Cohen & Cohen [2008]

FAMILY LAW – APPEAL – APPEAL FROM FEDERAL MAGISTRATES COURT – SUPERANNUATION – CONTRIBUTIONS – Not established that Federal Magistrate erred in the exercise of discretion by failing to have appropriate regard to non-financial contributions of the wife to the superannuation interest of the husband, that being in the payment phase when the parties met. House v The King [1936] HCA 40; (1936) 55 CLR 499; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 and Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 cited. Circumstances of this case differed from those in Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060 and contributions post-separation were appropriately considered by Federal Magistrate. Federal Magistrate held not to have treated the superannuation interests inconsistently to non-superannuation assets.

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the appeal be dismissed.
(2) That within twenty-one (21) days the respondent husband file and serve submissions in support of any application for costs.
(3) That within twenty-one (21) days thereafter the appellant wife file and serve submissions in response to the submissions on behalf of the respondent husband in relation to costs.

IT IS NOTED that publication of this judgment under the pseudonym Cohen & Cohen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Appeal Number: EAA 107 of 2007
File Number: CAM 948 of 2005

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. By Notice of Appeal filed 12 September 2007 Mrs Cohen (“the wife”) appealed against orders made by Mowbray FM on 21 August 2007 in proceedings between the wife and Mr Cohen (“the husband”). The orders of the learned Federal Magistrate provided that the husband pay to the wife the sum of $35 600, $10 400 of which was designated as a maintenance provision for the wife. The parties were otherwise ordered to retain all other property to which each was entitled. In lieu of the sum of $35 600 provided for in the learned Federal Magistrate’s orders, the wife sought that the figure of $91 141 be substituted. The husband opposed the wife’s appeal and sought to maintain the learned Federal Magistrate’s orders.

Background

1. A number of matters which find expression in the learned Federal Magistrate’s Reasons for Judgment, and which are uncontroversial, provide a background to the appeal.
2. The husband was 62 years at the date of the judgment of the Federal Magistrates Court and the wife was then aged 48. The husband had previously been married. The parties met in Russia in early 2000 and were married on 2 June 2001 in Australia, the wife having travelled to Australia in December 2000.
3. The husband had previously been employed by the Australian public service, from which he retired in 1999 whereafter he received, and continued to receive, a superannuation pension.
4. The parties separated under the one roof in May 2004, the wife later vacating the matrimonial home which the husband had owned free of encumbrance prior to his meeting the wife. The husband continued to occupy the former matrimonial home.
5. The learned Federal Magistrate determined that the wife should receive 7.5 per cent of the non-superannuation assets of the parties which were worth $436 853. The husband thus retained 92.5 per cent of the non-superannuation assets together with his superannuation entitlement which was valued pursuant to the regulations at $778 384. The husband’s superannuation entitlement was in the payment phase, as it had been since 1999. The wife had a superannuation interest in the accumulation phase worth $2197. The whole of the wife’s interest accrued after the commencement of cohabitation with the husband.

