Court of Appeal (WA)|2016-12-23|Before: Newnes JA

FDR -v- JDL [No 2] [2016] WASCA 231 (23 December 2016)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FDR -v- JDL [No 2] [2016] WASCA 231

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Citation : [2014] FCWAM 1

Family law - De facto relationship - Property settlement - Whether error in assessing contributions - Asset by asset approach - Payments in reduction of mortgage - Post separation borrowings - Borrowings for legal fees - Whether provision of accommodation of considerable value - Expenditure on maintenance and improvement of residential property - Whether decision unreasonable - Turns on own facts

Bilous v Mudaliar [2006] NSWCA 38; (2006) 65 NSWLR 615

De Angelis and De Angelis [1999] FamCA 1609; (2003) FLC 93-133

Del Gallo v Frederiksen [2000] NSWCA 293; (2000) 27 Fam LR 162

FDR v JDL [2014] FCWAM 1

In The Marriage of Zyk (1995) 19 Fam LR 797

Kowaliw and Kowaliw (1981) FLC 91-092

Ross v Elderfield [2006] NSWCA 192

Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518

Walsh v Mulherin [2008] NSWSC 61

White v O'Neill [2010] NSWSC 1193

1 JUDGMENT OF THE COURT: The appellant appeals against orders of Magistrate Moroni made under the Family Court Act 1997 (WA) on 21 January 2014. Having concluded, contrary to the submissions of the respondent, that the appellant and the respondent had lived together in a de facto relationship from January 2006 until June 2010, the magistrate made orders under s 205ZG of the Family Court Act in relation to the interests of the parties and certain property.[1] The appellant appeals against those orders. For the reasons that follow, the appeal should be dismissed.

2 The appellant's notice of appeal indicated that leave to appeal was required by reason of s 210AA of the Family Court Act. On 27 August 2015, Murphy JA ordered that the question of whether leave to appeal is required and, if so, whether leave should be granted, be referred to the hearing of the appeal.

3 Section 210AA provides that leave to appeal is required in relation to a decree prescribed by the regulations. No prescription under that section is to be found in the Family Court Regulations 1998 (WA) or otherwise. Section 210AA has no application to the present proceedings.

4 Magistrate Moroni is a family law magistrate, and heard this matter in that capacity. His Honour determined the matter under pt 5A of the Family Court Act. His Honour was thus sitting in the non-federal jurisdiction of the Magistrates Court. Section 210A of the Family Court Act provides that, in respect of the non-federal jurisdictions of the Magistrates Court, an appeal lies from a decree of the court to the Court of Appeal, unless the decree is an interlocutory order. A decree is defined by s 209A as including a judgment or an order. The orders made by the magistrate finally disposed of the proceedings between the appellant and respondent and were not interlocutory. It follows that the appellant had an appeal as of right under s 210A(2) of the Family Court Act and leave to appeal is not required.

5 The factual background to the proceedings, as outlined by the magistrate, is not challenged in this appeal. It is as follows.

6 At the time of the magistrate's decision, the appellant was 46 years old, and the respondent was 55 years old. The appellant had in the past worked as a landscape design consultant [27], and the respondent is a registered nurse who was employed as a clinical lecturer [28].

7 The parties met in July 2004 and formed a romantic relationship shortly thereafter. At that time, the appellant was living in a regional centre and the respondent was living in Perth. The appellant had been previously married, and there were no children of that marriage [30]. The respondent had also been previously married, and had two children, a son and daughter, of that marriage. At the time of the magistrate's decision, the daughter was 23 years old, and the son was 20 years old [31].

8 The appellant has established a new relationship with the person who was the second respondent to the Family Court proceedings, but is not a party to this appeal. She too had been previously married, and had the care of three dependent children, the two eldest of whom were teenagers [32].

9 On 29 January 2006, the appellant and the respondent first began to reside together with the respondent's two children at rental accommodation in Perth [33]. From there, on 29 August 2006, they moved to a new home belonging to the respondent which was also located in a suburb of Perth (Perth property) [34]. Their relationship came to an end in the first few months of 2010, and they resided together at the Perth property until about 9 June 2010 [36].

10 It was common ground that each of the appellant and the respondent had independent sources of income throughout the whole of the time that they resided together. The appellant suffered from a medical condition, which enabled him to claim on an income protection insurance policy, which he was entitled to continue to receive until the age of 65 years. The respondent worked for a salary [68]. They had a fairly unstructured arrangement in relation to contributions to day-to-day household costs, although the respondent paid for about 75% of the groceries and met all of the utility bills and outgoings in respect of the Perth property [73].

11 The Perth property had been purchased by the respondent in February 2005 as a vacant block of land. The block cost $335,000 [76], and the respondent utilised a portion of the sum of $687,829 which she had realised from the sale in January 2005 of a property which she then owned [75].

12 Around the same time, the appellant purchased a vacant block in a South West town [77] and, between July 2005 and February 2006, constructed a residence on that property [78] - [79].

13 During their period of cohabitation, a number of significant financial transactions occurred.

14 The respondent contracted a builder to construct a new home on the Perth property and obtained finance from a bank secured by a mortgage against that property (respondent's first mortgage) [80]. Construction was completed in August 2006, and the parties and the respondent's children moved into the newly constructed home built on the Perth property [81].

15 In May 2006, the appellant entered into a contract to purchase a unit in East Perth. The cost of the unit, plus a further $27,000 used to cover acquisition costs, was borrowed using the South West property as security [82].

16 The South West property was sold in September 2006, with the sale being completed in November 2006 [83]. The appellant also sold the East Perth unit sometime in 2007, with settlement of that sale occurring on 29 November 2007 [84].

17 Following the sale of the East Perth unit, on 12 December 2007, the appellant paid $200,000 in reduction of the respondent's first mortgage [86].

18 Between December 2007 and December 2009, the appellant made six further payments in reduction of the respondent's first mortgage, those payments totalling $49,836, so that the total payment by the appellant in reduction of the respondent's first mortgage was $249,836 [91]. From time to time, however, the respondent drew down on the mortgage and paid the amounts drawn down to the appellant. Ten drawdowns totalling $164,586 were made between 20 December 2007 and 26 July 2010 [94]. There was, therefore, a shortfall of $85,250 between the amount deposited by the appellant into the respondent's first mortgage account and the amount withdrawn from it and repaid to the appellant.

