Pearce & Pearce
[2016] FamCAFC 14
•11 February 2016
FAMILY COURT OF AUSTRALIA
| PEARCE & PEARCE | [2016] FamCAFC 14 |
| FAMILY LAW – APPEAL – SECTION 79A – Consent Orders – Where the trial judge found that the husband failed in his duty to make a full and frank disclosure – Where the trial judge found that had the wife been aware of the matters not disclosed, she would have made further enquiries before consenting to the orders – No error established – Appeal dismissed – Costs ordered. |
| Family Law Act 1975 (Cth) ss 79, 79A and 117 Family Law Rules 2004 (Cth) r 13.01 and r 13.04 |
| Babett & Falconer (2015) FLC 98-067 Benjamin & Bardot [2010] FamCAFC 252 Bigg v Suzi (1998) FLC 92-799 Black and Kellner (1992) FLC 92-287 Briese and Briese (1986) FLC 91-713 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Ors (2000) 203 CLR 194 Dickons & Dickons [2012] FamCAFC 154 Fields & Smith (2015) FLC 93-638 Gebert and Gebert (1990) FLC 92-137 Gronow v Gronow (1979) 144 CLR 513 Holland and Holland (1982) FLC 91-243 Limousin & Limousin (Costs) (2007) 38 FamLR 478 Lowe v Harrington (1997) FLC 92-747 Mallett v Mallett (1984) 156 CLR 605 Morrison and Morrison (1995) FLC 92-573 Oriolo and Oriolo (1985) FLC 91-653 Pelerman and Pelerman (2000) FLC 93-037 Prowse and Prowse (1995) FLC 92-557 Singerson & Joans [2014] FamCAFC 238 Stanford v Stanford (2012) 247 CLR 108 Suiker and Suiker (1993) FLC 92-436 Trask & Westlake (Costs) [2015] FamCAFC 214 |
| APPELLANT: | Mr Pearce |
| RESPONDENT: | Ms Pearce |
| FILE NUMBER: | DNC | 462 | of | 2009 |
| APPEAL NUMBER: | NA | 1 | of | 2015 |
| DATE DELIVERED: | 11 February 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy, Aldridge & Forrest JJ |
| HEARING DATE: | 6 & 7 August 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 December 2014 |
| LOWER COURT MNC: | [2014] FamCA 1120 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC with Mr Williams of Counsel |
| SOLICITOR FOR THE APPELLANT: | Barkus Doolan |
| COUNSEL FOR THE RESPONDENT: | Mr Looney QC with Ms Harding of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Withnalls Lawyers |
Orders
The appeal be dismissed.
The appellant husband pay the wife’s costs of and incidental to this appeal in an amount to be agreed in writing between the parties or, failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pearce & Pearce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 1 of 2015
File Number: DNC 462 of 2009
| Mr Pearce |
Appellant
And
| Ms Pearce |
Respondent
REASONS FOR JUDGMENT
The parties to this appeal consented to orders on 20 July 2005 which effected an alteration of their interests in property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). On 12 December 2014, Dawe J varied those orders pursuant to s 79A of the Act. The effect of the variation was to have the husband pay to the wife just under $2 million in addition to property received by her pursuant to the orders. The husband appeals her Honour’s order.
Her Honour found that the husband failed in his duty “to make a full and frank disclosure of all material facts to the other party and to the court”[1] in five specified respects and concluded (at [236]) that “[w]hen considered together these factors establish that there was significant information available to the husband which was not disclosed to the wife prior to the Consent Order being made”. No ground of appeal asserts that any error is made in finding that relevant financial information was not disclosed. Plainly, relevant information and documents were not disclosed.
[1]Family Law Rules 2004 (Cth)(“the Rules”), r 13.01 and r 13.04. See also Briese and Briese (1986) FLC 91-713, at 75,179 per Smithers J; Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287.
Her Honour found (at [237]) that had the wife been aware of the matters not disclosed, she would “… have made further enquiries before consenting to the property settlement order”. Her Honour made an additional specific finding in respect of the husband’s acquisition of a 50 per cent shareholding in a company referred to in the proceedings as “[E Pty Ltd]” that “… the wife would not have agreed to the terms of the Consent Order if she had been aware of the details of the negotiations and the agreement which was concluded on 30 June 2005”. (At [227].)
The husband makes twenty-one separate assertions of appealable error arising from the attribution of respective values to two major components of the property of the parties dealt with by the consent orders. Ground 1 with its seven sub-grounds, and grounds 2 and 3, are grouped under the heading “the retrospective value of [D] Street”. Grounds 4, 5 and 6 are grouped under the heading “the retrospective value of 50% of [E Pty Ltd]”, with ground 5 containing ten sub-grounds.
A number of additional assertions of error are grouped under the heading “miscarriage of justice”[2] and, again, are divided between errors said to pertain to D Street and to E Pty Ltd and, again, the value of each is asserted to play a role.
[2] Grounds 7 and 8, the former containing nine sub-grounds.
An additional ground (ground 9) challenges the trial judge’s “… failure to provide adequate reasons for the preference of [the wife’s] evidence …” and, finally, ground 10 – pleaded effectively in the alternative – challenges her Honour’s s 79 assessment of contributions which founds her Honour’s order for variation of the original orders.
The 2005 Consent Orders and Their Context
The parties commenced cohabitation in late 1992 and married in 1997. They have two children who were aged 15 and 14 at trial. It is uncontroversial that the parties separated prior to the making of the consent orders and reconciled subsequent to them, before separating finally about 16 or 18 months subsequent to the making of the orders. The dates on which the separations and reconciliation occurred were controversial at trial, but the controversies do not pertain directly to any issue on this appeal.
Relevant to the issues in this appeal, the consent orders:
· Provided for the wife to be paid a total sum of $185,000 in two instalments, the first of $170,000 within seven days of the orders and the balance of $15,000 12 months later;
· Provided that in exchange for that payment, the husband was to retain real property at D Street, Suburb F (“D Street”), and a property in Town T (“the Town T property”), and the wife a property at V Street, Suburb N (“ the V Street property”). Each party indemnified the other in respect of “any loss … or any mortgage” pertaining to the respective properties;
· Contained a notation that the parties agreed to values for each of the properties at, respectively, $550,000, $205,000 and $280,000;
· Provided that the husband was to retain his interest in a business EE Wholesalers Pty Ltd; and
· Contained a notation that the parties “consider [the husband’s] interests in [EE Wholesalers] Pty Ltd to be worth nil” and an additional notation that “[EE Wholesalers] Pty Ltd has not returned a profit for a number of years and is currently over $300,000 in debt”.
