SELWOOD & SELWOOD - [2016] FamCAFC 40

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD

[2016] FamCAFC 40

FAMILY LAW – APPEAL – PROPERTY – Where it was not open to the appellant to cherry pick the evidence to suggest the trial judge failed to use the advantage she had in assessing the credit and reliability of the parties and their witnesses – Where the nexus between the appellant’s evidence and the trial judge’s adverse credit findings in relation to the appellant was readily apparent – Where the delay in finalising the matter did not demonstrate error in the trial judge’s assessment of the appellant’s evidence – Where the trial judge gave specific reasons for accepting or rejecting the evidence of particular witnesses – Where there is no basis for asserting that the delay in finalising the matter prevented the appellant from receiving a fair hearing – Where delay of itself does not indicate that a trial has miscarried or that a decision is unsafe – Where it was not demonstrated that any delay has affected the trial judge’s decision – Where no issue of estoppel arose because the consent orders only determined the dispute between the interveners and the parties but not the dispute between the parties – Where the principle of res judicata does not apply because there was no suggestion of re-litigating the same issue – Where there was no error by the trial judge in permitting the wife to agitate matters relating to the claims and counter claims between the interveners and the parties, or in making findings based on that evidence – Where it was readily apparent that the trial judge appropriately identified and weighed all of the appellant’s contributions – Where there was no double-counting by the trial judge – Where it was not open to the trial judge to take into account the appellant’s alleged failure to maintain the mortgage – Where this error does not warrant appellate interference – Where there was ample evidence to justify a finding that the appellant had failed to adequately disclose his true financial position – Where there was no issue of procedural fairness in relation to the orders providing for the respondent to retain the former matrimonial home – Where the trial judge’s pathway for making this order was apparent – Appeal dismissed.

FAMILY LAW – COSTS – Where costs should follow the event – Where the appeal was dismissed – Costs order in favour of the respondent – Where part of the appeal was allowed by consent – Where there should be no costs in relation to that part of the appeal – Where that part of the appeal was allowed on a question of law – Costs certificates ordered.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) – ss 6 and 9

Bevan & Bevan (2013) FLC 93-545
Blair v Curran (1939) 62 CLR 464
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
Gould and Gould (2007) FLC 93-333
Gronow v Gronow (1979) 144 CLR 513
Hickey & Hickey (2003) FLC 93-143
House v The King (1936) 55 CLR 499
Housing Commission of New South Wales v TatmarPastoral Co Pty Ltdand Penrith
Jackson v Goldsmith (1950) 81 CLR 446
Kannis and Kannis (2003) FLC 93-135
Metwally v University of Wollongong (1985) 60 ALR 68
Norbis v Norbis (1986) 161 CLR 513
Norman & Norman [2010] FamCAFC 66
Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Re Minister for Immigration & Multicultural Affairs: Ex Parte Durairajasinghan (2000) 168 ALR 407
Soulemezis v Dudley (Holdings) Pty Ltd(1987) 10 NSWLR 247
Stanford v Stanford (2012) 247 CLR 108

APPELLANT:

Mr Selwood

RESPONDENT:

Ms Selwood

FILE NUMBER:

DNC

359

2010

APPEAL NUMBER:

2014

DATE DELIVERED:

21 March 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Strickland & Kent JJ

HEARING DATE:

16 April 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 July 2014

LOWER COURT MNC:

[2014] FamCA 531

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPELLANT:

DS Family Law

COUNSEL FOR THE RESPONDENT:

Mr Looney QC with
Ms Harding

SOLICITOR FOR THE RESPONDENT:

Withnalls Lawyers

Orders

The appeal be dismissed.
The appellant husband pay the costs of the respondent wife of and incidental to the appeal save and except in relation to Grounds 12 and 13 of the Amended Notice of Appeal filed on 20 February 2015.
In relation to the said Grounds 12 and 13, and pursuant to the orders made by the Full Court on 16 April 2015:
(a) there be no order as to costs;
(b)the court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to those grounds of appeal; and
(c)the court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to those grounds of appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selwood & Selwood 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 40 of 2014
File Number: DNC 359 of 2010

Mr Selwood

Appellant

And

Ms Selwood

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 20 February 2015, Mr Selwood (“the husband”) appeals property, parenting and child support orders made by Dawe J on 18 July 2014.
By Notice of Cross-Appeal dated 14 April 2015 Ms Selwood (“the wife”) sought to cross-appeal the parenting orders made by her Honour on 18 July 2014. As this Notice was received by the registry out of time, the Notice was accompanied by an Application in an Appeal and supporting affidavit seeking an extension of time to file the Notice of Cross-Appeal. This application was opposed by the husband.
At the hearing of this appeal consent orders were entered into which had the effect of disposing of the appeals against the parenting and child support orders. The consent orders were as follows:
(1)The time for the respondent to file a notice of cross-appeal be extended to 16 April 2015.
(2)The appeal be allowed in relation to Ground 13 as contained in the amended notice of appeal filed on 20 February 2015.
(3)Orders 8, 9, 11 and 12 made by the Honourable Justice Dawe on 18 July 2014 be set aside.
(4)In lieu of those orders the following orders be made:
(a)That each parent be permitted to take the children on holidays interstate or overseas during the time the children spend with that parent PROVIDED THAT:
(i)Thirty [30] days’ written notice is provided to the other parent;
(ii)The time does not conflict with a period of special significance in accordance with paragraph 4 of the orders made by the Honourable Justice Dawe on 18 July 2014;
(iii)The parent give the other parent a written itinerary containing the dates of departure and return, and the address and telephone number of the places where the children shall be staying during the holiday;
(b)The father not permit or allow the children to attend any full contact [sporting activities] activities without the mother’s prior written consent.
(5)The cross-appeal filed 16 April 2015 be allowed in relation to Ground 1 to the extent of Orders 3 and 4 of these orders and is otherwise dismissed.
(6)The appeal be allowed in relation to Ground 12 as contained in the amended notice of appeal filed 20 on [sic] February 2015.
(7)Order 20 of the orders made by the Honourable Justice Dawe on 18 July 2014 be set aside.
(8)In lieu of that order it is ordered:
(a)That pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the husband shall provide child support to the wife for the benefit of the children, [B], born … 1999 and [C], born … 2001 (in addition to the periodic amounts as assessed by the Child Support Agency from time to time) until the children attain the age of 18 years or complete their secondary school whichever is the latter by way of payment of one half of:
(i)All extra curricula activities undertaken by the children;
(ii)All school fees; and
(iii)Medical expenses for the children.
(b)That pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the wife shall provide child support to the husband for the benefit of the children, [B], born … 1999 and [C], born … 2001 (in addition to the periodic amounts as assessed by the Child Support Agency from time to time) until the children attain the age of 18 years or complete their secondary school whichever is the latter by way of payment of one half of:
(i)All extra curricula activities undertaken by the children;
(ii)All school fees; and
(iii)Medical expenses for the children.
IT IS NOTED that the effect of Order 6, 7 and 8 of these orders renders nugatory the order for a permanent stay made by the Honourable Justice Dawe in relation to any current child support assessment on 9 September 2014.
IT IS NOTED that the parties have liberty to apply to the trial judge, if necessary, in relation to the orders made by the Honourable Justice Dawe on 15 April 2013 and the order made on 9 September 2014.
As can be seen, as a result of these consent orders Grounds 12 and 13 of the Amended Notice of Appeal need not be dealt with by us, save and except as to the question of costs which we address later in these reasons. Further, in light of orders 1 and 5 of the consent orders, it is unnecessary for us to determine any issues arising from the wife’s Notice of Cross-Appeal. Thus, the issues that we need to determine arise solely out of the father’s grounds of appeal 1 – 11, being his challenge to the property settlement orders.
In summary, those orders provided, inter alia, for the wife, at her option, to retain all of the three real properties owned by the parties and pay $591,338.33 to the husband, or alternatively, to retain the former matrimonial home and sell the other properties; for the proceeds of sale to be applied to the payment of all reasonable costs of the sale, rates, and adjustments; and, for any remaining balance to be distributed so as to achieve a division of assets of 70 per cent to the wife and 30 per cent to the husband. However, if the wife failed to exercise either of these options, the three properties are to be sold, with the proceeds of sale being applied to the payment of the costs of sale, rates, adjustments, and in discharge of all mortgages, and the balance divided 70 per cent to the wife and 30 per cent to the husband.

