W v M - [2023] WASCA 93

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   W -v- M [2023] WASCA 93
CORAM:   MITCHELL JA
BEECH JA
HALL JA

HEARD:   23 MAY 2023
DELIVERED          :   8 JUNE 2023
FILE NO/S:   CACV 72 of 2022
BETWEEN:   W
Appellant
AND
M
Respondent

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   SUTHERLAND CJ
Citation: M and W [2022] FCWA 111
File Number            :   6046 of 2020

Catchwords:

Family law - De facto relationships - Property settlement proceedings between de facto partners - Whether primary judge made any material error

Legislation:

Family Court Act 1997 (WA), s 205ZG

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	T Kean
Respondent	:	T Farmer

Solicitors:

Appellant	:	Kean Legal Barristers And Solicitors
Respondent	:	Terrace Law

Case(s) referred to in decision(s):

Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662
Dodds v Kennedy [2011] WASCA 32
Hall v Hall [2016] HCA 23; (2016) 257 CLR 490
In the Marriage of Crapp (No 2) (1979) 5 Fam LR 47
In the Marriage of KD & PA Reynolds (1984) 10 Fam LR 388
In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762
M and W [2022] FCWA 111
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Mallet v Mallet (1984) 156 CLR 605
Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44
Norbis v Norbis (1986) 161 CLR 513

JUDGMENT OF THE COURT:

Introduction

The appellant challenges the decision of the primary judge[1] in property settlement proceedings commenced by the respondent, formerly his de facto partner, against him.
[1] M and W [2022] FCWA 111 (primary decision).
At trial, the parties were agreed as to their assets and their value. The main issues concerned who should retain the house in which they had lived for most of their relationship and what adjusting payments should be made consequent upon the decision as to retention of the house.
In summary, the primary judge decided that (i) contributions should be assessed as 60:40 in favour of the respondent, (ii) there should be a further adjustment of 5% in her favour, having regard to the disparity in their income‑earning capacities and to the respondent's significant ongoing parenting responsibilities for their child, and (iii) ownership of the property where they had lived should go to the respondent.
By his seven grounds of appeal, the appellant challenges various steps in the primary judge's reasoning and conclusions.
For the reasons that follow, the appellant has fallen well short of establishing any appellable error. We would dismiss the appeal.

