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

24 (emphasis added) 71. It is necessary to consider that paragraph in two parts, as indeed senior counsel for the wife did on appeal. The first is the first sentence and the literal nature of the words. The inclusion of the word Again at the opening of the sentence suggests that his Honour had determined that the husband s contributions pre-separation were to be given more weight overall than the wife s. As we have pointed out, his Honour did not make it clear, certainly not explicitly, when he evaluated the pre-separation contributions that he considered that there was a disparity made by the respective parties or if there was it was of any significant consequence. It is true that he noted there was a significant difference in the contributions between the parties in what his Honour called the stewardship of the business. However, as we have pointed out, he made no conclusive evaluation as to the husband s contributions therefore being greater, and in [67] where he said I consider the contribution of the husband s business acumen, skill and talents to have been significantly greater than those of the wife, he followed in [68] with a finding that the wife s contribution to the family was significantly greater than that of the husband. 72. The second sentence of [73], where his Honour raises the reduced contribution of the wife to the welfare of the family after separation, is prefaced by the words In addition which is again suggestive of a finding of inequality of contribution pre-separation. 73. It is instructive to remember what his Honour said in [63] as to the wife s contributions as homemaker and parent and the husband s contributions to the business, and to its income and capital generation, [a]gain, I do not consider the one to be more or less important (or valuable ) than the other. Senior counsel for the wife submitted, and we agree, that that does not sit comfortably with the drawing of an inference that his Honour ultimately intended to conclude that the husband s contributions were greater. We agree with senior counsel for the wife s contention that this conclusion appears in conflict with earlier findings up to [68] of his Honour s reasons and that in view of those earlier findings, a result that seems in conflict required adequate explanation, but that none was provided. Even senior counsel for the husband conceded that he could understand how the submission is made when we referred him to senior counsel for the wife s submission that the sensible reader would conclude that up until they reached the heading Post-Separation Contributions, they would think his Honour had concluded the parties contributions were equal. 74. Thus we agree that in so far as it is to be understood that his Honour found the husband s contributions outweighed those of the wife pre-separation, in that respect he failed to provide adequate reasons. In so far as Ground 2 relates to the pre-separation period, we find merit in the ground. [2015] FamCAFC 57 Reasons Page 20

25 75. However, that does not mean that the appeal must necessarily be allowed for that reason. As we have already said, there is no requirement to attribute different percentages to different periods in the relationship. Indeed the Full Court has cautioned against it: see Dickons & Dickons [2012] FamCAFC 154, Lovine & Connor and Anor (2012) FLC and Bolger & Headon [2014] FamCAFC 27 where the Full Court said at [28], [d]oing so is not consistent with a holistic assessment of the parties contributions which is what s 79(4) requires. It is only if error can be demonstrated in the overall result that the appeal would succeed. 76. Having reached a conclusion about the disparity of contributions in the post-separation period, his Honour went on to evaluate the contributions overall and under the heading Qualitative Assessment, his reasoning is made clearer: 74. As will be plain from what I have earlier said, I consider that the husband s arguments do not give full expression or weight to the nature and extent of the wife s contributions. As will also be plain, in many respects, I do not regard it as just to distinguish between the parties when their respective contributions are analysed and compared albeit that they largely each predominate in differing spheres. 75. However, an analysis of those contributions points to a greater contribution having been made by the husband directly to the business, predominantly by reference to the design of the [buildings which the business constructs] and sells so successfully and to what I will call the stewardship of the company including the plainly clever strategies and planning that have given it such success and to the financial and other planning that have led to it doing, relatively speaking, remarkably well in very adverse macro-economic conditions. These are important contributions in which it is, in my view, both appropriate and just to distinguish between the parties to this lengthy union. I consider that disparity to be particularly evident and pronounced in the period post-separation (emphasis added) 77. His Honour then considered the origin, nature, form and characteristics of the property and the nature, form and characteristics of this particular union, noting that there were: 76. many aspects to the differing contributions made predominantly in different spheres in which I do not consider it just to draw any distinction between the contributions made by each of the parties. 77. Specifically, I reject the notion that any such distinction should be drawn because this might be described as a big money case or [2015] FamCAFC 57 Reasons Page 21

26 because, per se, the husband s predominant contributions have been made to a very successful and valuable business as distinct from the wife s predominant contributions which were and are made indirectly and, in particular, contributions made to the welfare of the family. In that respect, I also reject the notion that one sphere or role should be seen as, of itself, more important, or more inherently valuable, than the other. 78. I do so for a number of reasons. First, the terms of s 79 suggest no such thing. Secondly, doing so risks giving insufficient or token weight to the sphere comprising contributions to the welfare of the family or other indirect contributions and doing so is contrary to authority 79. Indeed, during his evidence the husband referred to a very good example of that symbiosis within the context of the business. He referred to the apparently continual good-natured debate between the construction arm and the marketing arm of the business as to which of the two was more responsible for the business s success. As he acknowledged, there can be no resolution to the debate because the comparison is between apples and pears. But, significant to the instant discussion, each contributes to the whole by complementing the other and the whole is, as a result of the efforts of each arm, greater than the sum of its individual parts. 78. His Honour then rejected at [80] the notion that justice and equity required a distinction between the contributions of the parties by reason of the husband being possessed of special skills or because his contributions [could] or should be described as special. However, his Honour then went on to say: 81. However, I consider that an analysis of the nature, form and characteristics of the contributions of varying types made by each of the parties renders it just and equitable that any assessment of those contributions should favour the husband. 79. Pausing at that point, with respect to his Honour, we would say that it is difficult to reconcile those statements. However, his Honour went on to explain why he was persuaded that in this lengthy marriage there should be such a disparity by reference in particular to the ingenuity and stewardship which the husband has brought to the business outside of the other contributions made to the business by each of the parties (at [82]). His Honour said: 83. I consider that those factors have been particularly important in creating an extremely successful business. So, too, those specific contributions in particular have been important in the context of an industry prone to economic vagaries. I accept that the husband s input into the design of the [buildings] which the business builds and sells is also a significant contribution in that respect. [2015] FamCAFC 57 Reasons Page 22

27 80. His Honour then moved to the second stage of his evaluation of the contributions by considering a submission by senior counsel for the husband that he should have regard to a table of cases called comparable big money cases, the gravamen of which was to suggest that, by reference to the table, the decisions therein showed a range of entitlement to the wives in those cases between 27.5 per cent and 40 per cent. His Honour said: 88. In my view, it is appropriate, as counsel suggests, to take account of earlier decisions so as to inform generally the parameters of the discretion. However, care must be exercised; orders in any given case are about effecting individual justice by reference to individual circumstances and it is imperative that reference to those decisions should not be used as a fetter on the wide discretion inherent in the section. 81. At [89] his Honour noted the range which the table exemplified and noted that in such a table : 89. I am also conscious of the fact that authorities different to those collated might be produced in an alternative table and be said to be illustrative of a different range a difficulty inherent in all nonexhaustive comparisons. His Honour concluded, however, by saying: 89. Nevertheless, results arrived at by an appellate court in other cases where there is a reasonable degree of comparability with the case under consideration cannot, if the jurisprudence is to have a genuine semblance of consistency (despite the wide discretion within it), be simply cast aside as irrelevant. 82. It is important to note that his Honour set out the table at [87] of his reasons for judgment. As this is a separate complaint we will return to it later. 83. His Honour then moved to what he said was the third stage of his evaluation of contributions, namely Quantification of Contributions The Leap from Words to Figures. His Honour determined at [93] that a disparity between the parties as to 20 per cent in favour of the husband was a just and equitable outcome. That is to say, an assessment of contributions in the percentage of 60 per cent to the husband and 40 per cent to the wife. As his Honour explained, that would see the husband retaining property valued at between about $19.4 million and $23.9 million and the wife between $12.9 million and $15.9 million, noting the parties agreement to retain 84 per cent of the shares in the company (see [22] of these reasons). His Honour described that as a disparity of between about $6.5m and $8m by reference to the range in valuations. [2015] FamCAFC 57 Reasons Page 23

