Baranski & Baranski

[2012] FamCAFC 18

FAMILY COURT OF AUSTRALIA

BARANSKI & BARANSKI AND ANOR [2012] FamCAFC 18

FAMILY LAW – APPEAL – Procedural fairness – Not established that the learned Federal Magistrate erred in relation to the use he made of his own observations of the wife, nor that his Honour had an obligation to inform the parties prior to delivery of judgment – Where the Court found that the learned Federal Magistrate’s conclusions with respect to the wife’s “emotional needs” were based on a number of matters other than his own observations of her, all of which had a substantial and uncontroversial factual underpinning

FAMILY LAW – APPEAL – CHILDREN – Family Violence – Not established that his Honour’s consideration of this issue was flawed in fact, or in logic – Where the undisturbed findings of fact made by the learned Federal Magistrate amply supported the conclusion he reached in relation to this issue

FAMILY LAW – APPEAL – Procedural fairness – Whether the learned Federal Magistrate impermissibly relied upon extrinsic material and failed to accord the parties procedural fairness – Where the extrinsic material relied upon was an expert’s report in relation to the impact of domestic violence upon children which was “before” the English Court of Appeal, and approved of by that Court – Discussion of the authorities with respect to the use of extrinsic material by a judicial officer and the limits of judicial notice – Where the course adopted by his Honour with respect to the report had the potential to lead to appealable error – Not established that the learned Federal Magistrate relied upon anything recorded in the English Court of Appeal decision by way of evidence or judicial notice

FAMILY LAW – APPEAL – Point of law – Not established that his Honour failed to observe the provisions of s 144 of the Evidence Act

FAMILY LAW – APPEAL ─ Application to adduce fresh evidence ─ Where admitting the further evidence would not demonstrate that the order under appeal was erroneous or that the findings made by his Honour would be rendered problematic or erroneous – Where there was no explanation proffered by the husband for the failure to have adduced the evidence at trial

FAMILY LAW – APPEAL ─ PROPERTY SETTLEMENT ─ Contributions ─ Where the Court was not persuaded that the learned Federal Magistrate’s conclusion with respect to the parties’ contributions was so generous to the wife as to exceed the bounds of a reasonable exercise of discretion ─ Where it was not established that his Honour excessively “eroded” the significance of the husband’s initial contributions ─ Where the Court was not persuaded that the learned Federal Magistrate erred in his approach to the wife’s claim for a “Kennon type adjustment” ─ Where to the extent that it has been challenged, it has not been demonstrated that the adjustment made by the learned Federal Magistrate exceeded the reasonable ambit of his Honour’s discretion

Family Law Act 1975 (Cth) ss 4, 75, 75(2), 79, 60B, 60CA, 60CC, 60CG, 93A, Part VII
Evidence Act 1995 (Cth) s 144

A & A (1998) FLC 92-800
Allesch v Maunz (2000) 203 CLR 172
Angaston & District Hospital v Thamm (1987) 47 SASR 177
B & B (1993) FLC 92-357
CDJ v VAJ (1998) 197 CLR 172
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304
Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11
Kennon & Kennon (1997) FLC 92-757; 139 FLR 118
Kucera & Kucera [2009] FMCAfam 1032
Lamereaux v Noirot (2008) FLC 93-364
M & M (1988) 166 CLR 69; FLC 91-979
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mallet v Mallet (1984) 156 CLR 605
Maluka and Maluka (2011) FLC 93-464
MRR v GR (2010) 240 CLR 461
Norbis & Norbis (1986) 161 CLR 513
Pierce & Pierce (1999) FLC 92-844
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588
SCVG & KLD [2011] FamCAFC 100
Re L (Contact: Domestic Violence) [2000] 2 FLR 334
Wills v Australian Broadcasting Corporation (2009) 253 ALR 228
Zantiotis & Zantiotis (1993) FLC 92-367

APPELLANT: Mr Baranski

FIRST RESPONDENT: Ms S Baranski

SECOND RESPONDENT: Mrs V Baranski

INDEPENDENT CHILDREN’S LAWYER: Robert Wayne Winter

FILE NUMBER: ADC 2182 of 2008

APPEAL NUMBER: SOA 74 of 2010

DATE DELIVERED: 10 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Adelaide

JUDGMENT OF: Bryant CJ, Coleman & Ainslie-Wallace JJ

HEARING DATE: 25 July 2011

LOWER COURT JURISDICTION: Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE: 1 September 2010

LOWER COURT MNC: [2010] FMCAfam 918

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Shaw QC with Ms West

SOLICITOR FOR THE APPELLANT: Fittock Barristers & Solicitors

COUNSEL FOR THE FIRST RESPONDENT: Ms Pyke QC

SOLICITOR FOR THE FIRST 

RESPONDENT:

Ann Josephson Lawyers

COUNSEL FOR THE SECOND 

RESPONDENT:

SOLICITOR FOR THE SECOND

RESPONDENT:

Jo-Anne N Milen & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That the appeal be dismissed.

2. That the application for leave to adduce further evidence in the appeal be dismissed.

3. That written submissions in support of any application for costs be filed and served within 28 days.

4. That written submissions in opposition to any application for costs be filed and served within 56 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baranski & Baranski and Anor 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 ADELAIDE

Appeal Number: SOA 74 of 2010

File Number: ADC 2182 of 2008

Mr Baranski

Appellant

And

Ms S Baranski

First Respondent

And

Mrs V Baranski

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Further Amended Notice of Appeal, filed in Court with the consent of the other parties to the appeal and the ICL, Mr Baranski (“the husband”) appealed against parenting and financial orders made by Federal Magistrate Brown in proceedings between the husband, Ms S Baranski (“the wife”) and Mrs V Baranski (“the paternal grandmother”) on 1 September 2010.

2. The substance of the parenting orders made by the learned Federal Magistrate, which the husband challenged, was the limiting of any contact between the husband and the children of himself and the wife to the provision of gifts on the children’s birthdays and at Christmas, together with censored letters or cards accompanying such gifts.

3. The husband sought that the Federal Magistrate’s orders be set aside and his application to spend time with the children be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Brown. The mother and the ICL resisted the husband’s appeal and sought to maintain the parenting orders made by the learned Federal Magistrate. The paternal grandmother was represented at the hearing of the appeal, but her Counsel made no submissions either supporting or resisting the husband’s appeal. There is no issue that if the husband’s appeal against the parenting orders made by the learned Federal Magistrate is successful, those proceedings would need to be remitted for rehearing.

4. The financial orders made by the learned Federal Magistrate which the husband challenged provided for a division of the non-superannuation assets of the parties as determined by him in shares of 70 per cent to the wife and 30 per cent to the husband. In lieu of that division, the husband sought that the non-superannuation assets be divided as to 55 per cent to him and 45 per cent to the wife. The husband did not challenge the Federal Magistrate’s orders with respect to the superannuation interests of the parties. The wife resisted the husband’s appeal and sought to maintain the property settlement orders made by the learned Federal Magistrate.

5. It was common ground that if appellate intervention were enlivened with respect to the orders for settlement of property, but not with respect to the parenting orders made by the learned Federal Magistrate, this Court could and should re-exercise his Honour’s discretion. Neither party sought to adduce further evidence, pursuant to Allesch v Maunz (2000) 203 CLR 172, in the event of this Court re-exercising the discretion of the learned Federal Magistrate with respect to settlement of property.

6. By Application in an Appeal filed 8 July 2011, the husband sought to adduce further evidence pursuant to s 93A of the Family Law Act 1975 (Cth) (“the Act”). The further evidence was contained in affidavits sworn by the husband, his mother and a psychologist, Mr S.

7. The wife resisted the husband’s further evidence application, but filed an affidavit upon which she sought to rely in the event that the Court was minded to admit the husband’s further evidence. Senior Counsel for the husband invited the Court to receive the wife’s affidavit with those of the husband for the purpose of determining the further evidence application.

8. The ICL also resisted the husband’s application to adduce further evidence.

9. Although the husband’s application to adduce further evidence was agitated before the grounds appearing in his Further Amended Notice of Appeal, which course we do not criticise, we perceive that our determination of both the Further Amended Notice of Appeal and the application to adduce further evidence will be better facilitated by first considering the Further Amended Notice of Appeal, and then, if it be necessary to do so, the further evidence application or applications. As is not in doubt, the application to adduce further evidence would only be material if no ground articulated in the Further Amended Notice of Appeal were established.

BACKGROUND

1. As our consideration of the various challenges to the judgment of the learned Federal Magistrate will require extensive reference to his Reasons for Judgment, we record at this stage only the matters of background which are necessary to provide the context for our consideration of the husband’s Further Amended Notice of Appeal, and application to adduce further evidence.

2. The wife was born in November 1965 and is accordingly 45 years of age.

3. The wife has two children from an earlier relationship. Those children were aged 18 and 16 years at the date of judgment of the learned Federal Magistrate.

4. The husband was born in October 1970. He is accordingly 40 years of age.

5. The parties commenced cohabitation in 2004. Their cohabitation was volatile. The wife was found by the learned Federal Magistrate to have been the victim of family violence at the hands of the husband on a number of occasions during their cohabitation. None of the findings of fact made in relation to those events has been challenged before this Court.

6. The parties’ relationship ended in violence on 13 May 2008.

7. There are two children of the parties’ relationship, Y and X, who were both born in November 2006.

8. Subsequent to the parties’ separation, the children primarily lived with the wife. Between the date of the parties’ separation and the hearing in the Federal Magistrates Court, the husband spent time with the twins on a supervised basis.

9. On 27 May 2008 a domestic violence order was made against the husband by a Magistrates Court.

10. Subsequent to May 2009, the children spent time with the paternal grandmother pursuant to arrangements made in that regard by the wife and the paternal grandmother.

11. On 21 July 2009, the husband pleaded guilty to a breach of the apprehended violence order made against him in the Magistrates Court the previous year. He was sentenced to imprisonment, and incarcerated on 4 February 2010.

12. The learned Federal Magistrate’s orders of 1 September 2010 provided for ongoing contact between the paternal grandmother and the children. No aspect of those orders has been challenged before this Court.

13. The husband was released on home detention on 3 September 2010, and paroled on 3 November 2011. The evidence before the learned Federal Magistrate was that the husband would be formally eligible for parole on 3 September 2010.

