McMonk & McMonk - [2008] FamCAFC 123

FAMILY COURT OF AUSTRALIA

MCMONK & MCMONK

[2008] FamCAFC 123

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – PROPERTY – Findings of fact – Certain arithmetic errors raised by both the husband in his appeal and the wife in her cross appeal did not render the Federal Magistrate’s decision erroneous because the errors were minor, if not de minimus, and, being errors on both sides of the balance sheet, balanced each other out. “Pernickety” approach to minor errors rejected (see Kirby J in North Sydney Council v Ligon 302 Pty Ltd (No 1) (1995) 87 LGERA 435 at 442). Other purported errors in fact finding not established.

FAMILY LAW - APPEAL – PROPERTY – Contributions – No error in the adjustment to the contribution based entitlements of the parties in reliance upon the post separation period, either in relation to the facts as found, or in the exercise of the discretion.

FAMILY LAW - APPEAL – PROPERTY – s 75(2) Adjustment – Not established that the Federal Magistrate erred in the exercise of his discretion by determining an unduly generous s 75(2) Family Law Act 1975 adjustment in favour of the wife.

FAMILY LAW - FURTHER EVIDENCE – Relevance of evidence being available at trial discussed. Significance of further evidence arising from the Federal Magistrate’s reasons discussed. Discussion of significance of fluctuations in share holdings where both parties have held shares and wife’s shareholding worth substantially more than husband’s shareholding. Father’s application to adduce further evidence rejected pursuant to CDJ v VAJ (1998) 197 CLR 172.

FAMILY LAW - CROSS APPEAL – PROPERTY – Contributions – Not established that Federal Magistrate was impermissibly generous to the husband in determining the contribution based entitlements of the parties. Failure of Federal Magistrate to include assets of the husband at commencement of cohabitation cannot properly be criticised as the contribution finding made by her Honour represented the top of the range for the husband and including those assets would not have changed the outcome.

FAMILY LAW - CROSS APPEAL – PROPERTY – s 75(2) Adjustment – Not established that s 75(2) adjustment insufficiently favoured the wife.

FAMILY LAW - CROSS APPEAL – ADEQUACY OF REASONS – Not established that Federal Magistrate’s reasons for s 75(2) adjustment was inadequate.

Appeal dismissed. Cross appeal dismissed. Parties to each bear their own costs.

Family Law Act 1975 (Cth) s 93A; s 75(2)

Pierce v Pierce (1999) FLC 92-844
CDJ v VAJ (1998) 197 CLR 172
Farnell v Farnell (1996) FLC 92-681; (1996) 20 Fam LR 513)
Kardos v Sarbutt [2006] NSWCA 11
Norbis v Norbis (1986) 161 CLR 513
North Sydney Council v Ligon 302 Pty Ltd (No 1) (1995) 87 LGERA 435 at 442

APPELLANT:

Mr McMonk

RESPONDENT:

Ms McMonk

FILE NUMBER:

PAM

2589

2005

APPEAL NUMBER:

2008

DATE DELIVERED:

8 August 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

24 July 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

20 December 2007

Correction: 16 January 2008

LOWER COURT MNC:

[2007] FMCAfam 1144

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self Represented

SOLICITOR FOR THE APPELLANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Mr Maddox

SOLICITOR FOR THE RESPONDENT:

Self Represented

Orders

That the appeal be dismissed.
That the cross appeal be dismissed.
That there be no order for costs.
That by consent and on the joint application of the parties Order 3(c) of the orders of the Federal Magistrates Court of 16 January 2008 be amended by deleting 43.4 per cent and inserting 46.31 per cent.

IT IS NOTED that publication of this judgment under the pseudonym McMonk & McMonk is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 20 of 2008
File Number: PAM 2589 of 2005

Mr McMonk

Appellant

And

Ms McMonk

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 23 April 2008, Mr McMonk (“the husband”) appealed against orders made by Federal Magistrate Henderson on 20 December 2007 in proceedings for settlement of property between the husband and Ms McMonk (“the wife”).
On 15 May 2008 the wife filed a Notice of Cross Appeal.
By his Notice of Appeal, the husband sought that the orders for settlement of property made by the learned Federal Magistrate be “amended to a figure yet to be calculated, but less than that stated” and that certain adjustments be made to the asset pool determined by her Honour.
By her Notice of Cross Appeal, the wife sought that she be held to have a significantly greater entitlement than that determined by the learned Federal Magistrate.
The substance of the orders of the learned Federal Magistrate which gave rise to the appeal and cross appeal provided that the parties equally divide their assets, exclusive of superannuation, and that the husband pay a modest additional amount towards a social security debt of the wife.

Background

The husband is currently aged 51 and the wife is aged 44.
The parties cohabited from mid 1993 until early 2004.
There were two children of the marriage who are currently aged 14 and 12.
Since the parties separated the children have primarily lived with the wife in rented accommodation.
During that time the husband has retained occupancy of the former matrimonial home. The husband has at all material times in the post separation period paid appropriate and substantial child support.
At the commencement of their cohabitation, the husband had assets worth approximately $100 000 net and the wife had assets worth approximately $70 000 net.
The net asset pool determined by the learned Federal Magistrate, exclusive of the parties’ superannuation interests, was $397 584. The husband’s superannuation interest was worth $79 357. The wife had a superannuation interest worth $47 489.

The Judgment of the Federal Magistrate

Early in the course of her Reasons for Judgment, the learned Federal Magistrate noted that a significant aspect of the husband’s case was his assertion that the wife had generally failed to make a full and frank disclosure of her finances and had particularly failed to discharge her obligations of disclosure with respect to her shareholdings and share dealings.
Her Honour noted that the parties were in agreement that they should each retain their superannuation interests, and that no splitting orders were sought, the Court being invited to take the parties’ superannuation interests into account in the process of assessing “the just and equitable division of the assets” of the parties.
The issue surrounding the wife’s possession and disclosure of financial records was determined by the learned Federal Magistrate in the following terms:
17.It became abundantly clear during the hearing that the wife had been meticulous and scrupulous in keeping records of her share trading. As the wife continued to produce financial records throughout the four days this matter took before the Court it was clear that the husband’s concerns of some financial subterfuge by the wife were not justified. However it was also clear the wife had failed to produce documents to the husband when he had requested them and thus she had failed to disclose her relevant financial material in a timely way.
It was also noted in that regard however that:
18.…The wife did not have a real understanding of what she was obliged to produce which was effectively everything she had.
The primary issues in the case were recorded by the learned Federal Magistrate as relating to a determination of the net asset pool. Specifically, her Honour noted that:
19.….Separation certainly is relevant but the thrust of my discretion relied upon what the parties had at cohabitation and what they have today.
The learned Federal Magistrate recorded that the parties ultimately agreed upon the asset pool and that the documents submitted by each of the parties detailing those matters “provided the basis” of the Court’s “ultimate agreement of assets and liabilities to base the findings I have made”.
One of the issues discussed in greater detail by the learned Federal Magistrate related to the value of the former matrimonial home at the commencement of cohabitation. The husband had equity in that property which assumed significance in her Honour’s determination of the entitlements of the parties.
Whilst noting the “discrepancies” in values advanced by the parties, the learned Federal Magistrate ultimately concluded that determining a precise valuation of the property at the commencement of cohabitation was not required.
The assets of the parties were recorded by the learned Federal Magistrate who proceeded to calculate the percentage increases in the assets each party brought to the cohabitation by reference to the value of the parties’ assets at the date of separation.
The learned Federal Magistrate identified four major issues which required adjudication and set them out in her Reasons for Judgment, they being:
33. …
(a)The percentage value I ascribe to each of the parties financial contributions to the assets of the marriage;

(b)The percentage value I ascribe to each of the parties non-financial contribution to the assets of the marriage, including contributions as parent and homemaker;

(c)Whether the percentage value of the husband’s initial financial contribution of the matrimonial home, which home still exists today, has been affected by the wife’s contributions during the marriage; and

(d)Whether there should be any adjustment to their asset pool because of their needs under s. 75(2) of the Act being an assessment of their future needs.

This issue of the wife’s shareholding activities earlier identified by the learned Federal Magistrate was resolved by her Honour in the following finding:
35....although the wife did not make an overall loss on her share trading she did not make the profit she might have hoped she would have made. Thus, I find that the wife did engage in frequent share trading and share transfer during the marriage. I further accept the wife’s current disclosure regarding her share portfolio and am satisfied she has disclosed her financial position to the Court albeit late in time.
The contribution based entitlements of the parties were discussed by the learned Federal Magistrate who recorded:
39.…the husband’s position that his contribution of his income was 100% and the wife’s much less was not supported by facts. I could not find one piece of evidence, or concern, or unexplained movements of money to support the husband’s position that the wife did not use every bit of money she had to assist in supporting her family, particularly the money she earned by way of income.
It was accepted by the learned Federal Magistrate that:
40.…The income she [the wife] earned was put towards the support of the family in that she assisted the husband to pay off the mortgage on the home, repay the loan to his parents, the payment of child support for his three children and support the parties’ own two children.
The learned Federal Magistrate noted the “serious financial difficulty” in which the husband found himself at the time the parties commenced cohabitation.
Her Honour found that:
43.…The wife assisted the husband in paying off $44,000 of those debts from monies she had at cohabitation and money that she earned during the marriage. The husband made the remaining reduction of $11,000 from his cashed in insurance policy.
It was further found that:
44.…the husband’s financial position could not have been retrieved so quickly unless the wife used the resources she had acquired before meeting him to assist him to get his financial position back on track.
In this context the learned Federal Magistrate noted that:
46.The husband has failed to take account of the significant financial contribution by the wife.
Her Honour also referred to the husband’s “chequered work history” and the care of the children of the marriage by the wife whilst the husband was working.
Reference was made by the learned Federal Magistrate to the redundancy payment of $13 000 received by the husband which was used for the family’s benefit. Her Honour pointed out however that “the wife made a substantial contribution to that redundancy payment which was as a result of employment during the marriage” and recorded her acceptance of “the husband’s evidence that all money he earned or obtained he put towards the benefit of the family” including his unfair dismissal payment of $3500.
The relative working patterns of the parties throughout the course of their marriage and further financial and non-financial contributions were examined by the learned Federal Magistrate, as were the future earning capacities of the parties.
Whilst noting the potential future earning capacity of the wife, the learned Federal Magistrate did not accept the husband’s submission that the wife was in a better financial position to support herself than the husband by reason of her younger age, permitting her a longer period in which to be employed, and her having a partner to help her.
The learned Federal Magistrate concluded:
60.At best the wife can earn, perhaps, 50% of the husband’s income but more likely 40% of his gross income. She has no secure work or prospect of secure work. She now has 50% of the husband’s superannuation entitlements. She has rented since separation whilst the husband has had the benefit of living rent-free in the home, and has a significantly diminished capacity to support herself in the future due to her role as mother, parent and homemaker and supporting the husband obtaining his qualifications.
After outlining the “four staged approach” (para 62) which the learned Federal Magistrate considered to be required of her in determining the competing applications, two “significant factors” in the matter were identified and addressed.
The first issue thus identified was:
68.…the value of the husband’s initial contribution of the matrimonial home over and above his other financial contributions of income earning and the like and whether the significance of that contribution should be adjusted due to the wife’s financial contribution to the marriage.
Reference was made to the decision of the Full Court of this Court in Pierce v Pierce (1999) FLC 92-844, her Honour noting that “it [was] also relevant how the parties used that initial financial contribution”.
The conclusion of the learned Federal Magistrate with respect to the impact of the parties’ initial contributions was expressed in the following terms:
69.The husband had a significant initial contribution to the value of current assets of the parties in that the home is now the most valuable asset and was used as a family home for the parties and their sons. The wife contributed her significant pre-marriage assets in paying off debts to the husband’s parents and others, assisting in paying the mortgage and paying ongoing child support for the husband’s children from her more limited income and her pre-marriage assets. I have assessed, consistent with the husband’s counsel’s submissions that the husband’s entitlement based upon his past contribution to the current assets to be 65% and the wife 35%.
With respect to other contributions during the marriage, the learned Federal Magistrate concluded that “the wife’s contribution as a parent and homemaker during the marriage and her contribution to the care of the children since separation” was “superior to that of the husband and I will allow her 5% for that contribution”.
Her Honour considered relevant s 75(2) factors and recorded her conclusions with respect to them in the following terms:
71.As to the 75(2) factors, these are the relevant considerations. The husband is in a superior financial position to the wife both as to income and superannuation. The husband has financially benefited from the marriage in that he obtained a degree to provide him with his secure employment as a teacher.
72.The wife’s financial position deteriorated during the marriage due to her role as a parent and homemaker and in supporting the husband in obtaining his qualifications. The marriage has significantly negatively impacted on the wife’s income earning capacity and ability to further study which I accept she wished to do.
73.In contrast, the husband’s financial position has prospered during the marriage.
74.The husband has had the sole benefit of the home to the exclusion of the wife and the children since separation for three and a half years. The wife has rented.
75.The wife’s present earning capacity is at best 50% of the husband. Although the wife has superannuation the husband had a capacity to pay twice that which was required of him by his employers towards his superannuation and build up income for the future since separation. The wife has no such capacity.
76.The wife has the primary care of the parties’ children. I find the wife’s 75(2) factors vastly outweigh the husband and that she is in a far less financially secure or able position to support her in the future and I will allow her an adjustment of 10% for those factors.
The controversial Centrelink debt issue was then addressed by the learned Federal Magistrate who concluded that:
77.…The wife paid from her own resources a Centrelink debt of $5,000 after separation which came about when the husband was studying.
In those circumstances, her Honour exercised her discretion to visit one half of such debt ($2500) upon the husband.
After noting her conclusion that the parties should share equally in their assets, other than superannuation (para 79, page 14), the learned Federal Magistrate considered whether orders to that effect would be just and equitable as required by s 79(2) of the Act (para 80, page 14). In the course of that exercise, the learned Federal Magistrate considered the current income and expenditures of the parties (paras 81-82, page 14). Her Honour acceded to the husband’s desire to have the opportunity to retain the parties’ former matrimonial home.
For the reasons which she thus detailed, the learned Federal Magistrate concluded that the proposed division of the property of the parties pursuant to s 79 of the Family Law Act was “just and equitable” as required by s 79(2) (para 85, page 15).
Finally, the learned Federal Magistrate, consistent with authority, made an order for a percentage division of the proceeds of sale of the former matrimonial home in the event of the husband exercising the option to purchase the wife’s share which her Honour gave to him. It is common ground that the percentage thus appearing in the learned Federal Magistrate’s orders involved a minor mathematical error and that, whatever else happens or does not happen in the current proceedings, that mathematical error should be addressed.

Amendment of the orders of the Federal Magistrate by consent

As noted, it is common ground that the figure of 43.4 per cent provided for in Order 3(c) of the orders made by the learned Federal Magistrate constituted a mathematical error and that the figure of 46.31 per cent should be substituted for that figure in Order 3(c).
To that extent if no other, the cross appeal could be allowed to facilitate such correction. It is readily apparent, and beyond dispute in the Court’s view, that the learned Federal Magistrate could and would have amended the percentage in this manner had either party asked her Honour to do so.
If the appeal and cross appeal are otherwise both unsuccessful, and whilst so doing involves a degree of artificiality, the Court could allow the cross appeal and amend the percentages rather than put the parties to the expense and inconvenience of re-listing the matter before the learned Federal Magistrate for the percentages to be altered pursuant to the provisions of the Slip Rule. Alternatively, and preferably, the Court could by consent amend the order without allowing the appeal or the cross appeal.

The husband’s appeal

The husband filed a compendious document styled “Application in a Case” on 13 May 2008 and filed with it an affidavit sworn by the husband. The documents are a mixture of submissions and attempts to adduce further evidence.
As is apparent from reading the husband’s affidavit, much of the “further evidence” is not further evidence in the strict sense in that, it is reasonably apparent from reading the husband’s affidavit, the desirability of adducing or in some instances obtaining and adducing the evidence there detailed became apparent to the husband after the delivery of the learned Federal Magistrate’s Reasons for Judgment. There is no reason not to think that such evidence was available and able to have been adduced before the learned Federal Magistrate.
It is perhaps not without significance that the husband was represented before her Honour but has dispensed with legal representation before this Court.
In his 22-page outline, the husband raised a number of issues, some relating to the determination of the pool of assets of the parties, some relating to the exercise of discretion. As a reading of the final submissions made to the learned Federal Magistrate makes clear, many of the issues now agitated by the husband were not raised in final submissions before the learned Federal Magistrate.
The matter has proceeded on the basis that, for reasons which will be intimated during the course of dealing with the extensive arguments advanced by the husband in support of his appeal, the Court would consider the whole of the husband’s documentation but, unless the Court concluded in accordance with the judgment of the majority in CDJ v VAJ (1998) 197 CLR 172 that any “further evidence” sought to be adduced by the husband might be thereby admissible, the Court would not receive such further evidence.
Whilst, as the decision in CDJv VAJ (supra) makes clear, the fact that the further evidence would have been able to be adduced at trial does not preclude the reception of further evidence on appeal, unless the evidence clearly has the effect described by the majority in CDJ v VAJ it ought not be received in the exercise of discretion.
In CDJ v VAJ (1998) 197 CLR 172 the High Court majority, McHugh, Gummow and Callinan JJ, explained the operation of s 93A of the Act:
One consideration in construing s 93A(2) is its remedial nature. 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. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made. (at 201).
It would be undesirable, and inconsistent with the remedial nature of s 93A of the Family Law Act (“the Act”) to readily allow further evidence to be received on appeal where, as was significantly so in this case, that evidence could have been adduced at trial and is probably only sought to be adduced on appeal in reliance upon matters emerging in the learned Federal Magistrate’s Reasons for Judgment.
To adopt other than a fairly robust approach to the application of s 93A in this case would be potentially to materially alter the nature of an appeal to this Court and, in a practical sense, allow a litigant two opportunities to present his or her case. The judgments of the High Court in CDJ (supra) do not appear to provide encouragement for such an application of the provisions of s 93A of the Act.
The first complaint made by the husband is that the learned trial Judge included in the property of the parties to the marriage the sum of $9401 with respect to an insurance policy held by the husband. The husband complained that this sum should not have been included as the policy had matured or been redeemed in December 2005. The husband submitted that upon maturity it had “become a bank account with insurance company”.
In reliance upon his assertion, the husband referred to the financial statement sworn and relied upon by him in the proceedings. That statement was sworn in the month preceding the commencement of the trial before the learned Federal Magistrate. The husband there disclosed no insurance policies. He did however disclose an insurance company Advantage Account in his name with a credit balance of $15 000.
The husband contended that there was no other evidence before the learned Federal Magistrate to support a finding that he had an insurance policy of the magnitude found by the learned Federal Magistrate or otherwise. Nothing to which the Court has been referred on behalf of the wife directly contradicts the husband’s assertion that he in fact did not have an insurance company policy to which the learned Federal Magistrate referred. It was however submitted by reference to the evidence of the husband at trial that the husband had at separation in 2004 an insurance company policy then worth approximately $27 000.
The issue is not without uncertainty. Neither party has suggested how the learned Federal Magistrate came to include the sum of $9401 with respect to an insurance policy. It is inconceivable that the learned Federal Magistrate included that figure in the absence of some material suggesting that it was reasonable to do so. The Court does not perceive its obligations to include going through the totality of the material in order to discern whether or not the learned Federal Magistrate erred in including the sum of $9401 with respect to an insurance policy in the possession of the husband.
The issue is perhaps complicated by the second complaint made by the husband which relates to the inclusion of the husband’s term deposit (in insurance company) in the sum of $15 000 which her Honour described as “amount left over after cashing in an insurance policy to buy household goods after separation”.
As noted earlier, there is no issue that at separation the husband had an investment, to put it neutrally, in insurance company of about $27 000. The two figures included by the learned Federal Magistrate ($15 000 and $9401) closely approximate that sum.
The husband, in a financial statement sworn one month before the trial, disclosed that he had $15 000 in an insurance company investment account. As his written material and oral submissions make clear, the husband’s real complaint is that the learned Federal Magistrate did not reduce by approximately $9000 that $15 000 balance in the light of evidence given by the husband that the balance had been reduced by that amount by the payment of legal fees.
Confronted with the probability that reducing the $15 000 by the amount paid for legal expenses would not have changed the balance sheet as such sum was likely to be added back, the husband asserted that the learned Federal Magistrate had erred in including the whole sum of $15 000 as his costs had been increased by the conduct of the wife. The husband relied upon the learned Federal Magistrate’s findings that the wife had not given discovery and inspection in a timely manner, notwithstanding her finding that the wife had ultimately fully and frankly and accurately disclosed her financial circumstances.
In those circumstances, whilst her Honour may have taken a different view with respect to the husband’s paid legal expenses, this Court is not persuaded that including the whole of the sum of $15 000 was in fact erroneous. It would have been open to her Honour to reduce that $15 000 by $9000 with respect to the husband’s paid legal expenses and then add back those expenses (see Farnell v Farnell (1996) FLC 92-681; (1996) 20 Fam LR 513).
It is convenient at this point to refer to a matter raised in support of the wife’s cross appeal, and by way of response to these challenges on the part of the husband.
It was submitted on behalf of the wife that the learned Federal Magistrate had failed to take into account assets which the husband admitted he had “failed to disclose”, they being $11 000 held in the husband’s name in trust for the children, a Bank balance of $1144, a coin collection conceded to be worth $5500, 650 shares worth $340 and undisclosed shares worth $847.
Accepting that her Honour was not obliged to go behind the trust accounts in the sum of $11 000, the sums revealed by the evidence of the husband as being able to be added back into the balance sheet reasonably approximated the $9 401 included with respect to the husband’s redeemed insurance policy.
Whilst it might in a pure sense appear less than an ideal approach, in reality, to allow the husband’s challenge to the inclusion of $9401 for his redeemed insurance policy would not advance his appeal as a sum very close to that sum would be able to be added or offset by virtue of the assets not included to which the wife has referred the Court. In that sense, the husband’s challenge to the inclusion of the $9401 would be entitled to succeed, there being no demonstrated evidentiary foundation for such a figure. The wife’s cross appeal would also be entitled to succeed with respect to the assets to which reference has been made. There would be no, or minimal, net impact upon the balance sheet as a result. The trial Judge’s decision would thus not be rendered “erroneous”, either by the evidence at trial or any further evidence.
It is common ground between the parties that the next matter complained of by the husband has substance, it having been agreed at trial that all superannuation interests should be regarded as financial resources rather than included in the asset pool. So doing, the sum of $7000 included by the learned Federal Magistrate as an asset of the parties with respect to the “wife’s life pension” being included as a financial resource rather than an asset, the “total assets for division which excludes the parties’ superannuation entitlement” would have been $390 584 rather than $397 584 as found by the learned Federal Magistrate.
Applying her Honour’s conclusions with respect to the entitlements of the parties to that sum, it is plain that the entitlements of the parties would proportionately be reduced. On the other hand, when considering s 75(2), the learned Federal Magistrate would have been obliged to increase the wife’s superannuation entitlement by the $7000 thus excluded from the assets available “for division”.
It is apparent that the learned Federal Magistrate’s contribution based finding with respect to the $7000 pension interest amounted to $4200 on the part of the husband and $2800 on the part of the wife. Their entitlements on a contribution basis would accordingly be reduced to that extent by its removal from the asset pool. On the other hand, once that sum was taken into account under s 75(2), however modest its impact might have been, it would have been liable to reduce the s 75(2) adjustment in favour of the wife by virtue of the disparity in the quantum of the parties’ superannuation interests.
Objectively, the amount involved is so small relative to the total net assets (less than 2 per cent of such assets) that excluding the $7000 from the list of assets and taking it into account in the context of s 75(2) could at most have produced but a minimal change to the beneficial entitlements of the parties determined by the learned Federal Magistrate.
That being so, other than by adopting what Kirby J has described as a “pernickety” approach in North Sydney Council v Ligon 302 Pty Ltd (No 1) (1995) 87 LGERA 435 at 442, appellate intervention could not be justified. The Court does not propose upholding this challenge.
A matter raised by the husband in considerable detail relates to the changes in values of the share portfolios of the parties after the delivery of her Honour’s Judgment. The husband sought to adduce further evidence in relation to these alleged changes.
As the husband confirmed, the broad thrust of his contention was that the shares which the parties held had reduced in value by 50 per cent, or perhaps more, since the trial Judge’s orders were made. The husband thus asserted, in reliance upon the material he advanced, that the trial Judge’s conclusion could be shown to have been erroneous.
The Court struggles to understand, and nothing advanced by the husband removes that difficulty, how the husband is effectively disadvantaged if, as he claims, and as may be the case, the value of the shares held by the parties has in fact been reduced by 50 per cent or more since the delivery of the learned Federal Magistrate’s judgment, given that on the husband’s assertions he was to retain, and was credited with retaining, shares worth then $11 281 which are now said to be only worth approximately $5600, whilst the wife was to retain, and was credited with retaining, shares then worth $46 602 which are now said to be worth $23 300.
On balance, to the extent that the husband was to retain something worth significantly less than was the case at the date of her Honour’s Judgment, the wife was to receive something worth even less than was the case at the date of her Honour’s Judgment. At best for the husband, on the assertions made by him, each party would proportionately be as disadvantaged by the decline in share values as would the other. It may be that the decrease in value of the parties’ shares impacts more upon the wife than the husband.
