Wen & Thom

[2010] FamCAFC 81

FAMILY COURT OF AUSTRALIA

WEN & THOM [2010] FamCAFC 81

FAMILY LAW – PROPERTY PROCEEDINGS – APPEAL FROM A DECISION OF FEDERAL MAGISTRATE – Not established that Federal Magistrate’s Reasons for Judgment inadequate in circumstances of the case – Discussion of authorities relating to adequacy of judicial reasons – Not accepted that judicial reasons necessarily inadequate if revelation of reasons process reliant upon “implications” –
Not established that the learned Federal Magistrate erred in the weight given to the husband’s initial contributions – Not established that the Federal Magistrate erred in the section 75 (2) adjustment to the wife – Not established that the learned Federal Magistrate erred in finding that the overall result was just and equitable

Family Law Act 1975 (Cth) - section 75 (2)

Allesch v Maunz (2000) 203 CLR 172
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
House v The King (1936) 55 CLR 499
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Kardos v Sarbutt [2006] NSWCA 11
Mallett v Mallett (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Pierce v Pierce (1999) FLC 92-844
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24

APPELLANT: Mr Wen

RESPONDENT: Ms Thom

FILE NUMBER: MLC 6669 of 2007

APPEAL NUMBER: SA 62 of 2009

DATE DELIVERED: 23 April 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Melbourne

JUDGMENT OF: Coleman J

HEARING DATE: 26 March 2010

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 15 June 2009

LOWER COURT MNC: [2009] FMCAfam 627

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Nikou QC

SOLICITOR FOR THE APPELLANT: Plaza Legal

COUNSEL FOR THE RESPONDENT: Mr Wood

SOLICITOR FOR THE RESPONDENT: Forte Lawyers

Orders

1. That the husband’s appeal be dismissed.

2. That the wife’s application to adduce further evidence in the appeal be dismissed.

3. That submissions in support of any application for costs be filed within 21 days.

4. That submissions in opposition to submissions in support of any application for costs be filed within 14 days thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Wen & Thom is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 62 of 2009
File Number: MLC 6669 of 2007

Mr Wen

Appellant

And

Ms Thom

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Amended Notice of Appeal filed 12 November 2009 Mr Wen (“the husband”) appealed against orders made in proceedings for settlement of property between himself and Ms Thom (“the wife”) by Federal Magistrate Riethmuller on 15 June 2009.

2. The orders of the learned Federal Magistrate provided that the property of the parties be apportioned between them as to 47.5 per cent to the husband and 52.5 per cent to the wife.

3. In lieu of those orders, the husband sought that this Court re-exercise the discretion of the learned Federal Magistrate, and make orders more favourable to him than those made by his Honour.

4. The wife resisted the husband’s appeal and sought to maintain the orders of the Learned Federal Magistrate.

5. On 11 December 2009, the wife filed an application for leave to adduce further evidence in the appeal pursuant to s 93A of the Family Law Act 1975 (Cth) (“the Act”).

6. The husband resisted that application.

The Judgment of the Federal Magistrate

1. The proceedings which the Federal Magistrate heard and determined involved parenting and property settlement issues. There has been no appeal against the orders made by his Honour in the parenting proceedings.

2. The parenting proceedings related to the two children of the parties, C born in April 2006 and J born in January 2008. The children are now respectively aged 4 and 2 years old.

3. The learned Federal Magistrate’s orders provide that the child C live with the husband each week from Thursday morning to Sunday morning and at other specified times.

4. His Honour’s orders provide that the child J currently spend two hours with the husband each Tuesday and from Friday morning until Saturday morning. As and from 10 July 2010, that time becomes from 8am Thursday to 6pm Saturday until J attains 3 years of age, at which time he is to spend the same time with the husband as is C pursuant to the orders of 15 June 2009. The orders made by the learned Federal Magistrate also provide for what might be called “special occasions”.

5. The husband was born in 1966, and the wife in 1976. The parties married in May 2003, commenced cohabitation in late 2003, and substantially cohabited until May 2006. By June 2007 the parties were engaged in litigation with respect to various matters.

6. The learned Federal Magistrate commenced his consideration of the property settlement proceedings before him by reference to s 79 of the Family Law Act 1975 (Cth) (“the Act”) and to a number of authorities providing guidance as to how proceedings pursuant to the section were to be approached. No part of the present appeal turns on any aspect of his Honour’s observations in that regard.

7. The competing applications of the parties were identified. It is not suggested that such identification involved any error or misapprehension as to what the parties were seeking. His Honour recorded, accurately, the percentage entitlements urged upon him on behalf of the parties with respect to their superannuation and property interests.

8. The learned Federal Magistrate recorded the agreement of the parties that their total net assets were worth $1,174,274.00. Two pieces of real estate represented the assets of the parties. The first was a house at P worth $600,000.00 which was occupied by the wife. That property was subject to a mortgage of $318,726.00. The other real estate property of the parties was located at S, and was worth $893,000.00. That property was occupied by the husband.

9. The superannuation interests of the parties were agreed. The husband’s superannuation was worth $255,567.00. The wife’s superannuation was worth $15,762.00.

10. His Honour concluded on the limited material available to him that the contributions of the parties with respect to the superannuation interests should be assessed in proportions of 80 per cent to the husband and 20 per cent to the wife.

11. Whilst it is not in doubt that the learned Federal Magistrate’s conclusion with respect to the contributions of the parties in relation to their non superannuation assets is controversial in this appeal, the husband does not directly challenge his Honour’s conclusion with respect to the contribution based entitlements of the parties to their superannuation interests.

12. Ultimately, his Honour’s assessment of contributions in relation to the superannuation interests of the parties does not assume direct significance as the learned Federal Magistrate, permissibly there seems little dispute, was not asked to and did not make a splitting order with respect to the husband’s superannuation interests in favour of the wife, but made a section 75 (2) adjustment with respect to non superannuation interests in part based upon the difference in value between the husband’s superannuation interests and that of the wife.

13. The wife’s mother had advanced $294,000.00 to the parties, $278,000.00 of which remained outstanding as at February 2004. The difference $16,000.00, was found by the learned Federal Magistrate to have been a gift by the wife’s mother. That finding has not been challenged in this appeal.

