Chaborne & Chaborne (No 2) - [2020] FamCAFC 112

FAMILY COURT OF AUSTRALIA

CHABORNE & CHABORNE (NO. 2)

[2020] FamCAFC 112

FAMILY LAW – APPEAL – PARENTING – Where the grounds of appeal do not challenge or relate to all of the orders the subject of the appeal – Where no basis is demonstrated sufficient to overturn the Magistrate’s discretionary decision because of any issue of weight – Where no error by the Magistrate is demonstrated – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the father appeals final property settlement orders – Where the father contends that the Magistrate’s assessment of the parties’ contributions, s 75(2) factors and overall decision was outside the reasonable exercise of discretion – Weight challenges – Where the Magistrate’s findings of fact were not challenged – Where this Court cannot substitute the Magistrate’s decision for its own – Where the grounds of appeal lack merit – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where if the appeal was dismissed it was agreed that the father pay the mother’s costs of and incidental to the appeal fixed in the sum of $12,000 – Costs ordered in favour of the mother as agreed payable within 90 days of the date of orders being made.

Family Law Act 1975 (Cth) ss 60CC, 69ZX(3), 75(2)

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47
Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124
Chaborne & Chaborne [2019] FamCAFC 125
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
Mims & Green and Green (2008) FLC 93-359; [2008] FamCAFC 13
S S Hontestroom v S S Sagaporack [1927] AC 3

APPELLANT:

Mr Chaborne

RESPONDENT:

Ms Chaborne

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid WA

FILE NUMBER:

PTW

2846

2017

APPEAL NUMBER:

WEA

2018

DATE DELIVERED:

12 May 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland,
Ainslie-Wallace & O’Brien JJ

HEARING DATE:

14 October 2019

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

12 November 2018

LOWER COURT MNC:

[2018] FCWAM 146

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Anderson

SOLICITOR FOR THE APPELLANT:

Kerr Fels Divorce & Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms McShera

SOLICITOR FOR THE RESPONDENT:

Anthony R Clarke & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Martin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid WA

Orders

The appeal be dismissed.
The appellant father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of $12,000 and payable within 90 days of the date hereof.

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 Chaborne & Chaborne (No. 2) 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 PERTH

Appeal Number: WEA 44 of 2018
File Number: PTW 2846 of 2017

Mr Chaborne

Appellant

And

Ms Chaborne

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This is an appeal from final parenting and property orders made by a Magistrate of the Magistrates Court of Western Australia on 12 November 2018. The Amended Notice of Appeal was filed by Mr Chaborne (“the father”) on 9 April 2019 and is opposed by Ms Chaborne (“the mother”).
In relation to the final parenting orders, the trial centred on whether the father presented an unacceptable risk of harm to the parties’ child, X born in 2007 (“the child”), and what arrangements were in the child’s best interests in circumstances where the father had been convicted of indecently recording his step-daughters and their friend, and distributing child exploitation material. The orders made provide for, inter alia, the mother to have sole parental responsibility for the child, for the child to be informed by a therapist of the father’s criminal offences and thereafter attend upon that therapist, for the father to be at liberty to send gifts and cards to the child on special days, and for the father to be restrained from approaching the child and the mother.
With the property settlement orders, the primary issue was the assessment of the parties’ respective contributions and the relevant factors in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The orders made provide for, inter alia, the father to transfer his interest in the former matrimonial home to the mother for a cash payment of $11,710, and for the mother to discharge the mortgage.

Background

The father was born in 1964 and is currently 55 years of age.
The mother was born in 1968 and is currently 51 years of age.
The parties commenced cohabitation and were married in 2007, after the mother and her three daughters from a previous relationship, who were then aged 11 years, 10 years and six years, migrated to Australia. The father supported the mother and her daughters to obtain Australian residency.
The father worked as a manager earning an income fluctuating between $80,000 and $115,000 per annum over the course of the marriage.
The mother was a homemaker at the commencement of the relationship. She began working again one year after the birth of the parties’ child. The mother has been the primary carer of all four children since their births.
On 22 May 2008, the parties jointly purchased a property at B Street, Suburb C (“the former matrimonial home”) for $930,000. The parties conducted significant renovations to the property throughout the marriage. The father, the mother, her three daughters and the child all lived in the former matrimonial home.
On 18 December 2013, the police executed a search warrant at the former matrimonial home, where they seized the father’s computers and other electronic devices. On … January 2014, the father was arrested and charged with recording and distributing child exploitation material. The father was found to have child pornographic images on his computer as well as naked images and videos of the mother’s daughters and their friend, taken from a hidden camera installed by him in the bathroom. He had shared at least some of the images, albeit altered so the children could not be identified, by uploading them to a Russian website. The offences occurred between 28 August 2011 and 19 November 2013.
The father vacated the former matrimonial home in January 2014 after his arrest. The child continued to spend time with his father from January 2014 up until August 2014 whilst the father was on bail.
On … August 2014, the father was convicted of 27 counts of indecently recording his step-daughters and their friend and distributing the recordings. The father was sentenced to imprisonment for four years and 10 months, however, ultimately served from 22 August 2014 until 6 June 2017 before being released on parole. The parties’ relationship ended at the time the father was incarcerated. At that time, neither party told the child the reason for his father’s absence and the child assumed the father was working overseas. The child continued to communicate with his father via letters and telephone calls whilst the father was in prison, up until late 2016.
In early 2016, the mother informed the child for the first time that his father was in prison. The mother arranged for the child to visit his father in prison accompanied by the father’s sister, and this occurred twice in 2016; once in February and once in November. After this time, the mother then ceased any further visits and telephone contact between the father and the child. The mother says the reason she did this was due to the inappropriate content of the letters sent by the father to the child. They contained empty promises to the child and involved the child in the parental dispute. The mother says the child enjoyed the visits and communication with his father but would become upset when the father cried and professed how much he missed the child. The Magistrate found that the mother’s motivation for ceasing the father’s time with the child was due to her genuine concern for the child’s best interests and that she remained supportive of their relationship (at [56]).
The child has not spent any time with the father since November 2016 and at the time of the trial the child was still unaware of the nature of his father’s offences.
On 11 May 2017, the mother instituted proceedings in the Family Court of Western Australia seeking both parenting orders and property settlement orders.
The father’s alleged lack of insight and acceptance of his offending has been an ongoing issue in the litigation of the parenting orders. There have been numerous reports prepared during the proceedings and tendered at trial in relation to this issue. In a psychological report dated 18 August 2014, Ms G concludes in relation to the father that “his personality style has inhibited his ability to fully explore the complex factors inherent in his offending” (at [104]).
Other reports tendered during the trial, included a psychological report by Ms D dated 12 June 2014 and a Sex Offender Risk Assessment Report completed during the father’s incarceration. The first report notes the father lacking insight into his offending (at [106]). However, the Risk Assessment Report found the father to have “made significant treatment gains with increased self-awareness and understanding how his past mal-adaptive coping strategies had contributed towards his offending” (at [114]).
On 25 April 2018, a Family Report was prepared by Dr H for the purpose of the proceedings. The Magistrate discusses the report from [121] to [133] of her reasons. Dr H’s findings strongly concurred with the findings in Ms G’s 2014 report, which concluded that the father “[w]ould need to develop a much better appreciation of the effect on the family of his offending before the court could be confident that regular or frequent time with [the child] would be beneficial for him” (at [123]). Dr H made recommendations that the child spend supervised time with the father on special occasions only, and that he be informed about his father’s offending.
Finally, there is a report from Ms F, a psychologist, dated 20 August 2018 which the father sought to rely on at the trial by filing a Form 2 Application on 22 August 2018. Her Honour dismissed that application on 28 August 2018 and gave reasons on that day.
The Magistrate heard the parenting and property trial over five days in September 2018.
At trial, the mother sought sole parental responsibility for the child and for the father to be permitted to send gifts and cards to him on special occasions. She also sought various injunctions restraining the father from coming into contact with her and the child. On the other hand, the father sought equal shared parental responsibility and that the child spend time with him on a gradually increasing basis after family therapy sessions, ultimately culminating in five nights per fortnight and half of the school holidays. The Independent Children’s Lawyer (“ICL”) proposed for the mother to have sole parental responsibility, that the child attends upon a child therapist, and that the father be permitted to send gifts and cards on special occasions, as well as monthly letters to him. The ICL did not propose any orders for the child to spend time or communicate with the father.
As to the property dispute, the parties agreed to retain their respective savings, personal items and superannuation. They also agreed that the mother would retain the former matrimonial home subject to her refinancing the property into her sole name. The cash amount to be paid from the mother to the father was not agreed, the father seeking a cash payment to reflect the allocation to him of 45 per cent of the net assets of the parties, and the mother proposing that he receive 25 per cent.
As previously noted, the Magistrate made final parenting and property orders on 12 November 2018. Subsequently, paragraphs 4 to 6 of those orders were stayed by the consent of the parties, pending the hearing of the appeal. Those orders are in relation to the child being informed of the father’s criminal offences and thereafter attending upon a child therapist.
On 10 January 2019, the father filed an Application in an Appeal seeking an order extending the time to file a Notice of Appeal from the order of 28 August 2018, dismissing his application to rely upon the report of Ms F. On 29 July 2019, that application was dismissed by Strickland J (see Chaborne & Chaborne [2019] FamCAFC 125).

The Appeal

The father agitates six grounds of appeal in his Amended Notice of Appeal which we will address in turn. However, we note that curiously the grounds of appeal do not challenge or relate to all of the orders the subject of the appeal. For example, the orders providing for the child to attend upon a therapist are appealed against, but there is no ground of appeal directed to them.

Ground 1 – The finding of the [Learned Trial Magistrate (“LTM”)] that the father was an unacceptable risk of emotional and psychological harm to [the child] was against the evidence and the weight of the evidence and was an error;

or in the alternative,

If the finding that the father was an unacceptable risk of emotional and psychological harm to [the child] is determined to be within the reasonable exercise of discretion by the LTM, the LTM failed to properly consider whether the risk was such as necessitated a no contact order, and whether the risk could be mitigated by a supervisory order to enable the meaningful relationship between the child and the [father] to continue.

This ground is premised on the submission that the finding of the child being at an unacceptable risk of psychological and emotional harm from any contact with the father, was not open on the evidence, or was against the weight of the evidence.
During the hearing of the appeal, counsel for the father conceded that there was no express finding made by the Magistrate that the risk of harm was “unacceptable”, and the ground of appeal was defective in that regard. However, it was argued that whilst the Magistrate did not utter the words “unacceptable risk”, that finding can be deduced from her Honour’s approach in discussing the relevant legal principles (at [79]–[86]) under the heading “Unacceptable Risk” and from the orders made, being primarily an order that there be no contact. Thus, this ground of appeal was still pursued.
Her Honour’s findings of risk can be found at [135]–[137], [170] and [190] of the reasons, and are as follows:
135Dr H considered [the child] was not at risk of neglect, harm or abuse from [the father]. She considered the risk of [the child] being sexually abused or exploited to be low. I accept her evidence in this regard. However Dr H considered the risk to [the child] of psychological and emotional harm was higher as a consequence of [the father’s] minimisation his [sic] behaviour and attempts to rationalise his behaviour.
136After careful consideration of the totality of the available evidence, I consider [the child] is at risk of psychological and emotional harm from [the father] for the following reasons:
•[The father] has been convicted of child exploitation offences. His actions in taking photographs of his step-daughters, and others, is unquestionably contrary to the best interests and safety of children.
•The fact [the father] created images which constitute child abuse material, presents an unacceptable risk of that occurring in the future. This is particularly the case in circumstances where I am not satisfied [the father] has demonstrated genuine insight or understanding of the impact of his actions on others.
•[The father] has been assessed with a medium to low risk of re offending. Dr H considered [the father] was at a higher risk of reoffending, as a consequence of his continued cognitive distortions.
•I accept Dr H’s view [the father] continues to hold a number of cognitive distortions. For example:
(a)His description of other people on the sex offender’s course suggested a flipping of responsibility. For example, he referred to offenders who had sexually abused males as “others with homosexual boys” and another group member who had “relationships with young girls”. Such descriptions fail to acknowledge the seriousness of the offences. For instance, [the father’s] reference to child victims having homosexual tendencies, rather than perpetrators of abuse, suggested some acceptance of what the perpetrators had done. His description of other victims as being in relationships, again failed to acknowledge the conduct constituted sexual abuse of female children.
(b)[The father’s] reference to the loss of a friendship post separation as being simply “like all divorces”, failed to acknowledge his criminal offending and whether that impacted on the loss of his friendship.
(c)[The father] denied sharing images with others, however the police material suggested otherwise. The sentencing Judge also considered [the father] had likely shared images, despite his denials.
(d)[The father’s] explanation of his adolescent offending history had a flavour of minimisation and abrogation of responsibility.
(e)[The father’s] description of himself as a leader in the sex offender treatment program, suggesting others were slow to embrace responsibility, was an attempt to distance and differentiate himself from his fellow prisoners.
(f)His description of his own offending demonstrated poor insight about the likely effects of his behaviour and demonstrated distorted cognitive processes.
(g)His explanations as to the harm caused to [the child’s] sisters were unconvincing, with rote like explanations. Dr H expressed little confidence [the father] appreciated how his behaviour had impacted on [the mother] and the girls, leading her to conclude he was unable to provide for [the child’s] psychological and social needs.
•[The father] has sought to minimise, justify and rationalise his behaviour over an extended period of time. That conclusion is supported by Ms G’s report, [the father’s] explanations to Ms K as to his incarceration and treatment needs and his comments to his Community Corrections Officer. It is also supported my [sic] observations of [the father’s] evidence. I am not persuaded [the father] fully appreciates the impact of his offences on [the mother] and [the child’s] sisters.
•I accept Dr H’s evidence that [the child] is a vulnerable little boy, who is likely to suffer confusion and distress, if he was exposed to his father’s views.
137In reaching this conclusion, I have not ignored the prison program which found [the father] gained insight and demonstrated empathy for his victims. I also consider some of the contents of his correspondence to [the mother] showed glimpses of remorse. However, I am not convinced at this time that [the father] has sufficient insight or genuine remorse…
…
170I hold a number of concerns about [the father’s] capacity to provide for [the child’s] emotional needs for the following reasons:
•Dr H found [the father] continued to lack an understanding and appreciation of the difficulties he had caused and his betrayal of his step-daughter’s trust.
•Dr H stated [the father] continued to demonstrate a lack of insight and demonstrate cognitive distortions and rationalisations, which increased the risk of him offending and the prospect that [the father] may convey those views to [the child], which would compound his confusion. Such conduct would be detrimental to [the child’s] emotional development, as he would be placed in a position of attempting to resolve differences between his father’s minimisations and the anxiety and concerns of his mother and siblings.
• Dr H considered [the father] had not demonstrated an appropriate attitude to the seriousness of his offending and demonstrated insight into the impact upon the family. That deficit, Dr H predicted, would adversely impact upon [the child] and contribute to confusion.
…
190 …
• Firstly, I consider that [the child] is at risk of emotional and psychological harm. I am not satisfied [the father] has demonstrated genuine remorse and insight into his actions and the ongoing consequences of his offences against [the mother] and [the child’s] sisters. I have accepted the expert’s evidence in this regard, which accords with my observations of [the father’s] evidence. [The father] has displayed a level of minimisations, justification and distortion. There is a risk to [the child] if he is exposed to a false narrative by his father, directly or indirectly, about his offences.
…
(Emphasis in original)

