de Winter v de Winter
(1979) 23 ALR 211|(1979) 4 Fam LR 583|(1979) FLC 90-605|BC7900034
DE WINTER v DE WINTER (1979) 23 ALR 211

de Winter v de Winter
(1979) 23 ALR 211|(1979) 4 Fam LR 583|(1979) FLC 90-605|BC7900034

Australian Law Reports · 18 pages

HIGH COURT OF AUSTRALIA
Barwick CJ, Gibbs , Mason , Murphy and Aickin JJ
3, 4 October 1978 — Melbourne, 20 February 1979 — Sydney

Headnotes

Family law — Property — Alteration of interests in — Earning capacity of parties — Financial resources of parties — Alteration of property interests weighted in wife’s favour — No maintenance order made — Whether regard had to matters requested by Act — (CTH) Family Law Act 1975 ss 75(2) and 79(4)

Appeal — Discretionary order — Alteration of interests in property — Errors of fact — Assessment of credit — Adverse conclusion as to — Affected by mistakes of fact — Assessment of significance of errors — Whether relatively insignificant errors vitiate discretionary order

Husband and wife were married in 1955. The husband was an experienced orchardist. He and his wife carried on a business on a property which he owned. The sale of the property in 1973 yielded a substantial profit, part of which was used to buy jointly a second property. At the time of the second purchase, the husband had the wife execute a loan agreement whereby she agreed to pay to the husband half the purchase price plus interest.
The parties separated in 1975. The marriage was dissolved in the Family Court of Australia in 1976. The husband remarried and his second wife was pregnant. The wife had custody of five of the six children of the marriage, including the two youngest, aged 9 and 12. She was a nurse by occupation but had for some years confined herself to helping in her husband’s business and looking after the family.
In 1977, the wife applied to the Family Court for a declaration and orders for possession of the second property and to cancel the loan agreement. The primary judge was recorded as having made some findings of fact which were at odds with the evidence. These included findings that the wife’s signature on the loan agreement had been obtained by fraud because she could not read English (she could read English), and that most of the proceeds of the sale of the first property not expended on the purchase of the second remained in the possession of the husband between 1973 and 1977. The primary judge also found on more than one ground that the husband was not a credible witness. The judge made an order requiring the husband to transfer, in effect, three-fourths of the value of the second property to the wife. The judge also declared that the loan agreement was void ab initio.
The husband appealed to the Full Court of the Family Court of Australia, pointing to the errors made by the primary judge. In lieu of the declaration of the primary judge, the Full Court made an order restraining the husband from enforcing the loan agreement. Otherwise, the Full Court confirmed the orders made by the primary judge.
The husband appealed to the High Court of Australia.
Held, dismissing the appeal:—
Per Mason J (Barwick CJ concurring): (i) Where an adverse conclusion as to the credit of a witness is based upon a number of consideration, it is not enough to show that the primary judge was mistaken in one of the consideration upon which his conclusion is based.

(ii) The status of the loan agreement and the incorrectness of the finding as to the amount of money expended by the husband between 1973 and 1977 were matters of little significance in the ultimate analysis. The assessment of the primary judge of the earning capacity of the parties was basically correct.
(iii) The primary judge and the Full Court correctly had regard to the matters referred to in ss 79(4) and 75(2) of the Family Law Act 1975 (Com) and to no other matters.
(iv) The primary judge was correct in assessing the present needs of the wife as greater than those of the husband. The discretionary judgment made by the primary judge, though based on some misapprehensions as to fact, was confirmed by the Full Court after the more important misapprehensions were corrected.
Per Murphy J: (i) The primary judge was correct in deciding that the husband had not disclosed his true financial position.
(ii) While the alterations of the property interests of the parties was heavily weighted in the wife’s favour, no orders were made for the maintenance of the wife or children.
Per Gibbs and Aickin JJ (dissenting): A discretionary judgment which has proceeded upon a mistake of fact should not be upheld simply because the order made was well within the range of discretion of the primary judge. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial.

Appeal

The marriage between Geradus Laurentius De Winter and Agnes De Winter was dissolved in the Family Court of Australia in 1976. In 1977, Mrs De Winter filed an application in that court for certain orders and a declaration in respect of property jointly held by and a loan agreement between the parties. Emery J made orders substantially in favour of Mrs De Winter. Mr De Winter appealed to the Full Court of the Family Court of Australia (Evatt CJ, Watson SJ and Ellis J) which substantially confirmed the orders of Emery J. Mr De Winter obtained special leave to appeal to the High Court of Australia. The facts are set out in the judgment of Mason J.

DAVID BUCHANAN
BARRISTER-AT-LAW

N Good, for the appellant.
R K Davis, for the respondent.
Cur Adv Vult

Barwick C J.

I agree with the reasons for judgment prepared in this appeal by my brother Mason, which I have had the advantage of reading. In my opinion, the appeal should be dismissed.

Gibbs J.