14. The balance of the $278,000.00 which the wife’s mother had lent the parties had attracted interest of 5 per cent, the effect of which was to provide the wife’s mother with “similar benefits to a term deposit and the parties a lower interest on borrowings to that which they would have had to pay to a bank”.

15. For reasons which he detailed, the learned Federal Magistrate declined to notionally add back $9,742.18 which he found on the evidence to have been an “over payment” from the wife to her mother in the course of a series of transactions which his Honour detailed. His Honour’s refusal to add back that sum has not been challenged in this appeal.

16. Under the heading “Contributions” the learned Federal Magistrate identified, correctly there is no doubt, that the major contentious issue with respect to contributions was the significance which the contributions of the parties at the commencement of the cohabitation should be held to have in the light of the contributions made by or on behalf of each of them subsequent to the commencement of cohabitation.

17. The learned Federal Magistrate recorded the agreement of the parties that, inclusive of real estate, bank accounts and accrued long service leave entitlements, the husband had assets totalling $498,000.00 at the commencement of cohabitation. The husband also had approximately $119,000.00 by way of superannuation entitlement at about the time cohabitation commenced. There is no challenge in this appeal to either of those findings of fact. Nor has there been any challenge to the learned Federal Magistrate’s rejection of the husband’s contention that his assets at the time of commencement of cohabitation included a further $60,000.00.

18. The learned Federal Magistrate found that the wife bought to the cohabitation $68,000.00 net. That finding is uncontroversial for present purposes.

19. The learned Federal Magistrate concluded that the contribution based entitlements of the parties, other than superannuation interests, should be assessed at 62.5 per cent to the husband and 37.5 per cent to the wife. Such conclusion translated as $733,921.25 to the husband and $440,352.75 to the wife, or a disparity of $293,568.50. The unchallenged findings of fact made by the learned Federal Magistrate produced an initial disparity of non superannuation assets of $430,000.00 in favour of the husband.

20. In the context of his evaluation of relevant section 75 (2) factors, the learned Federal Magistrate recorded that the orders he proposed making “would not affect the earning capacity of either party to the proceedings”.

21. His Honour also recorded that the husband was aged 42 years and the wife 32 years old, and that both were in good health. His Honour found that the parties “would be able to obtain and maintain employment in the future”.

22. The learned Federal Magistrate accepted that it was reasonable for the wife to continue in the role of homemaker and primary carer at least until the time “the youngest child starts prep” pending which it was “likely that the wife would continue to have part time work”.

23. The learned Federal Magistrate considered the husband to be “at or near the peak of his career” whilst the wife had her “career in front of her, and will probably have it largely on hold until the children are older”. The husband was earning approximately $118,000.00 per annum, whilst the wife “when working fulltime could expect to earn around between $65,000.00 and $75,000.00 per annum based upon her past employment”. His Honour observed that the disparity of earnings would “also result in significantly different superannuation contributions, particularly over the next few years”.

24. The learned Federal Magistrate recorded that he had regard to “the large disparity of assets and financial resources of the parties, based upon my findings with respect to contributions” As noted earlier, that disparity approximated $294,000.00 with respect to non-superannuation assets. It approximated $240,000.00 with respect to superannuation assets.

25. The superannuation interests of the parties were considered in some detail in the light of what each was seeking and not seeking before the learned Federal Magistrate. His Honour concluded that “the fact that the husband has a large superannuation entitlement must be taken into account in any adjustment under the third step”, by which he meant pursuant to s 75 (2) of the Act.

26. Reference was then made to the children of the parties and to the reality that “the greater portion” of the care of the children would be with the wife. For reasons which he detailed, the learned Federal Magistrate did not consider s 75 (2) (d), s 75 (2) (e), or s 75 (2) (f) to be relevant. His Honour recorded that both parties would be able to maintain a reasonable standard of living in the future.

27. For the reasons which he had detailed, the entitlements of neither party were not considered to be impacted by s 75 (2) (h) or s 75 (2) (k).

28. The learned Federal Magistrate had regard to the ability of the husband to arrange his fulltime work around childcare, and to the likelihood that the care of the parties children would “have a greater impact on the wife” than the husband.

29. For reasons which he also detailed, the learned Federal Magistrate accepted the wife’s contention that it was not reasonable to expect that she would return to fulltime work as soon after the birth of the parties’ second child as she had after the birth of the parties’ first child.

30. Neither s 75 (2) (n), s 75 (2) (m) or s 75 (2) (o) was considered relevant to the determination of the s 75 (2) adjustment in the wife’s favour.

31. His Honour thus concluded that a 15 per cent adjustment in favour of the wife was required with respect to the property of the parties.

32. The Learned Federal Magistrate then concluded whether the result he proposed was just and equitable. His Honour set out in that regard:

    226.The result of the orders is to leave both parties with a home. The wife’s home is valued at $600,000 and will be unencumbered. She will also receive a cash payment from the husband of $16,493.85. The husband will retain a home worth around $893.000, but with a mortgage of around $335,000. Whilst the husband will have less property than the wife, it is in part reflective of the significant disparity in superannuation, where the wife is left with less than $16,000 and the husband with over $250,000.

33. His Honour thus considered the proposed outcome to be just and equitable.

Grounds of Appeal

1. The husbands Amended Notice of Appeal articulated three grounds which provided:

   1.The learned trial Judge erred in the weight given to the husband’s initial contributions.

   2.        The learned trial Judge erred in the s 75 (2) adjustment to the wife.

   3.The learned trial Judge erred in finding that the overall result was just and equitable.

2. In her written summary of Argument on behalf of the Husband however, senior counsel submitted that “there are no adequate reasons to support the assessment of contributions to the property in RFJ (Reasons for Judgment) para 195 at 62.5%:37.5% in favour of the husband”.

3. Senior counsel for the husband’s submissions further asserted that “it is not possible to discern the path by which the learned trial judge reached his decision within accepted principles as to the duty to give reasons”. Those submissions were filed on 12 November 2009.