Significant to issues in this appeal, notations to the consent orders also record:
35.That [the husband] is engaged in negotiations to purchase a 50% share of the company [E Pty Ltd] and that in doing so:
(a)[the husband] will take on approximately $290,000 in debts;
(b)that debt will be serviced by mortgage on [D] Street;
(c)the repayments of that mortgage will be approximately $550.00 per week and will be paid by [the husband] out of his current weekly wage;
(d)[the husband] expects that his share of the business profits distributed in the future, will meet the cost of the repayments.
36.That the $15,000 payable by [the husband] to [the wife] twelve months after the date of these orders is delayed for that period of time because [the husband] expects to have a significant diminution of income over the next 12 months as a result of the purchase of a share in [E Pty Ltd].
Also significant to issues on this appeal, under the heading “Financial Resources” in the parties’ sworn joint application for consent orders filed contemporaneously with them, it is said:
[The husband] expects to acquire a 50% share of the business [E Pty Ltd] in early July 2005. The purchase price will be $200,000 and [the husband] will finance the purchase by mortgage over the [D] Street property. In addition, [the husband] will purchase a parcel of commercial land at [Suburb L] for the business at a cost of $90,000, those funds also to be acquired by mortgage over the [D] Street property.
…
[E Pty Ltd] made a profit of $50,408 in the 2004 financial year. [The husband] anticipates that distribution of profit from [E Pty Ltd] will cover his mortgage repayments but has no expectation of a significant increase in his income at least over the next few years.
The Role of The Retrospective Valuations of Property
Retrospective Valuations and Her Honour’s Ultimate Findings
(a)D Street and Other Real Property
Having made a number of findings in respect of specific issues, her Honour summarised her ultimate findings at [236] of the reasons as follows:
Conclusion
The husband failed to disclose to the wife significant information concerning the negotiations and proposals concerning the husband’s acquisition of the substantial interest in the [E Pty Ltd] business and [W Street, Suburb L] property. He also failed to disclose his shares in his other investments. He failed to disclose the representation that he had made to the bank that the [D] Street property was valued at $700,000. He did not disclose the expectation of greater income. When considered together these factors establish that there was significant information available to the husband which was not disclosed to the wife prior to the Consent Order being made. [Bold heading in original]
The findings informing what her Honour found ultimately at that paragraph make specific reference to various values.
In respect of the Town T and V Street properties, her Honour found (at [218] – [220]) that the differences in value, based on an acceptance of expert evidence as to retrospective values given about nine years later, “… would not individually be significant” and “if this were the only factor to be considered, such a variation (by a small percentage) would not necessarily establish a miscarriage of justice”.
By way of contrast, in respect of D Street, her Honour said (at [222]), “[t]he significant variation in the value of [D] Street and the husband’s previous assertion of a much greater value ($700,000 not $550,000) does need to be considered as a factor.” Earlier in the reasons (at [217]), her Honour said:
At the time of the wife’s consent to the orders prepared, the wife had not been informed, and the husband had failed to inform her or her advisers, that he had previously represented to a bank that the [D] Street property was worth $700,000. This was known to the husband. The husband maintained that the property was worth $550,000 where as its value was $660,000.
The concluding value there referred to emanates from retrospective expert opinion evidence which is the subject of the challenges embraced by ground 1. The seven sub-grounds of that ground inform the central error asserted by that ground which is that “… her Honour erred in principle in her approach to the determination of the value of [[D] Street] in June 2005”. Each of those sub-grounds and the central error to which they relate, challenge, in one way or another, the finding that D Street had a value of $660,000 at the time of the consent orders.
The finding as to that value does not, however, ground any finding of either a lack of disclosure or of a miscarriage of justice arising therefrom. No finding of that value could ground any such finding for the simple reason that there was no evidence whatsoever before her Honour that prior to or at the time of their agreement, either party had received, or was aware of, a valuation of D Street at $660,000. Nor was there evidence that either party had even estimated or suggested any such value. Her Honour’s apparent finding as to D Street having a value of $660,000 seen at [217] of the reasons (and in parenthesis at [222]) cannot have informed any finding of any lack of disclosure by the husband because there was no evidence that the husband had any documents or information that could have illuminated any such value.
There was no evidence before her Honour as to what estimates, guesses or other data may have informed each party’s agreed value of $550,000 for that property (or whether, for example, the agreed figures represented a compromise by each of their respective estimates or guesses). It was not put to the husband that the value of D Street agreed to between him and the wife, and reflected in a notation in the orders, was other than his genuine view as to the property’s value.
Nothing relevant to her Honour’s ultimate finding of miscarriage of justice can turn on the property having an asserted value of $660,000 arrived at from evidence at trial when no documents, valuations or opinions indicative of that value as at the time of the agreement or antecedent negotiations were in evidence before her Honour.
Her Honour found that there was a lack of disclosure causative of miscarriage of justice by reason of the husband’s failure to disclose a representation made by the husband to a bank in respect of the value of D Street and the application form in which that representation is contained. The form is dated 20 March 2005 and is signed by the husband. There, the husband represented that D Street had a value of $700,000.
Her Honour was plainly of the view that if that representation had been disclosed (and the application form in which it was contained) the wife would have been put on notice of the discrepancy between that representation as to value and the significantly different representation as to value made relatively contemporaneously in the consent orders. She was denied that knowledge, and the consequent opportunity to make such further or other enquiries as she might choose, as a consequence. She was also denied the opportunity to negotiate a settlement whose terms may have reflected that difference.
The impugning of “the integrity of the judicial process” which, as her Honour recognised, lies at the heart of s79A’s requisite miscarriage of justice occurred here not because the property may or may not have had a particular value, but because the wife’s consent was not a fully-informed consent. The integrity of the judicial process in respect of orders by consent demands full and frank disclosure in and about the orders and their antecedent negotiations because the integrity of that process depends upon each party giving a free and fully-informed consent to the orders.[3]
(b) The Shareholding in E Pty Ltd
[3] See, for example, Suiker and Suiker (1993) FLC 92-436, referred to by her Honour at [242]
Similar considerations to those just discussed apply to the “value” of the husband’s 50 per cent shareholding in E Pty Ltd.