28 Discussion 84. Senior counsel for the wife attacked the finding in relation to contributions on a number of different bases, in addition to the difficulty in being certain about what his Honour s conclusion was as to contributions up to the point of separation. This can be broken down into three enquiries: 1. The evidentiary foundation for his Honour s findings. 2. The treatment of the wife s role and contributions post-separation. 3. Lack of reasons, both evidentiary and in relation to the conclusion of a 20 per cent disparity. 85. Turning to an assessment of the evidentiary foundation for the findings as to the contributions of the parties post-separation, it is instructive to consider once again what his Honour had said about various aspects of their contributions prior to separation. 86. In the pre-separation period, a close examination of what his Honour might have concluded tipped the scales is necessary to understand how this carried over into the post-separation period, and how it led to the leap from qualitative to quantitative. At [65] his Honour discusses the husband s stewardship of the business during significant periods of growth and difficult economic times. At [66] he talks about the husband being primarily responsible for various decisions taken by the corporate structure and [67] refers to his business acumen and skill. At [73] his Honour again refers to the stewardship of the business and at [75] refers to the husband s greater contribution by reference to the design of the [buildings] and the stewardship of the company, including the plainly clever strategies and planning that have given it such success particularly in adverse macro-economic conditions. We have already made the point that it is not easy to reconcile those comments with his Honour s comments about equality of contribution in [58], [59], [60] and [63]. 87. The post-separation contributions are set out by his Honour at [69] to [73] and we have already canvassed them at [60] to [64] inclusive of these reasons. It is not unfair to his Honour, we think, to say that the paragraphs described do not contain any degree of particularity. Senior counsel for the wife dealt with this issue extensively in his written submissions. He pointed out at [37] of his amended summary of argument (dated 27August 2013), as we have done, that [i]t is notable that in the evidence before the trial Judge there was very little which explained the Respondent s post-separation contribution. Senior counsel analysed the evidence about which his Honour did not make specific findings beyond that which we have described and submitted: 32. In his primary affidavit of evidence in chief, with the exception of evidence about Dealing with assets since separation ; Monies received by [the parties] since separation ; Assets acquired post separation and Use of assets post separation, the Respondent [2015] FamCAFC 57 Reasons Page 24

29 gave no evidence about his contributions after April 2008 in relation to the conduct of the business except that he continued his role as Managing Director. There was also no oral evidence in chief from the Respondent about such contributions. Then in the Respondent s written submissions dated 3 May 2012, without any reference to the evidence, it was submitted that the Respondent s post separation contributions are clearly entitled to far greater weight than those of [Ms Fields]. No attempt was made to say what those post separation contributions were or refer to any evidence. (footnotes omitted) 88. The factual matters referred to by his Honour as leading to what he found at [75] to have given [the company] such success and to the financial and other planning that led to it doing, relatively speaking, remarkably well in very adverse macro-economic conditions appear at [64], where his Honour says: 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. 89. It is not altogether clear what evidence his Honour relied upon to come to those conclusions. At [230] of his affidavit of evidence (dated 17 April 2012) the husband says: 230. Since separation, I have continued my role as Managing Director of the Business. 90. At [237] to [238] the husband says: 237. [Ms Fields] and I have both received a substantial income from the [Y Group]. At separation and during 2010 [Ms Fields] and I were each receiving dividends from the [Y Group] companies of $73, 608 per week as deposed to in my Financial Statement filed herein on 9 April Based on the deposits we hold to commence house building projects for the balance of this year and into the New Year the Business is experiencing a serious downturn. My view is that the situation will continue at least through next year. However, despite this downturn [Ms Fields] and I still receive a reasonable income As to contributions, as senior counsel for the wife pointed out, the husband did not give any evidence about his contributions after April 2008 in relation to the business other than that to which we have referred. Senior counsel for the wife points out that at [73] of the trial judge s reasons for judgment, having noted a [2015] FamCAFC 57 Reasons Page 25

30 disparity in the contributions made by the respective parties, his Honour went on to say: 73. In addition, the parties children have been adults for the whole of the post-separation 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. (emphasis added) 92. We set out the written submissions of senior counsel for the wife in relation to this aspect of his Honour s judgment because it is important, in our view, and founds the ultimate submission that the determination of the wife s entitlement constituted both an error of principle and a miscarriage of discretion in the implicit prejudice to the party performing the long term parenting and homemaker role. The evidence submitted by the wife, as explained in senior counsel s submissions, was that both parties were absent from the business to some degree after separation for different reasons. If the wife s different contributions were to be assessed, then so should the husband s. Indeed after separation, where contributions may be seen to be different by both (not just the wife), it becomes even more important to consider and identify the precise evidence upon which findings are based. 32. In his primary affidavit of evidence in chief, with the exception of evidence about Dealing with assets since separation ; Monies received by [the parties] since separation ; Assets acquired post separation and Use of assets post separation, the Respondent gave no evidence about his contributions after April 2008 in relation to the conduct of the business except that he continued his role as Managing Director. There was also no oral evidence in chief from the Respondent about such contributions. Then in the Respondent s written submissions dated 3 May 2012, without any reference to the evidence, it was submitted that the Respondent s post separation contributions are clearly entitled to far greater weight than those of [Ms Fields]. No attempt was made to say what those post separation contributions were or refer to any evidence. 33. To the contrary of any inferred continuum, the evidence established that after April 2008 the Respondent spent significant periods of time overseas with his current wife. The Respondent deposed that after he commenced a relationship with his current wife, who is a [Country Z] national, he was spending time in [Country Z] travelling backwards and forwards between Australia. In crossexamination the Respondent conceded that from April 2008 to August/September 2008 he was spending 10 days in [Country Z] and days in Australia and that through 2009 he was spending [2015] FamCAFC 57 Reasons Page 26

31 20-21 days in [Country Z] and 10 days in Australia. The respondent deposed that in 2009 he was mainly residing in [Country Z] and returning monthly to Australia for board meetings. 34. At the date of the trial the Respondent was attending the office only once or twice a week and, referring to the other directors and shareholders, he said I put all that time and effort into those directors so that they could run their departments. They don t need me there to tell them how many screws to put in a door or something like that. They do their own part. My job is as is mainly as it has been for quite a while is the marketing and and general supervision of the of the whole thing. These four key staff members, became directors, and acquired shares, in December The evidence of the Respondent did not support the findings by the trial Judge about post separation contributions. The Respondent s evidence suggested he had a very limited participation. If a significant part of the Respondent s case was to comprise his post separation contributions (as his submissions would suggest) then he simply failed to lead evidence capable of supporting the conclusions that were urged for and seemingly accepted by the trial Judge. 35. The findings by the trial Judge about post separation contributions were also not supported by the evidence of lay witnesses called by the Respondent being [Ms W] the national operations manager, [Mr T, Mr P or Mr J]. Hence his Honour made no mention of the evidence of those witnesses. Further, no evidence was given by the other directors being [Mr B], who is the national sales manager, [Mr D], who is the national building manager, and [Mr F], who is the national finance manager. Apart from an observation that there has been input from directors other than the [Ms Fields] his Honour said nothing about the contributions the other key personnel have made to the business, particularly since The Appellant gave evidence: We have effectively taken a back seat and further: [t]he four directors are paid $365, per year to run the company 36. According to the expert accountants reports the sales peaked in the financial year ended 30 June 2008 and the Respondent contends that the business is currently suffering losses. The trial Judge made findings about the stewardship of the business by the Respondent through the recent very difficult economic times and again referred to this stewardship when considering the post separation contributions. These observations mirror the submissions that were put on behalf of the Respondent. However, there was no evidence as to the value of the business at the date of separation or comparative evidence of the trading impact on other businesses in the industry or any evidence by which his Honour could conclude anything relevant [2015] FamCAFC 57 Reasons Page 27

32 about performance of the business, including its relative prosperity let alone attribute the result to the Respondent. 37. It is notable that in the evidence before the trial Judge there was very little which explained the Respondent s post separation contribution. There were issues about the extent of his time in the business, indeed in the country. There was no evidence that identified his role as opposed to the other directors during this period. There was no evidence as to the value of the business at separation as opposed to date of hearing. There was evidence in the valuations that the trading performance had declined (no-one was blaming the Respondent for this in the context of a waste argument) and there was no evidence of the performance of other comparable businesses in the same difficult trading period. These matters are highlighted because the absences are glaring what did his Honour rely upon to reach the glowing conclusions about the Respondent s post separation contributions, which on one view are the only catalyst of an adjustment to the value of up to $8 million, or looked at another way, a reward of about $2 million per annum after tax for four years? (references omitted) 93. If there was a diminution of the contributions of the wife to the welfare of the family post-separation, that was not the subject of any direct evidence. We do not suggest that her role had not altered, that much is evident from the fact the children had left home and she and the husband no longer belonged to a household in which mutual support was provided. But as senior counsel for the wife submits, the husband s role changed as well during that period, and there was a lack of evidence on a number of other relevant matters. 94. Senior counsel for the wife submitted that, absent evidence, the approach of the trial judge to the wife s diminishing contribution in her principal sphere is an argument which leads into murky waters or, as he submitted at [46] of the wife s summary of argument, is controversial and would mean that in a marriage of a long duration the negative: trend line perhaps starts when the children leave home, the parties are only having take away meals and there is a housekeeper and/or regular use of a laundromat. In other words, the value to be given to a contribution as homemaker either ceases or becomes less relevant, even in a case where, as here, there is no evidence that the further accumulation or conservation of wealth is the consequence of the post separation efforts of the male / breadwinner / business empire builder after the notional retirement of the primary homemaker and parent 95. In support of that proposition he cited Cronin J at [170] of Bulleen & Bulleen [2010] FamCA 187 where his Honour said: [2015] FamCAFC 57 Reasons Page 28

33 Whilst parenting as an occupation might stop or become less burdensome once children become adults, the ongoing role of both parents and later grandparent is no less an on-going contribution. Section 79(4)(c) refers to the contribution to the welfare of the family constituted by the parties and any children. For one party to then say such a previously agreed role was no longer a contribution to the welfare of the family cannot be right. Importantly, I do not accept that society would see it that way. 96. It has also to be remembered that the wife continued her role as a director and a shareholder of the company and continued to make a contribution, even if she was not personally able to do so in the operation of the business. It is not without relevance that the parties agreed that the roles they had in the business would continue after the cessation of these proceedings so as not to disrupt the business. The wife s shareholding remained tied up in the business and is an indirect contribution to its continued operation. That is a matter, in our view, of considerable significance in considering whether or not there is any diminution in the wife s contributions by virtue of changes in the role of parenting and homemaker. 97. Notwithstanding those factors, it is inevitable in some cases that a very significant contribution to the welfare of the family will be of a different kind when parties have separated and the family is no longer constituted by the husband, wife and children. That does not mean that the role completely ceases in some cases it might take another form such as where a wife became a significant carer for a grandchild. It is also to be noted that s 79(4)(c) requires the court to consider the contribution made by a party to the marriage to the welfare of the family including any contribution made in the capacity of homemaker or parent (emphasis added). Thus, in our view, the wording of the section itself contemplates a contribution to the welfare of the family as being something more than a contribution in the capacity of homemaker and/or parent. The section has been given wide interpretation and there is no reason to read it down (see Nemeth & Nemeth (1987) FLC and W & W (1997) FLC ). 98. In this case, the wife did continue to make contributions to the welfare of the family, which his Honour seems to have noted at [72]. Whilst s 79(4)(c) does not require a nexus between the contributions to the welfare of the family and the property itself, s 79(4)(b) does. The wife s contributions, as director of the business, and arguably indirectly to the welfare of the family by enabling the business to continue, which fall within s 79(4)(b) then require a consideration of those contributions in the context of the acquisition, conservation or improvement of the property of the parties. 99. It is not without importance that in the post-separation period, the parties did not acquire any further assets on which they sought the court s adjudication. Nor was there any evidence of improvement, which suggests some addition or [2015] FamCAFC 57 Reasons Page 29

34 change which improves the value or utility of the property. The contributions that his Honour considers the husband made seem to have been to the conservation of the property, which suggests protection from loss, injury or deterioration. Senior counsel for the wife submitted there was no evidence that the husband s efforts post-separation, of themselves, did conserve the property, or whether the property was conserved by the fact that it was in a strong economic position, with little debt, as a result of 29 years of the joint efforts of the parties. Put simply, there was no evidence to support a finding that the husband had contributed, as opposed to the wife, to the conservation of the property In her grounds of appeal, the wife pointed to the implicit prejudice to the party performing the long term homemaker and parent role if the court failed to acknowledge the intrinsic changes to that role as the children grow older. Such an approach, it was submitted, would leave women with an unfair burden and economic consequences of role division during marriage. We acknowledge the potential for prejudice to a party whose role, accepted and agreed throughout the marriage, changes as the marriage comes to an end and the children leave home and become independent. It is important, however, for two things to be said. First, s 75(2) enables the court to take account of matters other than contributions where appropriate. The final result, in other words, does not depend solely on contributions This point was made eloquently by Fogarty J in Waters & Jurek (1995) FLC at p 82,379: In most marriages, there is a division or roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests as individuals and as a partnership. The parties make different contributions to the marriage, which the law recognizes cannot simply be assessed in monetary terms or to the extent that they have financial consequences. Homemaker contributions are to be given as much weight as those of the primary breadwinner. On separation, the partnership, and the division of roles and responsibilities which it produced, come to an end. Individually, the parties are left largely in the personal situations that the marriage has assigned to them. However, the world outside the marriage does not recognize some of the activities that within the marriage used to be regarded as valuable contributions. Home-maker contributions, for example, are no longer financially equal to those of the breadwinner. Post-separation, the party who assumed the less financially rewarded responsibilities of the marriage is at an immediate disadvantage. Yet that party often cannot simply turn to more financially rewarding activities. Often, opportunities to do so are no longer open or, if they are, time is required before they can be accessed and acted upon. [2015] FamCAFC 57 Reasons Page 30

35 When the marriage ends, especially where that marriage has been a long one, one cannot separate the parties as individuals from the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities which it entailed. An order under s. 79 would be unjust and inequitable in its operation if it failed to address the manner in which the value of the parties roles, adopted in the course of, and for the purposes of the marriage, can be altered by the fact of separation. Those roles can be instantaneously converted into liabilities. The equality of the parties positions is terminated. This Court values different kinds of contributions of the parties equally while the marriage subsists. It would be inconsistent with the equality which that position recognizes not to take into account the transformation which the termination of the relationship results in, at least in terms of the capacity for present and future income generation Secondly, however, where those contributions have already built up the assets of the parties, and where there is no evidence that new assets have been acquired or existing assets improved or conserved due to efforts of one party rather than another, that fact too needs consideration In cases such as the present, where the period of cohabitation was lengthy, the period of separation was relatively short and where the value of the assets had, if anything, diminished rather than increased, careful scrutiny needs to be applied when considering whether a party should have a lesser entitlement to the assets than they might have had if the trial had occurred at the date of separation simply because they were not contributing to the same extent in the capacity of homemaker and parent Senior counsel for the wife rounded out his argument by reference to the reasons ground and submitted that the obligation to provide adequate reasons where a conclusion was being made that a disparity of up to $8 million was warranted, absent the evidentiary basis previously referred to, was all the stronger. In other words, senior counsel submitted that at one end of the spectrum there were things that were not in issue between the parties that probably needed to have little said about them. However, where one would, on a fair reading, find little distinction, and when the judge is then going to impose a very substantial distinction then the hurdle must be all the higher to explain the evidentiary basis as well as the broad labels of conclusion that support that result. Senior counsel noted in particular the significant effect the conclusion by the trial judge as to disparity would have on the amount the wife would receive compared to the husband after a long marriage of 29 years and a relatively short period of separation. [2015] FamCAFC 57 Reasons Page 31

36 105. It is necessary to record at this point that we agree that his Honour should have explained more clearly why in a relationship of this length with significant contributions over a very long part of the entire marriage led to the disparity in outcome when percentages are converted to dollars. That is the more so when considering the evidence of the husband s changed role and lack of evidence to connect the conservation of the property and the husband s contributions. However, if his Honour had stopped at that point it may have been difficult to point to an error of principle rather than a different result in a range that although members of this bench might think at the lower end, would still be within the generous ambit within which disagreement is possible (See Norbis) The difficulty in overturning a discretionary judgment is of course well understood (see House v The King at 504) However, under the heading Quantification of Contributions - Comparison with other Cases his Honour described the assessment of contributions as an exercise performed not only within the specific legislative context earlier referred to, but also within the context of what is now nearly 40 years of decided cases. At [85], importantly in our view, his Honour said: 85. [Senior counsel for the husband] submits that this Court cannot ignore earlier decisions where the facts can be said to be similar, although his submissions, correctly, recognise that the section requires individual justice, that no two marriages are identical and that, as a result, decisions in earlier cases need to be treated with some circumspection in so far as the results within them might guide the discretion in this, different, case His Honour went on to say at [86]: 86. It is not, then, suggested that any particular decision (including decisions of the Full Court) is binding as to result, but it is contended that there is a consistency in the range of results which cannot be ignored. Specifically, [senior counsel for the husband] grounds this argument by reference to a comparison of this case with a tabulation of decisions of the Full Court in what his table s heading calls comparable big money cases 109. His Honour included at [87] included that table and we re-produce it here for the purposes of discussion. Assets at start [Smith] Lynch Ferraro Webster Mclay Whiteley Phillips Minimal Minimal Minimal Wife beneficiary parent s trust Modest Nominal Nominal Period 29 years 16/20 years 28 years 15 years 21 years 27 years 31 years [2015] FamCAFC 57 Reasons Page 32