4. In his submissions in reply on behalf of the wife, filed 15 December 2009, counsel for the wife asserted:

   14.Insofar as the Husband now seeks to assert (in his submissions,           albeit it not one of the grounds of appeal) that there are inadequate reasons, there is no basis for such an assertion. His      Honour dealt with each of the respective kinds of contributions made by each of the parties. It is clear he took all relevant contribution based matters into account.

5. As the transcript of the hearing of the appeal would confirm, early in the course of senior counsel for the husband’s oral submissions, the Court sought to clarify whether the husband in fact sought to agitate a “reasons challenge” before this Court. Why the Court sought that clarification is readily apparent in the light of the matters outlined above.

6. Unsurprisingly in the circumstances, senior counsel for the husband sought leave to further amend the husband’s Notice of Appeal in order to specifically raise a challenge to the adequacy of the learned Federal Magistrate’s Reasons for Judgment with respect to the contribution entitlements of the parties. In support of that application, senior counsel submitted, correctly there can be little doubt, that so doing could not take counsel for the wife by surprise.

7. Counsel for the wife submitted, again with justification, that whilst the matters referred to above were indeed raised in the course of submissions, there had not, prior to the hearing of the appeal, been any attempt to amend the grounds of the appeal to expressly raise such a challenge. It was further submitted, also with some justification, that by as long ago as 15 December 2009, counsel for the wife had been in effect suggesting that the “husband put up or shut up” in relation to the adequacy of the learned Federal Magistrate’s Reasons for Judgment.

8. The force of the submissions in favour of granting leave to amend the husband’s Amended Notice of Appeal is apparent, as is the force of the wife’s opposition to that course. Whilst not resiling from his primary position, counsel for the wife accepted that, provided that he have the opportunity to make further written submissions with respect to the adequacy of the learned Federal Magistrate’s Reasons for Judgment with respect to the contribution entitlement of the parties, he could not fairly suggest any prejudice to the wife if leave was granted to amend the husband’s grounds of appeal.

9. Senior counsel for the husband, whilst pressing for leave to amend the Amended Notice of Appeal to add a ground challenging the adequacy of the learned Federal Magistrate’s Reasons for Judgment with respect to the contributions of the parties, opposed counsel for the husband having the opportunity to make further written submissions.

10. The Court granted leave to amend the Husband’s Amended Notice of Appeal to raise a challenge to the adequacy of the learned Federal Magistrate’s Reasons for Judgment with respect to the contribution entitlements of the parties, and ordered that counsel for the wife have 14 days within which to file any further written submissions with respect to that topic, and 7 days thereafter senior counsel for the husband could respond to any such submissions.

11. On balance, the Court is satisfied that the course which it has adopted in relation to this topic is fair to both parties, and conducive to the broader interests of justice. It is regrettable that the Amended Notice of Appeal was not amended to expressly raise a “reasons challenge”. To be on notice of a complaint of that kind, which is never sought to be converted into a formal challenge by way of a ground of appeal ought not in the Court’s view place a party in the position of the wife in this appeal in the position of being denied the opportunity to make further submissions if and when, as has transpired, a submission formally becomes a ground of appeal.

The Adequacy of the Reasons for Judgment of the learned Federal Magistrate

1. The authorities which govern challenges to the adequacy of reasons for judgment in judicial proceedings are not in doubt, and do not require extensive restatement in the context of this appeal. Some brief reference to the authorities however is perhaps helpful.

2. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279, McHugh JA said:

   … without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.

3. The Full Court followed the decision of Soulemezis v Dudley (Holdings) Pty Ltd (supra) and other authorities in Bennett and Bennett (1991) FLC 92-191. The Full Court said at 78,266:

   Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

1. In Bennett and Bennett (supra) the Full Court further stated at 78,266:

   In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:

   "The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:

   (a)      the appeal court is unable to ascertain the reasoning        upon which the decision is based; or

   (b)      justice is not seen to have been done

   The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."

   We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.

2. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) NSWLR 378 (Tatmar) at 385 Mahoney J recorded:

   There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law: see, for example, Wright v Australian Broadcasting Commission [1979] NSWLR 697; McCarroll v Fitzmaurice [1979] 2 NSWLR 100.

   However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council: Ex parte Nilish Shah [1983] 2 AC 309, at 350. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.

   However, the decision of a particular submission may be an essential part of the judge’s reasoning to his final conclusion. This may be so because it is necessarily so, ie, because he cannot come to his final conclusion without deciding it; or because the reasoning which in fact he follows makes it so. In such a case, the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them. (I put aside cases involving, for example, constitutional or jurisdictional issues, where special considerations may apply.) In my opinion. it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.

3. His Honour further recorded at 386:

   In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion be had to the function to be served by the giving of reasons. Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement: see Pettitt v Dunkley (at 387, 388). But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal.

   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: see O’Hara v Evans (Court of Appeal, 23rd September, 1976, unreported); Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported).

   But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.

4. As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.

5. The basis upon which appellate intervention may be enlivened is not in doubt, and remains as explained by the High Court in House v The King (1936) 55 CLR 499. Dixon, Evatt and McTiernan JJ said at 504-505:

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

6. There is a presumption that the decision of the learned Federal Magistrate is correct in law. In CDJ v VAJ (1998) 197 CLR 172 Kirby J said at pages 230-231:

   1.Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another (159). To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong (160). Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power (161). The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.

   2.Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions (162). This is an inescapable feature of the nature of this jurisdiction (163).

7. The Court has referred extensively to the judgment of Mahoney J in Tatmar because of the reality that, in this appeal, the appellant elected not to include the transcript of the trial before the learned Federal Magistrate in his appeal book. This Court thus does not know what issues were identified as controversial in the course of senior counsel for the husband opening his case. Nor does the Court know the course which the trial took, or what was submitted to the learned Federal Magistrate in closing addresses. Whilst the husband was entitled to elect not to place the transcript of the proceedings before this Court, any difficulties arising from its absence cannot properly prejudice the wife.

8. Senior counsel for the husband essentially maintained that the only revelation of the learned Federal Magistrate’s reasoning process with respect to the contribution entitlements of the parties were paragraphs 194 and 195 which read:

   194.It is appropriate in this case to assess the contributions to the assets and superannuation separately, given the large disparity in initial contributions, the significant amount of superannuation, and that neither party has sought a splitting order. 