Similar to the challenges centred on the value of D Street, the ten sub-grounds of ground 5 emanate from an asserted central error that “… her Honour’s conclusions as to the value of the 50% interest in [E Pty Ltd] at 30 June 2005 miscarried as to discretion, fact and principle …”. Ground 4 asserts error in her Honour admitting evidence from an accountant who valued the husband’s interest in E Pty Ltd. It is contended that the accountant lacked expertise as to remuneration and his opinion on that aspect infects, it is asserted, the entirety of his opinion evidence so as to render it inadmissible in its entirety. Additionally, ground 6 contends that her Honour erred “… in fact in concluding … that the purchase price of the interest in [E Pty Ltd] took into account the interest [the husband] had in the business because of his contribution to the development of the business and that Mr [O] gave evidence that “[the husband] built up the main side of [E Pty Ltd]”.[4]
[4] Mr O and his wife were the existing shareholders in E Pty Ltd.
It has already been seen that her Honour’s ultimate conclusion at [236], insofar as it concerns E Pty Ltd, does not, in terms, turn on the value of E Pty Ltd at all. Rather, the relevant lack of disclosure causative of a miscarriage of justice is the omission of “… significant information concerning the negotiations and proposals concerning the husband’s acquisition of the substantial interest in [E Pty Ltd]”. That conclusion is informed by earlier findings that:
223.At the time of the making of the Consent Order the husband maintained that he had no interest in any business other than the [EE Wholesalers Pty Ltd] interest. It has however been established that by the time the Consent Orders were made on 20 July 2005 the husband had completed the negotiations. The Share Sale Agreement dated 30 June 2005 gave the husband shares in [E Pty Ltd] to a value of more than $500,000 for which he was to pay $200,000. The purchase price took into account the interest the husband had in the business because of his contribution to the development of the business.
224.This is a significant factor. On its own it would be sufficient to establish the necessary grounds of a miscarriage of justice. The husband was aware of the state of the negotiations before the Consent Order was made. He was aware of the particulars of the agreements he had entered into with [Mr and Mrs O] which acknowledged that he had a substantial interest in the business.
225.The notes forming part of the Consent Order suggested that the acquisition of the share of [E Pty Ltd] would cause debt and reduce income.
226.His failure to disclose these particulars, the value of this interest and the information relating to it, establishes that the Consent Order was made by the Court without the Court being aware of the significant proposed interest of the husband in the business.
As can be seen, her Honour refers there to both a specific value of the shareholding in E Pty Ltd and to a failure to disclose “the value of this interest”. Yet, with all respect to her Honour, on the evidence before her the husband could not possibly have failed to disclose a value of $500,000 for his interest (or any other value) because there was no evidence that any such valuation existed, or that the husband was aware of any such value, when the orders were made or during the antecedent negotiations. An assessment of the asserted “value” of the interest did not arise until early 2014. Indeed, as will be seen, it did not arise until the trial was part heard.
What was not disclosed (as her Honour clearly found) was information and documents which may have provoked enquiries by the wife as to whether the picture painted in respect of E Pty Ltd in the consent orders and accompanying application was an accurate one, or whether that, at the least, further enquiry was warranted. Once again, the wife was also denied the opportunity to negotiate a settlement whose terms may have reflected what was revealed by the information and documents that were not disclosed.
Once again, it was not the value of the E Pty Ltd shareholding that informed the miscarriage of justice; it was the failure to afford the wife the same opportunity afforded to the husband to explore and seek advice with respect to what the non-disclosed documents and information revealed.
Ironically, as will shortly be seen, evidence supportive of the wife’s contention that, had she known of the relevant information and documents, she would have sought to satisfy herself that the stated purchase price bore a relationship to the value of the interest, comes from her actions during the trial. Answers to questions of the husband in cross-examination prompted those advising her to seek an adjournment for the very purpose of making those enquiries and, ultimately, seeking to obtain an expert “indicative value” of the shareholding at the time the parties’ agreement was struck.
Is It Necessary to Make Findings As To The Order The Court Would Have Made?
Senior counsel for the appellant husband, Mr Richardson SC, posits the asserted appealable errors as to the values of property arrived at by her Honour as central to a determination of miscarriage of justice because, he argues, it was not open to her Honour to arrive at a conclusion as to the materiality of the non-disclosure without assessing the worth of what the wife received by reference to the value of the property dealt with by the orders. Paragraph 37 of the appellant’s written outline of argument contends that the finding of miscarriage of justice involves “… a process of determining what order the court would have independently made as at the time of the orders under challenge on the facts as they were then known.”
In oral submissions before us, the argument was put this way:
In our submission it was incumbent upon her Honour to examine in the light of the findings that she made … assuming they were well based findings, as to the values of various items as at the time of the June 2005 settlement to conduct an examination of how that would have been divided in the event that the court had been determining the issue at that time with full knowledge of the financial circumstances of the parties. And it would only be in the event that her Honour concluded that there had been a shortcoming in what the wife received at that time that would support the conclusion of miscarriage of justice because we’re talking about a miscarriage of justice arising from a section 79 order.[5]
[5] Transcript of appeal proceedings, 6 August 2015, p 76.
Those submissions are made in support of errors related specifically to a finding of miscarriage of justice (for example, in respect of ground 8 which will later be referred to) but they also starkly illustrate the importance accorded to what are said to be the appealable errors pleaded at grounds 1 through 6, culminating in findings as to the 2005 value of D Street and the shareholding in E Pty Ltd.
We are not persuaded of the proposition that senior counsel seeks to advance.
We consider that senior counsel for the wife put it correctly when he submitted that the process contended for by the husband may be relevant but is not essential to the finding. The maintenance of the integrity of the judicial process through the measure of miscarriage of justice is not necessarily connected with a comparison of what the orders provide compared with what a party might have received from a court, had consent not been given. As will be seen, we do not consider that they are connected in this case.
In Gebert and Gebert, this Court, in the context of a s 79A application, held that “… the law fortunately still allows persons to form their own views as to the arrangement of their affairs”.[6] More recently, the High Court has held that “[i]f both parties are competent, it can still be assumed that any necessary or desirable adjustments can be made to their property interests consensually”.[7] The well-settled proposition that “… [a]greement to a consent order which may not adequately reflect a party’s entitlements under sec. 79 does not, of itself, show that there has been a miscarriage of justice”[8], derives from these precepts. Of course, “… [t]here may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice”.[9] It has been said that “[o]rdinarily, a failure to comply with that duty will amount to a miscarriage of justice”.[10] Equally, however, “[i]t is not every failure of frank and full disclosure which would justify a court in setting aside an order …”.[11]
[6] Gebert and Gebert (1990) FLC 92-137, at 77,937; cited with approval in Prowse and Prowse (1995)
FLC 92-557.
