Duarte and Anor & Morse
[2019] FamCAFC 93
•6 June 2019
FAMILY COURT OF AUSTRALIA
| DUARTE AND ANOR & MORSE | [2019] FamCAFC 93 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – APPLICATION IN AN APPEAL – Where the appellant sought leave to rely on a truncated version of her summary of argument – Where leave was granted – Where the Amended Notice of Appeal is filed jointly by the appellant mother and her partner as the second appellant – Whether the second appellant has standing – Where the Full Court ruled the second appellant has standing on appeal only for particular orders made by the trial judge. FAMILY LAW – APPEAL – PARENTING – Bias – Apprehended bias – Ostensible bias – Prejudgment – Where direct and even robust questioning does not point to apprehended bias without more – Where evidentiary rulings contrary to the submissions of the appellant do not establish prejudgment – No evidence of partiality – Grounds of appeal asserting bias fail. FAMILY LAW – APPEAL – PARENTING – EVIDENCE – Whether Division 12A of Part VII of the Family Law Act 1975 (Cth) is constitutionally invalid – Where the appellant submits that s 62G and s 69ZX of the Family Law Act 1975 (Cth) grant the Court an inquisitorial role which is inconsistent with the nature of judicial power and is contrary to the constitutional right to due process – Where provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) give the Court extensive case management powers which are entirely consistent with the exercise of judicial power – Grounds of appeal fail. FAMILY LAW – APPEAL – PARENTING – Risk of harm – Unacceptable risk of harm to children – Hearsay – Whether statements containing evidence of the second appellant’s alleged assaults should have been admitted into evidence – Where s 69ZV(2) of the Family Law Act 1975 (Cth) applies and the statement of a child is not inadmissible – Where statements of adult witnesses are inadmissible pursuant to provisions of the Evidence Act 1995 (Cth) – Interpretation of s 69ZV of the Family Law Act 1975 (Cth) – Where statements of witnesses were incorrectly admitted into evidence – Where the error does not vitiate the finding of unacceptable risk based on the admissible evidence – Grounds of appeal fail. FAMILY LAW – APPEAL – PARENTING – Where the appellant’s challenges to findings of fact are not sufficient to establish error – Where the appellant must establish that findings of fact were demonstrably wrong by reference to “incontrovertible facts or uncontested testimony” or were “glaringly improbable” or “contrary to compelling inferences” – Asserted errors, even if established, were not material – Grounds of appeal fail. FAMILY LAW – APPEAL – PARENTING – Parenting orders – Best interests – Where the mother asserts that s 60CA and s 60CC of the Family Law Act 1975 (Cth) are unconstitutional because they confer on the Court a non-judicial function – Determining a child’s best interests – Where the mandatory list of factors to be taken into account by a court does not mean that the court is exercising executive as opposed to judicial power – Where courts are guided in the exercise of their judicial power by having regard to principles set out in legislation or by the common law – Ground of appeal is misconceived. FAMILY LAW – APPEAL – PARENTING – Parenting orders – Risk assessment – Welfare and/or protective orders – Whether conducting a risk assessment is within the jurisdiction of the Court – Operation of s 69ZH of the Family Law Act 1975 (Cth) – Where the trial judge must conduct an assessment of the risk of harm to which a child may be subject if orders are proposed that they live with or spend time with the person alleged to be the source of harm – Grounds of appeal fail – Where the Full Court amend the trial judge’s orders pursuant to s 94(2) of the Family Law Act 1975 (Cth) and r 17.02(e) of the Family Law Rules 2004 (Cth). FAMILY LAW – APPEAL – PARENTING – Parenting orders – Injunctions – Procedural fairness – Whether the injunctions made are invalid because they interfere with contractual relationships – Principle of autonomy – Wide powers of the Family Law Act 1975 (Cth) and the need to act in the best interests of the children – Grounds of appeal fail. FAMILY LAW – APPEAL – PARENTING – Parenting orders – Common law or “naturalistic” parenting rights – Principle of legality – Rules of statutory construction – Court will not interpret legislation as abrogating fundamental rights or freedoms – Where the mother asserts that she has a “parental right” – Where the concept of “parental rights” and the related concepts of guardianship and custody were abandoned in favour of “parental responsibility” and a shift to centring the rights of children – Grounds of appeal fail. FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Whether the trial judge erred in making a declaration of trust and dismissing the appellant’s equitable defences to the declaration – Consideration of the principles of the presumption of advancement – Where the errors established cannot be rectified by any re-exercise of discretion because the declaration of trust underpinned the subsequent property adjustment orders made between the spouses – Where the property settlement appeal is successful in part – No feasible alternative but to remit the Part VIII of the Family Law Act 1975 (Cth) dispute for re-trial. FAMILY LAW – APPEAL – PARENTING AND PROPERTY – COSTS – Where the parenting appeal was wholly unsuccessful – Where the appellant was successful in the property appeal but most of the grounds relied on by her failed – Where factors under s 117(2A) of the Family Law Act 1975 (Cth) are considered – Where the legal costs relating to the parenting appeal would exceed the legal costs relating to the property appeal – Appellants to bear the costs of the parenting appeal – Appellants to pay two-thirds of the respondents costs – Where the appellant sought costs certificates under s 8 and s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where consideration of costs certificates do not arise because a cost order is made. |
| Evidence Act 1995 (Cth) Pt 3.2, ss 3, 45, 55, 56, 57, 59, 62, 63, 64, 67, 68, 76, 79, 135, 138, 140, 156, 158 Family Law Rules 2004 (Cth) Div 15.5.2, rr 6.02, 17.02 Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) |
| Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 358 ALR 683; [2018] FCAFC 93 Allen v Snyder (1979) FLC 90-656 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 Bannister v Bannister (1948) 2 All ER 133 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Boral Formwork v Action Makers [2003] NSWSC 713 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27 Brown v West (1990) 169 CLR 195; [1990] HCA 7 Browne v Keith (2015) 55 Fam LR 208; [2015] FamCAFC 143 C Pty Ltd & PGW as Liquidator of S Pty Ltd (In liq) (2011) FLC 93-485; [2011] FamCAFC 231 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 De Winter and De Winter (1979) FLC 90-605 Duarte & Morse [2018] FamCAFC 69 Duarte & Morse [2017] FamCA 350 Duarte & Morse (No. 2) [2017] FamCA 435 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 F Firm & Ruane (2014) FLC 93-611; [2014] FamCAFC 189 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Galea v Galea (1990) 19 NSWLR 263 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 House v The King (1936) 55 CLR 499; [1936] HCA 40 Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85 Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Great Western Railway Co (1930) 144 LT 194 Kramer & Ward (2017) FLC 93-817; [2017] FamCAFC 270 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 Lenova & Lenova (Costs) [2011] FamCAFC 141 Lockwood v The Commonwealth (1954) 90 CLR 177; [1954] HCA 31 M v M (1988) 166 CLR 69; [1988] HCA 68 Martin v Martin (1959) 110 CLR 297; [1959] HCA 62 McNamara & Rose [2007] FamCA 529; Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 Morling v Morling (1992) 16 Fam LR 161 Morrall & Olmos [2017] FamCAFC 2 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 Noll & Noll (2013) FLC 93-529; [2013] FamCAFC 24 O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33 P v P (1994) 181 CLR 583; [1994] HCA 20 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Praxoulis v Praxoulis (1995) FLC 92-621; [1994] FamCA 159 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Bell; Ex parte Lees (1980) 146 CLR 141; [1980] HCA 26 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; [1942] HCA 12 R v Hughes (2000) 202 CLR 535; [2000] HCA 22 R v Smithers; Ex parte McMillan (1982) 152 CLR 477; [1982] HCA 76 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8 Re P (a child); Separate Representative (1993) FLC 92-376; [1993] FamCA 40 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Russell v Scott (1936) 55 CLR 440; [1936] HCA 34 Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170 Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47 Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218; [1992] HCA 15 Selen & Selen (2013) FLC 93-533; [2013] FamCAFC 39 Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 Storie v Storie (1945) 80 CLR 597; [1945] HCA 56 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 T and S (2001) FLC 93-086; [2001] FamCA 1147 Tryon & Clutterbuck & Attorney-General of the Commonwealth (Intervenor) (2010) FLC 93-453; [2010] FamCAFC 229 U v U (2002) 211 CLR 238; [2002] HCA 36 Warby and Warby (2002) FLC 93-091; [2001] FamCA 1469 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Xuarez & Vitela [2017] FamCAFC 139 |
| FIRST APPELLANT: | Ms Duarte |
| SECOND APPELLANT: | Mr Tolman |
| RESPONDENT: | Mr Morse |
| FILE NUMBER: | SYC | 737 | of | 2014 |
| APPEAL NUMBER: | EA | 6 | of | 2018 |
| DATE DELIVERED: | 6 June 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Aldridge & Austin JJ |
| HEARING DATE: | 14 and 15 August 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 December 2017 |
| LOWER COURT MNC: | [2017] FamCA 1039 |
REPRESENTATION
| FIRST APPELLANT: | In person |
| SECOND APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Nexus Lawyers |
Orders
The Application in an Appeal filed by the first appellant on 3 August 2018 seeking leave to rely on an extended Summary of Argument is allowed and that Summary of Argument is taken as having been filed in court on 14 August 2018.
The second appellant has standing only in relation to any ground of appeal concerning Order 22 and the property settlement orders made by the trial judge on 1 December 2017.
Pursuant to s 94(2) of the Family Law Act 1975 (Cth) and r 17.02(e) of the Family Law Rules 2004 (Cth) the orders made by the trial judge on 1 December 2017 be amended to include the following order:
The children live with the father.
The appeal is allowed in part.
Orders 25–48 and 51–52 made on 1 December 2017 be set aside.
The property settlement proceedings are remitted to the Family Court of Australia.
The appeal is otherwise dismissed.
The appellants are to pay two-thirds of the respondent’s costs of the appeal, as agreed, or in default of agreement, as assessed.
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 Duarte and Anor & Morse has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 6 of 2018
File Number: SYC 737 of 2014
| Ms Duarte |
First Appellant
And
| Mr Tolman |
Second Appellant
And
| Mr Morse |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Amended Notice of Appeal filed on 4 June 2018, Ms Duarte (“the mother”) and Mr Tolman (collectively, “the appellants”) appeal against final parenting and property settlement orders made in the Family Court of Australia on 1 December 2017. Mr Morse (“the father”) opposes the appeal.
The trial judge’s orders confirmed the arrangement for the care of the parties’ three children that had existed from June 2014, when the children, who had lived with the mother until that time, were placed into the care of the father by the Secretary of the Department of Family and Community Services (“FACS”). This pivotal event and the circumstances that surrounded it crystallised both the mother’s and the father’s respective positions at trial.
Central to the parenting case was the father’s contention that the mother’s partner, Mr Tolman, posed an unacceptable risk of harm to the children. In chief, this assertion was informed by material produced by the South Australia Police on subpoena issued at the request of the Independent Children’s Lawyer (“ICL”), which contained allegations that Mr Tolman had sexually assaulted an 11 year old girl on two separate occasions and an adult woman.
