The wife appeals an order that she receives 55% of the parties non-superannuation assets after the court made a 15% adjustment in her favour.

In her appeal against the property settlement orders, the wife argues that the judge erred when deciding what to include or exclude in the non-superannuation asset pool; she erred in her overall assessment of contributions made by each party and therefore erred in making only a 15% adjustment.

Background to the appeal

The primary judge assessed contribution-based entitlements as 60% to the husband and 40% to the wife. When considering the settlement order, the primary judge regarded the fact that the wife has an ongoing duty to care for and provide for the children, and that she has a reduced capacity for remunerative employment as significant factors when considering spousal maintenance. After considering all section 75 matters, the judge made a 15% adjustment in favour of the wife on non-superannuation assets. The wife now appeals these orders.

The Appellant’s (the wife) legal arguments:

The wife based her appeal on the following grounds:

• The primary judge erred in rejecting the wastage arguments the wife raised. The wife argued that $20 000 must be added back to the asset pool. The husband refused to refinance the mortgage, and as a result, there was about $20 000 less property available for distribution. She further argued that share trading losses incurred by her husband should be taken into account.

• The primary judge erred in the way she determined the total value of the non-superannuation pool by including or not including certain items. For example, the wife argued that the judge erred in including the husband’s credit card and tax liabilities in the pool available for distribution, and the judge omitted to take the husband’s long service leave entitlements into account.

• She erred in her overall assessment of contributions and in determining the husband’s contribution as 60%.

• She erred in making only a 15% adjustment in favour of the wife on s 75(2) matters. She failed to have adequate regard to the husband’s earnings, long service leave entitlements, and his good health compared to the wife’s position. And then erred in assessing the overall adjustment as 55% to the wife and 45% to the husband. The wife argued that the adjustment was inadequate and wrong.

Legal argument by the respondent (the husband)

Counsel for the husband resisted the appeal and sought costs on the basis that if the appeal is dismissed the wife would have been entirely unsuccessful. The husband was entitled to assume that the orders made in the trial court would bring the litigation to an end.

The Court’s findings

• 0n the wastage arguments the Court held: The primary judge took into account that the mortgage payments were significantly in advance when the husband suspended repayments; the husband’s circumstances changed when he was required to pay child support. The Court held on appeal that the primary judge exercised her discretion properly when she decided not to add the $20 000 back to the asset pool. The refusal to refinance the mortgage was not wastage.

• Regarding the share trading losses it was established that the husband made some risky share trading deals during the marriage and lost about $40 000-$50 000. However the Appeal judge agreed that the husband’s trading was not reckless, negligent or wantonly with the parties’ money. And he did not embark on a course of conduct designed to reduce the parties’ wealth. This ground for appeal failed.

• On the issue of what should be included or excluded in determining the total value of the non-superannuation pool the Appeal Judge found the following: Regarding the long service leave entitlements counsel for the wife conceded that this issue should just be considered as part of the husband’s employment package when considering s 75(2) factors. There was no error. The judge found that the husband’ tax liability was in no way taken into account against the wife and the credit card debt was of no significance in this case. The appeal on all these grounds failed or had no merit.

• Regarding the 60/40% assessment of contributions and the 15% adjustment.

It was primarily argued that the primary judge attached the wrong weight to certain contributions.This assessment is an exercise of discretion for the primary court. Case law is clear that an appellate court should be slow to overturn a primary judge’s discretionary decisions on grounds which involve conflicting assessments of matters of weight. Therefor this ground also failed. It was not argued that the primary judge regarded any irrelevant matters or failed to take any relevant matters into account.

The appeal was dismissed on all grounds

The Court further ordered that the wife pays the husband’s costs of and incidental to the appeal.  It agreed with the respondent’s argument regarding the wife being entirely unsuccessful and this outweighed the fact that the husband’s financial position was superior to hers. He was entitled to assume that the orders made in the trial court would bring the litigation to an end.