Mims & Green and Green
[2008] FamCAFC 13
•14 February 2008
FAMILY COURT OF AUSTRALIA
| MIMS & GREEN & GREEN | [2008] FamCAFC 13 |
| FAMILY LAW - APPEALS – FROM DECISION OF FAMILY COURT JUDGE – PROPERTY – The daughter of the husband appealed from a decision of the trial Judge about her characterisation of funds deposited into the daughter’s bank account in the sum of $355,506 by the husband while he was overseas, which the daughter then used to purchase her home, in which the husband briefly lived when he returned from being overseas – the daughter had claimed that the funds were gifted or advanced by the husband, and the husband asserted, amongst other claims, that the funds were a loan – central to the findings of the trial Judge in determining which of the two accounts of the transaction she found more credible was her findings of credit about the parties – the trial Judge found that while the husband was not ‘entirely frank about all of his financial affairs’ he was ‘closer to the truth’ – no error demonstrated on credit findings – adequate reasons were provided and no other error demonstrated – appeal dismissed and the daughter to pay the husband’s costs FAMILY LAW - CROSS-APPEAL – FROM DECISION OF FAMILY COURT JUDGE – PROPERTY – the husband cross-appealed from determinations by the trial Judge in property proceedings between himself and his former wife in which she divided the property of the parties 70 per cent to the wife and 30 per cent to the husband, on the basis of insufficient weight being given to the husband’s contribution, a failure to provide reasons or sufficient reasons, a failure to apply the law of initial contribution or to give the husband’s initial contribution sufficient weight, and in her assessment of s 75(2) factors, particularly in giving such factors favouring the husband insufficient weight – the process of reasoning of the trial Judge was clear and transparent and there was no lack of reasons or any sufficient reasons – the trial Judge acknowledged the husband’s greater financial contribution but assessed his contributions at 70 per cent, not 80 per cent as he had sought – the trial Judge’s s 75(2) adjustment only exceeded that conceded by the husband to be reasonable by 5 per cent and it was not so generous as to be outside the ambit of a reasonable exercise of discretion – appeal dismissed – each party to pay their own costs |
| Family Law Act 1975 (Cth) Abalos v Australian Postal Commission (1990) 171 CLR 167 |
| APPELLANT: | Ms Mims |
| RESPONDENT AND CROSS-APPELLANT: | Mr Green |
| SECOND RESPONDENT AND RESPONDENT TO CROSS-APPEAL: | Ms Green |
| FILE NUMBER: | SYF 4257 of 2004 |
| APPEAL NUMBER: | EA 72 of 2006 |
| DATE DELIVERED: | 14 February 2008 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Faulks DCJ, Kay and Coleman JJ |
| HEARING DATE: | 26 June 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 July 2006 |
| LOWER COURT MNC: | [2006] FamCA 590 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Galloway |
| SOLICITOR FOR THE APPELLANT: | KL King and Associates Solicitors |
| SOLICITOR FOR THE RESPONDENT: | Mr Brown |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Lee |
| SOLICITOR FOR THE SECOND RESPONDENT: | Senat and Associates |
Orders
That the appeal of Ms Mims filed 1 August 2006 be dismissed.
That the cross-appeal of Mr Green revived by leave granted on 24 January 2007 be dismissed.
That the application for leave to adduce further evidence filed 12 February 2008 be dismissed
That Ms Mims pay to Mr Green his costs of and incidental to her appeal.
That both Mr Green and Ms Green pay their own costs of the cross-appeal.
IT IS NOTED that publication of this judgment under the pseudonym Mims v Green and Green is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: SYF 4257 of 2004
File Number: EA 72 of 2006
| Ms Mims |
Appellant
And
| Mr Green |
Respondent and Cross-Appellant
And
| Ms Green |
Second Respondent and Respondent to the Cross-Appeal
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 31 July 2006 Mr Green (“the husband”) appealed against orders of property settlement made by Lawrie J in proceedings between the husband and Ms Green (“the wife”). Her Honour’s orders were first made on 30 June 2006. Reasons for such orders were published on 4 July 2006. On 21 July 2006 the orders of 30 June 2006 were amended to reflect the intention of her Honour’s Reasons for Judgment of 4 July 2006.
The trial Judge’s orders provided that the wife receive 45 per cent of the husband’s equity in real property which her Honour concluded to be beneficially owned by the husband, and monies in a bank account which she also concluded were his property. In lieu of that order the husband sought that the wife be awarded 25 per cent of such equity. The wife resisted the husband’s appeal and sought to maintain the trial Judge’s orders. The husband’s appeal was withdrawn by a Notice of Discontinuance filed on 24 August 2006.
On 1 August 2006 Ms Mims (“the daughter”) cross-appealed against the trial Judge’s rejection of her claim that real property, the subject of the orders for settlement of property between the husband and wife made by the trial Judge, was beneficially owned by her, or that she had an estate or interest in such property. By her Notice of Cross-Appeal, the daughter sought that this Court grant the relief which the trial Judge was asserted to have erroneously failed to provide. The discontinuance of the husband’s appeal on 24 August 2006 resulted in the daughter becoming the appellant before this Court.
On 9 November 2006 the husband sought to revive his appeal against the trial Judge’s order for settlement of property between himself and the wife. Leave to do so was granted by the Full Court on 24 January 2007 before this Court. The husband thus became a cross-appellant in the appeal.
The wife did not participate in the appeal by the daughter, but sought to defend the cross-appeal of the husband in relation to property matters between her and the husband.
Background
For present purposes the factual background of this appeal can be stated briefly. The trial Judge comprehensively set out the history of the parties in her judgment and the main facts are not in dispute, although the characterisation of events is.
The husband was born in 1920 in Lithuania and the wife in 1955 in the Philippines. The husband, prior to meeting the wife, married and had children, including the daughter, the appellant in these proceedings. The husband and wife commenced cohabitation in 1998 and in October 1999 the parties’ child was born.
The parties separated in May 2004, and after separation the husband sold his property in Australia and went back to Lithuania.
While he was in Lithuania, the husband transferred the sum of $355 506 into the daughter’s bank account on 6 September 2004.
On 5 October 2004 the daughter purchased a property at B Street (the property the subject of dispute) for $515 000, paying a deposit of $20 000, using the funds in her bank account into which the husband’s money had been deposited. The daughter also obtained a mortgage in the sum of $245 000. A sum of about $35 000 remained in the daughter’s bank account.
In November 2004 the husband returned from Lithuania and lived with the daughter at the disputed property. She showed him the title deeds some time after this and the deeds were solely in her name.
At some point the husband demanded his money back from the daughter and then he left the disputed property and instituted legal proceedings.
On 23 December 2004 Johnston JR joined the daughter to the proceedings, and enjoined her from further encumbering or selling the property the subject of dispute.
In his Amended Application for Final Orders filed 14 November 2005 the husband sought an order against the daughter that the property she purchased be sold and that he receive the proceeds, and if the proceeds were less than the sum lent, then the daughter should pay a sum to make up the difference.
On 17 January 2005 Johnston JR renewed the injunction against the daughter and ordered that she not reduce the balance of her Bank Account below $33 000.
