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Monday, June 25, 2012

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the wife sought leave to adduce evidence of the orders made by the trial judge subsequent to the orders the subject of the appeal – where those orders dramatically changed the parenting arrangements by providing for the children to live with the wife rather than with the husband – where counsel for the wife argued that the subsequent orders conclusively confirmed the uncertainty surrounding the children’s future at the time the orders appealed against were made and that the trial judge should not have adjusted the parties’ property settlement entitlements on the basis of the husband having responsibility for the future care of the children – leave granted. FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the husband’s appeal was in part abandoned and in part conceded by the wife leaving only the wife’s cross-appeal – where the trial judge made various mistakes of fact – where the trial judge failed to give adequate reasons for adopting the global approach rather than the asset by asset approach in assessing the parties’ contributions – where the trial judge erred in departing from the parties’ common position as to superannuation without providing any adequate reason – where the trial judge erred in making an adjustment on the basis of who would have the future care of the children when the trial judge had only made interim parenting orders – where the trial judge erred in failing to deal in any way with the wife’s claim in relation to chattels – appeal and cross-appeal allowed – matter remitted for rehearing. FAMILY LAW – APPEAL – COSTS – no order made as to costs and costs certificates granted to both parties in relation to the appeal and the cross-appeal and the new trial pursuant to ss 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).


Prantage & Prantage [2012] FamCAFC 84 (20 June 2012)

Last Updated: 22 June 2012
FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE[2012] FamCAFC 84

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the wife sought leave to adduce evidence of the orders made by the trial judge subsequent to the orders the subject of the appeal – where those orders dramatically changed the parenting arrangements by providing for the children to live with the wife rather than with the husband – where counsel for the wife argued that the subsequent orders conclusively confirmed the uncertainty surrounding the children’s future at the time the orders appealed against were made and that the trial judge should not have adjusted the parties’ property settlement entitlements on the basis of the husband having responsibility for the future care of the children – leave granted.

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the husband’s appeal was in part abandoned and in part conceded by the wife leaving only the wife’s cross-appeal – where the trial judge made various mistakes of fact – where the trial judge failed to give adequate reasons for adopting the global approach rather than the asset by asset approach in assessing the parties’ contributions – where the trial judge erred in departing from the parties’ common position as to superannuation without providing any adequate reason – where the trial judge erred in making an adjustment on the basis of who would have the future care of the children when the trial judge had only made interim parenting orders – where the trial judge erred in failing to deal in any way with the wife’s claim in relation to chattels – appeal and cross-appeal allowed – matter remitted for rehearing.

FAMILY LAW – APPEAL – COSTS – no order made as to costs and costs certificates granted to both parties in relation to the appeal and the cross-appeal and the new trial pursuant to ss 6, 8and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).


Bennett and Bennett (1991) FLC 92-191; 14 Fam LR 397
De Winter and De Winter (1979) FLC 90-605; 23 ALR 211; 4 Fam LR 583
Gronow v. Gronow [1979] HCA 63; (1979) 144 CLR 513
Metwally v University of Wollongong (1985) 60 ALR 68
Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513
Rand & Rand [2010] FamCAFC 167; (2010) FLC 93-444; 43 Fam LR 570
Wilde & Wilde [2007] FamCA 1044
Zalewski and Zalewski [2005] FamCA 996; (2005) FLC 93-241; 34 Fam LR 296

APPELLANT/CROSS-RESPONDENT:Mr Prantage

RESPONDENT/CROSS-APPELLANT:Ms Prantage

FILE NUMBER:MLC11263
of2008






APPEAL NUMBER:SOA12
of2011

DATE DELIVERED:20 June 2012

PLACE DELIVERED:Adelaide

PLACE HEARD:Melbourne

JUDGMENT OF:Finn, May & Strickland JJ

HEARING DATE:28 July 2011

LOWER COURT JURISDICTION:Family Court of Australia

LOWER COURT JUDGMENT DATE:24 December 2010

LOWER COURT MNC:[2010] FamCA 1198

REPRESENTATION

COUNSEL FOR THE APPELLANT/CROSS-RESPONDENT:Ms Nikou SC with Ms Benjamin

SOLICITOR FOR THE APPELLANT/CROSS-RESPONDENT:Gadens Lawyers

COUNSEL FOR THE RESPONDENT/CROSS-APPELLANT:Ms Smallwood

SOLICITOR FOR THE RESPONDENT/CROSS-APPELLANT:Lampe Family Lawyers

ORDERS
(1) The appeal and the cross-appeal be allowed.
(2) Orders 15 to 21 inclusive made by Cronin J on 24 December 2010 be set aside.
(3) The applications for property settlement be remitted to the Family Court of Australia for rehearing by a judge other than Cronin J.
(4) The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal and the cross-appeal.
(5) The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal and the cross-appeal.
(6) The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered. 
IT IS NOTED that publication of this judgment by this Court under the pseudonym Prantage & Prantage has been approved by the Chief Justice 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: MLC 11263 of 2008
File Number: SOA 12 of 2011

