Pates & Pates - [2018] FamCAFC 171

FAMILY COURT OF AUSTRALIA

PATES & PATES

[2018] FamCAFC 171

FAMILY LAW – APPEAL – PROPERTY – Long lapse of time between separation and final hearing – Whether the trial judge’s assessment of the parties’ contributions was outside the permissible ambit of discretion – Whether the trial Judge erred by failing to notionally add-back certain amounts to the parties’ property interests – Sufficiency of reasons – Disclosure – Whether the trial judge erred in not making an adverse inference against the husband in line with Jones & Dunkel – No obligation on the husband to disclose all aspects of his current wife’s financial circumstances – Appeal dismissed.

FAMILY LAW – CROSS APPEAL – Whether the s 75 (2) adjustment in the wife’s favour was “not open” and “plainly wrong” – Character of the parties’ superannuation interests – No objection to wife’s submissions that the parties’ disparate superannuation interests warranted an adjustment in her favour – Findings of the trial judge open on the evidence – Cross-appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where both appeal and cross-appeal have been wholly unsuccessful – Respondent’s application for costs in respect of abandoned grounds of appeal granted.

Family Law Act 1975 (Cth) s 75(2)
Family Law Rules 2004 (Cth) Pts 12.2, 13.1, 13.2
Federal Circuit Court Rules 2001 (Cth) Div 14.2, Pt 24, r 14.06, r 24.02

Athens v Randwick City Council [2002] NSWCA 83
Browne v Green (1999) FLC 92-873; [1999] FamCA 1483
Chorn & Hopkins (2004) FLC 93-204; [2004] FamCA 633
Croton v The Queen (1967) 117 CLR 326; [1967] HCA 48
Curnow v O’Sullivan (No.2) (1976) 11 ALR 465
F and F (1982) FLC 91-214; [1982] FamCA 8
Fadden v Deputy Federal Commissioner for Taxation (1943) 68 CLR 76; [1943] HCA 20
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kowaliw and Kowaliw (1981) FLC 91-092; [1981] FamCA 70
Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11
Mallett v Mallett (1984) 156 CLR 605; [1994] HCA 21
Matter of Worthbrook Pty Ltd [2017] NSWSC 1036
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Patterson and Patterson (1979) FLC 90-705; [1979] FamCA 37
Re Bishop (dec’d); National Provincial Bank Ltd v Bishop [1965] 1 All ER 249; [1965] Ch 450
Russell v Scott (1936) 55 CLR 440; [1936] HCA 34
Semperton v Semperton (2012) 47 Fam LR 626; [2012] FamCAFC 132
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Surridge & Surridge (2017) FLC 93-757; [2017] FamCAFC 10
Teal & Teal [2010] FamCAFC 120
Townsend and Townsend (1995) FLC 92-569; [1994] FamCA 144
Van der Linden & Kordell [2010] FamCAFC 157
Welch & Abney (2016) FLC 93-756; [2016] FamCAFC 271

APPELLANT/CROSS-RESPONDENT:

Ms Pates

RESPONDENT/CROSS-APPELLANT:

Mr Pates

FILE NUMBER:

SYC

5927

2010

APPEAL NUMBER:

2018

DATE DELIVERED:

6 September 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Austin JJ

HEARING DATE:

10 July 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 December 2017

LOWER COURT MNC:

[2017] FCCA 3251

REPRESENTATION

COUNSEL FOR THE APPELLANT/CROSS-RESPONDENT:

Mr Coleman SC and Ms Bridger

SOLICITOR FOR THE APPELLANT/CROSS-RESPONDENT:

Jo-Anna F.S. Moy Solicitor

COUNSEL FOR THE RESPONDENT/CROSS-APPELLANT:

Mr Cummings SC

SOLICITOR FOR THE RESPONDENT/CROSS-APPELLANT:

Barry.Nilsson. Lawyers

Orders

The appellant is granted leave to rely upon the Further Amended Notice of Appeal dated 6 July 2018 and filed in Court on 10 July 2018.
The appeal is dismissed.
The cross appeal is dismissed.
The appellant shall pay the respondent’s costs thrown away in respect of the abandoned grounds of appeal, assessed in the sum of $3,000, but otherwise the parties shall bear his and her own costs in respect of the appeal and cross 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 Pates & Pates 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 SYDNEY

Appeal Number: EA 18 of 2018
File Number: SYC 5927 of 2010

Ms Pates

Appellant/Cross-Respondent

And

Mr Pates

Respondent/Cross-Appellant

REASONS FOR JUDGMENT

On 22 December 2017, Judge Kemp pronounced orders between the appellant wife (“the wife”) and respondent husband (“the husband”) dividing their property under Part VIII of the Family Law Act 1975 (Cth) (“the Act”). The wife appealed a selection of the orders and, with her consent to do so out of time, the husband later cross-appealed against one order.
In essence, the wife’s challenge to the trial judge’s orders falls into two broad categories: first, various assertions of error in determining to not add-back, as the husband’s notional property, certain sums of money individually spent by him; and second, various assertions of error in the trial judge’s arrival at and the provision of reasons for the proportional division of property between the parties.
The husband’s challenge goes directly to the order quantifying the monetary adjustment payable by him to the wife on the asserted basis the trial judge’s discretion miscarried when calculating the percentage adjustment in her favour under s 75(2) of the Act, due to the artificial treatment of his non-commutable superannuation pension as property of high capitalised value.
For the reasons which follow, the appeal and cross-appeal should both fail and the parties should bear their own costs, save in respect of the costs thrown away by the husband in preparing to meet the grounds of appeal which were ultimately abandoned by the wife.

The appeal

With the husband’s consent, the wife was granted leave to file in Court at the commencement of the appeal and to then prosecute a Further Amended Notice of Appeal, dated 6 July 2018, which abandoned numerous grounds of appeal and re-caste some of the remainder. These reasons therefore only address the appeal embodied in that document.

