the written offer in 2017 because he thought something on the transfer document make [sic] it “not legal”.
123.The property is now valued at $1,290,000, and neither [the wife] nor [the husband] provided evidence to explain the decline in property price.
…
How should the additional matters be taken into account?
…
127.As a consequence of [the husband’s] refusal to sell the property earlier at the offers made at least in 2016, the parties will now receive significantly less than they would have then. In 2016, there was an offer of $1.8 million from [Ms D], who is now offering $1.35 million.

The husband’s conduct in relation to offers to purchase the property

While it was undisputed that the property had been on the market since 2011 for sale, the process had not been an easy one.
On its face the ground challenges her Honour’s application of her findings about the husband’s refusal to agree to a sale. However, in the husband’s Summary of Argument, the husband sought to challenge not only the primary judge’s application but the underlying fact finding. The usual course would have been to restrict the husband to arguments referable to the ground, however, the wife had in her Summary of Argument filed 2 September 2019 effectively addressed this challenge to her Honour’s fact finding and thus we entertained the argument. There remains, nonetheless, a significant unfairness to the wife in having to meet shifting appeal grounds.
The wife contended in her trial affidavit that the husband had refused offers to purchase the property. The husband said in his trial affidavit that he “believed” the wife was proposing to sell the processing business in circumstances where he had said he wished to retain it (Husband’s affidavit filed 5 April 2018, paragraph 14). He accepted that the wife sent him “[four] offers of acceptance over a period of time with all different amounts” (Husband’s affidavit filed 5 April 2018, paragraph 15). He expanded on this point at paragraph 28 of his affidavit and after referring to the wife’s evidence that he rejected the offers, said that they were “not formally made” although he conceded that he accepted an offer to purchase for $2.2 million which was later withdrawn by the offeror (Husband’s affidavit filed 5 April 2018).
In broad, the argument for the husband was that her Honour’s references to a number of offers, none of which was accepted, misunderstood the fact that none or perhaps almost none of them was an offer capable of being accepted because of some defect or other complaint raised by the husband. Thus it was argued that her Honour erred in treating each as if it was an offer capable of being accepted, and thus erred in finding that the failure to accept earlier offers was because of the husband’s unreasonable conduct.
In short, it was argued that there was no evidence on which the Court could conclude that the husband had rejected offers or had unreasonably rejected them.
It must be kept firmly in mind that the husband’s evidence was that he wished to retain the property.
We do not accept the contention.
The wife’s Amended Initiating Application filed 5 December 2016 sought an order that the property be sold for $1.8 million. It is apparent from the correspondence between the wife and either the husband or his lawyers that she had been pressing the husband to accept offers to purchase. For example, attached to her trial affidavit is an unsigned offer to purchase the property at $1.6 million by Ms D (Annexure “4” to the wife’s affidavit filed 12 March 2018). The offer required acceptance by the husband and wife by 20 December 2017. On 23 August 2017, the wife wrote to the husband’s solicitor enclosing documents, including the offer and referring to the expense of obtaining property appraisals and noting: “I do believe that the offer from [Ms D] warrants a counter offer of $1.7. If your client wishes to counter offer [Ms D] with this figure, [h]e can enter in the amount and initial the attached copy” (Annexure “9” to the wife’s affidavit filed 12 March 2018).
On 30 October 2017 the wife again wrote to the husband’s solicitor enquiring whether they acted for him because she had not heard from him in response to her letter (Annexure “10” to the wife’s affidavit filed 12 March 2018).
On 8 November 2017 the wife wrote directly to the husband and said:
As you are aware, [Ms D’s] offer and acceptance was incorrectly filled [sic] out by her agent and presented to us. Today with professional assistance I rectified the contract so the seller and buyers are protected by the intended sale.
