FAMILY LAW – APPEAL – PROPERTY – where the appellant seeks that the order requiring him to pay $66,843 to the respondent be “vacated” – where the appellant complains that the Federal Magistrate gave just token weight to the contributions made by him – where the appellant alleges errors of fact by the Federal Magistrate in finding a financial disparity between the parties – where there is no merit in any of the grounds of appeal – appeal dismissed. FAMILY LAW – APPEAL – COSTS – where in the event of the appeal being unsuccessful the respondent seeks an order for costs – where the appellant’s solicitor did not oppose an order for costs in those circumstances – costs ordered in favour of the respondent.

Wane & Brandon [2012] FamCAFC 95 (4 July 2012)

Last Updated: 6 July 2012

FAMILY COURT OF AUSTRALIA

WANE & BRANDON

[2012] FamCAFC 95

FAMILY LAW – APPEAL – PROPERTY – where the appellant seeks that the order requiring him to pay $66,843 to the respondent be “vacated” – where the appellant complains that the Federal Magistrate gave just token weight to the contributions made by him – where the appellant alleges errors of fact by the Federal Magistrate in finding a financial disparity between the parties – where there is no merit in any of the grounds of appeal – appeal dismissed. FAMILY LAW – APPEAL – COSTS – where in the event of the appeal being unsuccessful the respondent seeks an order for costs – where the appellant’s solicitor did not oppose an order for costs in those circumstances – costs ordered in favour of the respondent.

Family Law Act 1975 (Cth) s 90SF(3)

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 House v The King [1936] HCA 40; (1936) 55 CLR 499 Mims & Green and Green [2008] FamCAFC 13; (2008) FLC 93-359 Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513 S.S. Hontestroom v S.S. Sagaporack [1927] AC 37 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others[1999] HCA 3; (1999) 160 ALR 588

APPELLANT:

Mr Wane

RESPONDENT:

Ms Brandon

FILE NUMBER:

SOA

31

of

2011

APPEAL NUMBER:

HBC

523

of

2010

DATE DELIVERED:

4 July 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

28 September 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 April 2011

LOWER COURT MNC:

[2011] FMCAfam 248

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Foster (solicitor)

SOLICITOR FOR THE APPELLANT:

Murdoch Clarke

COUNSEL FOR THE RESPONDENT:

Mr Ayliffe

SOLICITOR FOR THE RESPONDENT:

Dobson, Mitchell & Allport

ORDERS

(1) The appeal be dismissed.
(2) The appellant pay the costs of the respondent of and incidental to the appeal with such costs to be assessed on a party/party basis in default of any agreement between the parties as to the same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wane & Brandon has been approved by the Chief Justice pursuant to s 121(9)(g)of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: HBC 523 of 2010
File Number: SOA 31 of 2011

Mr Wane

Appellant

And

Ms Brandon

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By way of Notice of Appeal filed 21 April 2011, Mr Wane (“the appellant”) appeals against one of the property settlement orders made by Baker FM on 8 April 2011. The respondent in the appeal is Ms Brandon (“the respondent”).
2. In summary, the orders made by Baker FM provided for the appellant to pay the respondent $66,843 within 30 days, and for each party to otherwise retain all property in his or her possession and be liable for his or her respective debts.
3. On appeal the appellant seeks that Order 1 made by Baker FM on 8 April 2011, requiring the appellant to pay the respondent $66,843, be vacated.

BACKGROUND

4. At the time of trial the appellant was 60 years old and a self-employed business consultant, and the respondent was 67 years old and a retired business consultant.
5. The parties were in a de facto relationship from September 1997 until sometime in late 2009 or early 2010.
6. During the relationship the appellant moved into the respondent’s house at
   X (“the X property”) where they lived together for 12 years.
7. There are no children of the relationship, although both parties have adult children from previous relationships.
8. The respondent filed her Initiating Application for property settlement orders in the Federal Magistrates Court on 4 June 2010. The appellant filed his response on 17 June 2010.
9. Between filing her application and the delivery of Baker FM’s reasons for judgment the respondent married a Mr Y. They entered into a binding financial agreement prior to their marriage.
10. The final hearing took place before Baker FM on 9 February 2011 and
    10 March 2011, and her Honour made orders and delivered her reasons for judgment on 8 April 2011.