This appeal is brought by special leave from a judgment of the Full Court of the Family Court affirming a decision of Emery J. The appellant and the respondent were husband and wife. After the dissolution of the marriage the respondent made application for an order for the transfer to her by the appellant of a property at Monbulk, an order that an agreement made between the parties on 4 April 1974 be cancelled or declared null and void and certain other relief. After a hearing at which the appellant, unfortunately, appeared without legal representation, the learned primary judge made an order whose effect was to require the appellant to transfer the property to the respondent if within 90 days she paid him one-quarter of its current market value. If she failed to pay that sum, the appellant was required to sell the property and the net proceeds of the sale were to be divided between the parties as to three-quarters to the respondent and as to one-quarter to the appellant. Amongst other relief granted by the learned primary judge was Order No 5, by which it was declared that the agreement dated 4 April 1974 “is and was ab initio void and of no effect whatsoever”. The main judgment in the Full Court was delivered by Watson SJ. He held that certain of the findings made by the learned primary judge were incorrect, but was of opinion that the appeal should be dismissed, except in relation to Order No 5. He said that the other orders made by the learned primary judge were “well within the range of his discretion” — “clearly within his discretion”.
Evatt CJ. concurred with the judgment of Watson J. However, she added the following: “The essential question is as to whether the order that his Honour made is one which was just and equitable as between the parties. There is a discretionary element in determining what is just and equitable and there is a margin within which the court may act. In my opinion, not only was his Honour’s order well within that margin but it was an order which, on my understanding of the facts of this case, is one which was eminently just and equitable as between the parties.”
The third member of the court, Ellis J, said that he agreed with the orders proposed by Watson J. Accordingly the orders made by the learned primary judge except Order No 5 were confirmed; in addition the appellant was restrained from enforcing the agreement of 4 April 1974 and a maintenance order, which had been made in April 1975 in a magistrate’s court was discharged, and this discharge extended to the payments which were in arrears.
In the view that I take it is unnecessary to set out the facts of the case in full detail. There is no doubt that, if the learned primary judge was correct in the view which he took of the facts, the order which he made was one which was within the limits of a sound discretionary judgment. The appellant and the respondent came to Australia from Holland in 1955. Since that time the respondent lived what the learned primary judge described as a life of drudgery, caring for the appellant’s home and children and doing some work on the small farming properties which the parties occupied from time to time. One of those properties was an apple orchard at Wantirna which the appellant sold early in 1973. The net proceeds of the sale were $107,000. In October 1973 the appellant used part of this money to purchase the property at Monbulk which is the subject of the present proceedings. It is a small farm of about 22 acres. It was purchased in the joint names of the appellant and the respondent, for a price of $62,000. The respondent contributed nothing towards the purchase price, but on 4 April 1974 she signed the agreement to which reference has already been made. By that agreement the respondent acknowledged that she was indebted to the appellant in the sum of $31,000, convenanted to repay that sum with interest at seven per cent and charged her interest in the property with the repayment. The amount acknowledged by the respondent to be owing was of course half the purchase price of the Monbulk property.
The parties separated in 1975, and at the date of the hearing (October 1977) the respondent was living on the property at Monbulk with five children of the marriage, boys aged from 9 to 19 years of age. The respondent herself was then aged about 47. She had no assets of any significant value apart from her interest in the Monbulk property, and according to the finding of the learned primary judge was fit for no more than unskilled employment. The appellant claimed that he had no assets other than his interest in the land at Monbulk, that he had not worked since March 1975 and that he was destitute. He had remarried and his wife was pregnant.
Amongst the question which the learned primary judge had to decide were whether the agreement had been procured in circumstances that required it to be set aside and whether the evidence of the appellant that he was without other assets was true. According to the evidence of the respondent she had signed the agreement without reading it, and without being aware of its contents She said in her affidavit that it was represented to her as the final notice to be signed to complete the land transaction. In oral evidence, she said that the appellant told her that it was the final document necessary to be signed for purposes connected with the obtaining of a loan from the bank. The appellant denied these allegations. He said that the respondent knew of the contents of the document.
The learned primary judge found that the respondent’s signature to the document had been obtained by fraudulent misrepresentation as to its contents. The reasons for this conclusion were expressed as follows: “As the wife is unable to read English she had to rely on the husband as to the contents of this document. The husband says that the wife was fully aware of the contents of the document but did not give any detail as to how she is alleged to have discovered those contents. He must be taken to have known she does not read English. Again in this matter I accept the evidence of the wife. She is not an unintelligent woman and I could not imagine her executing such a deed other than in ignorance as to its contents or under extreme pressure. There is no evidence at all of any pressure.”
However, the finding that the respondent was unable to read English is completely opposed to the evidence. When the respondent’s counsel was questioning her as to the circumstances in which the agreement was signed, he put to her a leading question: “At the time I understand that you spoke very little English?” to which she replied “Yes”. However, when she was asked when the first became able to speak English, she replied that she had started to learn it about 14 years before the agreement was signed. The examination in chief then proceeded as follows:—