19 The parties were at issue as to the nature of the arrangement by which the appellant paid money in reduction of the respondent's first mortgage. The appellant contended that it was part of an arrangement whereby they would combine their financial resources for joint benefit. The respondent denied any such arrangement. She contended that it was a loose arrangement by which the appellant would simply 'park' funds in her mortgage account on the understanding that he would be free to redraw his deposited funds at any time he chose. Those contentions arose in the context of consideration of two of the indicators of a de facto relationship identified by s 13A of the Interpretation Act 1984 (WA), namely the degree of financial independence or interdependence between the parties (s 13A(2)(e)) and the ownership, use and acquisition of the property of the parties or of either of them (s 13A(2)(f)). While acknowledging that the parties may have had different perceptions as to the nature of the arrangement, the magistrate preferred the respondent's version of it, notwithstanding his Honour's ultimate conclusion that the parties were in a de facto relationship.

20 One of the redraws from the respondent's first mortgage was $70,000 on 16 March 2009. That sum was used by the appellant to purchase, in his sole name, a property at Portsea Resort, Port Douglas in Queensland [326].

21 In June 2009, a property situated at the Plantation Resort in Port Douglas was purchased in the joint names of the appellant and the respondent (joint Port Douglas property). The price paid for that property was $137,500, and the whole of the purchase price and related costs were borrowed. The respondent signed documents which enabled the Perth property to be used as security for one of two loans taken out to fund that purchase (respondent's second mortgage) [114]. At the time of the trial, the value of the joint Port Douglas property had dropped dramatically to $87,500 [317]. The amount owing in relation to the acquisition of that property was $103,380 secured against the joint Port Douglas property and $32,140 secured by the respondent's second mortgage [317].

22 In the proceedings before the magistrate, the relief sought by the appellant was essentially that:

(i) any interests of the respondent in the joint Port Douglas property, the appellant's business, various bank accounts in the appellant's name, a joint bank account, certain shares, the appellant's car and his personal and household effects vest in the appellant;

(ii) all of the appellant's interests in the Perth property, any bank accounts in the respondent's name, the respondent's car and her personal and household effects vest in the respondent;

(iii) the appellant indemnify the respondent in relation to the two mortgages relating to the borrowing over the joint Port Douglas property and the respondent's second mortgage, any outgoings in relation to the joint Port Douglas property, the appellant's business, his share trading account, his credit cards, and certain other of the appellant's loans;

(iv) the respondent indemnify the appellant in relation to the respondent's first mortgage, her credit cards or any other debts;

(v) the respondent pay to the appellant an amount as will effect the equal division (50% each) between them of all property inclusive of superannuation entitlements and net of all liabilities; and

(vi) alternative orders in relation to the payment of costs of the proceedings.

23 At trial, the respondent sought orders that the application be dismissed (on the basis that there was no de facto relationship and thus no jurisdiction for the court to make orders adjusting the property of the parties) and for the payment of costs by the appellant. In the alternative, in the event that the court did find a de facto relationship to exist, she sought orders that:

(i) the respondent transfer her interests in the joint Port Douglas property to the appellant and that the appellant simultaneously refinance into his own name the two mortgages granted to secure the purchase of that property, being the respondent's second mortgage and the mortgage registered over the joint Port Douglas property;

(ii) the appellant keep the respondent fully indemnified in relation to the jointly owned Port Douglas property;

(iii) the parties otherwise retain all assets and liabilities currently in their possession and/or control; and

(iv) the appellant pay the respondent's costs on an indemnity basis.

24 The relevant substance of the orders made by the magistrate was as follows:

(i) All the right, title and interest of the respondent in the joint Port Douglas property vest absolutely in the appellant.

(ii) The respondent indemnify and keep the appellant indemnified in respect of all liability arising under the respondent's second mortgage.

(iii) Within the next 90 days, the respondent make, or cause to be made, a payment of $20,000 in reduction of the mortgage over the joint Port Douglas property.

(iv) The appellant indemnify and keep the respondent indemnified in respect of all liability arising under the mortgage over the joint Port Douglas property.

(a) all the right, title and interest (if any) of the appellant in any item of property presently in the possession of the respondent vest absolutely in the respondent; and

(b) all the right, title and interest (if any) of the respondent in any item of property presently in the possession of the appellant vest absolutely in the appellant.

(vi) The said proceedings otherwise be and are hereby dismissed.

25 Where, as here, the court is satisfied that there has been a de facto relationship between the parties for at least two years, on an application for property settlement the considerations to be taken into account by the court are prescribed by s 205ZG of the Family Court Act. Section 205ZG(1) enables the court to make such orders as it considers appropriate altering the interests of the parties in property or requiring the parties to make a settlement or transfer of property. The court must not make an order under s 205ZG(1) unless it is satisfied that, in all the circumstances, it is just and equitable to make the order (s 205ZG(3)).

26 Section 205ZG(4) requires that, in considering what order should be made in proceedings with respect to the property of de facto partners, the court is required to take into account various matters. Those relevant to this case are:

(i) the financial contribution made directly or indirectly by or on behalf of a de facto partner to the acquisition, conservation or improvement of any property of the de facto partners or either of them (s 205ZG(4)(a));

(ii) the contribution, other than a financial contribution, made directly or indirectly by or on behalf of a de facto partner to the acquisition, conservation or improvement of any property of the de facto partners or either of them (s 205ZG(4)(b));

(iii) the contribution made by a de facto partner to the welfare of any children of the de facto partners, including any contribution made in the capacity of homemaker or parent (s 205ZG(4)(c)); and

(iv) the matters referred to in s 205ZD(3) so far as they are relevant (s 205ZG(4)(e)).

27 The matters referred to in s 205ZD(3) which are relevant for present purposes are:

(i) the age and state of health of each of the de facto partners (s 205ZD(3)(a));

(ii) the income, property and financial resources of each of the de facto partners and the physical and mental capacity of each of them for appropriate gainful employment (s 205ZD(3)(b));

(iii) commitments of each of the de facto partners that are necessary to enable the partner to support himself or herself (s 205ZD(3)(d)(i));

(iv) the eligibility of either party for a benefit under a superannuation fund (s 205ZD(3)(f)(ii));

(v) a standard of living that in all the circumstances is reasonable (s 205ZD(3)(g));

(vi) if the party is cohabiting with another person, the financial circumstances relating to the cohabitation (s 205ZD(3)(i)); and

(vii) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account (s 205ZD(3)(o)).

28 After outlining the statutory framework apposite to the issues before his Honour and the relief sought by the parties, the magistrate considered the statutory indicators as to the existence or otherwise of a de facto relationship. As noted above, his Honour was satisfied that the parties had lived together in a de facto relationship between January 2006 and June 2010. His Honour thus turned to the substantive claims for orders by way of alteration of property interests.

