Thynne & Madison
[2007] FamCA 558
•8 June 2007
FAMILY COURT OF AUSTRALIA
| THYNNE & MADISON | [2007] FamCA 558 |
| FAMILY LAW – APPEAL FROM DECISION OF A FEDERAL MAGISTRATE – PROPERTY SETTLEMENT – Appeal from a discretionary judgment – Exercise of discretion - Section 79 Family Law Act 1975 – Nature of the husband’s interest in a Tunisian property – Direct financial contributions of the husband of the marriage – Property acquired after separation - Section 75(2) Family Law Act 1975 – Ages and years of working life of the parties - Appeal dismissed. FAMILY LAW – APPEAL - FUTHER EVIDENCE – CDJ v VAJ (1998) 157 ALR 686 – Failure of the appellant to file evidence which might lead to a different result – Application to adduce further evidence dismissed. |
Family Law Act 1975 (Cth)
AMS v AIF (1999) FLC 92-852
Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Axtell and Axtell (1982) FLC 91-208
CDJ v VAJ (1998) 157 ALR 686
In the Marriage of Clauson (1995) 18 Fam LR 693
De Winter v De Winter (1979) FLC 90-605
Farmer & Bramley (2000) FLC 93-060
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
In the Marriage of Mallet (1983-1984) 52 ALR 193
Lawler & Lawler (1988) FLC 91-927
Norbis v Norbis (1986) FLC 91-712
Pierce v Pierce (1999) FLC 92-844
Soblusky & Soblusky (1976) FLC 90-124
Spiteri & Spiteri (2005) FLC 93-214
| APPELLANT: | MR THYNNE |
| RESPONDENT: | MS MADISON |
| FILE NUMBER: | TVM | 558 | of | 2005 |
| APPEAL NUMBER: | NA | 29 | of | 2006 |
| DATE DELIVERED: | 8 June 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 2 August 2006 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 6 April 2006 |
| LOWER COURT MNC: | [2006] FMCAfam 138 |
Orders
That the appellant have leave to rely on the amended Notice of Appeal dated 17 July 2006.
That the application to adduce further evidence is dismissed.
That the appeal is dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Thynne & Madison.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 29 of 2006
File Number: TVM 558 of 2005
| MR THYNNE |
Appellant
And
| MS MADISON |
Respondent
REASONS FOR JUDGMENT
In a Notice of Appeal filed on 28 April 2006, the husband seeks to appeal from orders made in relation to the wife’s property settlement application by Federal Magistrate Slack on 6 April 2006. A direction had been given pursuant to s 94AAA(3) that the matter be heard by a single Judge. An amended Notice of Appeal was filed on 17 July 2006 attached to an affidavit.
Background
On 20 January 2004 the wife filed an application seeking leave to institute proceedings for property settlement out of time. That application was heard in the Family Court at Townsville on 15 March 2004 and an order was made granting leave. On 22 April 2004 the wife filed an application for property settlement in the Family Court at Townsville and on 6 October 2005 that application was transferred to the Federal Magistrates Court. The trial of the matter took place in the Federal Magistrates Court at Townsville on 23 March 2006 with judgment being delivered on 6 April 2006.
The orders made by the Federal Magistrate on 6 April 2006 were as follows: -
(1)That the Husband do pay to the Wife within 28 days of the date hereof the sum of $116,505.
(2)That payment of the said sum be charged against the property of the Husband at [Western Australia].
(3)That in the event the Husband fails to pay the money to the Wife within the prescribed time, then the [Western Australia] property shall be sold upon such terms as the parties may agree, and failing agreement, as may be determined by this Court.
(4)That, upon the settlement of the sale of the property, the Husband pay to the Wife the sum of $116,505 plus or minus 35% of the difference between the sale price (after costs of sale) of the property and the value ascribed to the property of $175,000.
(5)That upon payment of the aforesaid sum in compliance with order 1, the following property vest in the Husband:
(a)The property situated at [Western Australia].
(b)The property situated at Bizente Tunisia.
(c)Monies standing to the credit of the Husband in any bank account in his name.
(d) The shares in Iluka.
(e) The 1996 Volvo motor vehicle.
(f) Household contents, chattels and personalty.
(6)That the following property vests in the Wife (and the Husband relinquish any right, title or interest in the property):
(a)Any monies standing to the credit of the Wife in any financial institution in her name.
(b) The 1990 Ford motor vehicle.
(c) Personalty, chattels and personal items.
(7)That the Husband do continue to pay and be responsible for the mortgage debt on the property at [Western Australia].
(8) That save as otherwise provided:
(a)Each party shall retain ownership and possession of that property that they currently have in their possession.
(b)Do pay and be responsible for any liabilities that they currently have in their sole name.
Grounds of Appeal
In the original Notice of Appeal filed 28 April 2006 the grounds of appeal were as follows:
1.The conclusions on section 75(2) factors and contribution are not supported by the evidence.
2.The reasons published are inadequate.
3.The decision given is outside the bounds of a proper exercise of discretion.
At the procedural hearing on 9 June 2006, the appellant was granted leave to file an amended Notice of Appeal. At the appeal, leave was given to the appellant to rely upon the amended Notice of Appeal. Grounds 1 to 3 were no longer relied upon and were replaced with the following:
4.His Honour was in error in considering the nature of the husband’s interest in the property situated at Bizente, Tunisia as property pursuant to section 79 of the Family Law Act 1975 when such property, upon a proper construction of the domestic law of Tunisia, should properly be considered a financial resource available to the husband pursuant to subsection 79(4)(e) and subsection 75(2) of the Family Law Act 1975.
In the alternative to Ground 1:
5.His Honour was in error when considering the nature of the husband’s interest in the property situated at Bizente, Tunisia, in that His Honour was not able, upon the evidence available to him at trial, to give proper consideration, in accordance with the domestic law of Tunisia, to the correct nature of the husband’s interest in, and the husband’s ability to deal with, that property.
6.His Honour was in error and wrongly exercised his discretion when he found that the section 79 contributions of the husband and the wife were 70 percent and 30 percent respectively, in that His Honour failed to properly consider and give adequate and due weight to the significant, direct financial contributions made by the husband to the marriage at its commencement and during its course.
7.His Honour was in error and wrongly exercised his discretion when he found that a 5 percent adjustment for section 75(2) factors should be made in favour of the wife in that His Honour:
(a)failed, pursuant to section 75(2)(a), to properly consider and give adequate and due weight to the relative ages of the wife and the husband;
(b)failed, pursuant to section 75(2)(b), to properly consider and give adequate and due weight to the capacity of the husband and the wife to engage in future, gainful employment given their relative ages;
(c )failed, pursuant to section 75(2)(e) to properly consider and give adequate and due weight to the husband’s obligation to support his current wife.
The orders sought in the original Notice of Appeal should the appeal be upheld are as follows:
1.The appeal be upheld.
2.The orders made the 6 April, 2006 be set aside.
3.The wife’s application for property settlement be dismissed.
4.The wife pay the costs of the appeal and costs of the proceedings in the first instance.
In the amended Notice of Appeal orders 1 to 4 were not sought and were replaced with the following:
5.That orders (1), (2), (3), (4), (5) and (8) made on the 6th day of April 2006 be dismissed.
6.That the Appellant pay to the Respondent, within three months of the date of these orders a sum as determined by the Court.
7.That upon payment of the aforesaid sum the following property vest in the Husband:
(a)The property situated at [Western Australia].
(b)Monies standing to the credit of the Husband in any bank account in his name.
(c)The shares in Iluka.
(d)The 1996 Volvo motor vehicle.
(e)Household contest (sic), chattels and personalty.
8.That save as otherwise provided:
(a)Each party shall retain ownership and possession of all property and financial resources that they currently have in their possession or control.
(b)Do pay and be responsible for any liabilities that they currently have in their sole name.
Facts
At the time of the hearing of the appeal the appellant was 64 years of age and the respondent 53 years of age. The parties married on 24 July 1974 in Tunisia. There are three children of the marriage born in 1977, 1978 and 1980, all were adults at the time of the trial.
The parties were both born in Tunisia. The appellant immigrated to Australia in 1970 and following the marriage the respondent remained in Tunisia until 1976 when she joined the appellant in Australia. The parties lived in Tennant Creek in the Northern Territory.
In 1984 the respondent wife returned to live in Tunisia where she stayed with the children until returning to Australia in June 1992. The parties finally separated in July 1992.
