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Harris & Dewell and Anor [ 2018] FamCAFC 94  (25 May 2018)

Last Updated: 31 May 2018

FAMILY COURT OF AUSTRALIA

HARRIS & DEWELL AND ANOR

[2018] FamCAFC 94

REPRESENTATION

ORDERS

(1) The appeal be dismissed.
(2) The Application in an Appeal dated 5 October 2017 seeking to adduce further evidence by the second cross-respondent in the cross-appeal be dismissed.
(3) The cross-appeal be dismissed.
(4) Each of the parties to the appeal and cross-appeal shall file with the Appeals Registrar and thereafter serve on each other party:

• (a) any written submissions each seeks to make as to the costs of and incidental to the appeal and the cross-appeal within twenty-eight (28) days of the date of these orders; and
• (b) any reply submissions to the said submissions within fourteen (14) days after service upon them of those submissions.

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 Harris & Dewell and Anor 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: EA 194 of 2016
File Number: SYC 5809 of 2011

And

And

Mr Harris Snr
Second Cross-Respondent

REASONS FOR JUDGMENT

1. On 4 November 2016, Rees J made orders for settlement of property consequent upon the breakdown of a 24 year relationship between Mr Harris (“the husband”) and Ms Dewell (“the wife”). The proceedings before her Honour were dominated by the wife’s assertion that, for the purposes of s 79 of the Family Law Act 1975 (Cth) (“the Act”), the property of the husband should be held to include units in the E Unit Trust (“EUT”).
2. Ostensibly the husband holds no such interest. Nor, ostensibly, does he control the EUT. It was contended by the wife at trial that the EUT should have been held to be the husband’s “puppet” or “creature” by reason of the extent, manner and history of the husband making decisions directly affecting the trust and his dealings with its property. The orders made by her Honour reflect a rejection of the wife’s contention.
3. The wife’s contention that her Honour erred in so concluding dominates, in turn, the arguments on the cross-appeal in which she is the cross-appellant. An alternative argument by her to similar effect asserts that an estoppel arises and that a trust should have been construed with the court giving remedial effect to it.
4. The appeal is initiated by the husband, and challenges her Honour’s assessment of the respective contributions of the husband and wife, her Honour’s assessment of the relevant s 75(2) factors, and her Honour’s alleged failure to allow the husband time to produce evidence as to the capital gains tax (“CGT”) that would be payable on assets he would have to sell to meet her Honour’s orders. At the outset of the appeal hearing, leave was granted for him to rely upon an amended Notice of Appeal. That amended notice abandoned Ground 3 and included additional Grounds 6, 7 and 8. Ground 7 was subsequently abandoned orally. By leave, further written submissions by the wife in respect of the additional grounds were filed after the first day of the appeal hearing as were submissions in reply.
5. The husband’s father, Mr Harris Snr, was a party to the proceedings below. He is also a party to this appeal and supports the husband’s opposition to the cross-appeal. For ease of later anonymisation of these reasons, and with no disrespect to him, he shall be referred to as “the father”. He was aged 99 years when the appeal was heard. It was necessary to later convene a further day of hearing because of his health.
6. In addition to the central contention earlier referred to, the wife’s cross-appeal asserts error in her Honour’s findings in respect of an amount of $340,000 paid by the father to the husband and, alternatively, inadequate reasons in respect of that finding. She also asserts that the husband’s manifest failure to honestly disclose his true or complete financial position was not taken into account by her Honour resulting in an assessment of contributions unjust to her. Finally, it is contended by the wife that her Honour failed to take account of the wife’s indirect contributions to the acquisition of wealth by the husband – an error that is said to pertain irrespective of whether or not her Honour erred in finding that the EUT was not the husband’s property.

THE PRIMARY JUDGE’S CONCLUSIONS

7. A finding that the units in the EUT are not property of the husband for s 79 purposes resulted in a finding that the interests in property of the parties or either of them has a total value of $24,578,992. The amount^[1] of the parties’ superannuation is $3,152,035.
8. Her Honour found the parties’ liabilities to be $10,945,825. It was not suggested that those liabilities should be borne other than equally.^[2] The consequence was that her Honour found, at [253], that the parties’ net assets and superannuation interests totalled $16,785,202.
9. Her Honour’s orders reflect an assessment that the “property of the parties or either of them” within the meaning of s 79 of the Act should be divided in the proportion 52.5 per cent to the wife and 47.5 per cent to the husband.
10. Contributions were assessed by her Honour in the proportion 65 per cent to the husband and 35 per cent to the wife. Findings in respect of s 79(4)(e) resulted in an “adjustment” to the wife of 17.5 per cent so as to achieve the overall result just referred to.

THE TRUST AND DISCLOSURE ISSUES

11. The central contention in the wife’s cross-appeal, embraced by Ground 1 of the amended Notice of Cross-Appeal and its five sub-grounds, will have a significant impact upon the challenges to the exercise of discretion in both the appeal and the cross-appeal.
12. For example, if error in respect of the central contention is established, the parties’ interests in property will include the units in the EUT, thus eliminating separate consideration of them as a “financial resource” pursuant to s 79(4)(e). Conversely, if error is not established in that respect, consideration must be given to an alternative contention by the wife that insufficient regard has been had to the units as a financial resource in the consideration of that subparagraph. Equally, if error is established, the husband’s arguments in respect of his contributions have different emphases and potential importance. If error is not established, the grounds at the centre of the husband’s appeal must be considered in light of the property of the parties or either of them as her Honour found them to be.
13. As a consequence it is appropriate to deal first with this issue which dominated the trial and dominates this appeal and then the separate, effectively alternative, argument that the husband is estopped from denying beneficial ownership of the units in the EUT and that doing so would be unconscionable and result in the imposition of a constructive trust.^[3]
14. It is thereafter convenient to deal with the balance of the cross-appeal before turning to the husband’s appeal.

ARE THE UNITS IN THE EUT PROPERTY OF THE HUSBAND?

Overview of the Parties’ Arguments

15. The wife contends that reference to the terms of the EUT trust deed^[4] and the ostensible control of the trust emerging from both the deed and the control of its trustee, F Pty Ltd (“FPL”), is not determinative of whether, for the purposes of s 79 of the Act, the units are property of the husband.
16. Rather, it is said that clear and unchallenged factual findings made by her Honour about the control of the trust, and dealings by it and within it, should have led her Honour to conclude that it is the “puppet” or “creature” of the husband and, thus, to a conclusion that the trust is, in effect, him, and its units his property.
17. The husband argues that the trust is a third party to the matrimonial litigation; its independent existence should be protected as such and that the reach of s 79 does not extend to interfering with its substantive rights.^[5] To similar effect the father argues that in order to establish the wife’s central proposition, it is necessary to establish more than control,^[6] including more than the control established by the findings in this case. That is true, it is submitted, even if the degree of control can be described as “complete control”.^[7] It is contended that so much is consistent with principle.
18. Moreover, it is contended by the father that, on the facts of this case, the husband’s actions on behalf of or within the trust were with the consent of, or as a result of delegation by, the father (and, later, a solicitor who became the sole director of FPL). The latter argument is expressed by senior counsel for the father as the father “allow[ing] [the husband] to have the run of the trust”.^[8]

The Legal Structure of the EUT and the Ostensible Control of It

19. The EUT was established by deed in mid-1981. FPL was its trustee at inception, as it was at the date of trial. FPL was incorporated in mid-1981. It should be noted that the establishment of the trust predated the parties’ relationship by some five years; the parties commenced cohabitation in 1986 and married in mid-1991.
20. The beneficial interest in the EUT fund is divided into 60 units. Initially, 30 units were held by the father and the remaining 30 between two third parties irrelevant to the proceedings and this appeal. By 2001, each of them had sold their units to the father. Since that time, the father has been the sole unit holder. The husband has never been a unit holder.
21. The report of the single expert accountant in evidence before her Honour records, by reference to an ASIC extract dated 7 July 2016, that the husband and the father are the sole shareholders in FPL; the husband holding two ordinary shares and the father holding four ordinary shares. Ordinary shares hold voting rights.^[9] The single expert records:^[10]

Contrary to ASIC records it is asserted that the shares held by the Husband are held on a non-beneficial basis, in trust for [the father]. [The company’s accountants] assert that [in mid-] 1999 ... (a former shareholder and director), transferred his shareholding to the Husband, to be held in trust for [the father].

22. That issue aside, the father in any event holds 67 per cent of FPL’s ordinary shares and the husband 33 per cent.
23. On 3 February 2016 a solicitor, Mr V, replaced the father as the sole director of FPL. The single expert accountant records:^[11]

At the valuation date [30 June 2015], [the father] was the sole director. The Husband ceased acting as a director on 11 April 2011. As per a letter dated 16 August 2012 from [the company’s accountants] to the Husband, it is asserted that the Husband remains a director and shareholder of the company, on the basis that the Memorandum and Articles of Association of the company require a minimum of two directors and individual shareholders. This advice is contrary to the number of directors of the company at the valuation date.

24. Senior counsel for the wife asserts that the provisions of the Corporations Act 2001 (Cth) relating to shadow directors may have application. This issue was not raised before her Honour. In any event, we are unable to see its relevance to the issues under consideration separate from the findings of control made by her Honour to which reference will shortly be made and which, on this appeal, are essentially uncontroversial.
25. FPL, as trustee of the EUT, can create units and increase the number of units in issue. It can also redeem units by resolution, including all of the units.^[12] As sole unit holder, the father can remove the trustee and appoint any new or additional trustee.^[13] The trustee may resign at any time and may in writing appoint a new trustee.^[14] The trustee may appoint an additional trustee.^[15]
26. The ostensible picture of control of the trust thus presented is of ultimate control vesting in the father by reason of his sole unit holding and his control of the voting rights in the trustee, FPL.
27. The sole director of FPL appointed from 3 February 2016 is Mr V, a Queensland solicitor. The husband gave evidence that “[h]e started doing legal work for both me and [FPL] [in Queensland]”.^[16] The husband went on to give this evidence when being cross examined:^[17]

[COUNSEL FOR THE WIFE:] Right. And does he exercise his capacity as a director [of FPL] in accordance with your instructions?---Yes. I think that would be accurate.

It’s you who are providing instructions to [an accountant] for the amendment of the [EUT] accounts from 2006 to 2015, are you not?---Yes.

Right ... Mr [V], the sole director [of FPL], isn’t providing those instructions, is he?---No.

The Primary Judge’s Findings as to Control of the EUT

28. The wife’s argument before the primary judge was that the husband’s beneficial ownership of the units in the EUT was founded on a series of factual propositions which were said to establish that the actions and commercial activities of FPL and the trust were entirely under the control of the husband. Additionally, factual findings urged upon the primary judge were to the effect that the husband’s actions and commercial activities carried out ostensibly for the trust were in fact for the benefit of the husband and not for the benefit of the trust.
29. In this appeal the wife contends that her Honour’s findings bear out those central propositions and ought to have led to the conclusion contended for. In that respect, Mr Richardson SC for the wife, handed to this Court an aide memoire referring to 49 separate paragraphs of her Honour’s reasons and submitted that the interaction of some of those paragraphs with the absence of any evidence from the father, or proposition put to him, demonstrated that the husband was acting outside the father’s authority.^[18]
30. The extensive findings made by her Honour will not be repeated. As has been identified, the submissions of Mr Cummings SC for the father effectively concede the level of control by the husband for which the wife contends, as do, albeit perhaps implicitly, those of Mr Lloyd SC for the husband. Nevertheless, it is important to illustrate the wife’s argument by reference to examples of that control and examples of her Honour’s findings.
31. Three paragraphs of the reasons might be seen as a partial summary of the findings made by her Honour:
    100. Nonetheless, it is clear that the husband has exercised control over the [EUT]. The husband conceded, and it is clear on the evidence, that he has engaged in various dealings on behalf of the [EUT], has directed agents on behalf of the [EUT], and has had the benefit of the use of assets owned by the [EUT] as security for his own personal borrowings. The circumstances of these dealings are set out in detail later in these reasons. The husband has continued to exercise this control over the [EUT]despite having resigned as a director of [FPL] in 2011.
    101. The husband concedes that there has been an intermingling of his funds with the funds of the [EUT].