[7] Stanford v Stanford (2012) 247 CLR 108, at [44].
[8] Holland and Holland (1982) FLC 91-243, at 77,336.
[9] Ibid, at 77,341.
[10] Morrison and Morrison (1995) FLC 92-573, at 81,672.
[11] Morrison (above), citing Livesey v Jenkins [1985] 1 All ER 106, at 114. See also Prowse (above).
In the case of consent orders, the related propositions just discussed intersect at a point where the requisite miscarriage of justice derives from a party’s consent not being a “free and informed consent”;[12] where there is a failure to disclose matters relevant to the decision to enter the consent orders that are “… peculiarly within [the] knowledge”[13] of that party or omissions which knowingly engendered, or permitted, a mistaken understanding on the part of the other party.[14]
[12] See Suiker (above) and Morrison (above).
[13] Pelerman (above), at [63].
[14] See, for example, Lowe v Harrington (1997) FLC 92-747, at 84,095.
Facts and circumstances as to value might inform the application of those principles in a particular case but, equally, facts and circumstances independent of value might do so.
It is important to emphasise that the retrospective valuation of property and a comparison between the result that might reasonably have been achieved had full disclosure been made may well be relevant to the exercise of discretion required by s 79A once both a relevant ground and a miscarriage of justice is established.[15] The exercise of that discretion is not undertaken by reference to a closed set of circumstances and retrospective values of assets whose values have been included within consent orders may be one of those circumstances and, of course, all the more so in circumstances similar to those referred to in Holland referred to above. But, again, the comparison of values is but one example of a circumstance that might inform the exercise of that discretion.
[15]As to the independent role for the exercise of discretion, see Morrison (above), particularly at 81,673 and Prowse (above).
No ground of appeal pertains to the exercise of her Honour’s discretion in the sense just referred to.
Conclusion as To the Materiality of Evidence of Retrospective Values
Seen in their proper light, her Honour’s findings as to miscarriage of justice, do not depend upon any findings of value as at the date of the consent orders – whether in respect of D Street or the shareholding in E Pty Ltd.
In our view, conclusions as to value are neither crucial to the findings ultimately made as to lack of disclosure or miscarriage of justice. Neither, in our view, contrary to the submissions made on behalf of the husband, are any findings of value at the time of the orders necessary to a finding of miscarriage of justice. Thus, even if error were to be found as contended in grounds 1 to 6 inclusive, any such errors are not relevant to her Honour’s conclusion and order, nor did they have any determinative impact upon them.
Is the Finding of Miscarriage of Justice Erroneous?
Ground 8 contends that:
… her Honour erred in principle in concluding that there was a miscarriage of justice in circumstances where she failed to provide any reasons concluding what the respondent’s entitlement ought have been in the light of the facts as she had determined them to be at the date of the consent orders.
It follows from what we have earlier said that we do not accept the premise for that ground. It was in our view unnecessary for her Honour to make any finding as to “… what the [wife’s] entitlement ought have been in the light of the facts as she determined them to be at the date of the consent orders”. Because that finding was unnecessary it cannot be erroneous for her Honour to have not provided reasons in respect of it.
The first four of the nine sub-grounds of ground 7 pertain to the asserted error “[t]hat her Honour’s findings as to miscarriage of justice miscarried as a consequence of errors of fact and principle” in so far as they pertain to D Street. The remaining five sub-grounds make the same assertion in respect of E Pty Ltd.
While it is convenient to examine the arguments separately by reference to each, it must be borne in mind that her Honour’s ultimate finding expressly results from a combination of all of the established failures to disclose.
Miscarriage of Justice and D Street
The grounds directed to her Honour’s finding of miscarriage of justice in so far as they pertain to D Street are:
That her Honour’s findings as to miscarriage of justice miscarried as a consequence of errors of fact and principle as a consequence of:
7.1the implicit conclusion that where a party has disclosed the identity of a relevant item of property and an estimate of value therefore and where the other party chooses not to engage in valuations that a subsequent finding that the curial truth of the value was materially higher can support a conclusion of miscarriage of justice;
7.2the implicit conclusion that where a party has provided or adopted a different estimate as to the value of a property for different purposes, but at a time contemporaneous to the provision of a lower estimate in proceedings that this can contribute to a conclusion of miscarriage of justice;
7.3her Honour’s failure to take into account that the consent orders (exhibit 2) recorded certain of the relevant valuations as agreed facts and was executed by both parties with the benefit of advice;
7.4that the existence of a valuation of [D] Street (on an assumed “works completed” basis) commissioned by a financier was at all relevant to the fact finding process in circumstances where there was no evidence that the appellant had any knowledge of the valuation or the opinion expressed in it at any time prior to the orders being made; nor was the contrary put to him;
If the evidence before her Honour was to the effect set out in ground 7.1, the proposition for which it contends is, without more, correct. That is because of what was said in Holland earlier referred to and also because:
It is difficult to imagine any circumstances in which it would be enough to constitute a miscarriage of justice … for one party to consent to orders to establish only that he or she entered into those orders under a mistaken belief, even about a relevant matter, which was neither induced by nor known to the other party.[16]
[16] Bigg v Suzi (1998) FLC 92-799, at 84,983.
However, the ground’s premise omits the fact that was most significant to her Honour’s finding. It is true that the orders and accompanying application “disclosed the identity of a relevant item of property and an estimate of value therefore”. However, it was not the “curial truth of the value” that informed her Honour’s finding but rather the significant difference in two relatively contemporaneous but significantly different representations as to value, each declared solemnly by the husband for two different purposes without disclosure of that fact to the wife. The wife was denied the opportunity of enquiry (and inquiry) in respect of that significant difference and she was also denied the opportunity for it to have made a difference to the terms of any agreement reached with the husband.
The premise for each of grounds 7.2 and 7.3 should be rejected on the same basis; each ignores the fact that the “different estimate” was not disclosed and it plainly should have been.
In respect of ground 7.4, it will have been seen that, to the extent that her Honour made any specific finding as to the value of D Street, it was that it was valued at $660,000, not $700,000. What we have earlier said on that issue pertains.
The finding by her Honour that it was the husband who made the representation to the bank involves an implicit rejection of his evidence that it was his finance broker, Mr Q, who inserted the $700,000 figure into the application form subsequent to the husband signing it. No ground of appeal specifically challenges that (implicit) finding. We agree with the submissions by Mr Looney QC on behalf of the wife that the husband’s evidence in that respect does not stand scrutiny when regard is had to the evidence of Mr Q,[17] the chronology of relevant events and the exhibits referenced in paragraphs 23 and 25 of Mr Q’s affidavit.
