B & K

[2001] FamCA 880

[2001] FamCA 880

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT BRISBANE

Appeal No. NA 25 of 2000
  File No. BR 9161 of 1999

BETWEEN:

B

Appellant Wife
-and-

K

Respondent Husband

REASONS FOR JUDGMENT OF THE FULL COURT

BEFORE:  Finn J, Coleman & O'Ryan JJ.
HEARD:  12 October 2000
JUDGMENT:                   14 August 2001

APPEARANCES:          

Ms McMillan of Counsel (instructed by Murdochs Solicitors) appeared for the Appellant Wife.

Mr J. Rolls of Counsel (instructed by Clewett, Corser & Drummond) appeared for the Respondent Husband.

Mr Kent (instructed by Legal Aid Queensland) appeared as the Children's Representative.

CATCHWORDS: RESIDENCE – CONTACT – Shared residency - Discretion of trial Judge – domestic violence

CASES: House v King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Brear v Corcoles-Alfaro (1997) FLC 92-768; Paskandy (1999) FLC 92-878; Smith (1994) FLC 92-488; Forck v Thomas (1993) 92-372; and H v H (1995) FLC 92-599 referred to.

1. This is an appeal by the wife against orders made by Bell J. on 8 March 2000 in proceedings between the wife and the husband in relation to the residence arrangements for the children of the parties' marriage and to property settlement.

1. With regard to the children's residence, the trial Judge made orders for shared residency (and for other related matters) in the following terms:

   "1.That the children, [G] born on … 1993 and [B] born on … 1995, reside with each of the parents.

   2.That each parent have responsibility for the day to day care, welfare and development of the said children whilst in their respective care.

   3.That from Friday 10th March 2000 until Friday 24th March 2000 the said children reside with the husband and each alternate fortnight thereafter.

   4.That from Friday 24th March 2000 until Friday 7th April 2000 the said children reside with the wife and each alternate fortnight thereafter.

   5.That the changeovers for the contact referred to in Orders 3 and 4 of these Orders occur by the non-contact parent collecting the children from school on the Friday afternoon and then delivering the children to school on the morning of the following Friday fortnight.

   6.That the children spend half of each school holiday period with each of the parents.

   7.That the changeover for all school holiday contact occur at the Toowoomba Children's Contact Centre.

   8.That the parent with whom the said children are not residing have telephone contact each Tuesday and Thursday between 6:00 p.m. and 6:30 p.m."

1. In relation to the property of the parties, the effect of the trial Judge's orders was to divide their property (which his Honour found to have a net value of $87,114.00) equally on the basis of the parties’ contributions, with a 10 per cent adjustment in favour of the wife to take into account superannuation and child support matters. It is not necessary to consider the detail of these orders at this point as the wife seeks to have the property settlement orders varied (to effect a 70 per cent : 30 per cent division in her favour) only if the appeal against the shared residence orders is allowed.

1. Before considering the wife’s grounds of appeal, it is necessary to make some reference to the factual background to these proceedings and also to Bell J.’s reasons for judgment.

Background to these proceedings

1. A detailed history of the parties' relationship is set out in the reasons for judgment of his Honour and it is not necessary to reproduce that history  in its entirety here.

1. It is sufficient to say that the wife was born in 1964 and is now thirty-seven. The husband was born in 1959 and is forty-one. The parties commenced living together in or about March 1992, were married in September of 1992, and ceased cohabitation on 26 August 1999. There were two daughters born of the marriage: G, now seven years old, born in 1993, and B, now five years old, born in 1995.

1. On 22 September 1999, Registrar Wilkie ordered on an interim basis that there be a “joint residency arrangement between the parties” with the children to reside “primarily” in the former matrimonial home with the husband, but also with the wife “at times commensurate with her employment and agreed to by the parties”.  The Registrar noted that it was the husband’s intention that the children have “liberal time” with the wife.

1. Then, on 11 October 1999, Hilton J. ordered (also on an interim basis) that the parties have shared residency of the children.  The practical effect of this order was apparently that the children resided in the former matrimonial home and the parents moved in and out each week.

1. On 6-8 March 2000, the matter was heard by Bell J.  Both parties were legally represented at the hearing and the children were separately represented.  His Honour delivered judgment on 8 March 2000.

The decision of the Trial Judge

1. His Honour began his judgment with a detailed history of the parties’ relationship, which included reference to the health and occupations of both of them.

1. His Honour then turned to the wife’s claim that the husband had anally raped her on 23 August 1999, and that this was the reason for her leaving the former matrimonial home with the two children on 26 August 1999.

1. In this context, his Honour referred to submissions from all legal representatives regarding whether it was necessary to make a finding in relation to the alleged rape of the wife. Particular reference was made to the view of Ms H, the social worker who had prepared the Family Report and who was of the opinion that whether the rape occurred was not a matter that affected the children, with his Honour saying:

   "…Ms [H], the Court reporter, indicated that even if [the rape] did take place, in all probability it would not affect the relationship between either the children and the husband or the husband and the children.  She indicated that it was in effect an isolated instance and that in future it would not in any way affect the children and it would not lead to any form of anti-social behaviour on the part of the children."

1. Despite this view, his Honour found that “in all probability” the rape did take place, as there was “no other reason” for the “precipitate” cessation of cohabitation on the part of the wife.

1. His Honour then went on to discuss the effect of the rape on the wife, including her wariness and lack of trust of the husband, although his Honour noted that the wife "readily concedes that the children have a relationship with [the husband] and that he is a good father". 

1. Later in his judgment, his Honour stated that the wife cannot communicate with the husband and has lost confidence and trust in him.  His Honour also referred to the submission by Counsel for the wife that she will have difficulty allowing the children to go to a person “who has abused her most viciously”.

1. His Honour next discussed the success of the orders for shared residency made by Hilton J. on 11 October 1999.  His Honour found that the shared residency arrangement worked, and complimented both parties, saying:

   "They have done a remarkably good job. They have been able to contact each other by the use of a diary, which has worked. This diary sets out what has happened to the children, if any special events are necessary and things of that nature.  That has continued on until this matter was heard before me in the last four days."

1. Bell J. next directed his attention to the wife's previous problems with anorexia nervosa and bulimia and her dependence on diuretics, finding that these problems no longer existed.

1. Then his Honour embarked on the following discussion of the issues relevant to the making of a shared residence order, ultimately reaching the conclusion (supported, it should be noted, by the husband, the children’s representative and the author of the Family Report) that the children’s best interests would be served by a shared residency arrangement:

   "It is quite clear on the evidence before me, taking into consideration the evidence of the various witnesses and the evidence of Ms [H], that they are both good and devoted parents. … If, in fact, I am persuaded to order residence of the children on one side or the other, I am quite satisfied that those children will be adequately looked after and that their future welfare is ensured.  However, both the husband and the Children's Representative as well as Ms [H] (the reporter) have come to the conclusion that the best interests of these children would probably be better advanced by there being a shared residency of about a fortnight about.

…The children obviously love both parents.

Both parents do an excellent job. How can I maximise their comfort with their parents without one or other of the parents, albeit unintentionally, giving the impression that they have been the winner in this case?

Shared residency has never been attractive to me in a case where the parties cannot agree… This, however, is a different case.  The husband I think would possibly be able to communicate with the wife but the wife cannot communicate, as she said, with the husband because of the matter to which I have already referred - and that is totally understandable. In the years to come it may change but at this stage she feels betrayed…In fact, she gives me the impression that she does not want to talk to him at all."

1. After outlining the submissions of Counsel for the wife regarding “the moral attitude” of the husband, Bell J. continued:

   "Whilst there is much in what he says there, to me it appears as though this gentleman, who may not be of sufficient moral standards and his honesty may be impugned, does not appear to me to be other than a good father and that he would put his children's interests first. As I have said, I have never been a protagonist of shared residency where the parties cannot agree.

   I have thought about this over the last few days and I must confess I am still pondering whether or no it is the best way.  I must say that on balance - it is only a slight balance - I am satisfied that shared residency would do the best by the children. Mr McGregor of Counsel submitted that not only should I look at the paramount consideration, which is the welfare of the children, but I must also look at how that is going to affect the parents.  The husband will not be affected but the wife, as Mr McGregor says - and tends to refer slightly to the Russell -v- Close principle - will be affected because she has the difficulty of allowing the children to go to a person, notwithstanding her feelings in relation to his being a good father, who has abused her most viciously and she would have, I would have thought, the natural fears that, whilst it could not be suggested he would do anything of that nature to his children, he is not a good role model for them.

   I regret that I am persuaded - I regret to the wife, that is - to order shared residency and that the residency will be fortnight about.”

1. His Honour then discussed the details (in terms of the time and hand-over arrangements) of the shared residency arrangement. He also outlined orders for telephone contact and recommended that the diary used by the parents (to communicate with each other regarding the children) should continue.

1. His Honour then stated:

   I expect that my reference to Section 68F of the Family Law Act 1975 (as amended) would not be of sufficient accord to (sic) if the matter the goes to another place and perhaps I may have to delineate the subsection to which I have directed my mind; and they are s.68F(2)(b), s.68F(2)(e), s.68H, and s.68I.

1. As s.68I does not exist, we believe that the reference to it is a typographical error, and that his Honour must have meant to refer to s.68F(2)(i) and probably also to s.68F(2)(h).

1. His Honour then went on to determine the property settlement dispute.

The wife’s grounds of appeal in relation to the residence orders and the submissions in support of those grounds

1. The wife’s grounds of appeal as contained in an Amended Notice of Appeal, filed on 12 September 2000, are as follows:

"8.1The learned trial Judge erred in making an order that the children reside with the father and the mother on alternate fortnights in circumstances where the learned trial Judge:

a.       Found that the husband had anally raped the wife

b.       The parties were unable to communicate with each other

c.       The level of distrust between the parties was high

8.2In making the orders that he did, the learned trial Judge failed to give sufficient weight to the effect of the domestic violence perpetrated by the husband against the wife in anally raping her

8.3 The learned trial Judge failed to give adequate consideration to the role modelling presented by the husband to the children given the husband:

a.Raped the wife (a matter that was premeditated for a period of approximately 18 months)

b.       Lied about the rape of the wife

c.Was an admitted tax cheat and perpetrated a 'scam' on the Public Trust Office

8.4The learned trial Judge failed to give proper weight to the difficulties the husband would be likely to face in the longer term when the children:

a.       Challenged him

b.       Reached puberty".

1. No doubt because there is a degree of overlap between at least certain of the grounds of appeal, the wife’s Counsel did not make separate and discrete submissions in relation to each of the four grounds of appeal against the shared residency orders.  Rather, Counsel’s oral submissions and the written outline of submissions on which she relied, addressed a number of issues – all of which can be seen as arising on one or more of the grounds of appeal.

1. In both her oral and written submissions, Counsel began with an outline of the structure and content of his Honour’s reasons for judgment in terms not dissimilar to the outline which we have given (in paragraphs 8 to 20) above.

1. Particularly in her oral submissions, Counsel drew attention to the fact that his Honour made no reference to the matters set out in s.68F(2) of the Family Law Act 1975, to which the Court is required to have regard in making parenting orders.

1. It was next submitted that shared residency was not “a realistic option” in this case for a range of reasons which were set out in the written outline of argument. In summary, those reasons were:

• the rape which the trial Judge found to have been committed notwithstanding the absolute denials of the husband;

• that the husband was found by the trial Judge to have lied to a Dr F and also to the Taxation Office;

• that the wife had presented to a psychologist, Ms S, as a victim of domestic violence and to another psychologist, Ms L, as consistent with other women who had disclosed sexual abuse;

• that there had been domestic violence orders made on the wife’s application against the husband (although we note from the husband’s affidavit that such orders were made by consent and without admission); and

• that the husband had claimed that the wife had (physically) abused the children.

1. Specifically in relation to the last mentioned matter, it was submitted that this fact demonstrated that the parties had different attitudes to discipline, and also that it indicated the level of hostility between the parties (with the inference to be drawn from this submission being, of course, that shared residency could not be an option in this case).

1. It was next submitted that the only evidence in favour of shared residency was found in “the guarded opinions” of the author of the Family Report, Ms H, who, it was further submitted had largely discounted the possibility of the rape and who had given little or no consideration to the effect of such a serious assault (if it was found to have occurred).  Counsel also drew our attention to Ms H’s reservations expressed in both her report and in her oral evidence concerning the capacity of either parent to successfully negotiate a shared residency arrangement.  In this regard, Counsel emphasised that neither parent had initially sought a shared residency arrangement, with the husband only doing so after the trial had commenced and his Honour had expressed attraction for such an arrangement.

1. In support of the wife’s appeal, her Counsel relied on authorities such as Forck v Thomas (1993) FLC 92-372 and H and H (1995) FLC 92-599 as establishing that the key elements in a successful shared residency arrangement are that the partners can communicate and co-operate; that their parenting values and styles are compatible; and that there is an absence of tension and mistrust between them.

1. Against the background of these authorities, Counsel submitted that in this case there was evidence, to which she took us, of an inability on the part of the parties to communicate and to co-operate; of different and incompatible parenting styles and values between them; and of tension and mistrust between them.

1. In support of the assertion contained in Ground 2 of the grounds of appeal, being that the trial Judge did not give sufficient weight to the effect of the domestic violence perpetrated by the husband against the wife, Counsel relied on the decisions of JG and BG (1994) FLC 92-515, Patsalou (1995) FLC 92-580, Blanch v Blanch & Crawford (1999) FLC 92-837, and Re Andrew (1996) FLC 92-692. Essentially, these decisions (which, save for the first mentioned, are all decisions of the Full Court) emphasise the weight which must be given to domestic violence issues in cases concerning the welfare of children, and to the effect of such violence on the party on whom such violence is inflicted and on the children.

1. It was put to us by Counsel for the wife that these authorities had been drawn to the trial Judge’s attention and yet, it was submitted, he failed to address this issue of violence at all, save to acknowledge that the rape of the wife did occur.  It was also submitted that his Honour had not addressed the issue of the husband’s being a poor role-model for the children, which was a conclusion which could be drawn from his denial of the rape and from various other untruths which he was found to have told.

1. Similarly, it was put that his Honour had failed to address submissions to the effect that the wife would be better equipped to deal with problems which may arise in the future when the girls reach puberty.

Consideration of the Wife’s Case

1. It is important to bear in mind in this appeal, perhaps more than in many others, that this is an appeal against a discretionary judgment, and that the authorities establish that such a judgment can only be interfered with by an appeal court in very limited circumstances.  Those limited circumstances were explained by the High Court in House v King (1936) 55 CLR at 534 in the following terms:

   “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 discretion is reviewed on the ground that a substantial wrong has in fact occurred” (emphasis added).

1. Furthermore, the difficulties facing an appellant who seeks to have an appeal court interfere with the decision of a trial Judge on the basis of the weight which a trial Judge has accorded to particular matters (which is the complaint made in three of the four grounds of this appeal) are explained in the following passage from the judgment of Stephen J. in the High Court decision of Gronow v Gronow (1979) 144 CLR 513 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.”

1. In the present case no mistake of fact on the part of his Honour has been asserted. 

1. Nor has any mistake or error of law or principle on the part of his Honour been established to our satisfaction. Although it is true that in relation to the matters in s.68F(2) of the Act, his Honour did not adopt “the preferable approach” of considering each of the matters in that sub-section separately and making findings in relation to each of them having regard to the evidence relevant to that matter (see for example in this regard Smith (1994) FLC 92-488; Brear v Corcoles-Alfaro (1997) FLC 92-768; and Paskandy (1999) FLC 92-878), it was not an error of law for his Honour not to have followed that approach. It is sufficient that we as the appellate court can be satisfied, as we can be from a reading of his reasons for judgment, that in his reasons his Honour dealt with each of the relevant considerations under s.68F(2) (again see in this regard Brear v Corcoles-Alfaro).

1. In the present case his Honour indicated that he had had regard to paragraphs (b) and (e), and also (it can be assumed as we discussed earlier) to paragraph (h) and (i) of the sub-section.  Those paragraphs are concerned respectively with the nature of the relationship between the subject child or children; the capacity of each parent to provide for the needs of the child or children; the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents; and any family violence involving the child or a member of the child’s family.

1. It has not been put to us that there was any other matter contained in s.68F(2) which was relevant on the evidence before his Honour and which he failed to consider.

1. Rather, the criticism of his Honour made on behalf of the wife is that he did not give certain of the matters which were relevant in this case, notably the family violence constituted by the husband’s anal rape of the wife, but including also the role model which the husband would provide for the children and his capacity to provide for the children when they reached puberty, the in-depth consideration which such matters required.  This criticism is essentially one based on the difficult question of weight, and it is a matter to which we will return.

1. Finally, in relation to matters of law or principle, it has to be said that the principles enunciated in the first instance decisions of Forck v Thomas (supra) and H and H (supra) concerning – to use the language of  Counsel for the appellant wife – “the key elements in a successful shared residency arrangement”, did not constitute binding authority on his Honour, such that it might be asserted that he erred in principle in not applying or following them.

1. But in any event, as we read his Honour’s reasons, he was very well aware of the difficulties for a shared residency arrangement (canvassed in those earlier decisions of this Court) where the parties cannot agree, and/or the parties cannot communicate, and/or there is tension or mistrust between them.  His Honour’s understanding of the difficulties of a shared residency arrangement in the circumstances of this case emerge clearly from the following passages from his judgment:

   “Shared residency has never been attractive to me in a case where the parties cannot agree…This, however, is a different case.  The husband I think would possibly be able to communicate with the wife but the wife cannot communicate, as she said, with the husband because of the matter to which I have already referred - and that is totally understandable.  In the years to come it may change but at this stage she feels betrayed.  She has lost confidence and trust in her husband and she would find it very difficult, as I have said, to communicate about the children with the husband.  In fact, she gives me the impression that she does not want to talk to him at all.

   …

   …As I have said, I have never been a protagonist of shared residency where the parties cannot agree. 

   I have thought about this over the last few days and I must confess I am still pondering whether or no it is the best way.  I must say that on balance - it is only a slight balance - I am satisfied that shared residency would do the best by the children.  Mr McGregor of Counsel submitted that not only should I look at the paramount consideration, which is the welfare of the children, but I must also look at how that is going to affect the parents.  The husband will not be affected but the wife, as Mr McGregor says - and tends to refer slightly to the Russell -v- Close principle - will be affected because she has the difficulty of allowing the children to go to a person, notwithstanding her feelings in relation to his being a good father, who has abused her most viciously and she would have, I would have thought, the natural fears that, whilst it could not be suggested he would do anything of that nature to his children, he is not a good role model for them.

   I regret that I am persuaded - I regret to the wife, that is - to order shared residency and that the residency will be fortnight about…”

2. His Honour thus had full regard to the factors which would militate against a shared residency arrangement in this case, yet he determined that there were other factors (being the children’s relationship with their father and the success of the shared arrangement to date) which tipped the balance in favour of such an arrangement.  We are not persuaded that in so determining his discretion can be said to have miscarried either on the basis of some error of principle, or on the basis of the weight which his Honour accorded to the factors which in this case would militate against a shared residence arrangement.

1. We return then to the wife’s claim, particularly having regard to the Full Court authorities on which her Counsel relied, that his Honour did not give sufficient weight to the violence which he found that the husband had inflicted on the wife and the effect or impact on her of that violence.

1. We have earlier referred to the submission of the wife’s Counsel that although the relevant authorities were drawn to his Honour’s attention, he did not address the issue of violence at all, save to acknowledge that the rape of the wife did occur.  With due respect to Counsel, we think that this criticism of his Honour is somewhat unfair. 

1. A reading of his Honour’s reasons (which, it must be remembered, were delivered orally within a couple of hours of Counsels’ final submissions) reveals that his Honour was indeed aware of the impact of the rape on the wife.  Having said that he was satisfied that the rape did take place, his Honour went on to say:

   “In my opinion, the wife has, since that time, understandably become wary of the husband.  She feels debased.  She feels as though she can no longer trust him and this lack of trust has, I feel, overflowed into her general feelings in relation to the husband having contact with the children.  She readily concedes that the children have a relationship with him and that he is a good father but she cannot, as I find, forget what took place on that day and this has gravely clouded her views.

   …

   The amazing part about it is, notwithstanding this was forced down their throats - I understand neither of them wanted a shared residency - it has worked and I compliment both parties here, particularly the wife who does have this fear of the husband and who has this distaste for moving back into the house where she found herself debased and violated…

…

…but the wife cannot communicate, as she said, with the husband because of the matter to which I have already referred - and that is totally understandable.  In the years to come it may change but at this stage she feels betrayed.  She has lost confidence and trust in her husband and she would find it very difficult, as I have said, to communicate about the children with the husband.  In fact, she gives me the impression that she does not want to talk to him at all.

…Mr McGregor, in his forceful submissions, has required me to look personally at the moral attitude of the husband.  He has, as I have found, been guilty of anal rape on his wife…

…

…Mr McGregor of Counsel submitted that not only should I look at the paramount consideration, which is the welfare of the children, but I must also look at how that is going to affect the parents.  The husband will not be affected but the wife, as Mr McGregor says - and tends to refer slightly to the Russell -v- Close principle - will be affected because she has the difficulty of allowing the children to go to a person, notwithstanding her feelings in relation to his being a good father, who has abused her most viciously and she would have, I would have thought, the natural fears that, whilst it could not be suggested he would do anything of that nature to his children, he is not a good role model for them.”

1. When the passages from his Honour’s reasons are read, it cannot be said that he did not have full regard to, and view very seriously, the fact of the rape and its impact on the wife, and also the effect on the wife of having the children live with the husband on a shared residency basis.

1. It also cannot be said that his Honour did not have regard to the various matters which, in addition to the rape, indicated some moral short-coming on the part of the husband.  In relation to these matters his Honour said:

   “Mr McGregor, in his forceful submissions, has required me to look personally at the moral attitude of the husband.  He has, as I have found, been guilty of anal rape on his wife.  He is a confessed liar in that he says he lied to Dr [F] in an endeavour to get some benefit from his employers.  He says, of course, that his wife was a party to this.  That may be the case.  But he has also lied, as Mr McGregor said, to the Taxation Office in that only on one occasion has he indicated any income from his hobby of furniture restoration.  That was in 1996 when he indicated that he had made about $200.00.  Mr McGregor points to the fact he admitted that he earns about $60.00 per week from this.”

1. However, his Honour then went on to balance the matters just mentioned (as well as the rape) against what the children’s interests required, and he concluded that on “a slight balance”, a shared residence arrangement would be in their best interests:

“Whilst there is much in what [Mr McGregor] says there, to me it appears as though this gentleman, who may not be of sufficient moral standards and his honesty may be impugned, does not appear to me to be other than a good father and that he would put his children’s interests first.  As I have said, I have never been a protagonist of shared residency where the parties cannot agree.

I have thought about this over the last few days and I must confess I am still pondering whether or no it is the best way.  I must say that on balance – it is only a slight balance – I am satisfied that shared residency would do the best by the children.” 

1. Accordingly, we consider that there would be no justification for any interference by us with his Honour’s decision on the grounds of the weight which he accorded to the fact of the husband’s rape of the wife and to the effect of that event on the wife and on her capacity to be involved in a shared residency arrangement with the husband.  Indeed, it seems to us that any challenge by the wife to the weight which his Honour accorded to the “moral attitude of the husband” or to the difficulties which the parties’ relationship might cause for a shared parenting arrangement, must confront a particular difficulty in this appeal, and that is, on the wife’s own case, the husband was to have substantial contact with the children. 

1. We do not, of course, criticise the wife for proposing substantial contact between the husband and children – indeed, she should be congratulated for doing so in the sensitive circumstances of this case.  But it is difficult to see how the various matters on which she relies (being principally moral short-comings on the part of the husband and the state of the parties’ relationship) would have precluded his Honour from ordering an alternate fortnight residence arrangement, yet would have permitted him to order alternate weekend contact and half school holidays.

1. Finally, there are the matters raised in the wife’s fourth ground of appeal, being that his Honour did not give proper weight to the difficulties which the husband would be likely to face in the longer term when the children “challenged him” and/or “reached puberty”. 

1. As we understand the wife’s case, the concern regarding “any challenge” by the children to the husband is said to arise because of a domineering aspect to his character, which his rape of the wife is said to reveal.  While we do not in any way wish to down-play or underestimate the seriousness of the husband’s rape of the wife, a consideration of the expert evidence to which we were taken, regarding the husband's personality and attitudes does not, in our view, establish any particular concern about the husband in this regard.  Given the state of this expert evidence, we would not be disposed to interfere with his Honour’s judgment solely on the ground that he failed to consider how the husband might cope in the future if the children while in his care challenged his authority.

1. As to the second matter, being the husband’s capacity to parent his daughters when they reached puberty, it has not been established that this was a matter which required particular consideration by his Honour in this case.  It is certainly not a matter which would warrant interference with his Honour’s orders for shared residency.

Conclusion

1. Accordingly, the wife’s appeal against the orders for shared residency must fail, and in as we indicated at the outset of these reasons it thus becomes unnecessary for us to consider her appeal against the property settlement orders.

Costs of the Appeal

1. At the conclusion of the hearing of the appeal we invited and received submissions in relation to the costs of the appeal.

1. In the event that the appeal was unsuccessful, as it has been, both Counsel for the husband and for the Children’s Representative sought orders that the wife pay their costs, including the costs of an unsuccessful

application for expedition which, we were told, was made on 15 April 2000. 

1. Such orders were opposed on behalf of the wife essentially on the grounds of the wife’s financial circumstances and also the fact that the appeal did not lack merit.

1. We are of the view that the circumstances do not warrant the making of the costs orders sought.

Orders

1. That the appeal be dismissed.

2. That there be no order for costs in relation to the appeal.

I certify that the preceding 60  paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court

Associate