FAMILY COURT OF AUSTRALIA. FIELDS & SMITH [2015] FamCAFC 57

Transcription

1 FAMILY COURT OF AUSTRALIA FIELDS & SMITH [2015] FamCAFC 57 FAMILY LAW APPEAL PROPERTY CONTRIBUTIONS Where the appellant argued that the trial judge s findings as to contributions were inconsistent with his rejection of a class of cases involving special contributions and therefore the adequacy of his Honour s reasons was in doubt Where the majority found merit in this complaint and confirmed there is no binding rule of special contributions Where the appellant also argued that the trial judge relied on a table of Comparable Cases which led him into error because it contained a range of outcomes that acted as an apparent fetter on his discretion Where the majority accepted that argument and held that the trial judge s apparent reliance on the table constituted taking an irrelevant matter into account Where the majority also held that the result of the trial judge was consequently manifestly unjust Appeal allowed Order for the respondent to pay the appellant s costs. FAMILY LAW CROSS-APPEAL PROPERTY CONTRIBUTIONS SECTION 75(2) Where the cross-appellant argued an assessment as to 60 per cent in his favour as to contributions should have been the trial judge s starting point Where the cross-appellant also argued the trial judge erred in not making a s 75(2) adjustment in his favour Where the Full Court rejected both arguments Crossappeal dismissed Order for the cross-appellant to pay the cross-respondent s costs. FAMILY LAW APPEAL PROPERTY RE-EXERCISE Where the Full Court held it was just and equitable to make an order for property settlement Where the Full Court found equality of contributions pre-separation by the parties Where the Full Court found the assets of the parties did not alter post-separation due to the efforts of either party Where the Full Court considered changes in the role of the wife as parent and homemaker post separation and held the changes did not reduce her entitlement to an equal division of the property Where the Full Court held there should be equal distribution of the parties assets. Family Law Act 1975 (Cth) Allesch v Maunz (2000) 203 CLR 172 Bevan & Bevan [2013] FamCAFC 116 Bolger & Headon [2014] FamCAFC 27 Bulleen & Bulleen [2010] FamCA 187 De Winter & De Winter (1979) FLC Dickons & Dickons [2012] FamCAFC 154 Fox v Percy (2004) 213 CLR 118 [2015] FamCAFC 57 Coversheet and Orders Page 1

2 Gronow v Gronow (1979) 144 CLR 513 Hoffman & Hoffman [2014] FamCAFC 92 House v The King (1936) 55 CLR 499 Kane & Kane [2013] FamCAFC 205 Lovine & Connor and Anor (2012) FLC Mallet v Mallet (1984) 156 CLR 605 Nemeth & Nemeth (1987) FLC Norbis v Norbis (1986) 161 CLR 513 Stanford v Stanford (2012) 247 CLR 108 Steinbrenner & Steinbrenner [2008] FamCAFC 193 W & W (1997) FLC Waters & Jurek (1995) FLC APPELLANT/CROSS-RESPONDENT: RESPONDENT/CROSS-APPELLANT: Ms Fields Mr Smith FILE NUMBER: BRC 4610 of 2009 APPEAL NUMBER: NA 73 of 2012 DATE DELIVERED: 17 April 2015 PLACE DELIVERED: PLACE HEARD: JUDGMENT OF: Brisbane Brisbane Bryant CJ, May and Ainslie-Wallace JJ HEARING DATE: 26 November 2013 LOWER COURT JURISDICTION: Family Court of Australia LOWER COURT JUDGMENT DATE: 6 July 2012 LOWER COURT MNC: [2012] FamCA 510 REPRESENTATION COUNSEL FOR THE APPELLANT/CROSS- RESPONDENT: Mr Richardson SC with Mr Baston and Mr Gordon [2015] FamCAFC 57 Coversheet and Orders Page 2

3 SOLICITOR FOR THE APPELLANT/CROSS-RESPNDENT: COUNSEL FOR THE RESPONDENT/CROSS-APPELLANT: SOLICITOR FOR THE RESPONDENT/CROSS-APPELLANT: Lynn & Rowland Lawyers Mr Kirk QC with Ms Black McCowans Specialist Lawyers [2015] FamCAFC 57 Coversheet and Orders Page 3

4 ORDERS IN RELATION TO THE APPEAL (1) The appeal be allowed. (2) Order 1 of the orders made by the Honourable Justice Murphy on 6 July 2012 be set aside. (3) In lieu of those orders, it is ordered that each of the husband and the wife do all such things and sign all such documents as might be necessary so as to effect an overall division of property and superannuation interests of the parties or either of them, as set out in the table at [154] of the Reasons published together with these orders, in the proportion of 50 per cent to the husband and 50 per cent to the wife. (4) The parties shall, within 10 days of the date of these orders, jointly file a minute of proposed orders providing for variation of the orders of 17 September 2012 to give effect to paragraph (3) of these orders. (5) The husband pay the wife s costs of the appeal as agreed or as assessed. ORDERS IN RELATION TO THE CROSS-APPEAL (6) The cross-appeal be dismissed. (7) The husband pay the wife s costs in relation to the cross-appeal as agreed or as assessed. IT IS NOTED that publication of this judgment by this Court under the pseudonym Fields & Smith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). [2015] FamCAFC 57 Coversheet and Orders Page 4

