ORCHIDE & ORCHIDE
[2018] FamCAFC 58
•4 April 2018
FAMILY COURT OF AUSTRALIA
| ORCHIDE & ORCHIDE | [2018] FamCAFC 58 |
| FAMILY LAW – APPEAL – PROPERTY – Where the trial judge did not err in her findings as to the informal agreement reached between the parties at separation – Where as a result the trial judge was correct to discount the claim by the husband that he allowed the respondent and their child to occupy the former matrimonial home and that should be taken into account as a contribution by him – Where the trial judge provided adequate reasons – Where it was open to the trial judge to accept the evidence of one party over the other – Where it cannot be said that the trial judge erred in the exercise of her discretion and/or that her decision was plainly wrong – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent seeks an order for costs – Where the appellant opposes such an order being made on the basis of his poor financial circumstances – Where the respondent is in a financially better position than the appellant but impecuniosity is not a bar to an order for costs being made where there are circumstances which justify the making of such an order – Where the appellant has been wholly unsuccessful – Costs ordered in favour of the respondent. |
| Family Law Act 1975 (Cth) ss 75(2), 117(2A)(a) and 117(2A)(e) |
| Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124 Bennett & Bennett (1991) FLC 92-191 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 D & D (Costs) (No. 2)(2010) FLC 93-435; [2010] FamCAFC 64 Gronow v Gronow (1979) 144 CLR 413; [1979] HCA 63 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8 Wen & Thom [2010] FamCAFC 81 |
| APPELLANT: | Mr Orchide |
| RESPONDENT: | Ms Orchide |
| FILE NUMBER: | MLC | 6035 | of | 2015 |
| APPEAL NUMBER: | SOA | 68 | of | 2017 |
| DATE DELIVERED: | 4 April 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 30 January 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 August 2017 |
| LOWER COURT MNC: | [2017] FCCA 1833 |
REPRESENTATION
| SOLICITOR ADVOCATE FOR THE APPELLANT: | Mr Brown |
| SOLICITOR FOR THE APPELLANT: | Browns the Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Sweeney |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley |
Orders
The appeal be dismissed.
The husband pay the costs of the wife of and incidental to the appeal, such costs to be assessed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Orchide & Orchide has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
|
Appeal Number: SOA 68 of 2017
File Number: MLC 6035 of 2015
| Mr Orchide |
Appellant
And
| Ms Orchide |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 8 September 2017, Mr Orchide (“the husband”) appeals against property settlement orders made by Judge Bender on 11 August 2017. Ms Orchide (“the wife”) opposes the appeal.
Background
At the time of the trial the husband was aged 60 years, and he earnt an income of $70,000 gross per annum by running an Airbnb. The wife was aged 61 years, and she was employed in hospitality earning $87,000 per annum.
The parties commenced their relationship in 1976 when both were employed.
In 1979 the wife commenced a café business with her sister and a friend.
In 1981 the husband established Business A undertaking renovation and extension work.
In 1982/1983 the wife and her sister sold the freehold and the café business. They then opened a new business.
In 1984 the wife and her sister sold their business.
The parties married on 20 October 1984.
In 1985 the parties purchased Property B that they were renting from the husband’s father, for $80,000. There was a dispute as to the value of the property at the time, and the wife’s evidence was that she contributed $20,000 to the purchase price and that the husband’s mother lent the parties a further $20,000 to complete the purchase.
The parties’ daughter was born on 7 March 1987.
In 1988/1989 the parties renovated Property B and then sold it. They then purchased Property C.
In 1993/1994 the parties subdivided Property C and they built a new home at the rear of the property.
In 1995 the parties sold both Property C and Property C1 and purchased Property A.
Subsequently the parties subdivided Property A, undertook renovations on the original property, and built a second home at Property A. They borrowed $150,000 from Bank B and took out a $15,000 overdraft to fund the construction of the home, and the renovations. Of these borrowings, $15,000 was used to purchase a motor vehicle for the wife.
The parties separated in late 1996. The husband vacated Property A leaving the wife and their daughter to reside in that home.
The wife’s evidence is that when the parties separated it was agreed between them that she would retain Property A, the husband would retain Property C1 and Business A, and he would be responsible for the borrowings with Bank B. The husband disputes that there was any such agreement. He says that what was agreed was that the wife and their daughter could remain living in Property A in lieu of him paying child support. However, as I will explain shortly, his evidence about this was confused and inconsistent.