The father challenges these findings by contending that:
·There was no evidence of physical harm, neglect or abuse to the child by the father.
·The Magistrate misdirected her focus by referring to the father’s offending and its impact on children generally, rather than specifically on the child and his best interests.
·The father’s offences did not involve the child and there was no suggestion that there was an unacceptable risk to the child of the father offending against him in any way.
·The Magistrate placed undue weight upon:
i)the historical reports of Ms D and Ms G completed in 2014;
ii)the remarks of the sentencing judge in 2014;
iii)the single expert’s conclusion that the father had cognitive distortions and sought to minimise and rationalise his offending, based on a 1.5 – 2 hour interview;
iv)her own observations of the father, although the Magistrate does not specify what evidence of him represented cognitive distortions.
·The statements made by the father to the single expert witness were open to a different interpretation namely that the father responded to the single expert witness with embarrassment, shame and reservation.
·There was no evidence before the Court that the father had had inappropriate discussions with the child about his offending, and therefore the finding that the child was at risk from these discussions and the views of his father was not borne out by the evidence.
In relation to the first point made by the father, in fact her Honour did not rely on any evidence of physical harm, neglect or abuse to the child directly in making a finding that the child was at risk of harm by the father, and thus this submission is misguided.
As to the second and third points, it cannot be said that her Honour made the finding of risk by focussing on the father’s offences generally or on the risk of sexual abuse of the child. Her Honour thoroughly outlined the evidence as to the need to protect the child from psychological harm from being subjected to, or exposed to, abuse, neglect or family violence from [91] to [133], as her Honour was required to do. She then made the finding that the child was at risk of psychological harm from the father for the reasons set out in [136] (as set out above). The Magistrate accepted the evidence of the single expert witness that there was a low risk of the child being sexually abused by the father, but a higher risk of psychological harm to the child as a result of the father’s minimisations and rationalisations of his behaviour (at [135]). As a result, while there was an acceptance that there was “some” risk to the child of sexual abuse by the father, albeit low, the Magistrate did not rely on that risk of sexual abuse to the child to constitute an unacceptable risk. Rather, a culmination of the considerations as set out in [136] informed her Honour’s conclusion. Thus, these contentions by the father do not demonstrate error.
The fourth point raises weight challenges, but it is not sufficient to cherry pick aspects of the evidence and submit that excessive weight was attributed to them in an attempt to show the Magistrate erred. Her Honour carefully considered the “totality of the available evidence” in reaching her ultimate finding that the father presented a risk of harm to the child (at [136]). The Magistrate principally relied upon the single expert witness’s evidence in relation to the father continuing to hold cognitive distortions, and the conclusion of the single expert witness was supported by the opinions of Ms G and Ms D in their reports. It is also noteworthy that the report of Ms G was tendered into evidence at the hearing by consent of the parties.
As for the reliance upon the remarks of the sentencing judge, it is plain that the Magistrate was permitted pursuant to s 69ZX(3) of the Act to adopt any findings that her Honour thought proper in exercising her discretion. That is precisely what her Honour did.
As for the reliance upon the Family Report, as was submitted by the mother, her Honour was entitled to rely upon the evidence of the single expert witness and afford such evidence as much weight as her Honour deemed appropriate. The Magistrate was of the view that the single expert was “most helpful” (at [26]), and the views of the single expert witness were one of the considerations which ultimately informed her Honour’s findings. When the views of the single expert witness coincide with those of the judicial officer hearing the case, “it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence…” (see Hall and Hall (1979) FLC 90-713 (“Hall and Hall”) at 78,819).
Further, as also submitted by the mother, counsel for the father had the opportunity to cross-examine the single expert witness on her views about the father’s cognitive distortions and lack of insight, and did so, yet her Honour found that the single expert witness’s evidence on this topic was clear, consistent and not disturbed (at [133]).
Her Honour was also quite entitled to rely upon her own observations of the father’s evidence during the trial. The father contends that her Honour failed to specify the evidence of the father which demonstrated his cognitive distortions, however, it is apparent from [20] and [21] of the reasons that her Honour did so, finding the father to be “less than frank”, “vague” and that he “appeared to gloss over the details of his conduct”. In any event, her Honour did not in any sense purport to herself diagnose the husband; she did no more than note that her own observations of him were consistent with the expert evidence.
Whilst the father claims that his statements made to the single expert witness were open to a different interpretation by the Magistrate, namely, that the father was “embarrassed”, her Honour’s interpretation that the father did not demonstrate genuine insight was also open on the evidence, and that is all that is required. Further, her Honour noted at [21] that the father “repeatedly deposed he was deeply ashamed and regretted his conduct”, however this was ultimately rejected by her Honour in arriving at her conclusions at [136].
Turning to the last point, namely, that absent any evidence of the father having discussions with the child about his offending, it was not open for her Honour to find that the child was at risk from future discussions and the father’s views. We consider that to make that finding, there was no requirement for there to be any direct evidence of the father having had these discussions with the child. Her Honour relied on the evidence of the single expert witness that due to the father’s cognitive distortions, it is likely the father will convey his views and attitude to the child, which will compound his confusion (at [123], [136] and [170]). Her Honour found that such conduct would be detrimental to the child’s emotional development. To suggest this finding was not borne out by the evidence is clearly not correct as this was a consideration explored in the Family Report and it was intended that the child be informed of his father’s offences.
Thus, none of the challenges to her Honour’s findings in this regard can succeed.
Indeed, it was conceded by counsel for the father during the hearing of the appeal that the findings of risk in [136] were open on the evidence. Thus, there can be no error here by her Honour. As was said by the Full Court in Marsden & Winch (2013) FLC 93-560:
110.… It is important to observe that simply because other findings of fact may also have been open on the evidence before the trial judge does not demonstrate that a finding of fact complained of was thus not open or available to his Honour. That is not the test. The test is whether the finding of fact or findings of fact material to the exercise of discretion have been shown to have not been reasonably open to the trial judge; see Edwards v Noble (1971) 125 CLR 296 at 304. It will be immediately apparent that the test thus raised is one which is not lightly or readily satisfied.
Here it is plainly not so satisfied.
Insofar as the challenges are weight challenges, we need do no more than recall what Stephen J said in the High Court decision of Gronow v Gronow (1979) 144 CLR 513 at 519-520:
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…
There is no basis demonstrated here to overturn the Magistrate’s discretionary decision because of any issue of weight.
The second limb of this ground of appeal, namely that the Magistrate failed to properly consider whether the risk necessitated a “no contact” order and whether the risk could be mitigated by a supervisory order, is misconceived. At [191] the Magistrate expressly outlines that she carefully considered whether there would be benefit to the child in spending supervised time with the father, however, given her findings about the impact that it would have upon the child’s mother and sisters, her Honour found the potential benefit to the child would be outweighed by the impact upon the child’s development within the family home.
This ground of appeal has no merit.

Ground 2 – The [Learned Trial Magistrate (“LTM”)] erred in finding that it was in the best interests of the child to spend no time and have no relationship with, the Appellant father (and paternal family members) other than to receive a gift and card on various occasions each year, and in determining that such an order was appropriate, the LTM erred:-

a) in placing insufficient weight on the benefit to the child of having a meaningful relationship with his Appellant father, and paternal family members including paternal grandfather, aunt, uncle and cousin;

b) in placing insufficient weight on the wishes of the child;

c) in prioritising the impact that any time between the child and the [father] might have on the child’s sisters and mother, and the resulting destabilisation of the child’s home above the right of [the child] to have a meaningful relationship with his father;

d) in placing insufficient weight on the [mother’s] evidence that it was in the child’s best interests to have a relationship with the [father] immediately following the [father’s] charges and subsequent imprisonment, and the evidence surrounding the circumstances in which the [mother] cancelled the child having contact and communication with the [father]; and

e) in placing insufficient weight on the recommendations of the Single Expert Witness about the importance to the child of having a continuing relationship with the father and the basis upon which the child’s time with the father may increase.

Plainly, most of these complaints are weight challenges, and we note again what the High Court of Australia has said about the hurdles an appellant faces in order to succeed on this basis alone.

