B & B

[2003] FamCA 274

[2003] FamCA 274

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA   Appeal No NA47 & NA54 of 2002
AT BRISBANE  File No BR5704 of 2000
BETWEEN:

B
Appellant Wife
- and -
B
Respondent Husband
CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  KAY, COLEMAN & O’RYAN JJ

DATE OF HEARING:                 24 & 25 February 2003
DATE OF JUDGMENT:             8 April 2003

APPEARANCES:  Ms Carew of Counsel, instructed by Philippa Power, Solicitors, appeared on behalf of the Appellant Wife

Mr North of Senior Counsel with Mr Hamwood of Counsel, instructed by K L King & Associates, appeared on behalf of the Respondent Husband.

Ms Spence of Counsel, instructed by Dooley Solicitors, appeared on behalf of the child representative.

CATCHWORDS: CHILDREN – residence – evidence of family violence –whether factor adequately considered – no substance in assertion that trial Judge showed prejudiced towards mother’s religious practices

PROPERTY – Kennon factor – trial Judge treated Kennon factor as an award for damages – whether Kennon correctly applied – Section 77A order inappropriate when the adjustment was made entirely under s 79(4)(e)

SPOUSAL MAINTENANCE – process to be followed – need to ascertain whether wife could support herself and then to determine capacity of husband to contribute to any shortfall

Appeal allowed. 
Matter remitted.
Cost certificates granted.

1. This was the wife’s appeal against orders made by Barry J on 16 September 2002 that provided

·     The two children of the marriage should reside with their father;

·     The property of the parties (c $1,100,000) should be divided 60-40 in the husband’s favour;

· $20,000 of the wife’s entitlement should be categorised as maintenance under s 77A of the Family Law Act 1975;

·     There should be no order for spousal maintenance.

1. On 25 February 2003 we made orders allowing the wife’s appeal and setting aside the orders made by Barry J.  We remitted the matter for rehearing in the Brisbane Registry and directed that it be heard with expedition.  We further ordered that the trial Judge’s parenting orders remain in place as interim orders pending the re-trial or any earlier application and finally granted the parties cost certificates in relation to the re-trial.

1. When we pronounced our orders we indicated that we would subsequently deliver our reasons for judgment.

1. We think it is important to note that this judgment should not in any way be seen as attacking the propriety of the outcome reached by the trial Judge either in respect of parenting orders or in respect of the division of the property. The appeals against the parenting orders, the division of property, and the failure to make a maintenance order, have all been allowed because of errors of process. Save perhaps for the setting aside of the s 77A order and the dismissal of the maintenance claim, none of the appeals against the various orders have been allowed because the Court was of the view that the results were plainly wrong or were outside the parameters of a reasonable exercise of discretion.

Background

1. In June 1992 the husband, then aged 33, married the wife, then aged 29.  They cohabited until April 2000 when the wife left the matrimonial home taking with her the two children of the marriage R born in 1994 and C born in 1998.

1. When the matter came on for trial the husband was having contact with the children each Wednesday afternoon and each alternate weekend from Friday afternoon until Monday morning.  School holiday time was divided between both parties.

1. There was an agreed pool of assets valued at approximately $1,100,000.  Whilst there were some factual disputes concerning the value of assets brought into the relationship, it was common ground that save for any adjustment to be made arising out of what was described as the “Kennon factor”, contributions were to be measured under s 79(4)(a), (b), and (c) as to 70 per cent in favour of the husband and 30 per cent in favour of the wife. 

1. The wife sought a further adjustment by reason of the husband’s behaviour towards her during the course of the marriage.  She also sought an adjustment of 20 per cent under s 79(4)(e) on the basis that there would be a shared residence arrangement for the children.

1. Finally she sought orders for periodic maintenance for herself.

The judgment

1. After outlining the competing claims of the parties, and the background facts, the trial Judge identified the various witnesses relied upon by each of the parties.  He then entered into a detailed discussion of the evidence of Ms D, a consultant psychologist, who had prepared two family reports for the purposes of the proceedings, one on 31 May 2001 and the other on 9 March 2002.  They are very extensive reports occupying some 50 pages of the Appeal Book.  His Honour said:

“they are entirely objective and provide a good overview of the difficulties confronting me as decision-maker in this matter.”

1. His Honour’s analysis of Ms D’s evidence occupies 5 pages of the Appeal Book.  His Honour selected passages from the reports that he thought were significant.  They included:

“23.     In relation to her assessment of the wife she notes:

Mrs [B's] MMPI-2 clinical profile is within normal limits and no clinical diagnosis is provided.  However considering her defensive attitude in completing the test, her clinical high point scale suggests the possibility that she is prone to supersensitivity and may have some problems with trust.  There is also evidence of over-control hostility and extreme traditionally feminist attitudes.

(refer first report paragraph 6.8.4).

24.      In paragraph 6.9.2 Ms D noted:

I found her manner of communication disjointed and tangential, incomplete ideas being presented in a truncated and apparently illogical manner at times.

25.      In relation to the father’s profile she noted (paragraph 7.8.4):

His MMPI-2 clinical profile is within normal limits.  No clinical diagnosis is provided for individuals in this elevation range. However, as with Mrs [B’s] profile, there is evidence of defensiveness, problems with trust and supersensitivity.  Also, Mr [B’s] profile demonstrates over controlled hostility – that is a high level of anger, which is suppressed.

26.Under the heading ‘Presentation and Opinion’ (paragraph 7.9) Ms D observes:

7.9.1:

Mr [B] presented as pleasant and cooperative, although somewhat nervous at first.  He had an authoritative and convincing way of putting his views but demonstrated no hostility during the assessment process.

7.9.2:

Once he relaxed and felt free to tell his story his account of the marriage was very similar to Mrs [B’s].  The astounding aspect of this was that he clearly felt he could justify the violence and efforts to control displayed by him towards Mrs [B] during the marriage.

7.9.3:

He spoke in positive and appropriate terms about his daughters but his attitude to Mrs [B] raises concerns about his attitude to women in general and how this might impact on the girls.”

1. His Honour then noted he agreed with Ms D’s description of the wife as passive/aggressive and concluded:

“Her conclusions in her second report were expressed in the following terms (paragraph 10.2.1):

The concerns expressed in the first family report regarding Mr [B’s] attitude to Ms [B] during the marriage, his obvious tendencies to control and his justification of his violence during the marriage, remain.  Similarly, I do not resile from the comments about Mr and Mrs [B] having similar personality profiles and having been embroiled in a power struggle throughout their marriage and since.

Paragraph 10.2.2:

However, when interviewed and observed prior to preparation of this report, Mr [B] presented more appropriately.  Ms [B], on the other hand, still had a very ‘odd’ presentation and communication style and seemed to be exhibiting signs of hostility in the form of passive aggression – for example, in her refusal to do anything about [R’s] health issues, her resistance to efforts by Mr [B] to have the girls involved in appropriate extra-curricular activities, her apparent resistance to [C] going to pre-school in 2003, and her rigid enforcement of the Orders, with apparent lack of consideration for the girls’ needs at times.

Paragraph 10.2.3:

I have no doubt that the girls actually would prefer to be living with their father.  There are many possible reasons for this but I would think the most likely explanation is that they actually do have a better time when with their father than they do when they are with their mother.  He has more energy for them, stimulates and engages them more, and probably disciplines them less.  In addition, they have two doting grandparents to give them attention at their father’s home.  On the other hand, I imagine the girls find their mother’s odd, defensive communication style difficult to handle at times.

Paragraph 10.2.6:

There are some rather bizarre twists to this dispute – for instance, Ms [B’s] apparent obsession with having the girls change out of clothes belonging to her into clothes belonging to their father for contact with him, and her vehement objection to the girls being exposed to Anglicanism as opposed to the dogma and ritual of the … Orthodox Church, of which the maternal grandfather is a priest. Although I have never met Ms [B’s] parents I am gaining the impression that this dispute may be being driven in part by them through their (particularly her father’s) extreme influence over their daughter.

Paragraph 10.2.7:

Without the suggestion of physical abuse of the girls, and without the evidence of Mrs [T], I would be inclined to recommend an equal shared parenting arrangement.  I acknowledge that there is a high level of conflict between these two parents but because I believe it originates with two very determined people who have struggled to dominate throughout their relationship, I do not think that an arrangement short of absolute equality is likely to resolve the matter to anything approaching a satisfactory degree from the girls’ perspective.  Changeovers should occur at a neutral venue – the school except on public holidays.”

1. His Honour then said:

“33.     I accept the observations of [Ms D] in her two reports.  I do not necessarily accept her conclusion but I accept the thrust of her recommendations.”

1. When discussing one of only two passages selected from cross-examination of Ms D and incorporated in the judgment, his Honour said:

“37.In the course of cross-examination by counsel for the mother Ms [D] was asked:

Certainly the experience of the mother, if it’s accepted, is that the abuse levelled against her has affected her self-esteem etc.  If the girls grow up in a household where the father is the dominant – or the only parent in the household you would expect it to affect their self-esteem if he adopted similar types of behaviour with them, wouldn’t you?

Answer:

It would be quite different with them because if he sees them as extensions of himself, if he sees them as little prizes, perhaps, then there may be an investment in having them love him and stay with him and prefer him to the mother and therefore that controlling tendency may not come out in that same way.

38.This answer was not greatly developed by either counsel in the course of submissions.  I am inclined to accept Ms [D’s] view that the father would not attempt to dominate his daughters on the basis that he sees them as an extension of himself.  Certainly the evidence is that since separation almost two and a half years ago the children in the father’s care have been doted on both by his parents and himself.”

1. His Honour then defined what he saw as the wife’s case, saying that a convenient starting point was the evidence of three neighbours.  Each of these neighbours gave evidence of hearing a raised male voice either in the morning or the evening, described as “loud”, “angry” and “aggressive”.  His Honour then set out a number of examples of what it was that the neighbours heard the husband yelling about. 

1. His Honour then immediately said:

“46.I note in the father’s evidence a number of his criticisms of the wife’s behaviour could be considered trivial, even banal.  An obvious example found in [Ms D’s] report is his complaint that the wife made three lots of sweets for her brother whilst he got nothing.  I would add that it would be typical of the wife’s behaviour that she would engage in such conduct.  The husband’s problem was that he allowed himself to be affected by it.

47.I accept the husband’s account that on many occasions the wife engaged in passive/aggressive conduct.   Examples would include insisting on saying prayers in the morning when he was readying himself for work and [R] for school.   The incident with the local give away newspaper was another example.  I am not for one moment condoning the husband’s conduct in response to such behaviour by the wife but I totally fail to understand why the wife would dispose of the newspaper in the rubbish bin with scraps of food covering it after she was specifically requested that the paper be kept as he had not read it at that point in time. 

48.For a man who on one version of the evidence appears to be aggressive, demanding and controlling, there are aspects of the dynamics of the relationship I find puzzling.  The wife’s father changed from the Anglican Church to establish a branch of the … Orthodox Church.  The husband was persuaded to follow his wife although he expressed a reluctance to leave his Anglican faith.  At paragraph 240 of his affidavit he says:

Despite this the wife made it perfectly clear that I had no choice in the matter of my religion.  At the time I felt somewhat apprehensive about adopting a religion I knew nothing about.”

1. Another example of the husband’s verbal abuse of the wife is cited in paragraph 49:

“I do not believe the husband is dissembling when he gives this evidence.  There are many instances where he appears to have acquiesced to the wife’s demands.  Whether he did so in order to keep the peace in the household is problematical in view of the evidence of the three neighbours of the constant verbal abuse given to the wife.  What is equally difficult to understand is the incident described by Ms [Q] of the wife saying to the husband at the school fete ‘you have no right to be here?’  Ms [Q] observed she has never heard someone speak so viciously to another person.”

1. Again, under the heading of “Applicant Mother’s Case”, peculiarly his Honour follows para 49 with the following:

“50A further example is to be found in the evidence that the husband says that the wife readily had the children interact with her parents but placed limits and conditions on contact with his parents.  I am inclined to accept the husband’s account of this behaviour.  The husband’s evidence is corroborated by his father [Mr B Snr].  At paragraph 17 of his affidavit he observes:

My wife … and I both had difficulties with the wife even during that time that she was married to [Mr B].  I recall on one occasion when I visited her home, she would not permit me to come inside.  This was usual.  [My wife] and I in fact did not at any time consider visiting without an invitation.  I am also aware that the wife was strongly opposed to [Mr B] visiting us at home or allowing him to bring the children to visit us.  She never once allowed the children to stay overnight at our home.”

1. His general conclusion on the issue of the wife’s credibility was contained in para 51:

“Generally speaking I was not impressed with the credibility of the wife.  In some instances she was being deliberately dishonest, on other occasions she simply lacked insight into her behaviour.”

1. He said of the mother,:

“54.The mother's presentation was in some respects similar to someone with autism.  She seemed disconnected  -  a mere spectator rather than a participant in events.”

1. After dealing with the balance of the mother’s witnesses, the trial Judge turned to the witnesses in the father’s case and said:

“60.Generally speaking I found the father to be a truthful witness.  I do not accept his attempts to justify his conduct, but for the most part he at least accepts conduct has taken place.  As is common amongst witnesses, he attempted to minimise to some extent his role in certain incidents, but by and large he was more accepting of criticism than the wife.  I will consider the evidence of the father in more detail when considering the factors I am required to take into account under section 68F.”

1. His Honour said he was very much impressed by the witness Ms Q, who is the mother of one of R’s school friends.  That friend had reported several of R’s anxieties to Ms Q.  His Honour quoted passages of Ms Q’s evidence, including in para 64:

“30.After lunch, I was playing downstairs with just [R] and [A] present.  I asked [R] again about wanting my help.  [R] stood up.  She was wearing a fairy dress and had a wand in her hand.  She became very angry.  She came over and sat down next to me.  I said what do you want me to help you with?  Is it about trying to get your Mum and Dad back together?  She immediately made it very clear to me that it was not that.  She said 'I want you to help me so that my mother stops hitting me or [C].  I don't want to get hit any more'.  I said 'What do you do to get hit?'  She offered the example 'When we ask for something to eat, she hits us'.  Of most concern, was that she stated that she was very very worried about what her mother would do to [C].  She said 'She hits [C] too'.  She then said 'Mum hits us all the time for nothing'.  I asked her if anyone else hits her.  She referred to her maternal grandfather, using her name for him, which I no longer recall.  She made it very clear who she meant.  She said that he hit her as well.  She said 'When I'm hungry and I ask for something to eat, he hits me'.  It was very clear when she was saying all of this that she was very scared of her mother and her maternal grandfather.”

1. His Honour then turned to the evidence of the principal of R’s school, which contained complaints by the child that she wanted to live with her father but was smacked when she told her mother that. 

1. His Honour then made findings under a heading “Section 68F Factors”.  That section provides as follows:

“68F    (1) Subject to subsection (3), in determining what is in the child's best interests, the court must consider the matters set out in subsection (2).

(2)The court must consider:

(a)  any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

(b)  the nature of the relationship of the child with each of the child's parents and with other persons;

(c)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)    either of his or her parents; or

(ii)any other child, or other person, with whom he or she has been living;

(d)  the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(e)  the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(f)   the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;

(g)  the need to protect the child from physical or psychological harm caused, or that may be caused, by:

(i)    being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;

(h)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(i)    any family violence involving the child or a member of the child's family;

(j)    any family violence order that applies to the child or a member of the child's family;

(k)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(l)    any other fact or circumstance that the court thinks is relevant.

…”

1. His Honour dealt with the various s 68F(2) factors under a series of sub-headings corresponding to the matters that the section obliged his Honour to take into account. 

1. Under the heading “(e) The capacity of each parent to provide for the children’s needs including emotional and intellectual needs”, his Honour said:

“81.A matter which was not raised in the course of submissions, but which remains a concern for me, is if the father was to re-partner or to move out of his parents' home.  If he was to engage in verbal abuse in a new relationship to anything like the extent he did during the period of the relationship with the applicant, it would be a most unfortunate environment for the girls to be placed in. 

…

83.I am conscious of the evidence of various witnesses that the father from time to time has shouted at the girls, but I expect this would not occur whilst he was in the household with his parents.  I am unable to conjecture in the event that he should leave this environment. 

84.I find the father would be better able to provide for the children's emotional needs.  I find he is more attuned to the children’s needs and more focussed on their requirements.

85.In the Department of Families' report annexed to the affidavit of the Children's Representative filed on 22 February 2002 the following entries appear :

Family Service Officer explained:

1.the inappropriateness of domestic violence and the children witnessing this

2.the inappropriateness of the children being manipulated to aid with family law court proceedings

3.the inappropriateness of the children being subjected to ongoing negative comments discussed about the other parent

4.protective behaviours with [R].

…….

Case Decisions

The Department of Families will not remain involved with the family as both parents acknowledge that it is unacceptable to expose the children to domestic violence, manipulation and speaking about each other in a negative light to the children.  The parents both agreed to contact the Department if they have any further concerns.

…

88.I am concerned at the mother's eccentric behaviour.  It would appear that she adheres strictly to the tenets of the … Orthodox faith, which involves fasting on a regular basis.  She denied involving the children in any fasting exercise, but certainly food or the lack of it appeared to have been a concern for the girls in some of the statements they have made.  It is likely though that it is more a concern for the father who is very protective of them, very mistrusting of the mother, and anxious to ensure that his daughters are not deprived of anything.”

1. Under the heading “(g) The need to protect the children from physical or psychological harm”, his Honour dealt entirely with the assertions that related to the children being at risk in their mother’s care, although he concluded,:

“94.Psychological harm is likely to be caused to the children if the conflict continues between the parents as at present.  Both parents must accept a degree of responsibility for that situation.”

1. Under the heading “(h) The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents”, his Honour commenced at para 95:

“One area which is of concern is the mother’s pre-occupation with religious matters…”

At para 96:

“Of equal concern in relation to the responsibilities of parenting is the mother's intransigent attitude to contact with the father…”

1. As to s 68F(2)(i) and (j), his Honour said “No comment”. 

1. His Honour then expressed his conclusion in para 100:

“I have reached the conclusion the children should be predominantly in the father's care, and I have reached this conclusion for the following reasons:

·     The children should be in a position where they can have a fulfilling relationship with both parents.  In the father’s care it is much more likely this would be promoted.

·     The environment the father proposes is a much more relaxed, more open one than the mother offers.  They would be able to have school friends over and be involved in a range of extra-curricular activities.

·     Such a decision reflects the children’s wishes.

·     I have no concerns with the father’s discipline of the children in his present environment.  I do have reservations about the mother’s disciplinary methods.

·     The father has the support of two doting grandparents.  I expect the children are closer to the paternal grandparents than they are to the maternal grandparents.

·     I accept [Ms D’s] observation (second report 10.2.3) that it is likely the children find their mother’s odd defensive communication style difficult to handle. 

·     I have taken account of the fact the mother is available on a full time basis while the father is working but I accept the father’s evidence he is able to be flexible with his work hours.  As of next year both children will be at school.

·     The environment offered by the father would be less rigid and more flexible for the arrangements between the two households.

·     I accept that the mother has been the primary carer for the children but this is balanced by the fact that the father has been closely involved in their lives at all times.”

The appeal on the parenting orders

1. At the hearing Ms Carew, Counsel for the appellant wife, sought to rely upon a further amended Notice of Appeal filed 7 February 2003.  The grounds relating to the parenting issues were as follows:

“1.That the trial Judge erred in attributing the responsibility for the domestic violence that occurred during the marriage to the Wife.

2.That the trial Judge failed to give any or any sufficient weight to –

(a)the extent to which the Mother's Presentation in the witness box and her behaviour at various times was likely, on the balance of probabilities, to be a consequence of such domestic violence;

(b)the impact that the Father as a role model would have upon his two daughters

as the primary residence parent.

3.The trial Judge erred in basing his conclusion:

(a)on the environment offered by the Father in his parents' home and not upon the environment the Father could offer if he moved out of his parents' home or re-partnered-

(b)on his assessment of no concern with the Father's discipline in the environment of his parents' home rather than his real concerns if the Father were to re-partner, or move out of his parents' home,

(c)on a prejudiced view of the Mother's religious beliefs

4.That the trial judge failed to have proper regard to the fact that the Mother had been the children's primary carer for their entire lives and the effect her removal from that role would have upon the children.

5.That the trial Judge erred in finding that the children would be much more likely to have a fulfilling relationship with both parents if primarily in the care of the Father and in so finding failed to give any weight to the fact that –

(a)in the two years since separation the Father had enjoyed all the contact as ordered (save 4 days) including twice weekly telephone contact and had been offered contact at other times-,

(b)the Father was assessed by the expert [Ms D] as having a close relationship with the children;

(c)in the opinion of the expert [Ms D] the presentation of the child [R] was consistent with being in the process of being alienated against her Mother.”

1. In pursuing grounds 1 and 2 heavy reliance was placed upon the decision of the Full Court in Blanch v Blanch and Crawford (1999) FLC 92-837; (1998) 148 FLR 156; (1998) 24 Fam LR 325. Blanch was a case in which the wife had made a number of specific allegations of verbal abuse and physical violence on behalf of the husband.  Whilst the learned trial Judge made some findings on the violence issue, those findings were not extensive and did not deal with all of the issues raised by the wife.

1. In his judgment in the Full Court Lindenmayer J (with whom Kay and Mullane JJ agreed in the course of delivering separate judgments) said (emphasis added):

“It was the wife’s case that over a number of years prior to separation the husband had subjected her to a sustained course of severe domestic violence (using that term in the broader, commonly accepted sense to include not just physical assaults on her person, of which she claimed there were many, but also acts of violence directed at inanimate objects, such as doors, walls and furniture in the home in her presence, and frequent abusive and belittling language towards her) which intimidated her and seriously undermined her self esteem and self respect.

…

…It is certainly correct to say that it is not always necessary, or even desirable, for a trial judge to make specific findings in relation to every issue presented by the parties, even ones they clearly regard as important.  However, it is my view that in cases such as this, where a case of sustained and severe domestic violence by one party is advanced by the other, the Court is obliged to give a clear indication whether it accepts or rejects that case and, in either event, to explain why it has reached that conclusion. 

The importance of domestic violence as a factor for consideration in cases relating to parenting orders is now made very clear by s 68 F(2), paragraphs (g), (i) and (j) of the Act, and has been recognised by a number of judicial statements in relatively recent times.  Examples of such statements are that of Chisholm J in the case of, JG and BG (1994) FLC ¶92-515; 18 Fam LR 255 and of Baker J (with whom Kay and Tolcon JJ agreed) in Patsalou and Patsalou (1995) FLC ¶92-580.

…

In my respectful opinion the trial Judge’s findings in this case fail to come to grips adequately with the serious issue of domestic violence which was raised for his determination and consideration by the evidence in the proceedings.  This was not a case in which both parties made similar allegations of violence and abuse against each other with little or no corroboration of the evidence of either, and the issue fell to be determined solely on credibility of the parties.  In this case the wife’s allegations were quite precise and detailed, and her evidence was the subject of a good deal of corroboration by a number of witnesses including one, Mr M, to whom the trial Judge referred as, ‘the only real impartial witness for the wife’.  The husband’s defence, in the main, was a general denial with an assertion that the wife yelled and screamed at him and occasionally threw things at him.  In cross-examination he admitted only having pulled her by the hair on occasions.  He certainly did not himself allege, in any real sense, that he was a victim of sustained domestic violence at the wife’s hands, in the same way that she alleged it against him. 

Whilst it was, of course, open to his Honour, as the judge of fact, to decide which evidence he accepted and which he rejected, and whilst he was not bound to either accept or reject the evidence of any witness in toto, the overall impression created by his reasons for judgment is of a less than adequate analysis of the conflicting evidence, and insufficient findings to make clear what he was accepting and what he was rejecting.  One is left with the impression that his Honour felt that responsibility for the violence which he found had occurred between the parties during their relationship was fairly evenly shared between them.  With respect to his Honour, I do not think that such conclusion was reasonably open to him on all of the evidence on this issue. 

…

… his Honour made the following finding, at Appeal Book pp 39-40:-

‘I am not satisfied that the evidence established that Mr Blanch is of such a nature that any violence that he exhibited towards the wife is inherent in his personality as to distinct from arising from the circumstances of the relationship between the parties and the circumstances surrounding them during the marriage, such as would carry over to future years when the children might challenge him.

The evidence certainly established that from time to time he behaved in ways towards the wife which were, to say the least, most inappropriate and hurtful to her, but in my opinion, having regard to all the circumstances, while that does not excuse him it does not provide a basis for finding that he is of the type of personality that will adversely react to the challenge by the children to his authority.  Indeed, as I earlier observed, the wife conceded to the counsellor that he could be a good father.  I am therefore not satisfied that if the children remain in his care they would not be adequately protected from physical or psychological harm which he or anyone else might cause to them.’

That passage, apart from it’s [sic] failure to address the issue of the potential damage to children from exposure to a violent role model in their home environment, in my view includes a finding which was not open to his Honour on the evidence before him, namely that such violence as the husband demonstrated towards the wife during the marriage was somehow a product of the relationship between the parties rather than of the husband’s personality. 

As a general proposition, that sort of finding indicates an attribution of responsibility for the domestic violence perpetrated by the husband, to the wife (who was, even on his Honour’s modest findings, the victim) or at least to the interaction between the parties.  As a general proposition such an attribution of responsibility for violence away from the perpetrator towards the victim is simply not acceptable, at least in the absence of any evidence of an expert nature to the effect that the sort of behaviour attributed to the victim by other evidence in the case was of such a nature as to be likely to provoke a violent response from any reasonable person, and that the actual response of the perpetrator to that provocation was not disproportionate to the provocation offered. 

In short, in the absence of very clear evidence of that kind it is not open to a Court to attribute any degree of responsibility for domestic violence to the victim, rather than to the perpetrator and, with respect, that appears to me to be what his Honour has done, perhaps unconsciously in this case.” 

1. Mullane J in his judgment discussed the effects that a role model with a history of violence can have on children.  He also said:

“…His Honour’s discussion of the violence allegations appears to have largely overlooked the wider and more serious dangers that an abusive parent presents to children than the obvious danger of physical harm.  In addition to that harm children can suffer insecurity, fear, unhappiness, anxiety and hypervigilance from witnessing abusive behaviour of a parent.  Such effects present a threat to their emotional development. 

Probably the worst danger to children is the role model that a violent parent provides which can lead to children themselves coming to suffer the serious social disability of using violence in their dealings with other people including those they love.  Such a disability can destroy the most intimate relationships and bring the person into conflict with other people, the police and the law.  Abusive behaviour by way of putting down a child can also lead to serious long term emotional problems such as poor self esteem and lack of self confidence.

…

The proposition that if the father used abusive behaviour it was not because of his personality but because of the parties’ relationship and surrounding circumstances seems to shift responsibility from the father for his behaviour and run contrary to the fact that some people do use violence in their dealings with other people, but most people don’t.  There was no adequate explanation for this conclusion and on the face of it no evidence such as expert opinion or research evidence to support it.”

1. In his judgment, Kay J said:

“… any suggestion that there was any symmetry in the behaviour of the husband and the wife was not appropriate and yet that finds its way strongly into the submissions of counsel for the respondent husband in these proceedings and it is implied into the reasons for judgment by the learned trial Judge.  In my view any such a suggestion does not do justice to the victim in the circumstances.”

1. In the course of examining the submissions being put forward on behalf of the wife and the grounds of appeal being argued, we expressed the view that Blanch v Blanch and Crawford is authority for the proposition that adequate reasons need be given to deal with the significant issues raised in the proceedings.  In the context of a case dealing with competing claims for residence of two young children, allegations relating to violent and abusive behaviour on behalf of either party need to be carefully evaluated.  The failure to evaluate them carefully is a failure to give adequate reasons for the conclusions that are reached. 

1. Our tentative views led to an application being made to amend the Notice of Appeal, which application was granted.  We allowed the applicant to add two grounds, namely

·     That the learned trial Judge erred in failing to provide adequate reasons to deal with the issues raised in paras 16, 17, 19, 22 and 23 of the summary for argument submitted on behalf of the appellant mother; and

·     That the learned trial Judge failed to have any or any proper regard to the provisions of section 68F(2)(i).

1. The particulars set out in the submissions are lengthy but important.  They are as follows (Appeal Book references omitted):

“16The mother made extensive allegations of abuse against the father

(a)That in 1993 the father became angry because he did not like way mother made the bed and tried to push her out of bedroom.  The father conceded such an incident and sought to excuse behaviour because the bed was not made by his mother in the way he had been taught by ‘his family and the cubs’.

(b)That during the period Jan - Sept 1994 the father pushed the mother around whilst she was pregnant.

(c)That in January 1998 the father hit mother in mouth in front of [R]. The injury that resulted to the mother required her having stitches… the father conceded that mother had stiches as a result of his actions

(d)That on the 28 February 1999 the father caused the mother to be humiliated by making her tell a petrol station attendant that they did not have money to pay for petrol and did not pay until mother had been required to fill out a notification to police. The father concedes that an event such as this occurred but says that he did not know that mother did not have money. He concedes that the mother was humiliated by the event.

(e)That in 1999 the father banged the car boot on mother's head and back. The father concedes an event such as this occurred but claims it to have been accidental.

(f)That on the l April 2000 the father put his arms around mother so she could not move and yelled close to her ear ‘I will not tolerate my rules being broken. I have zero tolerance’. The father concedes that an event such as this occurred and concedes that he said to mother ‘I have zero tolerance’ 

(g)That on various occasions the father would remove the mobile phone SIM card or battery to prevent mother calling for help.  The father concedes that he on occasions removed battery or SIM card during (sic) because the mother had threatened to discuss their disputes with people he did not know.

(h)That on numerous occasions the father would swear and abuse the mother and criticise her housework. The father concedes that he did often raise his voice but that he didn't often swear.

(i)That there were numerous occasions when father grabbed the mother in headlocks and yelled very close to her ear.  The father concedes that he did have to hold the mother occasionally and that he spoke firmly near her ear but denied yelling. cf admission made by the father to [Ms D]

(j)That the father would often prevent the mother from sleeping in the bedroom and that she would have to sleep on the floor in the children's bedroom. The father concedes that there were a couple of occasions when mother did not sleep in the bedroom because he asked her not to and claims that she chose to sleep on the floor.

(k)That there were occasions when father would turn off the electricity so that no lights could be on in the house when he wanted to go to bed. The father concedes that he turned off the electricity on two occasions but says it was because the mother would not turn out the bedroom light while she was reading.

(l)That the father controlled all financial matters to the exclusion of the mother. This allegation was denied by the father.

17.The trial judge does not allude to any of the above allegations and admissions in his reasons apart from the 'newspaper incident'.

…

19.Irrespective of the categorisation of the mother's behaviour the fact that the father behaved in the way he did was deserving of scrutiny and consideration as to whether he was an appropriate role model. The trial judge makes no such assessment.

…

22.The expert expressed several significant concerns about the father's attitudes and behaviour in the Family Report–

(a)Paragraph 7.9.2 - ‘ The astounding aspect of this [his account of the marriage] was that he clearly felt he could justify the violence and efforts to control displayed by him towards Mrs. [B] during the marriage’

(b)Paragraph 7.9.3 - ‘...his attitude raises concerns about his attitude to women in general and how this might impact on the girls.’

(c)Paragraph 8.2.9 - ‘ Mr. [B] denied perpetrating any domestic violence     ........  Later in our discussion, he did not deny having hit Mrs. [B] and split her lip, and said that in hindsight he could not believe that, 'she pushed (him) that far  .. .... she would make three different sweets for her brother when he visited whereas he got nothing. He stated that this was 'unbelievable’'

(d)Paragraph 8.2.11 - ‘ He went on to agree that he had yelled in Mrs. [B's] ear at times 'but not very often  ......... she insisted on arguing ... and continued to 'answer back’'.

(e)Paragraph 8.2.12 - ‘He said he had occasionally sworn at Mrs. [B]..’

(f)Paragraph 8.2.15 - ‘...he said she continually put meals in front of him that he did not like...’

(g)Paragraph 8.2.16 - ‘ ...Mrs. [B] would 'tear around' the house and leave black marks on the skirting board..’

(h)Paragraph 8.2.17 - ‘ He indicated they had fairly regular 'tiffs' .....and that the most common cause was his accusing her of being lazy’

(i)Paragraph 14.2.3 - ‘ ...she [Mrs [B]] felt totally dominated and controlled [by Mr [B]]

(j)Paragraph 14.2.4 - ‘ ...his underlying views on the mother and on the role of women in relationships became clear. He was obviously quite controlling and dominating during the marriage  ....... he fits the category of domestic violence perpetrator .... Such men tend to be controlling and punitive with daughters. Factioning is a common feature in the families of such men’ (i.e ‘ gathering allies, setting groups in the family against other groups’

(k)Paragraph 14.2.7 -      I have concerns about Mr [B's] attitude to women and the impact this might have on the girls.’

23.Whilst the trial judge quotes some of the above passages in his reasons he appears to dismiss any possible harm to the children by reason of the father's behaviour and attitude by relying upon a partial quotation from the expert's oral evidence (paragraph 37 & 38 Reasons but the very next paragraph of the evidence of the expert … makes it clear that there could very well be long term problems. In any event the passage as quoted by the trial judge at paragraph 37 is misconceived by the trial judge in that the expert does not say that the father won't dominate the girls but that he won't do it ‘in the same way’ because he will treat them ‘as little prizes’.”

Conclusion re the adequacy of reasons given in the parenting appeal

1. We think there is merit in the added grounds.  A reading of the reasons for judgment gives little, if any, information to the reader that would lead the reader to conclude that the husband’s behaviour towards the wife had been anything other than a tirade of verbal abuse over a long period of time.  Even as late in the judgment as para 115 his Honour speaks only of “...the changes in the wife’s presentation …attributable to the verbal abuse she was subjected to by the husband”.  The other issues raised by the wife in her evidence and substantially admitted by the husband in his cross-examination are just not dealt with at all.  They were clearly significant. 

1. On the last day of the hearing each of the parties handed up written submissions to the trial Judge.  The wife’s submissions, which commence at p 401 of the Appeal Book, begin with the heading “1. Domestic Violence” and a quote from Blanch v Blanch and Crawford and then a sub-heading “Particulars of Domestic Violence”. They include the 13 issues identified by the wife in her submissions to us and set out at para 38 above.

1. All told, the first nine pages of the submissions relate directly to the wife’s case that the husband had been abusive towards her and the effect that ought to have upon the outcome of the proceedings.  The issue was clearly agitated. 

1. The husband’s response to the assertions of the wife on the various particularised issues can be gleaned from his cross-examination: 

• He acknowledged that in 1993 there was an occasion when he became angry with the wife because he did not like the way she made the bed.  He acknowledged that he tried to push her out of the bedroom when he remade the bed. 

• He denied that he would push the wife around on numerous occasions when she was pregnant with R.

• He admitted that in January 1998 he became angry when she had thrown away a local newspaper.  In answer to the question “And you hit her in the face near her mouth?” he answered “I swung out my arm without proper due regard for my wife”.  Next question “And you hit her mouth?”, “Yes I did.”

• He acknowledged that she had stitches as a consequence of the injury.  He denied he came towards her after he hit her. 

• He admitted that he often raised his voice but did not often swear and that he was often abusive and frequently critical of her housework.

• In answer to a question “And there were occasions when you would try to restrain her by holding her arms and yelling very close to her neck and ear” he said “I did have to occasionally hold [Ms B].  I have spoken firmly near her ear, I certainly have never yelled close in her ear”. 

• He denied that he ever held her in a head-lock.

• When being cross-examined about whether there were occasions when he had not allowed her to sleep in the common bedroom, he said in an ingenuous way, “I didn’t not permit her.  I would ask her not to”.

• He admitted that on at least one occasion he pushed her out of the room and shut the door and that on a few occasions she slept in the children’s room.

• He acknowledged that in February 1999 there was a circumstance in which the wife became very embarrassed at a service station because she had to tell a service station attendant she did not have any money.  The husband said he did not know that she didn’t have any money but he denied he had tried to degrade or humiliate her purposely.

• He acknowledged that there was another time in which she was struck by the boot lid of a car when she was putting the pram into the car.  He admitted that he was impatient in the circumstance and again with some ingenuous explanation said, “I was a little impatient.  I was wanting to get going.  I started to pull the boot lid down and she seemed to partly sort of go back in to attend to something else again.  It did bump her on the head, not particularly forcefully”.  He denied she was upset.

• He denied that he was controlling of the family finances.

• He admitted there were circumstances in which he removed the SIM card or battery from the wife’s mobile phone so she could not use it.

• He admitted there were occasions when about 11 o’clock at night he would disconnect the electricity rather than allow the wife to have a light on in the bedroom.

• He admitted that immediately prior to separation there was an argument in which he told the wife that he had zero tolerance but he denied an assertion that he said exactly “I will not tolerate my rules being broken”.

• He admitted that he told the wife “Don’t ever touch my clothes again, you idiot, you are hopeless”.

• He admitted that on some occasions he called the wife “an idiot” and “hopeless”.  He denied that it was frequent.

• He admitted the children would become upset when he was yelling at the wife and he admitted that he frequently got upset with the wife.  He said there were arguments at least three or four times a week.

• He acknowledged that he swiped a book off the table on one occasion.

• He acknowledged that when the wife fell over at a slippery surface and was wearing a pair of thongs, he told her that it was a stupid thing to do.

1. This case fell squarely within the criteria identified by the Full Court in Blanch v Blanch and Crawford that:

“…where a case of sustained and severe domestic violence by one party is advanced by the other, the Court is obliged to give a clear indication whether it accepts or rejects that case and, in either event, to explain why it has reached that conclusion.”

1. In what is otherwise a thorough and carefully reasoned judgment, we are unable to see where his Honour clearly dealt with the issues raised by the wife. 

1. It is understandable that his Honour focussed upon post-separation events concerning the wife’s treatment of the children.  As his Honour said, the evidence of Ms Q was very compelling.  The conclusions of Ms D alerted the Court to concerns the Court may have over the manner in which the children were being treated by their mother.  But the Judge’s task was a broad one of weighing up all significant and important factors in making a difficult decision that would severely impact upon the future lives of these two children.  The legislature has made it abundantly clear from the provisions of s 68F(2)(g) and (i) that the Court must pay careful attention to the risks created by placing children with a parent who may subject or expose the child to abuse or violence or other behaviour.  Unfortunately we do not know precisely what his Honour’s findings were in respect of the conflict of evidence between the husband and the wife on the issue of the extent of the violence, nor whether his Honour discounted whatever his findings might have been in respect of that because of the more overwhelming issues that had arisen in respect of the post-separation behaviour of the wife.  There are just no findings to assist us at all.

1. The trial Judge was, in our view, obliged to adjudicate the violence issue as raised by the wife and to make specific findings in respect of the course of conduct conducted by the husband in the course of the marriage so that he could properly assess relevant aspects of the behaviour of each of the parents in determining in whose care he should place the children. 

1. As already indicated, a reading of the reasons for judgment does not lead the reader to have any understanding of how these matters impacted upon outcome other than to draw the conclusion from the outcome that they were not determinative of it.

1. Two passages in the reasons for judgment are particularly puzzling:

·     At para 48 his Honour states:

“For a man who on one version of the evidence appears to be aggressive, demanding and controlling, there are aspects of the dynamics of the relationship I find puzzling…”

·     Then the subheading before para 97

“(i) and (j)  No comment”

1. We find it puzzling to understand the trial Judge’s expression “on one version of the evidence”.  On the admissions of the husband, if nothing else, coupled with the evidence of the various witnesses, there is only one version of the evidence; that is that the husband was aggressive, demanding and controlling.  We do not understand whether the trial Judge was accepting of the uncontradicted evidence or dismissive of it. 

1. As to the notation “No comment”, s 68F(2)(i) expressly requires the Court to consider “any family violence involving the child or a member of the child’s family”.  We do not know the extent to which the trial Judge accepted the evidence in relation to the violence or the manner in which he dealt with it, other than by the necessary implication referred to above.

1. It may be that issues of more recent origin overwhelmed the past history in this case, but the obligation of a trial Judge was to explain how and why a result is obtained.  Mr North of Senior Counsel on behalf of the husband drew our attention to the passage of Kirby J in AMS v AIF (1999) FLC 92-852; (1999) 199 CLR 160; (1999) 73 ALJR 927; 24 Fam LR 756 when dealing with discretionary judgments (footnotes omitted):

“150.   Ninthly, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.”

1. In that passage Kirby J cites as authority for some of the propositions stated the decision of the Full Court in A v J (1995) FLC 92-619; (1995) 127 FLR 79; (1995) 19 Fam LR 260 (coram Fogarty, Lindenmayer and O’Ryan JJ) where their Honours said:

“In Bennett, supra, the Full Court warned against what could be described as an obsessive view being taken of the requirement to give adequate reasons. The Full Court said FLC p 78,267; Fam LR at 414:-

‘We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.’

…

…It is, in our opinion, particularly in matters where it is considered that the competing proposals are evenly balanced, important to avoid an overly critical analysis of the reasons of the trial judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should not be a microscopic analysis of, for example, words used by a trial judge if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration…”

1. Our difficulty in this case is that it is not clear in the reasons for judgment that the trial Judge has considered and evaluated the relevant evidence and taken all relevant factors into account.  The issues complained about in the amended grounds cannot be characterised as “pernickety or overly critical” when matters of such significant serious and prolonged violence were clearly raised and were virtually left undiscussed in the judgment.

Other parenting grounds

1. In so far as the grounds of appeal assert that the learned trial Judge attributed the responsibility for the domestic violence that occurred during the marriage to the wife, we do not think that assertion has been made out. 

1. We agree with the remarks of the Full Court in Blanch when Lindenmayer J said:

“…As a general proposition an attribution of responsibility for violence away from the perpetrator towards the victim is simply not acceptable, at least in the absence of any evidence of an expert nature to the effect that the sort of behaviour attributed to the victim by other evidence in the case was of such a nature as to be likely to provoke a violent response from any reasonable person, and that the actual response of the perpetrator to that provocation was not disproportionate to the provocation offered.”

1. In this case, his Honour accepted the views of the counsellor and made his own observation that the parties had an extremely dysfunctional and mutually destructive relationship characterised by continued power struggles and that:

“Mr and Mrs [B] [had] similar personality profiles and [had] been embroiled in a power struggle throughout their marriage and since.”

1. It is in that context that we would read the trial Judge’s finding in paras 46 and 47 relating to the findings of the wife engaging in passive/aggressive conduct.  His Honour indicated in the clearest of terms that he was “…not for one moment condoning the husband’s conduct in response to such behaviour…”

1. As to the submission that the trial Judge failed to give any or any sufficient weight to the extent to which the mother’s presentation in the witness box, her behaviour at various times is likely on a balance of probabilities to be a consequence of such domestic violence, there was no evidence before the trial Judge to support the need for such a conclusion. 

1. Whilst Ms D acknowledged that victims of ongoing abuse commonly have their sense of self-esteem eroded and lose confidence she was speaking in a general sense without reference back to the wife in this case.  There was no evidence led on behalf of the wife from any psychiatrist, psychologist or medical practitioner that ought to have led the trial Judge to reach the conclusion supported by the ground of appeal. 

1. As to the assertion that the learned trial Judge failed to give any or any sufficient weight to the impact that the father as a role model would have upon his two daughters as the primary residence parent, we can only conclude from the fact that he made an order in his favour after hearing all of the evidence that he certainly gave weight to it.  Our difficulty is that we do not know how much of the wife’s evidence he accepted in respect of these matters and how much he was prepared to have them counter-balanced by the compelling evidence concerning the present condition of the children in their mother’s care.

1. In the circumstances we do not think it is necessary to pass comment upon the next ground relied upon by the wife, that the learned trial Judge erred in basing his conclusion on the environment offered by the father at his parent’s home and not upon the environment the father could offer if he moved out of his parent’s home and repartnered, which was entirely speculative, or his assessment of no concern with the father’s discipline in the environment of his parent’s home rather than his real concerns if the father were to repartner or to move out of his parent’s home, which again was entirely speculative.

1. The next ground sought to be relied upon was that the learned trial Judge erred in basing his conclusion on a prejudiced view of the mother’s religious belief.  In support of that proposition we were taken to the following passages:

“72.…The evidence would indicate the children are required to engage in prayers in the mother's household, and that on at least one occasion this led to the disciplining of [R] when she was not paying sufficient attention and was wanting to play with her toys.

…

88.I am concerned at the mother's eccentric behaviour.  It would appear that she adheres strictly to the tenets of the … Orthodox faith, which involves fasting on a regular basis.  She denied involving the children in any fasting exercise, but certainly food or the lack of it appeared to have been a concern for the girls in some of the statements they have made.  It is likely though that it is more a concern for the father who is very protective of them, very mistrusting of the mother, and anxious to ensure that his daughters are not deprived of anything.

…

95.One area which is of concern is the mother's pre-occupation with religious matters.  I am not in any way seeking to make an adverse comment about any particular religion, nor to suggest that one religion should be preferred over another.  Still less, should I be understood as in any way being critical of a citizen's right to engage in freedom of religious observance.  However, the mother involves the children and herself in worship at church services, which her father conducts, at least twice a week.  In [Ms D's] second report, at para. 9.5, the mother is reported as saying she wanted the girls to be able to have ‘the wonderful life in the Orthodox faith’.  I had the distinct impression life in the mother's household is far more austere and rigid than in the father's household, and that in part this is brought about by the mother's pre-occupation with religious matters.  The mother's insistence on having the children at specified contact times to ensure they attend religious observance in the Orthodox faith is a concern to me.  It is the mother's insistence that her religion should prevail which also concerns me.   They are little girls and should be allowed to be little girls.  They should be free to attend any church service and not necessarily be locked into the mother's belief system at this young age.”

1. The use of the term “prejudiced” in this ground is a curious one.  “Prejudiced” carries with it connotations of an opinion formed before hand or without due examination which leads to a bias.  We are unable to read into the passages drawn to our attention that the trial Judge was biased or had approached the matter with a closed mind. 

1. His Honour had to choose between two lifestyles, which were in stark contrast.  It was his view that a lifestyle for the children with significant freedoms of choice between the belief systems of their parents would better advance their welfare.  This is the very task that the trial Judge has to undertake.  He has to assess the respective merits of the entirety of the parties’ case and reach a conclusion either in selecting the lesser of two less-than-ideal households, or the greater of two beneficial systems.  Often the decision is difficult and unclear.  At other times the conclusion readily presents itself.

1. One factor in this case was the reality that the mother was an adherent to a faith system that was more rigid than that of the father.  That issue alone had to be factored in to the matter and a choice had to be made.  Asche SJ as a member of the Full Court in Paisio v Paisio (1979) FLC 90-659 at 78,514; (1978) 36 FLR 1 at 4; (1978) 5 Fam LR 281 at 283; observed:

“… it is clear that on general principles the Courts have recognised that it is no part of the judicial function to rule that one form of religion is to be preferred to another. There may be many paths to the top of the mountain. Some would say there is only one. Some would say there is no path. Some would say there is no mountain. It would be presumptuous vain and temerarious for a judge to make a finding of fact on such an issue…”

1. Even so they concluded that the trial Judge “was entitled to take into account the possible effects of the narrowness of the environment in which the child would be kept [by one of the parties]” when deciding with which parent the child should live.  That approach is entirely apposite in this case.

1. We do not see that in making a choice that was disadvantageous to the mother that that exhibits prejudice on behalf of the Judge.

1. As to ground that the trial Judge failed to have any proper regard to the fact that the mother had been the children’s primary carer for their entire lives and the effect her removal from that role would have upon the children, our attention was drawn to the matters contained in para 100 of his Honour’s judgment where his Honour concluded by identifying the issue of primary carer with the following phrase:

“I accept that the mother has been the primary carer for the children but this is balanced by the fact that the father has been closely involved in their lives at all times.”

1. We acknowledge that the use of the word “balanced” is perhaps inappropriate in the circumstances and “ameliorated” would be a better choice, but it is clear from the identification of that issue and the manner in which it was treated earlier in the judgment, that his Honour was conscious of this issue and paid proper regard to it.  It certainly was not an issue that alarmed the welfare reporter. 

Ground 5

“The Trial Judge failed to have proper regard to the following facts, namely:

(a)That the Mother had been the Children’s primary carer for their entire lives and the effect her removal from that role would have upon the Children;

(b)That the Children presented in terms of the Family Report and school reports as having prospered in the primary care of their Mother;

(c)That the paternal grandmother (who had not given evidence) would be required to assume the role of primary carer and that the Trial Judge had no evidence of her capacity to fill that role in terms of health and other commitments nor her desire to do so;

(d)The Mother’s history of stability prior to the significant and proven incidents of domestic violence by the Father towards her.”

1. It is unnecessary for us to make a detailed analysis of the matters argued there other than to say the finding turned on an assessment of the entirety of the evidence including an assessment of the parties and it was appropriately open to the trial Judge in the proceedings to reach that finding.  It is not a finding with which an appellate court would readily interfere.

Property

1. The trial Judge correctly identified the process that he needed to apply in determining the property issues.  After ascertaining the net pool of assets to be divided between the parties (approximately $1,100,000) at para 106 his Honour identified that he needed to determine in what percentage the property of the parties should be divided, “having regard to the requirements pursuant to s 79(4)”.  We read that as a reference to s 79(4)(a), (b) and (c).

1. He then said:

“107The wife sought that on account of Section 79(4) factors there should be a 70/30 division in the husband’s favour but this should be adjusted to a 60/40 division because of the Kennon factor.

…

108…[The husband] submitted there should be no adjustment for the Kennon factor…”

1. Under a separate heading “Adjustment for Kennon Factor” the trial Judge said as follows (emphasis added):

“112.There is a body of evidence that the wife’s personality changed during the course of the relationship.  Such evidence comes from the wife’s parents and [Ms V].

113.The wife consulted two psychiatrists.  It is a concern to me there is no medical evidence of any kind to support her claim for a greater share of property settlement because of a condition she developed as a result of the husband’s abusive conduct.

114.Exhibit 3 is a report of Dr [S] dated 25 May 2001.  In his report he observes:

[Ms B] left her husband [Mr B] (42) who is an [health professional] in April of last year, after they had been together for eight years.  She told me that he had been violent and there had been some pushing and hitting in the marriage for two years before she left ---She cries almost daily but this is improving.  She has some panic attacks, which feature palpitations, sweatiness and nausea and some faintness. They last for about five minutes and only ever occur when there is a confrontation with her ex-husband.

---Her appetite dropped but has now recovered. She has few interests.  Her libido dropped during the course of the marital breakdown, and she has no new relationship.  She has never been suicidal ---

Suggested Management

1.I thought it reasonable to withhold medication at this stage.

2.I’ll provide some support while she goes through the custody hearings.  In particular I have encouraged her to rehearse what she wants to say and to take a few close supporters with her.

3.I think she would benefit from some assertiveness training of one sort or another.

115.In the absence of better evidence I am unable to conclude that the changes in the wife’s presentation are attributable to the verbal abuse she was subjected to by the husband.  I expect that this was a contributing cause to some extent but I am unable to particularise the extent.  It may be that her condition has been exacerbated by the separation itself or as the doctor noted, her concerns about the custody dispute.  More importantly there is no evidence before me as to what, if anything, can be done to return the wife to her former outgoing self.  Dr [S] recommended 15 months ago the wife attend an assertiveness training program. There is no evidence she has done so.  There is evidence she has regularly taken [R] to a domestic violence counselling service but no evidence she herself has sought regular counselling.  In the absence of better evidence I am unable to conclude that there should be any adjustment on account of the Kennon factor.  It may be that medication could improve the wife’s behaviour patterns but the doctor did not consider her condition sufficient to recommend medication at that point in time. “

1. The reference to “the Kennon factor” is a reference to the decision of Kennon v Kennon (1997) FLC 92-757 at 84,294; (1997) 139 FLR 118 at 140; (1997) 22 Fam LR 1 at 24 where Fogarty and Lindenmayer JJ said:

“Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.  We prefer this approach to the concept of ‘negative contributions’ which is sometimes referred to in this discussion.

…

It is essential to bear in mind the relatively narrow band of cases to which these considerations apply.  To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party…”

1. The so-called Kennon factor is not the equivalent of an award for damages.  It identifies that the contribution of one party may have been all the greater than the contribution of the other because of the circumstances in which that contribution had to be made. 

1. In our view, the learned trial Judge erred in looking to see whether there was:

“…a condition she developed as a result of the husband’s abusive conduct”

or whether:

.”…the changes in the wife’s presentation were attributable to a verbal abuse she was subjected to by the husband.”

1. We should pause to say that this reference back to verbal abuse is a further indication that his Honour had not properly given consideration to the other forms of abuse that the wife had asserted had occurred. 

1. Further, we think the trial Judge erred in seeking to find:

“…what, if anything, can be done to return the wife to her former outgoing self.”

1. In our view, the trial Judge was seeking to equate the Kennon award or adjustment to a claim for damages, looking to see whether there had been a compensable deterioration in the wife’s health due to the husband’s conduct and whether that compensation should continue into the future, having regard to the treatment that would be available to cure her position. 

1. This misapprehension and misapplication of the principles outlined in Kennon means that the matter has to be considered afresh.  Were there ample findings as to the extent of the abuse that the wife had suffered, and were the matter not being remitted for rehearing in respect of the principle issue of residence, then we may have been in a position to evaluate these issues ourselves and re-exercise the trial Judge’s discretion.  It may be that on a re-exercise of that discretion the outcome would remain the same, namely that either no further adjustment would be made for contributions or, in light of an adjustment to the contribution assessment there may have been a smaller assessment made for the remainder of factors under s 79(4)(e).

1. Again, we do not want it to be inferred from our allowing this appeal that the end result of the wife receiving 40 per cent of the asset pool was an inappropriate one.  We are making no comment about that end result whatsoever.

The Section 77A allowance

1. His Honour said:

“122.On account of Section 75(2) factors I am of the view there should be a further adjustment in the wife’s favour of 10 per cent.  To award the wife 20 per cent as submitted by her counsel does not make allowance for the fact that the husband will have the cost of supporting the children for a period of time until the wife is able to obtain suitable employment.”

1. He then said:

“126.I will not allow the orders for property settlement to issue in final form until counsel have had the opportunity to make submissions checking the accuracy of my calculations and having input into the actual form of the orders such as for distribution of chattels.

Spouse Maintenance

127.In view of the orders that the husband will have the care of the children and the orders for property settlement that I have just made I do not propose to make any adjustment on account of periodic maintenance.

128.I accept it is likely to be one or two years before the mother can obtain employment and contribute to child support but she will have a substantial cash sum which will enable her to acquire a home and have some capital to live on.”

1. Apparently a draft of the minutes of orders was circulated which included the order that was eventually made. It allocated $20,000 for the wife’s property settlement towards a s 77A maintenance allowance. Neither party had sought such an order, nor is it consistent with the other findings of the trial Judge. Mr North chose not to address us on the issue of why the orders should not be set aside.

1. Section 77A(1) provides as follows:

“(1) Where:

(a)a court makes an order under this Act … and the order has the effect of requiring:

(i)payment of a lump sum, whether in one amount or by instalments; or

(ii)the transfer or settlement of property; and

(b)the purpose, or one of the purposes, of the payment, transfer or settlement is to make provision for the maintenance of a party to a marriage;

the court shall:

(c)express the order to be an order to which this section applies; and

(d)specify the portion of the payment, or the value of the portion of the property, attributable to the provision of maintenance for the party.”

1. The purpose of this section is revenue protection.  It identifies how much of the award is attributable to maintenance and enables adjustments to be made to means-tested social security entitlements. 

1. In this case the trial Judge said that he was not intending to make a maintenance order. He also said that the entire adjustment that was made was made having regard to the provisions of s 79, which included consideration of relevant s 75(2) factors. There was no intention to make provision for maintenance of the wife apparent from the reasons for judgment. Accordingly the s 77A order cannot stand.

Spouse maintenance

1. As can be seen above, the trial Judge determined not to make any adjustment on account of periodic maintenance.  He acknowledged that the wife would be out of the workforce for another one or two years but concluded that she “will have a substantial cash sum to enable her to acquire a home and have some capital to live on”.

1. The “substantial cash sum” after payment of legal expenses and the like, was less than $400,000.  She had to rehouse herself from that sum.

1. On the other hand, the husband had assets in excess of $600,000 and an income earning capacity, identified by the trial Judge as being $95,000 per annum.  It is unclear whether this was an after tax income amount as the unchallenged evidence was that his taxable income for 30 June 2000 was $138,127 and his estimated taxable income for the financial year 30 June 2001 was $145,015.

1. The right of a party to maintenance is contained in s 72:

“(1)      A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c)for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).”

1. The relevant matters to be considered in relation to spousal maintenance are contained in s 75(2).

1. The first hurdle that a claimant for maintenance must overcome is to demonstrate that he or she is unable to support himself or herself adequately.  The issue of adequacy depends on the circumstances.   It does not require a party to exhaust their available modest capital before they can make a claim (see Whitford v Whitford (1979) FLC 90-612; (1979) 24 ALR 424; (1978) 35 FLR 445; (1979) 4 Fam LR 754, Vautin v Vautin (1998) FLC 92-827; (1998) 23 Fam LR 627 para 31). There may be circumstances where that is appropriate, but that depends on an evaluation of the financial position of the person potentially liable to make the maintenance payment.

1. In the circumstances of this case, where the husband had 1½ times the amount of capital that the wife had, and, in addition, had a vastly superior earning capacity to that of the wife, the issue of the wife’s entitlement to periodic maintenance albeit for perhaps a short period of time whilst she rehabilitated herself into the workforce, was an issue that deserved far greater attention than ultimately it received.  It required the trial Judge to ascertain exactly what were the wife’s reasonable needs and then determine whether she could adequately meet them from her financial resources in the circumstances of the husband’s financial position.  As there are insufficient findings for us to deal with these issues, it is again necessary for the matter to be remitted for rehearing.

Summary of conclusions

1. The residence issue was remitted because the matters relating to assertions of violence perpetrated on the wife have not been dealt with adequately.  There are no findings as to the extent of the violence nor any express consideration of the suitability of the husband to be the primary residence parent in light of those findings.

1. As to the property proceedings, there was no assessment of the extent of the abuse asserted by the wife and the effect that may have had upon her contributions during the course of the marriage.

1. There was no basis for making a s 77A order as no allowance was made for the maintenance of the wife in the property adjustment.

1. The findings necessary to determine whether or not the wife had an entitlement to any maintenance were not made.

Orders

1. The orders of the Court were that the trial Judge’s orders be set aside and the matter remitted for retrial.  The residence and contact orders were to remain as interim orders.  The parties received costs certificates as to the appeal and the retrial.

I certify that the 99 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate