RSB & TMB

[2005] FamCA 49

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA 43 of 2004

(TVM2072 OF 2003)

BETWEEN:
RSB
Appellant Husband

AND:
TMB
Respondent Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 31 January 2005

Date of Judgment: 15 February 2005

Appearances:  Mr Galloway of Counsel, instructed by John Ryan &
  Company, Solicitors appeared on behalf of the Appellant
  Husband

Mr Fellows of Counsel, instructed by Ruddy, Tomlins &
Baxter, Solicitors appeared on behalf of the Respondent
Wife

Name of Appeal	RSB and TMB
Appeal Number	NA43 of 2004
Date of Appeal Hearing	31 January 2005
Date of Judgment	15 February 2005
Coram	Warnick J

Catchwords: APPEAL FROM FEDERAL MAGISTRATES COURT – PROPERTY SETTLEMENT – s75(2) FACTORS - Magistrate allowed a 35% adjustment in favour of the wife on account of s75(2) factors – Magistrate found that the husband had a significant earning capacity - Absence of more specific findings by the Magistrate of the husband’s earning capacity – Absence of specific findings had the consequential effect of it not being possible to form a view on the amount of child support the husband ought to have been contributing or be expected to contribute in the future – Findings by Federal Magistrate that obligations for child support would fall on wife, but that wife had avenues of redress were ambiguous – CONTRIBUTIONS – The Magistrate found that there had been a significant increase in the value of the former matrimonial home due to, among other reasons, the wife’s proper maintenance of the property – Submitted by the appellant, and not suggested otherwise by the respondent, that there was no evidence to suggest that proper maintenance of the property by the wife had increased its value – Erroneous finding of fact by the Magistrate

Appeal Allowed. Orders of Federal Magistrate Coker set aside. Application of Wife remitted to the Federal Magistrates Court for hearing by a Federal Magistrate other than Federal Magistrate Coker. Parties to make written submissions on costs.

RSB appeals against orders made by Federal Magistrate Coker on 18 June 2004, in respect of alteration of property interests upon the breakdown of his marriage with TMB.
The net property of the parties was modest, at $289,000.00 approximately. The parties’ child, J, nearly eight years of age at trial, lived primarily with the wife.
The learned Magistrate found that the property of the parties should be divided so that the wife received 80% of it. The orders sought by the husband upon a re-exercise of discretion in the event that the appeal was allowed, were on the basis of an approximately equal division of the net assets.
The Amended Notice of Appeal contained eight grounds. Significant arguments in support of those grounds were that the learned Federal Magistrate had failed to give proper weight to the contribution by the husband of the proceeds of a personal injuries claim in the amount of $114,000.00; and that the learned Magistrate improperly took into account a finding that the husband was likely to “…evade his obligations and responsibilities…” in respect of child support.
Before dealing with the grounds of appeal in detail, I will summarise the reasons and background facts as found by the trial Judge and, after discussing the grounds and the principles applicable to this appeal, move to a conclusion including, if the appeal is allowed, the question of a re-exercise of discretion or remission for rehearing.

