Wilde & Wilde - [2007] FamCA 1044

FAMILY COURT OF AUSTRALIA

WILDE & WILDE

[2007] FamCA 1044

FAMILY LAW - APPEAL - SECTION 79 PROPERTY PROCEEDINGS - ASSERTED LACK OF FULL FRANK AND COMPLETE DISCLOSURE - Third trial of property proceedings between parties after two successful appeals - Whether trial Judge erred in exercise of discretion in finding husband had failed to make a full, frank and complete disclosure of his financial circumstances - Where payments made by husband to his daughter of previous marriage - Where losses incurred by derivatives trading resulting in losses inter alia to superannuation fund - Where husband alleged to have filed contradictory financial statements - Trial Judge made credit findings and accepted husband’s evidence - No error by trial Judge in exercise of discretion.

FAMILY LAW - APPEAL - PROPERTY – “ADD BACKS” - Whether trial Judge erred in failing to add back to the pool of property notional assets, and or erred in respect of adding back items of expenditure by the wife post separation - Whether trial Judge erred in his treatment of husband’s paid legal fees, drawings from business, payments to his brother, losses incurred in trading in derivatives and payments to his daughter from previous marriage - Where legal fees taken up in other “add backs” - Where no adverse credit findings made against husband - Where funds paid to brother derived from inheritance - Whether trial Judge in error in “adding back” wife’s post separation expenditure from part proceeds of sale of her property acquired pre-cohabitation - Where wife provided no breakdown of her reasonable living expenses post separation and trial Judge took into account her expenditure when considering adjustment under s75(2) - No appealable error found.

FAMILY LAW - APPEAL – PROPERTY - VALUATION -Whether trial Judge erred in determination of the value of the husband’s veterinary practice – Where multiple valuations - Where valuation methods differed – Where capitalisation of future maintainable profits valuation method used – Where alternative valuation method of comparable sales and analysis of actual performance of the practice - Where trial Judge made findings of lack of objectivity by wife’s expert – Where trial Judge rejected valuation on a “potential” value basis - Examination of commonly used valuation methods – Trial Juge applied recognised principles to valuation of the business - No appealable error found.

FAMILY LAW - APPEAL – PROPERTY - CONTRIBUTIONS -Whether trial Judge erred in overall assessment of contributions - Whether trial Judge erred in assessing initial contributions – Trial Judge’s assessment of equal contribution available on the evidence.

FAMILY LAW - APPEAL – SECTION 75(2) FACTORS - Whether trial Judge erred in assessment of relevant factors in making s 75(2) adjustment – Whether trial Judge gave insufficient weight to findings of fact regarding wife’s capacity for employment – Where no medical or expert evidence adduced to establish employment capacity – No error by trial Judge in making adjustment under s 75(2).

FAMILY LAW - APPLICATION TO EXTEND TIME TO APPEAL VARIATION OF ORDERS UNDER THE SLIP RULE AND TO CROSS APPEAL ORDERS AS AMENDED UNDER THE SLIP RULE – Whether proposed grounds demonstrated prospects of success – Whether trial Judge erred in application of slip rule - No error in application of slip rule found - Whether wife estopped from seeking slip rule order – Whether principles of estoppel applied to circumstances – No waiver by the wife – No estoppel found - Whether failure by trial Judge to make consequential amendments under slip rule – Onus on husband to seek consequential amendment under slip rule – Where significant delay – Application for extension of time to appeal variation of orders under slip rule refused - Whether husband’s proposed cross appeal demonstrates prospects of success - Whether trial Judge erred in valuation of husband’s veterinary practice – Whether trial Judge erred in assessment of pre-cohabitation assets –Whether trial judge erred in determining contributions – Whether trial Judge erred in “adding back” judgment debt including legal fees – Where “double count” of legal fees occurred – Consideration of proportionate increase to asset pool – Consideration of protracted nature of litigation - Whether trial Judge erred in assessment of relevant factors in making s 75(2) adjustment –No likely prosects of success in proposed grounds of appeal - Application to extend time to appeal dismissed.

Family Law Act 1975 (Cth) s 75(2), s 79

Family Law Rules 2004 ) Chapter 15, r 15.29, r 17.02, r 22.26(2)(c)

Gallo v Dawson (1990) 93 ALR 479
Tormsen and Tormsen (1993) FLC 92-392
House v The King (1936) 55 CLR 499
Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343
Briese and Briese (1986) FLC 91-713
Oriolo and Oriolo (1985) FLC 91-653
Black and Kellner (1992) FLC 92-287
Weir and Weir (1993) FLC 92-338
Kannis and Kannis (2003) FLC 93-135
Mallet v Mallet (1983) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712
Chorn and Hopkins (2004) FLC 93-204
Kowaliw and Kowaliw (1981) FLC 91-092
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Commonwealth v Milledge (1953) 90 CLR 157
Georgeson and Georgeson (1995) FLC 92-618
Chick and Chick (1987) 12 FamLR 64
Townsend and Townsend (1995) FLC 92-569
C and C [1998] FamCA 143
Omacini and Omacini (2005) FLC 93-218
Gollings and Scott [2007] FamCA 397
M and M [1998] FamCA 42
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2)(1982)151 CLR 590
DJL v The Central Authority (2000) 201 CLR 226; (2000) FLC 93-015
Russell v Russell (1999) FLC 92-877
Milham v Stanford (2001) FLC 93-073
Waltons Stores (Interstate) Ltd v Maher (1987) 164 CLR 387
Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35

APPELLANT:

Ms Wilde

RESPONDENT:

Dr Wilde

FILE NUMBER:

SYF

3943

1999

APPEAL NUMBER:

2005

DATE DELIVERED:

6 September 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Bryant CJ, Finn and Boland JJ

HEARING DATE:

6 and 7 April 2006; and by way of written submissions filed by the appellant on 21 April 2006, 29 May 2006, 28 August 2006 and 29 August 2006; and by the respondent on 15 May 2006, 9 June 2006 and 22 September 2006.

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 January 2005

LOWER COURT MNC:

[2005] FamCA 12

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Ms Wilde appeared on her own behalf

ADVOCATE FOR THE RESPONDENT:

Dr Wilde appeared on his own behalf

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Wilde v Wilde.

Orders

That the wife’s appeal against the orders of the Honourable Justice Le Poer Trench of 24 January 2005 is dismissed.
The husband’s application for leave to extend time to appeal the orders of the Honourable Justice Le Poer Trench made pursuant to the slip rule on 20 December 2005 is dismissed.
The husband’s application for leave to extend time to appeal the orders of the Honourable Justice Le Poer Trench made on 24 January 2005 is dismissed.
The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:
(a)on behalf of the wife within 21 days of the date hereof;
(b)on behalf of the husband in response thereto within 21 days thereafter;
(c)on behalf of the wife in reply thereto within seven days thereafter; and
(d)that each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 33 of 2005
File Number: SYF 3943 of 1999

Ms Wilde

Appellant

And

Mr Wilde

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms Wilde (“the wife”) against orders made by Le Poer Trench J on 24 January 2005 at the conclusion of defended property proceedings under s 79 of the Family Law Act1975 (Cth) (“the Act”). Dr Wilde (“the husband”) seeks orders to extend time to cross appeal the trial Judge’s orders of 24 January 2005 as subsequently amended under the slip rule on 20 December 2005.
The trial Judge determined the parties’ net assets and superannuation totalling $1,870,495.00, after the slip rule adjustment, should be divided between them as to 55.18 per cent to the wife and 44.82 per cent to the husband.
The orders made by the trial Judge on 24 January 2005 were as follows:
1.Within one month from the date of these orders the parties are to do one of the following in relation to the property [on the North Shore] (hereinafter called “the [North Shore] property”)
(a)agree between themselves as to a value for the [North Shore] property or;
(b)alternatively, cause the property to be listed for sale by public auction with an agreed real estate agent at an agreed reserve price.
2.In the event of the parties being unable to agree upon an agent with whom to list the [North Shore] property for sale or should they be unable to agree upon a reserve price then they are to jointly appoint the President for the time being of the Real Estate Institute of NSW, or his/her nominee, to determine any such dispute, acting as an expert and not an [sic] mediator/arbitrator, and the parties shall thereafter act upon such determination and proceed with the sale of the property according to these orders.
3.Upon a sale of the [North Shore] property being completed the parties are to apply the sale proceeds as follows:-
(a)In payment of Real Estate Agents Commission, legal costs of the sale and other adjustments of rates and taxes usually associated with the sale of a property in NSW.
(b)In payment to the wife the sum of $700,000 together with 55.18% of the sum by which the balance of sale proceeds after payment of the expenses set out in sub order (a) hereof exceed the sum of $700,000. Thereafter pay the balance to the husband.
4. In the event of the property not being sold by public auction as required by these orders then the parties are to list the property for sale by private treaty at an agreed sale price and with an agreed Real Estate Agent. In the event of any disagreement about either of those requirements then the parties are to cause the disagreements to be resolved in the manner prescribed by order 2 hereof. Upon a sale being completed the sale proceeds are to be applied as specified in order 3 hereof.
5.In the event of the parties agreeing upon a value for the property pursuant to order 1 hereof then such agreement is to be contained in writing and each party is to sign the agreement and date it. Each is then to retain a copy of the signed document.
6.Within 3 months from the date of the written agreement referred to in order 5 hereof the husband pay to the wife the sum of $204,157 together with 55.18% of the sum by which the value exceeds $700,000 or less 15.18% of the sum by which the value is less than $700,000.
7.In the event of the [North Shore] property being sold rather than the parties reaching an agreement as provided for in order 5 hereof then within 3 months of the date of completion of the sale the husband is to pay the wife the sum of $204,157 less 55.18% of the sum by which the net proceeds of the sale after, payment of the expenses set out in order 3(a) hereof, are less than $700,000.
8.The husband is to cause the Trustee of the [JI] Pty. Limited Superannuation Fund to roll over into a fund nominated by the wife her entitlement in that Fund within 28 days of being notified by the wife of the name of the receiving superannuation fund.
9.Until the wife receives the funds from the sale of the [North Shore] property or a payment by the husband of the money required to be paid to her under the orders made this day, whichever first occurs, the husband is to pay spouse maintenance in the sum of $300 per week.
10.The wife is to be the absolute owner of the Subaru motor vehicle specified in the balance sheet of the parties’ assets and the husband is to sign any document presented to him by the wife to enable this order to be implemented at the cost of the wife.
11.That the wife transfer to the husband any interest she may have in the [Wilde] Family Trust and that she hereafter indemnify the husband against any claim, demand or suit she may bring in relation to any claim by her against the trust.
12.The parties are otherwise to be declared the absolute owner of items of personal property and real estate presently standing in their sole name.
13.Each party is granted leave to re-list the matter before me for the purpose of seeking any further orders required to implement the orders made herein.
The order made under the slip rule was:
1.Pursuant to the slip rule order 6 made the 24th January 2005 be set aside and in its place the following order be substituted:-
Within three months of completion of a sale under order 4 hereof or the creation of an agreement as to the value as provided for in order 5 hereof the parties are to cause such adjustment by payment of money from one to the other as may be necessary to cause the wife to receive 55.18% of the net assets as determined by me in the reasons delivered today having first made adjustment to the value of the [North Shore] property as determined by the operation of order 4 or 5 hereof.
During the hearing of the appeal on 6 April 2006, leave was granted to the husband to make an oral application to extend time to appeal only against the slip rule order, and orders were made for the parties each to file written submissions.
On 9 June 2006 the husband filed an application in which he sought to extend time to challenge, not only the slip rule order, but all orders made by the trial Judge.
On 11 August 2006 we made orders consolidating the husband’s cross appeal (in the event leave to extend time in which to appeal was granted) with the wife’s appeal and for the application to be determined on written submissions.
These are our reasons in respect of the appeal and the application for leave to extend time to cross appeal (including an appeal against the variation of the orders under the slip rule).
The parties were not legally represented during the substantive hearing before the trial Judge, or on the appeal. The husband was represented by counsel at part of the slip rule hearing in October 2005.
The litigation conducted by the parties in this Court has been protracted, and has had a complex history. Suffice it to note at this stage the parties’ original proceedings under s 79 were heard before Rose J, in December 2000 and March 2001 (written submissions were also filed), and the wife’s appeal against those orders upheld and the proceedings remitted for rehearing.
A further hearing was conducted before Rowlands J in March, April, May, June and July of 2002. The wife appealed the orders made by Rowlands J, the appeal was upheld, and the matter remitted for a second rehearing.
The trial Judge heard the remitted proceedings over 21 days in 2004, and delivered reasons and made orders on 24 January 2005. Order 6 of the orders was varied on 20 December 2005 pursuant to the slip rule (r 17.02 of the Family Law Rules 2004 (“the rules”)).
No appeal was filed by either party in the time provided in the rules. In March 2005 the wife applied for an extension of time to appeal the trial Judge’s orders, which extension was granted by Boland J on 18 May 2005.
We think it important to record that because of the history of litigation in this Court, and other litigation engaged in by the parties, the task confronting the trial Judge was complex and difficult. The parties relied on voluminous documentation, transcripts of, and exhibits tendered in, prior proceedings, and extensive written submissions. His Honour’s task was also complicated by the parties’ lack of legal representation throughout the majority of the hearing.
We also record that, because of the unusual manner in which the appeal and the husband’s cross appeal proceeded before us, matters of substance asserted to be errors by the trial Judge were not articulated in oral argument or identified as principal areas of challenge to the trial Judge’s orders, but were raised in subsequent written submissions. The husband’s position on a number of issues changed from the date on which we heard the appeal when he supported the orders made by the trial Judge (except the slip rule adjustment) to the receipt of his written submissions in which he opposed all the orders.
In these circumstances, we have endeavoured to group the wife’s grounds of appeal and multiple factual matters raised in her submissions. Thereafter we consider the husband’s application to extend time to cross appeal (including the order made under the slip rule) and written submissions in support thereof. In considering both the appeal and proposed cross appeal we group the challenges to the trial Judge’s orders in the specified broad areas which we have identified throughout our reasons with headings, although as will become apparent from our reasons there is overlap in some areas.

The husband’s application - leave to extend time to file a cross appeal

The principles to be applied in respect of an application for extension of time to appeal are well known (see Gallo v Dawson (1990) 93 ALR 479 at 480 to 481; Tormsen and Tormsen (1993) FLC 92-392 at 80,017). In this case it appears to us the most significant matter to be taken into account in the exercise of our discretion in determining whether or not to grant leave is whether the husband’s proposed grounds in his cross appeal (and challenges to the slip rule order) disclose prospects of success. Accordingly, we propose in the course of our reasons to examine those grounds to consider whether or not leave should be granted.

The wife’s grounds of appeal

By an amended Notice of Appeal filed 12 September 2005 the wife seeks to appeal Orders 2, 3, 4, 6, 7, 11 and 13 of the orders made by Le Poer Trench J on 24 January 2005. The wife did not seek to further amend her grounds of appeal after the trial Judge, on her application, varied Order 6 of his orders pursuant to the slip rule on 20 December 2005, rather she abandoned ground 10 of her grounds of appeal. The wife also abandoned ground 11 of her amended grounds of appeal. The wife’s remaining grounds of appeal can be summarised as falling under the following topics:
·asserted error by the trial Judge in rejecting the wife’s case that the husband failed to make a full and frank disclosure of his financial circumstances since the parties’ separation;
·asserted failure by the trial Judge to correctly “add back” certain notional assets of the husband, and error in incorrectly “adding back” notional assets of the wife;
·asserted error by the trial Judge in his findings about the valuation of the husband’s veterinary practice;
·challenges to the trial Judge’s assessment of contributions, including the parties’ initial contributions;
·challenges to the trial Judge’s assessment of relevant factors and quantum of adjustment under s 75(2); and
·asserted failure by the trial Judge to ensure his orders were just and equitable
We take the opportunity to record here, because of overlap with the issues identified above, that the husband’s proposed slip rule appeal and cross appeal are directed to:
·asserted error by the trial Judge in his application of the slip rule to Order 6 of the orders, and failure to make consequential amendment to Order 9;
·asserted error by the trial Judge in rejecting the husband’s claim the wife was estopped from seeking the slip rule order; and
·challenge to the topics identified by the wife other than those relating to full and frank disclosure.

We have also found it convenient, rather than to review extensively the trial Judge’s detailed reasons for judgment at this point in our reasons, to record his Honour’s findings where relevant to the issues identified above.

Background

The relevant background is set out in the trial Judge’s reasons, and other documents in the appeal book, and was not the subject of controversy before us.
The husband was born in May 1944 and was aged 60 years at the date of the hearing. The wife was born in October 1950 and was aged 54 years at the date of the hearing. The parties commenced cohabitation in 1991 and were married in January 1992. They separated, initially under the one roof, in January 1999 and physically separated when the husband left the former matrimonial home in about November 1999.
There is one child of the marriage, [J], born in August 1992. He was aged 12 years at the date of the hearing.
Following the parties’ separation [J] remained living with the wife at the former matrimonial home on the North Shore (“the matrimonial home”).
The wife has a child from a previous relationship, [D], born in November 1978. [D] lived with the parties from the commencement of their cohabitation until 1993 when he lived with his father for six months. He lived apart from the parties for 12 months in 1994 and thereafter remained living with the parties until the date of separation.
The husband has two children from his first marriage, [A], who was aged 20, and [P], aged 17, at about the time the parties commenced cohabitation. [A] lived for a short time in accommodation attached to premises in which the husband conducted, and still conducts, a veterinary practice. [A] lived with the parties for approximately four months in July 1994.
At the commencement of cohabitation the parties lived in a property owned by the wife on the Northern beaches. In about September 1991 they purchased the matrimonial home.
After the parties moved to the matrimonial home, the wife’s property on the Northern beaches was divided into two residences and rented until sold by the wife in 2001.
The matrimonial home was purchased for a purchase price of $475,000.00 and was funded by borrowings of $450,000.00 from the Newcastle Permanent Building Society. The wife’s Northern beaches property, together with the matrimonial home, provided security for the borrowings. It was conceded that the wife’s Northern beaches property had a value of $255,000.00 at the commencement of the parties’ cohabitation.
The wife asserted, and the trial Judge accepted, that the wife received, in 1991, a loan repayment from her brother of $10,000.00 which was applied to matrimonial purposes. The wife received a further sum of $10,000.00 from her brother in 1994 which was also used for matrimonial purposes.
Throughout the parties’ cohabitation the wife derived income from a nail/manicure artist’s business, rental from the Northern beaches property, distributions from the Wilde Family Trust (“the trust”) and income from a cat business run in conjunction with the husband’s practice.
The wife asserted, and the trial Judge accepted, that following her pregnancy in 1991 she started to experience pain in her lower back. During the course of the parties’ cohabitation the wife incurred expenses for dental treatment costing between $10,000.00 and $15,000.00.
In about 1994 the wife invested $10,000.00 in a cash management fund.
Both parties carried out improvements to the matrimonial home.
At separation mortgage payments on the matrimonial home were paid considerably in advance and no payment was required until May 2000. The husband paid no mortgage repayments or other outgoings in respect of the matrimonial home after November 1999. The wife paid outgoings for the matrimonial home thereafter.
The husband practised as a veterinarian throughout the parties’ cohabitation. The trial Judge noted “[i]t appears that he had at least two week days off work each week as well as most of the weekends”.
In 1998 the husband broke his hip and was unable to work for a number of months.
The parties are members of the J Pty Ltd Superannuation Fund (“the superannuation fund”). The corporate trustee of the superannuation fund is JI Pty Ltd (“JI”). JI subsequently changed its name to VA Pty Ltd (“VA”). VA was also the corporate trustee of the trust.
In October 2001 the wife sold her Northern beaches property for a sale price of $575,000.00. The wife applied part of the net proceeds of sale to discharge the mortgage of $342,662.39 secured on the property.
The parties engaged in litigation after their separation including litigation between the wife and a roof repairer, and defamation proceedings in the District Court by the husband against the wife. Proceedings were commenced against the wife by her former accountant for unpaid fees, and there were proceedings involving the wife’s former solicitor. Additionally, the husband sued his former wife for recovery of monies lent to her by him. The husband was being sued, and was counter suing, his former solicitors at the date of the hearing before the trial Judge. The solicitors claimed fees owing of approximately $75,000.00.

Appellate principles

This is an appeal against a discretionary judgment. The limits on appellate interference with such judgments is well known (see House v The King (1936) 55 CLR 499 and Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343).

Full and frank disclosure issue

Ground 1

His Honour erred:

1. In not finding that the husband failed to make a full and frank disclosure of his financial circumstances at all relevant times.

In dealing with this topic, we think it is pertinent to observe that the wife’s written submissions are not only directed to a general assertion of non-disclosure by the husband, but seek to challenge the treatment by the trial Judge of financial transactions of the husband around the time of the parties’ separation. Many of the transactions which we discuss shortly in our reasons were found by the trial Judge to involve assets prematurely disposed of by the husband, and “added back” by his Honour as “notional” assets to the pool of property available for division between the parties thus benefiting the wife.

The trial Judge’s findings

At the commencement of his reasons for judgment, the trial Judge identified the issues in dispute between the parties. The final issue identified was “[h]as the husband failed to make a full and frank disclosure of his financial circumstances and if so what consequences should flow?”.
At paragraphs 428 to 430 of his reasons the trial Judge set out his findings on this issue as follows:
428.The husband was asked about the income he disclosed to the Court in his Statement of Financial Circumstances sworn in 1999. This was the subject of a great deal of oral evidence in the case. At least 2 different versions of the 1999 Statement of Financial Circumstances were tendered. The husband said he filled in the document in draft and gave it to his accountant who changed the figures to reflect his true income. The husband relied upon advice from his accountant on that point.
429.The husband was asked about an application for a credit card in which he disclosed an income of $80,000. The husband said this was a gross profit figure. He said he provided details of $40,000 worth of expenses to be paid from that sum.
430. As I have said now on a number of occasions the wife was convinced the husband had not made a full and frank disclosure of all relevant information relating to his financial circumstances. The wife is convinced the husband has hidden funds from her and the Court. She further believes the husband has taken money from his business which has not been reflected in his tax returns. When the wife makes this allegation she is not referring to some accidental omission but rather a deliberate course of action on the part of the husband. I have not found any acceptable evidence which demonstrates to my satisfaction that the husband engaged in any deliberate action designed to hide assets or income or in any way to fail to make a full and frank disclosure to the wife and the Court of all relevant financial information and or his assets.
Earlier in his reasons his Honour noted:
60.The husband presented as a witness who considered his answers carefully. He was very tolerant of the wife in her questioning of him. He was sometimes verbose. He was sometimes more general in his answer than the specificity the question sought but I did not think this was deliberate evasiveness. Overall I thought his evidence was given honestly and in good faith. There is evidence to suggest that at the date of separation, or thereabouts, the husband was unhappy and perhaps bitter and consequently verbalised some proposals to possibly minimise or hide his assets in order to thwart the wife obtaining her proper distribution of the parties [sic] assets. There is no evidence which I accept to substantiate the wife’s case that he has deliberately hidden assets in order to reduce the possible distribution to the wife.
61.Because of the number of trials and appeals which have taken place in this case there is a large amount of transcript of evidence given and submissions made on prior occasions. The wife made many references to this prior evidence and submission [sic] and endeavoured to point out through that evidence what appeared on the face to be inconsistencies in the evidence of the husband. The husband was asked to concede that on earlier occasions evidence was given by him or a submission made on his behalf to a certain effect. On some of those occasions, whilst acknowledging the submission was made the husband said he no longer adhered to that submission. The same was true of some concessions made by him in earlier hearings. In such a statement I understood from what the husband was saying that the earlier evidence given by him or the earlier concession made by him, or on his behalf, was ill informed or mistaken and that evidence which has come to light since that time renders that earlier position erroneous. Unless I specifically refer to a particular portion of the evidence hereafter I accept the husbands [sic] evidence in this respect. The reality is that the case has, in the presentation of evidence, largely focused upon the husbands’ [sic] business interests and dealing [sic] during the course of the cohabitation. These dealings and businesses involved considerable turnover and a complexity which I am certain the wife did not understand and still does not understand today. A number of the questions asked by the wife during the hearing illustrated to me a lack of understanding of ordinary business operations and procedures reasonably expected or anticipated in businesses and trusts trading in Australia. The wife was clearly motivated, in the running of her case, by what appeared to be a firmly held view by her that the husband was fundamentally dishonest and that he was set upon a course to rob her of a proper (i.e. on her view of what was proper) division of the parties [sic] assets under the law.
62.The wife’s case is that the husband has deliberately failed to provide documents requested of him by the wife. The husband denies this. Both assert that documents have been produced to the Court over the three hearings which they have conducted and that some of these documents have gone missing. I accept that is true.
63.There was nothing about the husbands’ [sic] evidence or presentation in Court that would lead me to a conclusion that he has deliberately failed to produce any documents.

The wife’s submissions

The wife supplied a detailed Outline of Argument with pages exceeding the provisions in the rules (r 22.26(2)(c)). However, the wife did not make extensive oral submissions before us and we indicated that she could rely on her detailed written submissions as a practical way of dealing with her appeal.
The wife’s principal submission was that because the trial Judge accepted “[t]here is evidence to suggest that at the date of separation, or thereabouts, the husband was unhappy and perhaps bitter and consequently verbalised some proposals to possibly minimise or hide his assets in order to thwart the wife obtaining her proper distribution of the parties [sic] assets” he should have found the husband had actually concealed or disposed of assets, and made a consequent adjustment in her favour.
The wife referred us to evidence in her affidavit affirmed 17 November 2000 wherein she deposed to overhearing a conversation between the husband and his daughter and asserted she heard him say “I am prepared to go through a reconciliation with her for about six months while I get rid of the rest of my assets”.
The wife asserted that the husband had “either disposed of or allegedly ‘lost’” in the period of six months after separation an amount of over $237,000.00.
In paragraph 1.1 of her written submissions the wife referred to six sums, including a loss in the superannuation fund, which sums she asserted were disposed of, or not properly accounted for, by the husband, including a sum of $28,405.00 expended on P. We consider below the individual items about which the wife makes complaint.

Relevant legal principles – full and frank disclosure

The need for parties in financial matters to make such disclosure is not in doubt. In the seminal passage in Briese and Briese (1986) FLC 91-713 Smithers J said at 75,180 to 75,181:
I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner. The Regulations, and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure. The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding.
…
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.
(See also Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Kannis and Kannis (2003) FLC 93-135).
We think it important prior to our discussions of individual items to emphasise that the adjustment process under s 79 involves a broad exercise of discretion. The wide discretion conferred upon the Court was discussed by the High Court in Mallet v Mallet (1983) 156 CLR 605, where Gibbs CJ held at 608:
[The Parliament] has conferred on the Court a very wide discretion to make such order as it thinks fit when it is satisfied that it is just and equitable that an order should be made (see subsec. (1) and (2) of sec. 79) although there are some broad principles to which the Court is required to give effect, and some circumstances which it is required to take into account. A principle which the Court is expressly required to apply, so far as practicable, is that it will make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them: sec. 81.
In Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712, Mason and Deane JJ in discussing the approach to be taken towards the ascertainment of contributions said at 523 to 524:
As a matter of construction of s 79 Nygh J is right in saying that the section imposes no obligation on the Family Court to pursue in relation to this issue either the global approach or the asset-by-asset approach to the exclusion of the other. We do not understand the Full Court in the present case to suggest otherwise. What the Full Court asserts is that the global approach is the only “realistic”, that is, convenient, means of arriving at the entitlements of the parties. Again, it seems to us that it will depend on the circumstances of the particular case, though in the majority of cases the global approach will be the more convenient and for this reason the Full Court is entitled to prescribe its adoption as a guideline in the majority of cases. The Family Court has rightly criticized the practice of giving over-zealous attention to the ascertainment of the parties’ contributions, and we take this opportunity of expressing our unqualified agreement with that criticism, noting at the same time that the ascertainment of the parties’ financial contributions necessarily entails reference to particular assets in the manner already indicated. (emphasis added)

$28,405.00 expended on P

At paragraph 161 and following of his reasons for judgment, the trial Judge under the heading “(b) $70,000 paid by the husband to or on behalf of his daughter [P]” dealt with payments made by the husband to his daughter.
The trial Judge considered whether the expenditure so made should be added back to the pool of assets available for division between the parties. Having referred to the decision of the Full Court in Chorn and Hopkins (2004) FLC 93-204 his Honour said:
163.In most cases where support is provided to children from a prior relationship the Court usually deals with the issue by taking into account the contribution made by the other party to the support of the child. In this case the issue has arisen in relation to the support of the wife’s son [D]. The husband claims a contribution towards his support. Likewise the wife should be treated in the same way. The wife wants the issue dealt with by adding to the balance sheet all of the money which was applied to the support of [P].
164.I think in the circumstances of this case it is appropriate to take into the balance sheet some of the funds paid to support [P] and not include others. Where I have declined to add moneys to the balance sheet in relation to this issue I will however take them into account either as a contribution by the wife or a matter relevant under section 75(2).
We accept this approach was one open to his Honour in the exercise of his discretion.

$13,500.00 transferred to P’s account

The trial Judge thereafter dealt with the sum of $13,500.00 which the husband directed to his daughter’s account from an investment account. In respect of this transfer, his Honour concluded:
… I am not sufficiently sure of this to elevate my suspicion to a finding of fact. In any event the evidence I think provides a sufficient link between as [sic] asset of the parties at the date of separation and the expenditure of same to warrant the expenditure being added to the balance sheet as a notional asset of the parties in order to follow the guidelines in Chorn and Hopkins. (paragraph 166, original emphasis)
It appears to us this paragraph contained a typographical error and his Honour meant an “insufficient” link.
We also accept this determination was open to the trial Judge in the exercise of his discretion having regard to the evidence before him.

$17,943.00 paid to Queensland solicitor

The wife also asserted a failure by the husband to make a full and frank disclosure in relation to the sum of $17,943.00. The wife asserted the husband “diverted [this sum] to his Qld accountant also in the month of separation”.
At paragraph 420 of his reasons for Judgment the trial Judge noted:
In paragraph 24.4 of the husbands [sic] affidavit he said that he paid $17,943 to [JO] from his private funds. This was to meet legal fees of the estate in an action with “Butcher and Cresswell” and also relating to the action the husband took against his first wife to recover a loan he had advanced her. (paragraph 420)

In paragraph 24.4 of the husband’s affidavit sworn 16 January 2004 he deposed as follows:
In January, 1999 after a year of requests from [JO] I paid $17,943 private funds from the sale of my Telstra shares. In spite of many assertions to the contrary I state that this money was not ‘parked’ with the solicitor for my later enjoyment.
The documents annexed hereto and marked “Y” confirm [JO’s] requests for funds throughout 1998 and that the payments were subsumed into his accounts notwithstanding credit balances in some of his trust ledger accounts.
The final account on 6 January 2000, shows no refunds or credits due to me and the outstanding balance was paid from my private account.
The husband annexed to his affidavit correspondence from a Queensland solicitor, [JO] together with a trust account statement dated 6 January 2000. The trust account statement disclosed total payments into the trust account of $12,007.66 and a balance of $1,111.74. The trial Judge referred to the trust account statement at paragraph 421 of his reasons for judgment and noted, referring to the sum of $10,007.66 appearing therein:
Those funds are caught up with the “add back” of $45,492 already in the balance sheet. These funds seem to have been provided by the husband. It also shows cost [sic] of $13,119.40 as against receipts from persons other than the husband of $2,000. This then accounts for $13,119.40 of the $17,943 in costs claimed to have been paid by the husband. (paragraph 421)
We deal with this issue in considering the husband’s proposed cross appeal. It appears to us that the trial Judge concluded the disputed finds were at least, in part, included in the write back of the total loan, interest and legal costs due by the husband’s former wife, and otherwise accounted for in the $6,896.00 “add back” made by the trial Judge in respect of legal fees paid to the Queensland solicitor.

$34,770.00 loss from the investment account (and asserted losses from the superannuation fund)

The wife asserted the husband did not properly account for the sum of $34,770.00 from an investment account.
Before the trial Judge the wife asserted this sum should be “added back” to the pool. His Honour noted “[a]s best I can understand her case on this issue it is that the husband claimed to have lost money in derivatives trading over the Christmas period of 1998”.
The trial Judge noted the submissions of the wife that the husband’s evidence should not be relied on because the husband did not corroborate his evidence.
In addition to the sum of $34,770.00, which the husband said he lost on his own behalf, he also asserted he lost about $44,000.00 in trading on behalf of his superannuation fund. It is convenient that we deal with the asserted losses from the investment account and the superannuation fund together.
The trial Judge’s findings in relation to this matter are set out at paragraph 177 of his reasons for judgment where his Honour said:
I reach the conclusion in relation to this issue that the wife has failed to make out a case for inclusion of the sum of $34,770 as an add back. The evidence does not support such a conclusion. Firstly I do not disbelieve the husbands’ oral evidence in relation to the derivatives trading. Secondly the evidence does not support a finding that the husband wasted the funds by his investing. He explained to me that as he understood the promise made to him by [the broking firm] that he would not lose money by the investment. He thought that he stood to make a substantial profit. This related to both himself and the superannuation fund. (paragraph 177)
At paragraph 303 of his reasons for judgment the trial Judge further dealt with the loss of funds incurred by the husband in trading in derivatives, including trading on behalf of the superannuation fund. His Honour noted that the wife submitted that he should conclude “that the husband has somehow hidden the money which he claims was lost in derivatives trading in the Fund”. The trial Judge rejected the wife’s submission and said “I am unable to reach that conclusion. I accept the money was lost as stated by the husband in his evidence”.
The trial Judge accepted, as was open to him on the evidence, that the husband had incurred losses in trading in derivatives and not, as implied by the wife, that the husband had siphoned off funds and hidden them from her.
In coming to this finding the trial Judge carefully considered the evidence of Mr W, an expert accountant called on behalf of the wife, the evidence of the husband’s expert accountant, Mr S and the evidence of Mr C. Mr C was formerly the husband’s accountant and had audited the superannuation fund until the 2001 tax year. He was subpoenaed by the wife to give evidence.
The trial Judge commenting on Mr C’s evidence said:
Mr [C] confirmed that the copy of the letter shown to him as emanating from him and addressed to Mr [F], the husbands’ former solicitor, was an accurate summation of the issues for the Fund. This document became exhibit “W23”. It is a very interesting and informative document. It tracks the history of the Fund and adjustments which were made from the 1997 year through to the 1999 year. The most important aspect of the letter is that it supports the husbands [sic] contention that there is nothing untoward about the transactions he oversaw in the Fund. There is no suggestion that the husband had diverted funds out of the Fund for his own use or purpose. There is nothing that suggests unlawful behaviour by the husband. Nothing suggests inappropriate dealings with the Fund by the husband. The letter appears to support the husbands [sic] evidence as to trading by the Fund. It refers to documentation held by the husband but does not assert that Mr [C] had seen the documents. (paragraph 288)
The trial Judge was in a difficult position. The husband had not produced complete records relating to his personal derivatives trading or derivatives trading by the superannuation fund. The evidence of the husband’s expert accountant, who the trial Judge found to be an impressive witness, was that the standard of Mr C’s accounting was poor. Properly, the trial Judge noted determination of the issue “requires an assessment of the husbands [sic] credit and the evidence he has given to me on the matter”.
His Honour made findings that the husband’s evidence on this matter was “honest and straight forward [sic]”. The trial Judge was in a unique position being able to observe the parties in person over many days. In these circumstances, we accept his Honour’s findings about the husband’s demeanour when giving evidence were well open to him. His Honour further said:
So far as derivatives trading is concerned it seemed to me that he understood that to some degree it was speculative… The broker he used had apparently convinced him he could not lose. He complained in his evidence that this all came to a misleading of him. When he realised he could lose he was very unhappy and voiced this to [the broking firm]. He thought the trader had lost focus. It seems to me that he reacted appropriately when he realised the fund was losing money. He quit the investment. (paragraph 294)
We note that, although not raised by the wife, the trial Judge considered whether or not the husband’s conduct in trading in derivatives should be regarded as conduct requiring that loss to be added back to the pool of assets to be divided between the parties on the basis of the principles referred to in Kowaliw and Kowaliw (1981) FLC 91-092 and concluded, having regard to the parties’ responsibilities as directors of the corporate trustee of the superannuation fund, that it was not appropriate to add back the losses suffered in derivatives trading to the pool of assets.
We particularly note his Honour made credit findings in respect of the husband and said that “[o]verall I thought his evidence was given honestly and in good faith”. Significantly his Honour concluded “[t]here is no evidence which I accept to substantiate the wife’s case that he has deliberately hidden assets in order to reduce the possible distribution to the wife”.
We discern no appealable error by the trial Judge in his careful and thorough treatment of the asserted losses by way of derivatives trading, either on the husband’s own account or through the superannuation fund.

Contradictory financial statements

The wife asserted that the husband did not make a full and frank disclosure of his financial position in his financial statement sworn 28 May 1999. There was no doubt the husband had sworn a financial statement which was inconsistent with his later financial disclosure. The husband during the course of cross examination about his financial statement said:
Thank you?--- Your Honour, I can make a general concession on this I believe.
Thank you.
HIS HONOUR: Yes.
MS WILDE: Now - - -
HIS HONOUR: What is your concession?--- As I’ve testified in the past, your Honour, and I actually have supporting documents here, this was based on a financial statement that I was handed in April of that year and told to go and fill it out, send it in and it was then signed at least six weeks later. I can show that the original documents show that weekly income was different to this. It was quite a bit more but then it goes to the accountant and to Mr [C] and he says; no, that’s not true, that’s not what’s been paid from this or that and so he revises it. He sends it into my lawyer at the time and says; no this is how it should be and you will have an opportunity to ask Mr [C] this if you like. I can, your Honour, if you want, tender the working papers that led up to this.
So when you filled it in initially, you filled it in showing a figure greater than $532 per weeks [sic] is that right?---I did indeed.
But then it went to Mr [C]?---Yes.
Who changed the figures – changed the income figure?--- Yes.
Then to lawyer who prepared final document is that right?--- That is correct.
Which you signed? (transcript, 18 June 2004, page 59, lines 6 to 34)
The wife asserted that the trial Judge was inaccurate in his findings at paragraph 428 where his Honour summarised the husband’s evidence. His Honour said “[t]he husband said he filled in the document in draft and gave it to his accountant who changed the figures to reflect his true income. The husband relied upon advice from his accountant on that point”.
The wife referred to the evidence of Mr C given on 21 June 2004 (transcript, 21 June 2004, pages 35 to 40). Mr C’s evidence was not at this point in relation to the husband’s financial statement, but rather the financial statement for the superannuation fund. The wife also relied on her assertions about Mr C’s evidence given on 23 June 2004 when the husband was cross examining his former accountant about his financial statement.
We accept the trial Judge’s summary does not precisely reflect the husband’s evidence. However, we do not regard that slight inaccuracy as a material error on his Honour’s part such as would amount to an appealable error.

Conclusions – full and frank disclosure issues

We have already noted that the exercise to be conducted by a trial Judge under s 79 is a broad adjustive exercise, and whilst that exercise requires careful evaluation of the evidence, and appropriate assessment of contribution, it is not to be equated with an accounting audit. We discern from the wife’s submissions on this topic an inference that unless there was a full accounting or audit for all of the husband’s financial dealings over a number of years from the parties’ separation that this meant there was a failure by him to make an appropriate financial disclosure.
In his assessment of the issues in dispute between the parties insofar as alleged failure to disclose was concerned the trial Judge made credit findings which were open to him. He dealt thoroughly with multiple issues raised by the wife, but not established by her to the applicable civil standard. Overall we are satisfied there is no merit in the wife’s ground of appeal relating to an asserted failure by the trial Judge to find the husband had not properly, in the circumstances of this case, disclosed his financial position.

Initial contributions

Ground 2

His Honour erred:

2. In giving undue weight to the husband’s initial contribution in terms of their nature and quantum, and to the extent to which they were utilized [sic] for the benefit of the parties

The wife’s submissions, and the husband’s submissions in respect of his proposed cross appeal, asserted the trial Judge’s findings in respect of their respective initial contributions were not supported by the evidence, although the wife’s ground of appeal is directed principally to the weight afforded by the trial Judge to the husband’s initial contributions.
In her written submissions the wife said “[h]is Honour [sic] findings that out of ‘liquid assets’ alleged at schedule D of his Affidavit of 16/1/04 H contributed $95,000 defies mathematical logic” (wife’s submissions, page 11, footnotes omitted). The wife asserted the husband relied on documents dated between 1990 and 1994 to support his allegations that at 30 June 1991 he contributed $118,236.00 in liquid assets. The wife further asserted the “H’s allegation that he did contribute such assets to our finances is chronologically and mathematically impossible, and therefore outside the ambit of his Honour’s discretion” (wife’s submissions, page 11, original emphasis). The wife asserted that the husband was in deficit by $120,428.00 at the commencement of cohabitation.
The wife thereafter set out particulars of items which she asserted should have been deducted by the trial Judge in his findings about the husband’s initial contributions, including $47,000.00 applied to his ANZ mortgage “re former W’s settlement” (original emphasis), $14,698.00 paid to his former wife and $10,967.00 applied for his tax liability for the 1990/1991 financial year.
In his submissions filed in respect of the appeal, the husband submitted:
In respect of Ground 2 the Respondent does not agree with his well documented savings of $118,369 being reduced to $70,000 plus $25,000 for the Subaru car given that there is a wealth of supporting documentation in Exhibit H9 supporting Annexure “D”. HPA: Appeal Book Vol.2, p.368.
The Respondents [sic] Alfa Romeo valued at $16,000 and even acknowledged by the Appellant in her principal affidavit filed 23 November 2000, as the husband’s asset, has been omitted from the Respondent’s asset list at commencement of cohabitation. (original emphasis)
The husband also submitted that his veterinary practice in 1991 was “undervalued at the goodwill value alone of $77,000, without inclusion of plant, equipment, motor vehicle”.
In his submissions on the appeal the husband further said, it appears referring to the valuation of his veterinary practice, that while this issue may be an error of fact, it was “still within His Honour’s discretion to make such a finding and that it was an insufficient reason to appeal the judgment. The respondent relies on Pearce & Pearce [sic]”. In summary the husband submitted “Conclusion: In relation to all of Ground 2, a wealth of evidence was considered and His Honour’s judgment should be upheld as being within the bounds of his discretion” (husband’s submissions, page 7, original emphasis).
As will be apparent when we deal with the husband’s application for an extension of time to cross appeal, the husband changed his position after the filing of these submissions, and asserted the trial Judge was in error in respect of both his findings as to the parties’ assets at the commencement of cohabitation, and the weight afforded by his Honour to the initial contributions.

The trial Judge’s discussion of initial contributions

In his reasons for judgment, the trial Judge identified, in the list of issues to be determined, the issue of the parties’ initial contributions.
The trial Judge found the parties lived together on a full time basis from about June 1991.
Thereafter the trial Judge recorded each party’s assertions about their initial contributions. His Honour noted that the husband claimed to have had $118,369.00 in savings at the commencement of cohabitation. He further noted that the husband relied on a schedule annexed to his affidavit and that the husband tendered a folder of documents to support the assertions in the table prepared by him.
The trial Judge said “[t]he problem with his assertions and his evidence is that the supporting documents are mostly not evidence of the worth of the asset at June 1991”. Thereafter the trial Judge discussed many items in the schedule including a number of term deposits with the National Mutual Royal Savings Bank Ltd, being items number 1 to 8 on the husband’s schedule of initial assets, and concluded “I think there is a probability that the earlier investments may have been incorporated in the latter or alternatively spent by the husband in the acquisition of the Subaru motor vehicle for the wife in 1991”.
The trial Judge made findings that “probably the husband had item 5 in annexure “D” a deposit of $32,016.95; item 7 a deposit of $9,070; Item 8 a deposit of $4,510.35”. He also accepted the husband had a credit with NRMA of $3,480.52. Additionally he made an allowance for an insurance policy owned by the husband, a refund of his provisional tax paid for the 1991 tax year and shares in News Corp. His Honour found “[a]dding all those allowances therefore the total is about $75,618 as evidenced by the documents produced by the husband”.
The trial Judge made two significant findings. First, he recorded “I base my findings on the observations made by me of the husband when he was cross-examined by the wife on these amounts and my assessment of the credit of the husband as a whole”. He also said “I do not think it is reasonable to conclude that unless the husband can produce a document to substantiate a liquid asset, at the date of cohabitation, then he should not be given credit for it”. The trial Judge determined that the husband had liquid assets of approximately $70,000.00, a sum he derived after deducting from the husband’s schedule rejected items and the sum of $10,000.00 paid by the husband to his former wife in September 1991.
In summary, the trial Judge found that the husband had the following assets and liabilities at the date of commencement of cohabitation.
(a)The [North-Western suburbs] property $313,500.
(b)The Vet practice $77,000.
(c)Cash, savings and shares $70,000.
(d)Superannuation $21,798.
(e)Interest in the [Wilde] Family Trust.(the value seems to be part of the value of the practice)
(f)Mazda car $nil.
(g)Subaru car $25,000.
(h)Furniture $5,000.
Liabilities:
(i)Mortgage to Westpac $43,817.
(j)Contingent liability to former wife for property settlement $160,000.
That produces a net of about $308,481. (paragraph 112)
As will become apparent when we discuss the husband’s proposed grounds of cross appeal, we accept the assertion made by the husband that the trial Judge “double counted” the sum of $10,000.00, which he found the husband had paid to his first wife by way of property settlement, by deducting that sum from the husband’s liquid assets, whilst including as a liability the sum of $160,000.00 in determining the husband’s assets at the commencement of cohabitation. We are satisfied the husband’s assets, as found by the trial Judge, should have totalled $318,481.00, not $308,481.00.
The trial Judge found the wife had total assets at the commencement of cohabitation of $310,380.00 which comprised:
(a)      Property [on the Northern beaches] about $255,000.
(b)      Property in Qld. $10,000.
(c)      Toyota Corona $2,000.
(d)      Money owed to her by her brother $20,000.
(e)      AMP life policy $18,380.
(f)       Furnishings $5,000.
Total assets were $310,380.
(paragraph 120)

It appears to us that the husband’s claim about legal fees can be summarised as follows:
(a)the husband asserted he paid legal fees incurred in recovery proceedings against his former wife. He relied on his evidence in cross examination that the source of such funds was from the sale of his Telstra shares. He asserted:
(i)that the trial Judge “added back” into the pool the whole of the judgment debt of $45,492.00 (which included paid costs of $12,313.00);
(ii)the source of funds for the payment of the legal fees was from the sale of Telstra shares of $17,943.00 which the trial Judge also added back;
(iii)that he also paid legal fees for the estate from the sale of the Telstra shares; and
(iv)that the trial Judge also added back $6,896.00 for the estate’s legal fees paid.

(b)therefore he asserted the trial Judge “double counted” the legal fees in respect of the proceedings relating to his former wife and the estate.

The trial Judge found that $13,119.40 of the sum in respect of which the husband seeks a credit was paid to other persons from funds provided by the husband. That finding was founded on a solicitor’s trust account statement and is unimpeachable.
We think it appropriate to note again at this point that the husband failed to put before the trial Judge a clear and cogent explanation of legal fees paid by him in respect of the judgment debt, his late father’s estate and for these proceedings.
It appears to us that the trial Judge did “double count” the legal fees paid by the husband by including as “add backs” the whole of the judgment debt including legal fees and the $6,896.00 paid by the husband to the Queensland solicitors as well as the proceeds of sale of the Telstra shares from which the husband asserted he funded these legal costs.
The double count if corrected would increase the pool of assets by $17,943.00. Whilst that sum is not inconsiderable, we balance it against the total assets found by the trial Judge of $1,870,495.00. We also have regard to the length of the parties’ extensive litigation in this Court, and the need for finality to this litigation. On balance we are not convinced the error is of such magnitude that we should on this factor alone extend time to the husband to cross appeal. We also consider it relevant, having regard to the need for finality, that the extension of time to cross appeal was sought by the husband on 9 June 2006. This was after he had sought from the Full Court, and been granted on 6 April 2006, the indulgence of making an oral application with subsequent written submissions to extend time to appeal only against the slip rule order.

Proposed ground 10

10. His Honour’s opinion that the Wife was unable to work in his determination of Section 75(2) factors was not reasonably open to him and unsupported by the evidence.

The husband submitted “[t]here was no medical evidence called by the Husband in an effort to save costs and time and in the knowledge that previous expert witnesses for both sides had agreed the wife was capable of work with some limitations”. We have already discussed the trial Judge’s assessment of relevant s 75(2) factors at paragraphs 221 to 234. That discussion is apposite to this proposed ground.
The trial Judge made an adjustment in the wife’s favour (after the slip rule order) of 5.18 per cent. Whilst the trial Judge noted the wife’s age and that she “has considerable health problems” it is clear from his careful assessment of all relevant s 75(2) factors that he did not place inappropriate weight on the wife’s earning capacity by reason of ill health. We are satisfied that the adjustment made by the trial Judge pursuant to s 75(2) was at the lower end of the range of orders which might reasonably have been made in the wife’s favour. We discern no appealable error by the trial Judge.

Conclusions – leave to extend time

The husband took no steps to file his slip rule appeal and cross appeal until the hearing of the appeal. It is clear from the transcript that the husband was well aware in October 2005 of the process to seek an extension of time in which to appeal. The husband offered no reasonable explanation for his delay in seeking to extend time in which to cross appeal. Further, and of more significance, we have concluded that the husband’s proposed grounds of appeal would have little prospects of success. Accordingly, the husband’s application for an extension of time to cross appeal the orders made 24 January 2005 and the slip rule order made 20 December 2005 should be dismissed.
We think it necessary to point out that this is the third hearing conducted between these parties, there having been two successful appeals. As the trial judge observed in his reasons for judgment, that meant that evidence and affidavits from the earlier hearings was in evidence in this trial, as were portions of earlier transcripts. Neither party was represented and the trial judge noted that their lack of legal training and experience was evident in the manner in which the case was run. This would have presented difficulties for the parties, but also for the trial judge. In such circumstances, with the plethora of issues and conflicts in the evidence, and the fact that neither party was represented, in our view the trial judge dealt with the many issues which he had to identify without appealable error.

Costs

Neither party in their written submissions addressed the issue of costs of the appeal, and the application to extend time to cross appeal. Section 117(1) of the Act provides that unless the Court otherwise orders, each party will bear their own costs. In this appeal both parties have been unsuccessful. Our preliminary view is that grounds for departure from s 117(1) leading to an award of costs to either party do not appear likely. We will however provide a timetable for the filing of written submissions as to costs in the event that either party seeks an order.

I certify that the preceding two hundred and forty nine (249) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of Australia

Associate:

Date: 6 September 2007