Andrew & Delaine
[2009] FamCAFC 182
•6 October 2009
FAMILY COURT OF AUSTRALIA
| ANDREW & DELAINE | [2009] FamCAFC 182 |
| FAMILY LAW – APPEAL – PARENTING ORDERS – Whether the trial Judge erred in departing from the recommendations of the expert without adequate reasons – Where the trial Judge carefully assessed all of the relevant evidence – Where the trial Judge extensively reviewed the expert’s reports and evidence in her reasons – Where the expert had not been aware of the high level of animosity between the parties about property proceedings – Where steps had been taken by the wife to restore the relationship between the husband and the children – No appealable error FAMILY LAW – APPEAL – PROPERTY ORDERS – Whether the trial Judge erred in assessing the contributions of the parties – Where the trial Judge carefully assessed the parties’ contributions during the marriage – Where the findings made by the trial Judge were open to her on the evidence – No appealable error FAMILY LAW – APPEAL – PROPERTY ORDERS – Whether the trial Judge was in error in making a s 75(2) adjustment in favour of the wife – Whether the trial Judge failed to consider the differential in the parties’ income earning capacity – Where the trial Judge took all relevant matters into account – Where the adjustment made was open to the trial Judge – No appealable error FAMILY LAW – APPEAL – COSTS – Where the husband was wholly unsuccessful in the appeal – Where both parties have capacity to pay any costs order made – Husband to pay wife’s cost of and incidental to the appeal and the costs of the Independent Children’s Lawyer |
| Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 60CC(3)(d), 60CC(3)(l), 75(2) |
| Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Hall & Hall (1979) FLC 90-713 House v The King (1936) 55 CLR 499 Jones v Dunkel (1959) 101 CLR 298 Mallet v Mallet (1984) 156 CLR 605 Norbis v Norbis (1986) 161 CLR 513 |
| APPELLANT: | Mr Andrew |
| RESPONDENT: | Ms Delaine |
| INDEPENDENT CHILDREN’S LAWYER: | Brendan Bowler |
| FILE NUMBER: | ADF | 1216 | of | 2004 |
| APPEAL NUMBER: | SA | 110 | of | 2008 |
DATE DELIVERED: | 6 October 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | May, Boland & Strickland JJ |
| HEARING DATE: | 20 July 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 December 2008 |
| LOWER COURT MNC: | [2008] FamCA 1059 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Tredrea |
| SOLICITOR FOR THE APPELLANT: | D M Davidson |
| COUNSEL FOR THE RESPONDENT: | Mr Whittle |
| SOLICITOR FOR THE RESPONDENT: | David Burrell & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Bowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Hume Taylor & Co |
Orders
That the appeal is dismissed.
That the husband pay the wife’s costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
That the husband pay the Independent Children’s Lawyer’s costs in the sum of $3,170.00.
IT IS NOTED that publication of this judgment under the pseudonym Andrew & Delaine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 110 of 2008
File Number: ADF 1216 of 2004
| Mr Andrew |
Appellant
And
| Ms Delaine |
Respondent
And
Brendan Bowler
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Mr Andrew and Ms Delaine were married for approximately 22 years. On the breakdown of their marriage in late 2003 they were unable to agree about parenting arrangements in respect of their two youngest children, twin girls, who were born in 1993. They were also unable to reach agreement as to how their property should be divided.
Contested parenting and property proceedings were heard by Dawe J in 2008, and her Honour delivered reasons for judgment and made orders on 5 December 2008 which, in broad terms, provide for the wife to have sole parental responsibility for the two youngest children, that they live with the wife, and spend time with the husband each alternate weekend, for one half of school holidays and on other special occasions. The trial Judge found the parties’ property, excluding superannuation, to have a net value of $1,781,914.00, and she divided that property as to 55 per cent or $980,053.00 to the wife, and 45 per cent or $801,861.00 to the husband. Additionally, the trial Judge’s orders provide that the wife retain an interest in two superannuation funds, with the effect the wife retained 65.32 per cent of the parties’ superannuation entitlements.
This is the husband’s appeal against both the parenting and property orders. The wife resisted the husband’s appeal. The independent children’s lawyer (“the ICL”) participated in the appeal insofar as it related to the parenting orders. The ICL did not support the appeal.
The husband’s Notice of Appeal contained six grounds of appeal (with various sub-grounds). At the hearing of the appeal the husband’s counsel abandoned grounds 4, 5 and 6. As a consequence the issues on the appeal narrowed.
In his parenting appeal the husband concentrated on effectively one complaint – that the trial Judge had given insufficient weight to, and improperly rejected, without adequate reasons, the evidence of the court expert, a psychologist, Ms SA (“the expert”).
In his appeal against the trial Judge’s property orders, the husband asserted error by the trial Judge in her assessment of the parties’ contribution entitlements, and in respect of the adjustment made under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The trial Judge determined that the parties’ contributions should be assessed as to 52.5 per cent to the wife, and 47.5 per cent to the husband. Her Honour made a further adjustment in the wife’s favour of 2.5 per cent under s 75(2).