Background

The husband was born in 1976. He works as a professional sportsman and is employed by Selwood Pty Ltd (“Selwood”), a company providing consultancy and other services.
The wife was born in 1976. She is employed by AA Pty Ltd and previously held employment with Z Pty Ltd where she worked full time.
The parties began a relationship in 1992 and commenced cohabitation in 1995.
At some stage prior to marriage, but whilst the parties were in a relationship, the husband purchased land at BB Street, Suburb CC (“the Suburb CC property”). A house was built on the land and a mortgage with National Australia Bank (“NAB”) was registered on the title in 1995.
The parties were married in 1999 and lived in the husband’s parents’ property in Suburb DD “for approximately three years”.
In 2002 the parties purchased land at O Street, Suburb I (“the Suburb I property/the former matrimonial home”). Between 2003 and 2005 a house was built on the land by a company controlled by the husband’s parents at a cost of $200,000.
In 2004 the parties sold the Suburb CC property for $250,000 and discharged the mortgage on that property.
The company, Selwood, was incorporated in 2005. The company, apart from its consultancy and other services, is utilised by the husband to purchase and sell sports equipment. Selwood is the corporate trustee of the Family Trust, Q Trust.
In July 2006 the parties purchased 1 H Street, J Town for $70,000 and in August 2006 they purchased 2 H Street, J Town for $70,000 (collectively, “the H Street properties”). The husband asserted at trial that his parents provided the capital for the deposit, conveyancing fees and stamp duty for the purchase of these properties.
The parties purchased L Street, Suburb M (“the Suburb M property”) from the husband’s parents for $80,000 in November 2006. They contracted the same company controlled by the husband’s parents to build a house on this property at a cost of $150,000.
The parties purchased N Street, Suburb P (“the Suburb P property”) for $150,000 in 2008. This house is not subject to a mortgage.
In 2009 the parties sold 1 H Street, J Town for $205,000.
In May 2009 the parties again arranged for the husband’s parents’ company to carry out work on the Suburb P property at a cost of $150,000.
The parties paid $110,000 to the husband’s parents’ company between October 2009 and November 2009 in respect of the work to the Suburb M and Suburb P properties.
In 2010, Selwood deposited $200,000 into the joint mortgage account to assist in the purchase of E Street, Suburb T (“the Suburb T property”). This property was purchased for $345,000 by Selwood.
The parties separated briefly between October 2009 and May 2010.
In 2010, the trial judge noted that the parties appeared to have lent a person named “S” $150,000 from the joint mortgage account.
The parties separated finally in June 2010.
In August 2010 the wife filed an Initiating Application in the Federal Magistrates Court of Australia (as it then was) seeking orders for property settlement by way of “an alteration of property interest allocating to the wife 70 per cent and to the husband 30 per cent”. The husband’s Response filed in September 2010 sought orders for property settlement and parenting orders.
The husband’s parents were granted leave to intervene in the proceedings in May 2011. On 13 July 2012, the parties entered into consent orders which discharged their participation in the matter.
On 19 April 2013 the parties entered into interim consent orders for the sale of the Suburb T property. It was agreed that the sale proceeds would be used to pay the costs and outgoings in relation to the property, $85,000 would be paid to each solicitor and the remainder would be paid into the joint mortgage account of the parties.
The Suburb T property was sold in October 2013.

The reasons for judgment delivered on 18 July 2014

Her Honour commenced her reasons for judgment by providing a brief introduction and procedural history of the matter (at [1] – [21]). Her Honour then detailed the orders sought by the parties, the evidence of the parties and the relevant factual background (at [22] – [67]). As the parenting and child support issues have been resolved by the consent orders referred to above (at [3]) we do not need to dwell on them in these reasons.
As to property settlement, her Honour noted that the “significant issues related to the treatment of items described as ‘Notional Assets’ which the wife maintained should be brought into account, but which the husband said should not be considered or treated as a ‘notional asset’” (emphasis omitted). The trial judge also recognised that the “allocation of the percentage and assessment of the contributions made by each of the parties” were “significant factors”. In this regard, her Honour recorded that the wife had made “significant allegations that the husband had failed to appropriately disclose all assets”, “had diminished the asset pool” and “had a significantly greater earning capacity than he was disclosing” (at [69] – [70]).
At [73] – [74] her Honour began her consideration of the law applicable to property settlement matters. The trial judge referred to ss 79 and 75(2) of the Family Law Act 1975 (Cth) (“the Act”). Her Honour then cited Hickey & Hickey (2003) FLC 93-143 at [39], Stanford v Stanford (2012) 247 CLR 108 at 120, Bevan & Bevan (2013) FLC 93-545 at [73] and Norman & Norman [2010] FamCAFC 66 at [60] in relation to the principles to be applied when making a determination pursuant to s 79 (at [75] – [77]). Specifically, her Honour detailed the approach to be taken as follows (at [78]):
a)Identification of the existing legal and equitable interests in property of the parties, the effect of which will be to identify all of the assets which are available for distribution;
b)Determinate [sic] pursuant to s 79(2) of the Act whether, “having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order” and in doing so avoid “a determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), [as such a determination] would erroneously conflate what are distinct statutory requirements” as outlined in the third fundamental proposition identified by the joint judgment in Stanford & Stanford (Supra).
c)Identification and evaluation of contributions to the property (including property no longer owned by the parties) and contributions to the welfare of the family as set out in s 79(4)(a) to (c) of the Act;
d)Identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extent they are relevant, the matters in s 75(2); and
e)A final consideration of whether the result arrived at upon the conclusion of the above processes is a just and equitable outcome for the parties.
Her Honour then turned to the law applicable where there is an allegation of a party failing to disclose assets. Her Honour cited the decision in Gould and Gould (2007) FLC 93-333 at [25] – [26] (“Gould”), where the Full Court approved the comments made in Kannis and Kannis (2003) FLC 93-135 at [51] (at [79]). Her Honour noted that this approach had been referred to as the “robust approach” (at [80]).
Having identified the applicable law, her Honour began her assessment of the wife’s evidence. Particularly, her Honour recorded the wife’s evidence that significant cash takings were kept from the husband’s “[event] nights”, and her evidence about the motor vehicle which she alleged was purchased by the husband for his mother to offset the loan his parents had provided to the parties (at [119]). Her Honour then explained that during cross-examination the wife had “admitted to being confused about some matters in her affidavit material” but “[o]n other matters her explanations for variations were adequate” (at [120]).
In relation to the debt owed to the husband’s parents, her Honour recorded the wife’s evidence that, “various direct payments had been made and the monies due by ‘[S]’ had been paid to the Interveners which she asserted meant that there was no debt outstanding”. Her Honour found that at that point the wife “believed that she did not owe them any money” (at [123]).
As to the business arrangements of Selwood, her Honour first recorded the evidence of Mr U, who was called to give an estimation of “the number of people at [event night] functions in March 2012 and May 2012”. Her Honour found that this evidence “supported the wife’s assertion that all of the funds had not been accounted for or properly recorded” (at [124]).
In relation to the cross-examination of the wife, her Honour found that the wife remained “consistent in her evidence that she was not consulted about some matters and that she was not responsible for the way some of the accounts were drawn”. Her Honour also noted that the “wife continued to maintain that invoices had been inflated and that the accounts prepared for the husband and family businesses were not accurate” (at [128] – [129]).