Mr Prantage
Appellant/Cross-Respondent
And

Ms Prantage
Respondent/Cross-Appellant

REASONS FOR JUDGMENT
INTRODUCTION
  1. By way of Notice of Appeal filed 21 January 2011, Mr Prantage (“the husband”) appeals against one of the property settlement orders made by Cronin J on 24 December 2010. The respondent in the appeal, Ms Prantage (“the wife”), filed a Notice of Cross-Appeal on 17 February 2011 appealing against both some of the property settlement and one of the parenting orders made by Cronin J on 24 December 2010, although on 13 July 2011 she sought to amend her Notice of Cross-Appeal to only appeal against the property settlement orders. The wife also filed an Application in an Appeal on 30 June 2011 seeking leave to adduce further evidence at the hearing of the appeal and cross-appeal.
  2. In summary, the property settlement orders made by Cronin J provided for the wife to pay the husband $140,700 and transfer to him her interest in the P property. Each party was to retain their own superannuation, the wife was to retain the E property, a taxi cab licence and National Australia Bank shares, and the husband was to retain the Telstra shares and the Commonwealth Bank Streamline account. The orders also provided for the husband to transfer to the wife any interest or corporate responsibility he may have in V Pty Ltd, and for the wife to indemnify the husband against any taxation liability arising from the activities of that company.
  3. The one parenting order that the wife initially sought to appeal against was an order providing that until further order, the husband have responsibility for making major long-term decisions concerning the children’s health and education, provided that at all times he notify the wife of such decisions in writing. In her formal Amended Notice of Cross-Appeal tendered the day of the hearing of the appeal, namely 28 July 2011, this order was deleted from the section in the Notice identifying the orders appealed against, and the orders sought in the Notice that related to this order were also deleted. However, the grounds of appeal relating to this order were not deleted. Nevertheless, during the hearing it was clarified that in these circumstances there was no longer any cross-appeal against that order.
  4. In his Notice of Appeal the husband sought an order that the wife pay him $339,637, but during submissions the husband’s senior counsel altered this to $180,700. In her Notice of Cross-Appeal the wife sought orders that the husband pay her $728,000, that she retain all the assets and liabilities of the OS Family Trust, that she have possession of certain chattels, and that a cash payment be made to her to achieve an equal distribution of the parties’ superannuation entitlements.
  5. In relation to the appeal, there were two grounds of appeal relied upon. However, the second ground was abandoned and during the hearing before us the first ground of appeal was conceded by the wife. However, that still left open the issue of whether we would re-exercise the discretion in relation to the conceded ground of appeal or remit the matter for rehearing by the Family Court of Australia. We will address this issue later in these reasons.
BACKGROUND
  1. At the time of trial the wife was aged 40 years and the husband was aged 44 years.
  2. The wife works as a teacher on a limited part-time basis, and the husband is employed with a multi-national corporation.
  3. The parties married in 1997 and separated on 16 November 2008.
  4. There are two children of the marriage, M Prantage, born December 1998 and D Prantage, born June 2002.
  5. The matter was heard by Cronin J over 11 days between July and September 2010 and final written submissions were filed on 18 October 2010. His Honour made orders and handed down his reasons for judgment on 24 December 2010.
THE REASONS FOR JUDGMENT OF THE TRIAL JUDGE IN RELATION TO PROPERTY SETTLEMENT
  1. The trial judge acknowledged that much of the focus of the proceedings was on the parenting dispute and accordingly the first 455 paragraphs of his Honour’s reasons related solely to the parenting issues. In summary, his Honour made orders discharging all existing parenting orders and adjourning all outstanding parenting proceedings. His Honour also made various orders to facilitate the parties’ attendance at counselling for the purpose of endeavouring to establish a relationship between the wife and the children, and for the counsellor to assist the parties in their time spent with the children. Until further order the children were to live with the husband, the husband was to have responsibility for major long term decisions concerning the children’s health and education, and the children were to spend time with the wife each Sunday from 12 noon until 6:00pm. Orders were also made allowing the Independent Children’s Lawyer and the children’s psychologist, Ms G, to advise the children in age-appropriate language of the Court’s findings in relation to an incident at separation and the orders that had been made in relation to counselling, the time the children were to spend with the wife, and the future course of the parenting proceedings.
  2. Upon turning to consider the property issues, his Honour first outlined the orders sought by each party in relation to property. In summary, the husband sought to retain the former matrimonial home, namely the P property, and his superannuation. The husband also sought orders that the wife pay him approximately $471,000 and a share of various expenses relating to the parenting litigation. The wife proposed that the husband retain the P property and pay the wife $728,000. She also sought that there be a split of the husband’s superannuation interests, such that she be entitled to $94,284.
  3. The trial judge went on to outline the four step approach to determining issues of property settlement as suggested by the Full Court in Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143.
  4. The trial judge first noted that only the husband tendered a schedule of assets and liabilities (referred to as a “balance sheet” by his Honour), and although that was not disputed by the wife, counsel for the wife persuaded his Honour to disregard a term deposit and a savings account deposed to in the husband’s affidavit because there was no evidence as to “where the money came from” and “it seemed common ground that there were virtually no savings at the time of separation”.
  5. As to each party’s financial position at the time of trial, his Honour recorded that the husband had incurred over $400,000 in legal fees, for which he had secured a commercial loan over his parents’ house, and that the wife also owed money to members of her family. The trial judge considered that those debts were to be treated as personal liabilities and, given the size of the pool,
    his Honour also disregarded a number of “modest items”. The trial judge proceeded to itemise the parties’ pool of assets, which totalled $3,098,767 and a further $241,357 in superannuation.
  6. His Honour outlined the Court’s approach to the second step of the process as referred to in Mallet v. Mallet [1984] HCA 21; (1984) FLC 91-507, Norbis v. Norbis [1986] HCA 17; (1986) FLC 91-712 and Hayton v Bendle [2010] FamCA 592; (2010) 43 Fam LR 602, before turning to consider a number of disputes between the parties.
  7. The first dispute between the parties related to the OS Family Trust. The trial judge accepted the evidence of the wife’s father that he relinquished control of the trust to the wife and her sister in 2001. His Honour noted it was common ground that the wife did not receive money from the trust during the marriage, although no explanation was given by the wife or her sister as to what happened to the accrued profits retained in the trust. On the evidence the trial judge could only conclude that the wife did not receive the declared distributions and that distributions were not made, although his Honour determined to treat the issue as relating to contributions. His Honour ultimately found that one half of the trust belonged to the wife, including the “ongoing capacity to earn income”.