The reasons of the Federal Magistrate and the background facts as found by him

Cohabitation had commenced in about December of 1992. The parties were married on 30 January 1993 and finally separated on 20 May 2000. The child of the marriage, J, was born on 5 August 1996.
Consent orders were made on 16 July 2001, which provided for the child to reside with the mother and for the father to have regular contact on weekends and school holidays.
The wife was 34 years old at trial. After separation, she had commenced work as a pharmacy assistant.
The husband was 41 years of age at trial and was a painter operating his own business.
The learned Magistrate commenced his reasons by referring to the orders sought by each party. He recorded that the wife sought that the former matrimonial home be transferred to her, in return for a payment by her to the husband of $30,000.00. She proposed refinancing of the liability secured against the property, so that she thereafter had sole responsibility for that debt. She further proposed the husband retain a painting business previously operated in partnership between the husband and the wife.
The husband sought a transfer of the former matrimonial home to him, on the basis that he take over the liability secured against it, and he pay the wife $40,000.00.
The mortgage over the former matrimonial home approximated $49,000.00 at trial.
The learned Magistrate then discussed witnesses (other than the parties) called in each party’s case. He found witnesses of the wife to be “honest, believable witnesses and witnesses to whom significant reliance could be given”. On the other hand, he expressed some qualifications about the evidence called on behalf of the husband.
His Honour recorded that the wife was questioned at length in relation to issues of domestic violence within the relationship among other aspects, and said:
“58. On all counts she came across as both a reliable and a truthful witness.…”
Further, as to the issue of domestic violence, his Honour recorded that the husband had made a concession “…that he was a man, on occasion, prone to temper and outburst”. He recorded:
“62. …The observations of the wife were clear, as to the husband’s temper and the exchanges, between them.”
His Honour found:
“63. The husband was not necessarily, I would think, a person prone to violence, on all occasions, but it is clear from the evidence that has been given, and the acknowledgment made by the husband, that there were occasions where there were violent exchanges, of a physical nature, between he and the wife, as well as between the husband and other persons and quite clearly there were fiery exchanges of a verbal nature between the husband and the wife.…
64.    …The wife says, that part of the controlling or manipulative nature of the husband, arose from his control of the financial circumstances of the parties.…
it became abundantly clear, as cross-examination proceeded, that the wife had been controlled in relation to the use of that facility.…
67.    …It was clear that there were controls over the wife, in relation to expenditure.…
68.    The wife’s evidence in relation to such issues was wholly believable. She gave evidence of verbal exchanges between herself and the husband, as a result of her purchase of clothing or household items. The wife says that the husband was manipulative, that he was controlling and he was intimidating.…I accept the wife’s evidence in relation to those issues on each count.
69.    As I say, the wife impressed me enormously as a person who had, through considerable adversity, contributed significantly in relation to the operation of the business …”
The trial Magistrate said of the husband that he was most unimpressed with him and “…found him generally to be a dishonest and untruthful witness.”. The Federal Magistrate also said that:
“70. …Most significant of all he was a witness or a person who lacked any insight in relation to his own behaviours and attitude to the wife and how that affected her and, of course, the child.”
The learned Magistrate discussed cross-examination that took place on a resumption of the hearing after a passage of time, that cross-examination arising out of the acquisition by the husband of a vehicle described as a “luxury” one. In his reasons, his Honour discussed the failure of the husband to provide details of his financial circumstances as provided to the financier for the acquisition (which was by lease). His Honour recorded that the husband “74.…certainly was able to indicate that there had been a significant change in the last six weeks or so, such that he now felt confident that his business was improving and that there were significant funds available, to facilitate the purchase of a luxury vehicle.”
Bearing upon the trial Judge’s assessment of the husband’s position with regard to child support, the trial Judge said:
“80. He indicated that he could not pay more than $36 per week in relation to child support because he had excessive bills. For him to have made such a statement, and a matter of only weeks later, to have purchased a luxury vehicle because, as he said, he wanted it, spoke volumes but also spoke loud and clear, of the lack of insight or appreciation on the part of the husband, of his role or responsibility in relation to these matters.
81. The husband had not lodged tax returns, subsequent to separation. However, he acknowledged that he had an obligation to do so. He denied any knowledge on his part that to do so would have led to an increase in the child support, to be paid. The husband’s evidence in that regard was simply, unbelievable.”
The trial Magistrate continued:
“83. The husband had, in more recent times, made application to the Child Support Agency for a review or change, in relation to the child support assessment. Without doubt, the husband has manipulated his financial circumstances to seek to gain financial advantage, in relation to these proceedings. To have acted as he did in relation to child support, but as I have previously said, to have purchased a luxury vehicle and still not have made payments in relation to child support speaks volumes for the attitude of the husband and his lack of any respect for the wife or of his obligations.
The husband was an untruthful witness…”
The learned Magistrate also said;“86.…that the husband lacked insight in relation to these proceedings and he was self centred, in the extreme.” Later, the learned Magistrate added:
“91. He gave no priority whatsoever to child support. He said that the child was not suffering and that the wife was providing for the child. He said that he had bills to pay. He lacked insight as to his own obligations and responsibilities, as a parent and, as I have previously commented, spoke volumes about the sort of man that he was and the lack of appreciation of his behaviour and its effect, upon the wife, or upon the child.…
93. …I would think that he could be described as, a slippery witness.…”
The learned Magistrate said he would prefer the evidence of the wife on every occasion that there was any conflict between that evidence and the evidence of the husband.
The learned Magistrate then referred himself to the law, in particular the provisions of section 79 of the Family Law Act 1975, as amended (Cth) (“the Act”). His Honour specifically noted a submission by counsel for the wife that in accordance with principles enunciated in Clauson v Clauson (1995) FLC 92-595, regard must be had to the real impact in money terms of the proposed orders. His Honour noted the contention for the husband that significant weight had to be given to the financial contribution made by the husband from the personal injuries monies received by him.
In relation to the asset pool, though the value of the husband’s business had been agreed at $5,000.00 the Federal Magistrate noted that the valuation had been at a time:
“107. …when the business was not operating anywhere near as profitably as it was at the time of hearing.”