Her Honour then turned to the evidence of the husband. Her Honour recorded his evidence from [130] – [153], discussing the cash payments received by him from rent, which the husband conceded were retained by his father and totalled approximately $10,600, the cash amounts received and paid on “[event] nights” and the husband’s involvement in the [sports] and other services, which he referred to as having been “set up for a ‘hobby’”. In relation to the money which was owed by “S”, the husband “conceded that he was owed the money and that ‘[S]’ had instead paid [his] father”, but was unable to recall how it was paid (at [137]). The husband was also cross-examined about the source of the funds he used to pay cleaners for the business and the “assets owned by him and the business, company and trust” (at [138] – [139]).
In regards to the cross-examination of the husband, her Honour noted that the husband “was, from time to time, inconsistent”. Her Honour recorded examples of this inconsistency at [141] – [146].
Her Honour then discussed the evidence of the husband in relation to the motor vehicles and finances surrounding these vehicles. Her Honour considered that the husband’s “evidence in relation to motor vehicles, their registration and use by his mother was not reliable” (at [147] – [148]).
Her Honour also noted the statements made by the husband in relation to incorrect book keeping and the use of Selwood’s financial resources. Particularly, her Honour noted that the husband gave “confusing evidence in cross-examination about whether the debt to his parents was owed by the company [Selwood] Pty Ltd or himself and his wife” (at [149] – [152]).
Thus, her Honour opined:
153.The husband’s evidence in cross-examination continued to support the wife’s case that the husband had not been full and frank in his disclosure, that all of his assets had not been disclosed and in particular, that there were substantial sums received by way of cash and not banked into accounts which had been disclosed.
154.Overall the husband’s evidence cannot be considered reliable. The accounts prepared on his instructions or on his behalf should also be considered unreliable.
The trial judge then considered the evidence of the husband’s father. During cross-examination, her Honour noted that the father “admitted that there were omissions in his affidavit as to the financial arrangements” and said “that he could not recall significant matters”. Further, the father admitted to having received the payment of $150,000 from “S” by way of cheque, and that this amount was paid on behalf of the husband. However, the father was “reluctant to comply with any request to produce a bank statement showing the receipt of $150,000”, and when he did, the bank statements “suggested that there was a deposit of $100,000 not $150,000” (at [155] – [158]).
Therefore, on the basis of the father’s evidence generally, her Honour found:
159.Overall the significant challenges to his evidence called into question the reliability of his evidence generally and reduced significantly any weight to be given to his version of transactions between himself, the husband, the wife or various entities.
Next, her Honour assessed the evidence of the forensic accountant, Ms X, who opined that “the value of the business would change significantly if the wife’s allegation that substantial sums of cash were received was accepted” (at [160]).
Her Honour then recorded the evidence of Mr EE, to whom the husband had lent money, that “any monies he owed to the husband and wife or any of their entities was not likely to be repaid” (at [161]).
When the husband’s father was again called to give evidence in October 2012, Dr GG, the father’s doctor, provided evidence to the effect that the father was “distressed by giving evidence in the proceedings” and could not continue at that time (at [162]). When the matter resumed on 22 April 2013 her Honour recorded that the father was “frequently unable to recall events which were put to him, nor could he confirm material recorded in the accounts and documents”. An example of this occurred when the father was cross-examined “about various transactions and whether they appeared in any of the accounts” and he was “unable to remember or said he did not know”. Overall, her Honour considered that the husband’s father’s evidence “was not helpful and could not be considered reliable” (at [164]).
Her Honour then recorded the evidence of Mr G, a chartered accountant, regarding his involvement with the husband’s business (at [165]).
Her Honour referred to the balance of the evidence from [166] – [170]. Particularly, her Honour noted that the husband’s “knowledge of financial transactions and the information in his financial statement was not satisfactory” and his “answers in relation to cash received for various functions was again unsatisfactory, particularly as to whether all the cash had been banked in the appropriate accounts”.
In light of all the evidence, her Honour concluded as follows:
171.Carefully considering all of the evidence and in particular the unsatisfactory nature of the evidence of the husband and his father, and taking into account the much more reliable evidence of the wife and the witnesses called on her behalf, there is considerable doubt as to the full and frank disclosure by the husband of his true financial circumstances, his assets, income and earning capacity.
172.Where there is any difference in the weight to be given to the list of assets and their values provided by each of the parties, the Court prefers the evidence provided by the wife.
Her Honour then turned to the assets of the parties and noted that the parties agreed, at the conclusion of trial, on the assets which should “be brought into account”. Her Honour set these items out, and then found that the total value of the assets was $2,245,846 (at [173]).
Her Honour then recorded the controversy between the parties in relation to the value of the company Selwood. Her Honour noted in this regard that the husband asserted a value of $25,365 with liabilities of $120,442 “owed by way of company tax to the Australian Taxation Office [“ATO”]”. He also claimed that the company was owed $6,750 for rent for the Suburb T property. On the other hand the wife claimed that the value of the company was not known and did not concede the debt to the ATO. In relation to the rent due on the Suburb T property, the wife asserted that this was $8,000 (at [174] – [175]).
Next, her Honour considered the issue of “notional assets”. Both parties sought to bring various items into account. Her Honour noted that they were able to agree on a number of these. Her Honour then set out the agreed notional assets of the wife (at [177]) which her Honour found to have a total value of $206,651, and of the husband, which were estimated to have a total value of $196,753.90 (at [178]). The parties were also able to agree on the value of their respective superannuation interests. Her Honour set these out at [179] and found that the husband had superannuation interests of $64,812 and the wife had superannuation interests of $139,345. The liabilities of the parties which were agreed to be brought into account were the “[NAB] home loan of $494,968.67 and the debt to be paid to the husband’s parents pursuant to the Consent Order of $375,000, making a total of liabilities of $869,968.67” (at [180]).
Regarding the possibility of other monies owing to the husband’s parents, about which the parties could not agree, her Honour opined:
181.There remains the dispute as to the other amounts provided by the husband’s parents, if any, and whether it [sic] should be treated as a gift, loan or a contribution on behalf of the husband.
182.The evidence provided by the husband and his father was not sufficient to establish that the husband and wife or the husband or other related entities owe any more money to the husband’s parents. Any contributions made by the husband’s parents has [sic] been offset by monies and assets retained and used by the husband’s parents.
Having considered the agreed items to be added back to the pool of assets, her Honour then turned to the items in dispute on the balance sheet. First, her Honour noted that the wife sought to introduce “cash/rent from January 2011 to December 2011”, at an amount of $18,040. Her Honour found that this amount should be included as an asset of the husband as her Honour considered that he had “failed to account in an appropriate fashion for rent which should have been received during this period” (at [184]).
In relation to the value of Selwood, her Honour considered that it would not be