Q.— This agreement was signed in 1974. How was your English then? A.— Well, I can understand English, not able to pronounce it.
Q.— Can you read it? A.— Yes.
HIS HONOUR: Q.— Could you read English in 1974? A.— Yes, I could.
The Full Court recognized that the finding of fraudulent misrepresentation could not be sustained, but considered that this had no further consequence than to require Order No 5 to be set aside. Watson SJ said: “The relevance and effect of this document is minimal, although the findings basically concerning the document appear to be in error they do not affect the final decision in any specific way, nor does the document have any real significance in the overall decision properly to be made in this case.” It should be added that the appellant’s victory with regard to Order No 5 was an empty one, since he was restrained from enforcing the agreement. He had in fact previously demanded repayment of the sum of $31,000 from the respondent and had lodged a caveat to protect the equitable interest which he claimed under the agreement.
The learned primary judge did not accept the evidence of the appellant that he was without financial resources at the date of the hearing. He also said that the appellant claimed to be an expert in horticulture, and able to earn well in that field but added: “If it becomes necessary to sell the property or to give it to the wife his earning capacity would be reduced but only in so far as he may be called upon to work for some other person. The factor of effect on earning capacity is secondary in this case to the matters set out in paras (a) and (b) of s 79(4).” Paragraphs (a) and (b) of s 79(4) of the Family Law Act 1975 as amended (Com) refer to the contribution, financial or otherwise, made to the acquisition, conservation or improvement of the property by a party to the marriage.
On behalf of the appellant it was submitted that the learned primary judge had made a number of mistakes of fact in addition to that which related to the agreement. One error does apparently occur in the reasons for judgment. The learned primary judge said that on 24 April 1977 the appellant had some $13,000 in the Monbulk branch of the ANZ Bank. The Full Court said that counsel could not point to any evidence to support this finding, but went on to say that the finding was “not central to the real issue in this case and standing alone it cannot affect the overall decision”. In fact the appellant gave evidence that on 24 April 1974 he put some $13,000 in the bank at Monbulk; it was, he said, the last money he withdraw from his solicitors in respect of the sale of the property at Wantirna. It is possible that the judge intended to say that the appellant had the money on 24 April 1974, and that there is a mere typographical error in his judgment. However, it is also possible that he had made a mistake as to the date. Although this passage appears in the course of a discussion as to the extent to which the appellant had disposed of the proceeds of sale of the Wantirna property, directed, no doubt, to the conclusion that if he had no money left his expenditure had been extravagant, the mistake, if made, was potentially serious, because if the appellant had $13,000 in April 1977 it was most unlikely that he was completely destitute in October 1977. It was never made clear whether or not the error was only typographical, and, as I have indicated, the Full Court proceeded on the basis that the learned trial judge had made an error.
The learned primary judge supported his conclusion that the appellant was a witness not worthy of credit by saying that the appellant had attempted to mislead the court by evidence denying that he had committed assaults on the respondent, and by further evidence that he had been granted a decree of nullity of marriage by the Catholic Church. These finding by the learned primary judge were criticized in argument, but they were, in my opinion, open to his Honour, and it would serve no useful purpose for me to review the evidence in relation to them. The position appears to me to be that the learned primary judge had ample justification to form the view which he did on the question of credit, but the question nevertheless remains whether in forming that opinion he was influenced by his erroneous conclusion that the appellant had been guilty of fraudulent misrepresentation, and by an erroneous view as to money held by the appellant in April 1977.
Before I deal with that question, there are two other matters to which I should refer. It was submitted to us that the learned primary judge should have directed that an inquiry be held into the financial resources of the parties under reg 99 of the Family Law Regulations. That might have been a desirable course, but it was not requested at the trial and the fact that the learned judge did not act under reg 99 cannot now be made a ground of appeal. It was also submitted that the learned primary judge erred in refusing the appellant permission to refer to notes which he had prepared and which showed details of expenditure and other financial matters. It does not appear that the notes were made contemporaneously with the facts recorded, and as a matter of law the learned primary judge was correct in refusing to allow the appellant to refresh his memory in the witness box by reference to them. However, if the appellant had been represented, his counsel would have framed his questions on the basis of a statement which would doubtless have incorporated the information in the notes, and would have been entitled to direct the attention of the appellant to a particular topic if that had proved necessary. It is by no means unusual, and sometimes only common sense, to allow a witness to use notes to assist him to give evidence as to matters of financial detail, even though the notes could not formally be used to refresh memory. I must confess that I find it somewhat surprising that in a court which is required by statute to proceed without undue formality (s 97(3) of the Family Law Act), the appellant, who was unrepresented, was not allowed to make some reference to notes, although he should not have been allowed simply to read them. However, the course which the learned judge took was not wrong in law and cannot successfully be made a ground of appeal.
I return to consider whether the errors made by the learned primary judge vitiated the orders which he made in the exercise of his discretion. The principles which should govern an appellate court hearing an appeal against an exercise of discretion are well settled. They were stated in House v R (1936) 55 CLR 499 at 504–5 , as follows: “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.” It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v Storie (1945) 80 CLR 597 , both Latham CJ, at p 600, and Rich J, at p 604, cited from the judgment of Viscount Simon LC in Blunt v Blunt [1943] AC 517 at 526 ; [1943] 2 All ER 76 at 79 : “If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court’s discretion will have been exercised on wrong or inadequate materials. …” There are many other authorities, from Young v Thomas [1892] 2 Ch 134 at 137 to Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627 , that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations.
I regard the question whether the errors formed a determining factor in the result in the present case as by no means easy of solution. However, a finding of fraud is one of the most serious that a court can make in civil proceedings. Such a finding cannot easily be shrugged aside as irrelevant. Moreover, the discretion confided to the Family Court to make orders affecting interests in property under s 79 of the Family Law Act is extraordinarily wide. Such orders may of course disturb existing rights; few curial orders can have a greater effect on ordinary citizens of modest means. It needs hardly to be said that such a discretion is to be exercised with scrupulous care. In the present case I find it impossible to say that the two errors made by the learned primary judge — one actual and serious, the other apparent — did not form a determining factor in the opinion which he reached on the question of credibility. His final decision depended on that opinion. And although that decision was open, it was not inevitable. If the Full Court had considered the matter for itself, I might have doubted whether it was proper for this court to intervene, even though it might have been thought that the more desirable course, in the circumstances of this case, was to order a re-hearing. As I have said, however, the members of the Full Court, apart from Evatt CJ, were content to take the view that the decision of the learned primary judge was within the range of his discretion. I have already said that I agree with that view, but it does not alter the fact that the discretion was exercised on a wrong basis.
For these reasons I have reached the conclusion that the order of the learned primary judge should not be allowed to stand, and that there should be a re-hearing of the respondent’s application. I would allow the appeal.

Mason J.

On 21 July 1976 the Family Court made a decree dissolving the marriage of the appellant husband and the respondent wife. The appellant remarried. Subsequently, on 20 July 1977, the respondent filed an application in the Family Court seeking, inter alia, a declaration that she was entitled to exclusive possession of a property situated at Emerald Road, Monbulk, which stood in the joint names of the parties, an order for the transfer to her of the property by the appellant and an order that a loan agreement dated 4 April 1974 between the parties be cancelled or declared null and void. This application was heard by Emery J. The judge, after hearing evidence from both parties in proceedings, which were complicated by the circumstance that the appellant appeared in person, made an order requiring the appellant to transfer the property to the respondent on her paying to him one-quarter of the current market value of the property as agreed, or as ascertained by a valuer, and a declaration that the loan agreement was void ab initio
The parties were born in Holland and married there on 7 September 1955, the appellant then being aged 21 and the wife 24. Very shortly after the marriage the parties migrated to Australia where they have permanently resided. There are six children of the marriage of whom the five youngest, all boys from 9 to 19 years, live with the respondent. The parties resided at a number of addresses in Victoria until they separated on 18 March 1975. According to his Honour, the marriage was “somewhat stormy”, the appellant having been convicted on two occasions of having assaulted his wife.
It seems that the parties had few assets when they first arrived in Australia. They both worked, as did their children when they were old enough to do so. They lived in somewhat straitened circumstances without even basic household equipment, many of the children’s clothes being supplied by the respondent’s parents.
For some considerable time the appellant carried on an apple orchard at Wantirna on a property which he owned, selling the fruit from a roadside stall. The property increased substantially in value. It was sold in March 1973 for $143,000, the sale yielding a net amount of $107,438.40. The sale resulted in the investment by the appellant’s solicitors on his behalf of $97,000.
From that amount the property at Monbulk was purchased in the joint names of the parties as joint tenants for the sum of $62,000. At about the time of the purchase the loan agreement was executed. By this instrument the respondent acknowledged that she owed $31,000 to the appellant. The instrument charged her interest in the Monbulk land with the repayment of that principal sum, together with interest at the rate of 7 per cent per annum. The agreement gave no indication as to the circumstances in which the acknowledged debt arose and from the evidence it appears that no such debt existed at the time the agreement was executed.
On 30 April 1975 the Magistrate’s Court at Ferntree Gully ordered the appellant to pay to his wife $35 per week for her own maintenance and $10 per week for the maintenance of each of the children. The maintenance payments were $2400 in arrears when Emery J delivered his judgment in the proceedings in the Family Court. In the meantime the appellant had from time to time demanded repayment of the loan of $31,000 although the respondent had no funds with which to repay that amount, a fact of which the appellant was fully aware.
It was common ground between the parties that the value of the Monbulk property was $80,000 (approximately), although the primary judge considered this to be an undervalue.
The appellant’s case in the Family Court was that he had no assets, and that he had spent the net proceeds of sale of the Wantirna property. The judge declined to accept the appellant’s evidence as to his assets. Indeed, his Honour found on various grounds that the appellant was not a credible witness, preferring the evidence given by the respondent and her son where there was a conflict of testimony. This finding is now challenged. It will be convenient to defer for later consideration this aspect of the appeal. Although the judge did not accept that the appellant was now “without financial resources” he did not make a finding as to the amount of his assets. However, it is implicit in the reasons for judgment that the appellant had significant assets in addition to his interest in the Monbulk property.

The judge found that the respondent’s signature to the loan agreement was obtained by a fraudulent representation by the appellant as to the contents of the document, the representation being that she was required to sign the agreement as it was the last document necessary to effect a transfer of property into their joint names. His Honour said: “As the wife is unable to read English she had to rely on the husband as to the contents of this document.” In this respect his Honour misapprehended the effect of the evidence given by the respondent. What she said was that although she had difficulty in speaking English at the relevant time, she was quite capable of reading and understanding English.
The case was consequently determined on the footing that the respondent was under no liability to the appellant by virtue of the loan agreement. Moreover, it was eventually conceded by the appellant that the respondent would be well treated if she received half the purchase price of the Monbulk property plus half the increase in its value since the date of purchase.
The judge found that the appellant claimed “to be an expert horticulturist and able to earn well in that field”. The judge went on to say: “If it becomes necessary to sell the property or to give it to the wife his earning capacity would be reduced but only in so far as he may be called upon to work for some other person. The factor of effect on earning capacity is secondary in this case to the matters set out in parts (a) and (b) of s 79(4).”
His Honour then said:—
Looking at s 75(2) the more relevant matters are:—
• (a)the husband has a far greater earning capacity. The wife’s only training was in Holland well over 20 years ago and at her present age she could obtain no more than unskilled employment;
• (b)the wife has, and has at all material times had, the care of the children. At this stage she still has in her care three children under 18 years of age;
• (c)the financial needs of the husband are his own support and that of his wife and potentially that of her unborn child;
• (d)the financial needs of the wife are her own support and that of her three children still under 18 years of age;
• (e)the standard of living of the wife over the years has been depressed in the extreme but having done so much to build up the finances of the parties she is entitled to as high a standard of living as can be made available to her while still doing justice to both parties;
• (f)the marriage is of some 22 years and as the wife has been engaged in domestic and business duties during the whole of that period she has lost any capacity to return to the work for which she was trained in a foreign country prior to 1955.
On these findings, taking into account that the wife has made no claim for maintenance, it is my judgment that she is entitled to substantially more than the half share of the property of which she is now legal owner and a just and equitable figure is three quarters.
On appeal by the appellant the Full Court of the Family Court set aside that part of the order made by Emery J as related to the loan agreement. However, in other respects the Full Court confirmed the principal orders made at first instance and went on to make an order restraining the appellant from enforcing the loan agreement and a further order discharging the maintenance order made by the Magistrate’s Court.
The Full Court correctly perceived that the primary judge had misapprehended the effect of the respondent’s evidence relating to the loan agreement and held accordingly that the finding that she had signed the agreement in consequence of a false misrepresentation could not be sustained. Watson SJ, with whose judgment the other members of the Full Court agreed, went on to say:—
The relevance and effect of this document is minimal, although the findings basically concerning the document appear to be in error they do not affect the final decision in any specific way, nor does the document have any real significance in the overall decision properly to be made in any case.
It is noted on this appeal that both parties conceded that the effect, if any, of the document should be absorbed in the final order made by the court.
In other respects, except as to the discharge of the order made by the Magistrate’s Court, the Full Court found against the appellant and rejected his basic case, which was that an order should be made entitling him to two-thirds of the Monbulk property.
In support of his case that the Full Court was in error, counsel for the appellant argued that the primary judge made a number of erroneous findings of fact, which induced him to take an adverse view of the appellant’s credit as a witness. It was then said that some of these findings of fact were wrongly confirmed by the Full Court, which in turn failed to evaluate correctly the appellant’s standing as a witness and failed to make a necessary adjustment to the substantive order in consequence of its reversal of findings of fact. It is convenient to deal with these questions before turning to the substantive order which was made.
The primary judge found that the appellant denied ever having assaulted the respondent, notwithstanding that on two occasions he had been convicted of assaulting her. This finding and the adverse view which the judge formed of the appellant as a witness in consequence of it were attacked on the ground that the judge repeatedly told the appellant that conduct was not a consideration relevant to the making of an order under ss 75 and 79 of the Family Law Act 1975 and that he proceeded to use the conduct of the appellant as evidenced by the convictions for the purpose already indicated. It is sufficient to say that as this was not a matter raised in the appeal to the Full Court it is not now a matter which can be raised before this court. But in passing I should say that it does not appear that the judge did any more than have regard to admissions made by the appellant in the course of cross-examination as to credit.
At this point I should refer to another criticism made of the primary judge. His Honour refused to allow the appellant, when giving evidence, to refer to notes of expenditure and losses which he had evidently prepared in anticipation of the hearing. The notes were not contemporaneous records and the appellant was not entitled to refer to them. As the appellant was appearing in person his Honour might well have permitted him to refer to the notes on his indicating how they came to be prepared and the materials from which they were derived, provided that the materials could be made available. Be that as it may, his Honour’s ruling was strictly correct.
The second finding adverse to the appellant on the matter of credit was expressed by his Honour in this way: “He stated that he had been granted a decree of nullity of the marriage by the Catholic Church and steadfastly maintained that proposition until he was faced with documentary evidence as to its falsity. He then admitted it was untrue.” Counsel urged that the appellant had not asserted that the Church had granted a decree of nullity but had only claimed that the Church had ruled that the binding character of the church marriage was solely a matter for the appellant’s conscience, the witness to the marriage, Father Lowen, having died in the meantime. This claim is not sustained by the evidence. The appellant was cross-examined on the topic on several occasions. The cross-examination began:—