Benefit to the child of a meaningful relationship

The father contends that the Magistrate did not place sufficient weight on the benefit to the child of having a meaningful relationship with his father and the paternal family.
In making a “no contact” order, her Honour relied on the evidence of the single expert witness and concluded at [190] that “when faced with the question as to whether to prioritise [the child’s] relationship with his father or a stable and secure home environment, Dr H was emphatic that [the child’s] stability in his home life should be the priority”.
The father asserts that the evidence given by Dr H as to this during cross-examination (Transcript 17 September 2018, p.13 lines 15–49) was in the context of discussing what orders were generally appropriate and was not discussed in the context of an order for no time. However, it is evident from a plain reading of the transcript that counsel for the father was asking questions of the single expert witness in the context of both propositions, namely where the child had no relationship with his father, or where he was seeing his father (also see Transcript 17 September 2018, p.12 lines 14–18).
The Magistrate addressed the primary consideration in s 60CC(2)(a) of the Act of the benefit to the child of having a meaningful relationship with the parents from [87] to [90], and found that the child has maintained a meaningful relationship with the father despite the lack of contact between them. However, s 60CC(2A) of the Act provides that in applying the two primary considerations, the court is to afford greater weight to the need to protect the child from psychological harm. Her Honour of course found that the child was “at risk of psychological and emotional harm from [the father]” (at [136]), and thus the presence of this risk prevailed over ensuring that the child had a meaningful relationship with his father. Thus, no error is demonstrated here by her Honour.
The father also submits that her Honour does not consider the effect that a “no contact” order would have on the child in relation to spending time with his paternal family. However, it is apparent that the Magistrate does turn her mind to this when discussing the additional consideration in s 60CC(3)(b)(ii) at [142].

The child’s wishes

The father contends that the Magistrate placed insufficient weight on the child’s wishes to see the father.
The father sets out at paragraph 21 of his Amended Summary of Argument filed on 26 September 2019 various references to the evidence which point to the child expressing a desire to see his father. The father submits that more weight should have been given to the child’s wishes on the basis that despite his mother and sisters’ views, and the fact he had not seen the father for over a year, the child still wished to see his father.
Her Honour recognised that the child had expressed a wish to see his father to the single expert witness, however, her Honour was not satisfied that significant weight should be attributed to that view, given that the child did not have “the maturity or the perspective to understand what impact [having a relationship with his father] may have [on his] sisters, his mother and his future”. Further, given that the child was unaware of the nature of his father’s offending, “any views expressed by him must be considered in that context” (at [140]). Indeed, the single expert witness supported this finding, expressing the view that “not much weight” should be given to the child’s views, even if the child maintains his views after knowing the full extent of his father’s offences (Transcript 17 September 2018, p.11 line 42 to p.12 line 7).
Again, the father has not demonstrated any error by her Honour in treating the child’s views in this way.

Impact on the mother and the child’s sisters

The father says that too much weight was placed upon ensuring the stability of the family home, that is, prioritising the impact that any time between the father and the child would have upon the mother and the child’s sisters, and the resulting effects, above the right of the child to have a meaningful relationship with his father.
The Magistrate discussed her findings in relation to the impact on the mother’s parenting capacity, and the impact upon the child’s sisters, at [152] to [163] of her reasons. Specifically, her Honour said at [154]:
I accept the stability and happiness of [the mother’s] home will be significantly disrupted if [the child] was to spend time with [the father]. That cannot be in [the child’s] best interests, when he derives all of his care from his mother and siblings. Such disruption will occur, regardless of whether the time is supervised. I accept Dr H’s evidence [sic] [the mother] and her daughters are likely to experience increased anxiety and distress, around times when [the child] may spend with [the father]. Dr H opined the impact upon [the child] living in a home with heightened anxiety, distress and a sense of being under threat, would likely include decreased confidence, restrict his development and social opportunities.
And at [163]:
The need for [the child] to have the ongoing care and stability living with his mother and sisters, is an important consideration. I make that finding given [the child’s] vulnerabilities and anxiety. I accept the Expert’s evidence that any adverse impact upon [the mother] and by extension, her capacity to care for [the child], would not be in his best interests. I also accept Dr H’s view any negative impact upon [the child’s] sisters, particularly his siblings who also care for him, would also compromise his stability and well-being.
The father submits that while the impact on the child’s household is relevant, it is only one of the factors for consideration. The father contends that her Honour failed to consider whether destabilisation of the home could have been minimised by the mother and her daughters seeking therapeutic assistance to facilitate and understand any orders made for the child to spend time with the father.
That proposition was put in cross-examination to the single expert witness, particularly in relation to the middle sister, who appeared to be the one most affected by knowledge of the father’s offences, and the single expert witness indicated that in her view counselling would not assist (Transcript 17 September 2018, p.54 line 48 to pg.55 line 28).
There was no other evidence as to this issue, and certainly none presented by the father; it was only put on his behalf at the level of assertion. And in any event, on the evidence that was before the Magistrate, it was plainly open to her Honour to find that a significant matter to take into account was the need for stability in the home where the child was living. Thus, there is no basis to suggest that her Honour erred in the weight that she afforded this consideration.

The mother facilitating the relationship

The father contended that the Magistrate placed insufficient weight on the circumstances in which the father’s time with the child ceased. It is the father’s case that the mother ceased his contact with the child in late 2016 because the mother was unhappy about the position taken by the father in the property settlement proceedings.
The father outlines at paragraphs 31 to 35 of his Amended Summary of Argument the references to the evidence which he submits supports the finding that the mother ceased contact due to her anger at the father, and not because of what she thought was in the child’s best interests.
Her Honour’s findings in relation to this issue are found at [55] and [56]:
55[The father] suggested [the mother’s] motivation to suspend [the child] communicating with him was spiteful, arising from [the father’s] refusal to attend dispute resolution in relation to financial matters. While I accept [the mother] was disappointed and frustrated at [the father’s] refusal, I am not satisfied that was the reason.
56There was nothing in the evidence to persuade me [the mother’s] actions in suspending [the child’s] time was other than motivated out of genuine concern for [the child]. In my view, [the mother] has, to her great credit, remained supportive and facilitated [the child’s] contact with his father, under enormously challenging circumstances. I accept she did so, on the basis she considered that to be in his best interests.

