SK & MHK

[2005] FamCA 69

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA66 of 2004

(BRM5604 of 2002)

BETWEEN:
SK
Appellant Husband

AND:
MHK
Respondent Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 7 February 2005

Date of Judgment: 22 February 2005

Appearances: Mr McGregor of Counsel, instructed by Emerson Black, Solicitors, appeared on behalf of the Appellant Husband

Mr Galloway of Counsel, instructed by Jones Mitchell Lawyers, appeared on behalf of the Respondent Wife

Name of Appeal	SK and MHK
Appeal Number	NA66 of 2004
Date of Appeal Hearing	7 February 2005
Date of Judgment	22 February 2005
Coram	Warnick J

Catchwords: APPEAL FROM FEDERAL MAGISTRATES COURT – PROPERTY SETTLEMENT – CONTRIBUTIONS - Wife sold her own property at the commencement of cohabitation – Federal Magistrate accepted that the sale of the wife’s home was a mutual decision based on the fact that the parties had formed an intention to live in the husband’s home - Federal Magistrate took into account that the husband still has the benefit of his substantial interest in real property and made an allowance in the assessment of contributions for the “loss” by the wife of her home – Uncertainty about what constituted “loss” – Wife still obtains benefit of investment in real estate through inclusion of husband’s property in pool - Regard for this factor would have to be described and justified within the terms of contribution or section 75(2) factors by the Federal Magistrate, however this was not done – Merit in this ground of appeal – SECTION 75(2) FACTORS – Uncertainty as to what Federal Magistrate meant when reference was made to the wife’s financial future having been more greatly affected by the marriage than the husband’s – May have included a reference to the “loss” of the wife’s home again – INCOME OF NEW PARTNER – The Federal Magistrate found that the husband had the financial support of his new relationship – Conceded by wife’s counsel that this was an error but counsel submitted it was “de minimus” – Not possible to say Federal Magistrate’s specific finding was not influential on her final decision – RE-EXERCISE OF DISCRETION – Asset pool divided on the same percentages as those selected by the Federal Magistrate

Appeal Dismissed. Written submissions invited on costs.

This is an appeal by SK against orders made by Federal Magistrate Rimmer, effecting an alteration of property interests following the breakdown of Mr SK’s marriage to MHK.
The learned Magistrate had found that the net asset pool approximated $386,000.00. The orders made by the Federal Magistrate were based on an 80/20 division in favour of the husband. The grounds of appeal challenged aspects of the assessment of contributions by the trial Magistrate, the making of an adjustment for section 75(2) factors, and contended that the award was outside the reasonable range of the exercise of discretion.
The particular order challenged required the husband pay the wife $76,173.00. The husband sought that that payment be reduced to $14,415.00.
Matters considered in disposition of the appeal are the reasons of the Federal Magistrate, including background facts emerging therefrom, the principles applicable to the appeal, the grounds of appeal, and whether, if any ground is made out, the discretion ought be re-exercised, and if so, the result of that re-exercise.