37 No. of children Assistance with children by husband Work by wife in business Period post separation Dependent children (post trial) Trust problems Pool $30M - $40M Some Significant Negligible Some Minor Average Limited Some None None Significant None Not significant Significant in early stages 4 years 8 years 1½ years 1½ years 1 year 1 year 3 years None None 1 3 None None None None Many None $5m children s trust??? $40M+ $12M $21.3M $8.8M $11.3M $25M Percentage?% 27½% 37½% 27½% 40% 30% 40% Dollars $? $10M $4.5M $6.6M $3.5M $3.4M $10.3M 110. At [88] his Honour noted that it was appropriate to take account of earlier decisions so as to inform generally the parameters of the discretion but that care must be exercised to ensure that references to those decisions should not be used as a fetter on the wide discretion inherent in the section His Honour continued: 89. Reference to counsel s table shows a range of entitlements to the wives in those cases (and it might be observed that in each case it is the wife who receives the lower proportion of the assets) of between 27.5 per cent and 40 per cent. I do not propose to descend into a detailed analysis of each of those decisions; doing so is, in my view, contrary to the principles to which I have earlier referred. I am also conscious of the fact that authorities different to those collated might be produced in an alternative table and be said to be illustrative of a different range a difficulty inherent in all nonexhaustive comparisons. Nevertheless, results arrived at by an appellate court in other cases where there is a reasonable degree of comparability with the case under consideration cannot, if the jurisprudence is to have a genuine semblance of consistency (despite the wide discretion within it), be simply cast aside as irrelevant. (emphasis added) [2015] FamCAFC 57 Reasons Page 33

38 112. His Honour ultimately concluded his assessment of the wife s contributions and awarded her 40 per cent Senior counsel for the wife contended on appeal that notwithstanding the qualifications put around the use of such a table, his Honour relied upon it and the result he arrived at fell within the range so described in the table. Reliance upon it, senior counsel contended, led to a flawed result because of the nature of the material contained therein and the apparent fetter on the individual discretion which reliance on the table brought to bear We cannot be certain that that notwithstanding the caveats his Honour referred to at [85], his Honour was not led into error by relying on the table. First and foremost, the table is set out in his judgment in its entirety. Secondly, his Honour points out that self-evidently the table indicates that in each of the cases the proportions to be received by the wives was between 27.5 per cent and 40 per cent. In this case, it is clear from his Honour s earlier comments that the wife s contribution in this marriage was a significant one and that when apparently assessing her against the table it would seem reasonable that she should receive the upper limit of the awards if the table were to be followed. In fact the wife did receive 40 per cent, or the upper limit of the table The fetter on the discretion lies, in our view, in the apparent reliance on the table which then has the appearance of acting as a ceiling which prevents the wife from effectively being considered as entitled to any more than 40 per cent, or suggests a result in a particular range should follow Equally importantly, however, the process of considering other cases where there is a reasonable degree of comparability with the case under consideration cannot be effectively achieved by the bald statements in the table produced. Indeed, his Honour himself at [89] suggests that authorities different to those collated might be produced in an alternative table and be said to be illustrative of a different range. We agree with his Honour and therefore find the inclusion of the table in his reasons for judgment all the more concerning. If, as we perceive, his Honour did place reliance on the table, in saying at [89] that he was unable to simply cast aside as irrelevant cases which have a genuine semblance of consistency, his Honour was apparently referring to the table produced. Otherwise, there would be no point in producing it at all The problem with the table is that it gives no indication of the relevant facts in the particular cases. Headings such as Assistance with children by husband, Work by wife in business, Dependent children (post trial), and Trust problems give no indication of how, as his Honour suggests, those cases have a genuine semblance of consistency with the present case, other than in the most broad sense possible. One of the cases, Webster, indeed did not involve the wife at all and it was in fact a husband who received the amount set out in [2015] FamCAFC 57 Reasons Page 34

39 the table. The Whitely case involved an entirely different case and was about the contributions of a wife/muse to a very successful artist. With all due respect to his Honour, the table can only inform the glibbest of comparisons, and although it may be a seductive tool, it cannot illuminate the valuing and weighing of contributions in this particular case and carries with it the danger, if relied upon, of detracting from the individual requirement to make orders that are just and equitable in an individual case. And further, as his Honour points out, there are cases which would support a higher percentage which were not part of the table at all Given what we have said about the necessity for clarity of reasoning when creating a differential of 20 per cent in relation to the assessment of contribution, apparent reliance on a table with the limitations discussed, which sets limits on the range of possible outcomes, and is designed to do so, leads to uncertainty as to whether his Honour was led into error by reliance upon the table Considering Grounds 1, 2, 3, 4, 5 and 6 holistically, including reference to the table of cases and outcomes, we consider the result reached by his Honour was not adequately explained and reliance on the table may have led his Honour into error and acted as a fetter on the exercise of his discretion. The error of principle referred to is that his Honour took into account irrelevant matters as Kirby J said in CDJ v VAJ (1998) 197 CLR 172: 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 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 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. (references omitted) 120. As we have indicated, his Honour s inclusion of the table of comparable cases, the information contained in that table and the ultimate outcome have led us to conclude that his Honour acted on a wrong principle and reached a conclusion which is plainly wrong Accordingly we find merit in these complaints and would allow the appeal. [2015] FamCAFC 57 Reasons Page 35

40 Ground 7 other factors 122. Under this ground senior counsel for the wife agitated the argument that having provided for the husband to have sixty per cent of the assets; his Honour should have made an adjustment under s 75(2). Senior counsel conceded that no submissions were made to his Honour at trial as the wife s case was that she should receive 50 per cent. Senior counsel also conceded that his Honour did give consideration to s 75(2). His Honour took into account: The disparity in wealth as a result of his findings and rejected any need to adjust further in favour of the wife; Future earnings for both parties from the business which he found required no adjustment; The wife s age and health issues which he found required no adjustment; The husband s responsibilities to a new wife and young child which he found required no adjustment; Counsel for the husband s argument that if the wife received more than 30 per cent the husband should receive an adjustment for his future role in generating the future profits in which the wife would share, which his Honour also rejected In our view, his Honour assessed all the relevant matters for both parties in coming to the conclusion that no adjustment was necessary. We do not agree with the submission of senior counsel for the wife that his Honour failed to give any or any adequate reasons for why these significant matters did not require an adjustment. His Honour s discussion of these factors at [94] to [102] reveals clearly his reasoning, and other than to disagree with the conclusion, senior counsel for the wife did not demonstrate that the exercise of discretion had miscarried and we find no merit in this ground. Ground 8 manifestly unjust result 124. It follows from our conclusion as to Grounds 1 to 6 that Ground 8 is made out and the result arrived at by the trial judge is, for the reasons expressed, manifestly unjust. THE CROSS-APPEAL 125. In the cross-appeal filed by the husband there is an inevitable intersection of matters that supported the cross-appeal and which are relevant to opposition to the appeal. [2015] FamCAFC 57 Reasons Page 36

41 Grounds of cross-appeal 126. The husband s grounds of appeal as contained in his notice of cross-appeal filed on 22 August 2012 are as follows: 1 Section 75(2) Adjustment 1.1 That the Trial Judge, having found that the Husband s future stewardship of [Y Pty Ltd] as its managing director for no remuneration, would confer benefits on the Wife as a shareholder (she being but a passive director) was a factor that can and should be taken into account (Reasons para 101): (a) erred in failing to make any adjustment for this factor; (b) erred in holding that the very high level of wealth and income militates against an adjustment ; (c) erred in giving any relevant weight to the Wife s future contributions to [Y Pty Ltd] as passive director in circumstances where her past contributions to the business (particularly post separation) were miniscule; (d) erred in finding that the manner in which the parties were to receive their entitlements ought militate against this adjustment in circumstances where the Wife sought to receive her entitlement in that form, clearly seeking to benefit from the Husband s future stewardship of [Y Pty Ltd]. 1.2 That the Trial Judge ought to have made an adjustment of 5% in favour of the Husband in respect of the benefits to be received by the Wife from his future stewardship of [Y Pty Ltd]. 2 Contribution Weighting 2.1 That on the evidence of contributions before the Trial Judge, the Trial Judge: (a) (b) (c) erred in his assessment of the weight that ought to be attributed to the contributions of the Husband; erred in his assessment of the weight that ought to be attributed to the contributions of the Wife; erred in that he gave inappropriate weight to: - the Wife s participation as a director and shareholder and finding that her contributions in this regard were equal to the Husband s, when it ought to have been an assessment of the performance within those positions rather than the mere holding of those positions; [2015] FamCAFC 57 Reasons Page 37

