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 Zaruba & Zaruba  [2017] FamCAFC 91; (12 May 2017)

Last Updated: 18 May 2017

FAMILY COURT OF AUSTRALIA

ZARUBA & ZARUBA

[2017] FamCAFC 91

APPELLANT:

Mr  Zaruba

RESPONDENT/CROSS-APPELLANT:

Ms  Zaruba

REPRESENTATION

ORDERS

(1) The appeal be dismissed.
(2) The cross-appeal be allowed in part.
(3) Order 1 of the orders made on 17 December 2015 be varied by deleting “$52,500” and inserting in lieu “$150,000”.
(4) The Court declares that the respondent wife holds the legal and equitable interest in the Mindarie property and her superannuation entitlements to the exclusion of any claim, right, title or interest by the appellant husband.
(5) The Court declares that the appellant husband holds the legal and equitable interest in his savings and shares to the exclusion of any right, title, claim or interest by the respondent wife.
(6) The appellant husband’s application to introduce further evidence be dismissed.
(7) There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Appeal Number: PTW 2392 of 1996
File Number: WA 4 of 2016

Mr  Zaruba

Appellant

And

Ms  Zaruba

Respondent

REASONS FOR JUDGMENT

1. The husband has appealed and the wife has cross-appealed against property settlement orders made by Moncrieff J on 17 December 2015.

THE APPEAL AND CROSS-APPEAL IN CONTEXT

2. The factual background is unusual and the litigation history unfortunate.
3. The wife commenced proceedings in 2008. The dispute came on for a brief trial before a Family Law Magistrate in 2010. When judgment was delivered a considerable time later, both parties appealed. On the hearing of the appeal in 2014, it was agreed the orders be discharged and the matter remitted for a rehearing, which occurred in 2015.
4. The factual background presented considerable difficulties for a court in determining if orders for settlement of property should be made and, if so, what orders were just and equitable.
5. The parties separated their finances almost 30 years ago, have been divorced for over 20 years, and have not lived in the same home for more than 10 years. The last fact is explained by the finding that, despite their divorce in 1996, the parties shared the same residence until 2005. The wife gave birth to twins in 1996. The twins lived with the parties, although it was known they were not the husband’s biological children.
6. English is not the first language of either party. Both represented themselves before this court as did the husband before the trial judge. The trial judge found that he was “very much in the same position as that in which [the Family Law Magistrate] found himself, in terms of struggling to find any relevant or reliable factual material upon which the Court could found a decision” (at [15]).
7. At the centre of the proceedings are two pieces of real property. The first is the former matrimonial home in Hilton, which is owned jointly by the parties. At trial, it had an agreed value of $450,000. The second, which is in Mindarie, is owned solely by the wife. It had an agreed value at trial of $1,000,000.
8. The trial judge’s reasons noted the markedly conflicting evidence of the parties as to the date of separation. More important are those times when, on both party’s accounts, the relationship altered such that it can be said that their respective contributions, particularly their indirect financial contributions and contributions to the welfare of the family, changed in their nature and extent.
9. The marker points in the relationship are also important as counterpoints to the timing and circumstances of the acquisition of Mindarie and, in particular, the application of s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) to it and also to shares and chattels owned by the husband and the (very modest) superannuation interest of the wife (the husband had no superannuation).
10. Within that context it is significant that vacant land at Mindarie was acquired by the wife in 1993 (for $74,000). The trial judge records, and apparently finds by reference to the wife’s contention that “in early 1988 the parties separated their finances and have maintained separate finances since that time” (at [26]).
11. The acquisition of Mindarie occurred, then, approximately five years after the parties commenced living separate financial lives. It was acquired almost solely through monies provided by a friend of the wife, Mr S. The land could not have been purchased without those funds. Commencing in 2004, a home was built on the land. The wife’s mother provided $125,500 toward the construction and Mr S provided a further $146,000 or $150,000. It will be appreciated that those funds were provided, and the home constructed, some 15 years after the parties separated their finances.
12. The husband made no financial contribution to the acquisition, maintenance or preservation of the Mindarie property. As his Honour found, from 2005 the wife “and the children occupied the property to the exclusion of the husband” (at [38]). The property was at all times, and remains, unencumbered.
13. His Honour determined to make orders pursuant to s 79 of the Act. After resolving issues between the parties in a manner not the subject of this appeal and cross-appeal, his Honour found that the net property of the parties and the superannuation interest of the wife together totalled $1,535,272 (at [141]).
14. There was, it seems, no evidence as to the timing or manner of acquisition of approximately $70,000 in cash and shares owned by the husband at the date of trial, nor the wife’s superannuation of approximately $14,500. These are listed by his Honour as part of the property and liabilities of the parties, but are thereafter not mentioned, including in the orders, save for the reference to the wife’s superannuation having been “accumulated during periods of her employment which coincided with the parties’ cohabitation” (at [195]).
15. His Honour determined to approach the parties’ respective cases on an “asset by asset” basis. There is no doubt his Honour was entitled to do so.^[1] No issue on the appeal addresses that approach and, given the unusual facts and the consequent differing nature, form and characteristics of the parties’ respective contributions to the property, including the different ownership of real property, such an approach is, with respect, entirely proper.
16. However, that approach and the different timing and manner of acquisition of each of the pieces of real property; the nature, form and characteristics of the contributions made by the parties; and the legal and equitable interests in those properties, raises acutely s 79(2) of the Act to which we will shortly make reference.

