Financial versus Non Financial Contributions in Property Settlements – Recent Case

Trask & Westlake [2015] FamCAFC 160 (14 August 2015)

Last Updated: 21 September 2015

FAMILY COURT OF AUSTRALIA

Clauson & Clauson (1995) FLC 92-595
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206
Ferraro & Ferraro [1992] FamCA 64; (1993) FLC 92-335
Gollings & Scott (2007) FLC 91-507
Gould v Vaggelas (1985) 157 CLR 215
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
In the Marriage of Garrett (1984) FLC 91-539
JEL & DDF [2000] FamCA 1353; (2001) FLC 93-075
Kowalski & Kowalski (1993) FLC 92-342
Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605
Newmont Yandal Operations Pty Ltd v The Jaron Corporation and the Goldman Sachs Group [2007] NSWCA 195; (2007) 70 NSWLR 411
Noetel & Quealey [2005] FamCAFC 677; (2005) FLC 93-230
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
R v Cripps; ex parte Muldoon (1984) QB 686
Sharman v Evans [1977] HCA 8; (1976-1977) 138 CLR 563
Williams & Williams (1984) FLC 91-541
Williams & Williams [1985] HCA 52; (1985) FLC 91-628

REPRESENTATION

 

ORDERS

(1) That the appeal be allowed.
(2) That the Orders made on 29 November 2013 by Aldridge J be varied by:

(a) Discharging Order 2(f) thereof

(b) Ordering in lieu as follows:

(f) The wife be paid an amount $X calculated in accordance with the following formula:

$X = [(A + $4,795,101) x 60%] – $2,241,154

Where:

A is the balance remaining consequent upon compliance with the sales and payments required by paragraphs 1 and 2(a) to (e) of these orders;

$4,795,101 is the total value of the property and superannuation interests of the parties as found excluding the assumed value of the two properties the subject of sale; and

$2,241,154 is the value of the property retained by the wife as found;

(g) The husband be paid the balance.

(c) Varying order 3 thereof by deleting the words “to (f)” and substituting the words “to (g)”.

(3) The parties shall file and serve any submissions as to the costs of the appeal within seven (7) days of the date of these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trask& Westlake has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Appeal Number: EA 2 of 2014
File Number: SYC 1788 of 2010

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. Some four years after the parties separated in February 2009, Aldridge J made orders for settlement of property. The husband appeals those orders.
2. The parties had then been married for about 11 years and had lived together for about 13 years. They have four children who were aged approximately 15, 13, 11 and nine at separation. The issues in this appeal devolve, in varying forms, from events that occurred in the relatively lengthy period between the parties’ separation and the trial. Principal among those events is the husband’s post-separation employment by, and subsequent retrenchment from, Company E.
3. The employment resulted in the husband’s income “increasing markedly” from the “very high” income he had erstwhile been receiving. In the 2010, 2011 and 2012 financial years, the husband’s taxable income was, respectively, $2,076, 984; $3,444,209 and $1,042,426. (at [79]). As a result of both employment by, and retrenchment from, Company E, the husband also received sums totalling $2,577,000. The husband also became entitled to “restricted share units” valued at $187,397 net of tax which, uncontroversially in this appeal, were treated by his Honour as a financial resource. His Honour found that the cash sums received by the husband made its way into property susceptible to orders under s 79 of the Family Law Act 1975 (Cth) (“the Act”). Again, that finding is not controversial.
4. In light of the matters just referred to, his Honour assessed contributions by delineating between the parties’ contributions to the point of separation and those made in the period post-separation. He assessed each as equal. His Honour “adjusted” that assessment by 10 per cent by reference to s 79(4)(e) so as to entitle the wife to 60 per cent of the property and superannuation interests of the parties which, as his Honour found, had a total net value of $7,114,442. The orders thereafter framed saw each of the parties keeping a valuable piece of mortgaged real property together with other property and also saw the proposed sale of two real properties, one in England and one in Australia.

THE ISSUES IN THE APPEAL

(a) The Assessment of “Post-Separation Contributions”

5. The parties “conducted their relationship on the basis that the husband would pursue his career and the wife would be the homemaker and primary carer of the children” (at [83]). The trial judge found that (at [79]):

… the husband frequently took new positions to advance his career and to increase the family’s income. These new positions often required the family to relocate, both within Australia and internationally. The wife therefore frequently moved residences and countries with small children to enable the husband to take up these new employment opportunities.

