Adamo & Vinci (No 2)
[2024] FedCFamC1A 96
•13 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Adamo & Vinci (No 2) [2024] FedCFamC1A 96
Appeal from: Adamo & Vinci (No 4) [2023] FedCFamC1F 1100 Appeal number: NAA 11 of 2024 File number: SYC 3598 of 2018 Judgment of: AUSTIN, HARTNETT AND BRASCH JJ Date of judgment: 13 June 2024 Catchwords: FAMILY LAW – APPEAL – Where the appellant filed an application seeking to discharge final parenting and property orders – Where the primary judge did not find there had been a material change of circumstances to warrant re-litigation – Where the primary judge dismissed the application – Where the appellant appealed all orders – Where the appellant could not elucidate how the primary judge applied wrong principles of law – Where the primary judge’s preference for the respondent’s evidence over the appellant’s evidence is not an appellable error – Application in an appeal to adduce further evidence – Where the appellant conceded it was his forensic choice not to adduce certain evidence at trial – Where the appellant could not persuade the Court there was any materiality in the documents which may have resulted in a different result – Application dismissed – Appeal dismissed – Where the appellant has been wholly unsuccessful in the appeal – Appellant to pay the costs of the respondent in a fixed sum. Legislation: Evidence Act1995 (Cth) s 50
Family Law Act 1975 (Cth) ss 79A, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.31
Cases cited: Adamo & Vinci (No 2) [2020] FamCA 873
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317
Barker v Barker (2007) 36 Fam LR 650; [2007] FamCA 13
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Dimnick & Harrison [2023] FedCFamC1A 30
Fatimi Pty Ltd v Bryant [2002] NSWSC 750
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258
Lane & Lane (2016) FLC 93-699; [2016] FamCAFC 53
Livesey v Jenkins [1985] AC 424
Marriage of Millar (1983) FLC 91-326; [1983] FamCA 21
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20
Repatriation Commission v Nation (1995) 57 FCR 25
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Simpson & Hamlin (1984) 79 FLR 304
State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26
Vinci & Adamo [2021] FedCFamC1A 53
Number of paragraphs: 117 Date of hearing: 29 May 2024 Place: Heard in Sydney, delivered in Newcastle The Appellant: Litigant in person Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Alidenes & Co Solicitors ORDERS
NAA 11 of 2024
SYC 3598 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ADAMO
Appellant
AND: MS VINCI
Respondent
ORDER MADE BY:
AUSTIN, HARTNETT AND BRASCH JJ
DATE OF ORDER:
13 JUNE 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 8 May 2024 is dismissed.
2.The Second Further Amended Notice of Appeal filed 24 April 2024 is dismissed.
3.The appellant pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $18,800 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adamo & Vinci(No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, HARTNETT AND BRASCH JJ:
On 18 December 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) (“the primary judge”) dismissed a Further Amended Initiating Application filed by the appellant father (“the appellant”) on 5 December 2022. In that Application, he sought to discharge earlier final parenting and financial orders made by a judge in the then Family Court in October 2020 (“the 2020 final orders”).
The appellant argued before the primary judge that there had been a material change of circumstances warranting a re-litigation of the parenting orders. He also sought to set aside the property orders pursuant to ss 79A(1)(a), (c) and (d) of the Family Law Act 1975 (Cth) (“the Act”).
He was unsuccessful on both counts.
Accordingly, the appellant filed a Notice of Appeal on 12 January 2024. Amended Notices of Appeal were filed on 22 January 2024 and 2 February 2024. The appellant now moves on a Second Further Amended Notice of Appeal filed 24 April 2024 and an Application in an Appeal to adduce further evidence filed 8 May 2024. The respondent mother (“the respondent”) opposes his appeal.
For the reasons that follow, both the Application in an Appeal and the Second Further Amended Notice of Appeal will be dismissed with costs.
BACKGROUND
The respondent was born in 1971 and the appellant in 1972. The parties commenced cohabitation in or around 2001 and were married in 2002.
There are two children of the marriage. The parties’ older child, X, was born in 2006 and will soon be 18 years old (“X”). Even if the appeal was successful, there is little utility in considering parenting orders for him. The parties’ younger child, Y, was born in 2009 and is 15 years old (“Y”).
Separation occurred under one roof in August 2012, until the appellant left the former matrimonial home in October 2018. The parties were divorced in June 2019.
Prior to their divorce, the appellant commenced proceedings on 7 June 2018 in the then Federal Circuit Court of Australia as to parenting and property. In August 2019, the proceedings were transferred to the then Family Court of Australia, and in July 2020 final hearing dates were allocated. The final hearing was conducted over three days in September 2020. Reasons were delivered on 16 October 2020 (see Adamo & Vinci (No 2) [2020] FamCA 873).
Those 2020 final orders provided for the children to live with the respondent and spend four nights per fortnight and half the holidays with the appellant. The primary judge determined that the parties’ property interests be altered 80 per cent to the respondent and 20 per cent to the appellant. The property alteration orders included orders to equally split the respondent’s parliamentary pension.
The respondent appealed against the orders splitting her pension. That appeal was dismissed on 5 November 2021 (Vinci & Adamo [2021] FedCFamC1A 53).
The parties were then in dispute about schooling for the children, whether the respondent was in arrears for school fees, and whether she could afford to keep the children at the school they had been attending. Consequently, the appellant filed an Initiating Application on 16 April 2021 seeking orders pursuant to s 79A of the Act. The appellant contended that justice had miscarried because the respondent had failed to disclose the arrears to a judge in the then Family Court of Australia and that she was unable to pay the school fees going forward.
With respect to parenting, it seems uncontroversial that after the 2020 final orders, the children jointly or severally moved back and forth between their parents. That is hardly surprising given their age. There were some discrepancies in the evidence between the appellant and the respondent as to whom the children had been living with after the 2020 final orders. The primary judge found (at [98]), that whilst it was unnecessary to make findings, what was clear on the appellant’s evidence was that Y had spent “significantly less time” with the appellant than the 2020 final orders had provided for.
Parenting was added to the dispute by way of the appellant’s Amended Initiating Application filed 5 December 2022, seeking a variation of the 2020 final orders as to parenting.
The parenting and property proceedings then came before the primary judge for trial over three days in November 2023. The appellant’s Further Amended Initiating Application was ultimately dismissed. He now appeals against that order.
THE APPEAL
By his Second Further Amended Notice of Appeal filed 24 April 2024, the appellant appeals against all of the primary judge’s orders. However, by way of relief, the appellant asks this Court to “[a]llow the appeal and reverse the judgment and order” of the primary judge and “make the orders annexed”. The orders annexed include:
1.The Court sets aside Orders 14-15 made by [a judge in the then Family Court of Australia] on 16 October 2020, and makes the following orders in substitution thereof, (14)(i) That pursuant to section 79A(l)(a), (c), and (d) of the Family Law Act 1975(Cth), the [respondent] shall pay to the [appellant] the sum representing 55% of the non-superannuation property pool as determined by this Full Court; (ii) and, in addition, a further property adjustment of $20,000 due to the [respondent’s] failure to make full and frank disclosure of her financial circumstances before [a judge in the then Family Court of Australia] , and her conduct relating to the question of child support; (iii) less the notional sum of $395,400 already paid; (iv) less the sum of $23,021, which shall be taken to be a 50% contribution by the [appellant] for child support purposes for the school fees of the children [X] and [Y] until they reach majority, within 28 days of the making of this Order; (15) That in the event that the [respondent] has not paid the whole of the sum in Order 14 by the due date, she shall do all things required to sell the property at [D Street, Suburb E], in the State of New South Wales... [the order then sets out a sale process].
2. That Order 1 shall take effect from the date of its making.
3.Parenting orders (1)-(13) made by [a judge in the then Family Court of Australia] on 16 October 2020, and parenting order 4 made by [a Federal Circuit Court Judge] on 12 August 2019 are revived, varied, or discharged, pursuant to s65D of the Family Law Act 1975 (Cth) in the following terms:
[the appellant then goes on to set out parenting orders including a change of residence for the children from the respondent to the appellant and that the children spend two nights a fortnight with the respondent].
(Emphasis added)
This appears to be the same, or largely the same, relief sought by the appellant when before the primary judge. The relief as sought before this Court is wholly misconceived because:
(a)No challenge to the 2020 final orders can arise in an appeal from the primary judge’s orders (State of NSW v Kable (2013) 252 CLR 118 at [19], [32], [33], [38], [41], [56] and [57]; Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 393). If the appeal from the primary judge’s orders were to succeed then, in the re-exercise of discretion in relation to the appellant’s application to vary the 2020 final orders, either by this Court in the appeal or by a single judge upon remitter, the metes and measures of such a permissible exercise of discretion would depend upon the updated evidence the parties would both wish to adduce (Allesch v Maunz (2000) 203 CLR 172 (“Allesch v Maunz”)). At least in respect of parenting orders, we would have thought remitter would be the only option, given the elder child will imminently attain his majority and his views will be dispositive, the views of the younger child will now be virtually determinative because of his maturity, and there is no current evidence as to the views expressed by either. The appellant implied his financial circumstances had further deteriorated and so we impute the parties would also want to adduce updated evidence in that regard. Neither party was ready to furnish us with uncontentious evidence on those issues; and
(b)The interim orders of a (then) Federal Circuit Court judge in August 2019 were extinguished upon the making of the 2020 final orders (Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258 at [6]; Fatimi Pty Ltd v Bryant [2002] NSWSC 750 at [226]–[232]; Marriage of Millar (1983) FLC 91-326 at 78,220–78,221).
INTERLOCUTORY APPLICATION
On 8 May 2024, the appellant filed an Application in an Appeal to adduce further evidence.
Document in Order 1
The first document the appellant wished to adduce is an affidavit from his brother Mr JJ (“Mr JJ”). The appellant deposed Mr JJ’s affidavit indicates that he (Mr JJ) has moved into their parents’ home and the appellant now cannot live there and spend time with the children. He claims the house is too small. It is clear from submissions that the appellant is philosophically opposed to renting and would prefer to save for a deposit for a home. He blames the respondent for having to rent. He said Mr JJ’s affidavit also goes to his property appeal, in particular, that having to rent goes to injustice and inequity, along with hardship.
This aspect of the application can be quickly disposed of, but not in favour of the appellant. First, the appellant conceded Mr JJ “could have been called” at the time of trial and offered no cogent explanation why he was not, other than agreeing it was his forensic choice (CDJ v VAJ (No 1) (1998) 197 CLR 172 (“CDJ v VAJ”) at [116]). Second, it is difficult to see how the evidence, if accepted, would demonstrate that any order under appeal was erroneous (CDJ v VAJ at [109], [111]). Third, the appellant cannot take one tactical approach at trial, but when that fails, seek to take a different tack on appeal (see Metwally vUniversity of Wollongong (1985) 60 ALR 68).
Documents in Order 2
The appellant next wished to adduce annexures A29–A34 which were omitted from his trial affidavit when initially filed. We accept that to be so. However, for the reasons that follow, the appellant has failed to persuade us that there is any materiality in those documents which may have resulted in a different result before the primary judge (CDJ vVAJ at [109], [111]).
The documents are, in summary, the grant of an Apprehended Domestic Violence Order (“ADVO”) in mid-2021 between the siblings; the appellant’s and respondent’s texts about that; and, a text from one child to the appellant in 2022 that he wanted to live with the appellant.
The appellant said the documents about the ADVO showed the respondent’s neglect. The appellant accepted he agitated that submission at trial but was unable to demonstrate before us how the primary judge fell into error by not accepting his evidence and submissions on this topic. Indeed, many of the appellant’s submissions came down to a basal complaint: that the primary judge should have preferred his evidence over the respondent’s. But that in and of itself, does not make for an appellable error.
The final document in this tranche concerned a child’s apparent wish, expressed in 2022, to live with the appellant. The primary judge was well alert to this (at [46(4)] and [82]) but then went on to reason why he would not repose much weight on the children’s views (at [86]). This submission was made in circumstances where the parties had elected to not secure an updated Expert Report, which might have been an independent source or opinion about the children’s views and wishes. Finally, the appellant conceded that whatever the children’s views, they were not determinative (see Bondelmonte v Bondelmonte (2017) 259 CLR 662).
Documents in Order 3
At paragraph 172 of his trial affidavit, the appellant produced a summary table sourced from Optus records which he said proved the respondent was living in City Q at the relevant times of phone calls made from, or received in, City Q. However, the appellant said he could not reduce the source documents for the summary table into a hard copy at trial; there were voluminous pages of Optus spreadsheets, at what he called “Exhibit EN”. The appellant said he had inadvertently failed to tender the USB of the source documents at trial but had served Exhibit EN on the respondent’s solicitors. The summary therefore fell within s 50 of the Evidence Act1995 (Cth) (“the Evidence Act”).
The appellant was cross-examined on the summary table just as he cross-examined the respondent. The appellant did not seek to put the source documents into evidence through, say, re-examination. Nevertheless, the appellant made submissions about the summary. The primary judge made findings on the strength of the appellant’s summary (at [59]–[60]), but ultimately did not find the table led to the conclusions for which the appellant contended (at [60]).
Ultimately, the appellant said his summary was “fulsome enough” and we could make do with his summary table.
Documents in Order 4
As is clear from the reasons of the primary judge at [4], Exhibit 1 comprised some 1,800 pages of many unpaginated documents, most of which were barely mentioned in the trial. The documents in Exhibit 1 were before the primary judge and thereof before us.
Eventually, it transpired that the appellant wanted this Court to look at Exhibit 1 on the question of re-exercising discretion if his appeal succeeded. Hence, this became a potential Allesch v Maunz consideration, as opposed to an application pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”). It was therefore a potential matter for another day if the appeal succeeded.
Document in Order 5
Finally, the appellant sought for this Court to receive the list of objections he had tendered at trial. After some discussion, the appellant abandoned this aspect of the application.
Disposition – Further evidence
During the appeal hearing, the appellant abandoned, explicitly or by appropriate concessions, the documents sought to be adduced in his proposed orders 1, 3, 4 (in so far as s 35(b) of the FCFCOA Act was concerned) and 5.
The documents in his proposed order 2 (the ADVO between siblings and a child’s 2022 wishes) will not be adduced into evidence before this Court. The ADVO documents lack probative value and blur the boundaries between trial and appellant functions. The child’s wishes add nothing to what the primary judge already knew, and, in any event, his views are not determinative. None of these documents establish any appellable error on the part of the primary judge, and it would therefore not likely have produced a different result (see CDJ v VAJ at [109], [111], [136], [140]–[151], [169] and [186.9]).
The Application in an Appeal will be dismissed.
Grounds of Appeal
The appellant is self-represented, although a professional by calling. In the Second Further Amended Notice of Appeal, the appellant listed four grounds of appeal with numerous sub-grounds, many of which are dense and did not clearly identify the purported appellable error. The first ground concerns parenting matters and the balance of three canvas financial matters. We will approach the grounds in the same way – parenting and then property.
Ground 1 – parenting
The appellant challenges the primary judge’s findings that a material change of circumstance had not been made out to justify re-litigating about the children. As the appellant acknowledges, this is sometimes colloquially referred to as the rule in Rice & Asplund (1979) FLC 90-725, which requires the person bringing a parenting application, where parenting orders have already been made, to demonstrate that there has been a relevant change in circumstances to warrant the court re-litigating a parenting dispute. It is not so much a rule but a manifestation of the best interests principle.
The appellant abandoned Ground 1(a)(i), whereby the appellant worked on an erroneous assumption (as he did at trial) that the interim orders of a (then) Federal Circuit Court judge made on 12 August 2019 survived or otherwise sat alongside the 2020 final orders.
Ground 1(a)(ii) is that the primary judge applied wrong principles of law by referring to statements from a bank officer “set out at [55] of the Reasons as hearsay at [56] of the Reasons in the reasoning process therein”.
The appellant’s submissions laboured the point that he disagreed with the primary judge’s interpretation of things recorded in some bank documents. Yet, the appellant could not identify with any precision, or at all, the principles he contended should have been applied by the primary judge in the two paragraphs he sought to impugn.
Sub-ground 1(a)(ii) fails.
Ground 1(a)(iii) is that the primary judge applied the wrong principles of law “at [61]-[64] of the Reasons, in purporting to dispense with the operation of the [Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)] as to the admission of facts, when there was no relevant “compliance with the Rules” for the purposes of Rule 1.31(1)”.
In short, the appellant filed a Notice to Admit Facts in February 2023. The respondent did not file a Notice Disputing Facts. As her counsel appropriately conceded on the appeal, that resulted in deemed admissions on the part of the respondent.
There may have been some merit to this ground if the appellant had relied upon the deemed admissions and did not go into evidence on the topic of the respondent living in City Q as he contended. But he did. Paragraph after paragraph of his affidavit related to the topic. The respondent clearly joined issue with the City Q/Sydney dispute on filing her affidavit in early June 2023. The appellant even went to the trouble of deposing to things said by some bank officers that he said helped prove his case about the respondents’ residence in City Q, but which were said during the period of time covered by his unanswered Notice to Admit.
Whether the respondent lived in City Q or Sydney was clearly a live issue in the lead up to, and at, trial, with cross-examination, tenders, and submissions about same. There is no suggestion the appellant was taken by surprise that the respondent did not accept his contention about her living in City Q. In those circumstances, compliance with the Rules would have been a triumph of form over substance.
The appellant takes issue with the case of Dimnick & Harrison [2023] FedCFamC1A 30 referred to by the primary judge at [63] of the reasons, submitting that case had an “entirely different context”. All the primary judge did was draw on conventional principle that rules cannot stand in the way of doing justice to both parties.
Indeed, doing justice between both parties is an obligation imposed on judicial officers, which may not be met by slavish adherence to rules if it subverts that very obligation. The appellant suffered no prejudice in this regard, having conducted his case, cross-examination, and submissions on the basis the respondent’s residence in City Q or Sydney was a live issue, irrespective of her failure to reply to the Notice to Admit Facts.
Sub-ground 1(a)(iii) is not made out.
Sub-ground 1(a)(iv) is that the primary judge applied the wrong principles of law “at [90]-[95] of the Reasons, engaging in, irrelevant, tendency or other process of reasoning, and, fact finding, by misconstruing the relevant facts in issue contrary to the requirements of sections 55, 56, 135 of the Evidence Act 1995 (Cth).”
It was common ground that the appellant did not take up the time available to him with the children as set out in the 2020 final orders. At trial and before this Court, he maintained it was because of some agreement between he and the respondent.
However, at [90]–[95] the primary judge was not satisfied there was an agreement and went on to make findings the appellant does not like.
Before this Court, the appellant submitted that a child “represented” something to him, which the child said the respondent said. That does not make for an agreement, and it certainly does not establish that the primary judge applied wrong principles of law in rejecting the notion.
The appellant also complained that the primary judge could not find a pattern of time-with conduct of the kind identified by a judge in the then Family Court of Australia, because he no longer communicates with the respondent. That submission misses the point. The patterns were the appellant’s time (or lack thereof) with the children as a judge of the then Family Court of Australia found and foreshadowed going forward, and what eventuated by the time of trial in 2023.
We cannot discern what principle of law has been misapplied, or how the primary judge engaged in irrelevant, tendency or other process of reasoning, and, fact finding, by misconstruing the relevant provisions of the Evidence Act.
Sub-ground 1(a)(iv) is not made out.
Sub-ground 1(b)(i) speaks of “wrong” findings of fact in [23] of the reasons, specifically “that the [respondent] deposed that as both children were against the move to Sydney she decided to work from Sydney”. There are no findings in that paragraph, just a recitation of what the respondent deposed to, and what she said in cross-examination.
This sub-ground fails.
Sub-ground 1(b)(ii) challenges findings in [57], [59] – [60] and [74] of the reasons with respect to the respondent’s movements or residence in City Q. It was submitted these findings were “erroneous because they merely rely upon the [respondent’s] word, mostly given in oral evidence at the hearing without supporting probative documents”.
The findings of the primary judge at [57], [59] and [60] are unremarkable, including that the respondent’s work contract does not prove residence, nor do the location of the origin and receipt of phone calls. At [74] the primary judge reasoned why he did not accept the appellant’s case that the respondent lived in City Q. That overall conclusion was entirely open on the evidence. There was nothing “glaringly improbable” in the findings made (Fox v Percy (2003) 214 CLR 118).
Ultimately, it is not an appellable error that the primary judge preferred the respondent’s evidence over the appellant’s. It is perfectly rational to make a finding on the oral or affidavit evidence of one party without corroborative evidence.
This sub-ground fails.
Similarly, the submissions relevant to sub-ground 1(b)(iii) (being Y’s school attendance), merely constitute the appellant’s disagreement with the primary judge’s reasoned conclusions. No appellable error is raised.
This sub-ground fails.
Sub-ground 1(b)(iv) challenges, in summary, the findings of fact made by the primary judge at [86]–[87] about the children’s views. All the primary judge did in those two paragraphs was to describe the high conflict and the appellant’s denigration of the respondent (found in his own evidence) and to determine he could not place much weight on the children’s views. The primary judge ultimately determined:
86…Where the parties elected to conduct the proceedings without expert evidence, I have no objective evidence that would enable me to assess the maturity of the children or whether the children’s views are an accurate portrayal of whom they wish to live with, or a view expressed to please or appease an aggrieved parent.
The appellant failed to demonstrate how the findings in these two paragraphs were not open on the evidence.
This sub-ground fails.
Sub-ground 1(b)(v) is in similar vein, challenging the factual findings of the primary judge at [82] and [84]–[86]. The appellant submitted the primary judge erroneously found that “the family is “highly conflictual” in recent times because of the [appellant’s] conduct, the [appellant] has demonstrated an inability to refrain from denigrating the [respondent], and the children’s views were expressed to appease the [appellant]”.
At [82] the primary judge recounts what each parent said of the children’s views and described the family as highly conflictual. The finding of high conflict is well grounded in the parties’ trial material and cross-examination. The paragraph concludes by stating the rather obvious possibility that the children could be making remarks to each parent that the children think each parent wants to hear. The appellant’s own communications extracted at [84] amply support the finding at [85] being that the appellant denigrates the respondent in front of the children. We have already referred to [86].
The appellant was unable to explain how any of these findings were not open on the evidence. This ground was simply a complaint that the primary judge preferred the respondent’s case over the appellant’s.
This sub-ground fails.
Sub-ground 1(b)(vi) challenges the facts found at [90] and [92]–[93], which concerned the appellant’s claimed agreement with the respondent about parenting arrangements. It was submitted the reasons were erroneous as the primary judge “simply prefers the evidence given by the respondent without providing any reasons, and as the evidence of the respondent was uncorroborated”.
As already set out, it is not an error for a primary judge to prefer one party’s oral or affidavit evidence over that of another party, without the support of independent or corroborative documentary evidence. Again, the appellant was unable to demonstrate how these findings were not open on the evidence.
This sub-ground fails.
Sub-ground1(c)(i)(a) was not pressed.
Sub-ground 1(c)(i)(b) is to the effect that at [80]–[81] the primary judge failed to take a relevant consideration into account, being that the appellant is now renting (as opposed to living in his parent’s “small house”). The appellant submitted the primary judge should have found that was a material change in circumstances.
As discussed, it is clear the appellant is personally opposed to renting. Whilst he is currently renting, he blames the respondent for “damaging his aspiration to purchase his own property”. The appellant’s long soliloquy in his Summary of Argument under this sub-ground, speak to his philosophies on accommodation, none of which are relevant to a change of circumstance nor error on the part of the primary judge.
In any event, the primary judge was well alert to the fact the appellant was now renting, but did not, as was open to him, conclude that was a material change of circumstance. It therefore cannot be said the primary judge failed to take the renting into account, because he did in the very paragraphs the appellant seeks to impugn.
This sub-ground fails.
Sub-ground 1(c)(i)(c) challenges [97]–[99] which concern the children’s living arrangements. The primary judge at [97] simply recounts the appellant’s evidence, concluding at [98]:
… I am unable, given the paucity of cross-examination on the time arrangements in the first half of 2022, to make definitive findings. In circumstances where the [appellant’s] time with [Y] in the 17 months since June 2022 has been as little as he contends, it is unnecessary to resolve the conflict on the evidence. What is clear, even on the [appellant’s] case, is that over the period between the making of the orders in October 2020 and the hearing, [Y] has spent significantly less time with the [appellant] than provided for in the orders. Her Honour contemplated that possibility. That is not a change in circumstances.
It will be observed the primary judge relied upon the appellant’s evidence to conclude the child spent less time with the appellant than provided for in the 2020 final orders (as a judge in the then Family Court of Australia in 2020 had foreshadowed). At [99], the primary judge made an overall finding that there had been no relevant change of circumstance for the reasons articulated and referred to Order 3(c) of the 2020 final orders, which permitted the parents to agree on other time arrangements.
This sub-ground comes under the rubric of failing to take account a relevant matter. Accordingly, the appellant submitted in his Summary of Argument that the primary judge should have considered why the child spent less time with the appellant. The appellant’s reasons why are irrelevant to the child’s reality – the child spent less time with the appellant than the 2020 final orders provided, as predicted by a judge in the then Family Court of Australia. The primary judge took that relevant account into consideration.
We reject the appellant’s argument that Order 3(c) of the 2020 final orders “is directed to short term arrangements”. That is not what the order says. In so far as the appellant touched on the apparent “agreement” between he and the respondent, we have already observed he could not make good on that concept.
This sub-ground fails.
Grounds 2, 3 and 4 - s 79A of the Act
The balance of the appeal grounds concerns the appellant’s application to set aside Orders 14 and 15 of the 2020 final orders pursuant to ss 79A(1)(a), (c) and (d) of the Act. Order 14 required the respondent to pay the appellant $402,000 less some specific costs. In default of the payment, Order 15 set out a process to sell the former matrimonial home.
Section 79A(1)(a) of the Act concerns whether there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance. At trial, the appellant confirmed his case under s 79A(1)(a) of the Act was that the respondent did not disclose her arrears in school fees to a judge in the then Family Court of Australia, nor that she may be unable to pay the school fees and would withdraw the children from their school (Transcript 27 November 2023, p.21 lines 11–16).
Section 79A(1)(c) of the Act asks whether a person has defaulted in carrying out an obligation imposed on the person by the relevant order and, in the circumstances that have arisen as a result of that default, whether it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.
Section 79A(1)(d) of the Act focuses on whether circumstances of an exceptional nature have arisen since the making of the order, relating to the care, welfare and development of a child, where the applicant has caring responsibility for the child, and the applicant will suffer hardship if the Court does not vary the order or set the order aside and make another order in substitution for the order.
Ground 2 – property - errors about school fees and arrears
Sub-grounds 2(a)(i) and (ii) mainly go to s 79A(1)(a) and that the primary judge “followed wrong principles of law”, including:
(a)At [122] of the reasons as to the “part of the principle” set out in Lane & Lane (2016) FLC 93-699 (“Lane & Lane”) at [139] (set out, in part, at [105] of the reasons); and
(b)At [122]–[123] of the reasons as to the principles set out in Barker v Barker (2007) 36 Fam LR 650 at [123] citing with approval Livesey v Jenkins [1985] AC 424 at 445-6.
With respect to Lane & Lane, the primary judge cited a well-known and accepted passage from that Full Court at [105], and then applied it at [122]. The appellant’s written submissions do not elucidate with any clarity or precision how the primary judge applied wrong principle. Doing the best we can on his submissions, the real complaint seems to be that the appellant simply did not like the primary judge’s application of the facts to the law. In oral submissions, the appellant said, unhelpfully, “Lane is the lynchpin”.
The wrong principles of law said to be applied at [122]–[123] are equally elusive. At [106] the primary judge set out another well-known and accepted authority, and then applied that materiality and nexus principle at [123], concluding the undisclosed school arrears represented 1.9 per cent of the pool meaning “[t]he materiality and nexus between the suppression of the evidence and the miscarriage of justice is not evident.”
Neither the appellant’s written submissions nor oral argument shed any light on how this was an application of wrong principles of law.
These sub-grounds fail.
Sub-ground 2(a)(iii) was abandoned on the hearing of the appeal.
Sub-grounds 2(b)(i)-(iv) contend that the primary judge made erroneous findings of fact, including:
(a)At [121], that the appellant has not paid any of the school fees. The appellant argued that because the Child Support Agency had garnished almost $30,000 from him, he had therefore paid school fees. However, as the primary judge observed during the trial, there was no obligation on the respondent to apply the garnished money to school fees; “she could apply it wherever she liked” (Transcript 29 November 2023, p.240 lines 2–3). It is also clear from the context of the paragraph the primary judge was referring to actual payments by the appellant to the school;
(b)At [122] and in a convoluted ground confused by double negatives, that the respondent, “at the time of the hearing before [a judge in the then Family Court of Australia] on 21-23 September 2020, or at any time up until judgment on 16 October 2020, did not know she would not be able to meet the school fees but concealed that fact from the court; and that her failure by the wife to disclose the debt to the school was not wilful;”. But all the primary judge did was prefer the evidence of the respondent over the submissions of the appellant;
(c)At [123], that the arrears of 1.9 per cent of the pool of property was material. We have already considered the materiality and nexus proposition; and
(d)At [119]–[121], concerning findings the primary judge made about the quantum of the respondent’s payment of school fees. The primary judge simply preferred the unchallenged evidence of the respondent.
As we have said, a preference for one party’s evidence over the other is not an appellable error. The conclusions reached by the primary judge in these four areas were all open on the evidence; the appellant was unable to show the converse.
These sub-grounds fail.
Ground 3 – property – supposed obligations created by the 2020 orders
Sub-ground 3(a)(i) and 3(b)(i) are that the primary judge made errors of law at [125] – [129] and errors of fact at [127], because he failed to conclude that Orders 14 and 15 from the 2020 final orders created additional obligations on the respondent. This seems to mainly focus on s 79A(1)(c) of the Act.
Orders 14 and 15 of the 2020 final orders provide:
PROPERTY
(14)That within six months of the date of these Orders, the [respondent] pay to the [appellant] the sum of $402,000, less any sum due to the [respondent] by way of costs ordered to be paid and the [appellant’s] half share of the costs of [Dr C] which have been paid by the [respondent].
(15)That in the event that the [respondent] has not paid the whole of the sum in Order 14 by the due date, she shall do all things required to sell the property at [D Street, Suburb E] in the state of NSW being the land comprised in Folio Identifier [...] and to pay the proceeds of sale, in the following order and priority:
[The order then goes onto explain the order and priority of the sale proceeds]
The appellant contends that these orders impose an obligation on the respondent to keep parenting arrangements as per the final 2020 orders and to keep paying school fees. The primary judge observed at [127] that “[t]he order contains no such obligation nor carries with it any such assumption.”
That is undoubtedly correct; Orders 14 and 15 of the final 2020 orders carry no obligation about parenting or school fees.
We also do not accept the submission that a court may go behind any unambiguous order at any time to ascertain the “assumptions” (to use the appellant’s term) upon which a trial judge acted when crafting orders. That proposition was not supported on a careful reading of the case selectively cited by the appellant, being Athens v Randwick City Council (2005) 64 NSWLR 58 at [28], [29], and in particular, all of [140] and not just [28] and [140(a)].
The appellant could not identify any other authority which supported his notion that we could go behind unambiguous orders to look for some alternate meaning in the reasons given to explain those orders. Rather, the vast preponderance of authority is well-represented by the following discussion in Repatriation Commission v Nation (1995) 57 FCR 25 at 33–34, where Black CJ, Jenkinson and Beaumont JJ agreed, saying:
33.The rule in England is that when a judgment is clear as to its terms, not even the pleadings nor the history of the action may be utilised to construe the judgment contrary to its clear meaning (see Halsbury’s Laws of England, 4th ed., Vol. 26 at 273). Where, however, the judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity (see Gordon v Gonda (1955) 1 All ER 762 at 765, 768).
34.A similar approach has been taken in this country. If, as in the case of a “speaking” order (see, e.g., I.C.I. Australia Operations Pty. Ltd. v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 at 262) its true meaning is “immediately plain”, the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd. v Morgan [1965] HCA 21; (1965) 112 CLR 483 per Windeyer J at 503; McNair Anderson Associates Pty. Ltd. v Hinch [1985] VicRp 30; (1985) VR 309 at 311-2; cf. Kwikspan Purlin System Pty. Ltd. v Federal Commissioner of Taxation (1986 2 ATC 4602 at 4605; Australian Energy Limited v Lennard Oil N.L. (No. 2) (1988) 2 Qd R 230 at 232; Sharpe v Goodhew, Drummond J, 11 December 1992, unreported, at 10-12; Australian Securities Commission v Skase, Drummond J, 13 January 1993, unreported, at 16-17). Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has “a plain meaning” (see Codelfa Construction Pty. Ltd. v State Rail Authority of N.S.W. [1982] HCA 24; (1982) 149 CLR 337 per Mason J at 352).
(Emphasis added)
There is no ambiguity in Orders 14 and 15. They are plain in their meaning and there is no controversy about that meaning which would warrant looking at extrinsic material. There is no obligation upon the respondent with respect to school fees and parenting arrangements to be reasonably inferred from those very clear orders.
Ultimately, the appellant conceded that the success on both of these grounds depended on the Court accepting his argument about the supposed additional obligations.
We do not.
Ground 3 fails in its entirety.
Ground 4 – property – exceptional circumstances and hardship
Grounds 4(a)(i) – (iii) are hard to comprehend but seem to be directed to s 79A(1)(d) of the Act and that the primary judge failed to conclude that exceptional circumstances will derive from the hardship he and the children will suffer by virtue of Orders 14 and 15 (extracted above) in the 2020 final orders, if they are not set aside. The appellant also complains that it is not apparent that the primary judge applied “the test” in Simpson & Hamlin (1984) 79 FLR 304, asking whether the change in care arrangements was in the reasonable contemplation of the parties at the time the original order was made.
Three things arise from the appellant’s submission. First, a judge in the then Family Court of Australia observed the appellant had not taken up all the time available to him and predicted he would continue to not utilise such time going forward. By the time the 2023 trial was heard, that prediction was vindicated.
Second, the appellant was unable to establish the specific parental agreement between he and the respondent upon which he relied.
Third, it seems that the appellant forgets that the 2020 final orders allowed the parties to agree to different parenting arrangements. Accordingly, that different parenting arrangements were put in place from time to time for teenage children is hardly a material change of circumstance.
The appellant also contended he was ‘made’ to rent by the respondent when he did not wish to, and that the primary judge did not consider that hardship to the appellant. Hardship in the s 79A of the Act sense, must be of such a serious nature and resulting in such inequity that it can only be rectified by setting aside or varying the existing order.
The appellant cannot maintain that his views about renting reach such a standard of seriousness and results in such inequity that appellate intervention is required.
All the sub-grounds in Ground 4 fail.
Disposition
The appellant has failed to make out any ground of appeal. The appeal will be dismissed.
COSTS
Section 117(1) of the Act states that each party to proceedings under the Act shall bear their own costs. Section 117(1) of the Act is subject to s 117(2) and other sections which are not presently relevant. The Court can make a costs order if the Court is of the opinion that there are circumstances that justify it in doing so (s 117(2)). We have had regard to the considerations stated in s 117(2A) of the Act.
The appeal will be dismissed. The respondent sought her costs and filed the required schedule seeking costs fixed in the sum of $18,871.23. However, that canvassed a half-day appeal hearing, whereas the appeal consumed the entire day, mainly with the appellant’s submissions. Because of that, the respondent increased the costs sought to $19,000.
The appellant opposed a costs order being made against him. He submitted his finances would not allow him to meet the sums sought by the respondent. He highlighted that he was renting. His opposition to paying costs fails to engage with the reality that this appeal was misconceived and should have not been brought but in doing so, the appellant put the respondent to undue and unnecessary expense.
The appellant submitted that if he was wholly unsuccessful and we were to make a costs order in the respondent’s favour (which he opposed), then it ought be fixed in the sum of $10,000.
As the appellant has been wholly unsuccessful (s 117(2A)(e) of the Act), he shall be ordered to pay the respondent’s costs of the appeal. Impecuniosity or poor financial circumstances (or renting) is no bar to an award of costs being made (D & D (Costs) (No 2) (2010) FLC 93-435).
We will fix costs in the original sum of $18,871.23 rounded down to $18,800 and to be paid within 28 days. No submissions were made by either party as to the timeframe. We adopt 28 days simply by analogy to the timeframe provided in the Rules for bringing a costs application).
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Hartnett and Brasch. Associate:
Dated: 13 June 2024
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