· 2022-06-14T14:44:49+0000 · 664 posts

Wife Opposes Property Settlement Orders

Blandford & Esmore [2022] FedCFamC1A 67 (31 May 2022)

Property settlement orders were made dividing the property and superannuation of the parties 70 per cent to the wife, Ms Blandford (“the appellant”), and 30 per cent to the husband, Mr Esmore (“the respondent”). The appellant asserts that the primary judge failed to give adequate reasons and that the primary judge erred in assessing the contributions of the parties.

Facts:

The parties cohabited for over 18 years from early 1997 (when the appellant was 19 years old and the respondent 24 years old) until January 2016. During their relationship, they had four children, the eldest two of which are now adults. The youngest two children (twins) are now 15 years of age, live with the appellant, and spend time with the respondent each alternate week for a period of five nights and on special occasions in accordance with their wishes. At the time of the trial, the parties had assets of $284,502.83 (nearly $256,000 of which was the proceeds of sale from the home where they had been living together).

The parties also had superannuation of $340,523.78 (the appellant $247,613.78 and the respondent $92,910). The total combined value of their assets and superannuation was around $625,000. The appellant brought $118,000 to the relationship (from a personal injuries compensation payment), which was used in 2000 to purchase the home where the parties lived and raised their children.

The home was purchased by the appellant’s father (“the grandfather”), partly with the funds from the appellant’s compensation payment, partly with funds of the grandfather, and partly with funds borrowed by the grandfather. The parties made no repayments to the grandfather, nor did they meet the outgoings with respect to the property.

When the home was sold, the parties reached a settlement with the grandfather, which the primary judge found “recompensed” the grandfather “to his satisfaction” with respect to his assistance.

The appellant suffered mental health issues, including spending four weeks in CC Hospital in 2005 following a psychotic episode when she was diagnosed with schizophrenia, and towards the end of the relationship, she was diagnosed with borderline personality disorder.

During the relationship, the parties spent considerable funds on alcohol despite their straightened financial circumstances. Following separation in 2016, there were orders for shared care of the children on a week-about basis, which continued (save for a brief period in 2018 due to the appellant’s mental health issues) until January 2019, when the children commenced living with the appellant and spending time with the respondent.

On 15 November 2021, property settlement orders were made dividing the property and superannuation of the parties 70 per cent to the wife and 30 per cent to the husband. The appellant appeals on two grounds: first, that the primary judge failed to give adequate reasons, and secondly, that the primary judge erred in assessing the contributions of the parties. The third ground set out in the Notice of Appeal filed 26 November 2021, was not pursued by the appellant.

Issue:

Whether or not the appeal should be granted.

Applicable law:

Family Law Act 1975 (Cth) s 90SM(4)(a)–(c) - provide for an account to be taken of a “contribution”.

Antmann and Antmann (1980) FLC 90-908; [1980] FamCA 64 - provide that a “negative contribution” would be illogical, in that a negative or a loss is not a “contribution” but a taking or wasting. This has long been recognised as the law pursuant to the equivalent provision in s 79 of the Act.

Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148 - provides that a judge must provide adequate reasons for a decision.

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303 - provides that an “accounting” or “scoring” approach is necessarily flawed as it would not only require detailed actuarial calculations with respect to financial contributions (which would rarely be possible on the evidence generally available in property settlement cases), but it would still leave the significant problem of how to convert the qualitative factors in s 90SM(4)(b) and s 90SM(4)(c) of the Family Law Act 1975 (Cth) (“the Act”) to a quantitative value. As a result, such an “accounting” approach has been consistently disapproved.

Cobb & Simons [2011] FamCAFC 78 - where the primary judge did not address why a supervision order was for an unlimited period), or there is a logical inconsistency in the reasons (such as an acceptance of evidence that is contrary to the outcome.

Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429 - provides that it is important to consider superannuation separately from other assets.

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 - provides that it is not possible to minimise the “leap” from the qualitative to the quantitative by scoring each factor and then somehow calculating the total, as to do so would result in a process that is not a holistic assessment of the relevant matters.

Gorman & Huffman [2016] FamCAFC 174 - provides that the test will be satisfied where there is a failure of a primary judge to provide reasons for a particular finding.

House v The King (1936) 55 CLR 499; [1936] HCA 40 - provides that as the appellant has been unable to point to any specific error by the primary judge (such as acting upon wrong principle, taking irrelevant matters into account, failing to take relevant factors into account, or mistaking the facts), the appellant is left to argue that the outcome is “unreasonable or plainly unjust” in order to show that “although the nature of the error may not be discoverable ... a substantial wrong has in fact occurred”.

Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27 - discussed that the appellant’s contributions were more arduous as a result of the respondent’s domestic violence directed at her.

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 - provided that “[i]t is elementary that a party is bound by the conduct of his case” except in “the most exceptional circumstances”.

Roverati & Roverati (2021) FLC 94-027; [2021] FamCAFC 89 - asks whether the appeal court is able to “ascertain the reasoning upon which [a] decision is based”, or whether justice is “seen to have been done”, however it is the application of the test that is difficult.

Steinbrenner & Steinbrenner [2008] FamCAFC 193 - as “the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a ‘leap’ from words to figures”.

Analysis:

There is no room for complaint as to adequacy of reasons in cases where the primary judge has appropriately identified and understood the considerations relevant to contributions in a particular case, and then struck a percentage assessment, as there is simply no more that can be said (beyond unnecessarily fulsome qualitative descriptions, which would not address the appellant’s complaint in any event). The primary judge identified and discussed each of these factors before expressly taking them into account in determining the contributions assessment; the summary of the factors (set out in [271] and quoted above) follows extensive consideration of the underlying facts and circumstances. While the appellant argues that the reasons are inadequate to explain why the contributions percentage determined by the primary judge would also be applied to the parties’ superannuation, in this case, there was no evidence of any significant disparity in the superannuation of the parties when entering into the relationship, nor was that likely given their ages at the time, and both parties engaged in homemaking and employment at different times. The earnings of the parties in this case were expressly taken into account by the primary judge.

Conclusion:

The appeal is dismissed. The appellant is to pay the respondent’s costs fixed in the sum of $2,000.

#PropertySettlement

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