BROUGHTON & BROUGHTON - [2018] FamCAFC 96

FAMILY COURT OF AUSTRALIA

BROUGHTON & BROUGHTON

[2018] FamCAFC 96

FAMILY LAW – APPEAL – PARENTING – Where the husband asserts that the trial judge failed to apply the principle that children should be protected from exposure to family violence – Where the trial judge gave specific and prominent consideration to this issue – Where the trial judge made no error in considering the need to protect the children from exposure to family violence – Where the trial judge refused to allow the husband to present evidence of recordings that he had made of conversations taking place between him and the children, and him and the wife – Where the recordings are at least arguably relevant, and thus prima facie admissible – Where the tender of the recordings raises the application of s 138 of the Evidence Act 1995 (Cth) (“Evidence Act”), as it is quite possible that the recordings were improperly made (s 5 Listening Devices Act 1992 (ACT)) – Where it would have been grossly unfair to have allowed admission of the recordings at such a late stage in the proceedings, under such circumstances (ss 135 and 136 Evidence Act) – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the Court is not persuaded that the trial judge erred in finding that the husband had “acted recklessly, negligently or wantonly” in causing the diminution of the value of the former matrimonial home – Where the trial judge correctly took those findings into account when considering the relevant s 75(2) factors – Where the husband failed to establish that the trial judge’s findings of fact in relation to the damage to the property were not open on the evidence – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the Independent Children’s Lawyer sought an order for costs in the event that the appeal was unsuccessful – Where an order for costs would cause financial hardship for the husband – No order as to costs.

Evidence Act 1995 (Cth) ss 55, 56, 135, 136, 138
Family Law Act 1975 (Cth) ss 43, 117(4)
Listening Devices Act 1992 (ACT) s 5

Broughton & Broughton [2014] FamCAFC 206
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

APPELLANT:

Mr Broughton

RESPONDENT:	Ms Broughton
INDEPENDENT CHILDREN’S LAWYER:	Strong Law Pty Ltd

FILE NUMBER:

CAC

1600

2012

APPEAL NUMBER:

140

2016

DATE DELIVERED:

25 May 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Aldridge and Gill JJ

HEARING DATE:

5 September 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 July 2016

LOWER COURT MNC:

[2016] FCCA 1920

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr L Reeves

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Strong Law Pty Ltd

Orders

The appeal be dismissed.
No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 140 of 2016
File Number: CAC 1600 of 2012

Mr Broughton

Appellant

And

Ms Broughton

Respondent

REASONS FOR JUDGMENT

The background to this appeal reveals a particularly difficult path of litigation for the parties. Initial final property settlement orders were made by Judge Brewster in the absence of Mr Broughton (“the husband”). An application by the husband to set aside those orders was dismissed by Judge Turner, and the husband successfully appealed against that order (Broughton & Broughton [2014] FamCAFC 206). The property settlement proceedings were remitted for rehearing and consolidated with the parenting proceedings that were on foot.
The rehearing of the property settlement proceedings and the hearing of the parenting proceedings were conducted by Judge Hughes over approximately seven days and judgment was delivered on 29 July 2016. A Notice of Appeal in relation to both property settlement and parenting orders was filed on 26 August 2016 with the appeal heard by this Court on 5 September 2017. Ms Broughton (“the wife”) opposed the appeal, as did the Independent Children’s Lawyer (“the ICL”) in relation to the appeal against the parenting orders.
We note at this stage that the husband sought leave to appeal the orders of the trial judge, but that was unnecessary.
Before the Full Court set aside the earlier order of Judge Turner, the husband dismantled and removed a number of renovations that had been made to the family home, substantially reducing its value.
The hearing was set to commence on 27 July 2015 before Judge Hughes, but in the week prior the husband was hospitalised due to a deterioration in his mental health. The proceedings were adjourned and commenced on 15 February 2016. Interim orders were made on 20 October 2015 limiting the time the children would spend with the husband and imposing a number of conditions relating to that time being supervised. That time was increased and the supervision requirements relaxed by orders made on 10 December 2015.
Both parties appeared without legal representation at the trial and at the appeal before this Court. This lack of representation presented significant difficulties for each party in the presentation of their cases, and for the trial and appeal courts in determining them. The Court did receive assistance from the ICL who participated in both the trial and the appeal.
The difficulties were particularly apparent in the appeal. While the husband was convinced that the wrong decision had been made both in relation to the property settlement and the parenting orders, it was difficult to discern from the complaints presented by him what were true grounds of appeal. An appeal requires the demonstration of error, either in relation to the facts found by the trial court (in accordance with the principles reiterated by the High Court in Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 (“Robinson Helicopter”) at [43]), or an error in the exercise of the discretion by the trial judge (House v The King (1936) 55 CLR 499 at 504–505).
The complaints expressed in the husband’s Notice of Appeal communicate a deep dissatisfaction on his part, but do little, if anything, to identify error.
In these circumstances, the husband was permitted to clarify his position in his oral submissions.

The Parenting Appeal

The husband asserted that the Orders made by the trial judge failed to accord with the principles set out at s 43 of the Family Law Act 1975 (Cth) (“the Act”), in particular the principle that children should be protected from exposure to family violence.
The husband complained about the trial judge’s findings regarding:
a)   the wife attending the home post-separation and abusing the husband in the presence of the children;
b)     the consequence of the wife’s conduct causing the child X to have panic attacks and the child Y to suffer nightmares;
c)     the views of the children.
The husband said that the primary psychiatric evidence directed to his mental health, presented by Dr W, was flawed because of material improperly sent to Dr W, and which evidence was accepted in its flawed state.
The husband complained that the trial judge had wrongly refused to allow him to present evidence of recordings that he had made of conversations taking place between him and the children, and him and the wife.