42 (d) (e) (f) - the fact that the business projected itself in its marketing as a family business (see the references to this in paras 47, 61 and 62); erred in his assessment of post-separation contributions in that he gave inappropriate weight to the Wife s contributions as a director and shareholder during that period; erred in rejecting the notion (Reasons para 77) that disparity in contribution weight ought not result from the creation of a very successful and valuable business as against from a Wife s contribution to the welfare of the family; erred in that he failed to have any regard to the evidence before him in the form of ABS statistics which established that had the Husband created wealth for the family of $10M, that would have placed the family into an elite category of 0.3% (1 in 300) households in Australia but what the Husband created ($30M - $40M) demonstrated how extraordinary his contributions were. 2.2 That on the evidence of contributions before the Trial Judge, he ought to have assessed the weight of the Wife s contributions at no greater than 35% or, putting in terms used by the Trial Judge, there ought to have been a disparity of 30% between the contributions of the parties. 3 Overall Division 3.1 That the Trial Judge erred in the exercise of his discretion in awarding the Wife 40% of the net asset pool, such being outside the range of a reasonable exercise of discretion. 3.2 That the Trial Judge, in the proper exercise of his discretion, ought to have awarded the Wife 30% of the net asset pool. Discussion of the grounds of cross-appeal 127. It is convenient for us to deal with Ground 2, Contribution Weighting before dealing with the s 75(2) adjustment issue because the former is somewhat more contentious and raises slightly different issues than the assessment of s 75(2) matters The ultimate position for which the husband contended was that his Honour s assessment of 60 per cent of the assets in favour of the husband should be the starting point, to which should be added a 5 per cent adjustment for s 75(2) matters, stated to be in respect of the benefits to be received by the Wife from [2015] FamCAFC 57 Reasons Page 38

43 [the husband s] future stewardship of [Y Pty Ltd], plus a further 5 per cent adjustment because his Honour ought to have assessed the weight of the wife s contributions at no greater than 35 per cent At Grounds 2.1(a) and (b), the husband contends that the trial judge erred in his assessment of the weight to be attributed to the contributions of the husband and erred in his assessment of the weight to be attributed to the contributions of the wife. No error of principle was relied upon to indicate that his Honour s assessment was not appropriate, nor that it was outside the generous ambit within which disagreement is possible (See Norbis) Several of the submissions of the husband were premised, in our view, upon the notion that there is some form of special contribution that pertains where assets of the parties, particularly a business, has a significant value. Senior counsel did not disavow that approach. At [3.3.3(b)] of the husband s written submissions (dated 23 October 2013), for example, he asserts that, in reliance on data from the Australian Bureau of Statistics, it is important to put the financial wealth created essentially by the stewardship of the Husband into an Australian perspective. Senior counsel for the husband further submitted that households with wealth that exceeded $10M represent a mere 0.3% of Australian households. What we have here is a net pool of $32M - $39M, none of which arises from inheritance or windfall and all of which was created from very little when the business commenced in All that may be true but, as we pointed out at the hearing before us, the fact that the parties find themselves in the upper echelons of wealthy Australians says nothing about the contributions that each of them made during the course of a lengthy marriage to the acquisition and conservation of their wealth. We do not agree with the submission of the husband, and note that it is not supported by any evidence or authority, that, as set out in [3.3.3(e)] of his submissions: The creation of a very successful business will often be the very signpost to unequal contribution and weighting as referred to in Mallet (emphasis in original) 131. Broad statements such as this are inconsistent with the obligation of the court to weigh the respective contributions to the acquisition, conservation and improvement of the parties assets acquired, in this case, over a very lengthy marriage, and to give appropriate weight to contributions of each of the parties. Similarly, we reject the submissions of the husband made at [3.3.3(f)] that a 20 per cent disparity between what the parties received paid no proper regard to the massive disparity in the true worth of the contribution of each. As we have pointed out, the trial judge made significant findings about the wife s contribution as a genuine part of the manner in which the business was built up. The focus by the husband on what the wife did as a director and shareholder, describing her directorship and shareholding as essentially passive, misses [2015] FamCAFC 57 Reasons Page 39

44 the point made by the trial judge of the ability of the husband to exercise his skills as the managing director, freed from the obligation of other family responsibilities It also misses the point, with respect, that directorship is never passive and that there are significant obligations placed on directors by the Corporations Act 2001 (Cth), all of which were undertaken by the wife. By way of example, despite the fact that the husband asserts that he is the driving force in the company, there is no suggestion that other directors, distinct from their role as employees of the company, should have a reduced shareholding simply because the husband is the driving force. Why then, logically, is there an argument for saying that the wife s similar contribution should see her directorship and its value in some way watered down vis a vis the husband s which should be in some way increased. In this respect, in our view, his Honour could not be seen to have given inappropriate or insufficient weight to the wife s participation as a director and shareholder and his finding, as it appears that in this regard her contributions were equal to that of the husband Similarly, in our view, the marketing of the family business was a justifiable consideration and again, taking account of the wife s contributions, all of this can be tested against the proposition that, had the business not survived the global financial crisis, would the husband have then accepted responsibility for the failure of the business because the wife was, on his case, essentially passive as a director and shareholder? 134. As we have already said at [42] and [43] the notion, if there ever was one, that for some reason the wealth of parties itself, particularly in relation to business interests, should axiomatically mean that the party involved in the business is entitled to more, and according to senior counsel for the husband in this case, significantly more, has been put to rest. It should also be said that it significantly devalues the role of homemaker and parent that the High Court said in Mallet v Mallet (1984) 156 CLR 605 at 623 per Mason J should be given substantial and not merely token weight. The husband s case in seeking 70 per cent of the assets does not give appropriate credence to the importance of these contributions In our view, to provide for a 35 per cent assessment of contribution over the length of this marriage, and with his Honour s findings, many of which were unchallenged as to the wife s contribution and her role in the business, would be manifestly unjust In our view, the arguments raised by the husband as to the value of the business having some significance fail, both on the grounds that the jurisprudence is now clear that this is not a factor alone which will point to greater contribution, and also on the basis that there is a lack of evidence, particularly with other directors being involved, that the husband s contribution was vis a vis the wife [2015] FamCAFC 57 Reasons Page 40

45 so much greater and conversely the wife s contribution vis a vis the husband, so much less. We accordingly find no merit in the argument that his Honour fell into any error in his assessment of contributions in so far as he did not award the husband significantly more than 60 per cent of the assets The second part of the cross-appeal related to an asserted s 75(2) adjustment by reason of the fact that the wife would receive benefits as a shareholder in the future, particularly as she was a passive director, and it was asserted her postseparation contributions were miniscule The cross-appeal as it relates to the s 75(2) factors perhaps operates more as a shield than as a sword. In saying this we do not suggest that senior counsel for the husband raised it only as a tactical point to meet the contrary argument raised by the wife on appeal, being that his Honour had not made a s 75(2) adjustment in her favour. Indeed, the husband s case was agitated in a robust manner by senior counsel and we have no doubt that the ground is seriously pressed. Nevertheless, it again reflects the difficulty for the husband in seeking to persuade the court that while there is no justification for the wife s argument that his Honour failed to adjust her proportion for s 75(2) matters because his Honour s exercise of discretion in making no adjustment did not miscarry, the trial judge s discretion miscarried in not making an adjustment in favour of the husband The bases upon which the husband submitted that the trial judge erred in not making a s 75(2) adjustment in his favour were as follows It was submitted that the high level of wealth and income was relevant because the wife was to retain her shares in the business and could, as a result of the value, reasonably expect dividends of a significant amount. Senior counsel for the husband acknowledged that his Honour was aware of this factor but did not consider it should warrant any adjustment for the husband Secondly, senior counsel for the husband submitted that the wife s future contributions could not possibly offset to any measurable extent the very significant contributions the husband has to make (and from which he will derive no salary). His Honour was aware, however, of the future contributions and noted that the wife would continue to make future contributions as shareholder and director. Further, as senior counsel for the wife ultimately pointed out, although the husband is not deriving any salary at present, the shareholder agreement between the present shareholders does not prevent the husband from negotiating a salary should it be warranted Senior counsel for the husband then referred to the fact that the wife as a passive shareholder with an interest in the company being a substantial component of the property settlement, would no doubt rely on the husband to commit his skillset to the continued growth of the business and she would be the beneficiary of that. His Honour was again alive to this matter and indicated [2015] FamCAFC 57 Reasons Page 41