Ground 4

At trial, the wife sought that the sum approximating $142,000 be notionally added-back to the parties’ property interests. The trial judge determined not to do so, which decision the wife contended was “erroneous in principle” because it was made in reliance upon a finding of fact which was not reasonably open. The factual finding she asserted to not be reasonably open was the husband’s payment of land tax in an amount of about $142,000 from a particular bank account.
Until April 2009, the husband was the sole account holder of the bank account into which rental payments received by the parties from the lease of their two jointly-owned properties were deposited. The statements in relation to the account were in evidence (Exhibit U). At trial, the wife contended the husband siphoned off the total sum of $142,934.76 from the account and deposited the money into a second account controlled by him (Exhibit W) in the period between July 2006, which approximated the date of separation, and April 2009, when the husband ceased his exclusive use of the first account. Therefore, she contended $142,000 should be added-back as the husband’s notional property as a “pre-emptive and unilateral distribution to himself from jointly owned funds”.
The husband did not deny the inter-account transfers or the expenditure from the second account, but did deny he spent the money for his own benefit. He deposed he transferred money from the first account to the second account and used it to meet continuing expenses related to the two properties. He gave no evidence-in-chief about any individual transactions, but he was cross-examined and re-examined about many of them. He said a large proportion of the funds with which the wife was concerned under this ground was specifically used by him to pay land tax, in the total amount of about $74,000. He did not produce any receipts to corroborate his oral evidence about payments of land tax, which failure the wife submitted to the trial judge should lead to the conclusion his evidence was “unreliable and unsatisfactory”.
Relevantly, the trial judge made the following factual findings, none of which was challenged on appeal:
(a)About $750,000 was deposited to the first account (Exhibit U) in the period between July 2006 and May 2009 and, in the same period, some $774,000 was withdrawn from the account and used to meet, among other things, home loan repayments and other loan payments in the total sum of about $458,000 (at [81(c)(ii)]);
(b)Various land tax payments identified by the husband correlated with entries in the exhibited bank statements (at [81(c)(iv)]);
(c)Land tax assessments for the 2007, 2008, and 2009 years (Exhibit 22) amounted to around $84,000 (at [81(c)(vi)]); and
(d)The husband made the land tax payments for the parties in each and every year the land tax assessments were issued (at [81(c)(viii)]).
Presently, the singular point of complaint by the wife was the trial judge’s finding it was likely that the first account was the source of the funds used by the husband to make the land tax payments during the relevant period (at [81(c)(viii)]). She contended it was not possible to tell from the bank account statements.
Contrary to the wife’s proposition, the finding was open and was not foreclosed by the evidence. It was uncontroversial that, following separation, the husband continued to marshal the parties’ financial affairs related to their jointly-owned properties. Specifically, that included meeting loan repayments, rates, land tax, and other miscellaneous expenses. It was unremarkable the husband was unable to account during his oral evidence, from his recollection, for each and every transaction in the bank statements across a three-year period many years before the trial commenced. The tendered bank statements did not, on their face, disclose a descriptive caption as to the purpose of each and every withdrawal from the accounts, so withdrawals from the accounts could feasibly have been made for the purpose of meeting the liabilities of the particular type described by the husband. It was open for the trial judge to make a finding consistently with the husband’s evidence to that effect. The wife’s doubt about the reliability of his evidence did not, of itself, preclude the findings made by the trial judge. Just because the husband was unable to produce a corroborative receipt years afterwards did not require the trial judge to find the husband’s oral evidence was unreliable and reject it.
In any event, even if it was not open to find the first account was the source of the funds used to pay the land tax, the error was immaterial. It was not controversial the husband ensured all land tax assessments were paid on behalf of the parties. The wife conceded she did not make any such payments, so they must have been made by the husband. If he certainly made the payments, then it did not matter from where he drew the funds. If the trial judge wrongly concluded the funds were withdrawn from the first account when in fact the funds were drawn from some other account or source, the error did not taint the ultimate conclusion that the subject $142,000 was utilised by the husband to meet the parties’ joint liabilities.
Consequently, Ground 4 fails.

Ground 5

At trial, the wife sought that the sum of $41,318 be notionally added-back to the parties’ property interests. The trial judge determined not to do so, which decision the wife contended was a discretionary error for failing to “accord proper weight” to the husband’s concession he retained the funds for his own benefit.
The parties held an investment account in their joint names. The money deposited into the account originated from an eligible termination payment received by the husband as an incident of his employment during the course of the marriage. The husband conceded he withdrew the funds from the joint account in January 2012, deposited the funds into his own account, and later spent the money because he regarded it as his. The wife argued she enjoyed “a legal interest as to a half” of the money and sought that it be notionally added-back to the parties’ property. The husband submitted his expenditure of the funds should be disregarded as each party enjoyed the beneficial use of their assets following separation and he pointed, in that respect, to the wife’s post-separation expense-free accommodation in one of the parties’ jointly-owned properties up until the time of his seizure of the money in January 2012.
The trial judge found the subject money was not expended by the husband “recklessly, negligently, or wantonly” and, due to the long period of time elapsed since separation, concluded the funds should neither be added-back as notional property nor taken into account under s 75(2)(o) of the Act in the adjustment process (at [82(c)]).
The reference to reckless, negligent and wanton expenditure was a reference to the guideline considerations enunciated in Kowaliw and Kowaliw (1981) FLC 91-092 and Browne v Green (1999) FLC 92-873. The trial judge was wrong to characterise the wife’s add-back submission as one which required a finding as to recklessness, negligence, or wantonness because she only pitched the submission in reliance upon its characterisation as a “premature distribution of matrimonial property” (see Townsend and Townsend (1995) FLC 92-569), which the trial judge initially correctly acknowledged (at [62], [75]). Nevertheless, that was not the gravamen of the ground of appeal. Rather, the wife’s complaint was of discretionary error by reason of insufficient weight being reposed in the husband’s concession he spent the money for his own benefit, remembering that appeals based on the sufficiency of weight attributed to evidence are notoriously difficult to sustain (see Gronow v Gronow (1979) 144 CLR 513 at 519-520).
His Honour correctly noted the treatment of contended notional add-backs is ultimately discretionary and, further, they should be the exception rather than the rule because parties are not expected to assume a state of suspended economic animation once their relationship ends (at [61]-[72]), which point has been repeatedly made over the years (see Chorn & Hopkins (2004) FLC 93-204 at [24] (“Chorn & Hopkins”)). The trial judge also properly noted it was not the Court’s function to conduct “an audit of the marriage or of the relationship finances” (at [67]), which cautionary comment was well warranted in light of the way the trial was conducted.
In this instance, it was common ground the subject money was paid to the husband in the form of an “eligible termination payment including superannuation” about 13 years into the parties’ marriage. The payment was therefore in consideration for work done by him (albeit during the marriage) and it was initially deposited into the parties’ joint account with his consent. He withdrew the money and spent it nearly six years after the parties separated and more than three years before the trial started. Although the wife contended the length of time elapsed between separation and the expenditure was “an irrelevant matter” which was “not open to the trial judge to consider”, that was not correct. It was one feature of the evidence which was liable to influence the exercise of discretion. The parties were entitled to move on with their separate lives and use their income and assets to sustain themselves, particularly when the trial occurred so long after their separation.
Whether one or both used their assets in a way that should have caused their expenditure to have been taken into account in the discretionary property adjustment process was a matter of degree. In this case, both parties spent large sums of money in the nine years that elapsed between their separation and the commencement of trial, much of which money was derived from either payments made to the parties from external sources or their liquidation of various assets (including bank accounts and real property) and it was treated by the trial judge in different ways. Some expenditure was ignored, some was added-back, and some was taken into account under s 75(2)(o) of the Act.
Although this ground of appeal asserted the error lay in the trial judge’s failure to add-back the money as a notional asset, for which outcome the wife contended at trial, she inconsistently submitted on appeal that the trial judge should have taken the funds into account in any one of several alternative ways – either as a contribution by her, as an adjustment factor under s 75(2)(o) of the Act, or by characterising it as a debt for which the husband was liable to her from his share of the assets. Her appeal submission was deprived of force by reason of the inconsistent way in which she particularised and then argued the asserted error.
Regardless of the way in which the wife contended the trial judge could or should have approached the task differently, her appeal submission was deprived of force for another compelling reason. Her underlying grievance was that the husband’s expenditure of the subject sum of $41,318 was given insufficient weight as a factor. However, the wife either deliberately ignored or inadvertently overlooked how money she received and used was treated in the same way: by not being taken into account when the husband sought that it be added-back. The trial judge found she spent and failed to account for about $99,000 she received in the form of accumulated long service leave and a redundancy package, which payments related to work done by her both during the marriage and after separation (at [58(n)], [58(o)], [89(c)], [90(c)]). Thus, there was obvious consistency in the trial judge’s approach to the money paid to the parties as an incident of their employment. In each instance, the trial judge did not add the expenditure back or take it into account under s 75(2)(o) of the Act.
In so far as it is relevant to this ground of appeal, the salient circumstances were: each party spent large sums of money in the period of nine years between separation and trial; the controversial sum of $41,318 was paid to the husband for work done by him; the sum of about $99,000 was also paid to the wife by her employer; consistently, neither sum was taken into account in the adjustment process; and the controversial sum of $41,318 amounted to less than 0.4 per cent of the parties’ net property. It was therefore unsurprising the trial judge exercised discretion not to take that particular expenditure into account.
The wife’s ultimate contention under this ground was simply that insufficient weight was reposed by the trial judge in the husband’s concession he spent the money, but that was only one feature of the evidence and, more importantly, it was not determinative. The trial judge was cognisant of the husband’s concession he spent the money, so the fact was not overlooked, and the submission that insufficient weight was attached to the fact was a bare assertion, not made good.
Discretionary error is not demonstrated and Ground 5 fails.