“appropriate to accept the husband’s evidence, or the evidence produced on his behalf, as to the value of this entity”, nor did her Honour consider it “appropriate to simply bring into account as a debt the amount owed to the [ATO]”. In light of the “significantly unreliable evidence provided by the husband about his business dealings at the time the parties resided together and since separation” her Honour found that this asset would be considered “as a significant factor under s 75(2)(o)” (at [185]).
Regarding monies which the wife asserted were in a safe at the time of separation, the only evidence available was that of the husband who claimed that at that time there was $3,500 in the safe. Though the wife did not accept this, she was “unable to provide any particulars of the monies in the safe at separation”. Therefore, despite the “lack of reliable evidence given by the husband”, her Honour found that it was not possible to attribute a “figure greater than $3,500 as the amount in the safe at separation which has been retained by the husband”. Thus, her Honour considered that this amount could “be offset against the claim that the husband wished to bring in early payments to the wife and the wife’s [Z Pty Ltd] account at separation” (at [186] – [187]).
Regarding the disputed loan monies, including the amounts which the wife claimed were payable to the husband but which the “husband maintained were either not recoverable or were not loans”, her Honour found that these were considerations which could be taken into account pursuant to the “overall adjustment” under s 75(2)(o) of the Act (at [188]).
The trial judge then set out the assets, liabilities and superannuation of the parties, including the notional assets added back to the pool, and found that the value of the total net assets of the parties was $2,181,478.33 (at [190]).
There was a dispute between the parties as to the value of the husband’s notional assets which arose in the joint balance sheet of 7 October 2013 (after the sale of the Suburb T property). Particularly, the wife asserted that the husband had notional assets of “some $874,000” whereas the husband conceded “notional assets totalling $203,252.30”. On this issue, her Honour found:
192.The overall evidence clearly indicates that I should accept the evidence of the wife rather than that of the husband. There is however still an issue which requires the wife to prove the existence of an asset before it can be taken into account.
193.I am therefore not in a position to declare these disputed items as assets in existence for the purpose of the property settlement between the parties, however, I am satisfied that there has been significant use of funds by the husband and significant failure to account by the husband for the use of a large amount of funds, which are factors to be brought into account under s 75(2)(o).
The trial judge then turned to consider “whether any order is just and equitable in the circumstances”. Her Honour noted that the parties “separated in 2010” and that there were “joint assets which need to be divided and adjustments made for assets retained by the parties and their needs”. In light of these factors, her Honour considered that it was “just and equitable to make orders dividing up the assets and liabilities of the parties following the principles set out in s 79” (at [194] – [195]).
Her Honour then turned to consider the respective contributions of the parties.
In relation to initial contributions, prior to the parties’ marriage the husband owned the Suburb CC property, “subject to a mortgage and a loan provided by his parents”. Her Honour noted that the property had since been sold and the mortgage discharged (at [196]).
Next, her Honour considered the contributions of the parties during the relationship. Her Honour noted that both parties earned an income which was applied to the purchase of the various properties they owned and that they each contributed as homemaker and parent (at [197]).
Her Honour then referred to the “assistance provided by the husband’s parents which enabled the parties to carry out improvements to the properties, and in particular, the former matrimonial home”. Her Honour accepted the evidence of the wife “that there were significant amounts paid to the husband’s parents” which were not disclosed and the “evidence that the husband provided a motor car for the use of his parents”. Her Honour then noted the concession of the husband’s father that he had collected “rent from properties which was not brought into account”. Her Honour did not accept that there “were sums payable to the husband’s parents from any profit made on the sale of [1 H Street, J Town]” (at [198] – [201]). Her Honour then said:
202.Considering the unsatisfactory evidence of the husband and of his father, I am not satisfied that any debt remains payable by either of the parties to the husband’s parents, nor that there was any remaining loan between either of the parties and the husband’s parents.
203.Overall the contributions made by the husband’s parents need to be seen in the context of the cash transactions and the failure to account for payment of other monies.
Finally, her Honour turned to the contributions after separation. In this context, her Honour noted that the “husband has had the free use of the former matrimonial home”, which her Honour explained was a “considerable financial benefit” and which “needs to be compared to the costs and expenses which the wife has paid” (at [204]). Her Honour then opined that the husband’s “failure to comply with orders, such as the payment of the mortgage on the former matrimonial home for a considerable period”, his “unreliable evidence” and his “failure to disclose his assets and financial resources” were significant factors “to be taken into account” (at [205]).
In this regard, her Honour considered the authorities cited in Gould and concluded (at [206]):
…it would be appropriate to “readily conclude the asset pool is greater than demonstrated”. It is also appropriate therefore to “to err on the side of generosity” to the wife who has been disadvantaged by the husband’s lack of candour. A significant adjustment in favour of the wife is therefore appropriate.
(original emphasis)
Her Honour recorded the assets which the husband had retained and the liabilities which were to be included in the pool, and held:
209.I am satisfied that the contributions, both financial and otherwise, of the parties, taking into account the known assets and the agreed notional assets should be considered equal.
Finally, the trial judge considered the s 75(2) factors. First, her Honour found that the husband had “taken steps to reduce the value of his business”, but that nonetheless “…he has a significant capacity to continue earning an income from his [businesses] and organising profitable ‘[event]-nights’ and similar functions”. Similarly, her Honour was satisfied that the wife had the ability to continue to earn an income from current and future employment (at [210] – [211]).
Her Honour then explained that due to the parenting orders proposed, the parties would likely “have shared care and therefore similar responsibilities concerning the future care and upbringing of the children”, though her Honour considered it “necessary to bring into account the amounts paid by the wife for medical travel and accommodation associated with [B’s] treatment in August 2013 and February 2014”, to which the wife asserted the husband had not contributed. The wife sought to recover approximately $6,000 for these costs (at [212] – [213]).
Finally, her Honour turned to the “significant factors” pursuant to s 75(2)(o) of the Act. Her Honour referred again to the husband’s treatment of assets and financial resources and his “failure to provide satisfactory evidence and full disclosure of all relevant assets and explanation for the use of large amounts”. Therefore, on the basis of the principles in Gould, her Honour found (at [214]):
…it is appropriate to make an adjustment in favour of the wife to provide that the wife receive a further 20 per cent of the known and admitted assets. Whilst this is a significant proportion, it is also apparent from the evidence that there are significant anomalies and discrepancies in the husband’s evidence concerning the assets and considerable confusion caused by his unreliable evidence.
Thus, the wife was “to receive 70 per cent and the husband 30 per cent of the known net assets” (at [215]). Seventy per cent of those assets equated with $1,527,035.
In relation to the division of property, her Honour considered the wife’s wish to retain all of the real estate, or alternatively the former matrimonial home. In this regard, her Honour said:
227.Taking into account the requirement that orders be just, equitable and appropriate I consider it necessary to give the wife the option to raise the sum necessary to acquire all three properties and in the alternative to raise sufficient funds to retain as her own asset the [O Street, Suburb I] property.
However, if the wife was unable to do either, then her Honour provided for all of the real estate to be sold.
Her Honour concluded that such a distribution was just and equitable pursuant to s 79(2) of the Act (at [217] and [229]).