CONCLUSIONS AS TO ERROR BY THE TRIAL JUDGE

17. The husband relied upon four grounds of appeal; the wife’s cross-appeal relied upon eight. All were poorly drafted as might be expected, given that both parties were self-represented and English is not their first language.
18. The husband’s Summary of Argument comprised just one page, and addressed only two of his four grounds. The wife’s Summary of Argument was more comprehensive, but relied upon a plethora of documents, including many affidavits she had sworn between 2009 and 2015. Although they were included in the Appeal Books, their status was not immediately obvious, since the wife relied on only one affidavit at trial.^[2] We note, however that other affidavits sworn by the wife became exhibits after the husband cross-examined on parts of them. The Appeal Books also contained numerous affidavits of the husband that were not in evidence before the trial judge; an order having been made on 1 December 2014 permitting the parties to rely on only one affidavit.^[3]
19. For reasons shortly to be traversed, all of the grounds relied upon by the husband in his appeal should be rejected and, so too, should most of the grounds of the wife’s cross-appeal. However, we consider there is merit in the wife’s challenges to his Honour’s assessment of contributions.

Hilton

20. In our judgment, his Honour’s assessment of contributions with respect to Hilton is attended by appealable error.
21. With respect to his Honour, we consider that he misapprehended the wife’s case in respect of the contributions to Hilton, in particular by attributing to her a concession as to equality of contributions which she did not make.
22. Secondly, we consider his Honour erred by failing to take account of a relevant consideration, namely the evidence of the wife, apparently accepted by his Honour, relating to her direct financial contributions to the acquisition, preservation and maintenance of the property.
23. Thirdly, we consider that his Honour’s finding that it was “more probable that the contribution made by the parties in a direct financial sense was equal” (at [83]) was not open to his Honour on the evidence and was, in any event, the subject of findings which, to our minds, appear contradictory.

Mindarie

24. His Honour determined that the husband should be seen as having made a contribution to that property assessed as 10 per cent of its value (or, in dollar terms, $100,000).
25. The non-legally trained and self-represented wife argues before this court that Mindarie is not “a marital asset”. That contention is misconceived; there is in fact no such thing as “marital assets” – s 79 applies to the “property of the parties or either of them”. Yet the wife can we think be seen to be asserting that a property owned solely by her and acquired without reference to, or financial support from, the husband at a time well after they had commenced living separate financial lives should not be the subject of a s 79 order.
26. We consider with respect that his Honour erred in the application of s 79(2) of the Act in relation to Mindarie. Having determined to approach the parties’ respective s 79 claims on an asset by asset basis, his Honour did not consider whether it was just and equitable to make any order pursuant to s 79(2) in respect of that property. (The same can be said of the husband’s cash and shares valued in total at about $70,000, and the wife’s superannuation interest.)
27. By reference to the evidence before his Honour, and findings which are not the subject of challenge, we consider it was not open to his Honour to conclude that it was just and equitable to make any order altering the wife’s interests in Mindarie (or the cash, shares and superannuation just mentioned).
28. Even if s 79(2) permitted of an order being made in respect of the property just mentioned, we consider that, in any event, his Honour erred. We are unable to see any evidentiary basis for his Honour’s finding that the husband had made “non-financial and indirect” contributions to Mindarie in the period between its purchase in 1993 and the wife’s departure from their shared residence in 2005. It will be recalled that the trial took place some 10 years after the latter date.
29. In addition, despite finding that the husband had performed “some parental responsibilities” for the children (who were not his biological children but with whom he claimed he had a loving and supportive relationship), we are unable to see how that should translate into the husband acquiring an interest in a property to which the wife herself made virtually no financial contribution.
30. Finally, if contrary to the view just expressed, s 79(2) permitted an order being made in respect of the husband’s cash and shares and the wife’s superannuation, his Honour did not do so. Having listed each as part of the property of the parties, his Honour does not at all refer to that property again in the reasons and makes no orders of any kind in respect of that property.

THE MINDARIE PROPERTY

Section 79(2) of the Act

31. On any view of the evidence before his Honour, the wife’s acquisition, preservation, and improvement of Mindarie took place wholly without reference to the husband. Indeed, as his Honour found, the husband only became aware of its existence well after it was purchased. His Honour found that the parties had separated their financial lives some five years prior to its purchase. The wife has, and has always had, the sole legal and equitable interest in the Mindarie property.^[4]
32. At [50] of the reasons, his Honour makes reference to Stanford and says it “requires an initial identification of what property is held and the legal and beneficial ownership thereof”. His Honour thereafter records the parties’ claims with respect to all of the property and its value. Turning to the decision in Stanford, his Honour finds that “both parties seek to enliven the jurisdiction of the Court to make adjustments that reflect their contributions during the course of their relationship” and then cites [42] of the High Court’s judgment in that case.
33. There, the High Court refers to the “common use” of property by the parties to a marriage and the cessation of the “express and implicit assumptions that underpinned the existing property arrangements” which have been brought to an end “by the voluntary severance of the mutuality of the marital relationship”. It is there recognised that the assumptions arising from the marriage relationship and its mutuality which were “sufficient or appropriate during the continuance of their marital relationship” are brought to an end.
34. Importantly, it is not the event of separation marking the end of the martial relationship that is important; rather it is the end of any existing “express and implicit assumptions that underpinned the existing property arrangement” which is important. Of course, that will very frequently occur upon the physical separation of the parties to the marriage, but not necessarily, as this case illustrates.
35. On no view of the evidence can it be said that any express or implicit assumptions arising from the marriage relationship underpinned the acquisition, preservation or improvement of Mindarie. Indeed, the evidence is to the contrary. And, of course, there was never any common use of Mindarie nor was there ever intended to be.
36. To the extent there were any express assumptions, they were solely those of the wife and they were to the effect that the husband had, and would have, nothing whatsoever to do with Mindarie – something which was given expression by her having the sole legal interest in it and the husband having made no financial contribution of any kind to it.
37. His Honour, at [57] of the reasons, referred to “any presumptions that may have flowed from the parties’ relationship, as to the entitlement or benefit of property” (emphasis added) and said that they no longer apply. Reference to “presumption” (as distinct from assumption) cannot, in our view, be given a benevolent or irrelevant construction. It appears to be the basis upon which his Honour draws no distinction between Mindarie and Hilton (or, indeed, the other property of the husband and the wife’s superannuation). Furthermore no distinction is there drawn between Hilton and Mindarie despite the fact that his Honour determines to approach the parties’ respective s 79 cases on an asset by asset basis.
38. In the vast majority of cases, it will be appropriate to address the s 79(2) question by ascertaining the legal and equitable interests in property without making distinctions between individual assets. That is because the “express and implicit assumptions that underpinned the existing property arrangements” can be seen to apply (to the extent and degree to which they do apply) to all of the property of the parties or either of them, including property in which the legal interests vary.
39. However, the position is likely to be different in circumstances where, as here, the characteristics of the property and the circumstances of its acquisition, improvement and the like can be seen to differ significantly and where, as here, the parties’ relationship had taken on quite different characteristics during the period to which the s 79 inquiry is directed.
40. We are respectfully unable to see any evidentiary foundation by which it was open to his Honour to conclude that it was just and equitable to alter the wife’s legal and equitable interest in Mindarie.
41. In that respect a sharp distinction should be drawn between that property and Hilton. There can be little doubt that common assumptions, both express and implicit, underpinned the acquisition and use of the Hilton property. It is significant that, despite the finding that the parties led separate financial lives from about 1988 onwards, the use of the Hilton property continued for another 17 years and, by 2005 when the wife and children left the property, the common use of that property had spanned some 20 years.
42. In our view his Honour erred in law in failing to consider, as s 79(2) requires, whether it was just and equitable to make an order altering the existing legal and equitable interests in the Mindarie property.

