Pastern & Pastern - [2007] FamCA 620

FAMILY COURT OF AUSTRALIA

PASTERN & PASTERN

[2007] FamCA 620

FAMILY LAW - APPEAL AGAINST TRIAL JUDGE’S DETERMINATION OF THE DIVISION OF ASSETS

FAMILY LAW – APPEAL FROM FAMILY COURT OF AUSTRALIA – PROPERTY SETTLEMENT – CONTRIBUTIONS – Assertion that the trial Judge erred in the exercise of his discretion by failing to give due weight to the contributions of the wife not established.

FAMILY LAW - PROPERTY SETTLEMENT – STATUTORY ADJUSTMENT – Not established that the trial Judge erred in the exercise of his discretion by determining an inadequate s 75(2) Family Law Act 1975 adjustment in favour of the wife. Elsey v Elsey 1997 FLC 92-727 followed.

FAMILY LAW - PRACTICE AND PROCEDURE – ADEQUACY OF REASONS – Not established that the trial Judge failed to give adequate reasons for his determination of s 75(2) Family Law Act 1975 adjustment. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 and Bennett and Bennett (1991) FLC 92-191 cited.

FAMILY LAW - PRACTICE AND PROCEDURE – EVIDENCE – Assertion that the trial Judge accepted and utilised calculations of the husband which were not based on evidence not established.

Family Law Act 1975 s 75(2)

House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68
Coulton v Holcombe (1986) 162 CLR 1
Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990)169 CLR 279
De Winter v De Winter (1979) FLC ¶90-605
Elsey v Elsey (1997) FLC 92-727
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24

Bennett and Bennett (1991) FLC 92-191

APPELLANT:

Ms Pastern

RESPONDENT:

Mr Pastern

FILE NUMBER:

NCF

1371

2001

APPEAL NUMBER:

2005

DATE DELIVERED:

27 June 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Finn, Coleman, May JJ

HEARING DATE:

5 December 2006

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 June 2005

LOWER COURT MNC:

O'Ryan J

REPRESENTATION

COUNSEL FOR THE APPELLANT:

The appellant wife appeared in person

SOLICITOR FOR THE APPELLANT:

Rugendyke Lawyers

COUNSEL FOR THE RESPONDENT:

Mr. Richardson SC and Mr. Batey

SOLICITOR FOR THE RESPONDENT:

Attwaters

Orders

That the wife’s appeal be dismissed.
That the wife pay the husband’s costs as agreed or assessed on a party and party basis.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referrred to as Pastern & Pastern.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 84 of 2005
File Number: NCF 1371 of 2001

Ms Pastern

Appellant

And

Mr Pastern

Respondent

REASONS FOR JUDGMENT

By Amended Notice of Appeal filed 26 September 2006 Ms Pastern (“the wife”) appealed against orders made by O’Ryan J on 28 June 2005 in proceedings between herself and Mr Pastern (“the husband”) pursuant to Part VIII of the Family Law Act (“the Act”).
The trial Judge’s orders provided that the assets of the parties as determined by him at $3,301,027.00 should be shared as to 54 per cent to the wife and 46 per cent to the husband.
In lieu of such division the wife sought by her Amended Notice of Appeal that her entitlement be increased by approximately $363,000.00 which represents an increase of slightly more than 10 per cent on the award made in her favour by the trial Judge.
The husband has resisted the wife’s appeal and sought to maintain the trial Judge’s orders.

Background

The husband was born in 1947 and the wife in 1948. The parties married in April 1973 and separated either in late 2000 or early 2001.
Their marriage was dissolved by decree which became absolute on 11 March 2002.
The husband remarried on 17 January 2004. The wife has not re-partnered.
There are two children of the marriage who are aged 30 and 24. A third child of the parties born in 1980 died the day after her birth.
At all material times the husband was a veterinary surgeon. The wife had casual work from time-to-time during the marriage.
The trial Judge determined the net assets of the parties to be worth $3,301,027.00. This appeal does not involve any challenge to the trial Judge’s conclusion in that regard.
His Honour concluded that contributions to the date of hearing favoured the wife by 52.5 per cent to 47.5 per cent. To such entitlement he concluded that a 1.5 per cent adjustment in the wife’s favour was appropriate pursuant to s 75(2) of the Act.
The effect of the trial Judge’s orders was that the wife would receive net assets worth $1,778,806.00.

The trial Judge’s Judgment

His Honour commenced his reasons for judgment by recording, accurately there is no doubt, the relief sought by each party. He noted that the husband’s case was that the “contribution based entitlements” of the parties should be assessed at 50 per cent whilst the wife asserted that contributions should favour her by 55 per cent to 45 per cent (Appeal Book Vol 1, page 10, para 4).
His Honour further recorded, accurately there is no doubt, that the husband sought that the wife’s contribution based entitlement be increased by 5 per cent by virtue of s 75(2) factors whilst on the wife’s behalf a 10 per cent adjustment was sought by virtue of such factors (Appeal Book Vol 1, page 10, para 6).
As his Honour’s “introduction” to his judgment makes clear, a considerable number of valuation issues required determination. His Honour observed:
16.There are issues about the value and composition of most of the net assets. It is an argument about what are they arguing about. The issues about matters of contributions are, as so often happens, relatively simple to resolve. However, as to the ‘balance sheet’ issues there is an argument about virtually everything.
The course of proceedings before the trial Judge assumed a convoluted path, despite his sustained efforts to bring the dispute to a timely conclusion.
Having recounted matters of “background” which are not controversial in this appeal, and need not be referred to for present purposes, the trial Judge stated the “relevant principles” with respect to the proceedings before him (Appeal Book Vol 1, page 23 – 24, para 131 – 132). There is no suggestion that he erred in stating the relevant principles.
Turning to the “first step” his Honour undertook, with meticulous thoroughness, a determination of the many and varied disputed issues of valuation. For the reasons which his Honour clearly and cogently articulated, he concluded that the net assets of the parties were worth $3,301,027.00. There is sensibly no challenge in this appeal to that conclusion. It is thus unnecessary for present purposes to refer to any of his Honour’s reasoning in relation to the determination of the quantum of the parties’ assets.
Under the heading “Contributions” the trial Judge referred to the contributions made by each of the parties. His findings included, uncontroversially, that “the husband’s earnings were greater than those of the wife” (Appeal Book Vol 1, page 72, para 375) during their “relationship”, that both parties “made significant non financial contributions to the acquisition, conservation and improvement of the numerous items of property they accumulated and sold during the relationship” (Appeal Book Vol 1, page 72, para 376), that the wife “made a greater contribution in the capacity as homemaker and parent” (Appeal Book Vol 1, page 72, para 377) during a “lengthy marriage of at least 28 years duration, and notwithstanding the detailed allegations made by each of them as to the behaviour during the marriage, on balance, to the date of separation each of the parties applied the whole of their energies, income and skills to the benefit of the family and the acquisition and conservation of property,…subject to two matters” (Appeal Book Vol 1, page 72, para 378).
The first such matter was “the assistance the parties received from the wife’s parents and the wife’s inheritance” (Appeal Book Vol 1, page 72, para 379). His Honour then detailed a number of those contributions (Appeal Book Vol 1, page 73, paras 380, 381, 382) and the wife’s receipt of an inheritance of $NZ258,382.19 in 1994 (Appeal Book Vol 1, page 74, para 383).
His Honour thus concluded:
384.When account is taken of all of the above matters, in my view, it leads to the conclusion that to the date of separation the contributions by the wife were greater than those of the husband. It does represent a distinguishing contribution unmatched by the husband.
The other matter to which his Honour had earlier alluded was “what has happened since separation” (Appeal Book Vol 1, page 74, para 385). His Honour then considered the contributions of the parties in the post separation period, the most significant of which he considered included substantial direct and indirect financial contributions by the husband from the various entities through which he conducted his profession as a veterinary surgeon, the wife’s albeit more modest income from a grazing property owned by the parties and known as “B”, the wife’s efforts in relation to the work on and maintenance of that property (Appeal Book Vol 1, page 74, para 388) which were “quite arduous and stressful” and the use and enjoyment of the major real estate assets of the parties (Appeal Book Vol 1, page 75, para 385).
His Honour concluded “in the result there remains the significant contribution by the wife of what she received from her parents” (Appeal Book Vol 1, page 75, para 388). He thus concluded “that the contributions of the parties should be assessed as to 52.5% to the wife and as to 47.5% to the husband” (Appeal Book Vol 1, page 75, para 389). There is no suggestion that his Honour failed to have regard to any relevant s 79(4) fact or circumstance. The disparity of entitlements of 5 per cent translated as a sum favouring the wife of approximately $165,000.00.
Under the heading “Other Factors” the trial Judge considered s 75(2) factors. There is no suggestion that his Honour failed to have regard to any relevant s 75(2) fact or circumstance.
His Honour referred to the ages of the parties and to the fact that the wife “has a diagnosed back injury and suffers from tendonitis of the right elbow” whilst the husband was “in average health” (Appeal Book Vol 1, page 75, para 390). He concluded that the husband had the capacity to “derive in the order of $500,000 per annum” in his capacity as veterinary surgeon (Appeal Book Vol 1, page 75, para 393). He also concluded that “both parties by reason of their age have a limited opportunity for gainful employment” (Appeal Book Vol 1, page 75, para 392).
Having referred to the capacity of the husband to earn income as a veterinary surgeon if the entities in which he currently has interests and with which he is associated were to be realised (Appeal Book Vol 1, page 75, para 393), the trial Judge referred to the wife’s qualifications and experience, concluding by reference to her age and state of health that it was “unlikely she would be able to continue to operate a grazing business” (Appeal Book Vol 1, page 75, para 395). His Honour thus concluded:
396.I am of the opinion, that the husband has a significantly greater income and greater earning capacity than the wife.
Reference was then made to the greater entitlement of the wife by virtue of the “contribution based entitlements” determined by the trial Judge (Appeal Book Vol 1, page 76, para 397).
Reference was also made to the circumstances of the husband’s cohabitation with his new wife (Appeal Book Vol 1, page 76, para 398), his Honour recording the values of the husband’s present wife’s assets, superannuation interests and earning capacity (Appeal Book Vol 1, page 76, para 398).
The trial Judge referred to a submission on behalf of the husband as to the “adverse effect on the husband’s livelihood, income earning capacity and financial resources if I made an Order that required him to borrow a significant sum against his interest in the veterinary practice.” (Appeal Book Vol 1, page 76, para 400). His Honour referred to submissions with respect to the husband’s ability to secure an advance of “up to $500,000” to pay to the wife by way of settlement of property and concluded that any imposition in excess of that would require the husband to “realise his share” in the various entities through which he carries on his practice as a veterinary surgeon. He concluded that “[t]o realise that share would necessarily deprive him of his income stream, which would then have the effect of diminishing any adjustment to the wife as a result of any disparity in income earning capacity” (Appeal Book Vol 1, page 76, para 400).
The trial Judge observed that:
403.I am required because of s 79(4)(d) to take into account the effect of any proposed order upon the earning capacity of either party. There is no doubt that it is relevant for me to consider the effect on the earning capacity of the husband of an order that the husband could not satisfy except by the sale of the interest in the practice and the possible consequent diminution of income from that source. However, I also take into account that the husband could obtain employment at a very reasonable salary level.
His Honour’s ultimate “conclusion” with respect to “other factors” was:
405.In my view the significant matters are the age and state of health of the parties, the significantly greater income and greater earning capacity of the husband, the financial circumstances of cohabitation of the husband with his present wife, the prospective inheritance of the husband, the effect of an order on the earning capacity of the husband and the greater property interests of the wife by reason of my finding as to the contribution based entitlements of the parties.

Relevant Appellate Principles

The principles which govern this appeal are not in doubt, and would not normally be re-stated in any detail.
Though articulate and not inexperienced in litigation, the wife, who represented herself before this Court but was represented at trial, is not a trained lawyer and, with respect to her, in the presentation of her appeal, revealed considerable unawareness of the principles which govern an appeal to this Court. For that reason, we set out hereunder the principles relevant to the appeal.
In House v The King (1936) 55 CLR 499 the High Court said at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Norbis v Norbis (1986) 161 CLR 513 Brennan J said at 539 – 540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at p.345 Asquith LJ stated the rationale of an appellate court’s approach:
“…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
Kirby in CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230 – 231:
Discretionary and evaluative decisions
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 approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. 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. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. 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.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
As will become apparent, no complaint agitated by the wife before us involves any suggestion that the trial Judge failed to have regard to relevant facts or circumstances, either for the purpose of determining the contribution based entitlements of the parties, or the s 75 adjustment appropriate to be made to such entitlements. Nor do the wife’s challenges with respect to the contribution entitlements, or the s 75(2) adjustment involve any suggestion that the trial Judge had regard to irrelevant or extraneous facts or circumstances.

The words of Stephen J in Gronow v Gronow (1979) 144 CLR 513, at 519-20 are apposite in the circumstances of this appeal. His Honour there said:
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.
As a reading of the transcript, and our consideration of the wife’s grounds of appeal would reveal, the wife appeared unaware of the implications on appeal of the manner in which the proceedings were conducted before the trial Judge. A number of the submissions sought to be advanced by the wife relied upon facts or circumstances which were not in evidence before the trial Judge and were not the subject of any application for leave to adduce further evidence, which is not to suggest that anything thus advanced was likely to have been able to be the subject of a successful application for leave to adduce further evidence (see CDJ v VAJ (1998) 197 CLR 172).
A number of the wife’s contentions also involved propositions which were inconsistent with the way her case was conducted before the trial Judge. There are a number of decisions of the High Court which are relevant in such circumstances.
In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 the High Court said at 438:
The circumstances in which an appellate court will entertain a point not raised in the court below are well established, where a point is not taken in the court below and evidence could have been given there which by any, possibility could have prevented the point from succeeding it cannot be taken afterwards.
In Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 the High Court said at 71:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
In Coulton v Holcombe (1986) 162 CLR I Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
In Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Mason CJ and Gaudron J said at 284:
Some aspects of that rule appear to derive from public policy considerations directed to ensuring the finality of litigation. On the other hand, some aspects of the rule may have their genesis in estoppel by election in the conduct of litigation, although, if so, the relevant consideration is not that the other party is put in a worse position but that he or she may have been so placed. See, for example, Moustakas, where the refusal to allow the appellant to raise a new case was rested on ‘the possibility that the [other party] may, if it had been raised below, have wished to call evidence in response to it’. So far as the rule may derive from public policy, the relevant consideration is that the case sought to be made on appeal is a new or different case from that which emerged at the trial. See Browne v Dunn, cited with approval in Rowe v Australian United Steam Navigation Co Ltd; Moustakas. (footnotes omitted)

The Grounds of Appeal

Ground 1 of the wife’s Amended Notice of Appeal provided:
1.That His Honour erred in the exercise of his discretion in making an allowance in the wife’s favour for contributions to the assets of the parties of only 2.5%.
In support of this ground, having identified the relevant findings of the trial Judge by reference to a number of paragraphs in his Reasons for Judgment, the wife merely asserted that:
8. …the Trial Judge erred in the exercise of his discretion in that His Honour failed to give adequate weight to the greater contributions made by the appellant. (wife) (Appellant’s Summary of Argument, para 8).
The wife’s oral submissions however made clearer the real complaint in relation to the trial Judge’s determination of the contribution based entitlements of the parties.
The wife relied before this Court on the written “Submissions for the Respondent Wife” placed before the trial Judge by Counsel then representing her. In those submissions, albeit contending that the contribution entitlements of the parties should favour the wife by 55 per cent to 45 per cent, (page 16) Counsel submitted that the contribution by the wife in 1994 of an inheritance of $NZ256,000.00 represented “approximately 7 per cent of the husband’s calculation of the current pool of assets” (page 14).
At trial, reliance was placed upon the wife’s receipt of “items of jewellery, flatware, and other small antiques from the antique business conducted by her parents in New Zealand” which items were “brought to Australia and sold by the wife during the period of time that the parties were living in S” (page 14). It was then submitted that “while there is a dispute about the amount realised from the sale of these items, it is submitted that there was an additional contribution by the wife from this source which is not insignificant”. (page 15) Reliance was also placed upon the provision by the wife’s parents of “significant financial assistance to the parties through there [sic] lifetimes, particularly while the parties were living in New Zealand” (page 15). In reliance upon such matters, and others referred to in the submissions on her behalf, Counsel for the wife submitted that her contribution entitlement “up to the date of hearing” should be assessed at 55 per cent. (page 16)
In oral submissions, the wife complained that the trial Judge had failed to give adequate weight to her contribution of the proceeds of sale of her “jewellery, sterling silver flatware and other objets [sic] which the [sic] she sold” (Appeal Book Vol 1, page 73, para 380) during the course of the parties’ cohabitation.
The wife submitted, by reference to an affidavit sworn by her in the proceedings that such sales generated approximately $170,000.00. The basis of that assertion was paragraph 73 (Appeal Book Vol 3, page 353) of her affidavit of evidence in chief wherein the wife asserted that the sale of such personalty resulted in “a return of about $170,000.00” between 1990 and 1999. As is apparent however from the affidavit, and is not in contention, that figure was rejected by the trial Judge, as were other portions of that paragraph of the wife’s affidavit, and subsequent paragraphs (Appeal Book Vol 3, page 355, para 78) where similar allegations were made. His Honour was clearly entitled to reject that evidence as it was inadmissible.
Also struck out of the wife’s affidavit was the following statement (Appeal Book Vol 3, page 355, para 78):
Although many records are missing, I have retained a number of invoice books and some invoices from L, which shows sales of over $75,000.00.
The wife alleged that Exhibit W was the source document which established the sales of that magnitude. Exhibit W, and indeed all of the exhibits at trial, have apparently been returned to the entities who tendered such documents. Exhibit W has not been reproduced in the appeal books nor did the wife produce it on the hearing of the appeal.
The other factor to which the wife contended the trial Judge had failed to afford adequate weight was the funds which she contributed from her family. Relevant in that context was a statement from S & C of MNZ, in relation to payments received by the wife from her “parents during their lifetime and from their estates” (Appeal Book Vol 3, page 405).
It was conceded by Senior Counsel for the husband that the document created by S & C on 29 August 2001 was received in evidence, and was properly before the trial Judge. The document referred to the receipt by the wife of “cash payments etc through to 31^st March 1993, totalling $73,351.47”. These sums were said to have been “recorded as being advances to you from the MJS Trust with the Trust being wound up as at 31 March 1994, at which time you received a further amount from the Trust of $14,501.69 making the total amount received from the Trust of $87,853.16”. S & C further confirmed that, following the death of the wife’s mother “on 6 March 1994, you received from the Estate a number of cash payments totalling $258,382.19. S & C then purported, inadmissibly, there is little doubt, to suggest a value of “items of furniture, personal effects and antiques” which the wife and her two sisters divided “so as to equate as to value received”. The sums referred to by S & C clearly referred to New Zealand dollars.
The complaint of the wife was thus, in essence, that although the trial Judge referred to the benefits which the wife thus received, and gave her credit for them within the context of evaluating the respective contributions of the parties, the failure to refer to the sums to which reference has been made resulted in the trial Judge under valuing the wife’s contributions.
The “Pre-argument Summary” lodged by lawyers then acting on her behalf confirms the nature of the wife’s challenge to the trial Judge’s conclusion with respect to contributions.
On behalf of the husband it was submitted, in reliance upon the authorities referred to earlier in these reasons, that the trial Judge’s conclusion with respect to contribution based entitlements had not been shown to have been “plainly or manifestly unreasonable or unjust” (Respondent Husband’s Summary of Argument, page 2).
It was submitted that each and every one of the matters relied upon by the wife had in fact been referred to by the trial Judge in the course of his reasons. It was further submitted to be “true that these were the ‘unmatched’ contributions (as described by the trial judge at para 384) that the trial judge was then to exercise his discretion, which must be acknowledged to be particularly broad, in evaluating the weight to be attributed in the context of a 28 year marriage” (Respondent Husband’s Summary of Argument, page 3).
It was however submitted that the wife’s complaint “overlooks an important matter” that being that the “analysis which led to a conclusion of disparity in the appellant’s favour was one confined to the balance of contributions ‘to the date of separation’” (Respondent Husband’s Summary of Argument, page 3). Reliance was placed upon paragraphs 5, 378 and 384 of the trial Judge’s Reasons for Judgment in support of that assertion.
It was submitted by reference to the trial Judge’s conclusions with respect to the post separation period that such contributions “stood to be tempered by the finding as to the husband’s greater post separation contribution” (Respondent Husband’s Summary of Argument, page 3).
It was thus submitted that “the weight afforded by the trial judge to the two factors leading to disparity to date of separation balanced against the husband’s greater post separation contributions leading to a contribution based award to the wife exceeding that of the husband by 5% was well within the range of the broad ambit of available discretion” (Respondent Husband’s Summary of Argument, page 4).
We have earlier referred to the submissions made on behalf of the wife to the trial Judge in support of the submission that contributions “up to the date of hearing” should favour the wife by 55 per cent to 45 per cent for the husband.
As we have also noted, whilst the 1994 New Zealand inheritance was quantified at $NZ 256,000.00, no figure was submitted to the trial Judge with respect to the proceeds of sale of “jewellery, flatware, and other small antiques” which the wife sold, save the submission that there was “an additional contribution by the wife from this source which is not insignificant” and that it was further submitted that the “wife’s parents provided significant financial assistance to the parties through there [sic] lifetimes, particularly while the parties were living in New Zealand”. (Submissions for the Respondent Wife, page 15).
As is clear beyond doubt, the trial Judge considered that, to the date of hearing, contributions favoured the wife by 52.5 per cent to the husband’s 47.5 per cent, and that such outcome arose from the trial Judge’s conclusion that the husband’s post separation contributions operated to reduce to some extent the greater contribution based entitlement of the wife up to the date of separation. It is not possible and unnecessary in any event, to speculate as to what the trial Judge considered the wife’s contribution based entitlement to the date of separation to have been, assuming he reached a conclusion in that regard, which he was not obliged to.
The financial contributions to which the trial Judge referred included “small amounts of cash” provided “shortly after the parties’ marriage”, rent-free accommodation “for about three months in a flat provided by the wife’s parents”, small sums of money “which averaged about New Zealand $25 per week” in 1996, the receipt by the wife of “cash, antique furniture and porcelain”, the provision of “various household items and items for the children”, “jewellery, sterling silver flatware and objets” which the wife subsequently sold, in 1976 “one half of the deposit for the purchase of a new motor vehicle”, the payment of the wages of housekeeper for six years commencing 1978, the “cost of employment of a person to assist the wife with improvement work on the home in New Zealand” between 1979 and 1981, “physical assistance with a construction of a pump shed and a garden shed at the M home”, from 1980-1989 “the use of a holiday home at T in New Zealand which was owned by the wife’s parents”, in 1981 the payment of “$NZ1500 for a trip for the parties to go to S”, in 1980 the payment “for the parties to have a holiday at MS in New Zealand”, the payment of “about $NZ1500.00 a year for each child as well as the cost of uniforms” whilst each of the children attended a preparatory school in New Zealand, “cash from time to time and sometimes by direct payment for a family trust which was controlled by the wife’s parents”, “cash gifts by the wife’s parents on occasion”, $NZ10,000 “as a deposit towards the cost of purchase of a new BMW motor vehicle” which vehicle was “sold in 1989 for $33,000 when the parties left New Zealand”, in 1985 payment “for the parties to travel to B to see the husband’s parents”, and in 1987 payment “for a trip for the husband and the child A go to B to visit the husband’s parents and then to S to visit the K School which the husband had attended” (Appeal Book Vol 1, page 73, para 380).
His Honour then referred to the sale by the wife of a “significant quantity of antique sterling silver and silver plate pieces and antique jewellery” which the wife sold in Australia after the parties moved here together with some jewellery which the wife’s mother had given her (Appeal Book Vol 1, page 73, para 381).
His Honour also referred (Appeal Book Vol 1, page 73, para 381) to the loan of $20,000 to the wife’s parents “at one time”. His Honour was unable to “resolve” an issue about whether or not, in February 1994 the wife’s mother “paid $NZ6,000 for the cost of a cricket tour to New Zealand by the child A”. His Honour also referred to the receipt of an inheritance by the wife in 1994 of $NA258,382.19 (Appeal Book Vol 1, page 74, para 383), there being no doubt that such figure is identical with the sum referred to in the S & C document referred to earlier.
The trial Judge thus concluded:
384.When account is taken of all of the above matters, in my view, it leads to the conclusion that to the date of separation the contributions by the wife were greater than those of the husband. It does represent a distinguishing contribution unmatched by the husband.
Save to the extent that his Honour did not find that the wife contributed $75,000.00 from the sale of antiques, jewellery and/or other personalty, and that his Honour did not quantify in the sum referred to by S & C, $87,853.16, there is no suggestion that the trial Judge failed to have regard to any of the contributions upon which the wife relied made “by or on her behalf” by her family.
It has not been established before us that the evidence before the trial Judge obliged him to find that the wife had received $75,000.00, or any other figure, upon the realisation of antiques jewellery or other personalty. As is apparent from his Honour’s Reasons for Judgment, he was well aware that the wife had in fact received a significant quantity of such items. It is not without relevance that Counsel appearing for the wife at trial did not assert a figure with respect to the sale of antiques, jewellery or other personalty. To the extent that the wife asserts that the exercise of discretion was based upon an error of fact (See De Winter v De Winter (1979) FLC ¶90-605), no factual error has been demonstrated.
So far as the failure to refer to the $87,853.16 in his Reasons for Judgment is concerned, it is apparent that the trial Judge was well aware that the benefits, which he particularised, represented a substantial contribution over a number of years.
As was submitted by senior Counsel for the husband, the trial Judge’s conclusion with respect to the contribution entitlements of the parties translated as a disparity of approximately $165,000.00 in the wife’s favour. It is clear from his Honour’s conclusions with respect to the post separation period that the “distinguishing contribution” of the wife which was “unmatched by the husband” was regarded by the trial Judge as justifying, to the date of separation, a disparity considerably in excess of the percentage of the assets which translated as that sum.
Nothing to which the wife has referred us, even assuming, which we do not, that there was admissible evidence before the trial Judge establishing that $75,000.00 had been realised from the sale of antiques, jewellery and other personalty, demonstrates that a disparity of 5 percent, or $165,000.00, fell beyond the ambit of a reasonable exercise of his Honour’s undoubtedly broad discretion. It may be that other judges would have reflected those contributions more favourably to the wife than did the trial Judge, but, as the authorities to which we have referred make clear, that is not the test. We thus do not find Ground 1 to have been established.
Ground 2 of the Wife’s Amended Notice of Appeal provided:
2.That His Honour erred in the exercise of his discretion in making an allowance in the Wife’s favour on account of factors set out in s.75(2) of the Family Law Act 1975 of only 1.5%.
The wife’s Summary of Argument does not address Ground 2. Her “Pre-argument Summary” however did. It was there submitted that “the most significant Section 75(2) factor is the husband’s largely superior income-earning capacity, of the order of approximately $600,000.00 per annum” (Wife’s Pre-argument Summary, Ground 2 para (c) page 2).

It was further submitted that:
(d)The husband has “recovered” the allowance made to the wife for Section 75(2) factors many times over just in the period since the completion of the hearing and delivery of judgment. On the husband’s evidence as to his borrowing capacity, he will not be required to sell his share in the veterinary practice in order to fund the payment ordered to the wife. Accordingly, the husband’s financial position will continue to improve largely disproportionately to that of the wife for so long as he remains in the veterinary practice.
Ultimately, it was submitted that:
(e)The Section 75(2) allowance in favour of the wife was unreasonably limited by the husband’s desire to retain the property at W Street Sc. In addition, his Honour overlooked the availability to the husband of the sale of the publicly listed shares in ADP Pty. Limited, which, by the time of judgment, had a market value well in excess of $100,000.00.
Before the trial Judge it was submitted on behalf of the wife that a 10 per cent adjustment pursuant to s 75(2) was warranted (Submissions for the Respondent Wife, page 21).
Before the trial Judge it was submitted that the wife’s income over the preceding “3 years and 8 months” equated “to a gross income of $1,035 per week”, from which the various outgoings of the property “B” had to be met, the property having “not traded at a profit since it was purchased by the parties” (Submissions for the Respondent Wife, page 18).
It was then submitted that:
By way of contrast, the husband discloses income of $10,195 per week before tax from the SVH business together with bank interest and share dividend income totalling $40.00 per week. He has P credit which have an after-tax value estimated at $315.00 per week. At the top marginal rate of 48.5 cents in the dollar, the pre-tax value of these credits is $611.65 per week. Total pre-tax value of all of these sources of income disclosed by the husband in his financial statement is $10,846.65 per week, or approximately $564,000 per annum. In addition, the husband receives other benefits by virtue of his partnership in the SVH practice which D estimated at $20,000 per annum. Therefore, the husband’s total income from all sources is approximately $584,000 per annum or $10,230 per week gross. (Submissions for Respondent Wife, page 18)
A number of submissions were then made in relation to potential developments which the entities through which the husband practices as a veterinary surgeon were contemplating, it being ultimately asserted that:
…the husband’s income stream (using the term as defined by him) from SVH/V Trust is likely to at least continue at its present level, if not increase during the foreseeable future. The husband’s taxable income from all sources is at least nine times the gross income of the wife. This calls for a substantial adjustment in favour of the wife on account of this factor. (Submissions for Respondent Wife, page 20).
The wife sought to argue before this Court that the husband’s income was in fact significantly in excess of $600,000.00 per annum. No evidentiary foundation for that submission was referred to. As the submissions made on her behalf at trial reveal, at its highest, a total from all sources of approximately $584,000.00 per annum was asserted to have been the husband’s earning capacity.
On behalf of the husband it was submitted that the trial Judge had not erred in the exercise of his discretion with respect to the s 75(2) adjustment which he made. It was submitted that the trial Judge, having not failed to have regard to any relevant fact or circumstance, nor having had regard to any irrelevant or extraneous fact or circumstance, the wife had not demonstrated that the exercise of the trial Judge’s discretion had miscarried.
It is instructive to consider the trial Judge’s reasoning with respect to the s 75(2) adjustment which he made. Save to the extent that the wife submitted unsuccessfully that the husband’s earning capacity exceeded $600,000.00 per annum, no finding of fact relied upon by the trial Judge for the purpose of determining the s 75(2) adjustment appropriate to be made in the wife’s favour has been suggested to have been erroneous.
The trial Judge found that both parties were 58 years of age (Appeal Book Vol 1, page 75, para 390). He recorded, accurately, that the wife had a “diagnosed back injury and suffers from tendonitis of the right elbow” whilst the husband was “in average health” (Appeal Book Vol 1, page 75, para 390). Having referred to the husband’s “skills and capacity for employment as a veterinary surgeon” and other benefits, both quantified and otherwise, (Appeal Book Vol 1, page 75, para 391) and to the potentially “limited future earning capacity” of each party, and thereby “limited opportunity for gainful employment” of both parties, (Appeal Book Vol 1, page 75, para 392) his Honour concluded that “the husband will have for at least some time the capacity and opportunity to earn a substantial income. He can derive in the order of $500,000 per annum”. (Appeal Book Vol 1, page 75, para 393).
Having referred to some particular aspects of the husband’s practice (Appeal Book Vol 1, page 75, para 394), his Honour recorded his finding that the wife was “unlikely” to “be able to continue to operate a grazing business” by virtue of her age and state of health. (Appeal Book Vol 1, page 75, para 395). Moreover, he concluded that the property “B” was unlikely to ever be able to enable the wife “to derive a reasonable income” from grazing activities on the property, it having “not traded at a profit since it was acquired” (Appeal Book Vol 1, page 75, para 395). The trial Judge thus concluded that the husband had a “significantly greater income and greater earning capacity than the wife” (Appeal Book Vol 1, page 76, para 396).
Reference was made to the wife’s somewhat greater “property interests than the husband ($165,051)” by reasons of the trial Judge’s conclusions with respect to the “contribution based entitlements of the parties” (Appeal Book Vol 1, page 76, para 397). Reference was also made to the financial circumstances of the husband’s present marriage (Appeal Book Vol 1, page 76, para 398) and to the submission on behalf of the wife that the husband had a “prospective inheritance from his mother’s estate” (Appeal Book Vol 1, page 76, para 399).
Reference was then made to the husband’s ability to borrow “an amount of up to $500,000” to apply in payment of legal fees and the entitlement of the wife without having to sell the entities through which he practises as a veterinary surgeon. His Honour concluded that “to realise that share [in S Veterinary Hospital] would necessarily deprive him [the husband] of his income stream, which would then have the effect of diminishing any adjustment to the wife as a result of any disparity in income earning capacity” (Appeal Book Vol 1, page 76, para 400). Even then, as his Honour recorded, (Appeal Book Vol 1, page 77, para 403) the husband “could obtain employment at a very reasonable salary level”.
It is apparent that the trial Judge regarded the disparity of earning ability of the parties, “for at least some time” (Appeal Book Vol 1, page 75, para 393) as enlivening a s 75(2) adjustment in favour of the wife. It is also apparent that, quite apart from any limitations on such adjustment by virtue of the husband’s age and the likely duration of his continuing to be able to earn at that level because of the “strenuous” nature of the specialist work he undertook “with large thoroughbred horses” (Appeal Book Vol 1, page 75, para 392), the trial Judge limited the s 75(2) adjustment by reason of the fact that, only by not realising or otherwise having access to his interests in the entities through which he conducted his practice could the husband continue to earn at that level.
His Honour’s unchallenged findings with respect to the net assets of the parties ($3,301,027.00) included findings that the husband’s interest in the entities through which he practises as a veterinary surgeon represented almost $2million of the total net assets of the parties. Whilst, if the husband were to realise those interests, and thereby receive capital of that magnitude, and be able to “obtain employment at a very reasonable salary level” (Appeal Book Vol 1, page 77, para 403), his Honour was entitled to have regard to the reality that the husband could not “have it both ways” and both utilise the capital represented by his interests in the entities through which he practises as a veterinary surgeon and continue to earn “in the order of $500,000 per annum” (Appeal Book Vol 1, page 75, para 393).
Nothing to which the wife has referred this Court persuades us that his Honour erred in reaching the foregoing conclusions. The adjustment in the wife’s favour by virtue of s 75(2) approximated $100,000.00 (3 per cent of $3,301,207.00 being $99,030.81). Given the husband’s age and likely limitations upon his future earning capacity, and the reality that the values of his interests in the entities through which he practises as a veterinary surgeon were included in the assets of the parties, and represented such a substantial proportion of the totality of those assets as we have indicated, the Court is not persuaded that the adjustment determined by the trial Judge was inadequate.
In Elsey v Elsey 1997 FLC 92-727 the Full Court said:
…trial judges must consider the economic consequences which flow from their orders before making them. Otherwise, the result achieved may not be just and equitable as s 79 requires. Indeed, the provisions of s 79 clearly require trial judges to consider the effect of any proposal order upon the earning capacity of the parties before consideration is given to the s 75(2) factors.
The trial judge’s approach to the husband’s earning capacity was in our view consistent with that caveat.
We thus do not find Ground 2 to have merit.
Ground 3 of the wife’s Amended Notice of Appeal provided:
3.That His Honour erred in failing to give adequate reasons for making an allowance in the Wife’s favour on account of factors set out in s.75(2) of the Family Law Act 1975 of only 1.5%.
The wife made no oral submissions in support of this ground but it was asserted in her “Pre-argument Summary” (page 3) that it was:
a)… not clear how he [the trial Judge] balanced all of the factors favouring the wife against the only factor favouring the husband, being a reduction in his greater income earning capacity if he was required to sell his partnership share in allowing only a 1.5% adjustment in favour of the wife for Section 75(2) factors.
It was further submitted that:
b)At paragraph 393, his Honour recorded that the husband’s submission was that the wife should receive an adjustment of 5% for the husband’s greater income-earning capacity.
and that:
c)It is not clear why his Honour chose to depart from this submission, other than by reference to the limitation on the husband’s borrowing capacity and the husband’s desire to retain the property in W Street S.
Finally, it was submitted that:
d)Even if the husband was forced to sell his share in the S Veterinary Hospital, there is clear evidence that he would still be left with an income significantly superior to that of the wife. (Wife’s Pre-Argument Summary, page 3)
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279, McHugh JA said:
… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In Bennett and Bennett (1991) FLC 92-191, the Full Court said at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
"The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: --
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
We discern no inadequacy in the trial Judge’s reasons. It is in the nature of a discretionary determination that there is necessarily a gap between identifying and considering relevant factors, and expressing a conclusion as to the cumulative effect of those factors. No matter how detailed the reasons provided by the trial Judge might have been, a point would necessarily have been reached where his Honour moved from a qualitative discussion of those factors to a quantitative reflection of them in the form of a s 75(2) adjustment.
His Honour was not obliged to quantify each and every relevant s 75(2) factor. Moreover, it is not for the husband to demonstrate that the trial Judge’s determination with respect to s 75(2) fell within the ambit of a permissible exercise of discretion, but rather for the wife to demonstrate that it did not. His Honour’s reasons leave no doubt as to why he concluded as he did with respect to s 75(2). We have already dealt with the wife’s challenge to the adequacy of that adjustment.
We are comfortably satisfied that the trial Judge’s reasons with respect to s 75(2) were adequate and consistent with a judicial rather than an arbitrary decision.
So far as the submission with respect to the 5 per cent adjustment is concerned, as a reading of the totality of his Honour’s reasons makes clear, the 5 per cent adjustment asserted on behalf of the husband was clearly predicated upon the trial Judge concluding that the net assets of the parties, particularly with respect to the husband’s interest in the entities through which he practised as a veterinary surgeon would be found to have been very substantially less than the trial Judge ultimately concluded and that the contribution entitlements of the parties would be held to be equal, which they were not. We see no error in the trial Judge, having determined those issues in ways largely contrary to the husband’s case, not applying a 5 per cent s 75(2) adjustment.
It has not been demonstrated that the trial Judge erred in any of the ways asserted pursuant to this ground.
Ground 4.1 of the wife’s Amended Notice of Appeal provided:
4.1In using and accepting the calculations of the Husband’s Counsel which were not based on any evidence. See figures notated on paragraphs 366, 388, 391 and 393 of Judgment;
The wife sought to advance this ground by reference to a “spreadsheet” prepared by her, the effect of which, if accepted, was that, in the post separation period, the indebtedness of the parties was reduced by the husband from $394,823.94 to $213,173.02 rather than, as the trial Judge found, (Appeal Book Vol 1, page 70, para 366) from “$545,480” to “approximately $200,000”.
The wife’s “spreadsheet”, was largely unsupported by reference to evidence which was before the trial Judge. Moreover, as the submissions of Counsel then appearing on her behalf reveal, there was no challenge to the schedule of figures provided by Counsel for the husband to the trial Judge, whichever of the two documents referred to by the wife was actually tendered to his Honour. The schedule provided the figures found by his Honour in the passage of his judgment to which we have referred.
Nothing to which the wife has referred the Court provides a foundation for concluding that the trial Judge erred in finding that the “comparison of the parties’ debt situation at separation, $545,480, to their joint current debt position of approximately $200,000, illustrates the application and effect of the husband’s control of the income stream from S Veterinary Hospital and the V trust. The whole of the reduction was made without any contribution by the wife” (Appeal Book Vol 1, page 70, para 366).
His Honour subsequently recorded that “the evidence does not enable me to conclude on the balance of probabilities that the husband has failed to make a full and frank disclosure or to make the findings, which the wife urges upon me to make”, being “satisfied that both parties made a full and frank disclosure of their financial circumstances and were not seeking to mislead me” (Appeal Book Vol 1, page 71, paras 368-9).
In the second paragraph upon which the wife sought to rely (Appeal Book Vol 1, page 74, par 388) the trial Judge said:
388.I accept that the husband has continued to work as a veterinarian and as a result of his efforts considerable sums have been generated that were applied for a variety of purposes including debt reduction and maintenance to the wife and so on. This is relevant. On the other hand the wife has continued to work on and maintain “B” and although the income has not been nearly as significant as that which came from the husband’s efforts it should not be discounted because of that fact. I have no doubt that the wife’s efforts in attempting to conduct a grazing business and maintain a rural property were quite arduous and stressful. In the context of consideration of the earning capacities of the parties one matter relied upon by the husband was the ability of the wife to manage the grazing enterprise. In the result there remains the significant contribution by the wife of what she received from her parents.
After so recording, His Honour expressed his “conclusion” with respect to contributions (Appeal Book Vol 1, page 75, para 389).
It is apparent that, whilst the trial Judge found, as was open to him on the evidence, that the husband had been wholly responsible for the reduction of the joint indebtedness of the parties by approximately $345,000.00 in the post separation period, that contribution was balanced with the other factors to which his Honour referred in that context (Appeal Book Vol 1, pages 70 – 75, paras 363-365 and 367, 368, 385, 386, 387, 388).
It has not been submitted before us that, in evaluating contributions in the post separation period, the trial Judge failed to have regard to any relevant contribution. Significantly, the wife has not submitted that the trial Judge undervalued any contribution made by her in that period.
The wife referred to two other paragraphs of the trial Judge’s reasons in support of this ground. Those paragraphs provided:
391.The husband has skills and capacity for employment as a Veterinary Surgeon. The husband also received various benefits from the company being home telephone, life insurance payments, sickness benefits payments, accommodation at thoroughbred sales and conferences, and motor vehicle expenses. The husband has the benefit of P Credits of an estimated $10,000 per annum. The husband also has the benefit of frequent flyer points.
393.However, the husband will have for at least some time the capacity and opportunity to earn a substantial income. He can derive in the order of $500,000 per annum. In fact it was the husband’s submission that I would find that the parties contributions are equal, and that only because of the husband’s short term greater income earning capacity, (emphasis mine) the wife should receive a 5% adjustment. It was conceded that should the husband retain the A.D. P Pty Ltd interest in the S Veterinary Hospital and the V Trust, that he will, for the short term, have a much greater income stream than that of the wife.

It is difficult to see how those matters related to the trial Judge’s “determination of the pool of property available for distribution as between the Husband and Wife”. We have earlier referred to them in the context of the challenge to the trial Judge’s conclusions with respect to s 75(2). Nothing emerging from those paragraphs, or anything to which the wife has referred the Court in the evidence or submissions before the trial Judge provides support for the challenge raised by this ground.
We conclude our rejection of this challenge by recording that, in a lengthy and meticulous judgment, the trial Judge made findings of fact in reliance upon the evidence overall and, as he was entitled to when the evidence had concluded, the submissions made, or not made, by Counsel for the parties. Nothing to which the wife has referred us establishes that any material fact relied upon by the trial Judge was found or accepted without an available basis for doing so. We thus find this challenge lacks merit.
Ground 4.2 of the wife’s Amended Notice of Appeal provided:
4.2In consideration to the adverse effects on the Husband in borrowing more than $500,000.00, the alternative being a sale of the Husband’s share in the S Veterinary Hospital, as notated in paragraphs 400, 403 and 405.
This has largely been dealt with earlier in the context of consideration of Ground 3. The first two paragraphs of written submissions relied upon in support of this challenge were there expressly referred to.
Paragraph 405, to which the wife refers of the trial Judge’s Reasons read:
405.In my view the significant matters are the age and state of health of the parties, the significantly greater income and greater earning capacity of the husband, the financial circumstances of cohabitation of the husband with his present wife, the prospective inheritance of the husband, the effect of an order on the earning capacity of the husband and the greater property interests of the wife by reason of my finding as to the contribution based entitlements of the parties.
That paragraph does no more than summarise the factors which his Honour had previously discussed. Again, it is difficult to see how the matters complained of could advance the complaint that the trial Judge “erred in his determination of the pool of property available for distribution as between the Husband and the Wife”. To the extent that the wife asserts that the husband’s earning capacity was greater than the trial Judge found it to be, that challenge is not made out.
To the extent that the trial Judge is alleged to have erred in some fashion by seeking to place the husband in a position where he could avoid a sale of his interest in the S Veterinary Hospital and other entities through which he practices as a veterinary surgeon, howsoever formulated, those challenges have not been shown to have substance. This Ground has not been made out.

Conclusion

The wife having not established any ground of appeal, her appeal must be dismissed.

Costs

At the conclusion of the hearing of the appeal we received oral submissions in relation to the costs of the appeal in the event that it was either successful or unsuccessful. In the event that the appeal was unsuccessful, as it has been, the husband sought his costs of and incidental to the appeal (that is, including the reserved costs in relation to the procedural hearings). Given her self represented position it was difficult for the wife to make submissions in opposition to the application for costs.
Having regard to the matters contained in s117(2A) of the Act, and in particular the wife’s lack of success and the overall lack of merit in the grounds of appeal, we are of the view that the circumstances justify the making of an order for costs in favour of the husband.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 27 June 2007