W & P

[2006] FamCA 1369

[2006] FamCA 1369

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. NA73 of 2005

(No. BRM 6916 of 2004)

BETWEEN:
  W

Appellant Wife

AND:
  P

Respondent Husband

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing:              3 February 2006

Date of Judgment:            10 March 2006

Appearances:  Mr Taylor of Counsel, instructed by Hirst & Co, GPO Box 3243, Brisbane, QLD, 4001, Solicitors, appeared on behalf of the Applicant Wife

Mr Westbrook of Counsel, instructed by Thynne & Macartney, Level 27, 12 Creek Street, Brisbane, QLD, 4000, Solicitors, appeared on behalf of the Respondent Husband

W and P  NA73 of 2005 (BRM6916 of 2004)

Heard:             3 February 2006
Delivered:        10 March 2006

APPEAL FROM FEDERAL MAGISTRATES COURT – PROPERTY –INCLUSION/EXCLUSION OF LIABILITIES – In property settlement proceedings between the parties, the Federal Magistrate divided property 65% to the wife and 35% to the husband – Included in the parties’ liabilities by the Federal Magistrate was the husband’s HECS debt for, initially, a law degree, which was later switched to a combined engineering and information technology degree – The wife asserted that the HECS debt should not have been included in the parties’ combined liabilities because the husband undertook the study without the wife’s agreement and that due to the husband’s poor performance at university, the HECS debt was more than it would have been had the husband performed satisfactorily, thus constituting waste – While the wife’s submissions highlighted the ‘dismal’ performance of the husband in his studies, none of the submissions demonstrated that, having agreed that the husband had performed poorly, the Federal Magistrate was impelled to find recklessness or waste in respect of the HECS debt – Even if the fees had been recklessly incurred, an argument for exclusion of the fees from the parties’ liabilities would only extend to an exclusion of the fees for the subjects failed.

PROPERTY SETTLEMENT – SECTION 75(2) ADJUSTMENT – In arriving at the final amount for division of property, the Federal Magistrate had made a 10% adjustment to the husband pursuant to s 75(2) – The wife argued that an adjustment should not have been made in the husband’s favour, inter alia, because of a pending personal injuries claim in the state District Court – The Federal Magistrate found that the amount of the claim was unquantified and that there was no evidence of the likely fruits of the action – On appeal, the wife argued that the Federal Magistrate’s findings were not open to him and that insufficient reasons were given for the adjustment – While the language used in the judgment may have been imprecise, the Federal Magistrate did not overlook the evidence put before him as to the personal injuries action – Even if it had been possible to affix some monetary value to the action, the particulars of the personal injuries claim indicate that the wife was very unlikely to be seen as contributing to any damages recovered, other than in a minor way.

ORDERS – LIBERTY TO APPLY – Included in the orders for property settlement was an order granting the wife liberty to apply for a superannuation splitting order in the event she was unable to pay the lump sum amount to the husband as ordered – The wife argued that the order was erroneous as the Federal Magistrate had pronounced final orders – While the reasons for the provision of the liberty to apply were flawed, the provision itself was unexceptional. 

Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343
Bennett v Bennett (1991) FLC 91-191
CDJ v VAJ (1998) FLC 92-828
Clauson v Clauson (1995) FLC 92-595
Norbis v Norbis (1986) 161 CLR 513

Appeal dismissed.

1. On 26 August 2005 Jarrett FM resolved an application for property settlement between the parties by dividing a modest net asset pool, 35% to the husband and 65% to the wife.  This division he put into effect by ordering the wife pay the husband a sum of money in exchange for a transfer to the wife of the husband’s interest in the former matrimonial home.  Other orders basically provided for each party to retain property already held by that party and finally, that each party have liberty to apply in the event that the payment of cash was not made by the wife.  Against these orders, including that for liberty to apply, the wife appealed and these reasons are for the disposition of that appeal.

2. The Notice of Appeal as filed contained nine grounds but the three major points on appeal were:

   “(i)     That a HECS debt, relating to tertiary studies undertaken by the husband partly at least during the period of cohabitation, but in respect of which payment had not fallen due, should not have been included in the liabilities in ascertaining the net asset pool for division.

   (ii)     That a weighting in the husband’s favour of 10% on account of section 75(2) factors was an error of discretion.

   (iii)     That the learned Magistrate had erred in effectively giving no weight to a claim by the husband for damages for personal injuries.”

3. On behalf of the wife an application was made that further evidence be received.  I rejected that application, indicating that I would give the reasons for that result as part of these reasons.

4. It will be helpful to an understanding of both the rejection of the application for further evidence and of discussion about the grounds of appeal to set out a background, including a summary of the reasons of the Federal Magistrate, after which I will discuss the application to adduce further evidence, principles applicable to the appeal, and the grounds of appeal, before expressing a final conclusion and addressing the consequences thereof.

Background and summary of the reasons of the Federal Magistrate

1. The Federal Magistrate resolved an issue about the commencement of cohabitation by accepting the wife’s evidence that she and the husband commenced to live together in the second half of 1996.  The parties married in September 2001.

2. There are two children of the marriage, “E”, born in December 2000 and “J”, born in November 2002.  The parties separated in February 2003, the husband leaving the home in which the wife and children have continued to reside.

3. The trial Magistrate set out a table of assets and liabilities.  The major item of property was the former matrimonial home valued at $300,000 but subject to a mortgage of $159,000.  Among other considerably less valuable assets were superannuation entitlements of each party.  The HECS debt of the husband included in the liabilities was in the sum of $31,047.  The learned Magistrate calculated (incorrectly as it turns out) net assets of $257,979.  (The correct result of the table set out by his Honour was $202,979.  The consequence of this “slip” was corrected in an amended order issued 13 October 2005, whereby the amount that the wife was required to pay the husband was expressed as $67,669, in lieu of $86,997)

4. The learned Magistrate found that:

   “Since separation the husband has paid a derisory amount of child support.  Nor has the husband been overly enthusiastic about contact with the children.…”

5. In relation to the facts pertinent to the HECS debt, the Federal Magistrate found that the husband commenced studying a degree in information technology part-time in 1996.  He attended full-time in 1997, resigning his employment in the public service at the beginning that year, after the parties had commenced cohabitation.  He did not complete that degree but at a point which might have been in 1998 he switched to a combined degree, Bachelor of Engineering (Electronics) and a Bachelor of Information Technology.  The wife’s evidence was that she had opposed the husband changing to a double degree because she wished him to return to full-time employment as quickly as possible, saying that that had been their agreement when he ceased work.

6. His Honour recorded the wife’s arguments against the inclusion of the HECS debt as being:

   “(i)    The husband undertook study with which she did not agree; and,

   (ii)     The husband had performed woefully; had he performed satisfactorily, the debt would be much less than it presently is.”

7. The wife also argued that the husband did not apply himself to his study.  His Honour accepted that the husband had performed dismally, finding that he had undertaken over 60 subjects and failed 25 of them.  However, he had eventually completed the requirements for the award of the degrees.

8. His Honour then turned to contributions and after setting out the detail of his findings said:

   “26.  I assess the parties contribution based entitlements as 75% to the wife and 25% to the husband.”

9. As the reasons of the learned Magistrate for making an adjustment pursuant to section 75(2) are short, but are critical to the argument that he erred in his assessment of that adjustment, they will be set out later.  It was in his discussion of section 75(2) factors that the learned Magistrate considered the husband’s claim for damages for personal injury.  His Honour made an adjustment of 10% for section 75(2) factors, making the husband’s award, as seen earlier, 35% of the net assets.

10. The learned Magistrate’s reasons for the order for liberty to apply will also be set out when discussing the ground challenging that order.

The application to lead further evidence

1. Counsel for the wife advised that the further evidence was proferred both in support of the argument on appeal and in the event that merit was found in any of the grounds and this court moved to re-exercise the discretion.

2. The further evidence was comprised of an affidavit by the wife and an affidavit by her solicitor.  The wife deposed that post-judgment she had temporarily moved from the former matrimonial home because of a concern about safety arising from rotten decking.  She gave evidence of the cost of repairs of the deck.  She also deposed to changing to part-time work.  As well, she deposed to the position post-trial with regard to payment of child support and contact between the husband and the children.

3. The solicitor for the wife deposed to exchanges of correspondence with the husband’s solicitors relating to the purchase by the husband of a motor vehicle.  This vehicle the husband had purchased with borrowed funds.

4. In my view, at its highest, the evidence simply represents alterations, of a less than overwhelming effect, in the financial circumstances of one of the parties post-trial.  It is also of significance that the change by the wife to part-time employment was anticipated during the hearing and indeed referred to by the learned Magistrate in his discussion of section 75(2) factors.

5. The purchase by the husband of a motor vehicle in which he has no equity and the continuation of circumstances relating to child support and contact are of no significance to the grounds of appeal whatsoever.

6. None of the evidence would show that the decision appealed from was wrong.

7. The question of the receipt on appeal by the Full Court of the Family Court of further evidence was discussed by the High Court of Australia in CDJ v VAJ (1998) FLC 92-828, which discussion included the following passages:

   “108.       …Although the discretion to admit further evidence is not attended by any express words of limitation, the subject-matter, scope and purpose of the appeal provisions in Pt X of the Act and the issue involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.

   109.  One consideration in construing s 93A(2) is its remedial nature.  Its principle 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.…

   …

   111.  …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.

   …

   113. In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely  because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).”   (McHugh, Gummow and Callinan JJ)

8. It was for the aforegoing reasons that I rejected the application to adduce further evidence, in so far as it was proferred in support of the arguments on appeal.  The question of its receipt in the event of a re-exercise of discretion was left open.

Principles applicable to the appeal

1. This is an appeal from a discretionary judgment.  In so far as an appeal against such a judgment does not rely on a mistake of fact, error of principle, a failure to take account of a relevant consideration or the taking into account of an irrelevant matter, but only challenges the propriety of the exercise of discretion, what Brennan J said in Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 is apposite:

   “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.”

2. To similar effect is what Asquith LJ said in Bellenden (formerly Satterthwaite)  v Satterthwaite [1948] 1 All ER 343 at 345:

   “… 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.”

The grounds of appeal

Grounds 2 to 5 inclusive

1. These grounds are:

   “2.    That the learned Federal Magistrate erred in finding that the total of the liabilities of the parties was $153,877.00 when the correct total on his findings was $226,567.00.

   3.     That the learned Federal Magistrate erred in finding that the net assets of the parties other than superannuation was $164,453.00 when the correct amount on his findings was $91,783.00.

   4.     That the learned Federal Magistrate erred in finding that the superannuation entitlement of the Wife […] was $1,943.00 when the correct amount was $19,430.00.

   5.     That the learned Federal Magistrate erred in finding that the Total Net Assets of the parties including superannuation was $257,979.00 when the correct amount on his findings was $202,979.00.”

2. As earlier indicated the mathematical consequences of these errors (conceded by the husband) had been corrected pursuant to the “slip rule”.

3. As I indicated to counsel at the hearing of the appeal, I doubted that, in these circumstances, where the Orders no longer show error, the original errors, of themselves, still founded an appeal.  I was not referred to any authority in support of the argument for the wife that because of the original errors an appeal based on them could still succeed, though the orders had been corrected.  I remain of the view that an appeal, as contained in these grounds, is no longer available.

4. That is not to say that the mathematical errors may not have tainted the exercise of discretion under section 79, including consideration of section 75(2) factors, but the only ground directly going to such a point (ground 6) was abandoned.

The HECS debt – ground 1

“1.    That the learned Federal Magistrate erred:

(a)In finding that the liability of the Husband for HECS in the amount of $31,047.00 was a liability of the marriage;

(b)In finding that because the Husband has completed his degree that he had not been tardy completing the degree;

(c)In finding that the Husband had been “successful” in his chosen studies;

(d)(abandoned)

(d)In finding that the Husband did not act recklessly, negligently or wantonly with matrimonial assets, the overall effect of which was to reduce their value.”

1. As to paragraphs (b) and (c), challenging purported findings of the Federal Magistrate that the husband had not been “tardy” completing the degree and had been “successful” in his chosen studies, the grounds misconceive what his Honour in fact said, which was:

   “…The husband has completed his degrees.  To that extent, it can be said that his chosen courses of study have been successful.  I do not think it is to the point for the wife to say that the husband was tardy completing his degree.…”

2. Clearly, his Honour’s comment on the successful completion of the course of study was to do no more than recognise that the degrees were completed, a matter of undisputed fact.  His Honour did not find that the husband had not been “tardy” but simply that whether he had been or not was not to the point.

3. As to the second paragraph (d), effectively asserting waste by the husband in incurring the HECS debt, the learned Magistrate said:

   “…It might be that the husband performed academically to the best of his ability, despite the wife’s assertions to the contrary.  I bear in mind that at times whilst the husband was completing his study, some of the parenting responsibilities fell to him.  That, no doubt, would have been a significant distraction to him.

   It cannot be said in my view that the husband embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets or that he has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which is to reduce or minimise their value.  I conclude that the HECS debt should not be excluded from the asset and liability pool.”

4. While the submissions on behalf of the wife highlighted the “dismal” performance of the husband in his studies, a fact found by the learned Magistrate, none of the submissions demonstrated that, having found that fact, the learned Magistrate was impelled to find recklessness or waste in respect of the HECS debt.  It follows that it has not been shown that the further observations of the learned Magistrate and conclusions as to the arguments of the wife above quoted, were not open to him.

5. Further, as to the argument that the fees should have been excluded because they were recklessly incurred, even if that had been established, presumably the argument would only extend to exclusion of the fees for the subjects failed.  I was not taken to any evidence of a dissection of fees incurred on such a basis.

6. As to the remaining argument, rather than attempting to use the imprecise phrase used in ground 1(a), namely “a liability of the marriage”, I simply address the proposition that the HECS liability should not have been included in the calculation of the pool of net assets for division.  On appeal, this argument hinged on the contingent nature of the liability.  Counsel for the wife included in his submissions on appeal, a great deal of material about debts of this nature but all that is necessary to address the argument is to acknowledge the acceptance by the husband’s counsel, both before me and below, of the contingent nature of the liability.  In other words, until the husband’s earnings reached a nominated level he was not required to commence repayment of the HECS debt.  Counsel for the wife submitted that the learned Magistrate failed to address the “contingent” nature of the liability and the significance of that feature to the question of whether or not the liability should be included in the calculating the net assets.

7. Counsel for the husband submitted that there was no “case” run below on the basis that the contingency would not arise, or that the liability should be excluded because it may not arise.  Counsel for the husband also submitted that the conclusions of the Federal Magistrate are only consistent with the implied finding that the husband’s income had or would reach a level that required repayment.  As to that submission, even without specific evidence of probable future earnings, the inference that the husband would probably increase his annual income to a stage where liability to repay the HECS debt arose, was probably open to the learned Magistrate.  But in any event, as pointed out by counsel for the husband, there was evidence of pay scales to bolster an inference that, on the balance of probabilities, the husband’s income would reach a stage where he must commence repayment of the debt in question.

1. A further matter tending to support inclusion of the HECS debt in the table of net assets was that the fact that the husband was possessed of the qualifications and in employment to which those qualifications were relevant, was in turn relevant to the alteration of property interests, as a section 75(2) factor.  That that was so tends to reinforce the argument that the HECS debt incurred to achieve those qualifications should also be taken into account.

2. More importantly however, as seen earlier, the learned Magistrate set out the wife’s arguments against the inclusion of the HECS debt, as follows:

   “(i)    The husband undertook study with which she did not agree; and,

   (ii)     The husband had performed woefully; had he performed satisfactorily, the debt would be much less than it presently is.”

3. Nothing to which counsel for the wife pointed indicated that in so identifying the wife’s arguments, the learned Magistrate erred.  It follows that counsel for the husband has very strong support for the submission that the wife seeks now to argue a point not argued below.  In the circumstances of this appeal, that she should not be allowed to do.

4. I am not satisfied that in including the HECS liability in the calculation of net assets for division, the learned Magistrate made any error.

The assessment of section 75(2) factors (grounds 7 and 8)

1. Ground 7 read:

   “7.    The learned Federal Magistrate in finding that the Husband was entitled to 10% pursuant to section 75(2) erred by failing to provide adequate reasons as to how he arrived at this entitlement adjustment.”

2. Ground 8 goes to this matter:

   “8. The learned Federal Magistrate in finding that the Husband was entitled to 10% pursuant to section 75(2) of the Family Law Act erred in:

   (a)His finding that the amount of the Husband’s claim for personal injury was “unquantified”;

   (b)His finding that there was “no evidence about the likely fruits of that action”;

   (c)Not taking into account or dealing with the submission of the Wife regarding the treatment of the HECS liability of the Husband and the Husband’s pending claim for personal injuries;

   (d)Not taking into account the substantial care of the children by the Wife after separation;

   (e)Not taking into account the responsibility of the Wife for the future care of the children;

   (f)Not taking into account the responsibility of the Wife for the care of the child [J]’s health needs;

   (g)Not taking into account the Husband’s past record of contact with the children;

   (h)Not taking into account the likelihood of the Husband continuing to have infrequent contact with the children in the future;

   (i)Not taking into account the failure of the Husband to make payment of child support after separation;

   (j)Not taking into account the likelihood of the Husband failing to pay reasonable child support to the Wife in the future.

3. The first matter argued in support of this ground attacks the learned Magistrate’s dealing with the husband’s claim for damages for personal injury.  In this regard the learned Magistrate said:

   “27.  The only factors identified by the parties as relevant under s.75(2) are the income earning capacity of each of the parties, the care of the children and their present financial circumstances.  In addition, the husband has a claim for damages for personal injury pending in the District Court of Queensland.  The amount of the claim is unquantified and there is no evidence about the likely fruits of that action.  Neither party placed particular emphasis on this matter.”

4. Counsel for the wife submitted that the “finding” that “Neither party placed particular emphasis on this matter” was not open to the Federal Magistrate.  The statement by the Federal Magistrate is more in the nature of comment or opinion than a “finding of fact”.  I do not consider that I am in a position to say that the impression described was not open to his Honour.  In any event, his dealing with the issue is scrutinised in what follows.

5. As to the quantification of the claim and evidence of the likely fruits of the action, there was before the learned Magistrate, annexed to an affidavit of the husband, a Statement of Claim.

6. This showed that the husband claimed:

   (a)General damages for pain, suffering and loss of amenities of life $35,000

   (b)Interest…

   (c)Past loss of earning capacity – nil claimed

   (d)Future economic loss - $15,000.00

   (e)Past gratuitous care 75 hours at a notional rate of $13 per hour

   (f)Interest…

   (g)Special damages and out-of-pocket expenses - $1,128.56

   (h)Interest…

7. It was also put to the husband during cross-examination that he had sued for “some $50,000” and he agreed.

8. As well, during his oral evidence, the husband indicated that he had received an offer of $19,000, many years ago.  The evidence did not indicate that the offer remained open, nor did it indicate that any admission of liability had been made.

9. However, the presence of this evidence could sit at odds with the learned Magistrate’s expressions that the amount of the claim was unquantified and there was no evidence about the likely fruits of that action.  Notwithstanding that, for the following reasons, I am not satisfied that the learned Magistrate had overlooked the evidence stated, rather than used perhaps imprecise language in dealing summarily with the issue.

10. Firstly, as to a value to the husband of the litigation, (which was the material question), the amount claimed, of itself, was not a powerful piece of evidence.  In my view, in light of the offer of $19,000, the mere fact of the claim for $50,000 became of very limited, if any, assistance in helping the learned Magistrate assess the likely result of the action.  The offer was more of an indication than the mere claim.  However, in the absence of any detail of the offer mentioned by the husband, in particular as to costs, and in the absence of evidence of his costs, it would not have been possible to calculate the net “fruits” to the husband of acceptance of an offer of $19.000.

11. It is because of these observations that I consider that the learned Magistrate may not have overlooked any evidence and that the sentence “The amount of the claim is unquantified and there is no evidence about the likely fruits of that action” might say only that “the likely fruits of the action cannot be determined from the evidence”.

12. On the other hands, I acknowledge that the use of the word “claim” rather than “result” or “fruits” seems literally at odds with the presence of the Statement of Claim in evidence. 

13. If it be that the learned Magistrate had overlooked the Statement of Claim and/or the offer, the question then is, was that a mistake of fact which may have had an effect on the result or can it be plainly seen to have had no effect.  I consider that, for the reasons stated, the evidence was ultimately of no real help to the learned Magistrate as to what the net result for the husband of his claim might be.

14. Finally, given that the end point of argument on appeal is that the existence of the claim should have been taken into account as a section 75(2) factor, effectively “against” the husband, even had it been possible to affix some monetary value to the action, the particulars of claim indicate that the wife was very unlikely to be seen as contributing to any damages recovered, other than in a minor way.  While that would not prevent the “value” being taken into account it is a factor that was likely to further diminish the significance of the factor, to a point where the issue is, or is very close to “de minimus”.

15. In summary, I am not satisfied that in dealing with the offer as he did, the learned Magistrate made any error of fact in relation to evidence about the likely fruits of the action.  Further, if there was a mistake about whether there was evidence of the amount claimed over the likely result or not, that was ultimately of no impact on the end result.

16. In support of ground 8(c), counsel for the wife on appeal presented an argument in respect of the HECS debt as an alternative to those in support of ground 1, to the effect that the learned Magistrate should have offset the contingent HECS liability of the husband against the “contingent asset constituted by his personal injuries claim”.  That argument had also been put below.  Again, that course urged upon him might have been open to the Federal Magistrate and it may even be seen to have more appeal as an approach than the simple inclusion of the debt, but it cannot be said that that was the only available approach.

17. The matters referred to in paragraphs (a), (b) and (c) of this ground have been discussed immediately above.  Paragraphs (d) and (i) refer to matters relevant to contributions that were matters taken into account by the learned Magistrate when considering contributions (see paragraph 24 of his reasons).

18. As to the balance of the paragraphs of this ground, which attack the weight given (or not given) by the learned Magistrate, basically to the circumstances in which the wife was likely to have the on-going care of the children, the learned Magistrate’s consideration of section 75(2) factors was comprised of the following (including repetition of paragraph 27):

    “27.  The only factors identified by the parties as relevant under s.75(2) are the income earning capacity of each of the parties, the care of the children and their present financial circumstances.  In addition, the husband has a claim for damages for personal injury pending in the District Court of Queensland.  The amount of the claim is unquantified and there is no evidence about the likely fruits of that action.  Neither party placed particular emphasis on this matter.”

    28.    The wife presently earns about $130,000 per year although to do so she works two jobs.  It is said that she will earn more than the husband in the future, but there is little evidence to support that notion.  It is alleged that she will have the capacity to earn up to $500,000 per annum once qualified as a specialist.  There is in the evidence, however, nothing to bear that out.  The wife intends to move to part-time employment to spend time with [J] so as to be able to assist him with his speech development.

    29.    There is no evidence of the amount that the husband will earn in the future or what the possibilities are in that regard.

    30.    I am satisfied that the wife will continue to bear the costs of the children although she may receive some assistance from the husband in that regard in the future.  The parties' financial circumstances are otherwise set out in their respective financial statements.

    31.    Neither party suggested that an adjustment other than 10% in favour of the husband to take account of the matters set out in s.75(2) of the Act.  I consider an adjustment of that order appropriate.”

19. Before dealing with the submissions on behalf of the wife in support of the remaining paragraphs of ground 8, I refer to the primary argument in response, on behalf of the husband.

20. Counsel for the husband argued that it was not open to the wife to attack the 10% adjustment decided upon by the Federal Magistrate, because there had been a concession at the trial that that was an appropriate adjustment.  This is denied by counsel for the wife, he saying that on his instructions, no such concession was ever made.  However, I do consider that the Outline of Case filed on behalf of the wife and submissions ultimately made on her behalf, bear the interpretation that the wife’s legal representatives were conceding that a 10% adjustment in the husband’s favour on account of section 75(2) factors, was open.  At the least, the position taken for the wife provides a context in which the brevity of reasons given by the learned Magistrate in respect of the section 75(2) adjustment, must be viewed.

21. However, in any event, even if there was no concession as clear as that formulated by counsel for the husband, I am not satisfied that the adjustment made was not open to the learned Magistrate or that the reasons given were inadequate.

22. As to the adequacy of reasons, the essential “absences” asserted for the wife are, as seen earlier:

    (i)     recognition of the husband’s past record of contact and financial contribution to child support.

    (ii)     extrapolation from that about the poor prospects of contact and financial contribution in the future.

    (iii)     recognition of the consequent burdens on the wife.

23. Though it is true that the husband’s past record as to contact and child support are not expressly mentioned in paragraphs 27-31 of his Honour’s reasons, as seen earlier, that record was expressly and critically referred to by the learned Magistrate earlier in his reasons.  That reference alone may be sufficient to rebut the challenge to adequacy of reasons.

24. However, in my view, it is necessarily implicit in what his Honour said in paragraphs 27-31 that he was well aware of the husband’s past record, the prospects for the future and the consequences for the wife.  For example, it is implicit in the references in paragraphs 27 and 29 to “the care of the children” and “the wife will continue to bear the costs of the children” that the learned Magistrate was well conscious of the major responsibility falling on the wife.  He referred specially to Joshua’s case in paragraph 28.  He referred in paragraph 30 to the possibility of contribution by the father.  Those references implicitly in my view, contain regard to the father’s past performance.

25. In Bennett v Bennett ((1991) FLC 92-191, the Full Court of the Family Court said (at 78-267):

    “We stress that we are not suggesting that reasons must be extensive.  Their adequacy must frequently be judged by reference to the issues raised by the parties at trial…”

26. Having regard to what I have said of the concession in the wife’s material and submissions on her behalf that a 10% adjustment in the husband’s favour on account of section 75(2) factors was “open”, and to the reasons (paragraphs 27-31 themselves), albeit brief, I am not satisfied that the learned Magistrate failed to provide adequate reasons for the adjustment for section 75(2) factors.

27. As to the amount of the adjustment, there was on the evidence a current disparity in earning capacities favouring the wife, and a disparity would remain even if the wife moved to part-time employment.  While a 10% adjustment on account of that in the light of the other factors might seem initially high, even too high, it is, as was pointed out in Clauson v Clauson (1995) FLC 92-595, essential to consider the monetary effect which here was, on the correct figures, but $20,000. (On the figures which the learned Magistrate thought applicable, the adjustment was $25,000) The difference of $5,000 which works to the husband’s detriment, does not advantage the wife in her appeal.) In my view, it has not been shown that a $20,000 adjustment to the husband, given the disparity of earnings current at trial, was not open to the learned Magistrate.

Ground 9 – the liberty to apply provision

1. The order challenged read:

   “(5)   That each party have liberty to apply in the event that the payment required by order (1) hereof is not made by the due date.”

2. The ground reads:

   “9.    The learned Federal Magistrate erred in pronouncing final orders but providing liberty to apply to the Wife for a splitting order should she be unable to pay the amount ordered in paragraph 1 to be paid in cash.”

3. As to the liberty to apply order, his Honour said:

   “33.  The wife does not seek a superannuation splitting order.  Given that the husband will have a need for cash, the ages of the parties and the wife's seeming capacity to fund a cash payment to the husband I think that his entitlement should be provided by way of cash payment.  Such an order in the circumstances will be just and equitable.

   34.    In the event that the wife is unable to make the cash payment to the husband as required by these orders, the options are to order a sale of the former matrimonial home or to make a superannuation splitting order.  I will reserve liberty to each party to apply in that respect in the event that the wife is not able to make the cash payment.”

4. In my view, this ground can be dealt with as follows.  An appeal lies against orders, not against reasons.  The liberty to apply provision is of itself, harmless.  As to the reasons, I very much doubt that, under a liberty to apply provision, it would be appropriate to order a sale of a home in lieu of an order for cash payment, even though both are readily realisable assets.  I think it would be even less appropriate, because of the differences in character between superannuation and readily realisable assets, to make a splitting order, as was contemplated by the Federal Magistrate. However, what might or might not be done if any such liberty to apply is utilised and whether whatever is done attracts appellate interest, is for the future.  Therefore, in short, while I think the reasons for the provision of the liberty to apply flawed, the provision itself is unexceptional.

Conclusion

1. It follows from my discussion of the individual grounds that, no merit having been found in any of them, the appeal fails.

Costs

1. I will hear the parties as to costs, or about directions as to costs applications.

ORDERS

1. That the appeal be dismissed.

   I certify that the preceding 72 paragraphs

   are a true copy of the Reasons for Judgment

   herein of the Honourable Justice Warnick.

   ………………………………….
     Associate

   Date: 10 March 2006