...

108. The extent to which the husband has treated the [EUT] and its assets as his own has emerged in the course of the trial.
32. Having then later discussed the circumstances of the dealings in detail as her Honour there said she would, her Honour addressed dealings with a valuable piece of real property (“Property P”). Her Honour found at [143] that:

...the husband caused one lot of [Property P] to be acquired in the name of [FPL] using funds in the sum of $1,251,818.50 provided by the husband. By virtue of his provision of the purchase money, absent any agreement to the contrary, the husband was the beneficial owner of the property.

33. Her Honour goes on to find that Property P was never included in the accounts of the EUT as property of FPL. In addition, despite the husband not being a director of FPL, he executed the contract and other relevant documents on its behalf. Her Honour concluded that there was “no evidence” that the transaction was ever discussed with the father. Indeed, when crossexamined, the father said he believed that Property P was the private property of the husband (at [147]).
34. Her Honour then said this:
    158. I am satisfied that the husband has, since at least 2002, treated the [EUT]as if it were his own. He has done so, initially, with the actual or tacit agreement of [the father]. Since about 2011, commencing with the purchase of [Property P], there is no evidence that [the father] has been aware of any of the transactions that the husband conducted with, or on behalf of, the [EUT].
    159. The husband will, on the death of his father, inherit the [EUT] units. In the meantime, he treats them, for all purposes, as his own.
35. A telling example of what the wife contends to be the husband’s attempt to obscure the control over the trust and its property which he in fact was exercising, and his failure to distinguish between his own property and that of the trust, can be found in her Honour’s findings that solemn declarations made by the husband were all untrue:
    • A document signed in 2010 in support of a loan application to the ANZ Bank declaring that the husband owned units in the EUT (at [50], [90], [204] – [208];
    • An application for finance in which the husband included in his statement of assets real estate in Queensland valued at $7 million and a mortgage liability of $2 million over that real estate, despite the fact that “[t]he husband did not own real estate in Queensland to that value but [EUT] did” (at [133]); and
    • In July 2011 a Statutory Declaration by the husband declaring that he and the father were beneficiaries of the EUT (at [47] – [48], [91] and [142]).
36. Having made extensive findings as to the husband’s control of FPL and the EUT including the examples just cited, her Honour found:
    105. I am not satisfied that, whilst [the father] remains the owner of the [EUT], the husband has some “lawful right to benefit from the assets of the trust”.
    106. Despite the control exhibited by the husband in respect of the dealings of the [EUT], I am not satisfied that the [EUT] is an alter ego or device used by the husband for his sole benefit.
    107. I find that [the father] is the legal and beneficial owner of the units in the [EUT].

What Principles Emerge from the Authorities?

37. It was not contended before the primary judge and it is not contended now that the EUT is a sham.
38. The arguments in respect of the EUT require examination of a number of earlier decisions of this Court and of decisions of the High Court, including Ascot Investments Pty Ltd v Harper^[19] and Kennon v Spry.^[20] However, it is also important to bear in mind that the decisions of the Full Court in Ashton and Ashton^[21]and Davidson and Davidson,^[22] shortly to be referred to, were decided after Ascot and each was the subject of an unsuccessful application for special leave to appeal to the High Court.
39. The often-cited passage from the judgment of Gibbs J, as the former Chief Justice then was, in Ascot bears repeating:^[23]

The position is, I think, different if the alleged rights, powers or privileges of the third party are only a sham and have been brought into being, in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act. Sham transactions may always be disregarded. Similarly, if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it.

Except in the case of shams, and companies that are mere puppets of a party to the marriage, the Family Court must take the property of a party to the marriage as it finds it. The Family Court cannot ignore the interests of third parties in the property, nor the existence of conditions or covenants that limit the rights of the party who owns it. To take two obvious examples, the Family Court could not compel a husband to assign to his wife a lease without obtaining the necessary consent of the lessor, and could not order the transfer to a wife of land owned by a husband free of mortgage, when in fact the land was mortgaged to a third party. Thus, in the present case, the Court must deal with the husband’s shares in Ascot Investments as they in fact are, that is, as shares in a company whose Memorandum and Articles contain a restriction on transfer.

40. There can be seen the kernel of the wife’s case that the EUT is the “puppet” or creature of the husband. Also in Ascot, Barwick CJ said:^[24]

...The husband might be ordered to take such steps as he could lawfully take to secure the registration of the transfer. But the court could have no authority to compel the husband to do something which he could not do or compel others to do...

41. And:^[25]

In my opinion, the appellant and its directors could not be ordered to do something in relation to the shareholding which the husband by dint of his shareholding could not compel the appellant or its directors to do.

42. Yet, each of those statements of principle is not without qualification. The Chief Justice also said:^[26]

...I have said earlier that the husband’s shareholding did not place him in control of the company. By that I mean to say that not only could his vote in a general meeting of the company not determine the result of a motion before that meeting: I mean also to indicate that the husband was not shown to be able to treat the company as his own, an alter ego. Though he was managing director, it does not follow that he could exercise the powers of that office for his own personal purposes. The word “control” in this connexion may be ambiguous. The control which is significant here would be the ability to treat the company and its affairs as his own. Control he might exercise in the interests of the company and all its shareholders would be irrelevant. If the Full Court thought there was material on which he could be said to be in control of the company in the relevant sense, their Honours were, in my opinion, in error.

43. In addition, Gibbs J is, with respect, at pains to distinguish between the interests of third parties who, by reason of the relevant facts and circumstances, can be held to be nothing but a party to the marriage in another guise from, on the other hand, third parties with legitimate interests that can be distinguished from those of the party to the marriage. His Honour said this:^[27]

...It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties. There is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform...

44. His Honour continued:^[28]

...It is one thing to order a party to a marriage to do whatever is within his power to comply with an order of the court, even if what he does may have some effect on the position of third parties, but it is quite another to order third parties to do what they are not legally bound to do. If the sections had been intended to prejudice the interests of third parties in this way, it would have been necessary to consider their constitutional validity.

45. The point of distinction is in the recognition of a third party with an existence and means of control distinguishable from the relevant party to the marriage. Gibbs J made it plain that there was no doubt that the Court could make orders against a party personally, but distinguished that situation from one in which it is proved that the party can dictate the third party’s actions.^[29] Indeed, his Honour makes the point that in Ascot itself:^[30]

The position might have been different if it had been proved that the directors had refused to register a transfer for the sole reason that the husband had asked them not to do so...

In the present case, since the directors did not refuse a transfer the question whether they acted at the husband’s bidding obviously does not arise...

46. Of course, Ascot involved an enforcement application where the order sought was directed to requirements cast upon the company when there was no or insufficient evidence that they could or would comply with those requirements separate from any requirements cast upon the husband personally.
47. In the much more recent decision of the High Court in Kennon, the instant issue arose more directly. If, as the appellant wife contended in that case, a variation of trust should be set aside, by reason of the nature and extent of the husband’s control of the trust, the trust assets should be treated as his property for s 79 purposes.
48. French CJ and Gummow and Hayne JJ^[31] held that the relevant trust’s assets were “property” for s 79 purposes. Heydon J dissented. It should immediately be recognised that Kennon involved a discretionary trust whereas this case involves a unit trust. However, an issue similar to the issue in this case arose in respect of the powers that can be exercised within the relevant structure and whether substantive rights of third parties are affected.
49. First, French CJ made this, with respect, important point:^[32]

In my opinion, the argument advanced on behalf of Mrs Spry should be accepted save that it is the Trust assets, coupled with the trustee’s power, prior to the 1998 Instrument, to appoint them to her and her equitable right to due consideration, that should be regarded as the relevant property. It should be accepted that, in the unusual circumstances of this case and but for the 1998 Instrument and the 18 January 2002 Dispositions, s 79 would have had effective application to the Trust assets. Dr Spry was the sole trustee of a discretionary family trust and the person with the only interest in those assets as well as the holder of a power, inter alia, to appoint them entirely to his wife...

50. His Honour subsequently expanded upon that finding:^[33]

The word “property” in s 79 is to be read as part of the collocation “property of the parties to the marriage”. It is to be read widely and conformably with the purposes of the Family Law Act. In the case of a non-exhaustive discretionary trust with an open class of beneficiaries, there is no obligation to apply the assets or income of the trust to anyone. Their application may serve a wide range of purposes. In the present case, prior to the 1998 Instrument those purposes could have included the maintenance or enrichment of Mrs Spry.

51. His Honour later continued:^[34]

An exercise of the power under s 79 requiring the application of the assets of the Trust in whole or in part in favour of Mrs Spry would, prior to the 1998 Instrument, have been consistent with the proper exercise of Dr Spry’s powers as trustee and would have involved no breach by him of his duty to the other beneficiaries.

52. His Honour concluded:^[35]

The characterisation of the assets of the Trust, coupled with Dr Spry’s power to appoint them to his wife and her equitable right to due consideration, as property of the parties to the marriage is supported by particular factors. It is supported by his legal title to the assets, the origins of their greater part as property acquired during the marriage, the absence of any equitable interest in them in any other party, the absence of any obligation on his part to apply all or any of the assets to any beneficiary and the contingent character of the interests of those who might be entitled to take upon a default distribution at the distribution date.

53. The point is made similarly, albeit in a different context, by White J in a decision of the Supreme Court of New South Wales in Public Trustee v Smith:^[36]

It is perfectly understandable that in the context of s 79 the expression “property of the parties to the marriage or either of them” should be read as extending not only to property owned by a party to the marriage but also property controlled by a party to the marriage where the control is such as to put the party in the same position as if he or she were the owner of the property. That is how I understand the family law cases to have proceeded. In Marriage of Ashton and In Marriage of Davidson (No 2), the Court spoke of “de facto ownership”. Ownership is a legal concept. The expression “de facto ownership” appears to describe something which is not legal or equitable ownership but a power which is to be treated as the equivalent of ownership. It involves no stretching of the concept of property to construe the expression “property of a party” as extending to property which a party owns or which the party controls as if he or she were the owner. It comes down to what the word “of” in the phrase denotes – whether it means ownership only, or whether it includes control as effective as ownership. This is the context in which the family law cases must be read. In my view, they do not support the wider proposition that as a matter of general law an object of a discretionary trust can be described as the beneficial owner of the property held by the trustee, merely by virtue of his or her being a discretionary object and also controlling the trustee.

54. As has been noted, the Full Court decisions in Ashton and in Davidson were decided after Ascot. Special leave to appeal to the High Court was refused in each.
55. In Ashton “[i]t was conceded throughout that the husband was in full control of the assets of the trust, and the evidence made it clear that he was applying them and income from them as he wished and for his own benefit”.^[37] That finding has its analogues in the submissions made on behalf of the wife in this case.
56. However, central to the decision in Ashton that the assets of the trust should be treated as property of the husband for s 79 purposes is the fact that, by reason of positions held within the trust structure, the husband, via the powers vested in him by the trust deed, was able to effect the distribution of trust assets to himself should he so choose. The Full Court said this:^[38]

...having regard to the powers and discretion which the husband has, and having regard to what has in fact taken place, for the purposes of sec. 79, the husband’s power of appointment, and all the attributes it carries with it, amounts to de facto ownership of the property of the trust. His Honour’s order that he should appoint himself trustee so as to make a requisite payment was not contrary to the trust deed on its proper construction, nor did it require the husband to deal with property which was not his own...