There are other reasons why the Court does not accept that the further evidence sought to be adduced with respect to share values should be admitted or could have the effect required by CDJ v VAJ (1998) 197 CLR 172.
It is significant that the fluctuations in share values in this case are suggested by the husband to be of similar order with respect to the shares of both parties. This is not a case where only one party hold shares. The reality is that share prices are always liable to fluctuate, and the fact that they have is not in the Court’s view further evidence rendering erroneous the trial Judge’s decision in the circumstances of this case.
It is not in contest that the values of the shares were as her Honour found them to be at the date of Judgment. Moreover, whilst not suggesting that the changes in the values of the assets are de minimus, to allow the appeal and remit the proceedings for further hearing with respect to assets totalling less than 7.5 per cent of the total non-superannuation assets of the parties would be entirely disproportionate to the costs, expense and uncertainty of so doing. This challenge accordingly fails and the application for leave to adduce further evidence in support of it will be rejected.
To the extent that the husband sought to advance this challenge by reference to possible beneficial taxation implications for the wife of the diminution of the value of the parties’ shareholdings, quite apart from the fact that the Court will not allow the further evidence of the reduction in share values, there is no admissible evidence before this Court and there was no admissible evidence before the learned Federal Magistrate which could provide a foundation for accepting the husband’s assertion as to the ability of the wife to claim tax losses or offsets with respect to future share trading.
The husband complained that the learned Federal Magistrate erred in finding that the mortgage over the matrimonial home, which the husband owned at the date of commencement of cohabitation had been reduced by $5000 in less than two years after cohabitation commenced. It is ultimately less than entirely clear what legal basis this claim is suggested to have, other than that the husband feels that he was hard done by.
The husband does not dispute that the mortgage over the matrimonial home was in fact reduced by $5000 during the first two years of the parties’ cohabitation. For a significant part of that period there was a child of the marriage. The husband does not dispute that the wife had, and applied to the cohabitation, the not insignificant assets which the trial Judge found that she had when cohabitation commenced.
Quite apart from the de minimus nature of the impact which the $5000, thus found by the learned Federal Magistrate to have arisen by virtue of the contributions of both parties, had or could have had on the ultimate outcome of the case, it is to be remembered that the learned Federal Magistrate concluded, uncontroversially for the purposes of this appeal, that the husband’s financial contributions significantly exceeded those of the wife.
On any view of the evidence, the husband having had approximately $30 000 more than the wife at the commencement of cohabitation ($100 000 approximately as against $70 000 approximately), concluding that the husband’s entitlement to the assets available for division exceeded that of the wife by approximately $80 000 at the date of hearing, can be seen as potentially representing the “top of the range” for the husband.
Thus, whatever significance her Honour attached to the $5000, and the wife’s indirect financial or non-financial contributions to the $5000 reduction in the mortgage during the first two years of cohabitation, it cannot be successfully suggested that this ultimately resulted in the husband’s contribution-based entitlement being unfairly or impermissibly undervalued by her Honour.
The husband then complained of the trial Judge’s conclusion that he should bear one half of the Centrelink debt incurred by the wife in the sum of $5000. The husband did not dispute that the debt had been incurred by the wife and did not dispute any of the findings of fact made by her Honour in relation to the circumstances surrounding the payment to the wife and her obligation to repay that sum.
The husband was invited to direct the Court to any evidence which suggested that it was not reasonably open to the trial Judge to visit the debt equally upon the parties. The husband was unable to refer the Court to any evidence which obliged the trial Judge to visit the whole of the $5000 Centrelink debt upon the wife.
The husband complained about contributions made by him in the post separation period, the effect of his complaints apparently being that his contribution based entitlements should have been increased by virtue of the post separation period, a claim made almost in mirror reverse by the wife. As with other issues agitated by the husband and to a lesser extent the wife, before this Court, a number of the complaints made by the husband in relation to this issue did not warrant agitation before the learned Federal Magistrate.
The evidence before her Honour in relation to the post separation period was inconclusive as to whether either party, on balance, should be considered to have his or her pre-separation contribution entitlements increased. Her Honour specifically addressed the post separation period. The learned Federal Magistrate made an adjustment to the overall contribution finding in reliance upon the evidence in relation to the post separation period.
It is clear that in the post separation period the husband paid certain things from which the wife and children benefited, over and above his payments of child support. The husband paid outgoings with respect to the former matrimonial home, but conveniently overlooked the reality that he was occupying the home to the exclusion of the wife and the children. The husband made a number of other sweeping assertions unsupported by any reference to the evidence before the learned Federal Magistrate at trial. Nothing to which the husband has referred this Court establishes that her Honour erred in adjusting the contribution based entitlements of the parties in reliance upon the post separation period, either in relation to the facts as found, or in the exercise of her discretion.
To the extent that the husband complained in this context of assets which he had at the commencement of cohabitation but had failed to include, the failure to do so cannot properly support criticism of the learned Federal Magistrate. Moreover, given that on any view of the evidence, the contribution finding made by her Honour represented the top of the range for the husband, in this Court’s view including the additional assets which the husband now claimed should have been could not have changed the outcome.

The husband complained that the learned Federal Magistrate relied excessively upon the wife’s contributions of pre-cohabitation capital. It is unnecessary to refer to the minutiae raised by the husband in relation to this topic. As the learned Federal Magistrate found, and is not seriously challenged, or able to be successfully challenged, the husband had net assets of about $100 000 at the commencement of cohabitation. The wife then had net assets of about $70 000.
Thereafter, the parties applied their energies and skills for the benefit of the family in various ways which do not appear to have been the subject of vigorous criticism at trial. Both parties applied their capital. To the extent that shares may not have been realised, those funds were reflected in the assets available for division between the parties at the trial of the proceedings.
Objectively, when it is accepted, as it was able to be, that both parties had capital of the magnitude indicated when cohabitation commenced, and that their contributions were otherwise essentially equal, it is of no consequence to seek to point to how particular sums of pre-cohabitation capital were applied in circumstances where there is no suggestion that such capital was applied in its entirety and/or retained other than for the benefit of the family. The kind of nitpicking exercise which permeates the husband’s submissions in relation to this topic fails to recognise, as the learned Federal Magistrate clearly did, that the proceedings involved the exercise of a broad discretion rather than some intricate and exhaustive kind of tracing exercise.
It is relevant to remember that, notwithstanding that the husband’s initial capital contributions exceeded those of the wife by only $30 000, the disparity of contribution based entitlements favoured him by the sum of $80 000. On no reasonable exercise of discretion in reliance upon the evidence before her could the learned Federal Magistrate in this Court’s view have properly awarded the husband more than her Honour did. That is not said as a criticism of her Honour, but to state the reality that, contrary to his assertions, the husband was at least awarded the “top of the range”.
The contention on behalf of the wife, which will be considered in the context of her cross appeal, is that her Honour’s award exceeded the top of the range for the husband. The Court will deal with that in due course, but for present purposes, it is sufficient to record that the complaints made by the husband in relation to contributions cannot succeed.
To the extent that the husband complained that the wife did not use her pre-marital assets to support the family, his contentions conveniently overlook the reality that, to the extent that the wife’s pre-cohabitation assets were thus not utilised, they were either reflected in the asset pool to which the learned trial Judge referred or utilised by the wife, presumably in the post separation period, in ways which have not been shown to have warranted criticism.
The husband’s submissions in relation to the wife’s activities involving shares are not supported by reference to evidence before the trial Judge and represent in large measure reconstructions or assertions unsupported by evidence. Nothing raised by the husband in this context provides a basis for appellate intervention.
The husband complained that the learned Federal Magistrate erred in finding that the wife had no income “at present, save for social security payments and child support”.
The wife’s financial statement, sworn shortly before the trial, revealed an average weekly income at that time of $420 per week. As Counsel for the wife demonstrated, the wife gave evidence that her employment had terminated shortly prior to the trial and that she was not in receipt of income from employment at that time. Paragraph 83 of her Honour’s Reasons for Judgment was thus literally accurate. The matter however has greater significance by virtue of her Honour’s finding (paragraph 75) as to the comparative earning capacities of the parties. It is apparent from paragraph 75 that although the wife was not at the date of trial earning $420 per week, her Honour, as was open to her in this Court’s view, regarded that as the wife’s capacity to earn income. That was consistent, or perhaps somewhat generous to the husband as the wife’s learned Counsel submitted, with her Honour’s conclusion that the husband had twice the earning capacity of the wife.
Thus, although her Honour, accurately, found that the wife was not in receipt of income from employment at the date of judgment, she did not err by then assessing the wife’s earning capacity on that basis. On the contrary, and correctly, her Honour assessed the wife’s earning capacity on what was revealed by her own evidence to have been that capacity over a period of time.
The husband sought to rely on a document received by him from the Child Support Agency and dated 11 March 2008 which revealed the wife to have had a “child support income amount” of $37 500 based on the “06/07 taxable income plus any supplementary amounts”.
The husband thus argued that, contrary to the learned Federal Magistrate’s finding that the wife had a capacity to earn about $20 000 per year, her capacity was double that sum.
The Court does not accept that this is necessarily the case. The Court is unaware, and has not been referred to anything which establishes how the figure identified and relied upon by the Child Support Agency was calculated. Moreover, it is clear that the wife derived income from her shares and received monies in the sum of about $10 000 per annum from Mr W by way of board. It is not difficult to reconcile the figure appearing in the Child Support Agency letter of March 2008 with the wife’s evidence before her Honour and her Honour’s findings as to the comparative abilities of the parties to derive income. Thus, the basis for receiving into evidence in the appeal the Child Support Agency statement of March 2008 is not established.
To the extent that the husband complains that the wife has greater financial resources by virtue of Mr W than the learned Federal Magistrate found to be the case, nothing to which he has referred this Court establishes that complaint. To the extent that the husband persisted before this Court with his complaint that the wife failed to disclose assets, nothing to which the husband referred this Court establishes that the trial Judge’s conclusions in that regard were other than reasonably open to her.
The husband complained of the trial Judge’s conclusion that “the marriage has had a positive outcome for the husband in terms of his earning capacity”. It is appropriate to set out in its entirety what her Honour did say in that regard:
56.I find that the marriage has had a positive outcome for the husband in terms of his income earning capacity and his capacity to support himself in the future. He has a mortgage-free home, virtually no debt. He has acquired further training at university ad he has secure long-term employment as a teacher.
The husband did not dispute the factual matters to which her Honour referred in the paragraph set out above. Objectively, as is clear from a balanced reading of her Honour’s Reasons for Judgment, to the extent that regard was had to the impact on the husband’s earnings of the cohabitation of the parties, that was ultimately reflected in and limited to the disparity in earning ability of the parties which, as has been noted earlier, was not insignificant. There was both a qualitative and quantitative disparity in the earning ability of the parties as her Honour recorded. The husband had the ability to earn twice what the wife could earn, and in the context of undisputedly secure employment. As the evidence makes clear, the wife had no corresponding or similar security of tenure in her employment. With respect to him, the submissions made by the husband involve reading into her Honour’s statement matters which are neither inherent in nor implied by those findings.
No ground of appeal of the husband, save with respect potentially to the $9400 insurance policy challenge having been made out, his appeal should be dismissed. That is unsurprising. The evidence before the trial Judge revealed that the husband brought to the cohabitation of the parties greater capital than the wife ($100 000 approximately as against $70 000 approximately). Thereafter, the evidence revealed the contributions of the parties of a periodic nature, both financial and non-financial, to have been essentially equal.
To the extent that the contributions may have been unequal after the parties separated, nothing to which this Court has been referred provides a basis for concluding that such inequality favoured the husband. Against that background, the learned trial Judge’s conclusion that contributions favoured the husband by some 20 per cent, or just under $80 000, cannot be seen as unreasonable or unfair to the husband. It remains to consider whether, as the wife contends, such a division was impermissibly generous to the husband.
It can with confidence be said that if the contribution finding made by the trial Judge fell within the ambit of a reasonable exercise of discretion, it would comfortably accommodate any or all of the minor errors of fact asserted by the husband. This is particularly so when regard is had to the assets of the husband which were not included in the assets of the parties to which the learned Federal Magistrate had regard.
So far as the s 75(2) adjustment in the wife’s favour was concerned, whether, as the wife contends, the adjustment was inadequate or not, on no view of the evidence before the learned Federal Magistrate, could it be successfully asserted that the s 75(2) adjustment was unduly generous to the wife.
The husband had the capacity to earn twice what the wife could earn and in circumstances involving far greater security of tenure than was available to the wife. The wife had the primary responsibility to house and nurture the children of the marriage, albeit the husband was paying and would continue to pay appropriate child support. Those factors would, as the learned Federal Magistrate suggested, justify an adjustment of the magnitude determined by her Honour to be appropriate.

The Cross Appeal

The wife filed a Notice of Cross Appeal in which every conceivable challenge to the decision of the learned Federal Magistrate appeared. Mercifully, learned Counsel who represented the wife before this Court focused only on those challenges which were capable of enlivening appellate intervention. For that the Court is grateful to Counsel for the wife.
The first complaint agitated on behalf of the wife has earlier been referred to in the context of the husband’s appeal. That complaint was that her Honour failed to take into account assets which the husband was asserted to have “admitted” to have “failed to disclose”, they being the understated bank balance ($11 044), coin collection ($5500), company shares ($2340) and shares ($847), the total value of which was $19 731.
As noted earlier, Honour was not obliged to go behind the $11 000 bank account held by the husband and impressed with a trust for the children. There were trust funds, a trustee and beneficiaries. The trust had been perfected on the evidence before her Honour. Absent clear evidence that the husband intended to breach the trust, or otherwise benefit from it, it was open to her Honour to decline to include that sum.
Theoretically, just as the husband’s appeal might succeed with respect to the $9401 insurance policy, this challenge might succeed to the extent of $8727.
Realistically however, given that these successes would change nothing, if no other challenge raised by the wife’s cross appeal finds favour with this Court, the Court would not allow either the appeal or the cross appeal on these bases.
As earlier recorded, both parties agreed that the trial Judge had erred in including in the assets of the parties the wife’s $7000 pension fund, the case being conducted on the basis, as her Honour clearly recognised with respect to other superannuation interests, that superannuation would be considered within the context of s 75(2). Theoretically, the $7000 should thus be removed and the wife’s entitlement to superannuation for the purpose of s 75(2) increased to $53 000. The asset pool being accordingly reduced, the entitlement of each party would be correspondingly reduced. The husband’s entitlement would be reduced more than that of the wife as he was credited with 60 per cent of that interest and the wife with 40 per cent on a contribution basis.
On the other hand, the adjustment appropriate to be made in favour of the wife by virtue of s 75(2) would, no doubt by very little, have to be reduced when her superannuation interest was increased from $46 000 approximately to $53 000 approximately.
Realistically, without descending into the mathematics of the matter, it is clear that the impact of removing the wife’s pension fund from the asset pool and reflecting it in the s 75(2) adjustment would be effectively to give with one hand and take with the other. Ultimately, this exercise would produce an alteration of miniscule magnitude to the learned Federal Magistrate’s decision and, other than by adopting the kind of pernickety approach which Kirby J has, with respect, so sensibly denigrated, is not a course which this Court would adopt.
The first complaint raised on behalf of the wife was that the learned Federal Magistrate failed to take into account legal fees paid by the husband from insurance monies. Her Honour did not expressly take into account such legal fees. She did however include at $15 000 the husband’s insurance company account from which those fees were paid. The evidence before her Honour was that the fees had been paid and that the balance of the account was in fact not $15 000 but approximately $6000, the difference being referrable to the payment of legal fees. Thus, her Honour did not err. The legal fees were effectively added back as the wife claims they should have been.
On behalf of the wife the learned Federal Magistrate was asserted to have erred by failing “to consider post separation contributions, particularly the husband’s mortgage and rent-free use of the home and the wife’s greater responsibility for the children”.
As is apparent from this Court’s earlier review of the learned Federal Magistrate’s Reasons for Judgment, her Honour considered the post separation period and, for reasons which she detailed, made an adjustment to the contribution based entitlements of the parties of 5 per cent in the wife’s favour. That 5 per cent adjustment represented a disparity of 10 per cent or approximately $40 000. It has earlier been noted that nothing raised by the husband in this Court establishes error in the learned Federal Magistrate’s exercise of discretion so far as the interests of the husband were concerned. Similar observations apply to the complaints agitated on behalf of the wife in the context of her cross appeal.
No finding of fact upon which the learned Federal Magistrate relied in support of her conclusion in respect of the post separation period has been shown to have been erroneous. No extraneous fact or circumstance was taken into account in the exercise of her Honour’s discretion, nor was any relevant fact or circumstance not considered. Her Honour was not obliged, and the evidence probably did not permit it in any event, to record in minute detail why she concluded that a 5 per cent adjustment for the post separation period was appropriate.
The factors which were influential in that regard were that the husband had had the benefit of occupancy of the former matrimonial home whilst the wife had, in circumstances where she had a significantly lower income than the husband, the greater obligation to contribute as homemaker and parent.
Whilst other judges might have adjusted, with respect to the post separation period, to a greater extent than did the learned Federal Magistrate, that is not the test. In the exercise of an undoubtedly broad discretion, the learned Federal Magistrate adjusted the contribution based entitlements of the parties in the manner and for the reasons she did. Nothing to which this Court has been referred establishes error on her Honour’s part.
The Court now turns its attention to the wife’s contentions in relation to her Honour’s contribution findings. As noted earlier, the contribution based entitlements of the parties as found by the learned Federal Magistrate favoured the husband by 20 per cent or almost $80 000 in a case where the tangible assets were worth just under $400 000. That outcome arose against a background of the husband introducing approximately $30 000 more capital to the cohabitation than did the wife. That $30 000 needs to be seen in the context that, as the learned Federal Magistrate found, the husband introduced almost 50 per cent more by way of capital than did the wife.
Having considered the intervening contributions, as was required of her by decisions such as Pierce v Pierce (1998) FLC 92-844; (1998) 24 Fam LR 377 and perhaps Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11, the learned Federal Magistrate was in this Court’s view entitled to regard the husband’s contributions to be greater than those of the wife on an overall basis to the date of separation.
In the post separation period, the husband earned more income than did the wife. Both parties had capital available to them. The evidence did not permit the learned trial Judge to make definitive findings about the utilisation of capital by the parties in the post separation period. This Court is even less favourably placed in that regard.
The wife and the children of the marriage lived in rented accommodation in the post separation period whilst the husband occupied the former matrimonial home free of rent and mortgage payments. The wife clearly had the greater responsibility for the children during the post separation period albeit the husband paid appropriate child support at all material times. For a small portion of the post separation period (about 8 months) the wife had financial support and other support from a boarder, Mr W. The husband relied upon expenses paid by him in the post separation period over and above child support, he being the sole or major beneficiary of many of those payments.
In reality, having regard to the 5 per cent reduction in the disparity of contributions in favour of the husband concluded by her Honour to be appropriate by reference to the post separation period, the contributions of the husband by virtue, essentially, of the disparity of initial contributions approximated $120 000 (30 per cent of the net asset pool).
As learned Counsel for the wife clearly recognised, the issue is whether the learned Federal Magistrate’s conclusion with respect to the contribution based entitlements of the parties represented the “top of the range” for the husband, and is thus immune to appellate intervention, or, as learned Counsel for the wife contended, exceeded the upper limit of the permissible ambit of her Honour’s discretion, thereby enlivening appellate intervention.
Reference has earlier been made to the judgment of Brennan J in Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712; (1986) 10 Fam LR 819. On the evidence before the learned Federal Magistrate, the Court as currently constituted would have been unlikely to have concluded the contribution based entitlements of the parties to favour the husband to the extent determined by the learned Federal Magistrate, albeit the Court would have been likely to conclude that, as at the date of trial, the contributions of the husband exceeded those of the wife by more than a nominal or minimal percentage. That, however, is of no relevance for present purposes.
As has been noted earlier, the learned Federal Magistrate’s exercise of discretion was not reliant upon any extraneous fact or circumstance. Nor did her Honour exercise her discretion without reference to any relevant fact or circumstance. No material error of fact vitiated the exercise of that discretion.

Whilst the so-called “erosion” principle discussed in Pierce (supra) and explained by Brereton J in Kardos (supra) will often result in capital contributions being reflected in a lesser sum than their original quantum, that is by no means a necessary consequence of proper application of the so-called principle. As Brereton J explained in Kardos, and the Court had earlier recognised in Pierce, the nature and quality of contributions subsequent to initial capital contributions must be considered, as must the nature and effect of the capital contributions themselves.
In the circumstances of this case, as the husband has pointed out, whilst the initial capital contributions were significantly dissimilar in simple monetary terms, it is not without significance that the husband’s assets included the equity in the property which became and remained the former matrimonial home. That property more than doubled in value subsequent to the commencement of the parties’ cohabitation. The husband’s equity in the property was substantial at the commencement of cohabitation.
In the circumstances of this case, it was appropriate to have regard to the impact of the husband’s contribution of equity in what became the matrimonial home of the parties. On the facts as found by the learned Federal Magistrate, in the circumstances of this case, greater weight was entitled to be afforded the contribution of that equity than, for argument’s sake, a bank account of similar magnitude.
This Court asks rhetorically, how, in the circumstances of this case as detailed above, and having regard to the manner in which the learned Magistrate exercised her discretion, this Court’s, ultimately necessarily somewhat subjective assessment of the contribution based entitlements of the parties is any better than that of her Honour, or her Honour’s in any way erroneous. Appellate intervention becomes problematic when the realities of discretionary judgments involving no error of fact or principle are thus recognised.
Whilst there is little doubt in the Court’s mind that the contribution based entitlement determined by the learned Federal Magistrate represented the “top of the range” for the husband, the Court is not persuaded that her Honour was impermissibly generous to the husband, notwithstanding that, as noted earlier, this Court would have been less generous to him.
On behalf of the wife reliance was placed upon the facts of the Full Court’s decision in Pierce (supra), it being submitted that “at the commencement of cohabitation the husband had assets of $226,000 and the wife $11,000” or 95 per cent to 58 per cent whereas, in the present case “the husband had only about 58%”.
Reliance was also placed upon the learned Federal Magistrate’s finding (paragraph 44) that “the husband’s financial position could not have been retrieved so quickly unless the wife used the resources she had acquired before meeting him to assist him to get his financial position back on track”.
It was thus submitted that taking into account the foregoing together with the husband’s periods of unemployment (paragraph 46), injury and study (paragraph 48) a just and equitable result was that “financial contributions were about equal”. These contentions overlook the capital sums generated by the termination of the husband’s employment on a number of occasions. Her Honour did not overlook them, and credited the wife appropriately in relation to them.
With respect to learned Counsel for the wife, the Court does not perceive that anything emerging from the decision of the Full Court in Pierce (supra) materially impacts upon the present appeal.
As Brennan J acknowledged in Norbis (supra), the learned Federal Magistrate was exercising an undoubtedly broad discretion. Within the permissible ambit of that discretion, a number of outcomes were possible. As has been acknowledged earlier in these reasons, her Honour, permissibly in this Court’s view, could have been significantly less generous to the husband than she was. The real question is whether, in the circumstances of this appeal, as learned Counsel for the wife frankly acknowledged, the learned Federal Magistrate’s recognition of the wife’s contributions was “manifestly inadequate”. Essentially for the reasons which have earlier been advanced, this Court is not persuaded that the learned Federal Magistrate’s decision was so favourable to the husband as to exceed the generous ambit within which appellate intervention is not enlivened.
Two complaints were made on behalf of the wife with respect to the s 75(2) adjustment determined by the learned Federal Magistrate, they being that her Honour failed to set out her reasons and that she “failed to mention that the wife suffers from migraines”.
With respect to learned Counsel for the wife, in what respect the learned Federal Magistrate failed to articulate the process of reasoning which led her to adjust in the wife’s favour by 10 per cent by virtue of s 75(2) was not explained. That was not inadvertent. With respect, her Honour referred to every relevant s 75(2) fact or circumstance. The fact that no failure to refer to a relevant s 75(2) fact or circumstance has been suggested is supportive of that conclusion.
There was, as learned Counsel for the wife conceded, no medical evidence in relation to the impact of the wife’s migraines. The wife gave evidence that the combination of migraines and the needs of the children limited her capacity for employment. Significantly, the trial Judge accepted that the wife’s capacity for employment was that which the wife herself asserted. Implicit in that acceptance, though not expressly stated, must have been acceptance of the reasons advanced by the wife for her limited ability to gain employment.
To the extent that it is implicit in the challenge to the learned Federal Magistrate’s conclusion with respect to s 75(2) that a greater adjustment should thus have been made in the wife’s favour, the Court cannot accept that such is the case. As noted earlier, the s 75(2) adjustment made in the wife’s favour represented a disparity of approximately $80 000. That was made in circumstances where the husband’s unvested superannuation interest exceeded that of the wife by approximately $25 000.
If one regarded $12 500 of the adjustment as referrable to superannuation, approximately $67 500 would remain referrable to the disparity of earning ability and the obligation to care for the children of the marriage, those children being now aged 14½ and 12. Although the burden of nurturing and providing for those children would undoubtedly be substantial over the next five years, the period is of comparatively limited duration. The husband pays, and will continue to pay substantial and appropriate child support.
The husband undoubtedly has much more secure employment than the wife and the ability to earn at least twice what she can from personal exertion. On the other hand, it is to be remembered that the husband’s financial position will deteriorate when the learned Federal Magistrate’s Orders are implemented and the position of the wife will improve correspondingly, the net turn around being approximately $260 000 by virtue of her Honour’s judgment.
Whilst not suggesting that the s 75(2) adjustment in favour of the wife represented the “top of the range”, it cannot be successfully contended that such adjustment would enliven appellate intervention as sought by the wife.
No ground raised by the Notice of Cross Appeal having been made out, save to the extent possibly of the matter first discussed in this context, the cross appeal too should be dismissed.

Conclusion

As upholding the one ground successfully agitated by the husband and the one ground successfully agitated on behalf of the wife would produce no change to the decision made by the learned Federal Magistrate, the appeal and cross appeal should be dismissed.
The Court will, with the consent of both parties, and on their joint application, amend the percentage in Order 3(c) of the learned Federal Magistrate’s Judgment to the percentage indicated at the commencement of these Reasons.

Costs

The husband has appealed unsuccessfully to this Court and the wife has unsuccessfully cross-appealed. In those circumstances, it is difficult to see why each party ought not pay his or her own costs.
Even if the Court is wrong in amending the percentage referred to by the trial Judge in Order 3(c) of her orders on the basis indicated rather than that urged by Counsel for the wife, that would not in this Court’s view enliven the provisions of the Federal Proceedings (Costs) Act 1981.
Indeed, in this Court’s view, to grant certificates in those circumstances would almost be an abuse of the Act given that the parties could have filed a consent minute amending the orders or asked the learned Federal Magistrate to amend the percentage, as she undoubtedly would, given that a simple and clear mathematical error had been made.

I certify that the preceding one hundred and fifty nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate:

Date: 8 August 2008