   195.I assess the contributions to the property (not superannuation) at 62.5:37.5 in favour of the husband. 

9. It was submitted that such paragraphs gave no indication of the factors which lead the Federal Magistrate to conclude as he did. Senior counsel for the husband reminded the Court that the evidence before the learned Federal Magistrate established that, at the commencement of the cohabitation of the parties, the husband had non superannuation assets worth $498,000.00 net whilst the wife had net assets worth $68,000.00.

10. The disparity in the assets of the parties at the commencement of cohabitation was accordingly in the order of $430,000.00. The effect of the contribution finding of the learned Federal Magistrate was submitted, accurately as a matter of arithmetic, to be that such an imbalance had by virtue of intervening contributions been reduced to $293,568.50.

11. It was submitted that nowhere in his reasons did the learned Federal Magistrate explain how he had come to conclude as he did. It was submitted that, having regard to the duration of the parties’ cohabitation, why the initial disparity of non-superannuation assets favouring the husband by $430,000.00 had been reduced to below $300,000.00 required analysis and exposition in the course of the learned Federal Magistrates Judgment. Such analysis and exposition was submitted to be absent from his Honour’s reasons. They were thus said to be inadequate.

12. As is apparent, the learned Federal Magistrate’s consideration of the parties’ contributions occupied eleven paragraphs of his reasons for Judgment. The first of those paragraphs recorded the terms of s 79 (4) of the Act. The second, accurately identified as the critical issue with respect to contributions in this case, the weight to be given to initial contributions having regard to the time of the contributions and the importance of those contributions. His Honour then recorded what each party had at the commencement of cohabitation.

13. The learned Federal Magistrate then said:

    191.The marriage was of short duration, only 4 years. Both parties worked, and contributed to the household. The husband’s earnings were greater than the wife, in part because of the different points they were at in their careers, and in part because the wife had a child [C]. Both parties were provided with financial assistance by their parents who assisted in their accumulation of assets.  

14. Neither there nor in any other part of his judgment, either with respect to the property settlement or parenting proceedings did his Honour record any specific findings with respect to the respective contributions of the parties by way of homemaking and parenting. Nor did his Honour differentiate between the parties’ pre and post separation contributions. Whilst it is not suggested that his Honour was necessarily obliged to do so, in the circumstances of this case, such an approach would potentially have better revealed the reasoning process which led his Honour to his ultimate conclusion with respect to contributions.

15. The learned Federal Magistrate then referred to money lent by the parents of both parties during cohabitation. His Honour referred briefly, and reasonably so, to a loan of $144,000.00 which had been lent interest free by the husband’s mother for three months in 2004. He also referred to the December 2003 advance by the wife’s mother of $294,000.00, $16,000.00 of which his Honour regarded as “a contribution with respect to the wife. By the time of trial, the whole of the $278,000.00 loan from the wife’s mother had been repaid.”

16. The learned Federal Magistrate found that the parties benefited from the interest rate (5 per cent) payable on the $278,000.00 loan by the wife’s mother. Inferentially, although his Honour did not expressly say so, as with the case of the $16,000.00 gift, that benefit was to be considered “a contribution with respect to the wife”. The contribution continued for a period which approximated five years.

17. His Honour then recorded, uncontroversially for present purposes that it was appropriate to consider the contribution entitlements of the parties to their superannuation interests and non-superannuation interests separately.

18. Senior counsel for the husband submitted that no other paragraphs appearing in the learned Federal Magistrate’s Reasons for Judgment, with respect to the parenting proceedings or the property settlement dispute, could be considered to have shed further light on the reasoning process which led his Honour to conclude as he did with respect to the contribution entitlements of the parties.

19. In his written submissions dated 9 April 2010, counsel for the wife referred to the finding which the learned Federal Magistrate undoubtedly recorded in his Reasons for Judgment, and to which this Court has referred. In addition, counsel for the wife referred to the findings of the learned Federal Magistrate that, between September 2007 and the date of trial, the wife had repaid her mother the sum of $140,109.63 which remained owing to her in September 2007. The Court accepts that his Honour did so find.

20. It was submitted to thus be evident (particularly in the light of his Honour’s later references to the loans from the wife’s mother), that the learned Federal Magistrate had regard, in the wife’s favour, to both the provision of the loan by the wife’s mother, its duration, terms and benefits for the parties, and to the fact that the wife had extinguished $140,000.00 of the loan subsequent to the separation of the parties. Had such sum not have been repaid, the net assets of the parties would have been reduced by that sum.

21. It was thus submitted that:

    11.… all of the references in the judgment to the loan by the Wife’s mother reasonably lead to the conclusion that the learned Federal Magistrate concluded that this arrangement was a significant financial contribution for or on behalf of the Wife. It is submitted that it might reasonably be inferred that the Husband’s initial contribution was seen by the Court in the context of this subsequent contribution.

22. In support of his general contention that the learned Federal Magistrate “made sufficient findings with respect to the financial contributions by the parties to justify and explain the conclusions he arrived at with respect to the issue of contribution”, it was further submitted by counsel for the wife that “although no reference is made to non-financial contributions in the part of the judgment dealing with contributions findings were made elsewhere in the judgment which, it is submitted, may properly be inferred to have had a bearing on the Magistrate’s ultimate conclusions as to the issue of contribution”.

23. It was submitted that paragraph 83 of his Honour’s Reasons for Judgment represented a finding that the wife had been the primary carer of the elder of the parties’ two children during cohabitation. The parties’ second child was born after the parties separated. His Honour said in the paragraph upon which counsel for the wife relied:

    83.The wife explained that, following [C’s] birth in April of 2006, her mother came from Singapore and stayed until December.  The husband cared for [C] until January whilst his office was closed, and the paternal grandmother commenced caring for [C] during the mother’s work days from January 2007. During this time the mother continued to breastfeed [C], although left for work in the morning at around 7 in the morning and returned home between 3.30 and 4. The husband says that he was also significant in caring for [C] after the birth, bathing her, changing nappies and developing a close bond with her. Whilst the wife’s mother is somewhat critical of the father’s parenting skills, it appears clear that he has had involvement with caring for the child, although the wife was child’s primary carer.

24. The Court accepts that, for the reasons which his Honour there detailed, and which are not controversial in this appeal, a finding was made that the wife had made the greater parenting contribution.

25. Counsel for the wife also relied upon the wife having been “a full time mother” who wished to continue in that role. In the paragraph upon which counsel for the wife relied, the learned Federal Magistrate recorded:

    86.The wife hopes to continue in the role of a full-time mother for some time, expecting that [J] will commence attending crèche when he is 11 or 12 months old.  Bearing in mind that she no longer has the full support of the paternal grandmother, and must also care for [C], I have ultimately come to the view that this is a realistic expectation.  

26. With respect to counsel for the wife, other than to the extent that the opening sentence of that paragraph implies that the wife had been a full time mother in the past, the support which can properly be gained from this paragraph is limited.

27. Reliance was placed upon what was asserted to have been “the common agreed facts between the parties” at trial. Counsel for the wife submitted in that regard:

    18.In the Husband’s written submission at trial (at paragraph E1) it is revealed that the parties commenced cohabitation in the United States of America in November 2002 and that the Husband travelled alone to Australia [in] October 2003. The Wife travelled to Australia and joined the Husband [in] February 2004. The parties were married [in] May 2003 and separated under the one roof on 23 May 2007. The parties physically separated and resided in separate premises as from 5 September 2007.  It is submitted that the period of separation of the parties in 2003/2004 is not significant to the extent that, because their relationship was intact at that time, of course, they continued to make contributions. As at the date of the judgment of the Court the parties had been separated for a period of approximately two years.

1. As is not in doubt, the wife gave birth to the second child of the parties after their separation. Counsel for the wife submitted that “it can be inferred that the wife made significant contributions when not enjoying the usual support that one might expect from the husband within an intact relationship. This is not to seek to open a debate as to the level of support provided by the husband with respect to the second child. It is merely an observation that it simply must be more difficult to care for a new born child without all of the usual support that one may expect within an intact marriage”.

2. Counsel for the wife then submitted that “at least by inference” the learned Federal Magistrate had taken into account “the very significant non-financial contributions of the wife both pre and post separation” and had made “sufficient findings with either financial contributions and/or non-financial contributions by the parties to justify and explain the conclusions that he arrived at with respect to the issue of contribution”.

3. This submission of counsel for the wife encapsulates the issue, the determination of which holds the key to the fate of the husband’s challenge to the adequacy of the learned Federal Magistrate’s Reasons for Judgment. At first glance the learned Federal Magistrate could have provided greater insight into the reasoning process which led him to conclude as he did with respect to the contribution based entitlements of the parties than he did. Given the limited material with which this Court has been provided, it is difficult to ascertain whether his Honour should have revealed more of his reasoning process. As noted earlier, this Court does not know what remained controversial at the end of final addresses at trial.

4. As counsel for the wife sensibly acknowledged, successfully resisting the husband’s challenge to the adequacy of the learned Federal Magistrate’s Reasons for Judgment in this case significantly relies upon inferences drawn from limited findings of fact. The Court does not understand the authorities to require a judicial officer to “spell out” in minute detail every step in his or her reasoning process. Indeed, even where that is attempted, in exercising discretion, there is an inevitable “leap” from findings with respect to various matters, to a conclusion with respect to entitlements. The issue in this appeal is whether the foundation for such “leaps” had been laid, or was otherwise apparent.

5. In written submissions in reply pursuant to leave reserved at the conclusion of the hearing of the husband’s appeal, senior counsel submitted that no authority relied upon by counsel for the wife, or otherwise able to be relied upon supported the contention on behalf of the wife that the challenge to the adequacy of the learned Federal Magistrate’s Reasons for Judgment could be resisted in reliance upon implications arising from matters expressly stated in such reasons.

6. It was accordingly submitted that “the duty to give reasons requires the path of reasoning to be explicit”. It was further submitted that the “possibility” of “implying” the path of reasoning does not fulfil the duty to give reasons.

7. Correctly, senior counsel for the husband reminded the Court that counsel for the wife had not cited any relevant authority for “the proposition that the duty to give reasons can be fulfilled by the process of judicial reasoning being discerned ‘by implication’”.  

8. Senior counsel for the husband further submitted, at least inferentially, that even if, contrary to her assertion, “implications” could to some extent be relied upon when discerning the path of judicial reasoning, it could not in the circumstances of this case be inferred that the learned Federal Magistrate had made a number of the conclusions relied upon by counsel for the wife. These included, asserted conclusions with respect to the husband’s initial contributions and/or the loan advanced by the wife’s mother.

9. It was further submitted that it was not possible to infer that the learned Federal Magistrate’s conclusion with respect to contributions had been “based on the relationship between the husband’s initial contribution of $498,000 and the combination of the wife’s mother’s loans and gifts of $294,000”.

10. Senior counsel for the husband asserted that “unless reasons are given explicitly, the duty to give reasons has not been fulfilled because if the possibility of inference is accepted, then the reasons for the duty are not met”.

11. Reference was then made to findings of the learned Federal Magistrate as to the husband’s involvement in caring for the one child who was born prior to the parties’ separation, to his Honour’s finding that the wife had not been forced to return to work following the birth of the parties’ first child and to his finding that the wife wished to continue in her role as a full time mother in the expectation that the second child would commence attending crèche when he is eleven or twelve months old.

12. It was further submitted that:

    15. It cannot be inferred from the judgement [sic] that the Magistrate considered that significant non-financial contributions were of the wife only. The wife agreed that the husband had been involved with the child [C], nursing her playing with etc, prior to the court case. She agreed that the husband had attended the health centre with her and [C] and that he had experience in preparing food for [C]. (see paragraph 114 of the judgement [sic]).

13. A number of submissions, with due respect to senior counsel for the husband, cannot productively inform the current debate.

14. As the submissions of counsel for the parties clearly identify, the real issue raised in this appeal is the extent to which what are generally called “reasons challenges” can be resisted in reliance upon matters which arise by implication from matters expressly recorded in judicial reasons for judgment. The submissions of senior counsel for the husband confirm that the issue is not without uncertainty. The Court accepts that no authority to which it has been referred analyses the issue in terms of “implications”.

15. It is instructive to look to the rationale for judicial reasons. Earlier in these Reasons the Court has set out, rather more extensively than is perhaps usual, the authorities which are relevant to this issue. From those authorities a number of matters emerge as the criteria by reference to which the adequacy of judicial reasons may be assessed. This is of particular significance given that, as the authorities make clear, how much or little of the reasoning process must be explicitly revealed in judicial reasons varies from case to case. The Court is not persuaded that reasons for judgment are necessarily, and inherently deficient on the basis that not every potentially relevant fact or circumstance is referred to. The Court perceives from the authorities that it is a question of degree in every case. Provided that the necessary framework is provided, the fact that discerning the path of judicial reasoning may involve reliance upon implications may not render them inadequate.

16. Answers to the following series of questions, which emerge from the authorities, are instructive when determining whether the judicial reasoning process in this case has been adequately revealed:

    (a)Can the basis of the decision be seen and understood?

    (b)Can the parties see which of their arguments had been understood and accepted as forming part of the basis of the judicial decision?

    (c)Can an appeal court ascertain the reasoning upon which the decision was based?

    (d)Is the losing party denied knowledge as to why his or her case was rejected?

    (e)Did every matter raised on behalf of a party require determination and exposition in judicial reasons?

    (f)Did the judicial reasons fail to address an essential part of the reasoning which led to the judicial decision?

    (g)Were matters complained of on appeal the subject of submissions or otherwise of significance in the proceedings in the court below in a way which called for a reasoned consideration of them?

17. It will be readily apparent that the absence of the transcript of the trial before the learned Federal Magistrate precludes answering questions b, e and g in the affirmative. The husband cannot advance his reasons challenge in reliance upon those factors however. It was always open to the husband to have placed the transcript before this Court. It cannot be assumed that matters not addressed by his Honour were in fact raised with him, or controversial at trial. It is necessary however to consider whether any of the remaining questions should be answered in the negative. 

18. With hindsight, and without knowing how the trial of the proceedings was conducted before him, it would have been preferable for the learned Federal Magistrate to have more clearly and expressly revealed the reasoning process which led him to conclude as he did with respect to the contribution entitlements of the parties to their non-superannuation assets. As is not in doubt, his Honour’s reasons with respect to the parties’ contributions leave aspects of his reasoning process to be inferred. If too much of his Honour’s reasoning process was left to be implied, appellate intervention would be enlivened.

19. The learned Federal Magistrate’s judgment leaves little or no doubt with respect to a number of matters which were relevant to his assessment of the parties’ contributions. These include the husband having made a significantly greater initial contribution to the property of the parties to the marriage than did the wife, and that the husband’s financial contributions from income thereafter significantly exceeded those of the wife. It is clear that the wife provided more of the care for the one child of the parties who was born during their cohabitation than did the husband, and was the primary carer for the second child of the parties who was born after the parties separated. Whatever the extent of the husband’s involvement in the lives of the parties’ children after separation, the wife made the greater contribution as homemaker and parent to them in that period.  

20. In the post separation period the husband clearly had the greater income as between the parties, even after allowing for the financial support which he provided for the wife and the children during that period. The learned Federal Magistrate also clearly relied upon both the provision of a very substantial sum by way of loan on commercially attractive terms from the wife’s mother from December 2003, and to the fact, in post separation period, the wife repaid to her mother the sum of $140,000.00 which remained outstanding after separation.

21. It can be readily inferred from the findings of fact to which reference has been made that the learned Federal Magistrate regarded the contributions of the parties to which he referred as having “eroded” the disparity of initial contributions favouring the husband of $430,000.00 to a disparity favouring the husband of approximately $294,000.00. It could be asked rhetorically on what other basis could such a conclusion have been reached. The Court is not persuaded that the basis of his Honour’s decision cannot be seen or understood. The absence of reference to other factors which militated against his Honour’s conclusion with respect to contributions, but were not referred to, provides some support for that view. So does the reality that, although not articulated in such crude terms, the essential basis of the husband’s challenge to the contribution determination was that it involved an excessive erosion of the husband’s greater initial capital contribution.   

22. As will be seen, any deficiency in the learned Federal Magistrate’s Reasons for Judgment does not preclude agitation of challenges to his decision. This Court is able to sufficiently discern the reasoning process which led the learned Federal Magistrate to conclude as he did with respect to contributions, and determine the husband’s challenges to such conclusion. With respect to the ingenuity of the submissions by his senior counsel, the husband was not left not knowing why his case on contributions was rejected. His Honour did not accept that the husband’s greater initial contribution should withstand “erosion” to the extent that he sought in the light of the other contributions to which reference was made. Significantly, other than asserting that the learned Federal Magistrate’s expressed reasons were inadequate, the submissions of senior counsel for the husband do not really suggest any relevant issue, or fact which should have impacted upon the contribution argument to which reference was not made. The Court is thus not persuaded that any of the remaining questions should be answered in the negative.

23. In all of the circumstances, brief though the learned Federal Magistrate’s Reasons for Judgment with respect to the contributions of the parties were, the Court does not accept that they were inadequate as that term has come to be known.

The Contributions Challenge

1. The crux of the husband’s challenge to the learned Federal Magistrate’s conclusion with respect to contributions was that his Honour could not have reasonably concluded on the evidence before him that the initial disparity of contributions favouring the husband by $430,000.00 could properly have been reduced to a disparity in his favour of approximately $294,000.00. So doing was submitted to have manifestly undervalued the husband’s initial contribution.

2. Senior counsel for the husband submitted that giving the financial and non-financial, direct and indirect contributions of the wife all the weight which his Honour may permissibly have given them, could not reasonably have led to a disparity of contribution entitlements which favoured the husband by only $294,000.00. Such erosion was thus submitted to fall outside the ambit of a reasonable exercise of discretion.

3. With great respect to senior counsel for the husband, the cases to which reference was made in the husband’s outline of argument are ultimately not particularly helpful for present purposes. That is because every case turns on its own facts and circumstances. As the High Court made clear in Mallett v Mallett (1984) 156 CLR 605 the Court must assess the nature and quality of contributions in each case by reference to the facts as found by the Court.