The Assessment of Contributions

43. As we have earlier said, even if his Honour was correct to consider an alteration of the wife’s interests in Mindarie, we consider that his Honour erred in his assessment of the contributions in respect of it.
44. The only direct financial contribution made by either of the parties to the acquisition of the Mindarie land and, subsequently, the construction of a home upon it, was made by the wife in 1993 in the amount of $2,000. The husband made no direct financial contribution at any time.
45. The consequence of his Honour’s finding that monies advanced from Mr S should not be treated as a loan is that sums advanced by him were a contribution made on behalf of the wife. The same is true of the monies advanced by the wife’s mother. By cross-appeal ground 3 the wife contends that “there is not one piece of evidence that the [husband] contributed in any way to the [wife’s] post-separation property”. That statement is true insofar as it is confined to direct financial contributions.
46. The wife contended that the only contribution of any kind made by the husband in respect of Mindarie was to help the wife “remove a small amount of fencing” in return for which the wife assisted the husband in “folding pamphlets”. (The husband had employment distributing the same.) In her affidavit the wife described the fencing as the husband removing “5 sheets of hardy plank fence”. She said that the work was done on one day and that she folded the pamphlets a few days later. It appears that this evidence was accepted by his Honour.
47. As has already been noted, Mindarie was acquired by the wife in her sole name some five years after the parties separated their finances. The husband deposed that he was unaware that the wife had acquired Mindarie until sometime after she had done so. It appears that his Honour accepted that the wife had, herself, met all of the outgoings on the property. It was at all times unencumbered.
48. His Honour’s only reasons for awarding the husband a 10 per cent interest of that property appear at [181] and [182] of the reasons:
    181. The wife has had the use since 2005 of the [Mindarie] property. She had the benefit of the husband’s contribution at the time she acquired the land and to the point of her departure from the [Hilton] home whilst the house was being built, albeit that that contribution was non-financial and indirect as I have described.
    182. The interests so acquired by the husband, however, in the property must be very much in the lower range and no more than 10 per cent.
49. On our reading of the reasons, the only basis upon which the husband might possibly have been entitled to an extra $100,000 is the concluding part of [181] quoted above. The difficulty is that we can see no evidentiary foundation for that finding.
50. The evidence revealed that the land had remained vacant for about 11 years until early 2004. The contract for the construction of the home was signed in February 2004 and the dwelling was completed in October 2005.^[5] The only potential foundation for his Honour’s conclusion is, perhaps, his Honour’s reference to the husband’s involvement in the lives of the wife’s twin children.
51. Findings made, for example, at [97], [103] and [104] relate to that involvement and result apparently in his Honour being “satisfied that [the husband] did contribute as a homemaker and also in the performance of some parental responsibilities”. His Honour, however, went on to find that “the wife did more than he did, particularly in terms of caring for [N, who is disabled], however I do not accept the husband did nothing”.
52. It is first necessary to repeat that his Honour was adopting an asset by asset approach. Thus, we are concerned only with divining what non-financial contributions the husband made that impacted on the assessment of contributions to Mindarie (rather than Hilton where the wife and, subsequently, she and her children resided until 2005). In that respect it should be noted that his Honour recorded and did not reject the wife’s evidence that she was “solely responsible for the financial support of the children” (at [96]).
53. Secondly, the authorities are clear that “contributions” to non-biological children should be assessed as a factor of potential relevance under s 75(2)(o) rather than as contributions made pursuant to s 79(4)(e).^[6] However, the wife’s counsel addressed this issue at trial under the rubric of contributions without demur or approbation by his Honour.
54. Thirdly, not everything a party does for the benefit of their spouse’s children should result in some monetary reward in property settlement proceedings.^[7]
55. With great respect to his Honour it is extremely difficult to understand how the “performance of some parental responsibilities” coupled with an apparent acceptance that the wife was “solely responsible for the financial support of the children” should sound in an assessment with respect to Mindarie, the dollar value of which is $100,000. There is no evidence that the husband made any other indirect contribution to the Mindarie property. There is no evidence that the husband by any actions contributed to the maintenance or preservation of the property (save for the evidence earlier referred to relating to the fencing).
56. We consider there is merit in that part of cross-appeal ground 3 which challenges his Honour’s assessment of contributions to Mindarie.

