D v B [No 2]
[2012] WASCA 265
•14 DECEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: D -v- B [No 2] [2012] WASCA 265
CORAM: BUSS JA
NEWNES JA
MURPHY JA
HEARD: 14 SEPTEMBER 2012
DELIVERED : 14 DECEMBER 2012
PUBLISHED : 14 DECEMBER 2012
FILE NO/S: CACV 13 of 2012
BETWEEN: D
Appellant
AND
B
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :MONCRIEFF J
Citation :B and D [2012] FCWA 9
File No :PTW 3688 of 2009
Catchwords:
Family law - Appeal against parenting and property orders - Whether primary judge erred in ordering father's access to children to be supervised - Whether children likely to be exposed to psychological abuse and inappropriate behaviours if no supervision - Relevance of prior conduct of father - Whether property settlement was against weight of evidence
Legislation:
Family Law Act 1997 (WA), s 66, s 66A, s 66C, s 70A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr R I M Bannerman
Independent Children's Lawyer : Ms R L Cohen
Solicitors:
Appellant: In person
Respondent: Bannerman Solicitors
Independent Children's Lawyer : Legal Aid (WA)
Case(s) referred to in judgment(s):
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
JUDGMENT OF THE COURT: This is an appeal against a decision of Moncrieff J in the Family Court of Western Australia, in which his Honour made orders for custody and access in relation to the two children of the relationship between the appellant and the respondent, and a financial settlement between them.
Following a ten day trial, the primary judge ordered, in substance, that the respondent, the mother, was to have sole parental responsibility for the children and the appellant, the father, was to have supervised access for a period of up to two hours per fortnight. His Honour further ordered that a property owned by the parties was to be sold and after discharge of the mortgage, and the payment of fees and charges associated with the sale, the respondent was to receive 70% of the sale proceeds and the appellant was to receive 30%. An amount of $25,000 was to be set aside to meet any capital gains tax liability of the respondent and the appellant was to meet all rates, taxes and other charges payable in respect of the property.
The appellant appeals against the orders made by the primary judge.
Background
The parties met in approximately March 2003. At the time the appellant was 32 years of age and the respondent was 35. The respondent is a chartered accountant and at that time was employed as a chief financial officer. She owned a property in a suburb of Perth. The appellant owned a duplex unit in the same suburb and was running a small business. The business ceased operation some time in 2004. Thereafter the appellant appears to have engaged in some renovation work and in share‑trading.
In about March 2004, the respondent decided to let her house to a tenant and, in about April 2004, moved into the appellant's duplex unit to live with the appellant in a de facto relationship.
Subsequently, the appellant expressed a desire to acquire the other unit comprising the duplex and, in around March 2005, he made an offer to acquire the property, which was accepted. The appellant and the respondent jointly obtained a loan of $400,000 to fund the purchase, based on the respondent's ability to service the mortgage from her income. The appellant was unable to contribute towards servicing the mortgage and, in mid‑2005, the respondent sold her property. The respondent ultimately realised net proceeds of sale of approximately $300,000 and that sum was placed in a mortgage offset account against the $400,000 loan secured against the duplex. This left the parties with a net mortgage to service of approximately $100,000.
The parties' first child, L, was born in 2005.
The two duplex units were sold in June 2007 for $790,000 each and, in August 2007, the parties acquired another property (the property), for the sum of $1,550,000. They moved into the property in December 2007. Their second child, J, was born in 2008.
In June 2009, the parties separated. The appellant continued to reside in the property, at the same time undertaking work to complete a proposed subdivision of it.
Shortly afterwards the parties became involved in the litigation which has given rise to this appeal. In the proceedings, the appellant has at all times acted in person. The respondent has been represented by solicitors and in the course of the proceedings an Independent Children's Lawyer was appointed by the primary judge.
The proceedings commenced with an application by the respondent to the Family Court in July 2009 seeking exclusive use and occupation of the property. The application was opposed by the appellant who contended that the property should be sold but that he should have exclusive possession of it in the meantime. The appellant also sought orders that the parties have shared parental responsibility for the children and that the children live with the parties on a '50/50 basis week on week about'.
On 17 August 2009, the child‑related proceedings were adjourned to a case management conference before a magistrate. At a case management conference on 23 September 2009, Magistrate Monaghan ordered that the children spend such time with the appellant 'as [could] be agreed from time to time supervised by persons acceptable to each of the parties'; that the children be independently represented; and that, pursuant to s 202K of the Family Court Act 1997 (WA) (the Act), the Western Australia Police provide the court with any information or documents relating to an alleged assault of the respondent by the appellant on or about 20 June 2009.
On 2 November 2009, orders were made, among other things, permitting the appellant to have supervised time with the children from 9.00 am to 12 noon each Saturday.
On 4 January 2010, the appellant applied for Magistrate Monaghan to disqualify himself from hearing the matter on the ground of apprehended bias, alleging that the magistrate was an associate of a person with whom the appellant had been involved in a lengthy legal dispute. The appellant also sought orders that he be permitted unsupervised time with the children mid week.
On the same day, the respondent's then solicitor, Ms Quinlivan, filed an affidavit deposing to having received abusive telephone calls from the appellant, in some of which the appellant had used obscene language.
In an affidavit filed on 8 March 2010, the appellant denied that he had used the language attributed to him.
In the meantime, on 26 February 2010, orders were made for the appellant to have unsupervised access to the children each Saturday from 9.00 am to 4.00 pm and each Wednesday from 9.00 am to 6.00 pm, with a condition there be no communication between the appellant and respondent.
On 21 April 2010, the matter was relisted on the application of the Independent Children's Lawyer to put before the court evidence of alleged communications by the appellant to each of the Independent Children's Lawyer, the respondent's lawyer, and the managing director of the respondent's employer (Mr W), the last including messages left on an answering machine on 27 and 28 March 2010, and 3 April 2010. The alleged communications included highly offensive assertions and obscene language.
When the matter came on for hearing, Magistrate Monaghan suspended the enforcement of the 26 February 2010 orders which permitted the appellant to have unsupervised access to the children. The appellant was directed to file and serve an affidavit in response to the allegations concerning his conduct and for information to be requested from the WA Police, pursuant to s 202K of the Act.