14. Other than for the purpose of preparing family reports, the father has not had face-to-face contact with the children since 2009.

15. The wife’s case before the Federal Magistrates Court was that, for a variety of reasons, she wished to relocate the residence of the children from Adelaide, where the husband lived, to Geelong in the State of Victoria.

16. It is common ground that, for whatever reason, the wife has not relocated the children’s residence to Geelong. The wife not having relocated the children’s residence has the potential to assume significance in the context of the husband’s s 93A application, and her resistance of it.

17. The learned Federal Magistrate found that the non-superannuation assets of the parties had a net value of $238,051.45, and that their superannuation entitlements total $57,248.33. Those findings are not controversial for present purposes.

18. The learned Federal Magistrate concluded that the parties should share their superannuation interests as to 55 per cent to the husband and 45 per cent to the wife. No part of that determination assumes significance for present purposes.

19. His Honour concluded that the contributions of the parties with respect to their non-superannuation assets favoured the husband by 55 per cent to the wife’s 45 per cent.

20. The learned Federal Magistrate made a “Kennon type adjustment” (see Kennon & Kennon (1997) FLC 92-757; 139 FLR 118) in favour of the wife which, together with her post separation contributions, amounted to 10 per cent. Overall, the wife’s contributions were assessed at 55 per cent and those of the husband at 45 per cent.

21. Pursuant to s 75(2) of the Act, the wife’s entitlement was adjusted by 15 per cent, thereby producing a division of the non-superannuation assets of the parties as to 70 per cent to the wife and as to 30 per cent to the husband.

22. The husband challenged the learned Federal Magistrate’s conclusions with respect to the parties’ contributions and the “Kennon type adjustment” made by him, but did not challenge the s 75(2) adjustment determined by him.

The Further Amended Notice of Appeal

1. As will be seen, unsurprisingly, having regard to the learned Federal Magistrate’s unchallenged finding with respect to the credibility of the husband and wife [par 70], and unchallenged findings of fact, particularly with respect to family violence, as Senior Counsel for the husband’s oral submissions confirm, there are really two major issues in relation to parenting issues for determination by this Court. The first is whether the learned Federal Magistrate’s reliance upon the decision of the English Court of Appeal in Re L (Contact: Domestic Violence) [2000] 2 FLR 334 (“Re L”) was erroneous. The second is whether, the wife having not relocated the wife’s residence to Geelong, the learned Federal Magistrate’s ultimate conclusion as to the children’s best interests, both with respect to the practicality of the husband having contact with the children and the extent of the wife’s fear of the husband and its impact upon her parenting of the children of his having contact with them, are sustainable. If any of these challenges is made out, appellate intervention would be enlivened.

2. However, as Senior Counsel for the husband did not abandon any of the grounds articulated in his Further Amended Notice of Appeal, for which we do not criticise her, it is necessary to consider each of those challenges.

3. It is convenient to address the husband’s major, and ancillary challenges to the learned Federal Magistrate’s judgment in the sequence in which they were articulated in his Further Amended Notice of Appeal.

4. Grounds 1(a) and 1(b) of the husband’s Further Notice of Appeal provided:

   1.That the learned Honourable Federal Magistrate erred in his approach to the issue of the appellant spending time with the children and in particular the learned Honourable Federal Magistrate:-

   a.Failed to give any or adequate weight to the objects set out in section 60B(1) of the Family Law Act 1975 (‘the Act’).

   b.Failed to give adequate weight to the primary consideration that the children have a meaningful relationship with both parents under section 60CC(2) of the Act.

5. In the course of comprehensive written submissions in support of these complaints, Senior Counsel for the husband referred to a number of aspects of the Reasons for Judgment of the learned Federal Magistrate, and the evidence before him. A limited number of findings of fact made by the learned Federal Magistrate were challenged, on the basis that such findings were “contrary to the expert evidence and not supported by any other reliable evidence.” Whilst not challenged, a number of findings made by his Honour were asserted to have been afforded insufficient weight.

6. As is readily apparent from their terms, the submissions in support of them, and the submissions made in support of other challenges agitated on behalf of the husband, these grounds really only summarise the conclusions this Court would effectively reach if other challenges agitated on behalf of the husband were made out.

7. We have identified those major challenges above. In reality, unless the challenge to the learned Federal Magistrate’s reliance upon the decision in Re L finds favour, the challenges articulated in ground 1 could not succeed. As the submissions in support of these challenges make clear, the learned Federal Magistrate made findings of fact which, if undisturbed, provided ample foundation for his conclusion that it would be contrary to the children’s best interests for them to spend time with the husband. The various findings of fact to which Senior Counsel for the husband referred in her Summary of Argument, most of which were not challenged, reinforce such a conclusion. If either of these complaints is made out, that will be as a result of success with other challenges.

Ground 1(c)

1. Ground 1(c) of the husband’s Further Amended Notice of Appeal provided:

   1.That the learned Honourable Federal Magistrate erred in his approach to the issue of the appellant spending time with the children and in particular the learned Honourable Federal Magistrate:-

   …

   c.Failed to consider the children’s best interests as the paramount consideration under section 60CA of the Act.

2. The crux of this challenge was encapsulated in the submission that:

   31.… Mr [B] [the single expert who prepared the Family Report in the proceedings] did not countenance the prospect of the children spending no time with their father and the impact of such an arrangement upon the children, his evidence under cross examination was primarily concerned with the logistical difficulties and the father’s commitment to adhering to such a regime nor did any of the Counsel pursue a contrary position.

   We cannot accept the proposition that Mr B did not “countenance the prospect of the children spending no time with the father”. That “prospect” was a central theme of Mr B’s reports, and his oral evidence. Albeit in the context of his Honour’s assertedly erroneous reliance upon Re L, the evidence, including that of Mr B, in relation to the impact on the children of not spending time with the father was extensively considered. The fate of this part of the husband’s complaint will be determined by our consideration of the broader major challenge advanced by the husband’s Senior Counsel.

3. The “logistical difficulties” to which Senior Counsel for the husband referred assume significance in the context of the husband’s further evidence application. As noted earlier, although the reasons why the mother has not relocated the children’s residence to Geelong are probably controversial, the fact that she has not relocated their residence, and may not, although not restrained from doing so, is not controversial.

1. As is not in doubt, the issue before this Court is whether the “logistical difficulties” referred to by the single expert and author of the Family Report, Mr B, and the learned Federal Magistrate’s conclusions with respect to them, were so pivotal as to render his Honour’s ultimate conclusion erroneous in the light of the fact that the residence of the children has not been relocated from Adelaide to Geelong, and may not be. We will consider that topic in the context in which it was more extensively argued.

2. It is also preferable to deal in that context with the broad contention implicit in this challenge that it was “primarily”, or only, suggested by Mr B, that face-to-face contact between the father and the children would be contrary to their best interests because of the “logistical difficulties” which he identified and considered.

Grounds 1(d) and 1(f)

1. Grounds 1(d) and 1(f) of the husband’s Further Amended Notice of Appeal provided:

   1.That the learned Honourable Federal Magistrate erred in his approach to the issue of the appellant spending time with the children and in particular the learned Honourable Federal Magistrate:-

   …

   d.Wrongly took into account or placed too much weight on the reaction of the wife to the husband in Court.

   …

   f.Wrongly gave disproportionate weight to the wife’s emotional needs as compared to the interests of the children.

2. The submissions in support of these challenges were concisely articulated, and we can do no better than reproduce them. They asserted that:

   32.His Honour appears to have placed much emphasis on the impact on the wife of the domestic violence. He appears to have been affected by his own observations of the wife’s behaviour and demeanour in the Court room. He also took into account Mr [B’s] evidence […] on balance that the wife needed an opportunity to recover (in Geelong) […].

   33.However, it is submitted that it was open to the wife to seek support in order to better parent the children. She has stopped counselling but there was no explanation given as to why […].

   34.The mother’s role as primary carer was not challenged however the records from independent sources in relation to previous domestic violence relationships and alcohol abuse remained relevant to the Court’s consideration of the long term interests of the children in so far as stability was concerned. Whereas the husband’s extended family provided a model of stable relationships (per the grandmother), there was little evidence of such extended support available to the wife from her wider family.

3. The submissions of Counsel for the ICL engaged effectively with those submissions, and asserted:

   68.… that the learned Federal magistrate was entitled to take into account the wife’s demeanour in Court in this regard. His Honour made findings that the violence perpetrated upon the wife by the husband was extremely serious and traumatising. His Honour accepted the evidence of the wife that she continues to experience significant physical, emotional and psychological trauma as a consequence of the domestic violence. His Honour attached an appropriate weight to the same.

   69.The observations made by the learned Federal Magistrate as to the wife’s reaction to the physical presence of this [sic] husband in Court was consistent with the evidence given by the wife as to the ongoing impact of the trauma she experienced. The wife’s reaction was appropriately considered in the context of the wife’s evidence. It is submitted, given the seriousness and extent of the violence perpetrated upon the wife by the husband, that His Honour did give same appropriate weight.

   70.The criticism as to the wife’s capacity to undergo counselling and failure to access such support fails to take into account the responsibility of the husband to acknowledge his own obligations in that regard. Further, the husband’s position is consistent with finding [sic] made by the learned Federal Magistrate that the husband attempts to shift responsibility for his own behaviour onto the wife. There is no challenge to the wife undertaking the role as primary caregiver of the children.

4. Early in his Reasons for Judgment, the learned Federal Magistrate recorded:

   49.The wife, husband, [the paternal grandmother] and Mr [B] were the only witnesses who gave evidence in the case.  Arrangements were made, with the correctional authorities, for [the husband] to attend court in person, whilst he remained in custody.  When [the husband] was giving his evidence, [the wife] observed the proceedings via a video conference facility from another location.  The same procedure was followed, in reverse, when [the wife] gave her evidence.

   50.The intention of this practice was to ensure that the parties did not come into direct contact with one another, whilst their competing applications were before the court.  Regrettably, on one occasion, the parties were present in court at the same time.  This occurred in the presence of the parties’ respective lawyers, counsel for the independent children’s lawyer, court officers and myself.  This is my recollection of what happened.