29 The magistrate made observations about the general approach to property settlement claims by reference to the decision of the High Court in Stanford v Stanford [2] and the consideration of that case by the Full Court of the Family Court of Australia in Bevan and Bevan.[3] There is no challenge in this appeal to the general approach taken by the magistrate on the basis of his Honour's analysis of those cases.

30 Having reached his Honour's conclusions on those matters, his Honour considered and determined the appropriate manner in which orders should be made to reflect those conclusions. His Honour then turned to consider:

(i) the identification of the existing property interests of the parties;

(ii) whether it was just and equitable to make an order (as required by s 205ZG(3));

(iii) the contributions made by the parties to the acquisition of property (as required under s 205ZG(4)); and

(iv) the effect of the relevant factors under s 205ZD(3).

31 The magistrate noted that the item of property of single greatest value owned by any of the parties was the Perth property, which was valued at $1,085,000 [168]. The amount due under the respondent's first mortgage was $275,204 [170]. The debt secured by the respondent's second mortgage was $32,140 [171]. His Honour found that, at the time the appellant left the Perth property, the debt secured by the respondent's first mortgage stood at $147,700 [183], but had increased to $275,000 at the time of the hearing. Forty-five thousand dollars of that increase had been drawn down to pay legal costs [185] (although the actual figure shown in a list of expenses prepared by the respondent at trial put the amount spent on legal costs at $44,000).[4] The funds drawn had otherwise been used by the respondent to assist the respondent's daughter and in order to meet the respondent's living costs [186].

32 The magistrate noted that each party owned a motor vehicle and had bank accounts with relatively modest balances, and each had credit card debts, all of which could be disregarded for present purposes. His Honour noted that they each had superannuation funds of similar value which could be taken into account pursuant to s 205ZD(3)(f)(ii).

33 In relation to the increase in the respondent's first mortgage, the magistrate noted the appellant's submission that the increase in the debt should be 'added back' to the table of property available for division by the court as an item of notional property. His Honour noted the observations of the members of the Full Court of the Family Court in Bevan that notional property added back in the way contended for by the appellant is unlikely to constitute 'property of the parties' and thus is not amenable to alteration under s 79 of the Family Law Act 1975 (Cth), which is the equivalent of s 205ZG of the Family Court Act. Accordingly, the magistrate determined that the increase in the respondent's first mortgage debt is better addressed under s 205ZD(3)(o) (that is, as a fact or circumstance which the justice of the case requires to be taken into account).

34 The appellant was also registered as a joint tenant with his new partner, the second respondent in the Magistrates Court proceedings, of a property in Gwelup which was said to be worth around $900,000 and encumbered by way of a mortgage securing a debt of $297,000. The magistrate referred to the lack of clarity in the evidence as to the appellant's interest in that property [175]. The appellant had said that the registration showing him as a joint tenant came about in error, although that error had not been corrected [179]. The appellant gave evidence that he and his new partner had agreed that, although the appellant contributed no cash to the acquisition of the Gwelup property, he should take a 20% interest on the understanding that he would service the mortgage debt attaching to it [177]. His Honour said, however, that, by the end of the trial, the appellant's case was that his interest in the Gwelup property should be treated as having no value [180], and it appears that the magistrate proceeded on that basis. His Honour noted, however, that the Gwelup mortgage debt included a drawdown of $40,500 which had been recently undertaken to secure payment of the appellant's legal fees in connection with the proceedings. That sum was being held in a mortgage offset account. The magistrate determined that that offset account should be disregarded as an asset of the appellant because of the likelihood that that sum would be paid to the appellant's lawyers [181].

35 The magistrate also found that the respondent had a debt of $73,000 which she had borrowed from family members in order to cover legal costs [193].

36 On the basis of his Honour's analysis of the evidence, the magistrate summarised the financial positions of the appellant and the respondent in a table which read:

Applicant's 20% equitable interest in Gwelup property

First Respondent's debt to her daughter & her daughter's partner)

37 The magistrate then turned to considering whether, under s 205ZG(3), it would be just and equitable to make an order altering interests in the property. After noting that the express or implicit assumptions that underpinned the property arrangements between the parties during the course of the de facto relationship had been brought to an end by the severance of that relationship [216], and that each party urged the court to make orders altering interests in the property, his Honour was satisfied that it would be just and equitable to make some order.

38 The magistrate considered whether it was appropriate to approach the task of assessing contributions either on an asset by asset basis or on a global basis. His Honour concluded that the better approach was to consider contributions on an asset by asset basis [229]. That was because the focus of the case had always been on whether the respondent should pay the appellant a sum of money in lieu of any order altering her interest in the Perth property in favour of the appellant [231]. There was no net value in the joint Port Douglas property [232]. The respondent made no claim in relation to the Gwelup property and the parties made no claims in respect of each other's motor vehicles [233] - [234]. The respondent did not seek to attribute any responsibility to the appellant with respect to the $73,000 debt she owed to her family members [235]. His Honour thus turned to the question of contributions to the acquisition, conservation or improvement of the Perth property and the contribution pursuant to s 205ZG(4)(c) to the welfare of the family of the de facto partners.

39 In relation to s 205ZG(4)(c), the magistrate found that the respondent made greater contributions as a homemaker and that that contribution needed to be recognised. His Honour found, however, that in light of the relatively short duration of the relationship, the fact that it did not produce any children, and the fact that it was entered into at a relatively late stage in life, the respondent's contribution would not carry the same weight as it might in a case involving a long relationship productive of children [240] - [244].

40 The magistrate concluded that the non-financial contributions pursuant to s 205ZG(4)(b) were 'not particularly persuasive' [246], and that neither party had made any significant non-financial contribution to the acquisition, conservation or improvement of the Perth property. His Honour noted that the 'case was always about the direct and indirect financial contributions' of the appellant and the respondent [249]. His Honour thus turned to that question.

41 In relation to the Perth property, the magistrate found that the respondent was solely responsible for the purchasing of the block and meeting all of the attendant purchase costs, and that she alone borrowed the funds necessary to construct the home without any financial assistance from the appellant. His Honour described as more difficult the question of contributions to the conservation and improvement of the Perth property. His Honour noted that the appellant's case was that he had made direct financial contributions to the conservation and improvement of the Perth property by making payments in reduction of the mortgage and making certain payments for goods and services related to the Perth property. Those expenses were set out in a schedule attached to the appellant's trial affidavit[5] (improvement expenses). The total expenditure for items on that schedule was $65,283.40.