The matter was then transferred to the primary judge's child‑related proceedings docket.
On 24 April 2010, the primary judge ordered that the trial be expedited and be heard before him on 25 August 2010 for no more than five days. His Honour adjourned various interim applications to a special appointment and directed that by 14 May 2010 the appellant file and serve a comprehensive minute of orders sought and any affidavit material on which he relied in respect of the interim applications. The Independent Children's Lawyer and the respondent were given an opportunity to respond. The interim applications included an appeal by the appellant against Magistrate Monaghan's refusal to disqualify himself on the ground of apprehended bias, an application by the appellant for a review of the parenting orders and two contempt applications filed by the appellant. The respondent subsequently filed an application for a contravention order.
On 31 May 2010, the primary judge dismissed the appellant's appeal, the contempt applications and the contravention order application. In relation to the parenting orders, his Honour ordered that the 26 February 2010 child access orders be suspended and the appellant be allowed only supervised visits with the children. A psychiatrist, Professor Lipton, was appointed by his Honour as a single expert witness.
On 22 June 2010, the appellant requested that the matter be relisted on the basis of an affidavit he had sworn detailing allegations that the respondent's father had molested the children. In the interim, the appellant had sent an email to the respondent's new solicitor (Ms Quinlivan having ceased to act), saying '[p]lease get off your homo arse and make some effort or you may suffer the same fate as [Ms Quinlivan]'. Apart from the offensive language, the reference to Ms Quinlivan's 'fate' has some significance in light of an incident in April 2010 to which I will come shortly.
On 5 July 2010, the primary judge, among other things, refused an oral application by the appellant that his Honour disqualify himself, granted an injunction that the appellant be restrained from communicating with any legal representative for the respondent on any more than two occasions per week and in any form other than writing, and ordered that the children were not to be in the unsupervised presence of the respondent's parents [111] ‑ [114]. The last order no doubt followed as a result of the appellant's allegation that the respondent's father had molested the children.
On 22 July 2010, the primary judge vacated the trial and adjourned the proceedings generally as the appellant was in prison facing charges of aggravated stalking following 94 alleged contacts by the appellant with the respondent over 14 days contrary to a violence restraining order.
The trial was ultimately heard by the primary judge on 2 to 6 May and 26 to 30 August 2011. Before turning to the findings of the primary judge, it is convenient to set out the relevant legislative provisions.
The relevant legislative regime
The relevant provisions are contained in pt 5 of the Act and are as follows:
66.Object of Part and principles underlying it - FLA s 60B
(1)The objects of this Part are to ensure that the best interests of children are met by -
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests) -
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 66A provides that in deciding whether to make a parenting order in relation to a child, a court must regard the best interests of the children as the paramount consideration.
Section 66C sets out how the best interests of the children are to be determined:
(1)… in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are -
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(3)Additional considerations are -
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; and
(b)the nature of the relationship of the child with -
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
and
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from -
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
and
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; and
(f)the capacity of -
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs; and
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; and
(h)…
and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; and
(j)any family violence involving the child or a member of the child's family; and
(k)any family violence order that applies to the child or a member of the child's family, if -
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
and
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting subsection (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents -
(a)has taken, or failed to take, the opportunity -
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
and
(b)has facilitated, or failed to facilitate, the other parent -
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child;
and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(5)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 70A(1) provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in, among other things, family violence (s 70A (2)), and it may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s 70A(4)). In s 5 of the Act, 'family violence' is defined to include conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
The findings of the trial judge
The primary judge found all of the witnesses apart from the appellant and Dr Clarkson, a general practitioner called by the appellant, to be impressive. On the other hand, his Honour described the appellant's presentation as 'chaotic and at times bordering on the bizarre'. He considered that the appellant 'presented as someone who is grossly immature and … largely uncontrolled', and expressed concern that the appellant had serious mental health issues which affected his presentation [169] ‑ [170]. His Honour found that where there was any conflict between the evidence of the appellant and any other witness he preferred the evidence of the other witness.
Custody and access
Having referred to the objects and principles contained in s 66 of the Act, and the prescription in s 66A that the best interests of the children are the paramount concern in determining parenting orders, the primary judge turned to consider each of the factors required by s 66C of the Act to be taken into account in determining what is in a child's best interests. His Honour considered those factors seriatim as follows.
The benefit to the child of having a meaningful relationship with both of the child's parents
The primary judge concluded that the appellant had a capacity to be child focused and to relate to the children in appropriate ways. His Honour found that a bond had been maintained between the children and the appellant, notwithstanding the restrictions that had been placed upon the time he was able to spend with them [182]. His Honour also found that the respondent had sought to encourage and maintain a 'qualitative relationship' between the children and the appellant [183].
However, the primary judge considered that the appellant's behaviour cast doubt over the benefit to the children of the relationship with the appellant [185]. His Honour observed that the appellant had made 'extravagant' allegations about the respondent exposing the children to risks and two very specific allegations about the respondent's parents [187]. None of the allegations had been substantiated and his Honour considered them to have been made solely to cause distress to the respondent and her family, and to undermine the support base the respondent has from her parents [188].
The primary judge noted that even when his contact with the children was being supervised by Anglicare, the appellant was unable to restrain himself from asking the children about those matters. His Honour considered that if the appellant continued to question the children in that way it would inevitably have the consequence of undermining or disturbing their relationship with their mother and extended family, in which case his Honour considered it was difficult to see a prospective benefit for the children in having a relationship with the appellant [190].
In addition, his Honour considered that behaviour by the appellant such as was evidenced by an incident involving the respondent's former solicitor (Ms Quinlivan), also had the potential to damage the relationship with his children. It is necessary to digress to describe the incident to which his Honour was referring. Ms Quinlivan's version of the incident was set out in an email, dated 19 April 2010, which she sent to the Independent Children's Lawyer and which went into evidence at trial as exhibit 13. The text was set out in his Honour's reasons at [51]. The incident occurred on Saturday, 17 April 2010, in the early afternoon. (Ms Quinlivan had ceased to act for the respondent on 11 March 2010.) Ms Quinlivan said that she was with her 12‑year‑old daughter, a friend of her daughter's and Ms Quinlivan's sister. In her account of the incident, Ms Quinlivan said she encountered the appellant in the street with his two children. She said:
Unfortunately he saw me before I saw him. He pursued me and [my] family up a portion of [the street] yelling 'fucking child abuser, disgusting ugly, man hating lesbian, bitch'. It was very frightening for me and my family. My sister burst into tears and my daughter and her friend were terrified. And one of those situations where members of the public were just paralysed.