The judgment of the learned Magistrate, including background facts

An issue that fell for determination by the Federal Magistrate was when the parties commenced cohabitation. The learned Magistrate found that:
“22. …these parties were in a fully committed and supportive relationship which was based upon a mutual intention, which was carried into effect by their contributions to each other and their finances, commitment for the long term future of that relationship in every sense by about mid-1995.”
The learned Magistrate recorded that in 1993 (the time at which the wife contended the relationship of the parties commenced) the wife had net assets of approximately $29,700.00, plus a house full of furniture. Her Honour also said:
“19. …It is not disputed that at the commencement of their relationship that the husband was not employed and had net assets of approximately $276,000.00. Neither the parties had any significant superannuation entitlements.”
Each party had children from prior relationships.
The parties married on 20 November 1999.
The learned Magistrate also found that after mid-1995, the parties separated on a number of occasions, totalling just over 9 months.
For much of the parties relationship, the wife was employed as a medical receptionist on a permanent part-time basis, but she ceased employment at the time of marriage. The husband did not engage in employment “in any consistent or meaningful way”.
The parties separated on 25 May 2001. The trial Magistrate concluded that therefore the relationship was of approximately 4½ years.
After separation the wife moved from the former matrimonial home and obtained rental accommodation. She had withdrawn $1,880.00 from the joint account of the parties at separation, as she had no other means of self support. She sold her car to pay general living expenses until she obtained employment in February 2003.
At trial, the wife remained employed for 4½ days per week, but her employer, a medical practitioner, was aged and in ill health. The doctor was, in any event, cutting back his practice to about 3½ days per week. The wife was earning about $455.00 per week. The learned Magistrate accepted that due to her age, the wife would find gaining employment in the G area “extremely difficult”. The wife also suffered vertigo, said by the Federal Magistrate to be a debilitating condition.
The husband suffered from a back complaint. However, he had recently, at trial, commenced work as a self employed tiler and hoped to continue that employment as long as physically able to do so.
The husband was 54 years at trial, the wife 51 years.
After discussion of these and other facts, the learned Magistrate then dealt with some issues about assets owned by the husband at the time of hearing and the nature of some of the alleged financial contributions by him during the relationship.
One of the issues with which her Honour dealt under this heading is connected with a ground of appeal. The husband claimed that he had numerous tiling jobs during the relationship. However, the husband had admitted that he had not put in a taxation return since 1993. After a warning as to privilege against self incrimination, the husband declined to answer all questions about whether he had earned income. The learned Magistrate said:
“In those circumstances I find the husband’s evidence as to contributions he made from any earnings during the relationship unreliable, and it will not be taken into account.”
Her Honour then turned to the relevant law. Following that discussion, she formulated an asset table, producing net assets of $386,101.00, and then she considered contributions.
The learned Magistrate commenced that consideration by referring to what the wife said she had at the commencement of cohabitation. It is not clear from her Honour’s reasons what date she was addressing by so saying, but probably it was 1993, in accordance with the evidence of the wife and not as the learned Magistrate had herself found, mid-1995.
As earlier indicated, her Honour concluded that the wife had net assets of approximately $29,700.00, plus furniture. The major asset of the wife was a house, subject to a mortgage. It was common ground before me that the amount recorded for the mortgage was incorrect and indeed, using the recorded figure, the mathematics do not produce the figure for net assets, which is accepted as correct.
Her Honour then addressed the assets that the husband had at the commencement of cohabitation. Again, the date to which this discussion refers, is not stated.
Immediately after setting out these details, the learned Magistrate referred to the sale by the wife in October 2000, of the property she had at commencement of cohabitation, producing net proceeds of $27,577.00. Her Honour then said:
“66. It was agreed between the parties that they would give about one-third of sale proceeds to each of the wife’s sons, two-thirds in equal shares. It was decided to give her boys those funds as the husband’s children had been given much more, but the gift was from both of the parties.”
Her Honour accepted that the sale of the wife’s home was a mutual decision based on the fact that the parties had formed an intention to live in the husband’s home. The learned Magistrate said:
“73. …If it were not for this, I have no doubt that the wife would have retained ownership of her property. In assessing the parties’ contributions and in the consideration of the justice and equity of this matter, this is something that I shall take into account in the wife’s favour.”
Her Honour then turned to consider improvements to property and noted that improvements had been conducted to the husband’s property prior to the wife moving there and that improvements were also made subsequently, in which the wife participated. The learned Magistrate accepted that the wife had also contributed by household efforts and that her income:
“…was used to assist in the purchase of many of the items she outlines in her evidence.
I accept that the wife made contributions to the home duties and welfare of the family. I accept that her contributions in this regard were equal to the contributions made by the husband to the marriage.”
The learned Magistrate accepted that the wife had made some contributions to assist the husband in relation to a child of his, who suffered a disability, but that the husband also made contributions to assist the wife in relation to her two sons.
The learned Magistrate then said:
“83. Overall I assess each party made contributions to the relationship as follows:
·By contributing as I have already found those assets they had at about mid-1005 (sic) to the marriage. In this regard the husband has made the far greater contributions both in terms of his initial contributions and because of the use the wife put to the proceeds of sale of her home for the benefit of her children. However I take into account the fact that the wife has sold her home to further the parties’ intention to remain living in the husband’s home and this has meant that the husband still has the benefit of his substantial interest in real property and the wife does not;
·Each party contributed to the household as it was constituted from time to time and the improvement of the assets equally during the period of the relationship;
·The wife made a greater direct financial contribution to the financial support of the family from the income she earnt in the marriage. I do not accept the husband’s evidence as to his contributions from earnings as a tiler or from the sale proceeds of the gold for the reasons I have given.
84. Whilst the husband’s overall financial contributions were far greater than the wife, the fact that the husband was the major financial contributor from the assets that he brought in, this does not, as he argues, make him the sole contributor to those assets.
…
88. Overall I am satisfied that the wife contributed 15 % and the husband 85 %.”
Her Honour then turned to a consideration of section 75(2) factors. The learned Magistrate recorded that the wife had no assets except for a small amount of personal effects. She had a minimal superannuation policy and had borrowed monies ($15,000.00) from a friend to fund the proceedings.
The learned Magistrate further said:
“91. The husband has not provided to the court proper disclosure of his present income. His oral evidence is that he is now working a self employed tiler. It is not possible for me to discern his precise earings from this endeavour. He has re-partnered and has the support financially of this new relationship to assist with his needs. He has no liabilities.
92. Neither of the parties is young. In (sic) find that the wife’s financial future has been more greatly affected by the marriage than the husband’s. I find that the husband has greater assets and resources than the wife.
93. I assess therefore that there should be an adjustment to the wife under s 75(2) in favour of the wife of a further 5 %. This equates to the sum of $17,805.00.”
Under the heading “Order that are (sic) just and equitable” the learned Magistrate then considered the result of the proposed division, in terms of the property that each party would have after implementation, and concluded:
“96. Given the party’s contributions and needs and there (sic) respective ages and futures, I am satisfied that this result is just and equitable.”

Principles on appeal

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

Grounds of appeal

There were 9 grounds in the Notice of Appeal filed 25 October 2004, but no argument was advanced in support of grounds 3, 4 and 5.
Ground 1 asserted that the order of the Federal Magistrate was outside the reasonable range of the exercise of her discretion and at the hearing of the appeal, that ground was argued last, following the grounds which dealt with more specific assertions. I will discuss the grounds in the order adopted by counsel for the appellant.

Ground 2

“2. The Federal Magistrate erred in assessing the initial contributions of the parties at $29,700 for the wife and $276,000 for the husband.”

Counsel for the appellant submitted that the learned Magistrate’s findings about the exact monetary contribution of the wife from the sale proceeds of the property she had at commencement of cohabitation, were unclear. He submitted that the contribution was either $16,192.00 or, at best, $19,006.00, not $29,700.00.
While this may well be so, I do not think that it can be maintained that the learned Magistrate was not alert to the use to which the sale proceeds were put, because in paragraph 83 she specifically said:
“83. …the husband has made the far greater contributions both in terms of his initial contributions and because of the use the wife put to the proceeds of sale of her home for the benefit of her children.…”
However, counsel for the appellant attacked other aspects of the assessment of initial contributions. He argued that a T Superannuation policy was included in the pool of assets at the date of trial at a value of $21,280.00 and there was evidence from the husband of its value at the commencement of cohabitation. He submitted that there was no evidence of contributions made to the policy during the course of the relationship. He submitted that the superannuation policy ought to have been included in the calculation of initial contributions or have been excluded from the pool at the date of trial.
In addition, various chattels were included in the asset pool, but no value was attributed to the value of the ride on mower, tools and other chattels brought into the relationship by the husband.
The sufficiency of reasons, including findings, is much connected with the circumstances of the case. As has already been noted, each of the parties contended for widely varying dates for the commencement of cohabitation and each addressed assertions as to what he/she held at the commencement of cohabitation to the date for which he/she contended. The Magistrate found that cohabitation commenced at a time for which neither party contended.
Moreover, counsel for the husband conceded that successful objection had been taken at the trial to assertions made by the husband as to value of assets he held at commencement of cohabitation. Counsel for the wife contended that in fact the figure adopted for the net assets of the husband came from the wife’s evidence which was not challenged and in respect of which there was no contrary evidence. That evidence included reference to chattels, the value of which was unknown.
Counsel for the wife submitted that the position for which the husband now contends in respect of the superannuation policy and chattels, was not a position contended for by the husband at trial.
It is also pertinent in my view to note that the findings made by the learned Magistrate about assets that the husband had at the commencement of cohabitation of the parties and whether those assets included superannuation, were qualified:
“19. …It is not disputed that at the commencement of their relationship that the husband …had net assets of approximately $276,000. Neither the parties had any significant superannuation entitlements.” (emphasis added)
In the circumstances, I consider that there is no merit in this ground.

Ground 6

“6. The Federal Magistrate erred in failing to make an allowance in the contributions based assessment for the improvements carried out by the appellant to the respondent’s home, owned by her at the commencement of the relationship.”

It was submitted that the learned Magistrate failed to refer to, or take into account, these contributions, notwithstanding that there was ample evidence of them.
In response, it was submitted on behalf of the wife that, when the Federal Magistrate said in paragraph 83 of her reasons:
“83. • …
•Each party contributed to the household as it was constituted from time to time and the improvement of the assets equally during the period of the relationship;”
she should be regarded as referring, among other matters, to improvements to the wife’s home.
I think it must be conceded that the learned Magistrate may have had in mind, when so expressing herself contributions which the husband made to improvement of the wife’s property, but such an inference is certainly not compelling.
Moreover, in my view, in circumstances in which contributions had earlier been reviewed by the learned Magistrate in some detail and no mention had been made of improvements by the husband of the wife’s property, it is an unlikely inference.
Of course, not every detail of contribution must be mentioned in reasons and whether or not the absence of mention here amounts to appealable error is, I find, a troublesome question. This is the moreso because, as will be later seen, some or even many of the husband’s claims relating to improvement of the wife’s property, related to a period before the date that the learned Magistrate found cohabitation commenced.
In view of the conclusions to which I have come in respect of other grounds, I prefer to express no concluded view about ground 6.

Ground 7

“7. The Federal Magistrate erred in apparently making an allowance in the contributions based division for the fact the respondent had sold her home at the commencement of the relationship when the funds produced by the sale were taken in as an initial contribution by the respondent.”

In view of the passage in paragraph 83 earlier referred to, I do not accept the initial submission in support of this ground that in the assessment of contributions, the learned Magistrate took into account as the wife’s initial contributions, the equity in her home at GE, ie. without having regard to the gifts to her sons.
It was further argued that the learned Magistrate indicated in paragraph 73 of her reasons, that the sale of the wife’s home was something she would take into account in the wife’s favour, both in assessing the parties’ contributions and in the consideration of the justice and equity of the matter. That is so. It was argued that:
“…the apparent loss of the home by the wife is in reality an illusion. The ‘home’ is incorporated in the asset pool – whether it is in specie or converted to cash. The fact the husband retained his home carries a number of corollaries, namely, that the value of the home at trial is attributed to him as an asset he retains;…”

There is strength in this submission and in those circumstances caution is appropriate in placing weight at any stage of the assessment process on the “loss” of the wife’s home. An example of the need for caution is that one would expect that the impact of such “loss” could not be measured, unless one also examined the prospects that, after alteration of property interests, the wife would be in a position to re-enter the real estate market. If she did so, that may well limit or eliminate the “loss.
Moreover, while I do not say that it would not be possible to revisit the question of the “loss” of the wife’s home, when considering the justice and equity of the proposed orders, if some allowance had been made for the “loss” in the contributions assessment, caution would be needed to guard against a double counting. However, in this regard, in the instant case, it would not appear that any further adjustment was made on account of the “loss” of the wife’s home, for the purpose of achieving justice and equity in the final orders which were arrived at on the basis of assessment of contributions and of section 75(2) factors.
That leaves the question of whether the learned Magistrate was in error in making an allowance in the assessment of contributions for the “loss” by the wife of her home.
The relevant passage of the learned Magistrate’s reasons is that previously mentioned as part of paragraph 83, namely:
“83. …However, I take into account the fact that the wife has sold her home to further the parties’ intention to remain living in the husband’s home and this has meant that the husband still has the benefit of his substantial interest in real property and the wife does not;”
Without further discussion of the way in which the “loss” of the wife’s home bore upon contributions, in my view, the unspecified regard that the learned Magistrate had to that factor amounts to an error.
It was further submitted that in paragraphs 89 and 90 of her reasons, the learned Magistrate again took into account the “loss” of the wife’s home when considering section 75(2) factors, though it was not clear how that factor affected the adjustment under section 75(2).
It seems to me that, considered alone, in paragraphs 89 and 90, the learned Magistrate may simply have been recording facts about the current financial circumstances of the wife and/or the arguments of the wife.
However, in paragraph 92 of her reasons, under the heading “Sections 75(2) factors”, as earlier seen, the learned Magistrate said:
“92. …In (sic) find that the wife’s financial future has been more greatly affected by the marriage than the husband’s. I find that the husband has greater assets and resources than the wife.”
It seems to me that, on its face, these references might include the matter of the “loss” of the wife’s home, though they might refer solely or additionally to other matters such as the wife’s insecurity of employment.
However, revisiting the terms of paragraphs 89 and 90 in the light of paragraph 92, the reference to the wife having “no assets whatsoever…”, “She says that at the commencement of her relationship with the husband she owned her house and car although she owed funds on the house. She had a houseful of furniture and she now has nothing.” perhaps increase the prospect that the “loss” of the wife’s home was a matter to which the learned Magistrate gave some weight as a section 75(2) factor.
Again, I do not say that it would not be possible in the determination of property settlement to have regard to the fact that the wife had no real estate, compared to the husband who did, but that regard would have to be described and justified within the terms of contribution or section 75(2) factors. That has not been done.
In the end, I consider that there is merit in this ground.

Ground 8

“8. The Federal Magistrate erred, in having found that the parties’ contributions during the relationship were equal, she then adjusted the level of initial contributions made by the parties, or alternatively, in so adjusting the same the Federal Magistrate failed to give reasons for the adjustment.”

Contrary to what is asserted in this ground, the written submissions in support of it acknowledge that the findings of the learned Magistrate, while equating some of the contributions of the parties as equal, found the wife had made greater contributions to the financial support of the family from income.
However, the argument then proceeded that:
“…it is clear from the material that the husband had either cash available to him or income from which he was able to contribute”. See the references to his affidavits referred to under ground 6.…”
The reference here is to expenditure allegedly made by the husband to “assist the wife financially and do work on her home.” He also said he “purchased things for her home” and that at least some work he did was “done by me at my cost”. It was also submitted for the husband that the wife had acknowledged that the husband had used his money to her benefit. His counsel referred to paragraph 21 of the wife’s affidavit of 10 July 2003, which indicates that the husband provided some $500.00 towards the purchase of a car in 1994; paragraph 32, payment by the husband for a holiday in Bali in March 1995; paragraph 34, which relates to a payment by the husband to rebuild a pergola which he had built but which had become infested with white ants; payment of wedding expenses in the sum of $2,000.00 and a further payment in 2000 relating to the purchase of a car. As well there was reference to improvements on the husband’s property and purchase of a wedding and engagement ring.
However, it can be observed that some of these alleged contributions by the husband occurred prior to the time at which, according to the findings of the learned Magistrate, cohabitation commenced. As well, some of the allegations of expenditure were contested by the wife and the resolution of any conflict was not the subject of specific finding, nor was that an area subject to appeal.
In any event, it has not been shown that, even had the Magistrate found that the husband had made some cash contributions, that the finding of the learned Magistrate that the wife had made the greater financial contributions to the financial support of the family from income, would not have remained open to her.
Insofar as it was argued that the learned Magistrate must have adjusted the level of the parties’ initial contributions, the learned Magistrate did not, and was not obliged to, make an assessment in percentage terms of initial financial contributions.
In any event, on the findings made by the learned Magistrate about later contributions, even had she made a percentage determination of respective initial contributions, it would have been open to her to ultimately arrive at a different percentage for division, having regard to the totality of contributions.
There is no merit in this ground.

Ground 9

“9. The Federal Magistrate erred in adjusting the contributions based division for section 75(2) factors when in reality, no basis existed to make any such adjustment.”

It was argued that the learned Magistrate ought not have taken into account the wife’s legal costs.
The learned Magistrate was required by the terms of section 75(2) to have regard to the financial circumstances of each of the parties. The wife’s debt for legal costs was part of those financial circumstances. Such recognition as part of the consideration of section 75(2) factors is to be distinguished from the calculation of an asset pool for division. The learned Magistrate did not bring in the wife’s legal fees to the asset pool, so that the husband cannot complain that upon division of that asset pool, he is sharing some part of the wife’s legal fees.
In circumstances in which there was no evidence from the husband about his legal fees, in my view, even if, as part of a comparison of the assets and resources of the parties, the wife’s legal fees were indirectly taken into account, it cannot be said that the learned Magistrate fell into error on that account alone.
It was submitted for the husband that it is not clear from her Honour’s reasons what supported the 5% adjustment for section 75(2) factors. A reference was earlier made to paragraph 92 of her Honour’s reasons. In that and the following paragraph, her Honour said:
“92. …In find that the wife’s financial future has been more greatly affected by the marriage than the husband’s. I find that the husband has greater assets and resources than the wife.
93. I assess therefore that there should be an adjustment to the wife under s 75(2) in favour of the wife of a further 5%.…”
As previously indicated, just what was intended by the reference to the wife’s financial future having been more greatly affected by the marriage than the husband’s, was not clear. It might have included a reference to the “loss” of the wife’s home. As also previously indicated, taking account of that “loss”, without more, constitutes an error.
It was also argued that there was an inconsistency between, on the one hand, criticism of the husband’s evidence about his employment earnings at the time of trial and perhaps drawing inferences against him because of that, and on the other hand, not giving him credit for an earning capacity during the period of cohabitation. However, as such consideration relates to earning capacities at quite different periods of time, there is no inconsistency in the learned Magistrate’s treatment of these issues.
Finally, a challenge was made to the finding of the learned Magistrate expressed in paragraph 91 in relation to the husband:
“91. …He has re-partnered and has the support financially of this new relationship to assist with his needs.…”
The husband’s Form 17 showed the husband’s present wife as not in receipt of any income. There was apparently some evidence that she had a prospective claim under defacto relationship legislation but, in any event, it was conceded that the finding by the Federal Magistrate that the husband had the financial support of his new relationship, was an error. However, counsel for the wife submitted it was “de minimus”.
Unfortunately, while the error relates to only one of many factors to be considered, it is a specific finding about a factor directly referred to in section 75(2) of the Act, and it is not possible to discern what weight or influence it had upon the learned Magistrate’s decision. It is not possible to say it had no influence.
In my view, this ground must also succeed.

Ground 1

“1. The Order of the Federal Magistrate was outside the reasonable range of the exercise of her discretion.”

In support of this ground, it was argued that the marriage was of short duration, the husband’s initial financial contribution was far greater than that of the wife’s, (correctly assessed), the husband had contributed to the improvements carried out on the wife’s property, prior to commencement of cohabitation, the parties used the home provided by the husband, and the husband had made some financial contribution from some source or other during the cohabitation. Finally, it was submitted, there was no warrant to adjust contributions based on section 75(2) factors.
It was submitted that the award ought be in the same proportions as the parties’ initial financial contributions, other factors balancing each other out and thus, the wife should receive somewhere between 5.5% to 6.4%.
As I am satisfied that the appeal must succeed on other grounds, and as in those circumstances, both parties asked that I re-exercise the discretion, the answer to whether or not I regard the award as outside a reasonable range of the exercise of discretion, is to be found in the re-exercise.

Re-exercise of discretion

The asset pool as found by the learned magistrate is not in question.
In assessing the contributions of the parties, I take account of a very large disparity in financial circumstances at about mid 1995. It is not possible on the findings of the learned Magistrate to be precise about that disparity but having regard to the use ultimately made of the sale proceeds of the wife’s home, it may well be of the proportions, the husband $275,000.00-$300,000.00 in assets, the wife $15,000.00-$20,000.00. I keep in mind however that the wife had some chattels apart from the equity in her former property.
I have in mind the finding of the learned Magistrate that the wife made the greater financial contribution from income during the parties’ cohabitation and that other contributions were equal. I would reach no other conclusions on the evidence to which I have been taken, including the evidence of the improvements made by the husband to the wife’s home over a period of time, a considerable amount of which was prior the commencement of the parties’ cohabitation, and including the evidence of monies admittedly provided by the husband to the wife during cohabitation.
I would make no adjustment, either to the asset pool or the assessment of contributions, on account of monies the wife took at separation, or the car which she sold. She had no other means of support.
I would assess contributions of the parties at 85% to the husband and 15% to the wife.
As to section 75(2) factors, I take account of the large disparity in financial circumstances which remains, after a division in accordance with the assessment based on contributions alone. I take account of the wife’s precarious employment circumstances. Notwithstanding the absence of reliable evidence about the husband’s earnings, with a capacity to be self-employed and expertise as a tiler, he is advantaged as against the wife.
I have regard to the relatively short period of cohabitation of the parties.
Taking account of these factors, I consider a further adjustment of 5% appropriate.
I also consider the orders just and equitable.
In support of argument that the Federal Magistrate’s order was beyond a reasonable range, counsel for the husband submitted that a consequence of the orders made was that the assets of the husband (at around $300,000.00 at commencement of cohabitation) had increased to $386,000.00 at trial, and the wife, who introduced so little, effectively received the whole of this increase.
The answer to this suggestion of unfairness is that, apart from adjustment under section 75(2), the greater financial contribution of the wife during the cohabitation can be seen to have promoted the conservation of the husband’s assets during a period when, as it was found, he made little financial contribution.

Conclusion overall

In the end therefore, notwithstanding that I have found merit in some of the grounds of appeal, on a re-exercise of discretion I would divide the asset pool determined by the learned Magistrate in the same percentages as she selected. Accordingly, in the end, the appeal should be dismissed.

ORDERS

That the appeal be dismissed.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other party within 21 days of the date hereof.
That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other party.
That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.

[2005] FamCA 69

22 February 2005

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