42 The magistrate also considered whether, apart from those contributions, it might be said that the appellant contributed to the maintenance or improvement of the Perth property by providing financial support which freed up the resources of the respondent to make direct financial contributions that she might not otherwise have been able to make. His Honour noted that, over the period of the de facto relationship, the respondent's taxable income exceeded the appellant's taxable income by $51,694. In making that comparison, the magistrate did not bring to account an additional sum of $67,031 received by the respondent as government child support over the period of the parties' relationship.[6] His Honour noted that, in respect to the financial year ended 30 June 2010, a loss of $12,742 had been incurred in relation to the joint Port Douglas property, and that each of the parties had claimed half of that loss against their taxable income. Having examined those figures and considered the affidavit and trial evidence, the magistrate concluded that the appellant had not in any material way subsidised the respondent's ordinary living costs so as to enable her to make a greater direct contribution than she would have otherwise been unable to make [262]. Having reached that conclusion, the magistrate found that any claim by the appellant to a share of the equity in the Perth property could only be based on his payments in reduction of the mortgage balance and the improvement expenses.

43 The magistrate then examined the payments made into, and the drawings from, the respondent's mortgage which are described above. His Honour concluded the respondent did receive a substantial financial benefit as a consequence of the payments made by the appellant into the respondent's mortgage [267]. His Honour found, however, that while that direct financial contribution was significant, it was very much smaller than the contributions made by the respondent [268].

44 The magistrate was satisfied that the appellant had actually paid the improvement expenses totalling $65,283. His Honour said, however, that the task for the court is not a purely mathematical one which requires adding together the figure by which the appellant had reduced the respondent's first mortgage and the scheduled expenses, and then giving the appellant dollar for dollar credit for those payments. Rather, his Honour said, the court was required to make a qualitative judgment in respect of the value to be attached to those contributions assessed against the totality of the evidence, including the respondent's own substantial contributions [272] - [273]. His Honour considered that the weight to be attached to the direct financial contributions of the appellant needed to be discounted by virtue of:

(i) assessment of the reduction in the respondent's first mortgage debt in the context of the appellant enjoying, for about four years, cost-free accommodation in a newly constructed home in one of Perth's desirable suburbs [275];

(ii) the evidence that established that many of the improvement expenses were undertaken by the appellant primarily to meet his own particular needs in that:

about one-third of the improvement expenses related to a spa which the magistrate found was the appellant's idea and was related to a suggestion by the appellant's doctor that the appellant would benefit from the use of a spa [282]; and
a total of $12,098 related to the acquisition of office furniture and cabinets, which was expenditure undertaken by the appellant to create a more pleasant and functional home for himself [287]; and

(iii) the absence of any evidence to establish whether, and if so to what extent, the appellant's direct financial contributions added value to the Perth property. There was no evidence upon which the court could make a finding that the money spent by the appellant had any material effect upon the current value of the property [288].

45 Having regard to the need to discount the two relevant categories of contributions made by the appellant for the reasons his Honour had given, and the need to weigh those contributions against the very substantial contributions made by the respondent, including her contributions as a homemaker, the magistrate concluded that, on the basis of those contributions alone, his Honour would allow an interest in the net equity in the Perth property 'falling in the lower end of the range of 5% - 10% of the value of such net equity' [293]. His Honour concluded that, '[i]n essence, the [respondent] has made every single direct s 205ZG(4)(a) contribution except for those for which the [appellant] will be given credit' [291]. His Honour then turned to the effect of the considerations under s 205ZD(3).

46 The magistrate noted the relative ages of the appellant and the respondent and their relative earning capacities. His Honour noted that the appellant's new partner was not financially dependent upon him, and that the appellant's and respondent's superannuation entitlements were not such as to have a material effect on the final outcome of the case. Aside from considerations under s 205ZD(3)(o), his Honour concluded that none of the other factors under s 205ZD(3) would make any change to his assessment of the appellant's interest in the Perth property [311].

47 In relation to s 205ZD(3)(o), the magistrate identified two relevant matters. The first was the evidence as to the increase in the respondent's first mortgage debt between the date of separation and the date of trial. His Honour considered that, to the extent that the increase in the mortgage was due to provision for legal costs, the court should disregard the increase on the basis that the current mortgage balance on the Gwelup property was also reflective of the appellant making significant provision for his legal costs. Otherwise, the magistrate concluded that, to the extent that the respondent had increased the mortgage balance to meet ordinary living expenses, no adjustment in favour of the appellant to his assessed interest in the Perth property should be made. His Honour found that there was no suggestion that the respondent had consciously set out to diminish the value of her net equity in the Perth property to defeat any claim that might be made by the appellant [315].

48 The second s 205ZD(3)(o) issue which the magistrate considered concerned the acquisition of the joint Port Douglas property. His Honour noted that the property was worth considerably less than the balance owing under the two separate loans used for its purchase. His Honour found that the appellant had been managing the rental of that property and servicing the two secured loans relating to it. The magistrate found that the decision to acquire the joint Port Douglas property was made solely by the appellant and that it was only because the appellant could not finance the acquisition without the respondent's involvement that the respondent's name appeared on the title and she became a signatory to the two loans relating to its acquisition [322].

49 After considering the appellant's investment in his own Portsea Resort property, and the West Perth unit, both of which realised losses, the magistrate concluded:

Having found that the decision to invest in the jointly owned Port Douglas property was substantially driven by the Applicant and that the First Respondent would always have allowed the Applicant to reap any financial benefit from such investment, which he has himself solely managed to date, it seems to the Court that the justice of the case requires that the Applicant's entitlement in the net equity of the [Perth] property, as found above, needs to be adjusted downwards to reflect the fact that the First Respondent has been significantly financially disadvantaged by the Applicant's decision to acquire the jointly owned Port Douglas property [333].

50 On that basis, his Honour concluded that any entitlement that the appellant might have to a share of the net equity in the Perth property should be taken in the form of a reduction in the joint debt relating to the joint Port Douglas property [338]. His Honour found that the respondent should carry the responsibility for the respondent's second mortgage and should make a contribution of $20,000 in reduction of the joint debt secured against the joint Port Douglas property, with the respondent's interest in that property to vest in the appellant. The effect of the orders was that the appellant became entitled to the whole of the joint Port Douglas property, with his debt in relation to that property being reduced by a total of $52,140. That benefit of $52,140 fell within the range of 5% - 10% of the net equity of the Perth property.

