Wallis & Manning
[2017] FamCAFC 14
•10 February 2017
FAMILY COURT OF AUSTRALIA
| WALLIS & MANNING | [2017] FamCAFC 14 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where appeal related to the trial judge’s assessment of contributions – where the appellant counsel’s assertion that the trial judge’s assessment fell ‘outside the range reasonably available in the circumstances’ was insufficient, without more, to found an appealable error – where there was significant delay between trial and delivery of judgement – where that delay resulted in the trial judge’s failure to properly consider evidence in the assessment of contributions – where the trial judge erred by referring to a property purchased jointly by the parties as part of gifts given by the husband’s father – where the trial judge failed to include as a contribution an inheritance received by the wife – where the trial judge then assessed contributions as significantly in favour of the husband – appeal allowed. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – ‘outside the range’ – whether comparable cases should be considered in the exercise of discretion – where comparable cases may provide guidance when exercising the s 79 discretion. FAMILY LAW – APPEAL – RE-EXERCISE OR REMITTER – where both parties requested re‑exercise in the event of error – where the parties submitted that court should proceed on the assumptions that interests in property, their values and uncontroversial fact findings pertained as at the hearing of appeal – where each of the parties provided further written submissions related to the assessment of contributions – s 79 discretion re-exercised. |
| Family Law Act 1975 (Cth), s 79, 79(2), 79(4), 75(2), 117 Federal Proceedings (Costs) Act 1981 (Cth) |
| Aleksovski and Aleksovski (1996) FLC 92-705 Yardley & Yardley [2011] FMCAfam 1172 |
| APPELLANT: | Ms Wallis |
| RESPONDENT: | Mr Manning |
| FILE NUMBER: | LEC | 329 | of | 2011 |
| APPEAL NUMBER: | NA | 91 | of | 2015 |
| DATE DELIVERED: | 10 February 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 4 August 2016; Supplementary written submissions filed by the respondent on 19 August; and by the appellant on 2 September 2016; |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 November 2015 |
| LOWER COURT MNC: | [2015] FCCA 2673 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Weightman |
| SOLICITOR FOR THE APPELLANT: | Bell & Johnson Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | Henry Family Lawyers |
Orders
That the appeal be allowed.
The Orders for settlement of property made by Judge Demack on 4 November 2015 be set aside.
That the parties provide to the appeals registrar via email, within 21 days of the date of these Orders, agreed minutes of order giving effect to the reasons of judgment published contemporaneously herewith and taking account of any steps taken by the parties to give effect to the Orders of Judge Demack and providing for the sum of money required to be paid by the husband to the wife in accordance with these reasons be paid within 60 days of the date of these orders.
There be no order as to the costs of the appeal.
The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect to the costs incurred by the appellant wife in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect to the costs incurred by the respondent husband in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallis & Manning has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 91 of 2015
File Number: LEC 329 of 2011
| Ms Wallis |
Appellant
And
| Mr Manning |
Respondent
REASONS FOR JUDGMENT
On 29 September 2015, Judge Demack delivered reasons for judgment some three years after the conclusion of the trial of property issues before her. On that date, her Honour ordered that her reasons “be published to the parties” and “the matter” be adjourned “for mention, or for hearing” on 4 November 2015. On the later date, her Honour made orders the subject of this appeal by the wife. [1]
[1]The coversheet to the reasons indicates that the last “hearing date” and the “date of last submissions” each occurred on 17 July 2013. However, on that date consent orders for spousal maintenance were made in chambers in respect of an Application in a Case filed some eight months after the trial concluded on 1 August 2012. The last of the parties’ written submissions were filed 9 October 2012.
Her Honour’s orders reflect a division of “the property of the parties or either of them” within the meaning of s 79 of the Family Law Act 1975 (Cth) (“the Act”) in the proportion 60 per cent to the husband and 40 per cent to the wife. In overview, the effect of her Honour’s orders was to facilitate the husband retaining the land, water licences, and business associated with a farm which the parties had lived on and operated for the, approximately, 27 years of their marriage in exchange for the payment to the wife of about $527,000 and her retention of a property in which she resides in a town in New South Wales.
That result emanated from her Honour finding that the contributions of the parties within the meaning of s 79(4) of the Act should be assessed in the proportion 70 per cent to the husband and 30 per cent to the wife. That disparity in contributions is represented by an amount in excess of three‑quarters of a million dollars. The appellant wife’s challenge to that assessment lies at the heart of this appeal.
What Issues Arise For Determination?
An error the subject of ground 1 is conceded by both parties. Despite finding (at [45]-[46]) that a collection of liabilities totalling about $170,700 should not be included in determining the net value of the property of the parties, her Honour nevertheless included those liabilities when tabulating the interests in property and the liabilities. It is agreed by counsel for each of the parties that this error can be corrected, and perhaps should have been corrected, pursuant to “the slip rule”.[2] This issue need not be further discussed.
[2] Federal Circuit Court Rules 2001 (Cth) r 16.05.
Ground 2 asserts, in terms, that her Honour “fail[ed] to find [as was the fact] that the parties’ half-share of ‘[Property W] (AKA [W])’ was purchased by them from the husband’s brother”. The premise is erroneous; her Honour did find at [13], as part of setting out the “background” to the case, that a half-share in that land was purchased by the parties in 1998. Counsel for the wife concedes error in the premise for the ground as pleaded.
However, counsel asserts that despite [13] of the reasons, reference to [50]-[53] of the reasons, where her Honour discusses specifically the issue of contributions under that heading, should be read as her Honour failing to take account of a significant relevant consideration, namely that the “[W]” property and its attendant water licences were purchased by the parties in contradistinction to the gifts of property and water licences made on behalf of the husband some 12 or 13 years earlier, shortly after the parties’ marriage. That is said to have caused, consequentially, an error in the exercise of her Honour’s discretion in assessing contributions.[3]
[3]Counsel for the husband conceded that he was not prejudiced in meeting the re-framed argument. In light of counsel’s concession, no formal amendment of the Notice of Appeal was sought or made.
The appellant’s arguments in respect of ground 3, which challenges her Honour’s assessment of contributions, rest predominantly on challenges to the weight attributed by her Honour to aspects of the evidence. Counsel for the wife acknowledges frankly the difficulties thereby confronted in an appeal from a discretionary decision.[4]
[4]See, for example, Gronow v Gronow (1979) 144 CLR 513, at 519; Mallet v Mallet (1984) 156 CLR 605, at 615; Sharman v Evans (1977) 138 CLR 563, at 565 as discussed in Rodgers & Rodgers (No. 2) (2016) FLC 93-712, at 81,496 – 81,497.
Ground 3 also embodies a contention of discretionary error asserted frequently in this court; her Honour’s assessment of contributions is said to be “well outside the range reasonably available in the circumstances”. In the context of submissions made by counsel at the hearing of the appeal and questions raised by the court in respect of same, both counsel were granted the opportunity to provide further written submissions so as to sustain or refute the contention at the centre of ground 3. Each subsequently did so.
The Impact of Delay Between Trial and Judgment
The appellate effect of significant delay between the completion of the trial and delivery of the judgment is governed by well-settled principles.
As is accepted by counsel for the wife in his written outline of argument, delay is not, of itself, determinative of, or necessarily indicative of, the necessity for appellate intervention; “delay, however undesirable, does not itself mean that on appeal a different result is substituted or a new trial ordered”.[5] However, a lengthy delay between trial and judgment requires an appellate court to “look with special care at any finding of fact challenged on appeal”,[6] or to subject the trial judge’s reasons to “closer than usual scrutiny”.[7]
[5]Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals Inc & Ors [2005] NSWCA 76, at [123] per Giles JA; Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; McCrossen & McCrossen (2006) FLC 93-283.
[6]Expectation (above) at [62].
[7]Appellant’s written outline of argument, [19], citing Paggett & Cable [2015] FamCAFC 186 at [19].
In this appeal, no ground of appeal challenges, in terms, any factual finding made by her Honour, nor can any ground be seen to turn on findings emanating from her Honour’s assessment of the veracity or reliability of evidence given in the case. Nevertheless, delay is said to play a role because, while this court is usually able to “assume that the mere failure of the trial judge to refer to evidence relevant to a particular finding does not mean that such evidence has been overlooked or that some other form of error has occurred”[8] it is said that this assumption cannot and should not be made where there is inordinate delay of the duration under discussion.[9]
[8]Monie v The Commonwealth (2005) 63 NSWLR 729, at [43].
[9]Monie; McCrossen, above.
Thus, while the “label of delay adds little” it should be accepted that delay can infect the decision-making process: “[w]hat must be considered is the effect of the passage of time on the quality of the decision-making”. Importantly that can include “the perception of an effect”.[10] As the Western Australian Court of Appeal has said:
… a long delay can give rise to disquiet … because of the suspicion, on the part of the losing party, that the task may have become too much for the trial judge and that he or she had been unable, in the end, to grapple adequately with the issues.[11]
[10]Krivoshev, above.
[11]Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, at [31].
Counsel for the appellant wife argues that the considerations just outlined are exemplified in her Honour’s conceded error in including a liability which she said specifically she would not include. Particularly relevant to the issues requiring determination, it is submitted that those considerations have crucial application to what are asserted to be the errors in respect of the acquisition of “[Property W]” apparent at [50]-[53] of the reasons.
The Contributions Findings And Assessment
The parties married when they were in their late teens. Their 27 year marriage ended in August 2010. The parties’ three children were all adults by the end of the marriage.
The net property of the parties or either of them, (corrected for the conceded error made by her Honour referred to earlier) was about $1.91 million. The parties also each had very modest amounts of superannuation. The property consisted predominantly of three pieces of real property, upon which the parties conducted a farming business, and valuable water licences central to the conduct of that business.