   51.The parties did not communicate directly with one another and were separated by the width of the court room.  [The husband] was in the custody of correctional services staff at the time.  There can be no doubting the strength of [the wife’s] emotional reaction to coming upon [the husband] unexpectedly.  She was fearful and apprehensive and his appearance caused her to visibly shake.  I do not think that these reactions were either feigned or exaggerated in any way.  I will return to the significance of this evidence in due course.

5. Sensibly, there has been no suggestion that the observations recorded by the learned Federal Magistrate in any of those paragraphs were not open to him, or that the inferences he drew from them were not also reasonably open. They were matters to which his Honour was entitled, and did have regard. They were not the only matters to which he had regard.

6. His Honour also recorded:

   56.[The husband] did not deny that he had been violent towards [the wife] in the past.  How could he deny such behaviour, when he has criminal convictions in respect of it and the wife is able to provide physical evidence of the extent of her injuries? [The husband] also accepted that his behaviour was wrong and he must be held accountable for it personally.  In court, he publically apologised to [the wife] for his conduct. 

   57.However, my impression was that he was not able to acknowledge the full extent of his violence and the consequences of it for the wife and [X] and [Y].  For example the wife’s narrative of what happened to her on 6 March 2009 was more complete and coherent than that of the husband, who denied some elements of the assault, which were part of [the wife’s] account.

   58.[The husband] had been drinking at the time (as had [the wife]) and it may be that his memory is impaired.  However, I think it more likely that he was attempting to reduce the gravity of his conduct or perhaps was in a state of denial about it.  This was also my impression in respect of other accounts, provided by him, of earlier episodes of violence between the parties.

   59.In addition, it seemed to me that, at times, [the husband] was attempting to shift responsibility for his behaviour to [the wife], blaming her labile temperament or the parties’ mutual consumption of alcohol as being the triggers which caused violence to erupt between the parties.  I am concerned that this indicates a degree of rationalisation, on the husband’s part, of his behaviour. 

   60.These matters are relevant, because in my view, I am required to consider the extent to which [the husband] is able to acknowledge his behaviour and accept responsibility for his violence.  I am not altogether sure how genuinely regretful he is for his behaviour.  In this regard, it was only at a very late stage that [the husband] abandoned his attempt to restrain [the wife] and the children permanently in South Australia. (footnotes omitted)

7. In her affidavit material, the wife’s allegations that she was fearful of the husband were articulated:

   71.I strongly oppose the husband spending any time with the children, even if it is supervised. The husband has not only severely assaulted me on numerous occasions but he has also carried out these devastating assaults in front of both [Y] and [X] and my son [Z]. He obviously has no care to the ramifications this would cause to the children and the emotional damage that is inflicted upon them.

   72.I will never ever feel safe while the husband is anywhere in the vicinity of me. I do not trust that he will not try to kill me in the future.

8. To understand the wife’s fear of the husband in context, it is useful to set out a number of other paragraphs of the wife’s affidavit in which she recorded her account of violent incidents perpetrated by the husband:

   4.Within a couple of nights of meeting the husband we had an argument. The husband starting [sic] hitting the walls punching several holes, and it is my recall that he broke or hurt his hand. I blamed myself for making him angry and went back the next day to apologise.

   …

   6.There were many other incidents of violence and anger including when the husband punched me in the face giving me a black eye. I did not report it or seek medical attention. On another occasion the husband pushed me out of his moving work utility. A passing motorist called the Police who attended. I was hysterical and in pain but the Police held me in the cells for four (4) hours before letting me go home. During the time the husband went home to care for [T] and [Z]. I sought medical attention the next day for my badly grazed leg. I still have the scarring from this incident.

   …

   9.         The husband’s violence continued in Adelaide. In 2005 we went to the Clipsal 500 where the husband’s firm had a corporate tent. The husband became angry and was hitting me with fist [sic] over my head, face and body. I called the Police and he was charged. I was badly bruised and cut on my head. …

   …

   15.In September 2007 the husband assaulted me by attacking me with his hands and fists and verbally abusing me. I called the Police and they took the husband away and told him he was not to return to the house for a week and told me I had to leave the house. The husband was charged with assault of me but I later had the charges withdrawn.

   …

   17.We reconciled in February 2008 after the husband agreed to go to counselling about his anger and violence.

   18.However the husband’s threats, violence and domineering manner continued. The husband would explode at anytime and I felt fearful. I would always hide my bag which contained my phone in case there was a problem, so I could ring for help.

   19.On 13 May 2008 there was an argument and the husband had laid me on my back on the kitchen table and was screaming in my face. My bag on this day was hidden in [X’]s bedroom and when I could I went and got my phone and called the Police for assistance. I then left the room and remember telling the husband that the Police were on the way. I then saw the husband running at me and recall backing away into [X’s] bedroom. I woke up on the front porch. My left eye would not open and I was covered in blood. …

   …

   48.[Mr M] and the girl left at around 6pm and the husband and I went inside. As we went inside I recall saying something. I do not recall what I said but there was no animosity between the husband and me and so I do not believe I said anything contentious. However, after I said it the husband then hit me hard over the head causing me to fall to the floor. I asked the husband why we couldn’t both sit down and talk about things but he kept repeating “no, no, no” and he hit me again over the head. He then started kicking and punching me while I was on the floor. At one stage I remember him holding me upside down and banging my head on the floor and the bench.

   49.My son [Z] aged 15 was present and was yelling at the husband and trying to intervene and pull him away from me. Both the children [X] and [Y] were present and witnessing this violence. They were crying and screaming and both were next to [Z].

   50.I believe I lost consciousness as I do not recall the husband stopping the beating. My next memory was hearing someone telling me the ambulance was coming. The ambulance officers said I was in and out of consciousness. I could not see and I was in agony.

   …

   52.I was taken to hospital by ambulance for treatment for my wounds. I had numerous stitches for 2 separate lacerations to my head. I received a scan for the many bruises on my body. The Police took photographs at the house of the blood and my injuries and they removed a frypan which had been used in the attack by the husband upon me. The handle was badly bent.

   53.I was released from hospital the next day. I could feel my ribs moving and was sure they were broken so I saw my doctor on 10 March and after scans it was confirmed that 2 ribs were broken and a further scan confirmed that a third rib was broken and my lungs were bruised. …

   54.For around three months (3) I had difficulty walking, and was in great pain all over my body. Both my knees were badly swollen and my arms and legs covered in bruises. I had two black eyes and grazes to my face and the inside of my mouth was cut. …

   We have not been referred to any cross-examination of the wife before the learned Federal Magistrate in which those assertions were contested. Nor has it been established that there was any reason why his Honour could not accept the allegations made by the wife in those paragraphs

9. Significantly, the learned Federal Magistrate also recorded:

   64.Neither party was a particularly reliable historian, in the sense that neither was able to provide a clear narrative of what precisely occurred in their troubled relationship over its course of five years or so.  From both parties’ points of view the various fights, frequently involving intervention from the police, have blurred into one another.  The wife allocated dates for assaults which are not corroborated by extraneous sources such as police records.

   65.In my view, the evidence is clear that the parties’ relationship was one marked by endemic violence.  Their story together is a tragic one marked by frequent fighting followed by separation and then reconciliation.  Neither of them was able to find a way to break this cycle of recurring and destructive violence between them. 

   66.Tellingly, the final act of violence which occurred between them was when they had voluntarily met one another, in contravention of a domestic violence restraining order, to discuss arrangements for the children and I suspect to explore the prospect of reconciliation yet again.

   None of those findings of fact has been challenged before this Court.

10. Nor has his Honour’s conclusion that:

    70.Overall, I found [the wife] to be a more credible witness than [the husband].  As such, in my assessment, her account of what occurred during the parties’ relationship is likely to be the more reliable one, notwithstanding that she is not always accurate in respect of her chronology.

11. His Honour reiterated:

    72.As I have already indicated, I had some direct experience of seeing [the wife’s] emotional reaction to [the husband], during the course of the proceedings.  She was sitting behind her counsel, in court, at the time.  [The husband] was handcuffed and in the custody of correctional services officers, when he was brought through a secure door into the witness box.  The two parties were separated by a crowded court room.  Nonetheless, [the wife] was visibly terrified.  The only rational reason as to why [the wife] was so afraid was because of what [the husband] had done to her in the past.

    The accuracy of his Honour’s recall has not been questioned. Read in the context his reasons provided, the learned Federal Magistrate’s conclusion was not unreasonable.

12. Lest it be thought that he was unduly sympathetic to, or overly influenced by the evidence or demeanour of the wife, the learned Federal Magistrate also recorded:

    73.I do not think that [the husband] is an intrinsically evil person.  I do not doubt that he loves [X] and [Y].  I also accept that he has attended some forms of counselling in the past in respect of his past behaviour and is in many ways a hard working and productive member of society.  These are factors which indicate some positive motivation on his part.

    74.However, I am concerned that he does not fully appreciate the gravity of what he has done and the long term consequences of it for [the wife] and, given that she is their primary carer, vicariously for [X] and [Y].  I am also concerned that he has not in the past been fully committed to changing his behaviour thorough [sic] some course of therapy or counselling.  Although he admitted wrong doing, I did not find his acknowledgements of his wrong doing particularly compelling. 

    75.Clearly, given his current position and his desire to maintain a relationship with [X] and [Y], [the husband] has no viable alternative but to acknowledge his past culpability.  He did so many times during the course of the hearing. 

    76.However, my impression, sadly, is that he did so without either conviction or insight but only because he felt that his circumstances dictated that he had no alternative.  At a visceral level, he blames the wife for his current predicament.

    Sensibly, none of those findings of fact has been challenged.

13. Later in his Reasons, after recording his findings with respect to them in considerable detail, the learned Federal Magistrate said:

    292.In these circumstances, Mr [B] could see some merit in allowing the wife a window of time to enable her to try and rebuild her life and put events behind her, in Victoria, without any anxiety about either her or the children coming into contact with the husband. 

    293.Mr [B] went so far as to say that he considered [the wife] “definitely needed [such a] hiatus.” …

    Although the undisputed further evidence was submitted to render them erroneous, it has, sensibly, not been suggested that any of those findings of fact was not reasonably open to his Honour on the evidence before him.