The Federal Magistrate went on to say:
“109. Quite clearly the husband has a capacity through the business to obtain financial advantage, such as of course, the leasing of vehicles.…”
Ultimately he said:
“109.…quite clearly there is a value to the husband which is greater than the accepted sum of $5,000.00.”
Turning to contributions, the Federal Magistrate said of the contribution of $114,000.00 by the husband, that it was utilised towards the parties’ assets and their matrimonial financial arrangements. His Honour referred to statements made in Aleksovski v Aleksovski (1996) FLC 92-705 and said:
“114. What is clear, is that in any determination in relation to this matter, consideration must be given to the very significant amount that was a contribution by the husband, as a result of his personal injury claim.…”
The trial Judge also recorded the submission that the husband had brought in significantly greater financial sums during the cohabitation than did the wife and remarked that:
“116. …I think that that must be credited to the husband but, whilst he certainly during employment was able to bring in greater sums, that was to a significant degree brought about by the contributions, that were made by the wife.
117. It should also of course be recognised, that the wife, to the extent open and available to her, also made financial contributions to the household, through work that she performed in various retail capacities during the relationship.
118. I accept, however, that there was a very significant financial contribution by the husband made during a short to medium term marriage and that consideration needs to be given to that, in relation to any determination in respect of these proceedings. I would find, that on the basis of a financial contribution therefore, that the appropriate starting point was 75/25 in favour of the husband.”
His Honour then turned to a consideration of the contributions by the wife, particularly, but not only, in the role of homemaker and parent. He said:
“119. …also her financial contributions through work performed by her and of course, contributions made in relation to the operation of the business.
120. I have found previously that the wife did have a significant role, in relation to contribution toward the business.…
121. The wife was the primary homemaker and certainly it was acknowledged that she was also the primary parent.…It was clear also, and I have made findings with regard to a domestically violent relationship.…but I am mindful of the determination of the Family Court in Kennon v Kennon (1997) FLC 92-757 where consideration needs to be given to whether in fact the actions of one party made the contribution of the other party, significantly more arduous.
122. …I am satisfied that there is, albeit only a small factor, but a factor, which needs to be considered in relation to domestic violence in respect of the relationship.
123. The wife made significant contributions of a non-financial nature as well as the business contributions to which I have referred. These contributions were made more difficult as a result of the attitude and the actions of the husband.”
The learned Magistrate then addressed post-separation matters, saying that a further consideration arose in relation to the wife’s maintenance of the former matrimonial home since September or October of 2000. She had, he said, made financial contributions by way of payments in relation to the mortgage and other outgoings in relation to the property, but he also said that he was mindful that the wife had had the benefit of the property. He then said:
“124. …What is clear, however, is that as a result of inflation and market increases, as well as the wife’s proper maintenance of the property, there has been a significant increase in value.”
He then said:
“125. All in all, it is therefore the case that up to hearing there has been a significant non-financial contribution by the wife and that needs to be recognised, in relation to any determination as to the position, which should be taken with regard to contribution.
126. In light of the findings that I have made and the comments here, it is clear that there needs to be an adjustment made in favour of the wife and in my view, the appropriate adjustment is 20%, such that at the end of consideration of those matters arising pursuant to section 79(4), the appropriate contribution, to be found in relation to this matter is 55/45 in the husband’s favour.”
His Honour then turned to:
“127. …consideration of issues that arise pursuant to the provisions of section 75(2)…”
His Honour referred to the husband’s claims that he had been suffering from stress related insomnia that had affected his work. He said:
“128. …It was also clear, however, and particularly from the husband’s evidence given on the final day of hearing, that he had been able to increase work. He was working in a number of capacities. He had contracts at the coal fields and he was clearly in a position, where his expectations in relation to the future of the business were very sound and it was clear, that he had real prospects of advancement.
…
130. What is also clear is that the husband has a significantly greater earning capacity than the wife. The wife is limited in that regard because of her obligations and responsibilities in relation to the care of a seven year old child. The husband is self employed. He has capacity with regard to significant earning and through the business significant advantages in relation to the purchase of property including, as I have already commented, a luxury motor vehicle because he wanted it.
…
132. Other factors which need to be looked at pursuant to section 75(2) include, those with regard to the future responsibility in relation to the care of the child and the obligations that fall upon the wife as a result of that. There is also of course the corresponding effect upon the wife’s earning capacity. It was submitted that the wife had no practical capacity to save money, or to make investments, whilst the husband clearly had a capacity to earn income and to enjoy that income, as he wished.
133. It was also submitted, and unfortunately in this case, it is quite significant that the husband has set out to evade his obligations and responsibilities. There is no basis upon which it could be assumed that he could not continue to do so and whilst there are other avenues of redress open to the wife, it is clear that the future for her, holds obligations in relation to the child and provision for the child, which simply do not fall upon the husband.
134. There are significant adjustments that need to be made in relation to these proceedings. Obviously, the obligation that the wife has in relation to the child and the very significant and, I would think growing disparity between future income earning capacities, mean that a significant adjustment needs to be done.
…
136. …In my view, the appropriate adjustment is one of 35%, in favour of the wife. What that would then mean, would be that there would be a final figure of property distribution as between the husband and the wife, of 80/20 in favour of the wife.
137. I finally am required to give consideration, in all the circumstances, to what orders could be made that would be, just and equitable.…”
His Honour then discussed the prospect that the wife retain the matrimonial home and said:
“138. …The justice and the equity of the situation is one, where an 80/20 division of property between the parties, will provide now and into the future for the wife and the child, but will leave the husband, free to get on with his life.…”
His Honour said that the orders would not affect the earning capacity of either of the parties and that the husband could then and into the future expect a far improved lifestyle and earning capacity. His Honour then made orders, including those from which the husband has appealed.