51 The grounds of appeal are lengthy and repetitive, and it is unnecessary to set them out in full. There were seven grounds of appeal. Grounds 1 and 2 asserted multiple errors by the magistrate. Ground 4 was abandoned at the hearing. The grounds can be summarised as follows:

The magistrate erred in fact and law by discounting the weight to be attached to the direct financial contributions of the appellant having regard to extraneous matters, namely:

(i) by holding that accommodation in the Perth property was a considerable financial benefit to the appellant which reduced the direct financial contributions of the appellant when there was no evidence of any financial benefit to him. The magistrate should have found that the fact that the appellant was accommodated in the Perth property had no impact on the appellant's contribution to the increased value and equity which the respondent held in the Perth property (grounds 1(a) and 1(b)); or alternatively

(ii) by holding that some of the expenses incurred by the appellant were incurred so as to make the Perth property more pleasant and functional for him when the magistrate should have held that the respondent had the use of the improvements and would retain them and their value in the Perth property (grounds 1(c) and 2(d)).

The magistrate erred in fact and law by finding that the appellant's contributions to the asset pool were not such as to enable the respondent to make a greater contribution than she would otherwise have been able to do in that the magistrate:

(i) erred in finding that the respondent's level of income established that she had made a greater indirect financial contribution without taking into account expenditure of the respondent's income on the education and maintenance of her children during the relationship (ground 2(a));

(ii) failed to have regard to the reduction of capital and interest on capital payable by the respondent under the respondent's first mortgage and the corresponding increase in equity in the Perth property of $85,250 (ground 2(b));

(iii) failed to take into account the respondent's increased borrowings on the respondent's first mortgage between the date of separation and the date of trial and whether those drawdowns were reasonably necessary (grounds 2(c), 3 and 5); and

(iv) failed to have regard to the appellant's payment of all costs associated with the joint Port Douglas property when the magistrate should have found that the payments increased the equity in the Perth property and directly benefited the respondent (ground 2(e)).

The magistrate erred in fact and law in finding that the payment by the respondent of $45,000 for legal fees by drawing down the respondent's first mortgage should be disregarded because the increase in the mortgage over the Gwelup property for legal fees by the appellant was of a similar amount when the appellant's drawdown had not been paid for legal fees but was being held in an offset account (ground 6).
The magistrate erred in fact and law in finding that the appellant's contributions to the Perth property reflected 5% - 10% of the equity in the Perth property when that finding had no evident or intelligible justification and was so unreasonable or unjust as to give rise to an inference that the magistrate failed to properly exercise his discretion (ground 7).

Discount and weight to be attached to direct financial contributions (grounds 1(a), 1(b), 1(c) and 2(d))

52 Ground 1 of the appeal asserts that the magistrate erred in fact and law in reaching certain conclusions by discounting the weight to be attached to the direct financial contributions of the appellant. The particulars to the ground refer to the conclusion drawn by the magistrate that the appellant's accommodation in the Perth property was a considerable financial benefit, (which is said by the appellant to be a finding made without evidence), and the magistrates findings in relation to, and treatment of, the improvement expenses.

53 The magistrate's unchallenged finding was that the respondent was solely responsible for the cost of the acquisition of the Perth property. It was not in dispute that the appellant lived in the Perth property during the period of the parties' relationship and did so without paying rent.

54 It was open to the magistrate to take into account, in assessing the value of the appellant's contributions to the Perth property, the benefit of rent-free accommodation which he received for four years. The provision by one de facto partner of the family home for accommodation is to be awarded appropriate weight, having regard to all the circumstances: Bilous v Mudaliar.[7] In circumstances where the use and enjoyment of the family home are effectively the products of a relationship involving 'the practical union of both lives and property ... [representing] the fruits of combined efforts in wage-earning, homemaking and mutual support',[8] the deduction of notional rent from the contributions of the party who did not contribute the purchase price for the home may nevertheless be tantamount to impermissible double counting.[9]

55 The circumstances of this case, however, were that the parties effectively had and kept separate assets (save to the extent that the appellant had involved the respondent in buying, and borrowing to purchase and securing the debt for, the Port Douglas property because he regarded it as a good investment and he could not have acquired it without her involvement); the relationship was of short duration; it was entered into when the parties were at a 'relatively mature age of life' and the relationship produced no children; the appellant's homemaking contributions were less than those of the respondent; and the appellant accepted that the respondent met all of the utility bills and outgoings with respect to the Perth property, and paid for 75% of the groceries (although he paid 'part' of the telephone bill and the internet connection).

56 Also, the respondent would have had the Perth property available for use as a residence for her and her children, even if there had been no de facto relationship. The same cannot be said of the appellant.[10] He had no property to use as a residence after the sale of the South West and East Perth properties, and, it may be inferred, the realisation of these properties produced the fund which was used to deposit moneys into the respondent's home loan account and from the drawings on which the appellant bought his replacement motor vehicle, purchased his unit in Portsea and acquired his interest in the Port Douglas property. In the particular circumstances of this case, it is appropriate, without the risk of double counting, to take into account the benefit of rent-free accommodation received by the appellant. See Del Gallo v Frederiksen;[11] Bilous v Mudaliar;[12] Ross v Elderfield;[13] Walsh v Mulherin;[14] White v O'Neill.[15] Ordinarily, this would be taken into account in a broad evaluative way (as the magistrate did) rather than mathematically calculating a dollar value for 'notional rent' and using that to adjust the parties' contributions as if it were merely an 'accounting exercise': Kardos v Sarbutt.[16]

57 Counsel for the appellant submitted that the notion of living in a property rent-free being a considerable financial benefit was not one supported by any authority.[17] The cases referred to above demonstrate otherwise. Counsel referred to De Angelis and De Angelis[18] and Mayne and Mayne[19] as supporting that proposition. Neither case does so. In De Angelis, the trial judge was concerned with a long marriage in which his Honour recognised numerous different contributions which each party had made to the assets of the marriage. His Honour treated as a contribution by the wife the efforts of the wife's mother, acting on behalf of the wife, in assisting the parties with rent-free accommodation at her home for the first seven and a half years of the marriage. There was no challenge on the appeal to the treatment by the trial judge of the provision of rent-free accommodation as a contribution.

58 Mayne involved a long marriage where the vast majority of the assets had been acquired through inheritances by the wife, but there had also been the provision of accommodation to the parties by the wife's family. The federal magistrate at first instance noted that the contributions had not come from the wife's own labour, and that she also benefited from the provision of accommodation equally with her husband. That conclusion was not the subject of consideration in the appeal, and it is unclear what, if any, weight was attributed by the federal magistrate to that factor in his determination as to the apportionment of contributions of the parties to the assets of the marriage.

59 Those cases merely demonstrate that whether the provision of rent-free accommodation will be taken into account in the assessment of contributions will turn on the particular circumstances of the case. There is nothing in the magistrate's approach to the question of rent-free accommodation in this case which is inconsistent with authority.

60 The reference to the financial benefit of rent-free accommodation was made by the magistrate in the context of consideration of the relative values of contributions to the acquisition, maintenance and improvement of the Perth property by the parties. Having recognised the appellant's contributions by way of reduction in the respondent's mortgage and payment of the scheduled expenses, the task confronting the magistrate was to assess the value of the parties' relative contributions. In doing so, it was open to his Honour to have regard to the financial benefit to the appellant that accompanied his financial contributions. That was not an extraneous or irrelevant matter. There is no merit in grounds 1(a) or 1(b).

61 As noted above, the magistrate found that there was no evidence upon which the court could make a finding that the money spent on the improvement expenses had any material effect on the value of the Perth property. The magistrate's finding that the expenditure by the appellant on expenses related to a spa and a home office were essentially for the appellant's benefit was made in the context of whether or not it was reasonable for the appellant to expect that he should be given a dollar for dollar credit for that expenditure. Ground 1(c) asserts that the magistrate should have found that the respondent would retain the value of the expenses paid by the appellant. To have done so would have been inconsistent with the approach taken by the magistrate, namely the making of a qualitative judgment as to the value of the parties' respective contributions. That general approach was appropriate in the context of the facts of this case, and is not an approach challenged in this appeal . Ground 1(c) is not made out.

62 Ground 2(d) asserts error by the magistrate in failing to have any proper regard to the increase in the equity of the Perth property represented by the amount expended by the appellant for the improvement expenses. If that ground suggests that the magistrate should have attributed a dollar for dollar increase in the equity of the Perth property by reason of the payment of the improvement expenses, it is without merit. There was no evidence upon which the magistrate could have assessed the effect of the expenditure on the Perth property's value. The magistrate specifically addressed the question as to whether the improvement expenses affected the value of the Perth property and correctly concluded that he could not make any finding on that question. Ground 2(d) has no merit.

Relative contributions of the parties to the asset pool (grounds 2(a), 2(b), 2(c), 2(e), 3 and 5)

63 Ground 2(a) asserts error on the part of the magistrate in finding that the respondent had made a greater indirect financial contribution by failing to take into account the expenditure of the respondent's income which would have been required on the education and maintenance of her children during the period of the relationship.

64 This issue arises in the context of the consideration, for the purposes of s 205ZG(4)(a), of whether the appellant had provided financial support to the respondent which freed up her resources so as to enable her to make a direct financial contribution to the conservation and improvement of the Perth property which she might otherwise not have been able to make [254]. Having examined the parties' relative taxable incomes during the period of the relationship, the magistrate found that the respondent was the higher income earner. His Honour continued:

Having had an opportunity to re-read the affidavit material and consider the evidence given from the witness box, the Court certainly could not find that the Applicant in any material way 'subsidised' the First Respondent's ordinary living costs so as to enable her to make greater direct s 205ZG(4)(a) contributions than she would otherwise have been able to make had the Applicant not been in residence [262].

It is thus inaccurate to assert, as ground 2(a) does, that the magistrate found that the respondent made a greater indirect s 205ZG(4)(a) contribution than the appellant. Ground 2(a) is unsupported for that reason.

65 In any event, the magistrate's conclusion was not inconsistent with the appellant's case at trial.

66 As noted above, in reaching his conclusion on this point, the magistrate made no reference to the respondent's receipt of $67,031 by way of child support during the period of the parties' relationship. The appellant contends that the magistrate should have taken into account published research as to the costs of maintaining and educating children, and in particular the 'Lee Scale', which is said to be available through the Australian Institute of Family Studies website. It was submitted that that scale would show that the costs of each child would have been in the order of $497.50 per week (including medical and dental costs and other miscellaneous costs) when the child lives at home and attends a private school.

67 No evidence as to the costs of maintaining and educating the respondent's children (and no evidence of the Lee Scale) was led at trial. In his closing submissions[20] to the magistrate, counsel for the appellant referred to the respondent's responsibilities in relation to her two children, one of whom was at school for only a relatively short time during the period of the parties' relationship. He submitted that, when consideration was given to the amount of money being paid for child support against the costs of educating the children, 'which you could discern from the Lee or the Lovering Scale depending on which you wanted to', 'the actual child support issue is neutral' and 'doesn't make much difference to her [the respondent's] overall position'. He then submitted that, having regard to the differences in taxable income (which was what the magistrate ultimately did), there was a difference of approximately $40,000 - $50,000 which, he submitted, is not a matter of great significance over the period of the relationship. The magistrate's conclusions were not inconsistent with that submission. There was insufficient evidence for the magistrate to examine the extent to which the child support payments were adequate to meet the children's expenses and it was open to his Honour to, as he implicitly did, adopt the position urged on him by the appellant's counsel to treat the child support issue as neutral.

69 Ground 2(b) asserts that the magistrate erred by failing to have regard to the reduction of capital and interest on capital payable by the respondent on the respondent's first mortgage and the increase in the equity in the Perth property by reason of the net payment of $85,250 into the respondent's first mortgage account. In fact, the magistrate specifically found that the respondent received a substantial financial benefit as a consequence of the payments by the appellant into the mortgage account [267] and that that direct financial contribution from the appellant was significant [268]. The proposition that the magistrate failed to have regard to that matter is clearly untenable. The magistrate specifically referred to the advantage of reduced interest liability resulting from the arrangement for the deposit of funds by the appellant into the respondent's first mortgage account [89].

70 Taking that matter into account, the magistrate approached his task on the basis that it was necessary to make a qualitative judgment in respect to the value to be attached to the parties' respective contributions. That general approach is not challenged by the appellant. There is no substance in ground 2(b). The substance of the appellant's complaint in relation to this ground is that the magistrate should have attributed to the appellant an interest in the Perth property equal in value to the net payments by him into the respondent's first mortgage account. To have done so would have been inconsistent with the magistrate's correct and unchallenged approach of making a qualitative judgment in respect of the value to be attached to the respective contributions of the parties [273]. Whether that qualitative assessment resulted in a conclusion that was reasonably open to the magistrate is the subject of ground 7.

71 Grounds 2(c), 3 and 5 concern the magistrate's treatment of the increase in borrowings against the respondent's mortgage between the date of separation and the date of trial. It will be recalled that the magistrate found that the respondent's first mortgage had increased by $127,300 between the end of the party's relationship and the trial, and that $45,000 of that amount related to payment of the respondent's legal costs. As I understand the appellant's submissions, he contends that the magistrate should have added back the amount of the increased mortgage debt into the notional equity in the Perth property available for division between the parties.

72 In Omacini and Omacini,[21] the Full Court of the Family Court of Australia identified three categories of cases where it was appropriate to add notional assets to the pool of assets available for distribution. Those categories were where:

(b) monies are disbursed by way of premature distribution of matrimonial assets; and

(c) monies are lost by one party, either during or after the marriage, as a result of a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets or as a result of reckless, negligent or wanton behaviours which had the effect of reducing or minimising the value of assets.

73 In M and M,[22] the Full Court of the Family Court of Australia said that parties are entitled to continue to provide their own support pending resolution of their financial arrangements after a marriage breakdown, and the question of whether any expenditure is reasonable or extravagant is a matter to be determined by the trial judge. The concept of adding monies reasonably disposed of back into an asset pool 'ought to be the exception rather than the rule': C and C.[23]

74 When cross-examined at trial in relation to the application of the funds drawn down by the respondent, she produced a list of items of expenditure of those funds.[24] The list included $44,000 in legal fees. Just under $35,000 was spent providing assistance to the respondent's daughter. Just under $15,000 was spent on travel by the respondent to meet up with her daughter. $4,320.00 was spent on a tutor for the respondent's son. The balance of around $37,000 was spent on various domestic expenses including the respondent's credit card.

75 The payment of legal costs is a matter raised in ground 6 and will be dealt with below. As to the balance, the magistrate categorised the expenditure as 'ordinary living and family expenses' [315]. His Honour was unpersuaded that any adjustment should be made in favour of the appellant in the absence of any suggestion that the respondent set out to diminish the value of her equity in the Perth property so as to defeat any claim that might be made by the appellant.

76 The appellant contends that there was no evidence that the respondent was unable to meet her ordinary living expenses from her income and that her financial statement filed in the proceedings did not suggest otherwise. On that basis, the appellant contends that the drawings on the respondent's first mortgage were a significant 'negative contribution' to which regard should have been had under s 205ZD(3)(o). Reliance is placed on the decision in Kowaliw and Kowaliw.[25] In Kowaliw, Baker J identified the third category of cases referred to in Omacini as a relevant consideration for the purposes of s 75(2)(o) of the Family Law Act 1975 (Cth) (being the equivalent of s 205ZD(3)(o) of the Family Court Act).

77 In this case, the magistrate concluded that the expenditure by the respondent in supporting her children and meeting other expenses were 'ordinary living and family expenses'. It was open to his Honour to so find. Other than in relation to the payment of legal fees, the money expended did not fall within any of the categories of cases identified in Omacini. The approach by the magistrate was consistent with the observations of the Full Court of the Family Court of Australia in C and C where the court said:

Although it is not one of the Grounds of Appeal, we would also like to make the observation that we were troubled by her Honour adding back into the pool of assets the sum of $15,000 provided by the wife to [A] to enable her to place a deposit on a unit. The provision of modest amounts of capital by parents to their adult children to enable the children to get a start in life is a normal experience in our society. In a case involving the magnitude of the assets of this case, in our view it is unreasonable to conduct a microscopic examination of each of the parties' items of post-separation expenditure with a view to determining whether or not it is appropriate that they be brought into account in dividing up the asset pool between them. The cases which deal with notional add-backs are generally examples of circumstances in which it would be clearly unjust and inequitable not to take those matters into account. (See Kowaliw (1981) 7 Fam LR 13; (1981) FLC 91 - 092, esp at FLC 76,645; Townsend [1994] FamCA 144; (1994) 18 Fam LR 505; (1995) FLC 92 - 569; Farnell (1995) 20 Fam LR 513 (expenditure on legal costs notionally added back because of s 117).

Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. Providing modest support for their adult children or taking not inappropriate holidays for themselves seems to fit comfortably within that description [45] - [46].

78 There was no error in the magistrate declining to treat the post-separation drawdowns on the respondent's first mortgage as notional property for the purposes of division between the parties, or as a relevant consideration under s 205ZD(3)(o). Grounds 2(c), 3 and 5 are not made out.

79 Ground 2(e) asserts that the magistrate should have found that the appellant's payment of all costs associated with the joint Port Douglas property had increased the equity in the Perth property and directly benefited the respondent who claimed her moiety of them as tax deductions.

80 The magistrate found that the decision to acquire the joint Port Douglas property was substantially driven by the appellant and that the respondent would have always allowed the appellant to reap any financial benefit from the investment [333]. The investment in that property had resulted in a loss. Equity in the Perth property had been reduced by reason of the respondent's second mortgage. It is difficult to see how the appellant's payments of expenses related to that investment could be said to have increased equity in the Perth property.

81 It is true that the respondent took the benefit of losses on the joint Port Douglas property to reduce her taxable income. The appellant's evidence in his affidavit tendered at trial was that the following net losses had been incurred in relation to the joint Port Douglas property:

82 The magistrate noted that each of the parties had claimed half of the loss of $12,742.81 for the year ended 30 June 2010 in their tax returns. That was, of course, the only year during which the parties' relationship subsisted. The magistrate did not refer to the respondent's claims against her income for the losses in subsequent years, although in cross-examination, the respondent agreed that she had claimed a loss in each year before the trial in 2013.[26]

83 As we understand the appellant's submissions, he asserts that the post-separation payments by the appellant in respect of which the respondent claimed a tax deduction should have been taken into account as an indirect contribution to the maintenance or improvement of the Perth property, by way of a subsidisation of the respondent's ordinary living costs which enabled her to make a greater contribution to the equity in the property. The benefit to the respondent represented a saving on the marginal tax rate applicable to her income on half of the losses in each of the three years. The respondent's taxable income in the five years before 2009/2010 was relatively modest. The taxable income in subsequent years does not appear to have been in evidence, although a PAYG summary for the year ending 30 June 2013 was in evidence,[27] and suggested a gross income in that year of $88,625. It follows that the tax benefit of claiming half the losses on the joint Port Douglas property would have amounted to no more than something between $1,000 and $3,000 per year. That benefit is so small as to be an insignificant consideration, and it is understandable that the magistrate did not specifically refer to it in his assessment of the relevant contributions of the parties. There is no substance in ground 2(e).

84 The first category of cases identified in Omacini in which the addition of notional assets may be appropriate is where money is spent on legal fees. In Hurst v Weber,[28] Warnick and Boland JJ said that the common approaches of excluding legal fees due from a table of net assets for division, or adding back fees paid from property that would otherwise have been included in an asset pool, are designed to avoid one party effectively bearing a proportion of the other party's legal costs, as a matter of mathematics.

85 The appellant contends that the magistrate erred insofar as he, in effect, disregarded (on both sides of the ledger, as it were) the funds for the payment of the parties' legal fees. The appellant appears to contend that the two funds for legal fees should be treated differentially because (he asserts) the respondent had drawn down from her home loan account and paid legal fees prior to the commencement of the trial, whereas his funds were in a mortgage offset account at the time of trial. This ground should be rejected. The magistrate noted the appellant's unsatisfactory evidence with respect to his interest in the Gwelup property, and, in his summary of the asset pool, the magistrate referred to the value of the appellant's 20% interest in that property as 'not known' [209]. Whatever value it was, the magistrate was entitled to treat both parties' legal fees in the same way, whether they were paid to lawyers prior to trial (in the case of the respondent on the present assumption) or whether they were set aside prior to trial 'for the purpose of securing ... legal fees' as the magistrate found in the case of the appellant [181]. The amounts were approximately the same. In the broad evaluative task undertaken by the magistrate, there was no error in the magistrate not treating the funds differentially.

86 Ground 7 asserts that the magistrate's determination that the appellant be allowed a 5% - 10% interest in the net equity in the Perth property had no evident or intelligible justification and was unreasonable or plainly unjust.

87 The submissions in support of ground 7 assert that the magistrate's conclusion represented a 'simple global assessment' which was inappropriate in the absence of evidence as to the effect of the respective contributions of the parties on the value of the Perth property. Reference was made to [62] of the reasons of Newnes JA in KD v GB[29] where his Honour noted that the magistrate in that case was unable to put a value on the land and business held by the respondent when cohabitation began or when it ceased because there was no evidence from which such values could reasonably be derived. His Honour said '[t]hat of itself prevented a simple global assessment'. The reference to a 'global assessment' by Newnes JA was a reference to a consideration of the parties' contributions to the whole of their property. At [56], Newnes JA explained the difference between the court taking a global assessment approach or an asset by asset approach by reference to the decision In The Marriage of Zyk.[30] His Honour said [56]:

In In the Marriage of Zyk (1995) 128 FLR 28; (1995) 19 Fam LR 797, the Full Court of the Family Court explained in relation to s 79 of the Family Law Act 1975 (Cth) (a provision comparable to s 205ZG of the Act), the reason that the global approach is usually more convenient:

'The global approach enables the Court to assess the contributions aspect of the s 79 exercise in an overall way by considering the parties' contributions to their property as a whole although factoring into that exercise the circumstance, if it be so, that they may have made varying contributions to the total property at trial or which formed part of the history of their property during the marriage. It is the generally preferred and the generally adopted approach. It enables a broad approach to be taken to the varying contributions of the parties over the years of their marriage and in particular it usually has the advantage of more easily dealing with and giving proper recognition to pars (b) and (c) contributions. However, where the contributions to the components of the total property are disparate, caution needs to be exercised in this approach and the overall conclusion tested against the requirement that the orders be 'just and equitable'. ...

The asset by asset approach enables the Court to assess separately the parties' contributions to particular assets or groups of assets. It is the less preferred approach largely because it can at times be an artificial exercise and also because it can create difficulties in the proper evaluation of pars (b) and (c) contributions. But there are a number of circumstances where it may be appropriate to do so, for example an inheritance received post separation, or where the financial relationship of the parties during the marriage was such that they treated some property as exclusively the property of one party to which the other party made no, at least no par (a), contributions to it. It may be convenient in cases like that to treat that property separately rather than assess the overall contributions of the parties to the totality of their property.

However, the trial Judge has a discretion as to which course to adopt and does so having regard to what appears more suitable to the circumstances of the particular case (32 - 33).'

If the global approach is adopted, the origin and nature of the different assets ought still to be considered: In the Marriage of J A and S M Gill (1984) 9 Fam LR 969, 981. But it is clear that some situations do not lend themselves either to a pure global approach or to a pure asset by asset approach. Thus, for instance, as was explained in Bilous v Mudaliar [2006] NSWCA 38; (2006) 35 Fam LR 55 [43], in some cases the judge may decide to have regard to the particular contributions made to individual assets, weigh up the overall respective contributions of the parties and make differing apportionments in relation to the interests of the parties in different assets. And as the court said in Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550, 'in the necessarily inexact exercise involved in discretionary matrimonial or ... property adjustment, judicial reasoning can be aided by the use in any case of more than one approach, so that one serves as a check method for the result reached by the other' [53].

89 In this case, the magistrate expressly determined that the better approach was to consider contributions on an asset by asset basis [229]. His Honour's reasons for that approach were fully explained. Having focused on the principal asset of the parties, being the Perth property, and having made the unchallenged determination that the appellant's contribution should not be treated as a dollar for dollar interest in the Perth property, it was necessary for the magistrate to assess the relative interests of the parties in the equity of the Perth property having regard to their respective contributions. That involved an exercise of discretion and evaluative judgment. The relative interests are most conveniently couched in terms of percentages. The magistrate explained the factors to which he had regard.

90 Having regard to the payments made by the appellant resulting ultimately in a net reduction of the respondent's first mortgage in the sum of $85,250, the savings in interest enjoyed by the respondent as a result of those payments, and the expenditure on the Perth property by the appellant (accepting that any increase in the value of the Perth property resulting from that expenditure is unknown), the magistrate's conclusion that the appellant's interest was valued at $52,140 would appear to be at the low end of the range of what might be a reasonable exercise of discretion. In an appeal against the exercise of a discretion, it is not enough that judges comprising the appeal court may, if they were in the position of the primary judge, have taken a different course: House v The King.[31] No express error by the primary judge has been identified. We do not consider that it can be said that the figure determined by the magistrate is, on the facts, unreasonable or plainly unjust so as to warrant appellate interference.

91 None of the appellant's grounds of appeal is made out, and the appeal should be dismissed.

[1] The magistrate's reasons are FDR v JDL [2014] FCWAM 1 (the names of the parties have been anonymised).

[2] Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518.

[3] Bevan and Bevan [2013] FamCAFC 116; (2013) FLC 93-545 (Bevan).

[7] Bilous v Mudaliar [2006] NSWCA 38; (2006) 65 NSWLR 615 [122].

[8] Adopting the language of Ipp JA in Bilous v Mudaliar [125].

[9] Bilous v Mudaliar [122] - [127].

[10] Cf Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550 [80].

[11] Del Gallo v Frederiksen [2000] NSWCA 293; (2000) 27 Fam LR 162 [48].

[12] Bilous v Mudaliar [116], [121].

[13] Ross v Elderfield [2006] NSWCA 192 [30].

[14] Walsh v Mulherin [2008] NSWSC 61 [82] - [83].