Palumbo & Mandel - [2019] FamCAFC 228

FAMILY COURT OF AUSTRALIA

PALUMBO & MANDEL

[2019] FamCAFC 228

FAMILY LAW – APPEAL – PROPERTY – Where the orders made by the primary judge do not distribute the parties’ property in the stated proportions – Where errors of fact influenced the assessment of the contributions – Care of a child over the age of 18 years – Superannuation – Failure to evaluate contributions when assessing superannuation as a discrete class of property – Appealable errors established – Appeal allowed – Re‑exercise of discretion.

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Short adjournment (one day) given where a longer adjournment was sought – Discretion – Procedural unfairness not established.

FAMILY LAW – APPEAL – COSTS – Failure to give full and frank disclosure weighs against costs order – Costs certificates granted to both the appellant and the respondent.

Family Law Act 1975 (Cth) ss 75(2), 79, 93A
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Carron & Laniga [2019] FamCAFC 115
Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633
Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429
D & D [2004] FMCAFam 154
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lint & Lint [2011] FamCAFC 115
National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296; [1984] HCA 29
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trevi & Trevi [2018] FamCAFC 173
Zaruba & Zaruba (2017) FLC 93-776; [2017] FamCAFC 91

APPELLANT:

Ms Palumbo

RESPONDENT:

Mr Mandel

FILE NUMBER:

MLC

8028

2014

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

29 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Ryan J (via videolink), Aldridge & Kent JJ

HEARING DATE:

3 June 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 September 2018

LOWER COURT MNC:

[2018] FCCA 2704

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hall

SOLICITOR FOR THE APPELLANT:

Randles Cooper & Co

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Pearsons Lawyers

Orders

The appeal be allowed.
Order 1 of the orders dated 23 October 2018 be varied so that it reads “By 4 pm on 24 December 2019 (“the date”), the husband pay to the wife the sum of $190,455.65”.
Order 9 of the orders dated 23 October 2018 be varied by deleting “$169,900” and inserting in its place “$118,773.78”.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

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 Palumbo & Mandel 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 85 of 2018
File Number: MLC 8028 of 2014

Ms Palumbo

Appellant

And

Mr Mandel

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed 12 April 2019, Ms Palumbo (“the wife”) appeals against property settlement orders made on 23 October 2018 by a judge of the Federal Circuit Court of Australia (“the Federal Circuit Court”). Mr Mandel (“the husband”) is the respondent to the appeal and, subject to one matter, seeks to uphold the orders. An application by the wife to adduce further evidence in the appeal must also be considered.
After 14 years of marriage, the parties separated in November 2010. In April 2016, the husband commenced proceedings in the Federal Circuit Court for property settlement. The primary judge found that the parties’ non‑superannuation assets were worth $1,149,485 subject to liabilities of $108,542, leaving net non-superannuation assets of $1,040,943. The parties’ superannuation interests were found to be $359,583, of which the wife’s interest comprised $277,779.
Contributions were assessed globally, and the husband’s contributions were determined at 60 per cent with a further adjustment of 10 per cent in his favour, pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The primary judge was satisfied “that the final alteration of the parties’ interests in their net asset pool should be adjusted so as to reflect their interests as to 70% to the [husband] and 30% to the [wife] respectively” [212]. On the figures found by the primary judge, this should have resulted in the wife receiving net non‑superannuation property worth $312,282 and $107,875 (rounded off) in superannuation (which she did). In relation to non‑superannuation property the wife received $190,942.
As we will explain later, the primary judge made the wife responsible for liabilities which had the effect of changing the outcome that he said was just and equitable. However, calculated on that basis, counsel for the wife said the husband received 74.3 per cent of the parties’ non‑superannuation property and the wife, 25.7 per cent. Counsel for the husband agreed with counsel for the wife that the error could be rectified by increasing the amount which the husband was ordered to pay the wife ($2,040.60) by an additional $17,483.40. However, the $17,483.40 was calculated by reference to a property pool different to his Honour’s and took into account an additional $80,000 as an asset of the husband (wife’s Summary of Argument filed 10 April 2019, paragraphs 5.1 and 5.2). Thus, although the concession that the orders do not reflect the reasons was well made, this figure is also wrong.

Brief background facts

The parties purchased Property A (“the family home”) in 1995 for $101,000. The purchase price comprised $45,000 and $20,000 from savings by the husband and the wife respectively and, moneys borrowed from a bank secured by mortgage. The mortgage was discharged in 1999 and the family home has been unencumbered ever since [139]. Otherwise, at the commencement of cohabitation, each of the parties owned a car and had modest superannuation.
The parties married and commenced cohabitation in June 1996. Throughout the marriage the husband worked full time as a powder coater. Other than brief periods following the birth of the parties’ children, the wife was employed as a public servant.
The parties have three children, who at the date of trial were 14, 16 and 18 years of age [10].
In March 2001, the parties purchased an investment property at Property B (“the investment unit”) for $98,000. The purchase price was made up of $20,000 advanced by the husband’s father and the balance by a mortgage from National Australia Bank (“NAB”) for which the parties were jointly liable [66].
In November 2010, the parties separated for the last time. At separation the husband vacated the family home and moved in with his father. The wife and children remained in the family home.
At the date of separation, the parties owned the family home and the investment unit, savings, some shares and had interests in superannuation.
According to the husband, the children lived with the wife until January 2014. Although the primary judge mistakenly said they did so until November 2013 [16], nothing turns on the error. In March 2014, the husband suffered a serious back injury and following surgery in September 2014, he has been significantly incapacitated [19].
The wife resigned from her employment in April 2014 at which time she was earning $86,000 per annum [9].
The husband commenced proceedings for the settlement of property in April 2016 which was followed by an application that he have exclusive occupation of the family home. On 23 November 2016, an order was made that the wife vacate the family home by midday on 18 January 2017 [32]. The wife failed to comply but faced with enforcement proceedings, she and her partner vacated the family home on 2 February 2017. The husband and children returned to the family home and have lived there since.
It is uncontroversial that as part of the suite of orders concerning occupation of the family home, on 23 November 2016, the wife was given liberty to occupy the investment unit. In the expectation that the wife may wish to move into the investment unit, the husband gave the tenant 60 days’ notice to vacate (husband’s affidavit filed 14 August 2017, paragraph 66). However, the wife chose not to do so and for a period of time the investment unit was vacant. During that period the husband met its outgoings without assistance from the wife.