14. Later, in the course of considering “The primary considerations”, under the heading “Determining [X] and [Y’s] best interests – section 60CC”, the learned Federal Magistrate reiterated that:

    485.I consider it appropriate that the wife have an extended period of time, during which she may recover her emotional resilience and self esteem, without any concern that the husband will become a factor in her life again.  Mr [B] favoured such an outcome.

15. Largely for the reasons submitted by Counsel for the ICL, we cannot accept that the learned Federal Magistrate gave excessive weight to the evidence of the wife. Nor are we persuaded that the learned Federal Magistrate impermissibly relied upon “his own observations of the wife’s own behaviour and demeanour in the Court room”.

16. To the extent that it was asserted in oral submissions that the learned Federal Magistrate had failed to inform the parties prior to the delivery of his judgment that he would, or was likely to rely upon the wife’s demeanour in the way he ultimately did, we do not accept that his Honour had any obligation to do so in the circumstances of this case.

17. Whilst the learned Federal Magistrate’s observations of the wife’s demeanour included observations made whilst she was “outside the witness box”, they clearly also included observations made whilst the wife was in the witness box. His Honour thus “enjoyed” the “true advantages in fact-finding” which the law has long recognised, and which Kirby J explained in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 at 619.

1. A decision of the Court of Appeal of New South Wales, Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, provides a useful summary of the authorities in relation to this issue. In that case, Giles JA said:

   [2] There can be denial of procedural fairness if a judge materially uses in decision-making observations of a witness outside the witness box. There is no dogmatic rule; in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 Clarke JA, with whom Hope AJA agreed, said at 323 that it was “a flexible one based on considerations of fairness and justice”. His Honour cited from the judgment of King CJ in Angaston & District Hospital v Thamm (1987) 47 SASR 177 at 178–9 a passage also cited by Mason P, Heydon JA and Clarke AJA agreeing, in Kassem v Crossley [2004] NSWCA 276 at [15]—

   The principle of law which was expressed in Minagall v Ayres and which was accepted by the judges who constituted the court in Jobst v Inglis is expressed in a passage in the judgment of Chief Justice Napier, with whom Justice Travers agreed at 156 of the report. It is as follows:

   But while we agree with Hogarth J, we desire to guard ourselves against being understood as laying down any absolute rule upon the subject. It seems to us that it is a matter of what we should regard as “fair play and common sense”. The condition upon which a judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it.

   The rule, as appears from the passage cited is not to be regarded as absolute in the sense that it must be applied rigidly to every observation which a judge might make of a party during the course of a trial outside the witness box. Something will depend no doubt on the circumstances of the particular case and upon the significance of the particular observations. It is clear however that where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significant influence upon his decision of the case, he is required in justice before making such use of those observations to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way.

   [3] Exceptionally, but as a matter of principle possibly, it may be that fairness requires the judge to draw attention to an observation of the witness in the witness box. The rule is not restricted to the actions or demeanour of a party, and is not necessarily restricted to when the actions or demeanour are not observable by counsel, since the vice lies in the judge making use of what has been observed when the party’s representatives are not aware that it may be used in the decision-making. In Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 49 Redlich JA began by noting at [42] the parties’ entitlement to know the case sought to be made against them and have the opportunity of replying to it, and after consideration of the cases said—

   52.  A decision-maker sitting in the courtroom is not blind to the events which occur in the courtroom but when his or her observations are of matters which the party’s representatives have no opportunity to observe, or where it may reasonably be assumed that the party’s representatives will not appreciate the inferences which the decision-maker intends to draw from observations that are made, the party should be informed of the observations or the inferences which the decision-maker contemplates drawing so as to afford the party an opportunity to deal with such matters, whether by calling evidence or by making submissions. (citations omitted).

2. In Zantiotis & Zantiotis (1993) FLC 92-367, the Full Court (Nygh, Lindenmayer and Gun JJ) discussed the obligations of a trial judge to inform counsel when he or she has made observations of a party or a witness outside the witness box and cited with approval the passage from the judgment of King CJ in Angaston & District Hospital. Their Honours said (at 79,837):

   There have been a number of reported cases where a Trial Judge has made observations of a party or a witness outside the witness box. Most of those cases were reviewed by the Court of Appeal of the Supreme Court of New South Wales in the case of Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304. The headnote in that case says that it held in that case that:

   “Judges may make their own observations of witnesses outside the witness-box, but if these observations are to have a significant influence on the decision, counsel must be informed and given adequate opportunity to respond. Otherwise (per Kirby P) there will be a breach of the requirements of procedural fairness.”

3. Whilst the learned Federal Magistrate’s observations of the wife’s demeanour were not limited to her time in the witness box, they were confined to events within the courtroom. The husband’s legal advisors were in Court when the evidence was given. Nothing to which we have been referred establishes that the learned Federal Magistrate was privy to “actions or demeanour” of the wife which the husband’s legal representatives did not, or could not also have observed. As is clear from his Reasons for Judgment, the learned Federal Magistrate’s conclusions with respect to the wife’s “emotional needs” were based on a number of matters other than his own observations of her, all of which had a substantial and uncontroversial factual underpinning.

4. Nothing to which we have been referred establishes that the learned Federal Magistrate’s conclusions with respect to either the “reaction of the wife to the husband in Court” or to the “wife’s emotional needs”, and the weight to which they were entitled, were unsafe. We are not persuaded his Honour erred in relation to the use he made of his own observations of the wife, or the manner in which he did so. Even if we are wrong, and his Honour impermissibly relied upon his own observations, appellate intervention would not be enlivened, having regard to abundance of other reliable evidence supportive of his conclusions.

Ground 1 (e)

1. The vehicle which conveyed the first major challenge of the husband was Ground 1(e), which provided:

   1.That the learned Honourable Federal Magistrate erred in his approach to the issue of the appellant spending time with the children and in particular the learned Honourable Federal Magistrate:-

   …

   e.Wrongly took into account or placed too much weight on the domestic violence and wrongly approached the question of whether the husband presented a risk to the children including that the learned Honourable Federal Magistrate informed himself of specialist research in relation to the impact of domestic violence upon children and failed to accord procedural fairness to the appellant by way of notice and failed to give the appellant or his counsel an opportunity to make submissions in relation to the research pursuant to section 144(4) of the Evidence Act 1995 as amended.

2. As is clear, both from its terms and the submissions made in support of it, this ground has two discrete elements. It is preferable that they be considered separately. Within the context of those discrete elements, a number of discrete, and not necessarily directly related issues were agitated. We shall deal with those issues in the course of dealing with the two major thrusts of this ground.

The Federal Magistrate’s consideration of domestic violence

1. So far as the complaint that the learned Federal Magistrate “wrongly took into account or placed too much weight on the domestic violence and wrongly approached the question of whether the husband presented a risk to the children” was concerned, Senior Counsel for the husband asserted, by reference to A & A (1998) FLC 92-800, that “the approach to be taken by the Court” was that:

   ·The Court must consider if there is an unacceptable risk to the children.

   ·If the answer is yes, then steps must be taken for the children’s protection proportionate to the degree of risk.

   ·If the answer is no, then the Court must consider whether the residential parent genuinely holds [that] belief and will this impact upon his or her capacity as a parent and therefore impinge on the best interests of the child.

   ·The Court must then take steps to protect the residential parent and the children from such harm.

2. Senior Counsel for the husband then submitted that:

   36.His Honour did not find an unacceptable risk to the children in relation to domestic violence. In fact he found at […] the mother’s fear that he may abduct the children or hurt them was an irrational fear but genuinely held.

3. Whilst nothing ultimately turns on it for present purposes, it is not in our view without significance that the provisions of Part VII of the Act in relation to parenting cases now differ materially, particularly with respect to “family violence” from those which applied when A & A (supra) was decided in 1998. There will be cases, as was said in A & A (supra), and had earlier been said by the High Court in B & B (1993) FLC 92-357 and M & M (1988) 166 CLR 69; FLC 91-979, where a finding of unacceptable risk will be almost conclusive of the issue of “best interests”.

4. To the extent that the submissions on behalf of the husband, at least inferentially, assert that the absence of a finding of “unacceptable risk” should have resulted in an order being made that the husband have face-to-face time with the children, we do not accept that to be a correct statement of the law. Nor do we believe that to have been the effect of the decision in A & A (supra), having regard to the provisions of Part VII of the Act as they then existed, and the decisions of the High Court in B & B (supra) and M & M (supra).

5. Given the extensive and clear provisions of Part VII of the Act in its present form, and the High Court’s reiteration of the significance of observing the “legislative imperatives” (see MRR v GR (2010) 240 CLR 461) contained in it, we conclude that A & A (supra) has, at best, limited potential application in parenting proceedings determined by reference to Part VII of the Act in its current terms.

6. It was also submitted that:

   38.His Honour relied on the husband’s past conduct in the context of the toxic relationship to find that the husband had a continuing lack of insight. His Honour failed to consider adequately or at all the husband’s ability to provide a positive relationship with the children and his insight looking forward.

7. To the extent that the learned Federal Magistrate’s finding that the husband had a “continuing lack of insight” is challenged by this ground, we do not accept that such challenge has been made out. We have earlier referred to a number of paragraphs in his Honour’s Reasons in which he carefully considered this issue. None of those findings of fact has been challenged before this Court. Those findings provided ample underpinning for his Honour’s conclusion. They were not the only relevant, and unchallenged findings made by the learned Federal Magistrate in this context.

8. The learned Federal Magistrate also recorded:

   473.I accept that [the husband’s] violent conduct, towards the children’s mother, represents a failure, on his part, to have proper regard for the need to protect the children emotionally.  His behaviour is likely to have made the children frightened and precipitated other sequellae of emotional disturbance in them.

9. Earlier in his reasons, his Honour had recorded:

   145.Mr [B] was of the view that it was an essential precondition of [the husband] having any future interaction with the children, of any kind at all, that he demonstrate an ability “to engage in alcohol abatement and anger management and be able to demonstrate that he has taken on board the issues and made positive changes.”  Mr [B] was also of the view that these processes were likely to need to take the form of intense one on one counselling with some suitably qualified and expert therapist.

   146.In this regard, it is noteworthy that Mr [B] considered that “a tokenistic course or a tokenistic attempt at the course is worse than useless.”  I am concerned that [the husband] was not fully committed to the courses, which he has attended and further concerned that those courses were not in any event of sufficient intensity and direction to assist him modify his behaviour, given the extent of his anger management issues.

   147.But, no matter how many courses [the husband] has done and how many counsellors he has seen, what matters is how [the husband’s] behaviour can be said to have changed, for the better, as a result of these interventions.  Given the tragic events of 6 March 2009, it is difficult to see that [the husband’s] past involvement with the services made available to him by Correctional Services have had significant utility.

   None of those findings of fact has been challenged before this Court.

10. Later, albeit in the context of a consideration of the decision of the English Court of Appeal in Re L, his Honour’s reliance upon which gives rise to the second limb of this Ground, the learned Federal Magistrate recorded:

    477.Although [the husband] has expressed some remorse for his actions, I remain concerned that he does not have a fully developed level of insight into the consequences of his behaviour.  In particular, I am concerned that he does not have a full understanding of the impact of his behaviour on either [the wife] or the children, particularly the potentially deleterious consequences of his behaviour on [X] and [Y].

    478.The impression I derived from [the husband’s] evidence is that he thought [X] and [Y] were peripheral in some way, to his violent behaviour towards their mother.  I do not accept that this is so.  The children were part of a household in which violence played an integral role.  They were exposed to their father suborning their mother through extreme violence. They observed significant physical injuries, on their mother’s person, inflicted by their father, on more than one occasion.

    The findings of fact there recorded have not been challenged before this Court.

11. The learned Federal Magistrate also proceeded to record:

    479.This must have implications for how they are to develop, as both children and adults, in future.  I regret, at this juncture, I find little evidence which indicates [the husband] appreciates this essential link, between his behaviour and how [X] and [Y] are likely to develop in future.  As such, at this stage, like Mr [B], I question the benefits the children are likely to derive from renewing their relationship with the father.

    480.I acknowledge that [the husband] has undertaken anger management courses in the past.  However, as Mr [B] points out, these courses were singularly unsuccessful in assisting [the husband] to modify his conduct in March of 2009.  I agree with Mr [B’s] assessment that without a personal level of acknowledgement and insight, a tokenistic or rote attendance at such courses or therapy is “worse than useless”.

    481.I am not persuaded that [the husband] has made a committed and serious attempt to modify his violent behaviour towards the mother.  I do not believe he fully appreciates the consequences of his behaviour for [X] and [Y]. Up to this stage his attitude towards anger modification and alcohol abatement has been haphazard and desultory. He did not present insightfully in court.

    482.The final and most serious assault, committed by the husband against the wife, occurred in the period after the parties had finally separated.  It occurred after the husband had contacted the wife with a view to exploring the possibility of there being some form of reconciliation between them, an overture the wife did not automatically rebuff.  This event has had disastrous consequences for them both.  It follows a pattern of the parties separating and then reconciling after serious episodes of violence between them.

    None of those findings of fact has been challenged before us.

12. The learned Federal Magistrate further recorded:

    547.Given the husband’s flawed response to previous counselling and anger management interventions, this is likely to be difficult for him to do.  As Mr [B] has deposed, the success rate of such programs is not high and the only objectively measurable indication of their success is that a previous perpetrator of violence desists from such violent conduct in the future.  In this regard, to date, [the husband] has been singularly unsuccessful. 

    548.Since [the husband’s] relationship with the children was interrupted, in March of 2009, as a result of his own violent behaviour, he has not taken any concrete steps to address his alcohol and anger management problems.  Some evidence of concerted action, on his part, in respect of these issues, would appear to be a minimum requirement before any consideration is given to him having some form of direct interaction with the children.

13. Having regard to the numerous, and undisturbed findings of fact supportive of it, the challenge to the learned Federal Magistrate’s conclusion that the husband had a “continuing lack of insight” fails.

14. We turn to the complaint that his Honour “failed to consider adequately or at all the husband’s ability to provide a positive relationship with the children and his insight looking forward”. The learned Federal Magistrate clearly accepted the evidence of Mr B that the children “sought out their father and appeared physically and emotionally at ease with him” [par 449] and that “a viable relationship existed between parent and children” [par 450], notwithstanding that the father had not had any opportunity to engage with the children in any significant way since May 2008 [par 451], and that contact between the husband and the children was likely to be of “benefit” to the children [par 464]. That likely “benefit” had to be evaluated in the light of other matters in respect of which his Honour had made findings of fact.

15. Following a careful and detailed consideration of the desirability of the father and the children spending face-to-face time together in the foreseeable future [pars 452–463], the learned Federal Magistrate recorded:

    464.I accept and share Mr [B] concerns and, as such, question the likely level of benefit, which the children are likely to derive from pursuing such a form of relationship, with their father, in such fraught and difficult circumstances.  In my view, these are factors which militate in favour of their being no orders for the children to spend time with their father at present and for the current hiatus, in the children’s relationship with their father, to be continued.

16. His Honour later also said:

    491.However, in my view, this level of apprehension [of the wife] is very real to [the wife] herself and, as such, must have implications for the wellbeing of [X] and [Y], given that [the wife] is their primary source of psychological sustenance.

    492.I regard [the wife] as a vulnerable parent, as a result of the violence inflicted upon her.  If she is a worried and insecure parent, the children are likely to pick up on these emotions.  In my estimations, the best interest of [X] and [Y] dictate that their primary carer should feel as secure and safe as possible.

17. Later again, his Honour recorded:

    506.The advantages and disadvantages of [the husband] having no direct contact with [X] and [Y] are, in my view, closely balanced for the reasons already provided.  The twins are very young.  Much may change in both their lives and indeed in [the husband’s] life.  It is a significant thing to potentially permanently deprive both a parent and child of the opportunity to repair a relationship at some stage in the future or to lessen the opportunity for the child concerned to be able to get in touch with a parent and/or form a meaningful relationship at some later stage, either in adolescence, early adulthood or some other stage. 

    507.It is likely to be in the children’s best interests for them at some stage, perhaps in the indeterminate future, to make their own judgements about their father and for them to decide whether they want to know him.   In my view the potential “whiting out” of [the husband], from [X] and [Y’s] lives, by restraining any mention or reference to him, renders both these possibilities less likely.

    …

    518.It is clearly the case that [the husband] has been a negative factor in the children’s lives because of his prolonged and intense violent behaviour towards their mother.  However, given Mr [B’s] observation of [the husband] with the children, it is clear that, in the past, [the husband] has been able to care for the children in a positive and loving way.  Essentially, not every aspect of [the husband’s] relationship with the children is negative.

    519.Accordingly, the protective aspects of this case are not so overwhelming that it is impossible to foresee any form of restorative interaction between the children and their father, in which they can repair the damage done to their relationship in a supportive and appropriate manner. 

    …

    521.In my view, the balance is likely to be struck, at this stage, by maintaining the current hiatus in the children’s direct relationship with their father, which [the wife’s] psychological circumstances demand, but maintaining a thread between the children and their father, via [the paternal grandmother], which can be expanded upon, if and when the time is right.  The success of this will largely depend upon [the husband] himself.

1. His Honour also recorded:

   551.As to all intents and purposes, the children’s relationship with their father, has been terminated and any process of the children interacting with [the husband] would take the form of a re-introduction.  It seems to me there is no need for haste in the matter and indeed, any such haste is likely to have potentially adverse implications for the children. 

   552.In addition, the ball must remain in [the husband’s] court and for him to demonstrate that the children are likely to benefit from having some form of relationship with him.  At this stage, in my estimation, it is not clear that the children would benefit, at all, from pursuing some form of direct relationship with their father.

2. We are unable to accept that the learned Federal Magistrate failed to consider “adequately or at all” the ability of the husband to provide a positive relationship with the children. With respect to the submissions of Senior Counsel for the husband, as the numerous passages to which we have referred reveal, his Honour’s consideration of the issues was extensive, if not exhaustive. As his Honour clearly recognised, the likely benefits of contact for the children had to be balanced against a number of contraindicators of benefit. Determining the husband’s capacity to facilitate a positive relationship with the children involved a consideration of numerous factors, some positive, others negative. The husband’s insight into his past violent conduct, and its impact on the children was relevant to an assessment of that capacity. Nothing to which we have been referred establishes that his Honour’s consideration of this issue was flawed in fact, or in logic.

3. With respect to Senior Counsel for the husband, we are unable to accept that the evidence of Mr B obliged his Honour to accept, if that was in fact what Mr B was ultimately asserting, that the husband “did not present any serious risk to the emotional or physical wellbeing of the children”. As the “ultimate trier of fact”, it was for the learned Federal Magistrate to determine that issue, by reference to the relevant provisions of Part VII of the Act, and the evidence before him, including the expert opinion evidence of Mr B (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). The weight afforded to Mr B’s opinion evidence was impacted by the findings made by his Honour with respect to disputed issues of fact.

4. In the numerous paragraphs of his Reasons to which we have earlier referred, and elsewhere in his findings with respect to family violence which the children witnessed or were likely to have witnessed, the learned Federal Magistrate made abundant findings in support of his conclusions with respect to the emotional risks for the children spending supervised time with the husband, even in a supervised context. None of those findings of fact has been successfully challenged before us. Having read the cross-examination of Mr B in its entirety, we perceive no basis on which they could have been disturbed.

5. Senior Counsel for the husband also submitted in support of this complaint that:

   39.It is reasonable to accept that if the alcohol factor was removed then this minimises the risk of domestic violence. All contact would be in the context of supervised time and therefore risks would be further minimised.

   That contention overlooks the reality that, for reasons which the learned Federal Magistrate detailed, the factual underpinning of which has not been challenged, his Honour was entitled to decline to “accept” that the “alcohol factor” was, or would be “removed”. The submission also overlooks the reality that the learned Federal Magistrate accepted that the husband had not been physically violent to the children, and was unlikely to be in the future.

6. As his Honour’s Reasons make clear, the direct and indirect risks to the children’s emotional wellbeing constituted by spending face-to-face time with the husband were issues which, quite properly, having regard to the evidence before him, concerned his Honour. Those issues were complex, as his Honour’s numerous, and detailed reasons for judgment in relation to them confirm. In the paragraphs to which we have earlier referred, careful consideration was given to the implications for the children’s wellbeing of spending face-to-face time with the husband. No matter relevant to determining that issue has been shown to have been overlooked, or inadequately considered. The exercise was not vitiated by reference to irrelevant facts or circumstances. Nor was it undertaken in reliance upon material errors of fact. The undisturbed findings of fact made by the learned Federal Magistrate amply supported the conclusion he reached in relation to this issue.