  8. The second dispute related to each party’s initial contribution when they married and commenced living together in 1997. In summary, the husband already owned the P property, which he had purchased five years before the marriage for $135,000 with an $80,000 mortgage. His Honour accepted the only evidence as to the property’s subsequent value, which was presented by the wife as being $200,000 subject to a $35,000 mortgage. The husband also had a motor car which was subsequently of little value and superannuation interests of approximately $35,000. His Honour accepted the wife’s evidence that she had savings of $35,000, which she used to reduce the mortgage on the P property, and approximately $8,000 in superannuation.
  9. The trial judge determined that the husband’s contribution at the start of the marriage was “much greater” than that of the wife.
  10. The next dispute related to funds provided by the wife’s family during the marriage, namely that in July 2004 N Pty Ltd (the trustee of the wife’s parents’ family trust) provided $300,000 to the wife, and in 2005 provided a further $100,000 towards the rebuilding of the home at the P property. It was the wife’s evidence that the balance of unused N Pty Ltd money had grown to $268,000 by October 2006, whilst the husband said that $40,000 had been spent on the house and that he did not know what happened to the balance. The wife asserted that in 2007 V Pty Ltd (as trustee for the OS Family Trust) brought a NSW taxi licence for $365,000, which was financed by a $100,000 bank loan secured against the E property, which had been gifted to the wife by her parents, and the money left over from the house renovation. It was the husband’s evidence that $200,000 was received from N Pty Ltd but that he gave it back to his father-in-law in small amounts from cash kept in a safe at the former matrimonial home. The trial judge though preferred the wife’s evidence.
  11. His Honour then determined that the wife’s contributions subsequent to the marriage, “through the assistance of the family trust far outweighed those of the husband” at the start of the marriage.
  12. After determining that the global approach was more appropriate because otherwise it “would mean the exclusion of [the E property] from the trust”, and because the value of the taxi licence had increased since its purchase, the trial judge concluded that the proper assessment of the parties’ contributions was 65 per cent / 35 per cent in favour of the wife. We observe that the reference to the E property in the context of a trust was a factual error by his Honour which will later be discussed.
  13. Turning to the third step and the relevant s 75(2) factors, the trial judge considered each party’s financial resources. In summary, the wife would have her half of the family trust, an investment capacity and her limited capacity to work, whilst the husband had security of tenure in his work. His Honour also considered the husband’s responsibility for the care of the two children and noted that it was not reasonable for the parties to continue to have the same comfortable standard of living they had before separation. After considering the proposed property settlement division and child support arrangements,
    his Honour determined that the disparity between the parties’ financial circumstances justified a 5 per cent adjustment in favour of the husband.
  14. The trial judge then turned to consider issues as to the parties’ superannuation.
  15. His Honour found that at the commencement of the relationship the husband’s superannuation was “significantly greater” than that of the wife, but that the contributions made during the marriage were equal, with both parties benefiting from the growth of their entitlements as a result of “market forces”. As no argument was put about post-separation superannuation contributions, the trial judge determined that the contributions favoured the husband as to
    55 per cent.
  16. His Honour did not consider that a superannuation splitting order would meet the current needs of both parties, and therefore determined that the best way to achieve a just and equitable result would be a cash adjustment of $60,000 in favour of the wife.
  17. His Honour found the wife’s entitlement to 60 per cent of the non-superannuation assets was $1,859,260, which required the wife to pay $182,700 to the husband. His Honour proposed though that the $60,000 cash adjustment, and the wife’s contribution to various litigation costs which
    his Honour fixed at $18,000, should be offset against that amount and therefore, the wife would ultimately be required to pay the husband $140,700.
ORDERS MADE 24 DECEMBER 2010
  1. Cronin J made the following orders in relation to property settlement:
...
  1. That the wife pay to the husband $140,700 such sum to be paid by agreement and failing agreement by 28 February 2011.
  2. That upon production by the husband of a transfer of land in registrable form, the wife do all acts and things and sign any necessary document to transfer to the husband at his expense, all of her interest in [the P property].
  3. That the wife retain and the husband relinquish any interest in:
    • (a) [the E property];
    • (b) New South Wales taxi cab licence ... licence number... ; and
    • (c) The National Australia Bank shares.
  4. That the husband retain and the wife relinquish any interest in:
(a) the Telstra shares; and
(b) the Commonwealth Bank Streamline account.
  1. That each party retain their superannuation and the other party relinquish any interest in the superannuation interests of the other.
  2. That the husband do all things required to transfer to the wife, at her expense, any interests he may have in [V Pty Ltd] and sign any document to relinquish any corporate responsibility for that entity.
  3. That the wife pay and indemnify the husband against any taxation liability arising from the activities of [V Pty Ltd].
  4. That all property applications be otherwise dismissed.
...
  1. The husband appeals against Order 15.
  2. The wife now appeals against Orders 15, 16 and 19.
APPLICATION TO ADDUCE FURTHER EVIDENCE
  1. On 30 June 2011 the wife filed an Application in an Appeal and her supporting affidavit seeking leave to adduce further evidence at the hearing of the cross-appeal.
  2. The husband filed his Response to the wife’s Application, opposing the same, along with his supporting affidavit, on 26 July 2011.
  3. By this application the wife sought to put into evidence the orders made by Cronin J on 22 June 2011. They provided as follows:
IT IS ORDERED
  1. That paragraphs 4 to 9 inclusive of the orders made 24 December 2010 are discharged.
UNTIL FURTHER ORDER:
  1. That the wife have responsibility for making major long term decisions concerning the health and education of the children [M PRANTAGE] born ... December 1998 and [D PRANTAGE] born ... June 2002 (“the children”) provided that at all times she notify the husband of such decisions in writing care of his lawyers.
  2. That commencing forthwith the children live with the wife.
  3. Save as provided in paragraphs 8 and 7(c) of these orders, the children spend no time nor communicate with the husband (and without the husband admitting the necessity for such order).
  4. The husband by himself, his servants and agents (such expression to include the husband’s parents) be and are hereby restrained from communicating or attempting to communicate with either or both of the children in any manner including but not limited to text messages, email, Facebook or any other form of social communication.
