MULLER & CHURCH
[2012] FamCAFC 177
•6 November 2012
FAMILY COURT OF AUSTRALIA
| MULLER & CHURCH | [2012] FamCAFC 177 |
| FAMILY LAW ─ APPEAL ─ Where the appeal challenged only the weight which the trial Judge gave the matters taken into account in coming to his decision as to the relative percentage entitlements of the parties ─ no appealable error established. |
| Family Law Act 1975 (Cth), s 94(2A) |
| Norbis v Norbis (1986) 161 CLR 513 |
| APPELLANT: | Ms Muller |
| RESPONDENT: | DF Browne as Case Guardian for Mr Church |
| FILE NUMBER: | PTW | 2195 | of | 2008 |
| APPEAL NUMBER: | WA | 6 | of | 2012 |
| DATE DELIVERED: | 6 November 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Bryant CJ, Thackray & Ainslie-Wallace JJ |
| HEARING DATE: | 24 October 2012 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 17 February 2012 |
| LOWER COURT MNC: | [2012] FCWA 13 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Brasch |
| SOLICITOR FOR THE APPELLANT: | HopgoodGanim Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hooper |
| SOLICITOR FOR THE RESPONDENT: | Chris Williams, Lawyer and Mediator |
Orders
The appeal be dismissed.
The appellant wife pay the respondent husband’s costs of the appeal in the sum of $6,000.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Muller & Church has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 6 of 2012
File Number: PTW 2195 of 2008
| Ms Muller |
Appellant
And
| DF Browne as Case Guardian for Mr Church |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Muller (“the wife”) appeals against orders for property settlement made by Crooks J on 17 February 2012. Mr Church (“the husband”) resists the appeal and seeks to maintain his Honour’s orders.
Background
The husband was born in 1966 and he was 45 at the date of the hearing before the trial Judge. The wife was born in 1973 and she was 38 at the date of the hearing. They met in early 1999 and began to live together in the middle of that year. They married in March 2001 and their only child, A, was born in February 2002. The parties separated in June 2006.
Although the parties met in Sydney, they moved to live in Perth in April 2003. After separation, the wife and child moved to live in Brisbane to be closer to the wife’s family. The husband agreed to that course. In the result, the little girl spends school holiday time with the husband and he pays the costs of her airfares to Perth for that purpose.
The husband became ill in 1999 with what the trial Judge described as “an antibody deficiency syndrome and also chronic fatigue syndrome” (at [7]) and his condition deteriorated over several years. In 2006, just after separation, he received a significant insurance payment for total and permanent disablement and accumulated superannuation. The living arrangements agreed by the parties post separation reflected the husband’s illness and the support the wife would receive from her family in Brisbane. How the lump sum payment should be treated was a matter of some contention at trial.
The trial Judge found that the net assets of the parties amounted to $1,374,769 and his Honour found that the husband’s entitlement was as to 70 per cent and that of the wife 30 per cent. He made orders reflecting that determination and, taking into account the property already held by each party, ordered that the wife pay to the husband the sum of $177,805.
The trial Judge found that the husband’s medical condition is severely disabling and incapacitating. His condition is not curable nor has it responded to therapy. At the time of the hearing the husband’s condition was such that he is largely solitary because his condition which includes an impaired immune system means it is difficult to him to socialise. He uses a wheelchair and is reliant on others to assist him in daily living tasks. At the time of hearing, the husband was reliant on assistance from his parents and his brother.
The wife is well. At the time of the hearing before his Honour, she was working a four day week as a manager and earning a salary package of $80,000. She has a home office which allows her to work from home or operate a business for herself from her home.
It was conceded at the outset of the appeal that the challenges to his Honour’s decision were as to weight; that is, no challenge was made to his findings of fact, nor was it asserted that his Honour misapplied the law. Importantly, no ground asserted that the reasons of the trial Judge were inadequate. The argument on appeal devolved to a challenge that his Honour gave too little weight to the wife’s contributions and placed too much weight on the husband’s direct financial contributions. That being the case, it is necessary only to make brief reference to his Honour’s reasons for judgment.
The Trial Judge’s Reasons for Judgment
It was undisputed that at the commencement of the relationship the husband had significant assets, including a property which the husband estimated was worth about $156,000, subject to a mortgage of about $79,000, and superannuation in the order of $47,000. His Honour found that he was earning an income which was greater than that of the wife. Indeed, as his Honour records at [29], the wife conceded that the husband’s direct financial contributions from his employment between 1999 and 2006 were twice those of the wife. The wife further conceded that, between 1999 and the birth of the child, the husband’s contributions to the home were equal to hers (see [31]).
The wife said that after the birth of the child she suffered from post natal depression and did not feel up to working for two years. The husband did work during this time, although found it increasingly difficult. His Honour found that while the wife was at home in this time she did most of the caring for the child and the work around the house.
In April 2003, because of the severity of his illness, the husband took leave from his employment without pay. Eventually he ceased work entirely. When the parties moved to Perth they received significant assistance from the husband’s family both in the care of the child and otherwise.
After the parties separated the husband received a lump sum payment which represented his entitlement to superannuation over 38.6 years until he would otherwise be able to retire. With payment of accrued superannuation, the husband received $667,202. Through prudent investment, that sum has grown and was at the date of hearing $710,208.
The trial Judge had the benefit of expert evidence about the nature and extent of the husband’s investment. His Honour found based on that evidence that if the husband drew $10,000 to $15,000 per annum from that account, he would have funds to support him for between 8 to 14 years. Counsel for the husband submitted that in fact this finding was particularly optimistic because the husband’s unchallenged evidence was that he withdrew about $30,000 each year on a portion of which tax was to be paid.
The trial Judge acknowledged, at [70], that “any assessment of contributions is a highly subjective task”. In arriving at his assessment, his Honour said that he had taken into account the husband’s greater contribution at the commencement of the relationship and his contribution of the insurance payment, as well as his greater financial contribution between 1999 and 2006. He weighed these matters against the wife’s financial contribution and importantly her contribution as a homemaker and parent, especially after the separations. His Honour observed, at [72] that:
Although the contributions of the wife ameliorate some of the effect of the husband’s initial contribution and the combined payout he received, the Honour’s contributions represent most of what the parties presently have.
Taking all matters into account, the trial judge assessed contributions as 70 per cent to the husband and 30 per cent to the wife.
On a consideration of relevant factors under s 75(2), his Honour had to weigh, among other things, the husband’s total and permanent disablement and the finite amount of funds from which to provide his support against the wife’s primary care of the children during their dependency and her capacity for employment. His conclusion after weighing these factors was that there should be no further adjustment on account of the s 75(2) factors.
The Appeal
Given the nature of the appeal and that it does not raise any matter of general principle, we propose to deliver short form reasons pursuant to s 94(2A) of the Family Law Act 1975 (Cth).
As we have already indicated, it was not contended that his Honour’s reasons were inadequate nor was any challenge made to his findings of fact.
The appeal challenges the weight which he gave the matters taken into account in coming to his decision as to the relative percentage entitlements of the parties.
At this point, we observe that the Court’s discretion in determining what is just and equitable in a particular case is a very broad one. As Brennan J said in the High Court in Norbis v Norbis (1986) 161 CLR 513, at pages 539-540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of a 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, Asquith L.J. 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.
First, it was contended that his Honour failed to give sufficient weight to the wife’s indirect financial contributions and further gave too much weight to the husband’s financial contributions.
Considering his Honour’s reasons as a whole, we find no basis for this challenge and no error has been established.
Secondly, it was asserted that his Honour failed to give proper weight to the wife’s contribution in supporting the child after separation. Nothing we were taken to demonstrates an error in his Honour’s exercise of discretion in this regard.
Finally, it was asserted that his Honour’s discretion miscarried in that he erred in the weight he gave to the various s 75(2) matters. Again, nothing we were taken to indicates that his Honour failed to consider relevant matters or took into account irrelevant ones.
Hence, we find no support for the final contention which was that the orders were manifestly unjust and outside the ‘generous ambit within which reasonable disagreement is possible’. No error has been demonstrated. The appeal will be dismissed.
Costs
As is customary, we sought submissions from the parties as to costs. In the event that the appeal failed, the husband sought an order for costs against the wife in the sum of $6,000. In our view, that is both entirely reasonable and is an appropriate order to make.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 6 November 2012.
Associate:
Date: 6 November 2012
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