The Reasons for Judgment of the Federal Magistrate

1. The learned Federal Magistrate accurately identified the competing applications before him and, again accurately, identified the six main issues in the proceedings. Having recounted the matters of background to which we have referred and the “Relevant law”, the learned Federal Magistrate identified “The asset pool”. No part of this appeal involves any challenge to his Honour’s findings of fact in that regard.
2. For reasons which will become apparent, it is necessary to record only that the net value of the parties’ non-superannuation assets was $436 853 of which only $7569 was the property of the wife, that being her partial property settlement ($5000), a bank account ($1312), another bank account ($757) and her personal effects ($500).
3. The superannuation interests of the parties were valued at $778 384 for the husband’s interest, and $2197 for the wife’s interest. As noted earlier, the former was in the payment phase, the latter in the accumulation phase.
4. Under the heading “Contributions”, the learned Federal Magistrate first considered “Contributions to non-superannuation assets”. His Honour recorded that the wife arrived in Australia with “virtually no assets” and acknowledged that “all the capital, house and share investments brought into the marriage were contributed by the husband.” No controversy arises in relation to those matters in this appeal.
5. The learned Federal Magistrate then detailed the wife’s evidence of contributions during the marriage. It has not been suggested that his Honour failed to refer to any contribution of significance asserted on behalf of the wife. In the course of reviewing the evidence, his Honour recorded that cross-examination of the wife with respect to credit card statements “contradicted her claim that her husband limited her credit card spending to $100 each month”.
6. The husband’s claims with respect to contributions were then recorded. There is no suggestion that such recording was other than accurate. His Honour then referred to what amounted to concessions by the husband during the course of cross-examination in relation to the wife’s contributions. There is no suggestion that anything there recorded was other than accurate. The learned Federal Magistrate referred to affidavit evidence relied upon by the husband from his son and daughter-in-law corroborative of a number of aspects of the husband’s allegations with respect to contributions, noting that neither deponent was required for cross-examination.
7. His Honour then considered the impact of the husband’s initial capital contributions and concluded in that regard that there was nothing “to suggest that the increment in capital value resulted directly or indirectly from ‘joint efforts of wage earning, homemaking and parenting, and mutual support’” and that the increase in the value of the husband’s house was not a “fruit of the marriage”. His Honour concluded that “[t]o treat it as such would seriously undervalue the significance of the husband’s initial capital contribution”.
8. The learned Federal Magistrate observed that the case was not one in which “the husband was freed to pursue professional or other work activities while the wife remained at home caring for children and supporting the husband”, that “[t]hroughout the marriage the husband drew on his pension to support both of them”, that the wife did not have to assume homemaking duties in order that the husband could earn income and that the husband “shared with the wife most of the activities at home”. His Honour found that “[t]he wife did engage in a range of home activities – perhaps more zealously and fastidiously than other wives”.
9. His Honour concluded that “the contributions to the non-superannuation assets during the marriage were equal”, rejecting the assertion of her counsel that the wife had made a greater contribution in that respect.
10. Reference was made to the post-separation period during which, from May 2004 to June 2005 the parties lived under the one roof, whereafter the wife lived in rented accommodation, receiving $100 per week by way of spousal maintenance from August 2005. The learned Federal Magistrate recorded that the husband had continued to receive his superannuation pension and that the wife had engaged in “part time employment since May 2004.”
11. His Honour expressed his conclusion with respect to contributions to non-superannuation assets in the following terms:-
    1. This was a very short period of cohabitation – three and a half years. The husband was receiving a superannuation pension before, during and after the marriage. I have been unable to distinguish between contributions during the marriage. There are no children. In the result I assess the wife’s contributions as 7.5 per cent of the assets other than superannuation. This amounts to about $32,800 in an asset pool of almost $437,000.
12. Under the heading “Non-financial contributions to superannuation”, the learned Federal Magistrate recorded that there was “no basis in contributions for providing part of the husband’s superannuation interest to the wife” as the wife “made absolutely no contribution, financial or non-financial, to it”, the interest being “in the payment phase well before she met him”. His Honour concluded that there should be “no adjustment to the husband’s superannuation because the wife made no contribution to it”, the same conclusion being recorded with respect to the wife’s modest superannuation interest.
13. In his consideration of the relevant s 75(2) factors, the learned Federal Magistrate referred to the “relevant evidence of the wife” and his conclusions with respect to it. Such factors included that the wife was earning in Russia about $80 per month prior to coming to Australia, that the wife’s most recent PAYG Payment Summary for 2005 – 2006 revealed a gross income of $21 565, that the wife’s English language skills “had improved rapidly over the two years since arrival in Australia and she was continuing to study English as a second language”, and that the wife was able to save approximately $5000 subsequent to commencing employment in May 2004.
14. The husband’s position in relation to s 75(2) factors was summarised by the learned Federal Magistrate in the following terms:-
    1. The husband is now 62. He is retired and receiving a weekly income of $1,032, $996 of which is from his superannuation which is indexed for life. He has an unencumbered home and a new motor vehicle. There is no evidence that he is in ill health. The wife’s suggestion that he might seek work is not realistic. There is no evidence of work opportunity nor of what the work might bring in income.
15. The financial position of the wife was summarised by his Honour in the following terms:-
    1. The wife is now 48. I have no evidence on her health. Her most recent figures put her income at just over $400 a week. She says that she lost the opportunity to follow her chosen career by coming to Australia. I do not think she has been totally frank about this. She clearly wanted to come to Australia and registered her name with an introductions agency some three years before she met her husband. If she wishes she could return to Russia. Indeed her husband offered to assist her return if she desired.
16. The learned Federal Magistrate concluded by reference to the evidence before him that the wife’s “English language skills are somewhat better than she would have me believe” but that nevertheless the wife “does need to undertake further studies including in English if she is to improve her employment and income prospects.”
17. His Honour concluded, having regard to the factors to which he had referred, including that “period of cohabitation was short and there are no children of the marriage”, that there was “no basis for an adjustment under section 75(2) for either party for either the superannuation interests or the non-superannuation assets.”
18. The issue of spousal maintenance was then considered. During the course of the hearing of the appeal learned counsel for the wife sensibly conceded that, notwithstanding any suggested procedural errors in so doing, the learned Federal Magistrate had granted the wife the relief she sought by way of spousal maintenance. As such, the wife’s ground of appeal which sought to challenge the learned Federal Magistrate’s methodology in determining the spousal maintenance claim was of no more than academic interest. There being no cross-appeal in relation to his Honour’s order for spousal maintenance, it is thus unnecessary to refer to his Reasons for Judgment with respect to that topic.

Relevant Law

1. The law governing this appeal is not in doubt, and does not require extensive restatement. No finding of fact made by the learned Federal Magistrate has been challenged in this appeal and, with respect to learned counsel for the wife, sensibly was that so. Nor is it asserted that the learned Federal Magistrate’s exercise of discretion miscarried by virtue of any failure to apply relevant legal principles. No ground of appeal agitated on behalf of the wife asserts that the learned Federal Magistrate failed to have regard to any relevant consideration under s 79(4) or s 75(2) in exercising his discretion. Save in one respect, no ground of appeal asserts that the learned Federal Magistrate had regard to any extraneous or irrelevant facts or circumstances in the course of exercising his discretion.
2. In House v The King [1936] HCA 40; (1936) 55 CLR 499 the High Court said (at 504 – 505):-

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. The possible bases of success identified in House v The King (supra) are necessarily limited having regard to the matters to which we have referred.
2. In Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 Brennan J said (at 539 – 540):-

The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [[1948] 1 All ER 343 at 345], Asquith L.J. stated the rationale of an appellate court's approach:

‘It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’

The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.

1. In Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 Stephen J said (at 519 – 520):-

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.

1. To the extent that there is a challenge to the adequacy of the learned Federal Magistrate’s Reasons for Judgment, as there is in one of the wife’s grounds of appeal, the relevant law is not in doubt. In Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Mahoney JA said (at 385 – 386):-

There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law: see, for example, Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697; McCarroll v Fitzmaurice [1979] 2 NSWLR 100.

...

However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument.

...

In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons. Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement: see Pettitt v Dunkley (at 387, 388). But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process. However, the fact that the function of the requirement is, at least in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what will be a discharge of it. Thus, in some cases where ordinarily an appeal is not contemplated, there may not be a need for reasons.

1. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 McHugh JA said (at 280):-

If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.

...

Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related “to the function to be served by the giving of reasons”. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal.

1. In Bennett & Bennett (1991) FLC 92-191, the Full Court said (at 78,266):-

Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge’s decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

Grounds of Appeal

Grounds 1 & 2

1. Learned counsel for the wife agitated Grounds 1 and 2 together. It is convenient for us to deal with the grounds in that fashion. Grounds 1 and 2 provided:-

The learned Federal Magistrate erred in law in acting upon a wrong principle and/or in failing to properly exercise his discretion in the following manner:

1. In failing to take into account the wife’s non financial contribution to the superannuation asset and in failing to provide reasons for taking this approach.
2. In failing to provide reasons and/or to explain how he assessed the wife’s contribution to the non superannuation assets at 7.5% in circumstances where he found that “contributions to the non superannuation assets during the marriage were equal.”
3. Learned counsel for the wife’s Summary of Argument did not seek to advance the reasons challenge articulated in these two grounds. Nor did her oral submissions on the hearing of the appeal. It is necessary only to record our conclusion that the learned Federal Magistrate’s reasoning process was adequately revealed by his Reasons for Judgment, as was the basis of his decision. We are not persuaded that the challenge to the adequacy of the learned Federal Magistrate’s reasons can succeed.
4. As learned counsel for the wife’s Summary of Argument and oral submissions on the hearing of the appeal to this Court confirm, the real thrust of these grounds was that the learned Federal Magistrate erred in concluding that the wife established no entitlement to the husband’s superannuation interest by virtue of non-financial contributions. Learned counsel for the wife properly acknowledged that the wife could not establish any entitlement to the husband’s superannuation interest by virtue of financial contributions, whether direct or indirect. Necessarily counsel for the wife thus asserted that contributions within s 79(4)(c) provided the foundation of the wife’s asserted contribution based entitlement to the husband’s superannuation interest.
5. The crux of the wife’s complaint was that, though entitled to consider “two asset pools” as his Honour appeared to do (see Coghlan & Coghlan [2005] FamCA 429; (2005) FLC 93-220), he erred in “treating the two asset pools inconsistently”. It was further submitted that there was “no onus on the wife to establish a causal connection between the property that existed at the date of the hearing and contributions she made to the marriage partnership”.
6. Reliance was placed on the judgments of the Full Court of this Court in Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060. As was suggested during the course of the hearing of the appeal, Farmer & Bramley (supra) clearly, and logically, establishes that an entitlement to property which did not exist when the parties separated in circumstances where contributions were made thereafter and until the time of hearing did not preclude an order being made with respect to such property. With respect to the wife’s learned counsel, that is rather different to a case such as the present where the learned Federal Magistrate accepted that, whatever the wife’s entitlement, it would be satisfied out of property which the husband possessed long before the cohabitation between the husband and wife commenced. We thus do not see that anything in Farmer & Bramley (supra) or Figgins & Figgins [2002] FamCA 688; (2002) FLC 93-122, on which learned counsel for the wife also relied, could advance these challenges.
7. Learned counsel for the wife submitted that his Honour erred in:-
   1. ... failing to assess the wife’s non financial contributions to the whole of the property of the parties and in failing to provide adequate reasons for determining that the wife contributed 7.5% towards 35% of the property pool in circumstances where he found that during the marriage contributions were “equal” (Appeal Book Vol 1 p.19.30).
8. In order to evaluate these complaints, it is appropriate to refer to the learned Federal Magistrate’s Reasons for Judgment with respect to “Contributions”. Having traversed the evidence in relation to “Contributions to non-superannuation assets” the learned Federal Magistrate concluded:-
   1. There is nothing in this case to suggest that the increment in capital value resulted directly or indirectly from “joint efforts of wage earning, homemaking and parenting, and mutual support”. The increase in value of the house is not a “fruit of the marriage”. To treat it as such would seriously undervalue the significance of the husband’s initial capital contribution. This finding is quite consistent with Pierce v Pierce [1998] FamCA 74; (1999) FLC 92-844.
9. Sensibly there has been no challenge to that conclusion. His Honour can at this point be seen as concluding that all financial contributions had been made by the husband and that they should be given appropriate weight.
10. Nor has there been any challenge to his Honour’s conclusion that “this is not a case where the husband was freed to pursue professional or other work activities while the wife remained at home caring for children and supporting the husband.” Nor has there been any challenge to his Honour’s conclusion that:-
    1. Throughout the marriage the husband drew on his pension to support both of them. The wife did not have to “free” the husband to earn income. He did not undertake paid work but shared with the wife most of the activities at home. The wife did engage in a range of home activities – perhaps more zealously and fastidiously than other wives. But there were no children to care for.
11. As learned counsel for the wife submitted, the learned Federal Magistrate did find that “contributions to the non-superannuation assets during the marriage were equal”.
12. To the extent that these grounds involve a challenge to the learned Federal Magistrate’s exercise of discretion with respect to the non-superannuation assets, as Ground 2 does, nothing to which we have been referred persuades us that his Honour’s conclusion fell outside the ambit of a reasonable exercise of discretion. His Honour’s conclusion was expressed in the following terms:-
    1. This was a very short period of cohabitation – three and a half years. The husband was receiving a superannuation pension before, during and after the marriage. I have been unable to distinguish between contributions during the marriage. There are no children. In the result I assess the wife’s contributions as 7.5 per cent of the assets other than superannuation. This amounts to about $32,800 in an asset pool of almost $437,000.
13. As noted earlier, no finding of fact upon which his Honour relied has been challenged pursuant to these grounds. It is not suggested that his Honour failed to have regard to any relevant fact or circumstance, or had regard to any irrelevant fact or circumstance. No error of principle is suggested in relation to his Honour’s conclusion with respect to the non-superannuation assets.
14. The submission on behalf of the wife that the learned Federal Magistrate erred in failing to assess the wife’s “non financial contributions to the whole of the property of the parties” is demonstrably unsustainable with respect to the non-superannuation assets given that it was only in reliance upon non-financial contributions that the wife could have established any contribution based entitlement.
15. It is necessary then to consider the challenge to the learned Federal Magistrate’s conclusion with respect to the husband’s superannuation interest (Ground 1). The wife’s contributions in that regard were also necessarily non-financial. His Honour recorded that on behalf of the wife it was submitted at trial that the wife’s contribution based entitlement to the husband’s superannuation interest should be assessed at 5 per cent. There is no suggestion that his Honour was mistaken in that regard.
16. His Honour concluded that the wife made “absolutely no contribution, financial or non-financial, to it [the husband’s superannuation interest]”. It is not in contest that, as his Honour recorded, the husband’s superannuation was “in the payment phase well before she met him”. As is not in contest, the parties’ cohabitation was for a period of three and a half years. The husband’s superannuation interest had vested well prior to its commencement. Nothing to which we have been referred establishes any non-financial contribution either direct or indirect made by the wife, to which his Honour should have had regard, and have recognised as was asserted on behalf of the wife. Quite simply, the husband’s superannuation interest existed in the form in which it did prior to the parties’ cohabitation commencing, and continued to be received by the husband, and used to support the wife and himself during the cohabitation. His Honour was thus entitled to accept that there was no “basis in contributions for providing part of the husband’s superannuation interest to the wife”.
17. The circumstances of this case, as the unchallenged findings of fact of the learned Federal Magistrate reveal, permitted him to determine that the wife had no contribution based entitlement to the husband’s superannuation interest, for the reasons which he articulated. This challenge accordingly fails.

Ground 3

1. Ground 3 provided that:-

The learned Federal Magistrate erred in law in acting upon a wrong principle and/or in failing to properly exercise his discretion in the following manner:

...

1. In failing to make any adjustment under section 75(2) in favour of the wife and in doing so failing to take into account:-

(a) the disparity in the parties [sic] property and financial resources;

(b) the disparity in the parties [sic] income;

(c) the fact that the Federal Magistrate found that the wife “does need to undertake further studies including English if she is to improve her employment and income prospects.”

1. As the course of debate with counsel on the hearing of the appeal would confirm, this ground requires the closest scrutiny of any of the challenges mounted on behalf of the wife. This is particularly so given the learned Federal Magistrate’s findings of fact with respect to the financial circumstances of the parties to which we have earlier referred, and the reality that the wife received no adjustment pursuant to s 75(2) in circumstances where the husband’s superannuation interest in the payment phase was valued at $778 384.
2. Learned counsel for the wife succinctly summarised the thrust of the challenge embodied in this ground in the following terms:-
   1. The learned Federal Magistrate erred in the exercise of his discretion in failing to take into account relevant considerations under s. 75(2) including:

(a) The disparity between the parties [sic] income in that the husband’s pension (which he was not required to work for) was 2.4 times the income of the wife (Appeal Book Vol 1 p.49; Appeal Book Vol 1 p.162)

(b) The modest income derived by the wife due to her language difficulties and the fact that her Russian qualifications were not recognized in Australia (Appeal Book Vol 1 p.70.31; Appeal Book Vol 2 p.329 In 38);

(c) Whether the husband enjoyed his retirement or not, the fact that the husband had an income earning capacity additional to his right to receive a pension (Appeal Book Vol 2 p.344 – 345);

(d) The additional income earned by the husband from his share portfolio (Appeal Book Vol 1 p.162);

(e) The disparity between the parties property in that the husband owned an unencumbered home, a motor vehicle and substantial share portfolio whilst the wife’s assets were negligible.

1. On behalf of the husband it was submitted by learned senior counsel in relation to these contentions that the learned Federal Magistrate in fact took into account each of the matters complained of and that, in reliance upon each of those factors, it was open to the learned Federal Magistrate to conclude as he did, albeit other conclusions might have been open to his Honour. It was thus submitted that this challenge must fail.
2. In order to evaluate this challenge, it is necessary to look at what the learned Federal Magistrate said with respect to s 75(2). Relevantly in that respect, his Honour referred to the wife’s most recent annual gross income of $21 565, to her concession that her English language skills had “improved rapidly over the two years since arrival in Australia”, and to the wife’s accumulation of modest savings after commencing employment in May 2004.
3. His Honour relevantly also recorded the comparative positions of the parties in the paragraphs to which we have earlier referred. There was, as was clearly recognised, a difference in the ages of the parties and their current, and inferentially future, work prospects. His Honour rejected the wife’s claim that she had “lost the opportunity to follow her chosen career by coming to Australia”. No ground of appeal challenges that finding of fact.
4. Whilst the learned Federal Magistrate referred to the wife’s ability to return to Russia if she wished, for reasons which we will detail when dealing with a challenge in reliance upon that finding (Ground 4), we are not persuaded that his Honour took that into account to the wife’s detriment within the context of his consideration of s 75(2). The learned Federal Magistrate concluded that the wife’s “English language skills are somewhat better than she would have me believe”, a finding which has not been challenged in this appeal. Whilst his Honour accepted that the wife “does need to undertake further studies including in English if she is to improve her employment and income prospects”, as learned counsel for the wife fairly conceded, the fact that his Honour made an order for interim spousal maintenance in the terms sought by the wife precluded the present challenge being advanced by reason of that finding.
5. His Honour recorded that he had “had regard to the relevant matters set out in section 75(2) including the income, property and financial resources of both parties”. The challenge articulated by learned counsel for the wife in the paragraph of her outline of argument which we have set out challenges that assertion. With respect to learned counsel’s submission, his Honour did have regard to each and every one of the five matters identified in her outline of argument. In addition to the matters to which he thus referred, the learned Federal Magistrate reiterated that the “period of cohabitation was short and there are no children of the marriage”. His Honour was clearly entitled to have regard to each of those factors. Indeed, s 75(2)(k) of the Act provides that one matter to be taken into account is “the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration”.
6. Whilst his Honour may have come to other conclusions with respect to s 75(2), nothing to which we have been referred persuades us that he erred in the exercise of his discretion in declining to make a s 75(2) adjustment.
7. It remains to consider counsel’s submission that:-
   1. An adjustment on the basis of s 75 (2) was warranted in favour of the wife on the basis of the matters set out above. So much was conceded by the husband’s Counsel. He argued that contributions should be assessed in the order of 2% to 5% (of the non superannuation assets alone) (Appeal Book Vol 2 p.427 In 31-32) and in answer to a question from the learned Federal Magistrate “you’re saying the 75 (2) factors take her up to about ten per cent?” he said: “I do.” (Appeal Book Vol 2 p.428 In 6 – 17) Thus a concession was made by the respondent’s Counsel that an adjustment between 5% and 8% was warranted on the basis of section 75 (2). See the Full Court in Clauson (1995) FLC 92-595 at 81,911.
8. As learned senior counsel for the husband submitted, his Honour was not bound by the submissions of counsel for the parties, and in any event, it is apparent from the submissions as they emerge from the transcript of the proceedings that the s 75(2) concession asserted on behalf of the wife was predicated on a contribution based entitlement of the wife of as much as 5.5 per cent less than his Honour determined to be appropriate. We are not persuaded that this challenge has merit.

Ground 4

1. Ground 4 provided:-

The learned Federal Magistrate erred in law in acting upon a wrong principle and/or in failing to properly exercise his discretion in the following manner:

...

1. In taking into account an irrelevant consideration when assessing section 75 (2) factors being that the wife “could return to Russia.”
2. It was submitted on behalf of the wife that the learned Federal Magistrate erred by taking into account to the wife’s detriment the fact that she “could return to Russia” and, at least inferentially, the fact that the husband had “offered to assist her return if she desired”. It was submitted, accurately, that there was “no evidence whatsoever that the wife was contemplating returning to Russia or had any intention to do so”. Learned counsel for the wife submitted that:-
   1. The wife’s complaint was simply that as a consequence of her decision to marry and move to Australia to be with the respondent, she was unable to transfer her Russian qualifications to Australia and had to acquire equivalent qualifications again (at age 46), including undergraduate qualifications. There was no dispute that the wife was required to complete English qualifications before commencing any undergraduate degree course notwithstanding she had attained a Master’s degree in Russia and was teaching at University level (Appeal Book Vol 2 p.329 In 38).
3. On behalf of the husband it was submitted by learned senior counsel that the learned Federal Magistrate had done no more than deal with, and reject, a claim made by the wife that she had lost the opportunity to further her career in Russia by coming to this country and that, pursuant to s 75(2)(o), her entitlement to a s 75(2) adjustment was enhanced. It was further submitted on behalf of the husband that, the wife having raised the “lost opportunity” issue, had the learned Federal Magistrate failed to address it, the wife would have had cause to complain but that, the wife having “raised this issue as part of her own case, she cannot now be heard to complain that it was an ‘irrelevant consideration’”.
4. The learned Federal Magistrate identified the evidence upon which the wife relied in support of her assertion that by coming to this country she had “lost the opportunity of a career”. Those matters included:-
   • English is not her first language and she has limited skills in written and spoken English
   • when she met her husband she was a university lecturer working in the field of pedagogical teaching methods
   • she held the equivalent of a masters degree which is not recognised in Australia and had been studying part time for five years for the equivalent of a Ph D with about six months to complete it
   • when she agreed to marry the husband in April 2000 she stopped work towards her dissertation which was due to be examined in November 2000 with his encouragement.
5. Reference was then made to evidence the wife gave in cross-examination, which included her having “registered her name with an introductions agency looking for an Australian to marry” in 1997, her wages in the university in Russia being “about $A80 per month”, her continued employment in this country since 3 May 2004, her most recent statement of gross annual earnings ($21 565), her English language skills having “improved rapidly” after coming to Australia, and her ability to make modest savings subsequent to commencing employment in May 2004. The wife’s own evidence was that she had no assets of significance when she came to Australia to marry the husband. It is evident that, on her own evidence, the wife was earning considerably more in Australia than she had been in Russia.
6. Having referred to those matters, his Honour again referred to the wife’s claim that she “lost the opportunity to follow her chosen career by coming to Australia” and to his conclusion that the wife had not been “totally frank” about that. His Honour referred to the wife’s desire to come to Australia and the steps she had taken in pursuit of that desire “some three years before she met her husband”. The findings of fact upon which his Honour relied in that context have not been challenged in this appeal.
7. In recording that the wife could return to Russia if she wished, we interpret his Honour as doing no more than pointing out that if the wife wished to resume a career which she would not have lost if she had remained in Russia, there was no legal impediment to her returning to Russia to resume that career, and that, by virtue of the husband’s willingness to assist her, there was no financial impediment to her doing so.
8. A balanced reading of the Reasons for Judgment does not persuade us that any part of his Honour’s refusal to make a s 75(2) adjustment was based upon his conclusion concerning the “lost opportunity” submission advanced by the wife. In our view, all that his Honour did in relation to that topic, which clearly had been raised by the wife in support for a claim for a s 75(2) adjustment, was give reasons for rejecting that claim as a basis for any such adjustment. None of the findings of fact upon which his Honour relied in that context has been challenged in this appeal. It has not been established that his Honour’s conclusions were other than reasonably open to him on the findings of fact he made. We thus find this challenge lacks substance.

Ground 5

1. Ground 5 provided:-

The learned Federal Magistrate erred in law in acting upon a wrong principle and/or in failing to properly exercise his discretion in the following manner:

...

1. In determining that the decision was just and equitable such determination falling outside the ambit of his discretion.
2. Without resiling from her written submissions in support of this ground, learned counsel for the wife sensibly and fairly conceded during the hearing of the appeal that, in the circumstances of this case at least, unsuccessful challenges to the learned Federal Magistrate’s conclusions with respect to contributions or s 75(2) would mean that this challenge cannot succeed.

Ground 6

1. As noted earlier, given that it was conceded that the wife obtained the relief by way of spousal maintenance which she sought, though not abandoned, Ground 6 was not pursued on the hearing of the appeal. The wisdom of not doing so is apparent.

Conclusion

1. No challenge to the learned Federal Magistrate’s decision having found favour, the wife’s appeal must be dismissed.

Costs

1. Both counsel having requested that the costs of the appeal be reserved until after the outcome of the appeal, and reasons for it, were known, we propose doing so. In the event of the husband seeking an order for costs, he being the only party who could possibly do so, brief written submissions in support of such application should be made and responded to and we will so direct.
   

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 5 May 2008