The Federal Magistrate’s reference to material from Re L

1. It remains to consider the complaint that the learned Federal Magistrate impermissibly “informed himself of specialist research in relation to the impact of domestic violence upon children and failed to accord procedural fairness to the appellant by way of notice and failed to give the appellant or his counsel an opportunity to make submissions in relation to the research pursuant to section 144(4) of the Evidence Act 1995 as amended.”

2. By reference to the decisions of this Court in Lamereaux v Noirot (2008) FLC 93-364 and Maluka and Maluka (2011) FLC 93-464 it was submitted that, where a judicial officer consults “authoritative works or experts”, that should take place in the presence of the parties and in circumstances in which the parties have the opportunity to make submissions and/or adduce evidence, and that where “reliance is placed by a judge on evidence other than evidence regularly adduced by the parties to the litigation” the requirements of procedural fairness dictate that such evidence should be identified, and the parties be advised and given the opportunity to test such evidence, adduce other evidence in relation to the topic addressed by such evidence and/or make submissions about the evidence. We accept those to be accurate statements of the law. With respect to Senior Counsel for the husband, the latter part of the submission asserts no more than s 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”) requires. The former part of the submission raises the more difficult issue of how, and in what circumstances, judges may permissibly “inform” themselves of matters emerging from sources which are not in evidence.

3. It was submitted on behalf of the husband that:

   3.At no time during the course of the trial or addresses did the learned Federal Magistrate raise with counsel the psychiatric report prepared by Dr Sturge and Dr Glaser relied upon extensively by the England and Wales Court of Appeal (Civil Division) Decision of Re L (Contact: Domestic Violence) [2000] 2 FLR 334.

4. It is not in doubt that the passages of the report by Drs Sturge and Glaser (“the report”), to which the learned Federal Magistrate referred in his Reasons for Judgment, were referred to and incorporated in the decision of the English Court of Appeal in Re L. They were thus matters which were on the public record, and thus able to have been known by and referred to by Counsel for the parties to the proceedings before the learned Federal Magistrate. They were thus materially different from matters appearing in reports the terms of which had not been expressly considered in the reasons for judgment of a court of record. That of itself would not necessarily deny this complaint success.

5. This challenge raises two issues for consideration. The first is what obligation his Honour had, prior to the delivery of his Reasons for Judgment, to inform the parties to the litigation that he intended to, or might rely upon the report. The second is the extent to which the learned Federal Magistrate did, and permissibly could rely upon the report. Resolving the first issue will impact upon the resolution of the second.

6. The crux of the submission on behalf of the husband was that the learned Federal Magistrate placed “great reliance upon the report and the decision in Re L” and, by failing to alert the parties to the likelihood or potential that he would or might do so, failed to afford them procedural fairness, thereby enlivening appellate intervention.

7. Senior Counsel for the husband referred to the cross-examination of Mr B, during the course of which his Honour said:

   There are some experts, some psychologists and some psychiatrists, I think, who would say it’s an essential precondition of a parent who has been established to have been a violent parent. It is an essential precondition of that parent having any involvement whatsoever with a child who necessarily has been affected by that violence, that he or she demonstrates in some comprehensive way a level of insight into the consequences of his or her behaviour. …

   As is not in doubt, his Honour there alluded to the report, albeit he did not identify it as the source of the opinion to which he referred until he delivered his judgment.

8. Senior Counsel for the husband quoted from the report, as it apparently appeared in a journal article. It is not in doubt that the learned Federal Magistrate referred [par 476] to the seven identified factors to which Doctors Sturge and Glaser had referred in their report. Nor is it in doubt that those factors found expression in the judgment in Re L.

9. Senior Counsel for the husband thus submitted:

   7.As counsel for the appellant had no knowledge of his Honour’s knowledge and reliance upon this report he was not able to address His Honour in relation to any of these matters. Nor was there any ability for counsel to explore with Mr [B] the expert his evidence in relation to these matters.

   8.The husband’s position was prejudiced in that as his counsel was not aware of the source to which His Honour was referring, he was not privy as to whether the summary put to Mr [B] was an accurate synopsis of the report nor was he given an opportunity to put a competing view to Mr [B]. For example, at page 38 of the transcript […] His Honour says to Mr [B] in relation to Mr [B] suggestion that there should be a very slow ordered reorientation of the children and [the husband] “an essential component of which is some significant indication from [the husband] that he is remorseful and insightful?” “A measurable indication, Your Honour” was the response.

10. It was further submitted that the learned Federal Magistrate had also referred to another part of the report which discussed, under the heading of “Other relevant issues”, the potential detriment to a child of having no direct contact with a non-resident parent. It is not in doubt that the learned Federal Magistrate did refer to and incorporate in his Reasons for Judgment the part of the report to which Senior Counsel for the husband referred [at par 514]. Nor is it in doubt that the judgment in Re L included that material.

11. It was again complained that:

    10.None of these matters [to which we have referred above] was put to Mr [B] and Mr [B] evidence was given from a viewpoint that there would be some time with the children and the father under appropriate conditions, at some time in the future following upon further counselling for the children and the father.

    We do not agree that Mr B’s “viewpoint” was as this submission suggests, but that is not determinative of this complaint.

12. In support of her contention that the learned Federal Magistrate had relied upon what he had gleaned from the report, Senior Counsel for the husband referred to the paragraphs of the Reasons for Judgment of the learned Federal Magistrate in which his Honour said:

    58.[The husband] had been drinking at the time (as had [the wife]) and it may be that his memory is impaired.  However, I think it more likely that he was attempting to reduce the gravity of his conduct or perhaps was in a state of denial about it.  This was also my impression in respect of other accounts, provided by him, of earlier episodes of violence between the parties.

    59.In addition, it seemed to me that, at times, [the husband] was attempting to shift responsibility for his behaviour to [the wife], blaming her labile temperament or the parties’ mutual consumption of alcohol as being the triggers which caused violence to erupt between the parties.  I am concerned that this indicates a degree of rationalisation, on the husband’s part, of his behaviour.

13. The findings there recorded have not been challenged before us. It is clear, having regard to their terms, and the terms of a number of other paragraphs to which we have referred in the context of earlier grounds of appeal, that his Honour, permissibly, made the findings there recorded in reliance upon the evidence which was before him, and known to all the parties to the proceedings. Reliance upon anything said in Re L was not necessary to establish the relevance of the findings to the exercise of his Honour’s discretion. In those circumstances, the fact that Re L may have suggested the topics to which the evidence related does not advance the husband’s complaint.

14. As his findings of fact were based on the evidence before him, there can thus be no suggestion that his Honour failed to observe the provisions of s 144 of the Evidence Act. He did not regard anything appearing in the report as evidence. The issue remains whether, having not disclosed to the parties the source of the questions in response to which the evidence upon which he based inferences or drew conclusions, the learned Federal Magistrate had denied the parties natural justice.

15. On behalf of the husband, it was also submitted, albeit in a somewhat different context, that:

    17.At paragraph 60 […] His Honour said referring to Re L “I am required to consider the extent to which [the husband] is able to acknowledge his behaviour and accept responsibility for his violence. I am not altogether sure how genuine [sic] regretful he is for his behaviour. In this regard it was only at a very late stage that [the husband] abandoned his attempt to restrain [the wife] and the children permanently in South Australia.” This was only five weeks after the application had been made.

    18.[The husband] is criticised for failing to agree earlier to the wife’s relocation. The wife’s application for relocation was only made on 25 January 2010 some five weeks before the commencement of the trial and a week prior to the husband being sentenced to imprisonment. The preparation of [the husband’s] case for trial was then hampered by his imprisonment and change of solicitors yet he was criticised for his failure to agree to the wife relocating earlier.

16. Early in his reasons for judgment, the learned Federal Magistrate outlined the course which the litigation before him had taken, and said:

    14.This case began as what lawyers commonly call a relocation case.  Essentially, [the husband] wished to restrain [the wife] from moving the children’s place of residence from out of Adelaide so that, on his release from prison, no geographical restraints existed which would prevent him from pursuing his preferred form of relationship with [X] and [Y].

17. His Honour also said:

    16.More recently, [the husband] has also accepted that the court is not likely to restrain [the wife] from moving, when it is his conduct which has rendered [the wife] the children’s unchallenged custodian and which has made the prospect of remaining indefinitely in Adelaide so unpalatable for her.

18. There is no doubt that his Honour knew that the husband had agreed to the wife relocating the children’s residence. We are not persuaded that his Honour inaccurately recounted the events in relation to the husband agreeing that the wife could relocate the children’s residence from Adelaide to Geelong. Even if his Honour did, and unfairly criticised the husband, nothing to which we have been referred establishes that the exercise of his discretion was thereby vitiated, either by virtue of the weight which his Honour gave to that topic, or any assertedly impermissible reliance by him upon anything recorded in Re L.

19. A further, and related complaint on behalf of the husband concerned the response given by Mr B to a question asked by the learned Federal Magistrate as to why the husband wanted “to retain” the wife in Adelaide, to which Mr B replied: “Your Honour it suggests to me that [the husband] still wants to keep some control over the relationship and particularly about where [the wife] lives and further suggests to me that he still has not gained the type of insight that we would really be looking for”. Senior Counsel for the husband complained that “his Honour’s line of questioning suggests the answer to Mr [B]”.

20. Having regard to the terms of the learned Federal Magistrate’s question to Mr B, we are unable to accept the assertion that the question suggested its answer. On the contrary, the learned Federal Magistrate’s question left it entirely to Mr B to respond and was in the nature of an enquiry, in which his Honour made no reference to “control”. As is not in doubt, his Honour knew by the time of his judgment, and accepted that the husband no longer sought to “retain” the wife and children in Adelaide. Accordingly, we are unable to accept that Mr B’s opinion as to the husband’s motivation for doing so could have influenced the exercise of his Honour’s discretion.