Grounds 6 & 7

At trial, the wife sought that a sum of $105,524 be notionally added-back to the parties’ property interests. The trial judge determined not to do so, which decision the wife contended was “erroneous in principle” because it was made in reliance upon material errors of fact.
In February 2008, more than 18 months after separation, the husband used $37,237 to buy shares in publicly-listed corporations. The husband said the original investment money came from his savings but the trial judge found, on the balance of probabilities, the money originated from the account he held into which the rent paid for the parties’ jointly-owned properties was deposited and so the money was jointly owned by the parties (at [83(c)(iii)]). That finding coincided with the wife’s submission, so she would regard it as correct.

The husband’s share trading activity over the next few years was successful because he generated returns, computed by the wife to total $105,524, which calculation he did not dispute. She called it “profit” but her senior counsel described it more cautiously as “proceeds” during the appeal. Irrespective, the husband conceded in cross-examination he spent all of the money generated by his share trading activity and that some of it was spent on legal fees. As a consequence, the wife contended at trial the whole of the $105,524, not merely the seed capital of $37,237 or one-half thereof, should be added back as a notional asset because the husband “pre-emptively distributed [it] to himself”.
The trial judge determined the sum of $105,524 should not be added-back or taken into account under s 75(2)(o) of the Act (at [83(c)(vii)], [83(c)(viii)]) because there was no particularisation of the proportional amount spent on legal fees and the husband did not waste the funds. Again, the trial judge mistook the wife’s argument because she did not argue for the add-back on the basis of waste, but rather because it was asserted to be his premature distribution of jointly-owned money. Nonetheless, the mistake was not material for a variety of reasons.
First and foremost, the wife’s add-back argument involved an underlying misconception. She contended she had “a legal interest” in the whole $105,524, but that was not correct and she was wrong to assume otherwise. Her error of principle is significant because it was the platform from which she asserted the trial judge’s error of principle.
The bank account from which the subject sum was withdrawn by the husband was his own, so the credit balance in the account was the amount by which the bank was indebted to only him (see Croton v The Queen (1967) 117 CLR 326 at 330-331). Even though the trial judge found the wife enjoyed a joint interest in the money deposited into the account, including the sum of $37,237 which the husband used to buy the first tranche of shares in February 2008, he was lawfully free to draw down funds from the account without having to account to the wife and she did not acquire any equitable interest in the shares he bought, or the capital gains and income they yielded.
Even if the money had been deposited into and withdrawn from their joint account the position would have been no different. The credit balance of any joint bank account is a debt owed by the bank to the account holders jointly (see Russell v Scott (1936) 55 CLR 440 at 448, 457; Fadden v Deputy Federal Commissioner of Taxation (1943) 68 CLR 76 at 82-83) and, in the absence of evidence that the joint account holders keep the account for a specific or limited purpose, each account holder can draw on the account for their own benefit and any chattel or investment purchased with those withdrawn funds belongs to the person who purchased it (see Re Bishop (dec’d); National Provincial Bank Ltd v Bishop [1965] 1 All ER 249 at 252; West v Mead [2003] NSWSC 161 at [71]-[81]; Matter of Worthbrook Pty Ltd [2017] NSWSC 1036 at [28]-[29], [34]-[35], [62]).
The wife indirectly contributed to the acquisition of the money deposited to and accumulated in the husband’s account. The use of those funds by the husband as the seed capital to acquire the shares could certainly have been taken into account as a contribution by the wife in the property adjustment process, but that was not the point of her appeal ground, though she did make an appeal submission to that effect. She only contended error in the trial judge’s decision not to add-back as notional property all of the gross income and capital gains generated by the husband’s individual post-separation share trading.
The wife contended on appeal it would have been appropriate for the trial judge to take the whole of the $105,524 into account as either her contribution or under s 75(2)(o) of the Act, but that was not her contention at trial, where, she admitted on appeal, she submitted for nothing but an add-back. Again, the inconsistent positions adopted at trial and on appeal deprived the wife’s submission of force because it amounted to an admission that various options were open to the trial judge, rather than that the one she contended at trial was the only available option.
The wife’s argument also overlooked how tax levied on the gross capital gains and income of $105,524 would reduce the value of the money in the husband’s hands. Neither party adduced any evidence about the tax levied, so an add-back of the gross sum would have been unjust. That was another consideration which would have militated against the add-back of the gross sum for which the wife contended, though this was not a factor relied upon by the trial judge.
The wife submitted the trial judge misdirected himself by expecting her to provide particulars as to how the $105,524 was spent by the husband and, specifically, what proportion of the amount was spent on legal fees, but that submission is a misunderstanding of the trial judge’s reasons.
The trial judge simply stated (at [83(c)(vii)]):
There was no particularisation of what component of expenditure [from the total sum of $105,524] had been spent on legal fees.
The statement was correct. There was no particularisation.
Implicitly, the trial judge must have contemplated the prospect of adding back the proportion of the money the husband spent on legal fees, which would have coincided with orthodox practice when the payment of legal costs can be regarded as a premature distribution of funds in which both parties have an interest (see Chorn & Hopkins at [55], [57]). However, since the evidence did not reveal the amount so spent, that option was not available. Understandably, the trial judge rejected the wife’s argument that the entire sum of $105,524 should be added back.
The wife erroneously inferred the trial judge implied she bore the legal onus to particularise how the husband expended the money. Of course, she had no such onus of proof but, more importantly, the trial judge did not say or imply she did. Neither did the husband bear any such onus, though the wife wrongly submitted he did. The parties only bore the mutual onus of giving one another full and frank disclosure of their financial circumstances, but that onus does not entail an obligation to explain each and every item of expenditure and every bank account transaction after their separation. Each was at liberty to ask the other about such expenditure and transactions, either by interrogation in advance of the trial or during cross-examination at the trial, but in many instances it would be hardly surprising if the interrogated party could not remember such historic detail. Regardless of the difficult forensic challenge it presents, if one party submits for some expenditure by the other party to be added-back as the second party’s notional asset, the first party bears an evidentiary burden of eliciting sufficient evidence to enable the contended add-back to be quantified. If that were not so, the add-back amount would be entirely arbitrary, which could never do.
In this instance, neither the husband nor the wife adduced any evidence to particularise what proportion of the $105,524 was spent on the husband’s legal fees and, in the absence of such quantification, the trial judge was not prepared to add-back an arbitrary amount on that account.
The trial judge did not misdirect himself and the asserted errors of fact were not errors of fact at all, in which event Grounds 6 and 7 fail.