The primary judge made a number of findings at [48] and following of the reasons under the heading “contributions”. All are uncontroversial on this appeal:
·The parties “both applied themselves within their skills and talents”;
·The wife “performed more of the parenting and the husband performed more of the work outside the home”;
·Nothing “within either party’s performance of their obligations … requires particular consideration”;
·“From early in their marriage the parties operated their business partnership of farming, doing cropping”;
·“The wife did the books of the partnership up to around 2000, and although thereafter she was not doing the books, she still knew what was going on in the business”;
·“It must be understood that the wife contributed to the partnership through (at the very least) a real interest in its workings and attending to book work for many years”;
·“The wife also worked in separate paid employment at times during the marriage and was able to contribute her income to the parties and more particularly, to the partnership during times of hardship in the 1990s”.
In addition, her Honour made a number of apparent findings under the heading “background”. Those findings are also uncontroversial factually:
·“The wife had worked up until a short time before the birth of the first child in full-time appointment at [a] bank. She had returned to the bank in 1995 but ceased working there in 1997” ([14]);
·“The youngest child … was diagnosed with diabetes in 2003 and when she was sent to boarding school in [Town T] in 2005, the wife relocated to live in [Town T] to assist [the child] in that transition” ([15]);
·“Towards the end of 2006, the wife received moneys from her grandmother’s estate in the amount of $34,500. That money was applied to a joint bank account in the parties’ names” ([16]).
At trial, the husband submitted that “other than … contributions coming from [the husband’s] father of “[Property N]”, “[Property G]” and its licences, contributions by the husband and the wife across all spheres over 27 years of marriage should be said to be equal”. The wife contended that “prior to considering what adjustment should be made/weight should be given, to the initial contributions by way of gift from the husband’s father” contributions should be assessed in the proportion 52.5 per cent to her and 47.5 per cent to the husband.[12]
[12]Respectively, husband’s written submissions at trial at paragraph 60 and wife’s written submissions at trial at p 24.
By those central submissions the parties approached the assessment of contributions by suggesting that “an adjustment” should be made to a result reached otherwise by reference to a miscellany of other contributions. Her Honour adopted a similar approach. Such an approach is by no means uncommon to both the presentation of cases and the structure of judgments. It is convenient in this case, as it is more broadly, so as to describe a contribution or contributions of a particular type said to have particular importance and to distinguish it or them from other contributions.
Yet, that approach must also ensure that the “myriad of other contributions”[13] and the duration over which, and circumstances in which, the miscellany of other s 79(4) contributions were made is not accorded a subsidiary role. The essential s 79(4) task is for “trial Judges [to] weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation”.[14]
[13] Williams & Williams [2007] FamCA 313, at [26].
[14]In the Marriage of Aleksovski (1996) FLC 92-705 at, respectively, 83,437 and 83,443 quoted in Dickons & Dickons (2012) 50 Fam LR 244, at [20]; See also to similar effect Kowalski and Kowalski (1993) FLC 92-342, at 79,630; Way and Way (1996) FLC 92-702.
The husband contended at trial that once account was taken of the gifts of farming property and water licences, contributions should be assessed in the proportion 70 per cent to him and 30 per cent to the wife. The wife contended they should be assessed in the proportion 55 per cent to the husband and 45 per cent to her.
Thus, the husband contended that the “adjustment” for the gifts made nearly 30 years previously should result in an assessed disparity in the contributions of the parties of 40 per cent or, in dollar terms, about $750,000. For her part, the wife argued that the “adjustment” should result in a disparity in contributions of 15 per cent in favour of the husband or, in dollar terms, about $285,000.
What the Full Court said in Dickons v Dickons[15] should be reiterated here:
21.… the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79). That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett [sic] at 640–1 “where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property” or is it, for example, a union where parties lived very separate domestic and financial lives?
…
24.There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
….
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
[15] (2012) 50 Fam LR 244, at [24].
Consistent with the general approach urged upon her by each of the parties, her Honour assessed that the miscellany of contributions made by each of the parties in the nearly 30 years between the commencement of cohabitation and the trial should be seen as equal, and “adjusted” that assessment to take account of the gifts made on the husband’s behalf by his father to arrive at her ultimate conclusion that a 40 per cent disparity on the contributions of the parties was appropriate.
Each party’s respective ultimate submission in that respect is built on uncontroversial evidence that the husband’s father gifted to the parties a half‑share of a farming property in 1985, two years after marriage and 28 or so years before trial.[16] The parties purchased the other half of that property at that time. The husband’s father also gifted “parts of” another farming property in 1986. The respective submissions at trial are also built on the proposition, again uncontroversial on this appeal, that the father’s gifts should be seen as direct capital contributions on the part of the husband.
[16]It is conceded before this court that the written submissions on behalf of the husband at trial contend wrongly, at paragraph 70, that the whole of that parcel was gifted.
Her Honour plainly considered the gifts made by the husband’s father as the predominant, if not sole, determinant of the assessed “adjustment” and resultant disparity in contributions:
53.Were it not for those gifts, the parties would not have had the land which they did and the capacity to work on that land, improve and sustain it, and operate their partnership from the time so early in their marriage. It is clear an adjustment to the husband is appropriate in the circumstances.
…
55.It seems to me that it needs to be understood that the parcels of land which were gifted by the husband’s father were a significant gift which has sustained the parties and provided them with a focus for their income earning potential and their accumulation and preservation of real property. This is a substantial contribution by the husband it seems to me, and should be reflected in an adjustment in his favour on the contribution-based entitlements in the order of 70% of the pool.
The factual premises for those findings were not in issue, nor can the descriptions “significant” or “substantial” – elusive though each might be in dollar or percentage terms – be said to be inaccurate.
The Challenge to the Assessment of Contributions
The first two parts of Ground 3 plead respectively that “excessive weight” was given to “the contributions made by the husband’s father” and (conversely) that insufficient weight was given “to the wife’s contributions during the marriage”. In reality, those components of the ground are in effect particulars of the third part of that ground which asserts error by her Honour “making an assessment that was well outside the range reasonably available in the circumstances”.
The wife’s written argument contends that “in all the circumstances, the contribution-based assessment is simply outside the range of appropriate outcomes”. It is asserted additionally that “[h]er Honour did not have regard to the assistance of any authorities concerning contributions in long marriages”.[17]
[17] Respectively paragraphs 48 and 44 of the Appellant’s Outline of Argument.
A “range” of outcomes and discretionary error?
The seminal decision of the High Court in House v The King[18] leaves open the possibility of appellate interference with a discretionary decision where:
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.[19]
[18] (1936) 55 CLR 499.
[19] (1936) 55 CLR 499, at 505.
In Norbis v Norbis,[20] Brennan J said that “[t]he generous ambit of reasonable disagreement marks the area of immunity from appellate interference”. His Honour had earlier referred with approval to what Asquith LJ had said in Bellenden (formerly Satterthwaite) v Satterthwaite[21] that “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”.
[20] (1986) 161 CLR 513, at 540.
[21] [1948] 1 All ER 343, at 345.
A tension is apparent immediately between a conclusion considered by an appellate court to be wrong because it exceeds “the generous ambit” and a prohibition on reaching that conclusion merely because of a difference of opinion as to the appropriate exercise of discretion by the judges of an appeal court. In Rogers & Rogers (No 2),[22] having set out the principles emerging from a number of decisions of the High Court, this court expressed it this way:
74.If we are to conclude that her Honour’s decision is “plainly wrong” or “falling beyond the bounds of a reasonable exercise of discretion” because of something other than a shared “second opinion”, we should be able to answer an additional question: “plainly wrong or unjust by reference to what?”…
[22] [2016] FamCAFC 104.
A central question which emerges from the appellant’s grounds and arguments is whether that tension or question can and should be answered by reference to the assertion of a “range” of outcomes that mark the boundaries of a proper exercise of discretion in a particular case.
The exercise of wide discretions informed by statutory considerations or well settled common law principles is not, of course, unique to s 79 of the Act. Awards of general damages for non-pecuniary loss in tort, and sentencing in criminal cases are familiar examples where daily tasks of judges include precisely that. Where the exercise of jurisdiction and power involve wide discretions by reference to statutory considerations or well-settled common law principles terms of convenience emerge, as do common practices, designed to facilitate expedition in the running of cases and “shorthand” submissions made within them. The assertion of a “range of outcomes” by the parties to a case is common in all such areas. In cases seeking orders for settlement of property pursuant to the Act, the practice is almost ubiquitous.
Barbaro v The Queen; Zirilli v The Queen[23] is a recent decision of the High Court which deals with the application of a wide discretion informed by statutory criteria; the imposition of sentences in criminal cases. There, the plurality said:
26.Reference to an “available range” of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court’s order “is unreasonable or plainly unjust” and the appellate court infers “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 the field of sentencing appeals, this kind of error is usually referred to as “manifest excess” or “manifest inadequacy”. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.[24]
(Italics in original; citations omitted).
[23] (2014) 253 CLR 58.
[24] Ibid, at 70.
As with the s 79 discretion, it is apparently common practice, in at least some States, for prosecution counsel to provide a submission as to the “available range” of sentences. Of that practice, in respect of the exercise of that wide discretion, the plurality said:
23. To the extent to which MacNeil-Brown stands as authority supporting the practice of counsel for the prosecution providing a submission about the bounds of the available range of sentences, the decision should be overruled. The practice to which MacNeil-Brown has given rise should cease. The practice is wrong in principle.
…
27. … For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
28. Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an “available range” of sentences, stating the bounds of an “available range” of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall. [25]
(Italics in original).
[25] (2014) 253 CLR 58, at 69-71.
In expanding upon reasons for those conclusions the plurality said that “[f]ixing the bounds of a range within which a sentence should fall or within which a sentence that has been imposed should have fallen wrongly suggests that sentencing is a mathematical exercise”.[26] That sentence has obvious echoes in numerous decisions of the Full Court which seek to emphasise that exercise of the s 79 discretion is, too, not a mathematical exercise.[27]
[26] Ibid, at 72.
[27] See, recently for example, Lovine & Conner and Anor (2012) FLC 93-515.