THE HILTON PROPERTY

Misapprehension of the Wife’s Case

57. With respect to his Honour, we consider he has fundamentally misapprehended the wife’s case. At [75] his Honour recorded what he understood to be the wife’s case, namely that the contributions of the parties should be regarded as equal as at 1995. However, at [180] his Honour recorded his understanding that it was the wife’s case that contributions to Hilton were equal through to 2005. Neither of these propositions is correct.
58. In her opening address, when asked what the outcome should be, counsel for the wife said that the wife should retain Mindarie and that she should be paid one half of the value of Hilton.^[8] That statement ought not to have been taken as an acceptance that contributions to Hilton were equal, especially in light of everything that counsel had said up to that point about the contributions the wife had made and the absence of contributions by the husband; although the wife acknowledged that each party paid half of “all the expenses for the house”,^[9] she was clearly not referring to the mortgage payments.^[10]
59. The fact the wife never conceded that contributions to Hilton were equal can also be seen from her Papers for the Judge filed in June 2015. Her case, as stated in that document, was that contributions up to the date of separation^[11] should be assessed at 80 per cent by her and 20 per cent by the husband.
60. Further, there was nothing in the closing submissions to suggest that the wife accepted that contributions to Hilton were equal. In her closing written submissions, counsel for the wife:
    • accepted that contributions from 1982 to 1987 were equal;
    • reminded his Honour of the evidence relating to the mortgage payments the wife had made, including a lump sum payment of $13,500 that the wife claimed the husband had agreed to repay her, but had not;
    • asserted that the husband paid only $2,000 toward the mortgage between 1988 and 1996 when the mortgage was said to have been discharged; and
    • acknowledged that the evidence did not permit his Honour to conclude who paid the utilities and other expenses, but drew attention to the evidence that there was an agreement to share those expenses.

The Findings in respect of Contributions

61. At [78] of the reasons his Honour said:

Again, the relationship between the parties needs to be considered in its totality. Whilst it is asserted that the parties separated their finances, and I accept to a large extent that they may have done so, that of itself is not indicative of a separation.

62. With respect to his Honour, while there was a significant factual issue joined between the parties as to the date of separation, the relevant considerations in respect of the assessment of contributions of all types pursuant to s 79(4) of the Act turned, in this case, not on differing claimed dates of separation but on those dates when the parties’ respective contributions changed their nature, form and characteristics. Expressed in terms familiar from Stanford, the relevant date or dates were when the common use of property changed and/or where any explicit and implicit assumptions that had governed the parties’ financial relationship had changed.^[12]
63. His Honour was, with respect, correct in holding that the relationship between the parties needed to be considered in its totality, as do the nature, form and characteristics of their respective contributions across the totality of that relationship. His Honour found, broadly speaking, that there was nothing to distinguish between the particular contributions made by each of the parties although, with respect, the findings are expressed in rather opaque terms.
64. We consider that his Honour’s findings can be understood as findings of equality of contributions at three points (10 years apart):
    • As at 1995 (reasons [75]);
    • As at 2005 when the wife left the home (reasons [180]); and
    • As at the time of the (second) trial in 2015 (reasons [185]).

A. The Husband’s Challenge

65. The husband’s challenge on this appeal relevant to Hilton turns on what he says were his greater non-financial contributions, whilst the wife’s complaint concerns what she says were her greater financial contributions.
66. Ground 1 in the husband’s appeal asserts that:^[13]

His Honour Justice Moncrieft erroneously and unfairly used contribution of each party to the improvements of [the [Hilton] property]. 50/50 contribution is contradicted by dozens of receipts/photos the [husband] has provided. His Honour Justice Moncrieft erred in regard of maintenance of the [Hilton] property by the [husband].

67. This complaint was directed at the alleged failure to recognise and give proper weight to the work the husband did in improving and maintaining the Hilton home, which was not “finished” when handed over by the builder. The husband submitted before us that the wife’s contribution to the work “was less than 1 per cent”.
68. At trial, the husband adduced evidence of the work he said he had done to Hilton and the monies he expended on improving it. Much of this evidence was given in general terms.^[14] There was also no evidence to suggest what difference the work made to the property. This may explain why his Honour did not make any reference to the work in his reasons, save where he said that “the wife may have had quite reasonable complaints about the state of incompleteness of the [Hilton] property”.^[15] Similarly, no reference was made to the wife’s evidence of her work around the property, although she claimed she had done as much as the husband had.^[16]
69. The trial judge also made no finding about the wife’s claim, which his Honour summarised as being that Hilton is “very poorly maintained and that things are overgrown and it’s a shambles”.^[17] We note, however, that when his Honour gave the husband the opportunity to challenge this part of the wife’s case, he failed to do so.^[18] We note also that the valuer described Hilton’s street appeal as “below average – overgrown” and the paintwork inside and out as “below average”.^[19] The valuer also made mention of the “internal clutter” that would need removing (which resonated with the wife’s many complaints about the husband being a “hoarder”, which the husband himself admitted).^[20]
70. Quite apart from the obvious deficiencies in the husband’s case on this topic, his complaint fails to engage with the fact that the work done in improving and maintaining Hilton was just one of the contributions made to that property. Even if the husband had established that he did more of the physical work, this would not have been sufficient to demonstrate that his Honour erred in concluding that contributions to that property overall were equal.

B. The Wife’s Challenge

71. The wife’s claim (premised on greater direct financial contributions) cites in particular repayments of the mortgage in “much greater proportion than [the husband’s] repayments” and capital injection of $13,500 by the wife (crossappeal ground 1).
72. His Honour found, contrary to the wife’s assertion, that the capital sum of $13,500 was not a loan to the husband. However the consequence of that finding is that it was a capital contribution made by her at a significant time in the acquisition of Hilton. The trial judge takes no account of that capital contribution.
73. In her affidavit of evidence in chief,^[21] the wife deposes to borrowings undertaken by her to purchase the vacant land upon which the Hilton home was built and that she “paid off this loan entirely from [her] income as the [husband] was not in paid employment”. She deposes to an “initial financial contribution of $4000” in respect of the construction of the home on the Hilton land and to further capital injections of $2,000 for a garage, slab, gravel and bricks and a further $3,500 towards window coverings. The wife goes on to depose that the mortgage was paid in approximately 18 years and that she “applied all of [her] earnings towards the home”. As to the balance of the household expenses and the mortgage the wife deposes:

On many occasions, [the husband] would ask me to pay the majority of the household expenses as he was not working very much, earning very little money and was not able to contribute towards these expenses.
In that same affidavit the wife deposes to the separation of finances in September 1987.

74. The husband’s affidavit contained no detailed reference to the money that was borrowed to acquire and build the home on the Hilton block, although he claimed that he “financ[ed] every expense” relating to some of the work done after the house was handed over by the builder.
75. The husband’s cross-examination of the wife relating to the $13,500 did not dispute that the money had been advanced. In his submissions before us the husband said the $13,500 payment should be ignored because he did not know it had been made.
76. We are unable to see where his Honour made any findings with respect to the capital injections by the wife which were the subject of her evidence just quoted. As we have said, the trial judge concluded “on balance” that until 2005 when the wife left the property that it was “more probable that the contribution made by the parties in a direct financial sense was equal” (emphasis added). However, later, when dealing with a complaint about the husband’s failure to make proper disclosure, his Honour said (emphasis added):
    169. Further, the wife seeks to agitate the issue of disclosure. True it may be that the husband has destroyed income records, including tax assessments and returns for financial years prior to 2009, however, in his case the lower level of earnings enjoyed by him during the relationship, relative to the wife, was the subject of evidence and, given the nature of the employment he was undertaking, was more probable than not to have been the case. At no point was it suggested that the husband was earning a significant income. Indeed, the case for the wife was quite the contrary.^[22]
77. His Honour’s finding at [169] might be seen as tending to support the wife’s assertions. In light of the fact that his Honour made no mention in the reasons at all of the wife’s evidence as to the direct financial contributions made by her, we are unable to see how his Honour found it “more probable” that the financial contributions were equal. We reiterate that his Honour appears to have accepted that the parties separated their finances from about early 1988 (the wife alleges September 1987).
78. It is of course unnecessary for a judge to mention every fact or argument relied upon by the losing party as relevant to issues determined.^[23] Here, however, we are unable to discern either expressly or by implication the path by which his Honour’s result was reached.
79. His Honour’s conclusion failed to take account of a relevant consideration, namely the direct financial contributions asserted by the wife. His Honour may well have legitimately reached a conclusion of equality having considered all of the relevant evidence adduced by the parties, including the wife’s evidence as to her direct financial contributions. However, his Honour’s conclusion is, in our respectful view, unsafe in light of the fact that we are unable to discern how his Honour reached that conclusion in light of the findings to which we have referred and his Honour’s failure to take account of a relevant consideration being the direct financial contributions made by the wife.
80. Those reasons inform our conclusion that there is no merit in the husband’s challenge to the trial judge’s assessment of contributions but there is merit in the wife’s cross-appeal which challenges that assessment.

THE PARTIES’ OTHER GROUNDS

81. Each of the parties advance additional grounds in their appeal and cross-appeal respectively. None have merit. Many are based on misconceptions of the evidence or his Honour’s reasons. They will be dealt with briefly as a consequence.

A. The Husband’s Appeal

Ground 2 – Contributions by Third Parties

82. Ground 2 is expressed in terms almost impossible to comprehend:

His honour Justice Moncrieft wrongfully exercised financial advantage of each party especially in regard of contributions of Mr [S] to the [wife] and Miss [P] alleged properties.

83. Recognising that English is not the husband’s first language, we have sought to understand his grievance by reference to his submissions. It seems tolerably clear that the husband asserts that his Honour wrongly took account of assets and/or the financial position of his partner, Miss P. His Honour did not refer to Miss P by name, but it is clear that she is the person referred to at [154] and [155] of the reasons. However, the husband has entirely misunderstood the finding made by the trial judge. His Honour there rejected the wife’s assertion that he ought to have regard to Miss P’s financial position in arriving at his decision. The husband’s challenge proceeds on a false premise.
84. An additional argument by the husband appears to assert that contributions made by Mr S ought to have been regarded as contributions made for the benefit of the husband and the wife, rather than being treated entirely as a contribution on behalf of the wife. The fatal difficulty with this proposition is that it was never put to the wife, nor was it put to Mr S.

Grounds 3 and 4 – Return of Chattels and Letters

85. These purported “grounds of appeal” are not grounds of appeal at all. The husband did not trouble us with any written submissions in support of them. It is sufficient to record that the complaints pertain to Order 5 which required the parties to “arrange between themselves” the collection by the wife of toys belonging to the twins (both of whom are now adults) and personal chattels and letters previously belonging to the wife’s late mother. There are no reasons for that order as such, but the issue was the subject of some brief crossexamination,^[24] and we accept there was a basis for the order.
86. The issue is so trifling as not to warrant further consideration.

B. The Wife’s Cross-Appeal

Cross-Appeal Ground 2 – Use of the Wife’s Capital

87. By this ground it is asserted that:

The Trial Judge erred in the exercise of his discretionary judgement by not taking into account and make adjustment in favour of [the wife], the sole use and occupation by the [husband], the benefit and enjoyment of the use of [the wife’s] capital for over 10 years without paying any rent to [the wife].

88. There is no merit in the complaint. His Honour offset what he regarded as the husband’s contribution in maintaining the Hilton property and paying the outgoings against the husband’s occupation of the property. That finding was well open to his Honour.

Cross-Appeal Ground 3 – s 75(2) and the Mindarie Property

89. By this ground the wife complains that:

The Trial Judge erred of his discretionary judgement by inadequate findings of facts relating to [the wife’s] non marital asset - post-separation property in [Mindarie], as there is not one piece of evidence that the [husband] contributed in any way to the [wife’s] post-separation property, where his Honour evidently made an adjustment in favour of [the husband] in the order of 10% of the value of [Mindarie] based on 2015 valuation of the [Mindarie] property some 27 years after separation, and 5% of the Real Estate where the [Mindarie] property is not a marital asset at all.

90. We have earlier dealt with that part of the ground that can be seen to pertain to contributions.
91. We have also dealt earlier with the balance of the ground by treating the reference to “not a marital asset” as being a challenge addressed to s 79(2) of the Act.

Cross-Appeal Ground 4 – Care of Disabled Daughter

92. By this ground the wife asserts that the:

The Trial Judge erred in the exercise of his discretionary judgement by not taking into account that the [wife] has a duty to maintain and care for her adult child with severe disability. The severe and permanent disability of her child is evident and has been supported by the evidence. The medical certificate and the detailed condition of the permanent disability also has been presented but ignored by the Trial Judge.

93. His Honour found that the female twin, N, had been “born with a leg deformity”.^[25] His Honour dealt with N’s “significant disability”,^[26] her financial position and the financial position of the wife and carefully considered the evidence (and, importantly, lack of evidence) in respect of this specific issue.^[27] His Honour returned to the issue when summarising his “Conclusions” at [193] – [194] of the reasons.
94. To the extent that the wife asserts that his Honour did not take account of the matters listed in the ground, it proceeds on a false premise. To the extent that it is asserted that the trial judge should have given those matters greater weight, the attribution of that weight was quintessentially a matter for his Honour.
95. His Honour gave this issue careful consideration. Nothing advanced by the wife in her submissions suggested that there was any error in his Honour’s approach. There is no merit in this complaint.

Cross-Appeal Ground 5 – the Husband’s Relationship with the Children

96. This ground asserts that:

The Trial Judge erred in the exercise of his discretionary judgement by not identifying correctly the relationship between [the husband] and the children of [the wife] where evidence submitted by [the husband] was manipulated and self-serving by [the husband].

97. This is not a proper ground of appeal. It amounts to nothing more than a statement that the trial judge should have accepted the wife’s characterisation of the husband’s relationship with the wife’s children.

Cross-Appeal Ground 6 – Disclosure by the Husband

98. Ground 6 asserts that:

The Trial Judge erred in the exercise of his discretionary judgement to correctly identify [the husband’s] income records prior to 2009 where the tax income details were still available from the Tax Office and should have been obtained by [the husband], where His Honour accepted that [the husband] destroyed his income records including tax assessments.

99. The wife asserted in her Summary of Argument that she had tried to obtain disclosure of the husband’s tax records prior to trial, but that her applications had been rejected by the Registrar. There was no indication that the wife had sought to review the decisions of the Registrar.
100. The trial judge had to do what he could with the evidence he had. At [169] of the reasons, his Honour recognised that the husband had destroyed records, but considered that it was not necessary for the Court to be aware of the precise extent of the husband’s income because it was not suggested that he was earning a “significant income”.

Cross-Appeal Ground 7 – Loan from Mr S

101. Ground 7 claims that:

The Trial Judge erred in the exercise of his discretionary judgement to accept the evidence of the loan from [Mr S] to [the wife] where the loan is required to be paid back.

102. The ground refers to the wife’s claim (and Mr S’s claim) at trial that the monies advanced to the wife in respect of Mindarie were loans that required repayment. The complaint within it is not a proper ground of appeal; it fails to identify appealable error and constitutes nothing more than an averment that the trial judge should have accepted the wife’s case.
103. The question of the existence of the loan from Mr S was discussed by his Honour over six pages of his judgment (from [105] – [140]). It should be observed that in reaching his conclusion, his Honour made no mention of this paragraph in Mr S’s affidavit (noting that Mr S is now 90 years of age):
     14. Whilst I was totally confident that I would be repaid the money I had lent [the wife], when I had my stroke my sons became involved in my affairs. I went to make a new Will and my sons insisted that some paperwork be drawn up to document this loan to [the wife]. Part of their reason was that just before I had my stroke a friend of mine had died. I had also lent him a large amount of money on the same unwritten agreement as with [the wife]. Unfortunately, his family did not agree that he owed any money at all and as it was not documented they refused to repay me. So I agreed with my sons and asked [the wife] if she would agree to document the loan agreement. She said she would and we both signed a loan agreement for the total amount outstanding at that time on 15 January 2007...
104. That evidence had the potential to impact on other findings made by his Honour in respect of the alleged loan. That matter notwithstanding, it should be accepted that his Honour’s conclusion was, for the reasons which his Honour gave, well open to him.

Cross-Appeal Ground 8 – Husband’s Relationship with Miss P

105. The wife’s final ground of appeal asserts that:

The Trial Judge erred in the exercise of his discretionary judgement by failing to take into account significant s 75(2) factor, a fact of [the husband] cohabiting with his new partner [Miss P] and the financial circumstances relating to the cohabitation.

106. The ground proceeds on a premise that the husband was cohabiting with Miss P when his Honour’s finding was that he only stayed regularly at her residence.

APPLICATION TO ADDUCE FURTHER EVIDENCE

107. On 9 November 2015, the wife filed an Application in an Appeal seeking to introduce further evidence, which she considered would establish that the husband was living in a de facto relationship with Miss P.
108. If received, such of the evidence as is admissible does no more than confirm that his Honour was correct in finding that the husband had been in a relationship with a woman and that he stays at her home “regularly”.^[28] The evidence does not illustrate error. The husband had no objection to the evidence being introduced, but we do not propose to receive it.

