Marlin & Henson
[2025] FedCFamC1A 71
•30 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Marlin & Henson [2025] FedCFamC1A 71
Appeal from: Henson & Marlin(No 4) [2024] FedCFamC1F 713 Appeal number: NAA 309 of 2024 File number: BRC 10186 of 2020 Judgment of: GILL, HOWARD & CHRISTIE JJ Date of judgment: 30 April 2025 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from final property orders – Where the appellant asserts that it was not just and equitable for a property adjustment to be made – Contention that the trial judge failed to include potential Capital Gains Tax liabilities and interim payments ordered in the property pool – Assertion of error when determining contributions – Contention that there was no basis for a s 90SF(3) adjustment – Inadequate reasons – Examination of principles regarding Capital Gains Tax – Appeal dismissed Legislation: Family Law Act 1975 (Cth) – s 90SF and s 90SM
Property Law Act 1974 (Qld) – Pt XIX
Cases cited: Bennett and Bennett (1991) 14 Fam LR 397; [1990] FamCA 148
Carruthers v Carruthers (1996) FLC 92-707; [1996] FamCA 94
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Rosati v Rosati (1998) FLC 92-804; [1998] FamCA 38
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Williams & Williams [2007] FamCA 313
Number of paragraphs: 82 Date of hearing: 5 March 2025 Place: Heard in Sydney, delivered in Canberra Counsel for the Appellant: Mr Hackett Solicitor for the Appellant: Hirst & Co Family Lawyers Counsel for the Respondent: Mr North SC with Mr Gordon Solicitor for the Respondent: KLM Solicitors ORDERS
NAA 309 of 2024
BRC 10186 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MARLIN
Appellant
AND: MS HENSON
Respondent
ORDER MADE BY:
GILL, HOWARD & CHRISTIE JJ
DATE OF ORDER:
30 APRIL 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.In the event that a party seeks their costs of the appeal, such party shall, within 14 days, file and serve:
(a)An affidavit setting out any further evidence relied upon for issue of costs; and
(b)Written submissions of no more than 3 pages identifying the material relied upon including as to any relevant filed schedule of costs.
3.In the event that a party opposes the making of such a costs order, such party shall file and serve within a further 14 days:
(a)An affidavit setting out any further evidence relied upon for issue of costs; and
(b)Written submissions of no more than 3 pages.
4.In the event that a party seeks to reply, then such party shall file and serve written submissions in reply within a further 7 days.
5.Costs will then be determined without further oral hearing
6.Any party seeking oral hearing of the costs matter shall, within 7 days, advise the other party and Appeals Registrar of such
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL, HOWARD & CHRISTIE JJ:
This appeal concerns final orders for de facto property adjustment made by the primary judge on 25 October 2024. By that judgment, the parties’ property interests were divided 60/40 in the appellant de facto husband’s favour. This adjustment was made contrary to the appellant’s primary contention that it was not just and equitable to make any adjustment.
BACKGROUND
The parties commenced a relationship in 2001 in Queensland. At about that time the appellant had a child, Mr TT, from a previous relationship. Mr TT spent regular time with the parties. In 2002 or 2003 the parties commenced cohabitation. The parties’ first child, X, was born in 2005. In November 2006 the parties separated for the first time.
In September 2007 the respondent initiated de facto proceedings (“the Qld proceedings”) under the then Part 19 of the Property Law Act 1974 (Qld). Final orders were issued by consent in the Qld proceedings on 18 November 2008. Such orders included the appellant paying the respondent $350,000, and both parties retaining all other assets, liabilities and superannuation held in their name. This left business interests and a significant number of real properties held in the name of the appellant.
Following the resolution of the Qld proceedings, in June 2009 the parties recommenced their de facto relationship. It was this second phase of their relationship that was the subject of the proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”). During their second relationship, the parties had two more children, Y born in 2011 and Z, born in 2013. The parties separated on a final basis on 15 February 2019 and the respondent commenced proceedings under the Act. Following separation, the parties’ three children lived with the respondent until X moved to live with the appellant in August 2020.
The appellant appeals the orders made by the primary judge, asserting both that there should have been no adjustment of the parties’ property interests, and, alternatively, that the adjustment made by the primary judge was wrong.
Ground One
The first ground challenged the determination by the primary judge that it was just and equitable to adjust the parties’ property interests at all. It was as follows:
The trial judge erred in determining that it was just and equitable to make an order pursuant to s 90SM(3) of the Family Law Act 1975 (Cth) [Act] where:
(a) orders were made for property settlement by the Supreme Court of Queensland pursuant to the Property Law Act 1974 (Qld) in November 2018 [sic] following the cessation of the party’s first de facto relationship;
(b) upon resumption and during the party’s second de facto relationship between 2009 and 2019, the parties in fact kept their finances entirely separate; and
(c) the findings that the respondent “made indirect financial contributions to the respondent's continued operation of his business and acquisition of real property via her primary care of the three children and discharge of homemaker contributions in a manner that enabled him to continue to focus, without distraction, on the operation of the business and acquisition of further wealth” was not open on the evidence.
(Emphasis in original)
The requirement to be satisfied that it is just and equitable to make an adjustment is expressed in s 90SM of the Act, and was emphasised by the High Court in Stanford at [37] in the following manner:
... 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, which refers to “altering the interests of the parties to the marriage in property”. 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.[1]
[1] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”).
(Emphasis in original)
At [25] of the judgment the primary judge expressed the applicable principles in the following manner:
I accept that:
(a) the court must not conflate the separate question of whether, following the breakdown of a de facto relationship, it is just and equitable to make an order adjusting the interests of parties in property with the separate issue of what order should be made if it is determined that it is just and equitable to make any order adjusting the interests of parties in property; and
(b) the court must not assume that, following the breakdown of a de facto relationship, it is just and equitable that an order be made adjusting the parties’ interests in property – the mere fact of the breakdown of the relationship does not establish the requirement of satisfaction that such an order is, in all the circumstances, just and equitable; and
(c) it should not be assumed, from the breakdown of a de facto relationship, that the parties’ interest in property should be adjusted to be anything other than their existing legal and equitable rights; and
(d) the circumstances of the parties’ relationship (including the form, nature and characteristics of the same) are clearly relevant and important to the exercise of the discretion involved in determining whether, in the circumstances of the case, it is just and equitable to make an order adjusting the interests of parties in property; and
(e) the court must have a principled reason for interfering in the existing legal and equitable interests of the parties and whatever may have been their stated or unstated assumptions and agreements about property during the existence of their de facto relationship; and
(f) claims made in proceedings such as this are not to be answered by pointing to moral obligations – rather, the rights of the parties are to be determined according to law and not by reference to other non-legal considerations; and
(g) an applicant in proceedings such as this bears the onus of establishing that it is just and equitable for an order to be made altering the parties’ existing legal and equitable interests in property.
This exposition of principle was neither the subject of criticism on appeal, nor could it be. The primary judge was, accordingly, well aware of the need to conclude that it was just and equitable to alter the parties’ property interests prior to embarking upon an adjustment.
The primary judge then analysed the factual features of this case in the light of those principles, and at [39] concluded that it was just and equitable to make an adjustment.
The claim of error at Ground 1 relies upon three factual contentions, against the background of which the appellant says that the primary judge could not have determined that it was just and equitable to adjust the parties’ property interests.
The first is that there was a de facto property settlement made by the Supreme Court of Queensland in 2008. This was an uncontroversial fact identified by the primary judge both in the judgment generally, and also at [39(e)] in her analysis of whether it was just and equitable to make an adjustment.
The second factual contention is that “upon resumption and during the party’s [sic] second de facto relationship between 2009 and 2019, the parties in fact kept their finances entirely separate.”
The primary judge found [39(e)] that:
… as they had done during their first de facto relationship (the breakdown of which culminated in the Supreme Court of Queensland making property adjustment orders by consent), the parties continued to maintain separate bank accounts and to have sole legal title to various property …
However, the primary judge also found that the income from the appellant’s business was “shared”, in that he provided funds to the respondent, which she chose to “apply to the financial support of the family”.[2] Via a credit card, she used these funds to meet the household's and children’s expenses. Accordingly, the primary judge concluded that the parties had joined together financially to support the family they had created. [3]
[2] At [39(g)].
[3] At [39(j)].
These factual conclusions were contrary to the bald assertion, contained in the Ground, that the parties kept their finances entirely separate. That is, the factual contention that the parties kept their finances separate was not made out. To the extent that the Ground formed a challenge to the primary judge’s findings, it was at best oblique, and failed to identify why the factual conclusions were wrong. In the absence of identification of error, or even the identification that the underlying findings as to the manner of sharing of funds from the business were a matter of controversy at trial, the conclusion of factual error is not available.
The third aspect of the challenge was as to the primary judge’s finding that the respondent made indirect financial contributions to the appellant’s business, and to the acquisition of real property “via her primary care of the three children and discharge of homemaker contributions in a manner that enabled him to continue to focus, without distraction, on the operation of the business and acquisition of further wealth”.[4]
[4] At [39(f)]
The appellant claims that such a conclusion was not open on the evidence. In aid of this assertion of error the appellant pointed to:
(a)His operation of the business interests prior to the relationship, and prior to having children;
(b)His operation of the business interests following the birth of the parties’ first child; and
(c)His operation of the business interests during the balance of the relationship in which the parties’ two other children were born.
The contention appeared to be that the appellant was entirely capable of operating the business prior to the relationship, without the assistance of input from the respondent, and demonstrated this by continuing to operate the business in a similar fashion during and following the relationship. Ergo, it seems, the respondent brought nothing to the operation of the business and so the above finding was not open.
This missed the point well identified by the primary judge. That is, whilst the appellant was able to continue uninterrupted in the operation of the business, this was only because of the role played by the respondent in the care of the three children they had together and in the maintenance of the parties’ joint home. Without the respondent’s contribution in that role, the appellant would not have been unfettered in his pursuit of his business interests.
The finding was, contrary to the appellant’s assertion, both open and unavoidable.
The Ground was reliant upon the factual matters set out at 1(b) and (c). Neither of those factual propositions was sustainable. This is sufficient to dispose of the ground.
However, it is appropriate to further note what was else was said in Stanford at [42] regarding the determination of whether it is just and equitable to make any adjustment, being that:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order.
At [39] the primary judge carefully stepped through the factual issues including those of the express and implicit assumptions of the parties, of the nature of their joint endeavour, of their common use of property, and of the bringing to an end of those assumptions by the end of the mutuality of their relationship. This stepping through illustrated that not only was it just and equitable to adjust the parties’ property interests, but that, contrary to the controversy raised by the appellant, this was a case in which “the just and equitable requirement [was] readily satisfied.”[5]
[5] Stanford at [42].
Ground 1 will be dismissed.
Ground Two
The second ground is as follows:
The trial judge erred in failing to include in the property pool:
(a) Capital gains tax on other properties the appellant would need to realise to facilitate any cash payment to the respondent and to retire within 3 to 5 years in the amount of $3,409,104.70 as determined by a joint expert.
(b)The payments made to the respondent in the sums of:
i. $125,535 paid pursuant to paragraph 3(a) of the orders of Senior Judicial Registrar Best of 5 October 2023;
ii. $33,026.15 paid pursuant to paragraph 1(a) of the orders of Senior Judicial Registrar Best of 6 December 2023 (Amended 15 January 2024);
iii. $15,000 paid pursuant to paragraph 1(b)(i) of the orders of Senior Judicial Registrar Best of 6 December 2023 (Amended 15 January 2024);
iv. $12,000 paid pursuant to paragraph 1(b)(ii) of the orders of Senior Judicial Registrar Best of 6 December 2023 (Amended 15 January 2024); and
v. $ 29,273.85 paid pursuant to paragraph 1(b)(iii) of the orders of Senior Judicial Registrar Best of 6 December 2023 (Amended 15 January 2024).
Evidence was led at trial to establish potential Capital Gains Tax (“CGT”) liabilities in respect of the real property held by the appellant. The appellant then relied upon Rosati[6] as support for the proposition that as the various properties had been acquired as investments it was then mandatory for the primary judge to take into account their corresponding potential CGT liabilities.
[6] Rosati v Rosati (1998) FLC 92-804 (“Rosati”).
The appellant also argued that the primary judge should have taken into account the potential CGT liabilities due to the appellant’s assertions in his oral evidence that he would be required to sell particular properties to make good an order for the payment to the respondent of 20 per cent of the pool when the primary judge made an order in excess of that amount for a 40 per cent division in the respondent’s favour.
To further this ground the appellant argued that the following conclusions reached by the primary judge in support of her decision not to include the potential liabilities were wrong:
[152] (b) despite his proposal that an order be made for the applicant to receive property valued at 20 per cent of the total nett value of the property of the parties, the respondent had not proposed that any specific real property be sold to facilitate the payment of funds to her; and
(c) given that the respondent had not proposed that real property be sold to enable payment to be made to the applicant – but instead had advanced that he be ordered to make such payment within 90 days of final orders being made – the court could infer that the amount to be paid would be sourced other than by the sale of real property; and …
… (e) the court would not be persuaded that there is any evidence that the respondent will in fact sell real property to meet his obligations under any Judgment.
[156] In addition to the applicant’s accepted evidence, I note that, when cross-examined, the respondent rejected any suggestion that he transfer certain real property to the applicant – conduct that would, in essence, defer the crystallisation of any capital gains tax and absolve him of responsibility for the same, at least in relation to the transferred property. Further, despite the respondent’s evidence including the assertion that he could not make a financial payment to the applicant without selling property, the submissions made on his behalf did not specifically seek orders for sale of specified property – instead, it was contended that, if orders were made to adjust the interests of the parties in property in terms that would see the applicant receive property valued at 20 per cent of the total nett value of the property of the parties, the appropriate order was for the respondent to be required to make a cash payment to the applicant within 90 days.
It should firstly be observed that [152(b), (c) and (e)] are not factual findings made by the primary judge. Rather they are a recital by the primary judge of submissions put to her on behalf of the respondent. [156] records, accurately, that the appellant’s evidence was that he rejected the possibility of transferring properties to the respondent in a manner that would defer the crystallisation of any CGT liability. Again accurately, the primary judge records the appellant’s assertion in his evidence that he could not make a financial payment to the respondent without selling property. Accurately, the primary judge noted that the submissions for the appellant did not countenance the sale of property by him, but rather sought that if he was to be required to pay 20 per cent of the pool to the respondent, that he be the subject of an order to make a cash payment within 90 days, rather than be subject to an order for the sale of particular property.
In effect what the appellant submitted to the court below is a sufficient basis for the finding that an order requiring him to pay 20 per cent of the pool would not have required sale. The primary judge was not obliged to find that the further 20 per cent adjustment required sale absent evidence (and in light of the strong stated position of the appellant that he did not wish to be subject to an order for transfer or sale).
To the extent that the Ground relied upon these purported findings it cannot succeed.
The appellant’s argument then relied upon the Full Court decision of Rosati, and in particular upon the following paragraph as establishing a requirement that the primary judge take into account potential CGT liabilities in respect of all of the properties held by the appellant:
If the court orders the sale of an asset, or is satisfied that a sale of it is inevitable, or would probably occur in the near future, or if the asset is one that was acquired solely as an investment and with a view to its ultimate sale for profit, then, generally, allowance should be made for any capital gains tax payable upon such a sale in determining the value of that asset for the purpose of the proceedings.[7]
[7] Rosati at [6.36(2)].
The appellant submitted that this mandated the primary judge deducting CGT in this case.
Before analysing the effect and applicability of Rosati, it is appropriate to look at the two sections of the judgment that set out why the primary judge declined to deduct the estimated potential CGT liability.
The primary judge dealt with the CGT issue firstly at [151] and following. There she dealt with the case then argued by the appellant, and subsequently pursued on appeal, that an allowance ought to be made in relation to the potential CGT liability across the whole of the appellant’s real estate portfolio, deducting a sum of about $3.3 million to arrive at a net figure. The primary judge there identified that the appellant claimed that as he had acquired all of the properties for an investment purpose they, whenever sold, would incur a CGT liability. Adding to this he asserted that he intended to retire and sell the properties to fund such in three to five years time.
Importantly, the primary judge, having carefully assessed the credibility of the appellant, was unable to accept the appellant’s assertions as to his intentions in respect of the property, both as to his proposed timeframe and as to his intention to liquidate the assets at all. Rather, the primary judge accepted that the appellant had made representations to the respondent that were inconsistent with his current claim as to an intention to liquidate the properties. Accordingly, the primary judge concluded at [157] that the appellant had failed to persuade her that sale was inevitable, or likely to occur in the near future, or intended to occur at all.
Even a strict reading of that paragraph of Rosati, as argued by the appellant during the appeal, does not assist the appellant. He failed to make good the necessary facts in relation to potential disposal of the assets.
In responding to this argument mounted by the appellant it should not be thought that Rosati operates as a code for dealing with potential CGT. Rather Rosati identifies that, in exercising the discretion to include potential CGT liabilities, there is a need to examine the circumstances of the particular case, including as to the prospects of realisation of the assets, the circumstances of the acquisition and the intentions of the parties. Rosati identifies that the greater the certainty and immediacy of a CGT liability, the greater the need to take it into account. This understanding accords with the need, in determining whether an adjustment is just and equitable, to understand the reality of the assets which are the subject of adjustment and the limitations of predictions as to future events.
Consistent with such an approach, the primary judge made reference to Carruthers, where Nicholson CJ observed that the longer a property is likely to be retained, the less is the justification to take into account potential CGT liabilities, observing the potential for the holder of property to arrange tax affairs over a period of time to minimise such liability.[8] Further he observed the potential for the market to fluctuate over time, along with the liability that is not, in truth, a present liability, meaning that, at the ultimate point of sale the liability may be “quite different.”[9]
[8] Carruthers v Carruthers (1996) FLC 92-707 (“Carruthers”) at 83,486.
[9] Carruthers at 83,486.
The primary judge provided further reasons for declining to include an allowance for potential CGT liability at [228] and following where she dealt with the manner of adjustment of property to the respondent. There, in the context of the appellant opposing an order for the transfer of property to the respondent, and in seeking orders that he be obliged to make a cash payment, the primary judge engaged with the appellant’s assertion in his evidence that he would be required to sell properties at 1 and 2 GG Street, WW Street, and 1 and 2 DD Street to make good a payment. This was not an assertion that the primary judge accepted, given the profound difficulties that she identified with the appellant’s credibility.
Conscious of the CGT issue, the primary judge ordered, as sought by the respondent, the transfer of four particular properties to the respondent, unencumbered. This deferred any issue of CGT in relation to the settlement, subject to the appellant being able to refinance the properties to render them free from encumbrance. The primary judge considered that the appellant would be able to do this, noting the nature of his holdings and borrowings, and the absence of the appellant calling appropriate evidence as to the impact on his holdings in the face of this outcome which aligned with the respondent’s application. The primary judge further ordered, in the light of this analysis, the payment of a cash sum.
The appellant failed to persuade the primary judge that the orders as sought by the respondent would result in the short to medium term crystallisation of CGT.
There was yet a further matter that pointed away from the approach pursued by the appellant, being a significant deficiency in the expert evidence that he relied upon as to quantum. Although the appellant characterised the quantum of CGT as not being in dispute, identifying [160] of the judgment as support for this proposition, that was not what was described by the primary judge. The quantum referred to by the appellant was the quantum based upon particular assumptions. The parties were identified by the primary judge to have agreed that the calculation of quantum was correct insofar as it relied upon those assumptions.
However, those assumptions were not made good at trial, and so the primary judge, appropriately, concluded that the evidence was inadequate to enable the CGT to be calculated due to the assumptions that formed the basis for its calculation.
Insofar as the ground is directed to the failure to include a potential GST liability, it fails.
The second aspect of this ground is a complaint that the primary judge did not include particular payments that were the subject of pre-trial orders as a part of the pool of property.
The first difficulty encountered by the appellant is that the primary judge dealt with that aspect in accordance with the approach that she was asked to take by both parties.
By the end of the trial the parties presented the primary judge with a balance sheet containing an allowance for partial property settlements in the sum of $290,051. Their common position was that this represented the appropriate treatment of such pretrial payments. Accordingly, the primary judge included this amount as a part of the pool held by the respondent.
The appellant sought to pursue an entirely different approach on appeal, attempting to justify such a departure from his approach at trial on the basis that the evidence could have sustained a different approach by the primary judge.
In Metwally v University of Wollongong the High Court observed at [40]:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.[10]
[10] Metwally v University of Wollongong (1985) 60 ALR 68.
No good justification is advanced as to why the appellant should now be permitted to recast his case as to the payments on appeal, and to adopt a factual premise that he specifically eschewed at trial.
Both elements of Ground 2 should be dismissed.
Ground Three
The third ground is as follows:
The trial judge erred in determining the respondent’s contributions-based assessment at 35% of the asset pool found to be in excess of $24M, and that assessment was plainly wrong and outside the discretion available to the trial judge where the trial judge:
(a) had express regard to the respondent’s care of the parties two daughters following separation but did not have similar regard to the appellant’s care of the party’s son following separation; and
(b) failed to make an express finding as to the value of the appellant’s initial contributions that remained in existence at the trial on the available evidence, but rather described them as “ostensibly vastly superior initial financial contributions”, and had she done so that would have demonstrated the assessment of 35% ($8,490,324.50) was plainly wrong.
This ground is directed to the conclusion by the primary judge as to the contributions of the parties, contending it was plainly wrong. In aid of that contention the appellant particularises two factual aspects said to illustrate why the conclusion was wrong. Those matters relate to the care arrangements for the children post separation, and to the value, at the recommencement of the relationship, of the property brought in by the appellant.
The primary judge explicitly recognised the care arrangements for the children of the parties following separation. Following separation in February 2019, the parties’ children, X aged nearly 15, Y aged almost eight and Z, aged about five and half years, lived in the care of the mother. At [4] her Honour recorded how the parties agreed “that, in about August 2020, X [then aged 15] moved to live with the respondent, whilst the girls have continued to live with the applicant”. Further, at [179] it was noted that “[a]ll three children initially remained living with the applicant in the former shared residence at 1 DD Street until about August 2020, when X moved to live with the respondent”.
This recital of the arrangements was correct, and unchallenged on appeal.
Further, when it came to analysing contributions, after observing at [192] that the respondent continued with the complete responsibility for the children following separation, the primary judge at [194], consistently with her recital of the arrangements set out above, described that her assessment of post separation contributions recognised that the ongoing care of the children was of the two younger children, a matter that freed the appellant to continue to pursue his work interests.
There was no mistake as to the arrangements, nor a failure to recognise the arrangements after X moved to live with the appellant. Accordingly, there was no failure to have regard to the appellant’s care responsibilities for X.
To the extent that the complaint was as to the weight that the primary judge afforded the respondent’s care of the two younger children while the appellant had the care of X, weight is both a matter within the judgment of the primary judge, and a matter that does not constitute a recognised ground of challenge of a discretionary decision.
The second limb of Ground 3 is reliant upon a failure to make a particular finding, on the basis that such a failure led to a manifestly wrong result. The criticism was as to a failure to attribute a value to the property held by the appellant at the recommencement of the parties’ relationship.
The primary judge accepted what was uncontroversial between the parties, being that, at the recommencement of the relationship in 2009, the respondent owned a business, and also a number of real properties subject to mortgages.[11] The primary judge concluded that she was “unable to determine the extent of the equity (if any) he had in the real properties or the value of his other property when the parties started their second tranche of cohabitation”.[12] This point was reiterated at [188], where the primary judge observed that “[t]he evidence is such that I am unable to determine the quantum of the respondent’s equity in the many real properties he owned when these parties started to live together in June 2009”. Reference was made to the:
… absence of specific evidence from the respondent about the amount of borrowings (as at mid-2009) which were secured over the real properties he owned at that time ... I simply do not know whether his equity at that time, held across those many properties, was greater than or less than or not dissimilar to the combined value of the applicant’s unencumbered house at LL Street and her $133,000 term deposit.[13]
[11] At [168].
[12] At [168].
[13] At [188].
In order to address this deficiency in the appellant’s case at trial, the appellant submitted on appeal that the appropriate approach was to identify each of the items of property as at the recommencement of the relationship 2009, and then attribute to them, as at 2009, their current values and associated liabilities at the time of the trial in 2024.
Such an approach does not identify the appellant’s net property position at the recommencement of the parties’ relationship. It is not an approach that was open to the primary judge, or that could have patched the gap in the appellant’s case at trial.
The lack of a finding was the product of the evidence led by the appellant at trial. The suggested approach and finding proposed by the appellant were not open to the primary judge.
The appellant sought to rely on the dicta in Williams & Williams [2007] FamCA 313 in aid of the argument but failed to address the subsequent authority of Jabour & Jabour (2019) FLC 93-898 which observed at [43]:
We consider that the decision in Baker and Bilous indicate the Court in Williams somewhat overstated the importance of increase in value of a piece of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (Williams at [26]).
Rather, and perhaps generously to the appellant, the primary judge assessed the appellant’s initial financial contributions as “ostensibly vastly superior” to the respondent’s initial contributions, noting that she was unable, due to the failure of the appellant to provide evidence as to the state of borrowings at that time, to quantify the equity.[14] The primary judge dealt with his business and real property interests in the following manner at [189]:
I do not know the value of the same in mid-2009. Insofar as it is concerned then, I consider that the best I can do is to acknowledge that the respondent’s direct financial contribution at the commencement of the de facto relationship in mid-2009 included the business from which he was able to financially support the family in the same way that he would have been able had he been an employee.
[14] At [189] – [190].
At [191], the primary judge concluded that all she could do:
… is to acknowledge that the respondent’s pre-cohabitation ownership of real properties, many of which remain owned by him, provided the opportunity for the total nett value of the property of the parties to be increased by market-driven appreciations in value. However, in doing this, it is also necessary, in my view, to acknowledge the applicant’s indirect contribution to same via her vastly superior contribution to the homemaker and parenting obligations during the nearly 10 year cohabitation.
The challenge mounted by this ground falls within what has sometimes been described as the residual ground of House, which was there described as follows:
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.[15]
[15] House v The King (1936) 55 CLR 499 (“House”).
In attempting to make this ground good the appellant was reliant upon a factual matter that he could not sustain, and a factual matter that, contrary to his contention, was taken into account by the primary judge. Neither by virtue of those contentions, nor otherwise, has the appellant demonstrated that the assessment of contributions was plainly wrong in the sense set out in House.
Ground 3 is dismissed.
Ground Four
The fourth ground is as follows:
The trial judge erred in determining an adjustment in favour of the respondent of 5%, equating to a sum of $1,212,903.50 as there was no proper basis for any adjustment following the trial judge’s contributions-based assessment at 35% ($8,490,324.50) and that assessment was plainly wrong and outside the discretion available to the trial judge.
Again this ground is addressed to the House residual ground. Although this time the criticism is in relation to the primary judge’s assessment pursuant to s 90SF of the Act, in arguing this matter the appellant relied upon the same matters identified in Ground 3, both of which were baseless.
Neither those matters, nor the simple contention that the s 90SF assessment was plainly wrong, demonstrate such error.
Ground 4 is dismissed.
Ground Five
The fifth ground is as follows:
The trial judge erred by failing to provide adequate reasons in relation to the following:
(a) As to why it was just and equitable to make a de facto property settlement order pursuant to s 90SM(3) of the Act.
(b) The exclusion of capital gains tax as a liability of the parties.
(c) The exclusion of the partial property settlements set in paragraph 2(b) of the grounds of appeal from the assets of the parties.
(d) As to the contributions based assessment, particularly with regard to the assessment of the appellant's initial contributions; and
(e) As to why a section 90SF(3) adjustment was appropriate and just and equitable.
In Bennett and Bennett (1991) 14 Fam LR 397 (“Bennett”) the Full Court of this Court accepted that while the adequacy of reasons will depend on the circumstances of the litigation, it is necessary that reasons are sufficient to demonstrate that justice has been done, and to enable an appeal court to ascertain the reasoning upon which the decision is based.
It is notable that the appellant did not address this ground at all in his Summary of Argument and identified no deficit in the reasons provided.
It may be observed that in relation to each of the subjects identified above the primary judge set out comprehensive reasons, meeting the requirements set out in Bennett. In the absence of identification of some deficit in the reasons that were given, Ground 5 is dismissed.
CONCLUSION
The appeal is dismissed.
COSTS
Having identified that offers have been exchanged, costs were unable to be dealt with at the hearing of the substantive appeal.
Directions will be given for the filing of written submissions and relevant material to allow costs to be determined without further oral hearing subject to any application for such hearing.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Gill, Howard & Christie. Associate:
Dated: 30 April 2025
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