In May 1997 the husband sold Property C1 for $278,000. The husband was solely responsible for the manner in which the proceeds of sale of that property were utilised.
In August 1998 the husband purchased Property D for $350,000. He utilised the loan facility with Bank B secured over the former matrimonial home to raise the deposit. It is the wife’s evidence that the husband did not discuss with her, or seek her permission to utilise the Bank B loan facility to borrow these monies.
The husband otherwise borrowed $220,000 from Bank A to complete the purchase of Property D, and that loan was secured over that property.
In October 1998 the husband refinanced the Bank B loan secured over the former matrimonial home with Bank A. In the loan documents the husband was described as the sole borrower and the wife as guarantor. The Bank B loan then secured against the former matrimonial home in the sum of $145,814 was discharged using funds from the Bank A loan. On the evidence there is a dispute as to the basis on which the wife signed the guarantee, and as to her knowledge of the loans taken out by the husband.
Between 1998 and 2001, the husband subdivided Property D, renovated the original home, and built a second home. He sold the new home for $798,500 in April 2001, and the original home for $795,000 in October 2001.
In addition to the Property D developments, Business A had other projects, including one called “KA”. Following the sale of Properties d and C1 and the completion of the KA project, Business A ceased to trade. When all outstanding business expenses were paid the husband received $72,018. The husband’s evidence was that he used some of this money to pay school fees for their daughter.
In 2014 the husband contacted the wife to advise his Bank A loan had become unmanageable, and he was switching to interest only payments. The wife says that the husband asked her to sign documents guaranteeing this loan, and she agreed to do so, but her evidence is that she did not realise that the loan at that time was $252,000.
In May 2015 the husband again contacted the wife, insisting that the former matrimonial home be sold, so that he could realise his equity in the property. According to the husband this was necessary because he was no longer able to service his high level of debt, which at that time exceeded $400,000.
Between 7 March 2011 and 30 June 2014 the husband increased the mortgage by in excess of $192,000. He used this to pay his living expenses and to support his failed business ventures.
The appeal
Grounds 1 and 2
Her Honour erred in making findings implicitly accepting the evidence of the wife on material issues, while not making any findings of credit or giving any other reason for preferring the evidence of the wife to that of the husband.
Her Honour erred in finding that the parties “agreed at separation what parties would retain at that time”, in that there was no evidence before Her Honour of any such agreement or from which such an agreement could be inferred.
These grounds can conveniently be addressed together.
They both centre around her Honour’s finding at [120] as follows:
… I do not accept the Husband “allowed” the Wife to remain in the former matrimonial home but rather both parties agreed at separation what joint property each would retain at that time. …
That finding is challenged on the basis that her Honour gave no reasons for it, including making no credit finding, that there was no evidence on which to base the finding, and her Honour failed to take into account relevant considerations, namely the evidence that there was no agreement in the terms as found by her Honour. Further, it is suggested that her Honour mischaracterised the husband’s submission by confining it to the issue of child maintenance, rather than to the issue of contribution post-separation generally.
The significance of this finding by her Honour, is that it enabled her Honour to discount the husband’s argument that he had allowed the wife to occupy the former matrimonial home for 20 years, and their daughter for part of that time, and that should be taken into account as a significant contribution by him.
To repeat, the evidence of the wife was that the parties “had an understanding that [she] would retain ownership of the [former matrimonial home], which she understood was mortgage free”, and that the husband would retain the benefit of the investment property at Property C1, as well as Business A, and any further developments undertaken by that business. The wife further said that the husband had “repeatedly assured [her] that he would not seek to have the [former matrimonial home] sold, and that [she] could continue to reside in the property with [their] daughter”.
On the other hand the husband’s evidence was confused and inconsistent. He deposed in his affidavit filed on 22 May 2017 as follows:
128.… The initial understood arrangement had been that [my wife and X] would remain in the property until X finished her schooling. At the end of X’s schooling I decided that [my wife] and X could continue to reside in the property until X completed her University studies. From memory, X graduated from University in 2007. At no time did I relinquish any interest I had in the property to [my wife].
However, in cross-examination the following exchange took place:
MR MORFUNI: Well, now we will get to that. Your case is that your daughter and your wife could live in it until your daughter finished high school?---That was never said. Initially my thought – my thoughts were that, as I discussed with F, that they could live there in the short to medium term to get settled. It actually dragged out to high school, and I decided that she could live there till end of high school because – the best thing for X - - -
And when did - - -? --- - - - and then it dragged on and on and on.