The husband asserted that the Orders made by the trial judge failed to accord with the principles set out at s 43 of the Family Law Act 1975, in particular the principle that children should be protected from exposure to family violence

At [140] – [144] the trial judge gave specific and prominent consideration to this issue. Further, at [169] the trial judge stated that in this case, “paramount” amongst the considerations for the best interests of the children was the need to protect them from harm. The trial judge dealt both with the issues of whether the wife presented a risk of harm and whether the husband presented a risk.
It is important to note the key matters that were identified by the trial judge in relation to risk. Her findings in relation to the husband were that while he had never threatened or caused harm to the wife or the children, his mental health, previous suicide plans and currently unsettled state meant that he constituted a risk of exposing the children to psychological harm and potentially physical harm, particularly where his genuinely held beliefs, for example about the children’s suffering with the wife, were “clearly wrong” (at [143]), and where he had previously failed to comply with safeguards put in place by interim orders designed to maximise his time with the children.
The trial judge found that the wife did not constitute a risk but that the husband did (see, for example, [141] and [161] – [162]). We shall deal with those findings shortly. The trial judge made no error in considering the need to protect the children from exposure to family violence.

The husband complained about the trial judge’s findings regarding the wife attending the home post-separation and abusing the husband in the presence of the children

The husband complained that the trial judge had found that he was making up his version of events regarding the wife breaking into the home after separation and taking items, and that the trial judge wrongly failed to find that the wife abused him in the presence of the children. Further, he said the trial judge was wrong to say that such behaviour, screaming at and abusing him in the presence of the children, ended at the date of separation.
At [159], accepting a concession made by the wife, the trial judge found that the wife had yelled at the husband up to the date of separation. Her Honour found that it was not violent, threatening, coercive, controlling or such as to cause fear. The husband cross-examined the wife about the alleged abuse as follows:
Would you agree that you were yelling and screaming at me in front of the kids, called me a fucking cunt and told me you’re going to take me for everything I’ve got?---On what date? Where was this?
HER HONOUR: Well, did you ever do that?---I don’t recall. I – we – we probably did yell at each other a few times, but I don’t even like that word, so I don’t believe I would use it.
[MR BROUGHTON]: Would you agree that you were yelling at me in front of the children on a separate occasion? The children were extremely upset. You were yelling and you threatened to have the – to call the police on me?---On what date was this? Sorry.
Would you agree that you - - -?---No. I asked you a question. What date?
HER HONOUR: Sorry. Have you ever yelled at him in front of the children?---I think there was one occasion, yes, your Honour, where he upset me, and he upset the children.
[MR BROUGHTON]: Would you agree that while you were yelling at me the children were crying. [X] started to sob uncontrollably and said, “Dad, I’ll just go with her. I’ll just go with you. I don’t want the police to come around and take you away”?---No, I don’t recall that, and I don’t believe that you can speak for the children.
HER HONOUR: Did you threaten to call the police in front of the children?---I don’t remember saying that.
Is it possible?---It could be possible. I don’t know.
Do you remember the incident which the father is talking about which is that [X] saying, “I’ll go with you instead of the police coming”?---No, not really, your Honour.
(Transcript 16.2.16, page 184 line 17 - page 185 line 3)
In a later exchange between the husband and the trial judge, regarding his previous seeking of a “psych report” on the wife, the husband again raised the issue of the verbal abuse:
…I ask that she have a psych report done. You wouldn’t grant me one. You know - - -
HER HONOUR: There has to be a proper basis for it.
[MR BROUGHTON]: Yes. Well, for her yelling and screaming at me in front of the children, calling me an effing C, telling me she’s going to take me for everything I’ve got in front of the children, telling she’s going to call the police on me in front of the children.
HER HONOUR: Okay.
[MR BROUGHTON]: These are all things that she has done.
HER HONOUR: These are all things at the time of separation, weren’t they, or, you know, close to it.
[MR BROUGHTON]: Yes. But there’s more. You know, the Child Support Agency - - -
(Transcript 16.2.16, page 234, lines 27 – 45)
The wife was further cross-examined about this matter:
[MR BROUGHTON]: [Ms Broughton], you inferred and confirmed that you did yell at me, but you put that down to stresses over property issues at the time; is that correct?---No. I believe I said that it was situational; it was shortly after separation. I don’t disagree that we probably yelled or I may have yelled.
Okay. So would you agree that your yelling was a tribute of stress?---Sorry. Are you asking - - -
HER HONOUR: Was it attributable to stress?---On that one occasion?
[MR BROUGHTON]: There were numerous occasions that we discussed yesterday?---Well, I don’t understand the question, your Honour.
HER HONOUR: Well, first of all, do you agree there was more than one occasion in which you yelled at the father?---There could have been. I think I answered that yesterday when I said “possibly”.
Yes. All right. And the next question he asked was do you say that those occasions were attributable to stress?---No, not attributable to stress. I answered the question before when I said it was a stressful situation for both parties, there was high conflict and it was situational.
(Transcript 17.2.16, page 277 line 40 – page 278 line 13)
In what was clearly a difficult case to follow, given that both parties were without legal representation, the trial judge sought to clarify the scope of the assertion by the husband of the wife’s alleged verbal abuse of him. During the wife’s cross-examination of the husband, the following exchange occurred between the trial judge and the husband:
HER HONOUR: I just want to just be clear about one thing. When you say – because I think I’m getting the hang of what you’re saying, but – “how you are harming the children, and I don’t know if it’s deliberate, and I hope once the case settles your behaviour will settle down” – I take that to be you’re seeing the harm in terms of the children not being able to freely express how they feel, and wanting to go back to an arrangement, because they feel they’re not allowed to talk about it because of the court proceedings; is that what you mean by that?---That’s one part of the problem. The other part is, you know, [Ms Broughton] yelling, abusing, swearing at me in front of the children; you know, [Ms Broughton] turning up to my house unannounced.
But hang on. Didn’t you agree that - - -?---You know, it’s all of that type of behaviour.
But you’re not suggesting that she has been screaming, yelling, abusing you after separation, are you?---No, no, that - - -
But you’re saying, “The children are being harmed by your behaviour.” So you’re talking about current behaviour?--- Mmm.
But the yelling at you is back at separation in 2011. So that’s why I keep getting confused, because you seem to be suggesting the children are suffering domestic violence now - - -?---The part of - - -
- - - and you refer to yelling and screaming at separation and in the months leading up to separation; that’s your evidence. So I get confused why you’re saying they’re being domestically abused now?---The yelling and screaming and swearing at me, and everything, in front of the children, mainly ceased when [Ms Broughton] got access to the children. The domestic violence, and the other facts that have taken over from that, although that has eased is a good thing, is things like refusing the children to see me;
the children – with what [Ms Broughton] has been telling the children. Also the children seeing that – you know, the way that – the way that – things like the children get – it’s my feeling they get interrogated repeatedly after the visits. Like the last one - - -
No, hang on. Look, I just want a summary - - -?---Yes.
- - - because you keep referring to it, and I’m – it’s very hard to hang on to. So it’s yelling and screaming leading up to separation, and shortly after separation, by what you’re saying. The refusing to let the children see you, and interrogating the children after visits and telling the children that they’re not allowed to speak about court or what they want; is that a summary?---Yes, and the beratement of me.
Denigration of you?---Yes.
Right. Okay. Anything else that you say forms this abuse of the children?---There may be. I just can’t think of it right at this second.
Thank you.
(Transcript 19.2.16, page 530 line 19 - page 531 line 16)
Despite some uncertainty in the evidence about the extent of the screaming, the trial judge was entitled to rely upon the husband’s above statements confining the behaviour to prior to, and at about, the time of separation. This was despite the wife’s concession of at least one incident occurring post-separation, as set out above.
The trial judge’s finding about this matter is at [159] where she notes the wife accepted the husband’s allegation that she yelled at him “in the period leading up to their separation”.
This finding does not constitute a material departure from what was asserted by the husband to the trial judge in relation to the allegation of the abuse of him by the wife. In fact, it accords with the evidence. To the extent that the husband gave evidence that the abuse continued after separation, it was not accepted by the trial judge. The husband has not pointed to any incontrovertible evidence that undermines that finding (Robinson Helicopter at [43]). Accordingly, these submissions do not succeed.

The husband complained about the trial judge’s findings regarding the consequence of the mother’s conduct causing X to have panic attacks and Y to suffer nightmares

The husband asserted that the consequence of the wife’s conduct was that their son X had suffered from panic attacks and their daughter Y had suffered from nightmares. We have already referred to the finding that the wife was verbally abusive towards the husband up to the time of separation. There were no findings as to abusive behaviour after separation or as to behaviour that would cause the children to suffer panic attacks or nightmares. This alone makes it difficult for this challenge to succeed.
Under cross-examination the husband referred, in a general sense, to X having panic attacks at school and Y having nightmares (Transcript 18.2.16, page 498, lines 4 – 11). He asserted that X has panic attacks “just about every occasion that I see him”. At its clearest the panic attacks, and their occasions, were described by the husband as follows:
[THE ICL:] Are you saying that symptoms of the panic attacks, anxiety attacks, and distress are just in that moment of handover time when you and [Ms Broughton] are together?---It’s most prevalent in the times when the children know that our time together is coming to an end.
(Transcript 22.2.16, page 717, lines 29 – 32)
As to the details of the nature of the panic attacks, under cross-examination by the ICL, the husband described them as follows:
Just coming back for a moment to the panic attacks by [X] and the anxiety attacks by [X], when was the last time that you are aware of [X] having an anxiety or a panic attack?---That would be – it’s just about every occasion that I see him, but his – his symptoms, the way he – the way he expresses it now has changed because he knows that he’s not allowed – he’s not allowed to show his emotion.
So how does he express it now?---He expresses it now by being silent, retreating – retreating into – into – with it – into himself. He expresses it now by trying to stop his eyes welling up and tears rolling down his cheeks, but oftentimes he’s unsuccessful. He expresses it by displays of – of – of anger and - - -
How does he display anger? What does he do?---He does not like to talk for the period of time when this is happening. He does he – he – his anger by shutting down conversation, by – by not wanting to participate.
So when you say “display of anger”, you mean non-action, not something actively acting out anger?---His responses are short, sharp and his voice is slightly raised from where it would be.
(Transcript 22.2.16, page 716, lines 24 – 41)

The husband accepted that he called no supporting evidence as to either the nightmares or the panic attacks. While he initially asserted that panic attacks had occurred at the school, no evidence was presented from the school to such effect. The wife was not cross-examined as to whether or not X was suffering from panic attacks. While the husband said that a number of recordings that he made (which will be dealt with later) would, if admitted by the trial judge, have supported the idea that panic attacks were taking place, he conceded that none of them referred to such panic attacks.
Importantly, the husband’s written submissions before her Honour sought no findings as to either nightmares or panic attacks. Accordingly, as noted above, it is entirely unsurprising that the trial judge made no direct findings about either. Under those circumstances the complaint about the trial judge’s fact finding as to panic attacks and nightmares is not made out.

The husband complained about the trial judge’s findings regarding the views of the children

The husband’s position at trial was that the children each held the view that they wanted to have equal time with each of the parents. The trial judge at [145] accepted that this was the case, but then said this:
146.The children are now aged ten and almost nine years respectively. At their ages their views should be accorded some weight. However their father suffers mental ill health which is likely to have begun before the end of the relationship and was continuing at some intensity at the time of the trial. The children are not in a position to assess the implications of their father’s illness and whether it is in their own best interest to spend substantial time with him. If he was not unwell it is likely their views would be accorded significant weight but his mental illness and the risks associated with it persuade me to give the children’s views less weight than would otherwise be the case.
Also see [150] and [152].
We are not persuaded that her Honour erred in making these findings.

The husband complained that the primary psychiatric evidence directed to his mental health, presented by Dr W, was flawed on the basis of material improperly sent to Dr W, and which evidence was accepted in its flawed state

This issue was dealt with by the trial judge at [106] and following. The flaw the husband asserted arose from the ICL providing Dr W with material about a previous criminal conviction attributed to the husband.
The husband says that the material regarding the conviction that was given to Dr W was wrong and that it caused Dr W to adversely change his view of the husband. However, the evidence did not support this contention. Dr W, when questioned about the additional material, indicated that it had not caused him to change his view (Transcript 23.2.16, page 796, lines 38 – 46), and that he remained neutral about the additional material in the absence of further information. Even if this material was wrongly sent to Dr W, it can be seen that it had no impact upon the fact finding in the proceedings.
To the extent that Dr W changed from his initial position, including his view that the husband was “in sufficient good health to be a capable and safe parent for his children on an unsupervised basis” (quoted by the trial judge at [142]), this change arose from other material that he was provided with. The ICL had also provided material as set out by the trial judge at [111], being various applications and affidavits filed by the husband and Exhibit ICL 4, being correspondence from the husband to the ICL. These did not cause Dr W to “resile from the broad thrust” of the report, but did cause him to consider that the husband may not be “settled enough in his outlook” (at [112]).
The complaint is not made out.

The husband complained that the trial judge had wrongly refused to allow him to present evidence of recordings that he had made of conversations taking place between him and the children, and him and the wife

References to various recordings made by the husband are contained in his affidavit material. Without necessarily comprising an exhaustive list (each party relied on in excess of ten affidavits at the trial), references are made at:
a)Paragraph 13 of the husband’s affidavit of 30 September 2014, where the husband says that since an interaction with the wife in 2011 where the wife “sat on the couch and said words to the effect of ‘I have genuine concerns for my safety’” he has recorded “every communication (within my power) with [Ms Broughton]. In these recordings [Ms Broughton] has repeatedly threatened to ‘take the kids off me’ if I don’t give her ‘what she wants’”. The husband said that he had copies that could be supplied to the Court.
b)Paragraph 34 of the husband’s affidavit of 10 September 2014, where the husband asserts that he has recordings of the wife yelling and screaming in front of the children, that she had called him a “fucking cunt” and that she would take him for all he had. These were not what he ultimately sought to tender.
c)Paragraphs 71 and 76 of the husband’s affidavit of 13 April 2015, where the husband asserts that the wife was aware of the recordings. He asserts that the only recordings that he has of the children are from when he has called them and that he has never recorded a conversation between the children and the wife.
d)Paragraph 11 of the husband’s affidavit of 10 December 2015, where the husband summarised the recordings of the children he sought to rely upon (made between 11 October 2014 and 4 September 2015).
The subject matter of the recordings was referred to at a number of points during the hearing.
The first reference occurred at the commencement of the trial, during an application made by the husband for the trial judge to disqualify herself:
MR [BROUGHTON]: I have composed a short audio thing based on the – my conversations with the children. It demonstrates the impact that it has on the children.
HER HONOUR: No. I’m not going to allow that because what you have to demonstrate is that my decisions have not been - - -
MR [BROUGHTON]: Well, it’s - - -
HER HONOUR: - - - have been such that would cause an independent person to have concerns about whether I’m impartial.
MR [BROUGHTON]: I think it relates in the fact that I have told you about this. I’ve put these conversations in my affidavits. And it relates to the sections of the Family Law Act which relate to the children, and the impact of those orders, and the wellbeing and stuff of the children. I think it relates there.
HER HONOUR: Okay. I’m not going to allow you to play that today - - -
MR [BROUGHTON]: Okay.
(Transcript 15.2.16, page 26 line 32 – page 27 line 3) (Emphasis added)
During cross-examination of the husband by the wife, the husband, in discussing his pending re-examination, said to the trial judge:
I have done – I have got a recording that I want the court to hear and it’s the children. It’s imperative ‑ ‑ ‑
Let’s talk about it tomorrow because it’s 5 past 5?‑‑‑Yes. Okay. Think about this overnight, it’s imperative to understand the emotional position of the children ‑ ‑ ‑
Is this a recording of the mother yelling?‑‑‑No. The mother is not in it at all it’s just the children ‑ ‑ ‑
Doing what?‑‑‑Expressing their desires and their frustrations.
Their views about their living arrangements?‑‑‑Yes. And saying ‑ ‑ ‑
How did you come to get a recording about that?‑‑‑I made no secret of the fact that I have recorded all the conversations.
So you sat them down and asked them questions and recorded a conversation?‑‑‑No, no. I would never do that. Jeez. The children ‑ ‑ ‑
Sorry. How did it come about, I’m asking you?‑‑‑When the children been at their mother’s place and I talk to them every night I have my other phone there and done that. The children have never been aware of me recording any conversations. It’s the conversations that I have with them I record.
I think ‑ ‑ ‑?‑‑‑And that has stopped anyway because you made an order saying that was stopped.
Good. We will talk about that tomorrow morning. Okay ‑ ‑ ‑
(Transcript 18.2.16, page 507, lines 15 – 42) (Emphasis added)
The matter was not raised the following day. The question of recordings next arose during the cross-examination of the husband by the ICL. The context was the ICL questioning the husband as to whether the children had ever been diagnosed as suffering from mental health issues or emotional distress. The husband said:
…psych report done. I’ve got – I’ve got some – a compilation of phone calls that were made, which I sent to [Ms Broughton] and the ICL, which I would like the court to hear.
HER HONOUR: All right. We will just get Ms Strong to keep going with her questions for the minute.
MS STRONG: Thank you?---It clearly sets out how – how affected the children are.
HER HONOUR: What is it? A series of what? Compilations of what? Are these recordings?---Yes.
(Transcript 22.2.16, page 706, lines 20 – 28)
The next occasion the matter was raised was when the husband offered to listen to recordings he had made to answer a question from the ICL as to his response to Y when she was upset on the telephone (Transcript 22.2.16, page 708, lines 1 – 3).
The husband again raised the issue of recordings in re-examination:
HER HONOUR: But, in any event, what’s your next matter you want to tender, Mr [Broughton]?   The – the phone calls that I’ve put together which relates to the – the – the emotional impact on the children in between the change of orders.
This is the recordings of the children saying things?   Yes.
Yes. I think I’ve already ruled on that, haven’t I? That because as a matter of public policy it’s not good to have recordings of children come into the proceedings because that just encourages people to record their children saying things which leads to interrogation of them, etcetera. It’s not a good idea. You’ve given evidence about they’ve said certain things?
Yes. And I’ve also – I’ve also got recordings, as I – as I mentioned, that I’ve recorded everything after I felt a genuine need to protect myself from – from the abuse. And so all the evidence that I give in relation to, you know, abuse and everything like that, I can – which I’ve – which I’ve
This is abuse at the time of separation?   Yes, at the time and after separation. All – all after.
How long after? What’s the longest time after?   Until you made the orders that I’m not to record any phone calls. So – but
Which was when?   That was probably a couple of months after the children went to
Yes?   So – and all the – and the problem is with the – with the evidence that I’ve got in my affidavit, you know, it needs supporting evidence to support it otherwise it’s just the husband’s word, you know, and if I can’t produce that supporting evidence I’m not given a lot of credibility.
So the recordings are – there are two categories. Some are you recording the wife and some are you recording the children; is that right?   Yes. All – all interactions that I had with the – with the wife, all conversations, everything like that, I’ve always had my recorder on just for protection. And then, you know, the wife states in the affidavit, well
But at the end of the day why is that relevant? You’re seeking a week about arrangement so why is it relevant? What difference is it going to make about your credibility? Well, it’s – it’s relevant in the fact that – that, you know, if – if – if I pressed an application to have sole parental responsibility for the children it’s my belief that – given the Family Law Act and the history of the case that I would, without a shadow of a doubt, be granted that, but I find myself having to defend myself against [Ms Broughton’s] allegations, which are baseless and often times lies, and I’ve put this in my affidavits and I’ve got the supporting evidence in the – in these recordings, but not being able to put them in
So you say they’re recordings of the mother abusing you?   Yes, there’s recordings of [the] mother abusing me, me getting death threats, me getting, you know, threats that my house is under surveillance, me getting threats the children are going to be taken off me if I don’t comply with her wishes. Recordings of her abuse, and yelling and swearing in front of the children.
But at the end of the day you want the children to live with her half time. That’s your application?   Yes, that – yes.
So you obviously don’t think it’s an unacceptable risk to the children, but it’s really just to demonstrate that what you say is right?   Well, the other thing is [Ms Broughton] has demonstrated continuously how she has involved the children. She has no concern about involving the children. If I were to – and to use the children as a weapon against me. And the things that she has done demonstrates that she has no concern about the wellbeing of the children. If I went for full custody what is her – what is her next
So it’s a theoretical discussion?   Yes. What is her next level? Well, then, this is not a theoretical discussion. Every time that I’ve gone through the court process and [Ms Broughton] keeps amplifying the – the – the claims against me, and the allegations and things that are baseless.
How is she amplifying it? She’s saying she’s worried about your mental health. You’ve been admitted involuntarily to hospital twice. That has got nothing to do with her in terms of her amplifying it. She’s stating a fact. It is a fact you have been admitted twice because of concerns about you suiciding. So she didn’t make that up.
That’s coming from you. In any event, in relation to the recordings it’s too late in any event in the proceedings. I’ve already ruled once on them. I don’t intend to change my ruling. I do not allow you to use the recordings in relation to recording the mother or recording the children. So what’s the next thing you want to tender?
(Transcript 22.2.16, page 736 line 23 – page 738 line 4)
(Emphasis added)
There is some ambiguity as to what material the husband was attempting to adduce at this point. His application commenced with reference to recordings of the children. Subsequently he discussed with the trial judge recordings of the wife. It is somewhat unclear whether the tender was as to one or both of these aspects.
The substance of the recordings of the children was already in evidence in the summaries of them contained within the husband’s evidence. Although he asserted that the recordings themselves would add to the veracity of that evidence, the summaries did not appear to be in dispute. The recordings would therefore add little to this aspect of the dispute and it is difficult to see how any rejection of them, insofar as they related to the children, could constitute a material error.
Nevertheless, recordings of the children identifying the emotional impact of the change of arrangements from equal shared care, and recordings of the wife being abusive of the husband are both at least arguably relevant, and thus prima facie admissible (ss 55 and 56 Evidence Act 1995 (Cth)).
The trial judge gave two bases for the refusal to admit the material. The first, which was as to both recordings of the wife and the children, was that it was “too late in any event in the proceedings” (Transcript 22.2.16, page 738 lines 1 – 2). The second, which was in relation to the recording of the children alone, was that she had already ruled on the reception of the material (Transcript 22.2.16, page 736 line 29).
As to the first basis, the trial judge was correct to say that it was “too late” to adduce the material. It should have been adduced as part of the husband’s case in chief. It was not. It should have been the subject of cross-examination of the wife. It was not. It would have been grossly unfair to have allowed its admission at such a late stage in the proceedings, under such circumstances (ss 135 and 136 Evidence Act 1995 (Cth)). The tender of this recording also raises the consideration of s 138 of the Evidence Act 1995 (Cth), as it is quite possible that the recordings were improperly made (s 5 Listening Devices Act 1992 (ACT)).
While this means that the complaint as to the second basis of exclusion need not be addressed, it is appropriate to acknowledge that her Honour was incorrect in saying that she had already ruled on the receipt of the recordings. However, that cannot result in the success of this complaint.

