Norbis v Norbis

[1986] HCA 17

HIGH COURT OF AUSTRALIA

Mason , Wilson, Brennan, Deane and Dawson JJ.

NORBIS v. NORBIS

(1986) 161 CLR 513

30 April 1986

Family Law

Family Law—Proceedings with respect to property of parties—Interests—Alteration—Assessment of entitlements—Judicial discretion—Asset-by-asset approach—Global approach—Function of appellate court on appeal from exercise of discretion—Family Law Act 1975 (Cth),s. 79.

Decisions

MASON and DEANE JJ.: The facts which have given rise to this appeal and the history of proceedings have been described in the joint judgment of Wilson and Dawson JJ. It is unnecessary for us to repeat them.

2. The reason for the variation by the Full Court of the Family Court of the orders made by the primary judge are to be found in two passages in the judgment of McGovern J., with whom Barblett S.J. and Strauss J. expressed their agreement. The first passage (reported at (1984) FLC 91-543, at p.79,402) is in these terms:

"With the greatest of respect to his Honour I am of the view that the approach he adopted in arriving at his decision was one which is inappropriate in the great majority of cases, and certainly the present case, to follow. It would seem to me to serve no good purpose, particularly in a marriage of long duration in which there have occurred countless changes of varying degrees in the family fortunes generally and of perhaps major assets in particular, to attempt to impart to individual assets different percentages in favour of the parties. At the most any such attempt can be only notional. The manner in which the particular assets have been acquired or contributed to may, of course, well be relevant in determining the overall distribution: see Aroney and Aroney (1979) FLC 90-709 at p.78,785. I think all one can do realistically in such circumstances is to take into account all of the matters to which one is referred in sec.79(4) of the Family Law Act and fix an overall proportion on a global view of the totality of the assets to be divided. See Tuck and Tuck (1981) FLC 91-021; Antmann and Antmann (1980) FLC 90-908."

The second passage, at pp.79,403 - 79,404, is as follows:

"Having considered the counter-arguments advanced by counsel for the wife on the subject of the weight to be given the evidence upon the respective contributions of the parties, I would not be prepared to disturb his Honour's findings short of the point at which they were made applicable to particular items of the property to be divided.

Accepting, as I do, his Honour's findings, and being of the view in the light of the same that the circumstances justify a departure from a position of equality of interests in the divisible assets in favour of the husband, I think, viewing the matter globally, that the division of assets which is just and equitable, taking into account the moneys the parties have already received from Tenzana Pty. Ltd., is that ordered by his Honour with respect to the various pieces of real estate without any cash adjustment between the parties. Such a division would, in my view, adequately reflect the greater share in contributions made by the husband in accordance with his Honour's findings."

The reference, at the commencement of the last paragraph, to circumstances justifying "a departure from a position of equality of interests in the divisible assets" is to be understood in the context that the judgment was delivered before the judgment of this Court in Mallet v. Mallet (1984) 58 ALJR 248; 52 ALR 193.

3. It is well settled that the principles governing interference by an appellate court with the exercise of a discretionary judgment at first instance apply to the Full Court of the Family Court as an intermediate court of appeal (De Winter and De Winter (1979) FLC 90-605; 23 A.L.R. 211; Gronow v. Gronow (1979) 144 CLR 513 and Mallet). It is not disputed that the Full Court of the Family Court was bound to apply these principles in the present case on the footing that the trial judge, in making orders under s.79 of the Act, was exercising a judicial discretion. The principles have been constantly reiterated and applied by this Court in the form in which they were expressed in House v. The King (1936) 55 CLR 499, at pp 504-505:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

4. The sense in which the terms "discretion" and "principle" are used in these remarks needs some explanation. "Discretion" signifies a number of different legal concepts (see, for example, the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), at pp.3-10). Here the order is discretionary because it depends on the application of a very general standard - what is "just and equitable" - which calls for an overall assessment in the light of the factors mentioned in s.79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

5. The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.

6. It has sometimes been said by judges of high authority that a broad discretion left largely unfettered by Parliament cannot be fettered by the judicial enunciation of guidance in the form of binding rules governing the manner in which the discretion is to be exercised (see, for example, Mallet, at p 249; pp 195-196 of ALR; Evans v. Bartlam (1937) AC 473, at pp 488-489; Gardner v. Jay (1885) 29 ChD 50, at p 58). However, it does not follow that, because a discretion is expressed in general terms, Parliament intended that the courts should refrain from developing rules or guidelines affecting its exercise. One very significant strand in the development of the law has been the judicial transformation of discretionary remedies into remedies which are granted or refused according to well-settled principles (United Engineering Workers' Union v. Devanayagam (1968) AC 356, at p 384). It has been a development which has promoted consistency in decision-making and diminished the risks of arbitrary and capricious adjudication. The proposition referred to at the beginning of this paragraph should not be seen as inhibiting an appellate court from giving guidance, which falls short of constituting a binding rule, as to the manner in which the discretion should be exercised (but cf. Reg. v. Bicanin (1976) 15 SASR 20, at p 25). And despite the generality of some of the statements to which we have referred, there may well be situations in which an appellate court will be justified in giving such guidance the force of a binding rule by treating a failure to observe it as constituting grounds for a finding that the discretion has miscarried.

7. The point of preserving the width of the discretion which Parliament has created is that it maximizes the possibility of doing justice in every case. But the need for consistency in judicial adjudication, which is the antithesis of arbitrary and capricious decision-making, provides an important countervailing consideration supporting the giving of guidance by appellate courts, whether in the form of principles or guidelines. The tension between the two considerations, each of fundamental importance in family law, has inevitably led to a near dilemma for the Full Court of the Family Court. To avoid the risk of inconsistency and arbitrariness, which is inherent in a system of relief involving a complex of discretionary assessments and judgments, the Full Court, as a specialist appellate court with unique experience in the field of family law in this country, should give guidance as to the manner in which these assessments and judgments are to be made. Yet guidance must be given in a way that preserves, so far as it is possible to do so, the capacity of the Family Court to do justice according to the needs of the individual case, whatever its complications may be. Reconciliation of these goals suggests that in most, if not all, cases the Full Court of the Family Court should give guidance in the form of guidelines rather than binding principles of law. The nature of the issues which arise under s.79 is such that there is either little or no scope for giving guidance in the form of binding rules of law. The term "guidelines", though not commonly used in relation to judicial discretions, is familiar enough in the bureaucratic and administrative world, where it denotes rules or standards which are not binding and may be relaxed when it is expedient to do so in order to do justice in the particular case. Guidelines were what Lord Wright had in mind in Evans v. Bartlam when he said (at p 488):

"It is ... often convenient in practice to lay down, not rules of law, but some general indications, to help the Court in exercising the discretion ..."