Grounds of appeal

Overview

In the end I have decided that an initial discussion of several aspects raised by the individual grounds of appeal enables the most cogent dealing with those challenges. This is because grounds such as ground 2, that “His Honour gave no, or no sufficient reasons, for the findings that he has made.” may only be usefully discussed in the context of the particular findings, such as those about various types of contribution, which findings or conclusions are the subject of separate grounds of appeal.

Grounds 1 and 7 are also broadly expressed and the “particulars” of them are really to be found in other grounds.
The grounds of appeal in full are:
“1.    ~~That~~ The Honourable Federal Magistrate was wrong in law and in fact such that his discretion has miscarried.
2.     His Honour gave no, or no sufficient reasons, for the findings that he has made.
3.     ~~That~~ His Honour failed properly to take into account:
(a)     The contribution of the Husband of the proceeds of his personal injuries claim in the sum of $114,000.00; and
(b)     That his damages were personal to him and compensatory in nature.
4.     His Honour improperly took into account matters relevant to child maintenance, when no relevant application was before him, and thereby fell into error, such that exercise of his discretion has miscarried.
5.     His Honour’s assessment of the parties’ contributions were was wrong in that:
(a)     The Husband made almost the whole of the financial contributions to the parties’ assets;
(b)     The assessment of the Wife’s non financial contribution was outside a reasonable range on the facts known to his Honour;
(c)     His Honour misunderstood the reasoning in Kennon (1997) FLC 92-757 and wrongly determined that there was “some factor” making the Wife’s contribution more difficult that needed to be considered. The consideration is not understandable and the factor which enlarged the Wife’s entitlement is not measured or measurable;
(d)     No reasons are given nor may any be inferred, for the calculation of an adjustment of 20% for post separation contributions by the Wife.
6.     His Honour was wrong in law and in fact to assess in favour of the Wife, factors under Section 75(2), which measured at 35% of the parties’ assets. I so doing, his Honour has erred and has taken into account matters concerning appropriate levels of child maintenance, when it was not within the scope of the matters before him.
7. His Honour’s Order is not, in the circumstances, just and equitable as is required by the provisions of Section 79(2) of the Family Law Act.
8.     His Honour made a number of findings about the Husband’s credit, demeanour and attitude that were irrelevant to his determination, and allowed those findings to influence his calculation of the parties’ respective entitlements. In so doing his Honour has misled himself in law and in fact, such that his discretion has miscarried.”