21. Under the heading “Conclusions”, with respect to the best interests of the children, the learned Federal Magistrate set out what he regarded as the competing factors which emerged from the evidence and the findings of fact he made in reliance upon that evidence. No where in that analysis did his Honour refer to “control” being a matter of actual or potential significance. That may be because, as Senior Counsel for the husband submitted, later in cross-examination Mr B agreed that there was another, and innocent explanation for the husband’s initial unwillingness to allow the wife to relocate the children’s residence away from Adelaide. If, as has not been established, the learned Federal Magistrate erred in fact in relation to this issue, the error of fact did not vitiate the exercise of his discretion, as it was not material to the exercise of that discretion.

22. As we have noted earlier, part of the husband’s complaint was that the learned Federal Magistrate impermissibly referred to four factors which, as he recorded, accurately there is no doubt, were referred to in Re L and sourced from the report.

23. In the passage complained of, the learned Federal Magistrate said:

    334.When family violence is established by a parent, the court in determining future contact arrangements, in my view, should give considerable weight to the following matters:

    ·the extent of the violence;

    ·the effect upon the primary carer;

    ·the effect upon the children; and

    ·the ability of the perpetrator to recognise the implications of the violent behaviour and his or her capacity to change it.

    (footnotes omitted).

24. It was thus submitted that, in traversing the four matters emerging from the report in the various paragraphs identified by his Senior Counsel, without giving any indication that he would, or might do so, the husband was denied procedural fairness by the learned Federal Magistrate. It was submitted that his Honour ought to have made clear during cross-examination of Mr B that he was asking questions by reference to the report, which the English Court of Appeal embraced in Re L, and that by failing to do so the husband’s Counsel was denied the opportunity to either test the evidence of Mr B, or any one else, in relation to those matters, or adduce further evidence with respect to them.

25. It is useful to here record the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) relevant to a consideration of parenting proceedings, which expressly or impliedly refer to, or may encompass “violence”. Such provisions include:

    60BObjects of Part and principles underlying it

    (1)The objects of this Part are to ensure that the best interests of children are met by:

    …

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    ...

    60CCHow a court determines what is in a child’s best interests

    Determining child’s best interests

    (1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

    Primary considerations

    (2)The primary considerations are:

    …

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    …

    Additional considerations

    (3)Additional considerations are:

    …

    (f)the capacity of:

    (i)each of the child’s parents; and

    …

    to provide for the needs of the child, including emotional and intellectual needs;

    …

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

    (j)any family violence involving the child or a member of the child’s family;

    (k)any family violence order that applies to the child or a member of the child’s family, if:

    (i)the order is a final order; or

    (ii)the making of the order was contested by a person;

    …

1. In her affidavit sworn on 27 January 2010, the wife said:

   95.At the date of cohabitation the husband owned the former matrimonial home at [G] “the [G] property” which according to Lands Title Records the husband purchased in 1998 for $99,000. I was aware at the time we started cohabiting that the [G] property had a mortgage of around $100,000. …

2. In his affidavit affirmed on 2 March 2010 the husband said:

   68.With respect to paragraph 95, I agree. The former matrimonial home was worth approximately $200,000.00 when we commenced cohabitation in August 2004.

3. During the course of the trial, Counsel for the husband sought to tender a document setting out average property values in the local area, in an attempt to establish the value of the property at the time of the commencement of cohabitation. Counsel for the wife opposed the receipt of that document into evidence, and the learned Federal Magistrate, correctly in our view, refused to accept it.

4. In the Outline of Case of the Husband, Counsel for the husband said of this topic only:

   3.1The Husband brought into the relationship the [G] property (value approximately $200,000 and mortgage approximately $100,000) and his existing superannuation of approximately $50,000.00. The Husband’s net asset position at the commencement of the relationship was approximately $150,000. (original emphasis). 

5. The Outline of Case of the Husband did not specifically assert how the initial contributions made by the husband should be taken into account in assessing contributions.

6. Counsel for each party conceded during the course of final submissions that no agreement had been reached as to the value of the equity in the property at the time of the commencement of the relationship.

7. Not insignificantly, Counsel for the husband did not, during the course of his final submissions, suggest a figure which the Court should accept as an approximation of the value of the equity in the property. Nor did Counsel for the husband then submit that the learned Federal Magistrate should have found the value of that equity to have been approximately $60,000.00, on the basis that the husband was able to borrow $60,000.00 on the security of the property during 2004.

8. At trial, Counsel for the husband’s submission was that “although your Honour doesn’t have an accurate figure for the amount of equity at the time, it was still… I still submit, given the size of the net pool, it was a significant contribution at the start of the relationship.” Only by knowing its probable quantum at the time cohabitation commenced could the significance of the contribution be assessed. Establishing the value of G property in 2004 ought not have been difficult.

9. Another aspect of the learned Federal Magistrate’s asserted erroneous undervaluing of the husband’s initial contributions related to shares in Rio Tinto which he had acquired by inheritance prior to cohabitation. Those shares were worth $17,112.00 at the date of trial and were asserted to represent “over 7% of the non-superannuation assets”.

10. The learned Federal Magistrate accepted that:

    375.As matters presently stand, the husband’s Rio Tinto shares represent a significant percentage proportion of the parties’ current net worth.  I accept that the wife has made very little contribution to either the acquisition or preservation of this asset.

11. As with the value of G property at the commencement of cohabitation, there was no reliable evidence before the learned Federal Magistrate as to the value of the Rio Tinto shares at that time. Proving the value of the shares in 2004 ought not have been difficult.

12. A further aspect of the learned Federal Magistrate’s asserted erroneous undervaluing of the husband’s initial contributions related to the husband’s superannuation at the commencement of cohabitation.

13. Senior Counsel for the husband referred to the husband having had superannuation at the commencement of cohabitation, the value of which was $53,000.00 at the date of trial. As with G property and the Rio Tinto shares, there was no reliable evidence before the learned Federal Magistrate as to the value of the husband’s superannuation interest at the date of commencement of cohabitation.

14. It was thus submitted by Senior Counsel for the husband that:

    58.On the basis that the size of these contributions, both numerically and proportionately, it does not appear that His Honour gave the husband any weighting for these contributions.

15. Senior Counsel for the wife resisted the husband’s challenges, essentially on the basis that the husband could have, but failed to adduce admissible evidence of the value of G property, his Rio Tinto shares and his superannuation interest at the date of commencement of cohabitation. It was submitted that the learned Federal Magistrate had not erred in concluding that:

    374.The wife accepts that she had few assets at the beginning of the parties’ relationship.  She accepts that the husband owned the [G] property.  This property is the cornerstone of the parties’ current level of wealth.  The husband must have had some equity in the property and even if that equity was modest, it provided the family with security during the parties’ relationship.  As I have previously indicated, it was the sine qua non on which the property aspect of these proceedings is based. 

    …

    376.In my view, it would result in a level of injustice, to the husband, if some weight was not given to his superior initial contribution of capital into the marriage.  In my view, the evidence is sufficient for me to conclude that there was such a discrepancy, in the parties’ respective level of asset backing, at the start of their relationship, that this is a factor which must be given “special recognition” in the husband’s favour. (footnotes omitted)

16. It was accordingly submitted that the husband could not demonstrate, having regard to the undoubtedly broad discretion which the learned Federal Magistrate was exercising, that a disparity of contribution based entitlements of 10 per cent in his favour fell outside the ambit of a reasonable exercise of discretion.

17. The husband’s superannuation interest, whatever its worth in 2004, was not utilised in any way during the course of the parties’ cohabitation. As is not in doubt, the husband’s superannuation interest was dealt with by the learned Federal Magistrate in a way which has not been challenged in this appeal. We do not perceive that, in the circumstances, the husband’s superannuation interest at the commencement of cohabitation, whatever it might have been worth, could or should have impacted upon the learned Federal Magistrate’s assessment of the parties’ contributions to their non-superannuation assets.

18. Properly considered, the focus of this challenge is that the learned Federal Magistrate erroneously undervalued the impact of the husband’s contribution of equity in the G property and his Rio Tinto shareholding.

19. The evidence before the learned Federal Magistrate provided a reasonable basis for inferring that, at or about the time of the commencement of cohabitation, the husband probably had equity in the G property of about $60,000.00.

20. In the absence of any reliable evidence as to the value of the husband’s Rio Tinto shareholding, his Honour could not attach any particular weight to that contribution. We have not been referred to any evidence of the husband’s Rio Tinto shareholding generating dividend income during the parties’ cohabitation, although it may well have. In the absence of any evidence of the quantum of such dividends, the learned Federal Magistrate had no reliable basis by reference to which he could reflect a contribution referrable to the husband’s shareholding. As noted earlier, valuing the shares in 2004 ought not have been difficult.

21. As is not in doubt, the 10 per cent disparity in contributions determined by the learned Federal Magistrate, which was clearly referrable to the husband’s initial contributions, represented approximately $23,800.00 of the net assets of the parties. The submission of Senior Counsel for the husband was, at least inferentially, that the husband having contributed equity of $60,000.00, a disparity of only $23,800.00 by reference to it alone fell beyond the generous ambit of a reasonable exercise of discretion (see Norbis & Norbis (1986) 161 CLR 513). If any weight was attached to the contribution of the husband’s shares, it was submitted that the learned Federal Magistrate’s conclusion was even more readily shown to have been erroneous.

22. Necessarily, Senior Counsel for the wife asserted that whilst other, and less favourable, conclusions were clearly open to him, his Honour had not erred in concluding that the wife’s contributions were worth only $23 800 less than those of the husband.

23. In Pierce & Pierce (1999) FLC 92-844, the Full Court (per Ellis, Baker, O’Ryan JJ at 85-881) said:

    In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. …

24. We have earlier alluded to the High Court’s decision in Norbis (supra). Whilst we require little convincing that the learned Federal Magistrate’s conclusion with respect to the parties’ contributions, other than with respect to the “Kennon type adjustment”, represented the “top of the range” for the wife, we are not persuaded that it was so generous to the wife as to exceed the bounds of a reasonable exercise of discretion. As Pierce (supra) makes clear, initial contributions must be considered in the light of the totality of the parties’ contributions, financial and non-financial, direct and indirect. In reaching his conclusion, the learned Federal Magistrate was clearly conscious of, and accepted that the husband’s initial contribution was “eroded” (see Pierce (supra) and Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11) by the contributions which he found, uncontroversially for present purposes, that the parties had made during their cohabitation and subsequent to its cessation. Whilst we may not have been as generous to the wife as the learned Federal Magistrate was, we are not persuaded that this challenge has substance. It has not been established that his Honour excessively “eroded” the significance of the husband’s initial contributions.