8. The reference to "wrong principle" in the passage quoted from House v. The King no doubt refers to a binding rule rather than a guideline in the sense already explained. A failure to apply a guideline does not of itself amount to error, for it may appear that the case is one in which it is inappropriate to invoke the guideline or that, notwithstanding the failure to apply it, the decision is the product of a sound discretionary judgment. The failure to apply a legitimate guideline to a situation to which it is applicable may, however, throw a question mark over the trial judge's decision and ease the appellant's burden of showing that it is wrong. However, in the ultimate analysis and in the absence of any identifiable error of fact or positive law, the appellate court must be persuaded that the order stands outside the limits of a sound discretionary judgment before it intervenes.

9. When the two passages which we have quoted from the judgment of McGovern J. in the present case are read together, it is evident that the Full Court intervened on the footing that the trial judge erred in law in failing to apply the "global" approach and that this failure justified a fresh exercise of the discretion by the Full Court. In prescribing the global approach, their Honours were saying not only that the Court must take account of the whole of the parties' assets but also that their entitlements must be ascertained by reference to the value of the whole of that property without differentiating between particular assets. They were not saying that the entitlements thus ascertained should be translated into orders with respect to percentages of the whole of the property. It has always been recognized that in the making of the final orders it is desirable to avoid a sharing of particular assets.

10. Section 79(1) of the Act provides that the Court may make such order as it thinks fit altering the interests of the parties to a marriage in the property of the parties or either of them. In so providing, the Act confers a very wide discretion on the Court. But that discretion is not unlimited. Its exercise is conditioned by the requirement that it is just and equitable to make the order (s.79(2)), and that the Court take into account the matters specified in s.79(4) and the general principles embodied in ss.43 and 81, so far as they are applicable. However, none of these provisions answers in any direct way the question whether it is more appropriate for the Court in making such an order to view the assets of the parties globally or to assess entitlements by reference to specific assets.

11. We have been referred to decisions of the Family Court which support the proposition that the Court should look to the totality of the parties' assets in making an order under s.79 (see, for example, Tuck and Tuck (1981) FLC 91-021; Antmann and Antmann (1980) FLC 90-908; and Aroney and Aroney (1979) FLC 90-709). Upon analysis however, these decisions do not support the global view contended for by the respondent. In Tuck the Full Court stated (at p.76,219) that in making an order under s.79 it is necessary to look at all the income, property and financial resources of the parties. But this statement must be viewed in the context of the case, in which the trial judge had adopted the erroneous approach of making an order solely on the basis of the assets to which the wife had made a claim, notwithstanding that the parties had a variety of other assets.

12. In Antmann reference was made (at p.75,742) to the direction given in Tuck "that the Court should take a global view of the assets of the parties", but the Court did not go beyond what was said in the earlier case. Reference was also made in Antmann to the remarks of Nygh J. in Aroney but all that his Honour said in that case (at p.78,785) was that:

"the Court must look at the totality of the assets of the parties whether acquired by inheritance, by pre-marital effort ... or by way of business activity during the marriage ..."

13. It follows that Tuck, Antmann and Aroney give no support to the global approach, in the sense in which that expression is used by the Full Court in the present case. These decisions are concerned with the prior question of delimiting the range of property to which the Court may legitimately have regard in making its order. The present question takes that range as given and asks whether, in ascertaining the entitlements of the parties to that property, regard should be had to specific assets or to the totality of assets generally.

14. In Pastrikos and Pastrikos (1980) FLC 90-897, the Full Court had expressed the view that the assessment of the parties' contributions to property may be made by reference to specific assets or as a general contribution to the property of the parties. In that case, Evatt C.J., Pawley S.J. and Yuill J. observed (at p.75,653):

"Under sec.79, the Court has to embark on a dual exercise. The first part of the exercise is to determine the nature and, so far as possible, value of the property of the parties in issue in the proceedings. Usually, the whole of the property of the parties will be relevant. Then the Court proceeds to make some assessment of the extent of each party's contribution to those assets, within the meaning of para.(a) and (b) of sec.79(4). This assessment is sometimes quantified in terms of percentages or values. However it is expressed, the assessment is an important part of the exercise. It is not necessary that a party's contribution be tied down to a specific asset; it may be assessed as a general contribution to the property of the parties if the circumstances warrant."

Their Honours went on to deal with the second part of the exercise (determination of the parties' needs), but found it unnecessary to discuss the actual ascertainment of the entitlements of the parties, or the allocation of specific properties to each party to satisfy those entitlements, which is the final stage in the making of an order.

15. In G and G (1984) FLC 91-582, a case decided after Mallet and the decision of the Full Court in the present case, Nygh J. expressed his agreement (at p.79,697) with the proposition "that it cannot be required of the Family Court that it assesses contributions with mathematical precision with respect to each item". In the course of his judgment, his Honour commented (at p.79,697):

"At the moment the Family Court is divided

between those who favour the so-called global approach and those, of whom I am one, who seek to achieve some degree of precision. In my view, despite what was said in Norbis, both approaches are legitimate unless the High Court rules otherwise provided that those who take the global approach heed the warning that the origin and nature of the different assets ought to be considered and that those who favour the more precise approach do not mistake the trees for the forest, i.e. add up their individual items without standing back at the end to review the overall result in the light of the needs of the parties."

