Brangus & Brangus

[2007] FamCA 437

FAMILY COURT OF AUSTRALIA

BRANGUS & BRANGUS [2007] FamCA 437

FAMILY LAW –– APPEAL AGAINST EXERCISE OF DISCRETION IN RELATION TO CONTACT – Challenge to Federal Magistrate’s consideration of object and principles of Part VII unsuccessful - challenge to weight given to children’s wishes opposing contact unsuccessful – no aspect of exercise of discretion having been shown to be erroneous appeal dismissed.

PROPERTY – CROSS-APPEAL – Complaint that the Federal Magistrate erred in failing to find husband beneficially owned overseas assets having been critical of the husband’s credibility unsuccessful – contention that the Federal Magistrate had impermissibly reversed the onus of proof from the husband to the wife in relation to the husband’s alleged overseas assets unsuccessful – Section 75(2) adjustment in favour of husband beyond ambit of reasonable exercise of discretion in circumstances of case which included deferred sale of former matrimonial home occupied by wife and children - cross-appeal allowed – discussion of terms of re-hearing in Federal Magistrate’s Court in circumstances where Federal Magistrate’s conclusion with respect to contribution entitlements of the parties not challenged – Part VIII proceedings remitted for re-hearing without restriction – costs certificates including costs certificates with respect to re-hearing in the Federal Magistrate’s Court.

Family Law Act of 1975 (Cth)

Part VII Sections 60B, 65E, and 68F(2), Part VIII Section 79

Family Law Amendment (Shared Parental Responsibility) Act 2006

Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621

House v The King (1936) 55 CLR 499

Gronow v Gronow (1979) 144 CLR 513

I v I (1995) FLC ¶92-604

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279

Bennett and Bennett (1991) FLC 92-191.

Norbis v Norbis (1986) 161 CLR 513

CDJ v VAJ (1998) 197 CLR 172

Allesch v Maunz (2000) 203 CLR 172

APPELLANT: MR BRANGUS

RESPONDENT:	MS BRANGUS
CROSS-APPELLANT:	MS BRANGUS

RESPONDENT:  MR BRANGUS  

FILE NUMBER: PAM 2756 of 2004

APPEAL NUMBER: EA 52 of 2006

DATE DELIVERED: 17 May 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Finn, Coleman and Boland JJ

HEARING DATE: 6 November 2006

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 4 May 2006

LOWER COURT MNC:

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Mr. M

COUNSEL FOR THE RESPONDENT: Mr. S

INDEPENDENT CHILDREN’S LAWYER: Ms D for the L A Commission

Orders

1. That the husband’s appeal in relation to children’s matters be dismissed.

2. That the wife’s cross-appeal with respect to orders for settlement of property be allowed.

3. That Orders 8 – 19 of 4 May 2006 be set aside.

4. That the proceedings with respect to settlement of property be remitted to the Federal Magistrates Court for re-hearing.

5. That the Court grants to the cross appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.

6. That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to the appeal.

7. That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Brangus v Brangus.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 52 of 2006
File Number: PAM 2756 of 2004

MR BRANGUS

Appellant

And

MS BRANGUS

Respondent

REASONS FOR JUDGMENT

Introduction

1.This is an appeal filed by the husband on 29 May 2006 in relation to parenting orders made on 4 May 2006 by Federal Magistrate Ryan (as Ryan J then was), in proceedings between the wife and the husband pursuant to Part VII of the Family Law Act (“the Act”).

2.The wife by an application filed 19 June 2001 sought leave to extend time to cross-appeal property orders in terms of the grounds set out in her draft Notice of Cross-Appeal. She also sought to appeal the parenting orders. At the commencement of the hearing we were advised that the wife withdrew her appeal in relation to parenting orders.

3.The learned Federal Magistrate made orders that the three younger children of the parties F, A and C then aged respectively 17, 14 and 13 reside with the wife and that she have sole responsibility for their day to day and long term care, welfare and development. Her Honour limited contact by the husband with the children to any contact which the children themselves initiated via the wife to the children’s representative (now know as the Independent Children’s Lawyer), and restrained the husband from approaching or contacting the children other than by returning telephone calls initiated by them or spending time with them at their request.

4.Her Honour found the parties’ property to have a total net value of $430,283 and assessed their contribution based property entitlements adjusted for relevant s 75(2) factors to be 54 per cent to the wife and 46 per cent to the husband. Her Honour made orders granting the wife exclusive occupation of the matrimonial home, the parties’ only significant asset, until C attained the age of 18 years, when the wife had the option of obtaining the husband’s interest by paying him a sum equal to 46 per cent of the then market value, or for the house to be sold, and divided according to the parties’ percentage entitlements.

5.The children’s representative contrary to her written submissions, before us eventually supported the Federal Magistrate’s parenting orders.

Background

6.The following background is contained in the Federal Magistrate’s reasons for judgment and is uncontroversial.

7.Both parties were born in L. The wife was born in 1954 and the husband in 1956. They were married in 1983, and separated under the one roof according to the husband in about 1997 and according to the wife in about 2001. They were divorced in March 2005.

8.In 1977 the wife migrated to Australia, where she worked until she returned to L for eight months in 1982. Shortly prior to returning to Australia the wife met the husband and the parties became engaged. Upon returning, the wife worked as a domestic in a hospital. The husband migrated to Australia in August 1983 and in September 1983, the parties married. The parties then resided at a property owned by the wife and her brother in M.

9.In 1984 the parties’ first daughter M was born. The wife stopped work just prior to her birth. At about this time the husband obtained employment with a batteries business.

10.In August 1984 the wife sold her half-interest in the M property to her brother’s wife for $12,000.

11.The wife returned to work about four months after M’s birth. Shortly thereafter the wife fractured her ankle and took some months off before returning to perform light duties.

12.In early 1985 the parties purchased a property at PH (“the matrimonial home”) for $45,500. The parties borrowed $40,966, and savings, including $12,000 contributed by the wife from the M property, were used to reduce the mortgage balance quickly.

13.The parties’ second child S was born in 1986.

14.In October 1986 the husband was made redundant and received a small payment. Upon redundancy, the husband received unemployment benefits and worked casually 1 or 2 days most weeks.

15.In November 1988 the wife received an award under the Workers’ Compensation Act being an entitlement to weekly payments of :

i)$155.00 from 6^th September 1986 to 31^st March 1987.

ii)$159.00 from 1^st April to 30^th September 1987.

iii)$163.50 from 1^st October 1987 to 31^st March 1988.

iv)$165.70 from 1^st April 1988 to 30^th September 1988.

v)$169.30 from 1^st October 1988 (at [21]).

16.On 16 June 1992 the wife redeemed her Workers’ Compensation entitlements for a lump sum of $27,338.56. This sum was used by the parties towards the costs of demolition of their old home and construction of a new home. On … March 1989 the parties’ third child, F, was born and on … January 1992 the parties’ fourth child, A, was born.

17.In 1992 the parties’ youngest child, C, was born.

18.In 1997 the husband’s brother, who was visiting from L, stayed with the parties.

19.On 26 February 2003 the husband assaulted the wife and was charged and convicted of assault occasioning actual bodily harm. The wife subsequently received an award of $9,250 from the Victims Compensation Tribunal. After the husband’s conviction the husband commenced residing in rented accommodation in close proximity to the matrimonial home. The wife and children remained living in the matrimonial home.

20.In August 2003 the husband commenced receiving sickness benefits and was not thereafter employed.

21.In December 2003 the husband was assessed to pay child support at the rate of $412.67 per month which was subsequently reduced to $9.97 per fortnight.

22.On 23 July 2003 an Apprehended Domestic Violence Order was made against the husband for the protection of the wife for a period of two years.

The parenting Judgment

23.Her Honour commenced her reasons recording the terms of then current consent orders made on 3 September 2004, which provided for the husband to have limited contact to the children for a period each alternate Sunday after they attended church, as well as telephone contact. The orders restrained the parties approaching the children at school. Her Honour discussed the husband’s practice of waiting at the children’s bus stop each morning for five to ten minutes until they boarded the bus, although the orders contained no provision for this type of contact which the husband continued notwithstanding a request from the children’s representative.

24.Having summarised the relevant statutory provisions which were in force prior to the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) in particular s 65E, s 60B and s 68F(2) her Honour then turned to discuss how the children’s best interests should be determined. At the commencement of her discussion, her Honour noted “[a]n important issue in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to its welfare”. Thereafter her Honour briefly summarised the case law relevant to the weight to be afforded to a child’s wishes (now views), and recorded the parties’ and children’s views as expressed to the Court appointed expert Dr P. Early in her reasons the Federal Magistrate had noted Dr P’s appointment and said that she “accepted his evidence and gave it considerable weight”.

25.After recording her observations of the husband during his cross examination, the Federal Magistrate said:

Listening to the husband I formed the strong view that there is almost nothing the children, or anyone else, can say which will prompt him to really hear his children. He misuses their politeness and good manners shown to him at the bus stop and during contact and twists this as favouring contact. Unfortunately for him, I am satisfied the children’s wishes are as described by Dr P and that any expression supportive of contact is merely the children’s attempt to buy family peace from their father.

Her Honour accepted Dr P’s “analysis of the children’s wishes” and made a finding that she was satisfied “that the children’s views about contact reflect their own genuine and strongly held wishes” recording that the children did not support a continuation of the existing orders. Her Honour noted that the children’s representative supported Dr P’s assessment of the children’s wishes (at [47]).

26.Her Honour accepted both the written and oral evidence of Dr P, and gave it “…considerable weight” (at [5] – [7]). Dr P’s report, as extracted in the judgment, made the following recommendations:

All the children were clear in their wish to live with [the mother] and…in the case of [F], [A] and [C], to not see more of [the father]. Their wishes were consistent with the histories they gave and a healthy reflection of their relationship and experience with [their family]…It is reasonable for the court to respond to the children’s wishes. It is appropriate that [the father] acknowledge and abide by these wishes. That is, he should not continue to keep invading their personal and private space. It is reasonable that the children have no face to face contact with [the father]. It will be best if contact is allowed for, but left to the children to decide on. There is a real concern about [the father] reaction to less or no time with the children. The children, [the mother] and his home with them appears to be his only life. If denied that and given his history of impulsivity, he is a potential threat to himself and to the family. However, to be held to ransom by this potential will be detrimental to the children’s ability to get on with their lives. Having to make decisions about [the father] which raise the potential of harm, puts the court, [the mother] and all the children in an impossible position (at [6]).

27.The Federal Magistrate determined that the refusal of the husband to accept the children’s wishes as expressed to Dr P, and his failure to acknowledge the history of family violence:-

…demonstrates the husband’s total lack of insight in relation to the children’s relationship with their mother and how the family unit (excluding him) feels safer and is more settled without him. Presently he is incapable of accepting that the children have reached an age and stage of maturity which gives them the capacity to reflect upon their own circumstances and make sound decisions…Unfortunately for him, I am satisfied the children’s wishes as are described by Dr P and that any expression supportive of contact is merely the children’s attempt to buy the family peace from their father (at [46]).

28.In her concluding remarks about the husband’s application the Federal Magistrate stated that she intended “…to leave the door open so that the children may have contact with their husband on their terms” and that “[s]o that he does not harass them and intrude into their lives under the guise of attempting to establish if they wish to see him, contact must be initiated by the children” (at [52]).

29.Her Honour then turned to assess the wife’s capacity to meet the children’s needs finding she had been the children’s primary caregiver and they were closely attached to her, but concluding that she was satisfied the wife should not be ordered to facilitate contact between the children and the husband. Her Honour said where she had departed from the children’s representative’s approach, which was for no contact at all, it was “to keep the possibility alive of future contact at the children’s behest”.

30.Having noted the wife sought an order for sole long term parental responsibility, the Federal Magistrate said:

These parties have no capacity to discuss and problem solve matter [sic] relating to the children. A joint parental responsibility arrangement is likely to mean decisions relating to the children’s welfare will be delayed and hijacked by the parties [sic] appalling personal relationships. As both lack insight into how this state of affairs has come about, and neither shows any signs of responding to therapeutic assistance vis their relationship, the children’s interests requires that their mother continue to have sole responsibility for their long term welfare.

The property Judgment

31.Her Honour outlined the approach and case law relevant to a determination of an application under s 79 of the Act. She also outlined the requirement that the parties to make a full and frank disclosure, and identified the supporting case law.

32.The Federal Magistrate found the parties’ assets and liabilities (which were largely agreed) to be $430,280 which included an “add back” of funds of $10,125 retained by the husband, and a liability for the mortgage secured over the matrimonial home of $24,742. 

33.Her Honour also noted that the wife asserted that the husband had a property or an interest in a property in L which he had failed to disclose, as well as undisclosed cash (at [64]).The parties agreed that there was some discussion about the purchase of a property when the husband’s brother visited from L, but the outcome of the discussion was not agreed.

34.Thereafter her Honour discussed the evidence relied on by the wife to support her claim that she had advanced funds from her savings to acquire a holiday home in L, and rejected the wife’s evidence supported a capital contribution by her to purchase such a property.

35.Her Honour found, after examining the wife’s inability to demonstrate either a transfer of funds by the parties to L or any interest by the husband in the plans, that “…the wife has failed to establish that the husband has any interest in any property in L” (at [65]). In so doing, the learned Federal Magistrate specifically noted that she came to this conclusion despite “…unsatisfactory aspects of the husband’s financial disclosure, particularly in relation to receipt and disposition of funds during 2003” (at [65]), and made reference to the principles in relation to disclosure referred to in Weir v Weir (1993) FLC ¶92-338 and Black v Kellner (1992) FLC ¶92-287.

36.The Federal Magistrate examined the wife’s evidence in respect of a number of financial transactions entered into by the husband prior to the parties’ separation, some of which the wife was noted to assert formed an attempt to disguise matrimonial assets. Having recounted the husband’s evidence about a cash withdrawal of $35,000, the Federal Magistrate accepted his evidence. Thereafter her Honour considered evidence about a cash withdrawal by the husband of $17,000 which was paid to a company K C Pty Ltd, a company she noted was owned and operated by the husband’s brother. Her Honour said she “…thought it curious that the husband, who worked as a sub contractor, was paying [K C] rather than vice versa” (at [67]). Her Honour referred to the husband’s assertion that whilst “…on some jobs [K C] was the sub contractor and he worked for his brother, there were others where the husband was the sub contractor and his brother worked for him” (at [67]). The learned Federal Magistrate found that the withdrawal and tax invoice were evidence of genuine work expenses which were incurred by the husband (at [67]).

37.Her Honour then referred to a withdrawal made on 18 December 2003 of $10,125 paid to K C. The husband had asserted that this had been similar to the previous transaction. However, her Honour found that the husband had failed to explain why he was paying K C when his evidence was that he had not worked for the company since August 2003 and that it had not worked for him since that time (at [68]). As a result, her Honour accepted the wife’s submission that this transaction was evidence of the husband attempting to “secrete” matrimonial funds. She then considered whether or not these funds should be “added back” into the pool available for division between the parties.

38.The Federal Magistrate decided that although the funds could have been used by the husband as reasonable living expenses, without any explanation as to their use, they should be added-back into the pool under the Townsend v Townsend (1995) FLC ¶92-569 principles endorsed in Omacini v Omacini (2005) FLC ¶93-218 (at [69]).

39.On the issue of credit, her Honour found that both parties were “…prone to exaggeration” (at [71]) but that the “…husband’s evidence at times was confusing and in my opinion on others deliberately designed to mask the truth…With respect to him, his evidence was not so compelling that where challenged, I can comfortably accept his assertion” (at [73]).

40.Turning to the assessment of contributions her Honour found the wife to have made the greater initial contribution (at [73]), but, “…at least until 1997” both parties “…contributed all monies received, from whatever source, to joint matrimonial purposes” (at [71]). Her Honour further found that the wife’s non-financial contributions, excluding the building of the family home, exceeded the husband’s (at [80]). The Federal Magistrate also found the wife’s contributions as a home-maker and parent to be “significant” (at [81]), and that her “post separation homemaker and parenting contributions exceed the husband’s” (at [85]).

41.The wife claimed an adjustment in reliance upon the decision of the Full Court in Kennon v Kennon (1997) FLC ¶92-757 as a result of the domestic violence allegedly experienced by her and the older two children. Her Honour determined that “...the evidence is sufficiently strong to show the husband’s violence, physical and verbal, had a discernable impact on the wife’s contribution…this fall[s] within the narrow band of cases discussed in Kennon” (at [84]).

42.The Federal Magistrate concluded that the parties’ contributions should be assessed as being 62 per cent by the wife, and 38 per cent by the husband (at [88]).

43.Her Honour then turned to relevant s 75(2) factors. She considered the health of both parties, noting that the husband was in receipt of sickness benefits at the date of the hearing and that the wife suffered from back pain. She found that the wife’s health was “… even more fragile than the husband’s”, but declined to make any adjustment on that basis (at [89]).

44.Her Honour then considered the parties’ financial resources and income, noting that both had little income or resources. In respect of the husband she concluded:

I consider it is most unlikely that with his limited English skills, relative social isolation, age compared to his ability to undertake hard physical labour, that the husband will again maintain paid employment.

She also relied on the wife’s ill health and lack of workforce skills finding it was “improbable” she would ever return to paid employment.

45.

The Federal Magistrate determined that an adjustment should be made in favour of the wife as a result of her ongoing care for the children. Her Honour decided that there should not be any other adjustments under

s 75(2) except in relation to s 75(2)(n).

46.In discussing s 75(2)(n) which is in the following terms:

(2)      The matters to be so taken into account are:

…

(n)the terms of any order made or proposed to be made under section 79 in relation to:

(i)       the property of the parties; or

(ii)vested bankruptcy property in relation to a bankrupt party;

her Honour said:

Section 75(2)(n) achieves a cross-referencing between s 75(2) and
s 79(4). As a result of my earlier contributions phase findings the wife established an entitlement to receive 62% of the nett assets. The wife does not have the capacity to pay the husband his share and thus, unless the court adopts the husband’s approach of giving the wife exclusive occupation on the home until [C] turns 18 it must be sold. As the least worse scenario the wife accepts this possibility. The question then arises whether any adjustment in the husband’s favour is appropriate? Because the husband lives in parlous circumstances, is unlikely to return to paid work and without his share of the matrimonial assets has no capacity to improve his circumstances, an adjustment is appropriate. I am conscious that the wife will pay the mortgage whilst in occupation, however the mortgage repayments are considerably less then she would pay either for rent or for a home of comparable value if the husband’s interest was excluded. Giving the wife occupation of the home for the next five years is financially advantageous to her and disadvantageous to the husband. I make an adjustment in the husband’s favour pursuant to the subsection. This is a matter which attracts considerable weight.

47.In dealing with the issue of child support her Honour said:

As previously discussed, the child support currently paid by the husband for all three children is minimal. Given the husbands [sic] financial circumstances, it is unlikely that this will be increased. I make no adjustment pursuant to the subsection.

She then concluded, having regard to all her findings under the relevant subparagraphs of s 75(2), that an adjustment of 8 per cent should be made in the husband’s favour.

48.Having found that the overall effect of her determination was that the parties’ assets would be divided between them as to 46 per cent to the husband and 54 per cent to the wife, the Federal Magistrate then carefully summarised all her findings to determine whether the orders were just and equitable. In her discussion her Honour noted that whilst the wife would have the care of the children without adequate child support, she concluded the husband’s circumstances “are even poorer” and that “[h]is offer to delay taking his share of the matrimonial home is generous and financially advantageous to the wife.”

49.The Federal Magistrate then considered the form of the orders to be made by her and said she would make orders to give effect to her reasons including orders that the joint tenancy should be severed, and that both parties should be restrained from further encumbering the home until C attained eighteen years when the wife would have the opportunity to purchase the husband’s interest or if she was unable to do so for the matrimonial home to be sold.

The Husband’s Appeal

50.The Notice of Appeal filed by the husband on 29 May 2006 contained four grounds of appeal, all of which were pursued at the hearing, and were supported by written submissions filed on 2 November 2006. The grounds of appeal all attack the exercise of discretion by the Federal Magistrate and are as follows:

(1)The Court gave no weight or failed to give sufficient weight to the provisions of Section 60B of the Family Law Act 1975 and in particular Section 60(2)(b).

(2)The Court has placed undue weight and emphasis upon the age and stage of maturity reached by the 3 children and particularly in the case of [C]  and [A].

(3)The Court failed to give sufficient weight to the evidence of spontaneous visits by the three children to the father at his home.

(4)The Court erred in placing the responsibility for initiating contact upon the children.

51.The orders sought by the husband in lieu of those of the learned Federal Magistrate were that:

(1)That the Applicant father have contact with the child [F] born 23.03.1989 as agreed between the parties from time to time.

(2)That the father have contact with the children, [A] born 12.01.1992 and [C] born 12.12.1992 as follows:

a)each second weekend commencing on the first Friday following the date of this Order from 5.00 pm Friday to 5.00 pm Saturday.

b)Each second weekend commencing the second Saturday from the date of this Order from 5.00 pm Saturday to 5.00 pm Sunday.

c)Each Wednesday from 6.00 pm to 7.00 pm.

(3)That the father have such other contact with the three children [F] born 23.03.1989, [A] born 12.01.1992 and [C] born 12.12.1992 each Wednesday from 4.00 pm to 6.00 pm  and at other such times as may be agreed between the parties from time to time.

(4)That the father be permitted to telephone the children at any reasonable time.

(5)That the parties have joint parental responsibility for the long term care welfare and development of the children whilst they are in their respective care.

(6)That each of the parties be responsible for the day to day care welfare and development of the children whilst they are in their respective care.

(7)That contact changeover be implemented by the father collecting the children at the front gate of the mother’s place of residence and by him returning the children to that place at the conclusion of contact.

52.As we indicated at the beginning of our reasons, the position of the children’s representative was somewhat complicated. However, before us, following the withdrawal of the wife’s cross-appeal in respect of the parenting orders, Counsel for the children’s representative said she did “not seek to impugn the judgment”.

Appellate Principles

53.At this stage, it is appropriate to identify briefly the principles governing an appeal (and cross-appeal), particularly one against a discretionary judgment.

54.The law with respect to appellate principles is clear. In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621, Kitto J, at page 627 described the restraint that an appellate court should take in respect of discretionary judgments as follows:

There is a strong presumption in favour of the correctness of the decision appealed from and that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.

55.In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-505:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

56.In Gronow v Gronow (1979) 144 CLR 513, Stephen J stated at page 519:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight

57.In CDJ v VAJ (1998) 197 CLR 172 Kirby J said at pages 230-231 at paragraph 186:

186. …

1.Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another.  To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.

2.Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.

58.Before the Court the husband’s Counsel sensibly conceded that the Grounds of Appeal did not disclose any error of law and acknowledged his difficulty in arguing the grounds all of which involved challenges to the exercise of discretion of the learned Federal Magistrate in reliance upon the “weight” her Honour had given to relevant facts and circumstances.

The Husband’s Grounds of Appeal

Ground 1

59.Ground 1 of the husband’s Grounds of Appeal asserted that the learned Federal Magistrate gave no or insufficient weight to the object and principles of Part VII, specifically s 60B(1) and s 60B(2). The husband’s written submissions addressed sections of the Act as amended on 1 July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (‘the amended Act’). It was not suggested that the amended legislation governed the appeal although it clearly would govern any re-exercise of discretion.

60.Section 60B of the Act at the time of her Honour’s judgment relevantly provided:

(1)    The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)    The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:

(a)     children have the right to know and be cared for by both their parents…; and

(b)     children have a right of contact, on a regular basis, with both their parents…; and

(c)   parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d)     parents should agree about the future parenting of their children.

61.

In her judgment, the learned Federal Magistrate acknowledged the relevant sections of legislation, observing that s 60B “…is important as it provides the context within which the relevant s 68F(2) factors are to be examined and ultimately weighted. Where there are no countervailing factors, the

s 60B principles may be decisive” (at [38]). She then made observations about the right of contact as provided in s 60B(2)(b), and the importance of s 68F(2) factors.

62.The objects and principles of both the applicable and the amended Act emphasise the children’s right to know, be cared for, have contact with/spend time with both of their parents and other significant people, subject to the need to protect children from physical or psychological harm. In both versions of the Act, these objects and principles are subject to the paramount consideration, of the child’s best interests.

63.In this case, the learned Federal Magistrate specifically prevented the husband from having any actual contact with the children except such contact as they initiated. Her Honour considered carefully in making such an order the children’s clear wishes as expressed to Dr P, their “uncomfortable” relationship with the husband which included a sense of fear (at [45]), the fact that “…none of the children expressed positive support for additional contact” (at [46]), her finding that expressions by the children supportive of contact were an “…attempt to buy the family peace from their father” (at [46]), the history of family violence, and the necessity of making restraining orders against the father in an attempt to prevent family violence (at [51]).

64.The learned Federal Magistrate then stated that:

…continuing contact between…children and their father requires the children to suppress their own recollections and beliefs and embrace their father’s position. Requiring the children to so distort their own history is emotionally and psychologically abusive. Until the husband aligns his own attitudes more closely to the …children’s beliefs, contact with him is fraught with difficulty and in my view is not in the children’s best interests (at [50]).

65.In relation to parental responsibility, in making an order that the wife have sole parental responsibility under s 61C (which has not been amended), her Honour observed that since the husband had left the house in February 2003, “…the wife alone has made all decisions concerning the children’s welfare”, and that the “…parties have no capacity to discuss and problem solve matter [sic] relating to the children” (at [55]). Further, she stated, “[a] joint parental responsibility arrangement is likely to mean decisions relating to the children’s welfare will be delayed and hijacked by the parties’ appalling personal relationships” (at [55]). These observations were made in the context of her Honour’s findings regarding family violence, the husband’s lack of appreciation of the “…chasm between his view of the relationship with the children and their views of it” (at [49]), and he was “…incapable of accepting that the children have reached an age and stage of maturity which gives them the capacity to reflect on their own circumstances and make sound decisions” (at [46]).

66.It is apparent that her Honour was of the view, although not specifically articulated, that the above factors, combined with the fact that the children would reside with the wife and only have limited contact on their own initiation with the husband meant that the wife was the most appropriate person to be exercising parental responsibility with regard to the children, and that such a decision was in the children’s best interests. That conclusion was amply supported by the facts as found by her Honour.

67.Counsel for the husband submitted that

consistent with the objects of Part 7 [sic] and the principles underlying it the Court could using its power under Section 61D confer some aspects of parental responsibility upon the father so that, for example, he could be kept informed of the children’s progress at school, issues pertaining to their health and any significant religious or cultural issues that may arise in their lives during their minority.

68.As we have already said, the husband’s Counsel’s submissions refer somewhat confusingly to both provisions of the Act before and after the amending legislation. Her Honour was determining this matter in accordance with the law at the time of the making of her orders. We do not therefore see the relevance of the submissions which refer to s 61DA, unless they were included on the basis we allowed the appeal and re-exercised the discretion.

69.If what the husband’s Counsel was asserting is that her Honour, having made an order for the wife to have sole responsibility for making decisions about major issues involving the children, she did not order the wife to inform the husband about those issues, and the power to make such an order is found in s 61, we do not agree with that proposition.

70.First and importantly the Federal Magistrate’s reasons for making an order that the wife have sole parental responsibility was soundly based. Secondly what the husband sought in his Reply was an order for joint responsibility for long term care, welfare and development of the children, not orders requiring the wife to provide information about the children’s welfare to him. Thirdly, the order sought was, prior to the amending legislation, a specific issues order which could be made under s 64B(6) and would now be made under s 64B(2)(i).

71.In this case her Honour clearly considered the factors in s 60B(2)(c) and (d) and weighed these against the children’s best interests as the paramount consideration. Nothing to which we have been referred establishes that the learned Federal Magistrate erred either in preventing contact with the husband except as initiated by the children or in so concluding that the wife should have parental responsibility for the children by failing to have any, or proper, regard to the objects and principles of Part VII of the Act. Hence, this ground lacks merit.

Ground 2

72.Ground 2 asserted that the Court placed undue weight and emphasis on the age and stage of maturity of the children, particularly in the case of C and A. Although not specifically so stated, we take this to be integral to an attack on the weight the learned Federal Magistrate placed on the wishes of the children.

73.Her Honour considered carefully the relevant case law in relation to the issue of children’s wishes, specifically R v R: Children’s Wishes (2000) FLC ¶93-000. There is no assertion that her Honour applied the incorrect law. She also observed that there is a requirement for the Court to carry out a balancing exercise as observed by the Full Court in that case where it was said at page 87,072:

There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.

74.The children’s wishes were clearly expressed to Dr P, and none of the Grounds of Appeal sought to impugn Dr P’s credentials or the accuracy or reliability of his expert opinion evidence. The learned Federal Magistrate found that the children “…have reached an age and stage of maturity which gives them the capacity to reflect on their own circumstances and make sound decisions” (at [46]), and that given this, “…I am satisfied their wishes must carry great weight” (at [48]). The children were at the time of the hearing aged 17, 14 and 13. Nothing to which we have been referred establishes that her Honour gave the children’s wishes weight which was inappropriate given their ages. Her Honour determined that statements made by the children were only so made “…by a desire to find peace for the family, even if this means enduring contact in order to keep their father calm” (at [48]). She further determined that continuing contact while the father refused to accept the children’s view of their lives and family would be “…emotionally and psychologically abusive”.

75.Her Honour then went on to weigh the refusal of contact against the risk of harm to the family by the husband. It is clear that the learned Federal Magistrate weighed the children’s clear wishes against other factors relevant to the children’s best interests, and decided in all of the circumstances that it was appropriate to not order contact.

76.Nothing to which we have been referred under this ground indicates that the learned Federal Magistrate erred in exercising her discretion in the manner in which she did. No relevant fact or circumstance was asserted to have been overlooked in that process. Nor was any irrelevant fact or circumstance asserted to have been considered in the process. It has not been shown that her Honour gave the children’s wishes disproportion as to weight. The observations of Stephen J in Gronow v Gronow (supra) have particular application to this complaint.

Ground 3

77.Ground 3 asserted that the Court failed to give sufficient weight to evidence of spontaneous visits by the children to the husband at his home. Counsel’s submissions referred to sections of the transcript from the husband’s examination-in-chief in which it was asserted that the children had made “spontaneous visits” to the husband at his home. The references include a visit by all five children on Christmas Day (Sunday 25 December 2005), “…after Christmas and after two weeks”, a visit by F the day before Christmas, and following the visit a fortnight after Christmas “[e]very two weeks” since.

78.However, a closer examination of the transcript, and an examination of the consent orders of 3 September 2004 indicate that these visits were not necessarily spontaneous. Consent orders were entered into between the parties on 3 September 2004 and are recorded in the learned Federal Magistrate’s judgment as providing:

(1)    The father have contact to the children as follows:

(a)     Each alternate Sunday from the conclusion of morning mass to 3.00 pm…

(2)     The father shall collect the children at the commencement of contact from the Church of Mary at W…

79.It is not recorded by her Honour whether provision was made specifically for Christmas holiday contact in the orders, and a copy of the orders does not appear in the Appeal Books. However, it appears to be more than coincidental that the children had contact with the husband on the Sunday of Christmas and each alternate week following, and it would appear that this pattern reflects the Court orders, particularly given the husband’s admission that although the children went to his house by themselves on three occasions, on the other occasions, “[a]s usual I went to church to pick them up from church”, as provided for in the consent orders.

80.In relation to F’s visit with the husband on 24 December 2005 when asked by his Counsel Mr. Massey whether the visit surprised him, the father replied, “[n]o, I called him and asked him, ‘Are you busy? Can you come?’ He said, ‘Yes, I can come’”.

81.The learned Federal Magistrate clearly considered all relevant factors and weighed them appropriately, in the exercise of her discretion, in making the contact orders that she did and explained that process clearly in her Reasons for Judgment. There is no evidence to which we have been taken that there were “spontaneous visits” by the children to the husband. However, even if there were, this would not be sufficient for the Court to interfere with the exercise of discretion by the learned Federal Magistrate. The matters upon which her Honour clearly relied provided a sufficient foundation for her conclusions, even if there had been “spontaneous” visits by one of the children. It is by no means certain that her Honour’s orders had the practical effect of precluding future “spontaneous” visits in any event. There is no merit in this Ground of Appeal.

Ground 4

82.Ground 4 asserted that the Court erred in placing the responsibility for initiating contact with the children. It is evident that her Honour placed the responsibility for initiating contact with the children in an attempt to prevent the husband from harassing them or intruding into their lives “…under the guise of attempting to establish if they wish to see him” (at [52]). She also did not want the wife or the older children to have to facilitate contact between the children and the husband (at [54]), as a result of her concerns about the wife’s and eldest children’s emotional capacity (at [54]), and the possibility that such contact could bring the parties into close proximity with each other, which could result in conflict, and would not be in the children’s best interests (at [52]).

83.The Court has, since Mazur (1976) FLC ¶90-132, made orders, enabling children to arrange to spend time with their parents or other significant persons in their lives where that is found to be appropriate, given the children’s wishes, age and maturity, rather than forcing them to have specified contact when that would not be in their best interests. In making such a decision, the Court has held that it should not enable a child to determine what is in their best interests, but their wishes or views should be taken into account (R v R: Children’s Wishes (supra)).

84.The learned Federal Magistrate found that the children “…have reached an age and stage of maturity which gives them the capacity to reflect on their own circumstances and make sound decisions” (at [46]). The children expressed clear wishes to Dr P which her Honour found, “…together with their observed discomfort with their father, indicates the children want their father to leave them alone” (at [48]). The orders made by the learned Federal Magistrate do not prevent contact or the children spending time with or telephoning the husband. They do however give the children the ability to organise contact on their own terms, as is appropriate to their age and maturity.

85.Nothing to which we have been referred indicates that the learned Federal Magistrate erred in ordering that contact be initiated by the children, or that the basis upon which she did so was flawed. We find no merit in this ground.

86.No ground of appeal having been made out, the husband’s appeal must be dismissed.

The Wife’s Proposed Cross-Appeal

87.As we noted at the commencement of our reasons, the wife filed an application for an extension of time in which to file a cross-appeal against her Honour’s property orders, that application being filed some fourteen days after the date required by the Family Law Rules 2004 in which to file a cross-appeal.

88.The relevant principles to be applied in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave. (See also McMahon and McMahon (1976) FLC 90-038 at 75,144, Tormsen and Tormsen (1993) FLC 92-392 at 80,017).

89.The exercise of discretion also involves an assessment of prospects of a successful appeal or review.

90.On the facts of this case, it appears to us the most relevant factor to consider in the exercise of our discretion is the strength of the wife’s proposed grounds of cross-appeal, particularly in circumstances where the wife’s proposed cross-appeal would only have been filed two weeks out of time. We propose therefore to examine those grounds. The wife’s cross-appeal against the parenting orders (Grounds 1 and 2(i) to (iii)) was not pursued.

Ground 2(iv)

91.Ground 2(iv) of the wife’s Notice of Cross-Appeal is in the following terms:

The Court erred in rejecting the Wife’s claim that the Husband had failed to fully and frankly disclose his financial position and in finding that the Husband did not have property in L.

92.Counsel for the wife confirmed that this complaint was limited to the alleged “…property or interest in the property in L” (at [64]).

93.Counsel then referred to the learned Federal Magistrate’s Judgment in which her Honour referred to a sum of $10,125 which she added-back to the property pool for the reasons which she gave which included accepting “…the wife’s submission that here [sic] is evidence of the husband attempting to secrete matrimonial funds so that he alone could use them” (at [68]), and her conclusion that it was “…likely these funds remain with the husband’s brother and are available to the husband upon demand” (at [69]).

94.In support of this submission, reliance was placed upon her Honour’s earlier finding with respect to the “unsatisfactory aspects of the husband’s financial disclosure, particularly in relation to receipt and disposition of funds during 2003” (at [65]).

95.On behalf of the wife, reliance was placed upon the learned Federal Magistrate’s finding that the husband’s evidence “…at times was confusing and in my opinion on others deliberately designed to mask the truth” and that it “…was not so compelling that where challenged, I can comfortably accept his assertion” (at [73]).

96.It was thus submitted, in essence, that having found the evidence of the husband to be as her Honour described it at the various places to which reference has been made, the learned Federal Magistrate erred in requiring the wife to prove that the husband had an interest in property in L. In the circumstances of the case, it was submitted that the husband bore the onus of proving that he did not have such an interest, which onus he failed to discharge.

97.Counsel for the wife further submitted that, having made findings which brought the husband within the ambit of cases such as Weir v Weir (supra), the learned Federal Magistrate erred by being “unduly cautious” with respect to the husband when, on those findings of fact with respect to the husband’s credit, such undue caution was unjustified.

98.The learned Federal Magistrate referred, it is clear with the contentious issue of the husband’s interest in property in L in mind, to the decision of the Full Court in Weir v Weir (supra) (at [58]), and to the subsequent decision of O’Ryan J (at [59]) in L and L [2000] FamCA 401, in which His Honour summarised, it is not suggested other than accurately, the “principles” to emerge from Weir v Weir (supra) and the other earlier authorities.

99.Her Honour gave detailed reasons with respect to the issue of the husband’s interest in property in L (at [64]), it not being suggested that anything there recorded was dependent upon findings of fact which had not been reasonably open to her Honour on the evidence.

100.The learned Federal Magistrate further found that the wife “…did not establish the husband sent money to his brother by way of “…contributions to a property in L”, and also that the wife did not “…establish that the property depicted in the plans [tendered in evidence] was built” (at [65]). That finding has not been successfully challenged.

101.Her Honour recorded that “[n]o mention is made in the plans of the husband having any interest in the proposed dwelling” and concluded that “…the wife has failed to establish that the husband has any interest in any property in L” (at [65]). That finding has not been successfully challenged.

102.Her Honour observed “[e]ven bearing in mind the principles referred to in Weir v Weir (supra) and Black v Kellner (supra) referred to above, the wife has not proved the husband has an interest in property in L” (at [65]).

103.On the evidence before her, the findings of fact relied upon by the learned Federal Magistrate in relation to this issue have not been shown to have been other than reasonably open to her. It has not been submitted to this Court that there was other evidence to which her Honour should have had regard in relation to the issue.

104.It is not without relevance, given the basis upon which it is submitted that her Honour erred, that reservations were also expressed by her with respect to the credibility of the wife (at [71]). It is simplistic to suggest that the wife’s version of events in relation to the L property was necessarily to be preferred to that of the husband having regard to those findings.

105.With respect to Counsel for the wife, we do not interpret the learned Federal Magistrate’s Reasons as having impermissibly “reversed the onus” in relation to the disputed L property. There were competing versions of facts in relation to the topic and her Honour was obliged to determine the issue on the balance of probabilities, which she did.

106.The evidence before her Honour was equivocal. We do not understand the authorities to which Counsel for the wife referred us, including Weir v Weir (supra), to necessarily, and without more, mean, in a case such as this, and with findings of fact such as her Honour made, alter the requirement that facts be found on the balance of probabilities. It was the wife who was asserting that the husband had the interest in property in L. No independent or circumstantial evidence established that the husband was a “legal owner” of such property. Had he been shown to have held a “legal” interest in the property, the husband would have borne the onus of establishing that he had no beneficial interest in the property, but that is not what the evidence in this case revealed. The wife bore the onus of proving that, notwithstanding the absence of such evidence, the husband in fact had an “interest” in the property. Logic suggests that to require the husband to prove that he had no interest would be to impermissibly “reverse the onus” and prove a negative in the circumstances as found by the learned Federal Magistrate.

107.To the extent that the wife adduced evidence which created an evidentiary onus on the part of the husband, he responded to such evidence, his explanations being accepted by her Honour notwithstanding the reservations she expressed in her Judgment with respect to the husband’s credibility generally.

108.There may be cases where the nature and degree of financial non-disclosures are such as to lead to the Court drawing inferences of the kind asserted on behalf of the wife but this was not such a case. We are not persuaded by anything which has been put to us or to which we have been referred, that her Honour’s conclusion with respect to the husband’s alleged interest in property in L was not reasonably open to her on the evidence.

109.The wife has made an application to adduce further evidence in relation to that topic, to which the husband responded seeking that if, notwithstanding his opposition to the wife having leave to adduce further evidence in that regard, such leave be granted, he be granted leave to adduce further evidence in response. Should it be necessary, we will deal with that application later in the course of these Reasons. We record however that the challenge raised by this ground has not been made out.

Grounds 2(v) and 2(viii)

110.These grounds were argued together and provided:

“2 (v)The Court’s finding as to matters under S.75(2) were outside the generous ambit of the Courts [sic] discretion.”

and

“2(viii)There is a failure to provide proper reasons for the Court’s adjustment made in favour of the husband in relation to the Orders for exclusive use and occupation.”

111.With due respect to the labours of Counsel for the wife, the challenge to the adequacy of the learned Federal Magistrate’s Reasons for Judgment is without merit.

112.Her Honour identified the factors which gave rise to the s 75(2) adjustment which she concluded to be appropriate. It is not suggested that she failed to have regard to any relevant s 75(2) factor. Nor is it suggested that her Honour had regard to extraneous matters in the exercise of her discretion with respect to s 75(2). The course her Honour’s Reasons took is, in our view, not in doubt, nor does it provide the foundation for appellate intervention.

113.In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 McHugh JA said:

… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.

114.Soulemezis v Dudley (Holdings) Pty Ltd (supra) and other authorities were followed by the Full Court of this Court in Bennett and Bennett (1991) FLC 92-191. The Full Court there said at 78,266:

Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

In our view, her Honour’s reasons pass the tests which emerge from these authorities.

115.Ultimately, it is in the nature of determining a s 75(2) adjustment that a broad discretion is exercised. Attempts at articulating precisely why that discretion is ultimately exercised in a particular fashion, if possible, are unproductive, and, the law recognises, unnecessary. So much has clearly been recognised by the High Court.

116.In Norbis v Norbis (1986) 161 CLR 513 Brennan J said at pages 539 – 540:

The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite v. Satterthwaite) [1948] 1 All ER 343 at p.345 Asquith LJ. stated the rationale of an appellate court’s approach:

“…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.

117.

As was tacitly acknowledged by Counsel for the wife, the real thrust of the challenges embodied in these grounds was in fact to the quantum of the

s 75(2) adjustment determined by the learned Federal Magistrate, it being submitted that her Honour’s determination fell outside the ambit of reasonable exercise of discretion.

118.We have earlier cited from the judgment of Dixon, Evatt and McTiernan JJ in House v The King (supra) upon which Counsel for the wife relied.

119.It was submitted, in essence, that the learned Federal Magistrate could not properly, having had regard as she undoubtedly did to the relevant s 75(2) factors, have concluded that an adjustment of eight per cent constituted a reasonable exercise of discretion.

120.On behalf of the husband it was submitted that, although generous to the husband, such adjustment fell “within the range, albeit towards the upper end of such range”.

121.It is necessary to consider the factors which impelled the learned Federal Magistrate to conclude that an eight per cent adjustment in the husband’s favour pursuant to s 75(2) was appropriate.

122.Relevant for that purpose was her Honour’s conclusion, which has not been challenged in this appeal, that the net assets of the parties approximated $432,000. An eight per cent adjustment in favour of the husband for s 75(2) factors resulted in the husband receiving 16 per cent more of the net assets of the parties than did the wife. Such adjustment translated in monetary terms as $69,120.

123.Her Honour referred to the ages of the parties (the husband being 49, the wife 51), and, for reasons which she detailed made “no adjustment” by virtue of the health of either of the parties (at [89]). There is no suggestion that such conclusion was not reasonably open to her Honour.

124.Her Honour referred to the earning capacity of the parties and concluded that “no adjustment” to their contribution based entitlements was warranted by virtue of that factor (at [90]). That conclusion has not been challenged.

125.Reference was made to the ages of the children and the fact that they would continue to reside with the wife in the future (at [91]). The appeal proceeded, sensibly, on the basis that there were, in effect, ten years of child dependence relevant to be considered. Her Honour concluded that “there should be an adjustment” in the wife’s favour by virtue of her having the children residing with her. There is no suggestion that this was not a relevant s 75(2) factor.

126.Reference was made to the expenses of the parties, but “no adjustment” was made by virtue of them. There is no suggestion that any error was thereby entailed.

127.For reasons which she gave (at [92], [93], [94] and [95], the learned Federal Magistrate made “no adjustment” by virtue of s 75(2) (d), (e), (f) or (g). There is no suggestion that her Honour thereby erred.

128.Her Honour then articulated the factors which led her to conclude that a     s 75(2) adjustment of eight per cent in favour of the husband was appropriate (at [97]), and referred to her conclusion, which was clearly open to her on the evidence at trial, that the husband would not receive his entitlement out of the matrimonial home for almost five years, upon the youngest child of the marriage turning 18 years of age.

129.The learned Federal Magistrate concluded that “[b]ecause the husband lives in parlous circumstances, is unlikely to return to paid work and without his share of the matrimonial assets has no capacity to improve his circumstances, an adjustment [in his favour] is appropriate” (at [97]).

130.Her Honour referred to the fact that the wife would “…pay the mortgage whilst in occupation, however the mortgage repayments are considerably less than she would pay either for rent or for a home of comparable value if the husband’s interest was excluded” (at [97]). She concluded that the occupancy of the matrimonial home for the next five years would be “financially advantageous” to the wife and “disadvantageous to the husband” (at [97]).

131.Her Honour referred to the fact that “child support currently paid by the husband for all three children is minimal” and “unlikely” to be “increased”, but made “no adjustment” pursuant to s 75(2)(na) (at [98]).