He also said 'see I have my kids and there is nothing you can do about it you fucking child abuser'. We crossed the road trying to get away from him and he pursued us up [the avenue] with [L] and [J] in tow continuing to yell and shout. We ended up hiding in the butchers on [the avenue] and waiting there for about 15 minutes until he ran out of steam and disappeared. I called the police and asked them to do a welfare check because I wasn't sure what time [the respondent] was due to pick [L] and [J] up and I was worried about them. [The appellant] was quite agitated. [L] was upset in a quiet kind of way. I heard her say 'stop Daddy, please stop Daddy'. [F] also heard her say 'Daddy why are you shouting at those people, please stop'.
Ms Quinlivan confirmed that account of the incident in her oral evidence at trial.
The appellant gave a different account. This account is set out in the reasons of the primary judge at [80]:
[Ms Quinlivan] walked out of the shop, she smirked and laughed at me. I was sitting there with my children. I told her to, you know, 'Piss off. You've done enough harm to my family and my children'. She stood there laughing and smirking at me. I just said, 'Piss off'. You know, 'you seem to be involved in massive amounts of psychological child abuse. Stay the F away from my children'. I didn't follow or chase her, your Honour. I took the shortest route home.
The primary judge did not make a specific finding as to which version of the incident he preferred but observed that, even on the appellant's own account, his behaviour would potentially damage not only the children's relationship with the respondent and her family but also his own relationship with the children.
His Honour considered that the appellant's inability to control his behaviour appropriately was also evident from his mother's evidence. He noted that the appellant's mother had obtained a violence restraining order (VRO) against the appellant but withdrew it so as to be able to assist the appellant as a supervisor with the children. She had, however, stipulated that the appellant was not to ask the children questions about the respondent's parents, because it upset the children. His Honour accepted her evidence that the appellant continued to ask such questions in her presence and ultimately she ceased being involved in supervision. Subsequently, the appellant's mother obtained another VRO against the appellant following text messages while she was overseas in which he threatened to use her home with his 'prison friends' for a barbecue and demanded she take action to assist him to obtain more time with his children.
The primary judge found that the appellant's relationship with his children was at significant risk from the appellant's inability to control himself and act appropriately. His Honour observed that the appellant demonstrated little insight or appropriate judgment and little impulse control, and that he refused to accept responsibility for the consequences of any of his actions, the responsibility for which he continually ascribed to others [192]. His Honour noted that the appellant's relationship with all of the members of his family had either broken down completely, was the subject of litigation, or was otherwise dysfunctional [209].
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The primary judge considered three matters in respect of this factor: allegations by the appellant of sexual and physical abuse of the children by their maternal grandfather, the exposure of the children to family violence, and the need to protect the children from psychological harm.
The first of those matters concerned allegations by the appellant that the respondent's father had sexually interfered with L and that he had smacked J.
The primary judge noted that there was little evidence to support the appellant's allegations of sexual abuse [230]. His Honour accepted the evidence of the respondent's father that the events alleged by the appellant had not occurred and found that the appellant's allegations were without substance. He also found that it was likely the appellant knew the allegation to be without foundation [249].
In respect of the allegation that the respondent's father had smacked J, his Honour noted the evidence of the appellant's mother that the appellant had attempted to coach J into alleging that he had been smacked by the respondent's father [229], [253]. His Honour found there was no evidence to support the allegation and that it had not been made out [258].
On the question of exposure of the children to family violence, the primary judge noted that the children had been exposed to family violence on an occasion when the respondent was assaulted by the appellant in close proximity to the children. The appellant had subsequently pleaded guilty to a charge of assault [260] ‑ [261].
The primary judge considered that the most significant issue under this factor was whether or not the children were at risk of psychological abuse from the appellant [267]. A report, dated 7 January 2011, by the sole expert witness, Professor Lipton, a consultant psychiatrist, was admitted into evidence.
His Honour noted that, having conducted a mental status examination of the appellant, Professor Lipton had concluded that the appellant had a significant personality disorder with paranoid and antisocial traits. That disorder did not preclude the appellant from appearing normal at times but it was likely that under conditions of stress, frustration and anger it would produce the sort of abnormal behaviour the appellant had exhibited. Professor Lipton considered that the disorder did not necessarily mean that the appellant posed a physical danger to the children and he considered that, contingent on the appellant's agreement to undertake care from a psychiatrist, the appellant should have unsupervised access to his children for one day a week for a trial period of three months.
The primary judge observed, however, that in his oral evidence Professor Lipton said that recent events had cast doubt on the conclusions he had expressed in the report [284]. The primary judge noted that following cross‑examination by the appellant and the respondent's counsel, Professor Lipton had concluded that the recommendation in his report was based on a belief about the appellant that was more positive than recent material warranted. In his evidence Professor Lipton also referred to a very angry telephone call he had received from the appellant who had asserted that the report was totally incorrect and the facts in it were all wrong, and in which the appellant had threatened to sue him and to complain to the relevant authorities to have him deregistered. The appellant had said the report would 'cost [Professor Lipton] dearly'.
His Honour noted that at trial Professor Lipton had concluded that the appellant should have a full psychiatric assessment and treatment by a consultant psychiatrist, and in the meantime he should see the children under supervision [285] ‑ [286].
A general practitioner, Dr Clarkson, called by the appellant took a different view. Dr Clarkson gave evidence that the appellant suffered from adult attention deficit disorder and that there was no reason why the appellant should not have unsupervised access to the children. The primary judge did not accept that evidence. He noted that Dr Clarkson had no relevant psychiatric training, that his opinion was based on unidentified material supplied to him by the appellant, and that Dr Clarkson had not been privy to the material provided to the court [290] ‑ [291]. His Honour concluded from Dr Clarkson's cross‑examination that Dr Clarkson knew very little of the circumstances surrounding the appellant and the behaviours in which he had engaged [295].