  5. That the wife be at liberty to remove the children from their respective schools forthwith until the commencement of Term 3 2011.
  6. That for the purposes of resumption of the attendances of the parents and the children upon [Dr NZ] pursuant to paragraph 3 of the orders made 24 December 2010:
(a) the mother, father and the children shall attend upon
[Dr NZ] as and when requested by [Dr NZ];
(b) the cost of appointments with [Dr NZ] be borne equally between the husband and the wife but be subject to review in any future proceedings; and
(c) unless otherwise directed by [Dr NZ], there be no meeting between the father and either or both children prior to 30 September 2011 and thereafter, as directed by [Dr NZ].
  1. That the father be at liberty to forward cards and presents through [Dr NZ] and the mother be at liberty to deliver cards and messages from the children to the father through [Dr NZ] with [Dr NZ] being at liberty to withhold all or any such cards and messages.
  2. The parties have liberty to apply on formal application.
  3. That the Independent Children’s Lawyer be at liberty to provide a copy of this order to any other person or persons he considers ought receive a copy of same.
  4. That as soon as practicable this day, a family consultant appointed by the Director of Child Dispute Services attend upon the children to explain to them the terms and conditions of these orders AND IT IS REQUESTED that the principals of the respective schools of the children do all things necessary to assist in enabling the family consultant the opportunity to explain these orders to the children.
  5. That in the event that either or both of the children contact the father and/or attend his home and/or attend the home of the paternal grandparents, the father do all such things required to ensure that the children and/or child are immediately returned to the home of the mother.
  6. That until further order each party [Ms PRANTAGE] born
    ... 1970 and [Mr PRANTAGE] born ... 1965 their servants and/or agents be and are each hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the said children [M PRANTAGE born ... December 1998 (female) and [D PRANTAGE] born ... June 2002 (male) from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said children’s names on the Watch List until the Court orders its removal.
  7. That all interim applications be otherwise dismissed.
...
  1. As can be seen this order dramatically changed the parenting orders that were put in place on 24 December 2010. It was argued that it was appropriate to admit this order into evidence on the basis that it conclusively confirmed the uncertainty surrounding the children’s future as at 24 December 2010 and
    his Honour should not have adjusted the parties’ respective entitlements to property settlement by increasing the husband’s entitlement by five per cent on the basis of him having the responsibility for the future care of the children.
  2. We received this order following the concession by the husband’s senior counsel that we should see it. By agreement with counsel we also noted that the issue of the future of the children was due to be addressed again by the trial judge in December 2011.
  3. During the hearing before us the wife also made in effect an oral application to adduce further evidence in the form of the reasons for judgment of Cronin J for making the orders that he did on 22 June 2011, and the expert report that was before his Honour at that time. However, on the basis that we received into evidence the actual order made, it was agreed by counsel that it was unnecessary for us to have this further evidence.
GROUNDS OF APPEAL AND ORDERS SOUGHT
  1. The grounds of appeal as contained in the Notice of Appeal filed by the husband on 21 January 2011 are as follows:
    1. That the learned Trial Judge was in error in his calculation of the property pool by understating the pool by $100,000 in referring to the taxi loan as $144,165 notwithstanding the written submissions of the Husband filed on 29 September 2010 and the Wife filed
      18 October 2011 which agreed the taxi loan was $44,165.
    2. That the learned Trial Judge was in error in his calculation of the cash adjustment in favour of the Husband in that he calculated it as if a property settlement distribution was to be 60% to the Wife and 40% to the Husband whereas at paragraph 514 of the Reasons for Judgment he determined that it ought be 55% to the Wife and 45% to the husband.
  2. As referred to already though Ground 2 was abandoned and Ground 1 was conceded by the respondent. Thus, the appeal will be allowed, although as also referred to above, it is still necessary for us to determine whether the discretion will be re-exercised or whether the matter is to be remitted for rehearing to the Family Court of Australia.
  3. The grounds of appeal as contained in the wife’s Amended Notice of Cross-Appeal are as follows:
    1. That the Trial Judge erred in his exercise of discretion with respect to assessing contribution to the asset pool in that he took into account facts, findings and considerations contrary to the evidence.
    2. That the Trial Judge was mistaken in fact at paragraph 487 when he stated that the house owned by the husband prior to marriage, situate on [the P property] land, sold after the marriage for $600,000. The uncontroversial evidence was that it sold for $6,000.
    3. That the Trial Judge was mistaken in fact at paragraph 492 when he stated the wife gave evidence that her parents had sold a property and ultimately she received the tenanted property at [E]. The uncontroversial evidence was that the parents had demolished the existing home at [E] and built two units thereon and gave the wife one unit being [the E property].
    4. That the Trial Judge erred at paragraph 496 when he found the money received from [N Pty Ltd] was for the benefit of both the husband and the wife. The evidence was that it was paid solely to the wife.
    5. That the Trial Judge erred in adopting a global approach rather than an asset by asset approach in assessing the respective contributions of the husband and the wife to the property.
    6. That the Trial Judge was mistaken in fact at paragraph 498 when he found that an asset by asset basis for contribution assessment would mean [the E property] was excluded from the trust.
      [The E property] was a discrete asset and not connected to the trust.
    7. That the Trial Judge erred when he limited the wife’s contribution at paragraph 500, in that he omitted to include at all her financial contribution of $140,000 to [the P property] and her non-financial contributions throughout the marriage.
    8. That the Trial Judge erred when he failed to take into account sufficiently or at all the wife’s contribution during the course of the marriage, found by him as being indistinguishable with that of the husband at paragraph 494, which contribution was additional to the sums of money and assets provided by her parents to her.
    9. That the Trial Judge erred when he found that the wife had and would have an investment property at [the E property], from which she could generate income.
    10. That the Trial Judge was mistaken in fact when he found at paragraph 534 that the wife had never at any state suggested she was moving in to live at [the E property]. That finding was contrary to the evidence of the wife at paragraph 93 of her trial affidavit and her consistent evidence during the trial, being the only evidence on that matter before the Court.
    11. That the Trial Judge was mistaken in fact when he found the wife would be entitled in the future to receive income from [the E property], which property, on the evidence, was to be her home.
    12. That the exercise of discretion fell outside the reasonable ambit of judicial discretion open to the Trial Judge.