4. Counsel for the wife relied upon the statement of principle emerging from the judgment of Brennan J (as then was) in Norbis v Norbis (1986) 161 CLR 513 at 539-540 in which his Honour said:

   The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at p.345 Asquith LJ. stated the rationale of an appellate court’s approach:

   “It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

   The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference”.

5. It was submitted on behalf of the wife that:

   7.The ultimate finding of the trial judge in relation to contribution based entitlements was 62.5% in favour of the Husband in relation to the non-superannuation assess, and 80% in favour of the Husband in relation to the superannuation assets. It is worth noting that the Husband’s written submissions sought an assessment of 75% for contribution. However, this was based on combining the superannuation and non-superannuation initial contribution (the Husband asserted he had $677,000.00 at the commencement and the Wife $78,000.00 – His Honour did not accept $69,000.00 of the asserted initial capital contribution, but nevertheless the Husband was arguing for a 75% assessment based on a combination of his superannuation and non-superannuation assets at the commencement).

6. Counsel for the wife submitted that the disparity of initial contributions to have been $414,000.00. The difference between that figure and the figure to which this Court has referred is the $16,000.00 which the learned Federal Magistrate treated as a gift from the wife’s mother to the wife. Whilst that was undoubtedly a gift, it was able to be treated as a contribution on behalf of the wife. Whether the initial disparity was calculated as $430,000.00, and the $16,000.00 gift was regarded as a subsequent contribution, or a gift at the commencement of cohabitation makes little difference to the fate of this challenge.

7. It was submitted on behalf of the wife that “while the marriage may have lasted about four years, the reality that by the time judgment was delivered, it had been close to seven years since the relationship commenced. The Wife’s parenting contributions continued to the date of trial, and of course continue into the future.”

8. It was ultimately submitted that the conclusion of the learned Federal Magistrate as to the contribution entitlements of the parties “was entirely within the range and appropriate, having regard to the time which had passed since the disperate [sic] contributions, and the other contributions made since that time, including towards the parenting of the two children of the relationship.”

9. In Pierce v Pierce (1999) FLC 92-844, the Full Court said:

   “In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home” (per Ellis, Baker, O'Ryan JJ at 85-881)

10. In Kardos v Sarbutt [2006] NSWCA 11, Brereton J (as a member of the Court of Appeal of the Supreme Court of New South Wales) said:

    In Pierce & Pierce (1998) 24 Fam LR 377; (1999) FLC ¶92-844, the Full Court of the Family Court (Ellis, Baker and O’Ryan JJ) explained the significance of initial contributions and their “erosion” in a way which makes clear that, with the passage of time in the course of a relationship, substantial initial contributions may in an appropriate case be eroded by the offsetting and ongoing contributions which result more and more in there being a totality of contributions, including of a non-financial kind, not all of which can be satisfied in full out of the available pool.

    …

    However, as the Full Family Court pointed out in the passage just cited [from Pierce v Pierce], it is really a matter of weighing initial contributions with all other relevant contributions. In a short marriage, the other contributions may be relatively insignificant. In a long marriage, ongoing income contributions and contributions as a homemaker and parent, if they have not resulted in the acquisition of assets sufficient to recognise them, may warrant the “erosion” of initial contributions so that all contributions can be satisfied to some extent, though not in full, out of the available property.

    …

    Significant factors affecting the application of the “erosion principle” are the length of the relationship and, in particular, the extent to which there have been other or off-setting contributions which also have to be satisfied from the available pool. It is to accommodate those contributions that the initial contributions are “eroded”.

1. It is clear that the husband’s assets greatly exceeded those of the wife at the commencement of their cohabitation. Thereafter, the husband made the greater financial contribution from employment than did the wife. The wife however provided more of the care of the parties’ young child. The wife’s mother made a substantial contribution by or on her behalf through a loan on terms beneficial to the parties. In the post separation period, the wife was the primary carer of the two children of the marriage, and discharged a debt of the parties of $140,000.00 and earned, and was able to earn, significantly less than was the husband.

2. In those circumstances, whilst other judicial officers may have regarded the contributions differently, and more favourably to the husband, it cannot in this Court’s view be successfully asserted that the learned Federal Magistrate’s conclusion exceeded the bounds of a reasonable exercise of discretion. Expressed another way, this Court is not persuaded that the financial and non-financial contributions made by the parties subsequent to the commencement of cohabitation, including the contributions made by them after the cessation of cohabitation could not be regarded as having “eroded” the initial disparity of contributions favouring the husband from $430,000.00 to approximately $294,000.00.

3. To the extent that the learned Federal Magistrate’s conclusion may have represented the upper end, or even the “top of the range” that is insufficient to enliven appellate intervention as the authorities make clear. This challenge accordingly fails.

Section 75 (2) Challenge

1. The Court is not satisfied that any error in the exercise of discretion has been demonstrated with respect to the learned Federal Magistrate’s conclusions in relation to s 75 (2) of the Act. His Reasons for Judgment reveal that the learned Federal Magistrate carefully considered all the factors which were relevant to his determination. Although the submissions of senior counsel for the father assert that his Honour’s consideration of relevant s 75 (2) factors was vitiated by factual error, the Court is not persuaded that such was the case. None of the numerous findings made in the course of his Honour’s determination of the parenting proceedings was necessarily, or materially at variance with any finding relied upon by him in the context of s 75 (2).

2. The s 75 (2) factors upon which his Honour relied, cumulatively, called for a substantial adjustment in favour of the wife. Nothing to which this Court has been referred establishes that the adjustment determined by his Honour was so generous to the wife as to fall beyond the ambit of a reasonable exercise of discretion. It is to be remembered that the s 75 (2) adjustment determined by the learned Federal Magistrate was made with respect to the non-superannuation assets of the parties, but was arrived at in partial reliance upon the very substantial disparity in the superannuation entitlements of the parties which favoured the husband. Fairly, it has not been suggested that such an approach was not reasonably open to his Honour.