5 THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE Appeal Number: NA 73 of 2012 File Number: BRC 4610 of 2009 Ms Fields Appellant/Cross-Respondent And Mr Smith Respondent/Cross-Appellant REASONS FOR JUDGMENT BRYANT CJ AND AINSLIE-WALLACE J 1. Before the court is an appeal by Ms Fields ( the wife ) and a cross-appeal by Mr Smith ( the husband ) against property settlement orders made by Murphy J on 6 July By her amended notice of appeal filed on 29 April 2013 the wife also appeals consequential orders made by consent before Murphy J on 17 September 2012 which provided for the details of the division of the parties property. 2. The orders of 6 July 2012 relevantly provided for a division of the property of the parties as to 60 per cent to the husband and 40 per cent to the wife. The key issue at trial, and on appeal, was the assessment of the parties respective contributions and subsequent percentage entitlements to property, particularly their shareholding in Y Pty Ltd, a construction business they started together, and in the former matrimonial home. 3. The gravamen of the wife s appeal is that the trial judge erred in providing for the wife to have 40 per cent of the parties property. The wife asserts that a proper exercise of the discretion should result in her receiving 50 per cent of the parties property. 4. By his cross-appeal the husband asserts error on the part of the trial judge both in relation to the assessment of contributions and by failing to make any adjustment in favour of the husband in accordance with s 75(2) of the Family Law Act 1975 (Cth) ( the Act ). The husband submits on appeal, as he did at [2015] FamCAFC 57 Reasons Page 1

6 trial, that a proper exercise of the discretion should result in him being awarded 70 per cent of the assets and the wife 30 per cent. 5. Senior counsel for both parties submitted to us that if the appeal or cross-appeal were successful, this court could re-exercise the discretion rather than remitting the matter for rehearing and ought to do so. 6. After providing a brief background and outlining the trial judge s reasons for judgment, we will first discuss the wife s appeal before moving to discussion of the husband s cross-appeal. BACKGROUND 7. The background emerging from the uncontested material filed by the husband and wife and the unchallenged findings of his Honour details the acquisition of the parties current assets and wealth in the context of their 29 year marriage. 8. As the business of the parties assumed such significance in the case it is important to trace its development throughout the marriage. 9. The husband and the wife were respectively 54 and 51 years of age at the time of trial. The husband left school when he was 15 to commence a carpentry apprenticeship and the parties married in February 1979 when the husband was 21 and the wife It is common ground they started with very little, the husband owning a block of land on which he had built a home with borrowed funds. Neither party contended at trial that that asset should have any effect on the ultimate property settlement after 29 years of marriage. The parties resided on the central coast of New South Wales. Shortly after the marriage the wife was injured and received a compensation payment of $17,500 which was used to pay off their debts. The husband commenced a course so as to obtain a construction industry licence and initially worked as a contractor for well-known construction firms. 11. The parties first child was born about 16 months after their marriage and the wife was engaged as a homemaker and parent. 12. In addition to his full time work the husband built a home for the parties and thereafter built a new home on average every two years until the parties moved to the Gold Coast in 1990, approximately 11 years after their marriage. Their second child was born in 1982 and their third child in Whilst the husband was engaged in his work and the construction of their homes, the wife was fully engaged as a homemaker and parent. The capacity of the husband to use his skills as a tradesman to construct homes and sell them enabled the parties to acquire a capital base so that when they moved to the Gold Coast in 1990 they were able to commence their own construction company, Y Pty Ltd, with the capital they had acquired. The capital derived from the sale of their [2015] FamCAFC 57 Reasons Page 2

7 home was contributed to the business as the basis for its funding and the parties lived for some time in rental accommodation. 13. The business which formed the Y Group was an exceedingly successful construction business in which the husband was the driving force (an unchallenged finding by the trial judge) but in which the wife was also involved directly in relation to some of the aspects of the business, and also as a director and shareholder. 14. In 2006 the husband and wife agreed to sell some of their shares to four employees who had become important to the business and who they wished to retain for the benefit of the future of the business and its succession. As a result of this arrangement the husband and wife reduced their shareholding from 100 per cent to 84 per cent. 15. Also in 2006 the parties began to purchase land in suburb T and on a portion of that land they commenced construction of the former matrimonial home. At the time of separation the construction of the former matrimonial home had not been completed. The wife completed the interior décor and furnishings after separation. 16. In April 2008 the parties separated and they were divorced in June The marriage broke down as a result of the husband meeting and establishing a relationship with his new wife who then lived in Country Z. The import of this on the proceedings is that from around 2007 the husband started to spend time out of Australia in Country Z. 18. Following the separation the wife was unwell for a significant period and this impacted on her capacity to attend directors meetings, although she appointed alternates for the meetings that she was unable to attend. 19. The husband remarried in 2009 and a child of that relationship was born in At the time of hearing the children of the parties were all adults (aged 31, 30 and 25 respectively). They were self-supporting and were all working in the business. 21. The success of the business is reflected in the value of the assets of the parties. At trial there was some disagreement between the parties as to the value of some of the assets but in the end his Honour found it unnecessary to resolve these differences, nor was he asked to do so, because either assets were to be sold or alternatively, in the case of the company, the shares were to be retained. Ultimately his Honour found that the net assets of the parties had a value of between $32,321,000 and $39,816,000. [2015] FamCAFC 57 Reasons Page 3