57. Similarly, in Davidson, the Court found that the primary judge had not erred in finding that the assets of the trust were the “de facto property” of the husband:^[39]

...by virtue of his control of [the trustee company], thereby enabling him to have recourse to those assets to satisfy the lump sum payment [ordered by the primary judge]...

...

Moreover, as was also the case in Ashton (at 75,652) the list of beneficiaries ... includes a company in which the husband’s present wife, child, or other relative of the husband has a shareholding and there is nothing in the deed to prevent the husband from holding the overwhelming majority of the shares in such a company and from receiving the full benefit of a distribution to that company...

58. Common to both Ashton and Davidson is the capacity of a party to the marriage (the husband in each case) to use existing powers pursuant to the trust deed, or through the trustee company, so as to effect the lawful distribution of property to himself. That is, despite the structure not being ostensibly indicative of a party holding an interest in property, the powers available to that party could affect their receipt of a beneficial interest in trust property.
59. The same underlying premise is apparent in other Full Court authorities that have upheld findings that the property of a trust can be treated as property of a party to the marriage for s 79 purposes.
60. In Kelly and Kelly (No 2),^[40] the question on appeal was ultimately whether the assets of a trust could be considered a “financial resource” of the husband because, however broad the definition of “property” in s 4 of the Act,^[41] it “would not be broad enough in the present case to cover the assets of the company and the trust, as the husband could not assert any legal or equitable right in respect of them”.^[42]
61. In Stein and Stein^[43] the husband was a beneficiary of the trust and the Full Court found that the trustee company was a “mere puppet” of the husband. That is, the trustee would do entirely the husband’s bidding. Consequently the husband, in the guise of the trustee, could distribute to himself as a beneficiary of the trust, and the husband’s existing powers within it, permitted him, by reference to the terms of the trust, to obtain property of the trust in that capacity.
62. In Harris and Harris,^[44] the Full Court dismissed the husband’s appeal from orders based on a finding that the assets of a family trust were property of the parties for s 79 purposes. Again, the capacity of the husband to obtain the benefit of trust property by reference to the powers given by the trust structure is central to the decision:^[45]

In our opinion, the husband’s interest as a beneficiary under the trust in combination with his rights and powers as appointor and guardian place him, for the purposes of section 79 of the Family Law Act 1975, into the position of an owner of property which property is constituted by his interest and his rights and powers under the trust. This property is properly evaluated as equivalent to the value of the assets of the trust.

63. The majority in JEL and DDF^[46] held that it was open to the primary judge to conclude that “in essence then, the husband and the wife, as the sole directors and equal shareholders in each of the trustee companies, may vote to distribute any or all of the income and/or capital of the trust to the husband and/or the wife, in their absolute discretion”. Again, in that case, benefit could be obtained via powers provided for in the trust deed possessed by the parties to the marriage.
64. The relevant argument in Milankov and Milankov was that:^[47]

...in the cases that have so far discussed the concept of the manner in which the assets of a discretionary trust can be treated for Family Law Act purposes as the assets of a party, there had been a lengthy history in each of those cases of the appointor actually treating those assets as though they were his own...

65. Kay J referred to the relevant terms of the trust deed and held (at 88,868):

Once the husband becomes the appointor or trustee of the Milankov Family Trust I see no impediment in the terms of the trust deed to the husband then exercising his powers as trustee of the trust to distribute the income and/or corpus of the trust to himself. In those circumstances, I find little fault with her Honour’s ultimate finding at paragraph 158 that the husband “will receive at least $2.8m after the death of [the husband’s father]”.

Conclusion

66. In concluding that the EUT was not property of the husband and that “[t]he [father], albeit he is 99 years of age, continues to maintain his legal and beneficial interest in the [EUT]” (at [103]) her Honour quoted, at [102] what was said by Finn J in Stephens and Stephens:^[48]

...I accept that no earlier authority in this court has gone so far as to hold that control alone without some lawful right to benefit from the assets of the trust, is sufficient to permit the assets of the trust to be treated as property of the party who has that control...

67. It should be accepted that the principles emerging from the High Court and from the decisions of this Court to which reference has been made permit of a finding that property ostensibly that of a trust can be treated as property of a party for s 79 purposes where evidence establishes that the person or entity in whom the trust deed vests effective control is the “puppet” or “creature” of that party. The metaphor is used to connote a situation where the person or entity with control (the “puppet”) does nothing without the party (the “puppet master”) controlling or directing that person or entity.
68. Control is not sufficient of itself. What is required is control over a person or entity who, by reason of the powers contained in the trust deed can obtain, or effect the obtaining of, a beneficial interest in the property of the trust. In our respectful view, it is in that sense, that Finn J speaks of “some lawful right to benefit from the assets of the trust”.
69. Mr Richardson SC on behalf of the wife characterised the EUT as “the puppet” and the husband as “the puppet master”. Yet, if the principles emerging from the authorities are to avail the wife, it was necessary for the evidence to establish that the father was the puppet and the husband was the “puppet master”. It is the father who, by reason of the powers contained in the trust deed and his position as the sole unit holder, can obtain, or effect the obtaining of, a beneficial interest in the property of the trust.
70. Mr Cummings SC for the father is correct when he asserts that there was no evidence from which any such finding could have been made by the primary judge. Mr Cummings SC is also correct in asserting that no proposition to that effect was ever put to the father.
71. The husband did not have powers vested in him, or in any entity which he controlled or would do his bidding, that permitted of that result for him. The evidence was certainly to the effect that the current director of the trustee FPL (who, despite the caveat noted by the single expert appears to have been assumed to be the company’s sole director) would likely do the husband’s bidding. However, the trustee does not have ultimate control over the vesting of trust property. That ultimate control has at all times rested with, and currently rests with, the father.
72. Within the EUT structure, the father not only has ultimate control over the distribution of trust property, but he is also the EUT’s sole unit holder and, as a consequence, he is the only person entitled to benefit from distributions and, conversely, the only person who can be affected adversely by actions contrary to the interests of the trust’s beneficiaries. The father was entitled to give the husband “the run of the trust”. The father was entitled to permit the husband to deal with trust property and there is no evidence that he did not consent to him so doing.
73. In our opinion, her Honour was, with respect, correct in rejecting the wife’s argument that the units in the EUT should be regarded as property of the husband for the purposes of s 79 of the Act.
74. Equally, as does not appear to be in doubt, if her Honour was correct in that respect, her Honour was entitled to regard the property of the trust as a “financial resource” of the husband.
75. Ground 1 of the cross-appeal fails.

THE ESTOPPEL AND CONSTRUCTIVE TRUST ARGUMENT

76. Ground 4 asserts, effectively as an alternative to the ground just rejected, that her Honour erred in failing to conclude on the facts as determined by her, that the father was estopped from denying the husband’s beneficial ownership of the units in the EUT and that doing so would be unconscionable and result in the imposition of a constructive trust.
77. First, no such claim is made by the person (i.e. the husband) said to require the intervention of equity, and nor has any such interest, or the foundations of any such estoppel, been pleaded or claimed by him.
78. The second point to be made is that the conclusion which it is now agitated that her Honour should have drawn is not a conclusion agitated by the wife at trial. No declaration was sought by the wife at trial as to any such equitable interest. No case of estoppel or constructive trust was referred to or argued.
79. It cannot in our view be said that the point being raised for the first time on this appeal is one merely “of construction or of law”.^[49] The particulars of the claim needed to be the subject of articulation and evidence at trial for example the basis upon which it is said that a trust would be construed so as to avoid injustice where no injustice is claimed by the person whom it is said to impact.
80. Crucially for present purposes, the trial was the proper place for the relevant particulars and evidence to be ventilated so as to afford the opportunity for evidence and submissions in response by each of the husband and the father. The rule that such issues cannot be raised for the first time on appeal is “strictly applied”.^[50] The expediency of having all issues determined in the one place can sometimes overcome the strict application of the rule, but only where the interests of justice point clearly to that outcome.^[51]
81. The interests of justice do not operate so as to permit the wife to raise the point the subject of Ground 4; the necessity for the claim now sought to be agitated to be the subject of particularisation and supported by evidence and the opportunity to respond to each, point strongly against the interests of justice permitting the wife to do so here.
82. Ground 4 of the cross-appeal fails.

THE REMAINING GROUNDS IN THE WIFE’S CROSS-APPEAL

83. The remaining grounds in the wife’s Amended Notice of Cross-Appeal^[52] assert error arising from:
    1. the husband’s lack of disclosure (Grounds 5 and 6);
    2. findings in respect of a transfer of $340,000 to the husband by his father (Grounds 2 and 3); and
    100. findings as to the indirect contributions made by the wife to the wealth of the husband and his investment activities through the EUT (Ground 9).

The Husband’s Lack of Disclosure

84. At [51], her Honour found “the husband not to be a credible witness”. At [230], her Honour concluded that there could be no certainty that “the full extent of the husband’s assets and liabilities [had] been exposed”.
85. Those significant findings were premised upon, among other findings, the husband’s abject nondisclosure of documents, his apparently blatant destruction of a document admitted to be relevant to the proceedings, and a false Statutory Declaration in which the husband declared “that he was a joint owner with [the father] of the units in the [EUT]” (at [47]). On the husband’s own case, he had falsely declared the document so as to obtain finance from a bank.
86. The wife contends that her Honour failed to take into account, “in any principled or meaningful way”, the consequences of the husband’s significant nondisclosure in determining the wife’s entitlement. It is contended that it was an important s 75(2) factor that was not treated as such by her Honour, or that it should have been taken into account by reference to what the Full Court said in Mezzacappa and Mezzacappa,^[53] that is, where funds or assets can be traced to a particular party but that party fails to disclose their whereabouts, it cannot be said that they are unascertained or unascertainable nor can it be said that such funds or assets do not constitute property of the parties. The consequence of doing neither, it is argued, renders the ultimate result “plainly wrong and manifestly unjust”.
87. In the wife’s Summary of Argument it is asserted that “[w]hen the totality of the [husband’s] conduct is considered this is a case where ... the [husband] has undermined the whole process of adjudication of the proceedings”.^[54] In oral argument the point was highlighted by contending that “for every dollar that’s undisclosed, [by the husband] ... there’s 35 cents to [the wife], or of every hundred thousand dollars, there’s $35,000”.^[55]
88. Descriptive of the husband’s non-disclosure, senior counsel for the wife’s oral submissions referred to “the void”, described by him as:^[56]

...transactions as a result of her Honour’s findings where money just becomes unaccounted for. That is funds that were in the possession of the husband disappear and aren’t the subject of any explanation and support strongly the conclusion that underscores what her Honour had to say at, I think, paragraph [230] of her judgment in concluding that the husband had failed to disclose his financial position.