Background

The following background is drawn from the unchallenged findings of the primary judge.
Both the appellant and the respondent were born in 1977. They met in 2010, after the appellant moved to Western Australia to work in the mining industry. In or about January 2011, the parties commenced living together.
The appellant and the respondent separated on a final basis on 11 March 2020.
There is one child of the parties' de facto relationship, P, who was born on 2 December 2016.
When the parties started living together, the appellant moved into the respondent's property in Dunsborough. At that time, the respondent worked full time as a veterinary nurse, earning approximately $38,000 per annum. The appellant worked full time as a plant operator in a mine, on a fly‑in/fly‑out basis, earning approximately $120,000 per annum.
During the parties' relationship, the appellant continued to work full time on a fly‑in/fly‑out basis and was the primary financial earner. The respondent worked full time until shortly before the birth of their child, P, following which the respondent was the primary homemaker and parent to P.
When the parties began living together, the respondent had equity of approximately $220,000 in her Dunsborough property, which she had acquired in 2005. She also had superannuation entitlements valued at approximately $37,000. By contrast, the appellant had only very modest property interests, with a total value of less than $20,000.
During the first two years of their cohabitation, the parties lived in the respondent's Dunsborough property. The appellant was not required to pay any amount in the nature of rent and, consequently, was able to accumulate significant savings.
In 2013, the parties purchased a property (the Property) in a suburb of a regional town for $510,000, with the appellant paying a deposit of approximately $50,000. Although the parties discussed purchasing the property in joint names, they ultimately decided that the property should be purchased in the appellant's sole name so that he would qualify for a full grant under the first home owner grant scheme.
Thereafter, the parties moved into the Property. The respondent rented out her Dunsborough property from when the Property was acquired until the Dunsborough property was sold after the parties' final separation.
The appellant required the respondent to pay an amount in the nature of rent, initially $100 per week and then subsequently $150 per week. The payments stopped shortly before the birth of their child.
After the respondent became pregnant, the appellant pressed the respondent to match his $50,000 contribution to the purchase of the Property. As a result, the respondent refinanced her mortgage over the Dunsborough property and paid the sum of $50,000 in reduction of the mortgages over the Property.
After her birth, the parties' daughter, P, was diagnosed with a form of cerebral palsy, which affects her whole right side coordination, as a result of which she has extensive ongoing medical and physical caring needs. Among other things, P requires very regular attendance on a variety of medical practitioners and specialists. The primary judge found that the respondent was and continues to be the parent primarily responsible for P's medical needs.
In 2015, the respondent established a small business as a dog groomer, which she operated from the Property.
The parties' relationship deteriorated in 2019, with an increasing number of disputes, including as to their finances. In the last six months before their final separation, the respondent and P regularly did not sleep in the Property.
In the lead up to the parties' final separation in March 2020, the respondent put the Dunsborough property on the market, but she was unable to sell it. The respondent looked for another suitable residence, but she was unable to find one that she could afford.
On 11 March 2020, the respondent obtained an interim family violence restraining order protecting her from the appellant. That order prevented the appellant from continuing to live at the Property. The primary judge found, and it is not in dispute, that the parties finally separated on 11 March 2020.
After separation, the respondent continued to live in the Property with P. The appellant's living arrangements were unsettled.
With substantial assistance from her parents, from 2020, the respondent has met the fees and associated costs of P attending a school (the School) that is in very close proximity to the Property.
After separation, the respondent continued to operate her dog grooming business from the Property, earning a modest income. She was otherwise dependent on child support from the appellant and some limited Centrelink entitlements.
In July 2020, the respondent commenced financial and parenting proceedings in the Family Court.
In January 2021, the appellant, through his solicitor, gave notice that he agreed to the sale of the Dunsborough property and that he intended to cease mortgage payments on the Property. The appellant made no further mortgage payments on the Property after April 2021. In July 2021, the respondent's solicitors gave notice to the appellant that the Dunsborough property had been sold, providing a copy of the contract of sale. The net proceeds of sale of the property were held by the respondent's solicitors on trust, pending the resolution of the property settlement proceedings in the Family Court.
In about September 2021, the appellant ceased making child support payments to the respondent. The judge noted that, during cross‑examination, the appellant made it clear that he was not prepared to resume paying child support until he was (i) working full time; (ii) back living in the Property; and (iii) having P in his care for 50% of the time.
It is convenient to set out the general legal framework before outlining the proceedings and the primary decision.

