WALTERS & CARSON

[2018] FamCAFC 233

FAMILY COURT OF AUSTRALIA

WALTERS & CARSON [2018] FamCAFC 233

FAMILY LAW – APPEAL – PROPERTY – where the de facto husband asserted that the trial judge erred in findings of fact relating to the de facto husband’s current and future income – where there was evidence before the trial judge upon which it was open for his Honour to make the finding he made as to the de facto husband’s current income – where it is not essential to be able to vest precision in a term or form of expression used by the trial judge – where the essential task of the trial judge in making the determination of property adjustment orders was to make a fair comparison between the parties as regards the earning capacity of each party rather than reaching, in absolute terms, exact conclusions about what each would earn – where the trial judge made errors in calculation but those errors could not be characterised as material – where most of the de facto husband’s challenges to contribution findings amounted to matters of weight – where it was not incumbent upon the trial judge to identify and discretely reflect upon each and every relevant consideration within the process required in the holistic assessment of contributions – where there was no substance in any of the de facto husband’s grounds of appeal challenging the property settlement orders – appeal from property settlement orders dismissed.

FAMILY LAW – APPEAL – CHILD SUPPORT – where the trial judge made reference to the s 90SM property settlement orders in general when considering the de facto wife’s child support departure application – where the reasons for judgment do not demonstrate that the trial judge had regard to the de facto wife’s capacity (or not) to derive income from capital under her control in considering her “income, property and financial resources” pursuant to ss 117(4)(d) and 117(7A) of the Child Support (Assessment) Act 1989 (Cth) – where the trial judge failed to consider the existing and future care arrangements for the children and the consequent expenses of the children being met by the de facto husband whilst in his care – where the trial judge did not explain or provide any basis for the conclusion reached in respect of the apportionment of liability to the de facto wife – appeal from child support orders allowed.

FAMILY LAW – APPEAL – SPOUSE MAINTENANCE – where the trial judge indicated that he had regard to the intended property settlement and child support orders when determining the de facto wife’s maintenance application – where it cannot be discerned from the reasons for judgment that the trial judge had regard to the de facto husband’s financial capacity to meet a maintenance order taking into account his other expenses and the proposed property settlement and child support orders – where no explanation was provided as to how it could be that the de facto wife’s needs were unaffected by the proposed property settlement orders which would see her retaining capital worth approximately $5 million – where more than the bare expression of a conclusionary finding is necessary – appeal from maintenance order allowed.

Child Support (Assessment) Act 1989 (Cth) ss 102, 114, 116, 117
Family Law Act 1975 (Cth) ss 4AA, 90SF, 90SM, 93A, 117
Federal Proceedings (Costs) Act 1981 (Cth)

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Child Support Registrar & Crowley (2015) FLC 98-066; [2015] FamCAFC 76
Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
De Winter and De Winter (1979) FLC 90-605
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Gyselman and Gyselman (1992) FLC 92-279; [1991] FamCA 93
Hides v Hatton (1997) FLC 92-759; [1997] FamCA 28
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Lovine & Connor (2012) FLC 93-515; [2012] FamCAFC 168
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156

APPELLANT: Mr Walters

RESPONDENT: Ms Carson

FILE NUMBER: SYC 79 of 2016

APPEAL NUMBER: EA 66 of 2017

DATE DELIVERED: 28 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Thackray, Murphy & Kent JJ

HEARING DATE: 21 February 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 18 May 2017 (orders amended 2 June 2017)

LOWER COURT MNC: [2017] FamCA 330

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Kirk QC

SOLICITOR FOR THE APPELLANT: Michael Conley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. The Application in an Appeal filed by the appellant on 2 February 2018 be dismissed.

2. The Application in an Appeal filed by the respondent on 2 February 2018 be allowed.

3. The appellant pay the costs of the respondent of and incidental to the respondent’s Application in an Appeal filed on 2 February 2018 in the amount agreed or, failing agreement, to be assessed.

4. Pursuant to s 102 of the Child Support (Assessment) Act 1989 (Cth) leave be granted to the appellant to appeal Orders 18, 19 and 20 of the orders made by Benjamin J on 18 May 2017 (amended 2 June 2017).

5. That the appeal from Orders 18, 19 and 20 of the orders made by Benjamin J on 18 May 2017 (amended 2 June 2017) be allowed and those orders be set aside.

6. That the appeal from Order 17 of the orders made by Benjamin J on 18 May 2017 (amended 2 June 2017) be allowed and that order be set aside.

7. That the appeal from the property settlement orders made by Benjamin J on 18 May 2017 (amended 2 June 2017) be dismissed.

8. The parties have liberty to apply with respect to variation, if necessary, of Orders 3 and 4 made on 18 May 2017 (amended 2 June 2017) with respect to the timetable for sale of the real property the subject of those orders.

9. That the child support proceedings and the maintenance proceedings be remitted for rehearing before a trial judge other than Benjamin J.

10. The appellant is granted 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 in respect of the costs incurred by him in relation to the appeal from the child support orders and the maintenance orders.

11. The respondent is granted 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 in respect of the costs incurred by her in relation to the appeal from the child support orders and the maintenance orders.

12. The Court grants to each party a costs certificate pursuant to the provisions of s 8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of the proceedings for child support and maintenance.

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 Walters & Carson 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 SYDNEY

Appeal Number: EA 66 of 2017
File Number: SYC 79 of 2016

Mr Walters

Appellant

And

Ms Carson

Respondent

REASONS FOR JUDGMENT

1. From about December 1999 until they separated some 14 years later on 1 February 2014, Mr Walters (“the de facto husband”) and Ms Carson (“the de facto wife”) lived in a de facto relationship.[1] 

   [1] Within the meaning given by s 4AA of the Family Law Act 1975 (Cth) (“the Act”).

2. The relationship produced three children: P born in 2006;  F born in 2008; and R born in 2013.  On 23 January 2017 parenting orders were made with the consent of the parties.  Those orders relevantly provide for the children to continue to live primarily with their mother and to spend progressively increasing time with their father.  None of those orders are the subject of this appeal.

3. Over the course of their 14 year relationship and in the three-year post-separation period (from February 2014 until trial in January 2017) the parties accumulated property interests (including superannuation) found at trial to have a combined net worth of $7,640,851.[2] 

   [2] This does not include items of personalty, furniture and art work (and Frequent Flyer points) which were not valued and which were divided in specie as between the parties.

4. The de facto husband had also acquired, and retained, a very significant earning capacity.  As at trial the de facto husband (born in 1972) was aged 44 years and the de facto wife (born in 1973) was aged 43 years. 

5. The extent of the de facto husband’s earning capacity/future earnings was an issue of central importance in the trial of the property settlement, maintenance and child support proceedings between the parties heard by Benjamin J in January 2017.  That issue remains of central importance in the de facto husband’s appeal from the orders made by Benjamin J on 18 May 2017 (amended 2 June 2017).  One of the central contentions of the de facto husband on appeal is that the trial judge made wrong findings about his earning capacity and future earnings, and such errors infect the orders his Honour made.

6. With respect to the property settlement orders, having found the parties to have net assets (including superannuation) worth a combined $7,640,851, the trial judge made orders effecting a 65 per cent/35 per cent division of those assets in favour of the de facto wife: a 30 per cent disparity between the parties worth $2,292,255.30. The trial judge arrived at that apportionment based upon a contributions finding of equality, and a 15 per cent allowance in the de facto wife’s favour on account of s 90SF(3) matters: in particular, the de facto husband’s vastly superior (to that of the de facto wife) earning capacity.

7. The maintenance orders require the de facto husband to pay the de facto wife, from the time of the sale of a specified property, periodic maintenance payments of $1,174 per month until 31 December 2025 (and $923 per month pending that property sale). 

8. As at the date of orders on 18 May 2017 the parties’ children were aged 11 years, 9 years and 3 years respectively.  The child support orders require the de facto husband to pay the de facto wife $10,200 per month (being $3,400 per child) until each of the children turns 18 or completes secondary schooling in the year of turning 18 and, in addition, to pay all school expenses (including private school fees, if incurred, and other specified education-related costs); and to maintain private health insurance for each child; and to pay 90 per cent of any “gap” medical and associated expenses.

9. The de facto husband applies pursuant to s 102 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) for leave to appeal and, if leave is granted, to appeal from the child support orders. The de facto husband appeals from the property orders and the maintenance orders. He seeks that the proceedings be remitted for rehearing before a trial judge other than Benjamin J. The de facto wife opposes the application for leave and the appeal.

10. We have concluded that there is no merit in the de facto husband’s appeal from the property settlement orders.  However, we have concluded that there is merit in the de facto husband’s appeal from each of the child support orders and the maintenance orders.  We are of the view that the de facto husband ought be granted leave to appeal the child support orders and that his appeal from those orders and from the maintenance orders ought be allowed; those orders set aside; and the child support and maintenance proceedings be remitted for rehearing.  Our reasons for these conclusions follow.

Challenges on appeal

1. At the outset of the hearing of the appeal Mr Kirk of Queen’s Counsel for the de facto husband confirmed that Grounds 5 and 6 of the appeal were abandoned.  The abandonment of these grounds renders further discussion of them unnecessary.

2. Taken from the de facto husband’s Summary of Argument, his numerous challenges on appeal by reference to the grounds of appeal contained in his Amended Notice of Appeal, are advanced in groupings directed to the following findings or determinations of the trial judge:

   ·The findings as to the present and future earnings of the de facto husband and various other findings of fact (Grounds 1 to 4).  The de facto husband also seeks to adduce further evidence on appeal in support of these challenges;[3]

   ·Findings made as to contributions (Grounds 7 to 10);

   ·Section 90SF(3) findings (Grounds 11 to 13);

   ·The child support determination (Grounds 15 to 19);

   ·The maintenance determination (Grounds 20 to 23); and

   ·The trial judge’s asserted failure to have regard to the overall or cumulative effect of the orders made (Ground 14).

   [3] Pursuant to s 93A of the Act.

3. It is convenient to deal with the de facto husband’s challenges in these groupings.  Moreover, the de facto husband argued his application for leave to appeal from the child support orders in conjunction with his substantive complaints about those orders and we will likewise deal with those aspects together.

De facto wife’s Application in an Appeal

1. By application filed on 2 February 2018 the de facto wife seeks to adduce further evidence on appeal. 

2. At the time of the trial before Benjamin J it was unclear whether the parties’ eldest son would be accepted to a New South Wales public or state selective school.  This relates to the child support orders and the references the trial judge made in the reasons for judgment (at [16] and [103]) to the likelihood of the children attending private schools in the event that they do not obtain places at New South Wales state selective schools; and the challenged finding at [16] that the de facto husband made a concession that he had the income to pay private school fees.  The further evidence sought to be adduced by the de facto wife simply confirms that the eldest son has been accepted into a New South Wales state selective school and commenced his attendance at that school this year. 

3. At the hearing of the appeal the de facto wife’s application to adduce further evidence was not opposed.  In advance of filing the application the de facto wife sought the de facto husband’s agreement that the relevant evidence could be conveyed to this Court as an agreed fact for the purposes of the appeal.  That agreement was not forthcoming and the de facto wife was put to the trouble and expense of making formal application, which in the end result was not opposed.

4. The application of the de facto wife to adduce further evidence on appeal was granted upon the hearing of the appeal and in circumstances where the costs involved in making that application might easily have been avoided, and no meaningful opposition was raised against the costs application of the de facto wife in respect of that application, the de facto wife’s associated application for an order for her party and party costs of that application to be paid by the de facto husband ought be allowed.

Challenges to findings of fact

(a)      Did the trial judge make wrong findings about the de facto           husband’s current and future income? – Grounds 1.2, 1.3 and 2.2

1. The following provides some relevant context to the findings the trial judge made as to the de facto husband’s current and future income. 

2. In April 2009 the de facto husband became one of the Sydney resident partners in the international professional firm based in the United States known as “the US firm”.  His income was paid by way of partner drawings and profit share distributions. 

3. By reference to the de facto husband’s trial affidavit[4] the trial judge recorded at [32] of the reasons that historically the de facto husband had earned income as follows by reference to the Australian taxation year:

   a)$1,625,995 in 2013;

   b)$1,723,172 in 2014; and

   c)$2,172,187 in 2015.

   [4] De facto husband’s affidavit filed 17 January 2017 at [140].

4. In the latter part of 2015 the de facto husband received notice from the US firm that the firm was closing its Sydney office.  At the end of April 2016 the de facto husband exited the US firm partnership on a negotiated agreement and on 2 May 2016 the de facto husband commenced working as a partner in the Sydney office of another international professional firm, with a head office in the United Kingdom (“the English firm”).

5. When the trial proceeded in January 2017, the de facto husband had been a member of the English firm partnership for less than a full year, in fact for about eight months.  Moreover, in respect of the financial year ended 30 June 2016 the de facto husband’s taxable income, including compensation/income received from the US firm together with two months of partner distributions from the English firm, was $2,875,321 or $1,495,695.71 net of tax.[5]  The de facto husband continued to receive compensation payments from the US firm pursuant to the negotiated agreement for his exit from the US firm partnership, throughout the 2016 calendar year.[6]

   [5] De facto husband’s affidavit filed 17 January 2017 at [138].

   [6] De facto husband’s affidavit filed 17 January 2017 at [142]–[148].

6. The trial judge made two findings as to the de facto husband’s current and future income, respectively, which are the subject of the challenges in Grounds 1, 2.2 and 4 of the de facto husband’s Amended Notice of Appeal.

7. First, as to the de facto husband’s current income, the trial judge recording a finding at [50] of the reasons for judgment that “he is likely to have effectively earnt about $1,100,000 in the May 2016 to April 2017 financial year” – referring to the UK fiscal year.  Similarly at [56] the trial judge found “I am satisfied that his earnings in terms of profit sharing for his first year with [the English firm] is likely to be around the $1.1 million mark”.

8. Whilst the challenge to the trial judge’s findings about the de facto husband’s current income was not formally abandoned on appeal, in arguing the de facto husband’s application to adduce further evidence Mr Kirk acknowledged that such further evidence demonstrated that the de facto husband accrued earnings of $1,296,000, in terms of his profit share, in respect of the first year of his partnership with the English firm.  As earlier noted, the trial took place some eight months into that first year.  In short, the de facto husband’s own further evidence sought to be adduced on appeal is at odds with the contention that the trial judge’s finding about the de facto husband’s current income is wrong.

9. However, leaving the content of the application for further evidence aside, there was before the trial judge evidence upon which it was open for his Honour to make the finding his Honour made as to the de facto husband’s current income.  The evidence is outlined in the reasons for judgment at [49] to [56].  The de facto husband’s evidence at trial included that for the financial year ended 30 April 2017 (being the UK financial year) he would have received a gross drawing of approximately $672,680 for his first year as a partner of the English firm.  Pursuant to his partnership agreement, this drawing equates to 60 per cent of the budgeted distributable profit for the financial year.  As of August 2017, the de facto husband was to receive the remainder of his entitlement for the previous completed financial year, albeit the remainder was payable by 12 monthly instalments.  Assuming the budgeted distributable profit was accurate, and subject to variations in the exchange rate, the de facto husband could expect to receive a further 40 per cent or $448,453.52 (gross).  Thus it can be seen that the trial judge’s finding that the de facto husband had “effectively earnt about $1,100,000 in the May 2016 to April 2017 financial year” was open on the evidence, in terms of earnings which had accrued to the de facto husband by way of entitlement in respect of that year. 

1. We therefore find no merit in the challenge to the finding the trial judge made as to the de facto husband’s current income.  Moreover, further evidence on appeal directed to this topic is superfluous.

2. As to future income, the relevant finding of the trial judge is recorded at [55] of the reasons in these terms:

   55.Given the de facto husband’s historical earnings, and the agreements with the English firm he is likely to earn towards $2 million per year in the short to medium term.

3. Some focus of the argument on this aspect of the appeal went to the meaning or interpretation open of his Honour’s expression “short to medium term”. Obviously, the de facto husband’s earning capacity and prospective future income was a critical factor to a proper determination as to any adjustment to be made for s 90SF(3) factors in arriving at just and equitable property settlement orders. As has already been noted, it was the trial judge’s consideration of the de facto husband’s prospective future earnings which was the primary factor in his Honour making an adjustment in favour of the de facto wife worth, in dollar terms as regards disparity between the parties, $2,292,255.30 on account of those factors. Likewise obvious is that the de facto husband’s earning capacity was also central to the determinations the trial judge made concerning the maintenance and child support orders respectively.

4. The de facto husband’s arguments on appeal, in summary and paraphrased form, include that the ambiguity of the finding as expressed renders the conclusion that the trial judge’s reasons for judgment are inadequate to explain his Honour’s conclusion; and that in any event it was not open for the trial judge to conclude that on any reasonably open interpretation of the meaning of “short to medium term” that the de facto husband was “likely to earn towards $2 million per year” within such a timeframe.  These matters aside, the de facto husband seeks to adduce further evidence on appeal directed to showing that the de facto husband has not progressed in his partnership in the manner envisaged as at the time of trial and as considered by the trial judge.  That is, it is contended that the further evidence concerning what has occurred in relation to his partnership since the trial demonstrates that the de facto husband is never likely to earn income at the level the trial judge envisaged by this finding.

5. The reference by the trial judge in [55] of the reasons quoted above to “the agreements with the English firm” is a reference to the documents in evidence at trial setting out the terms of the de facto husband’s partnership.  These documents include the firm’s letter of offer to the de facto husband of 13 April 2016 with its attached schedule called “Amended Australian Ladder”, setting out the prospective rate of partner progression in the firm, and a memorandum dated 29 April 2016 together with other documents referred to in each.  In summary, as earlier referred to, the de facto husband is remunerated by way of a share of distributable profits paid in British pound sterling on a monthly basis in gross (before tax) amounts.  A partner’s entitlement to distributable profits is calculated by reference to the number of what are known as partner “base points” held by the partner in respect of the year.  A partner may accumulate base points per year and there is the prospect of also receiving what are referred to as “bonus points”.  There are specific “gates” in the points progression at 18 points, 23 points and 28 points respectively of the Amended Australian Ladder.  This means that progression past each of those points is performance based and conditional upon approval of local and global practice group management within the firm. 

6. The evidence at trial is summarised by the trial judge at [49] to [54] of the reasons.  As also earlier referred to, with respect to the de facto husband’s first year of partnership the partnership distributed a predetermined portion of budgeted distributable profits during the (UK) financial year, budgeted at 60 per cent of the anticipated annual profit and commencing in August following the completion of that financial year, the balance 40 per cent of (actual) profit for the previous year is paid in monthly instalments for 12 months.  Thus, in his first year of partnership, it was not until August 2017 that the de facto husband commenced receiving the balance 40 per cent of distributable profits by way of monthly instalments.  In subsequent years there is a 50 per cent/50 per cent apportionment between budgeted profits paid and the balance of distributions commencing in August following the completion of the (UK) financial year.

7. As is referred to by the trial judge in the paragraphs of the reasons referred to, the de facto husband commenced in the partnership in May 2016 on 18 base points and anticipated moving to 20 base points as of 1 May 2017.  The de facto husband’s application to adduce further evidence on appeal is directed to demonstrating that he did not in fact receive any allocation of further points in May 2017 and that, in effect, his progression in the firm, and thus his level of earnings, has not advanced in the manner anticipated at trial.  It is submitted by the de facto husband that the further evidence therefore demonstrates that the finding the trial judge made and relied upon as to the de facto husband’s future earnings has proven to be wrong.