89. The submissions referenced transactions attributed to “the void” which are said to be demonstrative of the significant sums arising from the husband’s nondisclosure. In summary, they are as follows:
    1. Monies owing to the husband as a result of his borrowing money to assist FPL with the purchase of a lot in [Property P] for $1.25 million (at [143]). The property was sold and the EUT received $1.5 million (at [149]), yet FPL only paid the husband $1.1 million in July 2016 (at [148]). Therefore according to senior counsel for the wife, the amount owing to the husband was $400,000;
    2. An amount of $60,000 per quarter paid from the husband’s personal funds to pay interest on an ANZ loan facility taken out by FPL (at [31]), totalling in the period November 2010 to October 2016, about $1.44 million;
    100. An amount of $145,000 transferred overseas in August 2009. This amount apparently arose from the sale of a property in N Town in 2009. That transfer may have related to investments the husband has overseas pursuant to a possible partnership (at [216] – [217]);
    4. An amount of $415,441 which the husband says is an amount he owes to the EUT and which reflects the difference between amounts received directly by him through rental payments for properties owned by FPL and the expenses incurred by him in relation to those properties (at [28], [128] – [132]);
    5. The transfer of a share portfolio valued in excess of $265,000 to FPL for no consideration (at [153]);
    6. An amount of $98,110 representing the difference between an amount received by the husband for the sale of cattle ($358,110) and of that, the amount given to FPL ($260,000) (at [152], [198]);^[57] and
    7. The transfer of $720,000 to Company JJ; the source of that sum is unknown as is whether the sum or any of it was ever repaid (at [226] – [229]).
90. While a number of these transactions relate to amounts owing to FPL, and thus the EUT, Mr Richardson SC argues that “they’re not all confined to the trust”^[58] and, because the trust was determined to be a financial resource, the “undervaluation ... also lies in the residual pool of property”.^[59] So much must follow axiomatically. Yet, that proposition also has a corollary: the “undervaluation” resulting from inadequate disclosure can also be taken up in the assessment of the nature and “value” to the husband of the financial resource found to subsist in him.
91. Each of the subparagraphs cited above (save for (g) which is dealt with by her Honour under the heading “the husband’s non-disclosure”) is referred to by her Honour when considering whether the EUT is a financial resource of the husband. While the husband’s non-disclosure was not expressly referred to in her Honour’s consideration of s 75(2), on a fair reading of her Honour’s reasons, it cannot reasonably be doubted that it was at the forefront of her Honour’s mind. At [273], her Honour refers to “the financial resource available to the husband in the [EUT]” as a “significant s 75(2) factor”.
92. Her Honour discussed at some length the husband’s serious non-disclosure particularly in relation to funds which could likely be attributed to the EUT. As can be seen, the bulk of the particularised non-disclosures detailed above relate to FPL, and thus the EUT, which her Honour expressly took into account as a “significant” financial resource.
93. It cannot in our view be said that her Honour failed to take account of these admittedly very relevant considerations or that she failed to take account of them in any meaningful way; they appear to have been at the forefront of her Honour’s mind. The findings relating to the husband’s credit earlier referred to and a finding (at [186]) that he was prepared “to lie under oath for financial gain” pertain.
94. Stripped to its essentials the argument is, with respect, a sophisticated claim that her Honour did not afford sufficient weight to the non-disclosure and/or the EUT as a resource of the husband. Mindful of the significant caution that should attend an appeal court finding error in the attribution of weight by trial judges in an environment which involves the exercise of a very wide discretion, we are not persuaded of error on the part of her Honour.
95. That is all the more so in light of the fact that her Honour’s overall s 79(4)(e) assessment resulted in the wife receiving just short of $3 million on account of those factors.
96. Grounds 5 and 6 of the cross-appeal fail.

The Characterisation of the amount of $340,000 transferred to the Husband

97. In 1994 the father transferred to the husband $340,000 to assist with the purchase of the former matrimonial home. The husband contended, and her Honour concluded at [58] – [59], that the advance should be treated as a direct financial contribution by the husband by reason of a gift having been made by the father to him (as distinct from a gift having been made to both parties).^[60]
98. The wife contended at trial that that amount “represented a payment to the husband in compensation for work done” (at [58]) and thus required a different emphasis in terms of contributions. Her Honour concluded that there was “no evidence to support [the wife’s] contention” (at [58]). Senior counsel for the wife argues before us that her Honour’s conclusion is against the weight of the evidence.
99. Her Honour said:
    52. In his trial affidavit, the husband deposed that, since 2001, he had assisted [the father] in the operation of the affairs of the [EUT] including locating property for development, organising finance, giving instructions for sales and purchases and dealing with managing agents in relation to tenants. In cross-examination, he said that he did feasibility studies for developments. He does not suggest that he was paid for that assistance.
    53. In his trial affidavit, the husband deposed that, at the time he was negotiating to purchase [the former matrimonial home], he had a conversation with [the father] to the following effect:

[The father]: “You have worked hard on the farms and their subdivisions, so I want to give you some money towards the purchase the house (sic) to help you out. If I give you $340,000 towards it, would you be able to come up with the rest?”

54. The [father] deposed to the conversation in identical terms
55. Both the husband and [the father] deposed that, from mid-1985, the husband and his father engaged in a joint venture of buying, developing and selling properties. The husband deposed that he looked for properties, negotiated the purchases and did feasibility studies. In addition, the husband was engaged in the active management of rural property owned by the [father] and did that work without hired workers.
56. The husband was not paid for the work he did in those capacities between about 1985 and the time [the former matrimonial home] was purchased in 1994.
57. He deposed that he received an equal share of any profit which was made on the property developments.

(As per original)

100. Senior counsel for the wife contends in particular that the content of the statement “You have worked hard on the farms ... so I want to give you some money” is counterintuitive to a finding that the money was a gift simpliciter. Rather, senior counsel submits that the statement acknowledges the money “as a reward for what [the husband] had done”.^[61] If that argument is accepted, it is contended that the wife’s indirect contributions through the care of the children and maintaining the household should have been recognised.
101. In our view, a conclusion that the advance was by way of wages by no means follows from the evidence to which senior counsel refers; it is no less indicative of a “gift simpliciter”. Secondly, we are not persuaded that the assessment of the wife’s indirect contribution would differ whether the contribution by the husband was characterised as a gift via the father or wages from a source external to the husband’s main source of income.
102. While it is true that her Honour did not specifically mention the wife’s indirect contributions, we are well satisfied that her Honour did in fact consider and weigh the wife’s indirect contributions of all types throughout the relationship, as can be seen at [256] of her Honour’s reasons.
103. Ground 3 deals with the same issue and pleads in the alternative that her Honour’s reasons were inadequate. In our view, her Honour’s reasons in respect of this issue, while brief, are more than adequate in illuminating the path to her conclusion.
104. Grounds 2 and 3 of the cross-appeal fail.

Failure to take into account Indirect Contributions of the Wife

105. We have found no error in her Honour’s finding that the EUT was a financial resource of the husband and that it did not constitute the husband’s property for the purposes of s 79 of the Act. Ground 9 of the cross-appeal contends, irrespective of that conclusion, that her Honour erred by failing to take into account, as a relevant component of the consideration of the “s 75(2) factors”, the wife’s indirect contribution to the investment activities undertaken by the husband through the EUT.
106. The wife’s Summary of Argument does no more than, in effect, repeat the terms of the ground. In oral argument, senior counsel for the wife argued that her Honour did not take account of s 75(2)(j) of the Act which provides for the Court to consider, where relevant:

the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party...

107. Senior counsel for the wife submitted:^[62]

...And it – once her Honour had determined that she didn’t see the assets of the trust as being part of the property of the husband, but a financial resource, she makes no finding of any direct contribution by the wife – indirect contribution by the wife in relation to the financial resource. Yet clearly, for significant years of this marriage, the husband’s efforts were being devoted to the acquisition of assets and building up of the assets that comprised all that presently exists within that trust.

108. The tension between the work that s 75(2) does in applications for spousal maintenance and that which it does in applications for settlement of property has frequently been commented upon as has the unsuitability of the terms of its subparagraphs for its s 79(4)(e) purpose. In applications for settlement of property, the role of indirect contributions by parties must be given specific consideration by reason of s 79(4)(b). It will frequently be the case, as it is here, that one party will have made indirect contributions in the s 79(4)(b) sense, including indirect contributions to the acquisition of income and earning capacity, which have been taken up in the overall assessment of contributions made by both parties.
109. Where that has occurred, great care must be taken to ensure that any such consideration does not get “double counted” by reason of specific consideration of s 75(2)(j).
110. Her Honour considered the indirect contributions made by the wife, including in so far as they impacted upon the financial resource of the EUT. Separately, her Honour considered the disparity in income between the parties as part of assessing the “s 75(2) factors”. In addition, her Honour was obliged to, and did, consider as a matter separate to a comparison of current incomes, the comparative capacity of the parties to earn income into the future. In doing so, her Honour both avoided the “double counting” to which we have referred and properly took account of the wife’s indirect contributions of all types.
111. Ground 9 of the cross-appeal fails.

THE CROSS-APPEAL: CONCLUSION

112. The wife’s cross-appeal fails.

THE HUSBAND’S APPEAL

113. As has been seen, the primary judge assessed the parties’ contributions as favouring the husband, concluding that the disparity in contributions, expressed in percentage terms, was 30 per cent. That is, her Honour assessed that the husband’s contributions should be seen, in dollar terms, as being approximately $5 million greater than the wife’s contributions. In a similar vein, her Honour’s s 79(4)(e) assessment (“the s 75(2) factors”) saw the wife receiving 17.5 per cent. That is, as has been earlier noted, her Honour assessed the totality of the relevant factors favoured the wife receiving just short of $3 million in addition to her contributions entitlement. The consequent disparity in the 52.5 per cent / 47.5 per cent result is, in dollar terms, about $840,000.
114. The wife’s overall property settlement, representing 52.5 per cent of the parties’ property and superannuation interests was valued at approximately $8.81 million while the husband’s 47.5 per cent of that property was valued at approximately $7.97 million. The wife is to receive, in broad terms, the transfer of valuable unencumbered real property at Suburb C; a payment of approximately $2.1 million from the husband; and a s 90MT superannuation split, the base amount of which was $1.1 million.
115. The husband contends that her Honour erred in both the assessment of contributions pursuant to s 79(4)(a) – (d) and in the assessment under s 79(4)(e).
116. Broadly, those contentions assert a failure to take into account and give adequate weight to matters relevant to the assessment of contributions, in particular pertaining to the post-separation period (Grounds 1 and 8) and that the assessment of contributions and s 75(2) adjustment were “manifestly excessive” (Grounds 2 and 5). Grounds 4 and 6 assert, respectively, a failure by her Honour to accord procedural fairness in allowing the husband sufficient time to produce evidence of any CGT and the failure to take into account the husband’s contributions through the use of his parents’ Company I accounts.
117. As was observed at the outset of these reasons, Grounds 3 and 7 were abandoned.

Failure to Disclose and the Discretionary Challenges

118. It can be seen that Grounds 1, 2, 5 and 8 are challenges to the exercise of her Honour’s discretion. The exercise of the relevant discretions, including her Honour’s overall assessment of an order that was “appropriate” within the meaning of s 79 of the Act, occurred within an important context that should not be forgotten or glossed over.
119. Her Honour’s assessments of both contributions and the s 75(2) factors are expressed in percentage terms but have concomitant dollar consequences. The percentages and their dollar equivalents pertain to interests in property with an attributed dollar value that may be less than that which in fact exists. It will be recalled that her Honour found specifically at [230] that she could not be certain that “the full extent of the husband’s assets and liabilities [had] been exposed”. Her Honour found specifically that the husband had lied in solemn documents and that his lack of disclosure extended to the blatant destruction of a document admitted to be relevant to the proceedings. None of those findings is challenged on this appeal.
120. These (and other) central damning findings impact upon the challenged assessments of contributions and s 75(2) factors. Specifically:^[63]

This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner [1992] FamCA 2; (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti [1986] FamCA 15; (1986) FLC 91-759, and Mezzacappa and Mezzacappa [1987] FamCA 20; (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
(Emphasis added)

121. Our examination of the husband’s specific discretionary challenges, very much have these considerations in mind.

Did Her Honour Err in the Assessment of Contributions?

122. Her Honour’s conclusion as to contribution was premised essentially on a finding that the husband’s financial contributions and income “far exceeded those of the wife” (at [258]) and that the wife’s contributions were predominantly as homemaker and parent to the parties’ two children, who still resided in the former matrimonial home at the time of trial (at [256]).
123. The husband’s arguments reference four specific assertions of error in the assessment of contributions:
     1. Failure to take into account the accumulation of assets by the husband post-separation;
     2. Failure to take into account contributions arising from the husband’s use of his parents’ Company I accounts;
     100. Failure to give adequate weight to the husband’s contributions as a parent and homemaker both during the marriage and post-separation; and
     4. The assessment of contributions as they relate to the wife are “manifestly excessive”.

Post-separation contributions

124. The parties separated in mid-2010. There was, therefore, a period of about six years between separation and the date of trial.
125. Her Honour considered the parties’ respective contributions at [254] – [267]. Although no clear distinction was drawn by her Honour between those contributions made during the relationship and those made post-separation, her Honour did refer at [256] to the wife’s continued role as homemaker and parent:

...[The wife’s] home making and parenting roles continued after separation because [the husband and wife] have remained living in [the former matrimonial home], as have their children. The younger child did not reach 18 years of age until 2013.

126. Immediately following that paragraph, her Honour also found:
     257. The husband also made parenting contributions and contributions to their home.
     258. The husband’s financial contributions, in addition to the income he earned from personal exertion, have far exceeded those of the wife.
127. Her Honour then went on to refer to a number of inheritances received by the husband, including an inheritance received by him in 2011, in addition to monies received from his father to assist with the purchase and renovation of the former matrimonial home. While not referred to under the heading “contributions”, at [31] – [45], her Honour referred to all but one of the properties acquired (noting that this property was included in the balance sheet of the parties’ property).
128. Senior counsel for the husband contends that the reasons given by her Honour evince a failure to take into account that “contributions made by the Husband post-separation ... had the effect of increasing the matrimonial pool by approximately $6,000,000” following the date of the parties’ separation in mid2010.^[64] In support of that contention, senior counsel referred to unchallenged evidence comprising the husband’s affidavit where he listed properties acquired by him post-separation.^[65]
129. That affidavit refers to acquisitions made by the husband since 2008. Given that the parties separated in mid-2010 the properties preceding that date have not been considered in relation to this ground of appeal. The net value of those properties in fact purchased post-separation at trial amounted to about $5 million. In addition, senior counsel referred to an inheritance of approximately $1.4 million received by the husband from his late mother’s estate (referred to by her Honour at [32] and [263]). At [32] her Honour refers to an amount of $1,441,490 however the values given at [263] when added together amount to approximately $1.25 million. Nothing turns on this difference.
130. Senior counsel also referred to the husband’s considerable income postseparation which went “towards the maintenance and conservation of the matrimonial assets and the acquisition of assets”.^[66] Although senior counsel for the husband in his Summary of Argument referred to a finding by her Honour that a 2016 tax liability owing by the husband was to be borne solely by him because he “received the benefits of his income in 2016”, the ground of appeal relating to that issue was abandoned orally at the appeal hearing.
131. In response, senior counsel for the wife submitted orally before us that there was nothing “remarkable” in her Honour not “tallying up” all of the husband’s postseparation contributions and ascribing them to a particular period. The submission has echoes of what the Full Court said in Dickons v Dickons:^[67]
     24. There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
     25. Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving over-zealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524...) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
     26. The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
132. In his written reply to the appellant’s submissions, senior counsel for the wife argued that “[h]er Honour took into account all of the contributions the [husband] made between 1990 and 2011 from a source other than the role he undertook during the relationship”.^[68] It is argued that those contributions were referred to by her Honour at [259] – [263] and reflected inheritances received by the husband since 1990, together with the sums received from the father of $1 million and $340,000 all totalling approximately $2.8 million. The point made is that the considerable postseparation contributions referred to on behalf of the husband (comprising the accumulation of assets and his income) reflect the same contributions made by him, in his respective “sphere”,^[69] throughout the 24 year relationship.
133. There is merit in those submissions. Her Honour clearly took into account the vastly superior financial contribution and income of the husband (see [258]). Her Honour referred to the approximately $1.4 million inheritance received by the husband in 2011. Further, although not referred to in the discussion of contributions, her Honour clearly had in mind those properties acquired by the husband post-separation which were largely referred to in outlining the relevant background to the proceedings.
134. We reiterate the general point made above about uncertainty as to the property and its value by reason of the husband’s dishonesty and lack of disclosure.
135. Ground 1 fails.

Use of the Company I accounts

136. By Ground 6, the husband contends that her Honour erred in the assessment of contributions by failing to take account of a material consideration, namely two asserted direct capital contributions made by the husband. The capital sums are significant: $592,424 and $1,267,464.28. They result, it is said, from the husband’s use of his mother’s and his father’s Company I accounts.
137. The argument is that the husband’s parents permitted him to use at will their Company I accounts from 1994. The use of those accounts was said to result in the husband owing his mother and father the respective amounts just outlined. Yet, those liabilities were not included as debts of the husband, and the wife contended that no such amounts were owing and, consequent upon an acceptance of that position, the husband argued that they should be seen as direct financial contributions by him via each of his parents and taken into account by her Honour as a material consideration.
138. There could be little doubt that if the evidence and findings established such propositions, the husband’s argument should be accepted. Yet, the argument takes no account of what findings her Honour actually made in respect of these accounts, all of which were well open to her Honour. Her Honour’s reasons in that respect should be quoted:
     177. In his trial affidavit, the husband asserted that he had used the [Company I] accounts of each of his parents for share trading from about 1994 to 2010 in the case of his mother, and 2012 in the case of [the] father. He deposed “In 1994, my parents allowed me to use their borrowing capacity in their [Company I] accounts to purchase shares.”
     178. Although the husband deposed that he had obtained a large sum of money from his mother’s [Company I] account, which had not been repaid to her, he resiled from his assertion that that sum remained as a debt to his mother’s estate or was somehow required to be repaid. No such debt was included as an asset in the husband’s mother’s estate nor was it included as a debt in the husband’s earlier Financial Statements. The husband did not suggest that he considered himself liable to account to his fellow beneficiaries for their share of the funds.
     179. On behalf of the wife, it was contended that the alleged debt to the husband’s mother’s estate was no more than a device to minimise the assets of the parties available for distribution. I accept that submission.
     180. In relation to the dealings with [the] father’s [Company I] account, the husband similarly asserted throughout the hearing that he owed a large sum of money to [the] father but resiled from that assertion after the evidence had concluded. The purported debt was not asserted on behalf of the husband in the final Balance Sheet tendered at the commencement of submissions.
     181. The husband’s assertions in relation to benefits gained from the use of his parents’ [Company I] accounts were the subject of challenge. Senior counsel for the wife submitted that the Court would not accept that the [father], who is an accountant, prepared quarterly reconciliations of credit statements to be reimbursed for expenses paid by him on behalf of the husband, but would not seek any accounting for almost $1.5 million dollars asserted by the husband to have been removed by the husband from the [father’s] [Company I] account.
     182. The moneys asserted to have been derived from the [Company I] account were not disclosed in his Financial Statements sworn in December 2012 or April 2013.
     183. The husband did not assert that any demand had been made for repayment by the [father].
     184. The [father] swore an affidavit on 20 September 2016. He did not assert that there was a debt owed to him by the husband arising from the use of his [Company I] account.
     185. On behalf of the wife it was submitted that the allegation was a recent invention intended to reduce the pool of assets available for distribution.
     186. Having regard to the findings I have already made in relation to the husband’s willingness to lie under oath for financial gain, I am unable to accept, on the balance of probabilities, that the husband derived a benefit from the [Company I] accounts of his parents other than as he asserted in his trial affidavit as set out above, that they “allowed” him to use their “borrowing capacity”. That assertion is so general that I can give no weight to the asserted contribution.
139. Senior counsel for the husband contended that her Honour’s finding at [182] that the alleged loan to his father was not disclosed in his Financial Statement, although true, did not take into account that at that stage, “the trading was continuing ... and ... it wasn’t known at that stage in 2012/2013 what the precise position was”.^[70] Senior counsel also referred to a summary of transactions, prepared by the husband, as evidence of the husband’s extended use of his parents’ Company I accounts.^[71] It was contended orally during the appeal that there was no cross-examination on these documents. That assertion is incorrect as pointed out by senior counsel for the wife in his written submissions.
140. The submission ignores, with respect, the findings just quoted.
141. The arguments by senior counsel for the wife that the conclusions by her Honour cannot “be read in isolation from the unchallenged conclusion that the [husband] was a liar” are in conformity with her Honour’s reasons.^[72] In that respect, counsel asserts, correctly, that all evidence supportive of the husband’s argument (including particularly the summary of transactions contained in the husband’s affidavit) “came solely from that impaired source”.
142. Importantly it is asserted, again correctly with respect, that whether the debt remained payable was not the only issue during the hearing before her Honour; there was a broader issue of whether the sums were received at all. The husband failed to call any evidence supportive of his contentions, and the findings made by her Honour in respect of blatant non-disclosure earlier referred to, and the omissions from the evidence of the father to which her Honour refers, pertain.
143. Ground 6 fails.

Husband’s contributions as parent and homemaker

144. Ground 8 of the husband’s Amended Notice of Appeal is, explicitly, a weight challenge. It contends that insufficient weight was given to the husband’s contributions as a homemaker and parent, and more particularly his ongoing contributions to the children post-separation.
145. Neither party was cross-examined on their evidence concerning homemaking and parenting. That matter was but one aspect of the assessment of contributions which in turn was only one of numerous issues resolved by her Honour. It is not necessary for a primary judge to “mention every fact or argument relied on” when determining a relevant issue.^[73] We repeat what we have already said in respect of what is dictated by binding authority as to challenges to the weight attributed to evidence by a primary judge when exercising a very wide discretion. The challenge here is that material considerations were not considered.
146. During the proceedings before her Honour, counsel for the husband submitted that the husband’s contributions as a parent and homemaker were “significant”. On the husband’s evidence they included, among other matters: assisting the children with reading classes, bringing them to and from school, assisting with school events, taking them to various sporting and other activities, providing assistance around the house including washing, preparing lunches and shopping, and depositing money into the wife’s account so she could finance school excursions, trips and uniforms.
147. The husband deposed to those “parenting contributions” as having been possible due to his “flexible roster”, “reduced rosters of about 8 days per month” between 2004 and 2008 and a period of “15 months leave without pay from 1 April 2003 to 13 March 2004”.^[74] As the wife submits before this Court, the husband was absent overseas as a consequence of his work, and his investment activities took him interstate.
148. The wife’s evidence in relation to the husband’s non-financial contributions is largely summarised in the following paragraph:^[75]

By reciting the homemaker tasks undertaken by me during our marriage, I do not assert that [the husband] did not assist in such tasks. When he was at home, he frequently assisted me with the food preparation and the cleaning up after meals. [The husband] assisted in other ways, but we arranged our family responsibilities on the basis that [the husband] was responsible for our various investments and earning the larger income, and I focussed upon earning my income ... and the needs of our household and children.

149. Following that paragraph, the wife lists how she assisted with the husband’s “various commercial activities”, the care of the children and the care of the father.
150. Under the heading “Contributions”, her Honour noted at [257] that “[t]he husband also made parenting contributions and contributions to their home”. However, at [256] her Honour stated:
     256. [The wife] has been the primary home maker and carer for the children over a relationship of 24 years. Her home making and parenting roles continued after separation because they have remained living in [the former matrimonial home], as have their children. The younger child did not reach 18 years of age until 2013.
151. We are not persuaded of error by her Honour, and Ground 8 fails.

Was the contributions assessment “manifestly excessive”?

152. Ground 2 asserts that: “the learned trial judge’s assessment of contribution was manifestly excessive having regard to the proper contributions made by each of the parties” (as per original). It is assumed that the ground intends to assert that the assessment of the wife’s contributions is manifestly excessive.
153. What is meant by “proper contributions” is not elucidated in the written or oral arguments on behalf of the husband. The ground contains no particularisation of the asserted excess or how it is manifest.
154. It bears repeating that her Honour’s assessment of the contributions of all types made by each of the parties across the entirety of the period to trial saw the wife’s contributions assessed as being markedly less than those of the husband; in dollar terms about $5 million dollars less.
155. Again, we reiterate the point made earlier that the true extent of the property may well have been greater than that upon which her Honour’s assessment was based.
156. Her Honour’s assessment of contributions, made in the circumstances just referred to, is not demonstrated to be erroneous. Ground 2 fails.

Is the s 75(2) Adjustment “Manifestly Excessive”?

157. The husband’s challenge to her Honour’s s 79(4)(e) assessment expressed in Ground 5 is, again, drawn in general and non-particularised terms.
158. Her Honour made an adjustment pursuant to “s 75(2) factors” of 17.5 per cent to the wife. That adjustment reflected an increase to the wife’s assessed contributions entitlement of approximately $3 million.
159. The husband’s Summary of Argument refers to the contentions of the wife in respect of that adjustment as being less than what ultimately her Honour decided. The submission fails to have regard to the fact that the s 79(4)(e) assessment contended for was in respect of a significantly greater value of property and superannuation interests, it being premised on the contention that the EUT units were the husband’s property.
160. Having noted that “[t]he husband’s income and earning capacity vastly exceed[ed] that of the wife” (at [271]), her Honour noted that the EUT would provide “an asset base from which the husband can leverage the acquisition of property and has a proven borrowing capacity” (at [273]). Her Honour also noted that the EUT would fall to the husband upon his father’s death and that:
     275. ...access to the [EUT] will ensure that the husband is able to continue with his investment activities regardless of the requirement that he dispose of assets he currently holds in order to satisfy any orders made in these proceedings.
161. Noting the “disparity in income and the financial resource”, her Honour concluded that a significant s 75(2) adjustment in the wife’s favour was warranted (at [277]).
162. Senior counsel for the husband asserted orally that her Honour failed to consider the impact the orders would have on the husband’s ability to continue utilising the EUT as a resource. It was said that the former matrimonial home had been used historically as security for advances and that as a result of the orders, that option would no longer be available to him. If that was intended as an assertion that her Honour failed to take account of material considerations, no such appealable error is asserted in the ground. Rather, as the terms of the ground suggest, it was submitted that when regard was had to these matters, it could only be concluded that her Honour’s s 75(2) adjustment “fell outside the wide range of the Court’s discretion resulting in an outcome that [was] manifestly unjust and inequitable”.^[76]
163. In that respect, it was asserted orally by the husband’s senior counsel that he had “never seen in a case of this magnitude s 75(2) factors of 17.5 per cent” and that “there’s very little authority for that proposition that I’m aware of”.^[77] We are, with respect, unable to see the relevance of that submission given that it was not at all referenced to any cases said either to illustrate the proposition or to demonstrate where her Honour’s assessment might fall when compared to cases contended to be comparable.^[78]
164. Her Honour noted that the financial resource of the husband constituted by the EUT had net assets of approximately $5.1 million (FPL also had assets taken into account as a financial resource of $138,524). It was a resource that the husband had in the past and in the future could utilise as and when he saw fit because the father “gave him the run of the trust”. Once again, her Honour’s findings as to having no confidence about the husband’s true asset and liability position pertain. The findings, including those relating to disclosure, embrace of course the husband’s dealings with the EUT’s assets. In respect of the latter, her Honour found specifically, at [87] that “the published accounts of the EUT are little more than a rough guide to its value”.
165. The benefit to the husband of the EUT as a financial resource is measured by the freedom given to the husband by the father to deal with trust property as he sees fit; indeed, to treat it in many instances as if it was his own. The nature, breadth and extent of the husband’s dealings with trust property, and the potential for further such dealings based on that past conduct, impacts upon the importance of the financial resource within s 79(4)(e), specifically, s 75(2)(b).
166. Her Honour’s discretionary task was to assess how the husband’s “vastly” greater earnings and earning capacity; his complete freedom to utilise net assets exceeding $5 million in which the wife would not share; and a complete lack of confidence that her Honour knew the true picture of the assets and liabilities available to the husband should sound in the s 79(4)(e) assessment. No discrete discretionary error is identified. Again, the challenge is essentially to the weight attached to factual premises which, on appeal, are not challenged.
167. We are not persuaded of error by her Honour, and Ground 5 fails.

Capital Gains Tax and the Asserted Denial of Procedural Fairness

168. The procedural unfairness contended for by the husband in Ground 4 is said to arise as a result of her Honour failing to allow the husband sufficient time to adduce evidence as to any potential CGT liability arising from the payment of approximately $2.1 million to the wife in accordance with Order 2(b).
169. It is said that that order can only be given effect if the husband sells certain investment properties or shares held by him with a resultant CGT impost for which he will solely be liable.
170. That asserted liability (unquantified by the husband) was not taken into account by her Honour as a liability of the parties or either of them. Nor did her Honour take any potential liability into account by reference to s 79(4)(e) of the Act.^[79]
171. The husband accepts that he did not put evidence before her Honour in respect of any CGT liability or potential liability. The circumstances in which that admitted omission arises require some explanation.
172. Before doing so, her Honour’s reasons in respect of this issue should be quoted:
     171. There was no evidence before the Court of the quantum of CGT payable by the husband.
          172. Counsel for the husband submitted that, in order to satisfy any order that he pay money to the wife, he will be required to sell property. The husband in cross-examination said that he does not propose to borrow funds but will transfer in specie or sell property to pay the wife.
          173. Counsel for the husband contended that the potential for a CGT liability to arise should be “taken into account”.
          174. The wife’s application was for the transfer of nominated properties to her. If that occurs, the husband will not incur any CGT liability.
173. Those passages of the reasons represent the totality of her Honour’s reasons with respect to CGT. With respect, in the absence of explanation as to what occurred in the proceedings before her, they appear somewhat anomalous and do not admit of a conclusion. The evidence recorded at [172], was given without a finding as to whether it is accepted and would be the premise for orders. Similarly, the statement at [174] while factually correct is given without a finding as to whether the condition (transfer of the relevant properties) will be met in any orders. As it transpired, the condition is not met; her Honour ordered that the husband pay a cash sum to the wife rather than transfer properties pregnant with CGT to her.
174. The explanation for these reasons lies in her Honour affording the parties the opportunity to make submissions, upon receipt of the reasons, as to “the form of the orders”.^[80] In order to understand how that came about and whether any procedural unfairness was visited upon the husband as a result of refusing him the opportunity to adduce evidence as to a potential CGT liability, it is necessary to see what unfolded in the trial, including the shifting sands of the specific orders sought by the parties and the chronology attached to that.
175. The wife’s Case Summary document filed 5 October 2016 (five days prior to the first day of trial), sought the transfer to her of the former matrimonial home, and that the husband “[p]ay to the wife, or as she directs, such sum that ... on an overall basis [reflects] 50% of the total net value of all the parties assets and liabilities”. Importantly, it was only in circumstances where the husband did not make the necessary payment, that the wife proposed in that document orders for the sale of a number of properties which, it seems to be uncontroversial, were pregnant with CGT.^[81]
176. On the first day of trial, 10 October 2016, senior counsel for the wife tendered a document titled “Minute of Order Sought by the wife” (Exhibit 3). That document sought, in addition to the transfer of the matrimonial home, the transfer to the wife, of six other properties, a payment to the wife of $2.5 million and the payment of approximately $1.1 million from the husband’s superannuation account.^[82] It is evident that the sums sought on the first day of trial had substantially increased from those sought in the Case Summary document. Yet, they also included the transfer of properties that, if transferred to the wife, could be the subject of CGT rollover relief.
177. On that same day, the following exchange occurred between counsel for the husband and her Honour:^[83]

[COUNSEL FOR THE HUSBAND]: Secondly, your Honour, the other document that I think you’ve now marked as exhibit 3, being the wife’s minute of order, can I say this: this was also handed to us about 10 minutes ago or so. This is a significant shift in the orders that have been sought by the wife, as compared to what’s in the outline document that we were provided with last week. I haven’t had the opportunity, as yet, to go through this. As opposed to the wife’s position of seeking the [former matrimonial] home and a sum of money, we’ve now got the wife seeking the [former matrimonial] home together with a whole variety of properties that your Honour will see in order 1, never been the subject of any application before.
We’ve got a payment as sought by her in the sum of two and a half million dollars, we’ve got a superannuation sum of just under $1.1 million. I haven’t been through this document with my client. I haven’t had a chance to do a reflection of this document on the existing balance sheet or on the outline of submissions and the like that my friend has put in his outline as to whether or not this is a fifty-fifty case as asserted by him in his case outline document and this is a document that takes me completely by surprise.
HER HONOUR: You don’t have to address it now ... You will be given every opportunity when the evidence is concluded to say what you want to say about the orders the wife seeks.
[COUNSEL FOR THE HUSBAND]: Well, I might also need your Honour’s leave, subject to me getting instructions in relation to this, to put any evidence on from my client in relation to the mechanics and logistics of these orders.

178. Subsequently, on the second day of trial, 11 October 2016, the husband gave the evidence under cross-examination that is the subject of the reference at [172] of her Honour’s reasons:^[84]

[COUNSEL FOR THE WIFE:] All right. Do you wish to retain the home, do you?---Yes.
Right. Are you proposing to pay moneys to my client in order to satisfy any claim she has for settlement?---It depends on my financial situation and what I’ve got to satisfy at the end of these proceedings.
All right. So have you made any inquiries about what you can borrow?---I won’t be borrowing any more money.
Not borrow. How would you propose to - - -?---I will have to sell assets.

179. It will be appreciated that the positions of the parties as to the final orders sought was somewhat in a state of flux. Within that context, and also within the context of her Honour requiring a settled list of issues from the parties upon which determination was sought, further discussion ensued on day three of the trial about the latter. In that context, CGT was raised as a potential issue:^[85]

[COUNSEL FOR THE WIFE]: No. No. There are a couple of others in the balance sheet that I will be able to take your Honour to. These are other very minor issues.
HER HONOUR: I know they are.
[COUNSEL FOR THE WIFE]: They’re not on the big picture that’s for sure and I can - - -
HER HONOUR: No.
[COUNSEL FOR THE WIFE]: - - - say that almost all of the other big ticket liabilities are the subject of agreement.
HER HONOUR: All right.
[COUNSEL FOR THE WIFE]: The husband has contended 2016 tax is not – I’m not sure if there has been a disposal by him but - - -
HER HONOUR: What about the CGT contention?
[COUNSEL FOR THE WIFE]: In relation to what?
HER HONOUR: I don’t know. You’ve got it on your list. I - - -
[COUNSEL FOR THE WIFE]: Yes, but I - - -
HER HONOUR: - - - assumed you might assist me.
[COUNSEL FOR THE WIFE]: No. I knew that it was going to enter the balance sheet somewhere on advice from my friends but I don’t know what it is.
HER HONOUR: Is there a contention, [counsel for the husband], that I should - - -
[COUNSEL FOR THE HUSBAND]: Well - - -
HER HONOUR: - - - take into account CGT and, if so, is there any evidence?
[COUNSEL FOR THE HUSBAND]: There’s no evidence and the issue as to CGT will only arise upon implementation of orders that are made following the sale or realisation of any of these assets in order to either to pay out the – the orders that the wife is presently seeking is for the [former matrimonial] home and a number of other properties – there are presently what I will call investment properties in my client’s name to be transferred to her. And, for those transfers to take place, with those properties then being unencumbered.
The orders also provide for a payment to the wife of some two and a half million dollars. That can only be achieved – either the discharging of those mortgages presently over those properties and the payment of the two and a half million dollars by the sale of some other asset that’s on the balance sheet because, naturally, nowhere is on the balance sheet a source of funds other than either by the whale of shares – by the sale of shares or otherwise. So there’s likely to be a CGT impost depending on what - - -
HER HONOUR: But there’s no evidence about what it is.
[COUNSEL FOR THE WIFE]: There’s no evidence as to what it is. There’s no – at this stage, no indication as to what properties or otherwise would be sold to achieve whatever outcome.
HER HONOUR: All right. Then there’s the issue of the health of both of the parties and their future income earning capacity.

180. It should be noted that this exchange and the reference to issues necessary to be determined in the case occurred not only after the husband’s cross examination but also after the close of the husband’s case^[86] and, therefore, axiomatically, after all such evidence that the husband sought to be adduced had been adduced by him.
181. The “list” referred to in the transcript passage just quoted was an agreed “Joint List of Issues” provided to her Honour by the parties. At the time of the above extract, the list remained, it seems clear, a draft.^[87] The following day, 14 October 2016 (day four of the trial), a concluded list of issues was given to her Honour. That list did not mention any issue pertaining to any potential CGT liability to be incurred by the husband.
182. That apparent anomaly is explained by what transpired in further exchanges between her Honour and counsel for both parties immediately before each commenced their closing submissions in respect of how orders might reflect the respective entitlements of the parties as determined by her Honour. The discussion commenced with the role that a superannuation splitting order might play when compared to any cash sum being ordered to be paid to the wife and then moved to a specific enquiry by her Honour as to whether the wife continued to seek orders that properties be transferred to her:^[88]

HER HONOUR: Right. Can I ask this of both of you. Is either position wedded to there being a split if the amount that I order to be paid to the wife can be satisfied out of other assets?

[COUNSEL FOR THE WIFE]: Our first preference is for a split.

HER HONOUR: Right.

[COUNSEL FOR THE WIFE]: We’re not wedded to it. We’re not wedded to it.

HER HONOUR: Given the ages of - - -

[COUNSEL FOR THE WIFE]: That’s why.

HER HONOUR: - - - both of them, it’s not going to make a great deal of difference, is it, whether it’s cash or super.

...

[COUNSEL FOR THE WIFE]: Yes. So from my client’s point of view, your Honour, our – if we had a preference, we would say we would prefer some superannuation split. But if we didn’t, we’re not going to be that terribly upset. Cash is king.

HER HONOUR: All right. So do I take it from that ... that although your application seeks the transfer to your client of various investment properties, what she actually wants is a sum of money and she doesn’t care how it’s made up?

[COUNSEL FOR THE WIFE]: Yes. We would again – and we’re not standing in one particular – we would prefer, for example, in priority the [Suburb R] properties and then the [Suburb LL] property. That said, we accept that there might not be a solid evidentiary foundation, if the husband opposes it, for your Honour to exercise discretion about that. And again, we would have to go back to cash being king.

183. Her Honour then addressed counsel for the husband, saying that the matter just referred to is “another thing ... that you need to get instructions about”.^[89] Counsel referred her Honour to his final Outline of Submissions. Those passages of the outline are as follows:

The Husband seeks Orders in accordance with the attached Minute of Order. The Husband opposes the Orders sought by the wife for the transfer of real property presently owned by the Husband and identified in Orders 1.1.2 to 1.1.7 of the Wife’s Minute of Order dated 10 October 2016.
In the event that the Court finds the entitlement of the Wife to be greater than that asserted by the Husband, the Husband would wish to be heard in relation to the form of Order to be made to satisfy the Wife’s entitlement.

184. The last part of that submission might be seen to derive from the very significant difference between what the husband asserted the wife’s entitlements to be and the entitlement for which the wife contended. Counsel for the husband’s reference to properties being transferred by reference to numbered paragraphs of the wife’s Minute of Order reflects an acceptance that the [former matrimonial] home in [Suburb C] (which was the subject of Order 1.1.1) would be transferred to the wife.
185. Having raised the prospect of obtaining instructions with counsel for the husband, the exchange continued as follows:^[90]

[COUNSEL FOR THE HUSBAND]: That I know, your Honour, and your Honour will see is set out in, I think, the final paragraphs of my outline, that my client opposes the transfers of those properties.
HER HONOUR: That he would rather be ordered to pay an amount of money and work out how to do it.
[COUNSEL FOR THE HUSBAND]: That’s so, your Honour. And that’s why I say at the end of my outline that subject to that amount then my client may wish to be heard as to how that’s to be formulated and over what period of time.
HER HONOUR: And I suppose that brings me to another possibility, which is that I could deliver a judgment which says, “This is my finding in terms of percentages and” - - -
[COUNSEL FOR THE HUSBAND]: And the pool.
HER HONOUR: And the pool. And give you some time to consider how – I don’t know, is there likely to be – if I give you a judgment that has [the former matrimonial home] plus a number, are you then likely to be able to reach an agreement about how that’s to be satisfied? Or does it perhaps not matter?
[COUNSEL FOR THE WIFE]: If you did that, your Honour, you would pick the number. You would also make sure in your judgment that you had made a determination as to a requirement as to payment terms. For example, you know - - -
HER HONOUR: Within 60 days or whatever - - -

186. Counsel for the husband indicated a desire to obtain instructions and this exchange occurred:^[91]

[COUNSEL FOR THE HUSBAND]: So I can check with that and come back to your Honour during the course of the morning. But I agree with what my friend says. If your Honour is to deliver a judgment stating it’s [the former matrimonial home] plus that your Honour if – and given each of the parties are now saying that it ought to include – if there’s to be a cash component – the superannuation split, that that – your Honour would clearly articulate that as to that be the components of the orders that the parties would come back to your Honour on.

HER HONOUR: So you – I would fix the amount of the superannuation split?

[COUNSEL FOR THE WIFE]: You would.

[COUNSEL FOR THE HUSBAND]: And I will - - -

HER HONOUR: Presumably in whatever position – in whatever percentage I determine the other – the split of the assets should be. It should be the same as for the superannuation.

[COUNSEL FOR THE HUSBAND]: Yes, your Honour. And I will just get an answer to that last question your Honour has asked about whether it be – if it’s in the sum greater than proposed by my client.

HER HONOUR: Do you want to do that now, [counsel for the husband]? Do you – it’s up to you.

[COUNSEL FOR THE HUSBAND]: If your Honour would provide me five minutes. It won’t take longer than that and I can do that.

HER HONOUR: Well, I think it’s only fair that you know – we all know where we’re going.

187. Her Honour then stood down and upon resumption, this exchange occurred:^[92]

[COUNSEL FOR THE HUSBAND]: Yes. Thank you, your Honour. I hope I’ve understood your Honour’s question correctly. When I indicated that so far as the husband was concerned there would be a preference so far as a superannuation split, he seeks at the moment a split in the sum of $500,000.

HER HONOUR: Yes.

[COUNSEL FOR THE HUSBAND]: Your Honours question of me was would that still be his preference if it was to a sum greater than that amount. The answer to that question is yes, that’s so, but not to an amount greater than $1.1 million. If there was to be an entitlement above that, then the balance would be made up of cash.

188. Thereafter the topic was not revisited. The potential CGT liability if any was not addressed in either party’s submissions.
189. Her Honour’s reasons conclude, at [279] – [281]:
     279. The wife will receive 52.5 per cent of the net asset pool including superannuation, which amounts to a sum of $8,812,231. It is agreed that she will retain [the former matrimonial home], her superannuation and her personal possessions including her shares. The net value of those assets is $5,580,153. She should receive a superannuation split as conceded by the husband of $1,100,000. Thus the husband will be required to pay to the wife the balance of $2,132,078.
     280. Before entering the proposed orders, my reasons will be given to the parties so that they have an opportunity to reach agreement about the time and the manner in which the amount due to the wife will be satisfied.
     281. Absent agreement, orders will be made in the form which I have proposed.
190. That opportunity was afforded. The solicitor for the husband sought to make submissions as to CGT:^[93]

[SOLICITOR FOR THE HUSBAND:] Given the quantum of that payment, there will inevitably arise a CGT payment.
HER HONOUR: ...this is a question about the form of the orders only.
[SOLICITOR FOR THE HUSBAND]: Yes, but I can’t address your Honour about the form of the orders unless I address that issue.
HER HONOUR: Yes.
[SOLICITOR FOR THE HUSBAND]: This is an issue which has just arisen, because in order to satisfy the form of the orders, if it’s to be a division of 52.5 per cent of the total balance sheet to the wife, there isn’t a CGT calculation and my client hasn’t had an opportunity - - -
HER HONOUR: Your client had every opportunity during the course of the trial, and how does this go to the form of the orders?
[SOLICITOR FOR THE HUSBAND]: Okay. I can’t take it any further, your Honour.

Conclusion

191. It seems clear that the husband was at all times proceeding on the assumption that, at most, the transfer to the wife of the former matrimonial home and a superannuation split would more than meet her ordered entitlement. Yet, the wife’s position, although taking varying forms, always sought an entitlement to her significantly greater than that for which he contended. That, in turn raised the possibility for him of the means by which any such order would be met.
192. That issue was addressed specifically by her Honour. The husband had every opportunity to respond, including, if necessary, seeking to re-open his case so as to adduce evidence of, for example, an expert estimate of the potential CGT liability to be borne by him if he sold specific properties. The husband did not seek any such opportunity.
193. What the husband did was to eschew any outcome by which he would divest himself of any properties pregnant with CGT. He expressly agreed, through his counsel, with the proposition put by her Honour that he would “rather be ordered to pay an amount of money and work out how to do it”, reserving a desire to be heard “as to how that’s to be formulated and over what period of time”.^[94] Moreover, the position was reinforced after a requested adjournment specifically so that counsel could seek instructions. After that adjournment the husband’s position remained the same even if “there was to be an entitlement above that” (i.e. greater than a transfer of the former matrimonial home and a superannuation split in the amount of $1.1 million), namely “then the balance would be made up of cash”.^[95]
194. Her Honour’s reasons at [171] – [174] were expressed in the manner in which they were because her Honour intended, as she made clear, to give the parties the opportunity to address the form of the orders by reason of the exchanges which had taken place during the trial, the relevant aspects of which we have quoted above. The opportunity afforded was explicitly as to the form of the orders the parameters of which were marked by the considerations which her Honour outlined at [171] – [174].
195. Thus, it remained open to the husband on 4 November 2016 when her Honour delivered her reasons and afforded the opportunity earlier mentioned, to suggest transfers of property so as to satisfy the wife’s ordered entitlement to a cash sum. He did not avail himself of that opportunity. Rather, through his solicitor, he sought to undertake an entirely different task. He sought to raise a matter that should reasonably have been within his contemplation at all times leading up to the trial and throughout it about which it would be necessary for evidence (and likely expert evidence) to be obtained, tested and decided upon. That necessity arises solely because he maintains a position by which he refuses to countenance the transfer of CGT-pregnant property.
196. No procedural unfairness arises. Ground 4 fails.