The “child support” issue

(i) Ground 4

This ground contends that the Federal Magistrate improperly took into account matters relevant to child maintenance, when no relevant application was before him. There is in my view no validity in that proposition, as section 79(4)(g) makes child support paid, being paid and likely to be paid (or not) in the future, matters to be taken into account.

(ii) Ground 6

“6. His Honour was wrong in law and in fact to assess in favour of the Wife, factors under Section 75(2), which measured at 35% of the parties’ assets. In so doing, his Honour has erred and has taken into account matters concerning appropriate levels of child maintenance, when it was not within the scope of the matters before him.”

This ground raises matters different to the proposition contained within ground 4.
The factors identified by the learned Magistrate as calling for recognition under section 75(2) were the disparity in earning capacities, the physical responsibility falling upon the wife in relation to the care of the child, and the financial responsibility in relation to the care of the child in particular having regard to the husband’s history and prospective behaviour with regard to the provision of child support.
An adjustment of 35% on account of such factors is a large percentage adjustment, but merely to so observe is far from saying that such an adjustment was not properly within the wide discretion of the trial Magistrate. In money terms, it represents $100,000.00.
However, there is considerable difficulty in “measuring” the adjustment, particularly in money terms, against the bases for the adjustment, especially the disparity in earning capacities and the financial responsibility falling upon the wife in respect of raising the parties child. Both of these aspects, on their face, ought be capable of some description in monetary terms.
This difficulty arises because of an absence of findings by the learned Magistrate. True it is that the learned Magistrate made a number of references to the husband’s earning capacity, which have been previously set out and which include:
“(h) He had been able to increase work. He was working in a number of capacities. He had contracts at the coalfields and he was clearly in a position, where his expectations in relation to the future of the business and it was clear, that he had real prospects of advancement.”
“What is clear is that the husband has a significantly greater earning capacity than the wife.…”
“He has capacity with regard to significant earning and through the business significant advantages in relation to the purchase of property including, as I have already commented, a luxury motor vehicle because he wanted it.”
Again, although the word “significant” is used a number of times by the learned Magistrate, there is no discussion of any evidence about earnings to disclose any parameters under consideration.
There was material about earnings before the Magistrate.
In an outline of argument on behalf of the wife which from the transcript can be seen to have been put before the learned Magistrate, it was said in respect of section 75(2) factors:
“Taken at face value, the husband’s Form 17 in 2003 showed a current income of $880.00 per week - $45,760.00 per annum. By contrast the wife’s income from employment is $564.00 per week - $29,328.00 per annum. The husband’s attempt in more recent times to minimise his earning should be ignored.”
The reference to an attempt in more recent times to minimise earnings may have included a reference to a Financial Statement of the husband, filed 9 January 2004, in which was nominated weekly income of $1,767.00 from the painting business, but estimated business expenses were stated as $1,586.00 per week.
The transcript discloses that some questions were asked of the husband about the financial statement sworn by him on 8 May 2003. The following exchange also occurred:
“Mr Fellows: You accept sir, I take it, that the analysis of Ms T is that you have available to you after your business expenses an income of $45,000.00 per annum?
A: I have income and resources, yes that’s what she estimates.”
There was also other cross-examination bearing upon the question of the husband’s earnings.
As already indicated, the difficulty in respect of the learned Magistrate’s reasons is that since he discussed none of this evidence, what he intended to convey in the general words that he used about the husband’s earning capacity cannot be appreciated.
Although the learned Magistrate’s rejection of the husband’s credibility entitled him to also reject the husband’s evidence of his financial circumstances, this did not remove the obligation to make such findings about the husband’s income earning capacity as were supported by the evidence, even if these findings were only of parameters for earnings or a “bottom line”.
If the learned Magistrate considered the evidence did not permit him to make any findings, and he therefore drew inferences against the husband’s interest, of a “significant” earning capacity, then he was obliged to set out his reasoning.
The absence of more specific findings about the husband’s earning capacity has a consequential effect on assessing the treatment by the trial Magistrate of the child support issue. It is not possible to form any view of the amount of child support that the husband ought have been properly contributing or be expected to contribute in the future.
There is another difficulty.
The paragraph in which the learned Magistrate said:
“…The husband has set out to evade his obligations and responsibilities. There is no basis upon which it could be assumed that he would not continue to do so and whilst there are other avenues of redress open to the wife, it is clear that the future for her, holds obligations in relation to the child and provision for the child, which simply do not fall upon the husband.”
contains some ambiguity. If it be that there are avenues of redress open to the wife, then it is not clear what obligations might remain to fall upon the wife.
The evidence might have justified a finding by the learned Magistrate that, even though avenues of redress were open, the husband was still likely to evade child support obligations in the future or at least that it was likely that the wife would never recover from him more than a minimal contribution and even that would be recovered with great effort and delay. However, the findings are not so expressed.
In the end, I am satisfied that this ground must succeed, largely because of a failure of reasons, in particular insufficient findings and confusing findings.

The assessment of contributions – ground 5

Counsel for the husband did not press the proposition contained in ground 5(d), that the Federal Magistrate adjusted by 20% on account of post-separation contributions, acknowledging that the reasons for the learned Magistrate could be interpreted as an allowance of 20% on account of all non-financial contributions of the wife, both pre and post-separation. That is the meaning I take from the reasons.
However, in support of this ground, counsel for the husband did point to that part of the learned Magistrate’s consideration of contributions when he said, in relation to the increase in value of the former matrimonial home:
“What is clear, however, is that as a result of inflation and market increases, as well as the wife’s proper maintenance of the property, there has been a significant increase in value.”
Counsel for the husband submitted (and counsel for the wife did not suggest otherwise) that there was no evidence to suggest that proper maintenance of the property by the wife had increased its value. While it might be argued that an inference open to the Magistrate was that, had the property not been properly maintained, it would have had a lesser value than in fact it did at trial and conversely, only because it was properly maintained, was it able to achieve its value at trial, an inference that proper maintenance has, of itself, been a factor in an increase in value in the property seems less available.
Although it seems a somewhat harsh judgment, I am persuaded that, as the learned Magistrate has expressed it, this finding is an erroneous finding of fact.
As to the assertion in ground 5(a), that the husband made almost the whole of the financial contributions to the parties’ assets (whereas the trial Judge found financial contributions to favour the husband 75/25), that challenge seems difficult to maintain when the submissions at trial on behalf of the husband were that financial contributions should be determined at 75/25 in favour of the husband.
However, the approach of assessing comparative financial contributions and then adjusting that assessment after a comparison of non-financial contributions, though not in breach of any principle, offers potential for confusion, which I think may have occurred.
In the part of paragraph 116 of the learned Magistrate’s reasons earlier quoted, where he said:
“116. …whilst he certainly during employment was able to bring in greater sums, that was to a significant degree brought about by the contributions, that were made by the wife.…”
the learned Magistrate seems to have brought to account as an offset to the financial contributions of the husband from employment, contributions made by the wife. Since in the following paragraph the learned Magistrate refers to financial contributions of the wife, there is an implication that in paragraph 116 he was referring to non-financial contributions.
Yet these are separately considered later, in paragraph 118, after the Magistrate has struck an apportionment on the basis of financial contributions of 75/25 in favour of the husband.
Then, after he had already assessed contributions of a financial nature, in the following paragraph (119) the learned Magistrate again referred to financial contributions. He said:
“As I say, there needs, however, also to be consideration given to the contributions made by the wife, particularly in her role as a homemaker and parent, but also her financial contributions through work performed by her and of course, contributions made in relation to the operation of the business.”
However, I think it unnecessary to reach a concluded view about any “double counting” of contributions of the wife, in view of the findings I have so far made in relation to errors.
For reasons I will later give, I leave aside the challenge to the actual assessment of contributions arrived at, namely 55/45 in favour of the husband. This challenge is contained within ground 3, grounds 5(a) (commented upon above), 5(b) and 5(c) and, together with the challenge to the assessment of section 75(2) factors, formed part of the argument pursuant to ground 7, that the orders were not just and equitable.