46 in his judgment that the wife would also have burdens in the sense that she would be tied to the investment. We would add to that scenario the possibility that the business, for some reason unconnected to the husband, experienced a downturn, which would of course disadvantage the wife as well as the husband if she is tied to the business and not able to do with her share of the property settlement, as she would otherwise perhaps wish to do It will be apparent from this discussion that his Honour had regard to each of the matters raised by the husband in relation to the basis for an adjustment under s 75(2) in his favour. It will be apparent thus that whilst it was open to his Honour to make an adjustment in favour of the husband, indeed as it was open to him to make an adjustment in favour of the wife, in our view the husband has not demonstrated that the exercise of discretion has miscarried. His Honour did not take into account irrelevant matters, nor did he fail to have regard to matters which were relevant and accordingly this ground must fail We therefore find no merit in the cross-appeal and it should be dismissed. RE EXERCISE OF THE DISCRETION 145. Senior counsel for both parties urged us to re-exercise the discretion in the event that the appeal was allowed. Neither party wished to provide further evidence (Allesch v Maunz (2000) 203 CLR 172) and we were informed at the hearing of the appeal that such division of assets that had taken place was done in a way that would allow for a further adjustment by way of a sum of money to be made Senior counsel for the wife submitted that although his complaints went to the adequacy of the trial judge s reasons, they were essentially about the conclusions versus the underlying evidence, and the evidence, in our submission, is pretty clear (Appeal transcript, 26 November 2013, p 35). This submission was raised in response to a question from the bench as to the ability of the Full Court to re-exercise the discretion if the appeal were allowed on a reasons ground. We accept the submission of senior counsel for the wife and find that we are able to re-exercise the discretion In our view, the nature of this case favours re-exercise so that injustice can be avoided by further significant expense of time and money by the parties, if there were to be a remittal for a further hearing. This much is recognised in the Act. Section 93A(2) provides: Subject to section 96, in an appeal the Family Court shall have regard to the evidence in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given 148. As we have indicated, neither party wished to place any further evidence before the court. [2015] FamCAFC 57 Reasons Page 42

47 149. In Fox v Percy (2003) 214 CLR 118, the High Court (Gleeson CJ, Kirby and Gummow JJ) held that in respect of a section giving power to the New South Wales Court of Appeal similar to that contained in s 93A(2) of the Act: 25. Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect (footnote omitted) 150. Comments from the High Court in Allesch v Maunz makes clear that in re-exercising the discretion, attention must turn to the evidence of the circumstances as they now exist, as distinct from when the order appealed was made. At the hearing of the appeal we invited both parties to file further submissions as to the effect of the High Court s decision in Stanford v Stanford (2012) 247 CLR 108 on any re-exercise if the appeal or cross-appeal were allowed which was handed down after the trial and decision in this case. As Bryant CJ and Thackray J said in Bevan & Bevan [2013] FamCAFC 116: 73. The High Court in Stanford has laid down three fundamental propositions which will provide useful guidance to trial judges in approaching the task under s 79. These were recited above, and could be summarised thus: 1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity); 2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties interests in the property are or should be different from those determined by common law and equity; 3. A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements As to the third fundamental proposition, Bryant CJ and Thackray J said: 81. The third fundamental proposition demands separate consideration of the preliminary question of whether it is just and [2015] FamCAFC 57 Reasons Page 43

48 equitable to make any order altering property interests before the need arises to consider the extent to which existing interests are to be altered and the manner in which that is to be done. 82. As we have noted, in many cases the preliminary question is effectively answered in the affirmative by the way the parties present their cases. Nevertheless, it is still necessary for it to be shown that the trial judge has expressly, or by clear implication, answered that question in the affirmative before making an order altering existing interests in property. 83. Answering this preliminary question clearly involves the exercise of judicial discretion since, as was said in Stanford at [36]: 152. At [42] of Stanford the High Court said: The expression just and equitable is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. 42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by application s 79(4) The High Court also said in Stanford, at [37], that the first step necessary to begin consideration of whether it is just and equitable to make a property settlement order is to identify: 37. according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property [2015] FamCAFC 57 Reasons Page 44

49 The property (emphasis in original) 154. There was no challenge on appeal as to the approach the trial judge took in relation to identifying the assets of the parties, nor to the findings he made in that regard. We therefore adopt his Honour s findings as to the value of the assets for distribution and accept, as the parties did, his Honour s use of a range of values representing the lower and upper ends of the spectrum of the value of the parties interest in Y Pty Ltd. We therefore set out the table of assets from [34] of his Honour s reasons for judgment: ASSETS Ownership Description Wife s Value 1. Joint Shares in [Y] Pty Ltd $25,302,043 [Y] (Q) Pty Ltd $4,302, Joint [V] Pty Ltd [the former matrimonial home] & adjoining land $10,000,000 Mortgage (NAB) ($3,660,000) Personal guarantees by parties for minority shareholders secured over [the former matrimonial home] ($3,086,090) 3. Joint [B] Pty Ltd (to be liquidated minor assets/liabilities) 4. Joint [Smith] Family Trust (if tax liability arises, to be shared in proportion with division) 5. Joint [Marine vessel] (to be sold) 6. Joint Chattels and equipment at family compound (to be sold) 7. Wife Jewellery in wife s possession (to be retained by wife) $278,080 + $30,000 $10,000,000 ($3,660,000) Nil Husband s Value $17,552,087 $4,302,840 $10,000,000 ($3,660,000) Nil $1,000,000 $1,000,000 $250,000 $500,000 $308,080 $308, Husband Jewellery in husband s possession $11,200 $11,200 (to be retained by husband) 9. Joint [Currency] collection $414,295 $414,295 (to be retained by husband) 10. Joint [Single unit of currency] $15,000 $15,000 (to be retained by wife) 11. Husband Dress Ring $18,000 $18,000 (Wife to return to Husband) 12. Joint Ford Motor Vehicle $25,000 $25,000 (To be received by Husband) TOTAL $37,975,258 $30,486,502 [2015] FamCAFC 57 Reasons Page 45

50 SUPERANNUATION Member Name of Fund 13. Husband & Wife [Smith] superannuation fund [T Street] $1,000,000 $895,500 $1,784,224 Bank Accounts (30/6/11) $784,224 $895, Wife [Fields] Superannuation fund $50,000 $50,000 TOTAL ASSETS & SUPER $39,816,258 $32,320,726 LIABILITIES 15. Joint NAB Commercial Loan (In Item 2) (In Item 2) 16. Joint Personal Guarantee for borrowings of?? minority shareholders (secured on [the former matrimonial home]) current outstanding sum $3,086,090 (Ex H2) 17. Joint Cost to wind up [B] Pty Ltd and [V] Pty?? Ltd to be shared on percentage basis NET ACTUAL POOL $39,816,258 $32,320, It will be seen from the table of assets that the net pool was found to have a value of between $32,320,726 and $39,816, The orders made by the trial judge on 17 September 2012 are extensive. They include orders for the sale of real estate and chattels, security for minority shareholders debts in Y Pty Ltd, disposition of furniture, contents and equipment, the winding up of B Pty Ltd, the sale of a marine vessel, the transfer of a car, disposition of other chattels, superannuation, transfer of shares in Y Pty Ltd, tax, and family debt. Importantly, the only order in respect of which the parties seek variation is the order for the sale of real estate which we were informed has taken place. The proceeds of sale of that real estate have been to, an extent, quarantined by the parties to enable this court, upon a reexercise, to vary the parties respective entitlements. Any order we make on a re-exercise will thus take effect on the proceeds of sale of the real estate so described in the orders made on 17 September Sufficient money has been set aside, we have been advised, to accommodate the orders sought by the wife on a re-exercise, if successful Despite the conversion of real estate into cash, the parties were content to rely upon their legal and equitable interests in property as set out in the statement of assets and liabilities described in the trial judgment and incorporated in these reasons above. [2015] FamCAFC 57 Reasons Page 46

51 Section 79(2) just and equitable 158. In supplementary written submissions, senior counsel for the wife submitted it would not be just and equitable for there to be any order altering the interests of the parties in Y Pty Ltd. This submission was made irrespective of the separate consideration of the parties respective contributions. Senior counsel eschewed any suggestion that the submission in any sense conflated the matters arising under s 79(2) of the Act with the matters of s 79(4). In particular, senior counsel pointed to the fact that the parties had agreed that they would retain an ongoing interest in their then combined 84 per cent shareholding in Y Pty Ltd and noted that since the inception of the business, they had each been directors and held equal shareholdings, and that, as the trial judge recognised at [43], the product of their respective contributions is represented overwhelmingly by the reinvestment into the business and development of [the former matrimonial home]. Senior counsel submitted that despite the breakdown of the parties marital relationship: an ongoing shareholding in the [Y Group] was not only sought and agreed by each of them, but with the protections of the Corporations Act, the agreed specific terms of the shareholders agreement and perhaps even the participation of arm s length third parties with their own legitimate interests in the Group such an ongoing holding, despite divorce, is apparently practicable and achievable Senior counsel for the husband submitted essentially that the the severance of the mutuality of the marital relations, including the sale of real estate and chattels and the winding up of companies and superannuation split, demonstrated that it was, and remained, just and equitable to make adjustment orders under s 79 of the Act Specifically, senior counsel for the husband pointed to the arrangement of the parties made in the post-separation period allowing each party to retain shareholdings in the [Y Group], having lived independently, with a severance of the marital relationship and with the husband and the wife supporting their adult children from time to time The submissions of the wife largely rely upon the fact that the parties had agreed to retain their ongoing interest in the Y Group. To the extent that those facts point to common use of the property after separation, as referred to by the High Court in Stanford at [42], there are other elements which, in our view, make it just and equitable to adjust the interests of the parties in their property. They include: The fact that the husband and the wife are no longer living in a marital relationship; [2015] FamCAFC 57 Reasons Page 47