6. The foundation for his Honour’s assessment that the parties’ post-separation contributions were equal (and, thus, that they were equal overall) is found in his Honour’s findings at [82] – [86] of the reasons. In essence his Honour found that the wife’s significant indirect financial contributions and contribution to the welfare of the children were a “direct non-financial contribution to the husband’s ability to be employed (ultimately) by Company E and its associated benefits” and, in that respect, her contributions were a continuation of the roles that the parties had each undertaken in this particular marriage while it subsisted.
7. It is contended that, when account is taken of the amount of the direct financial contributions made by the husband in the form of the cash injections (and what they now represent as property to be divided) his Honour’s assessment cannot be just and equitable. An argument contained within the husband’s written outline to the effect that the contention gained strength when consideration was given to the growing independence of the children, the husband’s absence from the household and the substantial period since the parties separated was abandoned orally before us.

(b) The Husband’s Income-Earning Capacity and the s 79(4)(e) Assessment

8. It is said that his Honour’s “adjustment” on account of s 79(4)(e) is “manifestly excessive” when regard is had to the findings made by his Honour as to the factors underpinning that assessment. A separate ground relevant to that assessment refers to the husband’s unemployment at the trial and asserts that his Honour’s finding that the husband would likely be a high income earner “in a year or so” is made without sufficient evidentiary foundation.
9. The husband’s unemployment at trial founds an additional challenge. It is contended that, because the husband was unemployed, he needed to meet mortgage and other payments pending the sale of the London and Australian properties from capital which had the effect of reducing his entitlement contemplated by his Honour’s orders.

(c) The Form of the Orders

10. Consistent with what the husband contended at trial, his Honour decided to take account of the potential difference between the agreed value of the London and Australian properties (by reference to which his Honour’s percentage and dollar assessments were undertaken) and the possible sale price. His Honour did so in the same manner as that contended for by the husband, that is by specifying a percentage to be applied to the net proceeds of sale after deduction of specified expenses. It is contended that the form of his Honour’s orders is “contrary to principle”. It is said that the decision of this court in Noetel & Quealey [2005] FamCAFC 677; (2005) FLC 93-230 supports that proposition.

THE ASSESSMENT OF CONTRIBUTIONS MADE POST-SEPARATION

11. The first part of the husband’s challenge asserts, primarily it seems by reference to the decision of this Court in Gollings & Scott (2007) FLC 91-507, that the trial judge “erred in principle” in “taking into account what he described as significant contributions of the [wife] to the [husband’s] post-separation earnings and contribution thereof”.
12. It is by no means clear what “principle” is relied upon in support of that contention. In Gollings, this court referred to there being “no further obligation” upon a party ‘to continue to accumulate assets’ during the post-separation period and to the fact that a party is “… in a sense free to do with his income as he please[s].” (at 81,480). Equally, this court there referred to each of the parties being entitled (subject to the matters there specified) to “… get on with his or her life independent of the other”.
13. That statement was made within a specific context, namely the consideration of whether particular funds should be “added back” as against the husband. Nothing said by this Court in Gollings suggests that taking due account of those factors excludes consideration of contributions to property acquired by one party subsequent to separation. In particular, the notion “… that the contribution of the homemaker and parent ceases upon the separation of the parties…” involves “… a serious misreading of s 79(4)(c)” (Ferraro & Ferraro [1992] FamCA 64; (1993) FLC 92-335, 79,568).^[1]
14. The husband’s written outline of argument calculates the percentage of the total value of the property represented by the husband’s post-separation cash injections. That can be a useful measuring stick, but the assessment of contributions remains “a matter of judgment and not of computation” (In the Marriage of Garrett (1984) FLC 91-539 at 79,372)^[2]. That it must be so is emphasised by the fact that the percentage figure pertaining to direct financial contributions is being compared to the extremely important contributions made by the wife in maintaining a home as a single parent to four children dealing with the separation of their parents. Those contributions are not susceptible to any such mathematical calculation.^[3] His Honour plainly, and with respect correctly, recognised that the wife’s contributions did not cease upon separation but, rather, continued in circumstances made more difficult by the fact of separation. His Honour plainly accorded significant weight to those contributions.
15. Central to his Honour’s assessment of the parties’ respective post-separation contributions are the findings to the effect that the husband had arrived at his position with Company E by dint of his talents, dedication and hard work but also by dint of the contributions made by the wife across the years preceding that employment. The years of cohabitation had embraced roles for the parties agreed between them that had led them to the point where one of them, the husband, received tangible recognition of, as his Honour put it, the “experience, knowledge and opportunities he had obtained in his earlier employment”(at [84]). The contributions of the wife are much less tangible. The lack of tangible recognition, or the fact that they are not susceptible to a dollar calculation, does not render them less important.^[4]
16. Once those principles are accepted the quintessentially discretionary task confronting his Honour was to compare contributions of a different nature with different characteristics. His Honour plainly did so carefully. Despite the manner in which the challenge is framed, we think that, in truth, the husband’s challenge is not one directed to the application or misapplication of principle at all but, rather, an assertion that his Honour should have given greater weight to the husband’s post-separation contributions and less to the wife’s different contributions.
17. This court, or any one of us, may have reached a different conclusion if charged as a trial judge with assessing those contributions. But, of course, that is insufficient to establish appealable error. The function of this court is “not to offer a second opinion” (Sharman v Evans [1977] HCA 8; (1976-1977) 138 CLR 563, 565) or to substitute our view of the application of s 79’s wide discretion for that of the trial judge. Indeed, “[i]t cannot be too strongly said that a mere difference of opinion … does not indicate error on the part of the trial Judge” (Sharman v Evans (above)).
18. We can see no error in his Honour’s assessment. The challenge to his Honour’s contributions assessment fails.

