Babett & Falconer

[2015] FamCAFC 124

FAMILY COURT OF AUSTRALIA

BABETT & FALCONER [2015] FamCAFC 124

FAMILY LAW – PROPERTY – Adequacy of reasons – Where the Full Court found that the trial Judge failed to consider and provide adequate reasons in respect of the wife’s use of funds post-separation – Where the Full Court found that the trial Judge’s orders failed to give effect to the calculations expressed within the reasons.

FAMILY LAW – CHILD SUPPORT – Child Support Departure Orders – Special needs of a child –Where trial Judge failed to particularise and make findings in respect of the needs of two children, resulting in an identical monetary entitlement for each of them – Whether the trial Judge erred by failing to distinguish and make findings in respect of the children’s individual needs – Where the Full Court held that it is axiomatic that child support orders, including departure orders, are referrable to each eligible child and supported by relevant factual findings.

FAMILY LAW – CHILD SUPPORT – Child Support Departure Orders – Just and equitable and otherwise proper – Where the trial Judge held that it was just and equitable to order the non-applicant parent to pay the full rate of desired child support, in light of that parent’s economic capacity – Whether the trial Judge erred by failing to consider the comparative ability of the applicant parent to meet the children’s needs – Where the Full Court held that both of the parent’s economic capacity to meet the needs of the children must be assessed, when determining the child support payable.

FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the Full Court found that the evidence sought to be adduced would not demonstrate an error on behalf of the trial Judge or otherwise cause an injustice – Where the Full Court found that the trial Judge was not required to extensively explain to a litigant in person procedural aspects, after the close of evidence and submissions.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Federal Circuit Court Rules 2001

Allesch v Maunz (2000) 203 CLR 172
Bassingthwaite & Leane (1993) FLC 92-410
Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Cerini & Cerini [1998] FamCA 143
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472
Dickons & Dickons (2012) 50 Fam LR 244
Dwyer & McGuire (1993) FLC 92-420
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
In the Marriage of Gilmour (1995) FLC 92-591
In the Marriage of Gyselman (1992) FLC 92-279
In the Marriage of Maples (1990) FLC 92-180
Jacks & Parker (2011) 45 Fam LR 52
Mallett v Mallett (1984) 156 CLR 605
Marker & Marker [1998] FamCA 42
Omacini & Omacini (2005) FLC 93-218
Re F (Litigants in Person Guidelines) (2001) FLC 93-072
Sharman v Evans (1976-1977) 138 CLR 563
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Sun Alliance Insurance Ltd v Massoud (1989) VR 8

APPELLANT: Mr Babett

RESPONDENT: Ms Falconer

FILE NUMBER: SYC 6278 of 2011

APPEAL NUMBER: EA 179 of 2013

DATE DELIVERED:: 26 June 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Sydney

JUDGMENT OF: Strickland, Ainslie-Wallace and Murphy JJ

HEARING DATE: 3 February 2015

LOWER COURT JURISDICTION: Federal Circuit Court

LOWER COURT JUDGMENT DATE: 13 November 2013

LOWER COURT MNC: [2013] FCCA 1845

REPRESENTATION

COUNSEL FOR THE APPELLANT: Suzanne Christie

SOLICITOR FOR THE APPELLANT: Watts McCray Lawyers

THE RESPONDENT: Self Represented

Orders

1. The Application in an Appeal filed on 5 September 2014 be dismissed.

2. The appeal against orders for settlement of property made by Judge Scarlett on 13 November 2013 be allowed.

3. Leave to appeal the order for Child Support Departure made by Judge Scarlett on the 13 November 2013 be granted.

4. The appeal against the order for child support departure made by Judge Scarlett on 13 November 2013 be allowed.

5. The orders made by Judge Scarlett on 13 November 2013 be set aside.

6. The wife’s applications for settlement of property and child support departure be remitted to the Federal Circuit Court for rehearing by a Judge other than Judge Scarlett.

7. Each party bear their own costs of and incidental to this appeal.

8. The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

9. The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

10. The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant husband and respondent wife in relation to the rehearing of the application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Babett & Falconer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 179 of 2013
File Number: SYC 6278 of 2011

Mr Babett

Appellant

And

Ms Falconer

Respondent

REASONS FOR JUDGMENT

1. On 13 November 2013, Judge Scarlett made orders for settlement of property and a child support departure order. The husband appeals the former and, pursuant to s 102A of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”), seeks leave to appeal the latter, and if leave is granted, to appeal.

2. His Honour’s orders for settlement of property effect a division of the parties’ property interests in the proportion 70 per cent to the wife and 30 per cent to the husband.  In giving effect to that assessment, his Honour made orders transferring and vesting property and superannuation interests productive of a “… a shortfall which should come from the husband’s superannuation” (at [132]). 

3. In doing so the husband contends that his Honour made a mathematical error.  We agree.  The error should be, and with the wife’s consent could be, corrected as a “slip” (Federal Circuit Court Rules 2001, r 16.05(2)(e)).  However, the wife – who represented herself before us – sought to justify his Honour’s orders by reference to a number of different matters.  Her arguments are, with respect, misplaced and wrong, but the absence of her consent necessitates dealing with his Honour’s error as Ground 1 asserts.

4. Otherwise, the property orders are challenged by grounds which, in terms, assert errors in the treatment of monies available to the wife in the post-separation period, including money expended on legal fees, and grounds which assert an assessment of contributions “… so outside the generous ambit of discretion as to constitute appealable error”.  Despite the terms of the grounds of appeal, written and oral arguments advanced by counsel for the husband before us focussed on a challenge to the adequacy of reasons.   There is merit in the challenge so expressed. 

5. The challenge to the order for child support departure also centres on asserted inadequacy of reasons, including those emanating from a credit finding adverse to the husband.  The grounds also assert error by reason of an inconsistency between the findings and his Honour’s order, which provides for the same amount to be paid in respect of each child.  As will be seen, we consider that there is also merit in the challenges to this order and that substantial injustice would result if leave to appeal was not granted.