    13. That the exercise of judicial discretion miscarried in that the Trial Judge failed to give proper consideration and adequate assessment to the contributions to the asset pool by the wife of $2,188,000, compared to that of the husband of $165,000, within an asset pool totaling [sic] $3,197,835.
    14. That the Trial Judge erred in his discretion when attributing 55% to the husband by way of contribution to the superannuation assets.
    15. That the weight placed by the Trial Judge on the sum of $27,000 contributed by the husband over and above that of the wife to superannuation was disproportionate to and inconsistent with the weight placed by him on the wife’s contribution of $2,023,000 over and above the husband to other assets.
    16. That the Trial Judge placed undue weight on the initial superior contribution to superannuation made by the husband of $27,000 more than the wife.
    17. That the Trial Judge failed to provide any or any proper reason for his calculation of the wife’s reduced superannuation adjustment and / or payment in lieu thereof.
    18. That the Trial Judge erred when assessing a 5% loading to the husband pursuant to section 75(2) at paragraph 505, in circumstances where he could not anticipate the children’s residential future. The Trial Judge only made an interim order in that regard.
    19. That the Trial Judge erred when he found the husband’s work and financial capacity was restricted by the care of the children. The Trial Judge at paragraph 505 relied upon a consideration that was not open to him on any evidence.
    20. That the finding made by the Trial Judge at paragraph 506 that the husband has the burden of the children is not consistent with the child support departure orders made by him and the order requiring the wife to pay half [sic] children’s expenses from her property entitlement.
    21. That the Trial Judge failed to take into account the financial benefit to the husband and the contemporaneous disadvantage to the wife of the husband’s sole use of the unencumbered home following separation to trial.
    22. That the Trial Judge erred when he calculated an adjustment to be paid by the wife in the sum of $18,000 to the husband.
    23. That the Trial Judge was mistaken in fact at paragraph 522 with respect to the content of previous orders regarding contribution to [Ms G’s] fees and supervision fees.
    24. That the Trial Judge erred in ordering the wife contribute to the cost of supervision in circumstances where he made findings on the evidence that accorded with the wife’s consistent contention that there was no need for her time with the children to be supervised.
    25. That the Trial Judge erred by omitting to address at all the wife’s application for specific chattels contained in [the P property].
  4. Initially the wife also pursued further grounds being Grounds 26 to 31 in the Notice of Cross-Appeal. However, as referred to above the appeal by the wife against the relevant parenting order (paragraph 7) made by the trial judge was not pursued despite the grounds of appeal in support of that appeal not being deleted from the Amended Notice of Cross-Appeal.
  5. In his Notice of Appeal filed 21 January 2011 the husband seeks that Order 15 made by Cronin J on 24 December 2010 be set aside, and that in substitution for Order 15 an order be made for the wife to pay the husband the sum of $339,637. As referred to above, that amount was changed during the hearing to $180,700.
  6. In her Amended Notice of Cross-Appeal the wife seeks that Orders 15, 16 and 19 made by Cronin J on 24 December 2010 be set aside and that the following orders be made in substitution:
    1. That the husband pay to the wife the sum of $728,000.
    2. The wife transfer her right, title and interest in [the P property] to the husband.
    3. The wife retain all assets and liabilities of [the OS Family Trust].
    4. That the wife be entitled to obtain the chattels defined in paragraph 104 of the wife’s trial affidavit from the husband.
    5. That superannuation be notionally divided equally between the husband and the wife and a cash payment made to the wife to achieve an equal distribution of the superannuation.
DISCUSSION – CROSS-APPEAL
  1. We propose to address the grounds of appeal using the same groupings employed by the wife in her submissions.
Ground 1
  1. This is a general ground which is in effect a summary of all of the specific grounds that follow. As such this ground requires no comment from us at this stage.
Ground 2
  1. It is suggested that this mistake of fact by the trial judge compromises his assessment of the respective contributions of the parties in their entirety such that his exercise of discretion should be set aside. However, we do not agree. It is clear that this was a typographical error and not a mistake by his Honour that vitiates his findings in the way referred to by Gibbs J in De Winter and 
    De Winter (1979) FLC 90-605, at 78,091-78,092, namely, if a trial judge in the exercise of his discretion acts upon a mistake of fact that can be a ground of appeal. As Gibbs J also said, “a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust.”
  2. The premise of the authorities referred to by the wife’s counsel including
    De Winter and De Winter, is that there is a mistake of fact. Here though we do not consider that there is a mistake of fact. There was no controversy on the evidence, and it is apparent that his Honour was well aware that the amount received from the sale of the building brought into the marriage by the husband was $6,000 and not $600,000, and his ultimate findings in relation to contributions support that. Accordingly, we find no merit in this ground of appeal.
Ground 3
  1. Again, it is apparent that his Honour has made a mistake of fact, but the question here is whether it is of any consequence. The wife concedes that standing alone it is immaterial, but submits that it should have a cumulative effect when viewed together with the other alleged mistakes made by
    his Honour. For the moment, we do not need to say anything more about this ground but we will revisit this when assessing any other errors of fact made by his Honour.
Ground 4
  1. This is another obvious mistake of fact by his Honour. The evidence plainly established that the money was paid to the wife for her benefit solely, and not to her for the benefit of the parties jointly. The wife then applied this money to joint purposes, and thus it was a contribution solely by her. This is conceded in the written submissions of the husband’s senior counsel. However, his Honour wrongly treated it as a contribution on behalf of both parties.
  2. This mistake can certainly then be brought within the category of a material mistake of fact, and one that could lead to a finding that his Honour’s discretion miscarried. Again though we will need to revisit this once we have considered all of the grounds of appeal alleging mistakes of fact (Grounds 2, 3, 4 and 6).
Grounds 5 and 6
  1. To understand the complaint the wife makes here it is useful to set out the relevant paragraphs from his Honour’s reasons as follows:
    1. This is a case in which the assessment could be done on either a global approach or on an asset by asset basis. To do it on an asset by asset basis would mean the exclusion of [the E property] from the trust. To do that however would not do justice to the parties because the cash sat initially in a bank account and was ultimately used to significantly improve the value of the home when [the P property] was rebuilt. Furthermore, the value of the taxi licence has increased in value since its purchase albeit in a modest sum.