Similarly, the plurality said that a sentencing judge must reach the appropriate sentence “by balancing many different and conflicting features [and that] [t]he sentence cannot, and should not, be broken down into some set of component parts”.[28] That statement, too, can be seen to have echoes in what was said by the Full Court of this court in Dickons earlier quoted.[29]
[28] Barbaro (above), at 72.
[29]See also, for example, Lovine, above; Bolger & Headon [2014] FamCAFC 27.
The plurality in Barbaro go on to point out that specifying a “range” for the exercise of the relevant discretion does not inform as to which “facts and factors” have been taken into account in arriving at the submitted “range”. The same is equally true of assertions as to the “available range” in the exercise of the s 79 discretion.
We consider, with great respect, that what the plurality said in Barbaro of the sentencing discretion is what can and should be said of assertions as to “the range” in assessments of contributions (or overall results) in the exercise of the relevant discretions under s 79.
The assertion of a “range”, without more, cannot (and indeed should not) assist a trial court in the exercise of the relevant discretion. In the context of an appeal, while “the area of immunity from appellate interference” is marked by that same “generous ambit of reasonable disagreement”[30] inherent in a very wide discretion, a ground or argument which asserts that a result falls outside “the range reasonably available in the circumstances” or that a result is “plainly wrong” does not illuminate error; rather, it begs the question of how such an error is to be illuminated.
[30] Per Brennan J in Norbis (above).
The “generous ambit” of discretion; guidelines and comparable cases?
Here, however, “[t]he residuary category of error in discretionary judgment identified in House”[31] is said to be apparent not only by her Honour’s assessment falling outside of “the range”, but also because “her Honour did not have regard to the assistance of any authorities concerning contributions in long marriages”.
[31] Barbaro (above), at 70.
Two questions emerge from that contention. First, does any “guideline” apply to “long marriages” so as to guide the exercise of the discretion?[32] Secondly, can and should cases said to be comparable to the case under consideration be used by a trial judge in exercising his or her discretion to arrive at just and equitable orders for settlement of property?
[32]The distinction between guidelines and binding principles is discussed in Norbis v Norbis (1986) 161 CLR 513 and by the Full Court in Hoffman & Hoffman (2014) FLC 93-591 at [23] ff.
No authorities cited on behalf of the wife at trial or on appeal (including in the further written submissions) support the contention that a guideline (properly so called) applies to long marriages. Brennan J said in Norbis, above, that “[t]he expression of guidelines must be undertaken cautiously”[33] and that “[d]etailed guidelines are unsuitable for application to circumstances which are quite diverse”.[34] The expression “long marriages” is not itself susceptible to precise definition and the factors embraced by a marriage that meets any such description are so diverse that the desired expression of “the relative [and relevant] importance of those factors”[35] would be elusive if not impossible.[36]
[33] At 538.
[34] At 539.
[35] Ibid at 538-539.
[36]For example of guidelines properly so called see McLay and McLay (1996) FLC 92-667 at 82,901 and Hoffman, above.
However, reference to and the use of comparable cases is, potentially at least, a different matter. Reference to comparable cases serves a principle central to the exercise of a wide discretion, namely, that like cases should be treated alike. That end seeks to avoid “arbitrary and capricious decision-making” which is the antithesis of “consistency in judicial adjudication”.[37]
[37] Per Mason CJ and Deane J in Norbis (above) at 519; See also Mallet (above) per Deane J at 640.
In Norbis, above, Mason CJ and Deane J said in their joint judgment:
To avoid the risk of inconsistency and arbitrariness, which is inherent in a system of relief involving a complex of discretionary assessments and judgments, the Full Court, as a specialist appellate court with unique experience in the field of family law in this country, should give guidance as to the manner in which these assessments and judgments are to be made. Yet guidance must be given in a way that preserves, so far as it is possible to do so, the capacity of the Family Court to do justice according to the needs of the individual case, whatever its complications may be.[38]
(Emphasis added)
[38] At 519-520.
In G v G[39] two of the grounds of appeal contended:
27. Her Honour was in error in failing to have any or sufficient regard to the range of outcomes established by comparable decided cases [J59.2].
28. Her Honour was in error in concluding that the contributions were to be apportioned 42.5% to the wife and 57.5% to the husband and failing to apportion them 33% to the wife and 67% to the husband.[40]
[39][2001] FamCA 1453, per Lindenmayer, Finn and Guest JJ.
[40] Ibid, at p 93.
The Full Court referred to the “very lengthy and detailed submissions” in support of those grounds and went on to say:
236. There is, of course, a natural reluctance on the part of this Court to seek to define too closely the parameters of the range of a reasonable assessment of the parties’ contributions in any given case, or in a given class of cases, lest it be seen to fall into the error of substituting its own exercise of discretion for that of the trial Judge. At the same time, however, it is the duty and function of this Court to scrutinise the exercise by trial Judge’s [sic] of the discretion vested in them by the legislation, and by a process of careful analysis and comparison of like cases, and the promulgation of guidelines for the exercise of the discretion, to attempt to ensure a reasonable measure of consistency of outcomes (and therefore of predictability of result) in similar cases, for the ultimate benefit of the litigating public…
…
238. If a trial judge in a given case, properly performing his or her duty, within those guidelines makes a finding about or an assessment of the parties’ total contributions in the terms to which we have referred, that offers this Court, in the exercise of its supervisory role, the opportunity to scrutinise that part of the reasoning process by which the trial judge reached his or her ultimate conclusion and compare it with the same step taken in earlier similar cases and, if satisfied that the assessment arrived at in the case under review is significantly out of step with the assessment made in the earlier cases, to conclude that the trial judge somehow erred in his or her assessment in the case at hand.
(Emphasis added)
The Full Court can be seen there to reflect precisely what had been said by the High Court in both Norbis and Mallet v Mallet[41]. In Mallet Deane J said that in order to avoid, among other things, a “wilderness of single instances”:
It is inevitable and desirable that the need for such consistency should lead the judges of the Family Court to look to what has been said and decided in prior cases for assistance and guidance in determining what is just and appropriate in the differing circumstances of subsequent cases and that shared experience and accumulated expertize [sic] should lead to the emergence of generally accepted concepts of what is prima facie just and appropriate in particular types of cases.[42]
(Emphasis added)
[41] Above.
[42] At 641.
Three decisions of the Full Court decided after G v G, above, appear, at least at face value, to cast doubt upon what is said in that case.
In Petruski & Balewa[43] the Full Court said:
74.Before leaving these grounds of appeal there is one matter on which we wish to comment. Counsel for the wife, in his written submissions, cited a number of first instance decisions where the court had, in relatively short marriages, assessed the percentage entitlements of the parties at levels similar to that contended for by the wife to indicate that the result reached by his Honour departed so much from the results in these cases that his Honour was plainly wrong. We consider such an exercise to be unhelpful. The task to be undertaken by a trial judge in applying ss 79(2), 79(4) and 75(2) of the Act requires the trial judge to consider the particular circumstances of the case before him or her in determining whether any and if so what order should be made. What another judge may do in another case on the basis of the facts in that case can rarely if ever determine what is done in the case at hand.
(Emphasis added)
[43] (2013) 49 Fam LR 116 (Bryant CJ, Strickland and Moncrieff JJ).
Daymond & Daymond,[44] is an appeal from a decision in which the trial judge heard together separate applications for settlement of property involving two brothers. In the case under appeal senior counsel for the wife sought to compare the result in the appealed decision with the result in the brother’s case. Senior counsel also cited the passage from Deane J’s judgment in Mallet earlier quoted by us, together with a number of earlier decided cases “to demonstrate that his Honour’s assessment of the overall contributions of the parties in this case was outside the range and plainly wrong.”[45] (Emphasis added).
[44] [2014] FamCAFC 212 (Bryant CJ, May and Strickland JJ).
[45]At [60].
Interestingly, the Full Court compared and distinguished the facts of the brother’s case (which, notably, involved a 38 year marriage compared to a 28 year cohabitation interspersed by eight years of separation in the case under consideration) before going on to say:
60.… Clearly, in each instance the husband in the case achieved a higher percentage based on his contributions than the husband here. However, although there is plainly wisdom and logic in what Deane J said in Mallett [sic], the fact is that no two cases are the same. In the broad there can always be similarities such as the husband’s and his brother’s direct financial contributions via their shareholdings in the family company, but equally there will always be individual differences that can and will impact on a trial judge’s assessment of the contributions of the parties.
Thereafter, the Full Court quotes the passage from Petruski just quoted by us and says:
62.Further, we do not see that approach as being inconsistent with what Deane J said in Mallett [sic]. There can and should be a consideration of other cases in addressing specific legal issues and in the application of “generally accepted concepts of what is prima facie just and appropriate in particular types of cases” (Mallett [sic] at 641). In other words, in our view his Honour was referring more to the need for consistency between general principles enunciated in each case, and his Honour was not suggesting that realistically there should be a consistency of results simply where some factual circumstances coincide.
63.Where there is such a wide discretion reposed in trial judges under s 79 of the Act, there is no necessary basis for the overall assessment of contributions, for example, in one case, to be decided in the same way as in other cases, simply because there may be a broad similarity between the facts of those cases.
64.Thus, we do not find it helpful to compare this case with the outcome in the cases referred to by counsel. That does not demonstrate that his Honour was plainly wrong on the facts of the case before him.
(Emphasis added)
Most recently, in Claughton & Northey[46] it was said, in response to a “vague suggestion in the husband’s written summary of argument … that error by his Honour in the exercise of his discretion can be demonstrated by considering the results of other cases”[47] that:
… there was no attempt to support this by identifying the comparable cases, and in any event the Full Court on at least two occasions has decried that approach (Petruski & Balewa (2013) 49 Fam LR 116; Fields & Smith (2015) FLC 93-638).[48]
[46][2015] FamCAFC 213 per Strickland J, sitting as a single Judge.
[47]At [75].
[48]Ibid.
With respect to his Honour, we are unable to agree that anything said by the Full Court in Fields & Smith[49] “decries” the use of comparable cases, although the Full Court there make it plain, and with respect we agree, that if comparable cases are used to inform the discretion, some analysis of those cases so as to ascertain their comparability should be undertaken. So much is also entirely consistent with what the High Court has said in Barbaro, above, in respect of a different wide discretion informed by statutory criteria.
