Singer and Singer
[2008] FamCAFC 76
•5 June 2008
FAMILY COURT OF AUSTRALIA
| SINGER & SINGER | [2008] FamCAFC 76 |
| FAMILY LAW - APPEAL – From decision of Federal Magistrate – PROPERTY – Settlement in relation to marriage – Division of property pool 60 percent to the husband and 40 percent to the wife – Husband appealed – Whether the Federal Magistrate erred in fact in determining that there was no explanation given for the failure of the husband’s mother to give evidence about a debt – Whether the Federal Magistrate was wrong in finding that there was no debt owed by the husband to his mother – Whether, in assessing contributions, the Federal Magistrate failed to give proper consideration to the “significant financial contribution to the welfare and benefit of the family” from the husband’s parents – Whether the Federal Magistrate failed to admit evidence of the jewellery of the parties and if so, whether he should have admitted it – Whether he should have found that the wife had taken the whole of the parties’ jewellery – Whether the Federal Magistrate erred in failing to provide for an equal payment by the parties of fees of certain expert witnesses – Whether the Federal Magistrate erred in adjusting the contributions assessment by 5 per cent in the wife’s favour on account of s 75(2) factors – Whether the Federal Magistrate erred in not including certain items in the asset pool for division – Whether the Federal Magistrate’s exercise of discretion miscarried in that the orders were not just and equitable – No merits in grounds of appeal or arguments in support – Appeal dismissed |
| Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth) s 75(2) |
| Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 G v H (1994) 181 CLR 387 Lovell v Lovell (1950) 81 CLR 513 Marsden and Winch (No.3) [2007] FamCA 1364 Norbis v Norbis (1986) FLC 91‑712 |
| APPELLANT: | MR SINGER |
| RESPONDENT: | MS SINGER |
| APPEAL NUMBER: | NA | 3 | of | 2008 |
| FILE NUMBER: | BRM | 8382 | of | 2006 |
| DATE DELIVERED: | 5 June 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 20 May 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 11 December 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 985 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms J Brasch |
| SOLICITOR FOR THE APPELLANT: | Schultz Toomey O'Brien |
| COUNSEL FOR THE RESPONDENT: | Mr T Jordan |
| SOLICITOR FOR THE RESPONDENT: | Swanston & Associates |
Orders
That the appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Singer & Singer is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 3 of 2008
File Number: BRM 8382 of 2006
| MR SINGER |
Appellant
And
| MS SINGER |
Respondent
REASONS FOR JUDGMENT
In disposing of property settlement issues between Mr and Mrs Singer in December 2007, Federal Magistrate Slack divided a property pool of approximately $432,600.00 net assets, 60 per cent to the husband and 40 per cent to the wife. Against these orders the husband appeals. In essence, he asserts that the Federal Magistrate:
1. Failed to include in the asset pool a debt of $300,000.00 owed by the husband to his mother;
2. Erred as a matter of fact in determining that there was no explanation given for the failure of the husband’s mother to give evidence about the debt;
3. Alternatively, gave inadequate consideration to the contribution to the parties’ assets by the husband and/or his family;
4. Erred in failing to admit evidence of the value of the parties’ jewellery;
5. Erred in failing to find that the wife had taken the whole of the parties’ jewellery;
6. Erred in failing to provide for an equal payment by the parties of fees of certain expert witnesses;
7. Erred in making an adjustment of five per cent in the wife’s favour on account of s 75(2) factors;
8. Erred in not including particular items in the “pool” of assets for division; and
9. Made orders that were not just and equitable.
I will deal with the second question first because, if there has been a mistake of fact, that may well constitute appealable error which of itself leads to a re-exercise of discretion or remission.
Did the Federal Magistrate err as a matter of fact in determining that there was no explanation given for the failure of the husband’s mother to give evidence about the debt?