RE-EXERCISE OF THE DISCRETION

109. In the event that we found error, both parties invited us to re-exercise and each informed the bench that they did not wish to adduce any additional evidence.
110. As will be apparent from what we have already said (and, indeed, from what the trial judge said) the state of the evidence before the trial judge presents us with considerable difficulties in re-exercising as at the date of the hearing of the appeal.
111. However we are acutely conscious that this litigation has been on foot since 2008. There have already been two trials. In the interests of the parties (and other litigants) we feel compelled to reexercise the discretion notwithstanding the absence of findings of fact which would have assisted us in reaching a decision.
112. As we said at the outset, the factual matrix is most unusual: the parties separated their finances almost 30 years ago; they have been divorced for over 20 years; and they have not lived in the same home for more than 10 years.
113. As we have also already said, we consider that the asset by asset approach as was adopted by his Honour is appropriate in the circumstances of this case given that unusual factual matrix and the differences in the nature, form and characteristics in the parties’ respective contributions made over what is now a very long period of time since they commenced cohabitation.
114. We repeat what we have earlier said in respect of s 79(2) of the Act. The factual circumstances pertaining to the acquisition of the Mindarie property and its preservation and improvement do not in our view admit of it being just and equitable to make any order altering the existing interests in it.
115. For the sake of clarity for the self-represented parties we will make an order declaring the wife as having the sole legal and equitable interests in the Mindarie property to the exclusion of any claim, right, title or interest by the husband.
116. Similar considerations apply to the approximately $70,000 in shares and cash held by the husband and the wife’s superannuation interest. The absence of evidence in respect of the manner and timing of the acquisition of those respective interests by each of the parties and, again, the approximate 28 year timeframe between separation of the parties’ finances and the hearing of this appeal renders us unable to conclude that it is just and equitable to alter the parties’ respective interests in that property and superannuation interest.
117. Again, for the purpose of clarity for the self-represented litigants we would declare each of the parties to have the legal and equitable interests of that property to the exclusion of any right, title, claim or interest by the other.
118. As to the Hilton property, the parties made a variety of contributions while they were together. As a result of their efforts, they were able to acquire a modest property, which served as a home not only for them but also for the wife’s children and mother (and for a time the husband’s mother and sister).
119. While the evidence supports a finding that the wife made the greater financial contribution, she gave evidence of the very long hours the husband worked in endeavouring to earn income. The wife was critical of the husband’s failure to finish tasks around the home, but she nevertheless acknowledged that he did do some work, in which she joined. Apart from the work done in finishing the home, each also made other domestic contributions. The husband has had the benefit of residing in the property for many years but has met the outgoings on the property and preserved it. Those contributions by him are ameliorated somewhat by the state of the property to which we have earlier referred which the wife describes in her affidavit, not inaccurately by reference to the evidence of the valuer and the photos produced by her, as “squalid”.
120. Whilst it is axiomatic that other outcomes are available, on the evidence available to us we are unable to see, overall, any significant matters of distinction between the contributions of the parties of all types made across the whole of the period between the date of cohabitation and the date of the hearing of the appeal. We consider a finding of equality of contributions to be the appropriate outcome in respect of Hilton.
121. As a result of the conclusions just outlined, the wife will retain Mindarie (valued at $1,000,000) and a superannuation interest of $14,355 and, all else being equal, would be entitled to receive $225,000 from the husband. The husband will retain Hilton with the value of $450,000 and shares and cash totalling approximately $70,000. He will need to raise and pay $225,000 to the wife. That prospective distribution is, of course, a highly relevant matter pursuant to s 79(4)(e) of the Act by reason of s 75(2)(b).
122. As at the date of the hearing of the appeal the wife was aged 58 and the husband 63.
123. The husband is in a relationship with another woman and has been for some time. There was no evidence before his Honour to sustain a conclusion that the husband and that woman were in a de facto relationship. His Honour found that the husband had no entitlement “or right to claim any support or financial benefit from his female friend” (at [155]). There is no evidence to suggest that finding is wrong.
124. His Honour found that the husband has “been consistent in the nature and level of his employment” and, while rejecting specific contentions as to suggested prospective employment made by the wife, his Honour was “satisfied that the husband is likely to have a greater earning capacity than the wife, whilst the wife is dependent upon a carer’s pension and is unable to re-join the workforce as a consequence of [her daughter’s] disability” (at [148]). We adopt that finding.
125. In our view, the only reasonable conclusion open on the evidence is that each of the parties currently has an extremely modest level of income and their future holds no greater hope of more significant income.
126. His Honour also found that “the wife is on a carer’s pension and it is her evidence, and her evidence alone, that this is likely to continue as a consequence of [her daughter’s] disability”. His Honour quotes submissions made by the wife’s counsel at trial with respect to the wife’s daughter’s disability and the specifics of the surgery and the results of surgery which she has undergone. His Honour then said that:
     158. Neither the wife nor her counsel had the expertise to advance such a conclusion based on the very limited evidence, yet it is expected that the Court will either apply some expertise to draw a conclusion from photographs or simply rely on the wife’s opinion.
127. His Honour found that the wife’s adult daughter “clearly has had and potentially continues to have a significant disability” (at [161]). While there were many deficiencies in the evidence, we are satisfied that the evidence was sufficient to permit at least a finding that the disability of the daughter had the potential to impact on the wife, and her capacity to earn income, especially given that she had been receiving a carer’s pension for some time.
128. His Honour also found that there is “no evidence as to [Mindarie] being ‘purpose built’” (at [153]). That conclusion is incorrect. The unchallenged evidence of the wife is that Mindarie was “built and designed to accommodate [the wife’s disabled daughter’s] needs and allow her to move around the house in her wheelchair and with a walking aid”.^[29] That contention was the subject of evidence from the wife’s son to the same effect.^[30]
129. While not capable of quantification, that factor is relevant to the nature of the property retained by the wife and any potential sale of it.
130. His Honour found that “[the wife’s disabled daughter] is now 18 years old and whether the wife has a legal duty to maintain her remains an open question on the evidence” (at [156]). Given the combined effect of s 66C and s 66L of the Act in light of his Honour’s findings that the adult child suffers from a “significant disability”, it may be said that the wife does indeed have “a legal duty to maintain her”. Be that as it may, past care of that child, now an adult; receipt of the carer’s pension and the evidence of the modifications to the Mindarie property to which we have referred all point to the future care of the wife’s daughter being a significant matter pursuant to s 75(2)(o) of the Act.
131. While we have found no error in his Honour’s conclusion that the money advanced by Mr S is not a loan, with the consequence that it is not to be treated as a liability of the wife in assessing the parties’ net property, evidence relating to those advances has relevance to s 75(2)(o).
132. We have earlier quoted paragraph 14 of Mr S’s affidavit where he deposes to the attitude of his sons and the prospect that they may seek to recover the advances (and interest) from the wife. That is no idle consideration. Mr S is 90 years of age. He has sworn on oath that the money advanced to the wife is a loan and to the terms of it. The wife has also sworn on oath that money advanced from Mr S is a loan and that she owes a debt to him (including interest).
133. Taking all of that evidence together, there must be at least a real possibility that Mr S’s sons may, subsequent to his death, seek to enforce the loan to which the wife (and Mr S) have deposed. Naturally enough, that risk cannot be quantified, but in our view it remains a matter of some substance.^[31]
134. His Honour says this at [151] of the reasons:

Further, no adequate explanation was given by the wife about the disposition of an account, which she said was held on trust for [her adult daughter], which at a time when she was but eight years of age, had a balance greater than $21,000. The wife’s answer, that it was [her daughter’s] account and it is her business what has happened thereto, was entirely unsatisfactory, but that was the extent of the evidence offered when she was questioned about the balance of and subsequent dealings with the money in that account.

135. Having made those comments, his Honour did not refer again to the issue, but its mention within a consideration of s 75(2) would suggest that the wife’s use of the $21,000 was somehow taken into account pursuant to s 75(2)(o). The evidence about it is opaque such that we merely record it as a factor potentially relevant but do not ourselves take it into account.
136. In seeking to inform a conclusion as to what orders represent a just and equitable settlement of property in this case it seems to us important to acknowledge that the parties have spent many more years apart than they were together and that the wife’s superior financial position has come about as a result of the beneficence of third parties, albeit that a claim by Mr S’s sons may in the future impact upon that beneficence.
137. Nevertheless as the position presents at the date of the hearing of the appeal, the wife’s asset position is markedly stronger than the husband’s and he is now well over 60 years of age with, at best, the prospects of earning only a modest income. The wife’s financial position is also not strong and she has the ongoing care of her disabled adult daughter and is currently receiving only a carer’s pension.
138. Taking into account all relevant factors, we consider that an adjustment of $75,000 in favour of the husband would lead to a just and equitable outcome.
139. The husband will therefore be obliged to pay the wife $150,000 to acquire her interest in the Hilton property. Order 1 made by his Honour will be varied so as to provide that instead of the husband paying the wife $52,500, he will need to pay $150,000. The other orders, which will remain undisturbed, lay down what is to occur if the husband does not make the payment.
140. We do not need to deal with the issue of costs as the wife advised she had incurred no costs in the appeal proceedings.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Thackray & Murphy JJ) delivered on 12 May 2017.

Associate:

Date: 12 May 2017

^[1] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513.

^[2] Reasons at [63]; see transcript, 29 June 2015, pp 39–40.
^[3] We have had no regard to the contents of affidavits which were not before his Honour.
^[4] Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108 at [37].
^[5] Wife’s affidavit at [123] – [124].
^[6] See, for example, Robb and Robb [1994] FamCA 136; (1995) FLC 92-555.
^[7] See, for example, R & H [2003] FamCA 125, at [18], [23].
^[8] Transcript, 29 June 2015, p 38.
^[9] See for example transcript, 30 June 2015, pp 45–6, 89.
^[10] See for example transcript, 30 June 2015, pp 48, 51.
^[11] Which she said occurred in 1997.
^[12] Stanford (above) at [42].
^[13] Errors in the original in this and subsequent recitations of the grounds.
^[14] Husband’s affidavit at p 5 (some of which was struck out, see transcript, 29 June 2015, p 20).
^[15] Reasons at [43].
^[16] Wife’s affidavit at [88] et seq; transcript, 29 June 2015, p 47; transcript, 30 June 2015, p 91.
^[17] Transcript, 30 June 2015, p 47 and see the wife’s evidence at transcript, 30 June 2015, p 42.
^[18] Transcript, 30 June 2015, p 47, 48.
^[19] See also the market appraisal obtained by the husband (Annexure 20 to the wife’s affidavit) describing the very poor condition of the property in 2014.
^[20] Wife’s affidavit at [91] et seq; the many photos at Annexure 18 to the wife’s affidavit; transcript, 3 July 2015, p 17.
^[21] At [83], [84], [85], [86], [91].
^[22] Further at [149], when dealing with the s 75(2) factors, his Honour also noted that the wife’s case had been that she “earned a greater income than the husband”.
^[23] Whisprun Pty Ltd (Formerly Northwest Exports Pty Ltd) v Dixon [2003] HCA 48; (2003) 200 ALR 447, at [62].

^[24] Transcript, 2 July 2015, pp 23, 24.
^[25] Reasons at [34].
^[26] As his Honour described it at [161].

^[27] See reasons at [145], [148], [150] – [151], [156] – [161].
^[28] Reasons at [154].
^[29] Wife’s Affidavit at [127].
^[30] Son’s Affidavit at [24].
^[31] Authorities pertaining to the treatment of capital gains tax where future sale of an asset is a possibility but not certain pertain analogously: see, for example: Rosati and Rosati [1998] FamCA 38; (1998) FLC 92-804 and IABH & HRBH [2006] FamCA 379.