Conclusion

There is no merit in any of the complaints regarding the parenting aspect of the trial judge’s judgment.

The Property Appeal

The husband complained that the trial judge failed to apply principles from the decision in Kowaliw & Kowaliw (1981) FLC 91-092 (“Kowaliw”), including as to how the debts of the business were dealt with.
While at the commencement of the hearing of the appeal the husband complained about the trial judge’s identification of the assets, during the course of the appeal he conceded that the trial judge was aware of the assets of the parties. The husband’s remaining complaints were that the trial judge failed to have regard to, or make findings in relation to:
a) the business being operated as a joint enterprise of the parties;
b)the parties’ contributions;
c)some of the debts of the parties, in particular debts owed by the business to tradespeople;
d)the wife breaking into the home after separation and taking items;
e)payments made by the business for the benefit of the wife and the wife retaining a number of items including a go kart trailer, tools, plumbing supplies and a garage;
f)the car that was retained by the wife being paid for from the home loan of the parties;
g)the conduct of the wife in abandoning her previous role as the bookkeeper of the business, making it necessary to engage a bookkeeper at an expense of $13,000;
h)the damage to the bathroom and ensuite of the family home;
i)the post-separation renovation of the family home undertaken by the husband.

The husband complained that the trial judge failed to apply principles from the decision in Kowaliw

In Kowaliw, Baker J said this at 76,644:
As a statement of general principle. I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec. 79.
Her Honour found (at [218]) that the husband had “acted recklessly, negligently or wantonly” in causing the diminution of the value of the former matrimonial home. Her Honour had explained this in [216] as follows:
…In this case the diminution in the value of the home as a result of the husband’s actions is a matter which the justice of the case requires to be taken into account. The fact that the value was reduced by $120,000 between September 2012 and when it was sold in May 2015 is attributable entirely to the husband.
We are not persuaded that her Honour erred in making these findings, and her Honour correctly took them into account when considering the relevant s 75(2) factors.
As we have noted above, the husband said that this complaint also relates to how the debts of the business were dealt with. However, it is unclear to us how the principles in Kowaliw bear upon that, and more importantly, how her Honour failed to apply them.

Certainly the husband wanted the wife to be responsible for one half of the business liabilities, but as her Honour identified, he produced no cogent evidence of them. Her Honour said:
199.The husband argued that the business enterprise was a joint enterprise and that both parties ought to be responsible for the liabilities in the same way they enjoyed the success of the business during the relationship. However there is no agreement as to the size of the business liabilities. The husband’s solicitors wrote to the wife in mid-2012 and contended that the business debts at that time amounted to $42,579. They provided an itemised list of the liabilities at that stage. That list came into evidence as Exhibit W1 proceedings. The wife accepts that sum as an accurate statement of the liabilities at separation and I accept that it is the best evidence available. The husband argued that this amount seriously understated the debts at separation but he failed to produce any evidence to establish a different amount.
200.The husband apparently incurred further debts in the name of the business after separation. I am not persuaded they ought to be taken into account as the wife had no say over what went on in the business after separation and the husband also provided no cogent evidence of the liabilities in any event There is also evidence the husband used business funds on personal items such as the purchase of a boat which he subsequently sold at a loss.
Thus, what her Honour did was to include in the asset pool the amount of $42,579 being the debts at separation.
Again, it has not been demonstrated to us that her Honour erred in taking this approach.
This complaint also fails.

The husband complained that the trial judge failed to have regard to the business being operated as a joint enterprise of the parties

During the relationship the parties cooperated in the running of their building business. The husband complained that the trial judge failed to have regard to this, in particular in leaving the husband to indemnify the wife in respect of debts related to the business.
The trial judge found that an investment loan secured against the home was used by the parties for the business, and in particular that it was used to purchase business equipment, pay business debts, pay for renovations to the home and to purchase a half share in a motor vehicle purchased overseas. The total amount of this loan as used for these purposes remained owing at the end of the relationship as the parties had paid interest only.
This debt had to be paid out upon the sale of the parties’ home. The sale price of $400,000 did not quite cover the payment out of the rates, government charges and outstanding debt (the combined home and investment loans amounted to $402,500). The wife met the balance required, along with other expenses associated with the sale, including those caused by the husband placing a caveat on the home.
Given the manner in which the debts in existence at the time of the sale of the house were dealt with, the “indemnification” complained of by the husband could only relate to business debts incurred by him post-separation, because he was the one operating the business at that stage, and drawing upon the business at least in part for his personal expenses (for example, the purchase of a boat). Under those circumstances it has not been demonstrated that her Honour erred in making the order for indemnity.

The husband complained that the trial judge failed to have regard to the parties’ contributions

Here, the husband asserts an error of fact. The trial judge concluded that equal weight should be given to each of the parties’ contributions (at [204]). The husband said that this was an error because the wife had retained all of her income for her own purposes and had not used it at any stage for any family benefit. However, the trial judge found otherwise at [203] saying that the wife’s evidence on this point was compelling. The husband did not establish why it was not open on the evidence for the trial judge to come to this conclusion, nor why this Court, without the advantages of hearing the matter at first instance, should come to a different conclusion on this evidence. Thus again no error is established.

The husband complained that the trial judge failed to have regard to some of the debts of the parties, in particular debts owed by the business to tradespeople

This is in effect a repeat of the complaint about the alleged failure to apply the principles in Kowaliw. However, it is readily addressed.
The trial judge at [199] took Exhibit W1 as the best evidence of the debts of the business, being the debts at the time of separation. This included a list of liabilities that the husband accepted was accurate when it was prepared, but said was out of date by the time of the trial due to further debts being incurred. The husband asserted at trial that he had provided documentary evidence to support these additional debts, however, the trial judge said at [143] that this was one of many assertions made by the husband which were “clearly wrong”.
The husband was unable to identify to this Court where in the evidence these debts were set out, such that they may have been able to be taken into account by the trial judge. He later accepted, during the hearing of this appeal, that evidence of these further debts was not given to the trial judge.
Plainly, there is no error here.

The husband complained about the trial judge’s findings regarding the wife breaking into the home after separation and taking items

The husband asserted that the wife “took everything of value out of the house prior to composing a list of household items to use in court and itemise what she wanted”.
In an affidavit filed on 3 July 2013, the husband deposed that after separation he had arranged for the wife to collect some personal items from outside of the family home:
138.Upon my return I noticed that [Ms Broughton] had gained entry and had systematically gone through every room removing everything she saw fit. This included the children’s birth certificates, immunisation certificates and all forms of identification, our marriage certificate, a work computer, toys, keepsakes and much more.
139.[Ms Broughton] continued to gain entry to the house and remove property at will after 19 August 2011.
140.I had no problem with [Ms Broughton] taking items that she may have needed, and indeed actually delivered several items to her new place of residence.
In relation to these assertions, the trial judge found:
179.The wife alleged the husband allowed her to take very few possessions from the former matrimonial home when she was forced out in August 2011. The husband said that, on the day he changed the locks, he put some clothes and toiletries outside for the wife to collect. He said he thought it was a sufficient amount to last the wife for about a week.
180.The wife said her mother and stepfather initially lent her $3,500 to assist with setting up her new home and expected to be repaid once the property settlement had been completed. She said she compiled a list of everything she could think of in the former matrimonial home and gave it to the husband indicating which items she wanted. She said the husband told her in September 2011 that she could take most of the items she sought but he would only let her take a portion of them until the property settlement had been finalised. She said he indicated a month later she would get nothing from the home. The wife then took out a personal loan of $10,000 in order to purchase necessary furniture and household items for her rental accommodation.
181.The husband alleged that after separation the wife repeatedly entered the former matrimonial home and removed property without his consent which prompted him to change the locks. I found the wife’s version of these events more persuasive than the husband’s.
It is clear that the trial judge, who had the benefit of seeing and hearing the parties give evidence, accepted the wife’s account in respect of this matter. It has not been shown either that the trial judge misused that advantage, or that her determination on this matter was made in the face of cogent evidence to the contrary that did not rely upon such an assessment.

The husband complained that the trial judge failed to have regard to the benefits paid by the business for the benefit of the wife and to the wife retaining a number of items including a go kart trailer, tools, plumbing supplies and a garage

The husband was unable to establish why these matters, if they had been found in his favour, would have been material to the determination by the trial judge, particularly given the manner in which the business debts current at the end of the relationship were dealt with, by payment out following the sale of the house.
The husband’s assertion that the wife had stolen and retained a number of items including a go kart trailer, tools, plumbing supplies and a garage were, as identified above, not accepted by the trial judge.