    2. In my view, this is a case in which the global approach is the more appropriate one to achieve a just and equitable outcome for the parties. Part of the assessment and weighting of the contributions requires a court to look at the gap between the assessed proportions attributed to each party. It is not essential that the assessment be done in percentage terms but the assessment must reflect the proportional weight given to each party’s contribution.
  2. It is said in effect that his Honour failed to give adequate reasons for adopting the global approach and that this was a case which lends itself to the asset by asset approach.
  3. As to the question of adequate reasons the law is well settled. In Bennett and Bennett (1991) FLC 92-191, the Full Court outlined the test at 78,267:
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge’s discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. There adequacy must frequently be judged by reference to the issues raised by the parties at trial.
...
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
  1. Unfortunately, his Honour’s chain of reasoning here is not apparent.
    His Honour ostensibly provides three reasons for applying the global approach:
    1. If an asset by asset approach is used the E property would be excluded from the trust. Pausing there, we agree with the wife’s counsel that that is simply not correct (Ground 6). The E property was always a discrete asset and had nothing at all to do with the trust. In any event, if his Honour was correct, his Honour does not explain why that is important or more specifically why that indicates the asset by asset approach is inappropriate.
His Honour continues and suggests that to exclude the E property would not do justice between the parties. His Honour refers to cash initially being in a bank account and then used to improve the value of the P property. Again, with respect to the trial judge, we agree with the counsel for the wife that it is unclear to what his Honour was referring, and in any event, there is no obvious basis here for the inappropriateness of the asset by asset approach.
  1. The second reason is that the value of the taxi licence has increased. However, although this is an accurate statement, his Honour does not indicate why this militates against the appropriateness of the asset by asset approach.
  2. Finally, his Honour makes the general statement in paragraph 499 that the global approach will “achieve a just and equitable outcome for the parties”. It might be thought that the following two sentences in the paragraph would explain why his Honour thought that, but we must say that that is not the case. They do no more than outline aspects of assessing and weighing contributions.
  3. Thus, we find merit in this part of the wife’s complaint.
  4. The wife also submits that his Honour’s error here is demonstrated by the circumstance that this case is in fact a case where an asset by asset approach should have recommended itself to his Honour.
  5. As is correctly conceded by the counsel for the wife, either approach is permissible (Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513), and it may be that
    his Honour’s approach is correct, but the difficulty is that in adopting the global approach his Honour failed to give adequate reasons for doing so.
  6. It is also plain, as referred to above, that his Honour made a mistake of fact in that the E property had nothing to do with the trust. However that by itself could not result in the cross-appeal being allowed, although it is significant when assessing the adequacy of his Honour’s reasons.
  7. Pausing here to revisit the grounds of appeal where it is said his Honour has made mistakes of fact, it should now be apparent that those mistakes identified in Grounds 3 and 4 are the only ones that need to be considered on a cumulative basis. For our part though we are not persuaded that the mistake referred to in Ground 3 can be combined with the mistake referred to in Ground 4 such that it then has sufficient impact to result in the cross-appeal being allowed, but the mistake in Ground 4 clearly is sufficient by itself to have that result.
Grounds 7 and 8
  1. By these grounds the wife complains that the trial judge failed to take into account all of the wife’s contributions during the marriage.
  2. However, it is apparent from his Honour’s reasons that he did have regard to those contributions. For example, in paragraph 494 of his reasons for judgment his Honour acknowledged that the wife was “the major carer of the children and manager of the household”. His Honour also, correctly in our view, found that apart from the wife’s contributions by way of the E property, the trust assets, “a significant portion of the taxi licence”, and the cash used to improve the P property, the contributions of the parties during the marriage were on a par. This was all very much on all fours with the case presented by the wife to the trial judge. It must also not be forgotten that it was common ground that the husband’s contributions at the commencement of the relationship were greater than the wife’s and that had to be factored into the weighing process undertaken by his Honour. It is not in issue that his Honour did this.
  3. Thus, seen in this light the complaint by the wife becomes a weight challenge, namely that his Honour should have assessed the wife’s contributions at more than 65 per cent. Of course, his Honour made this finding by applying the global approach, and that is the subject of a separate and successful complaint by the wife as already referred to.
  4. The difficulties confronting the wife in succeeding in a “weight challenge” are well known. For example, in Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513, Brennan J said at 539-540:
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 L.J. 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.
  1. Further, in Gronow v. Gronow [1979] HCA 63; (1979) 144 CLR 513, Stephen J said at 519-520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. ...
  1. In this case the wife has not demonstrated to us that his Honour, in assessing the respective contributions of the parties exceeded the “generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong”. Thus we do not consider that there is any merit in these grounds of appeal, assuming again that it was appropriate for his Honour to apply a global approach.
Grounds 12 and 13
  1. It is convenient to address these grounds in the context of the grounds just dealt with, namely Grounds 7 and 8.
  2. We need not say anything more in relation to Ground 12. With Ground 13, the simple answer to the complaint made therein is first that the direct financial contributions of the parties are but one aspect of the overall contributions of the parties which a trial judge needs to assess and weigh. Here for example there were also the non-financial and parent and homemaker contributions to consider.
  3. Thus to say that there is a discrepancy between the respective contributions of the parties does not demonstrate error by the trial judge.
  4. Secondly, it is well settled that assessing contributions is not a mathematical exercise. For example, in Zalewski and Zalewski [2005] FamCA 996; (2005) FLC 93-241 the Full Court comprising Finn, Coleman and Boland JJ said this:
    1. The assessment and comparison of contributions, both financial and non financial and the translation of that weighing and comparison is not and cannot generally be a strictly mathematical task, particularly in a marriage of long duration (see Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 521- 523 and G and G (1984) FLC 91-582 at 79,697). ...
  5. Further, in Wilde & Wilde [2007] FamCA 1044 the Full Court comprising
    Bryant CJ, Finn and Boland JJ said this:
    1. 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.
  6. Thus, to undertake an exercise in arithmetic as the wife submits, again fails to demonstrate error by the trial judge.
  7. We also note the argument of the wife that his Honour’s discretion must have miscarried given that the wife did not even “receive back the amount of cash and real estate found by the Trial Judge to have been contributed solely by her”, and the husband received more than he contributed. Again that is not an argument that finds favour with us. It fails to recognise the task that confronts the trial judge in assessing and weighing all of the contributions of the parties. There is no known principle of family law that requires that each party must receive at least what they have put in. Not to labour the point, but such a principle would be antithetical to the proper exercise of the wide discretion reposed in the trial judge by the Family Law Act 1975 (Cth) (“the Act”).
Grounds 9, 10 and 11
  1. First, we agree with the submission of the husband that there were no findings by the trial judge as described in Ground 9 and thus that ground must fail.
  2. As to Ground 10, there is no doubt that what his Honour said in paragraph 534 of his reasons for judgment is inconsistent with what the wife deposed to in her affidavit of evidence-in-chief, but based on her cross-examination, it is a correct interpretation of her evidence. However, even if his Honour made an error, it is an error without consequence.
  3. This comment was made not in the context of his Honour determining the property settlement dispute, but when he was addressing the issue of child support, and in particular considering the evidence of the wife’s income on the basis of property settlement being concluded. It is also necessary to look at the entirety of his Honour’s reasons for judgment on this topic. For example, in paragraph 530 his Honour said this:
The wife also will retain [the E property] and it was suggested to her that she could draw income from that property. Her response was that she would have to move there to live presumably on the basis that she has no longer the capacity or the desire to remain dependent upon relatives and friends.
  1. Then ultimately his Honour concluded as follows at paragraph 555:
For the reasons outlined, I am not comfortable in making an order which fixes the child support having regard to the complexities of the formula. It is clear as I have set out above however that from 2006 until recently, the wife was obtaining trust distributions. I find there is no reason why she cannot continue to receive those distributions but if she chooses not to, there are other property and financial resources upon which she can rely to pay child support. In addition to any taxable income pursuant to the Income Tax Assessment Act, the appropriate method for the next two years to assess her child support obligation is to presume that the wife could receive from [the OS Family Trust] a distribution of between $35,800 and $39,800. I fix $36,000 as an appropriate sum in the circumstances and I direct that the Registrar in child support add that sum to the taxable income of the wife for the period of 12 months ended 30 June 2010, 30 June 2011 and 30 June 2012.
  1. Thus, in summary, his Honour was well aware of this issue, but to repeat, it did not feature in the topic of property settlement, and we find no merit in these grounds of appeal. No complaint is made against his Honour’s order as to child support.
Grounds 14, 15 and 16
  1. By these grounds the wife attempts to raise another weight challenge to the exercise of discretion by the trial judge, this time in relation to his Honour’s assessment of the respective contributions of the parties to the superannuation assets. However, the submission in support of these grounds did not in fact attack his Honour’s assessment or the weight his Honour attributed to the husband’s contributions in this regard, but suggested that how his Honour approached that assessment was inconsistent with how his Honour approached the assessment of the contributions made by the parties to the non-superannuation assets. This is demonstrated not by highlighting what
    his Honour in fact did, but by looking at the effect of his Honour’s assessments. In our view this is not a submission that has any credence, but more importantly Ms Smallwood counsel for the wife put to us that there was agreement between the parties that the superannuation assets should be shared equally, and that was put to his Honour, but his Honour departed from that agreement without explaining why. Ultimately, it was conceded by Ms Nikou SC for the husband that both parties were seeking an equal division of the superannuation assets, but oddly she would not concede that in then departing from that his Honour was in error.
  2. The fact of the matter is that his Honour departed from a common position without giving any, let alone, any adequate reason for doing so, and in that regard it is an inescapable conclusion that his Honour has erred and Ground 14 has merit.
Ground 17
  1. This ground seemingly is part of the complaint made in Grounds 14, 15 and 16, and to repeat we agree that in failing to provide any reason for dividing the superannuation assets of the parties on a 55 per cent / 45 per cent basis in favour of the husband his Honour erred. However, in reading the written submissions of the wife it emerges that what is complained of here is the trial judge providing a cash adjustment to the wife of $60,000 in lieu of her entitlement as found by the husband to the superannuation assets of $82,217.
  2. It is said, that although his Honour in paragraph 519 explained why he was making the cash adjustment, his Honour failed to explain how he arrived at the figure of $60,000. There is clear merit in this submission, and we find that
    his Honour erred in that regard.
Grounds 18, 19 and 20
  1. The premise of these grounds of appeal was that his Honour made an adjustment of five per cent to the husband’s entitlement on the sole basis that he would have the future care of the children, and he erred in doing that because of the uncertainty surrounding who would ultimately care for the children.
  2. However, it is apparent from his Honour’s reasons for judgment that that was not the sole basis of that adjustment, and that was ultimately conceded by the wife’s counsel. There was at least one other basis, namely, the circumstance that the wife had “a greater capital base” than the husband.
  3. The consequence of this is that it cannot be said that his Honour erred in allowing a further five per cent to the husband, but that still does not provide a complete answer to the complaint made by the wife. Plainly, some of the five per cent was to address the husband having the future care of the children, and what the wife says in effect is that given the uncertainty referred to above, it would be unsafe to allow the adjustment to stand. The question is then whether his Honour erred in proceeding on the basis that the husband would have the future care of the children. The wife says that his Honour did err and that is demonstrated by the fact that his Honour was unable to make a final order, and by the fresh evidence comprising the subsequent order altering the living arrangements for the children, and adjourning to a later date further consideration of that issue.
  4. On the other hand, all his Honour in fact said in his reasons for judgment was that “[a]t least for the foreseeable future, the husband’s responsibilities for the two children will continue” (at paragraph 505), and on the evidence before
    his Honour at the time that was plainly correct (e.g. see paragraph 433). Thus, was his Honour in error in any event? Certainly the parties were wanting
    his Honour to make final orders both as to property settlement and as to the children, and if he had done so there would have been no issue, but what