THE HUSBAND’S APPEAL: CONCLUSION AND ORDERS

197. The husband’s appeal fails and an order will be made dismissing it.

APPLICATION IN AN APPEAL

198. Senior counsel for the father sought to adduce further evidence pursuant to s 93A of the Act. We dismissed that application on 12 October 2017 and indicated that we would give our reasons within these reasons. These are those reasons.
199. The evidence sought to be adduced refers to a codicil to the father’s will and a letter of demand requiring repayment of the father’s loan account with the EUT. Each post-dated the trial.
200. The relevant passages of her Honour’s reasons are as follows:
     65. I am not satisfied that those two asserted liabilities have any foundation in fact, but I am not required to determine that issue. Having regard to the terms of the Will of the [father] in which he forgives all debts owed to him by the [EUT], I consider it unlikely that the alleged debts would ever be called in by the [father] and therefore I propose to ignore them for the purpose of these proceedings.
     66. The largest liability of the [EUT] is the loan account of the [father], shown in the 2015 balance sheet as $3,196,262. How that figure was calculated is a mystery. In the financial year ended 30 June 2014, the loan account was recorded as having increased from $3,065,269 in 2013 to $4,499,412 in 2014. There is no explanation for the increase. In cross-examination the [father] could not explain it. He was clear that he had not advanced $1,434,143 to the [EUT]. I do not accept that this figure accurately represents the loan account owed.
     67. In the financial year ended 30 June 2015, the loan account had decreased to $3,196,262. There was no suggestion that the [father] had received $1,303,150 or any money at all. I do not accept that the Financial Statements of [EUT] accurately reflect the amount of the loan account.
     68. No loan account ledgers have ever been produced, although they have been called for. The loan account balances have been recorded by the accountants in the Financial Statements simply on the basis of instructions, firstly from the [father] and then from the husband. They have no probative value.
     69. In any event, as has been explained, the [father], in his Will and by his Statutory Declaration made on 16 March 2016, has forgiven those debts. There is no evidence from the [father] that he intends to call up the loan, whatever its accurate balance might be.
201. The effect of the evidence sought to be adduced was, it was said, that there is no forgiveness of the loan.
202. The findings made by her Honour quoted above should be noted. It is conceded by senior counsel for the father that the evidence is controversial “[i]n the context of the valuation of the unit trust”.^[96] It is also conceded that her Honour found that the father had not called any evidence on this topic and this is a finding which is not challenged.^[97]
203. The principles enunciated in CDJ v VAJ^[98] in determining whether further evidence should be adduced on the hearing of an appeal pursuant to s 93A of the Act have frequently been referred to and need not be repeated.
204. Much of the evidence sought to be led is inadmissible consisting, for example, of conclusions and argument as opposed to facts. In any event we are entirely unable to see how such evidence as is admissible and that is now sought to be led (even if given full weight) demonstrates error on the part of the primary judge or buttresses her Honour’s findings.

COSTS OF THE APPEAL

205. Each of the parties sought the opportunity to make written submissions as to costs consequent upon the delivery of these reasons. We will make directions accordingly.

I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy and Johnston JJ) delivered on 25 May 2018.

Associate:

Date: 25 May 2018

^[1] Agreed and ascertained by reference to the Family Law (Superannuation) Regulations 2001 (Cth).
^[2] See, for example, the discussion in Rodgers & Rodgers (No 2) (2016) FLC 93-712.

^[3] Ground 4 of the cross-appeal.
^[4] The trust deed was varied by Deed of Variation in July 2016 in a manner not relevant to this appeal.
^[5] Referencing , in particular, Ascot Investments Pty Ltd v Harper [1981] HCA 1; (1981) 148 CLR 337 at 342 (Gibbs CJ).
^[6] Relying, for example, on the statement to that effect by Finn J in Stephens and Stephens [2007] FamCA 680; (2007) FLC 93-336 at [136] and [137].
^[7] Appeal transcript, 12 October 2017, p 99.
^[8] Appeal transcript, 12 October 2017, p 103. Clause 11.1(r) of the trust deed provides the power of the trustee to delegate and appoint agents and sub-agents.
^[9] Exhibit “ALH”, Articles of Association of FPL Pty Limited at paragraph 125 attached to the husband’s affidavit filed 22 July 2016 and referred to at paragraph 28.
^[10] Affidavit of Single Expert Witness filed 30 September 2016, Annexure “A” at page 35.

^[11] Affidavit of Single Expert Witness filed 30 September 2016, Annexure “A” at page 35.
^[12] EUT trust deed, clauses 6.1 and 7.1 respectively.
^[13] EUT trust deed, clause 20.1.
^[14] EUT trust deed, clause 20.3.
^[15] EUT trust deed, clause 20.4.

^[16] Transcript, 11 October 2016, p 143 ln 36 – 37.
^[17] Transcript, 11 October 2016, p 143 ln 43 to p 144 ln 2.
^[18] Reasons at [24], [28], [31], [34], [38], [44], [57], [63], [64], [76], [77], [78], [80], [83], [92]–[95], [100], [108], [126]–[139], [141]–[143], [147], [149], [152]–[159], [219], [222].
^[19] [1981] HCA 1; (1981) 148 CLR 337 (“Ascot”).
^[20] (2008) 238 CLR 366 (“Kennon”).
^[21] [1986] FamCA 20; (1986) FLC 91-777 (“Ashton”).
^[22] (1991) FLC 92-197 (“Davidson”).
^[23] Ascot at 354 – 355.
^[24] Ascot at 343.
^[25] Ascot at 344.
^[26] Ascot at 343 – 344.
^[27] Ascot at 354.
^[28] Ascot at 354.
^[29] Ascot at 356.
^[30] Ascot at 355.
^[31] The present discussion respectfully puts to one side the s 85A issue addressed by the current Chief Justice which obviated the need for her Honour to discuss the issue, under consideration.
^[32] Kennon at 390.
^[33] Kennon at 390 – 391.
^[34] Kennon at 391.
^[35] Kennon at 392.
^[36] [2008] NSWSC 397 at [125].
^[37] Ashton at 75,652.
^[38] Ashton at 75,653.

^[39] Davidson at 78,365.
^[40] [1981] FamCA 78; (1981) FLC 91-108 (“Kelly”).
^[41] As to which, see for example, Duff and Duff (1977) FLC 90-217.
^[42] Kelly at 76,801-2.
^[43] [1986] FamCA 27; (1986) FLC 91-779.

^[44] (1991) FLC 92-254.
^[45] (1991) FLC 92-254 at 78,708.
^[46] [2000] FamCA 1353; (2001) FLC 93-075 (Holden & Guest JJ).
^[47] [2002] FamCA 195; (2002) FLC 93-095 at 88,867 [140] citing Ashton; Davidson; JEL and DDF; and Goodwin and Goodwin Alpe (1991) FLC 92-192. The case involved a number of issues distinguishable from the present.
^[48] [2007] FamCA 680; (2007) FLC 93-336 at 81,767 – 81,768.
^[49] Water Board v Moustakas (1988) 180 CLR 491 at 497.
^[50] Water Board v Moustakas at 497.
^[51] Water Board v Moustakas at 497.

^[52] That Amended Notice of Cross-Appeal abandoned Grounds 7 and 8 and inserted Ground 9.

^[53] [1987] FamCA 20; (1987) FLC 91-853.

^[54] Cross-Appellant’s Summary of Argument filed 19 April 2017 at paragraph 5 (italics in original).

^[55] Appeal transcript, 2 May 2017, p 34 ln 2 – 4.
^[56] Appeal transcript, 2 May 2017, p 32 ln 16 – 21. Although Richardson SC refers to [231] of her Honour’s reasons, it is plain from the judgment that he intended to refer to [230] of her Honour’s reasons. Richardson SC later corrected himself at Appeal transcript, 2 May 2017, p 32 ln 24 – 25.
^[57] Transcript, 12 October 2016, pp 190 – 191; the husband says at p 191 of that transcript that the $260,000 reduced the amount of $415,441owing by the husband to the EUT to $154,661 (see [198]).
^[58] Appeal Transcript, 2 May 2017, p 45 ln 19 – 28.
^[59] Appeal Transcript, 2 May 2017, p 45 ln 32 – 39.

^[60] See, eg, Kessey and Kessey (1994) FLC 92-495; Gosper and Gosper [1987] FamCA 43; (1987) FLC 91-818.

^[61] Cross-Appellant’s Summary of Argument filed 19 April 2017 at paragraph 40.
^[62] Appeal Transcript, 12 October 2017, p 93 ln 41 – p 94 ln 1.
^[63] Weir and Weir [1992] FamCA 69; (1993) FLC 92-338 at 79,593.

^[64] Husband’s Summary of Argument filed by leave on 2 May 2017 at paragraph 27.
^[65] Husband’s Summary of Argument filed by leave on 2 May 2017 at paragraph 24; husband’s affidavit filed 22 July 2016 at paragraph 80 and 81.
^[66] Husband’s Summary of Argument filed by leave on 2 May 2017 at paragraph 24; husband’s affidavit filed 22 July 2016 at paragraph 23 and 24.

^[67] [2012] FamCAFC 154; (2012) 50 Fam LR 244.

^[68] Cross-Appellant’s Reply to the Submissions of the Appellant filed 19 April 2017 at paragraph 12.

^[69] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605; See also, Fields & Smith (2015) FLC 93-638.

^[70] Appeal transcript, 2 May 2017, p 19 ln 30 – p 21 ln 6.

^[71] Submissions filed 12 May 2017 at paragraph 13; See, transcript, 12 October 2016, pp 204 – 207.

^[72] Wife’s Reply to the Additional Grounds of the Appellant filed 12 May 2017 at paragraph 16.

^[73] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62].

^[74] Husband’s affidavit filed 22 July 2016 at paragraph 102 – 108.

^[75] Wife’s affidavit filed 20 July 2016 at paragraph 42.

^[76] Husband’s Summary of Argument filed by leave on 2 May 2017 at paragraph 35.

^[77] Appeal Transcript, 2 May 2017, p 28 ln 5 – 12.
^[78] As to the latter see: Wallis & Manning (2017) FLC 93-759 and the difference in judicial opinion in Anson & Meek (2017) FLC 93-816. See also the discussion in Rodgers & Rodgers (No 2) (2016) FLC 93-712.

^[79] s 75(2)(o); See, eg, Rosati v Rosati [1998] FamCA 38; (1998) FLC 92-804 (“Rosati”); IABH & HRBH [2006] FamCA 379 at [79].

^[80] Transcript, 4 November 2016, p 2 ln 13 – 25.
^[81] These orders were sought in addition to a “[d]eclaration that the respondent husband controls and is otherwise the equitable owner of the assets owned by [FPL] and the [EUT]”.

^[82] These orders were also in addition to the same declaration noted in footnote 81 of these Reasons.

^[83] Transcript, 10 October 2016, p 46 ln 32 – p 47 ln 10.
^[84] Transcript, 11 October 2016, p 105 ln 16 – 25.

^[85] Transcript, 12 October 2016, pp 263 – 264.
^[86] Transcript, 12 October 2016, p 256 ln 21 – 24.
^[87] Transcript, 12 October 2016, p 257 ln 5 – 7.
^[88] Transcript, 14 October 2016, p 8 ln 39 to p 10 ln 5.

^[89] Transcript, 14 October 2016, p 10 ln 7 – 8.
^[90] Transcript, 14 October 2016, p 10 ln 10 – 36.
^[91] Transcript, 14 October 2016, p 11 ln 14 – 42.

^[92] Transcript, 14 October 2016, p 12 ln 7 – 17.

^[93] Transcript, 4 November 2016, p 6 ln 35 – p 7 ln 4.

^[94] Transcript, 14 October 2016, p 10 ln 14 – 19.

^[95] Transcript 14 October 2016, p 12 ln 17.
^[96] Appeal Transcript, 12 October 2017, p 80 ln 45.
^[97] Appeal Transcript, 12 October 2017, p 80.
^[98] (1998) 197 CLR 172.