[49] (2015) FLC 93-638, see in particular [110] ff.
We respectfully agree with the Full Court in Petruski that “[w]hat another judge may do in another case on the basis of the facts in that case can rarely if ever determine what is done in the case at hand” and what is also said to similar effect in Daymond, above, and Claughton, above. It is axiomatic that, in a guided but otherwise unfettered discretion the result in another case, or indeed in many other cases, cannot determine the result in the case under consideration. If it did, the discretion would be improperly fettered.
However, it is one thing to say that an earlier-decided case, or a combination of earlier-decided cases, cannot determine the result of the instant case, but quite another thing to say, as the court did in Petruski, that any comparison with those cases is “unhelpful”. The latter suggestion is, in our respectful view, inconsistent with both High Court authority and the Full Court authority to which we have referred.
None of the three cases to which we have referred above cite or discuss the earlier Full Court decision in G v G, above. We reiterate, and seek to emphasise, that the earlier Full Court had said in that case that the “duty and function” of the appellate court is to “scrutinise” the trial judge’s exercise of discretion by a process that comprises “careful analysis”, “the promulgation of guidelines” and “comparison of like cases”. Doing so fulfils not only the primary function of an appeal court which is to correct error[50] and also to “ensure a reasonable measure of consistency of outcomes (and therefore predicability [sic] of result) in similar cases for the ultimate outcome of the litigating public.” (Emphasis added).[51] Moreover, that Full Court specifically contemplated that a conclusion by the Full Court that an assessment is “plainly wrong” by reference to “the residuary category of error in discretionary judgment identified in House”,[52] might be informed by the fact that the case appealed is “significantly out of step with the assessment made in the earlier cases”.
[50]See, for example, Warren v Coombes (1979) 142 CLR 531.
[51] G v G, above at [236].
[52]Barbaro, above.
We are also respectfully unable to agree that Deane J, in the passage quoted both in Daymond, above, and by us, was referring only to the “need for consistency between general principles enunciated in each case”. Contrary to what the Full Court asserts in Daymond (citing Petruski) we consider that Deane J was indeed “suggesting that realistically there should be a consistency of results”[53] not, as the Full Court suggests “simply where some factual circumstances coincide” but, rather, where genuine comparability exists, to provide “assistance and guidance in determining what is just and appropriate”.[54]
[53] Daymond & Daymond [2014] FamCAFC 212, at [62].
[54]Deane J in Mallet, above.
That Deane J is referring not merely to “consistency in general principles”, but also consistency in assessments is evident not merely by reference to the words actually used by his Honour (“what is just and appropriate”) but also by reference to the counterpoint of that desired consistency: the “wilderness of single instances” and a “codeless myriad of precedent”. His Honour opens the paragraph earlier quoted by us by saying: “It is plainly important that, conformably with the ideal of justice in the individual case, there be general consistency from one case to another of underlying notions of what is just and appropriate in particular circumstances”.
The statements made in the three cases to which we have referred emerge from grounds and arguments in each very much centred on the earlier cases referred to representing a “range” and the Full Court’s statements were made prior to the decision of the High Court in Barbaro. In any event, on our reading of the three decisions, in so far as the arguments referred to “comparable cases” they were either not truly comparable (for example Daymond); were raised “only vaguely” in support of other arguments (for example Claughton) or did not arise directly by reference to any pleaded grounds (for example Petruski). The statements made by the Full Courts in those cases should be seen as obiter.
To the extent that any or all of those cases stand for the propositions that comparable cases cannot or should not be used by trial judges in seeking to promote consistency in results in arriving at just and equitable assessments or suggest that the Full Court cannot or should not have reference to comparable cases in determining if a trial assessment is “plainly wrong” or are otherwise “unhelpful” within that process, we respectfully disagree and would hold to the contrary.
In our view, each of the High Court and the Full Court of this court has postulated a role both for guidelines in the “generality of cases or a particular class of cases”[55] and a role for comparable cases for determining what is just and appropriate in a particular case. Much more recently, in the discretionary context earlier described, the judgment of the plurality in Barbaro again provides, in our respectful view, powerful guidance in respect of the use of comparable cases for the exercise of the s 79 discretion.
[55] Per Brennan J in Norbis, at 538-539.
Having eschewed the promulgation of a “range” in the manner earlier described, the plurality turned to the proper roles of counsel and judges and the exercise by the latter of the sentencing discretion. Their Honours said:[56]
If a sentencing judge is properly informed about the parties’ submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range. If the judge is not sufficiently informed about what facts may or should be found, about the relevant principles or about comparable sentences, the prosecution’s proffering a range may help the sentencing judge avoid imposing a sentence which the prosecution can later say was manifestly inadequate. But it will not do anything to help the judge avoid specific error; it will not necessarily help the judge avoid imposing a sentence which the offender will later allege to be manifestly excessive. Most importantly it will not assist the judge in carrying out the sentencing task in accordance with proper principle.
(Emphasis added; citations omitted)
[56] Barbaro (above), at 73.
The plurality went on to say that the prosecution had a duty to draw to the attention of the sentencing judge, relevantly, “what has been done in other (more or less) comparable cases”.[57] Referring to the earlier decision of Hili v The Queen[58] the plurality, notably using mandatory language, said:
… in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion … the synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.[59]
(Emphasis added).
[57] Ibid, at 74.
[58] (2010) 242 CLR 520, 536-537.
[59] Barbaro, at 74.
While recognising the fact that no two cases are precisely the same, we are of the view that comparable cases can, and perhaps should far more often, be used so as to inform, relevantly, the assessment of contributions within s 79.
The word “comparable” is used advisedly. The search is not for “some sort of tariff let alone an appropriate upper and lower end of the range of orders which may be made”.[60] Nor is it a search for the “right” or “correct” result: the very wide discretion inherent in s 79 is antithetical to both. The search is for comparability – for “what has been done in other (more or less) comparable cases”[61] – with consistency as its aim.
[60] See Burgess v Moss [2010] NSWCA 139, per Tobias JA at [29].
[61] Barbaro, at 74.
It is nevertheless also important to recognise, as Gibbs CJ did in Mallet that earlier decisions:
… do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.[62]
[62]Mallet (above) at 609.
Counsel for the wife cited four cases to her Honour as being comparable on their facts and, thereby, providing a criterion by which, together with all other relevant considerations, the parameters of reasonable exercise of discretion might be assessed. Three are decisions of the (then) Federal Magistrates Court.[63] The fourth is the Full Court decision in Lee Steere & Lee Steere.[64] The first three cases involved relationships of, respectively, 22, 21 and 22 years duration. Lee Steere (a case involving substantial farming property) involved a marriage of eight years.
[63]Yardley & Yardley [2011] FMCAfam 1172; Penzel & Penzel [2011] FMCAfam 75; and Choate & Baker [2008] FMCAfam 945.
[64] (1985) FLC 91-626.
The three Federal Magistrates Court cases yielded contributions assessments of 55 per cent; 63 per cent; and 48 per cent to the husband respectively. Yet, while the facts of each of those cases were, in each case, listed in the submissions, there were no submissions which sought to compare the facts there with the case under consideration. In particular, in light of the basis upon which the instant case was argued (an “adjustment” to otherwise equal contributions), the submissions do not reveal whether any such approach was adopted by any or all of those decisions.
To the extent that comparable cases can be said to have been cited to her Honour, the four decisions relied upon by then counsel for the wife are preceded by a submission which asserts merely: “Attached to these submissions are four judgments where there have been significant contributions during a long term marriage”. Thereafter the dot-pointed facts of the cases are listed and their respective assessments but no submissions seek to compare the instant case with those instanced.
No argument was made to her Honour as to any consistency emerging from those authorities, nor is there any attempt to canvass a number of different authorities, particularly any from the Full Court, so as to seek to establish any such comparability.
We are unable to see how arguments were advanced to her Honour as to the comparability of any decided cases such that her Honour can be said to have erred either by ignoring the same as a relevant consideration or so as to produce a result that is “plainly wrong”.
Conclusions – Ground 3
Ground 3 as pleaded and argued is not made out.
The appellant’s assertion that her Honour’s assessment fell outside “the range” is insufficient, without more, to found error based upon the “residuary category of error identified in House”.
We have been taken to no authorities which establish a guideline applicable to the exercise of discretion concerning “contributions in long marriages”.
Asserted Errors as to The Gifts Of Land
Under the heading “background”, her Honour said:
10.In 1985, two years after marriage, the husband was gifted property by his father that was variously known as [Property E], [Property N] or [R Street]. At the same time the husband and wife purchased the other half share from the husband’s paternal aunt. As a result they had the entirety of that property. They moved there in December 1985.
…
12.In 1986, the paternal grandfather gifted parts of another property known as [Property G] to the husband and his brother as tenants in common. There were water licences associated with this property.
13.In 1998, the parties purchased half of a property known as [Property W] with the paternal grandfather. The parties then moved to live on that property.
…
16.Towards the end of 2006, the wife received moneys from her grandmother’s estate in the amount of $34,500. That money was applied to a joint bank account in the parties’ names.
What is said in those passages by her Honour is accepted by both parties on this appeal as accurate factually.
Later, under the heading “contributions”, her Honour said relevantly:
50.Gifts were made to the parties by the husband’s father in 1983 and 1985. The parties had commenced their relationship when they had been teenagers and they had married in March 1983 … I am satisfied that the gift from the husband’s father was as a result of his natural love and affection for his son, and that the fact that he likewise gifted land to his other son, shows that he was intending to provide for his sons. These gifts must be considered to be a very significant indirect financial benefit made by the husband to the parties’ property. Likewise it must be acknowledged that these gifts were made in 1983 and 1985, 27 and 25 years ago and that the parties operated a partnership together from soon after the gifts were made.