As can be seen, this is not an issue about weight, it is an issue about credibility. The “permanent position of disadvantage” occupied by an appellate court by comparison to that of the trial Magistrate in assessing credibility and weighing evidence is well established (Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, referring to S S Hontestroom v S S Sagaporack [1927] AC 37 and cited with approval and referred to in Mims & Green and Green (2008) FLC 93-359). The Magistrate determined to accept the evidence of the mother in preference to the evidence of the father and his witnesses. As such, the father has failed to demonstrate any error by her Honour in accepting the evidence of the mother.

The recommendations of the single expert witness

The father contends that the Magistrate placed insufficient weight upon the recommendations of the single expert witness in relation to the benefit to the child of having a continuing relationship with the father and the basis upon which the child’s time with the father may increase. He also contends that the Magistrate failed to adequately explain her reasons as to why she did not accept the single expert witness’s recommendation for time between the father and the child.
The father did not make any specific reference to this aspect of this ground of appeal in his amended Summary of Argument, however, counsel for the father at the hearing of the appeal took us to the single expert witness’s report where she makes the following recommendation:
… Because of [the child’s] desires to understand and develop his sense of identity, a complete absence of any contact with his father would potentially be harmful for him… I would suggest that [the child] should see his father for short periods around special occasions such as his birthday, his father’s birthday, Christmas, etc., and monitored by a trusted third party…
(Single Expert Report of Dr H dated 25 April 2018, p.31–32)
There is no question that her Honour was aware of and gave adequate consideration to all of the recommendations of the single expert witness, and specifically to this recommendation.
At [123] her Honour recorded the recommendations of the single expert witness that the father “[w]ould need to develop a much better appreciation of the effect on the family of his offending before the court could be confident that regular or frequent time with [the child] would be beneficial for him”, and that in that context the single expert witness “recommended [the child] spend supervised time with [the father] on special occasions only”.
Then when her Honour came to consider what orders she would make, her Honour, at [190], was expansive in her reasons for not being satisfied that it was in the child’s best interests to spend time or communicate with the father.
Then, at [191] her Honour said this:
I did consider carefully, whether there would be benefit to [the child] in spending supervised time with [the father], on a limited basis each year. However, I have concluded that such an order is not in [the child’s] best interests given my findings as to the impact such an order would have upon [the mother] and the girls’ [sic] and the disruption to his home-life. The potential benefit to [the child] is outweighed by the instability that would cause and the potential adverse impact upon [the child’s] development.
Thus, not only did her Honour afford adequate weight to the recommendations of the single expert witness, her Honour gave more than adequate reasons for making no order for any time to be spent with the father, supervised or unsupervised.
Finally, we note that a primary judge is not bound by the recommendations and findings of a single expert witness. As was stated by the Full Court in Hall andHall at 78,819:
…[a] Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. (Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276)…
… While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
There is no merit in this complaint, and there being no merit in any of the complaints raised in this ground of appeal, it must fail.

Ground 3 – If the findings of the [Learned Trial Magistrate (“LTM”)] are held by the Full Court to have been within the reasonable exercise of discretion, then in considering what Order was appropriate and in the child’s best interests, the LTM erred in placing too much weight on the need to bring the proceedings to an end, and instead of making final orders, the Learned Trial Magistrate should have made interim orders to:-

a) leave open the opportunity for the child to have a meaningful relationship with the [father] at a later stage: and

b) enable the [father] the opportunity to address the issues about which the Learned Trial Magistrate had concerns.

The Magistrate said this in relation to s 60CC(3)(l) of the Act:
181 Child-related proceedings are, to an extent, by their very nature, interim. It is clearly in the best interests of [the child] that these proceedings are brought to an end, together with any uncertainty in relation to his future arrangements. I am satisfied the orders I propose to make are in [the child’s] best interests. I am hopeful for the sake of the family, it will see an end to the current litigation.
182 Each party urged the Court to make final orders. In my view, ongoing litigation is likely to cause unnecessary stress to [the mother], who is [the child’s] primary carer. That is not in [the child’s] best interests.
As her Honour noted, both parties’ positions at trial were for the Court to make final parenting orders. There was no proposal by the father, contained either in his Initiating Application or Minute of Proposed Orders, that only interim orders be made. However, counsel for the father said this in her closing submissions:
[COUNSEL FOR THE FATHER]: … With that in mind, we say that if your Honour finds that at this point you’re not able to order that [the child] spends time with his father… if you do not feel in a position to order that at the moment we say that the appropriate approach you should take is to order that, if need be, if you consider it in [the child’s] interest, for the father to have some more counselling.
[COUNSEL FOR THE FATHER]: We say that you should not shut the door at this point in any shape or form on [the child] having an opportunity to have a relationship with his father…
(Transcript 20 September 2018, p.2 lines 12–24)
[COUNSEL FOR THE FATHER]: … But if your Honour felt that it would be appropriate to look at this, as I indicated from the outset on an interim basis, and for the matter to come back for you to be able to see how it is going, that is something that we would accept…
[HER HONOUR]: Your client’s minute though, is structured on the basis these are final orders he’s seeking.
[COUNSEL FOR THE FATHER]: That’s so. That’s so, your Honour… it’s put on that basis, but it’s not put on an all or nothing basis. Applications are, you know, generally put in this way and we, at this stage, didn’t – you know, depending on how the evidence unfolds, but your Honour of course has the overriding decision to make a judgment in the best interests of [the child].
[COUNSEL FOR THE FATHER]: So we – what I’m saying to you now is that this would be our proposal. If your Honour felt that that was too far at this time, then we accept that your Honour would make the appropriate judgment in [the child’s] best interests…
(Transcript 20 September 2018, p.23 lines 18–45)
(Emphasis added)
As can be seen from the above exchange, whilst the father’s formal position was for final orders, he was prepared to accept the possibility of any interim orders being made if the Magistrate found that was in the child’s best interests.
Her Honour appropriately found that it was not in the child’s best interests for there to be “ongoing litigation” (at [181] and [182]). Thus, this ground of appeal simply cannot succeed on any basis, including as a weight challenge. There is no error demonstrated.

Ground 4 – The finding by the Learned Trial Magistrate that the just and equitable distribution of the property of the parties was 72.5% to the Respondent [mother] and 27.5% to the Appellant [father] was against the evidence and the weight of the evidence and was wrong in law, and was so far outside the reasonable exercise of discretion that it represents an error, and the Full Court should re-exercise discretion and allocate 60% to the [mother] and 40% to the [father].

Ground 5 – The Learned Trial Magistrate’s finding that the contributions to the date of trial amounted to 64% to the Respondent [mother] and 36% to the Appellant [father] was against the evidence and the weight of the evidence and was wrong in law.

Ground 6 – The Learned Trial Magistrate’s finding that the appropriate adjustment for section 75(2) factors was 8.5% to the [mother], was against the evidence and the weight of the evidence and was wrong in law.

Grounds 5 and 6 provide the basis of the challenge for Ground 4, and therefore these grounds will be addressed together. The father’s submissions as to these grounds were essentially the same.
In summary, the father contends that the Magistrate erred in her assessment of the contributions and the s 75(2) factors in determining the parties’ overall property adjustment, and this resulted in her Honour’s decision being outside “the reasonable exercise of discretion”.
The father did not mount any challenge to the Magistrate’s findings of fact in relation to the contributions of the parties and the s 75(2) factors, besides arguing that insufficient weight was attributed to certain of them. That is fatal to the success of Ground 4 in claiming that the overall decision was so far outside the reasonable exercise of discretion that it represents an error, and we will return to that after considering the specific complaints in Grounds 5 and 6.
As to contributions (Ground 5), the father submits that the Magistrate failed to take into account the father’s initial contribution of his English assets when assessing the initial contributions of the parties.
Pausing there, her Honour sets out at [220] what each party said that they brought into the relationship. At [222] her Honour says “[n]either party gave detailed evidence as to the value of their initial contributions. As such, I am unable to make specific findings in this regard. I accept each party came to the marriage with assets”.
The father further submits that insufficient weight was given to his financial contributions during the marriage, and that the mother’s parenting contribution was weighed more heavily.
As to post-separation contributions, the father does not dispute that the mother made greater contributions than he did. He could hardly contend otherwise, given his incarceration.
Her Honour addressed the contributions of the parties from [216] to [244] and made the following findings:
244.… In assessing the parties’ respective contributions, I am satisfied that [the mother’s] contributions were greater than those of [the father]. I have carefully considered the following:
(a)The assessment of initial financial contributions is not merely a mathematical calculation of the funds introduced by each party. It is necessary for me to weigh each party’s contributions to the acquisition of [the former matrimonial home], being the jointly acquired property. I am satisfied [the mother’s] contributions were in excess of $400,000, while [the father’s] contributions were around $222,000. [The mother’s] contributions to the purchase amounted to approximately 43% of the purchase price, while [the father’s] amounted to approximately 23%.
(b)[The father] brought to the relationship his UK savings and superannuation entitlements, which are reflected in the assets which exist.
(c)[The mother’s] contributions to the renovations of [the former matrimonial home] exceeded those of [the father], as a consequence of her mother’s contribution of $50,000.
(d)Each party made non-financial contributions by virtue as a home-maker. [The father] made additional contributions through supporting [the mother’s] three children from her previous marriage, noting their father did not pay child support. [The mother] and [the father] each made financial contributions towards their household during their marriage.
(e)During the marriage [the mother’s] parenting contributions exceeded those of [the father].
(f)[The father] was incarcerated for a period of two years and 10 months. During that time, [the mother] was the sole caregiver to [the child], in what were clearly very difficult circumstances. She did not receive any child support or financial assistance from [the father], apart from the sums I have referred to.
(g)Since [the father’s] release, [the mother] has continued to be the sole carer for [the child]. She has met the mortgage and outgoings on [the former matrimonial home], while acknowledging she continues to enjoy the benefit of occupation of the property.
(h)Since separation, [the mother’s] financial and non-financial contributions are unequivocally greater than [the father’s]. The parties were married for around 7 years duration, separating in August 2014. The post-separation period is around four years, which represents just less than sixty per cent of the length of cohabitation. The post-separation period represents over one third of the total period over which I am required to assess contributions. That period is significant because of its length, in context of the length of the marriage.
(Footnotes omitted)
At [245] her Honour concluded that by reason of contributions “the percentage division should be 64% to [the mother] and 36% to [the father]”.
To repeat, the father did not mount a challenge to her Honour’s findings of fact in relation to the contributions of the parties, and given the extensive reasons provided by her Honour, it is not evident how her Honour’s finding as to contributions resulted in a contributions percentage division that “was against the evidence and the weight of the evidence and was wrong in law”. The father’s submission as to this ground can be no more than an assertion that this Court would reach a different conclusion than that of her Honour on the same facts. However, that cannot be the basis for a successful appeal.
It is also instructive that the father’s position at trial was that each party contributed equally, and that there should be a five per cent adjustment in favour of the mother for s 75(2) factors. However, the father revised his position at the hearing of the appeal, and sought that there be a re-exercise of the discretion so that the overall division of property be 60 per cent/40 per cent in favour of the mother, based on the assessment of contributions and no s 75(2) adjustment. How it can be said that a four per cent differential between what the Magistrate found as to contributions, and what the father now contends is so far outside the range of discretion, is not explained by the father.
As to the s 75(2) assessment (Ground 6), the father again contends that the Magistrate’s adjustment was “against the evidence and the weight of the evidence and was wrong in law”.
The father submits that the 8.5 per cent adjustment in favour of the mother was outside the range, given that the mother was earning approximately double that of the father, he had attempted to pay child support to the mother despite the mother not accepting it, the mother’s two adult daughters continued to live with her, and the father was unable to access his superannuation entitlements (Father’s Amended Summary of Argument filed on 26 September 2019, paragraphs 60 and 61). Further, it was submitted that her Honour failed to take into account the disparity in the parties’ positions after the contributions assessment, being a 28 per cent differential.
After identifying the relevant evidence the Magistrate concluded as follows:
256[The father] sought an adjustment of 5% in favour of [the mother], while [the mother] sought an adjustment of 10% in her favour. Having regard to all of the evidence, I am persuaded it is appropriate to make an adjustment on the basis of the s75(2) factors in favour of [the mother]. [The mother] will continue to have care of [the child]. She is likely to continue to bear the costs of caring for [the child], even if [the father] pays child-support. In light of the disparity in the parties’ income, any child-support which [the father] is assessed to pay is likely to be modest.
257While [the mother] is younger than [the father] and currently enjoys a greater income than he does, she has ongoing financial responsibilities to care for [the child], in addition to his sisters. While [the father] earns less than [the mother], on his own case, it is more than adequate to meet his reasonable needs. [The father] has superannuation entitlements worth significantly more than [the mother].
258After careful consideration, I am satisfied that an adjustment of 8.5% in favour of [the mother] is appropriate…
Again, the father fails to demonstrate how these findings and the assessment of the appropriate adjustment were “against the evidence and the weight of the evidence and… wrong in law”. That is especially the case when the father’s position at trial was that an adjustment of five per cent for s 75(2) factors should be made in favour of the mother. Thus, there is no foundation for the father’s complaint.
We now return to Ground 4. Based as it is on Grounds 5 and 6, which we have found to be of no merit, Ground 4 is itself devoid of merit.
It is concerning in any event to see that ground of appeal framed in the way it is. As such, where there is no challenge to the findings of fact, this can be nothing more than a submission that this Court would reach a different conclusion on those same facts.
That this is not a sound basis for an appeal was explained by the Full Court in Babett & Falconer (2015) FLC 98-067. Indeed, we consider it appropriate to set out the entirety of what their Honour’s there said in relation to this issue, as follows:
(b) The “Generous Ambit of Discretion” and Error
31.It is by no means uncommon to see grounds of appeal framed in terms identical, or similar, to Ground 3 in this appeal. That such a contention of discretionary error can be made might be seen to emanate from the concluding part of the frequently-cited passage from the judgment of their Honours, Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504, 505 (“House”). Their Honours, having set out specific errors that might inform discretionary error, said:
… the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
32.Their Honours’ statement in House makes it clear that the conclusion of unreasonableness or injustice must be so “plain” that it permits of an inference that there has been a failure to “properly” exercise “the discretion which the law reposes in the court of first instance”. More recent statements by the High Court also underscore the required aberrance. For example, in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, their Honours Gleeson CJ, Gaudron and Hayne JJ said (at 203-204):
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.
…
"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
33.Earlier statements by the High Court have emphasised the “very wide discretion” inherent in s 79 (Mallett v Mallett (1984) 156 CLR 605, 608). That very wide discretion can be seen to be an example of where “… the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion” and, as a result, “the latitude” given to a trial Judge is “considerable”. By way of corollary, “… it is never enough that an appellate court, left to itself, would have arrived at a different conclusion” (Gronow v Gronow (1979) 144 CLR 513, 519 per Stephen J).
34.However, what is at issue here is a discretionary conclusion reached from established facts none of which are challenged on appeal. An appellate court’s decision that a trial Judge’s discretionary conclusion is wrong must have a discernible proper foundation and that foundation cannot be merely that it would have reached a different decision based on the same facts. Justice Stephen’s often-quoted passage in Gronow v Gronow (1979) 144 CLR 513, 520 pertains:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight …
(Emphasis added, See also, Aickin J’s statement to similar effect at 538).
35.Some five years later, Gibbs CJ, having cited those statements with approval, said to similar effect in Mallet v Mallet (above) at 615:
The conclusion reached by the Full Court that [the trial judge] had failed to give [the relevant factors] proper weight can only be explained by the fact that their Honours disagreed with his conclusion. However the mere fact that they themselves would have made a more liberal provision for the wife was no justification for substituting their own exercise of discretion for that of the primary judge.
36.Emphasising that a proper foundation must be established for an appeal court’s conclusion that a trial Judge’s discretionary conclusion is wrong, the former Chief Justice also said:
The meaning of the statement which is found in the authorities that an appellate court may interfere with an exercise of discretion when it reaches the clear conclusion that no weight, or no sufficient weight, has been given to relevant considerations was explained by Latham C.J. in Lovell v. Lovell [1950] HCA 52; (1950) 81 CLR 513, at p 519, as follows:
If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. (See also per Kitto J., at pp.533-4.)
37.While it can be contemplated that assessments of contributions pursuant to s 79 might be judged erroneous by reason of fitting the description “unreasonable” or “plainly unjust”, it is a description that begs a foundation for this Court doing other than substituting its own discretionary conclusion for that of the trial Judge. In this, as in so many like cases, the central contention is that error is established by the result being “so outside” something that is not only unidentified but is not referenced to any foundation save for that assertion.
38.In those circumstances, the submission is no more or less than a submission that this Court would reach a different conclusion to that of the trial Judge. As Barwick CJ said in Sharman v Evans (1976-1977) 138 CLR 563, 565:
... the function of a court of appeal, in my opinion, is not to offer what in connexion with another discipline would be called “a second opinion”. Such a court is strictly confined to the remedy of error in the trial or in the assessment of the trial Judge. It cannot be too strongly said that a mere difference of opinion ... does not indicate error on the part of the trial Judge.
(Emphasis in original)

There is no merit in these grounds of appeal.

Conclusion

There being no merit in any of the grounds of appeal, the appeal must be dismissed.

Costs

In the event that the appeal was dismissed, it was agreed that the father would pay the costs of the mother of and incidental to the appeal fixed in the sum of $12,000, and payable within 90 days of the date of the orders being made. We propose to make that order.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & O’Brien JJ) delivered on 12 May 2020.

Associate:

Date: 12 May 2020