16. Although it is natural to assess financial contributions under s.79(4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties' property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an "asset-by-asset" basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court. In saying this we are not to be understood as denying the legitimacy of the trial judge's ascertainment in the first instance of the financial contributions of the parties by reference to particular assets. It is difficult to conceive how the trial judge in many cases could otherwise take account of such contributions as he is required to by s.79(4)(a) of the Act. In this respect we agree with the comment of Nygh J. in G and G that, although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party's contribution to them.

17. The assessment of the parties' entitlements before the making of an order is another question, quite distinct from the assessment of their contributions. As a matter of construction of s.79 Nygh J. is right in saying that the section imposes no obligation on the Family Court to pursue in relation to this issue either the global approach or the asset-by-asset approach to the exclusion of the other. We do not understand the Full Court in the present case to suggest otherwise. What the Full Court asserts is that the global approach is the only "realistic", that is, convenient, means of arriving at the entitlements of the parties. Again, it seems to us that it will depend on the circumstances of the particular case, though in the majority of cases the global approach will be the more convenient and for this reason the Full Court is entitled to prescribe its adoption as a guideline in the majority of cases. The Family Court has rightly criticized the practice of giving over-zealous attention to the ascertainment of the parties' contributions, and we take this opportunity of expressing our unqualified agreement with that criticism, noting at the same time that the ascertainment of the parties' financial contributions necessarily entails reference to particular assets in the manner already indicated.

18. It has not been suggested that there is any fundamental difference between the two competing approaches which we have considered, in the sense that one will yield more just and equitable entitlements than the other. The general preference which has been expressed for the global approach is not by reason of any notion that it is the only approach authorised by the Act, but by reason of considerations of convenience. Accordingly, quite apart from the fact that its status as a prescribed approach is that of a guideline and not that of a principle of law, the application of the asset-by-asset approach does not of itself amount to an error of law.

19. It follows from what we have already said that the Full Court was not entitled to set aside the order made by the trial judge on the ground that he erred in law in failing to apply the global approach. Nor are we persuaded that there were other specific grounds upon which it could be found that the order made by the trial judge reflected an improper exercise of the discretion conferred by s.79 of the Act, except in so far as he exceeded his jurisdiction by directing the Registrar to adjudicate any dispute between the parties about the amount of income for which they had to account in relation to the Brookvale and Chatswood properties. The order which he made was, in our view, otherwise within the limits of a sound discretionary judgment.

20. In the result we would allow the appeal and make the orders proposed by Wilson and Dawson JJ.

WILSON and DAWSON JJ.: The parties to this appeal were married on 13 May 1950 when they were both eighteen years of age. There is one child of the marriage, a son who was born on 10 July 1954. The marriage was dissolved pursuant to a decree nisi granted by the Family Court of Australia on 16 October 1980. Subsequently on 28 April 1983 orders were made by the Family Court under s.79(1) of the Family Law Act 1975 (Cth) ("the Act") altering the property interests of the parties. These orders were varied upon appeal to the Full Court of the Family Court from which this further appeal is brought by special leave. The appellant is the husband of the marriage and the wife, who is the respondent, has filed a notice of cross-appeal.

2. It is convenient at the beginning to set out the property interests of the parties, all of which were in real estate, when they separated on 26 August 1979 and then to turn to the manner in which the learned trial judge and the Full Court dealt with them. The relevant assets were as follows:

Property Value

1. House property, 183 Burns Road,

Turramurra, in the sole name of the husband $170,000

2. Home Unit, 5C/29 East Esplanade,

Manly, in joint names of husband and wife $145,000

3. Factory warehouse, 20 West

Street, Brookvale, two/third interest held by husband and wife as tenants in common in equal shares $266,667

4. House property, 16A Moodie

Street, Cammeray, in the sole name of the wife $145,000

5. House property, 8B Beatty

Street, Balgowlah Heights, interest held by husband $150,000

6. Shops and premises above,

16 Anderson Street, Chatswood, interest held by wife $163,112

$1,039,779

The value of each of the various interests was either agreed by the parties at first instance or was found by the trial judge to be the value at the date of the hearing and was not disputed upon appeal.

3. The effect of the order made by the trial judge was that the husband should receive 60% of the value of the assets which are listed above and numbered 1-5 and 40% of the value of the asset numbered 6. The total value of the husband's entitlement under that order was $591,244 and amounted to 56.86% of the total value of the whole of the assets. Under the same order the wife was to receive 40% of the value of the assets numbered 1-5 and 60% of the value of the asset numbered 6. The total value of her entitlement under the order was $448,533, which amounted to 43.14% of the total value of the whole of the assets. In order to avoid a forced sale of any of the properties, the order of the trial judge was to be satisfied by the wife receiving the property at Turramurra (No.1) and retaining the property at Cammeray (No.4) and her interest in the property at Chatswood (No.6). The total value of these assets was $478,112 and there was a cash adjustment of $29,579 to be made by the wife in favour of the husband in order to reduce her entitlement to the net figure of $448,533. This method of implementing the order by means of the allocation of specific assets together with the necessary cash adjustment was accepted by the parties, although the entitlement of each under the order was disputed.

4. Upon appeal, the Full Court varied the order of the trial judge by deleting the requirement that the wife make a cash adjustment of $29,579. The effect of this was to reduce the value of the husband's entitlement to $561,667, which was 54.01% of the total value of the whole of the assets, and to increase the wife's entitlement to $478,112, which was 45.98% of the total value of the whole of the assets.

5. During the period of the marriage, which lasted for some thirty years, the financial position of the parties improved considerably and their assets at the time of their separation were the result of the profitable acquisition, development and sale over the years of a number of properties. When they were married neither of the parties had any possessions of significant value. During the first five years of the marriage the husband was employed in a number of jobs and ran a number of businesses in Queensland. The wife also worked from time to time but was prevented from engaging in continuous employment by an arthritic condition which was to continue for the rest of the marriage. Their early activities did not bring any great financial reward but in 1952 they were able to buy a house in the Brisbane suburb of Murarrie for the sum of $4,600 with some help from the wife's father and a loan secured by a mortgage. The wife's father was to continue to provide financial help in various ways until there was no longer any need. During these first years of the marriage the wife performed the normal functions of a wife and, after the birth of her son, of a mother, although she continued to suffer from arthritis which periodically hampered her in carrying out her duties.