132.The eight per cent s 75(2) adjustment was said by her Honour to reflect “the cumulative outcome of the findings I have made pursuant to section 75(2)” (at [100]).

133.The wife will undoubtedly pay the outgoings on the matrimonial home over the next five years. They are modest, and her Honour did not err in concluding that five years of occupancy of the home, during which the husband would receive no benefit of any kind from the home was advantageous to the wife and disadvantageous to the husband.

134.As noted earlier, the effect of her Honour’s decision was that, based upon current figures, the husband would receive $69,120 more than the wife by virtue of s 75(2) factors. That sum could be reasonably expected to be greater upon the sale of the home five years after her Honour’s orders in the light of inflation over that period. The husband’s interest remained in the nature of “an investment” on his behalf to which he would make no further contributions, either directly with respect to the investment itself or, other than to a nominal degree, indirectly by way of child support for the children.

135.As was submitted by Counsel for the wife, with, effectively, ten years of child support at as little as $50 per week, a figure of $25,000 would have been a conservative allowance to have been made in the wife’s favour within the context of the overall s 75(2) adjustment. As noted earlier, the learned Federal Magistrate made “no adjustment” by virtue of s 75(2)(na). It was submitted that her Honour had thereby erred.

136.

Whilst her Honour was undoubtedly exercising a broad discretion, in the circumstances of this case, to fail to include as a component of an overall

s 75(2) adjustment any allowance in the wife’s favour by virtue of lack of future child support was, with respect, to err.

137.Whilst it may have been preferable for the wife to have sought to have a departure application under the provisions of the Child Support (Assessment) Act 1989 (Cth) for lump sum child support determined by the Federal Magistrate (see Borg and Borg (1991) FLC 92-215) her Honour’s failure to make any adjustment in the wife’s favour ignored the reality of the situation, namely that she was unlikely to receive any adequate child support from the husband. Even if one accepts that the s 75(2) adjustment otherwise determined by her Honour to be appropriate fell within the reasonable exercise of discretion, the failure to factor into the adjustment the modest figure of $25,000 by way of future child support which the wife was not likely to receive would be sufficient to enliven appellate intervention.

138.It is unnecessary to refer in detail to the balance of this challenge to the learned Federal Magistrate’s s 75(2) determination, save to record that, in the circumstances as described by her Honour, the adjustment made in the husband’s favour, particularly in the absence of any countervailing adjustment in the wife’s favour pursuant to section 75(2)(na) was overly generous to the husband and fell beyond the ambit of a reasonable exercise of discretion.

139.We would thus find merit in the proposed ground and allow the wife an extension of time in which to file a cross-appeal.

Grounds 2(vi) and 2 (vii)

140.It could remain to consider these grounds of the wife’s Notice of Cross-Appeal which provided:

“2(vi) The court failed to properly deal with s 81 and its effect in the circumstances of the case.”

and

“2(vii) The court erred in finding that the Wife did not have the capacity to pay the husband to secure a transfer of that marital home into her name.”

We do not perceive that there is any need to do so however, given that the consequence of allowing the wife’s cross-appeal will be that the Federal Magistrate’s orders for settlement of property be set aside and the issue of property settlement remitted for re-hearing in the Federal Magistrates Court.

141.Unless this Court limits the scope of the re-hearing, the matters agitated in support of these grounds of the wife’s Notice of Cross-Appeal can be agitated at the re-hearing of the proceedings. To consider the challenges raised by these grounds would thus be no more than an academic exercise which the Court will not undertake. We do however observe that nothing to which we have been referred establishes that her Honour’s decision to defer the sale of the former matrimonial home constituted an error in the exercise of her discretion, although we note the wife’s complaint the orders do not provide any opportunity to the wife to purchase the husband’s interest in the matrimonial home prior to C’s eighteenth birthday no doubt because on the evidence she had no capacity to do so.

The further evidence Application

142.As noted earlier, in support of her cross-appeal the wife sought leave to adduce further evidence which, if accepted was asserted to impact upon the probabilities of the husband having an interest in property in L. For his part, the husband sought, if the wife’s further evidence were allowed, to adduce further evidence to rebut any suggestion that he had any interest in property in L.

143.The extent to which it is necessary to determine the further evidence application depends upon the future course which we otherwise consider the proceedings between the parties should take.

144.

On one view, it might be thought possible to remit only the s 75(2) and

s 79(2) component of the proceedings for re-hearing given the absence of challenge to the learned Federal Magistrate’s conclusions with respect to contributions. Even in that context, the beneficial ownership of property in L would be a matter validly able to be contested within the context of the s 75(2) and s 79(2) determinations. The difficulty however that would create is that the contribution entitlement of the parties would be likely to require revisiting in order to do justice and equity to the parties if the husband was found on the evidence as it emerged at the re-hearing to have a beneficial interest in property in L.

145.Albeit not a reason for determining that the proceedings should be remitted for re-hearing without seeking to limit the scope of such re-hearing, as is apparent from the further evidence advanced by both parties, this Court is not well placed to decide that application given that the further evidence in respect of which each side is diametrically opposed. It could be said on behalf of the wife that “if accepted” as that term can be understood in the light of the judgment of the majority in CDJ v VAJ (supra), the wife’s cross-appeal would be entitled to succeed. On behalf of the husband it can be said that “if accepted” the evidence advanced on his behalf would support the learned Federal Magistrate’s conclusions with respect to property in L, as the majority in CDJ v VAJ (supra) clearly contemplated could occur. Only by allowing the further evidence relied upon by each party to be tested could the question of “acceptance” be properly decided.

146.The funds of the parties are limited. The issue of the beneficial ownership of property in L will be revisited regardless of the terms upon which this Court remits the proceedings. In our view, the interests of justice would be better served by allowing the issue to be revisited in circumstances enabling the Federal Magistrate re-hearing the proceedings, having determined the issues of fact relating to that topic, to be unfettered in the exercise of his or her discretion. We would not wish the parties to interpret our approach as encouragement to otherwise revisit issues of contribution. On the contrary, the learned Federal Magistrate’s conclusions in that regard appear to have been open to her on the facts as she found them, and have not been challenged on appeal by either party. We thus propose remitting the proceedings for re-hearing before a Federal Magistrate and not seeking to limit the ambit of the discretion which such Federal Magistrate will exercise. Plainly, in accordance with Allesch v Maunz (2000) 203 CLR 172, the evidence sought to be adduced by either party in the context of the wife’s further evidence application would, subject to admissibility, be able to be adduced on the re-hearing.

Costs

147.In our view each party should have a costs certificate with respect to the cross-appeal and the re-hearing.

I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:     

Date:  22 May 2007