(Annexure “11” to the wife’s affidavit filed 12 March 2018)
The “rectified contract” to which the wife referred was not annexed to her trial affidavit nor was it tendered before the primary judge. It was however, received on the appeal as further evidence without objection by the husband’s counsel. It is clear and indeed accepted by the husband’s counsel that there was no impediment to acceptance of that offer by reason of any “defect” asserted by the husband.
The letter concluded by asking the husband to inform the wife of his intention within seven days because “[Ms D’s] offer is subject to us accepting this offer on or before the 28^th of this month” (Annexure “11” to the wife’s affidavit filed 12 March 2018).
On 16 November the wife received a note from the husband’s solicitor indicating that the wife’s correspondence had been passed on to the husband (Annexure “12” to the wife’s affidavit filed 12 March 2018).
Again on 1 December 2017 the wife wrote to the husband’s solicitor noting that she had not received a response to her earlier letters. The wife said, “I have included the Letter of offer one more time to your client if he chooses to sign these documents to end this matter” (Annexure “13” to the wife’s affidavit filed 12 March 2018).
The wife asked for a response as to the husband’s intentions within seven days.
On 13 December 2017 the wife wrote again to the husband and after noting that he had not responded said:
I have spoken to [Ms D] and she has her finances sorted and will be able to purchase the property for $1.6. And does not have the means for any further money. As you are aware the appraisals I have forward to you last month have all come in the value of this figure
(Annexure “14” to the wife’s affidavit filed 12 March 2018)
Finally on 2 January 2018, the wife again wrote to the husband, noting that he had not responded to her letters. She said:
I have spoken to [Ms D] and she has her finances sorted and will be able to purchase the property for $1.6. And does not have the means for any further money. As you are aware the appraisals I have forward to you last month have all come in the value of this figure.
(Annexure “15” to the wife’s affidavit filed 12 March 2018)
Again, she asked the husband to respond to her letter within seven days.
Against this unchallenged evidence of the wife’s correspondence with the husband asking him to accept Ms D’s offer of $1.6 million and the husband’s failure to respond, her Honour’s conclusion that the husband’s refusal to accept the offer to purchase at $1.6 million in 2017 resulted in a loss to the parties in having to accept a significantly lower offer, was not only entirely open to her but driven by the evidence.
We turn then to the ground as it appears in the Further Amended Notice of Appeal and which contends that her Honour “erred in law and in fact in finding that the husband’s conduct in refusing to accept offers to buy the Town C property was conduct of a kind to which the legal principle of “waste” had application” (Ground 2 of the Further Amended Notice of Appeal filed with leave on 15 October 2019).
By “waste” we understand the challenge to be to her Honour taking into account the husband’s refusal to accept the offer as having a direct and deleterious financial effect on the parties. Here, as her Honour correctly found, it was the husband’s deliberate conduct which had produced a loss to the parties of the more advantageous selling price, in a clearly falling market as the decreasing offers to purchase made to the parties from 2011 demonstrates.
No error has been demonstrated in her Honour’s approach.
It was also contended that her Honour afforded excessive weight to this aspect, that is the lost sale, and on several occasions counsel for the husband contended that her Honour had “driven the losses home” to the husband. We disagree.
Her Honour’s consideration of this aspect formed but one part of a number of matters which she took into account in determining whether there should be an adjustment for s 75(2) matters. For example, her Honour found that the husband earns twice that earned by the wife and that the wife has the responsibility to support the children. In the event, taking into account all of the matters to which her Honour referred under this rubric, her Honour came to an adjustment in the wife’s favour of a further 10 per cent which in broad terms represents $94,000. That, of itself, tells against the submission that her Honour attributed excessive weight to this particular aspect and we do not accept that her Honour erred.

The husband’s conduct after separation

Her Honour identified and took into account several aspects of the husband’s conduct after separation.
Her Honour found that in February 2016 just before the production was to commence, based on the husband’s complaint, the local government department refused the wife permission to commence production (at [23]). Her Honour noted that although ordered to pay $150 per week towards the mortgage in June 2017, the husband either failed to pay or paid a lesser sum. Her Honour further noted that on one occasion, the husband said he failed to pay that figure because he was on holiday in Asia (at [36]). Further her Honour found that the husband refused to contribute to other expenses of the processing business including a GST liability on the sale of his vehicle and while he kept the sale proceeds, the wife was left to arrange a payment plan for the GST with the Australian Tax Office (at [37]).
In considering the parties’ contributions after separation, the primary judge said:
102.However since separation, [the wife] has made the overwhelmingly greater financial contribution, non-financial contribution and contribution to caring for the children. These contributions have been made more significant in the face of adversity, some of which I accept [the husband] was directly responsible for, for example complaints to the Council in early 2016 which meant [production] could not proceed that year and preventing [the wife] from continuing to operate the bank accounts of the business. There were other adversities she faced including what she described as sabotage to the processing business, and she continued to strive to meet the debts of the processing business notwithstanding.
It was argued that her Honour’s use of the word “adversity” was “redolent” of the language used in Kennon v Kennon (1997) FLC 92-757 (“Kennon”) and thus it followed that her Honour’s adjustment in the wife’s favour was an application of that principle. The argument continued and suggested that her Honour’s findings do not fall within the principles articulated in that case. We reject the argument.
First, the authority to which counsel referred dealt with circumstances in which global contributions were considered to have been made more difficult by adversity. In Kennon, there was no identifiable direct causal connection between the adverse circumstances and the making of contributions. Here, what her Honour did in the challenged paragraph was nothing more than assess the wife’s contributions and, in that assessment, properly take into account the direct connection between the wife’s contributions and the husband’s actions which made them more difficult. It cannot reasonably be argued that the husband’s actions in stopping the processing by his complaint and in freezing the bank accounts, did not make the wife’s work in keeping the cropping business going more difficult.
Indeed, during submissions, counsel then appearing for the husband conceded that in the face of the impediments placed by the husband in the wife’s running of the business, the primary judge could have assessed the wife’s contributions as higher.
That having been conceded, there can be no foundation to the ground which challenges her Honour doing exactly that which was conceded by the husband’s counsel.
This aspect of the challenge must fail.
Finally, it was suggested that her Honour effectively double counted the husband’s failure to accept offers to purchase the property, having taken that conduct into account in determining the parties’ contributions at [121] while later mentioning those same matters in her discussion at [128] about what adjustment to make in relation to the s 75(2) matters. Certainly her Honour referred to those matters again, but in our view more in the nature of a preliminary overview rather than as asserted erroneously taking them into account twice.
Thus the appeal will be dismissed.
The wife sought no order for costs against the husband and no order will be made.

The husband’s Application in an Appeal

The husband, by an Application in an Appeal filed 26 September 2019, sought a number of orders, however, all but one fell away. That which remained was in effect an update of the parties’ circumstances being that the property had been sold for $1.35 million and after payment of necessary debts and other expenses and payment to the husband’s mother of $300,000, the sum of $445,500 was disbursed to the wife and $148,241 paid to the husband. The remaining sum of $173,461.84 was then held pending the outcome of the appeal.
We accepted that information without the need for a formal order.
The husband’s Application in an Appeal will be dismissed.
However, given that the appeal will be dismissed, the balance of the funds being held will be distributed in accordance with her Honour’s orders.

Kent J

I have had the benefit of reading the reasons for judgment of Ainslie-Wallace and Aldridge JJ.
I agree with their Honours’ conclusion that the husband’s challenge (in Ground 1) to the primary judge’s finding that the husband’s parents’ gift of land to the parties was intended to benefit both parties, fails. However, I wish to express my own reasons for that conclusion.
As will be further discussed, the primary judge made findings of primary facts from which her Honour drew the inference of the stated intention.
The principles to be applied by a court of appeal conducting an appeal by way of rehearing in a civil case, including any review of fact finding by the primary judge, are settled by High Court authority (see, Warren v Coombes (1979) 142 CLR 531 (“Warren v Coombes”); Fox v Percy (2003) 214 CLR 118 at [20]–[31] (“Fox”); and Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 (“Robinson”) and the authorities cited in those cases; see also Justice Virginia Bell AC, “Appellate review of the facts” (2014) 39 Australian Bar Review 132 at 141 cited in Robinson at [56]).
In Warren v Coombes, Gibbs ACJ, Jacobs and Murphy JJ stated the principles as they apply to the review of inferential findings as follows (at 551):
… Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it…
That an intermediate appellate court is required to give respect and weight to the conclusions of the primary judge when reviewing challenged conclusions of fact was emphasised by the High Court in Robinson in the following terms:
43.The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.
(Footnotes and citations omitted)
Those same authorities make reference to the distinction between review of fact finding by a judge sitting without a jury, and jury verdicts (see, for example, Warren v Coombes at 552 and Fox at [24]). With respect to the plurality, in my opinion it is unnecessary, and potentially unhelpful, to resort to the principles concerning review of jury verdicts turning upon circumstantial evidence in criminal cases as distinct from the settled principles to be applied here. The process of considering whether the prosecution excluded all reasonable hypotheses consistent with innocence on the criminal standard of proof, where a jury provides no reasons, is fundamentally different to review of the “range of permissible inferences” to be drawn from primary facts found by a primary judge, within the formulation expressed in Robinson at [43] quoted above.
It is a logical consequence of the principles expressed in Robinson as to appellate interference with a primary judge’s findings of fact, that all relevant evidence be considered in determining whether or not an inferential finding is justified and whether, in respect of inferences drawn from primary facts, those inferences fall within “the range of permissible inferences” (emphasis added).

In this case, in undertaking the process of finding the primary facts, the primary judge rejected the husband’s evidence that the husband had already been gifted the property prior to the commencement of the parties’ cohabitation. The primary judge accepted the wife’s evidence that no part of the property was given by the parents to anyone until it was given by them to both parties, subsequent to the parties’ marriage. That resolution of a disputed issue of fact was supported by the further facts as found by the primary judge that:
a)The parents subdivided the original parcel of land before transferring part of it to both parties subsequent to their marriage, a fact inconsistent with the husband’s contention that he already solely owned the land;
b)The husband provided no explanation, if it was the case that the property was given to him solely prior to the commencement of the parties’ cohabitation, why the property was subsequently transferred by his parents into his and the wife’s joint names, rather than into his sole name;
c)The husband’s 1998 discussion with the wife that he “wanted to receive 30 acres” to start a processing business suggested the property was not already his.
The further primary fact as found by the primary judge, of crucial significance in the present context, was not a fact in dispute. The evidence of both parties was that the gift of land by the parents was made in exchange for an obligation assumed by both parties to provide support in future to the parents. The primary judge recorded the effect of the evidence of each party as follows:
70.… [The wife] said the property was given to them on the basis that they would both look after the parents in the future as [the husband’s] parents planned to remain living on the property.
…
73.… Here both parties agree the transfer of the land was on conditions; as [the husband] says “on the basis that we continued to support them if needed.”
The primary judge summarised the ultimate finding as follows:
74.I accept the intention of [the husband’s] parents was the property be gifted to both [the husband] and [the wife], and they both receive the benefit of that gift, and both also had the obligation to support the parents if they needed. [The wife] had a good relationship with [the husband’s] parents, which relationship continued after separation, and also after [the husband] vacated the property. Therefore I am satisfied the gift was to both parties.
It can be seen that from the primary facts as found, none of which are challenged on appeal, the primary judge drew the inference that it was the intention of the parents that the property be gifted to both parties, and that both parties receive the benefit of that gift, with both parties assuming an obligation to support the parents if needed. The primary judge found that inference to be consistent with the fact that the wife enjoyed a good relationship with the parents, which continued after the parties’ separation and after the husband had vacated the property.
In passing, it would not be to the point to consider whether an obligation cast in terms to “look after the parents if needed” was a legally enforceable obligation, given its imprecision. There was at least the assumption of a moral obligation but, in any event, the evidence of the assumption of that obligation informs the question of intention of the parents, whether or not it constituted a legally enforceable obligation or only a moral one.
None of the findings of fact made by the primary judge, either of primary fact or the ultimate inference drawn from them, are demonstrated by the husband on appeal to be wrong by “incontrovertible facts or uncontested testimony”, or are “glaringly improbable” or “contrary to compelling inferences”. The inference of a gift to both parties was well within “the range of permissible inferences” on the facts as found.
These conclusions are not displaced by reference to the authorities of Gosper or Kessey, the latter of which was particularly relied upon by counsel for the husband in argument of the appeal.
The first important point of emphasis about those authorities is that they are directed to the assessment of contributions under s 79(4) of the Act where a gift or advance is made by a relative of a spouse party. The principles in these authorities do not supplant, or circumvent, the obligation of a primary judge to make findings of fact, both of primary fact and of inferences from those facts, on the evidence and the cases presented by the parties. In this respect, the argument of counsel for the husband that these authorities provide a “presumption”, as a starting point, is entirely misconceived. The principles expressed in these cases, operate according to the findings of fact made by a primary judge on the evidence presented, and they are principles directed to the task of assessing contribution under s 79(4) of the Act.
In Gosper, Fogarty J undertook an extensive review of authority on the question of how, in assessing contributions under s 79 of the Act, gifts from relatives ought be treated.
His Honour stated at 76,167–76,168, after that review:
Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction (see Rainbird; Read). Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or other or both of the parties, that is an important finding. Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of the intention of the donor.
In this particular case it is clear that the gift of the land at McCrae was a gift by the wife’s father to both of the parties jointly. The evidence and the transfer into their joint names makes that clear and indeed the wife’s counsel did not really contend to the contrary.
…
The next step is to consider the application of sec. 79 to all of the property of the parties, including property received by one or both of them by way of benefaction from a third party.
...
Where a gift is made solely to the donor’s relative (for example a gift by parents to their married daughter) and that spouse applies that property to the marriage, that is a direct financial contribution solely by that party and will be assessed in the ordinary way alongside other contributions by each party to the marriage…
…
The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to [the] Court in such a case to look at the actuality and treat that as a “financial contribution made directly... on behalf of'” the spouse relative…
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made “because she was a daughter of that family” as was said in W.’s case at p. 75,527.
…
In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them.
(Emphasis added)
In the case before Fogarty J, his Honour concluded on the evidence that whilst the gift of the subject land was to the parties jointly, “it is clear that the motivating circumstance was the relationship between the wife’s parents and the wife and it was transferred to benefit her and because she was a daughter” (Gosper at 76,168). On that basis, in assessing contributions under s 79(4) of the Act, that contribution was treated as that of the wife solely.
In this case, as in Gosper, the land was transferred to both parties being the “strongest indicator of the intention of the donor.” Turning to the assessment of contributions, however, the clear distinction in this case from Gosper is that here there exists evidence that the donors intended to benefit both spouses, not simply the relative spouse. The motivating circumstance in this case was not solely the relationship between the husband’s parents and the husband. The motivating circumstance, on the undisputed evidence, included that, in return for the transfer of land, the parents were to achieve the benefit of an assumed obligation, by both parties, for their future support, as well as the opportunity for the parents to continue to live on the property as they apparently desired.
In Kessey, the Full Court rightly described Fogarty J’s review of authority as comprehensive and the Full Court endorsed both that review of authority and the conclusions reached by his Honour as quoted above.
What the Full Court stated in Kessey is informed by the case before them as described in the following terms:
In the present case the trial Judge found (as earlier quoted) that the evidence did “not clearly establish the intention of the deceased mother” and that it would not be open to him to infer what probably her intention was…
Again, the contrast between the factual situation in Kessey and the facts in this case is obvious. Here, for the reasons already stated, the primary judge was able to infer intention on the evidence; the evidence as to the transfer of the property taking place after the marriage; and the transfer into both names of the parties. Fundamentally, though, was the significant feature of the stated motivation of the parents for effecting that transfer. In short, the evidence in this case did clearly establish the intention of the parents as being to benefit both parties, in exchange for the obligation assumed by both parties.
In Kessey, concerning an advance of funds as distinct from a transfer of real property, in endorsing the conclusion of the trial judge in that case, the Full Court at 81,150 said:
In our opinion, it was open to his Honour to find that the investment in question was a contribution made by or on behalf of the wife and to reach this conclusion on the basis of the various matters which he took into account … being notably the existence of the mother-daughter relationship (against a background of a long history of support by the wife of her parents) and the absence of any evidence to suggest that there was any other reason for the contribution.
(Emphasis added)
In terms of the ultimate statement of principle in Kessey the Full Court at 81,150 stated:
… this case would establish that where there is no evidence of any intention by a parent-donor as to whether he or she wished to benefit only his or her child or also to benefit the spouse of the child as well as the child, then the fact of the parent-child relationship, especially in circumstances where that has been a relationship of support on the part of the child, will be sufficient to establish a contribution of the donation by or on behalf of the child of the parent. In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.
(Emphasis added)
Counsel’s argument for the husband seemed to be predicated upon the proposition that only direct evidence of intention, given by the donors of a gift, could support a finding as to intention. However, that is clearly not so. Neither the principles stated in Gosper nor in Kessey operate to supplant the task of fact finding by a primary judge, including the making of findings as to primary facts and the inferences to be drawn from those facts. In neither Gosper nor Kessey is it stated that there must be direct evidence from the donor in order to provide evidence, or the only acceptable evidence, of intention at the time the gift or advance was made. To the contrary, both authorities emphasise the requirement to determine whether or not, in the circumstances presented by the evidence, there exists evidence of intention.
There is no basis here for appellate interference with the primary judge’s findings of fact. Her Honour’s inferential finding as to intention drawn from the primary facts as found was well within “the range of permissible inferences”.
I otherwise generally agree with the reasons expressed by Ainslie-Wallace and Aldridge JJ in relation to the other grounds and I agree with their Honours’ orders as to the disposition of this appeal.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

(Ainslie-Wallace, Aldridge & Kent JJ) delivered on 31 January 2020.

Associate:

Date: 31 January 2020