6. In 1955 the husband was not making a success of the panel beating business which he was conducting in Brisbane and the parties sold the house at Murarrie and moved to Innisfail where the wife's parents lived. It was then, it seems, that the fortunes of the couple took a turn for the better. The wife's father purchased a dry-cleaning business in Innisfail, which the husband ran in partnership with his father-in-law, brother-in-law and wife. The husband was the only partner who worked full time in the business. The profits of the business were sufficient to allow the purchase price to be repaid to the wife's father over about two years and to enable the parties to buy a block of land at Innisfail upon which they built a house in which to live. They remained in the dry-cleaning business for some seven years and whilst on holidays in Sydney the husband was able to purchase a home unit at Cremorne. This was the first of a series of investments which enabled the parties to build up their position to one of some considerable wealth.

7. In 1962 the parties sold their interest in the dry-cleaning business for $14,000 and moved to Sydney where the husband commenced business as a property developer. The proceeds of the sale of the business were used to purchase some land at Castle Cove upon which the husband, by the use of contractors, constructed eight shops. At first the parties stayed with the husband's parents who were then living in Sydney, but in 1963 they moved into a small home unit which they bought at Mosman.

8. Thereafter the resources of the parties were used to deal in real estate, some of which was developed by the husband, although it also included at all times a matrimonial home which, at the time of separation, was the property at Turramurra which is item No.1 in the list above. These investments were from the beginning made by the husband and wife as partners, partnership income tax returns being first lodged in respect of the rent from the shops at Castle Cove and the house at Innisfail which the parties let upon moving to Sydney.

9. It is possible to trace quickly the various property transactions. In 1963 and 1964 respectively the home unit at Cremorne and the shops at Castle Cove were sold. Land was purchased at Mosman upon which were erected eight home units and a penthouse. The house at Innisfail was sold, as was the unit in which they had been living at Mosman and the parties moved into the penthouse. In 1967 the joint funds of the parties were used to purchase, through a company named R. and D. Norbis Pty. Ltd. which was incorporated by the husband and his brother, land at Cremorne upon which were erected four town houses. These were subsequently sold. The land at Turramurra was bought in 1968 and a house, which became the matrimonial home, was built on it. The wife continued to occupy the house after the separation. In 1969 the units and penthouse at Mosman were sold and R. and D. Norbis Pty. Ltd. bought land in Waitara upon which a block of offices was subsequently built. In 1970 the company bought land at 11 Chard Road, Brookvale, upon which it built a building for rental. Towards the end of that year the company bought land at 20 West Street, Brookvale, which it transferred to the husband, his brother and the wife as tenants in common in equal shares. They built a factory warehouse on the land which was completed in 1971. In 1973 the company transferred the property at Waitara to the husband and his brother and it was sold in 1979.

10. In 1979 the joint moneys of the husband and wife were used to purchase, in the wife's name, land at 16A Moodie Street, Cammeray, upon which the husband commenced to build a house which he completed after the separation. The house was to be for the use of the son who eventually moved into it.

11. In 1979 the husband purchased a home unit at 5C/29 East Esplanade, Manly, with a deposit from the parties' joint funds, the balance of the purchase price being subsequently met from the proceeds of the sale of the property at Waitara.

12. From time to time the husband invested in other business ventures using joint funds. These investments did not result in any lasting financial gain save for one which requires mention. In 1978 the husband, together with three others, invested joint funds in a company which bought land at Balmain upon which the husband, for a relatively small fee, erected a restaurant and wine bar. A Mrs Shaw, apparently the wife of one of the other investors in the company, began to work in the restaurant and on 26 August 1979 the husband left home and commenced to live together with Mrs Shaw.

13. In 1981 the property comprising the restaurant and wine bar was sold and the proceeds of the sale distributed. As a result of the distribution the husband and wife each received $33,400. A somewhat smaller amount was, it was agreed, to fall due to each of them upon the winding up of the company in 1982.

14. In 1980 the husband and Mrs Shaw, who were married on 17 February 1981, purchased land, which is item No.5 on the list above, at 8 Beatty Street, Balgowlah Heights, upon which they commenced to construct a house. The value of the husband's contribution towards the purchase of the land and the construction of the house was found by the trial judge to amount to $150,000.

15. Item No.6 on the list above, which comprises the shops and the premises above them at 16 Anderson Street, Chatswood, was acquired in a different manner by the wife. The husband suggested to the wife's father that he invest in the property and that the wife be included as a purchaser. The property was bought by the wife's father, her mother, her brother and herself. Her share was financed by a bank loan which was paid off out of her income from the property. The husband was not involved financially in the transaction, but he managed, supervised and cleaned the premises over some years, negotiating new tenancies and increasing the rentals from time to time without fee.

16. We have not found it necessary to quantify the amounts invested and the profits made which resulted in the acquisition of the assets which comprise the final list. It is unnecessary to do so because the trial judge found that:

"Whilst the wife left all business matters to the husband whom she trusted, both parties treated each other as being jointly entitled to all assets and income throughout the marriage by virtue of the joint bank account and the usual joint ownership of properties or their interest in properties with

the possible exception of (the interest in) R. &D.

Norbis Pty Ltd, which I believe was really a joint enterprise although in the husband's name alone."

17. The trial judge found that the contribution by the wife as a homemaker and a parent was limited to some extent by her indifferent health. This meant that the husband had to make a larger contribution in that regard and this was reflected in the final adjustment made by the trial judge. The wife agreed that from arrival in Sydney until separation the build up of the family fortune depended upon the husband's special skills in purchasing the right properties at the right time, in negotiating with agents, draughtsmen and council officers and as a builder selecting tradesmen and supervising their work and the materials used. She agreed that her husband was successful as a developer and builder and said that she trusted him implicitly and believed that what he was doing was for the benefit of the family. But, as the trial judge found, it is not possible to overlook the fact that the foundation of the family's wealth was the acquisition of the dry-cleaning business at Innisfail through the help given by the wife's father.