The primary judge concluded as follows:
Having regard to the opinions of both Professor Lipton and Dr Clarkson and the further opinions advanced as to [the appellant's] psychological and psychiatric state, my assessment of his presentation during the trial and leading to the trial, the dysfunctional relationship that he has with all of his family and his inability it would seem to engage in a measured appropriate way with any individual who does not subscribe to or adopt [the appellant's] view, I have considerable reservations about his ability to conduct himself in any appropriate manner with the children absent proper supervision.
[The appellant] appears incapable of controlling himself appropriately, of demonstrating appropriate insight and he shows very poor judgment in some of the choices he makes.
Whilst I have absolutely no doubt that he loves his children, I am left with considerable reservations about his ability to manage his behaviour to the extent that I am satisfied there is a real and identifiable risk that the children may suffer psychological abuse and be exposed to totally inappropriate behaviours were any time spent by [the appellant] with the children not strictly supervised.
There is a further concern raised by [the appellant's] conduct during the course of the trial. He appeared throughout to be unable to contain his rage or other anti‑social conduct in dealing with Mr Bannerman, counsel for the wife, and Ms Young, the Independent Children's Lawyer. Mr Bannerman was the subject of abusive, entirely inappropriate communications that were directed to be insulting and demeaning. Similarly, Ms Young was subjected to insults, threats, constant complaints, including insulting remarks being made to an open court immediately preceding a call‑over and receiving a plastic pig being sent to her through the post. Given that each of Mr Bannerman and Ms Young are part of the process that may have been supportive of [the appellant's] desired outcomes this renders his behaviour even the more bizarre.
[The appellant's] consumption of alcohol at inappropriate times, the quantity of alcohol he consumes and his resulting behaviour is a concern. [The appellant] himself blames much of his poor behaviour on his alcohol use. He says he made calls to [the respondent's employer] at 7.00 am because he was drunk. He also in self reporting with Dr Clarkson said that he has more than four standard drinks a day and this alcohol use was reported as severe. What is also of concern is the evidence of [the appellant's mother] that [the appellant] came to some visits with his children with a beer in his hand.
However, there is one further and deeply troubling aspect of the exchanges with Mr Bannerman, which relate to a matter where the father of two children took the lives of those two children by driving a motor vehicle into a tree, with the consequence that the children and the father were killed. On numerous occasions [the appellant] raised this particular incident and demanded to know whether either Ms Young or Mr Bannerman had been involved in the particular matter presumably with the intent of impugning their ability or otherwise insulting them. There is, however, a more sinister aspect to [the appellant's] 'interest' in this particular matter which borders on the obsessive. Whilst I can make no positive finding that these are [the appellant's] thoughts it is an underlying concern that there may be a sinister connotation to [the appellant's] 'attraction' to the particular matter that may have catastrophic consequences for the children if indeed my concerns about [the appellant's] darker or more sinister interest were to be realised, the more so when underscored with [the appellant's] expressed preparedness to be further imprisoned [304] ‑ [309].
(His Honour's reference to imprisonment was a reference to time the appellant had spent in custody on remand on charges of stalking the respondent.)
The nature of the relationship of the child with each of the child's parents, and other persons including any grandparent or other relative of the child
The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The primary judge considered these factors together. His Honour noted that the appellant had a dysfunctional relationship with his family, all of whom had, or have had, VROs against him. In addition, he had issued proceedings against his father in the Supreme Court over his dealings with the family company and graffitied the word 'monster' in letters 60 cm high over the walls of his mother's home. His mother had a VRO against him. His Honour concluded it was highly unlikely the children would have a relationship with the appellant's extended family during any time they spent with him [316].
His Honour also concluded that because of the appellant's antagonism towards them, it was highly unlikely he would be supportive of a relationship between the children and their maternal extended family [317].
On the other hand, his Honour found that the respondent had at all times attempted to reasonably facilitate a relationship between the children and their father notwithstanding the circumstances of their separation and the ongoing tirade of abusive behaviours to which she has been subjected by the appellant. He also found that she had continued to maintain a relationship with the children's paternal grandparents as well as her own extended family [318].
The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The primary judge found that although there was very strong love and affection between the appellant and his children, and when appropriately managed he could provide very positively for them, there was a real risk that he would not properly provide for the emotional and intellectual needs of the children through his inability to properly behave himself [323] ‑ [324].
His Honour found the respondent, the maternal grandparents and the paternal grandparents were able to provide an appropriate emotional and intellectual structure for the children [325].
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; and
The extent to which the parents have fulfilled or failed to fulfil the responsibilities of parenthood
The primary judge found that the respondent had fulfilled her responsibilities of parenthood but that the appellant had not. In respect of the appellant, his Honour referred to his earlier findings and further noted that the appellant had not made any financial contribution to the children's day‑to‑day needs.
Presumption of equal shared parental responsibility
The primary judge found that it was not in the best interests of the children for an order for shared parental responsibility to be made. His Honour considered it most unlikely that at that stage there could be, or that in the reasonable future there would be, constructive communication between the appellant and the respondent [340]. To make such an order would simply provide an opportunity for the appellant 'to harass, intimidate, abuse and attempt to manipulate or otherwise bully [the respondent] as to arrangements for the children', a situation which would 'be totally counter productive and contrary to the best interest of the children' [341] ‑ [342]. His Honour also found that the presumption was rebutted by the presence of family violence on the appellant's part [343].
The property settlement
The assets and liabilities of the parties were not in issue at trial. After excluding property of the respective parties which did not fall into the pool of assets, the major asset was the property, the value of which was estimated at trial to be $2,000,000. The property was subject to a mortgage securing an indebtedness of $528,000. What was in issue were the findings of the primary judge that through her much larger income and by her greater contribution as homemaker, the respondent had made a greater contribution to the available assets.