[17] Transcript of appeal proceedings, 6 August 2015, pp 97-8.
The challenge to her Honour’s findings as to miscarriage of justice in so far as they relate to D Street should be rejected.
Miscarriage of Justice and the 50 per cent shareholding in E Pty Ltd
Findings and Asserted Errors
In addition to the findings in respect of E Pty Ltd at [223] - [227] of the reasons earlier quoted, her Honour also found in respect of the husband’s income deriving from the business that:
231.The other significant factor in relation to the information provided to the wife upon which the application for Consent Order was based was the reference to the husband’s expected income. In those documents it was maintained that the husband had no expectation of a significant increase in his income over the next few years, whereas the information established that the arrangements with [Mr and Mrs O] were clearly based on an expectation by the husband that his income would be significantly greater following upon the arrangements made in the documents as a result of negotiations prior to the application for Consent Order and the agreements reached on 30 June 2005.
232.The Court received evidence setting out the earnings of [E Pty Ltd] for the seven months ended 31 January 2005 at $757,144 and the net profit before tax and current earnings for [E Pty Ltd] for the eleven months ended 30 May 2005 was in excess of $623,000.
The grounds directed to her Honour’s finding of miscarriage of justice in so far as they pertain to the 50 per cent shareholding in E Pty Ltd are:
That her Honour’s findings as to miscarriage of justice miscarried as a consequence of errors of fact and principle as a consequence of:
…
7.5that her Honour failed to take into account in relation to the [E Pty Ltd] transaction that:
7.5.1the price had been negotiated since 2004 between two parties whose interests were at arm’s length;
7.5.2the respondent had early knowledge of the negotiation and the substance of the transaction was disclosed in the application for consent orders;
7.5.3her Honour wrongly equated accounting profits of [E Pty Ltd] with income of the appellant (Judgment pa 231 and 232);
7.5.4it was not suggested that the appellant in truth knew that he was acquiring an interest in [E Pty Ltd] which was far more valuable than the purchase price he was paying;
7.6that her Honour took into account irrelevant facts namely (pa 223) that by the time the consent orders were made the appellant had entered into a contract for purchase of [E Pty Ltd] shares when the material aspects of the transaction had been disclosed in the application for consent orders and the delay had simply permitted that transaction to progress on the path anticipated;
7.7that her Honour took into account irrelevant facts (pa 228) in that the contract for purchase of the [W Street] property had been foreshadowed in the application for consent orders and during the delay in having the orders made had been entered into and further there was no material relevance in the shift of price from $90,000 to $130,000 (Judgment pa 213) when in each instance the cost was to be funded by borrowing;
7.8her Honour failed to make any relevant findings in relation to the issues she described as assertions and allegations at pa 218 and 219;
7.9her Honour erred in fact in concluding (Judgment pa 230) that the appellant held an interest in other investment of not less than $40,000 and alternately failed to give adequate reasons for the finding.
As has been seen, when her Honour turned to her ultimate conclusions at [236], her Honour found that:
… [t]he husband failed to disclose to the wife significant information concerning the negotiations and proposals concerning the husband’s acquisition of the substantial interest in the [E Pty Ltd] business and [its associated business premises, [W Street, Suburb L]] … He did not disclose the expectation of greater income …
Evidence As to the Husband’s Acquisition of the Shareholding
The husband commenced working for the business in late 2003. By early 2004, it had been determined that he would join the business. For reasons associated with an existing restraint of trade applicable to the husband, it was initially suggested that the proposed 50 per cent share of the E Pty Ltd business would be owned by the wife. That particular transaction did not proceed but it is clear that negotiations in respect of the acquisition of a 50 per cent share of the business were well under way by early 2004. Those discussions commenced within a matter of months of the husband joining that business. Notwithstanding the fact that the wife was to be the owner of the shares at that time, it is clear on the evidence that the discussions between Mr O on behalf of E Pty Ltd and the husband did not involve the wife.
In her affidavit of evidence in chief, the wife deposed:
46.I was aware from late 2004 and early 2005 that [the husband] intended to buy into [E Pty Ltd]. I had no knowledge and at no time was there a discussion between [the husband] and me about how much it was to cost him to buy an interest, or the purchase price for the business premises. During the discussions we had, [the husband] told me he had lost his money from [EE Wholesalers Pty Ltd] and it had big debts. I was aware from 2004 that the business had not been going well financially and [the husband] had changed employment for a higher income. [The husband] told me he was limited in what he could borrow to pay me and still be able to buy into [E Pty Ltd]. He told me he needed [[D] Street] to buy the interest in [E Pty Ltd] …
The wife signed the consent orders initially on 17 June 2005. At that time the parties were separated but living under the one roof. The signed orders, and the parties’ joint application to have them made by the court, were filed on 20 June. A requisition issued from the court on 30 June 2005 in respect of them (relating to the absence of timeframe for the transfer of property) and the orders were re-signed by each of the parties on 8 July 2005. The orders were made by the court on 20 July 2005.
The wife deposed in her affidavit of evidence in chief that when she attended her solicitors to sign the consent orders on 17 June 2005, she:
50.… became aware of the details at item 55 of the cost to buy the 50% share in [E Pty Ltd] and the cost to buy the 50% interest in [W Street, Suburb L] [Item 55 refers to amounts of $200,000 and $90,000 respectively].
51.Item 55 [quoted earlier in these reasons] reflected my understanding that [the husband] owned a share in [EE Wholesalers Pty Ltd] which was not worth anything as he had only received his salary from it and it was not profitable. This was consistent with the notations at order 34 of the consent orders
What is contained at item 55 of the application for consent orders can be seen to be consistent with what the wife deposes in her affidavit. The application discloses that the $200,000 purchase price of the husband’s 50 per cent shareholding in E Pty Ltd would be financed and secured by mortgage and that the associated business premises at W Street, Suburb L would also be financed and secured by way of mortgage. It also discloses that the husband would be required to meet mortgage payments “out of his current gross weekly wage” and it is there said that “he expects those repayments to be approximately $550 per week, thus reducing his earnings at item 27 to $1623 per week”. The latter income would have seen the husband’s “gross weekly income” (disclosed at item 27 of the parties joint application) to be approximately the same as that of the wife.