8 22. Of those assets the shares in the two companies forming the Y Group were valued at between approximately $21,800,000 and $29,600,000. His Honour recorded: 33. It will immediately be appreciated that the retention by each of the parties of significant shareholdings in entities which continue to generate very significant revenue and which intend operating into the foreseeable future is not, in the usual course of events, what might be contemplated as compliance with the duty imposed upon the Court by s 81 of the Act. Yet, other orders are likely to bring about the ruin (or effective ruin) of the asset that represents the single biggest manifestation of 33 years of hard work and contributions by each of the parties. Neither party desires that, and understandably so. I am satisfied that the retention of the joint 84 per cent shareholding by the parties is, as they contemplate, appropriate. (footnote omitted) 23. No issue was raised on appeal which disputes his Honour s findings about the value of the business or other assets. THE APPEAL Grounds of appeal 24. The wife s grounds of appeal as contained in her amended notice of appeal filed on 29 April 2013 are as follows: Assessment of Contributions and s. 79(2) 1. His Honour s approach to the determination of the Appellant s entitlement constituted both an error of principle and a miscarriage of discretion in the implicit prejudice to the party performing the long term homemaker and parent role in that: Adequacy of Reasons 1.1 he failed to recognise that, during what he found to be a partnership in a long marriage, it was implicit in the homemaker and parent role that as the children grew older the reduction and ultimate cessation of roles intrinsic in their care was an obvious consequence; and, 1.2 where the parties had agreed and committed to a division of roles it was inherently unjust and unfair to devalue the contribution to the marital partnership of the party fulfilling the homemaker and parent role (typically, as here, the female performs the homemaker and parent role), as such an approach leaves women with an unfair burden in the economic consequences of role division during marriage. [2015] FamCAFC 57 Reasons Page 4

9 2. His Honour erred in principle by failing to provide adequate reasons: Contributions 2.1 that enabled an understanding of the relevant factual marital and financial history and findings in relation thereto that constituted the evidence he relied upon for his findings as to contributions; 2.2 if it be inferred that he concluded that evaluation of the respective contributions of the parties prior to separation resulted in a conclusion that favoured the Respondent then reasons that enabled an understanding of the nature and terms of his conclusions that otherwise enabled an understanding of the evidence and conclusions as to weight that led to that outcome (which was central to the dispute before him); 2.3 that enabled an understanding or identification of the evidence relied upon in reaching the factual conclusions expressed as to the post separation contributions of the Respondent in particular those relating to the Respondent s stewardship of the business; 2.4 that enabled an understanding of what facts he was relying upon in concluding that the Respondent was responsible for the stewardship of the business in the period subsequent to the separation of the parties; 2.5 that enabled an understanding of what post separation contributions of the Appellant he had taken into account in assessing the relative contributions of the parties in that period; 2.6 that enabled any understanding of how, and what factors, he took into account as a result of consideration of the table of outcomes described as Quantification of Contributions Comparison with Other Cases; 2.7 that enabled any understanding of the reasons for his conclusion that as to disputed facts concerning the nature and extent of the Appellant s role in the business that the respondent s evidence is the more reliable; 2.8 that enabled any understanding of his reasons for concluding that the consideration of other factors did not warrant any adjustment, in particular, in favour of the Appellant; 2.9 for his conclusions as to contribution findings. [2015] FamCAFC 57 Reasons Page 5

10 3. His Honour erred in principle and misdirected himself when embarking upon an assessment of the contributions of the parties by considering those contributions in a setting unauthorised by the Act in that they were considered having regard to The Nature, Form and Characteristics of the Property and in doing so he adopted an approach which placed undue emphasis upon contributions being directed to or having a nexus with particular property. 4. His Honour s discretionary decision miscarried as a result of failing to take into account relevant facts in the process of assessing and evaluating the post separation contributions of the parties namely: 4.1 evidence of the limited physical participation that the Respondent was maintaining in the business; 4.2 the lack of evidence proffered by the Respondent as to his own participation in the conduct and direction of the business as opposed to the independent directors; 4.3 the absence of evidence called from the independent directors; 4.4 in the context of the performance of the business in a difficult financial climate, the evidence that trading results had diminished, the absence of comparative evidence of trading impact on other businesses in the industry or any other evidence by which he could conclude anything relevant about performance (including its relative prosperity ) let alone attribute the result to the Respondent; 4.5 [t]he absence of evidence as to the value of the business at separation as opposed to the date of hearing. 5. His Honour erred in fact in reaching the factual conclusions expressed in paras. 65 and 66 of his reasons as the foundation was unsupported by the evidence for reasons including those expressed in ground 4.4 above. 6. In the event that it be concluded that the disparity in contribution assessment as determined by his Honour of 20 per cent is referable wholly to post separation contributions, then it is an assessment which on the whole of the evidence is manifestly unjust. 7. His Honour s discretionary decision miscarried in the approach that he took to the evaluation of other factors, being the matters in s. 79(4)(d) to (g), in that he: 7.1 erred in failing to conclude that a proper evaluation of the factors overall should result in an adjustment in favour of the Appellant, in particular in the context of contribution findings which, on the approach taken to valuation [resulted [2015] FamCAFC 57 Reasons Page 6

11 in] a disparity between the parties of between $6.4 million and almost $8 million; 7.2 erred in principle in his approach to individualised consideration of each factor considered in determining whether an adjustment was called for rather than considering all and [then] considering and evaluating all in their totality and then reaching a conclusion as to whether an adjustment was appropriate; 7.3 failed to consider facts that were relevant to each of sections 79(4)(d) and 75(2)(g), (j) and (k). A Manifestly Unjust Result 8. His Honour s discretionary decision miscarried in that the result embodied in his order was plainly wrong and manifestly unjust. 25. In written submissions, senior counsel for the wife grouped the grounds of appeal in the following way: Grounds 1, 3, 4, 5 and 6 Contributions Ground 7 Other factors Ground 2 Adequacy of reasons Ground 8 Manifestly unjust result 26. In oral argument before us senior counsel for the wife contended that there were eight central matters that required consideration and identified them as follows: 1. The husband s post-separation contributions. 2. The husband s post-hearing contributions (agitated by the husband s cross-appeal). 3. The diminishing role as homemaker and parent as the children grew older. 4. The adequacy of reasons supporting his Honour s apparent conclusion about contributions at the date of hearing. 5. The adequacy of reasons supporting his Honour s conclusion in relation to the overall assessment of contributions. 6. The use of a table of so-called comparable cases. 7. Section 75(2) and other factors. 8. Overlapping with others, why, on an analysis of his Honour s reasons, and on findings he made, was a disparity of between $6.5 million and $8 million warranted on the basis of contributions after a 29 year union? [2015] FamCAFC 57 Reasons Page 7

12 Grounds 1, 3, 4, 5 and 6 Contributions and Ground 2 Adequacy of reasons 27. Before discussing the submissions which were directed to these grounds in detail, it is useful to summarise their thrust. Put simply, it is that his Honour s findings about contributions, particularly by the wife but comparably by both the husband and the wife, in parts of his reasons for judgment are in conflict with other findings in other parts of his reasons, and thus their adequacy is in doubt. 28. The complaint agitated by senior counsel for the wife is directed to the fact that his Honour drew conclusions which were consistent with some findings but not with others, and that his Honour did so without: explaining how the apparent inconsistency with other findings was resolved; and without a proper evidentiary foundation. 29. These issues, it was submitted, permeate the findings that his Honour made in relation to both the pre-separation contributions and the post-separation contributions. It was further submitted that they are compounded by the apparent reliance by his Honour on a table of comparable results, which, it was argued by senior counsel for the wife, impermissibly fettered his Honour s otherwise wide discretion. 30. Expressed in terms of principle, the wife s challenge in these grounds is premised on the assertion that his Honour s assessment of contributions and s 79(4)(e) adjustments, or in this case failure to adjust for those matters, is unreasonably or plainly unjust (see House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ) or plainly wrong (see Gronow v Gronow (1979) 144 CLR 513 at 519 per Stephen J). 31. That is, each result lies outside the parameters of a discretion which is extraordinarily wide and which parameters mark out the boundaries within which reasonable minds might differ as to the result without appealable error (see De Winter & De Winter (1979) FLC at 78,092 per Gibbs J and Norbis & Norbis (1986) 161 CLR 513 at 540 per Brennan J). 32. Finally, within these grounds, the question arises as to the weight to be given to the role of parent and homemaker in a long marriage after separation and when the children have left home and the role, of necessity, changes. Here it is contended to be a gender issue, whose effect will mainly be directed to women, and as an issue of fact relating to failure by the trial judge to consider the husband s changed role as well. 33. Before discussing further the wife s arguments in support of these grounds it is necessary to set out how his Honour dealt with contributions. [2015] FamCAFC 57 Reasons Page 8

13 Trial judge s reasons for judgment in relation to Grounds 1, 2, 3, 4, 5 and 6 and discussion 34. His Honour commenced his reasons for judgment by observing that the issue which divided the parties was the quantification of the respective contributions made by each of them throughout the course of the relationship (at [4]). His Honour then noted: 4. Each concedes that the other has made significant contributions. But, the evidence reveals that those significant contributions which, it is conceded by each, were exemplary were made predominantly (but, it ought be noted, not exclusively) within differing spheres [see Mallet v Mallet (1984) 156 CLR 605 at 636] and that each of them played different roles within each other s sphere. Each party agrees that the wife s predominant contributions have been directed to the home, children and family and that the husband s predominant contributions have been to the business. However, as might be thought unsurprising in the context of a functional 29-year relationship, each party asserts contributions of significance outside of their sphere and within the other s sphere. (footnote omitted) 35. Importantly, in our view, his Honour then said: 5. Although, as will be seen, there are disputes between the parties about the nature of specific contributions each has made to the other s sphere as broadly just described, in my assessment those disputes are all, in the scheme of things, minor; the gravamen of what divides the parties in these proceedings is an assertion by the husband that his contributions should be seen as special or unique or out of the ordinary and an assertion by the wife that the wealth of the parties, of whatever type and however described, is as a result of an economic, domestic and emotional partnership such that it is unjust or inequitable to distinguish between their contributions. (emphasis added) 36. His Honour then explained that the issue described in [5] resulted in the husband contending that contributions should be assessed as to 70 per cent to him and 30 per cent to the wife, and that the wife contended that the respective contributions of the parties should see the property divided equally. 37. His Honour then discussed what he described as the issue of Special Contribution or Special Skills which formed the basis of the husband s submission that his contributions should be given significantly greater weight [2015] FamCAFC 57 Reasons Page 9

14 than those of the wife. His Honour dealt with various authorities and concluded: 20. the Court s task is not to assess the evidence with a view to arriving at a finding as to whether a party is possessed of, or has exercised, special skill or special talents with the result that such a finding is productive of a particular finding, or range of findings in respect of contribution. To approach the matter in that way is to fetter the extraordinarily wide discretion inherent in the section. (footnote omitted) 38. His Honour then dealt with what might be seen to be submissions made on behalf of the wife, using the terminology marriage partnership, saying: 21. Similarly, the use of an expression such as marriage partnership is convenient as a descriptor both of what is an axiomatic component of marriage and of what earlier authority has recognised within the context of s 79. It is also convenient as a reminder that the parties to a marriage in particular a long marriage contribute to it (as s 79 specifically recognises) in a miscellany of different ways which, taken together, make up the union. It is also convenient as a reminder that non-direct or home-maker contributions are to be given the real weight which authority demands. 22. But, the marriage partnership, too, is not found in terms within s 79 and nor is the Court s task to arrive at that finding so as to be a pointer to a particular result or range of results. (footnotes omitted) 39. After discussing the authorities further his Honour said: 25. But, none of those expressions (or categorisations) can be found within s 79. Nor can any guidance be found within the section as to how, or to what extent, any case that might meet any such description should be treated by comparison with a case that does not meet any such description. 26. Whilst some assistance may be rendered by the use of expressions such as special skills or special or extraordinary contribution, in my view, the use of such expressions are apt to mislead and to obscure, rather than illuminate, the task at hand. The real danger lies in the promulgation of a notion that, by establishing special contribution or special skills whatever the expression, or the indicia comprising any such expression might be said to be a result of a particular type, or a particular range, should follow. That is an improper fetter on an extraordinarily wide discretion. It smacks of a presumption antithetical to what the section requires. [2015] FamCAFC 57 Reasons Page 10

15 (emphasis in original) 40. His Honour identified the task at hand as being to look at the nature, form, characteristics and origin of the property comprising the property of the parties or either of them, the nature and form of the matrimonial partnership and then to: 29. identify the nature, form, characteristics and extent of the contributions made by each of the parties by reference to the subparagraphs of s 79(4) of the Act in effect to identify each and all of those contributions of varying types and extent and compare them. 41. His Honour then set out to what is now an oft cited passage by Coleman J in Steinbrenner & Steinbrenner [2008] FamCAFC 193: 234. Given that 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. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case 42. It will be clear from the passages that we have referred to that his Honour rejected an argument that there was a particular type of contribution that related to special skills or special talents, with the result that such a finding is productive of a particular finding, or range of findings in respect of contribution. Full Court decisions have supported that view (see Kane & Kane [2013] FamCAFC 205, Hoffman & Hoffman [2014] FamCAFC 92) and the jurisprudence can be fairly said to be settled. In particular, the Full Court in Hoffman said: 52. In each case, we consider that the point being made is that there is no principle or guideline (or indeed anything else emerging from s 79), that renders the direct contribution of income or capital more important or special when compared against indirect contributions and, in particular, contributions to the home or the welfare of the family (emphasis in original) 43. If it is necessary to make the point again, and to highlight it for the purpose of this appeal, we add our endorsement to what has been made clear in the authorities referred and to the Full Court s comments in [52] of Hoffman, that the words of s 79 do not provide endorsement for any category of contribution related to any class of property (for example, high wealth) being, by virtue of that category or class, more valuable or important that another. In each case the [2015] FamCAFC 57 Reasons Page 11

16 contributions made by the parties must be evaluated in the context of the facts particular to that case. 44. In relation to the nature of the matrimonial partnership his Honour said: 45. There is little doubt on the evidence before me that this particular marriage partnership involved the practical union of both lives and property to which Deane J refers in Mallet. More particularly, it is a practical union that subsisted for nearly 30 years. The degree to which parties individual aspirations, needs and desires merge into their married union can, in the usual course of events, be seen to be much greater in a marriage of that duration and, in my judgment, that is true of the union here. 46. As will be seen, the parties jointly invested and, crucially, reinvested in the business. As the business grew from its fledgling beginnings and became more successful, the family moved from home to home with all that implies, particularly when children are young. In 1990, with three children aged 10 years and younger, the parties jointly agreed to relocate the family to the Gold Coast so as to take advantage of perceived opportunities there for a business of the type conducted. 47. The business projected itself in all of its marketing (and still does) as a family business. Indeed, as can be seen from, for example, Exhibits W2, W3 and W4, that is an integral component of its marketing strategy, part of what is said to distinguish it from other [construction companies] and an integral component of its reliability, longevity and trustworthiness. The wife worked within the business and, more recently, the parties adult children are also employed by the business. 48. The fact that, at the end of this 29-year marriage, the parties wealth is so inextricably tied up in their equal shareholding in the corporations which run the business so as to warrant the preservation of the joint holding is a tangible example of the extent to which two individual lives have merged into a marriage partnership with a commercial manifestation. 45. His Honour then went on to consider the contributions of the parties under the heading The Nature and Form of the s 79(4) Contributions. We note here that later in his reasons for judgment his Honour looks at contributions under the heading, Post-Separation Contributions, so it appears, as senior counsel for both parties agreed, that the first part of consideration of contributions related to the period up to separation. 46. At the beginning of his consideration of the s 79(4) contributions his Honour noted that: [2015] FamCAFC 57 Reasons Page 12

17 49. In material terms, the parties started with little. They resided on the central coast of New South Wales and at the time of the marriage the husband had modest equity in real property; he owned a block of land and had built a home upon it with borrowed funds. Shortly after marriage, the wife was injured and received a compensation payment of $17,500 which, she deposes, was used to pay off all of our debts and with the balance to pay off some of my mother's debts.... The husband, who was a [tradesman], commenced a course so as to obtain a [construction industry] licence after the marriage. The wife was [unskilled worker] and continued that work for about six months until suffering the injury that led to the aforementioned compensation payment. The parties first child was born about 16 months after the parties were married. 50. The husband commenced work as a [contractor] working for well-known [construction] firms. The wife was engaged as a home-maker and parent. 51. It is submitted on behalf of the husband that his second job at weekends was building the parties next home and, thereafter, building a new home on average every two years until the parties moved to the Gold Coast in 1990 (that is to say about 11 years after the parties married) 47. His Honour then noted that this was a direct contribution by the husband and that his efforts were all consuming. 48. His Honour then found that the wife s obligations as parent and homemaker for three children who, by the time they moved to the Gold Coast were aged 10, 8 and 3, were increased by the fact that wife had a marriage partner whose undoubted hard work left him with virtually no time at home. His Honour found that, on any view, the wife was overwhelmingly responsible for the home-making and parenting role during this time. She received, concomitantly, very little, if any, assistance from a marriage partner who had little time at home to do [anything] other than sleep. (at [51]) His Honour also found that the husband and the wife s respective contributions were made in circumstances whereby the family were moving from home to home on average every two years with, consequentially, little opportunity to establish a stable base and with all of the difficulties attendant upon moving home. (at [52]) 49. His Honour also noted that the parties respective contributions: 53. enabled capital belonging to both of the parties to be both reinvested in the properties that were built from time to time and which permitted the accumulation of approximately $110,000 which, I gather, provided the capital foundation for the building business on the Gold Coast. [2015] FamCAFC 57 Reasons Page 13

18 50. His Honour found that the later reinvestment of profits within the business provided for its future growth and regarded that as a significant contribution by both parties. (emphasis in original) 51. His Honour said then said: 54. neither of the parties suggest that the respective contributions of the other within their respective primary roles the wife as a homemaker and parent and the husband as a bread-winner were anything other than exemplary 52. At [55] his Honour noted that the husband sought to limit the contributions made by the wife to the business and that the nature and extent of those contributions was the subject of evidence and some criticism during the trial. He observed that there was a disparity between the parties as to the extent of the wife s role in this business and said I consider the husband s evidence is the more reliable. However, his Honour added the caveat that it seemed to him that any differences as emerge from a resolution of those specific factual issues, matters little. His Honour explained this to mean that: 56. More important in my view is that the submissions on behalf of the husband ignore, as it seems to me, the fact that the wife was, at all times, an equal shareholder and a director of the corporations forming the business. The husband contends that he was the driving force both intellectually and otherwise behind the business in the sense of managing its day-to-day affairs, designing [buildings] for construction and sale, and placing the business strategically so as to enable it to become the very successful business which it undoubtedly has been and is. I accept that to be the case and his contributions in that respect are plainly very significant. 53. Important, in our view, to the submissions by the wife in this appeal, his Honour then went on to say: 57. However, the wife s contributions are, in my view, not limited to those which the husband contends. Capital to which the parties were each entitled formed the foundation for the commencement of the home building and later when it became a business, including one with a corporate structure. The husband and wife have had an equal shareholding in the business since its inception (and still do) and, accordingly, an equal investment in it. It was their joint investment which was, over the business s life, re-invested within it and which permitted its continued operation in the manner in which it did. 58. In that respect, it is contended on behalf of the wife, I think correctly, that the parties made a joint, and equal, contribution by reason of their participation as shareholders and directors in so far as decisions saw the income or assets of the company not being [2015] FamCAFC 57 Reasons Page 14

19 diverted in any significant measure outside of the business; the wealth of this marriage is represented overwhelmingly by the business and by [the former matrimonial home], which became the parties home. The joint contribution of the parties, as shareholders whose capital was invested in the business, and as directors whose decisions affected the business, should in my view be seen as a significant joint contribution and, in that respect, I see no reason to distinguish between the contribution made by the husband and that made by the wife. (emphasis added and footnote omitted) 54. His Honour then went on to deal briefly with the husband s contention that he had been responsible for the handcuffing of key personnel to ensure that they were retained by the business by providing them with incentives and shareholdings. His honour noted that in so far as the wife was concerned: 59. to effect the purchase of shares by the current minority shareholders, security of about $4.8 million was required which, in turn, required the co-operation and participation of the wife as a director and shareholder of the relevant corporations Securing that cannot be seen as anything other than a significant contribution by both parties and a contribution where, again, it is in my view not possible to distinguish between the roles of the parties. (emphasis added) 55. His Honour continued: 60. It is possible to mount an argument, as is sought to do be done here, that it was only one of the joint shareholders and directors (here, the husband) who made the strategic decisions of importance to the profitability and growth of the company on a day-to-day basis. But, there are two parts to any and all such decisions: arriving at them and implementing them. Even if the wife played little active part in the former, the same cannot in my view be said of the latter. An important tangible example is that the ceding of the 16 per cent shareholding to others required, of itself, the wife s co-operation and participation. 56. His Honour gave as an example of this, that the company s marketing had always sought to emphasis the stability of the company as a family company and said: 62. As has been seen, the stability of the company and its status as a family business is, as the husband acknowledges, crucial to its marketing which, in turn, plays a significant role in its success. The practical union in this marriage partnership has played a significant part in both the stability of the company and its marketing strategy. Again, I can see no reason to distinguish [2015] FamCAFC 57 Reasons Page 15

20 between the contributions of the husband and the wife in that respect. (emphasis added) 57. Acknowledging what has been raised in a number of previous cases as to the role of homemaker and parent, his Honour said: 63. A contribution by one party in the role of home-maker and parent and to the welfare of the family more generally that allows the other party to their union the physical and mental space to pursue income and capital generation is, in my view, an often-neglected, yet extremely important contribution. I consider that this is what occurred in this particular marriage; the former contribution being made by the wife so as to allow the latter contributions by the husband. Again, I do not consider the one to be more or less important (or valuable ) than the other. (emphasis added) 58. Moving then to the submissions on behalf of the husband before the trial judge which emphasised a number of different aspects which were said to be his very significant contributions and to serve as points of distinction between the contributions of each of the parties within the business, his Honour, other than to state them, made no findings. His Honour concluded: 64. It is accepted, I gather, by both parties that the global financial crisis and other macro-economic conditions have had a significant adverse impact upon the business. The reduction in turnover and profit post-gfc has been significant but, in very adverse conditions, the company can be seen to have remained relatively buoyant. 59. His Honour then seems to sum up the husband s submissions: 65. I have little doubt that the husband has been, as between he and the wife, the party who has had the stewardship of the business during the significant periods of its growth and particularly through the recent very difficult economic times. There can, I think, be little doubt that the stewardship by the husband of the business in the sense just described constitutes a very significant contribution on his part. I consider that his contribution in that respect has been an extremely important factor in its continuing (relative) prosperity in the face of extremely adverse macro-economic conditions. 60. His Honour then concludes: 66. I consider that, as between the husband and the wife, the husband has been primarily responsible for the various decisions taken by the corporate structure constituting the business (noting that, since 2006, that has occurred with input from directors other than the [2015] FamCAFC 57 Reasons Page 16

21 wife). I consider this to have been a very significant contribution on his part. 67. The business has, on any view, been remarkably successful Again, I consider that the very significant growth in this very successful business is due in no small part to the business acumen and skill exhibited by the husband. I consider the contribution of the husband s business acumen, skill and talents to have been significantly greater than that of the wife. 61. Having made those comments, his Honour then went on to weigh up the wife s contributions as against those of the husband to which he had referred and said: 68. The wife argues that her contribution to the family is significantly greater than that of the husband. I accept that argument. I cannot see how the husband s dedication to, and work within, the business, including the thinking and planning in relation to it, was anything other than all-consuming. I do not suggest that the husband s contribution to the welfare of the family has been negligible, but I regard it as nowhere near as significant as that of the wife. 62. His Honour then went on to deal separately with post-separation contributions for the four year period between separation and the hearing. Pausing at the end of [68], as senior counsel for the wife submitted that we should, it was submitted that the reader of the trial judge s reasons to that point would be entitled to understand that his Honour had found: 1. That the nature of the matrimonial partnership was in every sense a practical union of both lives and property in which the husband s main sphere of contribution was to the business and the wife s main sphere of contribution was as parent and homemaker, but that nevertheless the wife worked in the business and, importantly had legal commercial interests in it; 2. That any differences between the parties as to what role the wife had in the business meant little to the overall assessment of contributions; 3. The wife s contributions by way of having a commercial interest as a director and shareholder of the company and by being involved in certain corporate decisions was a significant contribution; 4. The marketing of the company as a family business was important to its success and there was no basis to distinguish between the contributions of the husband and the contributions of the wife in that respect; 5. The wife s role as primary homemaker and parent enabled the husband to have the physical and mental space to pursue income and capital generation and this contribution was no more or less important than the contributions of the husband; [2015] FamCAFC 57 Reasons Page 17

22 6. As between the husband and the wife, the husband was the party who had the stewardship of the business during the significant periods of its growth and through difficult economic times, and that this was a significant and important contribution; 7. As between the husband and the wife, the husband was primarily responsible for the various decisions taken by the corporate structure which was also a significant contribution; 8. The contribution of the husband s business acumen, skill and talents were greater than those of the wife; and 9. The husband s contribution to the welfare of the family was not negligible but nowhere near that of the wife. 63. Senior counsel for the wife contends on appeal that, having regard to all of his Honour s findings up to the end of [68] (which must by inference encompass all of the contributions up to separation by virtue of the heading Post- Separation Contributions which immediately follows it), his Honour s reasons should be read as concluding that the parties had made equal contributions to the acquisition, conservation and improvement of their property. 64. Senior counsel acknowledged that there was no obligation on a trial judge assessing contributions in a holistic way to divide the marriage into various time frames, nor to make findings as to contribution in relation to each period. However, in view of the overall finding of inequality of contribution which favoured the husband, senior counsel for the wife submitted that up to this point: The language he adopts and the explanation of principle he provides and the way his Honour crafts that leaves clearly the suggestion that any reader would understand that s the assessment [being equality] that he has made. Although their contributions are very different, they were nonetheless very important and comprised total devotion by each. (Appeal transcript, 26 November 2013, p 6) 65. We agree with senior counsel s submission that whilst his Honour was not obliged to make a finding of the parties respective contributions at the date of separation, the language used up to that point in the judgment makes it difficult to infer that his Honour had something other than equality of contributions by each of the parties in mind. If he had something else in mind, such as that the husband s contributions should be given more weight, then he did not make it clear up to this point. This becomes problematic when we turn to the part of the judgment in which his Honour deals with post-separation contributions. 66. Under the heading Post-Separation Contributions which immediately follows [68], his Honour notes the submissions of the husband that: [2015] FamCAFC 57 Reasons Page 18

23 69. in the approximate four years since separation the contributions of each will be seen as similar in terms of weighting to what has gone before if that assessment is around the 70/30 division sought by the Husband. 67. However, his Honour noted that senior counsel for the husband further submitted that if the court were to determine the wife s contributions in the period up to separation as worthy of equal or near-equal weight to those of the Husband, the Husband s post-separation contributions are clearly entitled to far greater weight than those of the Wife. (at [69]) 68. His Honour then noted that counsel for the wife submitted that despite battling severe depression: 70. the wife did not abandon her responsibilities at the business, attending one or two directors meetings herself and appointing professionals to attend on her behalf otherwise. [Counsel for the wife] also specifically refers to the fact that, at separation, the [former matrimonial home] was still a year from completion and submits that, despite her health difficulties, the wife completed her role in completing [the construction of the former matrimonial home] 69. His Honour went on to say: 72. Notwithstanding those health difficulties, I accept that the wife made significant contributions to the completion of [the former matrimonial home] and also contributed to the business. Again, in this context I consider that the submissions on behalf of the husband take no account of the continuing contributions of the wife as a director and shareholder, particularly in relation to the stability of the business. This Court is well familiar with peremptory or reckless actions by one of the parties at and after separation wreaking havoc upon a business. 70. At [73], however, his Honour introduced to his reasons for judgment what, on the wife s submissions on appeal, is the first controversial element. His Honour said: 73. Again, however, I consider there is a disparity in the contributions made by the respective parties, and, again, I consider there is a significant difference in the contributions between the parties in what might be called the stewardship of the business. In addition, the parties children have been adults for the whole of the postseparation period and that fact, and the separation itself, results in the nature and extent of the contributions made by each of the parties to the welfare of the family being reduced accordingly. That is the more so for the wife whose pre-separation time was taken up primarily in that role. [2015] FamCAFC 57 Reasons Page 19