Ground 2(c) – Kennon type adjustment

1. Ground 2(c) of the husband’s Further Amended Notice of Appeal provided:

   2.That the learned Federal Magistrate erred in his approach to the apportionment of the property of the relationship and in particular the learned Honourable Federal Magistrate:-

   …

   (c)Incorrectly weighted the Kennon v Kennon [1997] FamCA 27 types factors in the wife’s favour.

2. In support of that complaint, Senior Counsel for the husband submitted:

   63.The [Federal] Magistrate took into consideration the two final acts of violence which were at separation and post separation. His Honour acknowledged the decision of Altobelli FM in Kucera [2009] FMCAfam 1032, where it was said (at [107]):-

   Kennon principles operate retrospectively, and not prospectively. In other words the Full Court in Kennon seems to have emphasised that it is a contribution based assessment, not a future needs related assessment. The issue is to what extent was contribution during the marriage rendered more arduous, not to what extent family violence during the marriage creates future needs.

   64.It is submitted that a Kennon claim and assessment needs to be approached conservatively for policy reasons and that it is not meant to be compensatory. It is not a contribution in itself. It is a factor which assists the Court to evaluate the contributions.

   65.At [16], Altobelli FM noted that the Full Court’s decision focussed on “conduct during the marriage, but not afterwards” which suggests the concept was not intended to apply to post separation contributions. It is submitted the Magistrate erred in considering the last incident of domestic violence which occurred some ten months after separation.

3. It was further submitted on behalf of the husband that:

   67.His Honour held at AB 99 [425] that if he was incorrect in relation to post separation contributions then it was open to him to make some allowance for family violence and the impact upon post separation parenting pursuant to section 75(2)(o). The Full Court took the view that Kennon-type weighting was to be considered by the Court in the context of contributions, not s 75(2) factors. [Summary of Argument of the Appellant, par 67, page 10].

4. Senior Counsel for the wife submitted that the authorities, and the decision of Altobelli FM in Kucera & Kucera [2009] FMCAfam 1032 in particular, did not support the husband’s contention that contribution based assessments “should terminate for the purposes of a Kennon (supra) adjustment at the date of separation”. It was submitted that there was no impediment to the Court considering the impact of domestic violence subsequent to separation.

5. It was further submitted by Senior Counsel for the wife that:

   The circumstances in the current matter are such that whilst perhaps unusual, there is a clear act of gross violence towards the mother which has had a significant impact upon her and upon her capacity to contribute and care for the children.

   As a matter of policy, it would be offensive if the husband could perpetrate gross and severe domestic violence upon the wife post separation and yet do so with impunity, whereas the same conduct pre-separation would attract the Kennon-type principles in assessing the weight to be attached to the mother’s contributions.

Discussion

1. It is useful to here set out in full the relevant paragraphs of the judgment of Altobelli FM in Kucera (supra) referred to by Senior Counsel for the husband:

   15.The final legal issue that arises in this case is that raised by the wife – the extent, if at all, that her contributions were rendered more arduous as a result of various aspects of the husband’s conduct. The authority is the Full Court’s decision in Kennon and Kennon (1997) FLC 92-757. A useful summary of the decision is contained at page 84, 294 of the report:

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

   In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that…  

   However, it is important to consider the “floodgates” argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters ─ a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.  

   However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.  

   It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions)…

   16.The passage from the Full Court’s decision in Kennon clearly indicates that it is a relatively narrow band of cases to which a Kennon-type adjustment would apply. The Full Court’s decision focuses on conduct during the marriage, but not afterwards, which suggests the concept was not intended to apply to post-separation contribution. There is a clear emphasis by the Full Court on the need to establish that the violence had a discernable impact on the contributions made by one party. The focus seems to be on establishing either that there has been a significant adverse impact on a party’s contributions, or that their contributions are significantly more arduous than they ought to have been. As I read the Full Court’s decision, little or no room is left for inference. The claim can only be established by probative evidence that satisfies the Court on the balance of probabilities.

2. Federal Magistrate Altobelli later said:

   107.… In my opinion Kennon principles operate retrospectively, and not prospectively. In other words the Full Court in Kennon seems to have emphasised that it is a contribution-based assessment, not a future-needs related assessment. The issue is to what extent was contribution during the marriage rendered more arduous, not to what extent family violence during the marriage creates future needs. Kennon is about contribution under s.79(4), it is not about assessment of future needs under s.75(2). That is not to say that family violence during a marriage could not also create the basis for a s.75(2) adjustment, but the rationale for this is s.75(2), not the Full Court’s decision in Kennon. Thus the fact that the wife appears to have prospered after the end of a violent relationship does not effect the assessment of contribution during the relationship.

3. With respect to Altobelli FM, and noting that his Honour was concerned with different issues to those arising in this appeal, we find nothing in the provisions of s 79 or in logic which suggest that post separation contributions of any kind are not relevant to determining a just and equitable apportionment of the property of parties to marriage. Indeed, as was suggested during the course of the hearing of this appeal, it would be surprising if, as is undoubtedly the case, post-separation contributions of the various kinds falling within s 79(4) were relevant to determining the property entitlements of parties, except those involving or impacted by domestic violence. Excluding such contributions may well be conducive to an outcome which is not “just and equitable” as required by s 79(2) and was likely to have been in this case.

4. Although the submissions before us focus upon Kennon (supra), the High Court in Mallet v Mallet (1984) 156 CLR 605 made clear that, in determining proceedings with respect to settlement of property, the Court must consider the nature and quality of the contributions made by parties to a marriage. Their Honours did not there suggest limitations of the kind Altobelli FM appears to have suggested in Kucera (supra).

5. In reality, the obiter dicta of the majority in Kennon (supra) did no more than confirm that, where the contributions of a party are rendered more arduous by the violent conduct of that party’s spouse, as the learned Federal Magistrate uncontroversially found them to have been in this case, that is a matter which is relevant to determining the nature and quality of the parties’ contributions. Quite apart from the absence of any statutory prohibition upon so doing, it would be illogical and unjust, to find a party’s contributions to have been rendered more arduous by virtue of the violent conduct of the other party to a marriage to the time of separation, but not thereafter, in circumstances where making those contributions continued to be arduous notwithstanding that the violent conduct may have ceased. In this case, the husband committed a serious assault upon the wife almost a year after separation.

1. With respect to the submissions of Senior Counsel for the husband, the learned Federal Magistrate clearly, and in our view correctly, identified the manner in which a claim for a “Kennon type adjustment” should be determined when he recorded:

   387.Rather the court’s function is to assess the parties’ respective marital contributions, within the legislative matrix provided by section 79(4).  To be relevant, it must be demonstrated that the husband’s violent conduct had a “discernable impact” upon the wife’s contributions.  In essence, the question for the court is whether it was more difficult or onerous for the wife to be a homemaker and parent because of the husband’s violent behaviour.

2. Consistent with that correct approach, the learned Federal Magistrate proceeded to make relevant findings of fact, none of which has been challenged. Those findings were:

   388.In her evidence, the wife has identified a number of specific episodes, throughout the parties’ marriage, when the husband has been violent towards her.  She has also deposed that it was rare for arguments between the parties not to escalate to some form of violent altercation, which was more often than not initiated by the husband.  On this basis, I find that violence was endemic in the parties’ relationship and the instigator of the violence was the husband. 

   389.The two most serious episodes of violence, between the parties, occurred on 13 May 2008 and 6 March 2009.  The first date marks the parties’ final separation.  The second violent episode is in the post-separation period.  This raises the question as to what significance can attach to these serious episodes of violence, in terms of assessing marital contributions. 

   …

   391.However, in my view, the circumstances of this case are not like that.  What occurred in May of 2008 was the culmination of many acts of violence occurring throughout the parties’ relationship.  As such, what occurred in both May of 2008 and later in March of 2009 does have relevance to the court’s assessment of the wife’s homemaking and parenting contributions.

   392.After the parties separated, in May of 2008, the wife became the undisputed carer for [X] and [Y].  I accept that, as a result of the assault upon her, she was a traumatised and fearful parent.  She had no alternative but to continue in her role as the sole parent for [X] and [Y].  As such, I am satisfied that the husband’s violent actions towards her made this role significantly more arduous for her. 

   393.In my view, the same can be said for the very serious assault of 6 March 2009.  Following the assault, both the wife and children have received psychological counselling to deal with the emotional sequellae of the assault.  I accept that both [X] and [Y] have been more challenging children to parent because of what happened to their mother. 

   394.In addition, the wife herself has been drained of personal resilience because of the assault on her person.  Again, in my view, these factors have rendered her parenting and home making of [X] and [Y] significantly more arduous than they would have otherwise been.

3. There has not been any challenge to his Honour’s ultimate conclusion that:

   402.The wife says this in her trial affidavit:

   “The husband was controlling of me, his behaviour impacted on my friendships and my relationship with my family.  The husband did not like any of my friends or family.  He wanted to know where I was and who with.  Even when he was away working he would ring me every night and quiz me on my daily activities.  Several times a week the husband had obviously been drinking heavily, and he would get angry.”

   403.I accept that this statement reflects the wife’s frame of mind during much of the parties’ marriage.  She was isolated and intimidated.  This had implications for her own level of self esteem and sense of identity.  She was frequently frightened of the husband.  As such, I am satisfied that her various marital contributions were rendered markedly more arduous by reason of the husband’s persistent violent conduct towards her. (footnotes omitted)

4. We are not persuaded that the learned Federal Magistrate erred in his approach to the wife’s claim for a “Kennon type adjustment”. To the extent that it has been challenged, it has not been demonstrated that the adjustment made by him exceeded the reasonable ambit of his discretion remembering always it is a just and equitable outcome for which his Honour is striving.

5. No ground of appeal agitated on his behalf having been established, the husband’s appeal against the orders for settlement of property made by the learned Federal Magistrate will be dismissed.

Costs

1. Both parties sought the opportunity to make submissions in relation to costs when our Reasons for Judgment were published. We will make orders which facilitate that occurring.

I certify that the preceding two hundred and sixty five (265) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Coleman and Ainslie-Wallace JJ) delivered on 10 February 2012.

Associate:

Date: 10.02.2012