Legal principles

Part 5A of the Family Court Act 1997 (WA) (the Act) deals with de facto relationships. (Amendments to the legislation coming into operation on 28 September 2022 are irrelevant for present purposes and so are not referred to.)
On an application for property settlement between de facto partners, the considerations to be taken into account by the court are prescribed by s 205ZG of the Act.[2] Section 205ZG(1) provides:
In proceedings with respect to the property of de facto partners, or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the partners to make, for the benefit of either or both of the partners or a child of the de facto relationship, such settlement or transfer of property as the court determines.
The court must not make an order under s 205ZG unless it is satisfied that, in all the circumstances, it is just and equitable to make the order (s 205ZG(3)).
[2] FDR v JDL [No 2] [2016] WASCA 231 [25].
Section 205ZG(4) of the Act provides that, in considering what order (if any) should be made in proceedings with respect to the property of de facto partners, the court must take into account matters there stipulated. Relevantly, those matters are:
(1)the financial contribution made directly or indirectly by or on behalf of a de facto partner to the acquisition, conservation or improvement of any property of the de facto partners or either of them (s 205ZG(4)(a));
(2)the contribution, other than a financial contribution, made directly or indirectly by or on behalf of a de facto partner to the acquisition, conservation or improvement of any property of the de facto partners or either of them (s 205ZG(4)(b));
(3)the contribution made by a de facto partner to the welfare of the family constituted by the de facto partners and any children of the de facto partners, including any contribution made in the capacity of homemaker or parent (s 205ZG(4)(c));
(4)the matters referred to in s 205ZD(3) so far as they are relevant (s 205ZG(4)(e)); and
(5)any child support under the Child Support (Assessment) Act 1989 (Cth) that a de factor partner has provided, is to provide or might be liable to provide in the future, for a child of the de facto relationship.
The matters referred to in s 205ZD(3) of the Act that are relevant for present purposes are:
(1)the age and state of health of each of the de facto partners (s 205ZD(3)(a));
(2)the income, property and financial resources of each of the de facto partners and the physical and mental capacity of each of them for appropriate gainful employment (s 205ZD(3)(b));
(3)whether either de facto partner has the care or control of a child of the de facto relationship who has not attained the age of 18 years;
(4)commitments of each of the de facto partners that are necessary to enable the partner to support himself or herself (s 205ZD(3)(d)(i)) or to support a child that the partner has a duty to maintain (s 205ZD(3)(d)(ii));
(5)a standard of living that in all the circumstances is reasonable (s 205ZD(3)(g));
(6)any child support under the Child Support (Assessment) Act that a de factor partner has provided, is to provide or might be liable to provide in the future, for a child of the de facto relationship (S 205ZD(3)(n)); and
(7)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account (s 205ZD(3)(o)).

The primary proceedings

The parties agreed the composition and value of their property pool.
The parties agreed that they would each retain their own savings, motor vehicles, other chattels and superannuation entitlements. The key issues in dispute at the trial were:
(a)who should retain the Property; and
(b)the amount of any adjusting payment to be made consequent upon the decision as to who retained the Property.
In summary, both parties sought to retain the Property. The respondent sought a 70:30 division of the property pool in her favour and the appellant sought, in effect, a 53:47 division of the property in his favour.[3]
[3] Primary decision [2] ‑ [4].
As will be seen, the primary judge decided, in summary, that:
(1)Contributions should be assessed as 60:40 in favour of the respondent.[4]
(2)There should be a further adjustment of 5% in favour of the respondent by reason of s 205ZD(3) factors.[5]
(3)Thus, the property pool should be divided 65:35 in the respondent's favour.
(4)The respondent should retain ownership of the Property.[6]
[4] Primary decision [55].
[5] Primary decision [65].
[6] Primary decision [68]
The judge made orders reflecting those conclusions.

The primary decision

There is no challenge to the primary judge's findings as to the background facts, most of which we have summarised, nor to her Honour's outline of the relevant legal principles.
Noting that the parties had separated on a final basis in March 2020 and that both parties sought to sever their financial relationship, the primary judge was satisfied that it was just and equitable to make an order altering the parties' property interests.[7]
[7] Primary decision [50].
As to the parties' respective contributions, as referred to in s 205ZG(4)(a)(b) and (c), her Honour made the following findings:
(1)At the commencement of the parties' relationship, the respondent had significantly greater property interests than the appellant.[8] See [12] above.
(2)During the parties' relationship, the appellant was the primary income-earner and the respondent was the primary homemaker and parent, including being solely responsible when the appellant was working away on the mine site. Both parties also contributed to the Property. Her Honour concluded that the parties' respective contributions during their relationship were equal.[9]
(3)After the parties' separation, the appellant continued to meet the mortgage payments for the Property until April 2021. He also paid child support for P until approximately September 2021. Her Honour added, in an observation challenged by ground 1, that '[h]owever, [the appellant] did so in the context that he had a legal obligation not only to contribute towards [P's] financial support, but also to contribute towards [the respondent's] financial support by way of spousal maintenance, to the extent that he was reasonably able to do so, and [the respondent] was unable to support herself adequately'. The respondent also continued to make very substantial contributions in her role as the primary homemaker and parent to P.[10]
[8] Primary decision [52].
[9] Primary decision [53].
[10] Primary decision [54].
Considering all these factors, her Honour was satisfied that, overall, the parties' respective contributions weighed significantly in favour of the respondent, particularly having regard to her sizeable initial contributions, which continue to form part of the existing property pool in one form or another. Her Honour concluded that contributions should be assessed as to 60% to the respondent and as to 40% to the appellant.[11] No ground of appeal challenges this conclusion.
[11] Primary decision [55].
Her Honour then turned to the factors set out in s 205ZD(3), to which regard was to be had under s 205ZG(4)(e). Her Honour found as follows:[12]
[12] Primary decision [57] ‑ [61].
[The Respondent] is 44 years old. She is not currently in a relationship with any other person. There was no evidence to suggest that [the respondent] suffers from any health conditions which detrimentally impact on her income earning capacity. At the time of the trial, [the respondent] continued to live with [P] at the [Property]. [The respondent] received an income of approximately $1,162 per week, including her business income of approximately $600 per week and various government benefits. In the future, [the respondent] hoped to increase her income, by continuing to grow her business, and if necessary, by returning to work as a veterinary nurse. [The respondent] was not receiving any child support from [the appellant] and he was nearly $9,000 in arrears.
[The respondent] continues to be solely responsible for [P's] care, noting that the parenting proceedings remain on foot. On [the respondent's] case, she will continue to be primarily responsible for [P's] care into the future. Even on [the appellant's] case, [the respondent] will continue to be significantly involved in [P's] care in the future.
[The appellant] is 45 years old. There was no evidence before the court to suggest that he was currently in a relationship with any other person. At the time of the trial, [the appellant] lived in [a regional town] and was not working, albeit he maintained that he was still employed by BHP. If [the appellant] eventually resumes full time work with BHP, then I am satisfied that he will be able to continue to earn a significantly greater income than [the respondent].
At the time of the trial, [the appellant] was receiving a net income of approximately $1,350 per week (or $5,851 per month) from his income protection insurance payments. However, there was no evidence before the court, and I am unable to make any findings, as to: (1) the basis upon which [the appellant] qualified for income protection insurance payments; and (2) for how long [the appellant] will continue to receive the payments.
[The appellant] has historically suffered from a number of health issues as follows:
(a)[The appellant] has previously been diagnosed with ADHD, for which he takes prescribed medication.
(b)[The appellant] has suffered various work-related injuries in the past.
(c)[The appellant] has a history of illicit drug use, including cannabis and methamphetamines.
(d)As recently as early 2021, [the appellant] suffered from a deterioration in his mental health, for which he sought assistance from his psychiatrist and various hospitals.
Her Honour considered that the paucity of the evidence meant she was unable to make findings as to the extent to which the appellant's health issues were likely to detrimentally impact on his earning capacity in the future.[13]
[13] Primary decision [62].
The primary judge noted the appellant's concession that, while he continued to use methamphetamines, he was unlikely to be able to progress from having some supervised time with P to having unsupervised time with P. Her Honour also noted that the appellant was not paying child support and owed substantial arrears.[14]
[14] Primary decision [63].
Her Honour concluded that there should be a further adjustment of 5% in favour of the respondent, particularly having regard to the disparity in the parties' income-earning capacities and to the respondent's significant ongoing commitment to her parenting responsibilities to P.[15]
[15] Primary decision [65].
Ground 2 challenges the assessment of the respondent's financial position in the first paragraph of the passage in [43] above, contending that the primary judge should have taken account of the financial resources made available to the respondent through her parents. The primary judge's ultimate conclusion of a 5% adjustment in the respondent's favour, summarised in [46] above, is challenged by ground 3 on the same basis.

The primary judge thus concluded that the property interests of the parties should be divided 65:35, giving effect to that by distributing their property in accordance with the detailed table set out in the primary reasons.
Her Honour gave the following reasons for concluding that the respondent should retain the Property:[16]
(a)Firstly, I am satisfied that from a practical commercial point of view, [the respondent] is able to afford to raise the necessary funds to refinance the ING mortgages and pay out [the appellant] his entitlements, because she will have the financial backing of her parents. On the other hand, I am not satisfied on the available evidence that [the appellant] can raise the additional $129,858.00 he would need to pay [the respondent] for her to receive her full entitlements, were he to retain the [Property] subject to the two ING mortgages.
(b)Secondly, I am satisfied that if [the respondent] retains the [Property], then she will be able to continue to operate her business. On the other hand, if she was not able to retain the [Property], then it would inevitably cause significant disruption to her business and detrimentally impact on her income. In circumstances where [the appellant] has ceased paying child support and evinced an intention [to] only recommence payments on his 'terms', any disruption to [the respondent's] business and her income is, in my view, a significant factor.
(c)Thirdly, I am satisfied that if [the respondent] retains the [Property], then the arrangements she has put in place for [P] (including the modifications to the home, her attendance at [the School], and [P's] medical and therapeutic supports) will be able to continue without interruption. On the other hand, if [the respondent] is unable to retain the [Property] and she is required to relocate with [P] to another location, then I am satisfied that [the respondent] will inevitably have to expend considerable time and effort in re‑establishing new arrangements for [P], which again may cause some temporary disruption to [the respondent's] business and her income.
[16] Primary decision [68].
Grounds 4, 5 and 6, respectively, challenge the reasons in subpars (a), (b) and (c) of this passage.
The judge concluded that, as a result of the property settlement ordered by the court, the appellant would retain a significant sum to apply towards his future accommodation requirements and that, in the circumstances, the proposed financial division was just and equitable and otherwise proper.[17] Ground 7 challenges this conclusion.
[17] Primary decision [69].

Grounds of appeal

The appellant's grounds of appeal assert that the primary judge 'erred in law' in each of the following respects:
1.[B]y finding that the Appellant continued to meet the mortgage payments for the [Property] until April 2021, in the context that the Appellant had a legal obligation to contribute towards the Respondent's financial support by way of spousal maintenance: Decision, [54];
2.[B]y failing to take into consideration, the financial resources that the Respondent had available to her, by her parents, when deciding the section 205ZD(3) factors: Decision, [57];
3.[B]y failing to take into account the Respondent's financial resources available to her, when finding that there should be further adjustment of five per cent in favour of the Respondent, particularly having regard to the disparity in the parties' income earning capacities: Decision, [65];
4.[B]y then taking into consideration, the Respondent's available financial resources from her parents, when considering if she could raise the necessary funds to refinance the ING mortgages and payout the Appellant his entitlements: Decision, [68(a)];
5.[B]y finding that if the Respondent was not able to retain the [Property], it would inevitably cause significant disruption to her business and detrimentally impact on her income: Decision, [68(b)];
6.[B]y finding that if the Respondent is unable to retain the [Property] and she is required to relocate with [P] to another location, the Respondent will inevitably have to expend considerable time and effort in re-establishing new arrangements for [P], which may cause some temporary disruption to the Respondent's business and her income: Decision, [68(c)];
7.[B]y finding that the proposed financial division is just and equitable and otherwise proper: Decision, [69].

Ground 1: mortgage payments

Appellant's submissions

Ground 1 asserts an error of law by the primary judge in finding that the appellant continued to meet the mortgage payments for the Property until April 2021 in the context that the appellant had a legal obligation to contribute towards the respondent's financial support by way of spousal maintenance.
The appellant submits that he was liable to maintain the respondent to the extent he is reasonably able to do so, if, and only if, the respondent is unable to support herself. He submits that the respondent is able to support herself in that she could do so by working as a veterinary nurse if her dog-grooming business provided insufficient income. Further, the appellant points to the primary judge's finding that the respondent could raise almost $130,000 to refinance the mortgages, given the financial backing of her parents. Thus, the appellant submits, his contribution by way of meeting the mortgage payments for the Property was not a legal obligation by way of spousal maintenance but, rather, should have been treated as a genuine financial contribution.[18]

Disposition

[18] Appellant's submissions [1] - [5]; appeal ts 4 - 5.

Ground 1 and the appellant's submissions in support of it face two related obstacles.
First, although ground 1 asserts an error of law, the appellant has not identified a finding that reveals legal error. The judge observed that, after separation, the appellant had a legal obligation to contribute towards the respondent's financial support by way of spousal maintenance to the extent that the appellant was reasonably able to do so and to the extent that the respondent was unable to support herself adequately. That observation, so far as it goes, reveals no error. To the contrary, it is, with respect, a correct statement of the position. The primary judge did not say - and, in our view, it is not to be inferred - that her Honour discounted the appellant's mortgage payments on the basis that she treated them as financial support by way of spousal maintenance.
Secondly, the appellant does not challenge the primary judge's assessment of the parties' respective contributions as 60:40 in favour of the respondent. That is apparent from the grounds of appeal. See also [26] of the appellant's written submissions. Moreover, the judge's assessment of the parties' respective contributions was based on their very different initial contributions and their contributions over a period spanning 11 years. The assessment concerned an asset pool worth about $750,000. The appellant's post‑separation mortgage payments amounted to $423 per week,[19] from March 2020 until the appellant ceased making payments in April 2021. Thus, the payments totalled less than $25,000. It is not apparent that those payments were of a sufficient scale to materially affect the primary judge's conclusion that contributions should be assessed as 60:40 in favour of the respondent. In those circumstances, the observation impugned by ground 1 does not give rise to any material error.
[19] Affidavit of M affirmed 20 July 2021 [28], which was not contradicted in W's affidavit affirmed 3 May 2022 and was not challenged in cross‑examination.
For these reasons, ground 1 does not reveal any appellable error.

Grounds 2 - 4: financial resources in the form of parental support

These grounds all concern what the appellant asserts were the financial resources available to the respondent in the form of financial assistance from her parents.
In support of these grounds, the appellant submits as follows:
(1)The term 'financial resource' is intended to have a wide operation, referring to In the Marriage of Crapp (No 2).[20]
(2)A financial resource encompasses a financial stock or reserve over which a party has sufficient control as a matter of fact to draw upon when necessary towards supplying some financial want or deficiency of the party.[21]
(3)Even if the support of the parents could not be treated as a financial resource, it should have been treated as a factor to be taken into account pursuant to s 205ZD(3)(o).[22]
(4)The appellant emphasises the primary judge's finding that for the 15 years the respondent owned the Dunsborough property, the respondent's parents did not require her to make repayments of principle or payments of interest, only requiring the loan to the respondent be repaid when the property was sold.[23]
(5)The primary judge should have inferred from the evidence of the respondent's parents' past generosity that that generosity would continue in the future. That inference should have been taken into account, which her Honour failed to do, in evaluating the respondent's financial resources for the purpose of deciding whether an adjustment should be made based on s 205ZD(3).[24]

Disposition

[20] In the Marriage of Crapp (No 2) (1979) 5 Fam LR 47.

[21] Appellant's submissions [9], referring to In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762.

[22] Appellant's submissions [12], referring to In the Marriage of K D & P A Reynolds (1984) 10 Fam LR 388, 396.

[23] Appeal ts 5 - 7.

[24] Appellant's submissions [13] - [14]; appeal ts 5.

The decision of French CJ, Gageler, Keane and Nettle JJ in Hall v Hall[25] authoritatively establishes the following as to the concept of the 'financial resources' of a party. The financial resources of a party are not confined to the party's present legal entitlements. Financial resources refers to a source of financial support that a party can reasonably expect will be available to them to supply a financial need or deficiency. The source of financial support must be one on which the party is capable of drawing, and thus be something more than an expectation of benevolence on the part of another. But it is not necessary that the party control the source of financial support. Thus, a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in their favour, has a financial resource to the extent of that expectation. Whether a potential source of financial support amounts to a financial resource of a party turns, in most cases, on a factual enquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.
[25] Hall v Hall [2016] HCA 23; (2016) 257 CLR 490 [53] ‑ [55].
In Hall v Hall itself, the wife's father's will expressed a 'wish' that the wife should receive an annual payment from the corporate group formerly controlled by the wife's father and, after his death, controlled by her brothers. The finding, upheld by the High Court, was that the payment was available to her if she asked for it, it being a moral obligation of the wife's brothers who were, in any case, well disposed towards her. Consequently, it was part of her financial resources.
A decision made under s 205ZG(1) of the Act, like a decision made under s 79 of the Family Law Act 1975 (Cth), is a discretionary decision to which the principles in House v The King apply.[26] The same is true, in our view, for the judge's intermediate decisions as to the parties' respective contributions for the purposes of s 205ZG(4)(a) ‑ (c), and as to any adjustment to be made by reason of the matters referred to in s 205ZD(3).
[26] Mallet v Mallet (1984) 156 CLR 605, 610, 621 - 622, 634; Norbis v Norbis (1986) 161 CLR 513, 517 ‑ 518, 535; Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 [31].
The weight to be given to particular considerations is generally a matter for the court exercising the discretion. An appellate court will not interfere with an exercise of judicial discretion on the basis of a failure to give adequate weight to a relevant consideration unless it can be shown that the failure really amounts to a failure to exercise the discretion actually entrusted to the court.[27]
[27] Mallet (614); Dodds v Kennedy [2011] WASCA 32 [4].
It is incumbent on parties who contend, on an appeal against a discretionary decision, that the judge failed to take particular matters into account to demonstrate that the primary judge's attention was drawn to those matters, at least unless those matters are fundamental and obvious.[28]
[28] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [120]; Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44 [77].
As the appellant ultimately accepted before this court, the appellant did not run his case at the trial on the basis that the respondent's parents should be treated as a financial resource for the respondent.
The evidence as to support provided to the respondent by her parents was of a loan of $200,000 to assist in the purchase of the Dunsborough property, secured by a mortgage supported by a caveat, together with assistance with P's school fees. The primary judge found that the respondent made no interim repayments in relation to the loan, paid no interest, and the loan was repaid when the Dunsborough property was sold and the mortgage discharged.
The respondent gave evidence that she expected that her parents would assist in financing her to take over the mortgage of the Property. She was asked, in cross‑examination, to explain how she could afford to take on a higher mortgage if she were to become the owner of the Property. In the course of that cross‑examination, counsel for the appellant put to the respondent, and she accepted, that there was no material before the court as to the extent of the assets of her parents.[29] Her evidence was that any such financing of the Property would be on the same terms and would involve a mortgage.[30]
[29] ts 42 - 43.
[30] ts 44.
Apart from their proposed support in financing the respondent's acquisition of the Property, the only evidence of the contemplation of further financial support of the respondent by her parents was her evidence that, when she had contemplated acquiring a different property in the same general location as the Property (instead of acquiring the Property), her parents expressed a willingness to help her fund the purchase of such a property.[31]
[31] ts 53, 61.
Beyond the evidence referred to in [68] above, no attention was directed in evidence or in submissions to a consideration of the income, assets and resources of the respondent's parents.
At the trial, the appellant did not submit that the respondent had a financial resource - in the form of the expectation of further and continued financial support from her parents - that should be taken into account by the primary judge.
In these circumstances, the primary judge cannot be said to have erred in failing to take into account a matter to which her attention was not drawn and upon which the appellant did not rely.
Further and in any event, the evidence and the judge's findings do not establish that the respondent had a reasonable expectation of financial support beyond the support involved in assisting the respondent to finance the acquisition of the Property. The parental support involved in assisting the financing of the Property was not overlooked by the judge. Having regard to what is said in [69] above, the evidence did not establish any financial resource on the part of the respondent in the form of any reasonable expectation of further financial support from her parents.
For these reasons, grounds 2 ‑ 4 fail.

Grounds 5 and 6

These grounds assert errors of law by the primary judge in making findings in the course of concluding that the respondent should retain the Property. Ground 5 asserts error in finding that if the respondent were not able to retain the Property, there would inevitably be significant disruption to her business and impact on her income. Ground 6 asserts error in finding that if the respondent is not able to retain the property, she would have to expend considerable time and effort in re‑establishing new arrangements for P, thereby temporarily disrupting her business and income.
In support of these grounds, the appellant advances submissions to the following effect:[32]
(1)As the primary judge recognised, there were parenting proceedings between the parties that were not before the court at trial.
(2)Given that in the parenting proceedings the appellant was seeking, in the long term, equal care of P, either party being forced to leave the Property would have been disruptive to P. Consequently, the party with the greater resources would be better able to handle the disruption.
(3)If the appellant had remained at the Property, the modifications made for P would have remained able to be used for her benefit. Further, in the future, when the appellant has care of P, modifications will need to be made to his home.
(4)Given the primary judge's finding that the appellant had lesser resources than the respondent, her Honour should have found that the respondent would be better placed to handle the disruption of having to move.
(5)The primary judge failed to take account of the fact that the respondent was still working part time as a veterinary nurse.

Disposition

[32] Appellant's submissions [16] - [25]; appeal ts 12 - 16.

There is no error in the way in which the primary judge approached the question of who should retain the Property. As her Honour noted, the appellant conceded that while he continued to use methylamphetamines, he was unlikely to progress to unsupervised time with P.[33] In his trial affidavit, the appellant acknowledged that it was likely that P would live with the respondent.[34]
[33] Primary reasons [63].
[34] Affidavit of W [77].
Thus, the position as at the time of trial was not in doubt. The Property included modifications for P's benefit and is located near to the School and to her medical and therapeutic support. P would continue to live with the respondent. Whether - and, if so, when - that might change was uncertain. The primary judge was entitled, indeed obliged, to take that existing reality into account in exercising her discretion as to who should have the ownership of the Property. That is what her Honour did.
Further, by the time of the trial, the respondent had been operating her dog-grooming business from the purpose‑built shed at the Property for several years. The appellant's submission that the respondent was able to work part time as a veterinary nurse misses the point. It does not undermine the primary judge's conclusion that requiring the respondent to leave the Property would cause significant disruption to her dog-grooming business. That conclusion is unimpeachable. Indeed, we can see no room for any other conclusion.
As counsel for the appellant properly accepted,[35] the appellant's complaint the subject of grounds 5 and 6 is, in reality, a complaint that the primary judge gave too much weight to the considerations to which she referred. For the reasons in [64] above, such a complaint does not reveal any appellable error.
[35] Appeal ts 12 - 13, 15.
We do not accept the appellant's assertion that the party with the greater resources is thereby better able to handle the disruption of being forced to leave the Property. Still less is any such consideration to be given, as the appellant appears to invite, determinative significance in the face of the matters outlined in [77] ‑ [79] above. Further, there was no finding as to which party had the greater financial resources.

The primary judge's order altering the parties' property interests by having the property transferred to the respondent involved a broad discretionary assessment. The approach taken by the primary judge, and the considerations to which she referred, appears to us, with respect, to be cogent and to make good sense. No appellable error in her Honour's approach has been demonstrated.

Ground 7

Ground 7 does not identify any distinct error. Nor do the appellant's submissions in support of ground 7. Grounds 1 ‑ 6 having failed, ground 7 fails.

Conclusion

For the above reasons, we would dismiss the appeal.
We would hear from the parties as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Research Associate to the Honourable Justice Beech
8 JUNE 2023