INCOME-EARNING CAPACITY AND THE S 79(4)(e) ASSESSMENT

19. The appellant challenges specifically the finding made at [100]:
    100. In summary then, the husband has a capacity to earn a significantly higher income than the wife albeit not as high as he previously received. Whilst he is not able to exercise that capacity at present it is likely that in a year or so he will be in that position.
20. The appellant’s assertion that his Honour’s finding is “without evidence nor any reasonable basis of inference …” is plainly incorrect. The evidence of Mr C, although qualified (and, necessarily, predictive) provides ample foundation for the finding. Despite invitation from his Honour, then counsel for the husband asked no questions of Mr C. Mr C’s unchallenged evidence included the following^[5]:

MR LETHBRIDGE: As somebody with experience in the field of placing senior management candidates, as I understand it, in the area of the financial services, what are the skills that [the husband] would need to obtain, or to modify his current skills in order best to make himself marketable? —
MR C: I don’t think it’s a question of whether he needs to do anything at all. I think it’s a macro-economic issue relative to the financial services community where there is just a limited opportunity at the moment, and there is an over-capacity of people with good experience, [the husband] included. So, you know, I don’t think there is much he can do either to wait for opportunity as and when it comes along, or do something entirely different, whatever that may be.
MR LETHBRIDGE: And when you say “wait for opportunity to come along”, with the experience you have with your through-put of other clients of his seniority, can you indicate a timeframe that might be said to be average or realistic?–
MR C: I can’t really answer that question because it depends on the time of year, it depends on the individuals that have been able to find opportunity, it depends on the geographic location. If I had a crystal ball I could probably anticipate when people are going to find opportunities, but unfortunately I don’t.
MR LETHBRIDGE: Sure. Now, you said in May that, from your experience and observations of the banking industry at that point, the prospect of [the husband’s] re-employment in the near future in investment banking was poor. Is the situation that you opined about in May the same at the moment, or if not, how is it varied?—
MR C: I would say it is much the same unfortunately.
MR LETHBRIDGE: Right. So where you talk of the near future, what period of time, if you can, are you talking about there?—
MR C: How do I answer your question? [The husband] may be fortuitous to come across an opportunity in a month’s time. He could be still looking for opportunity in the financial markets in 12 months’ time. I can’t sort of allocate what that timeframe would look like. But if you are asking me what I would refer to as near future, I would probably say three to six months.

21. The distinction between, on the one hand, a trial judge making a finding without an evidentiary foundation or failing to take account of a relevant matter and, on the other hand, failing to accord sufficient weight to a relevant matter is extremely important: as to which see the often-cited passage of Stephen J in Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 519. Great care should be taken in making assertions of the former type when, in truth, the assertion is the latter. The former assertion ought not be made unless the reasons reveal the omission complained of.
22. More broadly, his Honour’s assessment pursuant to s 79(4)(e) is challenged as being “manifestly excessive and unwarranted” and that his Honour “undervalued and misunderstood the effect of the adjustment” made.
23. Reference to his Honour’s reasons demonstrates plainly that the latter part of that challenge has no foundation. As the appellant’s written outline of argument itself acknowledges, his Honour explicitly took into account the effect, in dollar terms, of his proposed assessment (see for example, Clauson& Clauson (1995) FLC 92-595 at 81,911) and the appellant’s recitation of the fact that a 10 per cent adjustment amounts to an assessment of a disparity of 20 per cent with a dollar equivalent of $1.422m. So, too, the assertion that “… the adjustment, which sprang from a starting position of equality as to contribution resulted in the [wife] taking 50% more of the net property of the parties …” does no more than state the mathematically obvious.
24. His Honour carefully evaluated each of the matters enumerated within s 75(2) which were relevant to an appropriate assessment (at [87]-[121]). No error is asserted in respect of any of those individual findings. His Honour gave careful consideration in particular to the disparity in income-earning capacity of the parties, including the specific finding earlier referred to which was entirely open to his Honour.
25. His Honour recorded, for example, that the husband had the “capacity to generate a very high income”, something “demonstrated by the positions he has held … and … the income generated from those positions”(at [88]). While the appellant’s written outline of argument points to the calculations earlier referred to, alternative calculations can also be done in respect of the disparity of $1.422m assessed by his Honour. For example:
    • The husband’s income in 2010 alone was about “50% more” than that assessment;
    • The husband’s income in 2011 was more than double the assessment; and
    • The assessment represents about a fifth of what the husband earned in three of the four years post separation.
26. In comparison to the husband, the wife, although a professional with a bachelor degree in applied science, has not been employed since obtaining her qualification, save for a few months of part-time work in 2000. His Honour found, again unchallenged, that “… she will obviously need to undergo some retraining to be employed and would be commencing a career from the beginning”. His Honour also specifically found that it “… is most unlikely that her earning capacity will ever be anywhere near as high as the husband’s” (at [101]). That finding is not challenged and nor could it be.
27. His Honour also carefully weighed:
    • The fact that the youngest of the parties’ four children was then aged nine and that the predominant care of the children would fall to the wife “for a considerable time in the future” (at [106]). His Honour, with respect correctly, regarded this as a very significant factor;
    • The continuation of an appropriate standard of living for the parties in light of their pre-separation circumstances;
    • The duration of the marriage and the extent to which it has affected the wife’s capacity to earn income. “… [T]he wife did not have the opportunity to develop a career of her own [and] [t]hat significantly affected [her] earning capacity”(at [113]); and
    • The fact that the husband has the benefit of the unrestricted share units valued at $187,397 “which will probably vest in 2015”.
28. To repeat what we earlier said, it is not sufficient to attract the intervention of this Court that we or any of us may have made an assessment different to the trial judge. Nothing to which we have been taken nor any argument by the appellant persuades us that his Honour’s discretion miscarried in respect of the s 79(4)(e) assessment.
29. A separate challenge also relates to a matter which his Honour considered pursuant to s 75(2)(o) of the Act. Orders made in December 2010 and November 2012 obliged the husband to make various payments. It is said that his Honour failed to take into account relevant facts namely “that as a consequence of the appellant’s unemployment all mortgage and unemployment payments that he was required to make pending the sale of the properties would be paid from the appellant’s capital and thus diminish the true value of what his Honour intended he would receive to represent 40% without any order to address the situation”.
30. Again, it is with respect not correct to assert that his Honour “failed to take account” of the matter referred to. Our earlier comments in that respect pertain. Here, his Honour specifically addressed the matter referred to and did so, as was entirely open to him, by reference to s 75(2)(o) (at [116]-[119]).
31. Having found that the evidence did not permit of the finding contended for by the wife, his Honour considered it appropriate that the orders remain in place until the properties the subject of his orders were sold in accordance with them. It is important to observe that those orders provided for expeditious sale: the orders required auctions within three months of the orders and specified the setting of reserve prices by the parties’ agreement or, failing that, as proposed by the auctioneers.
32. Nothing to which we were taken, nor any argument by the appellant persuades us of any error by his Honour.