REASONS FOR JUDGMENT OF THE FEDERAL MAGISTRATE

11. The Federal Magistrate commenced her reasons by providing a brief background of the parties, and outlining the issues in the proceedings and the evidence relied upon by each party. Her Honour considered the two main issues to be the extent of each party’s contributions to the relationship and whether the Court should adopt an asset-by-asset or a global approach to the “property division”.
12. The Federal Magistrate outlined the law in relation to de facto property settlements, particularly identifying s 90SM and s 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”). Her Honour was satisfied that the Court had jurisdiction to hear the application pursuant to Part VIIIAB of the Act on the basis that the parties lived in a de facto relationship between 1997 and 2009 and at the time the application was filed they were both ordinarily resident in Tasmania.
13. As to whether the Court should adopt an asset-by-asset or global approach, it was submitted by counsel for the appellant that the asset-by-asset approach was appropriate because the X property was the only asset the subject of any improvement during the relationship. The solicitor for the respondent made no submissions on this point other than to urge the Court to adopt a global approach.
14. The Federal Magistrate outlined the authorities as to the differences between the two approaches and noted that in the present case the parties were in a relationship for approximately 12 years, they had no children together, they kept their finances separate, each had superannuation, and at the commencement of cohabitation they both owned real estate and other assets. Her Honour ultimately concluded that the asset-by-asset approach was appropriate, making reference to DH & RM [2004] FMCAfam 74, D & D [2003] FamCA 473, and Norbis v. Norbis [1986] HCA 17; (1986) FLC 91-712.
15. The Federal Magistrate then went on to consider whether there should be a separate pool for the superannuation entitlements of the parties, given that in submissions the respondent included both superannuation and non-superannuation assets in the one property pool, whilst the appellant divided them into separate pools. On the basis that each party sought to retain his or her own superannuation entitlements, and neither counsel made any submissions on the issue, the Federal Magistrate determined it was appropriate to include the superannuation and non-superannuation assets in one pool.
16. At paragraph 34 her Honour set out a list of assets and liabilities as agreed by the parties, of which the assets totalled $2,178,492 and the liabilities totalled $231,125.
17. The Federal Magistrate then outlined the evidence of both parties.
18. In summary, it was the respondent’s evidence that at the commencement of cohabitation she owned the X property, 700 shares and superannuation of $60,000. During the relationship her income varied between $25,000 and $75,000 per annum, and her pension at the time of trial was $59 per week (although it was under review) and she had been drawing down on her superannuation to “survive”. Throughout the relationship the respondent paid the expenses in relation to the X property (including the mortgage) and was predominately responsible for domestic duties, although the appellant made some irregular contributions towards the household and living costs and made some improvements to the property.
19. It was the appellant’s evidence that at the commencement of the relationship he owned the Z property where he worked, and a unit at A which he later sold and then purchased another unit at A. Both units were always occupied by tenants and managed by the appellant. At the commencement of the relationship the appellant also owned two motor vehicles and a boat, the latter of which he traded in during the relationship and paid an additional $10,000 towards the purchase of a new boat. It was also the appellant’s evidence that he inherited shares in 1999 which had not subsequently been sold or increased in number, and that his superannuation which was worth around $389,349 at the commencement of the relationship was valued around the same at the time of trial due to the global financial crisis. During the relationship the appellant’s income varied from $60,000 and $110,000 per annum.
20. It was the appellant’s evidence that he carried out various renovation works on the X property and that he contributed to the household running costs, in particular paying for the majority of the food. At the time of trial the appellant’s income was $123,000 per annum and he had not re-partnered.
21. The Federal Magistrate then referred to the binding financial agreement entered into by the respondent and her new husband. Her Honour said this:
    41. The agreement was made prior to Mr and Ms [Y’s] marriage after they had discussions about their future financial relationship. He told her that he had promised his deceased wife that he would provide for their children following her death. The agreement reflects Mr [Y’s] desire to keep that promise.
22. The Federal Magistrate then outlined the submissions of both parties.
23. To summarise, the respondent submitted that the parties made equal contributions during the relationship, with the respondent making a greater contribution towards homemaking and the appellant receiving both financial and non-financial benefits from the respondent’s support. As to her position at the time of trial, the respondent submitted she did not have the benefit of the permanent income, real estate and financial resources that the appellant had and that, even though she was now married, she would still require significant funds to maintain her current residence. Ultimately the respondent sought a 60/40 per cent division in the appellant’s favour, including a 5–7.5 per cent adjustment in her favour on account of s 90SF(3) matters.
24. It was the appellant’s submission that he had improved the value of the
    X property and contributed to living expenses and towards homemaking. Furthermore, the appellant argued that the respondent had not contributed to his assets and that she had chosen to retire and remarry. The appellant sought that there be “no property adjustment, which would leave a division of non-superannuation property so the wife has 40% and the husband has 60%”.
25. The Federal Magistrate then set out her conclusions, noting that the assessment of contributions was “more difficult than it should have been” because there was no evidence about the values of either party’s initial contributions and liabilities or about the parties’ post-separation contributions. Her Honour placed significant weight upon the respondent’s initial contribution of the
    X property as the parties lived there throughout the relationship and the respondent paid the mortgage instalments, rates and insurance in relation to that property, with some contribution from the appellant towards utilities and groceries. The Federal Magistrate accepted the appellant’s evidence that he spent around $16,800 on improvements to the house, along with undertaking other household maintenance and improvements to the garden. Her Honour also determined the respondent made “a greater homemaking contribution” because, although the parties shared the cooking, the respondent was “primarily responsible for the washing, cleaning and shopping”.
26. On the basis that the value of the X property at the time of trial was $650,000, the Federal Magistrate determined the respondent’s contribution to the property to be 95 per cent of its equity, namely $579,975. The Federal Magistrate also determined that the respondent made no contribution to the appellant’s real estate, shares or boats and that neither party had made a contribution to the other’s superannuation, savings or motor vehicles.
27. Turning to consider the s 90SF(3) matters, the Federal Magistrate found there was disparity between the parties in terms of income, superannuation entitlements and what each would retain on the basis of the Federal Magistrate’s findings as to contributions (namely, $613,350 to the respondent and $1,334,017 to the appellant).
28. Her Honour observed that the binding financial agreement between the respondent and Mr Y, “provides that, if they separate, each retains the assets in his or her name,” and Mr Y owns “significant assets”. The respondent lives in her X property and Mr Y lives on his farm. Her Honour therefore found that “[e]ven if [the respondent] were to sell the [X] property and invest the sale proceeds, there will still be a significant income disparity between her and
    [the appellant]”.
29. According to the parties’ Financial Statements the respondent had weekly expenses of around $1,000, which she was paying for with her savings, and the appellant had weekly expenses of around $1,700.
30. Ultimately the Federal Magistrate determined there should be an adjustment of 5 per cent in the respondent’s favour, which would equate to a sum of $97,638. After considering the case of Muir & Royston [2010] FamCA 374 her Honour determined it “appropriate to apply an adjustment to the total pool...notwithstanding contributions were assessed on an asset-by-asset approach”.
31. In determining whether an order providing for the appellant to pay to the respondent the sum of $66,843 comprising 5 per cent of the overall asset pool ($97,638), less 5 per cent of the net value of the X property ($30,525) was just and equitable the Federal Magistrate set out at paragraph 87 the assets and liabilities to be retained by each party, noting that both parties would retain real estate and superannuation, but that the appellant would need to borrow funds to pay the respondent.
32. Lastly, her Honour determined that a “global check” of the order resulted in a 63.5 / 36.5 per cent division of the total pool in favour of the appellant. Thus, the Federal Magistrate was satisfied that the result was overall just and equitable between the parties.