Annexed to an affidavit of the husband filed 5 October 2007 was a statement, styled as an affidavit, signed by his mother Mrs Singer, in the presence of Cypress attorneys. In the body of the affidavit, the husband deposed:
9.My mother [Mrs Singer] has prepared an Affidavit which has been signed by my mother in the presence of a Solicitor. Annexed hereto and marked with the letter “K” is a true copy of that Affidavit. My mother in [sic] unable to come to Australia to give evidence because she is currently living in Cyprus and my father is very unwell with a heart problem, high blood pressure and overactive thyroid and is on oxygen for significant periods of each day including all night whilst he is asleep. My mother is currently caring for my father in Cyprus.
10.Also my sister [K] is currently being treated for breast cancer and has just undergone chemotherapy and is currently undergoing radiotherapy. My sister has three children one of whom is 16 years of age. My mother is also helping my sister with household duties and is caring for my sister’s daughter [X] whilst [K] is undergoing treatment in Cyprus. Annexed hereto and marked with the letter “L” is a true copy of a medicate certificate from Dr [M] confirming [K]’s treatment.
At trial, objection was taken by counsel for the wife to annexure K and after argument, Slack FM excluded it. Ms Brasch, counsel for the husband on appeal, submits that it should not have been excluded, but this was not a ground of appeal. However, I will return to that issue later. As to his finding about the failure of the husband’s mother to give evidence, Slack FM said:
89.The husband’s mother did not give evidence in the proceedings. In particular there is no evidence by her as to the existence of any debt nor is there any evidence from her requiring the debt to be repaid. There was no explanation given for the failure of the mother to give evidence.
In light of the husband’s deposition and the annexure, the learned Magistrate’s finding that “There was no explanation given for the failure of the mother to give evidence” may appear at least cryptic and quite possibly wrong.
However, the context in which the question of evidence from the husband’s mother arose and the discussion about that question at trial, has relevance. The trial commenced before Slack FM on 20 August 2007 and went into the next day. It was then adjourned to allow the husband the chance to obtain some documents, particularly relating to the purchase of a hotel in England, and was to recommence on 8 October 2007.
The affidavit of the husband annexing the “Affidavit” of his mother was, as earlier seen, only filed on 5 October 2007.
When the matter resumed on 8 October 2007, Ms Howe, then counsel for the wife, objected to Annexure K, the mother’s statement. The following exchanges between Slack FM, Ms Howe and Mr Galloway, then counsel for the husband, occurred:
MR GALLOWAY: … Your Honour, the Evidence Act would permit its reception in any form, even as an annexure to an affidavit. Your Honour may require and my friend may insist upon the maker of the document being present for cross-examination. Your Honour, this lady lives in Cyprus.
FEDERAL MAGISTRATE: But why wasn’t this – this wasn’t part of your original case firstly. Secondly, the adjournment was to simply allow some discovery, if possible, of the mortgage document. Does this witness give any evidence in relation to that issue?
MR GALLOWAY: Your Honour, she doesn’t ---
…
MR GALLOWAY: Your Honour, all I can say is that we are – or have been making efforts to contact this lady by telephone. We have gone so far as to make inquiry of the Cyprus Telecom company as to why phone reception is not available to the small town in which this lady lives. Apparently the phone service has been interrupted by a storm - - -
FEDERAL MAGISTRATE: But that still doesn’t answer – why should I allow this now because it really is an attempt to get another witness in when this wasn’t part of your case originally.
…
MS HOWE: She is unavailable for cross-examination, your Honour, and if it was to be admitted then we would be wanting to cross-examine this person on her evidence.
…
FEDERAL MAGISTRATE: Well, as I understand it, Mr Galloway says he makes her available on the telephone. Is that right, Mr Galloway or not?
MR GALLOWAY: Yes, if I can, your Honour. I’ve got to say to you that that seems a bit problematical and if I can’t do that well, my friend has probably got good grounds to object.
…
FEDERAL MAGISTRATE: Yes. Well, Mr Galloway, I’m not going to allow the annexure K to the affidavit. It seems to me that it’s – although it’s annexed to Mr [Singer]’s affidavit as a statement, it really is an attempt to call a further witness in the proceedings.
MR GALLOWAY: Yes.
FEDERAL MAGISTRATE: And he had the opportunity to do that prior to the commencement of the trial in this matter to do so as it now appears to be done, as it were, on the last minute.
