Bridges & Bridges [2020] FamCAFC 77 (9 April 2020)

Last Updated: 22 June 2020

FAMILY COURT OF AUSTRALIA

BRIDGES & BRIDGES

[2020] FamCAFC 77

FAMILY LAW – APPEAL – PROPERTY – Where it has not been demonstrated that the primary judge erred, or that his Honour’s assessment of the relevant factors under s 75(2) of the Family Law Act 1975 (Cth) fell outside the wide ambit within which reasonable disagreement is possible, and the decision is “plainly wrong” – Where none of the grounds of appeal have merit – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs – Where the appellant opposes such an order on the basis of his financial circumstances – Where the appeal has been wholly unsuccessful – Where there would seem to be no financial impediment to making such an order – Where the amount of costs sought by the respondent are concerning – Costs ordered in favour of the respondent to be as taxed or assessed on a party/party basis in default of agreement.

Family Law Act 1975 (Cth) ss 75, 79 and 117

Anson & Meek (2017) FLC 93-816; [2017] FamCAFC 257 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91 In The Marriage of Pastrikos (1979) FLC 90-897; [1979] FamCA 56 Lint & Lint [2011] FamCAFC 115 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Palumbo & Mandel [2019] FamCAFC 228 Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51 Zubcic & Zubcic (2019) FLC 93-918; [2019] FamCAFC 168

APPELLANT:

Mr Bridges

RESPONDENT:

Ms Bridges

FILE NUMBER:

DGC

4015

of

2016

APPEAL NUMBER:

SOA

24

of

2019

DATE DELIVERED:

9 April 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

2 September 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 March 2019

LOWER COURT MNC:

[2019] FCCA 683

REPRESENTATION

SOLICITOR ADVOCATE FOR THE APPELLANT:

Mr Cinar

SOLICITOR FOR THE APPELLANT:

Erol Cinar Lawyers

COUNSEL FOR THE RESPONDENT:

Dr R Smith

SOLICITOR FOR THE RESPONDENT:

Zenith Lawyers

ORDERS

(1) The appeal be dismissed.

(2) The appellant husband pay the costs of the respondent wife of and incidental to the appeal, such costs to be as taxed or assessed on a party/party basis in default of agreement.

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 Bridges & Bridges 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 24 of 2019
File Number: DGC 4015 of 2016

Mr Bridges

Appellant

And

Ms Bridges

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Amended Notice of Appeal filed on 12 August 2019, Mr Bridges (“the husband”) appeals from final orders for property settlement made by a judge of the Federal Circuit Court of Australia on 21 March 2019.
2. The appeal is opposed by Ms Bridges (“the wife”).
3. In summary, the orders the subject of the appeal provide for the wife to pay to the husband the sum of $99,458.60, the husband to transfer to the wife his interest in Property A, the wife to indemnify the husband against repayments under the mortgage secured on the title to that property, and for each party to retain their respective assets, including superannuation.

RELEVANT BACKGROUND

4. At the time of the hearing the husband was aged 59 years, and the wife 52 years.
5. They met in 1983 in Country G, and cohabited there until 1984 when they separated and the husband returned to Australia.
6. In 1993 the wife came to Australia and the parties resumed cohabitation, marrying on ... 1994.
7. There are four children of the marriage, respectively aged almost 22 years, 17 years, 16 years and 13 years at the time of the trial.
8. The parties purchased Property A in 1998 according to the husband, and in 1999 according to the wife, but nothing turns on that factual dispute.
9. The parties separated on 27 January 2015, and divorced on ... 2017.
10. The wife is deaf and communicates through speech and sign language.
11. The husband has suffered significant ill-health since approximately 2005.

THE APPEAL

12. There are seven grounds of appeal in the Amended Notice of Appeal, however, at the hearing of the appeal, the husband abandoned Ground 1.
13. In the summary of argument of the husband filed on 12 August 2019, Grounds 2, 3 and 5 are dealt with together, and I will do the same.

Grounds 2, 3 and 5
Ground 2 – The learned trial judge made an error of law by dividing the parties' property on a basis that was not just and equitable within the meaning of s 79(2) of the Family Law Act 1975 (the Act) having ordered the division of the parties' property in the amount of 80% to the Respondent Wife and 20% to the Applicant Husband.
Ground 3 – The learned trial judge made an error of law by making an adjustment for the Respondent Wife's future needs in the amount of 20% in her favour in circumstances where the following factual findings were made:
(a) The Applicant Husband has been receiving the Disability Support Pension since 2007;
(b) The Applicant Husband had $1,000.00 in his bank account.
(c) The Applicant Husband could not work and spent most days in bed.
(d) The Applicant Husband resided with his elderly mother.
(e) The Respondent Wife was earning an income of between $55,000.00 and $60,000.00 from part-time employment.
(f) The Respondent Wife resided in the former matrimonial home.
(g) The children of the relationship were aged 21, 17, 16 and 13.
(h) The eldest child was employed fulltime.
(i) The mortgage against the former matrimonial home was $145,500.00.
(j) The value of the former matrimonial home was $630,000.00.
Ground 5 - The learned trial judge made an error of law by not making any adjustment for the Applicant Husband’s future needs as required by sections 79(4)(e) and 75(2) of the Act read in conjunction.

14. Although Ground 2 appears to have a wider application, as explained in paragraph 5 of the husband’s summary of argument filed on 12 August 2019, the complaint in fact challenges his Honour’s adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), as not being just and equitable. Specifically it is said that that “arises by reason of the matters detailed in Grounds 3(a) to 3(j)”, and the complaint in Ground 5 “also arises by reason” of those matters.
15. It must be said that the summary of argument of the husband in relation to these grounds is not easy to follow, and provides little assistance in understanding the basis of the complaints. For example, fundamentally it is not identified how the orders made by his Honour were not just and equitable. Instead, detailed reference is made to four purportedly comparable cases to support the proposition that the primary judge’s adjustment of 20 per cent pursuant to the relevant factors in s 75(2) of the Act, was in error. However, the Full Court has eschewed the use of allegedly comparable cases to demonstrate some sort of norm, or range that should be applied in individual cases (Anson & Meek [2017] FamCAFC 257; (2017) FLC 93-816). Thus, this does not assist the husband’s case.
16. It seems to me that the issue that is in reality being raised by the husband, is that his Honour’s assessment of the relevant s 75(2) factors was “plainly wrong” in the manner described by Kirby J in CDJ v VAJ (1998) 197 CLR 172 at 230:
    1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle, or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.

...

(Footnotes omitted)

17. Thus, it is necessary to consider how his Honour dealt with the relevant s 75(2) factors.
18. First, it needs to be recognised that, in accordance with authority, his Honour addressed those factors in an holistic manner. The Full Court in Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592 (“Chapman”) said this:
    39. The consideration of the relevant matters referred to in s 75(2) of the Act, pursuant to s 79(4), like the assessment of contributions, is holistic. Also, like the assessment of contributions, it is not an accounting exercise.
19. As to the specifics, before his Honour the parties raised the following s 75(2) matters:
    1. The husband’s health – s 75(2)(a).
    2. The wife’s disabilities and medical issues – s 75(2)(a).
    100. The husband’s lack of capacity for appropriate gainful employment – s 75(2)(b).
    4. The wife’s modest income earning capacity – s 75(2)(b).
    5. The wife’s lack of financial resources – s 75(2)(b).
    6. The wife’s full-time care of the children – s 75(2)(c).
    7. The husband’s receipt of a disability support pension – s 75(2)(f).
    8. The husband’s accommodation and living arrangements – s 75(2)(g) and (o).
20. It is readily apparent from his Honour’s reasons that his Honour was cognisant of these factors and, for the purposes of the appeal, particularly the factors affecting the husband, namely his health, lack of earning capacity, receipt of a pension, and uncertain accommodation situation. Indeed, his Honour said this in assessing the adjustment to be made pursuant to s 75(2):

s 75(2) – Future needs

64. The mother is currently, and since at least 2010, has been largely financially responsible for the children. The mother provides for the four children in all aspects. Although the eldest daughter is now employed, she provides accommodation by paying the mortgage, pays the utility bills and is supporting the children through school and university. I regard this as very significant. The children have not had an easy time and there is no evidence that the father has any capacity to make further provision to assist financially.
65. The mother receives practically no support from the father, who pays minimal maintenance of around $7 per week for all of the children.
66. The father is in poor health has not worked since about 2005. He is in receipt of Disability Support Pension. He lives with and assists his elderly mother who suffers from dementia. No evidence was placed before the Court in relation to the likely situation when the father’s mother passes away or is placed in care. The father has access to a Disability Support Pension and I presume that he may have access to public housing in the event that he is no longer able to live with his mother.
67. In my view, given the ages of the children and lack of capacity on the part of the father to make contributions to their maintenance, it is appropriate to make a further adjustment of 20% in favour of the mother.
68. I also note what said by the Full Court of the Family Court in In the Marriage of Pastrikos (1979) FLC 90-897 at 70-653:

Without excluding other significant factors from consideration, any disparity between the parties’ financial resources and the obligation of either to provide a home for the children may make it just and equitable for the Court to increase the share of a party beyond that amount which would be justified solely by the contribution of that party to the property.

21. Nowhere in his written or his oral submissions does the husband successfully demonstrate that his Honour’s assessment of the relevant factors under s 75(2) of the Act, fell outside the necessarily wide ambit within which reasonable disagreement is possible, and the decision is “plainly wrong” (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, per Brennan J at 539).
22. Nor, to use the language of the grounds of appeal, does the husband identify how his Honour’s adjustment pursuant to s 75(2) of the Act renders the orders made not just and equitable.
23. What the husband does attempt to do in relation to Ground 3 in particular, is to suggest that one specific factor in s 75(2), namely paragraph (g), “must be treated as the guiding principle underlying any future needs analysis” (paragraph 7 of the husband’s summary of argument filed on 12 August 2019).
24. However, this is a submission without any basis. As the Full Court said in Chapman, the consideration of the matters in s 75(2) is an holistic exercise, and s 79(4)(e) itself requires the court to consider those matters “so far as they are relevant”.
25. As submitted by the wife, no paragraph in s 75(2) is by its nature of greater import than any other paragraph. Thus, s 75(2)(g) is not “a guiding principle” for any assessment of the relevant s 75(2) factors; it is just one of the factors to be considered in the holistic assessment, albeit, it is open to a court to attribute appropriate weight to any of the factors taken into account. Certainly, and in this case, a standard of living that in all the circumstances is reasonable, was an important factor favouring the husband, given his accommodation and living arrangements, and his Honour referred to that issue and took it into account (at [66]).
26. The final matter to consider is an argument sought to be developed by the husband at the hearing of the appeal. It was submitted that his Honour only arrived at a 20 per cent adjustment because that would permit the wife to retain the Property A house, and that submission is founded on the presence of [68] in his Honour’s reasons.
27. However, that is not how I read his Honour’s reasons. As can be seen, his Honour addressed the relevant factors in [64]-[66], and then set out his finding as to the adjustment to be made in [67], namely, 20 per cent in favour of the wife. The purpose of that then, in [68], noting what the Full Court said in In The Marriage of Pastrikos (1979) FLC 90-897 at 70-653, was nothing more than to indicate that that 20 per cent adjustment would be sufficient to allow the wife to retain the house property; it was not a factor in arriving at the adjustment.
28. I find that there is no merit in these grounds of appeal.

Ground 4

The learned trial judge made an error of law by taking into consideration the needs of the parties’ 21 year old daughter (presently engaged in fulltime employment) in weighing the Respondent Wife’s future needs.

29. Section 75(2)(c) provides that a trial judge can take into account “whether either party has the care or control of a child of the marriage who has not attained the age of 18 years”. Thus, plainly the “care and control” of the adult child cannot be taken into account here under that paragraph, and his Honour did not indicate that that was what he did. However, it is open to his Honour to take into account matters relating to the care and the needs generally of that adult child under paragraph (o) for example, and where appropriate, under paragraphs (e) and (l).
30. Thus, it is necessary to analyse what in fact his Honour did.
31. His Honour said this in [64]:

The mother is currently, and since at least 2010, has been largely financially responsible for the children. The mother provides for the four children in all aspects. Although the eldest daughter is now employed, she provides accommodation by paying the mortgage, pays the utility bills and is supporting the children through school and university. I regard this as very significant. The children have not had an easy time and there is no evidence that the father has any capacity to make further provision to assist financially.

And then concluded as follows in [67]:

In my view, given the ages of the children and lack of capacity on the part of the father to make contributions to their maintenance, it is appropriate to make a further adjustment of 20% in favour of the mother.

32. His Honour was clearly aware of the position of the adult child, but took into account what the wife did by way of financial support for all of the children, including that adult child. His Honour is able to do that under s 75(2)(o) at the very least (see Palumbo & Mandel [2019] FamCAFC 228 at [54]- [62]; Lint & Lint [2011] FamCAFC 115 at [105]- [109], [183]; Zubcic & Zubcic [2019] FamCAFC 168; (2019) FLC 93-918 at [89]- [95]; Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51 at [40]- [41]).
33. There is no merit in this ground of appeal.

Ground 6

The learned trial judge made error of fact by finding that the “mother provides for the four children in all aspects.”

34. This is a ground of appeal without any substance.
35. The circumstance that some of the children are working does not demonstrate that in saying that the wife provides for the four children in all aspects, his Honour has made a material error of fact such that the appeal should thereby be allowed.
36. Indeed, I accept the submission of the wife that it was open on the evidence for his Honour to make this comment, and also when it is read in the context of the entire paragraph.
37. The evidence is that the wife had been the sole carer of the children since separation. They had a strained relationship with the husband, and they spent minimal time with him. Further, although the husband was assessed to pay $35 per week in child support, he was not complying with that assessment.
38. Plainly, the wife was financially responsible for the children, providing their accommodation, paying the mortgage and the utility bills, and otherwise supporting them.
39. In any event, even if the phrase “in all aspects” is not precisely correct, and is infelicitous, no material error is thereby demonstrated.
40. This ground of appeal fails.

Ground 7
The learned judge made an error of fact by finding that the Respondent Wife supports the children through university.

41. The subject of this ground is even less material than that of the previous ground.
42. I assume that no error would have been suggested if his Honour had said “TAFE” instead of “University”, given that two of the children were attending TAFE, and not University. For the point being made by his Honour, there is no material difference between the two, namely the wife was supporting them through their education.
43. That exemplifies the lack of merit in this ground of appeal, and I do not propose to say any more about it.

CONCLUSION

44. Having found no merit in any of the grounds of appeal, the appeal must be dismissed.

COSTS

45. At the conclusion of the hearing I received submissions as to the question of costs depending on the result of the appeal.
46. If the appeal was dismissed, the wife sought an order for costs in accordance with a Schedule handed up at the hearing. The total amount of costs sought was $22,302.74, comprising $13,346.40 for solicitor’s fees, and $8,956.34 for counsel fees.
47. The application was opposed by the husband on the basis that his financial circumstances were such that he could not afford to meet an order for costs. However, it was common ground that an order was made by the primary judge on 18 June 2019, that pending the determination of the appeal, paragraphs 1 and 2 of the orders the subject of the appeal be stayed, and, inter alia, the sum of $34,458.60 of the amount to be paid by the wife to the husband be held in his solicitor’s trust account. Thus, the wife submitted that that permitted an order for costs to be made.
48. The appeal has been wholly unsuccessful, and that is a circumstance which justifies an order for costs being made (s 117(2)), and there would seem to be no financial impediment to making such an order.
49. However, I am concerned at the amount of costs sought by the wife. I find it difficult to accept that given the nature of the appeal, and the fact that the husband is the respondent, that the solicitor’s costs could be as high as the amount claimed, and particularly when counsel has been briefed and has undertaken the work that he has. I am specifically concerned at the reasonableness of the claim for the costs of reading, as well as the time said to be spent by a lawyer, and also the time said to be spent by a clerk.
50. Although it is the policy of the Full Court to attempt to fix a lump sum to save the parties the time, trouble and expense of a taxation, as well as to save the valuable time of a registrar in conducting a taxation, the concerns that I have raised do not allow me to fix a lump sum, and there is no alternative but to provide for a taxation.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 9 April 2020.

Associate:

Date: 9 April 2020