51.The parties have had, of course, the benefit of the income earning capacity of these parcels of land and their attendant water licences. The property called [Property G] has been improved through the land being levelled and a dam being built within existing levy banks, improving the irrigation facility. The property known as [Property N] has been structurally improved, as has [Property W].
52.… It should also be remembered that not all of the land was gifted and that the parties purchased land from the paternal aunt to complete one parcel of land and to build the home on [Property N].
53.Were it not for those gifts, the parties would not have had the land which they did and the capacity to work on that land, improve and sustain it, and operate their partnership from the time so early in their marriage. It is clear an adjustment to the husband is appropriate in the circumstances.
A half share in “[Property N]” was gifted by the husband’s father and the parties purchased a half share in that property from the aunt in 1985. Property W was purchased by the parties in 1998. The property purchased in 1998 became the parties’ home after that date.
At [50] her Honour refers to the relevant gifts. However, at [52], when seeking to distinguish between gifts (which are to be seen as a contribution on behalf of the husband) and property purchased by the parties for full value with borrowings repaid through their joint efforts, her Honour refers to land “purchased from the aunt”. Thereafter, at [53], in an apparently central finding, her Honour refers, to “those gifts”.
Counsel for the wife argues that it should be inferred from [50] to [52] of the reasons that her Honour wrongly considered that the farming land at Property W was part of the gifts by the husband’s father. It is contended that this is important because the historical gifts were a central determinant of her Honour’s contributions assessments. It is said that the inordinate delay in the delivery of the judgment not only strengthens the inference contended for but also, conversely, does not permit of an assumption that her Honour had the distinction in mind when assessing contributions despite having correctly made the distinction in the “background” section of the reasons.
In a similar fashion it is also argued, by reason of its omission from the “contributions” section of the judgment, that it should be inferred that her Honour overlooked the wife’s inheritance of $34,500 received in 2006, despite, again, having made reference to it in the “background” section of the reasons.
We think there is merit in those submissions. We consider that her Honour has confused the manner of acquisition of the various properties in the passages we have quoted; the extent and timing of the husband’s father’s gifts are erroneously taken into account in assessing contributions. We also agree with the submission that, consistent with the authorities to which we have earlier made reference, the inordinate delay in this case should impact upon how the errors expressed under the heading “contributions” might be viewed by this court.
What might otherwise be regarded as, for example, infelicities in expression in a judgment timeously delivered (when the evidence is fresh in the mind of the judge) or, for example, an erroneous transposition of findings earlier made in the judgment, should not safely be subject to the same assumptions when judgment is delivered three years after the hearing. As but one example of the issues that intrude when there is an inordinate delay in the delivery of reasons and omissions are apparent, it is not known whether the “background” component of the reasons was written a long time earlier or later than the “contributions” section of the reasons.
This conclusion is reinforced by reason of the approach adopted by her Honour which sought to “adjust” an assessment of equality arrived at by reason of contributions other than “those gifts” from the husband’s father. It is “those gifts” that are the predominant, if not sole, basis upon which her Honour assessed that there should be a disparity of 40 per cent or about three-quarters of a million dollars in the respective contributions of the parties. Clear and unambiguously correct findings about “those gifts” were fundamental to that ultimate central conclusion. In our respectful view, the reasons exhibit neither.
In a similar vein, we are not prepared to assume that, when her Honour turned her mind to an assessment of contributions and dealt with that issue in the reasons under that heading, her Honour had in mind the wife’s inheritance. Certainly no mention was made of that fact under that heading.
Conclusion as to Ground 2
In our opinion, Ground 2 is established.
For the sake of completeness, we should record that counsel for the wife argued that her Honour “fails to pay full regards to the extent of contributions made by the parties during the course of the relationship to the improvement of [particular properties part of the farm]”[65] and that her Honour failed to have regard to the contributions made by the wife in preserving the farm and its business particularly during a sustained period of drought in the 1990s.
[65] Appellant’s written outline of argument filed 17 June 2016, at paragraph 51.
Those arguments appear to us to be advanced as, in effect, particulars of the asserted error that her Honour’s assessment of contributions was “outside the range” or “plainly wrong”. They might also have been argued as failures to take account of relevant considerations which is, of course, recognised as a basis upon which discretionary error might be established. We are not persuaded that her Honour did in fact fail to take account of either of those aspects of the wife’s contributions. That being so, the challenge is merely to the weight given to those matters in the context of a miscellany of contributions made by both parties over the course of 27 years. We are not persuaded of error in that respect.
Disposition of the Appeal
The appeal should be allowed.
Each of the parties sought to have this court re-exercise the discretion in the event that we were satisfied of error.
That task must be undertaken by reference to the facts and circumstances existing as at the date of the hearing.[66] The Full Court has in numerous cases pointed out the difficulties confronting the court and the parties when significant time has passed between the trial and the hearing of the appeal. Those issues are, of course, exacerbated in a case involving delay between the hearing and the delivery of the judgment of a duration such as the present.
[66] Allesch v Maunz (2000) 203 CLR 172.
With those issues in mind, each of the parties submitted that despite (or perhaps because of), that inordinate delay, this court should, in re-exercising the discretion, proceed on the assumptions that the parties’ interests in property, their values and the uncontroversial factual findings made by her Honour pertained as at the hearing of the appeal.
We confess to some discomfort in adopting that approach given the time that has passed. However, each of the parties is represented by solicitors and counsel and we well understand their entirely reasonable desire to bring this matter to an end now rather than face the time, stress and expense of a new trial. Unlike many other cases where the same understandable desire is expressed, the basis upon which this court might so act has been provided consensually.
We propose to re-exercise the discretion adopting the assumptions consented to by each of the parties with the advice of their solicitors and counsel.
Re-Exercise Of The Discretion
We afforded each of the parties the opportunity to provide further written submissions, in particular relating to the assessment of contributions, in respect of any re-exercise that this court might undertake. In the event, both parties provided those supplementary submissions.
The Parties’ Interests in Property
The parties’ agreed respective interests in property, corrected for the error made by her Honour are as follows:
Assets
Owner
Value
$
50% Share of “[Property G]”
Husband
281,420
50% share of “[Property W]”
Husband & Wife
364,200
“[Property N]”
Husband
250,000
Plant and equipment
Husband & Wife
395,734
[M] Street, [Town B]
Wife
230,000
The wife’s motor vehicle
Wife
16,000
ANZ Account …17 (as at 15/6/12)
Wife
182
“[Property G]” Water Licence W…6
Husband
522,000
“[Property G]” Supplementary Licence W…7
Husband
56,920
“[Property G]” Supplementary Ground Water W…5
Husband
12,000
“[Property G]” Ground Water Licence W…9
Husband
109,867
Livestock
Husband
7,700
Boat
Husband
27,500
731 shares P Company
Husband & Wife
2,770.80
364 shares J Company
Wife
1,335.88
42,045 C Company shares
Husband
9,670.35
39,968 C Company shares
Husband & Wife
9,192.64
CBA shares (95)
Wife
5,263.95
Addback
Wife
20,000
Westpac Cheque Account …29 (as at 31/5/12)
Husband
25,000
“[Property W]” Ground Water W…2
Husband & Wife
281,600
“[Property W]” Supplementary Ground Water W…55
Husband & Wife
18,750
Produce stored – 850 units @ $357/unit
Husband
303,450
Husband’s legal fees
Husband
27,000
Sale of Produce
Husband
121,000
Contract Produce Harvest
Husband
55,000
Total Non-Superannuation Assets:
$3,153,556.62
Liabilities
Owner
Value
$
S Bank mortgage (“[Property W]”)
Husband & Wife
314,129
ANZ mortgage ([M] Street, [Town B])
Wife
182,458
S Bank chattel mortgage (the wife’s motor vehicle)
Husband & Wife
9,500
S Bank chattel mortgage (Equipment)
Husband & Wife
17,125
S Bank overdraft
Husband & Wife
689,000
ANZ Visa
Wife
18,045
Westpac Mastercard
Wife
6,083
Total Liabilities:
$1,236,340
Superannuation
Owner
Value
$
F Fund
Wife
4,649
Westpac
Wife
22,990
Westpac
Husband
18,831
Total Superannuation:
$46,470
Total Pool:
$1,963,686
The Nature of Property Interests Within This Marital Relationship
There is nothing in the evidence to suggest that these parties arrived at any formal or informal agreements governing their respective or joint interests in property.
Those interests were governed by informal “unstated assumptions … that the arrangement of property interests, whatever they are, is sufficient for the purposes of [the] husband and wife during the continuance of their marriage”.[67]
[67] Stanford v Stanford (2012) 247 CLR 108, at 122.
Section 79(2) – Is It Just and Equitable to Make Any Order?
The parties appear to agree that the just and equitable requirement in s 79(2) of the Act is satisfied in this case. Reference is made in the supplementary submissions on behalf of the wife to [42] of Stanford v Stanford.[68]
[68] Above.
We agree that the parties’ long-standing use of property to which they each made contributions has come to an end and will not resume. Further, as is plain and conceded by both parties, they have, by “the voluntary severance of the mutuality of the marital relationship” brought to an end:
… the express and implicit assumptions that underpinned the existing property arrangements … [and] any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship … .[69]
[69] Stanford (above), at 122.
It is just and equitable to make orders altering existing interests in property.
Nature, Form and Characteristics of the Parties’ Relationship and Contributions
The parties were married for 27 years. They raised three children who were all adults by the end of the marriage.
The length of the marriage can be seen to be of considerable importance in the assessment of contributions. In Waters and Jurek[70] Fogarty J, in the context of s 79(4)(e) of the Act, said:
When the marriage ends, especially where that marriage has been a long one, one cannot separate the parties as individuals from the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities which it entailed.
[70] (1995) FLC 92-635, at 82,379.
Much more recently, in Stanford, above, the High Court spoke of the “mutuality of the marital relationship” and the (often) “unstated assumptions” upon which the mutuality of a marital relationship is built. The nature and extent of the sharing of the roles, duties and responsibilities inform, in part, the mutuality of a particular marriage relationship. So, too, the extent to which the parties, by reference to formal or informal agreements, maintain separate lives, and in particular financial lives, impacts upon the mutuality of the parties’ relationship. The exigencies to which the parties’ relationship and their property interests can be subject can also impact upon the mutuality of the relationship. The nature of a particular relationship so viewed can impact upon the manner in which the parties’ respective contributions within the meaning of s 79(4) might be viewed by a court, and of course on the determination of whether it is just and equitable to interfere with existing property interests at all.
The mutuality inherent in this relationship is apparent by reference to the evidence of each of the parties and to the trial judge’s uncontroversial findings and by the fact that neither party contends that the “inherent assumptions” underlying that mutuality was affected by any formal or informal agreements.
The “financial contribution made directly or indirectly by or on behalf of a party to the marriage … to the acquisition … of any property of the parties to the marriage” is obviously dominated by the gifts of land (and water licences) by the husband’s father. Each of the parties contended before her Honour, and do not contend to the contrary before this court, that these gifts should be seen as gifts to the husband (as distinct from a gift to both parties) and constitute a contribution on the husband’s behalf.
The approach adopted by the parties before her Honour is repeated in the supplementary submissions filed on behalf of the respondent husband; it is there asserted that “the contributions of the parties would be equal aside from gifting by the Husband’s father of significant parcels of land which remain in existence at the present point in time”.[71] Counsel for the wife, in his further submissions, makes no such specific assertion but implicitly does so by relying upon the trial judge’s findings and manner of assessment. For the reasons given earlier, we reject that approach; the gifts by the husband’s father should be taken into account as a contribution together with the miscellany of other contributions made by each of the parties over the course of their marriage.
[71] Respondent’s supplementary summary of argument filed 19 August 2016, paragraph 6.
It seems to be accepted before us that the true position in respect of the gifts of land by the husband’s father is as set out in their respective affidavits. The husband’s father deposes in his affidavit to gifting one half of Property N to the husband “in approximately 1985”. The parties purchased the remaining half share at that time from the father’s sister. The father deposes to gifting a half-share of “[Property G]” together with its water licences in “about 1986”. The father further deposes that “[Property W]” was initially gifted to his other son, D, “sometime in the 80s” but was re-purchased in 1998. That re-purchase involved the husband and wife purchasing a half share and the father purchasing the other.
The wife contributed directly to the conservation and improvement of the parties’ property by contributing to the resources of the marriage an inheritance of $34,500 received by her in 2006.
Each of the parties made direct financial contributions to the preservation and improvement of the property by working on it and directing income from their partnership to each. Each of the parties made “indirect financial contributions” and “contributions other than a financial contribution” living and working on the properties and by utilising their respective skills and capacities in doing so. The husband utilised his skills primarily as a farmer and all of the skills attendant in engaging in that business including in respect of improvements and machinery. The wife utilised her skills as a homemaker and parent and in doing the bookwork for the business up until about 2000.
Her Honour found, and it is uncontroversial on this appeal that “[t]he wife also worked in separate paid employment at times during the marriage and was able to contribute her income to the parties and more particularly, to the partnership during times of hardship in the 1990s”. We adopt that finding. In the latter respect, the husband acknowledged that under significant drought conditions “during the 1990s” the wife worked off-farm and “kept on attending to all domestic duties” and that it was fair to say that “during those drought-stricken years in the 1990s, her working on the farm went a long way to helping keep the farms”.[72]
[72] Transcript of trial proceedings, 1 August 2012, pp 75-76.
We also adopt the findings made by her Honour (also uncontroversial on this appeal) that the wife’s contribution to the welfare of the family and the children of the marriage included support for a child diagnosed with diabetes including relocating from the farm to a town so as to support that child when she commenced at boarding school in that town.
Assessment and Quantification of Contributions
The parties were married for 27 years. Their marriage occupied virtually the entirety of their adult lives. Judicial debate has surrounded the so-called “erosion principle” but that debate has centred primarily on the question of whether early capital contributions are eroded only by “an imbalance” in later contributions. In our view, talk of “erosion” of the early capital contribution obscures the issue rather than illuminates it. However, it can be taken as well settled that the length of the relationship has a significant impact on how early significant capital contributions should be viewed in assessing the totality of the parties’ contributions. For example, the Full Court has said:
The longer the duration of the marriage, depending on the quality and extent of her contribution, the more the proportionality of the original contribution is reduced.[73]
and
The longer the marriage the more likely it is that there will be later factors of significance, and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.[74]
[73] Lee Steere and Lee Steere (1985) FLC 91-626, per Fogarty, Maxwell and Nygh JJ, p 80,078.
[74] Money and Money (1994) FLC 92-485, per Fogarty J, p 81,054.
The length of a marriage is important, then, in assessing the respective contributions of the parties, particularly when it is said that significant capital contributions made early in the marriage are a dominant feature of that assessment. It is, accordingly, an important consideration in seeking decisions that might assist in the assessment of contributions by reason of being “more or less similar” to the present.
The land and water licences gifted by the husband’s father remain, many years later, as the predominant component of “the property of the parties or either of them” to which orders made under s 79 will apply.
One half of the current value of Property N is $125,000. The half share in Property G has a value of $281,420. The Property G water licences have a total current value of about $700,000. The combined current value of the land and water licences gifted by the father represents about 35 per cent of the gross current value of the property and superannuation interests available for distribution and about 56 per cent of the net current value of that property. The wife’s capital contribution of her inheritance represents roughly 1 per cent and 1.75 per cent of the gross and nett respectively.
The gifts made by the husband’s father were made early in a long marriage. The use to which those gifts were put rendered them of fundamental importance to the parties throughout the marriage. They provided the foundation for a farming business, operated as a partnership between the husband and the wife, from which the marriage derived income during its duration. They provided land upon which the parties’ home was situated and, thus, a place to live.
The husband conceded in cross-examination that the current state of the properties and their current value was due to the very significant efforts of both parties in roles that both differed and overlapped throughout the marriage. Her Honour found in that respect that the wife “performed more of the parenting and the husband performed more of the work outside the home”. We adopt that uncontroversial finding.
There can be little doubt on the evidence that each party contributed to the maximum of their respective capacities and abilities within these various roles. There was a genuine mutuality to their relationship and it, and the financial decisions and arrangements within it, were subject to the “unstated assumptions” that devolve from that mutuality. Contributions on this farming property involved hard work outside of what might be described as “normal working hours”, often seven days a week and often without holidays. Life and the derivation of income were subject to factors outside of the efforts of the parties (for example natural disasters, natural climatic conditions and the like). The parties’ roles were performed in an area relatively remote from urban facilities and interests.
We see no reason to attribute to the role of either party any predominance or any greater “value”.
No reference is made by her Honour to the respective contributions of the parties in the approximately two years between separation and the commencement of the trial. That reflects, perhaps, the fact that no submissions were made by either counsel to her Honour on that issue. Nor was it made clear, specifically, whether the parties’ respective post-separation contributions were embraced by the approach of each of the parties earlier referred to that sought to compartmentalise all contributions save for the “initial gifts of land”. The supplementary submissions on behalf of the parties make no specific mention of any post-separation contributions.
In light of the time that has now elapsed since separation it seems highly likely that the nature, form and characteristics of the respective contributions of the parties have changed, likely dramatically. However, neither evidence nor submissions allow us to say more about that aspect. As a result, and again bearing in mind the approach taken by the parties so as to facilitate the re‑exercise of the discretion by this court, we say no more about this aspect of the parties’ contributions.
Taken together, the evidence we have just described results in a finding that the contributions of the husband should be assessed as being greater than that of the wife.
In his supplementary submissions to this court, counsel for the husband refers to ten decisions (apart from the trial decision in this case) and submits merely that “a range of outcomes is possible in any matter” and that “initial contributions may have a varied influence on the fortunes of parties”. Counsel for the wife’s further submissions are confined essentially to a response to the submissions on behalf of the husband. No additional cases are cited which are contended to either establish “guidelines” which might assist in illuminating the exercise of the discretion or which are in any event said to be factually comparable to the present.
The submissions by counsel for the husband do not seek to draw comparisons between the decisions cited and the instant case. Five of the cases cited by counsel involve marriages of greater than 20 years duration and involve significant capital contributions at the outset of, or shortly after, the commencement of the marriage.[75] An additional decision cited involves a significant capital contribution made ten years into the marriage, but within a marriage of 32 years duration.[76]
[75]Rodgers & Rodgers (No 2) above, per Thackray, Ainslie-Wallace and Murphy JJ, 25 years; Bremner and Bremner (1995) FLC 92-560 per Nicholson CJ, Baker and Tolcon JJ, 22 years; Bishop & Bishop (2013) FLC 92-553 per Finn, May and Strickland JJ, 24 years; Cabbell & Cabbell [2009] FamCAFC 205 per Boland, Thackray & Ryan JJ, 25 years; Hiette & Hiette [2010] FMCAfam 379 per Sexton FM, 25 years.
[76] MVB v SDB [2005] FamCA 389 (sub nom Brown and Brown (2005) 33 Fam LR 246).
We have ourselves had recourse to a further five cases which bear the same two criteria as just referred to.[77]
[77]Froth & Froth [2007] FamCA 1608 per Watts J, 25 years; Summitt & Summitt & Ors [2009] FamCA 371 per Murphy J, 24 years; Penzel & Penzel [2011] FMCAfam 75 per Neville FM, 21 years; Calder & Calder (No 2) [2014] FamCA 1106 per Berman J, 33 years; Curtain & Curtain [2016] FamCA 577 per Berman J, 26 years.
As we have said, no two marriages are identical and reference to comparable cases is not designed to find either a “perfect match” or a “right answer”. Rather, what is sought is a comparison with more or less similar cases with a view to achieving a measure of consistency of assessments. That search might commence with comparable decisions of the Full Court where the discretion has been re-exercised. Both principle and pragmatics result in that pool of cases being small. That is because any re-exercise by the Full Court must be undertaken by reference to the facts and circumstances existing at the hearing of the appeal,[78] and very frequently, many contested issues emerge between the judgment and the hearing of the appeal which effectively precludes a bench of three from re-exercising.
[78] Allesch v Maunz (above).
We commence with the six decisions cited by counsel for the husband earlier referred to.
In Bremner the Full Court dismissed an appeal from a trial judge’s assessment that contributions should be assessed as equal. The parties were married for 22 years. There were two children. The relevant capital contribution of significance by the husband was of an unimproved four-acre outer suburban block of land. The land remained unimproved at the time of the hearing. The land was not used by the parties for any purpose; it did not sustain a farm or any business. Neither party worked the land; the parties did not live on it. The nature of the capital contribution is therefore quite different to the contribution in this case.
It was accepted in Bremner that the block of land represented about 60 per cent of the value of the assets at the time of trial. On the other hand, while the husband worked throughout the marriage, the wife also worked for almost all of the marriage, usually on nightshift, while carrying out “the vast majority of domestic chores and [being] primarily responsible for the care and rearing of the children”. The trial judge justified the finding of equality of contribution by reference to the length of the marriage; “the arduous performances of the wife, as well as the husband”; the “high quality of the various other contributions made by each party” and by reference to the fact that the rates and “cleaning fee” for the block came out of joint funds, and that the land appeared “to have been treated by the parties as belonging to each of them during the marriage”. The Full Court also drew attention to the absence of evidence of the value of the block at the date of the marriage but, by reference to the quantum of rates being paid, concluded its value “must have been very small indeed”.
In MVB v SDB the relevant capital contribution was not made at or near the outset of the relationship, but twelve years after it commenced, however, the marriage subsisted for 32 years. The parties had two children. The capital contribution was of a cane farm. The husband also had an interest in a Defence Force Retirement and Death Benefits Superannuation Fund pension at the outset of the relationship and received about $48,000 in a lump sum comprising accrued leave and the like when he left the navy at the commencement of the relationship. The parties took over the operation of the cane farm ten years into the marriage and it was transferred to the husband two years later. The transfer involved payments to the husband’s parents. The effect of the resolution of an issue about that was that the parents received a total of $146,000. Sugar licences were also assigned by the husband’s parents. The contribution permitted each of the parties to have land, a place to live, a business and the income from that business for the balance of their marriage – approximately 20 years. However 10 per cent of the gross sales of the farm went to the parents until their deaths. About 23 years into the marriage, the husband received an inheritance of $212,880 from his father’s estate.
The two capital contributions by or on behalf of the husband can in our view be seen to be greater than the husband in this case, including as they do a significant inheritance as well as the contribution of the farm. The marriage was, however somewhat longer. The trial judge assessed contributions in the proportion 65 per cent to the husband and 35 per cent to the wife. The Full Court accepted that the contribution of the farm and the inheritance were substantial contributions but concluded that these “must be weighed and balanced against the myriad of other contributions made by the wife during the course of the marriage”. The Full Court assessed contributions in the proportion 60 per cent to the husband and 40 per cent to the wife.
The relevant capital contribution in Cabbell was of an equity partnership interest in a law firm. The marriage there lasted 25 years. There were three children. The law firm later merged with a national law firm. The husband also owned an investment home unit purchased for $34,000 which had a value at trial of $290,000. He also had a car and savings of about $10,000. At the commencement of the relationship the wife had about $20,000 in savings and a car. The trial judge assessed contributions as being equal. The Full Court assessed contributions as 55 per cent to the husband and 45 per cent to the wife.
The nature of the relevant capital contribution is different to the present: the wife did not contribute directly to the property brought to the marriage; it did not provide a home; it generated income for the marriage but did not derive from a partnership of which the wife was a member. The contribution did not involve the parties being exposed to the relative geographical remoteness, climatic and other conditions present in this case. The husband’s contribution in the instant case should be assessed as greater than that in Cabbell.
Bishop, which was also referred to by counsel for the husband, is distinguishable from the present. The marriage was of 24 years duration. There were three children. Like the present case, the relevant capital contribution was farming property. The husband owned property jointly with his mother. Two years after co-habitation commenced, a deed of partition saw the husband becoming sole registered proprietor of about two-thirds of the property (600 acres) subject to a mortgage. The remaining portion of the property was purchased by the parties about four years later, that is about six years into the parties’ cohabitation. The wife was engaged in “off-farm” employment as a teacher during the course of the cohabitation. The property interests at trial included a home (in which the wife was living) which was acquired entirely from funds provided to the wife by her aunt. The wife received inheritances totalling about $252,000. The trial judge assessed contributions as equal.
However, the case suffers significantly as a comparator because the trial judge excluded the inheritance from the property of the parties to which a contributions assessment was made and, additionally, made the parties’ superannuation interests the subject of a separate pool. The Full Court allowed an appeal but remitted the matter for rehearing. It appears the matter resolved prior to that occurring. The case is plainly distinguishable from the present.
Rodgers (No 2) is a decision of this court. It involves a marriage of 25 years. The parties had no children together but the wife had three children of a prior relationship. At the commencement of the relationship the husband owned a one third share in a fishing boat and 99 pieces of fishing equipment together with two cars. He conducted a fishing business with his parents. The wife had no significant assets. Subsequently further interests in the fishing business were obtained from the husband’s parents; the husband receiving the sale proceeds of the fishing boat and fishing equipment licences. The husband’s parents made various loans to the parties. The wife received an inheritance of $240,000 and $14,500 from a previous marriage property settlement. The husband’s initial capital contributions and the efforts of both parties, including the wife’s homemaker contributions while the husband was away from home fishing served as a springboard for the acquisition of a successful tourism business. Late in the relationship the wife took effective day to day control of the latter. The trial judge assessed contributions as 57.5 per cent to the husband and 42.5 per cent to the wife. On appeal the Full Court re-exercised the discretion. Contributions were assessed as 52.5 per cent to the husband and 47.5 per cent to the wife.
The wife’s contributions in that case can be seen to be greater than those of the wife in this case. Her homemaking contributions were made when the husband was away for significant periods fishing. Her own capital contributions by way of inheritance were much more significant than in the instant case and it was she, rather than the husband, whose direct contributions by way of labour and management predominated in the business in the latter part of the relationship.
Finally, Hiette is a decision of (then) Federal Magistrate Sexton. The parties were married for 25 years. There were no children of the marriage but the wife had a son of a previous relationship. The parties had both retired; the husband was aged 76 and the wife 63. The husband had “substantial assets” at the commencement of the relationship comprising an unencumbered leasehold property (which later became freehold). In addition he had substantial farm plant and equipment. He had “substantial funds” in cash, two cars and a boat. He operated a crop and livestock farming business. The introduced real property also had a homestead in which the parties resided for 23 of their 25 year marriage. The farming business provided the sole source of income. It was accepted that the wife worked “from dawn until dusk” every day and that “it was not an easy lifestyle”. There were no children but it was accepted that the wife undertook all of the homemaker tasks within the home. The wife had responsibility for the bookkeeping for the business. The wife’s contributions included a $5,500 loan through her sister needed “to keep the [commercial] lenders on side” and her son from another relationship invested in a share‑farming crop in 2001. Those contributions were said to be “significant”. Again, submissions (and the reasons) were framed in terms of an “adjustment” being made for the husband’s “initial contributions” and also because they provided “the springboard for the creation of the vast majority of the parties current assets.” Her Honour assessed contributions in the proportion 59 per cent to the husband and 41 per cent to the wife.
The nature, form and characteristics of the contributions made by the parties in that case have a significant degree of similarity with the present. The husband’s capital contribution provided a home, a business and income. However, the wife did not generate any independent income. She worked hard on the farm and did the bookkeeping. Her homemaking contributions were significantly less than the contributions of the wife in this case. Her capital contributions were of a similar nature to those in the present case.
In addition to those cases referred to by counsel for the husband we have ourselves referenced decisions which bear the same criteria as earlier referred to. Of those cases, we consider the following to be of some assistance.
Calder is a decision of Berman J. It involved a marriage of 33 years. There were four children. The husband “held [farming] assets of substantial value” and tenancy rights at the time of the marriage. Further capital contributions were made by or on behalf of the husband during the marriage (for example through trust distributions) and the purchase of other properties during the marriage could “be directly traced to the husband’s tenants’ rights” in respect of a farm held pre-marriage. The wife was employed during the marriage and contributed her income to it. The wife argued that “she made significant personal sacrifices in moving to Australia and supporting the husband notwithstanding there was personal hardship to her in residing in remote and rural locations”. The wife was agreed to have made significant contributions, in particular as a homemaker, but also in her role as part of the farming partnership albeit that “the husband actively undertook the role of the farmer”. Berman J ordered “an adjustment” of “7.5 per cent to properly reflect the weight that should be given to the contributions by each of the parties” thereby assessing contributions in the proportion 57.5 per cent to the husband and 42.5 per cent to the wife. An appeal succeeded on grounds not directly related to that assessment and it can be taken as undisturbed on appeal.
The wife in Calder made no capital contribution of her own but here the wife’s capital contribution was modest in any event. The capital contributions made by the husband in Calder were of a similar nature to those made by the husband here, but it is difficult to compare the value of the respective capital contributions and the assets in Calder were of vastly greater value than in the present case. Nevertheless, it can be argued that the proportion of the assets in the present case that can be traced to the husband’s capital contributions is greater than in Calder.
Summitt was also a farming case. The marriage there lasted 24 years and produced three children. At the commencement of the relationship the husband had a one-third interest in a “vibrant” farming partnership responsible for supporting and sustaining the parties and their children throughout the relationship. There was a “significant imbalance” in the contributions made at the commencement of the relationship in favour of the husband. During the 24 year relationship each of the parties “worked hard in their respective spheres”. In addition to the capital contribution at the commencement of the relationship, the husband’s father deposited almost $1 million over a 21 year period from 1985-2006 into the partnership. Those funds were used to “meet all expenses of the partnership” and also “used by all four partners, by way of drawings, to meet [their] own respective living expenses”. The cash injections played a significant role in the preservation and conservation of the parties’ property “including when … there were cash flow difficulties”. Contributions were assessed in the proportion 62.5 per cent to the husband and 37.5 per cent to the wife.
In that case, the father’s parents remained interested in the partnership. In the instant case, they devolved their land and interests to the parties. The marriage was of slightly shorter duration than the present. The additional capital injections by the husband’s parents were in a significant total amount albeit that those injections were to a partnership in which they retained, together, a half interest. The capital contributions by or on behalf of the husband were on-going over a significant period of the marriage. The husband’s contributions in that case should be seen as greater than in the present case.
Penzel is a case involving a sheep farm in a marriage of 21 years which produced two children. At the commencement of the relationship the husband had a joint tenancy in a property with his parents which he obtained fully upon their deaths and a one third interest in another property as a tenant in common with them. The husband inherited about $700,000 by way of various properties when his father died. Prior to the marriage the husband and his parents conducted their farm business on the two properties owned by the husband and his parents and lived on those properties. The husband provided his share of the properties to his parents to use for the purposes of the farming business. The wife provided assistance in relation to the farming business and also rendered assistance to the husband’s parents as they aged and became infirm: the wife handfed sheep during drought and provided help with basic tasks such as opening a jar on behalf of the husband’s parents because of difficulties that they had with their hands. She undertook work in relation to her father-in-law’s personal affairs as well as undertaking the bookwork of the business after the husband’s mother died. The wife also undertook off-farm work until 2000. She stopped that work to assist the husband’s father, later undertaking part-time hospitality work. The wife continued to undertake the work for the partnership and the company post-separation and paid wages for contractors and shearers. The Federal Magistrate found that “the reality was that the parties to the marriage and the parents were working for a joint enterprise with a joint objective of ultimately benefiting the parties to the marriage who would ultimately benefit their children”. Contributions were assessed in the proportion 63 per cent in favour of the husband and 37 per cent in favour of the wife.
The relationship was of shorter duration than the present. The initial capital contribution by or on behalf of the husband was supplemented by a later significant capital injection by the husband. The nature of the wife’s contributions can be seen to have differences with the present case but there are also significant similarities, including the making of those contributions in a farming environment in a relatively remote location and where a multiplicity of tasks are undertaken. The husband’s contribution can be seen as being greater than in the present case.
Curtain involves a marriage of 26 years. There were four children. It, too, involves farming property. The husband had significant assets at the commencement of the relationship including his interest in a family farming partnership. He also had $120,000 in savings and entitlement to compensation which resulted in him receiving between $70,000 and $96,000. That compensation payment was used to acquire additional land. About four years prior to separation the husband received about $270,000 and shares in a private company. The partnership conducted the farming business and the wife must be seen to have made contributions to the sum received by the husband upon dissolution of the partnership. The wife had very modest assets at cohabitation. The husband received off-farm income. The wife was instrumental in the establishment of the livestock and for the management of this component of the farming enterprise. Contributions were assessed in the proportion 60 per cent to the husband and 40 per cent to the wife.
The marriage was of similar duration to the present and the nature and characteristics of the respective contributions of the parties can be seen to be similar. The wife made a different direct contribution to the farming enterprise and the husband was off-farm working for periods of time, but deriving a reasonable income thereby. The nature of the capital contributions made by the husband was similar but there was more than one such contribution of significance.
In Froth, a farming property was again the major asset of the parties to a 24 and a half year relationship. Both parties had “contributed to the best of their individual abilities towards the advancement of the marital partnership”. “[T]he wife could not have done much more by way of the expenditure of her energy over nearly 25 years than she did”. These contributions were “in addition to her substantial efforts fulfilling the primary role of homemaker and parent and working part time as a nurse”. “The husband had an 87.5 percent equity in [a farming property] at marriage. That equates to $2,372,562 today”. Substantial inheritances in the region of $3 million were received by the husband. The trial judge assessed contributions in the proportion 67.5 per cent to the husband and 32.5 per cent to the wife.
The nature and extent of the inheritances received by the husband in addition to the earlier significant capital injection within a marriage of shorter duration are indicative of the husband’s capital contributions in that case being seen as greater than in the present case.
Conclusion As To Assessment And Quantification of Contributions
Taking into account all of the matters earlier outlined and having reference to those decisions we consider comparable and, thus, helpful, we consider that contributions should be assessed in the proportion 57.5 per cent to the husband and 42.5 per cent to the wife.
That is, contributions should be assessed as having a disparity of 15 per cent. In dollar terms, that equates to about $294,500.
Assessment and Quantification of s 79(4)(d) to (g)
The only other paragraph of s 79(4) addressed by the parties’ respective trial counsel was s 79(4)(e) (the so-called “s 75(2) factors”). Similarly, her Honour’s reasons also address only s 79(4)(e). So, too, the respective supplementary submissions made to this Court refer only to that paragraph.
The respective submissions of the parties, both at trial and before us, address the relevant matters pursuant to s 75(2) only briefly. Again we point out that we have a significant degree of discomfort in assuming matters supported by evidence at a trial in 2012-13. Yet, again, we are prepared to do so in order to facilitate the parties’ respective decisions, taken with the advice of their solicitors and counsel to facilitate this matter coming to an end.
The “property and financial resources of the parties” required to be taken into account by s 75(2)(b) must take account of the evaluated contributions and the property and liabilities each of the parties will or might retain as a consequence of orders which reflect it (s 75(2)(n)).
The parties were, and apparently are, essentially agreed as to the manner in which the property of the parties is to be distributed. It was, and apparently is, common ground that the husband would retain the farming properties and the attendant water licences and plant and equipment. As a consequence he retains valuable property with the capacity to run a business and earn income from it. He has a very modest amount of superannuation. The wife will retain a home in a town in New South Wales valued at $230,000 subject to a mortgage of about $182,000 and a very modest amount of superannuation.
The net value of the property and superannuation interests retained by her, as set out in the table of property set out earlier in these reasons totals nearly $94,000. The husband has net assets and superannuation valued at about $1,869,000.
The contributions assessment earlier arrived at will see the wife receiving 42.5 per cent of $1,963,686 or $834,566. That result would require the husband to raise and pay to the wife the sum of $740,566.
No submissions directed to her Honour at trial addressed the means by which the husband might pay to the wife the sum ordered by her Honour (whether in accordance with the distributions then urged or otherwise). Nor are any such submissions made in the supplementary submissions of either party before us in respect of the re-exercise by this court.
The wife is currently aged 53; the husband 52 at the time of hearing of the appeal. When the marriage commenced, the parties were each aged 19.
Her Honour’s findings, made under the heading “section 75(2) factors” can be seen at [56] to [63] of the reasons. In summary, her Honour found, and we adopt:
·The wife has a bad back and suffers from depression; the latter having “some impact upon her capacity for employment”;
·Post-separation, the wife worked “[in hospitality], and [in retail]”. At the time of trial she was unemployed;
·The husband “continues to be able to work the farm profitably”. He has “an established business with years of knowledge and experience and the ongoing support of family members working in the same field”;
·The husband’s “financial future is stronger than the wife’s”;
·The wife feels a “moral obligation” to support the youngest child who suffers from diabetes.
In terms of s 75(2)(b), the disparity in the assets, liabilities and resources between the parties consequent upon the assessment of contributions is significant. The husband has a capacity to derive income from the assets retained by him. The wife’s capacity to derive income is impaired by her health.
During the 27 year marriage, embracing a period from when the wife was aged 19 until she was aged almost 47, the wife contributed to the husband’s capacity to earn income from the assets and resources he retains. She no longer receives income from the property and business to which she contributed (s 75(2)(j)).
In terms of s 75(2)(k) the 27 year marriage has “affected [adversely] the earning capacity” of the wife.
Conclusion As To Assessment and Quantification of s 79(4)(d) to (g)
In our view, s 79(4)(e) requires those matters to be taken into account in arriving at orders that are just and equitable as between the parties. In arriving at an appropriate assessment for those factors, a dollar value of it should be uppermost in our minds[79] and, of course, the ultimate disparity in entitlements which it might produce. That dollar value is, in turn, dependent upon the value of the interests in property of the parties.
[79]See, for example, Clauson and Clauson (1995) FLC 92-595, at 81,909.
We consider that the matters referred to should be reflected in an adjustment of $150,000, expressed in percentage terms, that adjustment is 7.5 per cent.
Orders For Settlement of Property
The effect of our assessment is that the property will be divided equally. The parties appear to be agreed upon the property that they should each retain and its value, as assumed for present purposes. The effect is that our assessment of orders which constitute a just and equitable settlement of property as between the parties will require the husband to raise and pay a sum of money.
The net effect of our assessments pursuant to s 79(4)(a) to (e), assuming that the parties retain the property upon which they are apparently agreed, is that the husband would need to raise and pay to the wife the sum of $890,566 which we would round to $890,500. We have not been told whether any or all of the orders made by her Honour have been carried into effect. If they have, the net effect of our orders is that the husband would need to pay the wife an additional sum of slightly more than $360,000.
Within the extensive written submissions made on behalf of both parties at trial, no submissions were made as to how or in what manner the husband would raise the money which both parties’ proposals contemplated would need to be paid. Neither are any such submissions made before us.
Those matters taken together lead to us ordering that all of her Honour’s orders be set aside and that the parties provide, through their respective legal practitioners, an agreed minute of order giving effect to our conclusions.
We would allow 60 days for the payment of any monies to the wife and the carrying into effect otherwise of the orders proposed by these reasons.
Costs Of The Appeal
The circumstances of this case referred to in s 117(2) of the Act, including the specific matters referred to in s 117(2A), do not justify a departure from the position set forth in s 117(1). Each party should bear their own costs.
In the event that we so ordered, each of the parties requested a certificate pursuant to the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth). It is appropriate that certificates should issue to each party.
I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace and Murphy JJ) delivered on 10 February 2017.
Associate:
Date: 10 February 2017
30
37
3