The husband complained that the trial judge failed to have regard to the car that was retained by the wife being paid for from the home loan of the parties

The home loan was largely paid out from the proceeds of the sale of the home, with any shortfall being made good by the wife. The husband did not identify a particular significance to be attributed to the car having been funded from the home loan.
Further, the trial judge specifically dealt with the parties’ cars in determining the property division. At [198] her Honour found that each party had a motor vehicle of “modest value which I do not intend to include in the property available for distribution”. No inequity in the trial judge treating the two vehicles in this manner was demonstrated, and this complaint also fails.

The husband complained that the trial judge failed to have regard to the conduct of the wife in abandoning her previous role as the bookkeeper of the business making it necessary to engage a bookkeeper at an expense of $13,000

The husband complained that the wife allowed the parties’ business to fall into debt, as the wife “lost interest in the business and ceased performing her duties as a bookkeeper” and that while the husband attempted to engage other bookkeepers, the wife “refused to allow me to employ anyone else to do the work and we fell behind resulting in unpaid invoices, bills and an excessive tax debt” (Husband’s Summary of Argument filed 3 February 2017, paragraph 38).
This liability was recognised by the trial judge, who said:
205.The husband repeatedly accused the wife of contributing to his very difficult financial circumstances after separation. He said she had failed to keep up with the book work for the business in the last two years of the relationship. He said he kept asking her to do the work and she refused. The wife said she worked full-time and carried out the vast majority of parenting and homemaking tasks. She said the husband simply got up in the morning and went to work whereas she got up, went to the gym very early before the children woke up and before the husband went to work. She then got the children up and ready for school including making their lunches and ensuring they had everything they needed for the day. After working a full day she came home, prepared the evening meal, carried out various household chores, ensured the children did their homework and put the children to bed. She said the husband assisted in the evenings but most of the work fell to her. She said by the time the children were in bed and sleep she was exhausted and did not have the energy to do the book work. The husband asserted that when he tried to arrange for an independent bookkeeper to help, the wife refused to provide documents. The wife vehemently denied that. She said all of the information required to do the book work was in the office located on the business premises and there was nothing to stop the husband making them available to another bookkeeper. I note in any event that part of the list of business liabilities given to the wife in mid-2012 included an amount of $13,432.50 owing to the husband’s friend, Mr J, for bookkeeping with the invoice said to be dated 12 June 2012. Presumably that means the issue concerning the bookwork being behind was able to be addressed by mid-2012.
The cost of engaging a bookkeeper to bring the business’s books up to date was included in the business liabilities taken into account at [202].
There is no basis on the evidence to say that this is a matter for which the wife should bear responsibility. Just as her bookkeeping earlier in the relationship constituted a part of their joint endeavour, so did their funding of the bookkeeping expense from the borrowings against the house. No error by the trial judge is demonstrated here.

The husband complained that the trial judge failed to have proper regard to the damage to the bathroom and ensuite of the family home

The husband gutted the house following final orders made in his absence by Judge Brewster that provided for the wife to receive the home, subject to its debts, and the husband to receive the business and indemnify the wife in relation to all of the business debts. These orders were subsequently set aside by the Full Court but, prior to that, the husband removed fittings and fixtures from the property, without agreement, on the basis that he would sell them and recoup costs to pay debts in relation to the property that he would otherwise be responsible for. They were not used for this purpose. The circumstances are outlined by the trial judge at [36] – [50].
In summary the home went from what was conceded by the husband as being substantially complete before separation to being without the kitchen, laundry, bathroom, built-in cupboards in the bedrooms, and without the evaporative air cooling which was removed from the roof.
The wife was cross-examined about removing tiles from the ensuite (Transcript 16.2.16, page 139 line 24 – page 140 line 9). She accepted that she had removed some, as part of what she thought was an agreed renovation process. The husband suggested to this Court that the trial judge may have been confused about damage done to the ensuite by the wife, as opposed to the husband’s gutting of the house. The husband accepted that when he spoke of the wife “destroying” the ensuite, he was referring to the removal of “a couple of tiles” (Transcript 16.2.16, page 139, lines 1 – 22). He did assert though that this damaged the waterproofing.
The husband failed to identify why the trial judge’s findings of fact in relation to the damage to the property were not open on the evidence.
The issue of the damage was referred to by her Honour at [127], [129] and [216]. The damage was taken into account under s 75(2)(o) of the Act. The trial judge assessed the effect of the damage to the home by considering the assessed value at separation against the ultimate sale price once the home had been gutted by the husband. The reduction in value was $120,000.
There is no error here.

The husband complained that the trial judge failed to have regard to the post-separation renovation of the family home undertaken by him

The husband conceded that although he undertook the renovations he then removed them. This meant that in fact no improvement occurred. Plainly there is no error here.

Conclusion

The appeal in relation to the property aspect of the proceedings should be dismissed.

Costs

The wife did not seek costs in the event of dismissal of the appeal, on the basis that she, being without legal representation, incurred no costs.
The ICL sought an order for costs in the event that the appeal was unsuccessful. However, s 117(4) of the Act specifies that the court must not make an order that a party bear a proportion of an ICL’s costs if the court considers that a party will suffer financial hardship.
The husband disclosed receipt of a minimal income, meaning that an order for costs would cause financial hardship to him. There was of course no basis upon which the wife should be required to pay costs.
In these circumstances there will be no order as to costs.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge and Gill JJ) delivered on 25 May 2018.

Associate:

Date: 25 May 2018