15 year relationship and no adjustment in favour of ‘wife’? Court holds

Appeal judgement:
https://jade.io/article/1006172
Cosola & Moretto [2023] FedCFamC1A 61

A case where
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91 was looked at.

First instance judgement:
https://jade.io/article/963883
Moretto & Cosola (No 2) [2022] FedCFamC1F 924

Key part being:

85. I am satisfied that the unstated assumptions underpinning the parties’ relationships were that during the relationship they were each free to deal with their assets as they chose to do so. They gave effect to that assumption during the relationship. The parties did not intermingle their financial affairs and did not conduct a joint personal bank account. They held and dealt with their real property, being their single biggest asset, free of consultation or consideration of what the other party may have thought was appropriate to do. The [appellant] had the benefit of occupation of the [respondent’s] home rent free whilst making her home available for use to her son. Her children lived in the [respondent’s] home for periods of time.

86. There is no presumption that following the breakdown of a relationship lasting 15 years that an order should be made adjusting the parties’ legal and equitable interests in their property. There must be a principled basis for doing so, arising out of how the parties conducted their relationship. I am not satisfied that one has been established. I am not satisfied that it is just and equitable to make an order.

Reasons for Judgment of the Honourable Justice Schonell.

Appeal:

By Notice of Appeal filed 22 December 2022, the appellant appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 25 November 2022 dismissing her application for property adjustment orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). The respondent opposes the appeal.
The appellant filed an Application in an Appeal on 14 March 2023 seeking leave to adduce further evidence. A consent order was made during the appeal hearing dismissing that Application in an Appeal.
The fundamental issues in this appeal are:

(a) should the reasoning of the Full Court in Bevan & Bevan (2013) FLC 93-545 (“Bevan”) and/or in Chapman & Chapman (2014) FLC 93-592 (“Chapman”) be revisited; and

(b) whether the primary judge failed to apply the principles identified by the High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) in determining that it was not just and equitable to adjust the property of the parties; and

(c) whether or not the findings of fact made by the primary judge, as were materially relied upon, were available on the evidence.
For reasons that follow, the appeal will be dismissed.
Background

The parties commenced cohabitation in January 2004. The appellant was 45 years of age at that time while the respondent was 44 years of age. They had each been previously married and divorced with children from those prior marriages. There are no children of their relationship. The parties separated in December 2018.
Prior to cohabitation the appellant owned an unencumbered property at Suburb G (“the Suburb G property”) and the respondent owned a property at Suburb D, subject to a debt to his parents (“the Suburb D property”).
At cohabitation the appellant moved into the Suburb D property, where the parties lived during their relationship. The appellant did not directly contribute to the costs or outgoings associated with the Suburb D property.
The appellant retained the Suburb G property throughout the parties’ relationship. It was initially tenanted (from March 2004), and the appellant retained any rental income received. It was later made available for occupation to the appellant’s son. Her son made sporadic payments of rent or board to the appellant and, when he did not pay rent, he effected repairs and renovations to the property (at [75]). The respondent did not directly contribute to the costs or outgoings associated with the Suburb G property.
The respondent is a tradesperson. He has limited reading and writing skills. Prior to cohabitation, he conducted an enterprise as a sole trader under the business name “U Company”. In December 2003, he and the appellant incorporated H Pty Ltd (“the company”), of which the respondent was the sole director. The parties were equal shareholders. It was the respondent’s uncontested evidence, accepted by the primary judge, that the company was a vehicle to receive income by way of him undertaking skilled work for Y Company, who required a company rather than a sole trader to do their work (at [66]). Save for the 2006 financial year when the appellant received a wage, the sole employee of the company was the respondent. The primary judge found that in the 2006 financial year, the appellant received a dividend (at [68]).
The company conducted a bank account. The appellant, albeit that she was not a director, undertook banking and administrative roles for the company. She had access to the company’s bank account. The respondent generated the income of the company by physically completing skilled work. All costs and outgoings for the Suburb D property were met from the bank account of the company (at [74]). The assets of the company were two vehicles, some hand tools and other equipment of negligible value (at [69] and [70]). The primary judge recorded that the company ceased to trade in 2017, prior to separation (at [66]). Thereafter, the respondent established a new company with the assistance of his daughter, through which he has continued to conduct work as a tradesperson.
At [81] of the reasons, the primary judge recorded that the appellant earns $603 gross per week. The evidence at trial was that she worked in a retail business. It was uncontested that she did not contribute her income earned from this work into either the respondent’s bank account or the company’s bank account.
At [61]–[62], the primary judge made contested findings that each of the parties undertook some work on the other’s property, but that the work undertaken by the appellant on the Suburb D property was “relatively modest” and that the cost of the renovations were met from the income generated by the company.
The primary judge found that the appellant dealt with the Suburb G property as she saw fit, without recourse to the respondent and without his knowledge (at [64] and [79]). This included taking out a mortgage facility on the property and then drawing down on that loan secured against the property to generate funds to lend to her son on 19 occasions over the course of the parties’ relationship. The evidence as to the value of these advances was unresolved. The appellant said the advances totalled approximately $253,000. Her son said it was closer to $560,000. The advances to the appellant’s son continued after separation. All advances had been repaid by the time of the trial.
The primary judge found that each party contributed to one another by undertaking homemaking responsibilities (at [72]).
The parties did not operate or share a personal joint bank account during their relationship (at [71]). They did not acquire real estate jointly, nor did they obtain any joint loans (at [61] and [77]). There was no evidence before the primary judge that the parties discussed how they would manage their financial affairs (at [76]), that they had made future plans for their life together, or that they had discussed how they would share their property if they retired or separated (at [78]).
At the termination of the relationship, the appellant retained the unencumbered Suburb G property and the respondent retained the Suburb D property subject to the same debt to his parents that existed at cohabitation.
The primary judge’s reasons

After reviewing the relevant evidence, the primary judge made the following findings that are the subject of challenge on appeal:

3. The Amended Response to Application for Final Orders filed 6 December 2019 [of the appellant seeking relief pursuant to s 90SM of the Act] is dismissed.
THE GROUNDS OF APPEAL

Ground 1

Ground 1 took many forms across the appellant’s Notice of Appeal, Summary of Argument and oral submissions. Before attempting to pin down the complaint purportedly made by this ground, it is useful to recognise that each iteration of the ground hinged on a particular construction of s 90SM of the Act, and to set out the relevant parts of that section:
90SM Alteration of property interests

(1) In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate…

…

(3) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:

…

In the Notice of Appeal, Ground 1 was recorded as:

1. When determining that it was not just and equitable in all the circumstances to make the property adjustment order under section 90SM(3), the Primary Judge made an error of law when he acted upon the wrong principles and failed to consider the matters at section 90SM(4) at all.

(As per the original)
The ground, in this form, was somewhat at odds with the articulation contained in the appellant’s Summary of Argument, which recorded a complaint as to the primary judge’s failure to “apply the law” and in particular, their “failure to consider s 90SM(4)… at all”. Ground 1 was explained in the appellant’s Summary of Argument as follows:

4. In dismissing the [appellant’s] application, His Honour relied on [Stanford] with relevant sections extracted at [41] of the Reasons. At [46], His Honour indicates, in applying Stanford, that in considering whether it is just and equity to make an order, part of the process will involve a consideration of the
s 90SM(4) factors – that is, the assessing the contributions made by the parties, while also adopting the High Court’s reasoning in Stanford that the Court should not conflate the enquiries at s 90SM(3) and 90SM(4) (expressed in Stanford as s 79(2) and s 79(4)).

(As per the original)
As was conceded by the appellant in the hearing of the appeal, the primary judge extensively considered both uncontroversial matters and disputed matters for which he made findings, falling within the remit of s 90SM(4). The assertion that he had not “considered” the matters raised in that subsection cannot therefore be maintained.
During the course of the appellant’s oral submissions, there was a shift in the complaint raised in Ground 1 to an assertion that the primary judge failed to separately assess (rather than consider) the factors identified in s 90SM(4), and that he was required to do so. The appellant distilled the scope of the ground to be that the statement at [46] of the reasons “is a manifestation of an error of legal principle”.
The allegedly impugned paragraph of the primary judge’s reasons records:

46. I will first determine what the legal and equitable interests of the parties are. I will then consider whether it is just and equitable to make an order. Part of that process will involve a consideration of the s 90SM(4) factors. If I determine that it is not just and equitable, then I would dismiss the applications. If I determine that it is, then I will go onto consider the matters under s 90SM(4) and s 90SF(3) and make such orders as I consider just and equitable.
This final articulation of Ground 1, on its face, seems at odds with the contents of paragraph 5 of the appellant’s Summary of Argument, being:

5. No ground of appeal lies in His Honour’s identification of the law in these paragraphs. Central to the appeal however, is a contention that His Honour has failed to apply it – that he has not done as he asserted he would do in [46], and which he is required to do by reference to Stanford, [Bevan] and a plain reading of s 90SM(3) of the Act.

(As per the original)
It is thus not surprising that we encountered some challenges in ascertaining the morphing complaint asserted in Ground 1.
Paragraph [46] of the reasons represents the primary judge’s summation of the authorities relevant to the approach to be taken when applying s 90SM, as set out in the immediately preceding paragraphs from [41] to [45]. It is, in our view, a correct reflection of what the High Court determined in Stanford and the Full Court determined in Bevan.
Those decisions are instructive for trial judges in their application of s 90SM. As was identified by the primary judge, in Stanford, the plurality considered the obligation on the Court not to make an order for property settlement unless it is satisfied that it is just and equitable to do so, stating that:

35. It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

36. The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition (23). It is not possible to chart its metes and bounds. And while the power given by s 79 is not “to be exercised in accordance with fixed rules” (24), nevertheless, three fundamental propositions must not be obscured.

(Emphasis added)
Those “three fundamental propositions” outlined by the High Court were, firstly, that there is a need to identify the existing legal and equitable interests of the parties, secondly that any alteration of those interests must involve a principled application of judicial discretion, and:

40. Thirdly, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down” (30). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

(Emphasis added)
In Bevan, the Full Court gave further shape to the High Court’s decision in Stanford in stating that:

81. The third “fundamental proposition” demands separate consideration of the preliminary question of whether it is just and equitable to make any order altering property interests before the need arises to consider the extent to which existing interests are to be altered and the manner in which that is to be done.

…

84. Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection (emphasis added).

85. This requirement to consider the s 79(4) matters in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.

86. We do not consider it helpful, and indeed it is misleading, to describe this separate enquiry as a “threshold” issue. We say this for two reasons. First, as was emphasised in Stanford, the initial enquiry is to determine the existing legal and equitable interests of the parties. Secondly, although s 79(2) is cast in the negative and amounts to a prohibition against making any order unless it is just and equitable to do so, the corollary is that if the court does make an order, such order itself must be just and equitable. The just and equitable requirement is therefore not a threshold issue, but rather one permeating the entire process.

87. It will be seen from this discussion that while the s 79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the Act links them. This was recognised in Ferguson & Ferguson where Strauss J said that s 79(2) “is directed to both the questions whether an order should be made at all, and what the order should be, if one is made”.

…

89. In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated in judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order…

(Citations omitted, bold and underline emphasis added)
To the extent that the appellant contends that the primary judge’s statement at [46] was a distortion of Stanford or Bevan, we reject that contention. We further reject the submission that “[the primary judge] has not done as he asserted he would do in [46]” as being plainly inconsistent with the reasons. It was accepted by the appellant that the primary judge set out to undertake a “preliminary” enquiry (see Bevan at [81]) by asking whether, after making findings as to the legal and equitable interests of the parties’ property, it was just and equitable to alter those legal and equitable interests by considering and weighing a range of relevant factors, many of which fit squarely within the remit of s 90SM(4). In doing so, the primary judge conformed entirely with the reasoning in Stanford and in Bevan.
It was conceded by the appellant that had the primary judge quantitatively assessed the
s 90SM(4) factors “in percentage or monetary terms” as part of the s 90SM(3) enquiry, he would have impermissibly conflated those two issues in the manner envisaged by the High Court in Stanford.
Having accepted that the primary judge did exactly what he was instructed to do by the High Court in Stanford and Full Court in Bevan, it became apparent during the hearing of the appeal that Ground 1 could only achieve success by contending that either of those decisions require revisiting. That is an argument that ought to have been made clearly, if at all, but was merely shadowed in the appellant’s Summary of Argument.
Cast against that circumstance, the appellant courageously submitted during the hearing of the appeal that the reasoning of the Full Court in Bevan was “unsafe”, in that “deeper consideration” of the interplay between s 90SM(3) and a 90SM(4) was required. This striking contention was not identified in the Notice of Appeal. It was contrary to the assertions in paragraph 5 of the appellant’s Summary of Argument recorded above.
During the appeal hearing, the appellant submitted that:

… it’s impossible to say from the drafting of the section that there’s a particular order in which one must approach the two considerations – that, in the end, is left to trial judges. Often – often – when you address section 90SM(3) first, it makes sense to do that because it’s often obvious that section 90SM(3) is met. So, for example, two parties come to the court saying, “We both want a property adjustment order”; it’s, effectively, conceded that section 90SM(3) is met. There’s no reason a judge wouldn’t write that at the very first point in a judgment; there’s no harm done. It could also be written at the end; there would be no harm done. As the Full Court said in Chapman, as long as there is a separate consideration of it there’s no error. But it becomes most unsafe to do it first when it requires deeper consideration. And, interestingly, in Stanford it was considered second.

(Appeal transcript 28 March 2023, p.7 lines 31–43)
The appellant continued to submit that:

The trial judge doesn’t have a discretion not to make a determination under
s 90SM(4); it says that in determining what order, if any, is just and equitable the court must consider the various factors. The High Court says that’s a separate consideration; it’s not part of [s 90SM(3)]. Subsection (3) is its own consideration. So in every case the court has to make a determination under s 90SM(4) – in every case – because s 90SM(3) is not a threshold.

…

[The primary judge] doesn’t consider s 90SM(4) at all in its own right. Sure, he has regard to factors informing his decision at s 90SM(3), but not with respect to
s 90SM(4).

(Appeal transcript 28 March 2023, p.8 lines 19–24; 45–47) (Emphasis added)
In summary, in respect to this ground the appellant contends that:

(a) the primary judge “does not get to dismiss [an application for property settlement] pursuant to s 90SM(3) alone” and “[does not] have a discretion not to make a determination under s 90SM(4)”; and

(b) subsections 90SM(3) and 90SM(4) represent two distinct enquiries that must be undertaken separately (although not in any particular order), and only upon reaching a conclusion as to each of those enquiries will the Court be in a position to answer the ultimate question of whether it is just and equitable to adjust property; and

(c) the High Court in Stanford “envisage[d] that having assessed the contributions and made a determination under s 90SM(4)… that’s not the end of the process; you have to consider whether there’s a principled reason [to satisfy s 90SM(3)]”.
For the following reasons we reject each of these contentions because they:

(a) are an inaccurate reflection of the High Court’s statement of law in Stanford. The High Court in Stanford did not seek to impose this limitation on the construction of the section and, in fact, did the opposite. To our minds, the submissions attempt to impermissibly expand what the High Court said (or did not say) in Stanford;