The primary judge found that whilst the appellant had made a contribution through the work he had done in respect of the subdivision of the property (the value of which contribution was still to be realised), throughout the relationship, and for the most part contrary to the expressed wishes of the respondent, the appellant had 'embarked on a wasteful pattern of speculative investment/gambling on the stock market' leading to significant losses [442]. His Honour noted that on the sale of the property, the appellant might derive some benefit in respect of any capital gains tax (CGT) liability from the carried forward capital losses he had incurred in his share‑trading [443].
The primary judge held that the respective contributions of the parties should be assessed in the respondent's favour as to 65% with 35% to the appellant [448]. After having regard to the factors specified in s 205ZD(3) of the Act, his Honour concluded that the property should be settled on the basis of 70% to the respondent and 30% to the appellant [458].
The primary judge made (relevantly) orders to the following effect:
1.the respondent is to have sole parental responsibility of the two children and the children are to live with her;
2.the appellant be restrained and an injunction is granted restraining him from:
(a)discussing any concerns of a sexual nature in relation to the children; and
(b)discussing with or informing any third party of allegations raised in the proceedings;
3.the appellant's time with the children be suspended if he contravenes any of these orders;
4.the appellant spend, as negotiated with Anglicare, up to two hours per fortnight of supervised time with the children;
5.the single expert witness review the matter after the appellant attends psychiatry sessions and demonstrates compliance with treatment for at least six months, and the independent children's lawyer should then be at liberty to apply for a review of the 'up to two hours negotiated time';
6.$25,000 from the proceeds of sale of the property be held in an interest‑bearing account in the respondent's name;
7.the net proceeds of the sale of the property are to be divided between the parties on a 70:30 distribution in the respondent's favour; and
8.any outstanding liabilities attaching to the property shall be paid from the appellant's entitlement to the proceeds of sale.
The grounds of appeal
It is unnecessary to set out the grounds of appeal in full, a number of which overlap or are repetitious and not all of which are easy to understand. The substantive contentions raised by the grounds of appeal are as follows:
1.the primary judge erred in finding that it was in the best interests of the children for the respondent to have sole parenting responsibility and the appellant to have supervised access of two hours per fortnight, in that:
(a)the finding was against the weight of the evidence and contrary to s 60CC and s 65DAA of the Family Law Act ([sic] s 66C and s 89AA of the Family Court Act) (grounds 1 ‑ 3);
(b)the primary judge failed to take into account the evidence of a number of witnesses that the appellant does not suffer a serious mental illness and the children are not at risk of psychological harm or emotional abuse (grounds 4, 6b);
(c)the primary judge failed to take into account the evidence of a number of witnesses that the respondent had failed to comply with previous orders of the court as to access and had not made any effort to enable the children to develop a relationship with the appellant (grounds 8, 11, 13, 20).
The primary judge should have found that it was in the best interests of the children that the appellant have 'substantial' unsupervised time with them (orders wanted);
2.the primary judge erred in law in taking CGT into account in determining the parties' assets in that the proceeds of sale of the property will not be subject to CGT (ground 15);
3.the primary judge erred in fact in finding that the respondent's contribution to the asset pool was 70% [sic], that finding being against the weight of the evidence. His Honour should have found that the respondent's contribution was 50% (ground 16); and
4.the primary judge erred in fact in finding that the respondent was not liable to contribute to the payment of rates on the property (ground 17a).
(There are no grounds 7, 9, 10, 12, 14, 18 and 19.)
Disposition of the appeal
An appeal to this court lies from a decree of the Family Court of Western Australia exercising non‑federal jurisdiction: s 211(3) of the Act. (A 'decree' is defined to include, relevantly, a judgment or order: s 209A.) Upon such an appeal, this court may affirm, reverse or vary the decree, and make such other decree as ought to have been made in the first instance: s 211(3).
This court may exercise its appellate powers under s 211(3) only if the family law judge made a material error. The appeal is not an appeal de novo.
If the decree of the family law judge involved the exercise of a judicial discretion then the principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion apply. See House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ). For example, error in exercising a judicial discretion will be shown where the primary decision‑maker has acted on a wrong principle, or has allowed extraneous or irrelevant factors to influence him or her, or has failed to take into account some material consideration, or has mistaken the facts.
If the decree of the family law judge involved the exercise of a judicial discretion, and the complaint on appeal is that no weight, or insufficient weight, was given to relevant considerations, the appellate court should not interfere unless the failure to give adequate weight to relevant considerations 'really amounts to a failure to exercise the discretion actually entrusted to the court': Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519 (Latham CJ). See also Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 519 ‑ 520 (Stephen J); Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ).
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record: Dearman (561); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23]. In Dearman, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).
In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23]. (footnotes omitted)
In the present case, the trial took place over ten sitting days and the primary judge delivered detailed reasons for decision, running to 106 pages. All of the deponents of affidavits upon which the respondent and the Independent Children's Lawyer respectively relied were cross‑examined by the appellant, in some cases extensively so. Although the appellant was given every opportunity to call such relevant evidence as he may wish (see, for instance, ts 2 ‑ 5 (26/8/11); [153] ‑ [158]), in the end he chose to rely on his own evidence and that of Dr Clarkson. Assertions made by the appellant on the appeal that he was denied the opportunity to call certain witnesses are without foundation.
While it is the case that the appellant did not have legal representation, it is apparent from a review of the transcript of the hearing that at least in his cross‑examination of the witnesses called by the respondent and the Independent Children's Lawyer, the appellant attempted to leave unturned no stone that he thought might conceivably reveal something having a bearing on the case favourable to him. He attempted to turn over many other stones as well.
Against that background, it is convenient to deal with each of the grounds we have identified above in turn.
Ground 1
While the appellant refers in the grounds of appeal to s 60CC and s 65DAA of the Family Law Act 1975 (WA), the proceedings fell under the Family Court Act, in which the equivalent provisions are s 66C and s 89AA respectively. In fact, the appellant's challenge is in respect of the application of s 66C and s 70A of the Family Court Act. Section 89AA only applies where an order provides (or is to provide) for equal shared parental responsibility for a child. Such an order was not made by the primary judge. It will be necessary to come in due course to why such an order was not made.
The appellant's contention that the parenting orders made by the primary judge were against the weight of the evidence cannot be accepted. In support of this ground, the appellant relies upon what he describes as:
the evidence of the numerous opinions of others, ie Professor Lipton, Dr Clarkson, Judge Murray [sic, Justice Murray] (Supreme Court), QC Malcolm McCusker, Magistrate Monaghan, Magistrate Woods, ICL comments ‑ February 2010, Anglicare Reports x 2. A Dr Daryl Managlio [sic, Darryl Menaglio], Barbra [sic, Barbara] Saba – Anglicare and various character references and the evidence presented at trial of Mr Armitage.
That body of opinion is said to support the appellant's case that the orders made by the primary judge were not in the best interests of the children.
In fact, no evidence was given by Justice Murray, Malcolm McCusker QC, Magistrate Monaghan, Magistrate Woods, or Dr Darryl Menaglio.
The reference to the opinion of Murray J appears to be a reference to what his Honour said when the appellant came before him on an application for bail on 14 September 2010, and again on 22 November 2010 when the appellant sought an amendment of his bail conditions. The appellant was at the time charged with stalking the respondent, contrary to s 338E of the Criminal Code (WA). We have read the transcript of both hearings. Not surprisingly, nothing was said by his Honour on either occasion which has any bearing on the issues which fell for determination by the primary judge.
In relation to Mr McCusker QC, the appellant apparently relies upon a letter to him from Mr McCusker of 15 February 2011. The letter was not contained in the appeal papers and is apparently not to be found in the Family Court file.
It appears from the appellant's written submissions that, in respect of Magistrate Woods, he relies upon what occurred when he appeared before her Honour and pleaded guilty to two charges of breaching a VRO, one charge of breaching a protective bail condition (he was fined $200 on each of those charges) and one charge of assaulting the respondent (for which he was fined $1,000). Again, we have read the transcript of the hearing and there is nothing contained in it which assists the appellant.
Similarly, in relation to Magistrate Monaghan the appellant relies upon what occurred in the course of interlocutory proceedings before his Honour. Once again, having read the transcripts of those hearings, there is nothing contained in them, or in the interim orders made by his Honour, which assists the appellant.
It emerged at the hearing of the appeal that 'ICL comments - February 2010' was a reference to statements made by the Independent Children's Lawyer at an interlocutory hearing before Magistrate Monaghan on 26 February 2010. On that occasion, the Independent Children's Lawyer expressed the view, based on the Anglicare report of 20 January 2010, that while the appellant had other issues which required management, he was a 'lovely dad' to the children (ts 10, 15, 26/2/10). That does not assist the appellant. At trial, what was to be drawn from the Anglicare report was a matter for the primary judge, to be weighed with the other evidence.
Dr Menaglio was appointed as the single expert witness in the proceedings on 2 November 2009. His appointment was discharged by consent on 26 February 2010. Professor Lipton was subsequently appointed as the single expert witness. Dr Menaglio played no part in the proceedings. On the appeal it was apparent that the appellant was under the misapprehension that his assertions, in the course of an interlocutory hearing on 26 February 2010, as to what Dr Menaglio had said to him were evidence for the purposes of the trial of the opinion of Dr Menaglio. That, of course, is quite wrong. The appellant's assertions as to Dr Menaglio's opinion had no evidentiary value.
It is necessary to turn then to the evidence referred to by the appellant. Two Anglicare reports were admitted into evidence, one dated 20 January 2010 and the other dated 15 August 2011. Anglicare had been involved in much of the supervision of the appellant's time with his children. The Anglicare reports were addressed by the primary judge at [182] of his reasons. His Honour noted that it was clear from the reports that the appellant had the capacity to relate to the children in appropriate ways and there was no doubt that a bond had been maintained between the children and the appellant. His Honour also observed at [189] that it appeared from the reports that even in that supervised environment the appellant had been unable to restrain himself from questioning the children about the respondent and their maternal grandparents, leading his Honour to express concern that if such questioning continued it would have the consequence of undermining or disturbing the children's relationship with the respondent and their extended family.
Ms Saba, the author of the report of 20 January 2010, gave evidence at the trial. Ms Saba's evidence did not add anything of substance to the contents of the report.
There is nothing contained in the Anglicare reports which is at odds with his Honour's findings. The opinion his Honour expressed as to the possible consequences of continued questioning of the children was one that was clearly open to him on the basis of the report and the evidence of the appellant's mother, which was to a similar effect (see [195], [198] ‑ [200]).
Mr Armitage provided a written character reference for the appellant and also gave evidence at trial. Mr Armitage had on some occasions supervised the access which the appellant had to the children. His evidence did not add anything of substance to the Anglicare reports in that connection. None of the appellant's other character witnesses gave evidence and little weight could therefore be given to their written character references.
Dr Clarkson is a general practitioner who described his practice as being in 'the area of Psychiatry and Analytical Psychotherapy and a touch of neuroscience'. Dr Clarkson is not a specialist psychiatrist. As mentioned earlier, Dr Clarkson was of the opinion that the appellant suffered from adult attention deficit disorder and considered there was no reason why the appellant should not have unsupervised time with his children, with overnight stays on a graduated basis (ts 35, 29/8/11). Dr Clarkson considered that inappropriate behaviours the appellant had exhibited had no bearing on the time he spent with his children (ts 42).
It is evident, as the primary judge observed, that Dr Clarkson had formed his opinion based on the (unidentified) information the appellant had provided to him and that he knew very little of the various inappropriate behaviours in which the appellant had engaged. (We will come to some of those behaviours in due course.) Dr Clarkson did not modify his view in any material way when some of that behaviour was put to him. He remained of the opinion that the behaviour had no connection with any reasonable risk of psychological harm to the children. The primary judge found Dr Clarkson's evidence to be unsatisfactory and did not accept his opinion that the appellant should have unsupervised access to his children.
The evidence of Professor Lipton was in marked contrast to that of Dr Clarkson. Professor Lipton is a consultant psychiatrist specialising in child and adolescent psychiatry, a field in which he has practised for 46 years. His expertise and extensive experience were not in issue.
We have mentioned that Professor Lipton prepared a report dated 7 January 2011 which went into evidence. For the purposes of preparing the report, Professor Lipton interviewed the appellant, L and the respondent. He also read extensive material filed in the proceedings relating to the parties' conduct and some subpoenaed documents, including a psychiatric report and a psychological report each of which was prepared while the appellant was in custody on remand on the stalking charges.
As the primary judge noted, in his report Professor Lipton found that the appellant had a significant personality disorder with paranoid and antisocial traits but concluded that the appellant should have unsupervised access to the children for one day a week for a trial period of three months. That was contingent on the appellant agreeing to undertake further psychiatric care and management. However, as the primary judge also observed, that conclusion underwent a significant change in the course of Professor Lipton's evidence at trial, Professor Lipton ultimately concluding that the appellant should continue to see the children under supervision and at the same time undertake psychiatric care, so that if the inappropriate behaviours settled a trial of unsupervised access could be undertaken (ts 57, 5/5/11). Professor Lipton considered that such a change was likely to take at least many months to occur, if it were to occur (ts 61).
The primary judge had the advantage of hearing Dr Clarkson and Professor Lipton give evidence. As we have said, his Honour regarded Dr Clarkson's evidence as unsatisfactory but considered Professor Lipton to be an impressive witness and accepted the opinion expressed by Professor Lipton in his oral evidence at trial that, for the time being, the appellant should continue to see the children under supervision. His Honour was clearly entitled to do so.
It is evident that there were reasons, in addition to Professor Lipton's opinion, for the 'considerable reservations' expressed by the primary judge about the appellant's ability to conduct himself appropriately in the children's presence in the absence of supervision, leading to what his Honour described as the 'real and identifiable risk' that the children may suffer psychological abuse and be exposed to totally inappropriate behaviours [306].
We have already mentioned the incident involving the respondent's former solicitor, Ms Quinlivan. That does not stand alone. The appellant's conduct in other circumstances revealed a similar inability to conduct himself appropriately. In his reasons, the primary judge referred in some detail to emails by the appellant to the respondent's solicitor and the Independent Children's Lawyer. It is unnecessary to canvass the content of those. Suffice it to say that emails referred to by his Honour included entirely inappropriate personal comments and comments of a sexual nature.
There is, however, one matter to which it is necessary specifically to refer. In a letter dated 23 March 2010 to the Independent Children's Lawyer, the appellant also included the following, apparently random, enquiry:
Also can you please confirm or deny wether [sic] or not Legal Aid and yourself in particular and Magistrate Monaghan were involved in the chap who drove himself into a tree with his children late last year. I note you have previously denied any involvement verbally.
In evidence at trial, the appellant acknowledged that he asked the Independent Children's Lawyer on several occasions whether she had been involved in the case and said that he had asked that of 'just about everybody who's been involved in [the appellant's case]' (ts 49, 6/5/11). The appellant also admitted raising the tragedy with a prison medical practitioner while the appellant was on remand on the stalking charges, and both in a letter and in an email to the Family Court, the latter being copied to a number of politicians (ts 49 ‑ 53, 6/5/11).
The primary judge observed in his reasons (at [309]) that the appellant's level of interest in, and repeated references to, that tragedy in the course of the proceedings were a matter of concern in the context of an application for unsupervised access to his children. In our respectful view, in the circumstances, his Honour's concerns were entirely appropriate.
The primary judge also referred to a number of telephone calls which were made by the appellant to the managing director of the respondent's employer, Mr W, in March and April 2010. In the period 27 and 28 March 2010, the appellant made more than 60 calls to Mr W's number. A number of messages were left on Mr W's answering machine. It is, fortunately, unnecessary to set them out. Suffice it to say that they constituted tirades of abuse, including repeated allegations by the appellant of serious financial impropriety and highly offensive allegations of a sexual nature against both Mr W and the respondent, couched in the most obscene language. Further telephone messages were left for Mr W in May and July 2011. They were of the same nature as the earlier calls. All of the messages are notable for the intemperate and obscene language used by the appellant and the extravagance of the allegations made.
At trial, the appellant did not attempt to suggest that there was any basis for the allegations. His explanation for the calls was simply that he was very upset at the time about access to his children and that Mr W had not been prepared to assist him in gaining greater access (ts 51 ‑ 54, 4/5/11). Why the appellant believed it was incumbent upon Mr W to do so does not emerge from the appellant's evidence. In any event, any such belief provides no justification for what was appalling and very disquieting behaviour.
The appellant also conceded at trial that previously he had made a number of telephone calls to a previous employer of the respondent making unfounded allegations that the respondent was being investigated for large scale tax fraud. Again, his explanation in evidence was that he was very upset at the time (ts 46, 4/5/11).
The primary judge also referred to the appellant's conduct during the trial. His Honour's description, at [307] of his reasons (set out at [52] above), of the appellant's conduct is entirely justified. So far as the appellant's conduct is concerned, reading the transcript is an unedifying experience. Not only did the appellant repeatedly engage in what was obviously inappropriate conduct, but his conduct was even more extraordinary in a context where by any normal standards he might have been expected readily to appreciate that it was counter‑productive. The appellant appears to have had no such insight.
It is unnecessary to describe the incidents of the appellant's inappropriate conduct during the trial but one referred to by the primary judge may serve as an illustration. On 10 August 2011, while the trial was adjourned part‑heard, the appellant sent to the Independent Children's Lawyer (who is not counsel on the appeal) a parcel containing a plastic pig with a note saying that it 'should be right at home on your desk'. Two days later, on 12 August 2011, the appellant sent a text message to the Independent Children's Lawyer in which he referred to her as 'Ms pigy [sic]'.
It is also the case, as the primary judge observed ([314]), that the appellant has a dysfunctional relationship with his family, all of whom have at some time had, and some of whom at the time of trial continued to have, VROs against him. The respondent's parents and one of the respondent's sisters also have VROs against the appellant (ts 57, 4/5/11). In addition, we have earlier mentioned that on one occasion the appellant had written the words 'monster' in 60 cm high letters over the walls of his mother's home. The appellant also acknowledged at trial that he had been convicted of criminal damage to his parent's home in relation to another incident, in January 2009. At trial, in relation to the latter incident the appellant said he was 'very upset at the time' (ts 58, 4/5/11).
In relation to the maternal grandparents, the appellant had made and persisted in allegations of sexual abuse of L by the respondent's father in circumstances where, the primary judge found, the appellant knew there was no foundation for the allegations. In addition, the tenor and some of the language used in a number of telephone messages left by the appellant for the respondent's mother in connection with his claims for access to his children reflected again his inability to conduct himself in a proper way.
The conclusion of the primary judge that there was a real and identifiable risk that the children may suffer psychological abuse and be exposed to totally inappropriate behaviours if the appellant's time with the children was not supervised was, in our respectful opinion, one that was plainly open to him on the evidence, if indeed it was not compelled by the evidence. In the circumstances, his Honour did not err in finding that the appellant's access to the children should continue to be supervised. On the evidence, an order for unsupervised contact would not have been appropriate. The primary judge, quite properly, left open the prospect of unsupervised access once the appellant had undergone a period of psychiatric treatment and the risks which his Honour had identified no longer remained.
Similarly, his Honour's decision that shared parental responsibility would not be in the best interests of the children and that the respondent should have sole parental responsibility, was one that was clearly open to him on the evidence. As the primary judge observed, shared parental responsibility requires an effective level of communication between the parties. On the evidence, there was no reasonable prospect of that, at least in the immediate future. And shared parental responsibility would, as his Honour found (at [341] ‑ [342]), simply open up fresh opportunities for the appellant to attempt to abuse, intimidate and manipulate the respondent, with detrimental consequences for the children.
In our view, no material error of fact or law has been shown in respect of the orders made by the primary judge regarding parental responsibility for, and the appellant's access to, the children, or in respect of his Honour's fact‑finding or reasons.
It is necessary then to turn to the orders made in respect of the property settlement.
On the appeal, the appellant did not make any submissions in support of the contention that the primary judge erred in taking CGT into account in determining the parties' assets. His (belated) submission at trial was that the sale of the property would not give rise to any CGT liability. The respondent, a chartered accountant, had a different view. She submitted that her tax liability would be in the order of $20,000. His Honour therefore ordered that the sum of $25,000 from the proceeds of sale be set aside to make provision for such a liability, should it eventuate. That was an appropriate course to take in circumstances where the amount of any tax liability could not be finally determined at that stage. No error has been shown.
In support of his contention that the primary judge erred in finding that the respondent's contribution to the parties' pool of assets was 70%, the appellant submitted that his Honour had overlooked withdrawals amounting to some $150,000 by the respondent from their joint bank account and had failed to make proper allowance for the work the appellant had done in improving the property, including obtaining subdivisional approval for it.
There is no substance in those submissions. In the first place, the primary judge did not find that the respondent's contribution to the asset pool was 70%; rather, he found it was 65% ([448]). His Honour found that after taking into account the factors prescribed in s 205ZD(3) of the Act, the respondent was entitled to 70% of the net proceeds of sale of the property.
Secondly, the appellant's claim that the respondent had made an unaccounted for withdrawal from the joint account of $150,000 did not rise at trial above the level of simple assertion, no evidence being adduced by the appellant which was capable of making good that assertion. It is implicit in his Honour's analysis of the parties' financial affairs that he did not accept the assertion. He was entitled not to accept it.
As to the appellant's contribution to the improvement of the property, his Honour expressly took that into account at [446], noting the value of that work was still to be realised. But as his Honour noted, that work had to be stood against the far greater financial contribution the respondent had made to the parties' financial circumstances over a number of years by reason of her much greater income and the greater contribution she had made as homemaker. For his part, the appellant had frittered away a good deal of money on ultimately unsuccessful share‑trading activities, the effect of which was analysed by the primary judge at [442]. On the evidence, his Honour has not been shown to have erred in concluding that the respondent's contribution to the joint assets was 65% or that, taking into account the s 205ZD(3) factors, it was appropriate that the respondent should receive 70% and the appellant 30% of the net proceeds of sale of the property.
Turning to the final ground of appeal, the question of who should be liable for the rates and taxes came about as the result of an application by the appellant to enforce the order of the primary judge that the parties pay the rates and taxes on the property within 21 days of notice being issued. The appellant sought, in effect, an order that the respondent contribute to the rates and taxes. His Honour dismissed the application.
The appellant submits that the primary judge erred in finding, in effect, that any outstanding rates and taxes on the property should be paid from the appellant's entitlement to the proceeds of sale. On the appeal, no submissions were advanced by the appellant in support of this ground and no error is apparent. The primary judge found that having regard to the facts that the appellant had continued to reside in the property, that he had made no contribution to the support of the children, and that his conduct at the trial had put the respondent to unnecessary cost, it was not appropriate that the respondent be exposed to further expense. In the exercise of his discretion, his Honour therefore dismissed the application. In the circumstances, it was open to his Honour to do so. No error has been shown.
There is one final matter. The appellant and the Independent Children's Lawyer each sought to rely on additional evidence on the appeal. The appellant filed a book containing 18 documents. Two of the documents were personal references from friends of the appellant. There was an assortment of other documents, including some photographs apparently intended to establish that the appellant did not commit the assault of the respondent to which he pleaded guilty in the Magistrates Court. There was no opposition to the documents being received by this court and on that basis we would admit them. There is, however, nothing contained in them which bears upon the conclusions we have reached on the appeal.
The Independent Children's Lawyer sought to rely upon a number of emails from the appellant to her office since judgment was delivered below, in order to demonstrate that despite the appellant's statements to the primary judge and others to the effect that his abusive behaviour had been an aberration that was now in the past, he has persisted in behaviour of that nature. The appellant opposed the documents being received. We do not consider the emails add anything of substance to the material before the court and the circumstances do not justify their admission. We would not admit them.
Conclusion
It is readily apparent, on a fair reading of the primary judge's reasons in the context of the issues in dispute and the trial record, that his Honour did not make any material error of fact or law. None of the grounds of appeal have been made out. The appeal should be dismissed.
We would make the following orders:
1.the appellant have leave to rely upon the additional evidence contained in the yellow application book;
2.the application by the Independent Children's Lawyer to rely upon additional evidence be dismissed; and
3.the appeal be dismissed.
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