X & X
[1999] FamCA 2254
•7 December 1999
[1999] FamCA 2254
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT PARRAMATTA
EA 71 of 1999
PA 3910 of 1978
BETWEEN:
“X”
(Appellant/Wife)
AND:
“X”
(Respondent/Husband)
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: Nicholson CJ, Ellis and Watt JJ
DATE OF HEARING: 7th day of December 1999.
DATE OF JUDGMENT: 7th day of December 1999.
APPEARANCES; Mr. Shaw of Counsel with Mr. Wilson of Counsel, instructed by A R Walmsley & Co, Solicitors, DX 8602 Windsor, on behalf of the Applicant wife.
Mr. Trench of Counsel, instructed by Ross Selvaggio & Associates, Solicitors, DX 8484 Castle Hill, on behalf of the Respondent husband.
CATCHWORDS: EVIDENCE – Admissibility – Judicial Notice - inferences in relation to the significance or otherwise of the wife having genital herpes - Section 144 of the Evidence Act 1995 (Cth)
COSTS – Successful appeal on the basis of error of law – Orders of trial Judge not varied or disturbed in the re-exercise of discretion – Appellant ordered to pay respondent’s costs of and incidental to the appeal.
This was an appeal against orders for property settlement made by Coleman J. The trial was conducted upon the basis that contribution was equal and his Honour effected a division of property consisting of assets of $1,334,890 in the proportion 55 per cent to the wife and 45 per cent to the husband
The principal matter of contention was the proper allowance to be made for section 75(2) factors under the Family Law Act 1975. The wife asserted there should be an allowance of 10 per cent whereas the husband asserted that no adjustment should be made. Counsel for the applicant wife submitted before his Honour that there were four matters under the heading of section 75(2) factors which needed to be considered:
In respect of superannuation, his Honour determined that an adjustment was required favouring the wife in this regard. The second matter was long service leave, and his Honour did not take the husband's notional entitlement to long service leave into account. The third matter was disparity of earnings and in this regard his Honour found that the husband had a greater earning capacity than the wife and that this should be reflected in an adjustment in favour of the wife.
The fourth matter was the wife’s health. In this regard, his Honour found that on the balance of probabilities the husband was responsible for the wife contracting genital herpes and that the wife’s condition was relevant to the question of an adjustment pursuant to section 75(2)(o) of the Act. His Honour lamented the lack of medical evidence before him. He considered that the Court was placed in a position where it had to rely upon judicial notice in order to draw any inferences in relation to the significance or otherwise of the wife having genital herpes. His Honour proceeded on the basis that “the test is whether a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it.”
The Full Court raised with counsel at an early stage of the appeal, whether the trial Judge had applied the right test, having regard to the commencement on 18 April 1995 of section 144 of the Evidence Act 1995 (Cth) which applies to proceedings in the Family Court of Australia by virtue of section 4 and section 8 of that Act.
Held per curiam: appeal allowed; order made by the trial Judge not disturbed; appellant to pay the respondent’s costs of the appeal.
Section 144 Evidence Act 1995 (Cth) is the only test to which the trial Judge should have made reference in this case, and he did not do so. Had his Honour applied the correct test, it is clear that he could not have accepted without proof the range of facts upon which he relied for the basis of his own knowledge. In any event, even applying tests that have been traditionally applied at common law, it would not have been open to his Honour to have had regard to the width of matters that he did, particularly having regard to the field of specialised medical knowledge within which they fall. The Court also drew attention to subsection 144(4) which provides:
“The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced."
Even leaving aside the matter of the wife’s heath, the trial Judge’s orders should not be varied or disturbed. The disparity in earnings between the parties will also be reflected in the future in the disparity in superannuation, thus further advantaging the husband. The argument before the Full Court proceeded upon the basis of a ten year period of earnings by both parties, at or about their present level. The Full Court held that an adjustment of 5 per cent as made by the trial Judge for section 75(2) factors overall produced a just and equitable outcome in the circumstances.
Even though the appellant had successfully identified an error of law, in circumstances where the trial Judge’s order had not been disturbed or varied, and it had been found that the appellant had nothing to complain about the result before the trial Judge, he should pay the wife’s costs of and incidental to the appeal.
REPORTABLE
NICHOLSON CJ:
This is an appeal by the husband against orders for property settlement made by Coleman J on 6 August 1999. His Honour directed that the proceedings be referred to as "X" versus "X" in lieu of the surnames of each of the parties, having regard to the sensitive issues involved in the case.
His Honour effected a division of property consisting of assets of $1,334,890 in the proportion 55 per cent to the wife and 45 per cent to the husband.
I note that a different total figure appeared in the appeal book at page 22 that being a total pool of $1,347,890. I assume, although I will give counsel an opportunity to address the Court if necessary, that the correction was made as a result of some discussion and that what appears in the order is in fact the correct figure.