The husband sought, in the event the appeal was allowed in respect of the parenting orders, that we should set aside the orders of the trial Judge, and make orders that he have sole parental responsibility for the children, and that they live with him. Insofar as the property aspects of the appeal were concerned, the husband sought that, in the event we found appealable error, we should re-exercise the discretion on the assets and liabilities as determined by the trial Judge, but adjusting his interest in the net assets to 55 per cent. This would also take into account the outcome of a successful appeal in respect of the parenting orders. He did not challenge the trial Judge’s determination to treat the parties’ superannuation entitlements in a separate “pool”, or her Honour’s division of those entitlements.
We propose in these reasons to record some brief relevant historical matters. We will then consider the complaint about the trial Judge’s parenting orders with reference, where appropriate, to her Honour’s reasons, and the expert and other evidence adduced at the trial. We will then adopt a similar procedure in considering the appeal against the property orders.
Background
The following facts are recorded in the trial Judge’s reasons and are not controversial.
The husband was born in 1955 and was aged 53 at the date of the trial. The wife was born in 1960 and was aged 48 at the date of the trial.
The parties were married in April 1981. They separated on 3 December 2003, that is, approximately four and a half years prior to the commencement of the hearing before the trial Judge. The parties were divorced in April 2005.
There are five children of the marriage. The two eldest children, a daughter Y and a son S were over the age of 18 years at the date of the hearing. Y was living independently and S was living with the husband. The third child L was aged 17 years. He was living with the wife. No orders were sought in respect of L. The twins, R and E, the subject of the proceedings, were aged 15 years. The twins had been adopted by the parties in 1997. Another child J, who was born in the Philippines in 1996, had commenced living with the parties in 2002, but had not been formally adopted by them. At the date of the hearing J was living with the husband, and was subsequently adopted by the husband.
After separation the wife met Dr Delaine at her place of employment. The wife commenced living with Dr Delaine in October 2005 and they married in December that year. The wife asserted her marriage to Dr Delaine broke down shortly prior to the commencement of the trial.
Shortly before their marriage the parties purchased a vacant block of land in a suburb of Adelaide. The husband asserted the deposit of $10,000.00 was paid from the parties’ joint savings. The wife asserted the deposit was funded from her savings.
At the date of the marriage (when the parties commenced cohabitation) the husband asserted he held:
a)his interest in the vacant land;
b)superannuation acquired from his employment with PMG and Telecom from 1973;
c)a Chrysler motor vehicle; and
d)furniture and household and personal effects.
Other than her interest in the land and personal effects the wife did not assert that she held any other assets.
Throughout the marriage and until 1991 the husband was employed by PMG/Telecom. On termination of his employment he received a redundancy package. The parties purchased a shop in K (a rural township) and set up a family business.
Prior to the marriage the wife had obtained nursing qualifications. Throughout the marriage she was engaged in part-time work, except when she ceased work to care for the children when they were infants.
In 1986 the parties purchased an 18 acre block of land on the outskirts of K. They built the matrimonial home on this land. The husband remained living in the matrimonial home with S and J at separation.
In 1992 the parties purchased a farm (“the W property”). The W property had been previously owned by the wife’s family. The farming land was leased, as was the homestead. After separation, in 2004, the wife, Y, L, R and E commenced living on the farm, as did Dr Delaine when he commenced his relationship with the wife.
The wife commenced proceedings for property settlement in August 2004. In February 2005 the wife amended her application to also seek parenting orders in respect of the children. The husband, in his amended response filed 12 May 2008, sought parenting orders in respect of R and E, including orders that he have sole parental responsibility for the twins, and that they live with him. He sought a number of injunctions, including orders restraining the wife from changing the children’s school, removing them from the K area, or permitting them to associate with Dr Delaine.
Immediately following separation all the children, including J, lived with the wife, and spent one night a week with the husband. S and L worked two days a week in the family business. From February 2004 until January 2005, by agreement between the parties the children, other than S, lived in an equal shared “week about” parenting arrangement.
In January 2004 S’s relationship with the wife broke down, and thereafter he resided exclusively with the husband.
An incident occurred on 23 January 2005 at the W property involving S, Y, Y’s boyfriend and the husband. The incident resulted in criminal charges against the husband and S. The husband was acquitted in the District Court of charges of aggravated criminal trespass, threatening life, assault family member and common assault. Proceedings against S in the Youth Court were withdrawn.
In March 2005 the parties entered into consent interim parenting orders which provided, inter alia, for L, R and E to live with the husband each alternate week and on other special occasions. However from April 2006 L ceased living with, or spending any time with, the husband.
In August 2005 J commenced living with the husband on a full-time basis.
In August 2006 the twins asserted the husband had taped a telephone conversation with the wife. After an argument with the husband the twins returned to the wife’s care.
In December 2006 the first family report was prepared by the expert.
During the parties’ marriage distributions were made from a family trust to Y. After separation Y received a tax assessment in respect of distributions of income from the trust. It was not in dispute that Y had not actually received the income, but had a credit loan account. In 2007, Y commenced proceedings in the District Court against the husband for payment of her loan account. The wife was joined in the proceedings by the husband, but she did not oppose Y’s claim. The proceedings were settled, and to pay the settlement sum the parties agreed to sell a unit at G (an Adelaide suburb).
In January 2007 the twins ran away from the husband’s home. They also ran away from the husband’s home in March and October 2007. After further orders were made the twins refused to return to the husband’s care.
In 2008 the twins ceased attending a local Christian school. The wife enrolled them in the local high school. The twins refused to spend any time with the husband from October 2007 until June 2008.
The trial commenced in May 2008 and had to be adjourned part-heard. At that time the trial Judge made interim orders for the twins to spend time with the husband on two alternate weekends. In July 2008, at the completion of the trial, judgment was reserved and the trial Judge made orders, including an order that the children spend the whole of the July school holidays with the husband, and until delivery of judgment the twins should live with the father each alternate weekend. It was not in dispute before us that there had been compliance with these orders, and that, at the date of the hearing of the appeal, the twins were spending time with the husband in accordance with the trial Judge’s orders. That is, they were spending each alternate weekend with the husband, together with one half of all school holidays as well as other special occasions.
Grounds of appeal
As we have explained earlier in these reasons, the essential argument agitated in the appeal against the parenting orders was the assertion that the trial Judge had departed from the views of the expert without giving adequate reasons for so doing, and was in error in the ultimate parenting orders she made.
We will first consider the issue raised in the parenting appeal, and then discuss the asserted errors in the property appeal which we earlier identified.
Appellate principles
This was an appeal against a discretionary judgement. The principles governing such an appeal are well known. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 Asquith LJ said:
… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Complaint about the trial judge’s “rejecton” of the expert’s recommendations
The Court appointed expert, Ms SA, is a registered psychologist. Her first report, which was dated 18 December 2006, was an extensive one in which she recorded her interviews, not only with the twins, but with the other children of the marriage, as well as the parties and Dr Delaine. The expert noted a history of “acute conflict” between the parties. In expressing her opinion about the twins, the expert described them as “being immature for their age” (which was then 13).
In her first report, the expert recommended that the parties share parental responsibility for the twins, that they live with the wife and spend time with the husband each alternate weekend and for block periods during school holidays. She also recommended both parties should attend an anger management program.
The expert prepared an updating report dated 10 August 2007 (“second report”). For the purposes of that report the expert interviewed the twins. Under the heading “Summary and Conclusions” the expert opined:
It is noted that counselling appears to have made no difference to the girl’s [sic] understanding of or thinking about the father. In addition, there has been no change in the way they relate to him as a result of counselling. This suggests that the girls have become very entrenched in their views and that individual counselling may not be useful at this time (however, see more below.)
Documentation also suggests that the mother has continued to actively alienate [E] and [R] from the father…
It is the opinion of the writer that [E] and [R] remain firmly entrenched in their rigid, narrow and stereotyped view of their father. The writer suspects that this view has become so ingrained that it no longer even requires the influence of the mother – and has only been minimally changed by any positive experiences with the father. In other words [E] and [R’s] attitude towards their father, although initially highly influenced by their mother (and [Dr Delaine]) is now driven by an internalised system of beliefs which may possibly be very hard to shift. If this is the case, the writer has real concerns for the future emotional welfare of both girls.
The expert concluded, at page 12 of her report:
On balance, therefore, it is the opinion of the writer that in the interests of the long term emotional welfare of [E] and [R], one final effort needs to be made to repair the girl’s [sic] of their father. The writer recommends that both [E] and [R] should live solely with the father for the remainder of this current year; and that for an initial period of two months, should have weekly telephone contact with their mother through the auspices of the school counsellor who could monitor the conversation by speakerphone. It should also be incumbent on the school counsellor to report to the Independent Children’s Lawyer, any negative influence of the mother during these telephone conversations. Thereafter, the girls should spend time with their mother every Saturday from 9.30am until 6.30pm (for the remainder of 2007).
…
RECOMMENDATIONS
1.That [R] and [E] live with their father, [Mr Andrew], on a full-time basis for the remainder of 2007
2.That for an initial period of two months, the girls have weekly telephone contact with their mother, [Ms Delaine], through the auspices of the school counsellor
3.That for the remainder of 2007, the girls spend time with their mother every Saturday from 9.30am until 6.30pm.
4.That the girls, together with their father, [J] and [S] attend family counselling with [Mr PE] for the remainder of this current year.
It was submitted to us by counsel for the ICL that this recommendation was not a recommendation for final orders, but rather a recommendation to facilitate a repairing of the relationship between the twins and the husband. It is not in dispute that at the time of the expert’s second report the twins were spending time with the husband, but had run away on two occasions.
Our examination of the transcript reveals the expert, at the commencement of her oral evidence, confirmed that her recommendation that the twins live with the husband was on the basis that they live with him for a period of four or five months to re-establish their relationship with him. The expert clarified her recommendation to counsel for the ICL as follows:
You further recommended that, for the remainder of 2007 the girls spend time with their mother every Saturday from 9.30 am until 6.30 pm. Is it still your view that that is an appropriate order to have in place for the ensuing four to five months?---I’m just looking at the time frame now. It seems to me that that may actually be different, because I’m aware now that the girls are almost 15.
My original idea of spending some full-time with the father uninterrupted, as it were, was the idea of an opportunity for them to rebuild their relationship, so in my terms a circuit-breaker, as it were, and then my thinking now is perhaps then contact with the mother for a period of – in those terms of alternate weekend contact with their mother for a period of time up until they’re 16, at which point they can choose where they want to live. So there’s a variation on that at this point. (Transcript, 23 May 2008, pp 3 - 4)
After cross-examination the expert was asked a number of questions by her Honour, and expressed the view that a regime of the twins spending alternate weekends with the husband should be trialled during the period the proceedings were adjourned. We will shortly refer to this evidence when over-viewing the trial Judge’s reasons.
It is also important to note that her Honour, by the time of the trial, also had before her a family report dated 17 March 2008 prepared pursuant to an order of Judicial Registrar Forbes of 14 January 2008 (that is, a report prepared some months after the expert’s second report) after the twins had refused to return to the husband’s care. The report was prepared by the two family consultants who had attempted to facilitate the handover of the children to the husband. The report writers noted:
11.Both writers considered that the only way the handover could be effected would be by some kind of force or coercion.
12.While both girls presented as generally compliant and well-behaved, both appeared determined in their views about not wanting to spend any time with their father. Their actions in respect to running away on previous occasions would suggest that this view has remained consistent over a period of time. If the children were forced to go against their wishes they may well attempt to run away again and this could expose them to significant risks. The attempt at handover was therefore abandoned.
Trial judge’s reasons
At paragraph 55 of her reasons, the trial Judge identified the issue to be determined and explained “[t]he main issue to be determined is the reason for the poor relationship between [R], [E] and the husband”. Her Honour went on to note the husband’s assertion that the wife and Dr Delaine had not separated, and further that the husband asserted that Dr Delaine was not a fit and proper person to have the care of R and E and nor was the wife.
At paragraphs 59 to 71, her Honour extensively recorded the evidence of the incident at the W property. Her Honour then went on to discuss the occasions when the twins ran away from the care of the husband.
At paragraph 92 of her reasons the trial Judge noted that during his cross-examination the husband:
… vehemently denied that he had played any part in the breakdown of his relationship with [R] and [E]. He was asked if he had done anything to contribute to their ill-feelings and he said ‘No’.
Her Honour then discussed the husband’s evidence and, at paragraph 93, said:
The husband’s attitude when giving evidence was bordering on ‘self-righteous’. He did not take responsibility for any behaviour which might have played a part in reducing the quality of his relationship with [Y], [R] or [E].
Under the heading “The Wife’s Attitude” her Honour noted, at paragraph 102, that, at the end of the trial, the wife was proposing the twins spend alternate weekends and half school holidays with the husband. Her Honour explained:
… [R] and [E] had by then spent two weekends with the husband pursuant to the orders made when the trial was adjourned part-heard.
Her Honour went on to further explain that the wife had given evidence that she accepted she needed “expert assistance to help her to encourage the girls to renew their relationship with the husband”. Her Honour then recorded:
… The wife sought that there be a gradual introduction of [R] and [E] spending time with the husband. She was opposed to the husband’s orders that sought that [R] and [E] be collected by the police. …
Her Honour, at paragraph 105, noted that during her cross-examination the wife had consistently denied deliberately alienating R and E from the husband. She also noted that the wife conceded she had changed the type of orders she was asking the Court to make after she had received advice.
At paragraph 111 of her reasons, the trial Judge recorded the wife’s evidence in cross-examination to the effect that she was concerned if the Court ordered the children be taken by the police and placed with the husband that they would be “devastated”. Her Honour noted that the wife said she was concerned the twins would run away and threaten suicide.
At paragraphs 112 to 114, her Honour set out her assessment of the wife’s credit noting, at paragraph 112, “[a]t times the wife was not a convincing witness”. Later, at paragraph 113, her Honour recorded:
During cross-examination by counsel for the Independent Children’s Lawyer the wife conceded that she had only realised the need for her to take steps to overcome the unhealthy view [R] and [E] had of their father a few days before the trial commenced. She conceded that it was unhealthy for the children not to want to have any contact with the husband. She maintained however that she had not deliberately done anything to alienate the twins from their father, but in hindsight perhaps she should have done some things differently.
Immediately thereafter, at paragraphs 115 to 123, her Honour set out the recommendations of the expert, as well as extracts from her first report. At paragraph 120, her Honour noted that, notwithstanding the recommendations in her first report, the expert had verbally conveyed to the ICL her view that, at the time, the shared week about orders should continue and that the expert expected the trial to take place in a short time. Her Honour then set out an extract from page 11 of the expert’s second report, and the recommendations in that report (we have earlier in these reasons set out the expert’s recommendations).
At paragraphs 124 to 132, her Honour recorded relevant extracts of the expert’s oral evidence. Her Honour noted that the expert maintained the views expressed in her two reports and recorded, at paragraph 124, that the expert’s oral evidence was that the twins were likely to choose where they wanted to live when they were 16.
At paragraph 127 of her reasons, the trial Judge summarised the cross-examination of the expert, who had conceded she had not been fully aware of the level of conflict between the parties in relation to their property settlement proceedings. Her Honour further explained that the expert had conceded her recommendation in her second report had been based on her understanding that “there was to be a trial as soon as possible” (paragraph 128).
Thereafter her Honour set out a portion of the transcript where she discussed with the expert the type of interim orders which could be made when it was obvious the matter was going to have to go over part-heard. The expert’s evidence recorded at paragraph 130 of her Honour’s reasons is significant. Given its importance we set out in full paragraph 130 of her Honour’s reasons:
130.Shortly thereafter the following cross-examination of [Ms SA] by [counsel for the wife] took place:
‘If there [sic] were to occur, then isn't it your view that if it could be demonstrated that these children could have a relationship with their father without the extreme measures that are suggested, that all other matters aside - I'll start this again. I'm suggesting to you that, for these girls, if they would go to their father and have a relationship with their father, the better orders in the long term would be something along the lines of them spending alternate weekends and half school holidays with their father?---Probably something along those lines. It may be slightly more time than that, but along those lines is something that I think is a possibility. The central concern for me has always been: is there a way for these children to repair their relationship with their father, such 5 [sic] that over a period of time they can enjoy a relationship with their father, because it seems to me that at this point in time there's nothing there that convinces me that if it was just to be let go as it is now, without any kind of intervention, their relationship with their father is lost. That's what I truly believe. I don't have a lot of hope that - well, it's worth a go. I don't have a lot of hope necessarily that this proposal will work, but it is worth a go and, given that it can't be finalised today, within that context it's probably worth - it allows for, I think, what your Honour is suggesting - almost like a trial. Is that right, your Honour - a trial period of a different approach?’ [original emphasis]
At paragraph 132, the trial Judge explained that the expert’s reports and oral evidence “emphasise the importance of taking steps to restore a healthy relationship between [R], [E] and the husband”.
At paragraphs 133 to 141 of her reasons, the trial Judge set out her assessment of the evidence. She found she was not satisfied the negative attitude of the twins towards the husband were “substantially or primarily [due] to the influence of the wife”. Her Honour concluded that the twins’ attitude towards husband was “also due to the husband’s behaviour towards them and his behaviour towards other members of the family” (paragraph 139).
At paragraphs 140 and 141 of her reasons, her Honour set out her conclusions about the expert’s evidence:
140.Part of the factual basis upon which [Ms SA] reached her conclusions is therefore not established. Nonetheless, it is clear from the evidence that this family is one where there are severely strained difficult relationships between adults and children (including the extended family such as the paternal grandfather). As a result the relationship between [R] and [E] and their father has suffered.
141.I accept the evidence of [Ms SA] that if the husband and wife both desist from using the children (including the older children and [J]) for their own purposes in the ongoing battle between the parents, the children may then have an opportunity to benefit from appropriate relationships with each of the parents, their siblings and extended family.
Following her factual findings, her Honour turned to consider factors relevant to the best interests of the children by applying her factual findings to s 60CC(2) (“the primary considerations”) and s 60CC(3) (“the additional considerations”).
In dealing with the benefit to the children in having a meaningful relationship with both of their parents, at paragraph 154, her Honour repeated her finding that the expert’s evidence was that the children’s attitude to the father was unhealthy, but her Honour went on to note that the views formed by the children were not merely because of the influence of the wife, but also because of the behaviour of the husband. Her Honour concluded at paragraph 157 that without a determined effort by both the husband and wife to change their attitudes and behaviour towards each other it was likely that all of the children would continue to be subject to psychological risk.
At paragraphs 159 to 163 of her reasons, her Honour carefully dealt with the husband’s proposal that time and communication between the children and the wife be restricted for a period of time in order to allow him to re-establish his relationship with the twins. Her Honour had regard to the expert’s evidence but concluded she was satisfied the wife would take steps to assist the twins to renew their relationship with the husband, provided he behaved in an appropriate manner towards them.
In dealing with the additional considerations, her Honour carefully recorded the children’s views, noting their age and level of maturity at the time of the expert’s first report, and that the children’s views were expressed in the context of the ongoing acrimonious dispute between their parents, but said:
… their views are not entirely to be attributed to the negative influence of the mother and may also be based upon [R] and [E’s] own assessment of the husband’s behaviour. (paragraph 165)
Not surprisingly, her Honour concluded that, given the children’s age (15 years), their views were significant.
In dealing with the relationship between each of the parties and the children, her Honour again referred to the expert evidence, at paragraph 169 of her reasons, where she explained the expert had emphasised the need to restore “if possible, a healthy relationship between [R], [E] and the husband”.
In considering matters under s 60CC(3)(d) her Honour referred to the fact that R and E had been living with the wife for a significant period of time and that the husband’s proposal that the children live with him would be a significant change, as would the cessation of any time with the mother for a period of 12 months.
In considering relevant matters under s 60CC(3)(l) her Honour recorded, at paragraphs 182 and 183 of her reasons, the submissions of the ICL which included a submission that from the commencement of the 2009 school year the twins reside with whichever parent they may choose, and spend time, at their election, with the other parent.
Her Honour summarised her conclusions in paragraphs 184 to 192 of her reasons. In those paragraphs her Honour explained that the wife had accepted some responsibility for the difficulties in the relationship between the husband and the twins. She also said the husband did not accept any responsibility and “continued to blame the wife for all difficulties” (paragraph 185). Her Honour noted:
·during the adjournment the wife had been able to convince the twins to attend for two weekends with the husband;
·the children had expressed strong views. Her Honour accepted those views were based in part on the husband’s behaviour and not entirely on the negative influence of the wife; and
·the twins had a strong primary attachment to and affection for the wife and had been in her care for a considerable period of time.
Discussion – the expert evidence
The husband’s counsel submitted, at paragraph 8 of his written submissions, that “the orders made with respect to the children are so manifestly against the weight of the evidence that they cannot be allowed to stand”, particularly in light of the expert evidence. He asserted her Honour’s findings at paragraph 139 of her reasons, where the trial Judge said:
Weighing up the evidence carefully I am not satisfied that the negative attitudes of [R] and [E] towards the husband are due substantially or primarily to the influence of the wife. On the balance of probabilities it is more likely that the attitude of [R] and [E] towards the husband is also due to the husband’s behaviour towards them and his behaviour towards other members of the family.
were flawed. But again the essential challenge to the trial Judge’s parenting orders was that she had not accepted the expert’s recommendation.
It is not in doubt that an expert’s opinion, which is based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight. Departure from an expert report in such circumstance requires careful consideration by a trial Judge. However, the ultimate decision still must be that of the trial Judge. The weight to be given to a family report was explained by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819 as follows:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court’s investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
…
Those comments are apposite to the expert’s reports in this matter, and her Honour’s ultimate conclusion.
It is important to set the expert opinion in the appropriate context in this case.
The expert report had been prepared initially in 2006 and updated in August 2007. Subsequent to the second report the twins, aged 15 years at trial, had ceased all contact with the husband for nine months and handover had not been able to be implemented notwithstanding the assistance of two family consultants.
The expert conceded in cross-examination that she was not aware of the high level of animosity between the parties as a result of their unresolved property proceedings, nor did the expert have the benefit of seeing the parties in the witness box being cross-examined over an extensive period of time.
The trial Judge very carefully assessed all of the relevant evidence and made factual findings which were clearly open to her in her assessment of that evidence. The expert’s reports and evidence were extensively reviewed in her Honour’s reasons. Her Honour applied the factual findings made in her consideration of the primary and additional considerations. Significantly, she took into account that during the period the trial was adjourned the wife facilitated the twins spending time with the husband after a substantial period when they had not had any contact with him. In other words, consistent with the expert’s real concern, steps had been put in place to restore the husband’s relationship with the twins.
We consider that her Honour’s careful and detailed factual findings which she applied to the relevant factors under ss 60CC(2) and (3), including her rejection of the recommendations in the expert report, disclose no appealable error, but rather, her Honour’s reasons demonstrate a thorough consideration of the difficult family dynamics in the context of this complex parenting dispute. We are able to readily discern the path of her Honour’s reasoning. We see no merit in the ground agitated in respect of the parenting orders.
Asserted error in assessing contribution
Counsel’s submissions
In both his written and oral submissions, counsel for the husband submitted that the trial Judge was in error in assessing the parties’ contribution entitlements at 52.5 per cent to the wife and 47.5 per cent to the husband. It was submitted on behalf of the husband that, at the conclusion of the parties’ long marriage of over 22 years, when they had minimal assets at the commencement of the marriage and through their joint efforts successfully accumulated substantial assets and raised, and continue to raise, six children, their contributions ought to have been assessed as equal.
In his written submissions, the husband’s counsel challenged the trial Judge’s conclusions at paragraph 318 of her reasons and said that assessment could not be justified by her Honour’s reasoning in paragraph 317. In those paragraphs her Honour said:
317.These factors include both parties’ financial contributions from their earnings, the establishment and maintenance of the business by the husband (which business was until separation a profitable enterprise) and contribution of the husband in the acquisition maintenance and preservation of the matrimonial assets; the significant contribution by the wife to the care, welfare and development of the children, before and after separation, and her significant contribution as homemaker prior to the separation.
318.Weighing carefully the various factors I assess the contribution of the parties to be 52.5 per cent to the wife and 47.5 per cent to the husband.
In his written submissions, the husband’s counsel noted that the period post-separation to the date of judgment, a period of five years, represented a significant period of time. Counsel also noted that the husband “accepts generally … the primary Judges [sic] findings at para [307] – [316] in relation to the post-separation period” (husband’s submissions, paragraph 19).
In his written submissions counsel for the wife correctly said, at paragraph 35, “[t]here is no presumption that following a long marriage, contributions should be assessed as equal between parties”.
Counsel for the wife directed us to the trial Judge’s assessment of the parties’ post-separation contributions. He explained, at paragraph 33 of his written submissions, that while the husband paid the mortgage payments and outgoings for two investment properties (the G property and the K property) the evidence established that the payments were made from rentals derived from those properties, which rent was retained by the husband, with a modest shortfall made up by the husband from the income of the business. He noted that the wife had been excluded from the business post-separation and received none of the business income.
The wife’s counsel further submitted that the trial Judge had taken into account that post-separation S and J had primarily resided with the husband, whilst Y and L had primarily resided with the wife. He further explained that R and E had resided for a significant portion of the post-separation period with the wife solely, and that the wife received insignificant child support during the entire post-separation period.
Given the husband’s concession that the trial Judge had not omitted any relevant factor in her discussion of the parties’ respective contributions and that he generally agreed with the trial Judge’s reasons (paragraphs 307-316), it is unnecessary that we set out those reasons.
Relevant law
The concept of a “presumption” of equality of contribution was discussed, and rejected by the High Court in Mallet v Mallet (1984) 156 CLR 605. In the well known passage at 625 Mason J said:
This exposition of the proposition that equality is a convenient starting point proceeds upon a misconception of s. 79. The section contemplates that an order will not be made unless the court is satisfied that it is just and equitable to make the order (s. 79(2)), after taking into account the factors mentioned in (a) to (e) of s. 79(4). The requirement that the court ‘shall take into account’ these factors imposes a duty on the court to evaluate them. Thus, the court must in a given case evaluate the respective contributions of husband and wife under pars. (a) and (b) of sub-s. (4), difficult though that may be in some cases …
No doubt a conclusion in favour of equality of contribution will be more readily reached where the property in issue is the matrimonial home or superannuation benefits or pension entitlements and the marriage is of long standing. It will be otherwise when the property in issue consists of assets acquired by one party whose ability and energy has enabled the establishment or conduct of an extensive business enterprise to which the other party has made no financial contribution and where that other party’s role does not extend beyond that of homemaker and parent.
The High Court in Mallet, and also in Norbis v Norbis (1986) 161 CLR 513, emphasised the broad nature of discretion exercised by a judge in adjusting property under s 79. In the latter case, Mason and Deane JJ said at 518-519:
The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal. [footnote omitted]
Discussion – asserted errors in assessing contribution
Summarising the matters considered by the trial Judge, we note:
·the husband made the major financial contributions to the family business;
·the wife worked throughout the marriage and contributed her earnings to the family, except for the brief period when the children were young;
·the wife also worked in the family business approximately two days per week;
·the wife was the primary caregiver for the children throughout the marriage and the husband had made some, but not a substantial contribution, to their care;
·post-separation the husband had exclusive occupation of the matrimonial home, while the wife resided primarily on the W property;
·both parties had maintained the properties in which they resided;
·the husband had been making payments in respect of the mortgage on the matrimonial home;
·post-separation both parties had played a significant role in providing for the children. However, since January 2005 R and E had been in the care of the wife who had provided for them financially since that time;
·the husband made some contribution towards school fees and other costs for the children, but the wife had not received any significant payments of child support from the husband for Y, R and E for a substantial period of time; and
·for a considerable period of time the husband had also had the care and financial responsibility of S and J, and was at one time sharing the care of R and E.
As we have emphasised above, the exercise which the trial Judge conducted was a discretionary one. Her Honour carefully evaluated the parties’ contributions over their long-term marriage. She had regard to the significant post-separation period, and ultimately assessed a moderate adjustment should be made in the wife’s favour, to reflect her significant contribution to the care, welfare and development of the children before and after separation, as well as her significant contribution as homemaker prior to separation. Those findings were open to her Honour on the evidence before her. While other judges may have assessed the parties’ contributions as equal, we discern no appealable error by the trial Judge in the exercise of her discretion. Thus, we are satisfied there is no merit in this ground of appeal.
Asserted error in s 75(2) adjustment
Counsel’s submissions
In his written submissions, counsel for the husband asserted the trial Judge was in error in making an adjustment of 2.5 per cent in favour of the wife for relevant factors under s 75(2). Although his written submissions concentrated on the assertion the trial Judge had failed to consider the differential in the parties’ income earning capacity and the share farming income which the wife would retain with her ownership of the W property, he also relied on the trial Judge’s failure to take into account, on the principles enunciated in Jones v Dunkel (1959) 101 CLR 298, the wife’s failure to call Dr Delaine to give evidence at the trial.
However, in his oral argument the husband’s counsel submitted that, disregarding the Jones v Dunkel submission in respect of Dr Delaine, her Honour’s 2.5 per cent adjustment in the wife’s favour could not stand as such was an unreasonable exercise of her Honour’s discretion having regard only to the difference in the parties’ earning capacities.
In his oral submissions, counsel for the husband submitted that any adjustment under s 75(2) should have been an adjustment in the husband’s favour of 5 per cent if her Honour had given proper weight to the medical evidence concerning the husband’s health, which her Honour had accepted, and the parties’ respective incomes.
It was further asserted that the trial Judge had not considered, or given weight to, the husband’s responsibility to care for the child J.
It is convenient that we commence our discussion by considering the last point raised in counsel’s submissions; namely, her Honour’s asserted failure to take into account the husband’s care of J. Before doing so, however, we will refer briefly to her Honour’s reasons for the adjustment made under s 75(2) in the wife’s favour.
The trial Judge’s discussion – s 75(2) factors
The trial Judge noted as a result of her parenting orders the wife would have the full-time care of L, R and E. At paragraph 321 of her reasons, the trial Judge explained that S was aged 19 and his future plans were not certain. Her Honour also explained “[t]he husband has the ongoing responsibility for the care of [J] (whom he plans to adopt). [J] is now 11 years of age”.
Her Honour then turned to consider the parties’ respective ages and their state of health. She accepted the evidence of the husband’s general practitioner, which was to the effect that the husband should avoid stress and reduce his work to part-time work.
Her Honour then explained, at paragraph 323, “[t]he husband has maintained in his case outline that notwithstanding his known medical condition, he had a capacity to earn a reasonable income ‘for the time being’”. Her Honour concluded “[b]earing in mind the husband’s age, health and business experience, he is capable of earning a reasonable income, but his capacity to work long hours or overtime is reduced by his need to take care of his health”.
Her Honour then referred to the wife’s earning capacity noting she was earning $768.00 per week and that she had qualifications as a registered nurse and midwife which “with some retraining, would enable her to work outside the [K area] if necessary” (paragraph 324). Her Honour concluded that there would not be a substantial difference in the future earning capacity of the parties “save and except, the wife has the benefit of younger age and better health” (paragraph 325).
Her Honour went on to note that if the wife retained the W property she would have the benefit of the share farming income which was approximately $30,000.00, which income was, up until the date of the hearing, being split equally between the parties (as disclosed in the husband’s personal income tax return).
Thereafter the trial Judge noted that the twins would remain primarily in the care of the wife and that the husband had not regularly paid child support as assessed.
At paragraph 328 the trial Judge noted “[t]he husband will have ongoing financial and other responsibilities for the care of [J], whom he plans to adopt”.
Her Honour then dealt with the parties’ respective liability for legal fees and capital gains tax. No issue is raised in respect of her Honour’s treatment of those liabilities.
Her Honour then turned to a detailed discussion of the evidence concerning the wife’s relationship with Dr Delaine and concluded, on the balance of probabilities, she was not satisfied that Dr Delaine would provide the wife with “any significant financial assistance in the future” (paragraph 338).
Her Honour’s conclusions in relation to the adjustment to be made under s 75(2) are set out in paragraph 342 of her reasons as follows:
The most significant factor is the ongoing responsibility (both financial and otherwise) of the wife for the care of [R] and [E]. Taking into account also the age and health of the parties, their relative earning capacity and significant legal fees outstanding, a further adjustment of 2.5 per cent in favour of the wife is appropriate.
Discussion – s 75(2) adjustment
We are satisfied there is no merit in the assertion that her Honour failed to take into account that the husband would have ongoing responsibility for the child J. It is clear from paragraphs 321 and 328 of her Honour’s reasons that she was clearly cognisant of the husband’s responsibilities for the child J.
As recorded by the trial Judge, the husband, in his outline of case document (page 7) under the heading “Section 75(2) Factors”, said “[t]he husband is self-employed and has the capacity to earn a reasonable income for the time being.”
The husband was cross-examined about the income earned from the business and the husband conceded:
Is it the case that whilst you expect some bad years you expect that overall, on average, subject to your health, your business will return you a reasonable income?---If I’m working it will return me – and my health is all right and it rains so the farmers are buying things – it will return a reasonable income… (Transcript, 25 September 2008, p 676)
Earlier the husband had been cross-examined about the losses incurred by the business during the previous two years which contrasted with its previous profitability. The husband said:
…I can’t predict how much business we’re going to get. I can say that I’m hoping, after these proceedings are finished, I won’t have any other distractions and I will be able to get myself well and I will be able to do more myself… (Transcript, 25 September 2008, p 675)
Both parties filed financial statements in May 2008. The husband’s financial statement disclosed his income at $1,570.00 per week, which income included income from the farm and two investment properties. His income from the business was disclosed at $1,053.00 per week. In addition, he disclosed a benefit received from the business by way of provision of a motor vehicle and part telephone expenses, having a value of $100.00 a week, and an income from the family trust of $102.00 per week. The wife’s income as disclosed in her financial statement was $606.00 per week comprised of a salary of $317.00 per week and rental income of $288.00 per week. The wife disclosed an entitlement to child support of $440.00 per week in 2004 and $6.00 per week in 2006 but that no child support was actually received by her at that time.
We discern no appealable error by the trial Judge in the adjustment made in the wife’s favour under s 75(2). Her Honour took into account all relevant matters, which she weighed, and in the exercise of her discretion, determined that an adjustment should be made in the wife’s favour for her ongoing responsibility, both financial and otherwise for the twins. It is not suggested, other than reference to the child J, which we have rejected, that her Honour failed to take into account any relevant matter. Rather, the challenge to her Honour’s adjustment under s 75(2) was to the weight she afforded to the identified factors. Her Honour’s adjustment of 2.5 per cent was open to her in the exercise of her discretion. We find no merit in this ground.
Costs
At the conclusion of the appeal we sought submissions from the parties on costs. The wife sought, in the event that the appeal was dismissed, the husband should pay her costs of and incidental to the appeal. The Independent Children’s Lawyer sought, in the event that the appeal against the parenting orders was dismissed, that the husband should pay the Independent Children’s Lawyer’s costs in the sum of $3,170.00.
It was not disputed that both parties had the capacity to pay any costs order made.
The husband has been wholly unsuccessful in his appeal against both the parenting and property orders. In these circumstances, we propose to make an order that he pay the wife’s costs of and incidental to the appeal, as well as the Independent Children’s Lawyer’s costs.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 6 October 2009
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