Findings as to property and liabilities

It is useful to now set out the parties’ property and liabilities as found by the primary judge. Superannuation and non‑superannuation interests were included in a single property pool and the findings were as follows [131]:

ASSETS	OWNERSHIP	VALUE
1.	Property A	Joint	$850,000
2.	Property B	Joint	$280,000
3.	Funds drawn down by the [wife] from joint mortgage over the unit on 23 September 2016 by the [wife]	[Wife]	$12,000
4.	Shareholding A - 400 shares at $2.81 as at 29/05/18	Joint	$1,124
5.	Shareholding B – 1,200 shares held as at 29/5/18	[Wife]	$6,360
TOTAL: $1,149,485

LIABILITIES	OWNERSHIP	VALUE
1.	NAB mortgage over the investment unit	Joint	$50,267
2.	Indemnity by [wife] as co-trustee for appropriation of monies taken from [the children’s] bank accounts	[Wife]	$39,548
3.	Wasted costs and expenditure	[Wife]	$18,727
TOTAL: $108,542

SUPERANNUATION	OWNERSHIP	VALUE
1.	Super Fund P as at 14 August 2017	[Husband]	$ 81,804
2.	Super Fund Q as at 30 June 2017	[Wife]	$277,779
TOTAL $359,583

Some explanation of these findings is required.
In relation to the wife, on 9 September 2016, she withdrew $12,000 from the mortgage secured over the investment unit. The balance due to the mortgagee includes this draw down and the amount withdrawn was included at item 3 as the wife’s property.
The indemnity at item 2 relates to the wife’s use of funds held in trust accounts for the children for which, at [115] she was made solely liable. This was achieved by the husband reducing the amount he would otherwise pay to the wife by $39,548 and using those monies to re-establish accounts for the children. A similar approach was adopted in relation to unpaid orders for costs that the wife owed the husband as recorded at item 3. However, because these items were included at full value, the amount received by the wife had already been reduced by 30 per cent, which means that she paid more to the husband than the entire debt and received less than she should have, as determined by the primary judge [212].
The day before the trial commenced, the husband received a total and permanent disability payment arising from his back injury (“the disability payment”). It is uncontroversial that the primary judge overstated the amount received by approximately $100,000 [108] and that the husband in fact received a net payment of approximately $80,000. Furthermore, his Honour misunderstood the submission by counsel for the wife and contrary to the finding at [111], the wife sought that this amount be included as property available for distribution and did not contend that the payment should be excluded from the property pool and dealt with pursuant to s 75(2). Although the ground of appeal addressed to these errors was not pursued, the payment is relevant to the overall effect of the orders and the application of s 75(2).

The grounds of appeal

The wife presented seven grounds of appeal but, at the commencement of the appeal, Grounds 2 and 3 were abandoned. Before considering these in detail, it needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519-520).

The Orders do not distribute the parties’ property in the stated proportions

The trial reasons did not consider what orders were needed to give effect to the conclusions reached at [212]. Rather, directions were made for the parties to present orders to give effect to those reasons. This only resulted in further disputation and following another appearance, the orders under appeal were made.
There is no issue that the parties’ superannuation interests were distributed 70 per cent to the husband and 30 per cent to the wife, which was achieved by a superannuation splitting order against the wife’s superannuation in favour of the husband using a base amount of $169,900. Thus, the husband received superannuation valued at $251,704 compared with the wife’s $107,875.
In relation to non-superannuation property, at 30 per cent the wife was entitled to receive net property worth $312,282. The wife received the investment unit valued at $280,000, subject to the mortgage secured against it which had an outstanding balance of $50,267 and which she was obliged to refinance. Otherwise the wife received shares worth $7,484 and $12,000 as a premature distribution of property. On this basis she received $249,217. However, the investment unit was subject to unquantified capital gains tax (Order 4(c)) which also became the responsibility of the wife. Furthermore, orders were also made which required the wife to account for liabilities of $39,548 so as to re-establish funds for the children and $18,727 in relation to costs. On this basis the wife received $190,942. It follows that even with the $2,040 adjusting payment by the husband, the wife received approximately $119,000 less than the primary judge said the justice and equity of the case required her to receive.
In relation to non-superannuation property, his Honour said that the husband was entitled to 70 per cent of the net property at [131], namely $728,660.1. The orders gave the husband the family home valued at $850,000 and required that he pay $2,040.60 to the wife.He was required to re-establish the children’s trust accounts in the amount of $39,548. This amount was then deducted from the amount that the husband would pay the wife. In other words, the wife reimbursed the husband for the entire amount. The same approach was taken in relation to the wife’s reimbursement of $18,727 (costs). When the amount the husband was ordered to pay the wife is taken into account, the husband received non‑superannuation property worth $827,138.40 ($850,000 plus $18,727 less $2,040.60 less $39,548).
It follows that the challenge that the Court erred in the application of s 79 of the Act, by failing to consider the financial effect upon the parties of the orders, should be accepted and thus Ground 6 is made out.