The background facts are that the wife was born on 27 March 1951 and was thus aged 48 at the time of the hearing. The husband was born on 15 August 1951 and was thus aged nearly 48 at the time of hearing.
The parties married in 1970 and finally separated in 1998. There were two children of the marriage born in 1971 and 1973. At the time of their marriage, neither party had any assets of any significance and each was in employment. It is unnecessary to deal with the history of the marriage in relation to contribution. The trial was conducted upon the basis that contribution was equal.
There was also a claim for spousal maintenance by the wife which his Honour dismissed. He found that as she was receiving funds of about $741,000 she could not contend that she was unable to support herself without spousal maintenance.
The trial Judge found that the factual matters in issues between the parties were very limited and I quote:
"The pool of property is not in issue, nor are the orders which are necessary consequent upon an apportionment of that pool of property to give effect to two matters, one being the incidence or potential incidence of income tax, the other being consequential orders with respect to shareholdings in and loan accounts in respect of a corporation, which is beneficially owned by the parties.”
The principal matter of contention was the proper allowance to be made for section 75(2) factors under the Family Law Act 1975 (Cth) ("the Act"). The wife asserted there should be an allowance of 10 per cent whereas the husband asserted that no adjustment should be made in that regard. Counsel for the applicant wife submitted before his Honour that there were four factors under the heading of section 75(2) factors which needed to be considered.
The first of these was superannuation, and his Honour determined that an adjustment was required favouring the wife in this regard.
10. The second matter contended for was long service leave, and his Honour did not take the husband's notional entitlement to long service leave into account. I see no reason to disagree with his Honour's approach to this issue.
11. The third matter was disparity of earnings and in this regard his Honour found that the husband had a greater earning capacity than the wife and that this should be reflected in an adjustment in favour of the wife.
12. The final ground was the wife's health. This was said by his Honour to be relevant pursuant to section 75(2)(o) of the Act. His Honour said, and I quote:
“If one accepts, as I do, for reasons which I will briefly outline shortly, that the respondent was responsible for the applicant contracting the genital herpes from which she presently suffers, then, prima facie, one would be entitled as a matter of justice and equity to have regard to that in her favour. Whether one looks at it in terms of a fiduciary duty, or a duty of care, or in some other way, it is very hard to avoid coming to the conclusion, in a cohabitation of this duration with the contributions which the evidence reveals the parties both made, the children they had, the ventures in which they were involved and the efforts which they each put into their very lengthy relationship, that there was not incumbent upon the respondent an obligation to take reasonable steps to ensure that he did not cause his partner to be infected with a sexually transmitted disease.”
13. The trial Judge found that one must look at the evidence in order to determine whether on the balance of probabilities the respondent was responsible for the applicant contracting the condition which she undoubtedly did contract. His Honour found that on the balance of probabilities the husband was responsible for the wife contracting the condition.
14. The difficulty which his Honour did have was, as he put it “the regrettable absence of any medical evidence”. He said:
“It is a matter of enormous regret that the Court does not have the evidence it would have desired, by which I do not mean evidence enabling the Court to make the adjustment larger. The Court should have been far better informed than it has been in relation to the disease and thereby better able to do justice to both parties.”
15. His Honour considered that as a result of the lack of medical evidence, the Court was placed in a position where it had to rely upon judicial notice in order to draw any inferences in relation to the significance or otherwise of the wife having genital herpes.
16. In dealing with this issue, his Honour referred to authorities such as Australian Communist Party v Commonwealth(1951) CLR 83 (at 196 per Dixon J), Holland v Jones(1917) 23 CLR 149 (at 153 per Isaacs J) and Deputy Federal Commissioner of Taxation (NSW) v W.R. Moran Pty Limited(1939) 61 CLR 735, his Honour said:
“I am content to proceed on the basis that the test is whether a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it. So doing appears to me the most favourable test so far as the Respondent is concerned. How then does one translate that to the present circumstances? It is I think sufficiently generally known for me to be able to notice, to use the terminology of Isaacs J, that genital herpes is a condition which may be incurable. It is open to me to notice that it may be dormant for lengthy periods and may surface from time to time. It is, I think, open to me to notice that it is likely that such a condition would affect a person in his or her life, particularly in the area of forming and maintaining relationships of a sexual nature.
It is I think a matter that can be noticed that, given the choice, any ordinary person would prefer to go through life not suffering from genital herpes than suffering from it. It is a matter that I can notice that the condition would be a significant impediment to one’s psychological, if not physical, well being. It is conceivable that other people know a great deal more about the condition than I do and it is certain that there could have been medical evidence which would have shed a great deal more light on the topic than I possibly can via judicial notice. That evidence is not there. To the extent that such evidence would have helped the applicant to persuade me that a larger adjustment is warranted than I am otherwise disposed to award, I have regrets, but these being adversarial proceedings I cannot legitimately and will not legitimately go beyond what I can properly judicially notice.”
17. This emerged as the most significant passage of the judgment for the purposes of the appeal because we raised with counsel at an early stage, whether his Honour had applied the right test, having regard to the commencement on 18 April 1995 of section 144 of the Evidence Act 1995 (Cth) which applies to proceedings in this Court by virtue of section 4 and section 8 of that Act.
18. In my view, section 144 is the only test to which his Honour should have made reference in this case, and he did not do so. Section 144(1) provides:
“SECT 144 Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.”
19. Importantly, subsection 4 provides:
“The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced."
20. I consider that this is clearly a different test to the test applied by his Honour, and also draw attention to the procedural safeguard referred to in subsection 4.
21. In my view, had his Honour applied the correct test it is clear that he could not have accepted without proof the range of facts upon which he relied for the basis of his own knowledge.
22. In any event, even applying tests that have been traditionally applied at common law, it would not, in my opinion, have been open to his Honour to have had regard to the width of matters that he did, particularly having regard to the field of specialised medical knowledge within which they fall (see also S and P, NA 32 of 1995, Full Court of the Family Court of Australia, unreported, judgment delivered 29 April 1997 per Fogarty, Lindenmayer and Finn JJ).
23. It therefore follows that I consider that his Honour made an error of law in relation to his findings in relation to section 75(2)(o).
24. Taking into account what he saw to be the three relevant factors pursuant to section 75(2), namely the disparity in income between the parties, the difference in superannuation and the wife's health, his Honour made a 5 per cent adjustment in favour of the wife. As to the wife's health, his Honour ascribed an adjustment of $50,000 in that regard. Accordingly, the wife received 55 per cent of the total pool which amounted to her receiving, on his Honour's calculation, $741,439 with the husband receiving 45 per cent or $606,550.
25. Having regard to the above I am satisfied that his Honour did make an error in the appellate sense. Accordingly I consider that this is a case appropriate for the re-exercise of the Court's discretion.
26. Mr Shaw for the wife submitted that in doing so we should arrive at the same adjustment as his Honour in fact made. Mr Trench submitted on behalf of the husband that after deducting the $50,000 applied by his Honour in relation to the issue of the wife's health, we should make no further adjustment based upon the remaining factors than did his Honour and simply adjust the outcome by reducing the sum which the wife would become entitled to by $50,000.
27. In my view, however, the relevant factors referred to in section 75(2) are the disparity in earnings and earning capacity of the parties and their superannuation entitlements.
28. I accept his Honour's finding that there was an annualised disparity of $600 per week in their current earnings and this finding was not challenged in argument before us. The difference in superannuation entitlements was as to the wife $15,661.24 and as to the husband $27,533. However, while these sums are comparatively modest, as was pointed out in the course of argument, the disparity in earnings will also be reflected in the future in the disparity in superannuation, thus further advantaging the husband.
29. The argument before us proceeded upon the basis of a ten year period of earnings by both parties, at or about their present level. In my view in these circumstances an adjustment of 5 per cent is appropriate having regard to these factors and to the amount each will receive pursuant to these orders. I consider that such an adjustment produces an outcome that is just and equitable in the circumstances.
30. It follows therefore, subject to any arithmetical alterations that might be made following submissions concerning the apparent disparity between his Honour's findings in the course of his reasons for judgment and the amount appearing in the order, I would not vary or disturb the orders made by his Honour and it would therefore also follow that the appeal should be dismissed.
RECORDED : NOT TRANSCRIBED
NICHOLSON CJ:
31. In this matter I consider that an order for costs should be made in the sum of $4000 against the appellant. The reasons may be put briefly.
32. It may be, as Mr Trench says, that there was an interesting and difficult point. However, if one looks at the overall finding that was made by his Honour and my finding that the husband really had nothing to complain about as a result of his Honour's orders, I see no reason why he should not pay the wife's costs of and incidental to the appeal. I would so order.
ELLIS J:
33. I agree with the reasons of the Chief Justice for dismissing the appeal. There is nothing further I wish to add in relation thereto. I agree with the other orders proposed by him.
WATT J:
34. I also agree with the reasons given and the orders proposed by the learned Chief Justice and with the order for costs.
NICHOLSON CJ:
35. The orders will be that:
The appeal is dismissed;
That the husband pay the wife's costs of and incidental to the appeal fixed at $4000.
I certify that the previous 35 paragraphs a true copy of the reasons for judgment
published by this Honourable Full Court
Danny Sandor
Senior Legal Associate to the Chief Justice
19 April 2000.
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