(b) are contrary to the guidance and caution identified in Bevan at [89]. Part of the process of determination under s 90SM(4) is to “consider the extent to which existing interests are to be altered and the manner in which that is to be done” (Bevan at [81]) such that the s 90SM process would be completed, including the value and specie of property to be adjusted between the parties. It would lead to absurd outcomes if
s 90SM were construed to oblige the Court to undertake an assessment and determination of contributions, in percentage or monetary terms pursuant to
s 90SM(4), regardless of what conclusion was reached at s 90SM(3). In some cases, including this one, such construction would require a Court, having determined the s 90SM(3) enquiry in the negative, to artificially undertake the s 90SM(4) determination in the knowledge that no order for adjustment shall ultimately be made. The process of determining the s 90SM(4) enquiry first in time would, in reality, also determine the s 90SM(3) enquiry in the same evaluation, hence conflating the enquiries.

(c) do not reflect the correct construction of s 90SM. The plain construction of the section sets out the sequential tasks in which trial judges are to engage. This approach gives effect to principles of statutory construction espoused by the High Court in cases such as Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. This sequence of tasks was made clear by the High Court in Stanford:

37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself…

(Emphasis added)

The High Court then, in the same paragraph of the judgment, proceeds consistently with the construction of the section, saying “[t]he question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order”. The High Court had an opportunity to clearly identify that a mandatory assessment of the s 90SM(4) enquiry was required in addition to and separate from the s 90SM(3) enquiry. It did not do so.
It was further argued by the appellant (if we understood it correctly) that if the Full Court’s decision in Chapman is correct such that the Court is not obliged to consider the s 90SM(4) factors as part of a s 90SM(3) enquiry, the fact that s 90SM(4) is cast in mandatory language necessitates that those factors be considered separately, outside of the s 90SM(3) paradigm. Insofar as the appellant sought to rely on Chapman as a crux for this contention to support Ground 1 as it was eventually advanced, that submission is made on shaky ground.
The plurality in Chapman (consisting of Strickland and Murphy JJ) considered the Full Court’s decision of Bevan at [85] and said the following:

25. If the plurality intended that a consideration of the s 79(4) matters is mandatory in answering the s 79(2) question, we respectfully disagree.

26. The judgment in Stanford points, in our view, to the opposite conclusion. In particular:

• The “…range of potentially competing considerations” and the consequent impossibility of charting the “metes and bounds” of what is just and equitable (at [36]);

• The ready satisfaction of the s 79(2) requirement in “many cases” by the fact of separation (at [42]);

• The statement that “it will be just and equitable” to make an order in “many cases” by reason of the “…choice made by one or both of the parties…” to end the marriage (at [42]);

• Equally, the statement that “it will be just and equitable” to make an order “in many cases” because “…there is not and will not thereafter be the common use of property by the husband and wife” (at [42], emphasis in original);

• The reiteration that: “…nothing in these reasons should be understood as attempting to chart the metes and bounds of what is ‘just and equitable’ (at [46]); and,

• The further reiteration that nothing in their Honours’ reasons is “…intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable” (at [46]).

27. Further, and crucially, in “applying s 79 in this case” the Justices of the High Court did not themselves take into account the matters in s 79(4). Indeed [51] of the judgment suggests they eschewed those s 79(4) matters relating to contribution. If, as the plurality held in Bevan, it is a “…requirement to consider the s 79(4) matters…” in determining if, pursuant to s 79(2), it is just and equitable to make any order it is, respectfully, inconceivable that their Honours in Stanford would not have done so.

(Emphasis added)
The appellant contended, and we accept, that Chapman stands for the proposition that it is permissible for a trial judge to consider the s 90SM(4) factors when answering the s 90SM(3) question, but it is not mandatory that they do so. The appellant did not argue in oral submissions that this statement of law is incorrect. That proposition, however, does not support the appellant’s contentions that the primary judge “does not get to dismiss pursuant to
s 90SM(3) alone” and “does not

have a discretion not to make a determination under

s 90SM(4)”.
For reasons which we have set out, it is permissible to consider the matters arising by way of
s 90SM(4) when answering the s 90SM(3) question. It may be that in most cases, a consideration of those matters will be informative of the s 90SM(3) enquiry.
Insofar as the plurality in Chapman purported, in [25] and in the first two sentences of [27], to lay down principle, it may be that they have impermissibly extended what the High Court said (or more accurately, what it did not say) in Stanford. However, it is unnecessary to determine that question in the context of this appeal. That is because the issue that confronts the appellant is that the primary judge did consider the s 90SM(4) factors and was informed by those considerations as part of the s 90SM(3) enquiry, in conformity with the principles identified by the Full Court in Bevan.
Efforts to induce an appellate court to conclude that an earlier authority is clearly wrong and to depart from it ought to be clearly identified and particularised in the grounds of appeal and developed in the Summary of Argument, rather than being elucidated in oral argument during the hearing of the appeal (Nguyen v Nguyen (1990) 169 CLR 245 at 269).
This ground is rejected.
Ground 2

Although Ground 2 and Ground 3 were each directed to a complaint that it was not open to the primary judge to find, on the “uncontroversial facts,” that there was no warrant to adjust property between the parties, they were addressed separately in the appellant’s Summary of Argument and, to a lesser extent, during the appeal hearing. Hence, for the sake of completeness, we shall attempt to address each ground in turn.
The Notice of Appeal records Ground 2 as follows:

2. When determining that there was no principled basis for interfering in the property rights of the parties, the Primary Judge made an error of law when he mistook material facts and acted upon wrong principles, such that the exercise of discretion under section 90SM miscarried.

(As per the original)
The ground was expanded upon in the appellant’s Summary of Argument (at page 6) as being an assertion as to the primary judge’s “[i]ncorrect application of principle and material error of facts leading to a miscarriage of discretion”.
Ground 2 appeared to conflate complaints that the primary judge made factual mistakes, legal mistakes, and had fallen into discretionary error. When this ambiguity was raised during the appeal hearing, the appellant confirmed the ground raised an argument as to error of law only and asked that we not consider issues as to discretion or mistaking material facts as part of this ground.
As we understand it, this ground contends that the primary judge failed to apply the High Court’s reasoning at [41] and [42] of Stanford, relevantly being:

41. …if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
The appellant submitted that the circumstances of this case “are almost ipso facto a principled reason” for the adjustment of property between the parties, as envisaged by the High Court in the paragraphs of Stanford reproduced above. In other words, the appellant’s submission was that the fact that the parties had been in a relationship for 15 years, during which they:

(a) did not discuss or make arrangements for how they intended to deal with their property;

(b) shared use of the Suburb D property; and

satisfied the s 90SM(3) mandate.
This ground in reality seeks to elevate one aspect of the High Court’s reasoning in Stanford, which, when applied to the facts of this case, would produce an outcome favorable to the appellant. It ignores or seeks to minimise other equally important aspects of the High Court’s reasoning. As was expressed by the Full Court in Whent & Marbrand [2018] FamCAFC 95:

14. To elevate one aspect of the parties’ relationship to being determinative of the issue is to attempt to confine the exercise of discretion. As the Court said in Stanford:

36. The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. …
We do not accept the appellant’s contention that those limited and selective factual matters by default satisfy the s 90SM(3) requirement. That superficial approach to the enquiry seeks to constrain the primary judge’s discretion in a way that was expressly rejected by the High Court in Stanford. It is contrary to the mandate set out in that decision that a court must be satisfied of a principled reason to interfere in parties’ property and not merely assume that one or the other has a right to have that property divided between them differently.
This ground fails.
Ground 3

In a related vein, Ground 3 asserted a miscarriage of the primary judge’s discretion, in that the conclusions drawn by the primary judge at [85] and [86] were not open on the evidence.
Findings are either open on the available evidence or not (Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307). Findings are not amenable to challenge by arguing that other pieces of evidence ought have been accorded greater probative weight, though factual findings based on the uncorroborated testimony of a credible witness may be impeached if glaringly improbable or irreconcilable with other incontrovertible evidence (Fox v Percy (2003) 214 CLR 118 at 127–129 and 138–147; Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]; Lee v Lee (2019) 266 CLR 129 at [55]).
The appellant said that it was not open for the primary judge to find that the parties did not intermingle their financial affairs, or that there was an unstated assumption underpinning their relationship that they were each free to deal with their own assets as they so wished, having regard to what the appellant termed in her Summary of Argument was “uncontroversial evidence”, that being:

20.1. The parties jointly owned and operated a [commercial] business as the [appellant] made contributions recognised by the [respondent] in the form or bookkeeping and administrative roles, for which she was not paid (save for a nominal amount in one year, and the also a nominal dividend);

20.2. The income jointly generated by each of their respective endeavours in the business were then freely used by both parties for the upkeep and maintenance of the [Suburb D] property, as well as it’s [sic] renovations, and both parties had unfettered access to this joint income;

20.3. Funds were also used for the day to day living expenses of the parties, as well as other items such as motor vehicles; and

20.4. Funds were also used to grow the [respondent’s] superannuation entitlements (directly referable to the parties [sic] joint endeavours in the business) for mutual use of a [recreational vehicle], to draw down to pay living expenses from 2013 and, post-separation, to add back funds used by the [respondent] for legal fees.
The above are slightly, but importantly, distorted from the findings made by the primary judge. By way of example, it was the appellant’s repeated assertion during the appeal hearing that she and the respondent “jointly” owned and operated the company. The primary judge’s findings on this matter recorded at [66]–[68] were that the appellant undertook bookkeeping and administrative roles in the company, and that she received a payment from the company in two financial years. Otherwise, the respondent was the sole director and sole employee of the company.
Similarly, the appellant contended that the income generated by the company was “joint income” applied for joint expenses of the parties. Again, this contention is inaccurate. The income of the company was not joint income, nor was the bank account operated by the company, to which the appellant had access, a “joint bank account”. The company owned its bank accounts and the profits it generated.
As to the parties’ purchase and use of a recreational vehicle, the primary judge found the vehicle was purchased using funds of the respondent and was retained by him on the parties’ separation (at [54] and [55]). The primary judge noted this was different to how the appellant “treated her other moveable property such as her personal property and the recreational watercraft” (at [55]). Although the appellant formally challenged all orders made by the primary judge, including those declaring she held the recreational vehicle upon trust for the respondent (Orders 1 and 2), the appellant did not attack either of those orders with any ground of appeal.
Ground 3 attempts to demonstrate that the primary judge’s conclusions were erroneous by selecting a few of the findings as made, machining them to the appellant’s desired versions and ignoring the balance of the findings. The appellant did not engage with the raft of other relevant factual matters considered by the primary judge to support the conclusions at [85] and [86], including those recorded at [5]–[16] of these reasons. The appellant did not seek to challenge the other extensive primary facts from which those conclusions were drawn. She made no complaint as to the weight that was afforded by the primary judge to these other facts.
It is clear that the primary judge took into account the parties’ common use of the appellant’s home during their relationship and the cessation of that use, along with many other factors to which the primary judge referred in the reasons in determining whether it was just and equitable to make an order for property adjustment. The findings recorded in [85] and [86] represented a conclusion which was reasonably open upon due consideration of all the evidence, such that the decision to dismiss the property settlement application because it would not be just and equitable to adjust the parties’ property interests was not unreasonable or plainly wrong. The appellant’s real complaint was that the primary judge did not make the findings she sought. That does not demonstrate error.
This ground also fails.
CONCLUSION

For the reasons set out above, the appeal is dismissed.
The appellant conceded that if the appeal was unsuccessful, a costs order should be made against her in the sum sought by the respondent. We shall so order.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Austin & Campton.