8. The de facto wife opposes the de facto husband’s application to adduce further evidence, save for one element of it.  The evidence at trial was that in 2016 the amount of distributable profit per point was £37,937.  Part of the de facto husband’s further evidence is a drawings statement issued to the de facto husband disclosing that the distributable profit per partner base point has risen to £42,356.  Mr Richardson of Senior Counsel for the de facto wife submitted that this Court could accept it is an uncontroversial fact that the drawings per point is that higher figure, but beyond that the application of the de facto husband to adduce further evidence on appeal was opposed. 

9. Admitted as an aide-memoire on the hearing of the appeal is a document entitled “Income Projections of the De-Facto Husband” prepared by the de facto wife’s lawyers with reference to the Amended Australian Ladder earlier referred to, in response to the de facto husband’s further evidence application.  It is convenient to set out that document in full as follows:

   INCOME PROJECTIONS OF THE DE-FACTO HUSBAND

[The English firm] Points per Partner	Points Per partner Based upon Drawings Statement issued to De-Facto Husband dated 10.01.2018)	TOTAL income projection per Annum GBP	TOTAL Income Projection Per Annum (AUD) Exchange Rate (Based upon the RBA exchange rate 08.02.2018) 1 AUD = £0.56 1 GBP = $1.78
1.	18	£42,356	£762,408	$1,357,086.24
2.	19	£42,356	£804,764	$1,432,479.92
3.	20	£42,356	£847,120	$1,507,873.60
4.	21	£42,356	£889,476	$1,583,267.28
5.	22	£42,356	£931,832	$1,658,660.96
6.	23	£42,356	£974,188	$1,734,054.64
7.	24	£42,356	£1,016,544	$1,809,448.32
8.	25	£42,356	£1,058,900	$1,884,842.00
9.	26	£42,356	£1,101,256	$1,960,235.68
10.	27	£42,356	£1,143,612	$2,035,629.36
11.	28	£42,356	£1,185,968	$2,111,023.04
12.	29	£42,356	£1,228,324	$2,186,416.72
13.	30	£42,356	£1,270,680	$2,261,810.40

1. Mr Kirk of Queen’s Counsel for the de facto husband was at some pains in his oral argument to emphasise, firstly, that it was far from clear what actual timeframe the trial judge had in mind by his reference to “in the short to medium term”.  By a process of cross-referencing to what the trial judge recorded at [38] of the reasons about the de facto wife’s need to undertake only part time work due to the parenting needs of the children and his Honour’s reference in that context to that continuing “for the medium term” – a period of eight years by reference to when the youngest child would commence high school – Mr Kirk submitted that “short to medium term” must be an intended reference by the trial judge to a period up to eight years. 

2. Whilst the period up to eight years is probably accurate, it would seem to us that this is because the employment timeframes the trial judge had in mind can be gleaned when [54] and [55] of the reasons are read together and are considered with the evidence there being referred to.  Those paragraphs are as follows:

   54.Given the assumptions in the memorandum for admission to full membership for base points to grow over 15 years and that the de facto husband asked [single expert Ms E] to adopt for her report that same period, I am satisfied that the de facto husband’s present intention is that he will remain a partner in [the English firm] for the next 15 years.  I make this finding notwithstanding his evidence as to the short/medium term nature of his type of work in the context of his employment.

   55.Given the de facto husband’s historical earnings, and the agreements with the English firm he is likely to earn towards $2 million per year in the short to medium term.

   (Emphasis added)

3. The de facto husband was 44 years of age when he swore his affidavit for trial and when he gave oral evidence at trial.  At paragraph 253.3 of his affidavit, whilst the de facto husband expressed that he did not anticipate working in the firm “for more than another 10 - 15 years” he also emphasised that “many partners” withdraw from the firm “at the age of about 52 or 53 years” and indeed he deposed to partners being encouraged to retire at this age and indeed to be “squeezed out of the firm” at this age.  Obviously enough, as at trial the de facto husband was about eight years away from turning 52 years of age.

4. Read in proper context then it would seem that the trial judge clearly had in mind that the de facto husband would probably continue to work as a partner in the English firm “for the next 15 years” and that the reference to the “short to medium term” was a reference to the period of about eight years (to when the de facto husband would turn 52 years of age) given that characterisation by the trial judge. 

5. In making these observations we ought to emphasise that we do not consider it essential to be able to vest precision in a term or form of expression used by the trial judge – “the short to medium term” – which is not amenable to precision – to be satisfied as to the trial judge’s meaning or reasoning process.  The expression “earn towards $2 million per year” (emphasis added), would seem an equally deliberate choice by the trial judge not to express a finding in precise or absolute terms, or at least reflecting that such a degree of precision was unnecessary.

6. Mr Richardson of Senior Counsel for the de facto wife sought to emphasise that by reference to the evidence as to the de facto husband’s income which was before the trial judge, it would be seen that the further evidence sought to be adduced by the de facto husband is in part inadmissible hearsay; is controversial; and is evidence that as a matter of fairness or justice ought not be permitted to be admitted under s 93A. Part of Mr Richardson’s submissions were directed to showing that, in any event, the further evidence cannot demonstrate error on the part of the trial judge when regard is had to the following evidence considered by the trial judge at trial.

7. At paragraph 238 of his trial affidavit the de facto husband deposes as to his position as a partner in the English firm as follows:

   I joined [the English firm] in May 2016 as a full member of [the English firm] with 18 base points.  I anticipate moving to being a partner with 20 Base Points as and from 1 May 2017.

8. At paragraph 253.2 of his affidavit the de facto husband swore:

   Having regard to the Amended Australian Ladder, I anticipate that after the first 3 years of my being a partner at [the English firm], my partner base points (currently 18) will be somewhere between about 21 and 25.  There are “gates” referred to within the Amended Australian Ladder at 23 and 28 points respectively.  This means that a partner of [the English firm] does not proceed beyond these gates to achieve additional partner base points unless he or she demonstrates sustained over-performance;

   (Emphasis added)

   On this evidence, and of course subject to a wide range of variables (including the stability of profits in the firm/exchange rates to name just two) by reference to the income projections quoted above, after his first three years of partnership, that is as at May 2019, 21 points translates to income of about $1.58 million and 25 points translates to income of about $1.88 million.  Importantly, the de facto husband’s own evidence infers that an initial three years of partnership was the prospective period needed to assess the future thereafter, and then his points/income could fall anywhere within the fairly wide range the de facto husband himself nominates.

9. As part of paragraph 253.3 of his affidavit the de facto husband deposes:

   ...Absent a significant change in the profitability of my practice (and I see no reason for such a change) and my understanding and observations about the culture of the firm are accurate, I anticipate it will be highly unlikely for me to ever achieve more than about 28 partner base points at [the English firm] over the next ten-fifteen years of potential employment at the firm;

10. It would seem that the fair inference from this evidence is the corollary that the de facto husband anticipated attaining 28 partner base points.

11. At paragraph 253.4 the de facto husband deposes, by reference to the worth of a partner base point in the 2016 financial year at £37,937, that if one were to become a partner with 28 partner base points then by reference to the 2016 financial year value of a base point and applying prevailing exchange rates, a partner holding 28 partner base points could expect to receive approximately $1,796,000 by way of his/her share of distributable profit.  In our judgment, from a starting point of $1.1 million per annum currently, an increase to about $1.8 million can reasonably be described as “approaching” $2 million.

12. The memorandum dated 29 April 2016 earlier referred to refers (at paragraph 2.4) to the agreement that Australian partners will “end on 40 Base Points” and their progression is as set out in the schedule attached being referred to as the Amended Australian Ladder.  Notably, instead of commencing as an Australian partner on 12 base points being what appears to be the usual commencement point, the de facto husband commenced in the partnership on 18 base points.  Mr Richardson’s submissions, which we accept, cross-referenced to the schedule of “Income Projections of the De-Facto Husband” reproduced above, emphasised that on the evidence before the trial judge the de facto husband’s likely progression, as anticipated by him and corroborated by relevant documents, was as follows:

Financial Year	The English firm Points	Points Per Partner	Total Income (GBP)	Total (AUD)
2017	18	£42,356	£762,408	$1,357,086.24
2018	20	£42,356	£847,120	$1,507,873.60
2019	21	£42,356	£889,476	$1,583,267.28
2020	22	£42,356	£931,832	$1,658,660.96
2021	23	£42,356	£974,188	$1,734,054.64
2022	25	£42,356	£1,058,900	$1,884,842.00
2023	26	£42,356	£1,101,256	$1,960,235.68
2024 (8 years)	27	£42,356	£1,143,612	$2,035,629.36
2025	28	£42,356	£1,185,968	$2,111,023.04
2026	29	£42,356	£1,228,324	$2,186,416.72
2027	30	£42,356	£1,270,680	$2,261,810.40

1. Of course, if the historical lesser figure for base point worth in the 2016 financial year is used the projection figure reduces accordingly, as demonstrated by reference to paragraph 253.4 of the de facto husband’s affidavit to which we earlier referred.

2. The further evidence the de facto husband seeks to adduce on appeal includes the fact that the de facto husband remained on 18 base points for the financial year ending 30 April 2018.  That is, that he did not progress to 20 base points as at 1 May 2017 as he had anticipated, nor was the de facto husband awarded any bonus points.  As to this, Mr Kirk submitted:[7]

   So the husband’s potential progression in this partnership, which the trial judge accepted, can no longer be valid, in my respectful submission, because we know as a matter of fact now, from the further evidence, that he didn’t get through gate 18 and he didn’t get any bonus points at all.  And one can only but assume that the other gates that exist, which are gates 23 and 28, will become progressively harder to get through.  They will be much harder to get through than gate 18.

   [7] Appeal transcript, 21 February 2018, p 14 ln 12–17.

3. To similar effect as his other submission Mr Kirk further submitted:[8]

   …had the trial judge been aware that he wouldn’t get through gate 18, he wouldn’t go to 20 points, he would get no bonus points, then the assessment of his future progress would be very different to what he has determined it to be in his reasons. 

   [8] Appeal transcript, 21 February 2018, p 15 ln 4–7.

4. It bears emphasis, as highlighted by Mr Richardson, that Mr Kirk’s submissions concerning the de facto husband’s future progression in his firm, whilst the subject of the application for further evidence, was not supported by independent evidence from the firm.  That is, the de facto husband called no evidence from any manager or management group within his firm, as part of his application to adduce further evidence on appeal, so as to demonstrate that the de facto husband’s further progression in the firm was forestalled.  Mr Richardson also emphasised that there were no documents advanced by the de facto husband from his firm setting out the detail of any discussions with, or determination by, the firm as to the de facto husband’s points allocation with respect to May 2017.

5. As we raised with Mr Kirk during argument of the appeal, the trial judge was in the position of having to assess a hypothetical future period of 15 years for the de facto husband.  That is, as with any hypothetical assessment, the proof of which is necessarily unobtainable, the Court must engage in a hypothetical assessment.[9]

   [9] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

6. In our judgment the de facto husband’s arguments concerning the trial judge’s finding expressed at [55] seek to invest that finding with a degree of exactness or certitude that, given the subject matter and evidence concerning that subject matter, could not reasonably be supposed to have been intended by the trial judge. Nor, given the manner of the trial judge’s expression, could that be said to be an intention to which effect was given. In addition to what the trial judge recorded at [55], as general as that is, the trial judge also recorded at [212] (in the discussion of relevant s 90SF(3) factors):

   …The de facto husband works as a partner in [the English firm] and earns a substantial income.  That income is likely to increase over the years.  There is a huge and growing disparity in the levels of income earned by each party and the future income earning capacities of the parties.

   In the same context the trial judge also recorded at [214] of the reasons:

   The de facto husband submits that his remuneration is not fixed and depends on the profitability of [the English firm].  That is the case, however, his agreement builds in increases and bonuses.  He has a history of being a high earner and I am satisfied that is likely to continue, given his proven abilities in that regard over many years.

7. In referring to the de facto husband’s “historical earnings” the trial judge was referring, as a starting point, to established historical facts as earlier referred to, namely, that the de facto husband had earned taxable incomes of $1,625,995 in 2013; $1,723,172 in 2014 and $2,172,187 in 2015.  Clearly the trial judge was referring to that history in the references at [55] and [214].  Moving from those established facts there were, obviously, a host of potential variables with respect to a 15 year future period of assessment.  Not the least of those variables included whether the de facto husband would necessarily remain with the English firm throughout that period or move to another firm; the level of profitability of that international firm over such an extensive period; and the progress of the de facto husband within that practice should he remain a partner.  As already noted, the de facto husband’s own evidence about his position after being in the English firm after the first three years of partnership reflects variables.

1. The essential task of the trial judge, in making the determination of property adjustment orders, as regards the earning capacity or future earnings of each party, was to make a fair comparison between the parties, rather than there being any imperative of reaching, in absolute terms, exact conclusions about what each would actually earn over the next 15 years.

2. On any view of the evidence including the many variables applicable to the de facto husband’s circumstances to which we have referred, the disparity of earning capacity between the parties was rightly described by the trial judge as “huge”.  It was not necessary for the trial judge to provide a mathematical justification for that conclusion.  The evidence amply justified it.  Examples are illustrative.  In the 2016 year, in less than every three weeks of that year the de facto husband earned more than was earned by the de facto wife for the entire year.  Similarly, actuarial calculations of the present value of future sums can exemplify the disparity.  The difference between about $12,000 net per week for the de facto husband and $824 net per week for the de facto wife, as at trial, is obvious.  At a continuation of those rates (without allowing for any increases for either party) the de facto wife would take about 15 years to earn the equivalent of a single year’s earnings for the de facto husband. 

3. In our judgment it puts proper context to the finding of the trial judge at [55] and the manner of expression of that finding to keep proper focus upon the emphasis legitimately given by the trial judge to the disparity between the parties, reflected ultimately in the 15 per cent adjustment made in the de facto wife’s favour giving rise to a capital disparity of about $2.3 million.

4. The power conferred by s 93A(2) of the Act for this Court to receive further evidence on appeal upon questions of fact, and the exercise of the discretion involved in the exercise of that power, were considered extensively by the plurality of the High Court (McHugh, Gummow and Callinan JJ) in CDJ v VAJ.[10]  The principles there described have frequently been cited and do not bear repeating.  

   [10] (1998) 197 CLR 172.

5. The further evidence sought to be adduced by the de facto husband on the topic of his future prospective income is highly contentious. The de facto wife said that she would wish to test and examine all that transpired concerning the apparent non-allocation of additional points to the de facto husband on 1 May 2017. There is also substance in the de facto wife’s contention that, at least in part, the de facto husband’s affidavit evidence is hearsay, with source evidence from the firm not forthcoming. However, quite apart from these aspects, we are not persuaded that the remedial purpose of s 93A(2) is met by the admission of this further evidence.

6. We are not persuaded that the fact that the de facto husband was not allocated more points in May 2017 results in the conclusion that the de facto husband’s progression over the next 15 years is permanently forestalled or materially different to the position considered by the trial judge.  Centrally, that the de facto husband did not receive further points in May 2017 does not displace the “huge” disparity between the parties as regards their respective earning capacities.  In short, we are not persuaded that the further evidence directed to this topic demonstrates that the orders under appeal are erroneous. 

7. The application to adduce further evidence on the topic of the de facto husband’s future income should be dismissed. 

8. Likewise, we find no merit in the contentions underpinning these grounds of appeal that the trial judge made errors in the findings expressed concerning the de facto husband’s future prospective income. 

(b)      Did the trial judge make material errors of fact concerning the distribution payments to the de facto husband commencing in August 2017? – Grounds 1.1 and 4

1. We have already made reference to the fact that with respect to the first year of the de facto husband’s partnership (ending April 2017) he was to be paid 60 per cent of his share of budgeted distributable profits via monthly payments and then in August 2017, monthly payments of the balance of actual profits for the year would commence to be paid for 12 months. 

2. We accept that in dealing with the topic “[b]alance of [the English firm] partnership payments for 2016/2017” the trial judge appears to have had an erroneous understanding that a single lump sum was payable to the de facto husband in August (rather than monthly instalments from August) and that the trial judge made errors of calculation in the sum payable.

3. Having referred at [11(h)] of the reasons for judgment to the de facto husband being “entitled to a payment in August 2017”, at [144] to [146] of the reasons the trial judge recorded this:

   144.The de facto husband is entitled to the balance of his partner entitlements for period of May 2016 to April 2017.  I have referred to this earlier.  This sum is not due until August 2017 and will be taxable income in the hands of the de facto husband in the 2017/2018 financial year.

   145.This distribution to the de facto husband is for the balance of his entitlements for 2016-2017 from [the English firm].  This unknown sum was in part earned at the date of the trial, but has not been paid nor has the precise amount been determined.  Forty per cent of $504,000 is $201,804.  This sum, less tax of about 47 cents in the dollar, leaves an amount of about $107,000 net payable to the de facto husband.  However, this is probably not property, and is a financial resource to which I can have regard.  There is no action which the de facto husband can take to enforce that amount and it only becomes a settled amount in August 2017.  Further, not to deal with this would impose an injustice upon the de facto wife.  It is more likely than not that this amount has accrued or should have accrued by this time.

   146.Accordingly, what I propose to do pursuant to s 90SF(3) of the Act is to have regard to this when dealing with the other factors and order an adjustment to the de facto wife’s share of the property of $74,869. Relevantly, s 90SF(3)(r) of the Act provides:-

   The matters to be taken into account are:

   (r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

4. The trial judge’s calculation in [145] appears to be based upon only the $504,510.21 the de facto husband received in the period 9 May 2016 to 9 January 2017, rather than being based upon the total prospective receipts to the end of April 2017.  Moreover, it appears the trial judge calculates 40 per cent of $504,000 to determine the balance sum the de facto husband was entitled to receive, as opposed to calculating what 40 per cent equates to if $504,000 is 60 per cent of the entitlement.

5. Nevertheless, despite what appear to be significant errors in calculation, it can be seen that the trial judge did not include any further amount or sums of money in the schedule of property interests set out at [125] of the reasons.  Moreover, notwithstanding that the trial judge expressed an intention at [146] to make an order for payment to the de facto wife with respect to the sum (wrongly) calculated, in the end result the proposed sum of $74,869 is not reflected in the property settlement orders the trial judge actually made, nor does it find reflection in the breakdown of the payment of $988,681 to be made to the de facto wife, as is set out in detail at [232] and [233] of the reasons for judgment.

6. In the result then, the errors to which we have referred cannot be characterised as material.[11]  That is, the trial judge did not in fact adjust the de facto wife’s property settlement entitlement by making an order in her favour in the miscalculated sum referred to in [146] of the reasons or indeed any sum.  In short, any errors of the trial judge on this aspect do not find reflection in the orders made. 

   [11] De Winter and De Winter (1979) FLC 90-605.

7. We therefore find no substance in Grounds 1.1 or 4 of the appeal.

(c)      Did the trial judge make material errors of fact concerning the N property and the de facto husband’s expenses? – Grounds 2.1 and 2.3

1. At [42] to [46] of the reasons for judgment the trial judge sets out the facts relating to the de facto husband’s post-separation acquisition of what is conveniently referred to as “the N property” for a purchase price of $1.7 million.  At [42] the trial judge refers to the de facto husband’s “somewhat cavalier approach to disclosure”.  In this context the comment pertains to the de facto husband not informing the de facto wife of the subject purchase until after contracts had exchanged. 

2. The de facto husband’s application to adduce further evidence includes some further evidence concerning this property, including as to its sale since the trial.  In particular, the de facto husband expresses his disquiet about the trial judge’s finding at [45] of the reasons that “[t]he de facto husband dissembled in some areas of his evidence about his intentions regarding keeping [the N property]”.  In his affidavit in support of his application to adduce further evidence the de facto husband expresses that he remains “deeply shocked” that the trial judge would make this finding and sets out events subsequent to the trial concerning his eventual sale of the N property.

3. At [46] the trial judge notes that the de facto husband was paying rent of $2,050 per week in addition to mortgage repayments for the N property in the sum of $1,115 per week. The trial judge further notes that “[t]he de facto husband’s evidence was that [the N property] was or would be habitable with a few minor changes” and that while a person was residing in the N property for a short time, that arrangement was coming to an end (at [45]). These findings are consistent with the de facto husband’s evidence in cross-examination.[12]

   [12] Transcript of Proceedings, 25 January 2017, pp 170 and 173.

4. It can be seen that the trial judge made a number of observations throughout the reasons for judgment somewhat critical of the de facto husband’s “cavalier” approach to disclosure (see, for example, at [3], [4], [42], [100], [181] and [254(d)]).

5. However, nothing in the reasons suggests that the trial judge ultimately placed any weight or emphasis on the de facto husband’s decision to rent separate premises as opposed to living in the N property.  At [100] and [101] of the reasons the trial judge said:

   100.The de facto husband gave evidence in relation to [the N property].  He was cavalier in keeping the de facto wife appraised of that purchase, although perhaps his concern was that it would undermine the purchase or that the purchase came quickly.  The de facto husband conceded that he had discussed with his girlfriend a number of options, including them living together.  He was careful in his evidence, although there were times when he was not as careful as the de facto wife.  It is clear that if the de facto husband lived at [the N property] he would save about $104,000 per year in rent, and he conceded that the home, with some minor changes, could have been occupied by him and the children.  His evidence in relation to [the N property] was that the architect rendered bills to either his girlfriend or his girlfriend and himself.  In any event, he paid them.  He provided no documentary evidence of any reimbursement by his girlfriend.  She was not a witness to these proceedings.  The de facto husband says that he has formed no intention to cohabit with his girlfriend at this stage.

   101.The de facto husband gave evidence as to his expenses.  He was not as accurate or had not been as meticulous as the de facto wife in that regard. 

6. None of that observed by the trial judge regarding the de facto husband’s expenses appears inconsistent with the de facto husband’s oral evidence at trial. 

7. In particular, to the extent that the trial judge’s observations can be characterised as criticisms of certain aspects of the de facto husband’s evidence, the ultimate central finding of the trial judge recorded at [109] is:

   109.The de facto husband’s evidence was not seriously impeached by cross-examination. There were some aspects of his evidence which were a little troubling however, it was probably more a matter of being cavalier and angry at the de facto wife rather than any deliberate endeavour to conceal assets, facts or documents. 

8. Whether or not the trial judge’s characterisation of the de facto husband’s disclosure as “cavalier” was fair or justified, we fail to see any substance in the contentions that the trial judge made any errors concerning the N property reflected in the orders made ultimately; or that the trial judge gave unfair or undue weight to the evidence of the de facto husband concerning the N property. 

9. Moreover, we fail to see how the further evidence the de facto husband seeks to adduce on appeal with respect to his dealing with the N property satisfies any of the criteria for the admission of further evidence on appeal as discussed earlier, or demonstrates any error at all by the trial judge.

10. For these reasons we reject the application to adduce further evidence and we find no merit in the de facto husband’s challenges on appeal directed to this issue.

(d)      Did the trial judge err “in finding that the [de facto husband] consented or agreed to the payment of private school fees for each of the children and/or that he had (and would have) the income necessary to meet the same”? – Ground 3

1. As a starting point we do not accept the premise of this ground, namely, that the trial judge made a finding to the effect that the de facto husband consented to an order being made that he pay school fees.

2. The trial judge stated:

   16.Final parenting orders were made by consent on 23 January 2017.  In those orders there was provision for the children to attend private schools in the event that they did not attain places in NSW State selective high schools.  The de facto husband conceded in evidence that, in those circumstances, the children should attend private school and said he was likely to pay those fees.  The de facto husband said that he understood that the fees would range, in present terms, between $25,000 and $30,000 per year.  The de facto wife had made no enquiries as the cost of school fees.  The de facto husband conceded that he has income to meet school fees and the de facto wife does not. Given that evidence the de facto husband ought to be required to pay private school fees, if any, (given the nature of the parenting orders).

3. Further, the trial judge observed:

   103.In relation to school fees he acknowledged that he will end up paying these fees if they occurred, and I note that he consented to the children attending private school if their endeavours to find places at NSW state selective high schools were not achieved.  He conceded that he had agreed to that course.

4. The “concession” to which the trial judge refers in his reasons is plainly a reference to the following exchange in the course of the de facto husband’s oral evidence under cross-examination:[13]

   [13] Transcript of Proceedings, 25 January 2017, p 180 ln 37–45 and p 181 ln 6–15.

   What’s your position in relation to future school fees, [Mr Walters]?---What do you mean what’s my position?

   Well, the parenting orders that were made the other day contemplate - - -?

   
   

   ---Yes.

   - - - an order? ---Yes.  Potentially sending the kids to private schools.

   Yes.  What’s your position in relation to payment of private school fees?

   
   

   ---Well, I assume that I will end up paying them. 

   …

   And in terms of private schools you would have made inquiries, wouldn’t you, about what you might be looking at fees wise?---You might be surprised there.  No, I haven’t.  I – I know generally what private school fees in Sydney cost.

   Yes.  What’s that?---I think it’s around, you know, 20 to 30 thousand bucks a year depending on the school and the year.

   And you would expect to be paying those if the children were to go to, for instance, [X Primary School]?---Well, yes, if they were going and didn’t have a scholarship.  I don’t see where else the money is coming from.

5. This evidence was given in the context that, as already referred to, the parties had agreed to consent to parenting orders made on the first day of the trial.  Those orders have specific provisions about the children’s schooling in Orders 19 and 20.  Those specific provisions contemplate the children attending either public schools, if possible, or in the alternative a number of private schools are nominated.  Thus it can be seen that it was common ground between the parents that if the children are unable to attend a New South Wales state selective school (public school), they would attend one of the agreed private schools as per the nominations in the consent orders made.

6. As also earlier noted, the de facto wife’s application for further evidence on appeal, which ultimately was unopposed and allowed on that basis, confirms that the parties’ oldest child has in fact been accepted into a New South Wales state selective school.

7. The challenge to the order the trial judge made in relation to the payment of school fees will be dealt with as part of the challenges to child support departure orders the trial judge made.  However, in the context of contentions about errors of fact or errors concerning the evidence made by the trial judge, this challenge does not, in our judgment, have any substance. 

8. In summary, in the context of the consent parenting orders that had been made on the first day of trial, the trial judge was readily able to infer from the de facto husband’s oral evidence that the de facto husband conceded to the capacity, and indeed likelihood, of him paying private school fees in the event that such fees were ultimately to be incurred.  The trial judge did not in fact find that the de facto husband consented to or agreed to the payment of private school fees.  All that is noted by the trial judge is the concession referred to made by the de facto husband in giving his evidence.  We are not persuaded of error as identified in Ground 3 of the appeal, separate and distinct from the challenges directed to child support departure generally, which we will deal with later in these reasons. 

9. We are not persuaded that any of the de facto husband’s challenges directed to the trial judge’s findings of fact are made out.  It follows that those various grounds of appeal we have discussed which depend upon one or other of these challenges being sustained, must fail.

Challenges to the contributions findings – Grounds 7 to 10

1. The parties agreed at trial that their respective contributions until separation were to be assessed as equal, and the trial judge adopted that conclusion as being supported by the evidence (reasons at [8], [24] and [186]).

2. The factual background of this case already referred to, with the de facto husband being an exceedingly high income earner; whilst the de facto wife undertook primary responsibility for care of the three children of the relationship and homemaking; informs the parties’ agreement.  In this context the agreement can be seen to reflect recognition by both parties, in accordance with legal principle, not only that the de facto wife made indirect contributions and contributions in the role of homemaker and parent, but that her contributions should be seen as equal to those of the de facto husband up to the date of separation. 

3. The de facto wife contended at trial, and the trial judge ultimately accepted, that the parties’ contributions for the entirety of the relevant period until trial, including the post-separation period, ought be assessed as equal (reasons at [10] and [204]).

4. As is recorded by the trial judge at [9], it was the contention of the de facto husband at trial (and remains his contention on appeal) that with respect to the post-separation period (1 February 2014 until trial in January 2017) the proper assessment of contributions overall results in a 60 per cent/40 per cent apportionment in his favour primarily by reason of:

   a)The de facto husband’s income earning and capital accumulation in the post-separation period; and

   b)The de facto wife’s allegedly excessive spending in that period. 

1. In other words, on the identified net property interests of $7,640,851 the de facto husband contended for a disparity in his favour of 20 per cent, worth in dollar terms about $1.53 million, by reason of the factors identified.

2. When the parties separated in February 2014 the children were aged almost eight years; five years and the youngest only about five months, respectively.  It was not in issue that the de facto wife had always been primarily responsible for the care of the children (reasons at [94] and [114]).

3. It was not in issue at trial that upon the respective births of each child of the relationship the de facto wife primarily cared for each child, whilst the de facto husband was primarily engaged in income earning.[14]

   [14] See, for example, paragraph 8 of de facto husband’s Case Outline document filed 20 January 2017.

4. Unsurprisingly, the trial judge made a finding that the de facto wife cared for the children and enabled the de facto husband to pursue his career (reasons at [203]). The de facto wife provided unchallenged evidence at trial as to the significant extent of the de facto husband’s hours of work.[15]

   [15] Transcript of Proceedings, 24 January 2017, p 63.

5. As earlier referred to, subsequent to the parties’ separation the de facto husband received substantial sums of money both from the US firm and from the English firm as was accepted by the trial judge (reasons at [32] – [35]; [49] – [50] and [187]).  It bears emphasis that all of the funds available to the de facto husband post‑separation came from the US firm or the English firm and from no other source.  It was thus via his earning capacity, the acquisition of which had been contributed to by the de facto wife, that in the post-separation period the de facto husband was able to:

   ·Purchase the N property (reasons at [42] and [200]);

   ·Spend significant funds on an architect (reasons at [44]);

   ·Contribute $453,231[16] to the acquisition of his partnership interest in the English firm (which reduced in value to $182,182 as at trial) (reasons at [49] and [200]);

   ·Pay $250,000 towards the mortgage on the N property (reasons at [58] and [200]);

   ·Pay various mediation and expert expenses (reasons at [153]);

   ·Pay $235,000 to the de facto wife (reasons at [157]);

   ·Pay $208,042.09 in legal costs and expenses (reasons at [161]);

   ·Accumulate some savings (reasons at [201]); and

   ·Make voluntary superannuation contributions of $85,000 (reasons at [201]).

   [16] See page 9 of the de facto husband’s Case Outline document filed 20 January 2017.  Elsewhere referred to as $453,203.

6. It is not in issue that the de facto husband’s income earning post-separation proceeded in the context of the de facto wife continuing to be primarily responsible for the homemaking and caring of the three children of the relationship; albeit that over time the de facto husband progressively participated in having the children in his care.

7. The trial judge’s reasons for judgment reflect that the trial judge was plainly aware of the de facto husband’s contentions with respect to the assessment of post-separation contributions (reasons at [9] and [187]).  Indeed commencing at [187] the trial judge addressed what was described as “[o]ne of the significant arguments” concerning the de facto husband’s capital and income contributions post-separation.  This was all in the context of the de facto husband contending that he ought to be given credit for his income earning efforts in the

   
   

   post-separation period and via his accumulation of capital to the extent of that credit being reflected in a significant adjustment or apportionment in his favour. 

8. However, the trial judge rejected the de facto husband’s contention in the following terms:

   193.I do not adopt the submissions of senior counsel for the de facto husband.  I accept the submissions of senior counsel for the de facto wife that substantially things continued as before, that is that the de facto wife continued to be the primary carer of the three children, including one very young child, and that the de facto husband continued to earn income from a partnership, the capital base which was at least substantially created during the course of the parties’ cohabitation.  The income, the return of capital and the payment for the year reflected the contributions of both parties over many years.  Part of it is tangible in terms of the de facto husband’s income, but part of it is intangible in terms of the de facto wife’s contributions in supporting him and caring for the children over the same period of time the parties were together.  In practical terms very little changed between early 2014 and early 2016 except that the parties’ relationship soured as they were unable to reach a settlement of property issues. 

9. We accept the submission by the de facto wife that “it must be uncontroversial that [the de facto husband’s] professional reputation, experience and ability were developed, enhanced and recognised during the relationship and the period during which the [de facto wife] continued contributions post separation”.  We also accept that the de facto wife’s contributions did not cease upon separation but continued much to the same extent, albeit in a different context, to the date of the trial. 

10. In arguing the grounds of appeal directed to the contribution findings, Mr Kirk acknowledged that most of these challenges amounted to matters of weight.  Mr Kirk properly acknowledged the difficulties confronting challenges as to weight, no doubt conscious of the well-known statement of the High Court in Gronow v Gronow[17] which, again, has frequently been referred to and does not need repeating. 

    [17] (1979) 144 CLR 513, 519–520.

11. To this may be added the emphasis given in authorities to the feature that assessing contributions under s 79 (and likewise under s 90SM(4)) is not a mathematical exercise.  For example, in Lovine & Connor[18] the Full Court observed:

    40.Contribution, either direct or indirect and financial or non-financial, to any of acquisition and/or conservation and/or improvement to property (whether or not such property has ceased to be held) or to the welfare of the family or children, falls for consideration.  No order of priority is attached to individual elements.  The evaluation occurs often, as in this case, with respect to such disparate kinds of contribution made over a substantial period.  Such evaluation, having regard to its subject matter, inevitably involves value judgments and matters of impression.

    41.It follows that the assessment involves matters of estimation and is not, and cannot be, a mathematical exercise.  No amount of devotion to mathematics is capable of transforming a discretionary exercise involving many component parts, each mostly unamenable to precise computation, into one of aggregating separately finely calculated components to reach an overall outcome.

    42.As part of the process of ultimately determining just and equitable orders under s 79 there is included a complex of discretionary assessments and judgments of many components of contribution, only some of which are capable of measurement in money terms and then often only in historical, rather than present, money terms.  Any dictate to the effect that in the course of assessment each disparate component part or kind of contribution must be assigned a discrete and identifiable value or percentage is antithetical to the nature of the discretion involved.

    [18] (2012) FLC 93-515 (“Lovine”).

12. To similar effect, and relevant to the contentions of the de facto husband here that particular aspects ought to have received discrete treatment by the trial judge, the Full Court observed in Dickons v Dickons[19] as follows:

    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.

    25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving over-zealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524; 65 ALR 12 at 18; 10 Fam LR 819 at 825; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.

    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.

    [19] (2012) 50 Fam LR 244.

13. It was well within the ambit of the trial judge’s discretion to conclude that the de facto husband’s diligent pursuit, in the post-separation period, of his income earning capacity, the acquisition of which the de facto wife had contributed in the manner discussed, did not mandate that some adjustment or apportionment in favour of the de facto husband had to be made.  Much of the capital available to the de facto husband in the post-separation period came from the negotiated settlement of his exit from the US firm partnership.  As earlier referred to, the de facto husband became a member of that firm in 2009, some 10 years after the parties’ relationship had commenced and at a time when the de facto wife was primarily responsible for the first two of the parties’ children, who were then aged approximately three years and one year respectively.  Plainly, the vast majority of the de facto husband’s time with the US firm pre‑dated the parties’ separation.  To characterise, as the de facto husband seeks to do in his Summary of Argument, his post-separation acquisition of the N property (mainly using the US firm-produced capital) as him being “directly responsible” for the acquisition of a net asset worth $1.5 million at trial, ignores the de facto wife’s contributions to which we have earlier referred. 

14. With respect to Ground 8 and the N property, the essence of the de facto husband’s argument, as contained in his Summary of Argument and as pursued in oral argument on appeal by Mr Kirk, is that the trial judge was seemingly critical of the de facto husband’s non-occupation of the N property whilst incurring substantial costs renting elsewhere (reasons at [46]); and whilst the trial judge indicated he would have “regard to these circumstances in regard to the adjustment of property” (reasons at [47]), it could not be seen how the trial judge had so done.  We reject that submission. 

15. Commencing at [100] of the reasons the trial judge revisits the topic of the N property and discusses it in some detail, including also a discussion as to the de facto husband’s evidence concerning his expenses.  That culminates with the following conclusion:

    109.The de facto husband’s evidence was not seriously impeached by cross-examination. There were some aspects of his evidence which were a little troubling however, it was probably more a matter of being cavalier and angry at the de facto wife rather than any deliberate endeavour to conceal assets, facts or documents. 

16. It can readily be concluded that even if the trial judge’s observations concerning the N property can properly be characterised as criticisms of, or findings adverse to, the de facto husband (which is unnecessary for us to decide) there was no material consequence.  That is, there is no material reflection of such criticisms or adverse findings in the determinations ultimately made.  The complaint thus has no substance.

17. As to the de facto wife’s allegedly excessive and unreasonable expenditure in the post-separation period, the de facto husband’s Summary of Argument properly acknowledges that the trial judge was not required to “undertake some form of ‘accounting’”.  In contrast to that acknowledgement, the argument advanced by the de facto husband seemingly proceeds on the footing that indeed “some form of ‘accounting’” was required. 

18. The trial judge was plainly aware of the de facto husband’s contention concerning alleged excessive expenditure by the de facto wife (reasons at [9]).  Having had the advantage of observing the de facto wife undergo

    
    

    cross-examination, including on the topic of her expenditure, the trial judge made these relevant observations about the de facto wife’s evidence concerning expenditure:

    81.In cross-examination the de facto wife was criticised in terms of claimed expensive accommodation which was, at least on one occasion, similar to that paid by the de facto husband. 

    82.The de facto wife gave cogent evidence in her affidavit, in chief, and in cross-examination.  She said that she could not entirely support herself without spousal maintenance or diminution of her capital.  I was particularly impressed with her evidence contained in her financial statement, which showed impressive thought and preparation.  I accept that it is the case given her need and desire to be the primary carer for the parties’ three children, and in the context of the part time work she is undertaking.

    …

    90.When cross-examined about the level of spending for the children the de facto wife conceded that she expected to reduce that level of expenditure.  This was one of the admissions she made against interest.

    …

    96.The de facto wife listened to the questions carefully and answered them frankly, and at times against her interest.  She was cross‑examined in relation to her estimate of expenses.  Her evidence was impressive.  She was thoughtful, careful and worked hard to ensure that her answers were as accurate as could be and when not exact that they were reasonable estimates.  She would not concede that they were guesses, and frankly her work in terms of her expenses was as good as any witness I have seen in this Court.  I am satisfied that she made a genuine and honest attempt to estimate the expenses for her and her children as set out in her financial statement, in particular Part N.

    97.The de facto wife presented as an intelligent, thoughtful and considered witness.  She clearly took her evidence seriously and took the preparation of her documents seriously.  Her evidence was not in any way materially impeached, although it is clearly coloured by her own perception of the events.  I regard her evidence as generally reliable.

19. At [119] of the reasons the trial judge expressed the following overall conclusion about the expenditure of each party:

    119.These parties led a very good life, having regard to the significant income earned by the de facto husband.  The de facto husband’s implicit criticisms of the de facto wife for spending too much and for being profligate were at times disingenuous given the comments I have made in relation to his accommodation costs such as leaving [the N property] untenanted and his own use of money on [recreational equipment] and presents for his girlfriend and his costs of holiday accommodation at times since separation.

20. The reference there to “the comments I have made” concerning the de facto husband is apparently a reference to, at least, what appears at [105] and [106] of the reasons as follows:

    105.The de facto husband has travelled at times with his girlfriend and her family, and has at times paid for relatively expensive accommodation.

    106.In relation to his allegations of profligacy by the de facto wife, the de facto husband spent $22,000 for membership of the Sydney Cricket Ground, he spent a modest amount of money on furniture, but spent relatively large amounts of money on [recreational equipment], holidays and a present for his girlfriend. 

21. The authorities repeatedly emphasise the position of disadvantage of appellate judges as compared with a trial judge where findings of fact rely upon the assessment made of credibility of witnesses.[20]  It also bears emphasis that in Robinson Helicopter Company Inc v McDermott[21] the High Court (French CJ, Bell, Keane, Nettle & Gordon JJ) described the approach of a court of appeal to a finding of fact by a trial judge as follows:

    43.…[a] court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.  If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.  But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”…

    (Footnotes omitted; emphasis added)

    [20] Abalos v Australian Postal Commission (1990) 171 CLR 167, 178 (McHugh J); Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron & McHugh JJ); Dearman v Dearman (1908) 7 CLR 549, 553 (Griffith CJ); Fox v Percy (2003) 214 CLR 118, [23] (Gleeson CJ, Gummow & Kirby JJ).

    [21] (2016) 331 ALR 550.

22. Nothing to which Mr Kirk directed us on this appeal demonstrates that the trial judge’s ultimate finding of fact concerning the de facto wife’s expenditure is wrong by reference to “incontrovertible facts or uncontested testimony” or is “glaringly improbable” or “contrary to compelling inferences”.

23. The final complaint in this context relates to the trial judge recording at [126] of the reasons as one of the de facto husband’s liabilities the item “[t]ax payable on balance of [the English firm] partner drawings due to de facto husband for the period May 2016 to January 2017”.  Next to that item is the text “[c]onsidered and taken into account in terms of contributions and the other factors”.  The contention on the part of the de facto husband is that it cannot be seen from the reasons how this item has been considered and taken into account.

24. We do not accept that it was incumbent upon the trial judge to identify and discretely reflect each and every relevant consideration or factor within the process required in the holistic assessment of contributions.  That is, we do not accept the premise upon which this complaint is founded.  Whilst the trial judge was required to give consideration to relevant factors in reaching an overall conclusion, that requirement did not extend to an exposition about each and every discrete factor as reflected in the final conclusion.  Whilst often cited in the context of discussing the adequacy of reasons, the judgment of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd[22] is relevant in this context.  In discussing the assessment of damages his Honour observed (equally relevant to the task of assessing contributions), that: [23]

    Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard…

    (Authorities omitted)

    [22] [1983] 3 NSWLR 378, 386.

    [23] Cited with approval in Lovine at 86,597 and see also Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156.

1. We find no substance in the challenges directed to the trial judge’s assessment of contributions.  The conclusions the trial judge reached were open on the evidence and it is not demonstrated that such conclusions were beyond the bounds of a legitimate exercise of discretion. 

Challenge to the s 90SF(3) findings – Grounds 11 to 13

1. Unsurprisingly, the s 90SF(3) matter of overwhelming significance in this case was the de facto husband’s earning capacity and prospective future earnings and the consequent disparity in these respects as between the parties.

2. We need not repeat, but we reiterate and refer to, what we have earlier discussed about this topic in dealing with the asserted errors of fact concerning the trial judge’s findings as to the de facto husband’s income and prospective future earning capacity and the de facto husband’s application to adduce further evidence directed to those aspects.  In particular, we reiterate what we have observed about the nature and extent of the disparity between the parties’ respective capacities to earn income in the future. 

3. At trial, it was this factor which resulted in the de facto husband contending that a 10 per cent adjustment ought be made in favour of the de facto wife for s 90SF(3) factors, albeit from his starting point on his case of a contributions assessment to the de facto wife of 40 per cent.  The submission of the de facto wife before us, to the effect that, given the discretion involved if a 10 per cent adjustment is correct, a 15 per cent adjustment cannot be characterised as plainly wrong, is not without some substance.

4. On the basis of the findings recorded at [49] to [56] the trial judge considered the de facto husband’s income at [213] to [217] as part of the overall assessment of s 90SF(3) factors.  The trial judge made findings in relation to a number of those factors in [205] to [226] of the reasons for judgment.

5. We reiterate that the income earning disparity between the parties assumed overwhelming significance in relation to consideration of the s 90SF(3) factors overall.  Nothing to which the de facto husband directed us on appeal in relation to these grounds satisfies us that the trial judge was in error in determining a 15 per cent adjustment to the equal assessment of contributions pursuant to s 90SF(3). 

Conclusion on appeal from the property settlement orders

1. We find no substance in any of the de facto husband’s grounds of appeal challenging the property settlement orders made by the trial judge.  It follows that the appeal from the property settlement orders is to be dismissed.

2. The property settlement orders included provisions (Orders 3 and 4) for sale of the real property known as “the L property” and distribution of sale proceeds.  We were informed on the hearing of this appeal that such orders had not been put into effect pending the outcome of this appeal.  Both parties, via their respective counsel, expressed confidence as to the ability of the parties to agree upon, by consent orders if necessary, a revised timetable for the sale of the L property when the outcome of the appeal became known.  Out of an abundance of caution we will include provision for the parties to have liberty to apply to this Court, in the event that further orders are required to be made by this Court, but we note that s 90SN(2) provides a mechanism for the parties to agree for consent orders to be made at trial level to regulate this.

The child support determination – Grounds 15 to 19

1. For the reasons which follow we are satisfied that the trial judge’s determination of the child support orders was infected by errors and that those errors are productive of injustice to the de facto husband.  Consequently, we are satisfied that there ought be a grant of leave to the de facto husband to appeal those orders and for those orders to be set aside.

Requirements of the legislation

1. Division 4 of Part 7 of the Assessment Act contains the statutory powers for a Court to make orders to depart from the provisions of the Assessment Act relating to administrative assessment of child support. Those statutory powers are informed by the following statement of “additional particular objects” of that Division, as expressed in s 114 as follows:

   Additional particular objects of Division

   Additional particular objects of this Division include ensuring:

   (a)that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and

   (b)      that parents share equitably in the support of their children.

2. Section 117 of the Assessment Act details the matters as to which a Court must be satisfied before making a departure order. It is well settled[24] that s 117 involves discrete steps. First, is whether one or more of the grounds expressed in subsection (2) has been established. If so, the Court must then consider whether any proposed order is “just and equitable” and “otherwise proper”. Section 117(4) is expressed in mandatory terms. Relevantly for present purposes, the section contains in subsections (a) to (f) the following:

   [24] Gyselman and Gyselman (1992) FLC 92-279 (“Gyselman”); Hides v Hatton (1997) FLC 92-759; Child Support Registrar & Crowley (2015) FLC 98-066.

   (4)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:

   (a)the nature of the duty of a parent to maintain a child (as stated in section 3); and

   (b)      the proper needs of the child; and

   (c)the income, earning capacity, property and financial resources of the child; and

   (d)the income, property and financial resources of each parent who is a party to the proceeding; and

   (da)the earning capacity of each parent who is a party to the proceeding; and

   (e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

   (i)       himself or herself; or

   (ii)any other child or another person that the person has a     duty to maintain; and

   (f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; …

3. Whilst subsection 4(d) requires the Court to have regard to “the income, property and financial resources of each parent…”, s 117(7A) further provides:

   (7A)In having regard to the income, property and financial resources of a parent of the child, the court must:

   (a)have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income;

   …

   (Emphasis added)

4. In Gyselman the Full Court observed:[25]

   As we have already indicated, the exercise under s 117 involves three steps. The first, which we have already examined, is whether one or more of the grounds in sub-section (2) has been made out. The legislation then requires the Court to consider whether any proposed order is “just and equitable” and “otherwise proper”.

   Section 117(4) provides that “in determining whether it would be just and equitable as regards the child, the custodian entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to…” the matters set out in paragraphs (a) to (g) of that

   
   

   sub-section. The Legislature has made it clear that the Court is required to undertake that task. However, some of the matters listed in sub-section (4) may overlap with matters already considered under sub-section (2) and some of the paragraphs in sub-section (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s 117 exercise to carry out the obligation under

   
   

   sub-section (4).  However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs.  The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section (2).

   [25] (1992) FLC 92-279, 79,078.

Errors of the trial judge

1. We are satisfied that in the circumstances of this case it was essential that the trial judge undertake a proper determination of the de facto wife’s capacity to share in meeting the proper needs of the children having regard to her “income, property and financial resources” following the making of the s 90SM property settlement orders the trial judge proposed to make. Section 117(4)(d) and s 117(7A) mandate that the Court have regard to the de facto wife’s capacity to derive income from capital under her control particularly in circumstances where the s 90SM orders the trial judge proposed to make would vest approximately $5 million in capital to the de facto wife.

2. Whilst in various places in the reasons for judgment the trial judge makes reference to the s 90SM property settlement orders in general (for example, at [256] and [303]), we are unable to see how the trial judge actually had regard to the de facto wife’s capacity (or not) to derive income from capital under her control in considering her “income, property and financial resources”.

3. We consider that error in this respect on the part of the trial judge is established.  In short, taken from the reasons for judgment the position is either that the trial judge failed to undertake this mandatory consideration, or failed to explain adequately in the reasons how that consideration was undertaken. 

4. Further, determination of each of the proper needs of the children (s 117(4)(b)) and the direct and indirect costs incurred by the de facto wife as primary carer (s 117(4)(f)) required consideration being given to the existing and future care arrangements for the children under the parenting orders; and the consequent expenses of the children being met by the de facto husband whilst in his care.  We are unable to discern from the reasons for judgment of the trial judge that this material consideration was taken into account. 

5. Next, whilst the trial judge concluded that the de facto wife contribute the sum of $200 per month per child towards the children’s expenses (at [335] and [336]); and, by inference, considered the de facto wife ought be responsible for 10 per cent of gap medical expenses (as referred to at [347]); there is no explanation within the reasons for these conclusions.  That is, the trial judge does not explain, or provide any basis, for the conclusion that this apportionment represents an equitable sharing in child support.  The trial judge appears to assign to the de facto wife an arbitrary amount or proportion rather than explaining how that amount or that proportion derives from findings as to the mandatorily required relative capacity to meet established expenses.  In short, the trial judge does not adequately explain how the consequent child support orders to be made, in light of these conclusions, are “just and equitable” and “otherwise proper”.

6. Finally, we have earlier discussed the trial judge’s finding at [16] that the de facto husband conceded in evidence that he was likely to pay any private school fees incurred for the children.  That discussion was in respect of the challenge to that finding as one asserted to have been an error of fact, a challenge which we have rejected.  However, in the present context, it needs to be acknowledged that the de facto husband’s evidence and concession was made at a time when the de facto husband was unaware of the trial judge’s (subsequent) determinations about s 90SM orders, and more particularly periodic child support orders.  On our review of the reasons for judgment, the trial judge seemingly focused only upon the high level of the de facto husband’s income as being determinative, without further analysis of what the de facto husband could afford and what was a just and equitable sharing of expenses between the parents.  The non-periodic child support expenses, in particular potential private school fees, were nebulous and unquantified.  In our judgment the trial judge wrongly failed to consider, or provide reasons as to, the de facto husband’s capacity to meet expenses of the children having regard to his other expenses and the unquantified non-periodic expenses.  Again, the legislation makes a proper consideration of those matters a mandatory pre-condition to the ultimate conclusion.

7. In light of these fundamental errors it seems to us to be unnecessary to traverse each and every of the other errors contended for by the de facto husband with respect to the child support orders.  Our satisfaction that these identified errors are established results in the conclusions earlier expressed as to the warrant for the grant of leave to appeal and the setting aside of the child support orders.

The maintenance determination – Grounds 20 to 23

1. On 22 August 2016 the trial judge made interim orders for the de facto husband to pay the de facto wife the sum of $923 per month by way of spousal maintenance.  The final orders made on 18 May 2017 (amended 2 June 2017) provide for such maintenance to continue until settlement of the sale of the L property and then increase to $1,174 per month until 31 December 2025 (ie when the parties’ youngest child is due to commence high school).  This sum is not subject to increase due to CPI indexing.

The de facto husband’s capacity to pay spousal maintenance

1. Grounds 20 and 21 relate to the first stage of the threshold test, namely the capacity of the de facto husband to meet some or all of any shortfall incurred by the de facto wife.

2. In relation to this challenge, the de facto husband contends that the trial judge did not give adequate reasons for finding at [360] that the de facto husband had “excess disposable income to meet the maintenance order which I am considering in these reasons”.

3. We agree that the trial judge’s reasons are deficient in this respect.  The de facto husband asserts an average shortfall of $537 per week in his Financial Statement filed 17 January 2017.  The orders made by the trial judge provide for the de facto husband to pay maintenance to the de facto wife in the sum of $213 per week, eventually increasing to $270 per week upon settlement of the sale of the L property (in addition to $2,354 per week in periodic child support plus non-periodic child support).

4. The trial judge indicates at [388] and [390] that he has had regard to ss 90SF(3)(n) and 90SF(3)(q), namely the intended property settlement and child support orders, when considering the de facto wife’s spousal maintenance application.  Yet, his Honour’s proposed orders contemplate child support orders in a substantial amount.  We are unable to see where in his Honour’s reasons the de facto husband’s financial capacity to meet a maintenance order takes account of that fact.  Similarly, in seeking to calculate capacity, we are unable to see where his Honour has considered that the de facto husband will not have a shortfall if he ceases renting and resides in his N property.

5. More broadly, his Honour’s reasons can be seen to give little or no attention to the de facto husband’s expenses and instead focus on his income and the likelihood of an increase in that income in the future.

6. On the evidence before this Court, the de facto husband would not appear to have the capacity to meet the spouse maintenance calculated after he meets his child support obligation (even assuming that he ceases renting and moves into the N property).  If his Honour considered otherwise it is, with respect, not apparent from the reasons how that conclusion was reached.

7. There is substance in this challenge.

The de facto wife’s need for spousal maintenance

1. Grounds 22 and 23 are directed to the second limb of the threshold test, namely the de facto wife’s need for maintenance.

2. At trial, the de facto wife sought maintenance in the sum of $1,361 per month until the end of 2025 (or $314 per week).  The de facto wife’s Financial Statement filed 17 January 2017 demonstrates a weekly shortfall of $1,268 (excluding child support, Family Tax Benefits and children’s expenses).

3. The trial judge reduced particular expenses claimed in Part N (reasons at [363]) and concluded that the de facto wife’s reasonable average weekly shortfall was $271:

   393. The de facto wife has reasonable living expenses of about $1,195 per week.  She earns about $824 per week leaving a shortfall of about $271 per week, totalling about $1,174 per month…

4. We consider that there are three fundamental difficulties with this approach:

   a)First, it is unclear where the sum of $1,195 per week comes from.

   Having regard to the de facto wife’s evidence at Part N of her Financial Statement (ie that her average weekly expenses totalled $1,145) less the reductions indicated by the trial judge at [363] (ie $30 for hairdressing, $30 for miscellaneous, $50 for holidays and $60 for private health care), the trial judge should have found that the de facto wife had reasonable living expenses of about $975 per week;

   b)Second, the trial judge’s calculation of shortfall at [393] is incorrect.  Weekly expenses of $1,195 less income of $824 equates to a shortfall of $371 per week (not $271); and

   c)Finally, by reference to those findings and the evidence before him the trial judge should have concluded that the de facto wife’s average weekly shortfall was $151 (being $975 less $824), not $271.

5. The trial judge expresses his consideration to the amount being paid to the de facto wife pursuant to the property settlement orders:

   388.Section 90SF(3)(n) requires the Court to consider the terms of any order made or proposed to be made under s 90SM in relation to the property of the parties.  I have done so.  The de facto wife will have a significantly larger share of the parties’ property pool, and the de facto husband notwithstanding the child support liabilities and a likely maintenance order, he will have a very strong and likely increasing steam [sic] of income.

6. With respect to the trial judge, more than the bare expression of a conclusionary finding, unsupported by any reasoning as to how that conclusion was reached, was necessary.  Specifically, there needed to be explanation as to how it could be that the de facto wife’s needs were completely unaffected by the feature that she was to retain or receive substantial capital under the property settlement orders worth approximately $5 million.  There appears to have been no evidentiary basis to support a conclusion, as no such evidence was adduced by the de facto wife in her case, that the capital she was to receive or retain would be wholly (and reasonably) deployed to her housing, and the housing of the children, leaving her claimed needs as identified completely unaffected. 

7. In short, the trial judge was obliged to explain how the conclusion referred to could be reached in light of the (important) feature of the de facto wife’s significant property entitlement.  The failure to so do constitutes error.

Conclusion on appeal from maintenance orders

1. The order for maintenance as contained in Order 17 of the orders made by the trial judge must be set aside. 

2. It was not suggested that this Court could re‑exercise the discretion and these proceedings, together with the child support proceedings, will have to be remitted for rehearing by a trial judge other than Benjamin J.

The overall or cumulative effect of the orders – Ground 14

1. Given the conclusions expressed above it is strictly unnecessary to deal specifically with this ground of appeal. 

2. However, we would observe that there was no requirement according to any recognised legal principle that the trial judge have regard to the cumulative effect of the orders made.  That is, the trial judge was not obliged to consider the cumulative effect to determine the content of the orders otherwise properly made by way of property settlement; child support; and maintenance respectively. 

1. Clearly, as we have explained, the trial judge was obliged to carefully consider the de facto wife’s maintenance application in the context of the capital she was to receive under the property settlement orders and also having regard to the proposed child support orders.  Beyond that, there was no independent or

   
   

   stand-alone requirement for the trial judge to consider the cumulative effect of the orders made.  Each of the discrete causes of action for the respective orders fell to be considered on their own merits.

Costs

1. The de facto husband’s appeal from the property orders has been wholly unsuccessful but his appeal from the child support orders and the maintenance order have enjoyed success.

2. That factor, together with a consideration of s 117(1) and the other matters referred to in s 117(2A) of the Act do not justify an order for the payment by one party to the other for costs pursuant to s 117 of the Act.

3. However, as the appeals from the child support orders and the maintenance orders have succeeded by reason of errors of law; and there will be the need for such proceedings to be remitted for rehearing; each party should have the benefit of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) both in respect of the child support appeal the maintenance appeal and the rehearing of those issues.

I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Kent JJ) delivered on 28 November 2018.

Associate: 

Date:  28 November 2018