18. The basis upon which the Full Court varied the orders made by the trial judge is expressed in the following passage from the judgment of McGovern J., with whom Strauss and Barblett JJ. agreed:

"With the greatest of respect to his Honour I

am of the view that the approach he adopted in arriving at his decision was one which is inappropriate in the great majority of cases, and certainly the present case, to follow. It would seem to me to serve no good purpose, particularly in a marriage of long duration in which there have occurred countless changes of varying degrees in the family fortunes generally and of perhaps major assets in particular, to attempt to impart to individual assets different percentages in favour of the parties. At the most any such attempt can be only notional. The manner in which the particular assets have been acquired or contributed to may, of course, well be relevant in determining the overall distribution: see Aroney and Aroney (1979) F.L.C. 90-709 at p.78,785. I think all one can do realistically in such circumstances is to take into account all of the matters to which one is referred in Section 79(4) of the Family Law Act and fix an overall proportion on a global view of the totality of the assets to be divided. See Tuck and Tuck (1981) F.L.C. 91-021; Antmann and Antmann (1980) F.L.C. 90-908."

19. In our view, however, s.79 of the Family Law Act in the form in which it was when this matter was decided (or, for that matter, as it is now after the amendment of sub-s.(4) in 1983) does not require the approach which the Full Court suggests. Nor does it accord with our understanding of earlier decisions of the Full Court. It is one thing to recognize that the proper application of the section requires the court to have regard to the value of the whole of the assets of the parties and not just particular assets, such as the matrimonial home, in respect of which a claim is made. It is another thing to say that, having done so, the court must arrive at the entitlement of the parties by dividing the total value into proportions without differentiation between the particular assets involved. To have regard to the totality of the assets was described by the Full Court in Antmann, at p.75,742, as taking "a global view" in accordance with its own direction in Tuck and the remarks of Nygh J. in Aroney. The expression is readily understandable in the context of those cases.

20. In Tuck the wife, pursuant to s.79, sought only the matrimonial home free of encumbrances and made alternative claims with regard to the discharge of the encumbrances. The assets of both parties extended beyond the matrimonial home, those of the husband being more extensive than those of the wife. The trial judge did not make any findings about the totality of the assets of the parties in considering whether to make the order which he eventually made, but merely dealt with the property claimed by the wife. It was in these circumstances that Evatt C.J. and Murray J. remarked, at p.76,219, that in order to take into account the matters referred to in s.79(4), it is necessary to look at all the income, property and financial resources of each party and to have regard to the overall picture.

21. In Aroney, at p.78,785, Nygh J. referred to the requirement under s.79(4)(b), as it then was, that recognition be given to the position of a housewife who, by her attention to the home and the children, frees her husband to earn an income and acquire assets. He concluded that this means that the court must look at the totality of assets of the parties whether acquired by inheritance, by pre-marital effort or by way of business, although the manner in which the particular assets have been acquired or contributed may be relevant in determining the overall distribution between the parties.

22. Reference may also be made to Pastrikos and Pastrikos (1980) F.L.C. 90-897 in which the trial judge made no attempt to reach an accurate conclusion about the value of the assets of the parties, about the way in which those assets had been built up or about the extent to which each party had contributed to their accumulation. He was content not to do so because he took the view that the extent of the assets was sufficient to provide the wife with "adequate security and independence". The Full Court held that, in adopting this approach, the trial judge had erred in placing too much emphasis upon the question of maintenance and the matters relevant to maintenance which are contained in s.75(2) and incorporated in s.79 by s.79(4)(d) (now s.79(4)(e)). In this way, it was said, the trial judge failed to give sufficient weight to those other considerations, particularly each party's contribution to the property, which s.79 requires to be taken into account and which go beyond need or the other matters dealt with by s.75(2). This led the Full Court to remark at p.75,653 that the first part of any exercise under s.79 is to arrive at some conclusion about the nature and value of the assets of the parties and to make some assessment of the extent of each party's contribution to those assets within the meaning of s.79(4)(a) and (b) (now s.79(4)(a), (b) and (c)) of the Act. The Court went on to say:

"This assessment is sometimes quantified in terms of percentages or values. However it is expressed, the assessment is an important part of the exercise. It is not necessary that a party's contribution be tied down to a specific asset; it may be assessed as a general contribution to the property of the parties if the circumstances warrant."

23. More recently, in G. and G. (1984) F.L.C. 91-582, at p.79,697, a case decided after the decision of the Full Court in the present case and after Mallet v. Mallet (1984) 58 ALJR 248; 52 ALR 193, Nygh J. remarked:

"At the moment the Family Court is divided

between those who favour the so-called global approach and those, of whom I am one, who seek to achieve some degree of precision. In my view, despite what was said in Norbis (by the Full Court of the Family Court), both approaches are legitimate unless the High Court rules otherwise provided that those who take the global approach heed the warning that the origin and nature of the different assets ought to be considered and that those who favour the more precise approach do not mistake the trees for the forest, i.e. add up their individual items without standing back at the end to review the overall result in the light of the needs of the parties."

24. If the suggested division does exist between members of the Family Court, then it may be no more than the result of individual preferences for one method of proceeding over another within the limits of the wide discretion conferred by s.79: see Mallet, at pp.249 and 262 of A.L.J.R.; pp.195 and 219 of A.L.R. On the other hand, such a division would be unwarranted if it reflected an unduly narrow view of the discretion itself.