The Appeal Against the Property Orders

The Mathematical Errors

1. The mathematical errors made by his Honour fall into two categories.  First are those arising from the erroneous transposition of the value of the husband’s contents ($15,000) for the value of the wife’s contents ($3,000).  The wife points to an additional error.  Funds held in a Matthews Folbigg Account, which his Honour lists at $28,000, had an agreed value of $28,644.37.  The result is that the total value of the property and superannuation interests retained by the wife is $201,674 (disregarding the cents), and not $213,030 as attributed in his Honour’s reasons.  Each of these errors is accepted as such by both parties before us. 

2. A more fundamental error arises from an error made in effecting his Honour’s (correct) finding that, in order to give the wife her 70 per cent entitlement as envisaged, a superannuation splitting order would need to be made in favour of the wife to make up what his Honour called “the shortfall” between the value of property retained by her and her assessed entitlement.  To that intended effect, his Honour ordered that the wife receive 70 per cent of the husband’s superannuation interest.  However, that order does not achieve the desired result; rather, it achieves an overall result of approximately 80 per cent (including superannuation) to the wife.

3. In dollar terms, by his Honour's judgment the wife was to receive 70 per cent of the parties' property and superannuation interests which, by reference to his Honour's unchallenged calculation of the net total of both, equates to approximately $327,473 (rounded).  The correct value of the property and superannuation interests which his Honour's orders vested in the wife was $201,674 (not $213,030 as attributed in his Honour's reasons).  Accordingly, if the wife was to receive her 70 per cent entitlement using the correct dollar amount vested in her, there was a shortfall (required to be met by a splitting order of the husband's superannuation interests) in an amount of approximately $125,800.  His Honour's orders provided for a splitting order of 70 per cent of the husband's superannuation interest; that is, approximately $172,500.  It can be seen, then, that the orders gave the wife approximately $46,700 more than the reasons indicate was intended.  When reference is had to the value of the parties’ interests in property and superannuation, and their financial circumstances more generally, the difference of nearly $47,000 cannot be seen as immaterial. Indeed, senior counsel appearing for the wife at trial observed in submissions that “… in a case such as this, even modest amounts of money … loom large” (Transcript of proceedings, 16 May 2013, 58).

4. The wife, who prepared her own material as well as representing herself, concedes readily that the orders made do not reflect the result that his Honour intended.  Nevertheless, she sought to support the orders made by his Honour on an entirely different basis. 

5. In doing so the wife asserts that the higher percentage entitlement produced by his Honour’s orders is within the range of what she sought at trial and, as she asserts, she is entitled to.  Similarly, she asserts that the result can be supported because his Honour omitted from the interests in property of the parties’ items which she contended before his Honour, should have been included (for example, amounts received by each of the parties by way of taxation refund). 

6. The wife does not appeal his Honour’s orders.  She has not filed a Notice of Contention.  The issues that she raises may have been relevant had she filed either.  However, they are not relevant to the husband’s ground that challenges orders which, clearly, and as she concedes, do not reflect the Judge’s intended result.

7. The challenge embraced by Ground 1 must succeed.

The Treatment of Post-Separation Monies

1. Grounds 2 and 4[1] were dealt with together by counsel for the husband.  Each asserts error in the treatment of money dealt with by the wife post-separation.  Ground 2 asserts error by reason of his Honour excluding from “… the asset pool, the monies expended by the wife on legal fees and monies in trust on account of legal fees, having regard to their source”.  Ground 4 asserts that his Honour erred “… in the assessment of contribution by failing to have any regard to the monies to which the wife had access in the post-separation period”.

   [1]Grounds 2, 3 and 4 are erroneously numbered as 3, 4 and 5 in the Amended Notice of Appeal; the correct numbers are used in this appeal as they were in argument before us.

2. In oral submissions, counsel for the husband properly conceded that the treatment of money spent post-separation was a matter for his Honour’s discretion (see for example, Cerini & Cerini [1998] FamCA 143; Omacini & Omacini (2005) FLC 93-218). Rather than challenging the exercise of that discretion, counsel’s written and oral argument centre on a challenge to his Honour’s reasons.

3. It is important to point out that, in respect of the challenges embraced by both grounds, the post-separation use of both capital and income was very much a live issue between the parties at trial as evidenced by the affidavits filed by each party, the cross-examination of each, and the submissions ultimately made by each party to his Honour (as to the latter, see, for example, transcript of proceedings, 16 May 2013, page 55, lines 1 – 10).  Each of the parties (noting that the husband represented himself at trial) made a number of contentions as to amounts that should be added back, or not added back.

4. It is against that background that it must be observed, crucially, that his Honour’s reasons contain no reference at all to the contentions as to “add backs” in respect of post-separation use of money by either party whether in respect of the payment of legal fees (to which Ground 2 is directed specifically) or more generally (to which Ground 4 is directed).

5. His Honour found (at [12]) that, upon the post-separation sale of the former matrimonial home, $145,000 was deposited to the wife’s personal bank account.  Included in what his Honour called the “non-superannuation asset pool” were, relevantly, three amounts of cash: $49,000 in a bank account in the wife’s name, $28,644.37 “held on parties’ behalf” in a Matthews Folbigg investment; and $38,653 held similarly by G Conveyancing.  No finding by his Honour relates those amounts (or any part of them) to the proceeds of sale of the former matrimonial home. 

6. Save for recording the fact of sale and, at [27], recording that the wife borrowed $10,320 from her sister “for various purposes, including legal expenses” of which “$10,000 was repaid … in May 2011”, his Honour makes no finding in respect of, relevantly, what funds were used to meet the wife’s legal expenses or the source of those funds.  The latter is crucial to the exercise of the discretion as to how the post-separation expenditure of money on legal fees should be treated by a trial Judge (See Chorn & Hopkins (2004) FLC 93-204, at [55] – [60]).

7. The wife deposed in her affidavit read before his Honour that her legal fees were met from the net proceeds of sale of the former matrimonial home and other money existing at, or shortly after, separation (including the reimbursement from those monies of loans from her sister).  Counsel for the husband is correct in submitting that the evidence before his Honour was that $65,000 had been expended from those monies for legal fees.  This Court held in Chorn that, in those circumstances, “… such funds should be added back as a notional asset of the party who had the benefit of them” (at [57], emphasis added).  Despite the apparently imperative language there used, a complete reading of the paragraphs of the judgment earlier referred to makes it clear that the question always remains, ultimately, a matter of discretion for the trial Judge. 

8. His Honour’s references to the post-separation use of capital or income are confined to [75] and [76] of the reasons, the latter of which contains the finding that “[t]he wife continued to use her income and her financial resources for the welfare of the family, being herself and the parties’ two children since separation.  This situation continues”. 

9. That finding, expressed in that way, refers to a fact which, on our reading, was not seriously in dispute, but it does not at all engage with the live issue of whether any funds should be notionally “added back” nor, specifically, the amount spent by the wife on legal fees.  Moreover, in circumstances where the sale proceeds were, ostensibly at least, monies in which both parties had an interest, his Honour makes no findings about the use of those monies, including, for example, that they were not susceptible to being notionally  “added back” because they were used for ordinary living expenses (see, Marker & Marker [1998] FamCA 42, 2).

10. We consider that ground 2 is established by reference to the inadequacy of his Honour’s reasons.   His Honour has a duty to provide reasons which illuminate the path which his Honour took to arrive at his ultimate conclusion (Bennett & Bennett (1991) FLC 92-191).

11. A corollary, in effect, to the failure to give reasons in respect of the money spent on legal fees, is asserted in ground 4 which, as the husband’s counsel contends, “is not independent of ground two”. The failure to engage at all with the issue of the post-separation use of a substantial sum establishes error in the exercise of discretion by reason of his Honour failing to take account of relevant considerations material to the case (House v The King (1936) 55 CLR 499).

12. Per force of the same reasoning as that earlier outlined, error is also established by the inadequacy of reasons as to the use of post-separation capital and income more broadly which is the focus of Ground 4 as argued by counsel. 

13. Grounds 2 and 4 both succeed.

The Assessment of Contributions

(a)Context

1. Ground 3 asserts that “his Honour’s assessment of contributions was so outside the generous ambit of discretion as to constitute appellable [sic] error”. 

2. The parties’ cohabitation subsisted for about 14 years; they separated under the one roof in early 2010 and finally in May 2011.  They have two children who were aged about 13 years and 10 years at final separation and about 15 years and 12 years at trial.  His Honour found that the younger child, Y, “has special needs as a result of Autistic Spectrum Disorder” (at [123]).  The husband sought to challenge that diagnosis at trial, but the factual finding just referred to is not the subject of challenge before us.

3. The interests in property of the parties as his Honour found them to be had a net value of about $146,000.  The amount was comprised substantively of invested cash resulting from the sale of the former matrimonial home.  The amounts of the parties’ respective superannuation interests were $75,000 (the wife) and $246,400 (the husband), a total of approximately $321,400.

4. His Honour’s ultimate orders reflected his assessment that the wife was entitled to 40 per cent more of the parties’ interests in property and superannuation than the husband.  In dollar terms that represented a disparity of approximately $187,000.  His Honour arrived at that result having assessed a 20 per cent disparity in contributions between the parties in favour of the wife (that is about $93,500) and increasing the disparity by a further 20 per cent, or an additional $93,500, by reference to s 79(4)(e) (that is, “the s 75(2) factors”).

5. No separate challenge is made to his Honour’s overall determination in terms similar to Ground 3.  However it follows that, because there is no specific challenge to the s 79(4)(e) aspect of his Honour’s assessment, the overall result must also be said to be “outside the generous ambit of discretion”.  That being so, the argument does not address the potential effect of s 79(4)(e) on his argument and the consequent likelihood of his Honour’s conclusion being just and equitable.  As his Honour said, assuming that, as here, the question posed by s 79(2) is answered affirmatively, the so-called “four steps” within s 79 are “inter-related”.  Section 75(2) requires, by reference to s 75(2)(b), a consideration of, relevantly, the “… property and financial resources of each of the parties” consequent upon the mooted  contributions assessment.  Thus, the “assessment of contribution step” and the “assessment of s 75(2) step” are symbiotic.   

(b)      The “Generous Ambit of Discretion” and Error

1. It is by no means uncommon to see grounds of appeal framed in terms identical, or similar, to Ground 3 in this appeal.  That such a contention of discretionary error can be made might be seen to emanate from the concluding part of the frequently-cited passage from the judgment of their Honours, Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504, 505 (“House”).  Their Honours, having set out specific errors that might inform discretionary error, said:

   … the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 

2. Their Honours’ statement in House makes it clear that the conclusion of unreasonableness or injustice must be so “plain” that it permits of an inference that there has been a failure to “properly” exercise “the discretion which the law reposes in the court of first instance”.  More recent statements by the High Court also underscore the required aberrance.  For example, in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, their Honours Gleeson CJ, Gaudron and Hayne JJ said (at 203-204):

   Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.

   …

   "Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.

   Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making processhttp:// - . And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:

   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.

3. Earlier statements by the High Court have emphasised the “very wide discretion” inherent in s 79 (Mallett v Mallett (1984) 156 CLR 605, 608). That very wide discretion can be seen to be an example of where “… the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion” and, as a result, “the latitude” given to a trial Judge is “considerable”. By way of corollary, “… it is never enough that an appellate court, left to itself, would have arrived at a different conclusion” (Gronow v Gronow (1979) 144 CLR 513, 519 per Stephen J).

4. However, what is at issue here is a discretionary conclusion reached from established facts none of which are challenged on appeal.  An appellate court’s decision that a trial Judge’s discretionary conclusion is wrong must have a discernible proper foundation and that foundation cannot be merely that it would have reached a different decision based on the same facts.  Justice Stephen’s often-quoted passage in Gronow v Gronow (1979) 144 CLR 513, 520 pertains:

   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 …

   (Emphasis added, See also, Aickin J’s statement to similar effect at 538).

5. Some five years later, Gibbs CJ, having cited those statements with approval, said to similar effect in Mallet v Mallet (above) at 615:

   The conclusion reached by the Full Court that [the trial judge] had failed to give [the relevant factors] proper weight can only be explained by the fact that their Honours disagreed with his conclusion.  However the mere fact that they themselves would have made a more liberal provision for the wife was no justification for substituting their own exercise of discretion for that of the primary judge.

6. Emphasising that a proper foundation must be established for an appeal court’s conclusion that a trial Judge’s discretionary conclusion is wrong, the former Chief Justice also said:

   The meaning of the statement which is found in the authorities that an appellate court may interfere with an exercise of discretion when it reaches the clear conclusion that no weight, or no sufficient weight, has been given to relevant considerations was explained by Latham C.J. in Lovell v. Lovell [1950] HCA 52; (1950) 81 CLR 513, at p 519, as follows:
   
   

   If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result
   follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the
   learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. (See also per Kitto J., at pp.533-4.)

7. While it can be contemplated that assessments of contributions pursuant to s 79 might be judged erroneous by reason of fitting the description “unreasonable” or “plainly unjust”, it is a description that begs a foundation for this Court doing other than substituting its own discretionary conclusion for that of the trial Judge.  In this, as in so many like cases, the central contention is that error is established by the result being “so outside” something that is not only unidentified but is not referenced to any foundation save for that assertion.   

8. In those circumstances, the submission is no more or less than a submission that this Court would reach a different conclusion to that of the trial Judge.  As Barwick CJ said in Sharman v Evans (1976-1977) 138 CLR 563, 565:

   ... the function of a court of appeal, in my opinion, is not to offer what in connexion with another discipline would be called “a second opinion”. Such a court is strictly confined to the remedy of error in the trial or in the assessment of the trial Judge. It cannot be too strongly said that a mere difference of opinion ... does not indicate error on the part of the trial Judge.

9. The written outline of argument identifies “the matters upon which the trial Judge made findings as to contribution”.  We consider the summary does not embrace all of the findings his Honour made in that respect.  Be that as it may, the listing of contribution findings matched with an assertion, citing Steinbrenner& Steinbrenner [2008] FamCAFC 193, that “it is in the leap between the recitation of the facts to the assessment of the dollar or percentage contribution that the discretion appears to miscarry” neither advances the central argument nor addresses the difficulty just referred to. Without more, the argument appears to be merely that the recited findings would have led us, or any of us, to a different result.

10. We are not persuaded that appealable error is established in the terms in which Ground 3 is expressed.

(c)      The Challenge Founded on Inadequacy of Reasons

1. As with other grounds, counsel’s written and oral argument had, as its primary focus, a challenge to the adequacy of his Honour’s reasons in respect of the contributions assessment.  The written summary of argument summarises the central contention this way:

   10.What weight was given to the husband’s income?  What weight was given to his parenting contribution prior to separation?  What weight was given to the increase in his superannuation after separation?  What weight was given to the post-separation taxation refund of the husband which stood in a controlled monies account at the time of the trial and formed part of the pool?  The reasoning process is entirely absent.  It is unclear whether the Judge took these matters into account or not:  Sun Alliance Insurance Ltd v Massoud (1989) VR 8; Bennett and Bennett (1991) FLC 92-191.

2. As can be seen, reference is there made to well-known and often-cited authorities dealing with the obligation upon trial judges to provide adequate reasons and appealable error consequent upon the failure to do so. 

3. The relevant principles also embrace caveats on a too-slavish intervention by appeal courts.  The frequently-cited judgement of Mahoney JA in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386 with respect, bears repeating. It is apposite to the challenge in this case as exemplified by the written contention just quoted. His Honour said (at 386):

   Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard. ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…

   …

   But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.

4. Within the family law context, those comments should be seen as reinforced by the fact that the nature of the s 79 inquiry is, in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a “broad-brush approach” (See for example, Dickons & Dickons (2012) 50 Fam LR 244, [25]).

5. His Honour references his contributions findings to each of the specific paragraphs of s 79(4) (Reasons [65] – [94]).  His Honour refers to the evidence of each of the parties, and although not clothed in the language of findings, it seems clear that, in doing so, his Honour accepted the evidence there referred to.  It is not contended otherwise before us. 

6. In summary, his Honour found:

   ·Each of the parties was in paid employment for the duration of the relationship save, in the wife’s case, for six weeks after the birth of the first child and for ten weeks after the birth of Y, after which time she returned to part-time work;

   ·Each of the parties contributed their income “to the marriage” for the “benefit of the family” (at [68] and [72] respectively);

   ·The wife contributed $20,000 from a workers compensation payment into the parties then line of credit;

   ·The wife made, through a loan from her mother, a contribution of $100,000 toward the purchase of the former matrimonial home which was subsequently repaid by the parties;

   ·In January 2011 the husband “changed the arrangement for his salary”; in lieu of payment into a joint line of credit it was paid into his personal account to which the wife did not have access;

   ·The husband paid child support as assessed but has “otherwise had the benefit of his income from employment since separation”;

   ·The wife was primarily responsible for the conservation and maintenance of the matrimonial home. An additional contribution was made by the wife in that respect through the agency of her mother;

   ·The wife undertook two roles: primary responsibility for homemaking and parenting, and part-time work and study.  The husband worked long hours, commuting three to four hours per day, working 10-hour days and, on his account “on weekdays [he] was away from home for prolonged periods” (at [80] - [82]);

   ·The husband’s employment responsibilities “seriously limited” his capacity to contribute as a caregiver to the children although “on almost every weekend [he] had substantial care of the boys so that [the wife] could study”. The wife was the primary caregiver for the children post-separation (see respectively, [85] and [84]). The father is not “currently spending time with the children at all” (at [151]).

7. His Honour’s reasons are brief.  There are matters which his Honour might have mentioned but did not, including some at least of those matters specifically referred to on behalf of the husband quoted above.  Some of these matters could have been expressly referred to by the trial Judge and indeed some of these matters were submitted by the self-represented husband at trial. However, we are not persuaded either that this court “… is unable to ascertain the reason[s] upon which the decision is based” or that “… justice is not seen to have been done” (Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18).

8. Error in the assessment of contributions by reason of inadequacy of reasons is not established.  

Application to Adduce Further Evidence

1. By an Application in an Appeal filed on 5 September 2014, the husband seeks to adduce additional evidence in respect of his challenge to the order for child support departure. The basis of the application is that “the evidence, if accepted, would demonstrate that the order under appeal is erroneous” (CDJ v VAJ (1998) 197 CLR 172, 201 per McHugh, Gummow, Callinan JJ). The application is opposed by the wife.

2. In essence, the evidence sought to be led is that the husband’s employment has changed and that, as a result, he is currently earning a significantly reduced income, with a consequent significant impact upon his capacity to meet child support obligations.  It is submitted that if his Honour had that evidence at the time of the hearing, it would have had a dramatic effect on the orders ultimately made.

3. That submission ignores, in our view, what occurred at the hearing.  As the transcript reveals, the husband flagged with his Honour (in submissions but not in evidence) that he would be “earning less if [he went] to the new employer …”.  Later the husband told his Honour about applying for a different position in respect of which he was unsuccessful. 

4. Contrary to what the husband told his Honour at the conclusion of the trial, his then mooted employment did not result in a reduced income when it later came to fruition; instead the husband was initially paid more.  However, on this appeal the husband asserts that, as a result of what is effectively a restructuring by his new employer, he was offered a redundancy and, subsequently, after negotiation he was offered employment on a reduced salary.

5. It can be seen then, to the extent that the evidence might have been available at the time, it was nothing more than a prospective possibility which his Honour, quite rightly, did not take into account.

6. The submission by counsel for the husband went on to contend that as the husband was self-represented, he ought to have been told by his Honour that he could apply to reopen proceedings if in fact, the prospective new employment occurred with the consequences then asserted by the husband.  The submission is, it seems, founded on an exchange between the husband and his Honour in which the husband asked his Honour “if the offer is formalised, I will send that to your associate and the other party”.  Then counsel for the wife said to his Honour, quite properly, that the husband needed “to be dissuaded from that course.  This is the end of the evidence”.  His Honour responded to the effect that “I can’t do anything about that because if there is a difference in your income – I am considering the evidence now” (Transcript of proceedings, 16 May 2013, page 81, lines 30 – 35).  It is at this point that counsel for the husband submits that his Honour ought to have given the husband the explanation for which counsel contends.

7. Whatever might otherwise be the limits of a trial Judge’s obligations towards self-represented litigants (Re F (Litigants in Person Guidelines) (2001) FLC 93-072), we cannot see how any such obligation can extend to explaining what might occur, about things that may happen in the future, which, in turn, may affect the liability in the instant proceedings.  The husband is now represented by solicitors and counsel.  He has produced no evidence as to any advice he received about the potential to reopen the evidence, or if he did not receive advice, why he did not seek it.  In particular, no evidence at all is offered as to any advice he received or the reasons for not receiving advice consequent upon formalisation of his new employment.

8. The wife asserts that the husband has failed to properly disclose financial information and a number of specific matters were put to the husband during his cross-examination to that effect.  In addition, he was asked whether he agreed “with the proposition” that he has “threatened [the wife] on more than three occasions, [that he] would leave [his] work and go on the dole”.  The husband responded “well, on one occasion, yes” (Transcript of proceedings, 16 May 2013, page 35, lines 5 – 10).  Against that background, the wife makes it clear that she challenges central aspects of the husband’s new employment, including an assertion that the new employer is meeting the husband’s legal fees in and about this appeal.  It can be seen, then, that the evidence could not be admitted without significant controversy, an important consideration in considering whether to admit the additional evidence.

1. Relevant to the instant application it was said in CDJ (at 202) that:

   … it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction.

   …

   Applications for a variation of an order, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal.

2. Specific to child support departure applications, the same principles can be seen expressed in In the Marriage of Gilmour (1995) FLC 92-591at 81,848-9. The evidence reveals that those same principles are, in substance, reflected in a letter sent to the husband from the Child Support Agency on the 24 March 2014.

3. The husband’s application is refused.

Leave to Appeal the Child Support Departure Order

1. Authority suggests that a “less restrictive approach” might be applied to applications for leave to appeal a child support departure order than that applicable to applications for leave pursuant to s 94AA because “… the order sought to be appealed involves substantive rights or liabilities in relation to child support” (See Bassingthwaite & Leane (1993) FLC 92-410, 80,198;  Gilmour at 81,843).

2. For the reasons which follow, we are in any event persuaded that in making the child support departure order which he did, his Honour made errors of principle which result in a substantial injustice to the husband. 

3. Leave to appeal should be granted.

The Appeal Against the Child Support Departure Order

Needs, “Special Needs” and Adequacy of Reasons

1. Three of the five grounds of appeal against his Honour’s child support departure order centre upon his Honour’s assessment of, and findings related to, the children’s reasonable needs and, more specifically, what the wife asserted to be the child Y’s “special needs”.  Two of those grounds also assert an inadequacy of reasons.

2. We consider that error is established in respect of each ground.

3. His Honour correctly identified the grounds upon which the wife sought a departure:  the child Y’s asserted special needs (s 117(2)(a)(ii); at [144](a)); the children’s education costs (s 117(2)(b)(ii); at [144](b)) and that the administrative assessment of child support in respect of each child was unjust and inequitable by reason of the husband’s greater income, property and financial resources and earning capacity.  (Respectively, s 117(2)(c)(ia) and (ib); at [145]).  His Honour was also plainly cognisant that, in addition to being satisfied that a ground of departure was made out (s 117(1)(b)(i)), it was also necessary for him to be satisfied that the making of a particular departure order was just and equitable and otherwise proper within the meaning of, respectively, s 117(1)(ii)(A) and (B) (at [157]). 

4. A child support assessment had issued in respect of the two children on 14 July 2011 which provided for child support totalling $1,605.33 per month (at [22]). Subsequently, the husband agreed to an interim order increasing the assessed sum to $2,600 per month (that is to say $1,300 per month for each child).  That (plus a CPI increase) was the order sought in the husband’s Further Amended Response filed on 5 February 2013 (at [136]).  The wife sought an order that the husband pay a total of $3,466.70 per month together with private health premiums and “tuition fees, school excursion fees and levies and all mandatory expenses” associated with the children’s private schooling (as well as alleged arrears) (at [135]).

5. His Honour ordered that the husband pay child support in the monthly amount sought by the wife and, in addition, that he pay the children’s private health fund instalments and “the tuition fees and other expenses” for each of the children to attend a specified private school.  His Honour also ordered the payment of arrears.

6. In determining the “proper needs of the child” under s 117(4)(b) and s 117(6) of the Assessment Act, an assessment must be made of the individual needs of each child (See, for example, In the Marriage of Maples (1990) FLC 92-180; In the Marriage of Gyselman (1992) FLC 92-279, 79,079 and Dwyer & McGuire (1993) FLC 92-420, 80,323). Often, little or no distinction is drawn between the needs of each of the children the subject of the application. Here, however, it was contended by the wife that Y, the younger of the two children, had “special needs”. No such claim was made in respect of the other child, X.

7. For his part, the husband disputed that Y has “special needs”.  At trial, he sought to challenge a diagnosis of Y having Autism Spectrum Disorder (but he did not do so by reference to any admissible expert evidence).  More relevant for present purposes however, the husband contended that no distinction should be drawn between Y’s “proper needs” and those of X within the meaning of the Assessment Act.  The orders sought in his Response in the proceedings below reflect that assertion.

8. In her affidavit of evidence-in-chief, quoted by his Honour (at [147] and [150]), the mother deposes:

   81.Typical of [Y’s] condition, [Y] will not complete or hand in assignments at school unless I know about them and ensure that he completes the assignment and [X] or I take them to school and hand them in for him. He is incapable of returning anyone’s belongings, money, notes etc. He simply forgets. I go through his school bag each day and have to constantly remind him about things he needs to remember to do or find. [Y] has left his IPAD in a retail shop, his iPod at a basketball station, his books at his grandmother’s home, his wallet on a shop counter, his school bag on the bus, his art folder on the bus, his clothes always at friends etc.

   …

   82.[Y] should be undergoing private counselling, social skills, physiotherapy, speech therapy and tutoring. He undertook these tasks up until 2011 and 2012, however the respondent will not financially assist me in this regard and I have not been able to afford for him to continue to undertake many of these tasks. He is in urgent need of such assistance. If such assistance is not provided shortly I am concerned that he may regress further.

   83.Additionally [Y] was attending specialised physiotherapy appointments on a fortnightly basis for his Juvenile Arthritis diagnosis (2011). This was at a cost to me of about $65/session. [Y] also required hospitalisation for steroid injections and there were many medical refund gaps payable by me. I have been advised by the specialist that the arthritis flair [sic] up could occur at any time again. The respondent does not reimburse me these fees.

   84.I currently need to spend about 30 minutes each day working with [Y] on physio activities. The physio “sets” a number of home based physio tasks and aids. I have enrolled [Y] into gym lessons and trampolining on doctor’s advice to assist in coordination and to help his wrist and assist in reducing weight gain which has resulted since his Arthritis onset. He would also benefit from swimming lessons used (sic) to have at a cost of $70 per month that I currently can’t afford.

9. In a comprehensive table annexed to the wife’s Financial Statement filed on 30 April 2013 she distinguishes, appropriately, between amounts that she presently spends and amounts which, she asserts, “… are reasonably required to live but can’t afford”.  The latter can plainly be seen to represent her detailed calculations of the children’s needs, including those in support of the depositions just quoted.

10. His Honour found:

    151.In my view, bearing in mind the fact that the Husband is not currently spending time with either of the children at all, the Wife has demonstrated the existence of a ground for departure due to the special needs of the child [Y] ...

    156.I am satisfied that a ground of departure has been made out because the children are being educated in the manner that was expected by their parents. (s 117(2((b)(ii)).

    …

    158.I am satisfied that it would be just and equitable in regard to the child [Y], the Wife and the Husband to make the departure orders sought. It is clear that the costs connected to [Y’s] special needs involve an amount of medical, physiotherapy and other costs which are difficult for the Wife to meet on her weekly income …

    (Emphases added)

11. Each of the emphases in the passages just referred to highlight, with respect, significant omissions in his Honour’s findings:

    ·His Honour makes no finding in respect of X’s needs;

    ·His Honour makes no finding in respect of the amount of Y’s needs;

    ·While reference is made in [158] to “costs connected” with “special needs”, neither the specific needs nor the specific findings consequent upon them (whether in respect of “medical, physiotherapy and other costs” or otherwise) is specified;

    ·No finding is made otherwise that a ground of departure is made out in respect of X or that it is just and equitable and otherwise proper to make an order with respect to him;

    ·An order is made that the same amount of child support be paid for each child.  There can be little doubt that a reading of his Honour’s reasons is plainly to the effect that there is a distinction between Y’s needs and X’s needs.

12. His Honour’s reference to “medical, physiotherapy and other costs” is not matched by any identical heading within the wife’s tabulated financial needs despite that table containing a number of headings.  Despite his Honour’s finding, the wife’s heading of, for example, “doctor appointments not covered by Medicare gap” attributes the same amount to each child.  The amount attributed to “counselling/therapy gap” is similarly identical.  Under the heading “Medical Expenses” the only difference between the needs of the two children is a claim for $10 per week for orthodontics for Y; something which bears no apparent relationship with Y’s asserted special needs to which the wife deposes.  Although $15 per week more is attributed to Y in respect of what the wife’s list calls, “physio, speech therapy, acupuncture, podiatry”, no finding links any such difference to Y’s special needs.

13. So, too, despite what is deposed to by the wife at [84] quoted above, her list of needs contains amounts identical for each child in respect of: “gymnastics/trampolining/parkour” and “gym membership” as well as “children’s swimming”.  Additionally, the same amount is attributed to each child in respect of “children’s golf lessons” and school sports (“football/rugby/hockey/oztag”).

14. In the absence of the findings referred to above, we do not accept that it can be said fairly that his Honour’s reasons contain an implicit finding that the wife’s listed needs totalling $11,004.07 per month (as deposed to by her in her April 2013 Financial Statement), are accepted in their entirety.  However, even if that finding is inferred, his Honour was bound to address an issue raised centrally by the manner in which the case was presented before him.  The husband, by his Further Amended Response, concedes (implicitly but axiomatically) that a ground of departure is made out in respect of each child.  Implicit and axiomatic within that concession, is a further concession that an order in the amount proposed by him is just and equitable and otherwise proper.

15. His Honour did not make the order proposed by the husband.  Rather, his Honour ordered an additional $1,000 per month and further additional payments in respect of medical insurance and school expenses.  In circumstances where the husband had effectively conceded that a departure order in a specified amount was just and equitable and otherwise proper, he (and others including this Court) is entitled to know what needs have been found over and above those met by his proposed payments and the reasons why the amount additional to his payment is just and equitable and otherwise proper.

16. In our respectful view, his Honour’s reasons do not provide the answer to those central questions and, as a result, the reasons fail to meet the two requirements referred to in Sun Alliance Insurance Ltd v Massoud, as quoted earlier in these reasons.

17. Appealable error is established.

The Capacity of Each Parent to Meet the Children’s Needs and Credit Findings

1. Ground 3 asserts that “The trial judge’s reasons do not address the capacity of each of the parties to meet the children’s reasonable needs”.  The challenge embraced by this ground is related to that in the following ground which asserts that his Honour “… inappropriately reasoned from [an adverse credit finding against the husband] that  he can discount the whole of the father’s evidence concerning his own reasonable expenses”.

2. His Honour found:

   160.The Husband sets out in his Financial Statement filed on 30^th April 2013 a total average weekly income before tax of $4,313.00, against which he claims weekly expenses of $4,170.00. This latter figure includes $48.00 to Medibank Private, which includes the children, yet the Husband does not consent to an order that he should continue to pay health and medical insurance for them after the end of 2013. He also refers to an actual payment of $638.00 per week by way of child support, which is higher than his current obligation under the order of 16^th May.

   161.It should be pointed out that it is just and equitable to require a father in the position of the Husband in this case to pay to keep the children covered by a health fund, especially in the light of the additional medical expenses that [Y] tends to require.

   162.In addition, the Husband claims $9.00 per week towards the registration of the … motor car which was written off in an accident on 23^rd February 2013 and $177.00 per week to WA Finance, in respect of a debt of $8142.00 that was paid out prior to the date he completed the Financial Statement on 29^th April 2013.

   163.The Husband claims other expenses amounting to $1,090.00 per week.

   164.In view of the unreliability of the material in the Husband’s Financial Statement, I am not prepared to accept that his average weekly expenses are what the husband says they are. He was not a witness of credit and was at times evasive in answering questions and apparently untruthful in cross-examination.

   165.I am satisfied that the Husband does have the capacity to pay the amount sought and that the orders sought are just and equitable.

3. Our earlier comments as to Y’s needs pertain to the finding at [161] as to the “additional” medical expenses that Y “tends to require”.

4. His Honour also found earlier in the reasons:

   49.Clearly, the information in the Husband’s Financial Statement does not give an accurate impression. The Husband does not own a motor car. The Husband also deposed in his affidavit sworn on 30^th April 2013 that he owned a motor vehicle valued at $150.00. This is clearly incorrect.

   (References omitted)

5. In addition to the issue referred to in those paragraphs and findings, the husband alleged that he continues to owe $17,000 as the balance of a $35,000 loan from his mother.  The loan had not been disclosed in the husband’s earlier Financial Statements. During questioning by then counsel for the wife, quoted by his Honour at [52] of the reasons, the husband was asked about documentary evidence of the alleged loan.  The husband replied that the loan contract would be with his mother as “Mum’s pretty pedantic about it”.  When questioned further, the husband conceded, in effect, that he could have communicated with his mother and obtained the relevant documents and was unable to give a reason as to why he had not done so.

6. His Honour held in respect of the alleged loan:

   53.I am not satisfied, on that evidence, that the Husband has proved a liability to his mother of $17,000.00.

   54.In the circumstances, the Husband’s Financial Statement is not a reliable document.

7. Counsel for the husband seeks to distinguish between the findings made by his Honour in the first and second sentences of [164] quoted above, asserting that while the former “appears to refer back to the findings” made at [49] and [53] above, the second “does not appear to have any firmer foundation elsewhere in the reasons for judgment”. 

8. We disagree.  The latter statement is based on the trial Judge’s observations of the husband in the witness box and the impression that his demeanour and the nature of his evidence in cross-examination left on his Honour.  Each of those matters is quintessentially within the province of the trial Judge.  It is true that the High Court has cautioned that “[j]udges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain” (Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472, 478-479 per Gaudron, Brennan and McHugh JJ).

9. Equally, however, the advantage enjoyed by the trial Judge over this Court should not be gainsaid as the High Court went on to recognise in the same passage as that just quoted: 

   However, this does not deny that in many cases a trial judge's observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings.

10. Leaving aside demeanour, a reading of the transcript of the husband’s cross-examination provides ample substance to his Honour’s finding that the husband was “at times evasive in answering questions”.  That, together with the findings made about the evidence of the husband earlier referred to, provides ample foundation for the finding made by his Honour that the husband “was not a witness of credit.”

11. Counsel for the husband contends in written submissions that:

    23.With respect to the learned trial Judge the fact that the husband did not have a documentary note of the loan from his mother and had neglected to update his financial statement to exclude a car valued at $150 is not a satisfactory basis upon which to find that the husband’s expenses are likely to be inaccurate.

12. We consider that this statement underplays the nature of the findings made against the husband and the concerns the trial Judge had about his evidence.  Further, credit findings about a party may provide the foundation for specific factual findings adverse to that party. 

13. The ground, as pleaded, challenges, in effect, the finding of credibility and what is said to impermissibly flow from that.  We are not persuaded of error in that respect. 

14. However, again, the true gravamen of the challenge emerging from counsel’s argument is as to the adequacy of his Honour’s reasons.  We consider there is merit in that challenge.  The central issue before his Honour was, relevantly, the extent to which part, if any, of the husband’s claimed expenses of $4,170 should be ignored in light of the crucial consideration that his obligation to support his two children, as one of their parents, “has priority over all commitments of the parent other than commitments necessary to enable [him] to support … himself ..” (the Assessment Act ss 3(1) and (2)(b)). That, in turn, required an analysis by his Honour of the claimed expenses of the husband and a judgment as to whether they were necessary in the relevant sense.

15. His Honour records at [160] claimed weekly expenses by the husband of $4,170 (against an income recorded as $4,313).  His Honour found that the former figure includes $48 in private health insurance premiums and $638 in child support - which, his Honour finds, is “higher than  his current obligation” of $600 per week. It will be recalled that the latter figure is the child support that the husband said he would pay by way of a departure order. In addition, his Honour rejects, at [162], expenditure totalling $186 in respect of the motor vehicle which, his Honour found, his Financial Statement falsely deposed he retained. 

1. The net product of those findings is that there remained approximately $3,300 in expenses that needed to be the subject of the analysis which the statutory priority of child support earlier referred to demands.  However, having made the findings at [160] and [162], his Honour merely records, at [163], that the husband “claims other expenses” of $1,090 per week. 

2. Nothing within his Honour’s reasons makes clear what expenses are embraced by the expression “other expenses”.  The derivation of that figure is not explained in the reasons, nor its constituent figures.  Further, his Honour merely records the husband’s claim; no finding is made in respect of that figure.  Taken together, those matters become all the more problematical because, in the following paragraph ([164]), his Honour’s finding is that he rejects in its entirety the husband’s “average weekly expenses”.  No finding quantifies that expression.  No finding specifies what those expenses have been found to be.  Nor is the relationship between what is meant by that expression and the earlier expressed “other expenses” explained. 

3. Again, those findings were all the more important because the inquiry required of his Honour on the facts of this case was whether the husband had, by reference to his necessary commitments, a capacity to meet a child support amount beyond that which he admitted.

4. In respect of the wife, his Honour found, when considering the application for property settlement:

   74.The Wife obtained work in March 2011 as a trainee with a firm called [O], on the NSW Central Coast. She deposed in her affidavit that her starting salary for the first twelve months was $40,000.00 and that she currently earns $55,000.00 per year, excluding superannuation.

   And further:

   98.Each party is in employment. The Wife’s earning capacity appears to be affected by her need to remain with an employer like her current employer who can provide her with flexible working hours so that she may attend to the needs of the children, including the younger child, [Y], who has been diagnosed with Autistic Spectrum Disorder.

5. When dealing specifically with the application for child support departure, his Honour found:

   151.In my view, bearing in mind the fact that the Husband is not currently spending time with either of the children at all, the Wife has demonstrated the existence of a ground for departure due to the special needs of the child Y (s.117(2)(b)(ia)). The commitment of her time, unaided by the Husband, also impacts on her ability to earn a greater income, because she needs to remain in a job that allows her the flexibility to devote more than the usual amount of time to her son.

6. The Assessment Act requires the court to determine each liable parent’s capacity to meet the necessary costs of the child or children in question.  What follows is that there must be a comparison of each of the parents’ ability to meet the children’s costs; the relevant inquiry does not begin and end with a finding that one parent can meet the relevant needs.  This Court said, for example, in Jacks & Parker (2011) 45 Fam LR 52, [162]):

   Nor was it sufficient for his Honour to find that the wife had the capacity to meet the expenses she was ultimately ordered to meet.  Even if that finding was open, his Honour was required to carry out a comparison of the positions of the parties to determine in what proportions they should be responsible for the support of Z.  His failure to undertake that comparison, save in the broadest of terms, constitutes further appellable error … . 

7. In our view, his Honour’s reasons are inadequate to explain how he engaged in the analysis demanded by the statutory requirements.  Specifically, the broad credit finding earlier referred cannot be seen as adequate in that respect.

8. Error is thus established.

Conclusion

1. Error is established in respect of each of the orders for settlement of property and child support departure.  The appeal against each should be allowed. The orders made by Judge Scarlett should be set aside. 

2. As will be apparent from what we have said, a number of factual controversies attend the consideration of each application that was before his Honour.  A significant amount of time has elapsed since the hearing.  This Court does not have evidence of the parties’ current financial and other circumstances.  The parties do not provide this Court with agreed circumstances by which we could re-exercise the discretion by reference to evidence of the facts existing as at the date of the appeal (See Allesch v Maunz (2000) 203 CLR 172).

3. As a consequence, the applications should be remitted for re-hearing by the Federal Circuit Court by a Judge other than Judge Scarlett.

Costs of the Appeal

1. In order to avoid cost and inconvenience to the parties, we sought submissions in respect of costs in respect of alternative outcomes for this appeal.

2. In the event that the appeal was successful the husband sought an order for costs, but if no order for costs was made then he sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), for both the appeal and the rehearing. For the wife’s part she opposed an order for costs if the appeal was successful, and sought costs certificates for the appeal and the rehearing.

3. Although the husband has been wholly successful in the appeal the wife’s assets and income are very modest.  Moreover, there is no suggestion that his Honour was led into error by the wife, and thus the circumstances are such that each party should bear their own costs.

4. The appeal has succeeded on questions of law and we are of the view that it is appropriate for costs certificates to issue to both parties in respect of the appeal and the rehearing.

I certify that the preceding One Hundred and Nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Murphy JJ) delivered on 26 June 2015.

Associate:

Date:  26 June 2015