ORDERS MADE 8 APRIL 2011

33. Baker FM made the following orders:
    1. Within 30 days [Mr Wane] pay to [Ms Brandon] the sum of $66,843.00.
    2. Each party be solely entitled to the exclusion of the other to all property in the possession of that party as at this date.
    3. Each party remain solely liable for his or her respective debts.
    4. The question of the Applicant’s costs be reserved.
34. The appellant appeals against Order 1.

GROUNDS OF APPEAL AND ORDERS SOUGHT

35. The amended grounds of appeal filed by the appellant on 12 September 2011 are as follows:
    1. That the learned Federal Magistrate made an error of fact in finding that the Respondent had made a great homemaking contribution.
    2. That the learned Federal Magistrate made an error of law in that she gave inadequate weight to and/or overlooked aspects of the Appellant’s contribution to the Respondent’s [X] property.
    3. That the learned Federal Magistrate made an error of law in giving weight or excessive weight to the notion that the Respondent had contributed by providing the Appellant with accommodation.
    4. That the learned Federal Magistrate made an error of law in that she gave weight or excessive weight to the notion that there was a financial disparity between the Appellant and the Respondent.
    5. That the learned Federal Magistrate made an error of law in that she gave insufficient weight to the fact that the Respondent had married.
36. In his Notice of Appeal filed 21 April 2011 the appellant seeks that Order 1 made by Baker FM on 8 April 2011 be vacated.

DISCUSSION

37. It is readily apparent that with all but one of the grounds of appeal (Ground 1) the appellant is agitating “weight” challenges to her Honour’s findings and orders. Thus, before proceeding to consider the particular challenges it is appropriate to refer to the authorities which are relevant to such challenges.
38. There is a presumption that the decision of the trial judge is correct. The trial judge enjoyed advantages which this court lacks. In Mims & Green and Green[2008] FamCAFC 13; (2008) FLC 93-359 their Honours there referred to the High Court’s decision in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 (at 178) where McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “The power of the Court of Appeal” and to the judgment of Lord Sumner in S.S. Hontestroom v S.S. Sagaporack [1927] AC 37 (at 47):

[N]ot to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.

39. McHugh J also said, at 178:

Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v. Thomas [1947] A.C. 484, at p. 488.

40. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] HCA 3; (1999) 160 ALR 588, having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages”. In the course of his judgment (619, paragraph 90) his Honour said:

The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. [Footnotes omitted]

41. The grounds upon which appellate interference with discretionary judgments may be enlivened were iterated by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499. Their Honours recorded at 504:

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

42. In Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513, Brennan J said at 539:

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.

43. In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230-231:

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

44. As the authorities make clear, the fact that members of an appeal court may have reached a different conclusion had they been determining the proceedings at first instance does not render the trial judge’s decision erroneous. It is in the nature of the exercise of judicial discretion that different minds will reach different conclusions, without any of those conclusions necessarily being erroneous. The authorities leave no uncertainty that this is the law.
45. In Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, Stephen J said at 519-20:

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.

46. Against the background of these principles, after addressing Ground 1 which alleges a mistake of fact, I will turn to the particular “weight” challenges agitated in Grounds 2 to 5 inclusive.
47. As to these grounds of appeal though, I observe that instead of addressing these grounds seriatim, the solicitor for the appellant both in his written and oral submissions pared them back to two issues, namely, whether there was adequate weight given to the contributions by the appellant or just token weight, and secondly, alleged errors by the Federal Magistrate in finding a financial disparity between the parties, for example by treating the respondent as a single woman. Despite this I find it more convenient to address the grounds of appeal seriatim, and I do not consider that that detracts from the force of the appellant’s arguments.

Ground 1

48. The relevant submission here is that in finding that the respondent did most of the homemaking her Honour “overlooked evidence” and “made incorrect findings of fact” with the result that the evidence does not support the findings.
49. As part of his written submissions the solicitor for the appellant provided a schedule “of the evidence in relation to financial, non-financial and homemaking contributions”. As to the latter the evidence identified is as follows:

APPELLANT’S CONTRIBUTIONS TO HOMEMAKING

1. Did “most or more” of all the cooking (transcript page 19).
1. Mowed the lawns at the Respondent’s home for “a long time” – task took 3 hours (transcript page 23).
2. Split and stacked firewood at the Respondent’s home (transcript
   page 23).
3. Took rubbish to the tip a few times each year (transcript page 23).
4. Did grocery shopping on Friday/Saturday (transcript page 40).
5. Maintained gravel driveway at the Respondent’s house, including providing trailer-loads of screenings (transcript page 11).
6. Paid for half the cost of ironing (transcript page 40).
50. It is this evidence that the appellant says her Honour “overlooked”, although I note that it was put in the alternative, namely, or evidence to which insufficient weight was given.
51. As to the incorrect findings of fact there is indeed only one, described in the appellant’s written submissions as follows:

“[T]he Husband cooked occasionally and purchased food for the meals” (Judgment paragraph 39) whereas the evidence was that the Husband did more than half of the cooking (transcript page 19).

52. The relevant paragraphs of her Honour’s reasons are paragraphs 39, 55, 56, 61, 62, and 65 where her Honour made her findings as to this issue. It is apparent though that the only real dispute is her Honour’s findings as to who attended to the cooking. For example, the appellant does not cavil with her Honour’s findings that “the wife was primarily responsible for the washing, cleaning and shopping” (paragraph 65 of her Honour’s reasons). With the cooking, it is true that in paragraph 39 her Honour said that the appellant “cooked occasionally”, but her Honour ultimately found that the parties “shared the cooking” (paragraph 65) and that is consistent with the evidence, namely the respondent’s cross-examination on this topic (at Transcript 9 February 2011, page 19, lines 26 to 33):

All right. Now, Mr [Wane] says that he did most or more than half share of the cooking. Do you dispute that? --- No, he enjoyed cooking.

So you don’t dispute that, but it – when you say he enjoyed cooking, are you saying it doesn’t count because he enjoyed it? --- I didn’t say that.

Okay. All right. So you do accept that he did most of the cooking? --- No, I didn’t say most of the cooking, we shared it.

Indeed, her Honour at paragraph 55 of her reasons recorded the appellant’s evidence on this topic saying, “[t]he husband agreed that cooking was a shared activity, but he denied that it was shared equally and said that he probably did 60% of it”.

53. Her Honour of course did not specifically refer in her reasons for judgment to all of the evidence as to the appellant’s “contributions to homemaking”, but the Federal Magistrate is not obliged to do so as long as it is apparent that she has taken this evidence into account. I consider that here the Federal Magistrate did just that, and it was open to her Honour on the evidence before her to make the finding that she did. Indeed, to repeat, there was no real challenge to the evidence of the respondent’s homemaking contribution, and thus there is no merit in this ground of appeal. It has not been demonstrated to this court that her Honour was “plainly wrong” in her assessment of the respective contributions of the parties to homemaking.

Ground 2

54. In the schedule referred to above the solicitor for the appellant identified the evidence of the appellant’s contributions to the respondent’s X property. The submission then is that her Honour gave inadequate weight to these contributions, and in particular those contributions, along with his “homemaker contributions” should have resulted in a greater percentage entitlement to him than five per cent.
55. This is plainly a weight challenge and the appellant has to overcome the hurdles arising from the principles identified above from the authorities.
56. Again, it is difficult to see where her Honour has erred. The issue is whether weighing the contributions of the respondent with the contributions of the appellant resulted in a determination which fell beyond the ambit of a reasonable exercise of discretion. Although the result would appear to be at the lower end of the applicable range, the test is not whether an appeal court might have reached a different result if that court had been in the position of the Federal Magistrate.
57. Her Honour in her reasons for judgment identified the contributions made by the appellant including the specific contributions made to the X property (e.g. see paragraphs 51, 51 and 54 of the reasons for judgment). Her Honour then recorded the respective submissions of the parties including the appellant’s submission as to the assessment of the contributions of the parties. Her Honour then duly translated that evidence and those submissions into a percentage division, namely 95 / 5 per cent in favour of the respondent (paragraph 66 of the reasons for judgment). Her Honour, correctly in my view, in making that assessment placed “significant weight upon the wife’s initial contribution of the [X] property.”
58. It is said by the solicitor for the appellant that in summarising the contributions of the appellant to the X property her Honour overlooked some of those contributions. For example, the appellant complains that although her Honour identified the total amount that the appellant paid for the improvements he made to the X property she did not specifically refer to the time the appellant spent in making those improvements. However, once again her Honour is not obliged to specifically refer to each and every aspect of the contributions made by the appellant and it is sufficient if it is apparent that her Honour has taken into account all of the evidence presented by the appellant in that regard. A plain reading of her Honour’s reasons for judgment indicates that her Honour did that in this case.
59. In these circumstances, I find that there is no merit in this ground of appeal.