Ground 9

The wife contended the trial judge erred by taking into account in the husband’s favour, under s 75(2)(o) of the Act, various sums she spent (amounting to $78,176) in determining the percentage adjustment between the parties. It was contended the trial judge failed to “have regard to the whole of the evidence” and to provide adequate reasons for that finding.
At trial, the husband contended the wife’s expenditure in the net sum of $96,376 from the parties’ partnership account should be added back as her notional asset. The trial judge found the wife satisfactorily explained her use of $18,200 by its application to the home loan account (at [88(b)], [88(d)(i)]) and so only the balance of $78,176 was taken into account, and only then under s 75(2)(o) of the Act rather than as an add-back (at [88(d)(iii)], [224(c)]).
The wife’s first complaint was the trial judge failed to have regard to the “whole of the evidence” in relation to the gross amount the husband sought to be added-back at trial, but the complaint was without merit because she failed to explain on appeal what evidence was overlooked or disregarded by the trial judge. Making a bare assertion and substantiating it are two different things. In reality, the trial judge only reached a decision with which she disagreed. The trial judge gave reasons for why he took only $78,176 rather than $96,376, which were sufficiently explanatory.
The wife’s second complaint was that some of the funds she spent were used by her for the benefit of the parties’ adult children and money similarly spent by the husband on their adult children was not treated in the same way. Inferentially, her grievance was about the want of consistency. However, the complaint was not usefully elaborated in either the written or oral submissions and therefore remains a bare contention. It was a complaint which seemingly related more to Ground 8, which the wife abandoned. The abandoned ground concerned her expenditure on the parties’ adult children, quantified at nearly $52,000, which was taken into account by the trial judge under s 75(2)(o) of the Act (at [87(d)(iv)], [87(d)(v)], [224(b)]). But, so far as Ground 9 is concerned, the trial judge did acknowledge the wife withdrew $11,200 from the parties’ partnership account and spent it on the parties’ adult children, so the expenditure of that sum was disregarded, as the husband conceded should occur (at [88(a)(iii)]). Thus, there was consistency of approach, which detracted from her complaint about their unfairly differential treatment under Ground 9.
The wife’s third complaint was that the trial judge provided “no, or no adequate, reasons” for taking her expenditure of $78,176 into account under s 75(2)(o) of the Act in the adjustment process. In submissions, that contention transformed to the trial judge’s failure to provide “discernible reasons” why he “preferred the evidence of [the husband] to that of [the wife]” by giving the husband a “further adjustment of $78,176”. The subtle change of complexion evident from the different way in which the appeal ground was pleaded and articulated revealed some uncertainty by the wife about the true nature of her complaint. Irrespective, the ground and the submission made in support of it were in error. The trial judge did give reasons for how the $78,176 was handled under s 75(2)(o), which did not result in a windfall of that amount for the husband.
The wife withdrew $107,576 from the parties’ partnership account. The trial judge found she satisfactorily explained her expenditure of some of the money ($11,200 plus $18,200), but not the balance of $78,176. Rather than adding back that net sum as her notional asset, the trial judge instead took the expenditure into account under s 75(2)(o) of the Act. In doing so, contrary to the wife’s allegation, the husband did not receive a raw adjustment of $78,176 in his favour. Rather, it was but one feature of the evidence which persuaded the trial judge to quantify the s 75(2) adjustment in the wife’s favour at 3.5 per cent, which resulted in her receipt of about $360,000 extra. The trial judge remarked the adjustment in her favour might have been “slightly higher”, but for her expenditure of about $154,000, which total amount included the subject sum of $78,176 (at [224], [225], [230]). The trial judge’s reasons therefore adequately explained the course taken, therefore Ground 9 fails.

Ground 11

This ground concerned the trial judge’s conclusion that the parties’ contribution-based entitlements should favour the husband by five per cent, which opened a 10 per cent differential between them. In oral submissions, the wife’s senior counsel described this ground as the “primary focus” of the appeal.
The trial judge concluded the parties’ respective financial and non-financial contributions up to the time of their separation in August 2006 were equal (at [108]), which finding was not challenged. However, the parties held substantially different perceptions about their respective contributions after separation, which the trial judge described as “problematic” because of the supervening events during the long lapse of time from separation until commencement of the trial in June 2015 (at [109]). Judgment was not pronounced until December 2017, following the closure of the evidence in June 2017; that is, nearly 11 years after separation. The trial judge concluded the overall contribution-based entitlements of the parties to that point in time were 55 per cent to the husband and 45 per cent to the wife, because his post-separation contributions were substantially greater than hers (at [165]).
The wife contended the trial judge erred by failing to “provide any discernible analysis” of the parties’ competing claims and giving “no, or no adequate, reasons” for the ultimate assessment of their disparate post-separation contributions, so the ground of appeal was confined to an asserted failure to properly explain the evaluation of the parties’ contributions.
While the appeal ground was directed to the asserted absence of adequate reasons, the written submissions made in support of the ground strayed from the strict confines of the ground.
The wife submitted the trial judge mistakenly overlooked a contribution made by her by failing to take into account how she permitted the husband and his new partner to occupy one of the parties’ jointly-owned properties, during which period the husband reduced the amount of the mortgage repayments. However, that was not a feature of the evidence about which she made any discrete submission at trial. In any event, the trial judge did note the husband paid almost all of the mortgage repayments in respect of the property he occupied (at [109(e)], [109(f)]) and, conversely, the wife made no mortgage repayments in respect of another one of the jointly-owned properties she occupied (at [111(d)]). Those findings were not said to be wrong and so this complaint was without merit, even if it could be considered as broadly integral to the ground of appeal.
The wife also submitted the differential assessment of the parties’ entitlements “was outside the permissible ambit of the wide exercise of discretion open to [the trial judge]”, which really amounted to an assertion of appealable error on quite different grounds: the trial judge’s exercise of discretion was unreasonable or plainly unjust (House v The King (1936) 55 CLR 499 at 504-505), the discretion was exercised wrongfully (Lovell v Lovell (1950) 81 CLR 513 at 533), or the assessment exceeded the generous ambit within which reasonable disagreement is possible and was plainly wrong (Norbis v Norbis (1986) 161 CLR 513 at 539-540 (“Norbis”)). Although this contention ventured well beyond the parameters of the stated ground of appeal, the assessment of the parties’ disparate contribution-based entitlements is readily explicable by the increase of about $1 million in the value of the husband’s superannuation interest after the parties separated. That feature of the evidence was of pre-eminent importance in the array of post-separation contributions emphasised by the parties (at [109(b)]) and, in such circumstances, the trial judge’s decision to find the husband’s contributions were greater by a modest percentage, which reflected itself as a 10 per cent differential measured in raw terms at about $1 million (at [165]), could not be criticised for falling outside the permissible ambit of wide discretion, as the wife alleged.
Accordingly, the wife was thrown back to her argument about the asserted insufficiency of reasons, which the ground of appeal reflected.
The trial judge concluded in respect of the parties’ post-separation contributions:
163. Following separation, the husband says his contribution entitlement should be assessed at 60% to the wife’s 40%.
164. While the Court accepts that each party made certain contributions which would weigh in favour of an additional entitlement in their favour, they each also utilised matrimonial funds for their own purposes, which would weigh against that positive adjustment. This is so, notwithstanding that the value of the husband’s superannuation may have increased substantially in the post separation period, given that there is no evidence as to how the accretion in value of superannuation was actually arrived at.
(Original emphasis)
In essence, the resolution of this ground of appeal hinged on the parties’ interpretations of those paragraphs, which did admit of ambiguity.
The wife contended the reasons disavowed any reason to differentiate the parties’ contributions and therefore acknowledged neither party should receive any “positive adjustment”, implying their contributions ought be assessed as equivalent, in which event the reasons were completely silent as to why the husband’s contributions were then assessed at 55 per cent in the immediately following paragraph (at [165]).
Conversely, the husband contended the reasons, when properly construed, only sought to explain why the husband’s contributions were assessed at the lower percentile of 55 per cent in lieu of the higher 60 per cent for which he contended at trial, as was discussed in the immediately preceding paragraph (at [163]). In other words, the “positive adjustment” being referred to by the trial judge (at [164]) was the higher positive adjustment for which the husband had contended and which the trial judge rejected; not a reference to his entitlement to any positive adjustment at all. The connotation placed by the husband upon the trial judge’s reasons is perfectly rational and, when construed in that way, the reasons sufficiently explain the course taken by the trial judge.
The value of the husband’s superannuation, which “increased substantially in the post separation period”, was the single feature of the evidence the trial judge referred to immediately before finding the parties’ disparate overall proportional entitlements. It was the only conceivable explanation for why the husband’s post-separation contributions were assessed as “substantially greater” than the wife’s, even though there was no evidence “as to how the accretion in value [of the husband’s superannuation interest]…was actually arrived at”.
The wife contended the trial judge “did not carry out the evaluative process” to satisfactorily explain how the parties’ respective contributions reflected in the proportional division but, as the husband submitted, the task of moving from a qualitative to quantitative assessment of the parties’ contributions is a difficult one and inevitably involves a leap from words to figures (see Mallett v Mallett (1984) 156 CLR 605 at 625; Van der Linden & Kordell [2010] FamCAFC 157 at [90]; Teal & Teal [2010] FamCAFC 120 at [36]; Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234]).
It might be trite to say so, but the sufficiency of reasons depends on the circumstances of the case. In the decision-making process there are often judgmental steps which can only be stated without elaboration. So long as the trial judge provides an explanation of the fundamental reasons which led to the ultimate conclusion there is no need to provide an extended intellectual dissertation upon the chain of reasoning to the ultimate conclusion (see Athens v Randwick City Council [2002] NSWCA 83 at [16] per Giles JA, Handley and Beazley JJA in agreement).
In this instance, the assessment of the parties’ contribution-based entitlements followed upon the trial judge’s correct identification of the parties’ arguments about their respective post-separation contributions (at [109]-[112]) and then the discussion of particular aspects of the evidence pertinent thereto (at [115], [120]-[164]), in the knowledge that each party argued their own contributions should reflect in greater entitlement. The wife argued for her greater entitlement of 55 per cent and the husband argued for his greater entitlement of 60 per cent (at [161], [163]). Contextualised in that way, the conclusion reached by the trial judge was satisfactorily explained. As the husband rhetorically asked, what else could the trial judge have said to constitute sufficient reasons? The trial judge’s reasons reveal his Honour understood the parties’ competing arguments and the relevant evidence, concluded neither party was entirely vindicated, and explained a modest differential in the husband’s favour.

During oral submissions, the wife contended the trial judge failed to properly consider mandatory relevant considerations, but that argument moved away from the ground of appeal. As the husband correctly submitted, the pleaded ground was concerned with the adequacy of reasons to expose evaluation of the parties’ competing claims about their contributions, not the failure to consider statutory factors or the evidence addressed to those factors.
Ground 11 fails.

Ground 12

The wife contended the trial judge erred by failing to “place any weight” on or “have regard” to the evidence about how the husband’s post-separation contributions were “substantially reduc[ed]” by his enjoyment of rent-free occupation of the parties’ jointly owned property.
However, during oral submissions, the wife conceded she did not believe this ground could succeed if Ground 11 fails, which we take to be tantamount to a concession of defeat so there is no need to consider it any further.

Ground 13

The wife contended the trial judge erred by failing to draw the “proper or appropriate inferences” from the husband’s failure to adduce evidence from his current wife about her financial circumstances.
The husband married his current wife in April 2013, about two years before the trial started. They had two children together, who were aged four and two years at the time of trial. The husband adduced no evidence about his current wife’s financial circumstances and he did not call her as a witness in his case.
In final written submissions at trial, the husband argued that, since his current wife did not work and he supported both her and their two young children, it was a factor which should sound in an adjustment in his favour pursuant to s 75(2)(m) of the Act. Conversely, the wife argued that the husband’s “lack of transparency and disclosure” about his current wife’s “financial position” should cause the trial judge “considerable disquiet” and, in such circumstances, it was “open” to the Court to “make a finding based on the decision in Jones v Dunkell [sic]”.
Curiously, the wife failed to identify, either:
(a)To the trial judge, what “finding” she contended was “open”; or
(b)To us on appeal (by reference to the ground of appeal), what “proper” or “appropriate” inferences should have been drawn by the trial judge.
It emerged from the oral submissions on appeal that the wife erroneously blended arguments about the husband’s alleged failure to give full and frank disclosure of financial circumstances and his failure to call available evidence from a material witness. When forced to identify the inference which allegedly should have been drawn, the senior counsel for the wife said it was the husband’s failure to make “full and frank disclosure of his finances by reference to the resources and means of his present wife”, which submission is rejected. The Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) (and the Family Law Rules 2004 (Cth) (“the Rules)) say nothing of the disclosure obligation, which is borne by parties, being extended to or projected upon their new spouses or partners. Further, the evidentiary principle in Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) concerning the unexplained failure to adduce evidence only arises when demanded by the issues joined by the parties.
Division 14.2 and Pt 24 of the FCC Rules collectively establish the parties’ mutual obligation to disclose their financial circumstances (as do Pts 12.2, 13.1, 13.2 of the Rules when they apply). Save for the provision of information about the income of other members of the parties’ households and any expenses paid on their behalf by third parties, which the parties must disclose in their prescribed Financial Statements (r 24.02 of the FCC Rules), there is no general obligation upon parties to disclose the financial circumstances of their domestic partners. The wife did not contend, either at trial or on appeal, that any interlocutory order was made expanding the husband’s general duty of disclosure under the FCC Rules (r 14.06). Consequently, the husband was under no general obligation to disclose all aspects of his current wife’s financial circumstances and the wife was wrong to express or imply the contrary at trial.
However, the husband made his current wife’s financial circumstances an issue in the proceedings when he contended for an adjustment in his favour under s 75(2) of the Act on account of his obligation to maintain his current wife and their two young children. He still bore no obligation under the FCC Rules to disclose his current wife’s financial circumstances, but he did then attract an evidentiary onus to demonstrate the extent to which she could or could not support herself or help support their children. He could only do that by adducing evidence about her financial circumstances and, most probably, directly from her. The husband’s failure to call his current wife to give evidence about her financial circumstances, without any explanation for the failure, enabled the trial judge to infer the evidence she could have given would not have assisted the husband’s case (see Jones v Dunkel at 308, 312, 320-321; Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 385). But that is all. There was no other inference available or open.
Senior counsel for the wife sought to bolster his submission that there was an obligation upon the husband to disclose the financial circumstances of his new partner by reference to Curnow v O’Sullivan (No.2) (1976) 11 ALR 465, Patterson and Patterson (1979) FLC 90-705 and F and F (1982) FLC 91-214. The first case was only cited to emphasise the remedial nature of the Act, which might be relevant if there was some doubt about its interpretation, but no such doubt attended this appeal. In the second case, in maintenance proceedings brought by a wife against her husband, the Court held the husband’s new partner’s earning capacity should be taken into account to determine whether she had the capacity to share with the husband the cost of their rent. In the third case, in maintenance proceedings brought by a wife against her husband, the Court held the financial arrangements between the wife and her new partner could be taken into account under s 75(2)(m) of the Act, given he often stayed with her but did not contribute to the costs of her household. Contrary to the proposition for which they were cited, none of the cases shed any light on whether or not an obligation of general disclosure (including by s 75(2)(m)) was cast upon the husband in these proceedings to reveal more about the financial circumstances of his cohabitation with his current wife than the issues required.
The husband declared in his Financial Statement that his current wife had no income, but he deposed in his affidavit she earned income until May 2014 and still had “her own resources”. Through the tender of documents (Exhibit V) and the husband’s cross-examination, the wife established the husband’s current wife formerly had annual taxable income of $108,050 and she had some $490,000 on term deposit at a bank, which investment would probably yield interest income. Findings to that effect were made by the trial judge (at [212]-[214]), consistently with the wife’s final submissions. The trial judge remarked upon the husband’s failure to call relevant evidence and therefore rejected, for lack of evidence, his submission for an adjustment in his favour by reason of his asserted obligation to support his current wife and their children (at [195]-[197], [216]). Thus, his Honour drew precisely the inference permitted by Jones v Dunkel, which was the only one properly available.
The wife’s submission on appeal, that the trial judge “failed to have regard to whether it was appropriate to draw an inference”, was wrong. His Honour did. Ground 13 fails.

Ground 14

Although the wife was granted leave to amend the grounds of appeal, such leave did not extend to Ground 14(c). Confined to Grounds 14(a) and 14(b), the wife contended the adjustment of 3.5 per cent determined in her favour was “erroneous in principle” for two reasons: first, his Honour misconceived the real and effective disparity between the parties’ earning capacities; and second, his Honour was mistaken as to facts when the wife’s expenditure of $78,176 was permitted to influence the quantum of the percentage adjustment.
The second argument concerned the same sum of $78,176 which was the subject of Ground 9. There, her assertions of the trial judge’s failure to take into account the whole of the evidence and to provide adequate reasons for advertence to the wife’s expenditure of that money when determining the percentage adjustment were not sustained. Nor, here, did she vindicate her assertion the trial judge relied upon findings of fact not reasonably open. She made no submission to identify the findings of fact she challenged and, in her written submissions, she simply contended the trial judge fell into appealable error “for the reasons referred to earlier” – an obvious reference to the written submissions which found no favour in relation to Ground 9 – so no more need be said.
The wife’s first argument about the trial judge’s misconception of the disparity between the parties’ earning capacities was bound up with the cross-appeal, but is capable of separate discussion.
The trial judge found the husband earned about $277,000 per annum, which comprised income of $180,000 and a tax-free pension of $97,000, but he intended to soon retire (at [182]-[184]), which would mean loss of his income but retention of his pension. The trial judge found the wife was made redundant some years before, there was little likelihood of her finding future employment, she had little current remuneration, and therefore had little or no future earning capacity (at [185]-[186], [190]). The “significant disparity” between their superannuation interests, which favoured an adjustment to the wife pursuant to s 75(2)(b) of the Act was noted (at [190]-[193]). Indeed, that was the only sub-section of s 75(2) under which the trial judge determined the wife was entitled to an adjustment.
The adjustment in the wife’s favour was fixed at 3.5 per cent, though the trial judge found it would have been “slightly higher” but for her expenditure of about $154,000, taken into account under s 75(2)(o) of the Act, which tempered the adjustment (at [224], [225], [230]).
The 3.5 per cent adjustment equated to about $360,000, but in real terms changed the parties’ respective entitlements by double that amount, because the extra $360,000 received by the wife meant $360,000 less for the husband. The adjustment was levied on both the net assets and the parties’ superannuation interests, which in aggregation were valued at nearly $10,300,000. For that purpose, the husband’s tax-free non-commutable pension was counted as property and was attributed a notional capital value of around $1,140,000. Aside from the pension, the husband had accumulated superannuation of nearly $500,000 and the wife had accumulated superannuation of just over $50,000.
Although, in retirement, the husband would continue to receive the tax-free pension (worth $97,000 per annum) and his other superannuation would then be available for use (worth around $450,000 more than the wife’s), the effect of the trial judge’s decision was to ensure the wife’s receipt of 48.5 per cent of the parties’ combined superannuation interests, which percentage computes to about $820,600. Allowing for the retention of her own superannuation interest of just over $50,000, she therefore received a capital payment of about $770,000 in satisfaction of her share of the husband’s superannuation interests. Given his other accumulated superannuation interest was worth only about $500,000, the orders necessitated that he divest assets to meet the capital adjustment to the wife. She therefore took most of her share of the property in assets to compensate for the husband’s continuing income stream.
Considered in that context, the wife’s contention the trial judge “misconceived the real and effective disparity in the present and future earning capacities of the parties” was unsubstantiated. The trial judge knew the husband contemplated imminent retirement, knew he would keep his tax-free pension, knew the wife had little or no chance of earning income from gainful employment, knew her accumulated superannuation interest was far inferior to the husband’s, and made a substantial capital adjustment in her favour on account of those circumstances. Ground 14 fails.

The cross appeal

Ground 1

The husband asserted it was “not open” for the trial judge to find the substantial disparity in the parties’ superannuation positions favoured an adjustment in the wife’s favour. He said that was because the notional capitalised value of his non-commutable pension was already counted as part of the parties’ net property to be divided between them and the wife’s entitlement to 45 per cent of the property (including the capitalised pension) had already been determined by reference to their contributions, so there was no need for any further adjustment.
The husband’s pension, which yielded him annual tax-free income of $97,000 paid monthly, could not be commuted. Nonetheless, the parties commissioned a single expert witness to express an opinion about the capitalised value of the pension. The expert opinion evidence of its capitalised value at $1,140,035 was not controversial and the trial judge acceded to the parties’ agreement the pension should be incorporated in the overall property pool at that value (at [42]).
Given the trial judge’s determination that the parties’ contributions should reflect in respective 55 and 45 per cent shares of the property, before any adjustment under s 75(2) of the Act, such raw division would have resulted in:
(a)The husband receiving about $5.66 million, which comprised the pension valued at $1.14 million, though it could never be commuted. So he would have received assets (including his second superannuation interest of about $500,000) of around $4.52 million, plus his pension.
(b)The wife receiving assets worth about $4.63 million (including her own superannuation interest of about $50,000).
Given the 3.5 per cent adjustment made in the wife’s favour, the ultimate decision resulted in:
(a)The husband receiving about $5.3 million, still incorporating his pension valued at $1.14, so his assets were reduced to about $4.16 million.
(b)The wife receiving assets of around $4.99 million.
Consequently, the wife received some $830,000 more assets than the husband ($4.99 million as against $4.16 million), but he retained his annual tax-free pension of $97,000 for the remainder of his life, noting he was aged 70 years at the time of trial.
The husband contended the trial judge was obliged, but failed, to consider the character of the parties’ superannuation interests and, in particular, how the wife would favourably receive disproportionately more cash than superannuation. Leaving to one side for the moment the argument about the obligation to do so, the trial judge did advert to the character and value of the parties’ superannuation interests. His Honour said:
190. Each party has superannuation entitlements. However, there is a significant disparity between those of the parties. ...
191. The Court must have regard to any disparity in the parties’ capital positions as a result of the contribution based assessment: Loude & Loude [2009] FamCAFC 52.
192. In considering this disparity, it is not only the question of the “property and financial resources of the parties” that must be taken into account, but the composition of that property, particularly as it includes superannuation property.
and then concluded:
193. The Court is of the view that the substantial disparity, in terms of the parties’ superannuation positions, would favour an adjustment to the wife.
Evidently, the trial judge acknowledged the disparity between the parties’ superannuation interests, the disparity between their capital positions, and the composition of their respective shares of property and superannuation. The finding as to the adjustment in the wife’s favour was premised on those considerations. All other s 75(2) factors, save for some expenditure considered under s 75(2)(o), were found to be neutral (at [193]-[230]). So, regardless of any obligation to consider those factors, the trial judge did do so, in which case the husband’s complaint could only be his Honour did not do so sufficiently.
As to the question of obligation, the husband relied upon remarks of the Full Court in Welch & Abney (2016) FLC 93-756 (“Welch”) and Surridge & Surridge (2017) FLC 93-757 (“Surridge”).
In Welch, the Full Court affirmed the need to consider the nature, form, and characteristics of superannuation interests to guide the discretionary division of the parties’ property and superannuation interests (at [58]-[60], [63], [70], [71]) but, importantly, the same Full Court in Surridge acknowledged the manner in which any non-commutable pension is treated in the property adjustment process remains a matter for the exercise of discretion (at [31]). In both cases, the Full Court was dealing with pensions which were quite unlike the pension considered in Semperton v Semperton (2012) 47 Fam LR 626 (“Semperton”) or the pension in this case. In Welch, the spouse’s receipt of the subject pension was dependent upon numerous qualifications and contingencies (at [58]), but in this instance, the husband is unconditionally entitled to receive the indexed tax-free pension for the remainder of his life. Furthermore, in Surridge, the parties agreed the pension should be treated differently and separately from their other real and personal property (at [103]), whereas in this case the parties agreed the opposite. They invited the trial judge to ascribe an agreed capitalised value to the husband’s pension, to regard it as part of their property, and to assess their contributions to it globally along with all other assets.
In this case, no splitting order was sought in relation to the husband’s pension, so it need not have been ascribed any capitalised value and treated as property (Welch at [33]-[35]; Surridge at [30]). Consequently, there was no need for the trial judge to do as the parties demanded or requested, but any deviation from that course would have necessitated his Honour warning the parties, to afford them the opportunity to be heard so as not to deprive them of procedural fairness.
The discretionary adjustment of parties’ property and superannuation interests in accordance with statutory factors cannot be fettered but, to promote consistency, guidelines may be legitimately developed to assist the exercise of such discretion (see Norbis at 519-520, 533-534, 536-539) and so the guidelines developed by Semperton, Welch, and Surridge are instructive. It is advisable to consider the nature, form, and characteristics of superannuation interests which are pertinent to the just and equitable adjustment of property, for failure to do so may result in discretionary error of the type revealed by those cases. Nonetheless, contrary to the husband’s implicit contention in the appeal, it cannot be correct that an actual or constructive failure to scrutinise the nature, form, and characteristics of superannuation interests must always manifest appealable error in the form of failure to take into account a material consideration, since the nature, form, and characteristics of superannuation interests may not be material in every case. It depends upon the circumstances of the case under consideration.
As to the question of sufficiency of consideration, in final written submissions made to the trial judge, the wife contended the significant disparity between the parties’ superannuation interests, which included the husband’s pension, justified an adjustment in her favour. He did not take issue with that proposition. As the wife correctly observed in the appeal, the husband “did not dispute, join issue, or otherwise engage” with her submissions about the effect of their superannuation interests upon the assessment of an adjustment under s 75(2) of the Act. He simply contended there were other countervailing factors to consider.

It will be remembered the husband contended under this ground of appeal it was “not open” for the trial judge to find the parties’ disparate superannuation interests warranted an adjustment in the wife’s favour. In our view, the high hurdle of that proposition cannot be surmounted. Other trial judges may have reached different conclusions about the adjustment or its quantification, but it cannot be rationally maintained the trial judge’s finding was not open. His Honour treated the husband’s pension in exactly the way the parties asked, his Honour was expressly conscious of the composition and value of their respective shares of property and superannuation, and the husband abstained from objection to the wife’s submission that their disparate superannuation interests warranted an adjustment in her favour. The question of whether the result was so unreasonable or plainly unjust to merit appellate intervention was the subject of ground 2, but ground 1 must fail.

Ground 2

The husband contended the adjustment of 3.5 per cent in the wife’s favour, assessed pursuant to s 75(2) of the Act, was “plainly wrong” and therefore the trial judge’s discretion miscarried.
The husband’s complaint about the unreasonableness of the trial judge’s determination of the s 75(2) adjustment involves, as the wife submitted, the approbation and reprobation of his Honour’s reasons. In resisting the wife’s appeal (ground 14(a)), the husband asserted the trial judge did not misconceive the real and effective disparity between the parties’ future income and earning capacities when assessing the s 75(2) adjustment but, to prosecute the cross-appeal, he asserted his Honour’s assessment of the adjustment was plainly wrong due to the substantial disparity in the parties’ superannuation interests and the mixed composition of their overall entitlements.
The husband contended he was able to consistently defend the trial judge’s s 75(2) adjustment against the wife’s appeal, in which she contended the adjustment in her favour should have been larger, but argue in the cross-appeal there should have been no s 75(2) adjustment in her favour at all. However, the inconsistency of the husband’s position was manifest from the commonality and overlap of the issues which influenced the determination of the s 75(2) adjustment: the parties’ future earning capacities (given the wife was retired and the husband asserted he probably soon would be); their present and future ability and intention to resort to their superannuation interests for income; and the proportional mix of the assets and the superannuation interests in the payment phase in their hands. We accept the wife’s submission that the trial judge’s s 75(2) assessment could not be immune to appellate challenge on the basis advanced by her in the appeal, but then vulnerable on substantially the same basis in the husband’s cross-appeal. If the quantum of the s 75(2) adjustment was defensible, then it was defensible against both the wife’s appeal that it should have been more and the husband’s cross-appeal that it should have been less.
The quantum of the s 75(2) adjustment meant the husband received some $360,000 less in alienable assets and, furthermore, his share of the property comprised a much higher proportion of superannuation (including his pension, which could not be commuted and would always only be an income stream) than the wife’s share. However, while the wife received some $830,000 more in the form of alienable assets than the husband, he retained his annual tax-free pension (then worth $97,000, but subject to indexation) for the remainder of his life. He was 70 years old, so he stood to receive that reliable income for many years to come. Analysed in that way, it is not obvious to us that the s 75(2) adjustment was so unreasonable or plainly unjust to require interference with it. We are not satisfied the finding was clearly wrong, so ground 2 also fails.

Conclusion

The appeal and cross-appeal should both be dismissed.
The wife submitted there should be no orders as to costs if the appeal and cross-appeal both failed. The husband did not object, save in one respect. He sought that the wife pay his costs thrown away in having to meet the grounds she abandoned shortly before the appeal. The wife could put no reasonable argument to refute the proposition, given the provisions of ss 117(2A)(c) and 117(2A)(e) of the Act, so the argument devolved to the quantum of the costs payable. The husband sought $6,000, whereas the wife conceded only $1,500.
We are of the view the wife should pay the husband’s costs, assessed in the sum of $3,000. The wife abandoned five of fourteen grounds of appeal and a good proportion of the written submissions filed by both parties were devoted to advancing and rebutting those abandoned grounds. Considerable time and therefore cost must have been wasted by the husband’s lawyers having to consider and respond to the abandoned grounds, even though they were not eventually argued.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Austin JJ) delivered on 6 September 2018.

Associate:

Date: 6 September 2018