25. If, as we understand to be the case, the so-called global approach requires no more than that the whole of the assets of the parties be identified and, so far as possible, assessed in value before any alteration of property interests can take place under s.79, then it is a requirement which, as a general rule, is imported by the section itself. It would not ordinarily be possible to have confidence in the justice and equity of a division of property based upon anything other than the whole of the assets available. Nor would it ordinarily be possible to assess the contributions made directly or indirectly by or on behalf of the parties to the marriage for the acquisition, conservation or improvement of the property or otherwise in relation to the property as required by s.79(4)(a) and (b) if the whole of the property were not identified and valued. Moreover, if the matters referred to in s.75(2) were relevant and had to be taken into account under s.79(4)(d) (now s.79(4)(e)), they could only be considered against the whole financial background of the parties. So much is clear from the terms of the legislation itself and it has been so interpreted by the decisions of the Family Court.

26. On the other hand, if the suggested approach goes further and precludes individual assets being treated differently in the division of property by the application of different proportions, then it is, in our view, misconceived. Of course, it may be possible and appropriate in many cases to determine the proportions in which the property is to be divided without treating any of the assets separately, but where the interests of the parties differ, a different approach will be open. Section 79, in particular s.79(4), refers to "any property of the parties to a marriage or either of them" and that expression is sufficient to encompass both the entirety of their property and their individual interests. If the parties' interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of the property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets, as was convenient in this case. It is true, as Nygh J. pointed out, that where this is done, at the end of the exercise a calculation of the overall proportions in which the total property has been divided may serve as a useful check to ensure that the result is not disproportionate as a whole.

27. To say as much is to say no more than that the legislation confers a discretion upon the court which, provided the required matters are taken into account, does not dictate the employment of any particular method in the formulation of an appropriate order for the alteration of property interests. The matters which are to be taken into account will sometimes require the division of the assets, or some of them, upon the basis of their individual values, but in other cases no more than an overall division will be required. In some cases either approach may be adopted in part or in whole. As Gibbs C.J. pointed out in Mallet, at p.249 of A.L.J.R.; pp.195-196 of A.L.R.:

"It is proper, and indeed often necessary, for

the Family Court, in dealing with the circumstances of a particular case, to discuss the weight which it considers should be given, in that case, to one factor rather than another. It is understandable that practitioners, desirous of finding rules, or even formulae, which may assist them in advising their clients as to the possible outcome of litigation, should treat the remarks of the court in such cases as expressing binding principles, and that judges, seeking certainty, or consistency, should sometimes do so. Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case."

28. We think it is not possible to take the question of guidelines further than this. Nor is it desirable to attempt to do so. With all respect to those who think differently, we believe that the sound development of the law, in this area as in others, is served best by following the tradition of the common law. The genius of the common law is to be found in its case-by-case approach. The decision and reasoning of one case contributes its wisdom to the accumulated wisdom of past cases. The authoritative guidance available to aid in the resolution of the next case lies in that accumulated wisdom. It does not lie in the abstract formulation of principles or guidelines designed to constrain judicial discretion within a predetermined framework. There is no reason to think that the traditional approach, when applied in the family law area, leads to arbitrary and capricious decision-making or that it leads to longer and more complex trials.

29. The approach adopted by the trial judge in this case was, in our view, a proper exercise of the discretion conferred upon him. Indeed, he appears, save in one instance, to have employed the method favoured by the Full Court of adopting a global approach in assessing the entitlements of the parties. Items 1 to 5 in the list above were grouped together and the interests of the husband and wife were assessed in the proportions of 60% and 40% respectively. Only in the case of the property which is numbered 6 in that list were those proportions departed from and, in fact, reversed, but there were sound reasons for doing that because the husband had made no financial contribution to the acquisition of the property and his contribution in other ways was limited. In this respect the property stood in a quite different position from the other properties which were acquired by the use of the joint funds of the parties.

30. The division made by the trial judge was, of course, something separate from the method which he adopted to give effect to that division. The division was made upon the basis of value, but instead of requiring the values to be realized by the sale of the individual properties, the assets were assigned in an appropriate manner to one or other of the parties, leaving a cash adjustment to be made by the wife. This was a practical means of giving effect to the division and one which met with the approval of the parties.

31. On the other hand, the variation of the trial judge's order which was made by the Full Court does not appear to stem from the application of any global approach. It was not suggested that the wife should have received any particular percentage of the total value of the whole of the property. Instead, what the Full Court did was to eliminate the cash adjustment which the trial judge required the wife to make. It did this after accepting all of the findings made by the trial judge "short of the point at which they were made applicable to particular items of the property to be divided." The amount of the cash adjustment, $29,579, was a relatively small sum having regard to the total value of the property of the parties and the amount itself was merely arrived at by the trial judge to give effect to the division which he concluded was proper having regard to the value of each of the properties and the parties' respective contributions within the meaning of the relevant section. The difference in overall proportions achieved by the elimination of the amount of the adjustment - the wife's share was increased from 43.14% to 45.98% - is hardly such as to suggest any difference of principle indicating that the trial judge had acted wrongly. Other than the suggestion, which is not sustainable, that the trial judge acted wrongly in failing to apply a global approach, there is nothing to show that the trial judge was in error in the exercise of his discretion. The variation made by the Full Court shows merely that it would, in the exercise of the same discretion, have been disposed to give the wife a relatively small additional amount. A mere preference for a different result is, as the authorities have constantly reiterated, an insufficient basis for interference with the exercise of the trial judge's discretion: House v. The King (1936) 55 CLR 499, at pp 504-505; Australian Coal and Shale Employees' Federation v. The Commonwealth (1953) 94 CLR 621, at p 627; De Winter v. De Winter (1979) 23 ALR 211, at pp 216-217; Gronow v. Gronow (1979) 144 CLR 513, at p 519; Mallet, at pp 252, 255 and 260-261 of ALJR; pp 200-201, 206-207 and 216-217 of ALR The primary court must be shown to have erred before an appeal can succeed.

32. The one matter not already mentioned which must be dealt with is the income from the property at Brookvale (item No.3) and the property at Chatswood (item No.6) from the date of separation until the final date of the hearing before the trial judge, which was 6 May 1982. The husband retained the income from the former property and the wife from the latter property. The trial judge ordered that the husband account to the wife for her net share of the income of the former property and that the wife account to the husband for one half of her net share of the income of the latter property from the date of separation until the final date of the hearing, taking into account any income tax properly paid or payable on such respective shares. There was nothing which would indicate that these directions were otherwise than within the discretion of the trial judge, but he went on to direct that in the event of the parties failing to agree upon the amounts properly payable, they should be determined by the Registrar of the Sydney Registry of the Family Court. It is common ground that this direction was beyond the jurisdiction of the trial judge and accordingly his order should be varied to delete it, leaving the court to make such further order or orders as it sees fit in the event of the parties' failure to agree. Otherwise, the order of the trial judge should be restored.

BRENNAN J.: I agree generally with the reasons of Mason and Deane JJ. for allowing this appeal, except for one proposition of some importance. The proposition with which I am unable to agree is this: that an appellate court which gives guidance as to the manner in which a statutory discretion should be exercised may prescribe that such guidance should have the force of a binding legal rule. The authority of an appellate court to give guidance is not to be doubted. It is inevitable that the wisdom gained in continually supervising the exercise of a statutory discretion will find expression in judicial guidelines. That is not to invest an appellate court with legislative power but rather to acknowledge that, in the way of the common law, a principle which can be seen to be common to a particular class of case will ultimately find judicial expression. The orderly administration of justice requires that decisions should be consistent one with another and decision-making should not be open to the reproach that it is adventitious. These considerations are of especial importance in the administration of the law relating to custody of children, maintenance and property arrangements on the dissolution of marriage. The anguish and emotion generated by litigation of this kind are exacerbated by orders which are made without the sanction of known principles and which are seen to be framed according to the idiosyncratic notions of an individual judge. An unfettered discretion is a versatile means of doing justice in particular cases, but unevenness in its exercise diminishes confidence in the legal process. As the Scottish Law Commission commented in 1981 with reference to the financial provisions of the Divorce (Scotland) Act 1976 (U.K.) (Family Law : Report on Aliment and Financial Provision, Scot. Law Comm. no.67, par. 3.37):

" The result of a system based on unfettered discretion is that lawyers cannot easily give reliable advice to their clients. Clients in turn feel dissatisfied with the law and lawyers. The system encourages a process of haggling in which one side makes an inflated claim and the other tries to beat it down. A battle of nerves ensues, sometimes right up to the morning of the proof. By that time it is known which judge will be dealing with the case, and this may become a factor affecting last-minute and hurried negotiations. Such a system does nothing to help the parties to arrange their affairs in a mature and amicable way. It is calculated to increase animosity and bitterness."

To avoid that situation it is desirable, if it be possible, to give expression to principles which have yielded just and equitable results in the generality of cases to which those principles have been applied. The function of giving expression to principles thus derived falls naturally to the Full Court of the Family Court.

2. It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise: Gardner v. Jay (1885) 29 ChD 50, at pp 58-59; followed in Huntley v. Alexander (1922) 30 CLR 566. When a statutory discretion is to be exercised within prescribed limits according to what is "just and equitable", as in the Family Law Act 1975 (Cth) (see s.79(2)), it is impossible to devise a controlling legal rule which will do justice and be equitable in every case which comes within those limits and falls within the scope of the rule. There will always be an exceptional case. If it were possible to predicate of a legal rule that its application to every case falling within its scope would invariably produce a just and equitable result, there could be no objection to its application. In such a case, however, the limits of the discretion would not be narrowed by judicial decision because the legal rule would be found to be implicit in the text of the statute.

3. In Mallet v. Mallet (1984) 58 ALJR 248; 52 ALR 193, the elevation to the status of a rule of law of the Family Court's principle of equal division of property as the starting point for s.79 applications was held by the majority to be erroneous (see pp.250,257,261-162,266; pp.196-197,208-209,218-219,227-228), while Deane J. (at p.263; p.222) thought that the starting point of equal division was not a legal principle or presumption but a general counsel of experience. Assuming that it is possible to express the wisdom gleaned from experience in the form of a guideline, it cannot be elevated to the status of a legal rule.

4. There may well be situations in which an appellate court will be justified in setting aside a discretionary order if the primary judge, without sufficient grounds, has failed to apply a guideline in a particular case. Where there is nothing to mark the instant case as different from the generality of cases, the failure will suggest that the discretion has not been soundly exercised. The distinction between such a guideline and a binding rule of law, though essential, may be thin in practice. But the distinction must be maintained and a failure to apply the guideline cannot be treated as an error of law: a failure to apply the guideline is no more than a factor which warrants a close scrutiny of the particular exercise of the discretion. What cannot be shut out is the discretion of a primary judge not to apply the guideline when the circumstances of the particular case show that its application would produce an unjust or inequitable result or that another approach would produce a more just and equitable result.

5. The only compromise between idiosyncracy in the exercise of the discretion and an impermissible limitation of the scope of the discretion is to be found in the development of guidelines from which a judge may depart when it is just and equitable to do so - guidelines which are not rules of universal application, but which are generally productive of just and equitable orders. If it is possible to develop such guidelines, it is possible to ensure order and consistency in the exercise of the discretionary jurisdiction under the Family Law Act. In Ward v. James (1966) 1 QB 273, Lord Denning M.R. addressed the problem of guiding the exercise of an unfettered judicial discretion. He said (at p.295):

" The cases all show that, when a statute gives discretion, the courts must not fetter it by rigid rules from which a judge is never at liberty to depart. Nevertheless the courts can lay down the considerations which should be borne in mind in exercising the discretion, and point out those considerations which should be ignored. This will normally determine the way in which the discretion is exercised, and thus ensure some measure of uniformity of decision. From time to time the considerations may change as public policy changes, and so the pattern of decision may change: this is all part of the evolutionary process."

And in Birkett v. James (1978) AC 297, at p 326, Lord Salmon said:

" I agree also with what was said in Ward v. James to the effect that where there appear to be conflicting schools of judicial opinion as to how judicial discretion ought to be exercised in closely comparable circumstances appellate tribunals should lay down guide lines as to the relative weight which should be given to the particular circumstances in order to achieve reasonable consistency in the exercise of judicial discretion."

(See also per Lord Diplock, at p.317).

6. The expression of guidelines must be undertaken cautiously, ensuring that a sense of urgency does not diminish the care necessarily to be taken in expressing guidelines in terms which will be seen to be just and equitable in the generality of cases. It is not enough to assert the predilections of particular judges as guidelines. The factors which, together with the factors prescribed by s.79(4), should usually be taken into account must be identified and then, if it be possible, it would be desirable to express the relative importance of those factors in the generality of cases or in cases of a particular class, bearing in mind that the purpose of making an order is to ensure that familial obligations are discharged rather than to ensure that they are painlessly shed.

7. There are substantial difficulties in the way of developing a jurisprudence which would eliminate or at least reduce the significance of the personal standards and values of a judge exercising a discretionary jurisdiction under the Family Law Act. The nature of the discretion is such that, if guidelines can be expressed, they will be expressed in very general terms. Detailed guidelines are unsuitable for application to circumstances which are quite diverse. Moreover, any guideline must allow for a permissible difference in the standards and values accepted as reasonable by the community. Should any weight be given to conduct which has caused or contributed to the breakdown of the marriage? Does a financial obligation to a previous spouse rank above an obligation assumed by the respondent to another partner whom he or she does not marry? What appears just and equitable to the eyes of some appears unjust and inequitable to the eyes of others. Guidelines necessarily express standards and values: not legal standards and values, but standards and values derived from sources which the court thinks appropriate (see J. Raz "Legal Principles and the Limits of Law" (1972) 81 Yale Law Journal 823, esp. at pp.844-851). Typically a court draws on the standards and values of the community when it supervises the exercise of a discretion and develops guidelines affecting its exercise, but the Family Court is faced with a problem of peculiar difficulty: whence to derive the standards and values by reference to which the just and equitable result in a particular case or in a class of cases can be determined. However desirable the development of guidelines may be, any attempt to structure the discretion by judicial decision is likely to fail if these difficulties are understated or, worse, ignored. If there is a problem of unevenness in the exercise of the property jurisdiction of the Family Court, it arises because the Act confers a jurisdiction governed by discretion, not by legal rules, and because the relevant standards and values of the community are not uniform.

8. 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 (1948) 1 All ER 343, at p 345, 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.

9. In G. v. G. (Minors : Custody Appeal) (1985) 1 WLR 647; 2 All ER 225, where Lord Fraser of Tullybelton with the concurrence of other members of the House cited with approval the observations by Asquith L.J. which I have quoted, there is a passage in his Lordship's speech that seems to limit the area of immunity and expand the role of the appellate court. His Lordship rejected the proposition that the appellate court could interfere only "where it concludes that the course followed by the judge is one that no reasonable judge having taken into account all the relevant circumstances could have adopted." He said, at p.653; p.230:

" That is the test which the court applies in deciding whether it is entitled to exercise judicial control over the decision of an administrative body: see the well-known case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 K.B.223. It is not the appropriate test for deciding whether the Court of Appeal is entitled to interfere with the decision made by a judge in the exercise of his discretion."

I would respectfully agree that there is a difference between the review of a judicial discretion and the review of an administrative discretion, but I venture to say that there is no distinction in principle. If a discretionary power is exercised in a way in which a reasonable repository of the power might exercise it, the exercise of the power is supported by the statute which confers it, whether the discretion is judicial or administrative in nature. But in practice the comparative familiarity of an appellate court with judicial discretions and the usual confines of a judicial discretion make the appellate court more sensitive to an unreasonable exercise of discretion and more confident of its ability to detect error in its exercise. It is harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience. It would be wrong to assume that an appellate court may interfere with the exercise of a primary judge's discretionary decision where, to use the phrase adopted by Lord Bridge of Harwich, the court is not satisfied that the decision is "clearly erroneous" (see p.656; p.232). That is a measure of satisfaction which, for the reasons stated, is not easily attained in the review of decisions under s.79.

10. The present case, however, does not involve the Family Court's authority to prescribe either a legal rule controlling or a guideline affecting the exercise of a discretion. The global approach which the Full Court of the Family Court regarded as appropriate in the present case is not a guideline affecting the order which should be made. The global approach is no more than a procedure for determining the exercise of the discretion. It is a procedure which tends to shorten the hearing so as to avoid sapping the finances of the parties and engendering further ill-feeling between them. The primary judge's adoption of the asset by asset approach in lieu of the global approach was not an error affecting the validity of the order which he made. There is no logical foundation for concluding that one approach should produce, at the end of the day, an order different from, or preferable to, the order which the other approach would produce. Either approach is capable of producing a just and equitable order. To intervene merely on the ground that the primary judge did not adopt the global approach would be to require primary judges to follow a single procedure when more than one procedure is consistent with the provisions of the Act.

11. In the present case, the Full Court was entitled to criticize the procedure followed by the primary judge and on that account to scrutinize closely the order which his Honour made, but the scrutiny did not reveal any appealable error in the exercise of the judge's discretion: it was not clearly erroneous. The Full Court was entitled to commend the global approach but it was not entitled to exercise the primary judge's discretion afresh. The appeal should be allowed.

Orders

Appeal allowed and cross-appeal dismissed.

Order that pars. 1 and 3 of the Order of the Full Court of the Family Court of Australia be set aside and in lieu thereof order that:

(a) the appeal to that Court be dismissed, subject to

the variation to par.4 of the Order made by Ross-Jones J., as appears in par.(b) below;

(b) par.4 of the Order made by Ross-Jones J. be varied

to read as follows:

That within two (2) months of this date or within such further time as the parties may mutually agree upon:

(a) the husband account to the wife for her net share of the income of 20 West Street Brookvale and

(b) the wife account to the husband for one half of her net share of the income of 16 Anderson Street Chatswood

from the 26th day of August 1979, the date of separation, to the 6th day of May 1982, the final date of the hearing, taking into account any income tax properly paid or payable on such respective shares, and in the event of the parties' failure to agree, liberty to each party to apply to the Court to make such further order or orders as it sees fit.