The Assessment of Contributions

In its terms, Ground 4 challenges the adequacy of the trial reasons as to the assessment of contributions. The inadequacy was said to repose in the primary judge’s failure to take into account uncontroverted facts, to explain why the husband’s contributions were evaluated at more than the husband said they were worth and why the husband should, at this point, receive approximately $200,000 more than the wife. It might just as easily be framed as contending that the primary judge misstated the facts and failed to take into account relevant considerations which, had they been considered, meant that he could not have come to the conclusion that he did.
We have already set out the critical facts concerning the parties’ acquisition of property and in relation to the welfare of the family and their children. The effect of this is that at the commencement of cohabitation, the parties had modest assets and the husband contributed slightly more to the purchase of the family home than the wife. It was uncontroversial that during the marriage the parties both had paid employment and the wife always earned more than the husband. Furthermore, the parties “each applied [their] respective income towards mortgage repayments, bills and outgoings for the family home and the daily living expenses of the family” (husband’s affidavit filed 14 August 2017, paragraph 150).
The investment unit was acquired through borrowed funds, of which $20,000 advanced by the husband’s father was treated as a contribution by the husband [72] and [114]. It was uncontroversial that:
162.During the marriage, [the wife] and [the husband] applied the rental income received from the unit towards the mortgage repayments and other outgoings associated with the property. There was always a surplus after the mortgage repayments were made which was applied towards reducing the principal on the loan or payment of other expenses such as body corporate fees, rates, water, maintenance, etc.
163.After our separation, [the wife] and [the husband] agreed that the rental income from the unit would be applied towards mortgage repayments. Since separation until the tenant vacated the unit, the rental income was managed by J Real Estate and was deposited into [the husband’s] NAB cheque account monthly, from which I paid the mortgage. Any surplus funds were applied to reduce the principal on the mortgage or towards other expenses as listed above.
(Husband’s affidavit filed 14 August 2017)
In relation to the investment unit, the husband argued that the $20,000 reduction in the mortgage between the date of separation and the date of hearing should be treated as a contribution made solely by him. At its highest, the husband gave evidence that after the investment unit became vacant, he paid total expenses of no more than $7,000. Nonetheless, the primary judge agreed with the husband and the asserted $20,000 reduction in the mortgage post-separation was treated “as a post-separation contribution by the [husband]” [145]. It is appropriate to observe that the primary judge disregarded the fact that the wife was the joint owner of the investment unit and the use of rental income towards mortgage payments and outgoings was as much a contribution by her as it was by the husband [146].
The wife resigned from her employment in April 2014 and received $21,000 in long service and annual leave. Notwithstanding that the parties had separated almost four years earlier, the primary judge found that, at separation, the wife had some $21,000 in a NAB account, which represented her termination payment [101]. The husband’s submission that these monies be included in the property pool was refused, albeit the wife’s retention of those funds was taken into account against her [103].
Similarly, the primary judge declined to add-back the husband’s savings held at separation, but inconsistently with the approach adopted in relation to the wife’s $21,000, this amount was not taken into account [100]. No criticism could be made to the approach adopted to the husband’s savings, but it provides a simple vignette of a number of instances where the primary judge took an inconsistent approach to similar transactions as between the husband and the wife without explanation.

At separation, the wife and children remained in the family home, which was unencumbered. The wife’s partner, Mr G moved into the family home in about August 2013. It was uncontroversial that one child moved to live with the husband in 2013 and the other two lived with the wife until January 2014. Between separation and when the children came to live with the husband, the children spent significant time with him and, during that period, he paid $140 per week in child support [15].
Concerning post-separation, non‑financial contributions, the primary judge was satisfied that the husband had “predominately undertaken the care of the children” whereas the wife “made very little by way of contributions as concerns the care of the children of their marriage” [150]. While the children lived with the husband, he expended money on their living expenses. Notwithstanding that the children lived with the wife for some three years post-separation and she too gave evidence of spending money on their living expenses, no such findings were made in relation to her similar contributions.
In a similar vein, during the years that the children lived with the husband, it was found that he supported them without any child support paid by the wife [18]. Again, this finding misstates uncontroverted evidence to the effect that the wife paid some $7,000 in child support when her income tax refund was intercepted. It is also inconsistent with the finding made when addressing s 75(2) which acknowledged that the wife paid child support when her income tax refund was intercepted [164]. In any event, the primary judge was satisfied that the husband would continue to support the children with minimal contribution from the wife [152], and although this would ordinarily be considered pursuant to s 75(2) (which it was) it was also treated a contribution factor in favour of the husband.
Otherwise, the wife had the benefit of living in the family home “rent‑free” from 2010 until February 2017, including with her partner from late 2013. On the other hand, the husband lived with his father in somewhat uncomfortable conditions, which weighed in favour of the husband [153].
The primary judge assessed the parties’ contributions made over a period of 21 years holistically and concluded that:
154.I reject the submission that the parties’ pre and post separation contributions were ‘roughly equal.’ In my view, it is clear that the [husband] made significantly greater contributions than the [wife].
155.I consider that the parties’ financial and non-financial contribution based entitlements to their existing property should be given a weighting as to 60% in favour of the [husband] and 40% in favour of the [wife].
Contrary to the submission for the wife, the reasons given by the primary judge for the assessment of the parties’ contributions can be discerned. Besides the husband’s slightly greater capital contribution [137] they comprise:
a) Post-separation, the husband reduced the mortgage on the investment unit by $20,000 [145];
b)Post-separation, the husband primarily cared for the children whereas the wife made “very little” contribution towards their care [150];
c) The wife had the benefit of living in the family home for nearly seven years compared to the husband’s 18 months; and
d)During the period the children lived with the husband, the wife did not pay child support and, looking to the future, he would support the children with minimal contribution from the wife [152].
Based on findings made prior to the specific discussion addressed to contributions, it may be inferred that the primary judge also took into account:
a)In favour of the husband, $20,000 his father advanced towards the investment unit [114];
b)Otherwise, during 14 years of cohabitation, the parties’ financial and non‑financial contributions were equal; and
c)The wife’s use of her termination benefit weighed against her [103].
His Honour’s findings that the husband’s contributions towards the deduction of the mortgage on the investment unit were solely his, that post-separation the wife made very little contribution towards the care of the children, and that she did not pay child support were inconsistent with the evidence and were not available.
It is apparent that significant weight was attached to post‑separation contributions, particularly the finding that the wife made very little contribution to the children’s care. It will be recalled that the children lived with the wife from November 2010 until early 2014. There can be no doubt that this was a significant period of time and her contribution to their care should have been given real weight. It was wrongly minimised. Furthermore, the financial consequences of the husband’s future care of the children was properly considered under s 75(2). However, it was also taken into account when assessing contributions. It was not a contributions issue and was impermissibly double counted against the wife.
These are material errors which undoubtedly influenced the assessment of the husband’s contributions at 60 per cent compared to the wife’s 40 per cent. That conclusion cannot stand.
Ground 4 has been made out.

Superannuation

It will be recalled that when the primary judge tabulated his findings as to the property available for distribution, the parties’ superannuation interests were identified as a discrete class of property. The failure to preserve that distinction in the assessment of contributions and the ultimate award is said to be inconsistent with the approach mandated by the majority in Coghlan and Coghlan (2005) FLC 93-220 at [64] (“Coghlan”) and to have resulted in an order which is unjust (Ground 7).
Few findings were made in relation to superannuation which no doubt reflects the paucity of the evidence on the topic. The primary judge found that at the commencement of cohabitation the parties each had “modest” superannuation [137], the parties’ agreed that there should be an adjustment to their superannuation interests and that the values of those interests was agreed; albeit the value of the parties’ superannuation was misstated; in the case of the wife as $277,779 rather than the agreed $286,678.66 (Exhibit 21) and in relation to the husband as $81,804 rather than $86,443.73. The confused manner in which these values were presented obviously contributed to these mistakes.
Turning then to Coghlan, nothing said by the majority in that case lends unequivocal support for the proposition advanced by counsel for the wife that an asset‑by‑asset approach is required in relation to superannuation. The majority did no more than indicate that:
63.However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise). This of course is the approach which the trial Judge adopted in this case.
If there was any doubt that the majority did not purport to lay down a hard and fast rule that superannuation must be dealt with as a discrete class of property, reference need only be had to their opening statement at [65] to dispel that notion. At [65] the majority said “[i]n summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case”.
In other words, superannuation may be dealt with as part of a single pool constituted by superannuation and non‑superannuation property or as a discrete class of property. However, as Coghlan makes clear, irrespective of which approach is adopted, it is necessary to:
·Consider and make findings about contributions to superannuation;
·Consider and make findings about the impact of the assessment of those contribution entitlements in determining if any adjustment should be made on account of s 75(2) (including the parties’ future superannuation prospects); and
·Ensure that the real nature of the superannuation interests is taken into account in the final assessment of whether the ultimate order is proper.
As was submitted by counsel for the wife, his Honour failed to:
·Evaluate the parties’ direct and indirect contributions to superannuation;
·Did not consider the particular characteristics of superannuation when applying s 75(2);
·Did not give reasons why a 10 per cent adjustment of superannuation was appropriate on account of contributions; and
·Did not consider the particular features of the parties’ superannuation interests when addressing whether the orders were just and equitable.
In assessing the significance of those omissions, it is important to appreciate that the husband sought to equalise the superannuation interests. The only modification of the husband’s stance was made during closing addresses when the Court was invited to give the wife more than half the total superannuation interests, if that was necessary to enable the husband to retain the family home.
His Honour’s failure to consider these matters is an appealable error.
Ground 7 has been made out.

Application of s 75(2) of the Act

The gravamen of Ground 5, is that the primary judge erred in the application of s 75(2), by failing to take into account relevant considerations and taking into account irrelevant considerations.
In support of the contention that the primary judge took into account irrelevant considerations, the wife asserts error in relation to the application of s 75(2)(c) which directs the Court to take into account whether either party has the care and control of a child from the marriage who has not attained the age of 18 years. At the time of trial, the parties’ three children lived with the husband in the family home. One child had already turned 18 and the other children were 14 and 16 years of age.
The primary judge was satisfied that the children would remain in the husband’s care until they were 18 years of age and that the wife was unlikely to pay child support into the future [204]-[205]. However, his Honour went further and said “it is more appropriate to recognise that the [husband] is likely to have some measure of responsibility” for the children “well beyond their attaining the age of 18 years” [204]. It is difficult to understand precisely what this means, but it seems that his Honour proceeded on the basis that the children were likely to continue to reside with the husband after they turned 18 years of age and he was likely to continue to provide them with a degree of financial support.
On behalf of the wife, it was argued that the primary judge went beyond the express terms of the statute and fell into error (wife’s Summary of Argument filed 10 April 2019, paragraph 4.4).
There is no doubt that s 75(2)(c) directs attention to children of the marriage who have not attained the age of 18 years. However, s 75(2)(o) is expressed in the widest terms and enables the Court to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”. It is well settled that s 75(2)(o) enables the Court to take into account the financial consequences to a party arising from that party’s care or support of an adult child.
In Lint & Lint [2011] FamCAFC 115 the primary judge made an adjustment in favour of a party by reason of that party’s care of an adult child who had autism. The primary judge also took into account that party’s expected “financial burdens” for a child who was then 17 years old that would arise once that child commenced tertiary studies. The Full Court in that case said at [183]:
…[T]he section 75(2) adjustment determined by the trial Judge included, as we have earlier indicated, a significant adjustment for the future care of the parties’ children. Nothing to which we have been referred demonstrates that the trial Judge’s discretion miscarried, or was based upon material errors of fact. Nothing to which we have been referred demonstrates that the section 75(2) adjustment determined by the trial Judge, which favoured the wife by approximately $1.4 million, was based upon inadequate recognition of the wife’s future parenting of the children.
In Zaruba & Zaruba (2017) FLC 93-776, an adjustment was made in favour of a party by reason of that party’s ongoing care of her adult daughter who had a significant disability, albeit, the adult daughter was not a child of the other party. In relation to this approach, the Full Court said at [130]:
His Honour found that “[the wife’s disabled daughter] is now 18 years old and whether the wife has a legal duty to maintain her remains an open question on the evidence” (at [156]). Given the combined effect of s 66C and s 66L of the Act in light of his Honour’s findings that the adult child suffers from a “significant disability”, it may be said that the wife does indeed have “a legal duty to maintain her”. Be that as it may, past care of that child, now an adult; receipt of the carer’s pension and the evidence of the modifications to the Mindarie property to which we have referred all point to the future care of the wife’s daughter being a significant matter pursuant to s 75(2)(o) of the Act.
A similar approach was taken in D & D [2004] FMCAFam 154 by Bryant CFM (as she then was) who made an adjustment in favour of a party who had full‑time care of the parties’ 26 year old child who had a significant disability. Bryant CFM determined that caring for the adult child was “a full‑time and unrelenting task which [the mother] will undoubtedly carry out for the rest of her life, at least until she becomes unable by virtue of her own health to do so” [31] and which justified a sizeable adjustment in the mother’s favour.
From these cases, it can be seen that cogent reasons were given for the adjustment arising from the care and support of adult children and the evidence was much more than mere speculation about whether the adult child would remain in that party’s care.
The facts in this case bear little relationship to those just discussed. In this case, the evidence established that the parties’ adult daughter, intended to undertake tertiary studies at a local university and that she had part-time employment. The husband anticipated that she would continue to live with him whilst she attended university. The younger children were at school, and there was no evidence about their expectations or whether they had any firm plans after they completed their secondary education. Given their ages, such evidence would have, in any event, been little more than speculation.
Although it was open to his Honour to consider the consequences to the husband of his support of the children as adults, the evidence adduced in the husband’s case was insufficient to warrant an adjustment and the reasons given for it are inadequate. The challenge raised by this sub-ground (Ground 5.1) is established.
The next challenge concerns s 75(2)(n), which requires that in determining whether any and, if so what adjustment pursuant to s 75(2) is appropriate, consideration of the effect of the outcome of the contributions exercise must be undertaken (Ground 5.3). Section 75(2)(n) would thus require the primary judge to consider the effect of his decision that in a relatively modest pool of property, and after 21 years of contributions, the husband should receive something like $200,000 more than the wife, which did not occur.
However, the primary judge was only required to deal with the case as presented to him and as no submissions were made for the wife on the point, he was entitled to proceed on the basis that the wife did not seek an adjustment pursuant to the provision. In short, his Honour did not err by failing to make an adjustment he was not asked to make.
The final matter concerns the approach taken to the wife’s ongoing care of her infant child (Ground 5.2), fathered by her partner with whom she and that child live. According to the wife, the primary judge gave no or inadequate weight to her duty to maintain that child. The primary judge was satisfied that the wife’s future earing capacity, at least in the short term, was limited by the recent birth of that child [203]. This finding readily establishes that the wife’s care of the child attracted some weight in her favour. However, as the primary judge found, the wife’s partner did not give evidence and the wife failed to disclose his financial circumstances. Thus, his Honour readily inferred that the wife’s partner was “an available financial resource to address her future needs” [203]. When that finding is coupled with the finding that the wife failed to give full and frank disclosure of her financial position, absent complaint by the husband, the approach adopted to the wife’s ongoing care of her infant child was available.
Nonetheless, the approach taken to the husband’s future responsibilities to the parties’ children after they turn 18 justifies appellate intervention.

