Eddington & Eddington (No 2)

[2007] FamCA 1299

FAMILY COURT OF AUSTRALIA

EDDINGTON & EDDINGTON (NO. 2) [2007] FamCA 1299

FAMILY LAW – PARENTING – APPEAL – SUBSTANTIAL AND SIGNIFICANT TIME –Established that trial Judge’s orders did not provide for substantial and significant time for the children to spend with the appellant. Orders lacked substance of time the children were to spend with the appellant, by virtue of lengthy periods without any time provided, and thereby lacked quality. House v The King (1936) 55 CLR 499, Gronow v Gronow (1979) 144 CLR 513, CDJ v VAJ (1998) 197 CLR 172 and section 65DAA Family Law Act 1975 (Cth) cited.

PROPERTY SETTLEMENT – APPEAL – SECTION 75(2) – Not established that trial Judge’s conclusions relating to the income of the parties constituted a miscarriage of the exercise of discretion.

Family Law Act of 1975 (Cth) s 75(2); s 60CC(2)(a); s 65DAA

House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513
CDJ v VAJ (1998) 197 CLR 172

Allesch v Maunz (2000) 203 CLR 172

APPELLANT: MR EDDINGTON

RESPONDENT: MS EDDINGTON

FILE NUMBER: SYF 2342 of 2005

APPEAL NUMBER: EA 29 of 2007

DATE DELIVERED: 1 November 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Finn, Coleman & Collier JJ

HEARING DATE: 11 October 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 22 December 2006

LOWER COURT MNC: [2007] FamCA

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Carr

SOLICITOR FOR THE APPELLANT: JNT Legal

COUNSEL FOR THE RESPONDENT: Mr. Jackson

SOLICITOR FOR THE RESPONDENT: Anne Day & Associates

Orders

1. That the appeal against parenting orders of Rose J made 22 December 2006 be allowed.

2. That Order 4 of the aforementioned orders be discharged and that in lieu thereof, the Court orders that the children are to spend time with the appellant in the 56 day roster as follows:

   (a)       From after school on day 5 (a Friday) until the commencement of school on day 8 (a Monday);

   (b)       From 9am on day 13 (a Saturday) until the commencement of school on day 15 (a Monday);

   (c)       From 9am on day 21 (a Sunday) until the commencement of school on day 22 (a Monday);

   (d)       From after school on day 29 (a Monday) until the commencement of school on day 31 (a Wednesday);

   (e)       From after school on day 38 (a Wednesday) until the commencement of school on day 39 (a Thursday);

   (f)       From after school on day 46 (a Thursday) until 9am on day 48 (a Saturday); and

   (g)       From after school on day 54 (a Friday) until 5pm on day 56 (a Sunday).

3. That the appeal against property settlement orders of Rose J made 22 December 2006 be dismissed.

4. That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.

5. That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as          Eddington & Eddington.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 29 of 2007
File Number: SYF 2342 of 2005

MR EDDINGTON

Appellant

And

MS EDDINGTON

Respondent

REASONS FOR JUDGMENT

1. By Notice of Appeal filed on 30 April 2007 pursuant to leave granted by Boland J on 20 April 2007 Mr Eddington (“the appellant”) appealed against orders made by Rose J on 22 December 2006 in parenting and property settlement proceedings between the appellant and Ms Eddington (“the respondent”).

2. In lieu of the parenting orders made by the trial Judge the appellant sought orders providing that the children of the marriage spend time with him, during school term for three consecutive days commencing from 9.00am on the first of such days and concluding at 6.00pm on the third of such days, whilst he is employed and working on a 56 day revolving roster.

3. The appellant sought that the order for settlement of property made by Rose J on 22 December 2006 be varied to provide that in lieu of the sum of $162 660, the respondent pay to the appellant the sum of $215 634.

4. The respondent resisted the appeal in relation to both children’s matters and settlement of property and sought to maintain the trial Judge’s orders.

Background

1. The trial Judge uncontroversially recorded a number of matters of background in his Reasons for Judgment. These matters provide a useful background to the appeal to this Court.

2. The parties cohabited for a period of approximately 15 years which commenced in October 1989. The parties married in January 1990 and separated under the one roof in May 2004. The appellant vacated the former matrimonial home of the parties in October of that year.

3. There were two children of the marriage, they being 13 and 11 years of age at the date of the trial Judge’s judgment. The two children lived in the former matrimonial home with the respondent in the post-separation period. During that period the respondent was the children’s primary carer.

4. The trial Judge’s orders provided for the children to spend time with the appellant in accordance with and by reference to his 56 day revolving work roster. Those times varied in duration from approximately 2½ hours to 2 days and nights, pursuant to a necessarily somewhat complicated arrangement.

5. The trial Judge concluded that the parties’ net assets were worth $706 330. No part of the appeal to this Court involves any challenge to that finding. His Honour concluded that contributions favoured the respondent by 60 per cent as against 40 per cent on the part of the appellant. No part of the appeal involves any challenge to that conclusion.