Q.— You’ve just had nice holiday in Holland is that so? A.— I had to go to Holland to have a church marriage invalidated.
Q.— You found it essential to do it at present? A.— It had to be done because my present wife is also a Roman Catholic.
Q.— But you wished to remarry is that so? A.— I’m now married again yes, after the Church granted the invalidation.
Q.— My client instructs me that the Church has never granted such annulment? A.— The Church in extraordinary circumstances whereby witness has died the Church has told me that the conscience of a person goes before the jurisdiction of the Church.
Q.— Well in fact? A.— The witness in this case had died and I am the only one who’s left, it is my own conscience which will go now before the jurisdiction of the Church.
Q.— Well in fact your marriage has not been annulled? A.— It has. It is, because my present wife she’s Roman Catholic as well as I am.
HIS HONOUR: Where did you marry your present wife Mr De Winter? A.— In Haarlem your Honour, the same place I got married with this wife.
The appellant repeated the claim that the marriage had been annulled by the Church when subsequently asked about it. However, when pressed, this is what he had to say:—
MR DAVIS: Q.— You told the court on the last day that your marriage had been annulled is that so? A.— That’s correct.
Q.— It’s definitely been annulled in the religious sense by the Catholic Church, is that what you told the court on the last day? I just want to know? A.— Your Honour— Yes, or no Mr De Winter.
HIS HONOUR: Q.— Why shouldn’t you answer that question Mr De Winter? A.— Your Honour the Catholic Church has granted me, has told me that officially they can’t write it on a bit of paper, they have—
Q.— They have either annulled it or they haven’t. A.— Yes, they have given me — it’s my conscience which decides.
Q.— Which Diocesan Tribunal did you apply to? A.— Melbourne and Holland.
Q.— Did you get a decision from either one? A.— Yes.
Q.— Which one? A.— From Holland. I got that in early December.
Q.— Which year? A.— Last year, 1976.
Q.— And what evidence have you got that you got that decision?
A.— That the witness concerned has died, and because of that the Catholic Church is unable to give or grant an invalidation, but my conscience comes before the jurisdiction of the Church, I could go and marry someone else.
Q.— On what basis did you apply for a nullity decree? A.— On consent.
Q.— Consent on whose part? A.— Mine.
MR DAVIS: Well, you say that in December 1976 the Diocesan Tribunal in Holland annuled your marriage? Do you understand my question? A.— Could you repeat it?
Q.— In December 1976 the Diocesan Tribunal in Holland annulled your marriage? A.— No, they didn’t. They couldn’t. The Catholic Church said they couldn’t give this officially. They have told me that. Because the witness has died, the Catholic Church can’t interfere herein any further, they told me that my conscience–
Q.— All right, I accept that. Did you tell the court last time that you received an annulment from Holland? A.— I told the court exactly what I told you today.
Q.— All right. A.— It is my conscience.
Q.— They didn’t say to you to go to some other body and see someone else? A.— No, my conscience—
HIS HONOUR: Don’t worry about your conscience at this stage.
MR DAVIS: Q.— They didn’t tell you to consult the Tribunal in Melbourne did they? A.— They may have suggested this.
Q.— They may have suggested this. Do you alter your evidence every time I put a question to you Mr De Winter? A.— No Your Honour.
In fact the appellant conceded that he had received a letter from the Church in Holland. That letter stated that he should take the matter up with the Church Tribunal in Melbourne.
The Full Court was of opinion that the primary judge was clearly right in making the finding which he made on this question and I take the same view. At the very least there was ample material before his Honour on which he was entitled to come to the conclusion at which he arrived. There was a significant change in what the witness said and his subsequent assertion that the Church left the validity of the marriage to the conscience of one party strains credulity. Again, there was some suggestion that the appellant was prevented from stating his position fully because the judge had ruled that the conduct of the parties was not a relevant consideration in itself and because the judge told the appellant not to worry about his conscience. However, a perusal of the transcript shows that the matter was dealt with as one of credit and that the appellant had adequate opportunity to fully state his position.
The third finding is that which related to the loan agreement, a finding which was upset by the Full Court. It is conceded by the respondent that the primary judge was in error on this point and that the Full Court acted correctly in setting aside the order made at first instance. However, on the appellant’s case the finding is important for present purposes because it appears to have had some adverse influence on the appellant’s credit.
The fourth finding which the appellant challenges is that on 24 April 1977 the appellant had some $13,000 in the Monbulk branch of the ANZ Bank and that he maintained that this was the last money received from the sale of the Wantirna property in 1973. Of this finding the Full Court said: “Counsel was not able to point to any supporting evidence. However, this finding is not central to the real issue in this case and standing alone it cannot affect the overall decision.” This observation overlooks certain material that was before the primary judge. The appellant gave the following evidence in cross-examination:—
MR DAVIS: Q.— On 24 April 1974 you put $13,000 in the Monbulk Bank? A.— $13,000?
Q.— Do you know where you got that from? Would you like to have a look at the statement? A.— I think you are wrong there because I think that $13,000 was the last money I withdrew from … [inaudible] and I am fairly well certain I put that in the Monbulk Branch of the ANZ.
Q.— That is what I said. A.— It was the last money I withdrew from Corr & Corr.
Q.— Was that from an investment in land? You don’t remember?
A.— Yes, Sir.
Q.— You opened another account about that time? A.— But don’t get the court mixed up. It was from the investment of land — the orchard property.
Q.— Which orchard property? A.— Wantirna South. The only orchard I ever held in my own name.
Quite clearly the reference to 24 April 1977 in his Honour’s reasons for judgment was a mistake in transcription. What his Honour meant was “24 April 1974”. Moreover, the context in which the reference appears makes it plain that his Honour was not using the evidence to sustain a conclusion that the appellant had $13,000 in the ANZ Bank at Monbulk in 1977, but was using the evidence as part of the general material leading to a conclusion that if the appellant’s claim that he had no assets was to be believed he had expended a very large amount of money since 1973, an amount in the vicinity of $50,000. In the event, the judge was not prepared to accept this claim.