52 Express and implicit assumptions underpinning the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship ; An assumption that any adjustment to those interests could be effected consensually is brought to an end; and Whilst some part of the parties property is being retained, significant other parts are not and, in particular, real estate has been sold and other corporate interests wound up In regard to those matters it is, in our view, a case in which the just and equitable requirement is readily satisfied by the cessation of the matrimonial relationship and the manner in which the parties have distributed part of their property already and seek to maintain that division. Contributions 163. The key issue for the Full Court on the re-exercise, as it was before the trial judge, is the nature and extent of the parties respective contributions As we have said above, neither party sought to lead any further evidence in respect of the re-exercise of the discretion and consequently our decision will be made in the rubric of the factual findings of the trial judge or, where there is an absence of findings, on the unchallenged evidence of the parties in their affidavits and oral evidence. Importantly, neither party sought to impugn the evidence but rather to highlight certain parts of it and to submit that we should give different weight to those parts than the trial judge had given The husband s case strongly supported the approach of the trial judge in assessing contributions pre-separation and post-separation. The wife s position was that there should be a finding of equality in both periods. Senior counsel for the husband did not cavil with making an assessment in both periods and proposed to take that approach. Pre-separation contributions 166. Importantly, his Honour made the following findings as to contributions: The relationship involved the practical union of both lives and property that subsisted for nearly 30 years ([45]). The parties jointly and crucially reinvested in the business ([46]). The wife worked within the business ([47]). The business marketed itself as a family business ([47]). The wife had a marriage partner whose undoubted hard work left him with virtually no time at home ([52]). [2015] FamCAFC 57 Reasons Page 48

53 The wife made her contributions in circumstances where the family were moving from home to home on average every two years with little opportunity to establish a stable base, and all the difficulties attendant upon moving home ([52]). The contributions made by both parties enabled capital belonging to both parties to be reinvested and this was a significant contribution and provided the foundation for the Y Group ([53]). The respective contributions of each within their respective primary roles the wife as homemaker and parent and the husband as breadwinner were exemplary ([54]). The husband was the driving force behind the business in terms of his day to day management, designing of buildings and placement of the business strategically and this was a significant contribution ([56]). The wife was at all times an equal shareholder and director of the companies forming the Y Group and their contributions in this regard were equal ([58]). The cooperation and participation of the wife as a director and shareholder of the relevant corporations enabled the handcuffing of key personnel which provided incentives and kept them in the business. The wife played an active part in implementation of strategic decisions, in her capacity as a director and shareholder ([60]). The practical union in this marriage partnership played a significant role in the stability of the company and its marketing strategy and this was an equal contribution by both parties ([62]). The wife s role as parent and homemaker was not more or less valuable than the husband s contribution of income and capital generation ([63]). The husband s management of the business was a significant contribution on his part and was greater than the wife s contribution in this regard ([65] and [67]). The remarkable success of the business was in no small part due to the business acumen and skill exhibited by the husband ([65]). The wife s contribution as parent and homemaker was significant and was greater than the husband s ([68]) We accept that the evidence before his Honour supported these findings and adopt them accordingly. In our assessment, in the context of an almost 30 year marriage, such findings reflect equality of contributions in the pre-separation period by both the husband and the wife. [2015] FamCAFC 57 Reasons Page 49

54 168. However, the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weight all of the contributions of all types prescribed by s 79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period. Post-separation contributions 169. We now turn to the task of identifying and assessing the post-separation contributions of the parties We have set out earlier in these reasons some of the evidence that was before his Honour as to the parties respective post-separation contributions, insufficient as it may have been. However, what is clear is that post-separation in 2008 the wife continued as a director and shareholder of the business and the husband continued his role as managing director and shareholder Senior counsel for the husband urged upon us, as he did before the trial judge, that the wife s contributions in the period post-separation were significantly less than those of the husband. Senior counsel for the wife submitted that the wife s contributions throughout the period of cohabitation and post-separation should lead to an evaluation of equality of contribution by each of the parties These parties made significant contributions in differing but intersecting spheres. In our view, there is no basis for differentiating between them. In Mallet the High Court said that equality was not the starting point, that much can be readily accepted. That is not to prevent equality from being the conclusion once contributions and other relevant factors have been evaluated. Here the parties had organised their financial affairs in a manner which strongly pointed to a joint endeavour, at least during the continuance of the marriage and up until their separation. All their financial dealings were consistent with that position Were this case to be determined at the time of separation, we would have found an equal contribution by the parties. Whilst the exercise is a holistic one and the contributions are to be considered up until the time of trial, it is important to give appropriate weight to the contributions made by the wife in all of the spheres, including to the welfare of the family Following separation there were changes to the contributions by both parties. The trial judge did not detail in his reasons what these were. However, they are apparent from the unchallenged evidence in the parties affidavits which we now set out. Evidence about the husband s circumstances 175. In two affidavits, one filed on 27 October 2011 and the other filed on 17 April 2012, the husband deposed to the fact that: [2015] FamCAFC 57 Reasons Page 50

55 After separation the parties continued to live together under the same roof for a period while the former matrimonial home was being completed, and when it was near completion the husband then moved in to that property ([219], affidavit filed 17 April 2012). At that time the husband commenced a relationship with his new wife who is a Country Z national and he began spending time in [Country Z] travelling backwards and forwards between Australia. When in Australia I stayed in [the former matrimonial home] which I intended to be my home ([151], affidavit filed 27 October 2011, see also [220], affidavit filed 17 April 2012). In 2009 the husband was returning monthly to Australia for board meetings but mainly residing in [Country Z] whilst [his new wife s] visa arrangements were finalised ([155], affidavit filed 27 October 2011, see also [224], affidavit filed 17 April 2012). Since separation the husband continued his role as managing director of the business ([161], affidavit filed 27 October 2011, see also [230], affidavit filed 17 April 2012) As to the business, the husband deposed to the fact that: [b]ased on the deposits we hold to commence house building projects for the balance of this year and into the new year the Business experienced a serious downturn. My view is that this situation will continue through next year. However, despite this downturn [Ms Fields] and I still receive a reasonable income. (see [169] of affidavit filed 27 October 2011, see also [238] of affidavit filed 17 April 2012) 177. The husband used income dividends and agreed dispositions of proceeds of sale from joint assets towards the cost of purchase of a new property for himself and his new wife ([232] of affidavit filed 17 April 2012) In cross-examination, the husband was asked about travel to Country Z and said that from April 2008 to probably August or September, he was spending 10 days there and 20 or 21 days in Australia. After that [The husband]: (Transcript, 30 April 2012, p 67). it started to reverse for a while, so through 2009 it was the reverse. I was spending, you know, 20 days over there and 10 days back here per month in general The husband said that in 2011 he spent most of his time in Australia, other than 3 weeks in the USA, a week in [Country Z] and a week in Thailand. He said that he did not attend Y Pty Ltd daily at the time of trial, nor in the previous [2015] FamCAFC 57 Reasons Page 51