The wife’s application for an adjournment

By Ground 1, the wife contends that in refusing her application for an adjournment of the trial, the primary judge denied her a fair hearing, in particular, in relation to her ability to present a comprehensive trial affidavit, medical evidence and documents supportive of her position.
In National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 312, Gibbs CJ explained that:
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
Ultimately, questions of procedural fairness turn on their own facts.
By way of background, on 6 May 2018, the wife’s former solicitor informed the wife that she had ceased to act on her behalf. The wife appointed her present solicitor on 18 May 2018 with the trial listed to commence on 31 May 2018.
The property proceedings had previously been listed for trial to commence on 11 September 2017, with orders to that effect made on 17 October 2016. In relation to that trial, further orders were made the same day, which required the husband to file and serve any further affidavit evidence no later than 28 days prior to the trial, and in relation to the wife, no later than 14 days prior to its commencement. The effect of those orders vis‑a‑vis the wife, was that she was required to file and serve any trial affidavit by 28 August 2017. However, shortly before the September 2017 trial was to commence, the wife applied for an adjournment, essentially on the basis that she was in the latter stages of a high- risk pregnancy and to allow for an improvement in her mental health. An adjournment was granted on 30 August 2017 and on the same day, the matter was listed for final hearing on 31 May 2018. Further directions were made for the husband to file and serve his trial affidavits 14 days prior to the May 2018 trial and, in relation to the wife, seven days beforehand. That is, the husband was required to file his trial affidavits by 17 May 2018 and the wife was required to file hers by 24 May 2018.
Thus, the solicitor for the wife ceased to act before the wife’s trial affidavit was due and, not withstanding that the wife’s new solicitors had been retained, the wife’s affidavit evidence was not filed prior to the trial date.
Without forewarning, at the commencement of the trial, counsel who appeared for the wife, made an oral application for an adjournment. According to counsel for the wife, an adjournment was required so that the wife could properly prepare her case and, relevantly, adduce expert evidence in relation to her health. The application was granted, but only overnight, and thus the hearing commenced with the wife’s hurriedly prepared trial affidavit and without evidence as to her current health.

For the wife, it is contended that the approach adopted by the primary judge:
1.10In all of the circumstances it is submitted that the Wife was denied natural justice because the trial was directed to proceed despite the late withdrawal of her former solicitor, and the unavailability of current sworn medical reports. This materially prejudiced the representation of the Wife and the evaluation of patently serious s 75(2) health issues affecting the Wife, in turn compromising the findings of fact at trial.
(Wife’s Summary of Argument filed 10 April 2019)
However, the trial was not completed and was adjourned until 21 June 2018. Thus, the wife had another three weeks within which to obtain medical evidence as to her current health, and having done so, to seek to adduce such evidence when the trial resumed. The same observations apply in relation to her trial affidavit and documents said to be germane to her case. No application was made to adduce further evidence and indeed, there is no evidence of any attempt by the wife during the period when the trial was part-heard to obtain it.
Furthermore, at the conclusion of the hearing on 21 June 2018, the primary judge reserved his decision which was published on 21 September 2018. Thus, the wife had an additional three months within which to rectify the asserted evidentiary gap. Although she may have experienced some difficulty in persuading the primary judge to permit her to reopen her case, this is no answer to her failure to pursue avenues available at first instance which could have addressed these concerns. The same must be said of the period between publication of the trial reasons and entry of the orders on 23 October 2018.
Procedural fairness is not solely a concern for the wife. The primary judge was obliged to afford procedural fairness to both parties. This is inevitably a balancing exercise of competing interests, which in this case, included that the husband was ready for the hearing and wanted it to proceed. As the primary judge pointed out, in monetary terms, the property available for distribution was reasonably modest and there was a history of the wife failing to comply with directions and orders for costs made against her. These were relevant considerations which the primary judge properly took into account in deciding to give the wife a shorter adjournment than that she sought. It was an orthodox exercise of discretion.
As to the question of whether the short adjournment nonetheless occasioned procedural unfairness to the wife, no explanation was given for her failure to make any attempt to adduce medical evidence relevant to her claim for an adjustment pursuant to s 75(2)(a) of the Act, or the other unspecified evidence that she said would have been adduced had she been given additional time. Cross-examination of the wife at trial establishes that she engaged in that process appropriately and raises no concerns about her capacity to participate in the trial and give instructions to obtain whatever additional evidence she considered appropriate.
There is no doubt that after the trial commenced, the wife had ample opportunity to present medical evidence as to her current state of health. Indeed, other than the medical evidence mentioned later, before us, the wife failed to adduce any additional evidence, which, but for the refusal to grant a longer adjournment, she says she would have placed before the primary judge. It follows that the wife has failed to establish a nexus between the outcome of her adjournment application and the lack of such evidence in her case. This means that she has failed to establish that the approach taken by the primary judge to her application for an adjournment resulted in an unfair trial.
Thus, it is necessary to consider the wife’s application to adduce further evidence in the appeal, in particular the report of Dr D dated 27 May 2019 (“medical report”). The medical report was presented to establish why an adjournment should have been given, the effect of a longer adjournment being given and by way of additional evidence in the event we were to re-exercise the discretion of the primary judge.
The medical report discloses that the wife first made contact with a mental health service in October 2018 and that she was a patient of the service as at the date of the medical report. However, the medical report shows that the wife had contact with mental health services dating back to 2007. She had previously been diagnosed with “recurrent depressive disorder and post‑traumatic stress disorder” (medical report dated 27 May 2019, p.1). The wife was admitted for inpatient psychiatric treatment in October 2018 and again in March 2019.
Stated broadly, the reporting doctor expressed the opinion that the wife presented “with ongoing symptoms of anxiety and Post‑traumatic stress with some depressive symptoms” with “some fluctuations in her mental state” (medical report dated 27 May 2019, pp.2-3). She “demonstrated a fluctuating course with periodic worsening in her mental state…which had impacted on her ability to care for herself and her daughter” (medical report dated 27 May 2019, p.4).
As to the wife’s prospects of future employment, the doctor opined that:
[I]t is difficult to ascertain the long term impact of her illness on her employment, as she appears to be prone to having relapses. The treating team would hope that in the future, with sustained improvements, [the wife] may eventually be able to be gainfully employed, again, while managing relapses.
(Medical report dated 27 May 2019, p.4)
There is nothing in the medical report which indicates that in the lead up to the trial or the trial itself, the wife was incapacitated and unable to assist in the preparation and presentation of her case. Furthermore, it is noteworthy that the request for a medical report was first made on 14 May 2019. That is, more than one year after the initial application for an adjournment and more than a year after the wife retained her current lawyers. The delay is unexplained and unacceptable and shows manifest disregard for appropriate engagement with the litigation process. However, it is appropriate that the evidence be admitted for the purpose of determining the wife’s contention that she was denied procedural fairness.
There is nothing in the medical report which adds to the evidence about why an adjournment was needed at the time it was made and for the reasons already given, Ground 1 has not been made out.
However, different considerations arise in relation to the receipt of this evidence on a re-exercise. Whilst counsel for the husband opposed this Court receiving the further medical evidence pursuant to s 93A(2) of the Act, on the basis that the further evidence was incapable of demonstrating any error of the primary judge with respect to procedural fairness, counsel for the husband directed no submissions in opposition to the evidence being considered if we were to re‑exercise the discretion. Presumably, that approach properly recognised the principles set out in Allesch v Maunz (2000) 203 CLR 172 that it is necessary that parties be given an opportunity to adduce evidence of circumstances as they exist at the time of appeal for an appellate court to re‑exercise the discretion by reference to those circumstances.
Counsel for the husband did not submit that the further medical evidence was disputed as to the facts it records concerning the wife’s ongoing treatment for her mental ill‑health and longstanding mental health condition. To the extent that the evidence goes untested, and may thus hypothetically be capable of producing injustice, three points need to be made. First, counsel for the husband did not submit that the husband would seek to test the evidence via cross‑examination. Second, both parties urged us to re‑exercise the discretion given that the modest size of the property interests in dispute does not justify yet another trial and associated legal costs, quite apart from the added delay and stress upon the parties of such a course. Third, the further evidence, places doubt on the wife’s capacity to return to employment in any real way. In this respect, she is certainly in no worse position than the husband who is unable to return to the workforce.
In the result, we are satisfied that any potential injustice produced by our receiving this evidence is far outweighed by the consequences that would be produced by our remitting the proceedings for a re‑trial.

Re-exercise of discretion

Set out below are the parties’ existing interests in property. This case clearly falls into the category of the “many cases” referred to by the plurality of the High Court in Stanford v Stanford (2012) 247 CLR 108 at [42] where the just and equitable requirement in s 79(2) of the Act for the making of property adjustment orders is readily satisfied.
For her part, the wife proposes that the husband receive 55 per cent of the non‑superannuation property and that the parties’ superannuation interests be divided equally. The husband seeks to maintain the 70 per cent adjustment in his favour achieved at trial; in relation to both superannuation and non‑superannuation property. It is common ground that the husband should receive the family home and the wife should have the investment unit. Similarly, that the wife discharge the mortgage secured against the investment unit and receive the Shareholding A shares.
The wife does not seek to disturb the orders concerning the establishment of an interest bearing account in favour of the children (the trust money) and, by necessary implication, she is taken to accept that she must pay the husband (by offset, if appropriate) the $39,548 required to establish the account.
Turning then to the parties’ property and liabilities, this is as set out in the table below. Unless stated differently, the items and values included in the table are agreed.

ASSETS	OWNERSHIP	VALUE
1.	Property A	Joint	$850,000
2.	Property B	Joint	$280,000
3.	Shareholding A - 400 shares at $2.81 as at 29/05/18	Joint	$1,124
4.	Shareholding B – 1,200 shares held as at 29/5/18	Wife	$6,360
5.	Paid legal expenses	Wife	$6,000
TOTAL: $1,143,484

LIABILITIES	OWNERSHIP	VALUE
1.	NAB mortgage over the investment unit	Joint	$50,267
TOTAL: $50,267

SUPERANNUATION	OWNERSHIP	VALUE
1.	Super Fund P as at 31 May 2018	Husband	$86,443.30
2.	Super Fund Q as at 30 June 2018	Wife	$286,678.66
TOTAL $373,121.96