The notations within the orders and joint application about the profit made by the company distribution of profit and “no expectation of significant increase in his income, at least over the next few years” are broadly consistent with a relatively difficult financial situation which, in turn, is consistent with the picture presented by the wife in her affidavit as to her understanding of the husband’s position and that of the business. Plainly, those considerations formed part of the bases upon which the wife agreed to the orders.
At the time of the discussions in early 2004, the books of account for E Pty Ltd revealed that it had returned a profit of $55,306 for the 2003 taxation year and $50,508 for the 2004 taxation year. Financial results for the business to January 2005 revealed revenue of $757,143. The husband received that information in February 2005 and provided it to his then accountant, Mr BC. The books of account for the company revealed results to May 2005 of $623,250. Those results were provided to the husband’s accountant on 29 June 2005.
The trial before her Honour was heard over 16 days in four parts between April 2013 and January 2014. The third of those parts commenced on 1 October 2013. On 2 October 2013, the husband gave evidence in cross-examination pertaining to the timing and terms of the acquisition of his interest in E Pty Ltd. That evidence prompted those advising the wife to seek an adjournment based on their concern that the evidence suggested (at least as they perceived it) that the husband may have paid less than full value for the acquisition of his interest in E Pty Ltd.
By that time, neither any documents evidencing the sale, including for example the shareholders agreement, nor any profit and loss statements or balance sheets for the company, had been produced to the wife.
The wife’s application for adjournment was successful. During that adjournment of the trial, those advising the wife instructed an accountant, Mr H, to provide “an indicative valuation” of the husband’s shareholding as at the date of the consent orders. Mr H’s report was prepared on 21 November 2013. Also during that adjournment, those advising the wife issued a subpoena to produce documents to the husband’s accountant, Mr BC. The subpoena was returnable on 11 December 2013 but no documents having been produced, it was stood over to the resumption of the part-heard trial on 13 January 2014.
The husband gave evidence that he obtained documents pertaining to E Pty Ltd prepared by his accountant sometime between 3 October 2013 and 21 December 2013. On 21 December 2013, those advising the husband instructed an accountant, Mr A, to prepare a report which was, essentially, a critique of Mr H’s report. On 2 January 2014, Mr A received documents prepared by the husband’s accountant relating to E Pty Ltd.
In the intervening time, the wife’s partner, Ms JJ, who is herself an accountant, sent an email to Mr BC’s office. That email was sent on 17 December 2013. It is plain that at that time, Ms JJ had reference to Mr H’s report and, importantly, also to the documents from the husband’s accountant. The husband had access to those documents before they were returned to the court by Mr BC’s office.
Mr A’s report was provided on 9 January 2014. His report lists his sources of information, included in which were documents provided by Mr BC’s office on “2 January 2013” (plainly a typographical error, the reference should be to 2014). Those documents included one headed, “balance sheet [E Pty Ltd] January 2005” and noted that “the profit and loss account to that date is not provided”. The documents included, additionally, a “document entitled “Full balance sheet as at January 2005”, “valuation at 31 January 2005” and “valuation May 2005” together with a “facsimile letter” from Mrs O to Mr BC “attaching May 2005 Management Accounts for [E Pty Ltd]”.
Prepared from those and other documents, Mr A’s report included a schedule in which was shown “retained profits” for E Pty Ltd for the 2003, 2004 and 2005 years of, respectively, $79,856, $98,265 and $321,401.
The documents produced on subpoena from Mr BC became Exhibit 44 in the proceedings. They included, among other documents, a facsimile from the husband to Mr BC enclosing a balance sheet for E Pty Ltd “as at January 2005” which showed current earnings of some $757,000 and, an analysis of those figures done, apparently, by Mr BC at about that time. Importantly, the husband accepted that he had provided the figures to Mr BC in February 2005 and had discussions with Mr BC about them.[18]
[18] Transcript of proceedings, 16 January 2014, pp 308-9.
On the resumption of the part-heard trial before her Honour on 13 January, the wife was given leave to rely upon an affidavit sworn that day. There the wife deposed to the fact that the documents just referred to were not disclosed to her until 10 January 2014.
Much of the evidence and figures underlying opinions expressed by Mr H and Mr A were the subject of significant scrutiny and debate before her Honour. During the course of part of that debate, then senior counsel for the husband contended that the evidence of Mr H should not be admitted. Her Honour remarked that the court would then be “left with the evidence of [the husband]” as to the value of the husband’s interest in E Pty Ltd as at 30 June 2005. The husband’s then senior counsel indicated that the husband had “obtained the evaluation from [his accountant] which is one of the exhibits he was cross-examined on, where he relied upon those figures for a determination of the interest he was acquiring”.[19] As has been seen, in February 2005 and later in June 2005, documents pertaining to the revenue and profits of E Pty Ltd were provided by the husband to Mr BC but not to the wife.
[19] Transcript of proceedings, 20 January 2014, p 497.
Thus, the husband received advice from Mr BC based on those documents and information which, as his then senior counsel submitted, he “relied upon” so as to reach a conclusion as to “the interest he was acquiring”. By reason of the husband not disclosing to the wife those same documents and that same information, the wife had no such opportunity.
In respect of the documents from Mr BC comprising Exhibit 44, her Honour found:
135.The husband was then cross-examined about Exhibit 44. His answers in relation to that cross-examination were vague as to whether he had received it and discussed it before he signed the contract for the acquisition of the [E Pty Ltd] shares. During cross-examination he maintained that he did not remember whether he saw the information before he paid the deposit. He confirmed that the Share Sale Agreement and the Shareholders’ Agreement were both dated 30 June 2005 and that the other parties had signed it at that time.
…
140.When cross-examined about a document which related to profits to January 2005 the husband indicated that he was aware of the document but had not disclosed it to the Court. He disagreed that he expected a significant increase in income, but was unable to explain why. The notes in the Consent Orders referred to an expectation of a significant diminution of income. He said “No, there is a mistake”. He confirmed he expected more income not significant diminution of income, but maintained that it was not significantly more income. [bold emphasis in original]
Conclusions as to Miscarriage of Justice and E Pty Ltd
Similar to the arguments in respect of D Street, the grounds posit what was disclosed in the consent orders and application as material to the ultimate decision about miscarriage of justice but ignore the essential mischief to which the duty of disclosure is directed. The failure by the husband to disclose information and documents prevented the wife from herself deciding the materiality of what each might contain and denied her the opportunity to make such enquiries as she might choose so as to render her consent to the orders a fully informed consent.