In the light of those allegations, the father sought sole parental responsibility for the parties’ children, that they live with him, and that a suite of injunctions be made restraining the mother from approaching the father’s home, workplace and the children’s school, bringing the children into contact with Mr Tolman, and restraining Mr Tolman from approaching the children’s school and place of residence.
The mother maintained throughout the proceedings that the allegations against Mr Tolman were false and that he did not pose a risk to the children or to her. At the final hearing she did not seek particular parenting orders and indicated that she did not “consent to the court making parenting orders either in the same terms or different terms to those sought by the father” (Mother’s written submissions filed 2 August 2017, p.5). Instead, she sought the dismissal of the father’s application for final parenting orders and that all extant parenting orders be discharged. In other words, the mother’s ultimate position in the parenting case was that the children should be returned to her primary care and that the Court should not – or, because it lacked jurisdiction, could not – make any other orders.
The trial judge’s final parenting orders largely accorded with those sought by the father. The orders provided that the father have sole parental responsibility for the children who were to live with him and spend regular supervised time, as well as telephone time, with the mother. The trial judge also made the injunctions the father sought against the mother and Mr Tolman.
The parties’ property at the time of separation in October 2013 consisted mainly of the former matrimonial home, 121,612 shares in Company BD and superannuation entitlements.
In March 2014 the former matrimonial home was sold for $1,150,000. The mother received $388,931.25 from the proceeds of sale and the father received the balance.
The mother used the proceeds of sale of the shares ($670,000) and the home to purchase a house at Suburb C (“the Suburb C property”). The registered proprietors of the Suburb C property, as joint tenants, were the mother and Mr Tolman.
The father contended that as he had not consented to that purchase, the mother and Mr Tolman held the Suburb C property in trust for him and the mother. The trial judge agreed and a declaration was made to that effect. His Honour determined that the father should receive 67.7 per cent of the parties’ property, including the Suburb C property. To give effect to this determination the mother was ordered to pay the father $523,455. In default the property was to be sold and the proceeds divided so as to give effect to the above division. A superannuation splitting order was also made.
Preliminary matters
Before proceeding to the grounds of appeal, it is necessary to make some preliminary comments.
Application to rely on extended Summary of Argument
The mother initially proposed that she and Mr Tolman be permitted to file Summaries of Argument of 240 pages and that the appeal be allocated 10 days of hearing time. The Appeal Registrar refused to make those directions.
On review of the Appeal Registrar’s procedural orders on 13 April 2018, the appellants were granted leave to file Summaries of Argument not exceeding a combined total of 40 pages (Duarte & Morse [2018] FamCAFC 69).
The mother then unsuccessfully attempted to file a Summary of Argument of 71 pages.
By an Application in an Appeal filed on 3 August 2018 the mother sought leave to rely on a “truncated version” of her Summary of Argument totalling 33 pages.
The father did not wish to be heard on the application and it was allowed.
The Amended Notice of Appeal
The Amended Notice of Appeal contains 112 separate grounds, although when sub-grounds and alternatives are taken into account over 164 separate grounds were raised.
Leaving aside that it is extremely unlikely that a judgment of a superior court would contain 164 significant errors, the number and nature of the grounds of appeal had the effect that not all of the grounds could be addressed in the Summary of Argument and, of those that were addressed, many of the grounds of substance were only cursorily dealt with.
Many of the grounds were trivial, raised errors that were not remotely material, or were frankly difficult to understand.
Further, the need to look at and determine all of these grounds has meant that the delivery of this judgment has taken much longer than is desirable.
Mr Tolman’s standing
The Amended Notice of Appeal was filed jointly by the mother and Mr Tolman. While the mother and Mr Tolman’s interests are aligned, however, it is clear that Mr Tolman’s interests are not affected by all of the trial judge’s orders, such that he would have standing to challenge them on appeal. Accordingly, we sought submissions from him as to his standing to address certain grounds of appeal.
After hearing those submissions, we ruled that Mr Tolman had standing only in relation to the grounds of appeal concerning Order 22, which is an injunction made against him, and the property settlement orders. We determined that Mr Tolman did not have standing in respect of Grounds 2, 5, 7, 9, 14(b), 16B, 17(a), 22, 24A, 24B, 24C, 24D, and 24E. However, we permitted the mother to rely on Mr Tolman’s Summary of Argument in relation to those grounds.
The parenting appeal
In order to understand the appeal from the parenting orders it is instructive to give some background to the proceedings before the trial judge.
The father and mother began living together in April 2003 and married in 2004. The three children of the marriage, H, J and K, were respectively born in 2006, 2010 and 2012.
In September 2013, the parties separated after the father learnt that the mother had commenced a relationship with Mr Tolman, who was a member of her church group. The father moved out of the former matrimonial home in October 2013. The children remained living with the mother.
Shortly thereafter, the mother began to refuse to allow the father to see the children.
The father filed an Initiating Application in the Family Court of Australia on 12 February 2014 seeking equal shared parental responsibility and that the children live with the mother and spend time with him. He also sought that the mother be restrained from encouraging the children to call Mr Tolman “dad”, “daddy” or “father”. In her Response the mother sought equal shared parental responsibility, except in respect of the children’s education and health for which she sought sole parental responsibility. She proposed that the children continue living with her and spend time with the father, albeit on a more limited basis than that sought by him.
The trial judge made orders on 24 March 2014 providing for equal shared parental responsibility, that the children live with the mother and spend time with the father, appointing an ICL, restraining the mother from allowing or encouraging the children to call Mr Tolman “dad”, “daddy” or “father”, and restraining the mother from allowing the children to be left in the unsupervised care of Mr Tolman.
On 12 June 2014, the ICL filed a Notice of Risk detailing the potential risk posed to the children by Mr Tolman. On 13 June 2014, the father also filed a Notice of Risk and a Further Amended Initiating Application in which he sought sole parental responsibility, that the children live with him and spend time with the mother on the condition that she undertake not to permit Mr Tolman to be at her home when she is spending time with the children. If the mother refused to enter into such an undertaking, the father sought that her time with the children be supervised at a contact centre. On that same day, the matter was placed in the Magellan List by a registrar.
The mother filed an Application in a Case seeking review of the Registrar’s decision to refer the matter to the Magellan List. That application was dismissed by Watts J on 16 June 2014. The mother then filed a further Application in a Case seeking that the Notices of Risk “be quashed” and that the ICL be removed from the case. That application was later dismissed.
In early June 2014, a caseworker from FACS contacted the father, expressing concern about H’s schooling and his claim that he had been playing alone with Mr Tolman in contravention of the 24 March 2014 orders.
In June 2014, the children were assumed into care by the Secretary of FACS and placed with the father. Three days later, the Secretary filed an application in the Children’s Court of New South Wales for orders in respect of each of the three children. Orders were made in that Court for a period of 10 days.
On 10 July 2014, orders were made in the Family Court by Stevenson J providing for the Secretary of FACS to become a party to the proceedings, for the children to live with the father who was to have sole parental responsibility for them, for the mother to spend weekly time with the children supervised at a contact centre and restraining the mother from bringing the children into contact with Mr Tolman. The mother was restrained from approaching the children’s place of residence and their schools.
The mother did not spend any time with the children between 24 June 2014 and March 2015. Staff at the contact centre engaged to supervise the time provided for in the orders advised that the mother had not responded to any correspondence to arrange times for supervised visits. Instead, the mother had written to the father’s solicitors attempting to request time that was not in accordance with the orders.
On 23 March 2015, the trial judge varied the 10 July 2014 orders to allow for the mother to spend time with the children, supervised by Mr Tolman’s niece Ms D. The mother resumed spending time with the children until November 2015, when Ms D informed the father’s solicitors that she no longer wished to supervise the visits.
In the intervening period, a number of orders were made preparing the matter for final hearing. On 3 June 2015, Rees J made an order appointing a single expert under Division 15.5.2 of the Family Law Rules 2004 (Cth) (“the Rules”). At the time the order was made, both the mother and Mr Tolman indicated that they would not participate in the interview with the expert. They did not do so and an order was made on 15 September 2015 discharging the single expert. In lieu, an order was made pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Family Law Act”) for the preparation of a family report. Again, the mother and Mr Tolman indicated that they would not participate in interviews with the family consultant. The family report was prepared without their participation and was released on 10 December 2015.
In April 2016 orders were made allowing for the mother to spend unsupervised time with the children, conditional upon her undertaking, among other things, that she would not bring the children into contact with Mr Tolman; that she would not speak to the children about the father in any derogatory, disparaging or negative way; that she would not speak to the children about her religious beliefs in any way which may convey to them “a negative message about their father’s religious beliefs or otherwise or the manner in which they live with the father or the way in which he undertakes their care”; and that she would not discuss the court proceedings with the children.
The mother refused to sign the undertaking, objecting to its form and, in particular, asserting that it effectively amounted to a “gag order”, preventing her from freely expressing her faith.
As a result, by the time of the final hearing before the trial judge the mother had not seen the children since November 2015.
Neither FACS nor the ICL participated in the final hearing. FACS was removed as a party on the application of the Secretary on 27 April 2017. The ICL was discharged on 16 May 2017 (Duarte & Morse [2017] FamCA 350).
The commencement of the trial
The mother asserts that the trial judge erred by commencing the trial before the mother was ready to proceed because:
·She served notices under s 78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) only on the first day of the hearing (Ground 1);
·Contrary to the trial judge’s finding at [959], she was not comfortable and confident to represent herself (Ground 2(a)); and
·By proceeding before she was ready, the trial judge denied the mother procedural fairness (Ground 2(b)).
Before dealing with these challenges, it is necessary to record that on 20 June 2017 the mother filed an Application in a Case seeking to vacate the final hearing, which was due to start on 26 June 2017. That application was heard and refused on 22 June 2017, with reasons for judgment being delivered the next day (Duarte & Morse (No. 2) [2017] FamCA 435).
The mother served the Attorneys-General with a document headed “Notice of Constitutional Matters” early on the morning of 26 June 2017. When the hearing commenced later that day she sought an adjournment on the basis that the Court had a duty not to proceed.
It is correct that where there are proceedings pending in a court which involve a matter arising under the Constitution or involving its interpretation “it is the duty of the court not to proceed in the cause unless and until the court is satisfied” that the Attorneys-General of the Commonwealth and States have been given notice of the nature of the matter and that “a reasonable time has elapsed since the giving of the notice” (s 78B(1) of the Judiciary Act).
That requirement is subject to two matters.
First, the duty not to proceed only arises where the Notice of Constitutional Matter really and substantially involves the Constitution or its interpretation. This was explained by the Full Court of the Family Court in Xuarez & Vitela [2017] FamCAFC 139 in the following manner:
8.The cases and general principles surrounding the application of s 78B were considered by Burchett J in Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 486-489. At 489 Burchett J said:
Section 78B only operates when the circumstances it postulates are made to appear to the court; it does not operate simply because a party asserts those circumstances. It is clear, from the reference to the possibility of intervention or removal of the cause to the High Court upon the initiative of an Attorney-General, that what the section contemplates is a constitutional question which is a live issue in the proceedings.