Ground 8

The trial Judge did make a number of findings about the husband which are not obviously connected with credit or any substantive question or factor in the proceedings. These include:
“…He lacked insight into his own obligations and responsibilities, as a parent and, as I have previously commented, spoke volumes about the sort of man that he was and the lack of appreciation of his behaviour and its effect, upon the wife, or upon the child…”
“…but as I have previously said, to have purchased a luxury vehicle and still not have made payments in relation to child support speaks volumes for the attitude of the husband and his lack of any respect for the wife or of his obligation.”
However, as to the claim in this ground that the trial Judge allowed these findings to influence his calculations of the parties’ respective entitlements, I observe that counsel for the husband did not point to any reliance upon such findings in the assessment of contributions and I can locate no express connection.
Moreover, the attitudes and the state of mind of the husband in relation to child support might well be relevant to the prospects of the husband being co-operative with regard to the provision of child support in the future.
Therefore, for these two reasons, I consider that this ground fails.

Remaining grounds

Ground 1 is, as earlier noted, an overarching ground that gains its particularity from following grounds. As also earlier indicated, grounds 3, 5(a)-(c) and ground 7 all go to the trial Judge’s discretionary assessment, either as to section 79 factors, section 75(2) factors, or overall.
In the end, I do not intend to express a view of whether the component parts of the assessment or the end result were manifestly excessive, outside a reasonable range, or unjust and inequitable. This is because it is very difficult for an appeal court to make such an assessment when, as has been identified, there is a deficiency in findings.
As Gray J said in Sun Alliance Insurance Ltd v. Massoud (1989) VR 8 at 18:
“If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
However, I do express the opinion that on the face of the reasons the award in the wife’s favour certainly seemed at least at the top end of a reasonable range. If that is a correct impression, then the need for cogent and complete reasons, including necessary findings to support such an award, is heightened.

Principles applicable to the appeal

This is an appeal against discretionary orders. The principles applicable to such appeals are well known and are set out in House v The King (1936) 55 CLR 499 at 504-505.

Conclusion in respect of grounds of appeal

It follows from the aforegoing, particularly what I have said in relation to ground 6 and ground 5, that the appeal succeeds.

Re-exercise of discretion or rehearing

While both counsel sought that in the event the appeal was allowed, I re-exercise the discretion, in circumstances where in my view there are insufficient findings, it is difficult, if not impossible for me to re-exercise the discretion. Accordingly, the matter must, unfortunately in view of the amounts involved and potential costs, be remitted for rehearing.

Costs of the appeal

Counsel for the respondent requested that in the event that the appeal was allowed an opportunity be granted for written submissions and in the circumstances, that is the appropriate course.

The appropriate orders

The husband did not appeal all of the orders made by the learned Federal Magistrate. He appealed order 3 which provided for a payment by the wife to the husband upon transfer to her of his interest in the former matrimonial home and order 11(b), which related to the division of proceeds in the event that home was sold. However, it seems to me that since a rehearing may involve fresh evidence about current circumstances, that the appropriate course is to set aside all of the orders and remit the applications for rehearing. I will discuss this position with legal representatives before I formalise orders.

ORDERS

That the appeal be allowed.
That the orders made by Federal Magistrate Coker on 18 June 2004 be set aside.
That the application of the wife filed 20 January 2003 be remitted to the Federal Magistrates Court for hearing by a Federal Magistrate other than Federal Magistrate Coker.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other party within 21 days of the date hereof.
That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other party.
That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.
I certify that the preceding 82 paragraphs
are a true copy of the Reasons for Judgment
herein of the Honourable Justice Warnick.

………………………………….
Associate
Date: 15 February 2005

[2005] FamCA 49

15 February 2005

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Remedies