Grounds of Appeal

The relevant grounds of appeal agitated by the husband in his Amended Notice of Appeal are as follows:
(1)That the learned trial judge (“LTJ”) failed to use or misused the advantage she had as a trial judge in considering and assessing the credit and reliability of the Husband, the Wife, the Husband’s father, [Mr Selwood Snr], Drs [GG] and [D], and Mr [EE] as witnesses.
(2)That in the circumstances of the case, the Husband has not or may not have had a fair hearing of his case and/or there has been a miscarriage of justice arising from:
(a)The length of time that elapsed between the commencement of the trial and judgment, being a period of approximately 2 years;
(b)The delay of approximately 15 months between the date on which judgment was first reserved being 24 April 2013 and the date on which judgment was delivered being 18 July 2014.
(3)That the LTJ erred in law in permitting the Wife to go behind the Consent Orders made 13 July 2012 (“the Consent Orders”) resolving all matters in dispute between the interveners and the Husband and the Wife.
(4)That the LTJ having erroneously permitted the Wife to re-agitate matters and facts merged in the Consent Orders, had regard to those irrelevant matters and facts in determining and making findings with respect to the [sic] of the remaining matters properly in issue.
(5)That in determining the parties’ respective contributions pursuant to s.79(4) of the Act, the LTJ either:
(a)Failed adequately to take into account contributions made by or on behalf of the Husband; and/or
(b)Offset the significance of the relevant contributions made by or on behalf of the Husband on the basis of findings not properly available to her.
(6)That the LTJ erred in law in having taken into account the matters at Judgment [203] and [206] as matters referable to her findings in relation to the parties’ contributions at Judgment [209] also taking the same matters into account as a basis for adjustment in the Wife’s favour pursuant to s.75(2)(o) at Judgment [214].
(7)That the LTJ erred in taking into account, in combination with her finding at Judgment [204], that a significant factor be taken into account with respect to the parties’ contributions was the Husband’s failure to comply with Orders such as the payment of the mortgage on the former matrimonial home for a considerable period of time because that finding was not properly available to her.
(8)That as a consequence of the matters referred to in Grounds 6 and 7 above, the LTJ’s determinations both as to the extent of the Wife’s contributions and the proper amount for an adjustment pursuant to s.75(2) were excessive and outside the reasonable range of her discretion.
(9)That the LTJ erred in finding that the Husband had to any significant extent had the benefit of cash earnings or income which was unaccounted for or had failed sufficiently to disclose his income and assets at the time of trial.
(10)That the LTJ erred in law in rejecting in its entirety the valuation evidence of the single expert, Ms [X], and further failing to take into account proven corporate tax liabilities.
(11)That the LTJ erred in making orders that permitted the Wife to retain the property at [O Street, Suburb I] in that that order amounted to a denial of procedural fairness to the Husband and/or was made without giving any or any adequate reasons.
…

Discussion

Grounds 1 and 2

Ground 1 was argued on the basis that the trial judge’s findings about the credit of the husband (as opposed to the wife) were not open to her. Ground 2 seeks to support Ground 1 by relating the credit findings to the lapse of time between the commencement of the trial and judgment, a period of two years, and delay of 15 months between the date on which judgment was first reserved and delivery. The written submissions by the husband also incorporate some of the matters in Grounds 3 and 4, namely the asserted error in having regard to any evidence of the husband and his parents (and making credit findings) on issues regarding monies advanced by them, given the compromise of the interveners’ claim reached between them and the husband and the wife.
Putting aside the subject of Grounds 3 and 4 for the moment, when Grounds 1 and 2 are considered together the complaint appears to be that because of the time taken and the delay involved, the trial judge lost the advantage that she would normally have when assessing the credit and reliability of the parties and their witnesses. Indeed, after setting out the timeline and the procedural history of the matter in his summary of argument, the husband says this:
1.8Given this history, it was incumbent upon the trial judge to set out clearly and concisely why the evidence of particular witnesses had been accepted, rejected or unnecessary to be considered in the determination of relevant matters in issue. …
(footnotes omitted)
It is said that her Honour did not do that, and to demonstrate that we were taken to parts of the evidence given by the parties and the witnesses, and to where in her Honour’s reasons she made findings as to that evidence. In that context, submissions are made for example, that the wife’s evidence under cross-examination as to one aspect of the case “was evasive and non-responsive”. Further, it is suggested that her Honour failed to explain “why or to what extent [parts of the wife’s evidence] should be accepted as truthful or relevant”.
Pausing there, as to the former, her Honour concluded after hearing all of the evidence that the wife’s evidence was more reliable than the husband’s and his father’s (at [171]). Thus, this complaint is nothing more than an assertion by the husband that in relation to one piece of evidence her Honour failed to recognise that the wife’s cross-examination was less than satisfactory. However, this overlooks what her Honour said at [120], namely:
The wife was cross-examined at length by counsel for the husband. During that cross-examination she admitted to being confused about some matters in her affidavit material. On other matters her explanations for variations were adequate.
Thus, there is no force in this argument.
We also observe that we do not consider it open to the husband to cherry pick the evidence when a trial extended over many days, and rely on one piece of cross-examination to suggest that the trial judge failed to use the advantage she had in assessing the credit and reliability of the parties and their witnesses.
During oral submissions of the husband’s senior counsel before us, we were taken to certain aspects of the wife’s evidence which it was said demonstrated her lack of credit. It was suggested that that evidence was in general terms consistent with the evidence of the husband and his father. However, it readily became apparent that although the wife tended to agree with the basic facts put to her in cross-examination, she made no admissions for example as to the crucial question of whether the transactions being referred to involved loans or gifts. Further, because of the non-disclosure of the husband, she was unable to be certain as to the basis on which monies were paid by the husband to his father. Accordingly, the wife made assumptions about that based on her experiences during the marriage.
It must also be said that this was yet another cherry picking exercise in relation to evidence given over many days before her Honour.
In summary then we are not satisfied that this evidence demonstrated the wife’s alleged lack of credit.
As to the alleged failure by her Honour to explain her acceptance of parts of the wife’s evidence, neither Ground 1 nor Ground 2 allege lack of reasons, and thus, that is not a complaint that can be pursued before this court. However, if this was an issue that we had to address, we are satisfied that the pathway that her Honour took to reach her conclusion about the evidence of the parties and their witnesses is amply demonstrated in her Honour’s reasons (see [119] – [172]).
To continue, in relation to the husband, the submission is that the trial judge does not “explain the nexus between the evidence of the Husband and the finding that overall his evidence was not to be accepted”. However, her Honour spent a considerable amount of time recording and analysing the husband’s evidence (at [130] – [134], [135] – [154]), and the “nexus” that the husband’s senior counsel is searching for is readily apparent from that analysis. That revealed the inconsistencies in his evidence, his failure to disclose assets, his evasiveness under cross-examination, and the unreliability of his evidence.
We consider that the husband’s arguments overlook that there is ample authority for the proposition that there are limits to the extent to which it is possible for a judge to articulate reasons as to why one witness is found to be creditworthy and another is not. Further, and consequently, there are limits to what is sufficient by way of reasons in explaining such conclusions.
For example, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at [280], McHugh JA said:
Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary “for him to go further and say, for example, that the reason was based on demeanour”, Connell v Auckland City Council (1971) 1 NZLR 630 at 632-633 per Chilwell J. The position will usually be different if other evidence and probabilities are involved.
(To similar effect see Re Minister for Immigration & Multicultural Affairs: Ex Parte Durairajasinghan (2000) 168 ALR 407 at [67], per McHugh J).
The written summary of argument of the husband in relation to the evidence of his father, namely, one of the interveners, was almost entirely directed to the effect of the consent orders made during the proceedings resolving the dispute between the interveners and the husband and the wife as to monies owing, and thus, was irrelevant to this ground of appeal; it arises for consideration under Grounds 3 and 4 with the issue being whether it was open to the trial judge to make findings adverse to the husband’s father, and to the husband.
There is mention though of her Honour erring in making adverse findings as to the credit of the husband’s father in the context of the complaint that her Honour failed to use, or misused, her advantage as a trial judge in making those findings as a result of the delay in finalising the matter. However, as is the case generally with this ground, it has not been demonstrated that her Honour erred in this way. There is reference to two findings by her Honour, but nothing more is said than the mere assertion, without any apparent basis, that they were in relation to matters “never in issue” and “irrelevant to the credit of the witness”. We do not agree.
The principal authority relied on by the husband in support of these grounds of appeal is the decision of the Full Court of the Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 (“Expectation”).
In Expectation, the issue was the effect of delay by the trial judge in delivering his reasons for judgment. It was held (at [68]) in accordance with previous authority, inter alia, that where there is a significant delay between the hearing of the evidence and delivery of the reasons for judgment, and the reasons “do not give specific reasoning for accepting or rejecting the evidence of particular witnesses, the conclusions reached should be given careful scrutiny and consideration by an appellate court where the findings are challenged on appeal”.
Unsurprisingly, the Full Court also said (at [70]) that “[t]he mere fact of a long delay itself weakens a trial judge’s advantage [in seeing and hearing the parties and the witnesses giving evidence]”, and that must be taken into account in reviewing the findings made by the trial judge.
Further, and again unsurprisingly, the Full Court said (at [71]) that “where there is significant delay”, “statements made by a trial judge of a general assertive character” have to be “treated with some reserve”. In particular, it is “incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected” (at [72]).
However, the flaw in the argument looking to apply these principles to this case is that here her Honour did give “specific reasoning for accepting or rejecting the evidence of particular witnesses”.
As to the specific terms of the complaints raised in Ground 2, first, it is suggested that the husband has not had a fair hearing of his case, and secondly, that there has been a miscarriage of justice, both apparently as a result of delay by the trial judge.
We fail to understand on what basis it can be said that the husband has not had a “fair hearing”, and in particular how any delay might result in that outcome. Whilst it is correct to observe that there was a period of two years from the commencement of trial to judgment, insofar as this is argued as invoking a failure to provide a fair hearing the following is highly relevant, even if not completely determinative:
a)The husband and the wife were further cross-examined on disputed issues on 13 and 14 May 2014.
b)Final submissions commenced on 14 May 2014.
c)The wife’s counsel made oral submissions addressing issues of credit and referencing earlier written submissions.
d)The wife’s counsel addressed the trial judge substantially on credit issues (Transcript 14.5.14, pages 107-108).
e)Transcript was available to the trial judge and counsel (Transcript 24.4.13, page 14).
f)The delivery of judgment was two months later.
As to a miscarriage of justice, that could only be understood in the context of seeking to raise the issues highlighted in Expectation, and to which we have already referred.
It is incontrovertible that delay of itself is not a ground of appeal, and nor does delay of itself indicate that a trial has miscarried or that the decision is unsafe (Expectation at [69]).
Thus, to succeed it needs to be demonstrated for example that because of the delay the trial judge has “lost an understanding of the issues” (Expectation at [72]), and in short, that the delay has affected the decision.
In an attempt to demonstrate that, the husband relies on the alleged “deficiencies” identified in support of Ground 1 in his summary of argument, in the way in which her Honour dealt with the evidence of the parties and the witnesses.
Pausing there, we repeat that we are not persuaded that there were any such deficiencies sufficient to invoke the principles espoused in Expectation.
The only other matters raised in support of this ground are first, the allegation that in making certain findings her Honour forgot other evidence. The prime example of that relied upon by the husband related to the evidence surrounding money provided by the husband to a Mr EE. It seems that there were two issues here, first, whether it was $50,000 or $200,000 that was provided, and secondly, whether regardless of the amount it was a loan or an investment.
Mr EE’s evidence was accurately recorded by her Honour in [161] where her Honour said this:
Mr [EE] gave his occupation as a consultant. He said that he had been involved in investments of real estate on behalf of the husband and wife. Mr [EE] maintained in his evidence that any monies he owed to the husband and wife or any of their entities was not likely to be repaid.
As to the husband’s evidence when cross-examined about this issue, that was also accurately recorded by her Honour at [145], namely:
When cross-examined about his financial dealings with [Mr EE], the husband said that the $50,000 he had paid him was definitely not a loan and said words to the effect “cause I haven’t received anything back”. He then said “one day I hope to get something back from the investment but (he) couldn’t see that happening”.
The evidence of Mr EE was that as a “guess” the amount was $200,000. In these circumstances her Honour was entitled to accept the evidence of the husband that an amount of $50,000 was provided. Importantly though her Honour did not make any finding as to either the amount involved or the basis on which it was provided; the issue for her Honour was the recoverability of any amount paid by the husband to Mr EE, and the evidence clearly indicated that it was not recoverable. Accordingly, it has not been demonstrated to this court that her Honour has “forgotten” evidence relevant to her decision.
The only other examples relied upon by the husband of evidence “forgotten” by her Honour related to evidence as to certain newspaper articles. However, it has not been demonstrated that her Honour forgot this evidence. Plainly, her Honour did not accept the husband’s evidence that he had “spruced up” the number of patrons for the purposes of the article, and given her Honour’s finding as to the husband’s lack of credit, her Honour was entitled to do that despite there being other evidence which the husband describes in his summary of argument as being “broadly consistent” with the numbers alleged by the husband.
At this point we pause to emphasise that it is not incumbent on a trial judge to “make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear …” (Housing Commission of New South Wales v TatmarPastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA).
The husband also alleges that “the trial judge’s recollection of the difficulties the wife experienced in cross-examination … has faded with time”. Again, we do not accept this criticism; her Honour carefully and thoroughly analysed the wife’s evidence under cross-examination at [120] – [129].
In conclusion, it has not been demonstrated that any delay has affected the trial judge’s decision. As was pointed out by the wife in her summary of argument:
5.The Reasons:
(a)demonstrate an accurate recollection by the trial judge of the course and nature of the evidence as it was received;
(b)are consistent with the evidence presented at trial;
(c)both expressly and by implication reveal the path by which the result has been reached;
(d)are of a standard such that the trial judge has discharged her duty to give adequate reasons.
(footnotes omitted)

Grounds 3 and 4

The consent orders made on 13 July 2012 resolving the claims of the interveners “under s 79 and s 75(2)” of the Act provided for them to be paid $375,000 from the “property pool” in addition to the amount of $150,000 received by them from a third party debtor of the husband.
It is said by the husband that these orders resolved all issues in dispute between the interveners and the husband and the wife, and that “the principles of res judicata applied”, meaning that “issues of fact which might have been determined in those proceedings merged in the Judgment”. Thus, “the parties were estopped from re-agitating them and the trial judge fell into appellable error in permitting that to occur…”.
However, we consider this argument to be flawed. The consent orders only determined the dispute between the interveners and the husband and the wife; they did not determine the dispute between the husband and the wife, and thus no issue of estoppel arose (Blair v Curran (1939) 62 CLR 464 at 531 – 532, per Dixon J), and any res judicata flowing from the orders is not relevant to the claims for property settlement as between them (Jackson v Goldsmith (1950) 81 CLR 446 at 464 per Fullager J).
Although a consent order can attract the application of the principles of res judicata, here there is no evidence outlining the basis of the agreement represented by the consent order. Thus, her Honour still had to address the claims and counter claims between the interveners and the husband and the wife in the context of the dispute between the husband and the wife, namely and for example, what money was owing (if any), what money was a gift rather than a loan, and in general terms what contributions did the parents make on behalf of the husband. Those issues were highly relevant as between the husband and the wife in determining their respective contributions, and plainly they did not merge in the agreement. In short, there was no suggestion of re-litigating the same issue, namely the claim by the interveners that there was a debt.
It is also important to emphasise two things. First, the consent orders do not represent an acknowledgement that an amount of $525,000 was owing to the interveners as at the date of separation of the parties (as was submitted by the husband); they represent an agreed compromise of the interveners’ claim as against the husband and the wife at the time the orders were made, and it needs to be understood that the claim of the interveners was that they were entitled to at least $880,000. Thus, at the very least the consent order says nothing about the balance of the amount claimed, and importantly, there is no attribution in the consent order as to who is owed the money; in other words, the father, the mother, or their company.
Secondly, we agree with the submission of the wife that the husband “conducted his case (against the wife) on the basis that no estoppel existed”, and he cannot depart from that position on appeal (Metwally v University of Wollongong (1985) 60 ALR 68). Indeed, significantly, after the consent orders were made, the father gave evidence in the husband’s case vis a vis the wife, and specifically, as to the issue of contributions. Further, the husband’s counsel made submissions in his final address to her Honour on the basis of that evidence.
Thus, there was no error here by the trial judge either in permitting the wife to agitate matters relating to the claims and counter claims between the interveners and the husband and the wife, or in making findings based on that evidence.

Ground 5

There are two challenges here. In relation to Ground 5(b), that is dependent on the success of Grounds 3 and 4. Thus, given we have found no merit in those grounds, Ground 5(b) cannot succeed.
In relation to Ground 5(a), that raises a challenge to the weight her Honour gave (or as the husband asserts, did not give) to the husband’s contributions. However, given how the challenge is framed, it is not suggested that the trial judge failed to take into account at all the specific contributions identified in the husband’s summary of argument, but rather that they were not “adequately” taken into account. Nevertheless, in determining this challenge the approach cannot be just to look at these discrete contributions; it is necessary to consider how the trial judge assessed all of the respective contributions of the parties. It is an holistic exercise and it is readily apparent that her Honour appropriately identified and weighed all of the contributions, including the discrete contributions of the husband highlighted in this ground of appeal, such that it cannot be said that her Honour has erred in the exercise of her discretion; she has not acted on a wrong principle, she has not allowed extraneous or irrelevant matters to guide or affect her, there is no mistake of fact, and no failure to take into account some material consideration (House v The King (1936) 55 CLR 499). Nor has it been established that the result of her Honour’s assessment of the respective contributions of the parties fell outside the necessarily wide ambit within which reasonable disagreement is possible, and her decision is “plainly wrong” (Norbis v Norbis (1986) 161 CLR 513 per Brennan J at 539).

Clearly, what is in issue here is a discretionary decision arrived at on the basis of evidence that is unchallenged on appeal. Thus, for this court to find that that decision is “plainly wrong” it could only do so on the basis that this court would have reached a different result. However, that can never be sufficient. In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519 – 520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight …
This ground of appeal has no merit.

Ground 6

At [203] her Honour said this:
Overall the contributions made by the husband’s parents need to be seen in the context of the cash transactions and the failure to account for payment of other monies.
And at [206] her Honour said this:
Taking into account the authorities referred to in Gould (Supra) it would be appropriate to “readily conclude the asset pool is greater than demonstrated”. It is also appropriate therefore to “to err on the side of generosity” to the wife who has been disadvantaged by the husband’s lack of candour. A significant adjustment in favour of the wife is therefore appropriate.
(emphasis omitted)
Her Honour then concluded as follows at [209]:
I am satisfied that the contributions, both financial and otherwise, of the parties, taking into account the known assets and the agreed notional assets should be considered equal.
Then at [214] her Honour said this:
As previously indicated there are significant factors to be considered under s 75(2)(o). One of the facts and circumstances of this case that is significant is the husband’s treatment of the various assets, including cash received, and his failure to provide satisfactory evidence and full disclosure of all relevant assets and explanation for the use of large amounts. Following the principles of Gould & Gould (Supra) it is appropriate to make an adjustment in favour of the wife to provide that the wife receive a further 20 per cent of the known and admitted assets. Whilst this is a significant proportion, it is also apparent from the evidence that there are significant anomalies and discrepancies in the husband’s evidence concerning the assets and considerable confusion caused by his unreliable evidence.
This challenge proceeds on the assumption that the conclusion at [209] takes into account what her Honour said at [203] and [206]. Clearly that is the case with [203], but equally as clearly it is not the case with [206]. There her Honour was flagging what would need to be taken into account under s 75(2)(o) of the Act, which she then did in [214].
To return to [203], the link to [209] is that in the latter paragraph her Honour limits her conclusion to the known assets and the agreed notional assets.
Thus, there is no error by the trial judge, and particularly no double-counting.
This ground also has no merit.

Ground 7

The first comment we make in relation to this ground is that in his oral submissions senior counsel for the husband complained that in [204] her Honour made no mention of the fact that by order made on 23 September 2010 the wife was to be paid the sum of $50,000 for her to use for her expenses. However, that complaint is nowhere to be found in this ground of appeal, and thus, we are not disposed to consider it. In any event, we are not persuaded that that “failure” by the trial judge to mention that payment is an error that would require appellate interference.
As to the actual complaint made in the ground of appeal, the relevant orders were paragraphs 7 of the orders just referred to, and paragraph 6 of the order made on 4 October 2012. The former paragraph provided:
7.That the husband be restrained by injunction from increasing, expending, utilising or otherwise transferring monies from the parties [sic] joint National Australia Bank Mortgage Account BSB …-… Account number ……… except with respect to the following:
a)In payment of the parties’ rates, maintenance and other expenses relating to the investment properties.
b)To enable the payment of $50,000.00 to the wife in accordance with paragraph 1 of these Orders;
c)In payment of any personal taxation liabilities assessed; and
d)As otherwise agreed between the parties.
And the latter paragraph relevantly provided:
6.The husband pay all amounts as they fall due in relation to the joint home loan mortgage such amounts to be paid from his own resources using any rent which may be collected from [L Street, Suburb M] in the Northern Territory and [N Street, Suburb P] in the Northern Territory and keep the wife informed promptly upon receipt of all rentals and payment of the home loan mortgage interest payments.
The evidence was that the rental from the investment properties was paid into the mortgage account, and although there were times when the mortgage (or rather the interest component) was in arrears, depending on the timing of the rental payments, overall the mortgage was not in arrears. Thus, it is argued that the husband did not fail “to comply with the orders for the payment of the mortgage on the former matrimonial home for a considerable period” (at [205]). It is also argued that the evidence did not establish that the husband had “free use of the former matrimonial home” (at [204]). Indeed, in relation to the payment of the mortgage, on 22 April 2013 her Honour dismissed an interlocutory application by the wife seeking sole occupation of the former matrimonial home indicating that she could not be satisfied that the husband had not maintained the mortgage, whilst recording his evidence that he had done so.
Thus, although the husband was technically in breach at various times, it was not open to her Honour to refer to that as a factor to be taken into account against the husband, given the result overall.
There is merit in this ground of appeal.

Ground 8

As can be seen, this ground relies on the success of Grounds 6 and 7. We have found no merit in Ground 6, but merit in Ground 7. However, as will become apparent later in these reasons for judgment, we do not consider that the error made by her Honour identified in Ground 7 warrants appellate interference in this case.
In these circumstances we also find no merit in this ground of appeal.

Ground 9

As outlined in paragraph 9.1 of the husband’s written summary of argument, in part this ground depends for its success on merit being found in Grounds 3 and 4. We have found no merit in those grounds, and thus, to that extent this ground fails.
However, it is submitted that apart from that, the other evidence did not permit the trial judge to conclude that there was “material non-disclosure”.
We of course have found that her Honour was able to make her findings on all of the evidence before her, including that of the husband’s father and also the husband insofar as the evidence related to his father. We have satisfied ourselves by reference to the helpful schedules provided by the wife’s senior counsel that there was ample evidence to justify the findings her Honour made as to the husband’s failure to disclose adequately his true financial position, whether that be in relation to assets, income or earning capacity.
There is no merit in this ground of appeal.

Ground 10

As is explained in the husband’s written summary of argument, this ground can only succeed if this court is satisfied that her Honour erred in finding that there was a material non-disclosure of income on the part of the husband. We, of course, have found that her Honour did not err in this regard, and thus, this ground cannot succeed.

Ground 11

Before her Honour each party sought orders which would see them retain the former matrimonial home, albeit the orders sought by the wife in that regard were sought late in the hearing. Her Honour identified that at [23], [25], and [27]. Then, counsel for each party addressed this in their final submissions to her Honour. At [222] – [229] her Honour explained the orders that she was making, including giving the wife the option of retaining the former matrimonial home.
Thus, there is no procedural fairness point here. The husband was aware that retention of the former matrimonial home was an issue, and despite the lateness of the wife’s application, there was no application by the husband to reopen the hearing and cross-examine the wife as to this. Although the husband’s counsel made submissions in support of the order that he sought, albeit briefly, her Honour determined to provide for the wife to retain the former matrimonial home, if she was able to.
It is accepted that her Honour did not provide expansive reasons for leaving the former matrimonial home with the wife, but in her explanation of the orders she was making, the pathway to her decision becomes apparent. Further, her Honour’s reasons must be viewed in the knowledge that the submissions on behalf of the husband were brief compared with those on behalf of the wife, and in particular, there was no rebuttal by the husband of those latter submissions.
There is no merit in this ground of appeal.

Conclusion

The only ground of appeal that has merit is Ground 7. However, although her Honour erred, we are not persuaded that appellate interference is warranted as a result. The assessment of the relevant s 75(2) factors is an holistic one, and outside of this finding by her Honour there is ample justification for the conclusion that her Honour reached. Thus, we are not persuaded that the error by her Honour should result in the appeal being successful, and we propose to dismiss it.

Costs

At the conclusion of the hearing of the appeal we sought submissions from counsel as to the costs depending on the result of the appeal.
Both senior counsel submitted that costs should follow the event, and thus, there will be an order for costs in favour of the wife. However, given that a consent order was made during the hearing of the appeal allowing the appeal in relation to Grounds 12 and 13 of the Amended Notice of Appeal, and relevant orders of her Honour were set aside and orders made in lieu, both senior counsel sought the issue of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to those parts of the appeal.
We are satisfied that there should be no order as to costs as to those parts of the appeal, but given that they have been allowed on questions of law, it is appropriate to order costs certificates to issue in relation thereto.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 21 March 2016

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