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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BROUGHTON & BROUGHTON [2018] FamCAFC 96
Case: [2018] FamCAFC 96
Decision Date: 25 May 2018

CaseChat Overview and Summary

The appeal in Broughton & Broughton was brought by the husband against the trial court's decisions regarding parenting arrangements, property settlement and costs. The husband contended that the trial judge erred in failing to apply the principle that children should be shielded from exposure to family violence, and that the judge should have allowed evidence of recordings he made of conversations involving himself, his wife, and their children. The husband also argued that the trial judge misapplied the s 75(2) factors by finding that he acted recklessly in causing the diminution of the value of the former matrimonial home. The wife cross-appealed, arguing that the trial judge should have made different orders regarding parenting and property settlement.

The court considered whether the trial judge appropriately balanced the principle of protecting the children from exposure to family violence against other relevant factors. The court found that the trial judge gave specific and prominent consideration to this issue and did not err in their consideration of the need to protect the children from exposure to family violence. The court also found that the trial judge correctly refused to allow the husband to present the recordings as evidence, as it was quite possible that they were improperly made under the Listening Devices Act 1992 (ACT), and admitting them at such a late stage in the proceedings would have been grossly unfair under the Evidence Act 1995 (Cth). The court further found that the trial judge correctly applied the s 75(2) factors, and the husband failed to establish that the judge's findings of fact in relation to the damage to the property were not open on the evidence.

The appeal was dismissed as there was no merit in any of the grounds of appeal. The court found that the trial judge correctly balanced the principle of protecting the children from exposure to family violence against other relevant factors, and correctly refused to allow the husband to present evidence of the recordings. The court also found that the trial judge correctly applied the s 75(2) factors and 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. The court further found that the Independent Children’s Lawyer’s application for costs in the event that the appeal was unsuccessful should be denied as it would cause financial hardship for the husband.

The orders made by the court were that the appeal be dismissed, and no order as to costs be made. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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