Yes. When did X finish high school?---2005 I believe.
All right. And you made no demand on your wife then to vacate the property, did you?---Because then she was going to university, and she was still living at home.
Okay. And when did she finish university?---I would say about three years after that. I – Sue could answer that question maybe.
So you don’t know?---Well, not off the top of my - - -
No. Well - - -?--- - - - head, no, but it wouldn’t be hard to find out.
- - -it would have been – it would have been an important date for you because, according to your evidence, that was the date on which you were going to ask that the house be sold?---I didn’t say I was going to, I said I should have.
So all this is in your head, is it? It’s not that there was any arrangement between you and your wife. This - - -?---There was never - - -
- - - is all - - -? --- - - - any arrangement - - -
(Transcript 29 June 2017, page 53 line 32 – page 54 line 12)
Thus, it is unclear what the “agreement” was on the husband’s case, whereas the wife’s evidence was clear, and as I will refer to shortly, the parties carried out this agreement.
As to the evidence allegedly disregarded by her Honour, in general that comprised evidence of the husband obtaining loans, and securing them by way of mortgage against the former matrimonial home, with the knowledge and consent of the wife. The husband’s argument is that that evidence is inconsistent with her Honour’s finding “that the parties had agreed that he would no longer have an interest in [the former matrimonial home]”.
Pausing there, that is not a finding that her Honour in fact made, but with the finding that she did make, namely that both parties agreed at separation what joint property each would retain at that time, I am not persuaded that there is any inconsistency with the fact of the husband obtaining and securing loans by way of mortgage against the former matrimonial home.
Although [119] – [121] do reveal a “mischaracterisation” by her Honour of the husband’s submissions, it seems that the real issue here is the complaint of a lack of reasons for her Honour’s finding.
The principles in relation to the adequacy of reasons are well settled (for example see, Bennett & Bennett (1991) FLC 92-191). In summary, the appellate court should be able to discern either expressly or by implication, the path by which the result has been reached. However, as Coleman J observed in Wen & Thom [2010] FamCAFC 81:
57.As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
(Also see Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA at 385 – 386).
I have no difficulty here in discerning the path taken by her Honour in arriving at her finding. She had before her the respective evidence of the parties, and she impliedly accepted the evidence of the wife. It was unnecessary for her Honour to make an express finding of credit prior to making the finding that she did.
Of course, as identified above, the husband not only complains about a lack of a credit finding, but also the failure by her Honour to specifically address the “objective facts”, which he says are inconsistent with there being an agreement in the terms suggested by the wife.
Again, that relates to the husband’s evidence of loans being taken out on the security of the former matrimonial home, and the wife’s knowledge of that.
There is no doubt on the evidence that that occurred, despite the wife’s vague evidence as to her knowledge, but to repeat, I do not find anything inconsistent between that evidence and there being an agreement in the terms suggested by the wife. It is also common ground that the loans the husband obtained were for his sole use.
It also must not be forgotten that what occurred here was the parties at separation reaching an informal agreement as to their property division. It was unnecessary for the purposes of this case for her Honour to find a legally binding contract, even if there could be one in these circumstances.
Finally, it is plain that the conduct of the parties was consistent with there being such an informal agreement in place. In other words, the husband vacated the premises, the wife continued to reside in those premises, the husband transferred ownership of the business into his sole name, and he had the benefit of the proceeds of sale of Property C1, albeit that is a finding challenged by the husband, and which challenge I will address shortly.
In these circumstances there is no merit in Grounds 1 and 2.
Grounds 3 and 4
Her Honour erred in finding that the husband received any benefit from the sale of Property C1.
Her Honour erred in finding that the husband received any financial benefit from becoming sole owner of Business A.
These grounds can also be addressed together.
Property C1 was sold for $278,000 in May 1997, and it was the husband who had the control of those proceeds. His evidence is that the proceeds were used to “pay down” the loans from Bank B taken out to fund the renovations and extensions to the former matrimonial home, to purchase the wife’s motor vehicle, and to pay the overheads of his business. Further, her Honour also found (at [118]) that the husband used some of the proceeds to meet his living costs, and to contribute to the further developments undertaken by him through Business A.
The husband gave evidence that the proceeds of sale were paid into a joint account of the parties, but her Honour had great difficulty in making specific findings about the benefit the husband received from those proceeds because of the lack of full and frank disclosure by the husband of relevant documents.
At [31] her Honour said this:
… [The husband] is unable to provide the Court with any independent documents that confirm how the proceeds of sale were utilised by him.
Thus, doing the best her Honour could do with the evidence that she had, her Honour found as follows:
117.Counsel for the Wife submitted that it is open for this Court to conclude that the Husband made at least $100,000 profit from the sale of Property C1 after the discharge of the mortgage that was held over both the former matrimonial home and that property.
118.It is tempting to adopt this figure as being indicative of the profit achieved by the Husband on the sale of Property C1. Absent independent documentation this cannot be seen to determine this issue. What is apparent is that the Husband retained all the net proceeds of sale of Property C1 after the parties’ separation and utilised them to meet business costs, his own living expenses and to contribute to the further developments undertaken by him within his business [Business A].
The simple facts are: the property was sold for $278,000; the husband had the sole control of those proceeds; apart from the proceeds being paid into a joint account of the parties, the husband failed to make full and frank disclosure of what then happened to the proceeds, but on the basis of what the husband did say, he dealt with those proceeds. Thus, the conclusion is inescapable that the husband had the benefit of at least a significant proportion of those proceeds of sale.
As for Business A, despite the claim that her Honour erred in finding that the husband received any financial benefit from becoming the sole owner of that business, nothing is put in support of that claim in the husband’s written summary of argument. Nor was anything said in oral submissions, and thus I am not able to do anything with this claim except to record that there is no basis on which it can succeed. The evidence before her Honour was that after separation the husband operated Business A himself, and undertook further developments at Property D and KA. In 2002 the business ceased to trade, and once all outstanding business expenses were paid, the husband received $72,018.
Plainly then, even on his own version, the husband received a “financial benefit” from becoming the sole owner of Business A. He of course had the control of all of the income and any other benefits received. Indeed, those benefits could conceivably be far more than the evidence suggests. The husband relied on an affidavit containing “reconstructed figures prepared for the husband by his accountant … [and] which purported to be the Operating Income and Expenditure Statement for Business A from 1998 – 2002” (at [42]). However, her Honour said this at [43]:
The Husband’s accountant was unavailable for cross examination and therefore the basis on which he had prepared the statements annexed to the Husband’s affidavit could not be explored. No source documents were available to support the figures set out in the financial statements annexed to the Husband’s affidavit.
I find no merit in these grounds of appeal.
Ground 5
Her Honour erred in rejecting, and taking no account of, the contribution the husband made to the welfare of the family, including the child, in taking no action to end the occupation by the wife of the matrimonial home from separation until the commencement of proceedings.
This ground falls away of course if her Honour was correct in finding that there was an agreement, and its terms were as suggested by the wife. In other words, in summary, the agreement was that the wife would have the former matrimonial home, and the husband would have the investment property at Property C1, retain the business [Business A], and the benefit of any developments it undertook.
On that basis there was no contribution by the husband to be taken into account, as her Honour found at [119].
As can be seen, I have found that her Honour did not err in her findings as to the agreement between the parties, and thus there is no merit in this ground of appeal.
Ground 6
Her Honour erred in finding that the wife maintained the home after separation with small assistance from the husband.
The evidence of the wife was that “she was almost entirely responsible for maintaining the former matrimonial home”, and she conceded that “the husband did some small maintenance work around the house when he was visiting [their daughter]” (at [107]), and paid the house insurance.
The husband’s evidence was that “he was regularly attending the home to complete maintenance works on it” (at [107]), but the wife denied this.
Her Honour accepted the evidence of the wife and found that she “maintained the former matrimonial home with some small assistance from the husband” (at [121]).
It was open to the trial judge to accept the wife’s evidence on this topic, and the husband has not demonstrated any appealable error by her Honour in doing so.
There is no merit in this ground of appeal.
Ground 7
Her Honour failed to give any weight, or in the alternative gave insufficient weight, to the post separation contribution of the husband as a parent, and thereby erroneoulsy [sic] overvalued the contribution of the wife.
This complaint is essentially a weight challenge, and it is unnecessary to repeat the well-known principles applicable to such a challenge. Suffice to say that what needs to be established is that the trial judge was plainly wrong, his or her decision being no proper exercise of his or her discretion. Further, it is never enough that an appellate court would have reached a different conclusion where no error of law or mistake of fact is present (Gronow v Gronow (1979) 144 CLR 413, per Stephen J at 519 – 520).
The issue raised here is an alleged failure by the trial judge to give any weight, or any sufficient weight, to the husband’s post-separation contributions as a parent.
The contributions identified by the husband in that context include his claim that he should be given significant credit for allowing the wife and the child to occupy the former matrimonial home, but I have found that her Honour’s treatment of that issue was correct. Thus, there can be no error there by the trial judge.
The only other contributions relied upon by the husband are first, the payment by him of some of their daughter’s school fees, and secondly, the fact that he spent time with the child post-separation.
The former was conceded by the wife, and her Honour recorded that at [103]. Importantly though, the evidence established that the wife paid far more of the school fees than the husband, even taking into account the assistance of a gift of $10,000 from the husband’s mother.
As to the latter, the wife’s evidence was that the husband spent minimal time with the child post-separation, and this evidence was accepted by her Honour. Indeed, the husband conceded that the wife was the primary caregiver.
In relation to these matters her Honour made the following findings:
121.The Wife had the sole financial responsibility for almost all of [X]’s care after the parties separated. The Wife also provided almost all of [X]’s physical and emotional care given [X] spent very little time in the Husband’s care. The Wife also maintained the former matrimonial home with some small assistance from the Husband
Clearly these findings were open on the evidence, and the husband has not demonstrated that in so finding the trial judge was plainly wrong, her decision being no proper exercise of her discretion.
There is no merit in this ground of appeal.
Ground 8
Her Honour erred in not giving any consideration to the contribution of the husband to the welfare of the wife post separation in taking no action to prevent the occupation by the wife of the matrimonial home, and only considered such occupation with reference to the maintenance of the child from separation until the commencement of proceedings.
This is another ground that falls away if her Honour was correct in finding that there was an agreement between the parties and its terms were as suggested by the wife. As can be seen, I have found that her Honour was correct in her finding in this regard.
If the wife was to have the former matrimonial home as part of the agreement, then for the husband to take “no action to prevent the occupation by the wife of the matrimonial home” cannot be a contribution by him either to the maintenance of the child, or to the welfare of the wife.
This ground of appeal fails.
Ground 9
Her Honour erred in that her orders fell outside of the reasonable range of discretion and amounted to an error of law.
Although the complaint here is about the orders, and it is very general, it is apparent from the husband’s written summary of argument that the subject of the complaint is her Honour’s assessment of the contributions of the parties, and in particular that that assessment was “skewed” too heavily in favour of the wife.
Kirby J said in CDJ v VAJ (1998) 197 CLR 172:
186.A number of general propositions may be stated:
1.Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal … To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong … The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
…
(Footnotes omitted)
Here, no error of fact or of principle are alleged, and no error is apparent on the face of the judgment, but it is said that the result is “outside the reasonable range of discretion”. Thus, as Kirby J says, for there to be appellate interference in those circumstances, it must be demonstrated that the trial judge was “plainly wrong”.
The argument put to demonstrate that here, is nothing more than, in her Honour’s assessment of contributions, her Honour should have credited the husband with a greater percentage on the basis of the contributions that he made.
However, this contention risks this Court engaging in an exercise that is not permitted, and described by Barwick CJ in Sharman v Evans (1977) 138 CLR 563, at 565:
… the function of a court of appeal, in my opinion, is not to offer what in connexion with another discipline would be called “a second opinion”. Such a court is strictly confined to the remedy of error in the trial or in the assessment of the trial judge. It cannot be too strongly said that a mere difference of opinion … does not indicate error on the part of the trial judge. …
In Babett & Falconer (2015) FLC 98-067, this Court said as follows, in passages that have direct relevance to the argument in this case:
31.It is by no means uncommon to see grounds of appeal framed in terms identical, or similar, to Ground 3 in this appeal. That such a contention of discretionary error can be made might be seen to emanate from the concluding part of the frequently-cited passage from the judgment of their Honours, Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504, 505 (“House”). Their Honours, having set out specific errors that might inform discretionary error, said:
… the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
32.Their Honours’ statement in House makes it clear that the conclusion of unreasonableness or injustice must be so “plain” that it permits of an inference that there has been a failure to “properly” exercise “the discretion which the law reposes in the court of first instance”. More recent statements by the High Court also underscore the required aberrance. For example, in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 … (at 203-204): …
33.Earlier statements by the High Court have emphasised the “very wide discretion” inherent in s 79 (Mallett v Mallett (1984) 156 CLR 605, 608). That very wide discretion can be seen to be an example of where “… the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion” and, as a result, “the latitude” given to a trial Judge is “considerable”. By way of corollary, “… it is never enough that an appellate court, left to itself, would have arrived at a different conclusion” (Gronow v Gronow (1979) 144 CLR 513, 519 per Stephen J).
34.However, what is at issue here is a discretionary conclusion reached from established facts none of which are challenged on appeal. An appellate court’s decision that a trial Judge’s discretionary conclusion is wrong must have a discernible proper foundation and that foundation cannot be merely that it would have reached a different decision based on the same facts. Justice Stephen’s often-quoted passage in Gronow v Gronow (1979) 144 CLR 513, 520 pertains:
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 …
(Emphasis added. See also, Aickin J’s statement to similar effect at 538).
35.Some five years later, Gibbs CJ, having cited those statements with approval, said to similar effect in Mallet v Mallet (above) at 615:
…
…
37.While it can be contemplated that assessments of contributions pursuant to s 79 might be judged erroneous by reason of fitting the description “unreasonable” or “plainly unjust”, it is a description that begs a foundation for this Court doing other than substituting its own discretionary conclusion for that of the trial Judge. In this, as in so many like cases, the central contention is that error is established by the result being “so outside” something that is not only unidentified but is not referenced to any foundation save for that assertion.
…
Here, I am not persuaded that her Honour made any discretionary error. It must always be remembered that the assessment of contributions is an holistic one, taken over the whole period from the commencement of cohabitation to trial, and to my mind her Honour undertook that task appropriately.
There is no basis by which it can be said that her Honour’s decision was “plainly wrong”.
There is no merit in this ground of appeal.
Grounds 10 and 11
Her Honour erred in the assessment of section 75(2) contributions finding that the husband has the capacity to earn a reasonable living as a qualified [tradesperson].
Her Honour erred in finding that the “husband is the one responsible for his current financial predicament”.
These two grounds were argued together, but they were redrafted in the written summary of argument.
As they appear in the Notice of Appeal (see above) Ground 10 related to her Honour’s assessment of the factors set out in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), but Ground 11 did not, yet in the summary of argument it is put on the basis that both are errors made in the context of s 75(2) of the Act.
The fact of the matter is that her Honour did not make the comment about the husband being responsible for his current financial position when considering the relevant factors set out in s 75(2) of the Act, but it was made when considering whether the orders proposed were just and equitable. Thus I intend to address these grounds separately, as did the wife.
Ground 10
As the wife pointed out in her written summary of argument, “[i]t was common ground that the husband is a qualified [tradesperson]”. He described his occupation as “[tradesperson]” in his affidavits. He did claim in cross-examination that his age and the state of his knees were the reasons why he could no longer work in the building industry, but he conceded that he “can do a bit of maintenance”, and running an Airbnb was a better way to earn an income (Transcript 29 June 2017, page 47 lines 20 – 30).
Clearly her Honour found he could do more than “a bit of maintenance”, and that was open, given no medical evidence was presented by the husband as to his capacity to work.
In any event, it is perhaps instructive to note that the context of this finding by her Honour was when her Honour was considering the question of the respective earning capacities of the parties, and her Honour found that she was not satisfied that the wife had a superior earning capacity (at [130]). The husband had made certain lifestyle choices as to what work he would do, and her Honour correctly took that into account.
Finally, as emphasised by the wife in her written summary of argument, “[a]t no point during the proceedings did the husband assert there should be an adjustment pursuant to the factors listed in s 75(2) in his favour”.
There is no merit in this ground of appeal.
Ground 11
The challenged comment by her Honour is found in [136], which appears in a series of paragraphs where her Honour was considering whether the proposed orders were just and equitable. It is important to set out all of those paragraphs in addressing this complaint as follows:
Just and Equitable
133.As can be seen I have determined that there should be a distribution between the parties in relation to the former matrimonial home such that the Wife retains 72.5% of same and the Husband retain 27.5%.