The primary judge was either correct or amply justified in making two of the four findings which I have already discussed. Another finding, that concerning the assaults, is not open to challenge in this court. The remaining finding, that relating to the loan agreement, was rectified in the Full Court. That this erroneous finding by the primary judge may have played a part in persuading him to reject the appellant as a witness of truth cannot be denied. But where an adverse conclusion as to the credit of a witness is based, as it was here, upon a number of considerations, it is not enough to show that the primary judge was mistaken in one of the considerations upon which his conclusion as to credit is based. A conclusion as to the reliability of the evidence of a witness is inevitably based on a variety of factors. So it was here. The primary judge’s adverse opinion of the appellant’s veracity rested on a number of factors, including the advantage which he had in observing the witness’ demeanour. His Honour found that the respondent was a truthful witness and that her evidence was to be preferred to that of the appellant, as indeed was that of the son, whose testimony also conflicted with that of the appellant. The latter’s answers dealing with the invalidation by the Church of his marriage are in themselves a sufficient indication of his unreliability as a witness. Consequently, the case that the primary judge was mistaken in rejecting the appellant as a witness of credit fails. Accordingly, it is not to the point that the Full Court did not address itself to this question, though it should be said that it is not clear that the question was ever raised in the Full Court.
The contention that the Full Court should have made an adjustment to the substantive order relating to the property once it appeared that the loan agreement was binding and not avoided on the ground of fraudulent misrepresentation is also without substance. The Full Court was correct in thinking that the status of the loan agreement was a relatively unimportant matter. Indeed, if the status of that agreement were important it would count against the appellant. If the agreement was to be considered as binding in the future it would provide ground for holding that greater provision should be made for the respondent to safeguard her against her indebtedness of $31,000 to the appellant. However, the Full Court decided to proceed on the footing that the appellant should be restrained from enforcing the deed and that the substantive order made in the first instance should stand without alteration. In adopting this approach, if not in arriving at this result, the Full Court acted in accordance with the wishes of the parties for it was common ground that the rights of the parties under the agreement should be “absorbed” in the substantive order making provision for the respondent out of the property. In the light of these circumstances it is unnecessary to deal with the further submission that the primary judge had no jurisdiction to deal with the respondent’s claim that the agreement was void for fraudulent misrepresentation.
Some criticism was made of the steps by which the primary judge arrived at the conclusion that the appellant had not expended $50,000 or more between 1973 and 1977. This criticism rested in part on another mistake of fact made by the primary judge when he stated that the appellant’s father had given him $5000 as a wedding present. In fact an amount of 5000 guilders was given as a wedding present, its value being $1667. This is a matter of small moment which has no significance in the ultimate analysis. The appellant’s criticism also rested on the suggestion that the judge was in error in finding, as he did, that the appellant had purchased some land “quite close to that occupied by the wife and resold it in late 1976 at a profit of $4600”. This finding was evidently based on some confusing evidence given by the appellant in cross-examination in which he deposed to the purchase and sale of two parcels of land at Monbulk. According to this evidence the appellant purchased the two blocks of land for $40,000, sold one block for $31,000 and the other for $8000. In addition he received and retained a deposit of $4600 on the first block under a contract of sale which did not proceed by reason of the default of the purchaser. He claimed to have paid some commission on the sale which did not proceed and to have paid interest on borrowed moneys and in consequence to have suffered a loss on the entire transaction. Apparently his Honour did not accept the entirety of the appellant’s evidence on this point and concluded that the $4600 represented a profit. His Honour’s finding would have been more comprehensible if he had found the amount of the profit to have been $3600. But again it seems to me that the incorrectness of this finding is of little significance in the ultimate analysis.
The finding that the appellant had “a far greater earning capacity” than the respondent was, perhaps, expressed in rather more extravagant terms than the evidence justified. He was an experienced orchardist, having grown and sold apples for many years. If he were without a property of his own he could look forward to working as an employee only. However, his prospects of earning an income are better than those of the respondent. Before her marriage she had worked as a nurse in Holland, but she has not pursued this occupation in Australia. Moreover, she has the custody of the children, more particularly of the two youngest children who are aged 12 and 9 years respectively and still require to be supported.
The primary judge and the Full Court correctly had regard to the matters referred to in ss 79(4) and 75(2) of the Family Law Act and to no other matters. I do not consider that the primary judge had regard to the conduct of the parties, a matter which finds no specific mention in either of the two sub-sections, except in so far as that conduct related to other matters which were made relevant by the two sub-sections or related to the appellant’s credit as a witness in the manner that I have already described.
The judge was, in my opinion, correct in assessing the present needs of the respondent as greater than those of the appellant. In so doing, he took the view (which he was entitled to take) that the appellant was not without resources, having failed satisfactorily to account for all that he had in 1973. Here, as in so many other cases, the assets and income-earning capacity of the parties fall below what is required to sustain them in a position of moderate affluence. However, in the particular circumstances of this case it is just and equitable that the respondent should receive more than the appellant and I am not persuaded that the distribution inherent in the order made by the Full Court is incorrect. It gives the respondent three-quarters of the property or its value. The discretionary judgment made by Emery J, though it was based on some misapprehensions as to fact, was confirmed by the Full Court after the more important misapprehensions were corrected. True it is that Watson SP said no more than that the order made by the judge was “well within the range of his discretion, having regard to the totality of the facts presented to him in this case”. However, Evatt CJ specifically stated that “not only was his Honour’s order well within that margin but it was an order which, on my understanding of the facts of this case, is one which was eminently just and equitable as between the parties”.
For these reasons I can see no ground for interfering with the substantive order made by the Full Court and I would dismiss the appeal.

Murphy J.

Mr Justice Emery in the Family Court of Australia made orders altering the property interests of the parties to a dissolved marriage. The appellant, the husband, appealed to the Full Court of the Family Court, and during the appeal criticized some of Mr Justice Emery’s findings, with the result that the Full Court made new findings on certain aspects but confirmed the orders with minor changes. He now appeals to this court by special leave and pursues the same criticisms.
While the alteration of the property interests of the parties seems heavily weighted in the wife’s favour, this must be considered against the fact that no maintenance order was made for the wife or either of the children aged 9 and 12. No case was made out for maintenance for the wife and Emery J made no order for children’s maintenance as he considered that they would be better safeguarded by taking their maintenance into account on the property settlement. He was entitled to do this, Although it is sometimes said that proceedings under the Family Law Act 1975 (Com), as amended, are adversary, this is not completely true. The Family Court is able (and in some cases bound) to give effect to certain considerations, notwithstanding adversary tactics of the parties; these include the provisions for reconciliation and counselling (Pt II); the general principles to be applied by the court (s 43): the duty of the court in certain proceedings so far as practicable to make orders which will end the financial relations between the parties to the marriage and avoid further proceedings between them (s 81); the duty of the court to proceed without undue formality and to endeavour to ensure that the proceedings are not protracted (s 97(3)); and the paramountcy of the welfare of the children of the marriage expressed in s 64 and reflected in the provision for separate representation of children (s 65).
Mr Justice Emery was also satisfied (correctly, in my opinion) that the appellant had not disclosed his true financial position.
In these circumstances, the orders should stand. The appeal should be dismissed.

Aickin J.

I have had the advantage of reading the reasons for judgment prepared by Gibbs J with which I am in complete agreement. I would add only the comment that the Full Court of the Family Court failed to advert to the significance that the unsupportable finding of fraudulent misrepresentation must have had on the trial judge’s view as to the appellant’s credibility. It was not sufficient to say, as they did, that the issue in respect of which that finding was made was of minimal relevance and that the document, the signature of which the trial judge found to have been procured by fraudulent misrepresentation, did not have any real significance in the overall decision. This merely diverts attention from the effect of a finding not merely erroneous but not supported by any evidence.

Appeal dismissed.

Solicitors for the appellant: Russell, Kennedy & Cook.
Solicitors for the respondent: Halse & Mullany.

DE WINTER v DE WINTER (1979) 23 ALR 211