3. It is to be remembered that by adjusting the non-superannuation assets of the parties by 15 per cent in the wife’s favour, a disparity of 30 per cent in her favour resulted. Thirty per cent of the non-superannuation interests of the parties translate as the sum of $352,282.20. On any view of it, that is a very substantial adjustment in the wife’s favour. To examine the factors which led the learned Federal Magistrate to his conclusion is to understand why appellate intervention is not enlivened.

4. His Honour’s recording that the husband was 42 and the wife 32 years of age, and were both in good health is not controversial, and did not impact upon his assessment of the s 75 (2) adjustment.

5. The husband was found to be earning $118,000.00. The wife’s capacity, based on her previous employment, was to earn from $65,000.00 - $75,000.00 per annum when she returned to work. Senior counsel for the husband relied upon apparent anomalies in the learned Federal Magistrate’s findings as to when that could be expected to occur. On any view of it, given the age of the parties’ younger child, it would not be unreasonable to expect that the wife would not resume earning $65,000.00 - $75,000.00 per annum within the next couple of years. It cannot be assumed that so doing would not result in expense in relation to the provision of child care whilst the wife was working to earn that income. Also of significance, as the learned Federal Magistrate clearly appreciated, was that the greater earning capacity of the parties would “result in significantly different superannuation contributions, particularly over the next few years”.

6. His Honour had regard to “the large disparity in assets and financial resources of the parties, based upon my findings with respect to contributions”. As noted earlier, with respect to non-superannuation contributions, that disparity favoured the husband by approximately $294,000.00 in a pool of $1,174,000.00 or 25 per cent of that pool (the difference between 62.5 per cent and 37.5 per cent). Although his Honour concluded, uncontroversially for present purposes, that the superannuation interests of the parties should be assessed at 80 per cent to the husband and 20 per cent to the wife, no splitting order was made, or sought, in those or any other percentages. The superannuation entitlements of the parties at the date of trial totalled $271,429.00. Twenty per cent of that sum approximated $54,000.00. The wife was to retain her superannuation interest worth $15,762.00.

7. In the context of his Honour’s consideration of s 75 (2) factors with respect to non-superannuation assets, there were accordingly two matters to be taken into account. The first was that the wife was found to have a contribution entitlement with respect of the husband’s superannuation of approximately $40,000.00 which she would not receive out of that interest. The second, and broader matter, was that the balance of the husband’s superannuation interest vastly exceeded that of the wife, by a multiple of 16.

8. The learned Federal also relied upon the fact that the wife would have the “greater portion” of the care of the parties’ two young children. That was a matter which could clearly be taken into account in the wife’s favour within the context of s 75 (2). As is apparent, no other factor was ultimately operated in the wife’s favour in the context of s 75 (2) of the Act.

9. In this Court’s view, the factors upon which the learned Federal Magistrate relied supported a substantial s 75 (2) adjustment in favour of the wife. Other judicial officers may have assessed that adjustment less favourably to the wife than did his Honour. This Court is not persuaded that his determination fell beyond the ambit of a reasonable exercise of discretion. Whilst the determination may have been at or near the “top of the range”, that is not the test for present purposes. This challenge accordingly fails.

Challenge to the Justice and Equity of the Learned Federal Magistrate’s Decision

1. The learned Federal Magistrate clearly appreciated the effect of the orders which he proposed making. His Honour carefully analysed the practical implications of those proposed orders in the context his consideration of s 79 (2) of the Act.

2. The crux of the husband’s challenge to the justice and equity of the learned Federal Magistrate’s decision is encapsulated in the following submissions on behalf of the husband:

   22.The undervaluation of the husband’s initial contribution and the failure to consider the fact that the 15% section 75(2) adjustment represented more than $150,000 created a situation where the husband received 47.5% of the real estate available for distribution in a marriage of less than 4 years where he started with nearly 90% of the assets.

   23.To put the husband’s argument another way, his $498,000 at the start of cohabitation has become $558,000 ($893,000 minus $335,000).

   24.The wife’s $68,000 at the start of cohabitation has become $600,000.

   25.His initial contribution has increased by 12%. The wife’s initial contribution has increased 880% [sic].

   26.The appellant respectfully submits that in these circumstances it was not open to the learned trial judge to make the findings that the outcome was just and equitable as per RFJ para 227.

3. The learned Federal Magistrate said with respect to s 79 (2):

   226.The result of the orders is to leave both parties with a home.  The wife’s home is valued at $600,000 and will be unencumbered. She will also receive a cash payment from the husband of $16,493.85.  The husband will retain a home worth around $893.000, but with a mortgage of around $335,000.  Whilst the husband will have less property than the wife, it is in part reflective of the significant disparity in superannuation, where the wife is left with less than $16,000 and the husband with over $250,000.

   227. Standing back and considering the matter as a whole, I am satisfied that the outcome proposed is just and equitable.

4. Nothing articulated in that analysis has been shown to be inaccurate or erroneous.

5. The husband’s challenges to the learned Federal Magistrate’s conclusions with respect to s 79 (4) and s 75 (2) having been unsuccessful, the potential for this challenge to succeed is necessarily limited. With respect to senior counsel for the husband, though mathematically accurate, the analysis emerging from the submission set out above overlooks the reality that the marriage of the parties produced two children, who are aged 4 and 2 years and will in the future live more with wife than with the husband, who has a significantly greater ability to earn income than the wife has, or will have, with both an existing far greater superannuation entitlement than the wife, and consequential ability to further increase that disparity. This challenge accordingly fails.

Conclusion

1. No ground having been made out, the husband’s Appeal will be dismissed.

2. Although the further evidence sought to be relied upon by the wife was presumably in aid of her resistance of the husband’s appeal (see Allesch v Maunz (2000) 203 CLR 172 and CDJ v VAJ (1998) 197 CLR 172), reference to it for that purpose is unnecessary having regard to the Court’s conclusion with respect of the husband’s appeal. Even if the Court had concluded differently, the further evidence would not in the Court’s view have the effect it would need to be received as evidence in the appeal.

Costs

1. It is appropriate to make orders with respect to any application for costs of the appeal.

I certify that the preceding one hundred and thirty three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  23 April 2010