THE FRAMING OF THE ORDERS

33. The terms of the orders made by his Honour have their genesis, relevantly, in what his Honour said at [135] – [136]:
    135. In order to receive 60 per cent of the total net assets of $7 114 442, namely $4 268 665, having regard to the net assets retained by her of $2 241 154, the wife needs a payment of $2 027 511. That is 87.43 per cent of the net value of the assets being sold. If the husband receives 12.57 per cent of the net assets being sold being $291 500 and the assets being retained by him of $2 554 167 he will receive $2 845 667. This equates to 40 per cent of the net assets (strictly 40 per cent is $2 845 777).
    136. These will not, of course be the final figures as the sale price, the costs of sale and any capital gains tax, are not yet known. Therefore, although it will not give exact expression to the percentage determined above, the order will be that the net proceeds of the [LL Property] and [F Property] properties be divided as to 87.5 per cent to the wife and 12.5 per cent to the husband. This will enable the burden or benefit of the variations to the above values to be borne by the parties in the determined proportion.
34. The value of the “total net assets” referred to by his Honour includes an agreed value in respect of two properties – one in London and one in Australia. Each of those properties was to be sold in accordance with his Honour’s orders. It was, then, necessary for the orders to provide for an amount to be received by each of the parties by reference to as yet unknown net sale prices. The method employed by his Honour to arrive at those figures was urged upon him by then counsel for the husband. His Honour’s ultimate orders mirrored, relevantly, that approach.^[6]
35. If his Honour intended the orders to effect, ultimately, the assessed division of property of 60 per cent in favour of the wife (save for minor discrepancies), the method employed is flawed. The wife contends that this is not what his Honour intended. She asserts that the use of the expression “[t]hese will not, of course, be the final figures” and his acknowledgement that the percentage to be applied to the ultimate net sale proceeds “… will not give exact expression to the percentage determined above [i.e. 60%]” (at [136]), indicate a different intention by his Honour. That intention was, she contends, to allow, as an exercise of discretion, any percentage difference over or below the assessed 60 per cent resulting from the application of the specified percentage to the final net sale figures, to lie where it fell.
36. Such an approach would have been open to his Honour as an exercise of discretion: ultimately his Honour’s task was to arrive at “appropriate” orders which are “just and equitable”.^[7] It is within discretion for a judge to determine that orders should reflect a division that approximates 60 per cent/40 per cent. If that be the judgment, then small variations in the ultimate percentage received consequent upon the sale of property may not attract the intervention of this court.^[8]
37. Axiomatically, however, if that be the judgment, adequate reasons must make that abundantly clear, and all the more so because of the ubiquity of orders intended to reflect, with precision, a result expressed in percentage terms. It is that consideration which finds reflection in Noetel relied upon by the appellant husband. If orders are intended to reflect with precision the judgment expressed in percentage terms, those orders must acknowledge that the property may sell for a price different to the current estimated value.
38. The question which arises if his Honour’s orders are to be defended on the basis contended for by the respondent wife is, then, did his Honour intend to eschew a result reflecting precisely his assessment of 60 per cent / 40 per cent in favour of allowing any loss or gain to lie where it fell, even if the consequence was an overall result based on actual net sale prices different to that percentage? Senior counsel for the wife concedes before us that the only support for any such conclusion is the expressions earlier referred to in [136].
39. His Honour’s reasons read as a whole and, indeed, [135] and [136] read as a whole, do not bear that interpretation. First, the concluding sentence of [136] of the reasons points against any such conclusion. His Honour said that adopting the specified percentages of 87.43 per cent / 12.57 per cent to the ultimate net sale proceeds “… will enable the burden or benefit of the variations to the above values to be borne by the parties in the determined proportions” (emphasis added). Secondly, the significant value of the total property means that any relatively small variations in ultimate percentage entitlement derived by adoption of the 87.43 per cent / 12.57 per cent formula will result in significant variations in the dollar disparities in the property received by the parties. The reference by his Honour to the inexactitude of the result at [136] is plainly a reference to the minor difference (of about $110) produced by the application of the formula to the pool using the existing values of the real property. Equally, at [135] his Honour makes it clear that the purpose of calculating the 87.43 per cent / 12.57 per cent formula is “in order [for the wife] to receive 60 per cent of the total net assets …”.
40. The respondent’s argument that his Honour intended the gain or loss to lie where it fell is not sustainable. The consequence is that there is error if his Honour’s orders do not reflect the result, which his Honour intended. As we have said, his Honour did err in that respect.
41. His Honour’s percentage formula makes no allowance for the fact that, as the assumed values of the two properties rise or fall they bear a greater or lesser proportion of the total value of the pool. That is, using his Honour’s formula would produce the assessed percentage entitlement only if the new values bore the same proportion to the total value of the pool as the original agreed values. Axiomatically, if they have risen or fallen, and the values of the balance of the property remain the same (as is assumed) they do not.
42. In light of the arguments before us and the frequency with which orders of the instant type are made, it is helpful we think to illustrate mathematically the proposition just advanced. His Honour’s calculations can be illustrated as follows:

43. To illustrate the difference if his Honour’s formula is applied to different sale prices, it is convenient to assume, purely for illustrative purposes, the values which the husband sought to lead before his Honour but which his Honour rejected in favour of the values earlier agreed between the parties.

44. In dollar terms, the disparity between the parties by reference to his Honour’s orders is, as referred to above, approximately $1.422m. The disparity in the illustrated example of 25.77 per cent represents a dollar disparity by reference to the assumed sale values of approximately $2.041m. ^[9]
45. The parties were agreed before us that, if we were of the view that his Honour’s calculation is erroneous, it can be corrected by reference to “the slip rule”. “Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended” (Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206, 209 (“Elyard”); DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226). The general rule that, save with consent, orders cannot be amended without a rehearing has as an exception for “accidental slips or omissions” (Elyard (above)). In DJL (at 244), the High Court held that “An order … might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce”. That statement, emphasised as indicated, was said by Spigelman CJ in Newmont Yandal Operations Pty Ltd v The Jaron Corporation and the Goldman Sachs Group [2007] NSWCA 195; (2007) 70 NSWLR 411 “should be accepted as authoritative” (at [80]). Of course, it is open to the parties to correct any mistake that might otherwise be the subject of the application of the slip rule by agreeing to vary the orders.
46. The operation of the rule as described by Spigelman CJ in Newmont might be seen to embrace the instant facts. That said, the “slip rule” has been described as both “surprisingly wide” and “that it is to be exercised sparingly” (Respectively R v Cripps; ex parte Muldoon (1984) QB 686, 695; Gould v Vaggelas (1985) 157 CLR 215, 275 per Gibbs CJ, each quoted in Russell v Russell [1999] FamCA 1875; (1999) FLC 92-877). Specifically, it has been held that it applies “… where the proposed amendment is one upon which no real difference of opinion can exist [and] it does not apply where the amendment is a matter of controversy; nor does it extend to mistakes that are the consequence of a deliberate decision” (Elyard at 210). Similarly, while the rule permits of correction for accidental slips or omissions of counsel, deliberate but mistaken acts or omissions may not be correctable by the application of the rule (L Shaddock & Associates Pty Ltd v Parramatta City Council No 2 [1982] HCA 59; (1982) 151 CLR 590 at 594-5; Gould v Vaggelas (above) at 274-5).
47. The classification of the error here might be the subject of debate by reference to the statements of principle to which we have referred. On balance, however, we consider that the error results from a mistaken but deliberate calculation urged upon the trial judge by then counsel for the husband, rather than “an accidental error or omission”. Similarly, as a result of his Honour having deliberately adopted that methodology. “ …[the] error complained of by the husband is not readily discernible or apparent from a reading of the judgment and/or orders” (Noetel at [66]). Indeed, as in Noetel, his Honour’s intention in doing so was the subject of contention before us.
48. Therefore, we do not consider that the circumstances of this case render his Honour’s orders susceptible to correction by application of the slip rule. Rather, we consider that his Honour erred in making orders which do not reflect the judgment. That determination has two consequences. The first is that the appeal should be allowed on that basis. The second is that, with the parties consent, this court should re-exercise the discretion and make orders the terms of which are, in that event, agreed between the parties.

COSTS

49. At the conclusion of the hearing of this appeal, the parties sought the opportunity to make submissions as to the costs of the appeal as it was contended that s 117(2A)(f) may have relevance to any such order.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 14 August 2015.

Associate:

Date: