Macauley & Rattray
[2024] FedCFamC1A 4
•6 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Macauley & Rattray [2024] FedCFamC1A 4
Appeal from: Rattray & Macauley [2023] FedCFamC2F 1011 Appeal number: NAA 242 of 2023 File number: PAC 2013 of 2019 Judgment of: CAMPTON J Date of judgment: 6 February 2024 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Where the appellant sought to adduce further evidence – Where the further evidence was as to events that post-date the hearing – Application dismissed.
FAMILY LAW – APPEAL – PROPERTY – Where the appellant raises grounds as to a failure to afford procedural fairness, error of principle, and discretionary errors – Whether the primary judge erred in excluding items of property of the parties from the balance sheet without making findings as to the value of such items – Whether the primary judge erred in providing adequate reasons – Where, in reality, the appellant was complaining that her contentions were not given decisive weight – Appeal dismissed.
Legislation: Family Law Act 1975 (Cth) ss 75, 79 and 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26 and 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter v De Winter (1979) 23 ALR 211
Franklyn & Franklyn (2021) FLC 94-031; [2021] FamCAFC 112
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hamish & MacPherson [2023] FedCFamC1A 74
Hickey & Hickey & the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Jess & Jess (No 4) [2023] FedCFamC1A 189
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 96 Date of hearing: 31 January 2024 Place: Sydney Counsel for the Appellant: Mr Schonell Solicitor for the Appellant: Gannon Family Law Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Arch Law ORDERS
NAA 242 of 2023
PAC 2013 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MACAULEY
Appellant
AND: MR RATTRAY
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
6 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The appellant’s Application in an Appeal filed 21 December 2023 to adduce further evidence is refused and dismissed.
2.The Notice of Appeal filed 7 September 2023 is dismissed.
3.The appellant pay the respondent’s costs fixed in the sum of $11,379 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Macauley & Rattray has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
The appellant (“the wife”) appeals from property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 11 August 2023. The respondent (“the husband”) opposes the appeal.
The orders provide for the wife to pay the husband the sum of $398,000 and for the husband to transfer to the wife his interest in their jointly held property at B Street, Suburb C (“the Suburb C property”). Failing compliance with the payment, the Suburb C property was to be sold and the proceeds of sale adjusted as to 60 per cent to the wife and 40 per cent to the husband.
The wife filed a Notice of Appeal on 7 September 2023. She seeks for all the orders made on 11 August 2023 to be set aside, and for the proceedings to be remitted for trial before a judge other than the primary judge. The husband opposes the appeal.
For the reasons that follow, the appeal is dismissed.
BACKGROUND
The wife is 54 years of age and husband 45 years of age. They commenced cohabitation in 2006, married in 2008 and separated in April 2013. There were no children of the marriage. An order for divorce was made in 2023.
At cohabitation the husband contributed an encumbered property in City U purchased in 2004 for $170,000. He had paid a deposit of $8,500 and borrowed about $162,000 from the ANZ. The primary judge found at [34] that at the commencement of cohabitation the mortgage balance was approximately $160,000. The property was sold in late 2014 for $225,000. The husband received $18,271 from the sale and applied these funds to reducing the liabilities of the parties, including a roof repair liability of approximately $15,000 (at [56]).
The primary judge found that during the relationship both parties contributed to the mortgage loan repayments for the City U property “approximately equally” (at [73]), they applied the balance of their incomes to their living expenses “approximately equally” (at [38]) and contributed approximately equally to homemaking and to their respective welfares (at [39]).
In about 2008 the parties jointly purchased the Suburb C property for $557,000. They borrowed $529,000 from Westpac. The balance of the acquisition was funded as to $27,850 from the wife’s savings and a loan of $13,000 from the wife’s mother. This property was tenanted until early 2010, with the rent payments being put towards the mortgage loan repayments. The parties then occupied the property. The husband vacated the property upon separation. The wife continued to live in the property for the ten-year period from separation until trial.
The primary judge found at [37] that during the relationship the parties contributed equally to the mortgage loan repayments for the Suburb C property. Both parties continued to contribute towards the loan repayments after separation. The husband ceased making contributions to the repayments in about November 2014 (at [41]). The mortgage balance at separation was $528,000 and at trial $455,000. From November 2014 the wife made the mortgage loan repayments, mostly being interest only (at [41]).
The wife suffered a workplace injury in 2018 and was thereafter without income for approximately 12 months until her workers compensation claim was accepted (at [41]). In 2019 the wife received $65,616 by way of a permanent impairment finding. The wife receives workers compensation in the sum of $2,341 per week subject to a work capacity assessment at least once every two years.
The husband commenced a relationship with Ms D in 2013. They have a seven-year-old child. The husband, Ms D and their child have lived in rental accommodation for ten years from separation until 2023. In early 2023, they commenced to occupy a property purchased by Ms D at Town F, NSW.
At the commencement of cohabitation with the wife, the husband had superannuation with Super Fund 2 in the sum of $27,850 (at [43]). He did not contribute to this scheme during the parties’ relationship or after separation. At cohabitation he had other superannuation entitlements of an unknown value. His total superannuation entitlements at separation were approximately $80,000 (at [43]). At trial his entitlement in Super Fund 2 was $51,345 and his entitlement with Super Fund 1 was $311,505. At the commencement of cohabitation, the wife’s superannuation was approximately $17,431 (at [44]). The wife’s superannuation entitlement at separation was not known. She made withdrawals from her superannuation entitlements in or around January 2019 of approximately $62,000 and applied those funds towards mortgage loan arrears ($55,961) and repairs to the Suburb C property ($6,000) (at [44]). As at the date of the hearing her entitlement with Super Fund 3 was $193,000.
The primary judge found (at [42]) that the evidence relating to the parties’ superannuation entitlements “was sparse and ultimately was left in an incomplete state. There was no documentary evidence from the parties’ superannuation providers.”
The husband commenced proceedings by filing an Application for Final Orders on 1 May 2019 seeking the sale of the Suburb C property. The wife filed a Response to an Application for Final Orders on 23 September 2019. She sought to retain the Suburb C property. The proceeding was on foot for more than four years.
Directions were made for the filing of trial affidavit material on 11 October 2022. On 13 March 2023 trial directions were made setting the matter down for final hearing on 24 July 2023.
The husband contended a contribution finding to the non-superannuation property of equality (at [48]). The wife contended a contribution finding as to the non-superannuation property of
70 per cent in her favour and 30 per cent to the husband.
The primary judge assessed the contributions of the parties to the non-superannuation property to be 55 per cent in favour of the wife and 45 per cent to the husband. The parties’ superannuation property was considered in the adjustments to the contribution findings (at [62]). The primary judge adjusted the contribution findings in favour of the wife by a further
5 per cent, concluding the adjustment of Suburb C property to be 60 per cent to the wife and 40 per cent to the husband. This resulted in the wife receiving $597,000 and the husband receiving $398,000, a disparity of $199,000 in favour of the wife.
THE APPEAL
The grounds of appeal as asserted were:
1. His Honour erred by excluding the property of the parties from the pool.
2.His Honour erred by failing to identify and make rulings on the parties equitable and property interests for the purposes of determining the property available for division.
3.His Honour erred by failing to take into account the respondent’s conservation of the parties’ property.
4.His Honour erred by focusing on irrelevant considerations and incorrect principles of law, including that it was necessary to demonstrate contribution to property acquired post-separation for such property to be amendable to adjustment.
5.His Honour erred by failing to give adequate weight to the respondent’s contributions, such that the outcome was unreasonable, arbitrary, unprincipled, manifestly unjust and plainly wrong.
6.His [sic] Honour erred by failing to make adequate adjustment pursuant to section 79(4)(e) and the matters referred to in section 75(2) of the Family Law Act 1979 (Cth), such that the outcome was unreasonable, arbitrary, unprincipled, manifestly unjust and plainly wrong.
7.His Honour erred by denying the respondent procedural fairness.
8.His Honour erred by dismissing the respondent’s three applications, which, cumulatively, produced a verdict that was manifestly unjust.
9.His Honour erred by providing no or inadequate reasons.
10.His Honour erred by making findings of fact that were unsupported by the evidence.
11.The cumulative effect of each of His Honour’s errors was to produce a judgment that was manifestly unjust and plainly wrong.
The relevant principles that govern appeals from discretionary judgments are well known. Error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House”) must be established. There, the majority of the High Court said at 504–505:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519 (“Gronow”)).
APPLICATION IN AN APPEAL
On 21 December 2023, the wife filed an Application in an Appeal seeking to adduce further evidence pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”). The husband opposed the application. The wife read her affidavit and the affidavit of her treating psychologist, both filed 21 December 2023, dealing with developments since the judgment was delivered as to two suicide attempts of the wife after the primary judge delivered reasons in 2023.
The discretion to admit further evidence on appeal “exists to serve the demands of justice” (Hsiao v Fazarri (2020) 270 CLR 588 at [43]) and is remedial in nature. The High Court in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) noted at [109] that “its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous”. It is relevant to have regard to the nature of the evidence sought to be led on the appeal, its weight and relevance to the issues, and the reasons that it was not relied upon at trial.
Some evidence as to the wife’s mental health presentation was adduced at trial. The reasons record:
54 The Court accepts the wife’s evidence in respect to her asserted mental health symptomatology. The Court accepts the evidence of the psychologist Ms H whilst noting that her treatment of the wife ceased in December 2019.
The wife did not explain how the evidence of what has occurred since the trial assists in establishing any appealable error by the primary judge or how it would likely produce a different result (CDJ v VAJ at [109], [111], [140] – [151], [169] and [186.9]). Having regard to those considerations, I was not persuaded that the wife should be granted leave to adduce this further evidence in the appeal and therefore dismissed the Application in an Appeal filed
21 December 2023 at the hearing of the appeal.THE APPEAL GROUNDS
Ground 7 raises a concern of procedural fairness. Consistent with principle, it is appropriate to deal with that ground first, as it goes to the integrity of the trial process (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611). The grounds will otherwise be addressed as the wife grouped them in her Summary of Argument.
Ground 7 – His Honour erred by denying the respondent procedural fairness
As a concept, procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]).
The gravamen of this complaint was threefold and requires some context. On 14 July 2023, ten days before the listed trial date, the wife filed an Application in a Proceeding seeking to:
(a)Join Ms D (the husband’s partner) as a party to the proceeding;
(b)Appoint a single exert to value the Town F property owned by Ms D; and
(c)Appoint a single expert psychiatrist to report on her psychological condition and the impact that an order necessitating her vacation of the Suburb C property would likely have on her health, wellbeing, and safety.
That Application in a Proceeding was listed for hearing at the trial. It was opposed by both the husband and Ms D, who separately appeared by way of counsel.
The first complaint by way of this ground derives from the Application in a Proceeding being dismissed by the primary judge. The second complaint is that upon dismissing the application, the judge upheld objections to the wife adducing evidence by way of medico-legal reports exhibited to her trial affidavit filed 7 March 2023. The third complaint is that after dismissing the Application in a Proceeding and excluding the medico-legal reports from the evidence, the primary judge refused the wife’s application for an adjournment of the trial.
The wife concedes that an appeal from a refusal to grant an adjournment is not competent (see s 26(2)(b)(ii) of the FCFCOA Act).
In her Summary of Argument at paragraph 45, the wife contended that the Court “could not determine the case in the absence of expert evidence”, and at paragraph 49, that the primary judge “erred by denying the appellant the opportunity to adduce evidence relevant to an issue of critical importance that affected not only her health and safety but also the justice and equity of the Court’s orders.” That “critical” expert evidence was as to “her health and suicide risk” should she “lose” the Suburb C property.
It is uncontroversial that, throughout the four-year period the litigation prior to the trial the wife lived with her mental health challenges, and that over the same period the husband sought orders for the sale of the Suburb C property. Each issue was always part of the litigation landscape.
Parties are bound by their elections in the conduct of litigation. The wife did not explain her forensic decision not to seek the appointment of a single expert witness to opine as to her mental health presentation and its consideration in the exercise of the s 79 of the Family Law Act 1975 (Cth) (“the Act”) discretion when directions were made as to the filing of trial evidence on
11 October 2022, or when trial directions were made on 13 March 2023. It was her decision to attempt to rely on hearsay historic medico-legal reports exhibited to her affidavit filed
7 March 2023.
The primary judge identified the reasoning of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon Risk”) in refusing the wife’s adjournment application and its consequential impact on the wife not achieving her objective of adducing single expert evidence.
Procedural fairness requires each party to be given an adequate opportunity to be heard and present their case (Kioa v West (1985) 159 CLR 550 at 582). It is only the opportunity to present evidence and argument which the interest of justice requires, not the actuality of it. Where a party has had a sufficient opportunity to put forward his or her case, it may be necessary for the court to make a decision for the sake of doing justice to the other party and to other litigants (see Aon Risk at [94]). It was within the discretion of the primary judge to consider the effect of any adjournment by way of increased costs, a further delay of the trial of six months, and the desirability of efficient and effective litigation when refusing the application.
The wife had every opportunity to present her case and has not made out any failure to afford her procedural unfairness. In any event, the primary judge accepted the evidence as to the wife’s mental health at [54] in the reasons, as recorded above.
This ground fails.
Ground 1 – His Honour erred by excluding the property of the parties from the pool
Ground 4 – His Honour erred by focusing on irrelevant considerations and incorrect principles of law, including that it was necessary to demonstrate contribution to property acquired post-separation for such property to be amenable to adjustment.
The wife’s grouping of these grounds appears to conflate legal mistakes and discretionary error. When this ambiguity was raised during the hearing of the appeal, the wife confirmed that these grounds raised errors of law only and that I need not consider issues as to discretion as part of these grounds.
To give context to this ground, the primary judge recorded the relief sought by each the husband and the wife and identified the relevant principles regulating the process of determination of the s 79 proceeding, including that the Court identify the existing legal and equitable interests of the parties in their property liabilities and financial resources at the time of the hearing (at [25]).
The primary judge then set out the joint balance sheet identifying the superannuation and non-superannuation property of the parties as contended by each as at the date of the hearing (at [26]). The complaint of the wife was the approach taken by the primary judge as thereafter recorded in the reasons:
27 Whilst the Court acknowledges the existence of the assets in items 2 to 16 inclusive, they shall be removed from the final balance sheet for the following reasons. There is no persuasive evidence that the parties made a relevant contribution to the assets of the other party referred to in items 2 to 16 (item 16 firstly referred to), the parties separated in about April 2013 and it is likely that items 2 to 16 are unrelated to the parties’ relationship, and those assets are relatively quite modest in value.
By way of further context, Items 2 to 16 were as follows:
Ownership Description Wife’s value Husband’s value 2 W Westpac Bank accounts …11 $905 $905 3 W Westpac Bank accounts …32 NIL NIL 4 W Westpac Bank accounts …70 NIL NIL 5 H 33% interest in ANZ Bank Account
…12 (account held in name of Ms D)$8,852 $3,318 6 H J Bank Account …53 $6,817 $4,740 7 H J Bank Account …45 $3,805 $2,880 8 H Bank accounts held with J Bank NK NIL 9 H Q Bank Accounts NK NIL 10 H 50% share of Home contents $10,000 $2,500 11 W Home contents $1,500 $1,500 12 H R Company $3,457 $69 13 H 50% of shares in M Pty Ltd $53,969 $19,650 14 H Interest in property located at E Street, Town F NSW NK NIL 15 H Interest in Motor Vehicle held by S Pty Ltd $20,000 NIL 16 W Workers Compensation Claim NIL NIL
A balance sheet identifying the Suburb C property, it’s mortgage liability and the respective superannuation entitlements were then recorded in the reasons at [30] as follows:
BALANCE SHEET Ownership Description Value Assets 1 J B Street, Suburb C NSW $1,450,000 Total $1,450,000 Liabilities 2 J Mortgage secured over title of the former matrimonial home $455,000 Total $455,000 Superannuation Member Name of Fund Type of Interest Value 3 H Super Fund 1 Accumulation $311,505 4 H Super Fund 2 Accumulation $51,345 5 W Super Fund 3 Accumulation $193,000 Total $555,850
At paragraph 13 of the wife’s Summary of Argument, she said that the primary judge failed to give “any” consideration to the “excluded property”. This submission is rejected as to Items
5–7, 10, 12, 13 and 15. The primary judge expressly considers those items of “excluded property” at [59] as a part of the adjustments to the contribution finding by way of s 75(2) of the Act.
The wife submitted that the primary judge “did not determine whether the husband had an equitable interest in the Town F property. In doing so, his Honour failed to determine an essential issue in the dispute…” Further she said that the primary judge “failed to determine this critical issue”. She later said that this issue was “not considered at all”.
The reasons record at [8] – [13] the factual matters as to the acquisition of the Town F property by Ms D, including unchallenged evidence that the funds applied to the property originated from monies Ms D had at the commencement of her cohabitation with the husband and monies saved solely from her income during their cohabitation.
The wife did not put to the husband or to Ms D in cross-examination that any part of the funds used to acquire the Town F property were the husbands. No questions were put to either the husband or Ms D as to the beneficial interest Ms D was said to hold on behalf of the husband in that property.
No submissions were made by the wife as to:
(a)The nature, category or value of equitable interest beneficially held by Ms D in the Town F property for the husband; or as to
(b)The evidentiary foundations relied upon to ground the finding sought.
Evidence could have been given and submissions could have made as to the subject matter. They were not. The findings the wife sought in relation to the Town F property were not identified with any particularity. It is incumbent on a party, who contends on appeal a failure to make a finding, to demonstrate that the primary judge’s attention was drawn to such matters as are necessary to identify and ground that finding.
At [10] the primary judge found, “[t]he wife adduced no evidence to indicate that any matrimonial property arising out of her relationship with the husband was utilised by the husband or Ms D in relation to the purchase of the Town F property”.
The husband concedes that there is no explicit finding as to him having no beneficial interest in the Town F property. While an alternate expression of the determination of the primary judge may have been preferred, it is sufficient if the inference of that finding is adequately clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Rafferty & Spencer (2016) FLC 93-710 at [30]). The reasons are plain as to the primary judge accepting the husband’s case that he had no equitable interest in the Town F property upon the wife failing to discharge her onus of proof to establish her contention on that subject matter. There is no record during the trial or other evidence to persuasively suggest that the primary judge failed to consider the case prosecuted by the wife and its scant integers on this issue. There can be little controversy that the primary judge did not determine this dispute.
The wife’s contention that the primary judge did not determine whether the husband had an equitable interest in the Town F property, or did not consider and determine this issue, is not accepted.
During the hearing of the appeal the wife said that insofar as Ground 4 asserted that “property” ought to be “amenable to adjustment”, this did not mean that the property was not available for adjustment. It was said to convey that the property was not relevant to the s 79 determination.
In her Summary of Argument, the wife further particularised Ground 4 submitting that the primary judge “erroneously identified and assessed the parties’ property by reference to contributions to particular items”.
The primary judge evaluated the significance of all the various contributions to the property of the parties, notwithstanding the finding that there were different categories of that property. This is a case which falls into the class of cases referred to by Wilson and Dawson JJ in Norbis v Norbis (1986) 161 CLR 513 at 523-3, when they said:
‘If the parties' interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets, as was convenient in this case.
The primary judge, in the circumstances of this marriage, holistically considered the nature, form, characteristics and origin of all the property currently comprising that to which s 79 applied, and in turn, analysed the nature, form and extent of the contributions (of all types) and the adjustments thereto, as contemplated by the section. The wife’s complaint as to Ground 4 is misconceived and rejected.
Grounds 1 and 4 fail.
Ground 2 – His Honour erred by failing to identify and make rulings on the parties equitable and property interests for the purposes of determining the property available for division
The wife in her Summary of Argument anchors this complaint from what was said by the High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37] being:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself…The question posed by s 79(2) is thus whether having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
The wife submits that this error can be seen in two ways. The first is in the “exclusion” of some property from the s 79 consideration. This has been dealt with and has no merit for the reasons above as to Grounds 1 and 4.
The second is that the primary judge did not make rulings on, or failed to determine the value of, the “excluded items” in the balance sheet. Having regard to there being no merit to Grounds 1 and 4, this ground has no application to the Town F property. The balance of the controversial excluded items are:
Ownership Description Wife’s value Husband’s value 5 H 33% interest in ANZ Bank Account
…12 (account held in name of Ms D)$8,852 $3,318 6 H J Bank Account …53 $6,817 $4,740 7 H J Bank Account …45 $3,805 $2,880 10 H 50% share of Home contents $10,000 $2,500 12 H R Company $3,457 $69 13 H 50% of shares in M Pty Ltd $53,969 $19,650 15 H Interest in Motor Vehicle held by S Pty Ltd $20,000 NIL
The High Court in Stanford confirmed the necessity to identify existing legal and equitable interests of the parties in their property. The Full Court in Hickey & Hickey & the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, as repeated in Jess & Jess (No 4) [2023] FedCFamC1A 189, identified a preferred approach to the determination of an application brought pursuant to the provisions of s 79 involves four inter-related steps, the first being that the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing.
Each party conceded the exercise of a s 79 discretion was warranted. They both sought orders, albeit in different terms, for the adjustment of property. It is uncontroversial for the purposes of the appeal that the s 79(2) mandate, as to it being just and equitable to adjust the property of the parties, was achieved. The primary judge expressly and clearly identifies the property of the parties as they each contended in the joint balance sheet at [26].
The wife did not articulate at trial what finding ought to have been made as to the value of contested Items 5 – 7, 10, 12, 13 and 15, or the foundations in the evidence for such finding as she asserted. During the hearing of the appeal the wife conceded that there was no evidence before the primary judge to ground findings as she alleged to any of the disputed values, but that it was “apparent from the husband’s input into the joint balance sheet that there are some value to them”. The wife further conceded that no submission was made to the primary judge at trial to adopt and find the husband’s asserted values each contested item. Again, it is incumbent on wife, who contends on appeal a failure of a primary judge to make a finding, to demonstrate that the primary judge’s attention was drawn to such matters as are necessary to identify and ground such findings.
The primary judge found at [27] that the excluded items are of a “relatively quite modest” value compared to the remaining property. At the hearing of the appeal, it was agreed that the husband’s entries in the joint balance sheet as to these contested items were in the range of $35,000.
The wife chose not to run a case before the primary judge as to the values of the items or make relevant submissions at trial as to that subject matter. She cannot complain about it now upon appeal (Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Franklyn & Franklyn [2011] FamCAFC 112 at [40]). On the evidence before the primary judge, the contentions of the wife as to the values ascribed to Items 5 – 7, 10, 12, 13 and 15 could not be achieved. The primary judge was not asked to make the findings she asserted, nor was he directed to accept the husband’s values of the items. The stated reasons at [27] and [59] informed the primary judge’s discretion as to which approach to take to achieve a just and equitable outcome, considering all the property of the parties in an overall sense.
If the primary judge erred in the identification and application of principle as to the preferred approach to value the property of the parties, the question then becomes whether these errors provide the foundation for a conclusion that a miscarriage of justice occurred (Lane & Nichols (2016) FLC 93-750). It is the actual order which must be just and equitable.
The wife did not establish that the identified errors, if made, were material in the relevant sense. I do not consider it realistically possible that the orders made by the primary judge could have been different if findings were made as to the value of the contested items as ascribed by the husband. The error would not be material and would not occasion a miscarriage of justice. This particular of the ground has no merit.
Ground 2 is not made out.
Ground 3 – His Honour erred by failing to take into account the respondent’s conservation of the parties’ property
Ground 5 – His Honour erred by failing to give adequate weight to the respondent’s contributions, such that the outcome was arbitrary, unprincipled, manifestly unjust and plainly wrong
Ground 3 particularises that the primary judge erred in not considering “conservation” of the Suburb C property, as was raised in oral submissions at trial by the wife. Under the heading “Contributions” the primary judge said:
41… The wife thereafter continued as the sole financial contributor towards the mortgage loan repayments, maintenance and rates/utilities of that property up to the present time. Such maintenance included the sum of $25,000 spent by her for home repairs… Further, in the context of the wife’s mortgage loan repayments, and maintenance and payment of rates/utilities of the Suburb C property up to the present time, the Court takes into account that the wife has continued to reside in that property post separation to date.
(Bold emphasis added)
The primary judge plainly not only engaged with the wife’s case on this subject matter but accepted her contribution as submitted and took it into account. No error is made out. Ground 3 fails.
Ground 5 asserts a challenge as to the weight afforded to evidence. Complaints as to weight face a high hurdle. Absent identifying that the decision is manifestly wrong, they do not form a proper challenge as to discretion (Bugmy v The Queen (2013) 249 CLR 571; Hamish & MacPherson [2023] FedCFamC1A 74 at [38]).
The reality of this complaint of the wife is that the weight given by the primary judge to the various contentions made by the parties was unreasonable or plainly wrong because her contentions were not given decisive weight. The conclusions reached by the primary judge were reasonably open on due consideration of the evidence such that his overall determination was not unreasonable or plainly wrong. Different judges can quite property achieve different outcomes on the same evidence (CDJ v VAJ at 218-219).
No error of the kind as established in House is discernible in relation to the weight afforded to the wife’s contributions. Ground 5 necessarily therefore fails.
Ground 6 – His Honour erred by failing to make an adequate adjustment pursuant to section 79(4)(e) and the matters referred to in section 75(2) of the Family Law Act 1979 (Cth), such that the outcome was unreasonable, unprincipled, manifestly unjust and plainly wrong.
As identified by the husband in submissions, the wife obtained the adjustment to the contributions finding of five per cent as she sought at trial. She did not make any alternate submission to the primary judge as to a differing adjustment by way of percentage should her case as to the value of the property of the parties or her contribution contention not be accepted. On one view, the complaint by way of this ground cannot be fairly raised on appeal.
As a challenge to a discretionary decision, this ground faces the same high hurdle as Ground 5. As with the assessment of contributions, determining an appropriate s 75(2) adjustment involves the exercise of a broad discretion. The primary judge did not exercise his discretion pursuant to s 75(2) by reference to erroneous facts, nor did he have regard to extraneous or irrelevant facts or circumstances or fail to have regard to relevant facts or circumstances. No error of principle has been demonstrated. Nor has it been demonstrated that, despite the absence of demonstrable error, the adjustment made was manifestly unjust or plainly wrong.
As argued, this ground was simply an invitation for this Court to reach a different conclusion as to what orders were reasonable, principled, and just. Such a challenge is not a proper basis to seek to impugn a discretionary judgment (House). This ground fails.
Ground 8 – His Honour erred by dismissing the respondent’s three applications which, cumulatively, produced a verdict that was manifestly unjust.
Insofar as Ground 8 replicates complaints underscoring Ground 7, it is rejected for the reasons recorded earlier. Insofar as the ground raises the same complaint as Grounds 5 and 6, it is similarly incompetent to challenge a discretionary judgment (House). The ground fails.
Ground 9 – His Honour erred by providing no or inadequate reasons.
The wife submitted that the primary judge failed to provide any reasons or adequate reasons for:
a.dismissing the application to appoint a single expert to assess the appellant. See paragraph 15 of the judgment;
b.the exclusion of every asset other than the [Suburb C] Property from consideration. See paragraphs 27 to 29 of the judgment;
c. the assessment of contributions. See paragraph 50, where His Honour’s brief reason is expressed in terms of “taking into account the above matters”;
d. the assessment of the excluded assets as part of the s 75(2) assessment. See paragraph 59, where His Honour says he took into account the respondent’s assets but provides no explanation as to how; and
e. the assessment that the appropriate adjustment for s 75(2) factors should be 5 per cent. See paragraph 62, where His Honour’s brief reason is expressed in terms of “on balance, taking into account the above matters.”
(As per the original)
The wife conceded during the hearing of the appeal that this was a poorly drafted ground, in that it cannot be complained as a failure to provide any reasons as to these matters. Plainly, reasons were provided within the paragraphs explicitly cited by the wife in her Summary of Argument. The ground then becomes the provision of adequate reasons.
The primary purpose of providing reasons is to ensure that the parties understand why a decision was made (Bennett and Bennett (1991) FLC 92-191). The pathway of reasoning by which the primary judge made each of the above findings was both discernible and clear within the paragraphs as cited by the wife in her Summary of Argument.
The reasons are clear as to identifying the basis of the decision, and the extent to which the parties’ submissions were understood. The reasons do justice to the issues posed by the parties in this proceeding (see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). This ground fails.
Ground 10 – His Honour erred by making findings of fact that were unsupported by the evidence.
Ground 11 – The cumulative effect of each of His Honour’s errors was to produce a judgment that was manifestly unjust and plainly wrong.
This ground alleges errors of both fact and law. The wife submits that these errors include:
a. His Honour’s assessment that the [Town F] Property would only be relevant to the proceeding if the appellant could establish that he “had utilised matrimonial property to acquire such interest”;
b. His Honour’s ruling that the medico-legal reports were inadmissible because of non-compliance with r 7.21 of the Federal Circuit and Family court of Australia Rules 2021 (Cth), when the Rules have no bearing on the admissibility of evidence;
c. His Honour’s determination that the items that were to be excluded from the balance sheet were “relatively quite modest in nature” when he had not determined the value of those items and the pool itself was modest, such that even minor items assumed significance;
d. His Honour’s determination that the respondent’s [V Company] shares should be excluded because they “were purchased post separation and to which the wife made no relevant contribution”;
e. His Honour’s finding of fact that “both parties contributed approximately equally to the welfare of the family” when there was no evidence of the respondent’s relevant contributions upon which such a finding could be made;
f. His Honour’s determination that the respondent’s drawdown’s on bank accounts in the aggregate sum of $62,704.00 represented “premature distribution of matrimonial property to himself”, without treating those sums as add-backs; and
g. His Honour’s failure to consider and determine the appellant’s argument that it would be just and equitable for her to retain the [Suburb C] Property because of her unique personal circumstances and perilous psychological condition.
(As per the original) (Footnotes omitted)
During the hearing of the appeal, the wife abandoned the particulars identified at subparagraphs d and f. She conceded that it was a proper exercise of discretion not to add-back those items and to take them into account in the adjustment to the contribution finding by way of s 75(2) as undertaken by the primary judge at [28], [57], [58] and [59].
Each of the remaining particulars are addressed in the order as set out by the wife in her Summary of Argument.
His Honour’s assessment that the [Town F] Property would only be relevant to the proceeding if the appellant could establish that he “had utilised matrimonial property to acquire such interest”
This particular of the ground is not reflective of the determinations of the primary judge on the subject matter. It fails for the reasons identified as to Grounds 1, 2 and 4.
His Honour’s rulings that the medico-legal reports were inadmissible because of non-compliance with r 7.21 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth), when the Rules have no bearing on the admissibility of evidence
This particular in part engages with the determination of the primary judge. Whilst the primary judge did identify the failure to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the rejection of the evidence was also based on an absence of an affidavit from the authors of the reports and pivotally because the reports were inadmissible hearsay (at [16]).
His Honour’s determination that the items that were to be excluded from the balance sheet were “relatively quite modest in nature” when he had not determined the value of those items and the pool itself was modest, such that even minor items assumed significance
For the reasons identified as to Ground 2, this particular fails.
His Honour’s finding of fact that “both parties contributed approximately equally to the welfare of the family” when there was no evidence of the respondent’s relevant contributions upon which such a finding could be made
In hearing of the appeal, the wife conceded that her affidavit included contributions of this category being made by the husband. The particular devolved as to whether the finding made by the primary judge in concluding that these contributions were “approximately equal” was available on the evidence. There was no evidence of the husband on this subject matter, nor cross examination by either party on it. The finding as to this category of contribution being “approximately equal” was not reasonably open on the evidence.
During the trial and during the hearing of the appeal both parties appropriately conceded that contributions of this category were not significant in the circumstances of this marriage. The error was not material in that it did not affect the conclusion as to contribution or the ultimate decision. I am not satisfied that this finding would impact upon the result of the case, or the justice and equity of the order (see De Winter v De Winter (1979) 23 ALR 211).
His Honour’s failure to consider and determine the appellant’s argument that it would be just and equitable for her to retain the [Suburb C] property because of her unique personal circumstances and perilous psychological condition
It is not necessary that a primary judge “mention every fact of argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 464). As discussed, the primary judge at [54] expressly took into consideration the wife’s mental health symptomatology, including living with complex post-traumatic stress disorder and mild dissociative disorder.
The orders made enable to wife to pay a cash sum to the husband to retain the Suburb C property. The particular is not made out.
Grounds 10 and 11 fail.
CONCLUSION AND COSTS
The appeal will be dismissed.
In the event that the appeal was unsuccessful, the husband sought costs in the fixed sum of $11,379. The wife did not dispute the reasonableness of quantum of the husband’s costs sought.
The wife submitted that each party should bear their own costs, identifying her contended inferior financial circumstances compared to those of the husband. She submitted that the appeal had proper basis and had been conducted efficiently.
The starting position, as set out at s 117 of the Act, is that each party bear their own costs. This position may be departed from where there are justifying circumstances drawn from the considerations set out at s 117(2A).
I do not accept that the wife’s financial circumstances militate against the making of a costs order. By the dismissal of this appeal the wife has been wholly unsuccessful. The circumstances justify the making of an order in the fixed sum as sought by the husband.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 6 February 2024
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