Mellone & Mellone
[2023] FedCFamC1A 154
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mellone & Mellone [2023] FedCFamC1A 154
Appeal from: Mellone & Mellone [2023] FedCFamC2F 415 Appeal number(s): NAA 128 of 2023 File number(s): PAC 1980 of 2022 Judgment of: SCHONELL J Date of judgment: 14 September 2023 Catchwords: FAMILY LAW – APPEAL – Property – Where the appellant contended that the primary judge erred in assessing and weighing contributions – Where the primary judge undertook a holistic assessment on direct and indirect contributions – No error established – Where the appellant contended that the primary judge made miscalculations – Where the respondent filed a Notice of Cross Appeal contending arithmetical errors – Where the primary judge’s percentage findings did not translate to the orders – Error of fact – Where the appellant was to actually receive 15 per cent less than the payment ordered which the primary judge had found to be just and equitable – Error of law established – Inadequacy of reasons – Where the primary judge’s reasons were adequate and involved a degree of brevity commensurate with the issues – Appeal and cross appeal allowed – Re-exercise of discretion – Costs certificates issued to both parties. Legislation: Family Law Act 1975 (Cth) s 75
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: A v J (1995) FLC 92-619; [1995] FamCA 56
Burke and Burke (1981) FLC 91-055; [1981] FamCA 44
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Hickey & Hickey and Attorney-General (Cth) (Intervener) (2003) FLC 93-143; [2003] FamCA 395
House v The King (1936) 55 CLR 499; [1936] HCA 40
King v Kemp (1996) FLC 92-673; [1996] FamCA 24
Mifsud v Campbell (1991) 21 NSWLR 725;
Robb and Robb (1995) FLC 92-555; [1994] FamCA 136
Russell v Russell (1999) FLC 92-877; [1999] FamCA 1875
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Teal & Teal [2010] FamCAFC 120
Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51
Number of paragraphs: 85 Date of hearing: 8 September 2023 Place: Sydney Counsel for the Appellant: Mr Livingstone Solicitor for the Appellant: Madison Marcus Law Firm Counsel for the Respondent: Mr O’Brien Solicitor for the Respondent: Hammond Nguyen Turnbull ORDERS
NAA 128 of 2023
PAC 1980 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MELLONE
Appellant / Cross Respondent
AND: MR MELLONE
Respondent / Cross Appellant
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The appeal and cross appeal are allowed.
2.The orders made 14 April 2023 are discharged.
3.Within 28 days from the date of these orders, the respondent / cross appellant husband (“the respondent”) shall pay to the appellant / cross respondent wife (“the appellant”) the sum of $279,675.
4.Within 28 days from the date of these orders, the parties shall do all acts and things and sign all documents necessary to list the property situated at B Street, Suburb C (“the Suburb C property”) for sale for the best price reasonably obtainable as prescribed by Order 5.
5.For the purpose of facilitating Order 4:
(a)Within 14 days from the date of these orders, the parties shall select an agent to act on the sale of the property.
(b)Within 14 days, the parties shall select a solicitor/conveyancer to act on the conveyance of the property.
(c)The parties shall list the property for public auction or private treaty in the first instance, whichever may be recommended by the agent.
(d)The parties shall do all things and acts necessary to engage in meaningful discussions to agree upon a reserve price for sale of the property in the first instance and failing agreement, shall accept the reserve price recommended by the agent.
(e)In the event the bidding at auction does not reach the reserve price, the parties may jointly negotiate with the highest bidders or any other interested person and effect a sale of the property at a price which is not less than 10 per cent below the reserve price or any price as agreed between them in writing.
(f)In the event that the bidding at private treaty does not reach the reserve price after a period of four months, the parties may jointly negotiate with the highest bidders or any other interested person and effect a sale of the property at a price which is not less than 10 per cent lower than the reserve price or any other price as agreed between them in writing.
(g)The parties shall cooperate in every way with the agent (including without limiting the generality of the foregoing):
(i)Making the key available to the agent;
(ii)Allowing inspections of the property at all reasonable times requested the agent;
(iii)Not doing or saying anything to hinder or prevent a sale being affected; and
(iv)Doing all acts and things necessary to have a contract for sale prepared by the appointed solicitor/conveyancer.
(h)The respondent shall ensure that the property is in a neat and clean condition at the time of inspection by the agent and prospective purchasers and provide vacant possession on settlement of the sale.
(i)In the event that the property is not sold successfully, the parties shall do all acts and things necessary to list the property for sale a second time by way of private treaty or public auction, whichever may be recommended by the agent appointed in the first sale, with the reserve price to be determined in the manner adopted in the first attempted sale and the proceeds to be distributed also in accordance with these orders.
6.Upon completion of the sale of the Suburb C property, the proceeds of sale be paid in the following manner and priority:
(a)In payment of an amount sufficient to discharge the mortgage over the property;
(b)To pay all costs, disbursements as incurred by the sale of the property, including but not limited to agency fees, legal fees and valuer’s fees;
(c)In full payment of the municipal and water rates which are in arrears up to and including the date in which the property is sold; and
(d)With the balance to be distributed so as 45 per cent to the appellant and 55 per cent to the respondent.
7.Unless otherwise specified in these orders, except for the purposes of enforcing payment of any money due under these orders, it is declared by the Court that:
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date of the orders including any jewellery, shares, motor vehicles, furniture and furnishings and real estate;
(b)Monies standing to the credit of the parties in any bank accounts shall be the property of the party in whose name such bank account is held;
(c)Each party hereby foregoes any claims that they may have had to superannuation benefits to or owned by the other party. The party in whose name such policy of superannuation or insurance stands to be declared the owner and beneficiary of such policy to the exclusion of the other;
(d)The parties remain liable for any debts in their personal name and indemnify the other against all claims, costs, demands, suits, actions and proceedings which may be made against the other party in respect of the said debts; and
(e)Each party forgives and releases the other from all debts owing from one party to the other.
8.Each party shall do all acts and things reasonably required by the other including signing and executing all necessary documents to give effect to the provisions of these orders within 14 days of being requested to do so.
9.If either party refuses or neglects to sign or execute any document within 14 days of a written request to do so, then the registrar of the Federal Circuit and Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit by the solicitor on behalf of the requesting party as to the said neglect or refusal.
10.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in the appeal.
11.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mellone & Mellone has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
This appeal concerns orders made by a judge of Division 2 on 14 April 2023 dividing the property of the parties’ marriage in proportions as to forty two per cent to the appellant / cross respondent wife (“the appellant”) and fifty eight per cent to the respondent / cross appellant husband (“the respondent”).
Part of the appellant’s Notice of Appeal contended that there are mathematical errors in the calculations by the primary judge. The respondent by cross-appeal also contended mathematical errors by the primary judge.
BACKGROUND
The appellant is currently 48 years of age and the respondent is currently 49 years of age.
The primary judge identified that the parties commenced cohabitation in 2004, married in 2005, separated on a final basis under one roof in February 2020 until March 2021 (being when the appellant left the former matrimonial home) and divorced in December 2022 (at [2]).
The parties have one child together, X. The primary judge recorded that since March 2021, X has lived with the appellant and now spends little to no time with the respondent (at [3]). The primary judge found that the appellant was primarily responsible for parenting X both during the relationship and post separation (at [9]). His Honour recorded that both parties financially support X, with the respondent paying child support and contributing to her school fees and phone (at [9]).
The appellant has two children from a former relationship, who are now 28 and 27 years of age. At trial, the respondent made submissions consistent with the Full Court’s decision in Robb and Robb (1995) FLC 92-555 in relation to his contribution to the appellant’s two children. The primary judge found that whilst the respondent did make a contribution to their care, it was “not a weighty or extensive contribution” (at [18]).
Both parties worked throughout the relationship, the appellant working part time and the respondent working full time. His Honour found that both parties applied their income to the household, albeit the respondent’s financial contribution exceeded that of the appellant’s.
At the commencement of cohabitation, the appellant had savings and the respondent owned property.
The appellant contended that her savings were transferred into the parties’ joint account to contribute to the property shortly after commencing cohabitation.
In 2011 or 2012, the former matrimonial home was demolished and a new home was constructed. Both parties contributed to the building.
In 2019, the respondent received an inheritance of $204,426. The primary judge found that the appellant did not contribute to the inheritance received by the respondent (at [9]).
After March 2021, the respondent remained living in the former matrimonial home, paying all incidentals and the mortgage for the home, whilst the appellant obtained rental accommodation.
On 13 April 2022, the respondent commenced proceedings seeking property orders. On 14 April 2023, the primary judge delivered his reasons finding a division of assets in the proportions of 42 per cent to the appellant and 58 per cent to the respondent to be just and equitable.
GROUNDS OF APPEAL
The Notice of Appeal identified five grounds. The appellant’s Summary of Argument presented Grounds 1, 2 and 3 together and argued the balance separately.
The grounds are as follows:
1. The learned trial judge erred in assessing the contributions as favouring the Applicant husband in the proportions 63% to 37%.
2. The primary judge gave excessive weight to the financial contributions of the Applicant husband and in doing so overlooked the substantial financial and non-financial contributions of the Respondent wife over the parties’ long relationship.
3. The primary judge failed to assess adequately all relevant contributions of the Respondent wife.
4. The calculations setting out the effect of the orders at paragraphs [32] – [35] and the orders are erroneous miscalculations.
5. The primary judge’s reasons are inadequate.
The grounds were argued in the order in which they appear in the Summary of Argument and accordingly, I will address them in the same order. For the reasons set out below, I am satisfied that there is merit to Ground 4 and therefore the appeal will be allowed. In those circumstances, while it is unnecessary to do so, I will briefly address the remaining grounds.
GROUNDS 1, 2 AND 3
These grounds contended error by the primary judge in assessing the contributions (Ground 1), giving excess weight to the respondent’s contributions and overlooking the appellant’s various contributions (Ground 2), and failing to adequately assess all relevant contributions of the appellant (Ground 3). They are thus challenges to the discretionary determination of the primary judge.
To be successful, the appellant must demonstrate error in the terms of that set out by the High Court in House v The King (1936) 55 CLR 499 (“House v The King”). Challenges as to weight must confront the difficulties identified by the High Court in cases such as Gronow v Gronow (1979) 144 CLR 513, where their Honours identified as follows at 519–520:
… When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight. …
The appellant submitted that the contribution finding did not recognise the post separation contributions of the appellant; that the primary judge embarked upon a “quasi tracing” exercise, attributing percentages to various contributions contrary to authority and thereby giving excessive weight to contributions that can be “traced” and “negligible” weight to homemaker and parenting contributions (appellant’s Summary of Argument filed 2 August 2023, paragraph 9); and that the primary judge misunderstood the task of assessing contributions “by treating certain contributions as cancelling one another out by being ‘diminished’ over time” and erred in “segmenting and compartmentalising” the contributions (appellant’s Summary of Argument filed 2 August 2023, paragraph 12).
The respondent submitted that these grounds fail to identify “appealable error as is required by House v The King” (respondent’s Summary of Argument filed 24 August 2023, paragraph 3). He also submitted that the complaints in the grounds are really an attempt to substitute a desired outcome against that found by the primary judge.
There is much force in the respondent’s submissions. The primary judge recognised he was undertaking a holistic assessment of both direct and indirect financial and non-financial contributions over a 19 year relationship (at [6]). The primary judge recorded that the appellant had been the primary carer of the parties’ one child (at [9]), that the respondent spends little to no time with their child (at [3]), that over the length of the relationship the appellant had made many contributions including to the property of the parties (at [16] and [19]), and that the parties’ initial contributions diminished over time (at [16]). At [20], his Honour took into account the appellant’s contributions as a homemaker and parent.
There is no merit to the ground that the primary judge misunderstood what was required of him in undertaking a holistic assessment that in part recognised the appellant’s post separation contributions.
The criticism that the primary judge undertook a ‘quasi tracing exercise’ is incorrect. While the primary judge used the word “traced” in his reasons at [6] and [9], it is clear that it was used as a term to describe how the funds were applied rather than a reference to some legal process. Likewise, the criticisms of the application of excessive weight are unfounded in the absence of a successful challenge that the result was unreasonable or plainly unjust (see Hedlund & Hedlund (2021) FLC 94-065).
There is no merit to Grounds 1, 2 and 3.
GROUND 4
By Ground 4 the appellant contended that the primary judge, having found the parties’ assets should be divided in the percentages of 58/42, determined that if there were a sale the appellant would receive the sum of $1,014,720 from the proceeds of sale.
Having made that calculation, the primary judge thereafter made the following findings:
39. Both parties will retain their superannuation.
40. Both will have a car, furnishings and jewellery.
41.The [respondent’s] cash balance will be higher than the [appellant’s] but each has a significant sum to apply to their rehousing if they choose to.
42. In totality of circumstance it is a just and equitable outcome.
As I stated earlier, the primary judge calculated the appellant would receive on a sale $1,014,720. He then made orders which provided that on the sale of the former matrimonial home the net proceeds be divided as to 35 per cent to the appellant and 65 per cent to the respondent.
It is common ground on the appeal that the correct sum payable to the appellant was not $1,014,720 but either $865,278 or $865,273 (the difference does not matter), being at least some $149,000 less. That is not the only error; on the agreed values, 35 per cent of the sale proceeds to the appellant would give rise to a payment to her of $525,459. By any measure, the orders do not reflect the percentage division finding but, more importantly, they do not reflect what the primary judge thought the appellant would receive.
These are not the only factual errors made by the primary judge. The appellant submitted that the primary judge did not include in determining the property to be retained by the respondent a liability of $80,047 and the contents of the home valued at $7,910. The respondent contended that the primary judge failed to include the appellant’s bank account balance of $6,244 which was included in the Balance Sheet filed on 1 March 2023, and that “there are general errors in the effect of the orders” (respondent’s Summary of Argument filed 24 August 2023, paragraph 24).
Minor arithmetic errors do not necessarily mean the judgment cannot stand. Minor errors that are of no consequence are not sufficient to give rise to error (see Burke and Burke (1981) FLC 91-055). In some instances of arithmetic error, a Full Court may allow an appeal for the purposes of correcting the error (see King v Kemp (1996) FLC 92-673).
At the heart of the issue is the materiality of the error and whether it is such as to impugn the result (see De Winter and De Winter (1979) FLC 90-605).
I am satisfied that whilst there were some minor arithmetic errors by the primary judge in not considering various assets such as the furniture of the husband which had a value of $7,910, they are immaterial to the outcome. However, the over calculation of the payment to the appellant by at least $149,000 falls into a different category.
The fourth stage in a property adjustment determination is that the Court “should consider the effect of [the] findings and determination and resolve what order is just and equitable in all the circumstances of the case” (Hickey & Hickey and Attorney-General (Cth) (Intervener) (2003) FLC 93-143 at [39]).
In Russell v Russell (1999) FLC 92-877, the Full Court observed:
80.Furthermore, it must be remembered in this regard that under s 79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets. Indeed we take the opportunity to emphasise that m what his Honour has termed “the fourth stage”', that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.
(Emphasis in original)
While in Teal & Teal [2010] FamCAFC 120, the Full Court observed:
70.By implication however s 79(2) requires if the Court is to make an order under s 79(1) altering the interests of the parties to the marriage in property, such an order must be just and equitable. This legislative imperative is often described as the requirement that a judicial officer “stand back” and look at the reality of the percentage division at which she or he has arrived. That requirement requires consideration of the actual assets to be retained by each party, and may include consideration of the effect when one party is to retain the greater proportion of his or her entitlement in superannuation of the nature, form and characteristics of the superannuation. It is also relevant when assets included for division are “notional” assets or “add backs”, including paid legal fees, or when a business which requires retention of business premises or re-financing is to be retained as part of one party’s entitlement (see Loude & Loude [2009] FamCAFC 52).
It is clear that the primary judge found that 42 per cent of the assets to the appellant led to a dollar amount of over a million dollars when it plainly did not. It is a factual error of over $149,000 in a very modest pool of assets. In fact, the result was that the appellant was receiving approximately 15 per cent less than what the primary judge thought she was. I am satisfied that a 15 per cent error is of such magnitude as to comfortably fall within the rubric of materiality.
If the primary judge thought that a million dollar payment gave effect to a just and equitable result, then plainly an amount that is 15 per cent less could not. The translation of percentages into figures created an error of fact. It is not simply a case of removing the erroneous figure and inserting another.
It is the actual order which must be just and equitable. Where the order is erroneous to such a magnitude, then the just and equitable finding that underpins the order must also be erroneous.
I am satisfied that the appellant has established error by the terms of Ground 4.
GROUND 5
The appellant asserted that the primary judge’s determination is attended by error as a consequence of inadequacy of reasons.
The appellant contended that the reasons do not permit the reader to understand how the decision was arrived at, that various contributions were not adequately addressed, and that the appellant’s post separation contributions were not addressed at all. The reasons were described by counsel for the appellant as brief.
The respondent for his part contended that the adequacy of reasons needs to be seen in the context of the issues for determination. He submitted that this was a matter that did not involve complex issues of fact or law, that there was no resolution of expert evidence required and that consequentially, the reasons reflect the simplicity of the matter.
The adequacy of reasons will depend upon the circumstances of the case but authorities make it plain that reasons will be inadequate if justice is not seen to be done, or a party or an appellate court is unable to ascertain the process of reasoning undertaken by the primary judge (see Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18; Mifsud v Campbell (1991) 21 NSWLR 725).
In this instance, the primary judge’s determination involved a degree of brevity that was commensurate with the issues. The simplicity of the matter is made apparent from a review of the limited cross-examination, the short submissions and the concession to the primary judge by both parties’ counsel that the matter could have been resolved by submissions.
Brevity is to be commended where it accords with a satisfactory exposition of the outcome. In this matter, the primary judge struck the right balance. He addressed the contribution and adjustment issues under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), identifying the relevant contribution issues including the appellant’s post separation contributions and gave adequate reasons for his findings. I am satisfied that the reasons permit the parties and this Court to determine how the primary judge “considered and evaluated the relevant evidence, [and took] into account all relevant factors” (A v J (1995) FLC 92-619 at 82,232).
The appellant has not established error by Ground 5.
RE-EXERCISE OF DISCRETION
The parties agreed that I should re-exercise discretion rather than remit the matter in the event that I determined that error has been established.
The Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that:
36 Form of judgment on appeal
(1)… the Federal Circuit and Family Court of Australia (Division 1) may, in the exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from; or
(b)give such judgment or make such order as, in all the circumstances, it thinks fit, or refuse to make an order; …
In Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51, the Full Court observed as follows:
13.… that, if re exercise is to occur, the relevant discretion should be exercised by reference to the facts and circumstances as at the date of the hearing of the appeal. …
14.… this Court is ill-equipped on a re exercise to reach decisions on contested evidence. For all practical purposes, if this Court is to re-exercise it must “draw inferences of fact from, and conclusions from, facts as found by the trial judge” and uncontroversial evidence admitted upon the re-exercise.
…
19.… The nature of the re exercise by this Court, determined by reference to the relevant statutory power, is in my view quite different to what may or may not be the limits of a different s 94(2) power; namely this Court seeking by its order to limit the powers, or scope of the proceedings, being conducted by a judge at first instance.
20.Once error is established “an appellate Court can substitute its own decision based on the facts and the law as they then stand”. The Court’s power to do so is statutory. Section 94(2) provides, relevantly, that this Court may “make such decree or decision as in the opinion of the court, ought to have been made in the first instance”.
21.In CDJ v VAJ, McHugh, Gummow and Callinan JJ said:
… In contrast [to an appeal in the strict sense], the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a “trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence”. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction …
…
23.However, like the exercise of any other power under the Act, the s 94(2) power is to be exercised by reference to the issues joined between the parties and the admissible evidence which each party seeks to adduce in support of their contentions. While the s 94(2) power is no different from any other power in that respect, the restrictions inherent in the appeal process earlier referred to restrict the nature and ambit of the exercise of that power. Those restrictions derive from what an appellate court is “ill-equipped to do”or from a process that would by its nature otherwise “obliterat[e] the distinction between original and appellate jurisdiction”.
(Emphasis in original, footnotes omitted)
Neither party sought to adduce any further evidence and thus relied upon the factual findings of the primary judge.
The primary judge found that the pool of assets of the parties was some $2,878,906.
As I stated earlier, the primary judge found that the parties commenced cohabitation in 2004, married in 2005, and separated under the one roof in February 2020 (at [2]).
There is one child of their relationship, X, who was born in 2007 and is now aged 15 years.
In March 2021, the appellant left the former matrimonial home and the parties shared the care of X until about July or August 2021. Since that date, it appears that the respondent has spent little to no time with her.
The primary judge found that the respondent brought into the relationship the equity from a property in Suburb D, being about $259,000. The appellant also brought into the relationship a motor vehicle compensation payment of approximately $22,300.
There seems no issue that during the course of the parties’ relationship they otherwise each made contributions to the relationship and to the other. One child was born of the relationship and the appellant’s children of an earlier relationship lived with the parties for a significant period of time. There was no issue that the appellant was X’s primary carer.
It is undeniable that this was a long relationship where each of the parties made contributions, which included the building of a home and the care of children.
In the period after the appellant left the former matrimonial home, she has paid rent and provided almost the entirety of the physical care for X since about August 2021, albeit the respondent has provided financial support by way of the payment of part of the school fees and child support. The respondent has also had the benefit of occupation of the home though he has paid the mortgage.
The authorities dictate that I am to assess the parties’ contributions in a holistic way. The compartmentalising of contributions into categories such as initial contributions or post separation contributions is to be eschewed as it obscures the holistic assessment. Likewise, a focus on a direct financial contribution made at some historical point in time and measuring it as a percentage of the current pool is irrelevant to a contribution assessment other than to create a mathematical calculation that serves no purpose. It is the antithesis of a holistic assessment, contrary to longstanding authority, and is incapable of equitable application to other equally important non-financial contributions such as homemaking and parenting.
The respondent urged that the Court take account of his contribution of the equity of the Suburb D property and his contributions by virtue of the inheritance as well as his contributions to the appellant’s children who were aged 9 and 8 at the commencement of cohabitation. His counsel submitted that the Court should make a contribution finding of 63 per cent to the respondent as was determined by the primary judge. For her part, the appellant acknowledged the contributions of the respondent but contended that those contributions would only favour him as to 55 per cent.
I am satisfied that a finding as to 63 per cent in favour of the respondent is to overvalue his contributions to the detriment of the appellant and does not properly recognise the appellant’s contributions. I also find that a contribution finding in favour of the respondent as to 55 per cent fails to have proper regard to the significance of the contributions made by the respondent as identified by his counsel.
Taking account of each of the parties’ respective contributions over this long relationship including up to now, leads me to the conclusion that they should be assessed at 40 per cent to the appellant and 60 per cent to the respondent.
The parties both submitted that an appropriate adjustment under s 75(2) in favour of the appellant was 5 per cent.
I am satisfied, having regard to the contribution finding, the disparity as to income between the parties where the respondent earns approximately $180,000 per annum and the appellant earns approximately $99,000 per annum, and the appellant’s obligation to continue to provide the majority of the physical care of X, that, consistent with each party’s submission, 5 per cent represents an appropriate adjustment.
Overall, the effect of the findings as referred to above is to divide the parties’ assets as to 45 per cent to the appellant and 55 per cent to the respondent.
I am satisfied that this gives rise to a just and equitable division of the parties’ assets.
An issue arose as to whether or not the respondent should be given an opportunity to purchase the home. The proceedings before the primary judge were conducted on the basis that the home would be sold. It is unclear to me why such an order was not immediately made in light of the joint approach of the parties. I further take note of the fact that notwithstanding that the respondent was given an opportunity to effect a settlement of the home by a payment to the appellant, he has not paid that amount nor has a stay been granted.
There is no evidence before me that he has the capacity to pay out the sum that is required to be paid to the appellant. If he had such capacity, then presumably he would have made the payment he contends was the effect of the primary judge’s orders. He has not done so.
In circumstances where each party sought a sale of the property at trial, I am satisfied that that remains an appropriate course to adopt.
Having regard to the assets of the parties which have a value of $2,878,906, I propose to order a sale of the home and that after discharge of the mortgage secured against the property and the costs of sale, the balance of the sale proceeds be divided as to 45 per cent to the appellant and 55 per cent to the respondent.
The balance of the parties’ assets excluding the home and the Bank E home loan total $1,377,594. For the appellant to receive 45 per cent, she should receive a sum of $619,917. The appellant currently has assets and superannuation entitlements to the value of $340,242.
Therefore, the respondent is required to make a payment to her of $279,675. I note in the Balance Sheet that the respondent has cash at bank in various bank accounts totalling in excess of $426,000. He therefore has the capacity to make that payment to the appellant and there is no reason why I should defer that payment until the final settlement of the home.
Accordingly, I am satisfied that it is appropriate that the sum of $279,675 be paid to the appellant within 28 days.
Each of the parties put forward a Minute of Order in their Case Outlines before the primary judge to effect a sale of the home. The respondent’s counsel made submissions to me about the appropriateness of his Minute of Order. The appellant’s counsel did not. I propose to adopt the respondent’s Minute of Order as contained in his Case Outline filed 28 February 2023, subject to some minor modifications including a provision for the payment referred to above.
I am satisfied that this gives rise to a just and equitable outcome.
COSTS OF THE APPEAL
The appellant sought an order that the respondent pay her costs of the appeal in the event that she was successful on the basis that he had resisted the appeal and had not paid the judgment sum. The respondent’s counsel relied upon the correctness of the decision under appeal as he was entitled to do so, having quite properly conceded that there were mathematical errors.
An application for costs is governed by the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”), which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
Dealing now with the relative subsections in s 117(2A).
I note the financial circumstances of the parties as set out in the primary judge’s determination. There is no evidence before me to suggest that those circumstances have changed.
Neither party is in receipt of legal aid.
Whilst there is some merit to the proposition that the respondent has not paid the judgment sum, I am not satisfied that overall there are justifying circumstances to depart from the usual order under the Act.
In circumstances where there has been an error of law, then it is appropriate to grant a costs certificate to the parties for the costs of the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I will make orders accordingly.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 14 September 2023
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