9.On the basis that the ostensible constitutional point relied on an erroneous construction of the legislation under consideration, Burchett J determined that the pending cause did not “really and substantially…involve a matter arising under the Constitution or involving its interpretation.” The phrase “really and substantially” derives from Re An Application by the Public Service Association of New South Wales (1947) 75 CLR 430 at 433 per Williams J.
10.The application of s 78B was considered by French J in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303 (“Berbatis”). Concerning the obligation to adjourn, French J said:
14. Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation: Nikolic v MGIC Ltd [1999] FCA 849; cf Australian Securities and Investments Commission v White (Fed C of A, Drummond J, 16 July 1998, unreported).
11.The word “matter” in s 78B has the same meaning as in Chapter III of the Constitution (Berbatis at [19]). Assertion or non-assertion of a constitutional question is not determinative of the character of the matter. Where the assertion is made, it is nonetheless a matter for the court to be satisfied that the challenge does involve a matter arising under the Constitution or involving its interpretation (Abbott & Abbott (1995) FLC 92-582; Vella (10 August 1992, unreported)).
12.Section 78B will not be engaged merely because a party is interested in the resolution of a particular question. For the provision to be engaged the resolution of the Constitutional question “becomes necessary upon the ascertained or ascertained facts of the case…” (R v Bevan Ex parte Elias (1942) 66 CLR 452 per Williams J at 480). In other words, the facts relied upon are raised bona fide and are sufficient to raise the question (Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665 per Latham CJ).
In determining to proceed with the hearing, the trial judge said:
[HIS HONOUR]: …the order I will make is that the hearing proceed, notwithstanding the mother having issued notices, under section 78B of the [Judiciary Act 1903 (Cth)] to the Attorney-Generals for the Commonwealth and each of the States. In part, the reason for so determining is that I’m satisfied the cause pending in the court does not involve a matter challenging any section of the [Family Law Act] as constitutionally invalid, nor does it involve the interpretation of some aspect of the Constitution.
The questions raised by the mother in her notice involve interpretation of the [Family Law Act] and the extent to which its provisions enable the court to hear a parenting case and/or make a particular order. There is no challenge to the legislation being outside the Commonwealth’s power to make laws referable to any part of the Constitution…
(Transcript 26 June 2017, p.30 lines 14–26)
His Honour continued to expand on that conclusion. The mother’s submissions do not address those reasons.
However, for the reasons we are about to give, it does not matter whether his Honour erred at this point or not.
An exception to the requirement that a court not proceed until it is satisfied that notice has been given to the Attorneys-General is found in s 78B(2)(c) of the Judiciary Act, which provides:
78BNotice to Attorneys‑General
…
(2)For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
…
(c)may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
His Honour followed the course set out in that paragraph. The evidence in the proceedings was taken over the next 10 hearing days and submissions were heard on 2 and 3 August 2017. By that time, the Attorneys-General had a reasonable time to consider their position. Many had responded to the mother. She sought no further adjournment under s 78B(2)(a) of the Judiciary Act, which provides:
…
(a)may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such adjournment as it thinks fit;
In our opinion, a reasonable time for consideration had elapsed since the service of the notices on 26 June 2017.
It follows that his Honour acted in accord with s 78B of the Judiciary Act and Ground 1 has not been established.
Ground 2(a), which challenges the trial judge’s finding at [959] that the mother was comfortable and confident to represent herself, is not a proper ground of appeal. That observation was made by his Honour in the context of a discussion concerning the criticism by the mother of the father for incurring legal fees. It was made after observing the mother during the proceedings and not in response to an adjournment application.
As to the balance of Ground 2, it is sufficient to say that the trial judge was not obliged to adjourn the proceedings merely because, in the course of the discussion regarding the Notice of Constitutional Matter, the mother said she did not feel ready to proceed.
No error is identified.
Bias/prejudgment
Grounds 2A and 24 contend that the trial judge demonstrated apprehended bias.
By Ground 2A the mother asserts that:
His Honour acted with ostensible bias or prejudice, or otherwise without justice being able to be seen to be reliably done, in conducting the trial in circumstances where his own admission of detrimentally affected judgment remains on the public record (Davies, J and Waldon, S, Family Court Probes Suicides, The Age, 19 August 2003).
(As per the original)
The written submissions state “[t]he ground speaks for itself” (Mother’s Summary of Argument filed 14 August 2018, p.2). It does not.
The mother made the following oral submission during the appeal hearing:
[THE MOTHER]: We now move to ground 2A. His Honour has, by his own admission in the media, claimed to have detrimentally affected judgment after a case that he ran several years ago. We don’t know, your Honours, whether he has healed from that trauma. There is nothing on the record to suggest that he has, and justice cannot be seen to be done. A retrial is warranted.
[ALDRIDGE J]: Did you ask his Honour to disqualify himself?
[THE MOTHER]: No, your Honour. I wasn’t aware of the article at the time the trial took place. Moving on to ground 3…
(Transcript 14 August 2018, p.12 lines 15–24)
As this matter was not raised before the trial judge, we do not know whether his Honour would accept that he was correctly quoted and within the correct context. It is therefore now too late to raise the issue (Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”) at 71; Water Board v Moustakas (1988) 180 CLR 491 at 497; Coulton v Holcombe (1986) 162 CLR 1 at 7–8; O’Brien v Komesaroff (1982) 150 CLR 310 at 319; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438.
In any event, we do not consider that such a comment made many years ago would justify any doubt as to his Honour’s fitness to sit, let alone provide any basis for a disqualification application.
The introduction to Ground 24 states:
His Honour demonstrated prejudgment and/or apprehended bias (as foreshadowed on April 27 2017 in saying that ‘the egg has well and truly been scrambled’) in that the case was so severely affected by procedural anomalies favouring the father before, during and after the trial, that justice can not be seen to have been done. The anomalies include…
(As per the original)
There then follows 27 points which are said to indicate prejudgment. Points (h) and (i) were withdrawn in the Summary of Argument (Mother’s Summary of Argument filed on 14 August 2018, p.18).
The test for apprehended bias is well known. A party asserting apprehended bias must establish that “a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 344, [6]; see also Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) at 492).
Points (a) to (g) of Ground 24 are matters that arose before the hearing. Points (a), (d) and (g) are complaints about interim orders made by the trial judge. The submissions do not deign to explain why the orders suggest prejudgment. As to point (b), which refers to a letter apparently written by the trial judge to FACS, the relevant document is not before us and this complaint must fail. Given the lack of any submissions as to points (c), (e) and (f) or any references to the relevant parts of the transcript, they too must fail.
The fact that the trial judge made evidentiary rulings contrary to the submissions of the mother does not, of itself, establish prejudgment. As the submissions did not take this further, point (j) must fail.
We have closely read the passages referred to in the Summary of Argument where the mother asserts that she and Mr Tolman were frequently interrupted, reprimanded, warned, hectored, bullied and belittled by his Honour (Mother’s Summary of Argument filed 14 August 2018, p.18, points (k), (l), (m), (n), (q) and (t)). We do not accept that the transcript establishes the complaints.
It is true that the trial judge and counsel for the father asked the mother and Mr Tolman questions which they regarded as difficult and offensive. Direct and even robust questioning does not point to apprehended bias without more (Johnson at [13]; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 610, [112]; Galea v Galea (1990) 19 NSWLR 263 at 280–281).
In one instance, the mother objected to a question on the ground that the question contained two propositions. The trial judge disagreed. An attempt to separate the propositions failed because the mother asserted the question was misleading. We are unable to find any other example of questions with multiple propositions in the passages referred to by the mother in her submissions.
Point (t) complains that the trial judge belittled the mother during submissions. The passage particularly relied upon by the mother is:
[HIS HONOUR]:All right. Well, you can say that. You can say, “I’ve got no idea where I’m going to send the children to school.”
[THE MOTHER]: Yes.
[HIS HONOUR]: If you say that – and I would hope you wouldn’t. But if you did say that, it’s a matter which I would have to take into consideration in determining what is the best interests of the children in terms of making an order. And you would find there would be probably a difference. On your side, “I don’t know where I’m going to send the children to school and I don’t care”. On the father’s side, it would be, “Well, they’re going to [F Pre School] or wherever they’re going now and that’s what I propose. And when they finish that, they’re going to go somewhere else.” So you’ve got to consider what the impact is of what you say in your evidence. And - - -
[THE MOTHER]: Well - - -
[HIS HONOUR]: - - - what it is that the court is going to do with it.
(Transcript 27 June 2017, p.95 lines 1–18)
We do not see any belittling. The trial judge was trying to explain why the mother’s course of not identifying a school to which she proposed to send the children in the event she had parental responsibility was not assisting her.
As to point (o), the mother simply asserts that the trial judge looked at his lap rather than the witness when Mr Tolman was giving evidence. Whatever the issue was with his doing so, it was not raised at the time. We do not see its relevance or how it indicates prejudgment. There is no suggestion that his Honour was not continuing to listen to the evidence.
In the absence of any submissions directed to it, point (p) is too broadly stated to be able to be considered. Further, errors in the admission of evidence do not directly point to prejudgment.
Point (r) concerns a part-heard contravention application before another judge. It is submitted that the trial judge commented that the father had a good excuse for contravening the order. Neither the Summary of Argument nor the oral submissions identified where the asserted comment was made and we cannot take it further.
Point (s) asserts that the trial judge permitted counsel for the father to introduce new submissions, including case law, in his submissions in reply. The mother’s submissions refer only to Giumelli v Giumelli (1999) 196 CLR 101 (which was noted only in passing) and Johnson and Page (2007) FLC 93-344, from which a significant passage was read out. It is not at all clear to us that these were new submissions and the mother’s arguments before us, both written and oral, do not say. No objection was taken at the time or at the end of the submissions in reply. The mother did not seek the opportunity to respond to them. The premise for this ground has not been made out, but, even if it had been, we are at a loss as to how it demonstrates ostensible bias.
Point (u) states:
At one point His Honour attempted to mislead the Court record by stating that the mother was still smiling after she had stopped smiling.
It is impossible to deal with such a submission as it depends entirely on the mother’s and trial judge’s impressions.
Points (v) and (w) complain about procedural and evidentiary decisions made by the trial judge after the conclusion of the hearing. They have been the subject of other grounds of appeal. We do not see how these matters indicated prejudgment or a lack of impartiality.
Point (x) is a misreading of [924] of the reasons but does not, in any event, suggest bias.
As to point (y), we are quite unable to see how the matters asserted impugn the conduct of the trial judge in any way. As to the mother’s submissions, we cannot find the phrase “ruins my day” or “ruins his day” anywhere in the transcript let alone in the passages referred to us by the mother. The father did say that particular conduct by the mother “disrupts the day” (Transcript 3 July 2017, p.512 lines 36–37). We do not see where this evidence loomed large in his Honour’s consideration.
As to point (z) we do not accept that at [116] of the reasons the trial judge said that if the application was dismissed the mother would take the children back, implying that the father lacked the necessary “leadership skills”. His Honour said:
116.I pause here to note that it is the mother’s position in the parenting case that no order should be made. That, she said, would require the parents to negotiate an outcome. This is, in my view, an extraordinary and unrealistic position to take. I can only conclude that the mother believes the father would agree to the arrangement she presses for, namely that the children would live with her and Mr [Tolman] and spend time with the father. It is my conclusion that such a view ignores the history of the litigation and the steadfast resistance which the father has thus far met in relation to his proposals for the care of the children.
His Honour is expressing the view that the mother’s expectations of such a course being followed were unrealistic. Again, and in any event, we are quite unable to find evidence of partiality.
Point (aa) states:
His Honour described the final orders as ‘the saddest of possible outcomes for any child let alone these children’ [677] and a ‘tragedy’ [676].
These paragraphs of his Honour’s reasons need to be read in full:
676.The evidence in this case is immense in quantity. The case against making an order which would give the mother parental responsibility or any dominion over the children is overwhelming. Such a conclusion is a tragedy because I am satisfied that the mother has many attributes which the children would benefit from if they are able to have a meaningful relationship with her. I accept she has a great deal of love for the children. I accept that she would provide the children with warmth and tactile interaction. I am satisfied the children love their mother as much as any child could do so. Those conclusions would usually be expected to ground a conclusion that the children would significantly benefit from being able to spend time with and/or live with their mother. However, the evidence of the harm which may be occasioned to the children of spending time with their mother is beyond all reasonable bounds of alternate conclusion. Those harms have been identified under the considerations herein of “unacceptable risk” to the children which I conclude would occur if they have time with or fall under the authority or control of Mr [Tolman]. Additionally, there is the unfortunate conclusion that the mother cannot be relied upon to ensure the children are not further exposed to parental conflict because she has not complied with the orders of the Court. There is also the concern of whether it is possible to frame orders which would so control the mother as to ensure the children were not subjected to a negative emotional environment directed towards their father during any time they might spend with their mother.
677.This judgment addresses those conclusions and amply demonstrates the saddest of possible outcomes for any child, let alone these children. The Family Law Act Part VII, s 60CC(2)(a), makes clear that a primary consideration includes the requirement of the Court to consider “the benefit to the child of having a meaningful relationship with both of the child’s parents”. I have regarded the ability of a child being able to have a meaningful relationship with each parent as of great importance. The jurisprudence of this Court I consider conveys the importance which the judges of this Court strive to ensure a relationship between a child and each parent is enabled wherever possible and within the other considerations which the Family Law Act requires the Court to consider.
(Emphasis added)
In the following paragraphs, the trial judge summarises why he considers Mr Tolman poses a risk to the children and why the mother is not able to protect them from that risk.
Thus, the outcome is a “tragedy” and is “sad” because the children will spend limited time with their mother. Such an outcome, however, does not preclude it from being the outcome that is in the best interests of the children. We reject the submission that this passage demonstrates that the trial judge acted with manifest irrationality (Ground 24A). An outcome may be in the best interests of the children but may also be sad.
The mother asserted that the trial judge “created this outcome knowing that it was wrong” (Mother’s Summary of Argument filed 14 August 2018, p.19) and relied on the following passage:
[THE MOTHER]: Your Honour, my children had something very bad happen to them and so did I and it needs - - -
[HIS HONOUR]: Yes.
[THE MOTHER]: - - - to be remedied - - -
[HIS HONOUR]: Yes.
[THE MOTHER]: - - - one way or another. Now - - -
[HIS HONOUR]: I accept that absolutely.
(Transcript 2 August 2017, p.1061 lines 4–15)
The comment of his Honour is entirely consistent with the findings just quoted.
Neither the passages in the reasons nor those in the transcript give any indication of prejudgment.
The grounds of appeal asserting bias fail.
The admissibility of the family report
Grounds 3 to 3E challenge, in various ways, the admissibility of the family report. Grounds 3(i) and 3D were withdrawn. Ground 9(b) challenges the constitutionality of Division 12A of Part VII of the Family Law Act, which includes provisions setting out the Court’s powers relating to evidence.
Is the section that provides for the production of family reports constitutionally invalid?
Section 62G of the Family Law Act applies in proceedings where the care, welfare and development of a child under 18 years of age is relevant (s 62G(1)). It empowers the Court to direct that a family consultant give the Court a report on such relevant matters as the Court thinks desirable (s 62G(2)). Such a report may be received in evidence (s 62G(8)).
Under Ground 3E the mother submits that s 62G, along with s 69ZX (which empowers the court to give directions as to the matters in relation to which the parties are to present evidence, who is to give evidence and how evidence, including expert evidence, is to be given) grants the Court an inquisitorial role which is inconsistent with the nature of judicial power and is instead characteristic of executive power. It is also submitted that this role is contrary to the constitutional right to due process and wrongly casts a duty of care upon the judge. Thus, the mother asserts, the provision is invalid.
We start by setting out our understanding of the word “inquisitorial”, which is a word commonly used to distinguish legal systems in which the judge plays an active role in questioning witnesses and, in some cases, also questions suspects, directs searches to be undertaken and lays charges, from adversarial systems. In the latter, generally speaking the court, comprising either a judge or judge and jury, determines the controversy posed to it by the parties. Neither the judge nor the jury play any role in gathering or obtaining the evidence. Whilst the judge and members of the jury may ask the witnesses questions, their role is not to lead the taking of evidence.
Pursuant to s 62G of the Family Law Act the Court may direct that in preparing the family report the family consultant be required to deal with particular matters. The family consultant is not, however, limited to these matters and may report on any other matters that relate to the care, welfare and development of the child (s 62G(4)).
Once received the family report may become part of the evidence and the family consultant may be cross-examined by any of the participants in the hearing. The judge does not lead the family consultant’s evidence.
Importantly, this takes place within an adversarial framework. Even the request for a report takes place in that setting and in appropriate cases, a judge considering the preparation of a report could hear and determine submissions as to whether a report should be obtained or as to its content.
The commissioning of a report is not something unique to family law. For example, in some jurisdictions a sentencing judge may order the preparation of a pre-sentencing report.
Section 69ZX of the Family Law Act gives the Court extensive powers to make directions as to the matters about which the parties are to present evidence as well as by whom and in what manner that evidence is to be given. Again, any such directions, in our opinion, occur in the context of an adversarial system. The judge does not undertake the preparation of the evidence or the questioning of witnesses.
Whilst the Court’s power to make those directions goes beyond an adversarial system in which the parties, and the parties alone, determine the content of the evidence, this falls well short of granting the Court an inquisitorial role.
More broadly, the mother submitted that Division 12A of Part VII of the Family Law Act is constitutionally invalid (Ground 9(b)).
The mother’s Summary of Argument merely refers to her Notice of Constitutional Matter. When regard is had to it, it can be seen that the arguments are in relation to the validity of s 62G and s 69ZX, which we have already addressed.
The remaining provisions of Division 12A of the Family Law Act give the Court extensive case management powers which are, in our opinion, entirely consistent with the exercise of judicial power (AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Sali v SPC Ltd (1993) 116 ALR 625 at 636). The balance of Division 12A gives the Court the power to direct the parties to take particular steps and that the hearing take place in a particular manner. That does not constitute the Court acting in an inquisitorial manner, for example by calling and questioning witnesses without the involvement of the parties.
In any event, those powers are not inconsistent with the judicial role. As Gleeson CJ and McHugh J have pointed out, “courts make many judicial orders that involve no lis inter partes or adjudication of rights, yet they exercise judicial power” (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 (“MIMIA v B”) at 382, [18]. All courts have the power to control their own processes.
We do not accept, however, that there is such a strict dichotomy as the mother suggests. In short, parenting proceedings are not strictly adversarial but remain judicial in nature.
In Re P (a child); Separate Representative (1993) FLC 92-376 at 79,896 Nicholson CJ and Fogarty J observed as much, saying:
Although proceedings in the Family Court in property and maintenance matters are adversarial in their nature rather than inquisitorial — see In re Watson; ex-parte Armstrong (1976) FLC 90-059 it is important to note that the remarks of the High Court were confined to property and maintenance. Proceedings in relation to the welfare of children are not strictly adversarial, having regard to the Court's obligation to treat the welfare of the child as the paramount consideration: M and M (1988) FLC 91-979. This overriding principle governs the procedure as well as the substantive issues.
Their Honours went on to refer to similar statements made by other courts:
In Reynolds v Reynolds (1973) 1 ALR 318 at 323 Mason, J (as he then was) said in relation to what is now s64(1)(a) of the Act:
“This provision makes it clear that the nature of the Court's jurisdiction in custody is very different from ordinary inter partes litigation, and that all the rules applicable to that class of litigation are not appropriate to custody proceedings...”
Similarly, the High Court in M and M supra at p 77,080 said that:
“Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression.”
In Harris and Harris (1977) FLC 90-276 at p 76,478 Fogarty J made the following comment:
“Custody cases are still conducted within the broad confines of the adversary system but that is in my view clearly subject to the overall fundamental principle of the welfare of the child or children.”
See also the discussion in Reynolds v Kilpatrick (1993) FLC 92-351 at pp 79,703-79,705 per Finn J.
In T and S (2001) FLC 93-086 the Full Court (Nicholson CJ, Ellis and Mullane JJ) commented:
196. We also note the criticism of his Honour's alleged failure to further inquire into the issue of domestic violence. Although proceedings involving the welfare of children are not strictly adversary in the usual sense (see Re P (a child); Separate Representative (1993) FLC 92-376 and the cases discussed therein) they are not to be equated with inquisitorial proceedings. The Court and its procedures are simply not equipped to conduct inquisitorial proceedings which would have been required of his Honour if this criticism was to be accepted.
Finally, in Huda & Huda and Laham (2018) FLC 93-837 the Full Court (Thackray, Murphy and Kent JJ) recently said:
9.The primary judge’s interventions relate not to value-laden findings in respect of parenting orders. It has been said in respect of proceedings for these orders that they are “not disputes inter partes in the ordinary sense of that expression”. However, even parenting proceedings, “are not to be equated with inquisitorial proceedings”. The Court “is not an investigative body conducting an inquisition but rather it is an adjudicative body determining a dispute that is brought before it” [F & B [2005] FamCA 265 at [76]].
(Footnotes omitted)
Similarly, we do not accept that these provisions are contrary to any implied right to due process arising from the Constitution. The parties retain the right to object to the process as well as to the family report, to question the family report writer and to make submissions about the evidence given by the family report writer. We observe, however, that such an implied right has not yet been established. At best, Kirby J has expressed sympathy for such a position (R v Hughes (2000) 202 CLR 535 (“Hughes”) at 575–576, [95]–[98]).
In any event, the basis for invalidity under such a concept is whether the impugned provisions are “unacceptably vague or over-broad and uncertain in their commands” (Hughes at [95]). The mother did not assert any such difficulty with these provisions. Rather, she asserted that they led to “a secret, not transparent, process” (Mother’s Notice of Constitutional Matter dated 19 July 2018, p.44). We have clearly demonstrated that this proposition is false.
Finally, orders under these sections do not impose a duty of care on the Court. The Court is simply empowered to make orders to ensure that the proceedings are focussed on the relevant issues and the parties turn their minds to collecting that evidence and are not distracted by irrelevant and pointless disputes.
If the complaint under this ground is that these sections are invalid because parenting orders create obligations and responsibilities binding the parties in the future, it must fail at the outset because these sections of the Act deal with aspects of practice, procedure and evidence as opposed to empowering the making of orders.
Was the family report produced without authority?
Ground 3(ii) asserts that the trial judge erred in admitting the report “[k]nowing that it had been made without a legally established base of power … (i.e. the CEO’s s 38BA power was not delegated under s 38BB as it ought to have been)”.
The submission in support of this ground merely refers to a portion of the transcript, which contains a reference to Tryon & Clutterbuck & Attorney-General of the Commonwealth (Intervenor) (2010) FLC 93-453. Although this case contains a passing reference to s 38N of the Family Law Act, it concerns the entitlement, if any, of the parties to be legally represented when attending on a family consultant. The trial judge mentioned this case in the course of a discussion about the application of the principles in Jones v Dunkel (1959) 101 CLR 298.
We are unable to find any reference to s 38BB of the Family Law Act in the transcript or in his Honour’s reasons.
In any event, the factual premise of the ground – that is, the alleged lack of the requisite delegation and the trial judge’s alleged knowledge of it – was not established at the hearing. It appears therefore that the issue was not raised at the hearing. Had it been raised, it is possible that evidence could have been called to assist in its resolution. It is now too late to raise it (Metwally at 71).
The mother now seeks to place before this Court correspondence with the Deputy Principal Registrar of the Family Court in mid to late December 2017. No explanation was given as to why that material was not sought at the time of the trial or why the family consultant was not questioned on this point. There is no application to adduce evidence in the appeal. We will not have regard to that material.
For all these reasons, this ground does not succeed.
Did the trial judge err by admitting the family report into evidence despite the mother’s objections?
Ground 3A is that the trial judge did not consider the admissibility of the family report prior to the cross-examination of the report writer. Before the hearing the trial judge directed the mother to set out in writing any objections she had to the family report. She did not do so. At the time the report was tendered, which was just before the family consultant was called to give evidence, his Honour indicated that because the direction had not been complied with, he would receive the document into evidence, hear the family consultant’s evidence and later receive any objections to the report that the mother wished to make.
Insofar as the objection was as to relevance, evidence may be admitted provisionally under s 57 of the Evidence Act1995 (Cth) (“the Evidence Act”).
The mother did not take up the opportunity to make specific objections to the report at any later stage of the hearing.
As far as we can identify, the mother did not take any objections to the family report based on s 76 or s 138 of the Evidence Act on which she now relies in Ground 3B. The latter section was raised, however, in the context of a discussion between the trial judge and counsel for the father as to whether any objections were taken by him to a video which the mother had tendered. The submissions in support of this ground, which simply assert that it speaks for itself, do not assist. The relevance of the two sections is not apparent to us. We are therefore unable to take Ground 3B any further.
Did the trial judge err or act with ostensible bias by mischaracterising the family consultant as an “expert”?
Ground 3C asserts that the trial judge was biased or prejudiced because his Honour said, immediately prior to the family consultant being called, “[s]he is a court-appointed expert” and “[c]all the single expert please” (Transcript 26 June 2017, p.33–34).
Even assuming, for the moment, that this description of the family consultant was erroneous, we do not see why that indicates that the trial judge was biased, in the sense that a reasonable minded observer would consider that the trial judge would not bring an impartial mind to the resolution of the proceedings (Ebner at 344).
The mother cross-examined the family consultant about her expertise, which had been set out in an annexure to her report. That material easily supports a finding that the family consultant was an expert within the meaning of s 79 of the Evidence Act. It is not to the point that the family consultant was not a single expert within the meaning of Division 15.5.2 of the Rules. It follows that the use of the phrase “single expert” during the hearing is ambiguous, but any error, if there be one, is of no moment. The use of that phrase was not repeated in the trial judge’s reasons.
Finally, in answer to all of these grounds, we are unable to identify any finding of the trial judge that was significantly based upon the family report writer’s evidence. That is not surprising. The mother and Mr Tolman refused to take part in the interviews with the family consultant, which limited the usefulness of her evidence. She offered no recommendations. It is difficult to see how any erroneous admission of the report constituted a material error (De Winter and De Winter (1979) FLC 90-605 (“De Winter”) at 78,092).
Risk of harm
Pivotal to the outcome of the parenting case was the finding by his Honour that Mr Tolman had sexually assaulted an 11 year old girl, as well as an adult woman, in the course of which he required her to say she was 12 years old. These findings led to the further finding that Mr Tolman posed such a risk of harm to the children that they should not spend any time with him.
This posed a significant difficulty to the mother’s case because she proposed that the children live with her, Mr Tolman and their children. She regarded Mr Tolman as the “Head of our Home”. The mother, in her evidence, described that role in the following manner:
[HIS HONOUR]: Can we just – I understand that. But what does “head of our home” mean in terms of what he might do in the house and what you might do in the house?
[THE MOTHER]: Okay. It means that he takes the headship of the spiritual authority for the house. So that means that he has to pray every day for asking blessings upon our children, asking protection. He has the responsibility. If I forget, not an issue. He’s the one with that responsibility to ask for protection, blessing, security, peace, love, all those types of things. And he’s also the one who is accountable to the pastors in the Christian church if anything develops within the home that requires support. So I would see it as a role which is biblically established that it actually protects the security and safety of our family by clearly establishing that he’s the one that takes responsibility for the order of our home.
[HIS HONOUR]: Does that – that mean authority?
[THE MOTHER]: Well, the order means the orderly governance of the home. So he would be overseeing finances, for example, overseeing making sure that everyone was being fairly treated and things like that. And my role would be more in a household management sense, being – ensuring that everything at a day-to-day level was functioning within that overall structure that he was responsible for. So he would be responsible for – for example, saying, “As a family, in five years’ time, we wish to achieve having a business that can support the children doing such and such.” And then, as we work together to develop the practicalities of the plan then my role becomes more of a practical one. The bible describes a Christian wife as a helper to the husband which doesn’t suggest that the wife has – can’t have any individual ideas. It simply refers to the wife’s practical support for the spiritual authority that the husband is taking.
(Transcript 27 June 2017, p.115 line 35 to p.116 line 14)
The trial judge found that the mother was a loving and capable carer for her children, save for one matter – she considered that Mr Tolman posed no risk to the children whatsoever, whereas his Honour was of the view that Mr Tolman posed such a risk to the children that he should not see them at all. As the mother would not agree to orders that would see the children living with her or spending time with her on the condition that they not come into contact with Mr Tolman, or comply with such orders if they were made, limited supervised time was the only option available.
A considerable number of the appellants’ grounds of appeal challenge those findings and the consequent findings that led to the orders which provided for the children to live with the father.
His Honour’s conclusions on this issue relevantly were:
676.The evidence in this case is immense in quantity. The case against making an order which would give the mother parental responsibility or any dominion over the children is overwhelming. Such a conclusion is a tragedy because I am satisfied that the mother has many attributes which the children would benefit from if they are able to have a meaningful relationship with her. I accept she has a great deal of love for the children. I accept that she would provide the children with warmth and tactile interaction. I am satisfied the children love their mother as much as any child could do so. Those conclusions would usually be expected to ground a conclusion that the children would significantly benefit from being able to spend time with and/or live with their mother. However, the evidence of the harm which may be occasioned to the children of spending time with their mother is beyond all reasonable bounds of alternate conclusion. Those harms have been identified under the considerations herein of “unacceptable risk” to the children which I conclude would occur if they have time with or fall under the authority or control of Mr [Tolman].
…
678.… Notwithstanding a considerable body of evidence received in relation to Mr [Tolman] supporting the possibility that he may be a risk to the safety of the children and the mother, she has completely discounted all that evidence as being unsatisfactory and is absolutely satisfied that Mr [Tolman] is a decent and appropriate person to be in the vicinity of her children and herself. Unfortunately for the mother, I do not concur with her opinion of Mr [Tolman] and I find the accumulation of evidence against Mr [Tolman] convinces me he does pose a risk to both the children and the mother.
…
682.… I do find, however, that the mother is prepared to subject herself to Mr [Tolman] as the “head of the house” as that term is understood by her and explained in her evidence.
683.It is with deep regret that I have had to reach a conclusion that Mr [Tolman] has a history of engaging with vulnerable persons and taking advantage of the relationship he has forged with them to the disadvantage and abuse of those persons. As will be seen those persons include Mr [XX], his daughter [TT] and Ms [HH]. I have concluded that the mother in this case is also a vulnerable person who I consider Mr [Tolman] has taken advantage of. I fear for the mother in the future at the hands of Mr [Tolman]. I also conclude, as the mother conceded, the children must be seen as vulnerable.
684.As stated above, I will make an order for the father to have sole parental responsibility. I will also make orders which prevent the mother from allowing the children to be in the presence of Mr [Tolman]. I also propose to make orders which will encourage and enable the father to provide the mother with information and possibly consult with her, should he consider that is possible, about any decisions he makes about the children's long-term interests.
The risk, if any, posed by Mr Tolman was therefore the central issue in the parenting proceedings and the appeal. His Honour’s reasons on this issue are expansive, detailed and extend over many paragraphs, including [455]–[505] and [543]–[586].
His Honour found:
575.This is not a case where there is only one allegation of criminal activity against female persons, there are two very well documented allegations taken seriously by police in two states of Australia. Additionally, there are other matters raised against Mr [Tolman] including the issue by South Australia police of two loitering notices to Mr [Tolman]. There is the recorded statement from his niece, [Ms V], that she was sexually assaulted by him as a young person. That accumulation is really overwhelming in its support of a finding that this man is a danger to children and should not be given unfettered access to them.
576.I accept that the Office of the Children’s Guardian thoroughly examined the case against granting Mr [Tolman] a document which would permit him to work with children. That investigation gave rise to a warning to Mr [Tolman] that he would be prosecuted if he was found to be working with young people.
Each of the allegations against Mr Tolman was strongly denied by the mother and by him. Accordingly, it is necessary to closely examine the evidence in support of each finding and how that evidence came to be admitted. We propose to commence by dealing with the grounds of appeal that challenge the trial judge’s findings that Mr Tolman had sexually assaulted an 11 year old girl and an adult woman and thereby posed a risk of harm to the children – that is, Grounds 10, 11, 11A–11G and 12D–12H.
These grounds are not well drawn but, accepting that, it can be seen that they raise the following issues:
·Should the statements containing the evidence of the alleged assaults have been admitted into evidence?
·If so admitted, was it open on that material to find Mr Tolman had committed the alleged assaults?
·If that material could not sustain a positive finding against Mr Tolman, could it nonetheless support a finding that he posed an unacceptable risk of harm to the children?
Unacceptable risk of harm
It is useful to commence the discussion by reference to the salient principles to be applied as set out by the High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) in M v M (1988) 166 CLR 69 (“M v M”) at 75–77:
The basic flaw in the appellant's argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to “regard the welfare of the child as the paramount consideration”: s. 60D. The paramountcy of this consideration in proceedings for custody or access is preserved by s. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Footnotes omitted)
The allegations made against Mr Tolman were that he had committed serious sexual criminal offences. The father thus bore the burden of establishing those facts to the reasonable satisfaction of the trial judge, on the civil standard of proof, taking into account the provisions of s 140(2) of the Evidence Act (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362 (“Briginshaw”); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449–450). The requisite satisfaction cannot be produced by “inexact proofs, indefinite testimony, or indirect inferences” (Briginshaw at 362 per Dixon J).
However, as M v M points out at 77, a finding of unacceptable risk can be made where the evidence falls short of persuading the court that the alleged acts occurred. Such a finding too must be made on evidence that is properly before the Court (Sahrawi & Hadrami (2018) FLC 93-857 at [50]).
TT – the 11 year old complainant
His Honour found that, on the balance of probabilities, Mr Tolman kissed TT and touched her genital area (at [567]).
TT did not give evidence at the hearing before the trial judge. A statement given by her to a police officer was admitted into evidence, as was a statement made by her father, Mr XX. The trial judge also took into account the evidence of Detective Y, the investigating police officer. Mr Tolman’s evidence was also considered but rejected.
According to the affidavit of Detective Y filed 9 February 2016, he, other police officers and a social worker attended a caravan park in the Z-Town area at 1.55 am on 13 August 2004. In a caravan, they found TT, her father and Mr Tolman.
On 17 November 2004, another police officer conducted a record of interview with TT (Annexure “B” to the Affidavit of Detective Y filed 9 February 2016). In that interview, she said that she first met Mr Tolman when he collected her at the airport and took her to the caravan park. She had come from Melbourne to live with her father. She knew that Mr Tolman was dyslexic.
In order to understand this ground, some more detailed history of the matter must be set out.
In March 2014, the mother and Mr Tolman jointly acquired the Suburb C property. During the following month, the father became aware that the title had not been registered in the mother’s sole name, but in both her and Mr Tolman’s names. On 16 July 2014, the father lodged a caveat over the property, asserting an equitable interest on the basis that all of the funds used to purchase were joint funds of him and the mother.
On 18 August 2014, the father filed an application in the Supreme Court seeking to extend the caveat. On 25 August 2014, that court extended the caveat until further order of the Family Court and that the proceedings be transferred thereto.
On 3 July 2017, the mother filed a document that could only be described as a response to the caveat proceedings. It was headed with the proceedings number and parties in the Supreme Court proceedings and sought the following:
1)That the oral contracts between:
- [The father] & [Mr Tolman] (mid-October 2013); and
- [The father] & [the mother] (9 March 2014) be upheld.
2)That the summons be dismissed.
3)That the caveat be removed.
4)$50,000 compensation each to the defendants.
DEFENSES (sic)
1)Estoppel by representation.
2)Laches.
It can be seen that, at the least, Orders 2 and 3 as sought by the mother could not be made under s 79 of the Family Law Act and rely upon the court exercising accrued jurisdiction.
There were, therefore, two sets of proceedings before the Court – one to maintain the caveat and the cross-claim for compensation and the proceedings under s 79 of the Family Law Act for the division of the parties’ property. Yet, clearly there was but one justiciable controversy because a division of the property of the parties cannot take place until their property has been identified. The mother’s submission to the contrary must be rejected. Property, for the purposes of the Family Law Act, is defined under s 4(1) as the “property to which [the parties to a marriage or either of them] are, or that party is, as the case may be, entitled, whether in possession or reversion”. That definition includes equitable interests and obligations. As the High Court said in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at 120:
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
(Original emphasis)
Thus, the determination of the issue of the competing equitable interests in the Suburb C property was essential to the determination of the s 79 claim. Determinations which arise out of an identical substratum of facts can comprise just one controversy, as explained by Gummow and Hayne JJ in Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 585–586:
140.In Fencott it was said that “in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.” The references to “impression” and “practical judgment” cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”. There is but a single matter if different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide”. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are “completely disparate”, “completely separate and distinct” or “distinct and unrelated” are not part of the same matter.
(Footnotes omitted)
The question then is whether this Court has such accrued or pendent jurisdiction so that it can hear and determine that entire justiciable controversy.
This question was resolved in Warby and Warby (2002) FLC 93-091. At [79], for the reasons set out in subsequent paragraphs, the Full Court said:
We have formed the view that as a matter of law, the Family Court of Australia is not restricted to the determination of a family law claim or proceeding; it may exercise accrued jurisdiction to determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part. The factual circumstances of the case will determine whether the jurisdiction arises and whether it is appropriate to exercise the jurisdiction.
(Emphasis added)
This case has been approved by subsequent Full Courts (McNamara & Rose [2007] FamCA 529 at [26]; C Pty Ltd & PGW as Liquidator of S Pty Ltd (In liq) (2011) FLC 93-485, [87]; Noll & Noll (2013) FLC 93-529, [46]; Selen & Selen (2013) FLC 93-533; F Firm & Ruane (2014) FLC 93-611).
For ourselves, we do not see any reason to doubt that decision. If, however, we had harboured some doubts as to its accuracy, we would nonetheless follow it (Nguyen v Nguyen (1990) 169 CLR 245 at 269; Green v The Queen (2011) 244 CLR 462 at [84]; Gett v Tabet (2009) 254 ALR 504 at [294]–[295].
The only submission that the mother directed to this point was that accrued jurisdiction could have been legislated for in s 33 of the Family Law Act but was not and, in any event, any claim in relation to a trust involving a third party is not a matter that falls within the scope of s 39(1) of the Family Law Act.
As to the first, as the section itself makes clear, the jurisdiction of the Court cannot go beyond the powers of the Commonwealth as set out in the Constitution. As to the second, a contest between a party to a marriage and a third party as to the existence of a trust is not a matrimonial cause (s 39(1) and s 4(1) of the Family Law Act).
These two submissions however miss the point. There is but one justiciable controversy and the jurisdiction of the Court is invoked by the proceedings under s 79 of the Family Law Act.
This ground therefore fails.
Findings
The appellants prosecuted many grounds of appeal in relation to findings made by the trial judge, which may be grouped in the following categories:
(a)The failure to find facts (Grounds 32A, 32B, 33, 34, 35);
(b)The attribution of weight to evidence which was not warranted (Ground 32C);
(c)Findings which were not open (Grounds 32D, 32E, 32F, 32G, 32J, 32K, 32L, 36(a)); and
(d)Findings infected by error of law (Grounds 32H, 32I, 36(b)).
As to the facts that the mother contended should have been found, but were not, there are two simple answers: first, she did not ask for those particular factual findings to be made by the trial judge; and second, they were not facts which were material to the outcome of the proceedings. Some of the alleged facts related to the circumstances surrounding the Notice to Complete served on the mother and Mr Tolman to complete the purchase of the Suburb C property. The service of such notices and their payment of financial penalties due to their delay in completion was not controversial. The trial judge treated the penalties as part of the purchase price, just as the mother said she wanted in final submissions. It did not matter whether or not the father was approached by the mother for financial assistance or he had a line of credit available.
The other alleged facts related to oral contracts the mother said she struck with the father, in October 2013 and March 2014, allowing her joint purchase of the Suburb C property with Mr Tolman and the spouses’ mutual intention to waive any further financial claims upon one another. Although the relevant grounds of appeal implied the trial judge failed to make any findings at all in relation to that evidence, that was not so. The trial judge did make findings. His Honour rejected the evidence given by the mother and Mr Tolman about those conversations and preferred the evidence given by the father (at [857]). Consequently, the mother’s grievance was really only that the trial judge failed to make the factual findings she wanted, which is not of itself a competent ground of appeal.
The only way in which she alleged the trial judge erred in reaching the findings which coincided with the father’s evidence was that a subjective rather than objective test was applied to the question of whether the alleged agreements were made, but that was not so either. The trial judge objectively found the father knew nothing of the mother’s plans to purchase the Suburb C property jointly with Mr Tolman, in which event the spouses could not have struck an agreement to the effect alleged by the mother. The trial judge objectively found there was no concluded agreement between the spouses about the final and unconditional division of their property and the mother desisted from tendering a document she alleged verified the earlier oral agreement.
As to the factual finding based on evidence which was allegedly given “inappropriate” weight, it related to a letter sent by the mother’s solicitor to the father’s solicitor in November 2013 about the sale of the former matrimonial home and the purchase of the Suburb C property. The trial judge, correctly it should be observed, found the letter omitted to mention that the Suburb C property was being purchased by the mother jointly with Mr Tolman (at [824]). It was one feature of the evidence relied upon by the trial judge to find the father knew nothing of the mother’s joint purchase of the Suburb C property with Mr Tolman. No undue weight was reposed in the letter. The ground of appeal otherwise complained that the trial judge possibly inferred dishonesty from the contents of the letter, but that is mere conjecture. The trial judge did not express or imply it. His Honour merely observed the letter omitted to mention that Mr Tolman was a joint purchaser of the property, which tended to help prove the father was ignorant of his involvement in the purchase.
As to the factual findings allegedly not open, they comprised: the father had no intention to benefit Mr Tolman by allowing him to use matrimonial funds to acquire joint interest in the Suburb C property; the mother gave Mr Tolman joint title in the Suburb C property for no consideration; and the spouses did not reach any concluded agreement in relation to their financial affairs. Each of those facts was found in reliance upon the father’s evidence, so the findings were open, even if the mother disputed his evidence.
The trial judge found the mother ought to have known from her lawyer that the private agreement she allegedly struck with the father to divide their property and waive further claims upon one another was not binding without the imprimatur of the Court’s endorsement (at [827]). The trial judge found the mother’s lawyer informed her of that fact, but even if she ought not to have known as much, it did not assist her appeal because it was immaterial. Even if she was blissfully ignorant of it, and was entitled to be so, the trial judge’s comments about the unenforceability of any such agreement were correct. It would not oust the Court’s jurisdiction, it would not necessarily preclude a finding it would be just and equitable to adjust the spouses’ property interests, and it would not preclude property adjustment orders being made.
The mother alleged the trial judge “considered” the father to be a purchaser of the Suburb C property and it was not open for his Honour to do so, but the paragraphs of the reasons to which she referred did not contain any statement to that effect. Without further useful elaboration, that ground of appeal must fail.
The mother alleged it was not open for the trial judge to find she prevented the father from receiving his share of the net proceeds realised on the sale of the former matrimonial home, which were held in escrow by the solicitors who acted for them on the sale. The factual finding was sound. While the mother received a portion of the net sale proceeds, which she used towards the purchase of the Suburb C property, she refused to give the solicitors authority to release any of the net proceeds of sale to the father because he failed to transfer some shares to her (even though she conceded they were of negligible value) and he refused to sign an application for consent property adjustment orders to be made. Those facts were noted by the trial judge to be uncontroversial (at [768]). It was not until May 2016 that $100,000 was released to the father from the trust funds, following the Court making further interim orders and the Registrar (in the mother’s place) executing the authority for the solicitors to release the funds.
The findings allegedly infected by errors of law are those which relate to the father’s beneficial interest in the Suburb C property, held in trust by the mother and Mr Tolman (Grounds 32H, 32I, 36(b)), which are best addressed under the grounds of appeal which directly attack the declarations of trust.
The mother alleged the trial judge mistakenly found she withheld from the father the fact of Mr Tolman’s joint ownership of the Suburb C property until about the time he lodged the caveat on the title in August 2014. No such mistake was made by the trial judge, since his Honour found the father learned in November 2013 that the mother paid a deposit to purchase a property, he learned between December 2013 and February 2014 that she was served with notices to complete the purchase of the property, and it was not until April 2014 that he learned the property was purchased jointly by the mother and Mr Tolman. The trial judge further found that the father lodged the caveat on title on 16 July 2014, though the father estimated he did so in August 2014, “following [him] becoming aware” of the joint ownership (at [842]). There was no mistake.
Grounds 32A, 32B, 32C, 32D, 32E, 32F, 32G, 32J, 32K, 32L, 33, 34, 35, and 36(a) fail.
Declarations
The grounds of appeal which contest the declaration of trust fall into two categories:
(a)Asserted errors in making the declaration (Grounds 32H, 32I, 36(b), 39, 39A, 40, 41, 44); and
(b)The erroneous dismissal of the mother’s equitable defences to the declaration (Grounds 37 and 38)
In or about November 2013, the mother and Mr Tolman contracted to buy the Suburb C property as joint tenants. The purchase price was paid by the mother from two sources: some money paid to her out of the net proceeds of sale of the former matrimonial home owned by the spouses and some money realised on the sale of some shares held by her. Mr Tolman did not financially contribute to the purchase price or any of the acquisition costs, which fact the mother admitted during her oral final submissions. The purchase was completed in March 2014.
Fundamental to the trial judge’s declaration of trust was the finding that the money used to purchase the Suburb C property belonged to the spouses jointly, whereas the mother contended the money she used for the purchase was her own. If she was right, the declaration of trust may have been foreclosed, so the ownership of the money used to buy the property is an important consideration.
The mother’s argument proceeded from the premise that the she and the father struck an agreement in these terms: she could have $400,000 (less expenses) from the sale proceeds of the former matrimonial home; he would retain the remainder of the net sale proceeds; she could retain the shares held in her name; they would otherwise retain their own personal property and superannuation; and they would waive any further claim upon one another. In such circumstances, she contended the money she then received from the sale proceeds of the former matrimonial home and the sale of her shares was entirely hers and she could spend it freely as she pleased. She refuted the funds were jointly owned by the spouses.
However, the father disputed such underlying facts and the trial judge, as was open to him, accepted the father’s evidence in preference to the mother’s. The father admitted he agreed to $400,000 (less expenses) being released to the mother in March 2014 for her use to complete the purchase of an alternate residence, but he did not concede he relinquished any claim upon the money or that it was not to be later brought to account in the property settlement proceedings between them, which proceedings he commenced shortly before in February 2014. Similarly, he expected the shares sold by the mother would later be taken into account in the pending property settlement proceedings. In expectation such money could be used by the mother, but subject to its future account in the litigation, the father did not contemplate, let alone approve, the mother favouring Mr Tolman with the money. Had he known he would have objected, as he did when he later found out about their joint purchase of the Suburb C property by registering a caveat on its title.
The trial judge found the funds used by the mother to purchase the Suburb C property were the joint funds of the spouses. Based on the factual findings about the circumstances under which $388,931.25 was released to the mother from the net proceeds of sale of the former matrimonial home, expressly for her use to buy an alternate home, that finding was correct. However, the same finding was probably not available in respect of the proceeds of sale of the shares.
The trial judge described the shares as “marital” and “matrimonial” property, even though they were held in the mother’s name, because they were acquired during the parties’ marriage and cohabitation (at [787], [830(c)], [831]). The mother was correct to contend that the shares should not have been described as marital or matrimonial property, at least once they were held by her exclusively, because the property adjustment process under s 79 of Family Law Act requires identification of the parties’ individual legal and equitable property interests. There is no community ownership of property (Stanford at [37], [39]).
During her oral evidence-in-chief, the mother said the shares were bought by the spouses jointly and “put into a family trust”, but then later transferred into her sole name during the marriage for her to use to fund her occasional trips to Perth (Transcript 29 June 2017, p.318 lines 11–41) While the father admitted the shares had been transferred into the mother’s sole name, in cross-examination, he expressly refuted the reason advanced by the mother for the transfer. He deposed the shares were transferred to her for “family tax planning” purposes (Transcript 5 July 2017, p.684 line 15). The trial judge did not make any finding to resolve that factual discrepancy but, for the reasons which follow, the absence of any finding did not matter.
The spouses’ voluntary transfer of the shares into the mother’s sole name invoked the presumption that the father intended the transfer would advance her interests and thereby divested him of any equitable interest in the shares (Martin v Martin (1959) 110 CLR 297 at 303-305; Allen v Snyder (1979) FLC 90-656 (“Allen v Snyder”); Calverley v Green (1984) 155 CLR 242 (“Calverley v Green”) at 268-269; Muschinski v Dodds (1985) 160 CLR 583 (“Muschinski v Dodds”) at 590). Significantly, the trial judge made no finding as to whether the presumption of advancement either applied or was rebutted by the evidence. Without its rebuttal, the presumption applied and so, when the mother sold the shares and realised proceeds of $670,516, the money was hers. She could spend it as she wished. Of course, the manner in which she expended it and the assets she bought with it were still relevant to the property settlement proceedings under Part VIII of the Family Law Act, but application of the presumption surely affected the antecedent determination about the spouses’ respective proprietary interests in the money and the separate conclusions reached by the trial judge about the declaration of trust.
The trial judge found all of the money contributed by the mother to the acquisition of the Suburb C property was jointly owned by the spouses and so they enjoyed joint beneficial ownership of the property pursuant to a resulting trust. That was not correct. It was not open to find the father’s beneficial interest under a resulting trust amounted to one-half of the Suburb C property when he did not contribute one-half of the acquisition costs. He only contributed one-half of the $388,931.25 derived from the net sale proceeds of the former matrimonial home. The mother alone contributed the sale proceeds of the shares. Applied to the purchase price of $865,000, the father’s financial contribution to the Suburb C property therefore amounted to about 22.5 per cent. It could only be presumed under a resulting trust that his beneficial interest in the property was proportionate to his financial contribution (Allen v Snyder at 78,472-78,474; Calverley v Green at 246; Russell v Scott (1936) 55 CLR 440 at 451).
Alternatively, even if the father had contributed one-half of all the money used to purchase the Suburb C property, as was found, the finding and declaration of a resulting trust in his favour was still erroneous because the implication of the trust is rebuttable and yields to evidence about the actual intention of the parties (Allen v Snyder at 78,473). The father did not actually intend to acquire any proprietary interest in the Suburb C property. He intended the mother would acquire exclusive legal and beneficial title to the property, as his counsel conceded in final submissions, subject to it being brought to account in the property settlement proceedings between them. The father did not, therefore, acquire any beneficial interest in the Suburb C property under a resulting trust.
However, the trial judge alternatively found the spouses enjoyed joint beneficial ownership of the Suburb C property pursuant to a constructive trust. In summary, the factual premises for that finding were: assets accumulated by the spouses during their marriage were the sole source of the entirety of the property’s purchase price and acquisition costs; the father expected the entire proprietary interest in the Suburb C property would be brought to account in the extant property settlement proceedings; the father did not know or intend that Mr Tolman would acquire any proprietary interest in the property; Mr Tolman made no financial contribution to the acquisition of the property; and the father received only $100,000 from the sale proceeds of the former matrimonial home, which was far less than the mother received, and only then over her objection.
While those factual findings were open to the trial judge, once found, they still did not support the imposition of a constructive trust in the father’s favour as to an equal share of the property. Constructive trusts are imposed when it would be unconscionable to allow the legal owner to enjoy the corresponding beneficial ownership of the property (Bannister v Bannister (1948) 2 All ER 133; Muschinski v Dodds at 614-617, 620-621; Baumgartner v Baumgartner (1987) 164 CLR 137 at 148-150). It was not unconscionable for the mother to enjoy the one-half legal and equitable interest she acquired in the property. The father did not argue otherwise. The debate surrounded Mr Tolman’s interest in the property.
As between the mother and Mr Tolman, it might have been unconscionable for Mr Tolman to enjoy beneficial ownership of one-half of the property at her expense, but that is a different consideration from Mr Tolman’s joint legal proprietorship of the property depriving the father’s enjoyment of joint equitable interest in the property under a constructive trust. On the facts before the trial judge, it might have been open to find the mother and Mr Tolman held the property on constructive trust for the mother alone, had she sought a remedy to declare her exclusive beneficial interest in the property, but it was not open to find they held the property on constructive trust for the spouses jointly in equal shares, in which case the trial judge fell into error.
During the discourse in final submissions, the trial judge raised the prospect of a trust being declared to recognise only the mother’s exclusive beneficial interest in the property, which option the father’s counsel submitted was “available”, but it was not the course adopted by the trial judge so no more need be said about it.
The prospect of the declaration of a trust providing for the spouses’ unequal beneficial interests in the property was also mooted during final submissions but, again, that course was not adopted by the trial judge. On the facts, it might have been open for the trial judge to declare that the mother and Mr Tolman held the Suburb C property upon constructive trust for the father as to a 22.5 per cent share but, since that was not the declaration made, no more need be said about it either.
The father deemed it was necessary to seek a declaration of trust because, absent any declaration that Mr Tolman’s legal share of the Suburb C property was beneficially owned by the spouses or either of them, he considered there was insufficient value in the remaining property to ensure he received a just and equitable share of the property interests which existed prior to the mother’s effective gift to Mr Tolman of the one-half share in the Suburb C property (worth about $432,500). The trial judge was therefore persuaded to declare a trust. His Honour was persuaded to desist from taking an alternate course, such as to accept that neither spouse held any property interest in Mr Tolman’s one-half share of the Suburb C property and to adjust the spouses’ respective interests in relation to the remainder of their property, taking into account the mother’s premature distribution of some $432,500 to Mr Tolman. It also remains unknown to us whether any consideration was given by the father to the possibility of his resort to s 106B of the Family Law Act to remedy the transfer of the Suburb C property into the joint names of the mother and Mr Tolman.