Thus, the parties have net non-superannuation assets worth $1,093,217.
At separation, the parties owned motor vehicles, had savings and personal items. Whether considered individually or collectively, these were of modest value and the husband’s attempt to bring them into account in the formulation of the pool of property, so many years after separation, and as at the date of hearing, properly failed at trial. These items are not included.
The husband argued for the inclusion as the wife’s notional property of $12,000 that she removed from the mortgage. The wife conceded that $6,000 which she used for legal expenses should be so included (Trevi & Trevi [2018] FamCAFC 173 (“Trevi”); Chorn and Hopkins (2004) FLC 93-204). However, as the balance was used for living expenses at a time when she did not have paid employment, the balance will not be included. Her sole use of the remaining funds is, however, relevant and appropriately taken into account when assessing contributions (Trevi at [30]).
We also think that, in an exercise concerned with determining the parties’ net property, it is confusing to include outstanding costs orders between the husband and the wife. Once again, the liability is relevant but it is better addressed in determining the overall outcome.
Although counsel for the wife argued that the husband’s disability payment is property, which it is, in the circumstances, the approach adopted by the primary judge was pragmatic. This is because the husband suffered the injury for which the payment was made years after the parties separated. The wife was not involved in his care or recovery and made no relevant contribution to it. The better course is that this amount is taken into account pursuant to s 75(2).
Turning then to contributions. The submissions made at trial were confusing and predicated on findings in relation to the parties’ property, somewhat different to their net assets as found by us. Suffice to say that the wife suggested contributions were more or less equal whereas the husband said his were materially greater.
As we said earlier, in relation to non-superannuation property, the parties purchased the family home shortly before they married, in relation to which the husband contributed $20,000 more towards the purchase price than the wife. Otherwise, they each owned a car. From when they commenced cohabitation and until separation, both parties had paid employment and each applied their income to the betterment of the family, including towards the mortgage secured over the family home. Following the birth of each child, the wife took leave and then returned to paid employment. Both parties were involved in the children’s care and each contributed to the welfare of the family in a real way. Although the wife earned more than the husband, sensibly she did not suggest that this made her contributions more valuable than his. The point being, that throughout cohabitation, the parties operated as a partnership and each did his or her best to advance their and their children’s mutual interests.
Their diligence is evident in how quickly they paid off the mortgage on the family home, built up savings and acquired shares. And then, with the $20,000 advanced by the husband’s father, they were able to borrow funds to acquire the investment unit and meet that property’s outgoings. There was always a surplus after the mortgage instalments were paid which was used for other outgoings on the investment unit and in reduction of the loan capital.
The thrust of the wife’s submission was that the parties’ contributions as at the date of separation were equal. To the extent that the husband argued otherwise, his submissions were focussed on his slightly greater initial contribution to the acquisition of the family home and the advance by his father used towards the purchase of the investment unit. Objectively, these were small amounts of money with no real significance. They are insignificant when considered in the context of, at that point in time, the substantial myriad of contributions each party had made over a period of 15 years. As the wife has agreed that she will reinstate the children’s trust monies, we are satisfied that the parties’ pre‑separation contributions were equal.
The assessment of contributions post-separation is less straight forward. It will be recalled that the parties each had a period of exclusive occupation of the family home; in the wife’s case from separation until February 2017. In the husband’s case, from February 2017 until the date of hearing, which, continues to the present. That is, six and a half years for the wife compared to the husband’s two and a half years. The family home was unencumbered throughout and it is inferred that the parties paid its outgoings whilst he or she was in occupation. There is no evidence of capital works by either party and it is inferred that there were none. The effect of this is that the parties’ maintenance of the family home whilst in exclusive occupation is less significant than the contribution made by the other party through allowing exclusive use of a property to which he or she was equally entitled and which is their most valuable asset (Carron & Laniga [2019] FamCAFC 115). In this respect, the husband’s contribution is somewhat greater than the wife’s.
As to the investment unit, at separation it was agreed that the husband would receive its rental income and pay any outgoings. Surplus funds were applied towards the mortgage and in the period between separation and trial, the mortgage was reduced by $20,000, which as joint owners is a contribution made equally. There was a period (about 12 months or so) when the investment unit was vacant and the husband paid the mortgage instalments and other outgoings, to the tune of about $7,000, without assistance from the wife. The effect of this is that the husband’s contributions to the investment property post-separation are slightly greater than the wife’s.
Otherwise, post-separation, there are three other financial matters which require consideration in the evaluation of contributions. First, the husband argued that at separation the wife had $20,000 in savings compared to his approximate $7,000. The wife did not concede that assertion and there is no documentary evidence which supports the husband’s contention. However, even if this was the case, as, at that time, the wife had the primary care of the children, the fact that she had this slightly larger sum at separation does not justify an adjustment in favour of the husband. Nor does the fact that some years later she received $21,000 when she stopped work. The point being, the evidence does not establish any contribution by the husband to the acquisition of that sum and its use by the wife for day to day expenses is reasonable and unremarkable. However, the fact that the wife drew down on the mortgage (the remaining $6,000) and had exclusive use of funds to which the parties were jointly entitled at a time when the husband’s financial situation was also difficult, weighs slightly in favour of the husband. The adjustment is slight because the amount is small and an insignificant component of the net property.
Post-separation both parties made significant contributions to the welfare of the children. The children were in the wife’s primary care from separation until early 2014, a period of nearly three and a half years. From that point the children were in the primary care of the husband with little involvement by the wife. Comparatively, her role in the children’s care during that later period was far less than the role which the husband undertook during the period the children were in the primary care of the wife. As has already been recorded, the husband paid periodic child support while the children were in the wife’s care, whereas the wife paid a lump sum when forced. Overall, the husband paid more child support for the children than did the wife. The effect of these matters is that, post‑separation, both parties made real and significant contributions to the welfare of the children. However, the husband’s contributions in this respect were greater than those made by the wife and he carried a greater financial burden for the children than she did.
The total effect of these matters is that, post‑separation, the husband made a greater total contribution to non-superannuation property than the wife.
Little is known about the parties’ superannuation. As was mentioned earlier, they both had superannuation, presumably of little value, at the commencement of cohabitation. There is no suggestion of payments into either fund other than through employment. The wife always earned more than the husband and thus her superannuation accrued at a faster rate than his. It is inferred that at separation her superannuation was more valuable than the husband’s. As they both stopped paid employment in 2014, their contributions post‑separation continued in the same pattern as they had during cohabitation. From when they each stopped employment, it is inferred that the presumed increased values in their funds result from investment by the fund manager. As the wife’s fund has been more valuable than the husband’s, hers continued to grow at a greater rate than his. However, the effort each put into their employment is similar and, their ability to maintain employment reflects their partnership and the support each gave to the other in carrying out their respective roles within the family. The effect of this is that the parties’ financial contributions towards superannuation are assessed as being equal. However, the other contributions taken into account when assessing contributions to non-superannuation property remain relevant and apply with equal force to this class of property.

The cumulative effect of these findings is that contributions favour the husband by 53 per cent compared to the wife’s 47 per cent. This means that the husband is entitled to receive net non-superannuation property worth $579,405.01 and the wife is entitled to receive $513,811.99. In relation to superannuation, the husband will have $197,754.64 and the wife $175,367.32.
We propose to consider the application of s 75(2) to a combined superannuation and non-superannuation pool. The application of s 75(2) is plainly relevant to superannuation and non‑superannuation alike. We do not accept the wife’s argument that the parties’ superannuation should be quarantined from this exercise (Coghlan).
The husband is 49 years of age and has a serious back injury. He will not have paid employment again and currently receives social welfare payments being Newstart Allowance of $292 per week, Family Tax Benefit payments of approximately $322 per week and Carer Allowance of $62 per week, which enables him to maintain a modest standard of living. He has about $80,000 by way of the disability payment, which provides him with a small buffer for his future, and it is something like 11 years before he will reach preservation age so as to access his superannuation. It is accepted that he may struggle to keep the family home but if he does sell it, he will have sufficient funds to buy a modest dwelling which will be unencumbered.
The wife is 45 years of age and has not had paid employment subsequent to her resignation in 2014. By reason of the further evidence discussed above, it has been established that she has a depressive disorder which fluctuates in its severity. In recent times, she has twice required in‑patient treatment. Although she has a substantial history of employment with the public service, the effect of the medical evidence is that her prospects of future employment are most uncertain. However, she does not challenge his Honour’s findings concerning her lack of financial disclosure, including that at least between mid‑2015 and late 2017 she operated a business. His Honour was understandably critical of the wife’s failure to provide a proper account of her financial relationship with her partner, with whom she has lived since late 2013 and with whom she has a child. Their financial relationship was plainly relevant. However, there is no suggestion that the wife’s partner has any assets of value and the likelihood is that he will only continue to earn a modest income.
The wife’s business dealings were modest and, although she will have received income which was not disclosed in these proceedings, this was probably quite modest. Even if she was well enough to resume trading, there is no evidence that she can afford to restock and it should be inferred that her capacity to earn an income from business dealings or at all is extremely limited.
The wife claims an adjustment by reason of childcare responsibilities for her and her partner’s baby. However, the wife does not establish, given her failure to provide a proper account of her financial relationship with her partner, that her partner’s income and financial resources will be insufficient to fully meet their child’s support. Thus, the wife does not establish that she has “commitments” or “responsibilities” with respect to her child, within the meaning of s 75(2)(d)(ii) or (e) respectively, or of such magnitude as would support any adjustment in her favour for this consideration.
The wife will receive the investment unit and will have assets of slightly less value than the husband. She will take the investment unit subject to a capital gains tax liability, whereas the family home is tax‑free. The wife must re‑establish the children’s trust funds and will be required to satisfy the outstanding orders for costs. She is four years younger than the husband which means she will wait at least four years longer than he will before she could seek access to her superannuation. These capital gains tax and superannuation issues justify an adjustment in favour of the wife.
The parties’ three children continue to reside with the husband, two of whom are under the age of 18. It is accepted that the younger two children will reside with the husband until they reach 18 years of age and, in all probability, he will receive little child support. He seeks an adjustment in his favour on the basis that the children are likely to continue to reside with him until they have at least completed university. In relation to the younger children, it is not established that they will attend university. At 18 years of age, the children are adults and free to make their own decisions about where they live. There is no evidence that they have health or other issues which tie them to their father or mean that they are incapable of supporting themselves while studying. There is insufficient evidence which would justify an adjustment in favour of the husband by reason of his support of the children after they turn 18 years of age. That said, an adjustment in the husband’s favour because he is likely to support the younger children with little child support from the wife is appropriate.
Considered cumulatively, the effect of these findings is that there should be an adjustment of 2 per cent in favour of the husband in relation to superannuation and non-superannuation assets alike.
In order to provide the outcome foreshadowed, the assets have to be divided 45 per cent to the wife and 55 per cent to the husband.
If the husband retains the family home and his superannuation he will hold assets worth $850,000 and $86,443.30 respectively. He will also have his disability payment, which has already been taken into account separately. Of the non‑superannuation assets the husband is entitled to property worth $601,269.35 which is $248,730.65 less than he has. As to superannuation he is entitled to $205,217.08 which is $118,773.78 more than he has.
On the other hand, the wife will retain net non-superannuation property worth $243,217. She is entitled to receive $491,947.65. Her superannuation interest is worth $286,678.66 and she is entitled to receive $167,904.88.
In relation to the non-superannuation assets, the husband is required to pay the wife $248,730.65. However, by way of offset, the wife must pay the costs order of $18,727 and provide the husband with the $39,548 to re-establish the children’s trust funds. Thus, the adjusting amount which the husband must pay the wife is reduced to $190,455.65. Accordingly, Order 1 of the property settlement orders made by his Honour will be varied by deleting $2,040.60 and inserting $190,455.65 in its place.
We do not accept the husband’s argument that the amount he is required to pay the wife qua non-superannuation property should be made by reducing the amount he would otherwise receive in superannuation. The nature and characteristic of these classes of property are fundamentally different and the wife is just as entitled as he is to have her proper share of the available non‑superannuation property. On the assumption that the superannuation splitting order made below has not been given effect it would be appropriate to a superannuation splitting order in favour of the husband of $118,773.78. Order 9 of the property settlement orders will be varied accordingly.
This outcome is just and equitable.

Costs

In the event that the wife’s appeal was successful, she sought costs against the husband. The husband resisted the wife’s application for costs and, in the event that we were satisfied that there should be no order as to costs, both parties applied for costs certificates in relation to the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
The wife pressed her application for costs on the basis that, properly advised, the husband should have conceded the appeal and thus saved her from the expense of taking it to hearing. There is some force in this submission and, but for the wife’s failure to give full and frank disclosure and the husband’s poor financial circumstances, the wife’s application for costs would have succeeded. Her application for costs against the husband will be dismissed.
The preconditions for a costs certificate are met and it is appropriate that they are given.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Kent JJ) delivered on 29 November 2019.

Associate:

Date: 29 November 2019