Ground 3

60. This is an odd ground of appeal. Her Honour did make the comment in paragraph 66 of her reasons for judgment that the X property “provided the husband with accommodation throughout the relationship”. However it is not entirely clear whether this was just recording that fact or whether
    her Honour took this into account when assessing the respective contributions of the parties, and, if she did, to what extent this was taken into account. At the very least, it is apparent from the reasons for judgment that the most significant issue for the Federal Magistrate in fixing the percentage entitlements of the parties was the respondent’s initial contribution of that property.
61. In any event, it seems that the argument of the appellant is that her Honour should not have taken this into account because he gained “no financial advantage from living in the Respondent’s home”, given that he left his own home vacant. However, clearly that was a choice that he made, and insofar as the issue of contributions is concerned the plain fact of the matter is that the respondent did provide the appellant with accommodation in the X property.
62. In these circumstances I find no merit in this ground of appeal.

Grounds 4 and 5

63. These grounds can be conveniently considered together.
64. As referred to above, her Honour adjusted the respondent’s entitlement by increasing the same by five per cent “having regard to all of the s 90SF(3) factors”. The appellant challenges the weight her Honour attached to one of these factors, namely the “financial disparity” between the parties on the basis that her Honour treated the respondent as a “single woman” and gave insufficient weight to “the fact that [she] had married”.
65. It is beyond doubt that her Honour was correct in finding that there was a significant disparity between the parties’ income, assets and superannuation entitlements, and that her Honour was obliged to take that into account
    (s 90SF(3)(b)), but her Honour was also obliged to take into account the financial circumstances relating to the respondent’s cohabitation with her new husband (s 90SF(3)(m)) and, it is said, it is not apparent that her Honour did that. Indeed, it is submitted that her Honour erroneously considered that the terms of the binding financial agreement entered into between the respondent and her new husband and which provided that in the event of a separation they each retain their own assets, prevented her taking the new husband’s financial circumstances into account when of course there is no separation.
66. Pausing there, I do not accept that submission; all her Honour was doing was recording the fact of and the terms of the binding financial agreement. That agreement is clearly not relevant to the issue in dispute. However, that issue surely must turn on the evidence that was before her Honour as to the financial circumstances of the cohabitation.
67. Her Honour identified that the new husband “owns significant assets, and that he is a company director and owner of a ... stud”, as well as that he “lives in his [own] home”, but there is no evidence that the respondent’s new husband supported her financially. The only evidence approaching that was the respondent’s evidence that he was paying her legal fees and that as far as food and wine was concerned they split those costs. The clear evidence as to her income was that she was supporting herself by drawing down her superannuation entitlements and exhausting her savings, and her Honour looked closely at the effect on her financial position if she sold the X property and invested the proceeds.
68. It is not a case of treating the new husband’s income and assets as being available to the respondent. As s 90SF(3)(m) says, it is the financial circumstances of the cohabitation that are relevant, and it is beyond doubt that her Honour had regard to that to the extent that the evidence permitted.
69. It is also not to the point to suggest that the new husband has a “duty” to support the respondent, and then in some way attribute part of his income and/or assets to her when comparing the financial circumstances of the appellant and the respondent. Equally, that is not what is required by
    s 90SF(3)(m).
70. Thus, there is no merit in these grounds of appeal.

CONCLUSION

71. I have found no merit in any of the grounds of appeal and accordingly the appeal will be dismissed.

COSTS

72. At the conclusion of the hearing I took submissions as to costs.
73. In the event that the appeal was unsuccessful the respondent sought an order for costs. In response the solicitor for the appellant did not oppose there being an order for costs in those circumstances. Thus there will be an order for costs in favour of the respondent.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 4 July 2012.

Associate:

Date: 4 July 2012