The hearing took place over four days in February 2006, and then orders were made on 30 June 2006 and the Reasons for Judgment published 4 July 2006. Orders 7(a) and (b), 8, 9 and 10 provided that the daughter “…is indebted to the husband in the sum of $322,506.59”, that such sum was secured against the daughter’s property and that she must pay this sum to the husband within a month, and if such sum not be paid within a month, the husband be appointed Trustee of sale of the daughter’s house, the property subject to dispute.
The trial Judge determined that the husband’s financial and homemaker contributions were 70 per cent as opposed to the wife’s financial and homemaker contributions being 30 per cent, and then made an adjustment under s 75(2) in the wife’s favour of 15 per cent (or a differential of 30 per cent), creating an overall distribution of 55 per cent in the husband’s favour and 45 per cent in the wife’s favour. The property orders required the sale of the daughter’s house (the disputed property) and the transfer of the indebted sum to the husband who was then to pay the wife 45 per cent of that sum. Otherwise, the husband and the wife were declared to be the sole owners of all other property in his or her possession or control.
On 21 July 2006 Lawrie J dealt with the husband’s slip rule application in which she substituted the sum of $355 506.59 for $322 506.59. The short judgment reveals that her Honour did so on the basis that:
2.During the hearing there was a reference to part of the money lent by the father to the daughter, a sum of $33,000, being in the hands of her solicitors and that they promised to repay it to the husband. In error that was taken off the amount owing of $355,506.59 but no reference was made to it in the Judgment or the Orders.
3.Accordingly the Orders as they stand do not carry out the intention of the Judgment which is that the whole of the $355,506.59 should be repaid by the daughter to the husband. It will of course be partially discharged should the $33,000 be paid by the solicitors but the Orders should be amended under the slip rule to reflect the correct balance that is owing by the daughter to her father.
On 31 July 2006 the husband filed an appeal against her Honour’s property determination (which was withdrawn by a Notice of Discontinuance filed 24 August 2006), and the following day, on 1 August 2006 the daughter filed her cross-appeal.
On 2 August 2006 Lawrie J heard an application for costs filed by the husband against the daughter, and her application for a stay. On 14 August 2006 further orders were made by Lawrie J, pursuant to which the daughter was to pay the husband’s costs “expended solely on seeking the order that the daughter repay to the husband the money’s deposited by him into the daughter’s bank accounts such costs as agreed or taxed”, and that a stay be in place regarding the execution of Orders 8, 9 and 10 of 30 June 2006, as amended on 21 July 2006, pending the determination of the daughter’s appeal on the following conditions, as provided by Order 2:
a.the second respondent [the daughter] within three working days of the service of these Orders do all things necessary including paying legal expenses to have lodged against the title of her property… a caveat in the name of the husband…; and
b.the second respondent [the daughter] keep strictly up to date the mortgage payments…; and
c.provide a copy of an up to date statement of the mortgage to the husband’s solicitors within two working days; and
d.provide proof of the mortgage payment to the husband’s solicitor by fax within two working days of the due date each month; and
e.…
f.the sum of $33,000 is to be retained in the second respondent’s [the daughter’s bank] …account… and that the second respondent [the daughter] be restrained from making any withdrawal or doing any other thing to reduce the balance of the account below that amount
On 12 October 2006 Boland J issued directions for the appeal, and her Honour’s orders noted at Order 9 that the costs of that hearing were to be costs of the appeal, and at Order 3, that the wife does not wish to participate in the daughter’s appeal and will abide by any order of the Full Court save as to costs.
On 9 November 2006 Boland J issued directions for the filing of appeal books and ordered that costs of and incidental to the hearing on that day be reserved to the Full Court.
On 9 November 2006 the husband filed his application seeking leave to appeal against the orders of Lawrie J. This application came on for hearing on 24 January 2007 and on that day Boland J granted leave to the husband to, in effect, re-file his appeal against the wife in relation to both property and children’s matters.
On 10 May 2007 Boland J vacated the allocated Full Court hearing date and costs of and incidental to the hearing on that day were reserved to the Full Court.
The Daughter’s Appeal
Before us, the appeal by the daughter was, sensibly, first agitated. The daughter’s appeal was ultimately first in time. If the appeal by the daughter were to be successful, the outcome of the appeal with respect to property settlement proceedings between the husband and wife would become largely academic.
At the commencement of her appeal, the daughter sought leave to amend the grounds of appeal on which she intended to rely, and the orders that she sought. The Court granted leave to amend in the terms sought.
By her amended Notice of Appeal, the daughter sought orders in the following terms:
1.That Orders A, 8-13 of the Orders of Justice Lawrie dated 21 July 2006, further amending the Orders of 30 June 2006, be set aside.
1A. That Orders 1, 2 and 3 of the Orders of Justice Lawrie dated 14th August 2006 be set aside.
2.A declaration that the husband is estopped from denying that the appellant [the daughter] is the legal and equitable owner of the following:
a.the real property situated at [B Street] …;
b.all the funds held in the … account number [x].
The Issues Raised By The Daughter’s Appeal
There were three main issues raised by the daughter in relation to which the trial Judge was said to have erred. These can be categorised as follows:
·That the trial Judge erred in law and in fact, in both the exercise of her discretion and in finding that the husband had not finally provided the funds to the daughter – most particularly in failing to give adequate or any reasons as to the non-application of the presumption of estoppel, gift or advancement and that the trial Judge took into account irrelevant evidence (see Grounds 1, 2, 3 and 4);
·That the trial Judge had failed to recognise contributions made to the property by the daughter, and that the orders were not just and equitable to the daughter (see Grounds 5 and 7); and
·That the trial Judge erred in applying the slip rule to the orders to include the sum of money held in the daughter’s bank account (see Ground 6).
Reference to Counsel for the daughter’s opening of her appeal confirms the foregoing categorisation of the main issues raised on her behalf, and provides a background to our consideration of those categories.
The nexus between the challenges to the adequacy of the trial Judge’s reasons and her findings of fact in relation to material facts was expressed by learned Counsel for the wife to be that the reasons were “not adequate because the evidence that she [the trial Judge] had before her was inconsistent evidence. She [the trial Judge] did not reconcile the inconsistencies in any express way. We can’t follow why in the reasons she [the trial Judge] found for the husband – apart from the fact she [the trial Judge] says she preferred him”.
In the course of opening the daughter’s appeal, her learned Counsel outlined the basis of the challenges to the trial Judge’s conclusion in relation to the disputed critical transactions between the daughter and the husband. Counsel submitted that because the husband had advanced three different and irreconcilable versions of those transactions, the trial Judge could not reasonably prefer his evidence denying a gift of the monies which provided the overwhelming bulk of the disputed property in preference to the daughter’s evidence asserting a gift. It was also submitted that the trial Judge’s reasons did not enable the Court to “discern what it was that her Honour actually found”.
During the course of his opening, learned Counsel for the daughter confirmed that the appeal ultimately “turns upon whether the money was gifted”. Nevertheless Counsel persisted with the “estoppel point because if it [the money] was transmitted to the daughter with a representation that it was a gift and she acted upon it – which she undoubtedly did. She borrowed money, incurred a great liability, purchased a house, then in my submission, he would be estopped from denying that it was a gift”.
Other than to the extent address by Counsel’s comprehensive written outline of argument, Counsel did not further address the Court in relation to the second and third categories of challenge raised in the appeal on behalf of the daughter.
Credit Determinations
In addition, although no ground of appeal overtly challenged the trial Judge’s credit finding, it was argued that the trial Judge erred in preferring the evidence of the husband to that of the daughter. The credit findings of the trial Judge were undoubtedly central to the determination of whether or not the money provided by the husband was a loan, as he asserted, or whether it was a gift, which was the daughter’s assertion. It was thus unsurprising that Counsel for the daughter sought to impugn the trial Judge’s finding. There having been no opposition to Counsel for the daughter agitating a credit challenge, we have considered his submissions.
As learned Counsel for the daughter effectively conceded, unless the trial Judge’s preference for the evidence of the husband to that of the daughter was shown to have been unsound, the challenge to the critical finding in the appeal being that the husband had provided the funds to purchase the real property by way of loan rather than gift, could not succeed, unless challenges based upon the husband’s versions of events provided a basis for such success.
It is apparent from Counsel’s submissions that the thrust of the challenge to the trial Judge’s conclusions with respect to credibility, and reliance upon the findings in relation to the question of whether or not there had been a gift or a loan was based upon the three inconsistent versions of the transaction which the husband himself had on occasion put forward on oath or affirmation, the inherent improbability of the husband’s version of the transactions ultimately accepted by the trial Judge, and the fact that the three versions of the transaction advanced by the husband were “irreconcilable”.
Understandably, for reasons which will emerge, Counsel for the daughter made no reference to the evidence of the daughter in relation to the critical dealings between herself and the husband. However, in his submissions, Counsel for the husband referred extensively to the cross-examination of the daughter in relation to critical dealings, to the daughter’s borrowing of substantial monies in breach of court order without a credible explanation and the inherent improbability of the husband having advanced by way of gift $350 000 to an adult child whom he had “seen once in the last fourteen years”.
The matters raised by both Counsel for the daughter and for the husband confirm that the evidence of neither the husband nor the daughter was able to be accepted without qualification. It is instructive to have regard to how the trial Judge dealt with those realities.
The trial Judge, accurately there can be no doubt, recorded that the dispute between the husband and the daughter “substantially involved which of the parties to the dispute I found more believable” and that “they give quite different, incompatible versions of events”.
Her Honour then recounted the version of events advanced by the husband in support of his claim that the monies utilised to acquire the disputed property with which the proceedings were concerned had been provided by him by way of loan and not by way of gift. Having then referred to the husband’s evidence, in a way that is not suggested to have been inaccurate, her Honour proceeded to consider where the truth most probably lay. She recorded that the husband’s “version of events is much more consistent with his personal character as presented in the witness box and his history”, noting that “[h]e did not present as someone who would distribute his money to others in his own lifetime rather than continue to manage it himself, and see it as a private matter of his own”.
The trial Judge recorded her impression that the husband regarded everything that he had earned as his money. She also considered the husband’s actions in relation to the daughter of his relationship with the wife to be more consistent with wanting to “use the money to secure her future, rather than that of an adult child”.
Importantly for present purposes, the trial Judge concluded that the husband was not being “entirely frank about all of his financial affairs” for reasons which she briefly detailed. Also importantly for present purposes, the trial Judge concluded that the husband was “closer to the truth” (emphasis added). Other evidence of the husband to which the trial Judge referred was regarded as having “the ring of truth”. It can readily be seen that the trial Judge’s acceptance of the husband’s evidence was qualified, in the ways she indicated.
The trial Judge recorded unequivocally that she was “not impressed” by the daughter as a witness, labelling her evidence “disingenuous”. Her Honour provided a number of reasons for such conclusions, including the daughter’s breach of the injunctive order to which Counsel for the husband referred in his submissions to this Court, and the claims that she had known that the husband had been “a Nazi criminal”, a “child abuser” and a violent “thug” both to the daughter and other members of the family. Her Honour did not find “believable” the daughter’s explanation for the husband’s alleged largesse to her against the background of the allegations which she made about him. Her Honour detailed her reasons for such conclusions (see paragraphs 52 and 53).
The trial Judge concluded her consideration of the credit issue and in so doing the crucial element in the dispute itself, by saying, “[i]n broad terms I accept the husband’s evidence that there was no gift, only a loan”.
Significantly, it was not submitted on behalf of the daughter that any of the matters upon which the trial Judge relied in relation to her credit finding involved a material error of fact. Nor was it submitted that her Honour had failed to have regard to any material fact in relation to the credit issue.
The crux of the challenge is well encapsulated in an exchange between learned Counsel for the daughter and the Deputy Chief Justice during the hearing of the appeal. Counsel submitted that the statement by the trial Judge that “in broad terms I accept the husband’s evidence” was deficient and “not the showing of a logical path through propositions to an answer”. Counsel for the daughter conceded to the Deputy Chief Justice that had her Honour said “notwithstanding the internal inconsistencies in broad terms I accept his evidence” there could be no complaint with respect to her credit finding.
Historically, appellate courts have been notoriously reluctant to interfere with trial Judges’ findings on credit. The circumstances in which an appellate court can overturn findings of fact based upon credit were considered by the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472. That case concerned a decision of the Full Court of the Supreme Court of South Australia which had allowed an appeal by a respondent on the grounds that the inconsistencies were such as to require the rejection of the appellant’s evidence. In allowing the appeal, the Court (Brennan, Gaudron and McHugh JJ) stated, at page 479:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against -- even strongly against -- that finding of fact. (See Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23, Abalos v Australian Postal Commission (1990) 171 CLR 167). If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” (SS Hontestroom v SS Sagaporack [1927] AC 37 at p. 47) or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”. (Brunskill (supra)).
In Abalos v Australian Postal Commission (1990) 171 CLR 167 (referred to above), McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred at page 178 to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] AC 37 who had stated, at 47:
…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
His Honour went on to state, at page 178:
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v Thomas [1947] A.C. 484, at p. 488.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588, the majority (Gaudron, Gummow and Hayne JJ) explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of their judgment their Honour said, at 617 and 619 (footnotes omitted):
There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The ‘Palitana”), Atkin LJ remarked that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.” To some extent, the faith in the judicial power to discern credibility from appearances was probably, at first, a consideration which the judiciary assumed that it inherited from juries. It was natural enough that trial judges, accustomed to presiding over jury trials, would claim, and appellate judges would accord, the same “infallible” capacity to tell truth from falsehood as had historically been attributed to the jury. Nowadays, most judges are aware of the scientific studies which cast doubt on the correctness of this assumption. Lord Devlin in The Judge quoted with approval a remark of MacKenna J: “I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability ... to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth.” It was a becoming but entirely accurate modesty.
…
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge.
We are not persuaded that the trial Judge failed to provide adequate reasons for her finding with respect to the credibility of the husband and the daughter. Nor are we persuaded that the path of her Honour’s reasoning to such conclusion has been shown to have involved error. To the extent that her Honour may have relied upon the demeanour of the parties, it has not been demonstrated that her finding was influenced by such reliance, or that her “advantage” as a trial Judge was misused. The version which her Honour accepted has not been shown to have been “glaringly improbable”.
Nothing to which we have been referred persuades us that her Honour’s findings with respect to credit were “unsound” in any sense in which that term finds expression in the laws of evidence. In our view, the trial Judge said what needed to be said to justify her finding with respect to credit. We are reinforced in such conclusion by the absence of suggestion by Counsel for the daughter of other matters to which her Honour could or should have referred in that context.
Ultimately, as Counsel for the daughter on the hearing of the appeal confirmed, the challenge to her Honour’s credit finding turns on a narrow and, with respect, unsupportable challenge to the terms in which her Honour expressed her ultimate finding. As her Honour clearly explained, confronted with two witnesses, neither of whose evidence could be accepted in its entirety or without qualification, having conducted a balanced examination of the evidence, her Honour accepted “in broad terms” the version of events advanced by the husband in preference to that advanced by the daughter.
We are not persuaded that the challenge to the trial Judge’s credit finding has been made out. The reasons for such finding were adequately articulated. The finding has not been shown to have been unsound. For practical purposes, having regard to the basis of the daughter’s appeal, that potentially leaves only the daughter’s challenges to the trial Judge’s ultimate conclusion, and her contention that, even preferring the husband’s evidence to that of the daughter, the trial Judge could not conclude as she did with respect to the disputed transactions between the two.
The Daughter’s Grounds of Appeal
Some energy and a number of submissions and grounds of appeal were directed to whether the money advanced by the husband to the daughter was effected by the presumption of advancement or whether the transaction generated or created a trust (whether resulting or not). We do not perceive these issues to arise for determination in this appeal.
As learned Counsel for the daughter ultimately, with understandable reluctance, appeared to concede, unless the challenge to the trial Judge’s conclusion that the husband provided the funds to purchase the disputed property by way of loan succeeds, no issues could arise pursuant to the law of trusts. Although not strictly necessary for the purpose of deciding the daughter’s appeal, the issue having been agitated at some length by learned Counsel for the daughter, it is convenient to refer briefly to the matters raised in that context.
If there were no admissible (or accepted) evidence about the transaction, equity would ordinarily prescribe that the advancement of money (or the transfer of property) without consideration would constitute the recipient a trustee of the other party. That presumption could be displaced by evidence about the nature of the transaction.
Similarly in the ordinary (or perhaps extraordinary) course of events if an advance is made by one person to another – a relative (especially a spouse or a child) - the presumption of advancement (generally speaking) would (without further contradictory evidence) rebut the abovementioned presumption that voluntariness creates a trust. The “good consideration” constituted by the relationship would ordinarily lead to the conclusion that the interests of the relative/recipient were intended to be advanced.
The trial Judge’s findings of fact in this case leave no scope for the application of either presumption or rule. Her Honour accepted the evidence of the husband and found that the money advanced was partly a loan to be secured over the real property which was in the course of being purchased (the loan sum being $20 000) and that the balance “was no gift” and was “used without his permission” by his daughter to buy a house. This, her Honour relied upon for her conclusion that the daughter “is indebted to the husband in the sum of $322,506.59” (which figure her Honour subsequently adjusted under the slip rule to be $355 506.59).
The daughter’s amended grounds of appeal indirectly encompassed a challenge to the trial Judge’s application of the slip rule on 14 August 2006. It is convenient to deal with that topic at this point. Her Honour clearly made a mathematical error. Her sensible adjustment to take account of that error falls well within the prescriptions of the slip rule. In the circumstances it was not necessary, but may have been desirable for the other parties to the proceedings to be advised in advance of her intention to apply the rule. That does not invalidate its application. To the extent that the principles of natural justice and procedural fairness may have thus been breached, the order ought not be disturbed as no other outcome could feasibly have resulted (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).
We now turn specifically to the grounds of appeal as raised by the daughter’s Amended Notice of Appeal. Ground One asserted:
1.That the trial Judged erred in law and in fact, such that the exercise of her discretion has miscarried.
This is not strictly speaking a ground of appeal but rather a generalised assertion about the judgment. It is not possible or constructive to say more about this complaint, other than that it could only be substantiated if one of the grounds remaining to be considered were made out.
Ground Two asserted that:
2.The learned Trial Judge erred in finding in fact that the husband did not intend to give funds to the appellant [daughter] as such finding was against the weight of the evidence and did not take account of the presumption of advancement.
We struggle to understand what this ground seeks to assert. We fail to understand the possible impact of the “presumption of advancement” on a trial Judge’s fact-finding exercise. Had her Honour been unable on the evidence to find established either a loan or a gift, consideration of the presumption of advancement, and the equitable principles arising from it, may have become appropriate. That however would have followed, and been unrelated to, the Judge’s fact finding exercise. As was ultimately, at least inferentially, conceded by learned Counsel for the daughter, unless the trial Judge’s findings with respect to the disputed transactions are successfully challenged, the presumption of advancement has no relevance to this case.
If the ground intends to challenge the trial Judge’s finding of fact as contrary to the “weight of evidence”, nothing to which we have been referred persuades us that such was the case. As her Honour explained, in the passages to which we have earlier referred and elsewhere in her Reasons for Judgment, faced with conflicting and not cogent or consistent versions of the disputed transactions, the trial Judge preferred “in broad terms” the version of them advanced by the husband. We are not persuaded that so doing, and finding that the husband “did not intend to give the funds” to the daughter was “against the weight of the evidence”.
Ground Three asserted that:
3.The learned Trial Judge erred in law in taking into account irrelevant evidence, being evidence other than contemporaneous evidence, of the Husband’s intention at the time of transferring the funds to the appellant [daughter].
Significantly, learned Counsel for the daughter advanced nothing during his comprehensive oral submissions to advance this challenge. Commonsense, and the absence of any authority to the contrary advanced by learned Counsel for the daughter, suggest that the circumstances surrounding a disputed transaction are matters to which a trial Judge can have regard for the purpose of making relevant findings of fact with respect to the transaction. This is particularly so in this case where, as Counsel for the daughter’s submissions confirm, the major issues of fact were inextricably linked with, and determined by, the trial Judge’s finding with respect to credit.
Objectively, the evidence in relation to the critical issues in the case involved oath against oath. The conduct of the parties to the disputed transactions prior to, during and subsequent to the transactions and circumstantial evidence during each of those periods had the potential to impact upon the probabilities in relation to the critical issue. The trial Judge was, in our view, entitled to have regard to such matters where they had that potential.
Perusal of her Honour’s Reasons for Judgment does not suggest that her consideration of the probabilities was influenced in any way by any fact or circumstance which was not reasonably capable of impacting upon the probabilities. In a case such as this, it is difficult to imagine how a trial Judge could, other than in a potentially arbitrary way, make a credit finding, and consequential findings with respect to material facts in issue in reliance upon it, other than by reference to the sorts of matters about which Counsel for the daughter appears to have complained, but not particularised, in support of this ground.
It has not been demonstrated on behalf of the daughter that the trial Judge erred, either in relation to the credit finding or the finding with respect to the critical issue in the case, by having regard to evidence which was not reasonably capable of impacting upon the probabilities with respect to such matters.
It is not in doubt that evidence in relation to credit which is otherwise relevant to an issue is admissible, both at common law and pursuant to the Evidence Act 1995 (Cth). In Palmer v The Queen (1998) 193 CLR 1, McHugh J said, at 24:
The rigid distinction between credit and facts-in-issue and the rules predicated on that distinction should therefore be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts-in-issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes. The credibility of evidence is locked to the credibility of its deponent. The truth of that proposition is in reality recognised by the rule that a witness can be cross-examined as to matters of credit. Because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts-in-issue.
That statement of principle found considerable support in subsequent decisions, and particularly in Nicholls v The Queen (2005) 79 ALJR 468.
Nothing to which we have been referred persuades us that the trial Judge impermissibly relied upon evidence which was capable of impacting on questions of credibility in determining the essential facts in issue. No impermissible blurring of any distinction between matters of credit and matters going to facts in issue has been demonstrated in this appeal.
We are not satisfied that this challenge has substance.
Ground Four asserted that:
4.The learned Trial Judge failed to give adequate reasons for the non-application of the presumption of advancement.
This ground proceeds on the false premise that the trial Judge was obliged to give adequate or any other reasons for the “non-application of the presumption of advancement”. Unless, pursuant to a ground or grounds of appeal yet to be considered, the daughter’s challenge to the trial Judge’s conclusion that the funds provided by the husband to the daughter for the acquisition of the disputed property were not a loan, no question of the application of the presumption of advancement, or any need or basis for considering it, arose.
If, pursuant to a ground or grounds of appeal yet to be considered, the daughter’s challenge in that regard is successful, it would be necessary to consider whether the presumption of advancement had relevance to the dispute which the trial Judge was obliged to determine and, if so, the extent, if any, to which the trial Judge considered the application of the presumption.
It is obvious that a trial Judge cannot be criticised by an appeal court for failing to consider the application, or non-application, of principles of law which, in the light of the trial Judge’s findings of fact do not and cannot arise.
Ground Five asserted:
5.That the trial judge erred in failing to recognise the contributions to the property made by the appellant [daughter].
In our opinion, this ground fails to recognise that what her Honour did in the circumstances was to identify the nature and character of the money that was advanced and to make consequential orders for its return. The ground also fails to recognise the basis of the daughter’s claim which, ultimately, became that the monies with which the disputed property was acquired, were provided by the husband by way of gift. Ironically, the original version of the contentious transaction advanced by the daughter, a gift in return for a lifetime of accommodation and care, may have entailed the matters referred to in this ground.
We do not understand that, save to the limited extent referred to by learned Counsel for the daughter in his oral submissions, and clearly recognised by the trial Judge in her Reasons for Judgment, the daughter made contributions. Such matters were considered by the trial Judge in the way learned Counsel for the daughter complained that they ought not have been in the context of determining the nature of the disputed transactions between the husband and the daughter. So doing was not erroneous in our view.
In the circumstances it was not either required or perhaps even open to her Honour to consider the ways in which the daughter might have contributed to the acquisition of the disputed property and anything that may have flowed from it. The sale of the property or the payment of the money due will release the money to the husband. The balance of funds in accordance with her Honour’s orders at least would then be the daughter’s. We are not persuaded that any “contributions” found to have been made by the daughter were not recognised by the trial Judge’s decision. We thus find this ground lacks substance.
Ground Six asserted:
6.That the trial judge erred in dealing with the husband’s applicant [sic] under the slip rule without prior notice to the appellant [daughter] or her solicitors.
To the extent that this ground was pressed on the hearing of the appeal, we have earlier dealt with it and need say no more about it now.
Ground Seven asserted:
7.That the orders made as to property settlement in so far as they relate to the appellant [daughter] were not just and equitable.
Having concluded as her Honour did, no question of justice and equity as between the husband and daughter arose. The question is rather whether the trial Judge’s conclusion with respect to the Judge’s claim can be shown to have been wrong in law. As is not in doubt, the daughter intervened in proceedings in a matrimonial cause between the husband and the wife and, pursuant to the accrued jurisdiction of the Court, sought orders which, but for such jurisdiction, she would have been obliged to pursue in a state or territory court civil jurisdiction.
The daughter’s claim, ultimately, was that the monies used to acquire the disputed property had been gifted to her by the husband. The trial Judge rejected that claim and found, in favour of the husband, that the monies had been provided by way of loan. No other basis for the daughter’s claim could thus be suggested.
The claim made by the daughter having been rejected, no question of an consideration of a s 75(2)(ha) or any provision of Part VIIIAA arose for consideration. As learned Counsel for the daughter fairly conceded on the hearing of the appeal, no provision of Part VIIIAA was “run” before the trial Judge.
Nothing to which we have been referred persuades us that the trial Judge erred in not considering the justice or equity of the orders she proposed from the perspective of the daughter. Quite simply, the daughter agitated a claim for relief before her Honour pursuant to a jurisdiction which was not and has not been disputed. That claim was based on an asserted gift. The other party to the claim denied there had been a gift and asserted a loan, a contention preferred by the trial Judge for reasons which she detailed which have not been successfully impugned in this Court. Having failed within the terms of the claim which she litigated, that was, as learned Counsel for the daughter, at least inferentially conceded during the hearing of the appeal, the end of the matter. There was no residue of “justice” or “equity” upon which the daughter could successfully rely, or the trial Judge could validly invoke. We find no merit in this ground.
Conclusion Regarding the Daughter’s Appeal
No ground of appeal advanced on behalf of the daughter having been substantiated, her appeal should be dismissed.
Cross-Appeal of The Husband
In his amended Notice of Appeal the husband sought, in lieu of the orders made by the trial Judge, that this Court make orders in the following terms:
2.The monies due to be paid to the husband by the second respondent [the daughter] pursuant to the orders of 21 July 2006 and orders 7 and 9 of the orders of 30 June 2006 be divided as follows:
a.75% to the husband
b.25% to the wife.
The husband’s amended grounds of appeal agitated essentially four issues, they being:
·That the trial Judge failed to give any reasons or any adequate reasons for finding that the contributions should be assessed at 70 per cent in the husband’s favour and 30 per cent in the wife’s favour, that there should be a 15 per cent adjustment in the wife’s favour, and that the wife made a greater non-financial contribution (see Grounds 1 and 2);
·That the trial Judge failed to properly apply the law relating to the initial contribution, failed to accord the husband’s initial contribution sufficient weight, failed to give any, or any sufficient reasons in treating the husband’s initial contribution as she did (see Grounds 3 and 4);
·That the trial Judge failed to give sufficient weight to the husband’s contributions, particularly his initial contributions and gave excessive weight to the wife’s contributions (see Grounds 5 and 6); and
·That the trial Judge erred in her assessment of s 75(2) factors, and gave excessive weight to factors favouring the wife and insufficient weight to factors favouring the husband (see Ground 7).
Grounds Asserting A Lack of Reasons
The law relating to the adequacy of reasons for judgment is not in doubt and does not require extensive restatement for the purposes of this appeal.
The husband’s first two grounds of appeal before this Court related to the adequacy of reasons given by the trial Judge. Those grounds provided that:
1.Her Honour failed to give any reasons for the following findings:
a. That the contribution of the husband should be assessed at 70% and the wife at 30%.
b. That there should be an adjustment of 155 [sic] in favour of the wife for section 75(2) factors.
c.The finding that the wife made a greater non-financial contribution than that of the husband.
2.Alternatively, Her Honour failed to give adequate reasons for the following findings:
a. That the contribution of the husband should be assessed at 70% and the wife at 30%.
b. That there should be an adjustment of 155 [sic] in favour of the wife for section 75(2) factors.
c. The finding that the wife made a greater non-financial contribution than that of the husband.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279, McHugh JA said:
… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
This reasoning was adopted in Bennett and Bennett (1991) FLC 92-191 by their Honours Nicholson CJ, Simpson and Finn JJ, who stated at page 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: --
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
In essence, it was submitted by Counsel for the husband that it was “not possible for the court to ascertain, when reading the decision, the reason upon which the decision is based”. When invited by Kay J to “tell us what’s missing”, Counsel for the husband suggested, without specifying such matters, that the passages of her Honour’s judgment addressing the issues of contributions constituted an “inadequate summary”.
As the Court reminded Counsel for the husband, the case for the husband at trial had been that contributions ought to be seen as favouring the husband 80 per cent to the wife’s 20 per cent. The trial Judge found that contributions favoured the husband by 70 per cent.
As the authorities make clear, the adequacy of reasons varies according to the context in which the reasons are given. In this case the trial Judge gave a succinct and uncontroversial account of the contributions made by each of the parties. Her conclusion with respect to contributions recognised the husband’s contributions as 10 per cent less than asserted on his behalf in a case involving an asset pool of approximately $323 000, a difference of approximately $32 000.
The cohabitation of the husband and wife commenced in August 1998 and ended less than six years later in 2004, a “relationship of five years and nine months” as the trial Judge uncontroversially found.
Her Honour recorded, accurately there is no doubt, that the husband “effectively contributed all of the assets of the parties” and thereafter “financially supported the wife throughout their relationship”, including funding and sponsoring the wife’s applications to obtain residence. These findings substantially accorded with the submissions made by the husband’s Counsel at trial.
There is no suggestion in this appeal that there were other relevant financial contributions to which the trial Judge failed to refer. It is not suggested that those to which she did refer were in any way inaccurately referred to.
So far as non-financial contributions were concerned, the trial Judge recorded that the wife made the greater, but not the sole contribution, as home-maker and parent and, since separation, a much greater contribution to the welfare of the child than the husband. Save to the extent that the post-separation period involved the overwhelming financial burden falling upon the wife, which could hardly have enhanced the husband’s contributed-based entitlement, Counsel for the husband did not suggest any other relevant non-financial contributions to which the trial Judge could or should have referred. Those matters to which her Honour did refer were not suggested to have been considered in a manner that was not reasonably open to her.
We are not satisfied that the trial Judge’s reasoning process was, in the circumstances of the case before her, inadequate or otherwise such as would enliven appellate intervention so far as her finding with respect to contributions was concerned.
So far as the complaint with respect to her Honour’s reasons for a s 75(2) adjustment is concerned, the trial Judge addressed a number of s 75(2) factors. Counsel for the husband did not suggest any s 75(2) factor to which her Honour did not have regard. The trial Judge considered that the wife’s contribution-based entitlement should be increased by 15 per cent by virtue of s 75(2) of the Act. At trial the husband conceded an adjustment of 10 per cent. The 5 per cent difference between what the husband sought and what the trial Judge ultimately awarded was approximately $16 000.
It was not suggested by Counsel for the husband that the trial Judge was mistaken with respect to any of the s 75(2) factors to which she referred. Her Honour recorded that the age and state of health was a factor favouring the husband, for reasons which she detailed. Unsurprisingly, her Honour also concluded that the capacity for work in the future was a factor favouring the husband. The primary care for the parties’ child who was then “not yet seven” was a “very significant factor” in favour of the wife. So was the fact that the husband would “only be required to pay token child support” in the future.
The only other factors of relevance to which her Honour referred were the duration of the parties’ relationship (a little less than six years) and the fact that “by bringing the wife permanent residency in Australia as a result of the husband’s sponsorship it has greatly increased her general prosperity”.
Her Honour concluded her consideration of s 75(2) by saying “balancing the factors” which favour the husband (namely the age and state of health and capacity for employment) with those favouring the wife (the primary care of the parties’ child), her Honour concluded an adjustment in favour of the wife of 15 per cent to be appropriate.
In our view there is no doubt as to why her Honour made the s 75(2) adjustment which she did. Her reasoning process is transparently apparent. The challenge to the adequacy of reasons in this regard in our view fails.
It remains to consider the challenge to the trial Judge’s finding that the wife made a greater non-financial contribution than did the husband. As was traversed with Counsel for the husband during the course of the hearing of the appeal, no matter how detailed the trial Judge’s reasons may be in a discretionary judgment, there comes a point where the judge must move from facts to conclusions. In this case, particularly having regard to the history of the parties’ relationship as the trial Judge recorded it in the earlier part of her judgment dealing with children’s issues, and to the passages of her judgment dealing with the topic, we are not persuaded that her Honour’s reasons were inadequate. Interestingly, no ground of appeal agitated on behalf of the husband asserts that such conclusion was not reasonably open to her Honour.
Grounds Asserting A Mis-exercise of Discretion and the Attribution of Weight To Contributions
Grounds Three and Four of the husband’s Notice of Appeal asserted:
3.Her honour failed to properly apply the law relating to initial contribution, and therefore failed to give the husband proper credit for his initial contribution. her [sic] Honour failed to properly assess the initial contribution in all the circumstances of the case.
4.That Her Honour failed to give any reason or in the alternative gave inadequate reasons, as to the treatment of the Initial contribution in of the husband.
Grounds Five and Six asserted:
5.Her honour failed to give sufficient weight to the contributions of the applicant, and in particular to the initial contributions of the applicant.
6.Her honour erred in that she gave excessive weight to the contributions of the wife, and did not give sufficient consideration to the short duration of the relationship.
The principles governing appeals against the exercise of discretion and the weight accorded to particular factors are not in doubt and do not require extensive restatement in this appeal. In Norbis v Norbis (1986) 161 CLR 513 Brennan J said, at 539 – 540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at p.345 Asquith LJ. stated the rationale of an appellate court’s approach:
“…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
In Gronow v Gronow (1979) 144 CLR 513, Stephen J stated at pages 519-20:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. 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.
How a trial Judge should deal with an initial contribution was considered by the Full Court in Pierce v Pierce (1999) FLC 92-844. At page 85-881, the Court stated:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
In Collins v Collins (1990) FLC 92-149, the Full Court adopted the comments of the Full Court in Braniki (unreported judgment, delivered 18 May 1990) stating at page 78-043-05:
A trial Judge will no doubt consider the relevance or otherwise to the task at hand of the various matters referred to in sec. 79(4) including, by reference, sec. 75(2) in determining to make any and, if so, what order and in that task would disregard matters which are not relevant to that responsibility. The weight to be attached in a particular case to those matters is very much a matter a matter for the trial Judge: Mallet, supra. The legislature has chosen to set out a diverse range of matters for consideration and the court is obliged to take those into account when they are relevant to the facts of the particular case.
So far as the challenge raised by Ground Three is concerned, nothing to which we have been referred persuades us that the trial Judge erred in the sense there asserted. As we have earlier recorded, the husband sought that his contributions be recognised as 80 per cent and the wife’s as 20 per cent. The trial Judge concluded 70 per cent to be an appropriate recognition of the husband’s contributions.
Perusal of the transcript of the trial, and particularly the concluding submissions of Counsel then appearing for the husband and wife, leave little room for doubt that both parties acknowledged that the husband’s initial contribution necessitated his contributed-based entitlement being greater than that of the wife. As the submissions before the trial Judge make clear, the issue was by how much that should be so.
Her Honour referred to the initial contributions of the husband. The conclusion is inescapable that those initial contributions resulted in the husband’s entitlement being significantly greater than the wife sought, albeit 10 per cent less than was asserted on his behalf. On the unchallenged findings of fact made by the trial Judge, no other basis for a 40 per cent disparity in contribution-based entitlements could be suggested.
As Brennan J explained in Norbis (supra), the “range” in this case was reasonably wide. Others may have reached a conclusion more favourable to the husband than did the trial Judge. Others may have been less generously disposed. This does not mean that the trial Judge was in error. Nothing to which we have been referred persuades us that the trial Judge failed to either properly assess the husband’s initial contribution or to give him appropriate credit for it. Her Honour’s conclusion was “within the range”.
With respect, so far as the complaint that the trial Judge failed to give any or any adequate reasons with respect to the treatment of the initial contribution of the husband, our earlier observations with respect to the adequacy of reasons and the impact of the context in which reasons are given are apposite. We need not repeat those observations, save to say that her Honour clearly considered the husband’s contributions to be far greater than those of the wife by virtue of his initial contribution. With respect to her Honour, it is difficult to see what more she could constructively have said in that regard, given that she accepted in the husband’s favour that he made the totality of the financial contributions, both as to capital and income, in addition to funding and sponsoring the wife’s applications to obtain permanent residence. Counsel for the husband did not suggest anything more which her Honour could, or should, have said in that respect.
To the extent that Counsel for the husband complained that the trial Judge failed to refer to authority, she was not obliged to do so. It is inconceivable that her Honour would have concluded that the husband’s contributions were some 40 per cent greater than those of the wife had she not had regard to his initial contribution. That inference is inescapable given her findings with respect to non-financial contributions, which could reasonably be thought to have offset the husband’s greater financial contribution of income and support during the cohabitation of the parties. We are not persuaded that the trial Judge failed to give adequate reasons for her conclusions with respect to the husband’s initial capital contribution or her “treatment” of that contribution.
We have largely dealt with the other challenges raised by these grounds. We record however that nothing to which we have been referred persuades us that the trial Judge failed to give sufficient weight to the husband’s contributions, either initial or other contributions. The reading of the transcript of final submissions to the trial Judge is supportive of such a conclusion. Nor are we persuaded that the trial Judge gave excessive weight to the wife’s contributions or that she gave insufficient consideration to the short duration of the relationship. The trial Judge expressly referred to the duration of the relationship. What she did not refer to was the fact that during the two years subsequent to the parties’ separation and the date of judgment, the wife had provided financially for the child with no more than “token” child support.
The “range” in this case was always liable to be wide, relative to the modest assets of the parties. Other judges may have reached different conclusions having regard to the weight appropriate to be given to the countervailing factors revealed by the evidence. Significantly, whilst the adequacy of the trial Judge’s reasons for so finding have been challenged in this appeal, the findings themselves have not. We are not persuaded that the trial Judge’s conclusion fell outside the ambit of a reasonable exercise of discretion. We are not persuaded that the exercise of discretion was influenced by extraneous or irrelevant considerations. It has not been shown that the trial Judge failed to have regard to any relevant fact or circumstance in the exercise of discretion. No relevant fact or circumstance has been shown to have been given excessive or inadequate weight. In our view the challenges to the exercise of her Honour’s discretion fail.
Ground Seven asserted:
7.Her honour erred in her assessment of the section 75(2) factors applicable in the matter and particular gave excessive weight to such factors in favour of the wife and inadequate weight to such factors as favoured by the husband.
As noted earlier, the trial Judge adjusted the contribution-based entitlements of the parties by 15 per cent pursuant to s 75(2). The reasons for her so doing have earlier been considered. It remains to consider whether the exercise of her Honour’s discretion miscarried. Sensibly, there is no suggestion that any fact or circumstance relied upon by the trial Judge pursuant to s 75(2) was extraneous or irrelevant. Nor is it suggested that her Honour failed to have regard to any relevant s 75(2) fact or circumstance. There is no suggestion that her Honour’s exercise of discretion pursuant to s 75(2) was vitiated by a material error of fact. The question is ultimately thus whether, either by giving excessive or inadequate weight to any particular factor or factors, the exercise of discretion miscarried, or whether, quite apart from any such error, the adjustment fell outside the ambit of a reasonable ambit of discretion.
Given that the trial Judge’s s 75(2) adjustment exceeded that conceded on behalf of the husband to be reasonable by only 5 per cent, or a total of $16 000, and having regard to the matters to which we have referred, the enormity of the challenge confronting the husband pursuant to this ground can be readily appreciated.
As we have earlier discussed in the context of the husband’s challenge to the adequacy of the trial Judge’s reasons for the s 75(2), four factors assumed significance. There is no suggestion that those four factors were not the relevant factors for the purpose of the trial Judge’s determination of the s 75(2) adjustment. Her Honour found, correctly there can be no doubt, that the husband’s age and state of health, and consequential impact upon his future employment prospects weighed in his favour under s 75(2). On the other hand, as her Honour also noted, the wife would have the greater future care for the parties’ child, an obligation which would endure for over a decade. Relevant in that context was not only what might be called the usual financial and non-financial burdens of primarily providing and caring for a child, but also the reality, as it clearly was, that no more than “token” child support would be likely to be received from the father in the future. Her Honour was exercising a broad discretion. In our view it cannot be said that the exercise of discretion miscarried and that the s 75(2) adjustment determined by her Honour was so generous to the wife as to fall beyond the ambit of a reasonable exercise of discretion.
Nothing to which we have been referred persuades us that the trial Judge gave excessive or inadequate weight to any of the relevant s 75(2) factors to which she had regard. Nor are we persuaded that, independent of any such error, the s 75(2) adjustment determined by her Honour fell outside the ambit of a reasonable exercise of discretion. This ground thus fails.
Accordingly, in our opinion none of the amended grounds of appeal of the husband has been made out and that appeal should also be dismissed.
Conclusion
Having regard to the absence of success of either of them, we conclude that both the appeal and the cross-appeal should be dismissed.
The Further Evidence Application
On 12 February 2008 the husband filed an application for leave to adduce further evidence in the appeal. We do not know whether the application has been served on the wife’s legal representatives. The further evidence thereby sought to be adduced in the appeal is contained in an affidavit sworn by the husband’s solicitor, Mr Brown, on 11 February 2008.
The basis on which the further evidence is sought to be admitted is stated by Mr Brown in his affidavit to be his belief that the matters referred to in his affidavit “may be relevant to the Court’s determination of the appeal, or alternatively any re-exercise of discretion under s 79 as between the husband and the wife”. Mr Brown discloses that he does not “presently know what sum the solicitors for the mortgagee hold”.
The annexures to Mr Brown’s affidavit suggest that the property registered in the name of the daughter to which the appeal and cross-appeal before this Court relate has now been sold by the holder of a mortgage in the exercise of its powers pursuant to its mortgage as a consequence of the daughter having failed to make payments required of her under the mortgage.
As the annexures to Mr Brown’s affidavit reveal, the solicitors for the mortgagee are holding the proceeds of sale in trust to abide the outcome of the proceedings in this Court but have yet to indicate the quantum of the net proceeds of sale. It would be reasonable from the annexures to Mr Brown’s affidavit to expect that the proceeds of the sale of the property would be likely to be reduced to a greater extent than the trial Judge’s findings anticipated as a consequence of the daughter’s default under the mortgage, and the likely impost of the mortgagee’s legal costs flowing from such default. We are in no position to speculate as to what her and, if so, to what extent the increase in debt associated with the property would have been offset by its sale price exceeding the value of the property as found by the trial Judge.
In CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 McHugh, Gummow and Callinan JJ said in paragraph 109:
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.
Significantly for present purposes, the husband’s solicitor asserts that the further evidence upon which the husband seeks to rely “may [emphasis added] be relevant to the Court’s determination” of the husband’s cross-appeal. Inferentially, on the basis that the net property available for division between the husband and wife may be less than the trial Judge’s orders envisaged. It is thus suggested on behalf of the husband that the husband’s contributions might have been entitled to greater recognition than the trial Judge gave them on that basis. Equally apparent however is the reality that, if the asset value is less, the wife’s contributions are correspondingly discounted as, perhaps more significantly, is the s 75(2) adjustment determined by the trial Judge.
The issue raised by the further evidence could have no possible impact on the daughter’s appeal. The wife has not had an opportunity to be heard in relation to the further evidence application, but that absence of opportunity will not operate to her detriment, for the reasons which follow.
The “test” as it has been accepted to emerge from the judgment of the majority in CDJ v VAJ (supra) in our view requires more to be demonstrated than the possibility that the further evidence “may” in some unspecified way have an impact upon the determination of the appeal. In our view the further evidence sought to be relied upon in this case could not, if accepted, render erroneous the trial Judge’s decision.
To the extent that the further evidence was sought to be relied upon in the alternative as being of relevance to the “re-exercise of discretion under s 79 as between the husband and wife”, such scenario does not arise in this appeal as we are dismissing the cross-appeal and are not proposing to revisit the exercise of discretion. Having regard to the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172, if we had intended to re-exercise the discretion, further evidence of the kind referred to in the husband’s solicitor’s affidavit would, with leave, have been admissible.
For the foregoing reasons, we would not allow the application for leave to adduce further evidence.
Costs
At the conclusion of the hearing of the appeal, Counsel for the parties indicated their positions with respect to costs. Sensibly, learned Counsel for the daughter submitted that it was “difficult to say why costs shouldn’t follow the event”, subsequently confirming that if the appeal failed the daughter should pay the order for the husband’s costs.
Counsel for the husband sought a costs certificate in the event that the husband’s appeal against the order for settlement made in favour of the wife was successful. Sensibly, Counsel for the husband conceded that “[i]f we are unsuccessful - well, I suppose, I'm facing a cost application from my friend, and I couldn't concede that formally, or agree to that, but I can see we'd be facing that and might not be able to say very much about it”.
Counsel for the wife confirmed that if the wife successfully resisted the husband’s appeal with respect to the trial Judge’s property settlement orders, costs were sought against the husband. As Counsel for the wife stated, it was only because the husband revived his appeal that the wife was other than “just submitting an appearance”.
The statutory provisions governing the costs applications are not in doubt. The Court must have regard to the relevant provisions of s 117(2A) of the Act. How the Court exercises its discretion pursuant to those provisions is also not in doubt. In Penfold v Penfold (1980) 144 CLR 311 the majority of the High Court (Stephen, Mason, Murphy, Aikin and Wilson JJ) said, at 315:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117(2) in “a clear case”.
Sub-section (2) does not, in our view, as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v Kent (1970) 92 WN (NSW) 503 at 505). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
We know nothing of the financial circumstances of any of the parties to these proceedings save to the extent that they emerge from the trial Judge’s reasons. In the circumstances we do not regard the financial circumstances of either the daughter or the husband, the parties potentially liable to be ordered to pay costs, as militating against making a costs order. In reality, s 117(2A)(e) is the most relevant provision of s 117(2A) for present purposes.
So far as the husband’s application for costs of the daughter’s appeal is concerned, we are of the opinion that the circumstances justify such an order. With all due respect to the ingenuity and energy of learned Counsel for the daughter, her appeal was always reliant upon a successful challenge to the trial Judge’s credit finding. Realistically, if, as has transpired, that challenge failed, that was, as Kay J suggested during the hearing of the appeal, “the end of the matter”. The hurdles which confront an appeal against a credit finding are well known and the authorities which establish the relevant principles are of long standing. Objectively, the daughter’s appeal was always likely to be, and has been, wholly unsuccessful. We thus propose making an order that the daughter pay the husband’s costs. No question of the wife’s costs arises in the context of the daughter’s appeal.
We turn to consider the wife’s application that the husband pay her costs of his unsuccessful cross-appeal.
At the risk of oversimplifying the position, the trial Judge’s decision, which will not be disturbed, will significantly enhance the financial position of the wife, and correspondingly diminish that of the husband, although the circumstances of both could be described as modest. In our view, the financial position of the parties thus ought not advance the wife’s claim. Whether it should assist the husband’s resistance of that claim requires consideration.
The husband has been wholly unsuccessful in his challenges to the trial Judge’s orders for settlement of property. The substantial obstacles to a successful appeal against a discretionary judgment are well known and of long standing.
Although the grounds agitated on behalf of the husband have not found favour, the challenge to the trial Judge’s conclusion with respect to contributions and, albeit to a lesser extent the s75(2) adjustment ordered by her Honour did raise issues of potential substance. On any view of the evidence, the trial Judge’s decision represented for the wife the “top of the range”. In our view, although unsuccessful, the husband was justified in mounting a challenge to the trial Judge’s decision, particularly having regard to its impact on the husband’s life savings, his age and financial prospects for the future. We are thus not of the opinion that he should pay the wife’s costs of the cross-appeal.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 14 February 2008
0
15
16