There appears to have been no evidence before her Honour as to any documents or information that had been disclosed in respect of the acquisition by the husband of the shareholding in E Pty Ltd save for that which was contained in the consent orders and accompanying application. A comparison by the wife of the information disclosed in the consent orders and application with the information contained in undisclosed documents relating to the transaction passing between the husband and the vendor shareholders, and the husband and his accountant was plainly directly relevant to informing the wife’s agreement and the orders reflecting it. The denial to the wife of the opportunity to pursue those enquiries, and thus the opportunity to properly inform her consent, is the foundation for her Honour’s conclusion as to miscarriage of justice in respect of that particular failure of disclosure.
As we have already said, we can see no error of principle in concluding that, of itself, this is sufficient to ground a finding that “the integrity of the judicial process” has been impugned. It has been impugned because the making of consent orders assumes that the consent given by the parties to them is not only freely given, but also fully informed.
Once that is understood as the basis for her Honour’s ultimate finding as to miscarriage of justice, the matters referred to in ground 7.5 can be seen as irrelevant to the finding. Similar to the arguments in respect of D Street, the “value” of the shareholding is assumed by the husband’s arguments to have a role in the determination of miscarriage of justice which it does not in fact have. An example is the assertion in ground 7.5.4. Her Honour’s finding is directed to the mischief of failing to disclose information that may or may not have impacted upon the value and purchase price, but which, as her Honour found, certainly did have an impact upon the wife’s consent not being a fully informed consent.
Those same considerations apply to the evidence and debate that surrounded what was described before us as “the spike in profits” in E Pty Ltd evident from the company’s 2005 figures.
The debate centred around the maintainability of such a profit level which, in turn, was connected with suggestions in the evidence that the revenue and profit could be explained by a large “one-off” contract that was unlikely to be repeated. Before us, counsel for the wife argued against the acceptance of any such contention (and sought to point out that, in any event, that explanation was raised only during cross-examination of Mr O and had not earlier been deposed to by the husband). But, again, that issue is, in truth also related to the denial of opportunity afforded to the wife for her consent to be fully informed.
The “spike” in revenue (or profit) may or may not have been referable to a “one-off”, may or may not have been maintainable and may or may not have been dealt with in a correct or erroneous way if the value of the shareholding in E Pty Ltd was directly in issue. But it was not. The impugning of the integrity of the judicial process occurred because the husband was able to make such enquiries and seek such advice as he might choose armed with the relevant documents and information, but his failure to disclose the relevant documents and information precluded the wife’s consent being informed by any such enquiries and advice that she might have received had those documents and that information been disclosed to her.
Those same issues are directly relevant to the separate issue of the husband’s income which, in ground 7.5.3, is said to be the subject of an error which equates the profits of E Pty Ltd with income of the husband.
Upon acquisition of his shareholding, the husband was entitled to 50 per cent of the profits. He had made representations in the consent orders and the joint application as to the expected future profitability of that business. Those representations are entirely consistent with 2003 and 2004 profit figures, but not with what, prima facie, is revealed by 2005 year-to-date figures. If the husband’s income was to be derived from profits (together, of course, with any such director’s or manager’s remuneration as he might have been paid) and there was a significant increase in revenue and profits in the 2005 year (as plainly there was), the wife ought to have been afforded the opportunity to consider, and take advice on, what that might mean for the husband’s representations of his future income and, more broadly, for the orders agreed to.
Ground 7.6 assumes that the only material “aspects of the transaction” were those which had been disclosed in the application for the consent orders. Manifestly, that is not so. Indeed, the actions by those advising the wife in seeking to make further enquiries (and to seek an “indicative valuation”) lend considerable weight to the assertion by the wife ultimately accepted by her Honour, that she would not have agreed to the orders without those further inquiries had the relevant documents and information been disclosed to her as it plainly should have been.
Ground 7.7 relates specifically to W Street, Suburb L. We agree with the submission made on behalf of the wife in the written outline of argument filed on her behalf:
38.As to ground 7.7, the fact of an increase in the purchase price [of [W Street, Suburb L]] by $40,000 for the purchase of the [W Street, Suburb L] property was not irrelevant notwithstanding that the purchase price was to be funded by borrowings. In circumstances where the consent orders stated that the husband would be taking on debt of $290,000 (as opposed to $330,000) and provided for a delay of twelve months in the payment of $15,000 to the wife that the husband was in fact going to pay an additional $40,000 suggested he had a greater capacity to meet borrowings than that which had been disclosed.
(Footnote omitted)
Ground 7.8 relates specifically to what her Honour found at [218] and [219] of the reasons:
218.Similar factors relate to the disputed values of the other properties. The value of the [H Drive, Town T] property was claimed to be $280,000, but it is now asserted that it was at that time $320,000.
219.The value of the [V Street] property retained by the wife was considered at $205,000 for the purposes of the making of the Consent Orders, however it is now alleged its true value was at the time $180,000.
Those arguments in grounds 7.7 and 7.8 ignore what her Honour said at [220] that “such variations in the value … would not individually be significant” and at [221] where her Honour said that “if this were the only factor to be considered, such a variation (by small percentage) would not necessarily establish a miscarriage of justice”. The insignificance of those considerations to her Honour’s ultimate decision can be seen by reference to the summary of her Honour’s ultimate conclusions at [236] which makes no reference to that issue or those properties.
Ground 7.9 refers specifically to [230] of the reasons which is in these terms:
Similarly, the evidence establishes that the husband had an interest in other investments of not less than $40,000.
Counsel for the wife concedes that her Honour’s reasons for the finding were inadequate. It is uncontroversial that there was an evidentiary basis for the finding; it was declared as such in the husband’s application for finance to the bank earlier referred to. Counsel for the husband properly concedes that this issue was “… clearly not one of the principal matters upon which [her Honour’s] conclusions are based”.[20] Our earlier comments as to the relevance of matters which informed her Honour’s ultimate conclusion as to miscarriage of justice pertain. Plainly, this finding had no such role.
[20] Appellant’s written summary of argument, at paragraph 34.
The Credit Challenge
Under the heading, “general credit finding”, ground 9 asserts that her Honour failed to provide adequate reasons for preferring the wife’s evidence over that of the husband.
In the written summary of argument filed on behalf of the husband, a number of examples of findings adverse to the wife are referred to, some at least of which are asserted to be a lack of reliability on important matters. The argument concludes “[i]n the light of these matters her Honour’s reasons do not provide an understanding of how she was able to bestow confidence in the evidence of the [wife] such as to support the preference”.[21]
[21] Appellant’s written summary of argument, at paragraph 39.