    his Honour did of his own motion was to only make an interim order in relation to the children. That, together with the fresh evidence of the subsequent order, which again was an interim order, persuades us that his Honour should not have made an adjustment on the basis of who would have the future care of the children. Thus, we find merit in Ground 18.
  5. As to Ground 19, that has a different focus, namely whether his Honour’s finding that the care of the children restricted the husband’s “capacity to advance his financial resources by working longer hours” was correct or not. The simple proposition put by the wife is that the evidence does not support this finding and indeed it is to the opposite effect. We agree with this submission and thus again his Honour has erred.
  6. As to Ground 20 though we do not consider that that has merit. The fact that there were “collateral orders” in place, or put in place by the trial judge, requiring the wife to contribute to the expenses of the children does not render his Honour’s comment that the husband is carrying the burden of the children erroneous. The evidence still pointed to the husband shouldering a burden beyond what the wife was bearing.
Grounds 21, 22 and 23
  1. Although these grounds were not actually abandoned, they were not pursued with any vigour. Further, we found them confusing to say the least. It was not readily apparent why Ground 21 was grouped with Grounds 22 and 23. During the hearing before us Ms Smallwood attempted to explain this and it seems that they are all related to the wife’s submissions in relation to Ground 20. In other words, when commenting on the husband having the burden of the children
    his Honour overlooked the things that the wife had done and was asked to do to benefit the children.
  2. Despite this “explanation”, Ms Smallwood also briefly addressed the discrete issues raised in Grounds 21 and 22. We were not persuaded though that either issue has merit. The issue as to the benefit of the unencumbered home was not something raised by the wife at trial, and it does not behove the wife to criticise the trial judge on appeal for not taking it into account. Indeed, there is ample authority that if an issue such as this is not raised at trial it cannot be raised on appeal (Metwally v University of Wollongong (1985) 60 ALR 68; Rand & Rand [2010] FamCAFC 167; (2010) FLC 93-444).
  3. With the issue of requiring the wife to retrospectively contribute, inter alia, to the fees of supervision and the costs of reports, the plain facts are that
    his Honour took a different view of who should be responsible for those costs than the wife now does. His Honour was well aware of the issue of the need or not for supervision and although the parties appear to have consented to the supervision initially, found ultimately that it need not be continued. Thus, this complaint can be nothing more than a weight challenge. We have set out above the principles that apply in relation to such challenges, and there can be no suggestion here that his Honour erred in the exercise of his discretion. We also agree with the submission of the husband that “[a] determination by his Honour that supervision after trial would no longer be ordered is not a determination by his Honour that it was not necessary to have supervision at an earlier time”. It is also common for supervision to be put in place whilst allegations are investigated, and assessments made, and of course, those investigations and assessments need to be paid for as well.
  4. Finally, with regard to Ground 23, no further submissions were made and we do not understand that this ground was necessarily pursued. However, before leaving this ground and out of abundant caution we note that the precise complaint expressed therein was that his Honour was mistaken as to the effect of earlier orders. In oral submissions though Ms Smallwood explained that consistent with the earlier orders it was in fact open to his Honour to determine that the wife should pay one half of Ms G’s fees, but his Honour actually did not make that determination assuming, incorrectly it is said, that the calculation had already been made. That highlights of course the confusion created by the failure of the wife to align her written submissions with the grounds of appeal. Nevertheless, it is plain that his Honour in fixing the amount of $18,000 as the amount to be paid by the wife, in effect made that determination. His Honour said in paragraph 522 that “[n]otwithstanding all of the findings I have made which may be seen as a criticism of [Ms G]...and the supervisors, I see no reason why the husband should bear those costs alone”. Thus, we are not persuaded that his Honour made any error in his treatment of this issue and this challenge must fail. It seems to us that on the evidence it was quite justified that the wife make a contribution to the costs of supervision and the reports, and in fixing that contribution at $18,000 his Honour’s discretion has plainly not miscarried. As was put by the husband’s senior counsel it was less than half of the total costs claimed.
Ground 24
  1. This ground effectively covers the same issue as Ground 22 and must suffer the same fate. Thus we find that there is no merit in this ground of appeal.
Ground 25
  1. The gravamen of this complaint is that the wife applied for the husband to provide a number of chattels to her. The husband opposed that, the wife repeated this claim in her final submissions, but the trial judge failed to deal in any way with the claim. In the circumstances his Honour has clearly erred and this ground of appeal must succeed.
CONCLUSION
  1. We have found a number of the grounds of cross-appeal have merit and thus the cross-appeal must be allowed. As with the appeal the question then becomes whether we are able to re-exercise the discretion or whether we have to remit the matter for rehearing by the Family Court of Australia.
  2. It will be recalled of course that the only orders appealed against by the wife are Orders 15, 16 and 19. However, given that one of the grounds of cross-appeal that has been successful is that his Honour failed to provide adequate reasons for applying a global approach rather than an asset by asset approach and that issue will be the subject of the redetermination, it seems to us that all of the orders for property settlement made by his Honour should be set aside.
  3. Both parties seek that we re-exercise the discretion, but unfortunately we do not consider that we can. For example, the uncertainty of the fate of the children rendered it unsafe to maintain all of the five per cent adjustment for the relevant s 75(2) factors, but that uncertainty prevails, and makes it impossible to make a finding based on who will have the care of the children. Further, with the conceded error made by the trial judge as to the $100,000 liability, it is not for us to simply add-in that amount to the asset pool and redo the calculations. There will be further evidence required, including possibly cross-examination before the re-exercise could be completed. That prospect also pertains to other of the errors that have been established and of course there is the issue of whether a global or an asset by asset approach should be applied. If it is the latter then re-exercising the discretion will be a significant task. Thus, to repeat, reluctantly we propose to remit the matter for rehearing.
COSTS
  1. At the conclusion of the hearing we sought submissions as to costs.
  2. In the event that the cross-appeal succeeded the wife sought that the husband pay costs. The husband sought no order for costs but sought a certificate.
  3. We consider that there should be no order for costs, but we are prepared to grant certificates given that the appeal and the cross-appeal are to be allowed on questions of law.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May and Strickland JJ) delivered on 20 June 2012.
Associate:
Date: 20 June 2012
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