6. The trial Judge concluded that an adjustment of 10 per cent in the respondent’s favour should be made pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), the respondent accordingly being entitled to 70 per cent of the parties’ net assets. His Honour’s conclusion with respect to the quantum of the s 75(2) adjustment in the respondent’s favour gives rise to the appeal to this Court against the trial Judge’s orders for settlement of property.

The Parenting Appeal

The trial Judge’s Reasons: Parenting

1. Having regard to the reality that the appeal, sensibly in this Court’s view, albeit variously articulated, involves one substantive challenge to the trial Judge’s orders in relation to the parties’ children, and one limited challenge to the order for settlement of property made by him, only limited reference to his Honour’s Reasons for Judgment is necessary or constructive. It is also logical and convenient to deal with the two discrete aspects of the appeal separately.

2. Having identified, accurately there is no doubt, the issues before him, and provided an historical background which is not controversial in this appeal, under the heading “Parenting Proceedings” the trial Judge referred to the “Relevant legal principles pursuant to the Family Law Act 1975 as amended” (Appeal Book Volume 1, page 32). It is not suggested that his Honour misstated or misunderstood those principles.

3. The trial Judge then turned his attention to “relevant matters pursuant to s 60CC” of the Act and to the “primary considerations” and “additional considerations” made relevant by the relevant legislative provisions (Appeal Book Volume 1, page 33, par 26).

4. So far as the “Views expressed by the children and other relevant factors” were concerned, his Honour recorded a number of matters, none of which is controversial in this appeal. Included amongst his Honour’s findings was that the children had directly or indirectly expressed that they were happy to spend time with the appellant (Appeal Book Volume 1, page 34, par 31), that J, the elder child, felt “more comfortable getting ready for school from his mother’s home” (Appeal Book Volume 1, page 34, par 35), that both children were “comfortable with the approximately fortnightly routine, and [were] amenable to spending an extra overnight with the father on a random basis in the other week” (Appeal Book Volume 1, page 35, par 39) and that, in the Family Consultant’s opinion, which his Honour accepted, “[J’s] view was for equal time with both parents” (Appeal Book Volume 1, page 35, par 40).

5. His Honour concluded that “[t]here is no issue that the two children have a loving and close relationship with each of the parties as well as being close to each other” (Appeal Book Volume 1, page 35, par 42). As with the other relevant findings of fact upon which his Honour based the exercise of his discretion, that conclusion is not controversial for present purposes.

6. Under the heading “Willingness and ability of the two children’s parents to facilitate and encourage a close and continuing relationship between themselves and the other parent”, the trial Judge discussed the complaints which each parent made about each other, concluding that “the truth of the matter in relation to each of the parties’ allegations and counter-allegations lies somewhere in the middle.” (Appeal Book Volume 1, page 36, par 47).

7. His Honour further concluded that:

   48.Fortunately, the difficulties which each of the parties claim to have experienced in the past appear to have been largely overcome in recent times. There has been a commendable flexibility in arrangements between them which shows improved goodwill and trust in their relationship. (Appeal Book Volume 1, page 36, par 48).

8. Ultimately the trial Judge concluded that:

   51.…each of the parties does have a willingness and ability to facilitate and encourage a close and continuing relationship between the two children and the other party, only made difficult at times due to the variable quality of the communication between the parties. (Appeal Book Volume 1, page 36, par 51).

9. Under the heading “The likely effect of any changes in the two children’s circumstances, including the likely effect of any separation from either parent or other child or person with whom the two children have been living” the trial Judge concluded that:

   59.The likely effect of changes in the circumstances of the two children in school term whereby they spend virtually every day outside of school hours in the care of the husband when he is not rostered for work may prove unsettling for them as those hours will vary from week to week depending upon the roster. In particular, Exhibit 3 notes the family consultant’s evaluation that the two children “are comfortable with the approximately fortnightly routine”, with an extra overnight period with the husband as may be arranged. (Appeal Book Volume 1, page 37, par 59).

10. He also concluded that:

    60.…the consistent evidence of the family consultant, which I have accepted, is that [J] has stated a preference for being at the wife’s home so far as preparing and departing for school. Consequently, should that not occur primarily as it does now, it may implicitly affect the relationship between [J] and the husband, albeit the husband does not accept this. [J’s] own emotional well-being may also be adversely affected. (Appeal Book Volume 1, page 37, par 60).

11. Uncontroversially, the trial Judge rejected as relevant issues, any practical difficulty and expense of the children spending time with and communicating with the appellant, and the extent to which such difficulty or expense would substantially affect the children’s right to maintain personal relations and direct contact with both parents on the basis that the parties lived within close proximity of each other. Those conclusions are not controversial in this appeal.

12. Under the heading “The capacity of the parties and any other person to provide for the needs of the two children including emotional and intellectual needs” the trial Judge concluded that:

    73.…each of the parties has the capacity to meet the reasonable needs of the two children including emotional and intellectual needs. (Appeal Book Volume 1, page 39, par 73).

13. The trial Judge recorded his conclusions with respect to the maturity, sex, lifestyle and background of the children and of other parties with other relevant characteristics, the parental attitudes of the parties, family violence and family violence orders, and impact of making an order least likely to lead to the institution of further proceedings in relation to the children or either of them, was considered to be an issue in the proceedings. None of those conclusions assumes significance in this appeal.

14. Under the heading “Conclusion” the trial Judge focused his attention on the one matter of dispute between the parties, that being the time that the children should spend with the appellant. His Honour recorded, accurately there is no doubt, the arrangements each party sought during school term. The orders sought by each party were referable to the husband’s revolving 56 day work roster which was before his Honour. The terms of the roster were not in dispute.

15. His Honour concluded that:

    90.…the periods of time to be spent by the two children with the father as sought by the mother with minor variations fulfils both the relevant primary considerations in s60CC(2)(a) of the two children having a meaningful relationship with both parties; represents substantial and significant time with each of the parties; and overall is in the best interests of the two children. (Appeal Book Volume 1, pages 40 – 41, par 90).

16. As will be seen, the crux of the challenge to the trial Judge’s orders with respect to the time the children spend with the appellant during school term has been that, notwithstanding that the trial Judge concluded that the children should spend substantial and significant time with the appellant, what was ultimately ordered could not be considered substantial and significant time spent with him.

17. The trial Judge articulated his reasons for concluding that, subject to minor variations, the orders sought by the respondent were in the children’s best interests. His Honour referred to the children having a “loving and close relationship with each of the parties”, that their views were “clearly” to “spend substantial periods of time with” the appellant, which had “occurred since the parties’ separation and particularly since interim orders were made on 3 May 2006” (Appeal Book Volume 1, page 41, par 92).

18. His Honour recorded that the children had spent “additional or substantial further periods” of time with the appellant as agreed between the parties in the past, and concluded “[t]hat is likely to continue in the future”. (Appeal Book, Volume 1, page 41, par 93).

19. It was accepted that the elder child J preferred to “primarily live” with the respondent (Appeal Book Volume 1, page 41, par 94). The trial Judge thus concluded that “equal shared parenting time will not be reflected in the orders that I make, apart from the pragmatic respect of that being calculated in the husband’s revolving work roster.” (Appeal Book Volume 1, page 41, par 95). That decision has not been challenged in this appeal.

20. His Honour referred to J’s expressed preference for “living in the wife’s home in preparation for his school day” concluding that:

    96.…Whilst I do not consider it to be in [J’s] best interests for that to occur each day, as that would necessarily mean he would never spend overnight with the husband during school term other than weekends, nonetheless I have given weight to that view. (Appeal Book Volume 1, page 41 par 96).

21. He reasoned that:

    97.Clearly, a compromise must be effected that recognises [J’s] view, yet provides for substantial and significant periods of time with the husband to allow the continuation of the successful bonding between [J] and the husband which has occurred to date. Indeed, each of the parties recognise that approach as is implicit from their respective proposals. (Appeal Book Volume 1, page 41, par 97).

22. The trial Judge thus concluded that:

    98.The orders sought by the husband in Exhibit 8 of weekends when not rostered for work, and one overnight period each week on school days are similar to, if not the same, total of nights or periods as sought by the wife.

    99.However, merely counting the number of nights seems simplistic in terms of the best interests of the two children.

    100.The features of the relevant periods must also be taken into account. (Appeal Book Volume 1, page 41, pars 98 – 100).

23. His Honour further observed that:

    101.The orders sought by the wife include periods of four successive days and three successive days which would not occur pursuant to the orders sought by the husband. In that regard, I proceed on the assumption that a weekend commences on Friday after school or Saturday morning continuing to Sunday evening or Monday before school. As a consequence, the feature of bonding emphasised by the husband in his oral evidence is more likely to take place in accordance with the orders sought by the wife and by the husband. In saying that I recognise from the husband’s viewpoint, he would like to spend as much time with the two children as possible.

    102.I also attached much weight to the flexible arrangements that the parties themselves have put in place in recent times. That has resulted in varying periods of time that the two children have spent with the husband not rigidly tied to the orders made on 3 May 2006. There is every expectation that such a flexible and sensible approach will continue in the future having regard to the findings of fact previously made by me. I will make the appropriate order to ensure the parties have flexibility in that regard. (Appeal Book Volume 1, page 41, pars 101 – 102).

Grounds of Appeal: Parenting Orders

1. The Notice of Appeal raised three challenges to the trial Judge’s conclusion with respect to the time that the children should spend with the appellant. As Counsel for the appellant frankly acknowledged, the thrust of the various challenges to the trial Judge’s orders with respect to the time that the children were to spend with the appellant during school term was that, on the trial Judge’s unchallenged findings of fact, and the conclusions he permissibly reached in reliance upon them, such orders could not constitute substantial and significant time spent with the appellant, even allowing for the generous ambit of the discretion which his Honour was exercising.

2. In her written summary of argument, learned Counsel for the appellant submitted:

   11.While the orders comply with that section [s 65DAA], the amount of time provided cannot be said to amount to a substantial amount of time, either in accordance with the usual meaning of that word or in accordance with the guidance provided by the Explanatory Memorandum. This is because of the following specific reasons:

   During school terms and within the father’s 56 day revolving roster:

   (a)the two children are to stay overnight with the father on only 8 nights out of 56;

   (b)there is a 14 day gap (between orders 4(c) and 4(d)) where the two children do not see the father at all;

   (c)there is a 15 night gap between overnight stays (between orders 4(d) and 4(f) and during this time the children are ordered to only spend time after school with the father on one afternoon (order 4(e)).

   (d)there is a further 13 night gap between overnight stays (between orders 4(f) and 4(a) in the recommencement of the cycle, with only one afternoon after school during this time. (Summary of Argument for the Appellant Husband pages 3 – 4, par 11).

1. Learned Counsel for the appellant then referred to a number of matters to which the trial Judge referred in his Reasons for Judgment, submitting, correctly in our view, that none of those matters militated against making orders for the children to spend more time with the appellant than those determined by his Honour to be in the children’s best interests provided (Summary of Argument for the Appellant Husband pages 4 & 5, pars 13, 14 & 15).

2. It was submitted that the trial Judge had erroneously “dismissed the discrepancy between the proposals” of the parties (Summary of Argument for the Appellant Husband, page 5, par 16) in concluding, as he did, that “[h]owever, merely counting the number of nights seems simplistic in terms of the best interests of the two children.” (Appeal Book, Volume 1, page 41, par 99). It was submitted that “the difference between 18 and 8 nights out of 56 nights is substantial [Counsel’s emphasis].” (Summary of Argument for the Appellant Husband, page 6, par 17).

3. Learned Counsel for the appellant referred to the trial Judge’s conclusion that, despite J’s preference for preparing for school from the respondent’s home, it was not “in [J’s] best interests for that to occur each day” (Appeal Book Volume 1, page 41, par 96) and submitted that the trial Judge had correctly ordered that contact occur on occasions which necessitated the children preparing for school in the father’s home.

4. It was further submitted on behalf of the appellant that despite the trial Judge being satisfied that the children were “comfortable with the approximately fortnightly routine and are amenable to spending an extra overnight with the father [Counsel’s emphasis] on a random basis in the other week” (Appeal Book Volume 1, page 42, par 103) no order was made for weekly overnight time.

5. It was thus submitted that, on the trial Judge’s own findings and conclusions, the orders he made did not provide substantial and significant time spent with the appellant and that, to the extent that there may have been countervailing factors, such as J’s preference for preparing for school at the respondent’s home, the trial Judge had, as was open to him, not declined to order such time with the appellant despite such evidence.

6. On behalf of the respondent it was submitted that:

   4.The time that the children spend with their Husband [sic] as ordered by the Court reflects both day time and night contact. In considering substantial and significant time as referred to in the relevant legislation, the Court is not limited simply be [sic] a bean counting approach involving the number of nights which the children spend with a given parent…(Summary of Argument for the Respondent Wife, page 2, par 4).

7. It was further submitted that, including both day and night contact, the children spend time with the appellant on 15 “occasions” during a 56 day cycle (Summary of Argument for the Respondent Wife, page 2, par 5). That figure is not controversial in the appeal, both Counsel agreeing that the trial Judge’s orders had that practical effect. An “occasion” was in some instances a day, in others a day and night, and in others a period of a few hours.

8. Learned Counsel for the respondent, referred to the trial Judge’s conclusion that the trial Judge’s “expectation” that, in addition to time spent pursuant to the Court’s orders, the children would be likely to have additional time with the appellant by agreement with the respondent. (Summary of Argument for the Respondent Wife, page 2, par 6). Counsel referred to the observation of the trial Judge that:

   102.I also attached much weight to the flexible arrangements that the parties themselves have put in place in recent times. That has resulted in varying periods of time that the two children have spent with the husband not rigidly tied to the orders made on 3 May 2006. There is every expectation that such a flexible and sensible approach will continue in the future having regard to the findings of fact previously made by me. I will make the appropriate order to ensure the parties have flexibility in that regard. (Appeal Book Volume 1, page 42, par 102).

9. It was submitted by learned Counsel for the respondent that there was “very little difference between the quantum of the time the children spend with” the appellant arising from the 3 May 2006 interim consent orders, and the final orders made by the trial Judge (Summary of Argument for the Respondent Wife, page 2, par 7).

10. Learned Counsel for the respondent further submitted in support of his contention that the trial Judge’s orders provided for “significant” time to be spent by the children with the appellant that the children “already had a meaningful relationship” with the appellant, as his Honour found and discussed at a number of places in his Reasons for Judgment. (Summary of Argument for the Respondent Wife, page 3, pars 8 & 9). Particular reliance in that regard was placed upon the passage of his Honour’s Reasons for Judgment in which he said:

    92.The two children have a loving and close relationship with each of the parties. Their views clearly are to spend substantial periods of time with the husband. That has occurred since the parties’ separation and particularly since the interim orders made on 3 May 2006. (Appeal Book Volume 1, page 41, par 92).

11. By specific reference to Ground 2 of the Notice of Appeal, which related to the conclusions recorded by the trial Judge at paragraph 102 of his Reasons for Judgment, it was submitted on behalf of the respondent that “the Trial Judge was simply making a finding about the flexible arrangements that existed between the parties in relation to the care arrangements in respect to the children”. (Summary of Argument for the Respondent Wife, page 3, par 11). In oral submissions, learned Counsel for the respondent fairly conceded that he could not rely upon his Honour’s “expectation” to support his contention that the children would spend substantial and significant time with the appellant if this Court concluded that the trial Judge’s orders did not so provide.

12. In the course of oral submissions it was fairly conceded by learned Counsel for the appellant that any “expectation” of the trial Judge in relation to additional time which the children might spend with the appellant could not, on a balanced reading of his Reasons for Judgment, have resulted in any reduction in the time which his orders would otherwise have provided for the children to spend with the appellant. It is thus common ground that whatever the trial Judge intended to convey by paragraph 102 of his reasons, the observations there recorded cannot impact upon the outcome of the appeal to this Court.

13. The challenge to the trial Judge’s orders with respect to the time the children are to spend with the appellant raises interesting and potentially novel questions. The law which governs the appeal to this Court is not in doubt and does not require extensive restating.

14. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at (504 – 505):

    The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

15. In Gronow v Gronow (1979) 144 CLR 513, Stephen J said (at 519-20):

    The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.

16. In CDJ v VAJ (1998) 197 CLR 172 Kirby J said (at 230 – 231):

    Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.

    Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction. (footnotes omitted)

17. This appeal raises no challenge to any relevant finding of fact of the trial Judge or to his conclusion that, in the circumstances, substantial and significant time for the children to spend with the appellant was appropriate. The ambit of the trial Judge’s discretion was undoubtedly broad, given that, as is not in doubt, the appellant’s work roster substantially limited the options open to the trial Judge in relation to the time the children should spend with the appellant during school term. Were this appeal to be determined by reference to the statutory framework of Part VII of the Act as it existed prior to 1 July 2006, the prospects of success would be remote. As is not in doubt, the law which governed the proceedings before the trial Judge, and to which this Court must have regard, is found in Part VII of the Act in its current form. The most relevant provision of Part VII for present purposes is not in doubt. Section 65DAA(3) of the Act provides:

    (3)  For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

    (a)  the time the child spends with the parent includes both:

    (i)  days that fall on weekends and holidays; and

    (ii)  days that do not fall on weekends or holidays; and

    (b)  the time the child spends with the parent allows the parent to be involved in:

    (i)  the child's daily routine; and

    (ii)  occasions and events that are of particular significance to the child; and

    (c)  the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

18. Section 65DAA(4) further provides:

    (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

19. It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply.

20. The practical effect of the trial Judge’s orders in this case can perhaps best be appreciated by graphically representing their operation by reference to the appellant’s revolving 56 day work roster. The roster was not and is not controversial, was the focus of inquiry at trial, and was expressly incorporated in the orders made by the trial Judge. As a reading of the transcript of the hearing of the appeal would confirm, Counsel for the parties are in agreement as to how the trial Judge’s orders translate to the appellant’s 56 day revolving work roster. Having regard to the course of debate on the hearing of the appeal, the accuracy of the graph we provide hereunder is not in doubt.

Roster of children’s  time spent with the appellant according to the orders of the trial Judge
Monday	Tuesday	Wednesday			Thursday		Friday			Saturday		Sunday
1	2	3			4		5 after school			6 full day		7 until 5pm
8 after school until 6pm	9	10			11		12			13 from 9am		14 full day
15 until school	16	17			18		19			20		21
22	23	24			25		26			27		28
29 after school	30 full day	31 before school			32		33			34		35
36	37 after school until 6pm	38			39		40			41		42
43	44	45			46 after school		47 full day			48 until 9am		49
50	51	52			53		54 after school until 6pm			55		56
Appellant work day		Time spent with		Neither time spent with nor work

1. Before the trial Judge, as his learned Counsel confirmed before us, the appellant had sought for the children to spend time with him during the school term “one overnight each week as well as all such weekend times as the father is not rostered on for work” which “would mean approximately 18 nights out of 56.” (Appeal Book, Volume 2, page 243).

2. The orders sought by the appellant on appeal, as attached to his Notice of Appeal, are that the children spend time with the appellant “[d]uring the school term, for a period of three (3) consecutive days commencing from 9:00am on the first day and concluding at 6:00pm on the third day” when the appellant is not rostered on for work (Appeal Book Volume 1, page 6). If granted, by our calculations the children would spend time with the appellant on 21 days, or part thereof, of the 56 days in the period.

3. For the sake of completeness, it is appropriate to refer to the orders sought by the respondent at trial. In her practice directions statement the respondent sought that the children spend time with the appellant on the following basis:

   2.That the children of the marriage spend time with the husband whilst the husband is employed and works on a 56 day revolving roster as follows:

   2.1  During school terms

   2.1.1From after school on Friday until Sunday at 5pm (Days 5-7 in attached Schedule A).

   2.1.2From after school on Monday until 5.00pm (Day 8)

   2.1.3From Saturday at 9am until before school on Mondays [sic] (Days 13 to 15)

   2.1.4From after school on Wednesday until 5.00pm (Day 17)

   2.1.5On Monday from after school until Wednesday before school (Days 29 to 31)

   2.1.6From after school on Tuesday until 5.00pm (Day 37)

   2.1.7From after school on Thursday until Saturday at 9am (Days 46-48)

   2.1.8On Friday from after school until 5.00pm (Day 54).

   3.That the children of the marriage shall spend time with the husband should the husband not be employed on shift work as follows:

   3.1During school terms

   3.1.1Each alternate weekend from 6pm on Friday to 6pm on Sunday. (Appeal Book Volume 2, pages 229 – 230).

4. Counsel for the appellant submitted that the time to be spent by the children with the appellant was less substantial than the respondent herself had proposed. We are less than certain that the regime proposed by the respondent provided materially more substantial time for the children to spend with the appellant than did the trial Judge’s orders, although the modest reduction in lengthy periods during which the children did not spend time with the appellant entailed in such regime may have impacted upon the significance of the time spent pursuant to it.

5. Counsel for the appellant also relied upon evidence given by the respondent at trial. In the course of her evidence, the respondent made clear that she was agreeable to “whatever equals up to every second weekend, plus one night on the opposite week.” (Appeal Book Volume 2, page 287, lines 25 – 26).

6. When asked whether she thought it was in the children’s interests “to spend some more time rather than eight nights out of 56 with their father” (as the trial Judge ordered), the respondent replied “Yes, I do” and acknowledged that some of the “overnights” provided for by the orders which she sought occurred on Mondays and Thursday nights. (Appeal Book page 287).

7. Although it is not entirely clear, the Counsellor appears to have confirmed to the trial Judge her view that the children should spend two nights in alternate weeks in accordance with the appellant’s rostered days off and one night in the alternate week (Appeal Book page 319). We would understand that to mean 12 nights with the appellant in each 56 day period.

8. Accepting that this Court must on the one hand must be diligent in refraining from intervening in circumstances where appealable error has not been demonstrated in accordance with established principles, and on the other giving effect to a legislative intention evidenced by the provisions of s 65DAA of the Act, we conclude, for the reasons we shall detail, that the learned trial Judge’s orders for time spent with the appellant did not, in the exercise of an undoubtedly broad discretion, constitute substantial and significant time in the circumstances of this case.

1. Reference to the practical effect of the trial Judge’s orders, as the graph appearing earlier in these reasons makes clear, reveals the following matters of significance, each of which was relied upon by Counsel for the appellant. The trial Judge’s orders provide for the children to return to the respondent at 5pm on day 7 of the appellant’s 56 day roster (a Sunday). The following day, day 8 (a Monday) the children spend time with the appellant after school until 6pm. We have some difficulty in understanding, given that the trial Judge, permissibly in our view, accepted that the children could spend time with the appellant on school mornings, why time spent with the appellant did not continue overnight on day 7, either concluding after school at 6pm on the Monday following or at the commencement of school on that day.

2. More concerning is the reality that there are relatively lengthy periods in which the children do not spend time with the appellant, or spend only a few hours with him, notwithstanding availability of the appellant. The relevant periods are:

   -    The 14 days from the commencement of school on day 15 (a Monday) until after school on day 29 (a Monday), during which time the children spend no time with the appellant.

   -    The 15 days from before school on day 31 (a Wednesday) until after school on day 46 (a Thursday), during which time the children spend time with the appellant for a few hours after school until 6pm on day 37 (a Tuesday).

   -    The 13 days from 9am on day 48 (a Saturday) until after school on day 5 of the next rotation (a Friday), during which time the children spend time with the appellant for a few hours after school until 6pm on day 54 (a Friday).

3. Although we have reached our conclusion that the trial Judge’s orders do not provide for the children to spend substantial and significant time with the appellant initially by reference to the substance of the orders, it ought not to be thought that our conclusion is solely thus driven. Clearly, the amount of time which children spend with a parent potentially impacts upon the quality or significance of that time. In our view, the time which the children would spend with the appellant pursuant to the trial Judge’s orders, the duration of such periods and the frequency at which they would occur are likely to impact adversely upon the significance of the time which the children would spend with the appellant. There is thus a nexus between the substance and the significance of the time which the children would spend with the appellant. Beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that the case turns on its own particular facts and circumstances, and the reality that the roster of the appellant in this case has particular impacts upon what may constitute substantial and significant time spent with the appellant.

4. The challenges embodied in the Grounds of Appeal to which we have referred having been made out, the appeal should be allowed. Sensibly in our view, the parties instructed their learned Counsel to ask this Court to re-exercise the trial Judge’s discretion. Neither party sought to adduce further evidence pursuant to Allesch v Maunz (2000) 203 CLR 172.

5. The competing proposals have earlier been identified. In our view, it would be appropriate to vary the orders of the trial Judge so as to provide that the children spend time with the appellant during the following periods:

   -    From after school on day 5 (a Friday) until the commencement of school on day 8 (a Monday);

   -    From 9am on day 13 (a Saturday) until the commencement of school on day 15 (a Monday);

   -    From 9am on day 21 (a Sunday) until the commencement of school on day 22 (a Monday);

   -    From after school on day 29 (a Monday) until the commencement of school on day 31 (a Wednesday);

   -    From after school on day 38 (a Wednesday) until the commencement of school on day 39 (a Thursday);

   -    From after school on day 46 (a Thursday) until 9am on day 48 (a Saturday); and

   -    From after school on day 54 (a Friday) until 5pm on day 56 (a Sunday).

   In our view such a regime can be comfortably accommodated within the unchallenged findings of fact of the learned trial Judge, and is consistent with the expert opinion evidence of the Court Counsellor and the concessions made by the wife during her evidence at trial. Our reasons for allowing the appeal leave little scope for doubting why we consider the orders we propose to be in the children’s best interest.

6. The following graph enables the effect of the orders we proposed to be readily and clearly appreciated.

Roster of appellant’s time spent with the children, varying the orders of the trial Judge
Monday	Tuesday	Wednesday			Thursday		Friday			Saturday		Sunday
1	2	3			4		5 after school			6 full day		7 full day
8 until school	9	10			11		12			13 from 9am		14 full day
15 until school	16	17			18		19			20		21 from 9am
22 until school	23	24			25		26			27		28
29 after school	30 full day	31 until school			32		33			34		35
36	37	38 after school			39 until school		40			41		42
43	44	45			46 after school		47 full day			48 until 9am		49
50	51	52			53		54 after school			55 full day		56 until 5pm
Appellant work day		Time spent with		Neither time spent with nor work

property settlement

The trial Judge’s Reasons: Property

1. As noted earlier, the trial Judge’s conclusion in relation to the finding that the parties had net assets of $706 320 is not controversial in this appeal, nor is his conclusion that the contribution based entitlements of the parties should favour the respondent by 60 per cent to 40 per cent.

2. As will be seen, the exercise of discretion in relation to settlement of the property is based solely upon the quantum of the further adjustment made in the respondent’s favour on account of the s 75(2) matters.

3. It is instructive to refer only to the trial Judge’s reasons in relation to that issue.

4. Under the heading “Relevant Matters Pursuant to Section 75(2) Matters”, the trial Judge made a number of findings of fact, none of which is challenged, albeit the implications of certain of those findings arise for consideration in the appeal.

5. The trial Judge referred to the ages of the appellant and the respondent (“40 and 43 years of age respectively”) and to their being “both in good health.” (Appeal Book Volume 1, page 52, par 190).

6. Reference was made to the respondent’s average gross weekly income of $1345 inclusive of child support of $260 per week, her net weekly income after tax being $1117. (Appeal Book Volume 1, page 52, par 191).

7. His Honour referred to the appellant’s gross average weekly income of $1350, his average net weekly income after tax being $900. The trial Judge concluded that both parties had the capacity to continue their current employment. (Appeal Book Volume 1, page 52, par 194).

8. He recorded that:

   197Each of the parties has the care and control of the two children who primarily live with the wife and will continue to do so pursuant to the parenting orders that I will make. (Appeal Book Volume 1, page 52, par 197).

9. The trial Judge also recorded that the appellant “pays child support in accordance with the child support assessment at the rate of $320.00 per week.” (Appeal Book Volume 1, page 53, par 201).

10. Reference was made to the fact that since October 2004 the respondent and the children have had “exclusive occupancy of the former matrimonial home” whilst the appellant has “primarily lived in rented premises since that time.” (Appeal Book Volume 1, page 53, par 202).

11. Under the heading “Assessment of Relevant Section 75(2) Matters” the trial Judge provided reasons for his conclusion that a 10 per cent adjustment in favour of the respondent was appropriate.

12. His Honour referred to the fact that:

    204Each of the parties will have the care of the two children for substantial periods of time pursuant to the parenting orders determined by me. However, the two children will primarily live with the wife with the consequent greater responsibility for her for their care and supervision both before and after school with assistance from the maternal grandmother and/or child care arrangements. (Appeal Book Volume 1, page 53, par 204).

13. Reference was also made to the fact that:

    205.… the husband’s income from employment is greater than that earned by the wife by the sum of $18,200.00 per annum gross and clearly has a greater capacity to have greater superannuation entitlements. (Appeal Book Volume 1, page 53, par 205).

14. Finally, his Honour recorded that:

    206.There was an absence of evidence before me which may have led to the conclusion that the wife had the capacity to earn greater income than at present compared to the husband with the consequential improvement in her superannuation position. (Appeal Book Volume 1, page 55, par 206).

Grounds of Appeal: Property Settlement

1. One ground of appeal was agitated in support of the challenge to the trial Judge’s order for settlement of property. After Counsel for the appellant amended the ground by deleting a portion of it, the ground provided:

   5.That His Honour has erred in concluding that the husband’s income is greater than that earned by the wife by the sum of $18,200.00, with no adjustment made for the child support being paid by the husband to the wife. (Appeal Book, Volume 1, page 5).

2. The challenge raised by this Ground is succinctly articulated in the appellant’s Summary of Argument prepared by his Counsel. Rather than paraphrase the appellant’s contentions, in the interests of economy and accuracy, we reproduce those submissions:

   25.His Honour is correct in gross terms only. That is, the husband’s gross income is $1,350 per week. The wife’s gross income is $1,000 per week. If one multiplies the difference of $350.00 per week by 52 weeks, one arrives at the figure of $18,200.00.

   26.Nevertheless, His Honour calculates net income by referring to the Form 13 Financial Statements. The Wife has a gross salary of $1,000 per week. After she pays tax of $228.00 per week, she has a net income of $772.00. His Honour adds the child support payable by the husband in the amount of $260.00 to her income and also adds the family tax benefit of $85.00. He concludes that she therefore has a net income of $1,117.00. (The child support income was later agreed to be $320 per week, so the net income of the wife, using His Honour’s method, should be $1,177.00). (See paragraph 191 of the Reasons: Vol 1 page 52)

   27.The Husband has a gross salary of $1,350 per week. After he pays tax of $450.00 per week, he has a net income of $900.00. Just as the wife’s net income has included the receipt of child support payments, so the husband’s income should then include a deduction for child support payments made, that is, a reduction of $320.00 per week. His net income should therefore be $580.00 per week.

   28.His Honour has concluded that the husband’s net income is $900 per week. This is a significant matter in terms of assessing the Section 75(2) factors (Summary of Argument for the Appellant Husband, page 7, pars 25 – 28).

3. Properly analysed, as learned Counsel for the appellant ultimately acknowledged, the challenge to the trial Judge’s s 75(2) adjustment in favour of the respondent involves no alleged error of fact.

4. The submissions of learned Counsel for the appellant assert no alleged errors of arithmetic. What they do overlook, however, is the reality that, on the undisputed findings of fact of the trial Judge, after payment of income tax, and child support of $320 per week, the appellant had $580 per week with which to support himself. The respondent had, inclusive of child support, $1177 per week from which to support herself and to substantially support the two teenage children of the marriage. If one equated the parties’ reasonable weekly needs and allowed $580 for each of them to support him or herself, the respondent would have had $597 {$1177 - $580 = $597}, or approximately $300 per week per child, with which to primarily support the two teenage children of the marriage.

5. Nothing to which we have been referred reveals that the trial Judge’s conclusion, which was literally correct, as to the appellant’s greater earning ability caused the trial Judge’s discretion to miscarry. Read in the context of his earlier and unchallenged findings (Appeal Book Volume 1, pages 52 & 53, pars 191, 194 & 201), we cannot accept that the trial Judge failed to appreciate the net financial positions of the parties which he had clearly earlier, and accurately, stated in his reasons.

6. The s 75(2) adjustment determined by the trial Judge of 10 per cent represented a sum of approximately $70 000, or a differential of $140 000 in favour of the respondent.

7. The components of that s 75(2) adjustment were identified by the trial Judge. A component of the s 75(2) adjustment, and in our view a potentially substantial component of such adjustment, was that the two children would primarily live with the respondent with “the consequent greater responsibility for her for their care and supervision both before and after school” (Appeal Book Volume 1, page 53, par 204). So too was the reality that the appellant had a greater income than the respondent, and a consequentially “greater capacity to have greater superannuation entitlements”. (Appeal Book Volume 1, page 53, par 205).

8. In our view, the greater financial and non-financial burden of care of the children falling upon the respondent and the disparity in earning ability between the parties, and its potential impact on their future superannuation entitlements were factors which justified the trial Judge in making a s 75(2) adjustment of 10 per cent in favour of the respondent. We are thus not satisfied that the generous ambit of his Honour’s discretion was exceeded in making the 10 per cent adjustment in favour of the respondent in the circumstances of this case.

9. To the extent that the orders that this Court proposes making with respect to time the children spend with the appellant might impact upon the comparative financial and non-financial burdens of the parties in the future, that is not a matter which would enliven appellate invention although it may have significance for future determinations of child support payments.

Costs

1. In our view, the appeal in relation to parenting matters having succeeded on a matter which falls within the ambit of s 9 and s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), both parties should have certificates.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  1 November 2007