The specific aspects of the wife’s evidence referred to in the husband’s argument were not determinative of her Honour’s ultimate preference for the reliability of the wife’s evidence nor is there anything about that evidence which would render it necessarily so. The wife’s evidence essential to the ultimate findings made by her Honour, including for example (at [56] – [58]) that she was not shown the share sales agreement or the shareholders agreement, or 2005 figures in respect of E Pty Ltd until January 2014 was accepted by her Honour and, as we have earlier sought to explain, was central to her Honour’s determination and order.
Her Honour’s discussion of the evidence of each of the husband and wife was extensive and included reference to the evidence of each which her Honour found was unreliable or, in some cases, lacked veracity. The findings made in respect of the husband’s evidence about matters crucial to her Honour’s determination contained at [135] and [140] of the reasons have already been referred to.
We are not persuaded of any inadequacy in her Honour’s reasons. Her Honour’s ultimate conclusion about the reliability of the wife’s evidence being preferred over that of the husband emanates from a series of individual findings made about the evidence of each which were well open to her and her impression of the two witnesses. Her Honour’s reasons are adequate to explain her general conclusion.
Assessment of Contributions and Variation of The Order
The Contributions Assessment
The challenge to the order made by her Honour consequent upon finding that the wife’s s 79A claim was established is based solely on her Honour’s assessment of the contributions of the parties.
It is contended on behalf of the husband that her Honour’s conclusion that the parties’ contributions as at the date of final separation should be assessed as equal is “… contrary to any reasonable assessment of the evidence particularly in light of the finding at [250] …”.
Paragraph 250 of the reasons needs to be seen in the context of the paragraph which precedes it:
249.The Court takes into account that at the time of the cohabitation of the parties commenced the husband already owned the [Town T] property which he had purchased in January 1992 for $30,500. The Court accepts that the property was worth approximately $37,000 by the time the parties commenced residing together.
250.This is a substantial asset at the commencement of the relationship of the parties and should be taken into account as a contribution by the husband.
As is clear from her Honour’s findings, that specific contribution was taken into account and given weight. As is equally clear from the balance of her Honour’s findings, that finding was not determinative of the result; it was but one of a number of findings to which weight was given in arriving at the relevant exercise of discretion.
In that respect, the High Court said in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Ors:
“Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal.[22]
[22] (2000) 203 CLR 194, at 204-5, per Gleeson CJ, Gaudron and Hayne JJ.
Plainly Wrong and Manifestly Unjust?
A second and related challenge to her Honour’s assessment of contributions is that her “… conclusion as to the evaluation of contributions as at the date of hearing and thus her order, were plainly wrong and manifestly unjust”. No specific discretionary error attends the challenge.
That challenge faces the same hurdle as that to which reference has just been made. After referring to a number of High Court authorities relevant to the exercise of the relevant discretion – a discretion that the High Court has called “very wide”[23] – this Court said in Babett & Falconer:[24]
37.While it can be contemplated that assessments of contributions pursuant to s 79 might be judged erroneous by reason of fitting the description “unreasonable” or “plainly unjust”, it is a description that begs a foundation for this Court doing other than substituting its own discretionary conclusion for that of the trial Judge. In this, as in so many like cases, the central contention is that error is established by the result being “so outside” something that is not only unidentified but is not referenced to any foundation save for that assertion.
38.In those circumstances, the submission is no more or less than a submission that this Court would reach a different conclusion to that of the trial Judge. As Barwick CJ said in Sharman v Evans (1976-1977) 138 CLR 563, 565:
... the function of a court of appeal, in my opinion, is not to offer what in connexion with another discipline would be called “a second opinion”. Such a court is strictly confined to the remedy of error in the trial or in the assessment of the trial Judge. It cannot be too strongly said that a mere difference of opinion ... does not indicate error on the part of the trial Judge.
(Emphasis in original)
[23] Mallett v Mallett (1984) 156 CLR 605, 608.
[24](2015) FLC 98-067, having referred to Mallett (above); Gronow v Gronow (1979) 144 CLR 513, 519; and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (above).
While, in accordance with submissions made to her, it was convenient enough for her Honour to assess contributions by reference to two distinct periods (pre and post-separation) and while doing so can of course seek to distinguish particular types of contributions, or the varying extent of contributions, nevertheless:
… the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weight all of the contributions of all types prescribed by s 79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period.[25]
[25]Fields & Smith (2015) FLC 93-638, at [168] (quoted in the wife’s written summary of argument). See to the same effect earlier statements in Benjamin & Bardot [2010] FamCAFC 252, at [62]; Dickons & Dickons [2012] FamCAFC 154, at [19] – [22]; Singerson & Joans [2014] FamCAFC 238, at [96].
Despite delineating between the pre and post-separation periods, it is plain from a reading of the whole of her Honour’s reasons that she did in fact assess contributions over the whole of the period. Her Honour concluded:
267. Taking into account all of the necessary factors the Court is satisfied that the contributions of the parties, both as to financial and non-financial matters, should be considered on the basis of 75 per cent by the husband and 25 per cent by the wife.
The ground and argument agitated on behalf of the husband does not allude to any specific error in the exercise of her Honour’s discretion. The assertion of error is, we think, founded on little more than the assertion that one or more of us may have reached a conclusion different to her Honour. That does not demonstrate that her Honour’s assessment was erroneous.[26]
[26] See, for example, Gronow v Gronow (above), at 520.
The husband’s challenge to the assessment of contributions fails.
Conclusions
The appeal should be dismissed.
Costs
The husband’s appeal has been “wholly unsuccessful” within the meaning of s 117(2A)(e) of the Act. This Court has said that:
While costs do not ‘follow the event’ any more on an appeal than they do in any other proceedings (s 117(1)), it is often said that a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the ‘fruits of their judgment’, can be of great significance”.[27]
[27]Trask & Westlake (Costs) [2015] FamCAFC 214, at [4]. See also Limousin & Limousin (Costs) (2007) 38 FamLR 478 at [60].
Perhaps with those considerations in mind, and the other considerations relevant pursuant to s 117(2A) including, for example, the financial circumstances of the parties, Mr Richardson SC properly conceded considerable difficulty in resisting an order for costs being made against the unsuccessful husband.
It is appropriate that the husband pay the wife’s costs of and incidental to this appeal in an amount to be agreed in writing between the parties or, failing agreement, as assessed.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Aldridge and Forrest JJ) delivered on 11 February 2016.
Associate:
Date: 11 February 2016
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