The appellant owned a property in Tunisia that had been passed on to him by his father. He owned the Tunisian property prior to the commencement of cohabitation. The respondent had the use of the Tunisian property between 1984 and 1992 where she and the children lived during the winter months and rented out the property in the summer months retaining the rent that was received. There was some dispute at the trial about the amount of support given by the appellant to the respondent and the children during the period of residence in Tunisia.
The appellant travelled to Tunisia in 1989 and stayed with the respondent and the children in the Tunisian property for approximately three months. He purchased a vehicle which he used during that time and transported that vehicle to Australia. The appellant sold that vehicle in Australia and retained the sale proceeds.
At separation in July 1992 there was little property in Australia other than household furniture and a debt of $12,000 to the ANZ bank for funds that the appellant had borrowed to return the respondent and the children to Australia and to purchase furniture upon the respondent’s return.
Following separation the parties remained in Tennant Creek with the appellant having weekly contact to the children and paying some child support. The appellant was made redundant in 1993 and says that he was not able to obtain work between 1993 and 1996.
In 1995 both parties left Tennant Creek, the appellant moved to [Western Australia] and the respondent and the children moved to Cairns. Both parties still live in those areas. They were divorced in 1995.
The children had little contact with their father after they moved to Cairns.
In 1997 the appellant secured a loan and purchased a home in [Western Australia] and resides in that home with his current wife. His wife is Tunisian and speaks little English. She is not employed. The appellant is employed as a diesel fitter. His income is $1000.00 gross per week.
The respondent continues to reside in Cairns and is employed as a cleaner and earns $142.00 per week. [Ms Madison] also receives Centrelink benefits.
Reasons for judgment of the Federal Magistrate
The Federal Magistrate listed the property of the parties excluding two liabilities claimed by the husband being legal fees and a loan in the sum of $10,500.00 and an alleged loan to his sister of $2,000.00. The property as the trial Judge found it to be is as follows:
Husband
Jewellery
$2,900
Property [Western Australia]
$175,000
Property in Bizente, Tunisia
$117,500
Bank account – CBA [Western Australia]
$2,000
Iluka shares
$2,000
Volvo motor vehicle
$3,000
Household contents
$5,000
Total
$307,400
The husband’s only liability was the mortgage debt on the [Western Australia] property
$ 12,300
The only property of the wife was a motor vehicle valued at $1,000.
The husband had superannuation valued at $42,042.00 and the wife Sunsuper valued at $1,300.00. It was common ground that all of the husband’s superannuation was acquired after separation and for reasons given by the learned Federal Magistrate the value of the parties’ respective superannuation funds was included in the pool.
In relation to the facts surrounding the contribution made by each of the parties there was little that could be controversial. The husband held his interest in the Tunisian property prior to the marriage. The parties did not acquire any property of value during the marriage and the husband acquired the [Western Australia] property five years after separation.
In relation to the contribution of the wife it seems that she may have performed some repairs or renovations to the Tunisian house during her occupation but as the Federal Magistrate said in paragraph 63:
“63.…Apart from that assertion, I have little other evidence of the work allegedly done on the property. In her evidence under cross-examination, the wife alleged that the property was barely four walls prior to the renovation but I have no particulars of the work done or how the work may have enhanced the value of the property. I am not told how much was spent on the renovations. The wife and the children lived in the property and had the benefit of the rent over the years that they lived in Tunisia. The wife’s sister apparently occupied or had the benefit of the property for some years prior to action being taken by the husband to exclude her from the property in 1996.”
The wife’s contribution which the Federal Magistrate recognised was as homemaker and parent, was most significant in the years she solely cared for the children. The Federal Magistrate found that during the years that she was in Tunisia she received little financial or other support from the husband. The parties had a different view of their relationship during that time. It seems the husband believed that the marriage was continuing and he said that he sent some money to the wife but the wife was of the view that the marriage had come to an end. On my view of the evidence the financial support provided by the husband while the wife was in Tunisia was very little.
When the wife returned to Australia in 1992 they lived together for a short period of time and the Federal Magistrate found that after they separated the wife was entirely responsible for the care of the children with little financial support from the husband.
An important fact as observed by the Federal Magistrate is that at the time of the trial before him the parties had been separated for 14 years. In view of the unusual circumstances of this case in particular that no property was acquired by the parties during the marriage the learned Federal Magistrate correctly made reference to Farmer & Bramley (2000) FLC 93-060 in particular the judgment of Finn J at 87-948:
“Secondly, if it was to be determined that a majority of the community considered that one spouse should, as a general rule, have no entitlement to share in property either by good fortune or good management acquired after separation by the other spouse, then the Act would need to be amended to make this clear. As the Act currently stands, the jurisdiction conferred by s.79(1) to alter the interests of spouses in property extends without limitation to all the property which either spouse is entitled “whether in possession or reversion” (s.4).”
In relation to this factual circumstance the learned Federal Magistrate correctly made the following finding:
“74.Whilst I acknowledge that the husband has made the overwhelming financial contribution to the acquisition and improvement of the property that currently exists, that needs to be balanced against the fact that the wife has largely been responsible for the care, welfare and development of the children throughout their lives. Although she received support from the husband between 1976 and 1984, my assessment of that is that the husband did not provide a great deal of assistance to the wife in relation to the care of the children and maintenance of the home. After then, the husband provided little assistance apart from some financial assistance by way of child support. The wife did have the benefit of the home owned by the husband in Tunisia during the period that she lived in Tunisia with the children.”
Having said that, again correctly in my view, the trial Judge found that the assessment of contributions should favour the husband for reasons explained by him at paragraph 75:
“75.I do consider though, that the assessment of contributions should favour the husband for the following reasons:
(a)The Tunisian property was acquired prior to the marriage and has been of benefit to the family throughout much of the marriage and during the time the wife lived in Tunisia with the children. It represents one of the two most significant assets of the marriage. Although the wife says that she improved that property I have no particulars of the improvements and she did have the benefit of the property while she lived in Tunisia.
(b)Much of the other property that exists has been acquired by the husband post separation with little or no direct or indirect contribution by the wife. That needs to be balanced though against the fact, whilst he was working and had the ability to acquire property, the wife was using her resources and applying her time to the care, welfare and development of the children. The children were 15, 14, and 12 at the date of the separation. Whilst the husband did provide some child support after the separation it was limited as is evidenced by exhibit 2 in the proceedings.
(c)The superannuation that the husband currently has was acquired in the period post separation and as I understand the evidence is not attributed to the marriage.
(d)The marriage itself lasted 18 years although for a significant part of that time, the parties lived in separate households and their relationship was strained.
(e)The property that existed at the separation was essentially the house in Tunisia and had the property settlement been dealt with at the time of the divorce then that would have been the only property available for distribution between the parties.”
Having taken all of this into account his Honour concluded that the assessment of contributions should favour the husband as to 70 per cent and the wife 30 per cent and that the pool of assets should include all of the property at the time of trial.
The assessment made by the learned trial Judge in relation to s 75(2) factors is more controversial and formed a significant part of the argument on appeal. Ultimately in paragraph 83 his Honour found as follows:
“83I consider that there should be an adjustment to the wife for the relevant s.75(2) factors and the salient factors that warrant an adjustment, in my view, are as follows:
a)The fact that the husband has a greater income and he will continue to have a greater income until he eventually retires. The husband’s income needs to be balanced against the fact that he has a limited working life left and when he does retire the wife will have a greater income and earning capacity.
b)The wife’s ability to earn income is affected by her health and her lack of qualifications and skills.
c)The superannuation of the parties is taken into account in the property pool and there should be no adjustment for the differences in superannuation.
84.In all, I consider a 5 percent adjustment in favour of the wife is appropriate in the circumstances.”
The result then was that the order reflected a 65 per cent division in favour of the husband.
Application to file further evidence
In an Application in a Case filed 17 July 2006 the appellant asked that he “…be granted leave to file a further affidavit dealing solely with the legality of transferring to Australia the sale proceeds of real property located in Tunisia.” In support of this application three affidavits were filed. The first on 17 July 2006 is an affidavit of the solicitor for the appellant husband. A letter was written by the solicitors’ to the Tunisian Ambassador to Japan requesting information about whether or not “…under Tunisian law the appellant is able to sell his property in Tunisia and remove the sale proceeds to Australia.” At the date of that affidavit no response had been received. The reason for communicating with the Ambassador in Japan is that the Consulate in Australia had provided the information that the Japanese Embassy is the regional Embassy of the Government charged with matters that relate to Australia.
In a further affidavit from the solicitors’ filed 28 July 2006 it was explained that their attempts to obtain information in relation to the law in Tunisia as to whether a non resident who sells property can remove the sale proceeds had not been successful. There can be no doubt from the attached correspondence that the solicitors for the appellant husband have tried a number of avenues to obtain the necessary information. In an affidavit filed by the solicitor on 1 August 2006 a statement of the husband is attached. In this he makes a number of assertions as follows:
“4.At the Trial of my case it was agreed the property in Tunisia was worth $117,500.00.
5.I did not understand that the property in Tunisia would be considered as part of the property to be distributed between the former Wife, [Ms Madison], and I as part of the property settlement.
6.I understood that the property in Tunisia was mine and separate from the property pool because I owned the property in Tunisia before I new (sic) [Ms Madison].
7.I knew that, while the property in Tunisia has a value of $117,500.00, that if the property in Tunisia was sold the money would not be able to be taken out of Tunisia.
8.Because I had assumed the property in Tunisia would not be part of the property settlement the issue as to removing any monies from the sale of the property in Tunisia was not one I considered until after the Trial.
9.I have informed my current lawyers, [SS Lawyers], that if I sell the property in Tunisia I will not be able to remove the money from Tunisia.
10.I intend to remain living in Australia with my Wife.
11.I am aware that many many people have tried to remove money from Tunisia after selling their homes there but have been unsuccessful.”
It can only be said of this that there is no evidence to support the assertion of the appellant. The contents of the affidavits are merely contentions on his behalf. In addition, it is quite clear that there was no submission made by his Counsel when the matter was heard that the Tunisian property should not be included in the pool. In fact, it was agreed at the trial that the value of the Tunisian property was $117,500.00 and the property is contained at that value in the husband’s financial statement filed 29 November 2005.
The transcript reveals that at the outset the Federal Magistrate asked if there were any preliminary matters and this issue was not raised before him then or at any other later time. The husband did not give evidence by affidavit or orally that there could be any difficulty in the sale of the Tunisian property or removing the proceeds from that country. His only evidence was that he has possession of the house and that he rents it for the sum of about $200.00 per month.
The discretionary power to receive further evidence on appeal is conferred on this Court by s 93A(2) of the Family Law Act which provides:
(2)Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given by affidavit, by oral examination before the Family Court or a Judge or in such other manner as the Family Court may direct.
In CDJ v VAJ (1998) FLC 92-828 McHugh, Gummow and Callinan JJ made the following observation in relation to the exercise of the discretionary power conferred by s 93A(2) (emphasis added):
"104.In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake…although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.
…
109.One consideration in construing s 93A(2) is its remedial nature.Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original… Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable... In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal... Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section."
Even if the matters placed before the Court now could be regarded as having some evidentiary value, which is doubtful, it cannot be said that this evidence could not have been available to him at the time of trial. There is nothing he now wishes to place before this appeal court that was apparently not available to him at the time of trial. All that can be said is that he misunderstood that the value of the property would be included in the property pool to be divided. Finally, even should such evidence now be admitted it would make no difference. The appellant apparently had a competent solicitor and barrister and in the absence of there being some obvious mistake or error of law this application must fail.
Argument of the Appellant
It seems appropriate to summarise the argument as it was presented at the appeal.
Ground Seven
7. His Honour was in error and wrongly exercised his discretion when he found that a 5 percent adjustment for section 75(2) factors should be made in favour of the wife in that His Honour:
(a) failed, pursuant to section 75(2)(a), to properly consider and give adequate due weight to the relative ages of the wife and the husband;
(b) failed, pursuant to section 75(2)(b), to properly consider and give adequate and due weight to the capacity of the husband and the wife to engage in future, gainful employment given their relative ages;
(c ) failed, pursuant to section 75(2)(e) to properly consider and give adequate and due weight to the husband’s obligation to support his current wife.
Counsel for the appellant submitted that while the learned Federal Magistrate correctly recorded the s 75(2) factors in his judgment commencing at paragraph 77 his discretion miscarried in the consideration of those matters pursuant to s 75(2). The relevant parts of the judgment are as follows:
“77.The husband is currently employed and earns approximately $1,000 per week.
78.He is 62 years of age and has superannuation which has been directly taken into account in the pool of property.
79.He does not indicate any health difficulties that would impact upon his ability to continue his employment, at least until the normal retirement age. He is a man who has worked mostly throughout his life and in my view, will continue to work as long as he is physically able.
80.He supports his current wife. She has limited English skills and limited prospects of employment.
81.The wife is now 52 years. She has employment as a cleaner although she has a limited number of hours per week. She suffers from diabetes.
82.She has a very small amount of superannuation which has also been taken into account in the pool.
83.I consider that there should be an adjustment to the wife for the relevant s.75(2) factors and the salient factors that warrant an adjustment, in my view, are as follows:
(a)The fact that the husband has a greater income and he will continue to have a greater income until he eventually retires. The husband’s income needs to be balanced against the fact that he has a limited working life left and when he does retire the wife will have a greater income and earning capacity.
(b)The wife’s ability to earn income is affected by her health and her lack of qualifications and skills.
(c)The superannuation of the parties is taken into account in the property pool and there should be no adjustment for the differences in superannuation.
84.In all, I consider a 5 percent adjustment in favour of the wife is appropriate in the circumstances.”
Counsel for the appellant asserted that there was a balance between the relative superannuation interests of the parties, the respondent’s health and her capacity for employment on one hand and the age of the parties’, the appellant’s responsibilities to his current wife and his ability to continue to work and that if anything the balance tipped in the appellant’s favour.
In relation to the appellant’s current wife, counsel submitted that the evidence before the learned Federal Magistrate was that her English skills are very poor, that she is totally dependent on her husband financially and socially and that she has become very worried about her future security since the commencement of the proceedings for property settlement.
The learned Federal Magistrate at paragraph 79 made some findings about the appellant’s ability to continue to work. Counsel submitted that a finding that the appellant would work until retirement age was one that was open to the learned Federal Magistrate on the evidence but that a finding that the appellant would work “…as long as he was physically able” was not a finding that should have been made. However, it was conceded by counsel in oral argument that the husband did not give evidence about how long he planned to work.
In relation to the question of duty and responsibility to support a second wife, counsel made reference to Soblusky & Soblusky (1976) FLC 90-124 where Demack, Watson S JJ and Fogarty J said:at page 75,589:
“…Section 75(2)(e) requires the Court in exercising its powers in respect of maintenance to have regard to ''the responsibilities of either party to support any other person'' . This provision is couched in wide terms and ought to be given a broad interpretation…. A Court is required under para. (e) to consider in a realistic way the fact that a party has assumed a responsibility to support another person, and the weight to be given to that fact depends upon the circumstances of each individual case. To adopt a view that in every case the responsibility referred to in that paragraph must be subjugated to the responsibility of the party of his or her spouse is in our view to unduly restrict the scope of para. (e) and may in particular circumstances produce a result which is unrealistic in the circumstances….:
Counsel submitted that the long period of time between the separation of the parties and the property proceedings considered in the context of the age of the parties was an unusual feature in this case. Counsel also submitted that the appellant in that time had acted to change his circumstances and in particular change his personal circumstances in a significant way by marrying a younger woman who is greatly dependent on him and who will remain greatly dependent on him for the remainder of his life. Ultimately counsel submitted that if any adjustment was to be made in relation to s 75(2) factors then it should have been made in favour of the appellant in the same percentage figure of five per cent.
Reference was made to Axtell and Axtell (1982) FLC 91-208 where Evatt CJ, Emery SJ and Strauss J said at page 77,107:
“…we see no reason to depart from the general principle stated by the Court in Soblusky and quoted above. The facts of individual cases vary a great deal. It is generally a question of balancing differing factors and according proper weight to each of them. … In our view, the principle stated in Soblusky should be affirmed as a general principle, capable of application to a multitude of different circumstances.”
Counsel acknowledged that Soblusky (supra) and Axtell (supra) were in the nature of maintenance cases but submitted that they were persuasive authority for the Court to consider in this case. In relation to how the Court might deal with s 75(2) factors generally in considering property settlement proceedings and those matters in the context of s 79(4)(e) Counsel made reference to the decision of the High Court in In the Marriage of Mallet (1983-1984) 52 ALR 193 where after discussing a range of matters under s 79 and s 75, Gibbs CJ said at page 195:
“…The Act does not indicate the relative weight that should be given to different circumstances, or how a conflict between opposing considerations should be resolved – those things are left to the court’s discretion, which must, of course, be exercised judicially.”
Counsel also asked the Court to consider In the marriage of Clauson (1995) 18 Fam LR 693 where Barblett DCJ, Fogarty & Mushin JJ said at page 710:
“There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think that there is legitimacy in the views expressed in more recent times that the court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in the range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.”
Counsel submitted that there has been an error in how the relative aspects of s 79(4) have been dealt with by the learned Federal Magistrate including s75(2)and a significant error made in the orders outside what is reasonable in the circumstances which would allow the Court to intervene and re-exercise.
Ground 6
6. His Honour was in error and wrongly exercised his discretion when he found that the section 79 contributions of the husband and the wife were 70 percent and 30 percent respectively, in that His Honour failed to properly consider and give adequate and due weight to the significant, direct financial contributions made by the husband to the marriage at its commencement and during its course.
Counsel referred to paragraph 19 of the judgment of the learned Federal Magistrate where he said:
“19.At separation there was little property. The husband had his property in Tunisia. There was little property in Australia. The parties owned the household furniture and the husband owed $12000 to the ANZ Bank for monies borrowed to return the wife and children to Australia and for the purchase of furniture upon her return.”
Counsel for the appellant referred to the uncontroversial facts that at the time of the marriage the appellant had an interest in the Tunisian property inherited from his father, that during the marriage the parties had acquired little property together and that post separation the appellant had purchased the property in Western Australia. It was submitted by counsel for the appellant that the respondent and her family had obtained significant benefit from the Tunisian property during the marriage and that the respondent’s sister had also occupied the property until the appellant took action to have her removed in 1996. Although the respondent’s evidence was that she had made improvements to the Tunisian property Counsel referred to paragraph 63 of the judgment to which I have already referred, and then at paragraph 75(a) where his Honour said:
“75 (a)…Although the wife says that she improved that property I have no particulars of the improvements and she did have the benefit of the property while she lived in Tunisia.”
Counsel for the appellant conceded that it is unclear whether the appellant had provided any financial support to the respondent and the children between 1984 and 1992, other than a record of a money transfer in 1991 which formed part of the exhibits at the trial. This statement was the only evidence other than the conflicting statements of the parties at trial.
It was submitted by counsel that at separation, the parties had a debt which the husband discharged and some furniture. The parties agreed at trial that the Tunisian property was valued at $117,500. It is clear that the initial contribution of the Tunisian property was a very significant asset which was used extensively by the respondent and her family. Counsel made reference to Pierce v Pierce (1999) FLC 92-844 particularly paragraphs 28 to 30 where the Full Court said:
28. In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: See also Campo and Campo (unreported, Full Court (Ellis, Lindenmayer and Finn JJ), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and Zahra and Zahra (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J at page 10).
29.In the instant case, his Honour identified what he described as the greater initial financial contribution of the husband and his post separation contribution, but, in our view, he failed to properly assess such contributions. The period of cohabitation was ten years. At about the date of the marriage the husband had very significant assets. His Honour found that the husband had assets to the approximate value of $226,000. At the date of the trial, the parties had assets of a net value of $319,190 which included the matrimonial home valued at $260,000 to which the husband had contributed about $200,000 from moneys to which the wife had made no contribution.
30. There is an obligation on a trial judge not only to identify the relevant contributions but also to assess them. In this case his Honour failed to adequately, or at all, assess these contributions. In our view he failed to properly weigh the greater initial contribution of the husband, with all other relevant contributions, and seems not to have had regard to the use made by the parties of the husband's greater initial contribution.
It was submitted by counsel that the husband had made a contribution to the marriage in the vicinity of 75 to 80 per cent and that with the further five per cent contribution under s 75(2) then the wife should only receive a percentage of 20 per cent at its highest.
Grounds 4 & 5
4. His Honour was in error in considering the nature of the husband’s interest in the property situated at Bizente, Tunisia as property pursuant to section 79 of the Family Law Act 1975 when such property, upon a proper construction of the domestic law of Tunisia, should properly be considered a financial resource available to the husband pursuant to subsection 79(4)(e) and subsection 75(2) of the Family Law Act 1975.
5. His Honour was in error when considering the nature of the husband’s interest in the property situated at Bizente, Tunisia, in the His Honour was not able, upon the evidence available to him at trial, to give proper consideration, in accordance with the domestic law of Tunisia, to the correct nature of the husband’s interest in, and the husband’s ability to deal with, that property.
In written submissions counsel conceded that the characterisation of the husband’s interest in the Tunisian property was not raised in the trial proceedings. At the trial the house and land were treated as property of the parties pursuant to s 79. Counsel submitted that the appropriate characterisation of the husband’s interest in the Tunisian property is a significant issue on appeal and that the husband’s interest in the property should be regarded as a financial resource and that whilst the husband is capable of deriving some rental income from the property, any potential income is limited.
Submissions on behalf of the wife
In relation to the s 75(2) argument, counsel for the wife submitted that a five per cent adjustment equated to $17,000 and that this was a modest amount. In coming to his decision it was submitted that the trial Judge took into account the relevant factors. Counsel argued that the evidence of the difference between the earning capacity of the husband and the wife where the husband is currently earning $1,000 per week and the wife $140 per week means that if the husband works for three years he would earn the equivalent of what the wife would earn if she worked for twenty years. It was conceded by counsel that the new wife is entirely dependent on the husband and has a language barrier but it was submitted the first wife suffers from much the same problem. Reference was made to the evidence that the husband had worked hard all his life and continues to do so, that he earns a fairly good income and that he has been prepared to work in fairly harsh environments to support the finding that he will continue to work as long as he reasonably can.
Counsel submitted that the parties had separated when the children were aged 15, 14 and 12 years of age, and that for a number of years following the separation the wife contributed all of the care giving and home-making responsibilities for the children and that these contributions must be taken into account in a substantial way. Counsel also submitted that the submissions on appeal are an attempt to seek that the Full Court reassess the weight of contributions as found by the trial Judge and that this was not a function of an appellate court in the absence of error.
In relation to the authorities on contributions, counsel for the appellant made reference to Spiteri & Spiteri (2005) FLC 93-214, Pierce (supra), Lawler & Lawler (1988) FLC 91-927 and Farmer & Bramley (supra).
Appellate Principles
Apart from the issue raised in the application to adduce further evidence this appeal is entirely one against the exercise of discretion of a trial Judge.
It is appropriate at this stage to identify the principles governing such an appeal. The law in this respect is not in doubt.
In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J describes the appropriate level of restraint that an appellate court should exercise in respect of discretionary matters as follows:
There is a strong presumption in favour of the correctness of the decision appealed from and that that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.
It was clearly enunciated in House v The King (1936) 55 CLR 499, at 504-505 that:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:
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.
Thus, as a matter of firmly established appellate process it is necessary first to establish whether there is any recognised ground for reviewing the trial judge’s discretionary decision consistent with these principles. If there is then, unless the result is plainly right notwithstanding an appellable error, per Gibbs J (as he then was) in De Winter v De Winter (1979) FLC 90-605 at 78,091, we are obliged to allow the appeal, set the orders aside and, if possible, substitute our own decision after considering the matter afresh, as was explained by Kirby J in AMS v AIF (1999) FLC 92-852, who said at 86-043:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
Disagreement only on matters of weight or a preference for a different result do not usually justify the reversal of a first instance discretionary judgment.
In the case of discretionary decisions, it is only where the effect of the orders exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere, per Brennan J in Norbis v Norbis (1986) FLC 91-712 at 75,178.
Conclusion
The further evidence of the appellant having not been admitted, the appeal is simply from a discretionary judgment of a trial Judge in relation to matters of weight. There was no submission that the trial Judge made any factual errors. In the circumstances of this case it can not be said that the provision of 5 per cent or $17,000.00 by reason of s 75(2) factors in favour of the wife was wrong. However that allowance must be considered together with the contribution finding to ensure that the overall result is just and equitable. The contribution of the wife was very significant in this case by reason of her care for the children including a considerable part of the financial burden. The unusual features of this case, especially the fact that so much of the property was acquired long after separation was properly considered by the learned trial Judge.
It can not be said that the division of the assets so that the wife is to receive 35 per cent or $116,505 is other than just and equitable in the circumstances of this case.
I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 8 June 2007
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