56 year and attended the office only once or twice a week (see Transcript, 30 April 2012, p 68) The husband explained that he intended this would continue: reading all the s I am abreast of most things, but as was said with the Shareholders Agreement, the reason for that was I put all the time and effort into those directors so that they could run their departments. They don t need me to tell them how many screws to put in a door or something like that. They can do their own part. My job is is as mainly as it has been for quite a while is the marketing and and general supervision of the of the whole thing. (Transcript, 30 April 2012, p 68) 181. The wife, during periods of depression which prevented her from attending directors meetings, arranged for an accountant to sit in board meetings on her behalf After separation the value of the business decreased but because of economic circumstances not those relating to anything connected to the parties. Senior counsel for the husband outlined in his written submissions that the profit climbed to a peak of $14.5 million, with a turnover $175 million in the 2009/2010 year, but in the subsequent period reduced so that in the 2010/2011 year the turnover was $124 million, with consolidated profit before tax of $4,027,812 (see the husband s trial submissions dated 3 May 2012 at p 19). In the six months to 31 December 2011 leading up to the hearing the turnover was $46 million with losses of $839,589. That the diminution was the effect of the economic climate and in particular the global financial was not in dispute. In written submissions at trial counsel for the husband said: 3.3(e) It might well be asked why we have highlighted the impact of the GFC and current economic conditions in an attempt to demonstrate the Husband s contributions are special. In that regard, [y]our Honour will note that not only has the Husband s management skills enabled the business to record extraordinary growth in the good times but those skills have also enabled the business to survive the tough times (emphasis added) 183. We observe, however, that there was no evidence that it was any particular contribution by the husband which enabled the business to survive in the tough times. Nor was there any evidence that with the attribution of different skills by the husband, the business might have done better even in tough times. There was simply no evidence to support an argument that anything the husband did post separation, as opposed to the wife, contributed to the business either surviving or doing better than other business might have done. [2015] FamCAFC 57 Reasons Page 52

57 184. Whist it is true that the wife s contributions after separation changed, due to the fact that she was no longer contributing to the welfare of the family constituted by herself, the husband and the children, as we have indicated, the husband s contribution also changed. His involvement in the company, at least in the physical sense, diminished considerably and he accumulated other assets with his new wife and new family Nor did the parties acquire any other assets between them after separation. In the relatively short period post-separation, other than the effect of the global financial crisis on the turn over and profitability of the business, the assets that the parties had acquired and built up throughout the course of their cohabitation, reflecting the significant contributions of each, otherwise remained unchanged. There is no evidence that anything either of them did in this short period post-separation either diminished or increased the assets that they had acquired and attributed to up until the time of their separation. Evaluation 186. As we have previously indicated it is trite to say that equality is not the starting point. The task of court under s 79(4) is to analyse and weigh all contributions of all types made by both parties across the entirety of the relationship and the period between separation and the hearing. We have summarised above the various contributions of the wife in this case. The very wide discretion inherent in s 79 requires the court to do justice according to the needs of the individual case, whatever its complications might be (see Norbis at 520 per Mason and Deane JJ) In this case, the contributions of both parties over a lengthy period were substantial and significant. The wife s contributions to the welfare of the family are in themselves significant contributions and s 79 does not suggest that one kind of contribution should be treated as less important or valuable than another. As his Honour noted at [78] of his reasons, and we confirm, references to one party freeing up the other party in the maintenance and stability within the business are examples of one party being rendered more able to make contributions with in their role by reason of the contributions made by the other party within their role The wife s contributions in this case, however, were not limited to homemaker and parent or to the welfare of the family more generally. She had involvement in the business itself and the contributions she made prior to the establishment of the business in assisting the husband in improving and selling their homes from which they moved regularly contributed to the capital to start the business. Once the business was operating, the wife was a director and there was no suggestion that that role was not assiduously carried out by her. As a result of the fact that the business will continue, that role will continue. We have previously pointed out that the obligations that come with being a director. [2015] FamCAFC 57 Reasons Page 53

58 In addition, the wife participated with the husband in decisions which involved the corporate structure, such as transferring part of their shareholding to others who would be able to ensure the continuance of the business. In this case, these are all significant contributions which can be seen to be the practical union which Deane J refers to in Mallet Each of the parties contributed over a lengthy marriage to the acquisition, conservation and improvement of the assets which they owned at the date of hearing. In our view, to place greater weight on the contributions made by the husband in his sphere does not do justice to the wife s contributions in the various capacities that we have outlined. Giving appropriate weight to the contributions of both parties and where, as the trial judge also found, the nature and form of their partnership was that of a practical union of lives and property (at [79]), that leads us to conclude that the contributions made by the parties should be treated as equal We appreciate that the husband through senior counsel contended that he had made greater contributions following separation and that itself should create some disparity. As we have indicated, the role of both parties changed after separation. However, importantly in our view, in this case the assets of the parties did not alter after separation and indeed, for reasons that were not the fault of either party, the value of the business diminished. However, all that had been acquired by the parties up to separation continued largely to exist following separation. Structures that the parties had put in place, such as a largely debt free environment, employment, and then retention, of important employees who became shareholders and directors, and the continuance of the stability of the company may all have contributed to conservation (if not the improvement) of the assets of these parties between separation and the hearing As we gave already said at [96] to [100] of these reasons, the wife s role as parent and homemaker may have reduced but she continued to contribute as a director and shareholder. There is nothing to suggest that because the wife s contribution to the welfare of the family was less than it had previously been, it in any way reflected upon, or was connected to, the change in the asset position of the parties by the time of trial. Indeed, the evidence is clear in this case that what had been acquired and achieved up to separation simply carried on thereafter, albeit with differing contributions by the parties but reflecting what they had previously put in place. It is apposite to remember what Fogarty J said in Waters & Jurek: When the marriage ends, especially where that marriage has been a long one, one cannot separate the parties as individuals from the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities which it entailed. [2015] FamCAFC 57 Reasons Page 54

59 192. That is not to say, however, that in different cases, differences in contributions might not be relevant. However, in this case when the provisions of s 79(4) are considered, it is clear in our view that the contributions by the wife under subss 79(4)(a) and (b) to the acquisition, conservation and improvement of the property, and under s 79(4)(c) to the welfare of the family generally, including as homemaker and parent, should not result in any diminution of her interest when it is seen that the property of the parties has not changed or increased in any meaningful way after separation For these reasons in our view it is appropriate for there to be an equal division of the assets of the parties. Section 75(2) considerations 194. The wife does not seek any adjustment pursuant to s 75(2) in the event that she receives a half share of the assets. Senior counsel for the husband seeks an adjustment under s 75(2) and this argument formed part of the husband s crossappeal. For the reasons that we have set out at [138] and [142] when dealing with the husbands cross-appeal we do not consider there should be any adjustment in the husband s favour because the wife will continue to remain as a director and shareholder of the company and thus be entitled to continuing dividends. Just and equitable 195. It was brought to our attention at the hearing of the appeal that, if the appeal was allowed and the discretion re-exercised, the parties would seek the opportunity to draft orders giving effect to the different percentage outcome. Given that we propose to make an order providing for a different percentage outcome, we will also make an order providing for the parties to submit a minute of consent orders detailing the form the orders should take In regard to the arrangements put in place by the parties and the fact that any re-exercise would be limited to a cash adjustment, we are satisfied that the orders which will be made are just and equitable as between the parties. Importantly the parties will, as agreed, continue to operate their very successful business into the future so as to preserve the major asset. COSTS OF THE APPEAL AND THE CROSS-APPEAL 197. At the hearing before us we invited senior counsel for both parties to make submissions as to costs in relation to both the appeal and the cross-appeal. Senior counsel for the wife sought an order for costs in the event that the appeal was successful, as well as in the event that the cross-appeal was unsuccessful. Senior counsel for the husband essentially conceded before us that if that were to be the outcome, he could not resist an order for costs. Given that we are allowing the appeal and dismissing the cross-appeal we therefore propose to make orders for costs in favour of the wife in relation to both. [2015] FamCAFC 57 Reasons Page 55

60 MAY J 198. I have had the considerable benefit of reading the joint judgment of the Chief Justice and Justice Ainslie-Wallace I agree the appeal should be allowed and the cross-appeal dismissed. Further, as acknowledged by the parties, the proper course is that this court re-exercise the discretion Having properly rejected the husband s arguments, including that based on special contributions and after carefully describing and balancing their respective contributions, it is difficult to understand how the primary judge reached the conclusion that the parties property should be divided disproportionately In part, the explanation appears in [73] of the reasons as follows: 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 post-separation 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 It seems that the primary judge attached considerable significance to what was referred to as the husband s stewardship of the business post-separation. That ignored his own findings in relation to the parties respective contributions and impermissibly ignored the wife s continuing contributions The findings made by the primary judge, including the proper assessment of the contributions made by each of them and the factors required to be considered by s 75(2) should have led to an exercise of discretion, ordering that the property be divided equally. The orders made were not just and equitable in the circumstances To this extent his Honour was in error Thus, I agree that the appeal should be allowed and that this court should re-exercise the discretion as proposed by the Chief Justice and Ainslie-Wallace J The cross-appeal should be dismissed for the reasons given by the Chief Justice and Ainslie-Wallace J. [2015] FamCAFC 57 Reasons Page 56

61 207. An order for costs should be made. I certify that the preceding two-hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 17 April Associate: Date: 17 April 2015 [2015] FamCAFC 57 Reasons Page 57