MR GALLOWAY: Yes.
FEDERAL MAGISTRATE: I think is [sic] unfair and prejudicial to the wife firstly. And, secondly, you can’t tell me that you can produce the witness for cross-examination.
MR GALLOWAY: No, I can’t, your Honour.
FEDEARL MAGISTRATE: So I’m going to exclude annexure K.
…
As can be seen, Mr Galloway virtually conceded that if he could not produce the husband’s mother for cross-examination, at least by telephone, objection to the statement would be on “good grounds”. As well, the doubt over whether the husband’s mother could give evidence by telephone was overtaken by the progress of the trial, not being definitively resolved.
In these circumstances, the unexplained lateness of the attempt by the husband to “put on” evidence from his mother, and the absence of definitive explanation for the inability to make the mother available by telephone, I am not convinced that, though perhaps terse, the preposition that no explanation was given for the failure of the husband’s mother to give evidence was wrong.
If that finding by Slack FM was a mistake, the question arises as to whether it may have affected other conclusions, in particular that as to whether a debt to the husband’s mother existed.
In this respect, my first observation is that the learned Magistrate did not expressly say that he attached any significance to the absence of an explanation. He cannot directly be seen to have relied upon it.
Secondly, even if the mother’s failure to give evidence was taken as explained, the absence of a witness of such significance to the issue would have remained and other observations by Slack FM about that absence would remain accurate.
The other evidence about the debt will be discussed shortly, but for present purposes, I merely say that I incline to the view that, even had the learned Magistrate accepted that an explanation had been given for the mother’s failure to give evidence, the result would have been the same.
However, in the end I do not think that I need to reach a conclusion about that as, if I was satisfied that the finding challenged was a mistake (and that there were no other appealable errors which could only be remedied by remission), I would re-exercise the discretion.
Having regard to the otherwise unchallenged findings by Slack FM about the existence or not of the debt, I would find:
(i)that it did not exist; and
(ii)if it did, I would not include it in the table of assets for division, because I do not consider the husband’s mother likely to ever “call it in”.
As to any argument that the learned Magistrate was wrong in excluding the statement of the husband’s mother, the concession by Mr Galloway at trial that there would be “good grounds” for objection, if he could not produce the husband’s mother for cross-examination, goes a long way towards the failure of the argument.
In any event, s 135 of the Evidence Act 1995 (Cth) – the general discretion to exclude evidence – was available to Slack FM and indeed the terminology of his reasons for the exclusion resonate with terms used in that section.
Was the learned Magistrate’s finding that there was no debt of $300,000 owed by the husband to his mother wrong?
The following is a summary of pertinent findings of the Federal Magistrate.
The parties purchased a residence in Australia in 1991, using $100,000.00 from the husband’s parents. The wife says that was a wedding gift. The husband says it was a loan in order to purchase the property. When the property was sold in 2003, the parties paid the husband’s parents $115,000.00 from the sale proceeds. The husband says that was repayment of the loan.
In early 1993, the parties moved to a property owned by the husband’s mother at the town “H” in the United Kingdom and in early 1994 the husband’s mother transferred the “H” house as a “gift of love” to the husband. The wife contends that the money paid to the husband’s parents from the sale of the initial property was the price paid by the parties to purchase the “H” property. The husband denies this.
The husband says that he agreed with his mother that if the property was ever sold he would pay back to his mother the sum of ₤157,000.00. The wife says she has no knowledge of such an agreement. At the end of 1998, the parties sold the “H” property and returned to Australia with approximately $456,000.00, being the liquidation of the UK assets.
A substantial part of that money was used to purchase a property in Australia at the town “S” and shortly after, the husband signed a Deed of Acknowledgement of Loan with his mother, to repay to her a sum of $300,000.00. That document was in a form for both the husband and wife to sign. The husband says the wife refused to sign. The wife says she knows nothing of the document. The husband says that this document resulted from his mother’s agreement that he retain the monies in order to re-establish the family in Australia.
In August 2002, the “S” property was sold and net proceeds of $543,000.00 were divided between the parties; $260,000.00 to the wife and $283,000.00 to the husband. In February 2003, a house was purchased on the Sunshine Coast in Queensland, the wife providing $240,000.00 from her account with $213,000.00 coming from the husband’s account. The parties retained this property at trial.
The Federal Magistrate’s examination of the question of the debt owed to the husband’s mother occurred in the context of a contention by the wife that the husband had failed to make full and proper disclosure in respect of a number of financial transactions occurring during the marriage, only some of which are described above. As Slack FM said:
39.The tenor of the wife’s evidence is that the husband maintained control of the financial circumstances of the parties during the marriage and she was not ever fully informed of the parties’ financial arrangements and that her husband was not honest in the information that he gave her in relation to the parties [sic] circumstances.
In respect of these contentions, Slack FM made the following findings:
43.I accept the wife’s evidence that the husband maintained control (and fairly tight control) over the finances of the family over the course of the marriage. I found the wife’s evidence about her lack of knowledge of the expenditure by the husband to be compelling. I also accept that the husband did not reveal to the wife all of his dealings with the various monies that he held.
44.I was not impressed with the husband as a witness and I have lingering doubts as to whether he has made full disclosure of all the documents that he has in his possession relevant to the transactions in question. In the light of the admitted inaccuracies in his affidavit I have significant concerns about the reliability of his evidence.
After examining evidence about a number of transactions, Slack FM said:
79.I am unable to conclude that the husband has secreted that money; transferred it to other family members or otherwise wasted the money on reckless expenditure. To this point, I have accepted that the husband has spent the money on the family and I am not able to conclude otherwise in relation to these monies.
Later, specifically addressing the issue of the alleged debt of the husband to his mother, Slack FM said:
88.The husband says that an amount of approximately $300,000 should be taken into account as a debt owing to his mother. The basis for the debt is said to be the Deed entered into between the husband and his mother on 16 July 1999.
89.The husband’s mother did not give evidence in the proceedings. In particular there is no evidence by her as to the existence of any debt nor is there any evidence from her requiring the debt to be repaid. There was no explanation given for the failure of the mother to give evidence.
90.The Deed itself is simply an acknowledgement of debt and does not recite how the debt had been incurred. The Will of the husband’s mother provides that if the monies are not repaid then the debt is to be forgiven.
91.It is difficult to see how the debt arises.
92.The wife says she has no knowledge of any debt and is not aware of any discussions between the husband and his mother concerning any outstanding loan or liability to her. I accept her evidence about that.
93.The husband’s mother and family have assisted the husband and wife financially over the course of the marriage.
94.According to the husband, $100,000 was “received from his parents to build our first home” (the “[R] property”). That money was reimbursed upon the sale of the [R] property. There is no dispute that the monies were received. There is a dispute about the basis for the receipt of those monies. I accept that the wife believed that those monies were a wedding gift.
95.There was a transfer of the [H] property to the husband “as a gift of love”. He does not directly allege that any loan or liability arose with respect to that transfer in his affidavit (see paras 405-407). He simply says that his parents have not been reimbursed. Whilst the husband alleges that there was an agreement with his mother that she would be repaid a sum of money that Deed of acknowledgment of debt was not signed until July 1999 and I accept the evidence of the wife that she had no knowledge of that document. There is no evidence from the husband’s mother to that effect and I do not consider that the husband’s evidence on this issue is reliable or believable.
96.On this particular issue I am not satisfied that there is any outstanding liability to the husband’s mother. Notwithstanding the Deed of Agreement I am not satisfied that the husband’s mother has any intention to recover the debt. The mother’s Will makes provision for the circumstances that the monies are not repaid.
97.I am not satisfied that there is any outstanding liability owing to the husband’s mother and I am also not satisfied that any attempt will be made to recover the monies. The fact remains though that the husband’s parents did make a significant financial contribution to the welfare and benefit of the family.