134.In order to retain the former matrimonial home the Wife will need to refinance the liabilities to Bank A and the Bank B currently secured over the former matrimonial home and pay the Husband the sum of $20,795.
135.It is submitted on behalf of the Husband that to make orders that would have the net effect of the Wife retaining, as was her proposal, a million dollar property and $130,000 worth of superannuation whilst the Husband is left with debts of over $500,000 can not be seen on any measure to be just and equitable.
136.Whilst there is no doubt the Husband’s current financial circumstances are dire, the Husband is the one responsible for his current financial predicament. At separation he retained the benefit of the proceeds of sale of Property C1 and the ability to continue to generate income through his business. He made the choice to leave the (omitted profession) and to pursue other interests which did not provide him with an income sufficient to support himself.
137.Rather than obtaining properly paid employment, the Husband proceeded to live by borrowing monies that were secured against the former matrimonial home. I am satisfied that he did so without advising the Wife of these borrowings and that the Wife had no knowledge of this until he contacted her seeking the sale of the former matrimonial home.
138.Further, the Husband continued to borrow money in the full knowledge he had no capacity to pay those debts.
139.By contrast, since separation the Wife has worked hard to support herself and the parties’ daughter [X]. She did so, I am satisfied, in the belief that she was to retain the former matrimonial home.
140.The division determined by the Court will require the Wife to obtain and fund a mortgage of $364,580 if she is to retain the former matrimonial home. She indicated a willingness to do so.
141.The refinancing of the current liabilities secured over the former matrimonial home and the payment to the Husband of $20,795 will see his current level of indebtedness reduce by 72%.
142.In all the circumstances I am of the view that such an outcome is just and equitable and orders will be made accordingly.
As can be seen, in the context of considering whether the proposed orders were just and equitable, what her Honour said was entirely appropriate, and justified on the evidence, which her Honour proceeded to set out in the following paragraphs.
It was not an issue of wastage, as recognised by the husband, and I reject entirely the submission that the comment imports “some degree of moral disapproval” unsupported “by the evidence and opaque in meaning or relevance”.
There is no merit in this ground of appeal.
Ground 12
Her Honour erred in that the orders of the court are not fair and equitable.
This is a ground that in effect mirrors Ground 9, and I need not repeat what I have said in rejecting that ground. This ground fails for the same reason. It is nothing other than a plea that the husband should have received more, without identifying any appealable error of the trial judge, or in particular, why her Honour was “plainly wrong”.
Indeed, as was in effect conceded in oral submissions by the husband, this ground is not intended to suggest that even if her Honour was correct in all of her findings that are challenged, then the result is not just and equitable. It is an attempt to demonstrate the effect of those findings on what each party ultimately receives. Of course though, it should not be forgotten that at trial the husband agreed that he should be responsible for all of the liabilities secured over the former matrimonial home, and that they should not be taken into account. Plainly, that significantly affected his position in the context of the final orders made by her Honour.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
Costs
At the conclusion of the hearing the parties made submissions as to the question of costs depending on the result of the appeal.
In the event of the appeal being dismissed the wife sought an order for costs. However, the husband opposed any order for costs on the basis of his poor financial circumstances. In particular he said he now has total debts of $79,500.
Pursuant to s 117(2A)(a) of the Act it is necessary to take into account the financial circumstances of the parties, and for the wife’s part she is in a financially better position than the husband, bearing in mind the orders for property settlement made by the trial judge. However, this Court has consistently held that impecuniosity is not a bar to an order for costs being made, where there are circumstances that otherwise justify making such an order (D & D (Costs) (No. 2) (2010) FLC 93-435). That is the case here given that the husband has been wholly unsuccessful in his appeal (s 117(2A)(e) of the Act). Accordingly, there will be an order for costs in favour of the wife.
As to the amount of those costs, at the hearing of the appeal the wife’s counsel was unable to indicate the same, but advised that his solicitors would provide that detail to the court, and to the husband’s solicitors, within 48 hours. Unfortunately, that was not done, and accordingly I have no choice but to make an order that the husband pay the wife’s costs of and incidental to the appeal, such costs to be assessed in default of agreement.
I note that the point of seeking the precise amount sought is to fix the costs and not put the parties to the time, trouble and expense of a taxation, and equally as important, to save our Registrars from having to conduct a taxation which is a time consuming exercise.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 4 April 2018
Associate:
Date: 4 April 2018
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