Given the errors involved in the alternate declarations of trust, it is unnecessary to consider the grounds of appeal dealing with the mother’s equitable defences of laches and estoppel (Grounds 37 and 38) and the ground of appeal dealing with the reason why the shares were transferred to the mother (Ground 43).
Property Redistribution
Grounds 42, 42A, 42B, 42C, 42D of the grounds of appeal collectively assert error by the failure to abide the principles espoused in Stanford.
In the main, to support these grounds, the mother’s written Summary of Argument referred us to the written submissions she filed and relied upon to supplement her final oral submissions to the trial judge. The simple repetition of submissions which were rejected at trial is of no assistance in the determination of an appeal. Aside from the errors which attended the declaration of trust, the trial judge’s treatment of discretion under s 79 of the Family Law Act was not revealed to be erroneous by the submissions the mother made at trial.
The mother did amplify her submission by contending the spouses reached a binding agreement in March 2014 about the division of their property and the waiver of their rights to make any further claim upon one another (Ground 42C), but the trial judge rejected that argument and it has already been separately addressed by us earlier in these reasons.
The trial judge said in the reasons for judgment that, even if the spouses had procured consent orders to endorse an agreement they struck in March 2014, the orders could still have been discharged under s 79A(1)(d) of the Family Law Act because of the material change in circumstances in June 2014, when the parties’ three children were removed by the child welfare authority to instead live with the father. She contended the trial judge erred in law by making such a finding (Ground 42D), but it is unnecessary to consider this ground of appeal because it is entirely academic.
Pool
Ground 44 has been addressed under the heading of “Declarations” and there is no need to address Ground 43 separately.
Contributions
Grounds 45, 46, 47, 48, 48A, 49, 51 of the grounds of appeal all address asserted errors concerning the assessment, under s 79(4) of the Family Law Act, of the spouses’ proportional entitlements to their property by reference to their contributions.
They can be dismissed quickly. The spouses agreed their contributions during their cohabitation were equal, save in one respect belatedly raised by the mother in final submissions at trial.
The mother submitted to the trial judge that her treatment by the father as a “gestational slave” and the use of her “womb and eggs” to bear their children was a “separate compensable contribution” by her. She expressed her point as follows:
The mother provided a healthy young female womb and eggs, and willingness to bear fruit, when more likely spouses in the father’s age bracket may not have been able to contribute a healthy reproductive system or willingness to have children.
The mother’s contribution should take into account the alternative cost of adoption, overseas surrogacy and wet-nursing.
When the mother made those submissions orally at trial, the trial judge remarked, perhaps unsurprisingly, they were “way out of the ballpark” (Transcript 3 August 2017, p.1143 line 20). Nonetheless, the trial judge acknowledged the mother’s submissions, but rejected them and found the spouses’ overall contributions were equal during their cohabitation (at [908]-[910]). The trial judge then found the spouses’ post-separation contributions were unequal. His Honour’s discretionary finding was not so unreasonable or plainly unjust as to warrant appellate interference (House v The King (1936) 55 CLR 499 at 504-505). In any event, remitter of the proceedings for re-trial will require re-consideration of the parties’ contributions up to the time of the new trial, so the issue is presently esoteric.
It was not open to the mother to prosecute grounds of appeal which departed from her admission that the spouses’ contributions were equal during cohabitation, apart from the single and unusual exception she articulated at trial.
Miscarriage of Justice
Grounds 52, 52A, 52B, 52C of the grounds of appeal collectively contain spurious and misconceived allegations of error related to the manner in which the trial was conducted. They include allegations such as:
(a)The property adjustment orders reward the father for seeking parenting orders which preclude contact between the mother and children (Ground 52 submission);
(b)The trial was conducted as a “Less Adversarial Trial” when the appellants were led to believe it would be conducted as an adversarial trial and were not prepared for an alternative approach (Grounds 52A and 52B submissions);
(c)It was unclear what the roles, rights and obligations of the parties and witnesses were in the trial (Grounds 52A and 52B submissions);
(d)The conduct of the trial was a symphony of surprise and duress (a ‘Symphony of Confusion’), with the trial judge its conductor (Grounds 52A and 52B submissions); and
(e)The sheer cumulation [sic], variety, number and importance of errors and questionable approaches taken by the trial judge is indication that a miscarriage of justice occurred (Ground 52C submission).
We do not intend to waste time favouring the grounds or submissions with a suitable rebuttal. Suffice to say, they are rejected as incorrect, if not specious.
The Caveat Case
Grounds 53, 54, 54A, 54B, 54C, 56, 57, 58, and 59 were aimed at the allegedly wrongful consolidation and conduct of the Supreme Court proceedings with the property settlement proceedings in the Family Court.
Most of the appellants’ complaints have already been addressed, but several further observations are warranted.
First, the appellants consented to the Supreme Court proceedings being cross-vested and joined to the property settlement proceedings in the Family Court. In final submissions to the trial judge, the mother said “we consented to the cross-vesting of the case” so she can hardly now complain (Grounds 54 and 54A).
Secondly, the appellants contended the trial judge erred by finding that the father had an equitable interest in the Suburb C property which could be protected by a caveat (Ground 58). Having already determined the trial judge fell into error by finding and declaring a trust, it follows the father had no caveatable equitable interest in the Suburb C property under the declared trust. The father’s claim for relief in the pending property settlement proceedings between the spouses afforded no foundation for a caveat because any relief granted under Part VIII of Family Law Act is pursuant to the exercise of discretion, not in satisfaction of a cause of action (Praxoulis v Praxoulis (1995) FLC 92-621 at [19]-[21]; Morling v Morling (1992) 16 Fam LR 161 at 163). The trial judge was wrong to find the father was entitled to lodge the caveat, at least based on the findings made.
Thirdly, the appellants alleged the trial judge erred by refusing their respective claims for compensation of $50,000 against the father. Such claims for relief were contained within the cross-claim they pleaded in the Supreme Court proceedings but, in final submissions, the mother told the trial judge she would leave the “legal validity” of those claims in the trial judge’s hands. After further discourse, she appeared to acknowledge the scant basis for the claims, which the trial judge addressed by observing in the reasons for judgment that no evidence of any pecuniary loss was adduced by the appellants. Mr Tolman made no submission at all at trial. The spouses both appeared to acquiesce to the idea that the question of compensation under s 74P of the Real Property Act 1900 (NSW) should be addressed only after the result of their dispute over the caveat was determined. In any event, the appellants’ ground of appeal (Ground 59) now asserts their right to compensation under s 68 of the Supreme Court Act 1970 (NSW), which did not and does not have any application.
Conclusion as to the property settlement appeal
Grounds 40, 41 and 44 of the grounds of appeal succeed.
The errors made by the trial judge in relation to the findings about and the declaration of trust cannot be rectified by any re-exercise of discretion because the declaration of trust underpinned the subsequent property adjustment orders made between the spouses. The calculation of the sum the mother was ordered to pay the father depended upon the antecedent finding that she and Mr Tolman held the Suburb C property upon trust for the spouses in equal shares.
In the absence of any declaration about the beneficial interest enjoyed by the spouses in relation to Mr Tolman’s legal proprietary interest in the Suburb C property, the spouses’ proportional interests in the remaining property might be different from that which was found by the trial judge in the application of s 79(4) and s 75(2) of the Family Law Act. Consequently, there is no feasible alternative but to remit the Part VIII dispute for re-trial. The re-trial will presumably entail update evidence about the spouses’ contributions towards (for example) the care of the children and the maintenance of the Suburb C property. The evidence before us about the spouses’ matrimonial contributions is only current to the time the trial was concluded in August 2017.
Costs
In the event the appeal succeeded, the mother sought a costs order against the father in the sum of approximately $1,000 to cover her disbursements in preparing the appeal books. In the event the provisions of s 117(1) of the Family Law Act were applied, so that no costs order was made against the father, and the appeal succeeded on a question of law, she alternatively sought the grant of costs certificates, presumably for both the appeal and any re-trial (s 8 and s 9 of the Federal Proceedings (Costs) Act 1981 (Cth)).
Mr Tolman conceded he had not incurred any costs so his application for a costs certificate in respect of the appeal and impliedly for the rehearing was fruitless.
The father sought costs orders against both the mother and Mr Tolman, jointly and severally, in the event the appeal failed. He did not differentiate between the success and the failure of the two aspects of the appeal.
The determination of what costs order is just in all the circumstances is guided by the mandatory considerations raised by s 117(2A) of the Family Law Act.
The financial circumstances of all parties are modest. Both the appellants and the father have young children that they must support. The mother informed us that she is a student with no employment and that Mr Tolman receives a welfare payment. We accept therefore that payment of costs will be difficult for both parties and that the only likely source for payment will be the property that will be the subject of the rehearing.
Nonetheless, this is not an overwhelming consideration because otherwise an impecunious person could litigate with impunity (Lenova & Lenova (Costs) [2011] FamCAFC 141).
As we have already described, the appellants have conducted the appeal in an extraordinarily complex and detailed manner. The grounds of appeal and the submissions in support of them were prolix, difficult to understand and frequently focussed on minutiae. Conversely, some of the grounds were cryptic and unsupported by helpful submissions or, at times, any submissions at all. Almost all of the 164 grounds and sub-grounds were unsuccessful.
In addition the mother made a number of unsuccessful applications for extension of the length of the submissions and the time in which to prepare them as well as arguments over her Notice of Constitutional Issues. The appeal had to be relisted because the directions were not complied with. The father has therefore had to bear the additional legal costs associated with these difficulties, which, in our view were entirely unnecessary.
These matters powerfully support a costs order in favour of the father.
Although the mother established some significant errors on the part of the trial judge in his approach to the parenting orders, ultimately they were found not to be material. The parenting appeal was thus wholly unsuccessful.
The mother was successful in the property appeal but most of the grounds relied on by her failed. On balance, this consideration does not assist either party.
The purpose of costs is to compensate a party who has incurred legal costs. They are not awarded to punish the unsuccessful party however, the appellants’ conduct in the preparation and conduct of the appeals can only have increased the father’s costs. Whilst we accept that he is in a somewhat better financial position than the appellants he is not in a position easily to bear these costs.
We consider that it is appropriate to order that the appellants should bear the costs of the parenting appeal. The best way to give effect to that determination is to make an order that the appellants pay two thirds of the father’s costs, given that the legal costs relating to the parenting appeal would exceed the legal costs relating to the property settlement appeal. It follows that as a costs order will be made, considerations of costs certificates do not arise.
I certify that the preceding five hundred and seventy four (574) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Austin JJ) delivered on 6 June 2019.
Associate:
Date: 6 June 2019
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