As to challenges to factual conclusions, in G v H (1994) 181 CLR 387 at 390 Brennan and McHugh JJ said:
…An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence on some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. …
In Lovell v Lovell (1950) 81 CLR 513 at 532-3 Kitto J said, with respect to the onus on an appellant:
The onus is particularly heavy where an attack is made upon findings of fact made by a judge who had the advantage of seeing and hearing the witnesses; in such a case each judge of the appellate court must put to himself the question: 'Am I—who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case—in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong?'…
In Marsden and Winch (No.3) [2007] FamCA 1364, the Full Court of this Court said:
155. Findings of fact involve a weighing of the probabilities and are not made in a vacuum. As Gibbs CJ and Mason J said in Chamberlain v R.(No 2) (1984) 153 CLR 521 at 536, findings concerning a particular fact are made “not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence”.
I discern no error in the conclusion at which the learned Magistrate arrived.
In assessing contributions, did the learned Magistrate fail to give proper consideration to the “significant financial contribution to the welfare and benefit of the family”, from the husband’s parents?
The submission is not that the learned Magistrate failed to have regard to the contributions from the husband’s family. Indeed, the Federal Magistrate said:
105.Over the course of their marriage the parties did receive significant financial and other assistance from members of their respective families. There is a dispute between the husband and the wife as to the quality and standard of that assistance.
106.The husband’s parents contributed initially $100,000 for the purchase of the [R] property. Those monies were however repaid upon the sale of that property. The wife’s parents paid for the wedding and supplied the parties with household chattels.
107.Subsequently the parties were allowed to occupy the [H] property and the husband was gifted that property. I do not accept that any debt arose in relation to the transfer of that property but it was a significant contribution from the husband’s mother and I consider that should be seen as a contribution by the husband. The contribution was significant because the proceeds of the sale of that property became the basis for subsequent purchases by the parties including the current matrimonial home.
…
109.The husband’s parents also provided a guarantee for the loans for the purchase of the [W] Hotel.
…
111.In all of the circumstances I conclude that the contributions should favour the husband because of the following factors:
a)His initial contribution was greater than that of the wife.
b)His family provided the family with significant financial assistance:
i) There was the initial borrowing to purchase the [R] property which was subsequently repaid but did assist the parties in the purchase. The husband and his family worked on the property to improve it.
ii) The gift of the [H] property which directly benefited the parties and allowed them ultimately to establish the current asset base that they have.
iii) I accept that the parties received further cash gifts during the marriage.
112.Balanced against that were the contributions from the wife’s family which include the wedding gifts and the $12,000 provided to the wife to bring the mortgage out of default and those should be attributed to the wife. Those contributions though are not of the same significance as those contributions from the husband’s family.
113.I do not consider that the contributions by the parties themselves during the marriage were greater than the other. The parties were married for 16 years and have two children. Both have worked in the marriage for the betterment of the family. The gift of the [H] property however was, in my consideration, very significant.
114.I assess the contributions to be 65/35 in favour of the husband.
In argument, Ms Brasch suggested that the range for the assessment of contributions was 70 per cent to 80 per cent in the husband’s favour. Ms Brasch pointed to the proportion of the parties’ current assets represented by the amount “gifted” by the husband’s family.
The learned Magistrate specifically recognised that proportionality in the passages just quoted. However, of relevance to the weight to be given to that was his finding that capital which the wife had claimed was unaccounted for, had been spent.
In addressing this argument, I bear in mind what has been said in the following cases about appeals from discretionary decisions.
In Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach:
… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
In Norbis v Norbis (1986) FLC 91‑712 at 75,178 Brennan J stated:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
I think the award at the bottom of, but within the range. The differential produced by the assessment of contributions was 30 per cent, which was about $130,000.00 more to the husband, a significant sum in the context of modest assets.
I find no merit in this ground.
Did the Magistrate fail to admit evidence of the jewellery of the parties; if so, should he have admitted it and should he have found that the wife had taken the whole of the parties’ jewellery?
Of “jewellery”, Slack FM said:
86.For similar reasons I do not intend to take into account the jewellery of the parties. The jewellery was kept in the safe during the marriage. The wife had the safe opened and she has sold some of her jewellery for legal fees for these proceedings. She says (and I accept her evidence about this) that the husband had the only key to the safe. She says that when the safe was opened it was only her jewellery still there. The husband says that his jewellery was worth around $16,000 and the wife’s jewellery around $21,000. I have no valuation evidence.
87.I consider that by not taking into account their jewellery, there is a further balancing of the post separation disposition of assets between the parties. The husband retained $60,000, the proceeds of the sale of his car, his jewellery and his guns. The wife retained the household furniture, her car, her jewellery, the $8,000 from the mortgage borrowings and the use of the family home since separation.
The proposition contained in ground 6, that the Federal Magistrate failed to admit evidence of the value of the parties’ jewellery was not developed in argument. Moreover, I was referred to a valuation in fact received into evidence. The valuation is in pounds sterling; so on its face did not relate to the Australian market, was also on its face “valid only for the purpose of insurance” and was dated in September 1996. I am not persuaded that Slack FM needed to do or say anything about it.
It is also difficult to appreciate any complaint about the learned Magistrate’s treatment of the value of jewellery. As seen in paragraph 86 of his reasons quoted above, Slack FM recorded the husband’s contentions about value and, in paragraph 85, said that he had “taken into consideration the rough estimates…given…”
The only other contention is, in effect, that the learned Magistrate should have found, in accordance with the husband’s case, that the wife had taken all the jewellery out of a safe deposit box, rather than as he found, in accordance with the wife’s case, the elements of which he set out in paragraph 86 quoted above.
Having regard to the Federal Magistrate’s findings about comparative credibility generally, the competing evidence before him and the authorities earlier quoted, I consider the conclusion of the Federal Magistrate entirely open to him.
Did Slack FM err in failing to provide for an equal payment by the parties of fees of certain expert witnesses
In the course of proceedings about parenting orders, the parties had engaged two experts, Dr H and Mr B. Orders required the parties to equally bear their fees (Dr H, $7,315.00; Mr B, $1,595.00). Prior to the property settlement trial, the husband had paid those fees. The husband’s argument is that the result of the trial Judge’s orders is that he has been left solely responsible for payment of them.
That is not so. His payment of them was recognised, but subsumed in a balancing exercise across a number of circumstances. Slack FM said:
80.At or around the time of separation the parties drew down a further $70,000 on the mortgage on the matrimonial home. I accept that the wife received approximately $8,000 of those monies. The husband contends that the balance was used by him for relocation expenses and living expenses and the discharge of credit card liabilities. The wife concedes that the husband contributed to the mortgages on the family home until September 2006. It is also conceded that he paid Dr [H]’s fees (approximately $7,000). The wife acknowledges that he purchased new furniture which, on her case, included a plasma television and leather lounge.
…
83.Ordinarily monies prematurely distributed to a party after separation would be taken into account. I acknowledge though that part of those monies were used by the husband to rehouse himself; contribute to the mortgage debt on the family home and pay for Dr [H]’s fees. The wife has retained the use of the family home, furniture and motor vehicle. I am not able to conclude that the husband did not pay out a credit card liability. Ultimately I do not consider that I should add back those monies.
84.I acknowledge though there should be a balance to the wife. I do not intend to take into account the motor vehicle in the possession of the wife or the furniture and chattels in her possession. In that way the husband has refurnished his accommodation with the joint monies and the monies from the sale of the motor vehicle in his possession as he saw fit. It is just and equitable for the wife to retain the furniture in her possession and her car and not have those items directly taken into account. I note that she has also had the benefit of occupying the matrimonial home and some of the monies were given to her and used to pay off some of the liabilities for these proceedings (Dr [H]’s account). …
True it is that in paragraph 84, Slack FM has said that the wife paid Dr H’s account. This I think an obvious inadvertence of expression rather than of understanding, given the reference to payment by the husband in paragraphs 80 and 83. True it also is that Slack FM does not mention Mr B’s fees, but this is a matter of small moment and implicitly (and probably) part of the balancing exercise.
Did Slack FM err in adjusting the contributions assessment by 5 per cent in the wife’s favour, on account of s 75(2) factors?
The learned Magistrate’s consideration of s 75(2) factors was:
115.The wife currently is responsible for the care, welfare and development of the [parties’ daughter] [at trial, 15 years of age]
116.The wife is trained [in the beauty industry] and has worked fairly recently [in that industry] and presumably can continue to earn income in that industry.
117.She seems to be in reasonably good health. She has no superannuation.
118.The husband is in good health. He has worked throughout his life in the automotive industry and has worked in various capacities including management.
119.At the moment he is unemployed as a result of his commitment to the welfare of his son. [at trial, 12 years of age]
120.In my consideration he has the prospect of securing other employment although I acknowledge that [the parties’ son] has some significant behavioural problems that do require a significant degree of attention to his ongoing care and commitment.
121.The husband has superannuation although I have taken into account his superannuation.
122.This is a matter where I do consider there should be an adjustment for the s.75(2) factors in favour of the wife. My reasons for reaching that conclusion are as follows:
a)Whilst the husband will predominately have the responsibility for the care, welfare and development of [the parties’ son], he ultimately has a greater earning capacity than that of the wife and it is likely that he will be able to re-establish himself in the workplace without significant difficulty.
b)Both parties will continue to have the responsibility for the care, welfare and development of [the parties’ daughter] although she will predominately be cared for by the wife.
c)Neither party has re-partnered.
d)The husband will, as a result of these orders, have greater property and financial resources than the wife.
e)Although the husband will have the greater responsibility for the care of [the parties’ son] and that may impact on his capacity for employment, he will nevertheless have more significant financial resources and property.
123.I consider that there should be an adjustment to the wife of 5%.
Ms Brasch proposed that the Federal Magistrate’s finding that the husband had a greater earning capacity than that of the wife was either unsupported by the evidence or against the weight of that evidence. She pointed particularly to his unemployment at trial so as to care for the parties’ son.
Mr Jordan, counsel for the wife on appeal, referred to evidence before the learned Magistrate of the husband’s work history and earnings, as support for Slack FM’s conclusion. I consider that the learned Magistrate’s conclusion was open to him.
No error of fact is shown in the learned Magistrate’s assessment of factors made relevant by s 75(2) of the Family Law Act 1975 (Cth). Ms Brasch did not suggest that the Federal Magistrate took any irrelevant circumstance into account.
There were factors favouring the husband, for example, the responsibility for the younger child, but his greater earning capacity and greater share of the property and resources, favoured the wife. Again, the deliberation was a discretionary exercise. I see no error in it.
Did Slack FM err in not including certain items in the asset “pool” for division?
Although not apparent from the written summary of argument (prepared by Mr Galloway of counsel – counsel for the husband at trial – but adopted by Ms Brasch), an argument for the husband was that the learned Magistrate had also failed to include in the pool certain items. These were the husband’s guns ($1,770.00) and the wife’s superannuation ($5,500.00).
As well, in respect of items such as the wife’s motor vehicle and furniture, the Federal Magistrate made no assessment of value. Put alternatively, the reasons did not disclose what asset pool the learned Magistrate decided upon. When thus particularised, the propositions can be seen to fit within ground 2.
However, there is no merit in these arguments. As earlier seen, Slack FM balanced a number of matters; use of money post-separation, arrangements after separation that financially favoured one or the other, the inclusion of items in the asset pool and estimates of the value of items. Even if he overlooked the wife’s superannuation (and not mentioning it does not necessarily mean that he did not have regard to it), all of the other matters were part of that balancing process. Values asserted for motor vehicles and the husband’s guns were taken into consideration as rough estimates. True, no values were referred to for furniture or chattels of either party, but even had their assessments of these been taken into account as admissions against interest, the personalty each retained would have, if anything, favoured the husband.
Did the Federal Magistrate’s exercise of discretion miscarry, in that the orders were not just and equitable?
No additional submission was made in respect of this “catch all” ground, which depended for its success on argument in respect of preceding grounds being accepted.
Conclusion
No merit being found in any ground or argument in support, the appeal should be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.
Associate:
Date: 5 June 2008
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