The wife appeals property orders made by the trial judge based on the fact that the trial judge made significant errors when determining these orders

The trial judge found that the husband did not make the full and frank disclosure regarding his finances; he further found him to lack credibility. It is argued that he gave inadequate consideration to these findings when assessing s79(4)(e) matters. As a result, he erred in including certain assets and liabilities in the asset pool.

Background to appeal

After 16 years of marriage, the couple’s marriage broke down. The trial judge included certain debts of the husband into the joint asset pool. He also included the wife’s hurt on duty pension into a separate asset pool. At the same time, it was found that the husband failed to fulfil his duty of disclosure and the judge made adverse findings of his honesty and the reliability of his evidence. In the end, when making sec 79 orders, the trial judge divided the “primary pool” of property 62,5% to the wife and 37,5% to the husband. He further ordered that the husband receives 5% of the capitalized value of the wife’s pension (the secondary pool). The wife now appeals these orders and requests that the Appellate court re-exercise the s79 discretion instead of remitting the case for re-trial.

Appellant’s legal arguments

• The wife’s appeal is based on a number of significant errors by the trial judge. We will not be able to discuss all the grounds of appeal in this space, but the main errors raised are:

• The trial judge erred in accepting that the husband had a substantial debt owing to his parents and included that debt as a liability of the parties. The wife argued that the debt did not exist. Similarly, the judge erred in finding that there was a debt owing to a repairs company for a car. The wife also denied the existence of this debt.

• The trial judge incorrectly found that one of the parties’ children was 15 years old. In fact, the child was 12. This error has a significant impact on the wife on the judge’s assessment of s79(4)(e).

• The trial judge’s assessment in terms of s79(4)(e) was based on errors of fact and was plainly unjust.

• It is further argued that the judge did not give enough weight to the fact that he found the husband to be dishonest and his evidence to be unreliable.

Respondent’s legal argument

Counsel for the respondent conceded many of the reliability issues raised on appeal. The husband argued however that assessment of contributions should favour him by 5-10% when the Court re-exercise discretion.

The Court’s findings

• The errors.
  •    Regarding the debt owed to the husband’s parents, the Court found that the trial judge erred in accepting that the debt was owing to the parents and therefore erred in including it into the asset pool liabilities. The trial judge stated that the husband would bear sole responsibility debt, but in fact, due to the Court’s property orders, the wife would bear 62.5% of the loan.

• The Court found that the trial judge erred in accepting the debt owed to the repairs company. None of the husband’s evidence regarding these debts were substantiated or corroborated by objective evidence.

• Regarding the trial judge’s assessment of s79(4)(e) the Court found that the trial judge did not take into account the dollar impact of unexplained large sums of money that the husband used to the exclusion of the wife. It failed to take into account that the wife had limited earning capacity. She had to take care of two teenage children with little support, if any, from the husband.

• Regarding the error relating to the child’s age, it was found to be an appealable error since it is relevant to the child’s support and the overall s79(4)(e) assessment. Overall it was noted that the trial judge’s reasons were difficult to follow; disparate and inconsistent  findings  about the same issues appear at different parts of the judgement.

• Although this was not a specific ground of appeal, the Court found that the inclusion of the wife’s hurt on duty pension in the asset and liabilities pool was wrong and significant. It considered itself bound to correct the injustice that resulted. This was the wife’s only source of income. It was a moderate amount and it was accepted that the wife will continue the full-time care of the children with little prospect of financial support from the husband for child support. The 5% entitlement on account of the husband’s contribution was also wrong. It was wrongly based on a calculated lump sum that the wife would never receive as a lump sum.

• The findings regarding the husband’s credibility. The husband simply failed to disclose certain evidence. Some aspects of his evidence were deliberately vague and unhelpful. Some of his evidence was false. He failed to present evidence that could have corroborated his story. The inference is that it would not have done so. The Court concluded that he deliberately concealed evidence from the Court. His failure to disclose and to be open and honest constitutes fraud and a miscarriage of justice. The trial judge failed to take into account its own findings that the husband made deliberate attempts to mislead the wife and the court.

Court’s Determination -The wife’s appeal was allowed.

The Court decided to re-exercise discretion rather than remit the case for rehearing. The wife’s pension was not seen as a separate asset pool, but regarded as her income for s79(4)(e) purposes.

The Court assessed the contributions made by each of the parties by reference to s79(4)(a) to (c) as equal against the husband’s request for 5-10% in his favour. The order was changed to be just and equitable. The wife received assets and superannuation in the total net sum of $2,270,640.

The husband was ordered to pay the wife’s cost of and incidental to the appeal.

This article provides basic information only and is not a substitute for a professional or legal advice . It is prudent to obtain legal advice from a Family Lawyer when contemplating a separation or soon after a relationship comes to an end. It is noted that publication of this judgment by this Court under the pseudonym Surridge & Surridge has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).