Gadde & Gadde

[2019] FamCAFC 116

FAMILY COURT OF AUSTRALIA

GADDE & GADDE [2019] FamCAFC 116

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the husband’s challenges on appeal were founded on contentions that the trial judge denied him procedural fairness – Where it was open for the trial judge to exercise discretion to grant or refuse an adjournment – Where the husband failed to demonstrate error in the trial judge’s procedural conduct of the trial – Where there is no prejudice to the husband – Where the husband failed to demonstrate he was denied procedural fairness or natural justice – Where those grounds of appeal fail.

FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Parenting and Property – Where both parties sought to adduce further evidence – Where leave was granted by consent for the respondent to rely on selected paragraphs of her affidavit filed with her Application – Where it was unclear to the Full Court how the respondent’s evidence was relevant to the appeal’s disposition – Where the appellant sought to adduce evidence to be led in the sense contemplated by Allesch v Maunz (2000) 203 CLR 172 – Where fresh evidence sought to be adduced by the appellant was limited – Where the appeal fails and there is no discretion for the Full Court to re-exercise – Application dismissed.

FAMILY LAW – APPEAL – PARENTING – Where the husband appeals from final parenting orders permitting the wife to relocate with the child to Country F – Where the trial judge’s orders provided for alternative arrangements for the child to spend time with the husband, regardless of the husband’s residence in Australia or in Country F – Where the grounds of appeal challenge findings, the exercise of discretion and weight given to various factors – Where the trial judge applied and adequately considered the factors pursuant to ss 60CC(2) and 60CC(3) of the Family Law Act 1975 (Cth) – Where it was open to the trial judge to find the presumption of equal shared parental responsibility rebutted – Where there is no appealable error by the trial judge – Where the findings made by the trial judge were open on the evidence – Where the trial judge gave adequate reasons – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Child Support – Where the trial judge made property settlement orders to distribute the parties’ property, 66 per cent to the wife and 34 per cent to the husband – Where the husband alleges the trial judge erred in identifying and valuing “add-backs” and liabilities – Where the husband contended the trial judge’s contribution-based adjustments were excessive – Where findings relating to the parties’ contribution-based entitlements were open to the trial judge and clearly explained – Where no error in the trial judge’s approach in making findings under ss 75(2) and 79(4) of the Family Law Act 1975 (Cth) is demonstrated – Where the findings of the trial judge were open on the evidence – Where the trial judge gave adequate reasons – Where mathematical error established, but may be corrected by the Full Court under s 94(2) of the Family Law Act 1975 (Cth) – Where no other appealable error is found – Where the Full Court makes an order to implement the trial judge’s determination to dismiss a child support application, pursuant to s 94(2) of the Family Law Act 1975 – Where appeal lacks merit – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs in a fixed amount – Where appeal dismissed for lack of merit – Where the need to prosecute the appeal could have been avoided if the appellant sought correction of mathematical error under the slip rule – Where the Full Court is not satisfied the appellant’s poor financial circumstances preclude a costs order – Where the appellant ordered to pay 75 per cent of the wife’s costs of the appeal, calculated on an ordinary party/party basis.  

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) ss 60CC, 61DA, 64B, 65DAA, 65DAC, 65Y, 68B, 75(2), 79(4), 94(2), 114, 117(2A)

Family Law Rules 2004 (Cth) r 17.02

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Agius & Agius (2010) FLC 93-442; [2010] FamCAFC 143
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
DL v The Queen (2018) 356 ALR 197; [2018] HCA 26
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gadde & Gadde (No.3) [2017] FamCA 731
Gilles & Irby (2016) FLC 93-687; [2016] FamCAFC 13
Goudarzi & Bagheri (No.2) [2017] FamCAFC 190
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
RCB v Forrest (2012) 247 CLR 304; [2012] HCA 47
Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47
Sampson v Hartnett (No.10) (2007) FLC 93-350[2007] FamCA 1365
Scrymegeour & Scrymegeour (2014) FLC 93-600; [2014] FamCAFC 130
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT: Mr Gadde

RESPONDENT: Ms Gadde

FILE NUMBER: SYC 417 of 2015

APPEAL NUMBER: EA 87 of 2018

DATE DELIVERED: 8 July 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Strickland, Watts & Austin JJ

HEARING DATE: 21 May 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 1 June 2018

LOWER COURT MNC: [2018] FamCA 404

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Connor

THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr Williams QC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. The appeal be dismissed.

2. The Application in an Appeal filed by the appellant on 7 May 2019 be dismissed.

3. Pursuant to s 94(2) of the Family Law Act 1975 (Cth), it is ordered:

   (a)The sum of $140,013 is substituted for the sum of $94,246 within Order 3.1 made by the trial judge on 1 June 2018; and

   (b)Any and all outstanding applications between the parties seeking relief under the Child Support (Assessment) Act 1989 (Cth) are dismissed.

4. The appellant shall pay 75 per cent of the respondent’s costs of and incidental to the appeal in the sum agreed or assessed on an ordinary party/party basis.

5. The respondent shall hold the money payable by her to the appellant pursuant to Order 3.1 made by the trial judge on 1 June 2018 as security for the appellant’s payment of her costs pursuant to Order 4 hereof.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gadde & Gadde 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 87 of 2018
File Number: SYC 417 of 2015

Mr Gadde

Appellant

And

Ms Gadde

Respondent

REASONS FOR JUDGMENT

1. On 1 June 2018, a judge of the Family Court of Australia made orders to conclude the disputes between the appellant husband and respondent wife in relation to their only child and the division of their property under the Family Law Act 1975 (Cth) (“the Act”), together with the husband’s prospective payment of lump sum child support under the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).

2. The trial judge determined to dismiss the wife’s child support application, though no formal order was made to carry that determination into effect. Nonetheless, the intended dismissal of the application was not the subject of the appeal.

3. The husband’s appeal relates only to the parenting and property settlement orders made respectively under Parts VII and VIII of the Act.

4. In respect of the parenting dispute, the trial judge conferred sole parental responsibility for the child upon the wife and ordered that the child live with her. She intended to move with the child to live in Country F, which the orders enabled her to do, and so the orders stipulating the time the child will spend with the husband contemplated the alternate scenarios of the husband either remaining resident in Australia or also moving to live in Country F.

5. As for the division of the parties’ property, the orders made by the trial judge reflected the determination of their entitlements at 66 per cent to the wife and 34 per cent to the husband. The parties’ aggregated superannuation interests were found to be worth only $42,500 and those interests were treated as property.

Background

1. The parties commenced cohabitation in July 2006, married in 2007, and finally separated in March 2014.

2. Their child was born in 2009 and was seven years of age during the trial. He is now nine years of age.

3. The wife commenced proceedings in January 2015, after which an inordinate volume of interim orders, both parenting and property, were made between the parties during the pendency of the litigation.

4. Since separation, the child has always lived with the wife. Suites of interim parenting orders made in November 2015, August 2016 and December 2016 all made the child’s expenditure of time with the husband conditional upon the husband’s production of negative drug screens.

5. The trial of the proceedings was due to commence on 27 April 2017, but its commencement was deferred by several days until 1 May 2017. The trial took seven days and was concluded on 21 July 2017, at which point judgment was reserved. Orders were pronounced and reasons were delivered on 1 June 2018.

Applications in the appeal

1. Notwithstanding the wife was the respondent to the appeal and had filed neither a Notice of Cross Appeal nor Notice of Contention, she filed an Application in an Appeal on 3 May 2019 seeking to adduce fresh evidence. In essence, the subject evidence only confirmed some uncontroversial chronological facts, her move to Country F with the child, and the current child support assessment. The husband did not resist the application, save as to his objection to one paragraph of the wife’s affidavit, to which objection she acceded. Accordingly, leave was consensually granted to the wife to rely upon paragraphs 1 to 10 inclusive of her affidavit filed on 3 May 2019. Nonetheless, it remained quite unclear to us how that evidence was relevant to the disposition of the appeal.

2. Perhaps unsurprisingly, the husband responded to the wife’s Application in an Appeal by filing his own Application in an Appeal on 7 May 2019 also seeking to adduce fresh evidence, which was opposed by the wife. The husband’s submissions about the asserted admissibility of the evidence were most confusing, but he appeared to ultimately concede the evidence was not adduced to help demonstrate any error by the trial judge and so it was not led pursuant to s 93A of the Act according to the principles enunciated in CDJ v VAJ (1998) 197 CLR 172 (at 202-204, 216-218, 235). Rather, the evidence was led in the sense contemplated by Allesch v Maunz (2000) 203 CLR 172 (at 183, 191-192), only for use in the event of appealable error being demonstrated in respect of the parenting orders and this Court then deciding to re-exercise discretion to make fresh parenting orders rather than remit the parties’ applications for re-hearing.

3. For the reasons which follow, the appeal will fail and so there is no occasion to receive the husband’s fresh evidence. Absent appealable error, there is no discretion for this Court to re-exercise. The husband’s Application in an Appeal will, therefore, be dismissed.

Grounds of appeal

1. In his Amended Notice of Appeal filed on 11 March 2019, the husband propounded 18 separate grounds of appeal. However, taking into account the particulars pleaded within the sub-grounds of appeal, there were no less than 77 bases upon which it was asserted the trial judge fell into error. The reasons for judgment only comprised 75 pages, so there were more asserted errors than there were pages in the judgment. Of course, it is always possible a judgment may manifest so many errors; but hardly probable. Given the circumstances, we think it is timely to remind prospective appellants (and the lawyers who advise them) of the need to carefully articulate appealable error and not just indiscriminately allege it as if firing shrapnel from a cannon in the hope some target may get hit (see Scrymegeour & Scrymegeour (2014) FLC 93-600 at [23]-[26]).

Grounds 1 to 5

1. These five grounds of appeal, in one way or another, all contend the husband was denied procedural fairness by the manner in which the trial was conducted, principally by the refusal of his adjournment application before the trial commenced (Ground 1), but also by allowing the wife to change the complexion of her case on one factual issue (Ground 2), by refusing him an adjournment, or permission to re-open, or permission to extend his cross-examination of the wife in relation to that same issue (Ground 3), and by failing to give proper weight to the wife’s alleged failure to give proper disclosure (Ground 4). The husband contended that, for any one or more of those grounds in combination, the “outcome” was “manifestly unjust” (Ground 5).

2. On the first day of trial, which was Thursday 27 April 2017, the husband applied for an adjournment. Preferentially, he sought that the trial dates, which were fixed over seven consecutive weekdays, be vacated and the trial re-scheduled at some unidentified future time. Alternatively, he sought that the commencement of the trial be delayed by several days until Monday 1 May 2017. The trial judge refused the first application, but granted the second, and so the trial commenced on the following Monday. The trial judge made a variety of procedural orders and gave ex tempore reasons for the procedural decision (see Gadde & Gadde (No.3) [2017] FamCA 731).

3. No order was made by the trial judge to formally dismiss the husband’s primary adjournment application. Rather, the only orders then made were procedural in nature and were to facilitate the readiness of the trial after the shorter adjournment. Those orders were not decrees and are not appealable (see Commonwealth v Mullane (1961) 106 CLR 166 at 169; Tallant & Kelsey (2016) FLC 93-742 at [16]-[25]; Meadows & Meadows (2019) FLC 93-883 at [66]). Indeed, the husband did not contend otherwise. He did not appeal from any of the procedural orders made on 27 April 2017. Rather, he contended that the refusal of the longer adjournment was but one aspect of the conduct of the trial which tended to demonstrate his deprivation of procedural fairness, meaning that the substantive orders later made on 1 June 2018 were tainted by appealable error. Since the appeal is from substantive rather than interlocutory orders, it is unnecessary to address the husband’s need for leave to prosecute this aspect of the appeal, as he and the wife both wrongly believed.

4. Resort to the transcript reveals that the dispute over the husband’s adjournment application was, in reality, very narrow. The wife acceded to the husband’s subsidiary application to delay the start of the trial until the following Monday. Given the reprieve of a few days, the husband asserted he would then be ready to conduct the financial aspect of the trial without legal representation. The longer adjournment was only intended to enable his retention of new lawyers to represent him in the parenting dispute, as his following concessions to the trial judge made plain:

   [HIS HONOUR]: Your fall-back position is that it be adjourned to Monday so that you can prepare for yourself to appear.

   [THE HUSBAND]: Yes.

   (Transcript 27 April 2017, p.5 lines 37-40)

   [THE HUSBAND]: … given [the wife] is applying for sole custody and relocation, you know, I’m adamant that I should have legal representation for parenting matters of such great import. You know, I potentially – albeit that – notwithstanding the disclosure issues, potentially I could still run the property on Monday myself …

   (Transcript 27 April 2017, p.26 lines 29-33)

   [THE HUSBAND]: … I mean, really, I think, you know, for my point of view, the main issue is one of procedural fairness and having no legal representation at a final hearing to determine custody and potential relocation of my children …

   (Transcript 27 April 2019, p.32 lines 39-41)

5. Those concessions corroborated the admission made by the husband to the wife’s solicitors when he first alerted them to his intended adjournment application. In an email he sent to them at 4.40 pm the afternoon before the trial, he said:

   … I’m very happy to run the property matter myself, which was my original intention after [my former solicitors] ceased to act in February.

   (Transcript 27 April 2017, p.28 lines 36-38)

6. The reasons advanced by the husband to justify the longer adjournment were not entirely clear and had to be drawn from him by the trial judge.

7. The solicitors he most recently engaged were instructed by him about two weeks before the trial and they ceased to act for him the day before the trial was due to start, but that was an incomplete story. The husband eventually revealed the solicitors told him they would not act for him in the trial unless he paid them a retainer of $100,000 to cover expected costs and disbursements. He had paid them $75,000 but, without the residual balance of $25,000, they withdrew. He conceded those solicitors drafted the affidavit upon which he relied in support of his adjournment application. Curiously, the affidavit made no mention of the unpaid retainer; only an asserted insufficiency of time within which to prepare for trial.

8. Those solicitors were not the first to represent the husband in the litigation. The husband told the trial judge:

   [THE HUSBAND]: …this matter has been going for two and a-half years and I’ve had four solicitors so far…

   (Transcript 27 April 2017, p.6 lines 33-34)

   [THE HUSBAND]: … having spent half a million dollars on legal fees already, I’m unrepresented at a final trial …

   (Transcript 27 April 2017, p.32 lines 44-45)

9. He conceded his second-last legal representatives withdrew their representation of him in February 2017, little more than two months before the trial.

10. Obviously the husband has had a succession of legal representatives during the litigation and, significantly, he adduced no evidence and made no submission that, if granted the longer adjournment, he would be better placed financially to secure new legal representatives for the trial. The wife opposed the interim release of any more assets or money to fund the payment of his legal fees and the husband was then unemployed and had no income, so there was no explanation as to how his financial position would improve if granted a longer adjournment. The improvement of his financial circumstances depended upon, paradoxically, the finalisation of the property settlement dispute.

11. When given an opportunity to give oral evidence-in-chief expanding upon his reasons for the adjournment, the husband also referred to, first, the wife’s alleged non-disclosure and late disclosure of financial documents related to various trusts, and secondly, the need for the appointment of an Independent Children’s Lawyer.

12. The wife denied she failed her duty of timely financial disclosure and so the question of her non-disclosure or late disclosure could only then have been contested factual issues for cross-examination at trial. In any event, the husband conceded he would be ready to conduct the trial of the financial dispute the following Monday and so the alleged non-disclosure and/or late disclosure of financial documents did not justify the longer adjournment he sought.

1. As for the appointment of an Independent Children’s Lawyer, there had been none throughout the litigation. Either no prior application was made by the husband for the Court to appoint one or, if one was made, it was refused and no reason was advanced for why a renewed application should succeed. In his ex tempore reasons, the trial judge correctly noted that no application for the appointment of an Independent Children’s Lawyer was made when the proceedings were set down for trial and the trial directions were made in December 2016.

2. The parties separated in March 2014 and the wife commenced the proceedings in January 2015. The litigation had been pending for well over two years by the time the trial was reached in April 2017. The wife’s application for the child to live with her in Country F instead of Australia was canvassed by the single expert in his report published in March 2016, more than a year before trial. There was no dispute the child would continue to live with the wife. The debate surrounded the circumstances under which the child would spend time with the husband, given the potential for the child to live with the wife in either Australia or Country F. Accordingly, the issues in the parenting dispute crystallised long before trial so, if the husband was concerned about running that aspect of the trial himself, he had plenty of warning to avert that eventuality by retaining lawyers, if the problem was capable of being averted. It seems it was not.

3. The husband’s submissions in the appeal emphasised his perception about the prejudice he suffered by the grant of only a short adjournment, but overlooked how the wife would be prejudiced by the longer adjournment he sought.

4. The mother advanced good reasons to oppose the husband’s primary adjournment application: the trial was fixed more than four months in advance by procedural orders made in December 2016; her affidavits were filed and served months ahead of the trial; she was ready for trial; and the husband only foreshadowed the adjournment application to her lawyers late on the afternoon before the trial was due to commence. Although the issue of the wife’s costs thrown away by any longer adjournment were not expressly mentioned in the discourse with the trial judge, the husband’s financial circumstances would clearly not permit his reimbursement of such costs to her. Previous costs orders made in the proceedings against the husband in the wife’s favour were still unpaid. They were all persuasive reasons which militated against a belated adjournment (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon Risk Services”)).

5. While there can be no doubt that procedural fairness is an essential characteristic of any judicial proceeding (see RCB v Forrest (2012) 247 CLR 304 at 309, 321), the concept of fairness does not comprise an inflexible body of rules (see National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312). The principle demands fairness in all the circumstances and, as a general principle, requires that each party knows what case the opposing party seeks to make, how that party seeks to make it, and affords them the chance to answer it (Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99-100; Kioa v West (1985) 159 CLR 550 at 582).

6. However, there is an important distinction between, on the one hand, the fairness of litigants’ treatment in the curial process, and on the other, perceptions about the fairness of the consequences which flow from curial decisions. In respect of the adjournment application, Ground 1 in the appeal conflated the integrity of the procedure with the validity of the trial judge’s decision.

7. Here, there was no deprivation of procedural fairness. On the contrary; the conduct of the adjournment application was procedurally fair. Both parties well understood the position adopted by the other and both were given ample opportunity to submit at length why the longer adjournment sought by the husband either should or should not be granted. The arguments were given careful consideration by the trial judge, who then made a discretionary decision granting only the shorter adjournment to the husband. Simply stated, the trial judge made a decision with which the husband disagreed. The husband may consider the decision to be unfair, but he could have no rational complaint about the fairness of the process.

8. As for the decision, its correctness was not expressly the subject of this ground of appeal. The only sub-ground of appeal which was directed to the decision rather than its allegedly prejudicial consequences contended that the trial judge failed to give reasons for it (Ground 1(e)), but the assertion is false. The reasons were delivered orally that day (Transcript 27 April 2017 p.33 line 31 to 34 line 9), though the settled reasons were not published until several months thereafter (see Gadde & Gadde (No.3) [2017] FamCA 731).

9. Given the confusion which pervades this ground of appeal it is worth observing that the decision was well open to the trial judge, which is to say nothing of the principle which dissuades the review of a trial judges’ exercise of discretion on a point of only practice and procedure, like an adjournment application (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Bloch v Bloch (1981) 180 CLR 390 at 395).

10. The husband sought to derive support for this ground of appeal from the principles discussed in Sali v SPC Ltd (1993) 116 ALR 625 (“Sali”), but his confidence was misplaced. There, the High Court granted special leave to the appellant to appeal against the procedural order made by the intermediate court of appeal refusing his adjournment application. Here, the situation is quite different because the husband only appeals from the substantive orders made by the trial judge in June 2018; not the procedural orders made in April 2017 which effectively dismissed his application for a longer adjournment. In any event, in Sali, the High Court embraced the principle that an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment but confirmed that, if the exercise of discretion is reviewed, it is obligatory to take into account both the respondent’s interests and wider case management considerations – principles later strongly endorsed by the High Court in Aon Risk Services. In Sali, the majority concluded the intermediate court of appeal made no error by refusing an adjournment of only several hours duration, but there was unanimity about the correctness of the decision to refuse a longer adjournment. In this case, similarly, the trial judge granted an adjournment for four days but refused a longer adjournment. Ground 1 fails.

11. Although prosecuted under the rubric of the denial of procedural fairness, Ground 2 addressed asserted errors made by the trial judge in allowing the wife to “substantially change” her case in respect of one factual issue and in allowing her to adduce fresh evidence at a point in the trial while he was in cross-examination. It is left to imputation that, either alone or in combination, the husband contends he was thereby deprived of procedural fairness.

12. As can be seen, two different errors are alleged and they need to be specifically identified so the nature of the appeal can be understood.

13. The first alleged error relates to a factual contest between the parties over the wife’s alleged liability to a trust. The wife began the trial by asserting she was liable to a trust for a loan of either $650,000 or $620,000, which sum she initially borrowed to buy a parcel of real property she took into the parties’ relationship. The husband always disputed the loan and, during the trial, the wife conceded she could not establish it as such, so it was eventually omitted from the balance sheet as a liability. The husband’s case at trial was that the omission of the debt as a current liability would mean the wife’s introduction of the unencumbered parcel of real property at the commencement of their cohabitation must then be regarded as a significant capital contribution by her. The trial judge’s reasons make those facts plain (at [39], [51], [54]-[55], [57]-[60], [64]-[69]).

14. The husband’s contention that the trial judge erred by “allow[ing]” the wife to “substantially change” her case with regard to that issue during the trial is misconceived. The trial judge could not control the way the wife conducted her case or, in particular, the concessions she made. His Honour could only deal with the issues and evidence as presented by the parties. The wife’s capitulation on the issue of the loan simply meant the husband was vindicated in respect of that particular issue.

15. The transcript of the husband’s final submissions to the trial judge exemplify his confusion about the import of the wife’s concession and demonstrate how his eventual contention amounted to no more than that the wife’s change of position on the issue should reflect in an adverse credit finding. The following discourse occurred between the husband the trial judge:

    [HIS HONOUR]: There’s no debt maintained by her now, to the [trust].

    [THE HUSBAND]: So where does that leave all the documents in support of it…

    …

    [HIS HONOUR]: … So what do you want me to do with that evidence? Do I find that there’s a debt? Do you want me to do that?

    [THE HUSBAND]: Yes, you Honour. I believe you have to ---

    [HIS HONOUR]: How can you do that when your case was there is no debt and the wife has acceded to your case?

    [THE HUSBAND]: Well, okay. Then that being the case then, you can find that there is no debt and I will leave you to ---

    …

    [THE HUSBAND]: Well, I think the only finding can be that the wife has misled the court in a very serious way…

    …

    [HIS HONOUR]: You want me to find that she has misled the court?

    [THE HUSBAND]: Yes.

    …

    [HIS HONOUR]: And you want me to rely on the fact that there’s a loan recorded in the [two trusts]; that loan is then transferred across to [another trust] and now she’s say there’s no loan

    [THE HUSBAND]: Well, that’s right…

    …

    [THE HUSBAND]: The point is that I believe that the wife has misled the court, that the property proceedings should have resolved long ago and that has been a major cause of conflict.

    (Transcript 21 July 2017, p.50 line 33 to p.53 line 10)

16. The trial judge did not make any adverse credit finding against the wife because, in initially maintaining the existence of the loan, she relied upon official financial records created by accountants which purported to substantiate the loan. While his Honour found the independent financial records were incapable of proving the characterisation of the wife’s financial accommodation, the wife’s reliance upon them reasonably precluded any finding of her “fraud” (at [68]-[69]).

17. Despite contending throughout the trial that the wife was not liable for the alleged loan, it appears that the husband also belatedly changed his position by instead contending the wife’s liability under the loan actually did exist (at [74]). Apparently, he made the submission without a hint of irony. It was puzzling why he would criticise the trial judge’s benign treatment of the wife’s reversal of position on the issue when he expected immunity from criticism for doing exactly the same thing.

18. The second alleged error relates to the wife eliciting fresh evidence about the financial affairs of various trusts on the sixth day of trial. The trial was adjourned part-heard for a month between 5 May and 7 June 2017. The husband’s cross-examination was incomplete during the adjournment. In the interregnum, the wife’s solicitors wrote to the husband to concede the issue about the loan and to provide him with recently received financial information concerning some trusts.

19. Upon resumption of the trial, the husband sought an adjournment so he could seek further legal advice about the wife’s change of position on the loan and what he regarded as her late disclosure of financial material. The trial judge decided to complete the husband’s cross-examination before hearing and deciding his adjournment application or his application to re-open the evidence. During his resumed cross-examination, the wife tendered her solicitor’s letter to the husband conceding the loan issue (Exhibit W32) and the financial documents she had recently served on the husband (Exhibits W37, W39 and W40).

20. Later in the day, following completion of the husband’s cross-examination, when given the opportunity to press his adjournment application, the following exchanges occurred between the husband and trial judge:

    [THE HUSBAND]: … You know, I believe that the wife has had an opportunity to introduce a large amount of new material…

    …

    [THE HUSBAND]: … The wife’s evidence, in my view, has changed, or her case has changed substantially as a result of her change in position in regards to the [trust] loan in particular …

    …

    [HIS HONOUR]: Mr [husband], I thought it was your position that it wasn’t a loan. It was a contribution.

    [THE HUSBAND]: Yes.

    …

    [HIS HONOUR]: …you say their case has changed.

    [THE HUSBAND]: Yes.

    …

    [HIS HONOUR]: But it has changed in exactly the way that you contended it should be.

    [THE HUSBAND]: But it has taken two and a half years for that to happen, your Honour.

    [HIS HONOUR]: So my difficulty, Mr [Gadde], with that is I can’t see why that would require an adjournment of the proceedings where the change has been to what you’ve said it should be.

    [THE HUSBAND]: Well, it does, your Honour, because as far as I’m concerned, it gives rise, potentially, to issues of contempt for non-disclosure.

    (Transcript 7 June 2017 p.53 line 23 to p.55 line 11)

21. Despite the husband’s trenchant claims to the contrary, the wife’s changed position over the loan did not disadvantage him. He was free to, and later did, make whatever final submission he thought appropriate in relation to that issue.

22. The husband’s submissions in relation to the adjournment continued as follows:

    [THE HUSBAND]: … I have serious issues in regards to some of the validity of these documents that I need to discuss with a lawyer.

    (Transcript 7 June 2017, p.55 lines 29-31)

23. The husband contended in the appeal that he was disadvantaged by not being able to confer with lawyers over the wife’s change of position before the resumption of the trial, due to his incomplete cross-examination, but that is not so. When the trial was adjourned part-heard on 5 May 2017, the trial judge and the wife’s counsel discussed the circumstances under which the husband would be free to seek legal advice during the period of the adjournment. The husband was privy to that discussion and confirmed he would likely “be in touch” with lawyers (Transcript 5 May 2017, p.555-556).

24. The wife contended that the documents her lawyers provided to the husband in the interval while the trial was part-heard could not have been disclosed any earlier because she only received them the same day from the accountants who were engaged by the trustees. The disclosure to the husband fulfilled her ongoing duty. In any event, as the trial judge subsequently found, the documents revealed nothing new to the husband because the material simply confirmed the contents of documents disclosed to him much earlier in the litigation (at [27]-[29]).

25. The husband’s submissions to the trial judge about the progress of the trial then reverted to the point about the wife’s change of position on the loan, as the following transcript excerpts reveal:

    [HIS HONOUR]: … [W]hy is there an adjournment now required because there has been that change in position to adopt what you say is the truth of the matter?

    [THE HUSBAND]: Because I’ve accrued $450,000 in legal fees and…

    [HIS HONOUR]: I don’t see how that goes to the question of adjournment.

    [THE HUSBAND]: Well, your Honour, I need to understand why this change had occurred. They haven’t given any reasons for the significant change in evidence…

    (Transcript 7 June 2017, p.56 lines 17-26)

    [HIS HONOUR]: …At present, I do not understand why the change in position would result in an adjournment because it’s a change that you advocated should be the position all the way along.

    [THE HUSBAND]: Because I need to understand why they’ve changed their position because for two years, they have been maintaining that that loan is repayable, and they have been putting documents forward as evidence of that…

    (Transcript 7 June 2017, p.57 lines 20-26)

26. As already observed, the wife’s change of position over the loan merely shut down the contest over that factual issue. No further legal advice was needed to verify that was so. The husband did not abandon his belief in the wife’s former deception about the loan’s existence and so he was later able to make fulsome written and oral submissions about it at the conclusion of the trial.

27. The trial judge dismissed the husband’s adjournment application, but allowed the husband to adduce evidence in re-examination and then to make his application to re-open the evidence. As permitted, the husband gave much more evidence in re-examination and afterwards applied to re-open.

28. The husband apparently only wanted to re-open his case to tender extra documents; not to give additional oral evidence-in-chief. The transcript revealed how the trial judge patiently sought to identify the documents the husband wanted to tender. At first, it seemed he wanted to tender a volume of documents that were available to him well in advance of the trial’s commencement and which were arranged in a folder in sections entitled, for example, “Assault”, “Child Support”, “Drug Testing”, “Holidays”, “Mental Health”, “Mediation”, “Disclosure” and “Employment”. However, it transpired he additionally wanted to tender documents he did not have, as the transcript reveals:

    [HIS HONOUR]: So, Mr [Gadde], I’ve asked you about evidence that you want to tender now. I’m trying to identify what document you have that you want to place into evidence now.

    [THE HUSBAND]: I haven’t got it. She …they won’t provide it.

    (Transcript 7 June 2017, p.102 lines 27-31)

29. For clarity, the wife contended she had disclosed everything required of her and there was nothing else to give the husband. Even if he denied it, he could not and did not prove the contrary. The trial judge informed the husband he had not demonstrated sufficient reason to re-open his case and so the evidence was closed. The parties then filed written submissions and returned to Court on 21 July 2017 to make supplementary oral submissions. The trial judge subsequently found, and satisfactorily explained why, he was unable to determine that the wife failed to comply with her disclosure obligations (at [19]-[36]).

30. The husband failed to demonstrate any error in the trial judge’s procedural conduct of the trial on 7 June 2017. The ultimate finding that the wife did not fail her disclosure obligations was not challenged by the grounds of appeal, though the allegation of her failure was repeatedly made. Given the undisturbed finding, the husband was not disadvantaged at trial by anything other than his lack of legal representation, which was a problem entirely within his control and had nothing to do with the errors alleged by Ground 2, so this ground must fail.

31. Ground 3 contended the trial judge erred by refusing the husband’s applications for adjournment and to re-open his case on 7 June 2017, but it adds nothing to the substance of Ground 2. The husband was not prejudiced by the continuation of the trial. The wife’s changed position over the loan was already apparent from the existing evidence and the husband later made lengthy submissions about why it should count against her. Nor did the husband demonstrate how he was prejudiced by the refusal for him to re-open and tender more documents. The folder of documents he identified were always available to him and he cross-examined the wife and her witnesses upon them, or at least had the opportunity to do so. The financial documents with which he was furnished during the period while the trial was part-heard did not, according to the trial judge’s findings, relevantly contain any new information. Some of them were, in fact, already in evidence as annexures to his trial affidavit and the remainder were tendered as exhibits by the wife. As for documents he wanted to tender but did not possess, their tender could only be an impossible aspiration.

1. Ground 3 also alleged the trial judge erred by rejecting his application to renew his cross-examination of the wife, but the transcript reveals he did not actually clearly apply to do so.

2. Ground 4 contended the trial judge erred in failing to give adequate weight to the wife’s “material non-disclosure” and failed to make any credit finding in relation to it. As would be clear from the foregoing, this ground of appeal was prosecuted on a false premise. It assumes that the wife failed her disclosure obligations, but the trial judge found the contrary (at [36]). The trial judge also explained why the wife’s change of position over the loan did not manifest her fraud, as the husband had contended (at [68]-[69]). Although the husband made lengthy submissions to the contrary at the conclusion of the trial and in the appeal, none of the grounds of appeal actually challenge the correctness of those findings by the trial judge. Ground 4 fails.

3. The contention inherent in Ground 5 that, for the reasons expounded in Grounds 1 to 4, the husband was denied “procedural fairness and natural justice” and so the “outcome…was manifestly unjust”, cannot succeed. If there is no merit in Grounds 1 to 4, there cannot be any merit in Ground 5 either.

Ground 6

1. For no less than 10 separate reasons, this ground of appeal contended the trial judge erred in allowing the wife to relocate her residence with the child to Country F. There was an unfortunate lack of correlation between the appellant’s written submissions and the particularised sub-grounds, so it is more efficient to analyse Ground 6 at a higher level of abstraction.

2. At the outset it is desirable to emphasise the distinction between with whom the child is resident and where he may reside. Only the former is a parenting order (s 64B(2)(a)) and the latter could only foreseeably be the subject of an injunction. There was no dispute the child would continue to live with the wife, wherever she chose to live. The contest was over whether the wife would be at liberty to choose to live in Country F, which was her stated preference.

3. The wife proposed an order that she be “permitted” to relocate with the child to live in Country F, with two alternate suites of orders stipulating the time the child should spend with the husband, depending upon whether the husband chooses to remain in Australia or move to Country F.

4. The husband proposed that the child would spend substantial amounts of time with him, assuming that he and the wife would live in relatively close proximity. He did not seek any injunction restraining the wife from establishing the child’s residence in Country F (or in any other place), but did seek orders regulating the circumstances under which the parties could remove the child from Australia for holidays.

5. The trial judge ultimately acceded to the wife’s application and made an order “permitting” her to relocate with the child to Country F (Order 17), separately from the order requiring the child to live with her (Order 16). There is probably no power to make a stand-alone order in the terms of Order 17, at least when uncoupled from a parenting order, because so styled it is neither a parenting order, mandatory injunction, nor restrictive injunction within the meaning of ss 64B, 68B or 114 of the Act (see AMS v AIF (1999) 199 CLR 160 at 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350 at [10]-[19], [25]-[33], [46], [57]-[59]), but the error does not affect the integrity of the other orders made for the child to live with the wife and to spend time with the husband. The impugned order is now redundant because the wife and child relocated to Country F in December 2018 and the child will spend time with the husband under one of the alternative regimes, depending upon his decision to either remain in Australia or move to Country F.

6. The trial judge did make orders under s 65Y(2) of the Act permitting the wife to take the child out of Australia when he is not spending time with the husband (Orders 34-35) but, given the expectation of her relocation with the child to Country F (Orders 17, 19-25), those orders can only be objectively interpreted as being operable while she lives with the child in Australia.

7. The husband’s ultimate contention under this ground of appeal was that the trial judge’s reasons were inadequate, so it is convenient to begin by analysing the reasons given by his Honour, which drew heavily upon the single expert’s opinion evidence.

8. In dealing with the contest over the wife’s proposed relocation to Country F with the child, the trial judge noted that both parties hailed from Country F, they both had connections in Country F, the wife formed her intention to relocate in about December 2015, the wife advanced sensible reasons for why she wanted to relocate, and the husband once conceded he did not intend to thwart her plans to relocate in the longer term even though he opposed her relocation in the short term (at [5], [340]-[343], [345]). Although not mentioned in the trial judge’s reasons, the husband earlier told the single expert he was “kind of resigned” to the wife’s relocation to Country F and he intended to allow her to do so “at the end of 2016”, which is hardly insignificant when the appealed orders were made nearly two years later in June 2018.

9. The strength of the child’s relationship with the husband and the benefit he then did or desirably should derive from the relationship were liable to be influential factors in the resolution of the dispute over the wife’s place of residence. The single expert gave evidence about the quality of the child’s relationship with the husband, which evidence was accepted by the trial judge. It will be remembered the single expert produced his report in March 2016 and he was then cross-examined at trial some 14 months later in May 2017. Given the lapse of time between the report and the trial and the fresh information provided to the single expert in cross-examination (in the form of assumptions), it is unsurprising his oral evidence modified his original opinions in some respects.

10. His Honour summarised the single expert’s evidence (at [355]-[371]) and, in so far as it dealt with the child’s relationship with the husband, accepted his opinions that the filial relationship had not developed as was hoped at the time the report was compiled, that the relationship caused the child “considerable anxiety”, and that the child should not spend overnight time with the husband for the foreseeable future (at [392]-[395], [399], [402], [406], [413]-[415]). The orders regulating the child’s time with the husband reflected those findings.

11. During cross-examination, the single expert said:

    …in an ideal world, overnight time is in the interest of a child. But this isn’t an ideal world …

    (Transcript 4 May 2017, p.414 lines 18-19)

    [HIS HONOUR]: … [Y]ou’ve indicated that the conflict means that, at present at least, overnight time is contraindicated?

    [THE SINGLE EXPERT]: Yes.…

    …

    [THE SINGLE EXPERT]: Look, I think [the move to Country F] would deteriorate that relationship and…[the child] would – would benefit from having a good relationship with his father if that could be engineered. I just don’t see how in the current situation that can occur …

    (Transcript 4 May 2017, p.434 lines 2-3, 10-12)

12. In reliance upon the single expert’s opinion, the trial judge found the child’s relationship with the husband would remain attenuated, regardless of whether he stayed in Australia and their frequent interaction was confined to the daytime or if he instead moved to Country F and saw the husband less frequently but still only during the daytime (at [364]). The husband contended in the appeal that finding was erroneous, but he failed to satisfactorily explain how or why. The finding was consistent with the single expert’s evidence.

13. The trial judge expressly acknowledged how the child’s relocation to Country F with the wife, assuming the husband chose to remain living in Australia, would “likely result in a further deterioration of what is already a limited relationship” between them (at [403]). While his Honour accepted there would be some benefit to the child being able to see the husband more frequently in Australia, that benefit was outweighed by the benefit of the child living with the wife and his half-sibling in Country F (at [416]-[419]).

14. Somewhat perplexingly, the husband asserted there was an absence of any expert evidence to support the trial judge’s conclusions. The submission is rejected. As can be seen, the trial judge expressly accepted and relied upon the single expert’s opinion evidence about the quality of the child’s relationship with the husband.

15. Significantly, it was not the single expert’s role to decide the ultimate question of whether or not the wife’s proposed relocation to Country F should be sanctioned. That was the trial judge’s decision and the single expert sensibly knew it. During cross-examination, the single expert said:

    ... I’m not in a position where I can, you know, say that the relocation should or should not occur … So I really don’t know. I don’t know whether relocation should occur or not …

    (Transcript 4 May 2017, p.415, lines 18-23)

    … [I]t’s not up to me to say whether the relocation should or should not go ahead …

    (Transcript 4 May 2017, p.433, lines 36-37)

16. The husband baldly asserted the trial judge “was not able to, nor did adequately consider [the child’s] best interests as required”, which submission is rejected. His Honour quoted the paramountcy principle by which he was bound (at [372]) and then proceeded to discuss each of the factors found within s 60CC of the Act (at [388]-[409]) to reach conclusions about the nature of the orders which would serve the child’s best interests (at [410]-[426]).

17. The husband also contended the trial judge “failed to evaluate properly evaluate the competing and or proposals advanced by the [husband] [sic]”, but that submission is also rejected. The husband’s proposal for the child to spend “substantial and significant time” (as defined in s 65DAA(3) of the Act) with him in school terms, during school holidays and on numerous other special occasions was considered but rejected due to the trial judge’s acceptance of the single expert’s opinion that no orders should be made for overnight time.

18. Once that conclusion was reached, the trial judge then had to decide whether the wife’s liberty to live where she chooses should be constrained when the child’s future interaction with the husband would be truncated anyway. Based on the single expert’s evidence, his Honour expressly found there was likely to be little difference, from the child’s perspective, whether he spends daytime only with the husband in Australia (assuming the husband chooses to remain in Australia) or less frequently in Country F (at [364]). Of course, the husband is also free to live in Country F and take advantage of more frequent interaction with the child if he chooses. No aspect of the evidence suggested he cannot.

19. The husband contended the trial judge “failed to give any consideration or any adequate consideration to the practical difficulty and expense” of the child spending time with him if he remains living in Australia and the child relocates with the mother to Country F, as s 60CC(3)(e) of the Act requires. The submission is rejected. The trial judge specifically referred to that consideration (at [404], [420], [421]), so it was taken into account, and the husband failed to explain how or why it was not considered “adequately”. More specifically, the husband submitted the trial judge failed to take into account the cost which would be borne by the husband in travelling to and staying in Country F so the child can spend time with him, but that was not an issue addressed at trial in the evidence or the submissions. We were not taken to any evidence adduced by the husband on the issue and have been unable to identify any by our own search of his trial affidavit. Other than generically, the trial judge could not consider an issue about which there was no evidence and no submission.

20. Otherwise, the husband’s submissions amounted to bare complaints about the trial judge’s attribution of too much or too little weight to various aspects of the evidence, which are rejected. Merely stating too much or too little weight was reposed in some evidence does not vindicate the submission.

21. Ground 6 fails.

Ground 7

1. Ground 7 concerns the trial judge’s decision to vest parental responsibility for the child exclusively in the mother. It was contended the trial judge erred in law by finding it was not in the child’s best interests for the parties to have equal shared parental responsibility for him. It was further contended the error arose from the trial judge’s failure to give “adequate consideration to s 60CC(3) and s 60DAA [sic] factors”.

2. The trial judge ordered that the wife have sole parental responsibility for the child (Order 15), as she wanted, whereas the husband had sought an order for equal shared parental responsibility.

3. The trial judge reasoned that the presumption of equal shared parental responsibility applied (at [376]-[378]) and, although the trial judge mistakenly referred to s 65DA instead of s 61DA of the Act, that is a clear typographical error as the terms of s 61DA(2)(b) and (4) were correctly stated by the trial judge. The trial judge’s reasoning continued in the vein that the nature of the parties’ co-parenting relationship was the “key” to whether they could share parental responsibility equally (at [379]-[381]). His Honour found the parties’ relationship was too vexed to enable it (at [382]-[383]) and so concluded the evidence rebutted the presumption of equal shared parental responsibility (at [384]).

4. The husband’s assertion that the trial judge failed to give adequate consideration to the factors specified under s 60CC(3) of the Act in determining what would be in the child’s best interests is rejected. The trial judge gave express consideration to each of the s 60CC factors (at [388]-[409]) and, when discussing the issue of parental responsibility, expressly found that “analysis of the s 60CC considerations” led to the conclusion that the child’s best interests would not be served by an order for equal shared parental responsibility (at [378]).

5. The assertion that the trial judge “incorrectly elevate[d] the nature of the relationship between the parties as the key to determining what is in fact in [the child’s] best interests” is also rejected. The trial judge sensibly reasoned it would not be in a child’s best interests to be embroiled in parental conflict over important issues in the child’s life (at [381]). As the trial judge recognised, s 65DAC of the Act demands that parents who are conferred with equal shared parental responsibility make decisions jointly, which necessitates their civil consultation and genuine effort to compromise. His Honour found that task was likely beyond the parties.

6. It could not be reasonably contended that finding was not open on the evidence.

7. During the single expert’s cross-examination, he made the following comments on the topic in answer to the wife’s counsel:

   [THE SINGLE EXPERT]: Yes, I think that I saw the ongoing conflict and the regrettable involvement of the children as being part of the problem,

   …

   [THE SINGLE EXPERT]: Rereading [the Family Report], I think what it was, [the husband] said it was poison; I think I said it was toxic and he agreed with me.

   (Transcript 4 May 2017, p.409 lines 20-21, 27-28)

   [COUNSEL FOR THE WIFE]: … [T]he prospects of these parties exercising equal shared parental responsibility could not legitimately be said to be anticipated?

   [THE SINGLE EXPERT]: It certainly looks bleak, yes.

   (Transcript 4 May 2017, p.414 lines 28-30)

8. During the husband’s cross-examination, he acknowledged the absence of any co-operation between the parties and he admitted they were not civil. He told the single expert in their consultation that the parties’ relationship was “poisonous” and they were “quite acrimonious” and then, at trial, he took up that issue with the single expert in cross-examination in the following way:

   [THE HUSBAND]: … So just coming back to what is, in fact, the elephant in the room, which is the conflict, what, in your view, are the main causes of the conflict?

   [THE SINGLE EXPERT]: … Hell’s bells. Look, the – it appears to me that – when I was reflecting on the situation after I had interviewed the two of you, this had been an unhappy relationship for a long time, and there was significant conflict throughout the relationship. I – it seemed to me that there were personality clashes, there were lifestyle clashes, there were – particularly philosophies about parenting clashes, so there are multiple causes to the conflict, and so it was just – not a particularly warm or functional relationship for quite a long time.

   (Transcript 4 May 2017, p.422 lines 10-18)

   [THE HUSBAND]: …And so it has been apparent through the proceedings there are major issues to the communication between both parties. There’s still a lot of anger and resentment. You know, the logical solution, would it not be, is to reduce that communication to the extent possible …

   (Transcript 4 May 2017, p.431 lines 34-37)

   [THE SINGLE EXPERT]: Look, I think counselling might not be particularly effective between the two parents … [C]ounselling really requires a substantial amount of goodwill for it to be work. I think that’s lacking in this situation …

   …

   [THE SINGLE EXPERT]: I don’t really think that this is the kind of situation where, realistically, there can be any major therapeutic intervention that’s going to work. I think there’s far too much history to this matter to suggest that you arrive at a reasonable trusting or opening relationship now. I think it has gone beyond that point.

   (Transcript 4 May 2017, p.432 lines 1-28)

9. Although not mentioned in the trial judge’s reasons, the single expert was not challenged about the correctness of his opinions in his report that:

   153.…I believe that each [parent] can be quite resolute and quite uncompromising in their attitude to the other, which involves [the child] in being exposed to a high level of conflict.

   …

   169.For the moment parental communication has to be considered as dire.

10. The trial judge was entitled to conclude, as he did (at [383]), that:

    …the idea that equal shared parental responsibility, in this case is a recipe for conflict, stress and moribund decision making.

11. The husband submitted that, having found such a poor co-parenting relationship existed between the parties, the trial judge was then bound to consider how the situation came to exist, but the submission is rejected. No doubt the parties have different perceptions about the origins of their antipathy, but any attempt to attribute fault would be fruitless. The mere fact of their antipathy was enough to rebut the presumption of equal shared parental responsibility under s 61DA(4) of the Act, as the trial judge found.

12. The husband submitted the trial judge failed to consider the factors prescribed by s 65DAA of the Act, but of course there was no need for his Honour to do so. The provisions of s 65DAA are only engaged if an order is made for equal shared parental responsibility and no such order was made. Presumably the husband’s reference to s 60DAA of the Act in the ground of appeal was a typographical error and was an intended reference to s 65DAA, as was referenced in his written submissions.

13. Ground 7 fails.

Ground 8

1. This ground of appeal boldly stated the trial judge failed to give adequate weight to the single expert’s report, but instead gave excessive weight to the single expert’s oral evidence at trial.

2. The husband’s submissions did not make clear whether this ground pertained to the single expert’s views about the child’s prospective relocation to Country F or to the opinions about the confinement of the child’s interaction with him to only daytime contact, so we will presume the ground pertains to both.

1. As earlier stated, the single expert compiled his report in March 2016. At that point in time, subject to several important qualifications, the single expert was inclined against the child’s relocation and countenanced the child spending some confined overnight time with the husband.

2. In respect of the proposed relocation, the single expert thought the child’s move to Country F and consequent separation from the husband would cause him distress and harm, subject to two caveats: the child’s establishment of a “less anxious relationship” with the husband before the relocation and the husband “taking responsibility for changing his behaviour and [being] less combative and more child focussed”.

3. In respect of the time they spend together, the single expert concluded there was some advantage for the child in having overnight time with the husband, but it needed to be constrained to manage the child’s anxiety. On the other hand, if the parental conflict did not cease then the child’s commencement of overnight time with the husband would need to be “pushed out” until a pattern of civil agreement between the parties was achieved.

4. Some 14 months later, at trial in May 2017, the single expert was informed during his cross-examination of certain developments in the interregnum which, at least the wife contended, established the existence of the countervailing conditions expressed by the single expert in his original report and therefore militated in favour of the child’s relocation to Country F and against the introduction of the child’s overnight visits with the husband. The single expert agreed those factual assumptions should produce the outcome for which the wife contended. For example, the single expert agreed:

   (a)Unless the parental conflict ceased, there would be ongoing harm to the child and his relationship with the husband (Transcript 4 May 2017, p.409 lines 5-33);

   (b)The critical premise for the recommendations in his report was that there would be a resolution of the conflict between the parties (Transcript 4 May 2017, p.409; p.433);

   (c)The husband’s pattern of being “somewhat self-indulgent” had not seemingly altered much over time (Transcript 4 May 2017, p.411 line 34);

   (d)It was “really unfortunate” the husband refused to engage in counselling with the wife (Transcript 4 May 2017, p.411 lines 40-41);

   (e)His report was written with “the notion that constructive change could occur and would occur within the following 12 months”, but the assumptions furnished in cross-examination suggested there had not been any “constructive change”, as it appeared the husband maintained his “hostile attitude” towards the wife and he remained self-indulgent without thinking of the consequences for the child (Transcript 4 May 2017, p.412 lines 16-26);

   (f)He originally thought the child’s relocation to Country F could occur if he and the husband had 12 months beforehand to “progress” their relationship so the child would feel more comfortable and trustful (Transcript 4 May 2017, p.415 lines 10-23); and

   (g)There was “still a lot of anger and resentment” between the parties (Transcript 4 May 2017, p.431 lines 34-37)

5. In the event, the single expert was moved to say the conditions expressed in his report were not satisfied, overnight contact between the child and the father was “more problematic” than he anticipated, and it was difficult to imagine the child would feel “comfortable” or “safe” enough for overnight time to occur (Transcript 4 May 2017, p.414 lines 1-2, 18-24). The prospect of overnight time between the child and husband was ruled out and he suggested the husband should only regard that as a goal he could work towards (Transcript 4 May17, pp.433-434).

6. As for the proposed relocation to Country F, the single expert was unsure whether or not the child should relocate to Country F and disavowed any responsibility for making that decision (Transcript 4 May 2017, p.415; p.433). He acknowledged the child’s relationship with the father would probably deteriorate as a consequence of the relocation, but no “meaningful relationship” with the father could be engineered at that point in time anyway (Transcript 4 May 2017, p.434 lines 29-32).

7. As it transpired, the trial judge found the factual assumptions which were put to the single expert in cross-examination were proven on the evidence. It was uncontroversial that the parties were still beset by unrelenting conflict and the husband’s “self-indulgent” behaviour did not show tangible improvement after his consultation with the single expert. For example:

   (a)He acted in breach of an interim injunction by buying a new car (at [153]);

   (b)He messaged the wife threatening to expose her alleged fraud unless she compromised the litigation with him (at [162], [353]);

   (c)He commenced separate proceedings against the wife for defamation in June 2017 which, in part, was designed to induce the settlement of this litigation (at [197], [353]);

   (d)He admitted his continuing illicit drug use until as late as January 2017 during his cross-examination (at [263], [264], [305], [314]; Transcript 5/5/17, p.456-460), which he denied in his trial affidavit (at [257]);

   (e)He conceded he probably did not comply with the illicit drug testing regime introduced by interim orders made in August 2016 (at [315], [316]);

   (f)He drove a vehicle with more than the prescribed concentration of alcohol in his body while the child was a passenger (at [304]);

   (g)He drove the child as a passenger in his car on two subsequent occasions whilst his driver’s licence was either disqualified or suspended (at [307], [309], [312]); and

   (h)He left the child alone at a library and said in cross-examination he would do so again (Transcript 4 May 2017 pp.385-386), in circumstances where, prior to meeting with the single expert, he had left the child at home and in a locked car alone, which caused the child “significant distress”.

8. The trial judge accepted and acted upon the single expert’s opinions, as modified by his reliance upon facts which were proven at trial, and no error is apparent. Ground 8 fails.

Ground 9

1. This ground of appeal comprises multiple complaints, including that the trial judge failed to apply the paramountcy principle and erred in determining the orders which would best promote the child’s interests by misapplying s 60CC of the Act, principally by failing to adequately consider the primary consideration of the benefit the child would derive by having a meaningful relationship with his father (s 60CC(2)(a)) and by failing to adequately consider many of the additional considerations prescribed by the Act (s 60CC(3)). It can be answered simply.

2. First, the trial judge acknowledged the child’s best interests were the paramount consideration (at [372]).

3. Secondly, although the ground of appeal asserted the trial judge failed to adequately consider the benefit to the child of having a meaningful relationship with the husband under s 60CC(2)(a) of the Act, no submissions were made to usefully elaborate this ground. It is evident the trial judge expressly did consider that issue (at [392]-[395]) and no satisfactory explanation was offered as to why the trial judge’s consideration of it was inadequate.

4. Thirdly, the trial judge’s reasons explicitly referred to each factor prescribed by s 60CC(3) of the Act (at [397]-[409]). No satisfactory explanation was offered as to why the trial judge’s consideration of them was inadequate either.

5. The husband’s written submissions in the appeal adverted to many factual allegations adduced in evidence and submissions made at trial which could have been taken into account under the sub-sections of s 60CC(3) of the Act but which, it was contended, were either rejected, overlooked or given too little weight by the trial judge. The submission is rejected because it is unrealistic. The evidence at trial comprised a huge volume of affidavit material and many exhibits. Once the evidence was closed, the parties filed very lengthy written submissions and then took nearly another full day to make additional oral submissions. The trial occupied seven days. It was impossible for the trial judge to cover in the reasons for judgment every piece of evidence adduced and every submission made but, most importantly, the law does not require it (see Fox v Percy (2003) 214 CLR 118 at 132; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 463-464). Therefore, Ground 9 fails.

Ground 10

1. Ground 10 was a final complaint about the trial judge’s failure to give adequate reasons for the parenting orders made under Part VII of the Act.

2. Curiously, no submissions at all were made in the husband’s summary of argument to explain the complaint, so the ground of appeal remained a bare proposition. For the reasons already given to dismiss the preceding grounds of appeal, the trial judge’s reasons were adequate to explain the path by which the parenting dispute was determined. The reasons identified the relevant principles of law, referred to relevant evidence, stated the findings upon material questions of fact and explained those findings and the ultimate conclusions reached (DL v The Queen (2018) 356 ALR 197 at [130]). Ground 10 fails.

Ground 11

1. This ground concerns alleged errors by the trial judge in the identification of the parties’ assets and liabilities and the computation of the net value of their property. The alleged errors generally related to the identification and valuation of “add-backs” and liabilities.

2. However, one sub-ground alleged the trial judge erred by “failing to require [the parties] to have before him” independent expert valuation evidence in relation to various trusts in which the husband contended the wife enjoyed some form of undefined interest (Ground 11(j)). It is convenient to deal with that aspect of this ground first because it was addressed first by the husband in his written submissions.

3. The husband contended the wife enjoyed some form of interest in various trusts, such that her interests either amounted to “property” or the trusts alternatively constituted financial resources for her. None of the trusts, or more importantly the wife’s alleged pecuniary interests in them, were valued by experts. If valuation opinions were privately procured by the parties or either of them, the opinion evidence was not adduced at trial.

4. The relevant trusts were identified by the trial judge in the balance sheet produced by the parties, which became an exhibit (Items 24, 31 and 114 in Exhibit C5).

5. One trust (Item 24) was set up by the parties in 2011 as their own family trust (at [79]) and was unconnected to the other trusts in which members of the wife’s family were interested. The husband submitted this trust owed the parties money, though we were not taken to any evidence to verify the submission made to the trial judge. During oral submissions at trial, the husband acknowledged the value of this trust was agreed and the only outstanding issue from his perspective was the value of a “capital tax liability” which could not be quantified (Transcript 21 July 2017, pp.61-62). In reliance upon the parties’ agreement, the trial judge found the trust’s net value was $943,380 (at [235(b)]). Consequently, the absence of expert evidence about its value was irrelevant.

6. The husband submitted that another trust (Item 31) had earlier advanced about AUD$100,000 to the wife but, in later oral submissions, he contended the figure was actually about AUD$150,000 (Transcript 21 July 2017, p.59), which fact the trial judge accepted (at [27]). The husband conceded the wife actually owed $109,000 to the trust and he said he therefore did not know whether the trust should be shown in the balance sheet as an asset or an add-back (Transcript 21 July 2017, p.63; p.66). The wife refuted its characterisation as an add-back and the trust could not be an asset of the parties if the trust’s only asset was the debt due to it by the wife. The trial judge recorded that the parties agreed at trial the trust no longer had any value as an asset (at [165], [220]). Therefore, the absence of expert evidence about its value was also irrelevant.

7. As for the other trusts (Item 114), there was no evidence of their values and no agreement between the parties as to their values. The husband’s complaint in relation to the absence of any expert evidence to establish the values of those trusts effectively devolved to the proposition that the trial judge was obliged to force the parties to adduce such expert opinion evidence at trial. Of course, that could not be so. Determination of the parties’ property settlement dispute was an essentially adversarial process. It was not the trial judge’s role to conduct either party’s case or to procure evidence for them. The parties were free to conduct the trial as they saw fit.

8. On 17 December 2015, an interlocutory order was made requiring the wife to provide the husband’s solicitors with the names and addresses of the trustees of the various trusts which were in issue. The Court record does not reveal any subsequent attempt to enforce that order and we were not taken to any evidence adduced at trial to suggest its breach by the wife. Presumably the husband received the information from the wife under the interlocutory order and thereafter made such enquiries of the trustees as he deemed necessary.

9. By another procedural order made on 15 August 2016, the parties were given leave to re-list the proceedings to seek any directions needed about the appointment of single experts to value the trusts or for leave to issue subpoenae to the trustees (at [34]), but the court record shows no subsequent order was ever made for the appointment of any single expert to value the trusts and no application was made by either party for permission to adduce valuation evidence from an adversarial expert at the trial.

10. The husband ultimately submitted to the trial judge that he filed an interlocutory application in November 2016 to secure the appointment of single experts, but his application was never heard. That could be so, but there was little point in making that complaint to the trial judge at the end of the trial. It is certainly not evident from the face of the trial directions made in December 2016, for the trial set down in April 2017, any issue about the need to obtain expert evidence was raised at that time. Nor should it be overlooked that the husband was legally represented when those trial directions were made. As the trial judge correctly observed, if the husband wanted valuation evidence, it was up to him to pursue it in a timely manner, but he did not (at [33]).

11. The wife deposed she was a discretionary beneficiary under two trusts, which status she regarded was worthless to her. She contended she had some debts to the trusts in the form of outstanding loans.

12. The husband’s ultimate case at trial was that the trusts were only “financial resources” for the wife. While the trusts’ assets would have been capable of valuation, the valuation of only the wife’s discretionary interest in the trusts most probably was not. That is because any “property” interest the wife enjoys in the discretionary trusts only exists in the form of her right to the due administration of the trusts, which bare right is difficult to value (see Kennon v Spry (2008) 238 CLR 366 at 390, 394, 408, 411). That being so, the complaint in this ground of appeal about the absence of expert valuation evidence was entirely academic. Even if the trusts were valued, such values could not be transposed to the balance sheet because the value of each trust’s corpus would not be representative of the wife’s contingent and fractional pecuniary interest in them.

13. In respect of the contentious trusts (Item 114), the husband made submissions to the trial judge about their historical financial circumstances, but the documents he relied upon to make those submissions could not possibly demonstrate the current value of the trusts, the current value of any proprietary interest enjoyed by the wife in them, or how they were likely to be future financial resources for the wife.

14. The trial judge found there was a “suspicion” the wife may again receive financial benefit from the trusts, as she occasionally had in the past, but the evidence was insufficiently strong to enable a finding there was a “reasonable expectation” she would benefit from them (at [217]-[225]). Such findings were made conformably with the principles discussed in Hall v Hall (2016) 257 CLR 490 and were open on the evidence.

15. Significantly, at trial, the husband argued for his contribution-based entitlement to be assessed at 60 per cent, with his overall entitlement fixed at 65 per cent, taking into account s 75(2) factors. At best, he therefore sought only a five per cent adjustment in his favour but, earlier in his submissions, he asserted there should be no adjustment at all. The point is, despite the husband’s prevarication over whether or not there should be any adjustment in his favour, if made, he accepted any adjustment should be very modest, despite the way in which he asserted the trusts were financial resources for the wife.

16. The trial judge found the net value of the non-superannuation assets was $1,687,347, including add-backs (at [230]). Even adding in the superannuation of $42,500 (at [230]), the entire property pool was worth no more than $1,729,847 (at [166]). It follows that the largest adjustment sought by the husband was only worth $86,492 on the trial judge’s findings. The acceptance of the husband’s contention about how the trusts were financial resources for the wife was only one of several considerations he relied upon to justify an adjustment in his favour under s 75(2) of the Act and could only therefore account for a portion of the five per cent adjustment for which he contended. The argument about the characterisation of the trusts as the wife’s financial resources was therefore worth even less than $86,492. As can be seen, apart from its other shortcomings, this ground did not enjoy any sense of proportionality.

17. Given the state of the evidence and the parties’ submissions about the trusts, no error in the trial judge’s findings or approach is demonstrated. The parties chose not to adduce any expert opinion evidence about the trusts and the husband’s forensic approach to the trusts, their value, how they were financial resources, and what they meant in the context of the discretionary decisions required of the trial judge was both confused and confusing.

18. As for the other sub-grounds of Ground 11, they relate to “add-backs” and liabilities. The husband contended the trial judge made mathematical errors for a variety of reasons. The husband submitted in writing that, inclusive of the superannuation of $42,500 and properly quantified add-backs, the trial judge ought to have found the net value of the pool of property was $1,894,319 – which is $164,472 more valuable than the trial judge’s findings (at [230]-[231]).

19. The trial judge found the sum of $420,388 should be notionally added back against the husband and $195,957 notionally added back against the wife (at [180]). The parties agree that one mathematical mistake was made in the calculation of add-backs: the husband’s add-backs were overstated by $64,830 due to a double-count, in which case his add-backs should not exceed $355,558.

20. However, that is where agreement ended. The husband contended the add-backs against him should only have been $308,040 and that the add-backs against the wife should have been the much higher figure of $421,485, totalling $729,525 in all. The husband also contended the trial judge should have found the liabilities totalled $257,120 instead of $308,052, as was found (at [230(b)]).

21. The submissions advanced by the husband in the appeal in relation to this issue seemed to be merely the repetition of the arguments he made at trial, which did not find favour. Save for the agreed miscalculation of $64,830 in respect of the husband’s add-backs, we are unable to discern error in the trial judge’s findings about add-backs and liabilities.

1. The wife’s concession of the miscalculation means she owes the husband more money than she was ordered by the trial judge to pay. On her calculation, which the husband’s counsel said he “accepted”, she should pay to the husband an extra $45,767 (rounded to the nearest dollar), meaning she should pay the total sum of $140,013 in lieu of the sum of $94,246, as ordered by the trial judge (Order 3.1). We will not go behind the parties’ agreement over the mathematical calculation.

2. The question then arises as to how the admitted error should be corrected. The wife contended it could be done by this Court pursuant to an exercise of power under s 94(2) of the Act (see Gilles & Irby (2016) FLC 93-687 at [18]; Goudarzi & Bagheri (No.2) [2017] FamCAFC 190 (“Goudarzi”) at [62]-[63]) or, alternatively, by reliance upon the slip rule embodied in r 17.02 of the Family Law Rules 2004 (Cth), either by order of the trial judge (see Agius & Agius (2010) FLC 93-442 (“Agius”) at [169]-[173]) or by order of this Court (see Goudarzi at [61]). The husband did not disagree.

3. We think the former course is preferable and so, pursuant to s 94(2) of the Act, we will order that the figure of $140,013 be substituted for the figure of $94,246 in Order 3.1 made by the trial judge. The mathematical slip can be corrected in that way without the appeal being upheld (see Agius at [144]-[147], [173]).

4. Otherwise, Ground 11 fails.

Grounds 12 to 14

1. These three grounds of appeal relate to the allegedly erroneous findings made about the parties’ respective contributions, as recognised under s 79(4)(a)-(c) of the Act. It was contended the trial judge made numerous erroneous factual findings (Ground 12(a)), the trial judge’s assessment of the parties’ contribution-based entitlements was wrong, such that the discretion “manifestly miscarried” (Grounds 12(b), 12(c), 13), and the trial judge failed to properly explain the contribution-based assessment (Grounds 12(d), 14).

2. Relevantly, the trial judge found: the parties made relatively equivalent contributions at the commencement of their relationship (at [53], [207]); the husband’s financial contributions during their relationship were vastly superior to the wife’s (at [208]); the wife was primarily responsible for the financial support of the children after separation (at [209]); the wife’s non-financial contributions outstripped those of the husband both during their relationship and after their separation (at [77], [210]-[212]); and, overall, the wife’s contributions were greater and properly reflected in proportional entitlements of 58 per cent to the wife and 42 per cent to the husband (at [213]-[214]).

3. The husband first contended the trial judge was in error to find the parties’ initial contributions should be regarded as equal when, factually, the trial judge found he brought in assets of $850,000 and the wife brought in assets of $816,000 (at [51]-[52]). The most significant asset introduced to the relationship by the wife was an item of real property, which was sold a few months after cohabitation began and yielded net proceeds of $761,236.38. The precise nature of the husband’s complaint about that contribution was confusing, but appeared to entail two separate aspects.

4. First, he seemed to contend that the property was owned by a trust controlled by the wife rather than by the wife herself, in which event the property was not contributed to the relationship by the wife. The submission is rejected. Even if the property was legally owned by the trust, the wife’s beneficial ownership of the property is evident from her sale of the property and her contribution of the net sale proceeds to the relationship only several months after the parties commenced cohabitation.

5. Secondly, the husband seemed to contend that, because the net sale proceeds from the property did not flow into the relationship until some months after cohabitation began, it could not be regarded as an initial contribution. We reject the argument. The parties agreed the property of that net value was introduced by the wife at the beginning of the parties’ relationship (Exhibit C1) and the husband remains bound by that agreement. It will be remembered there was an initial argument over whether the wife owed a trust $620,000 or $650,000 for money she received from the trust to acquire that property, but the husband asserted there was no debt and conceded the full value of the property should be regarded as the wife’s contribution. She acceded to his submission during the trial and so the husband cannot recant now.

6. The trial judge accepted that one of the husband’s initial contributions was a “sign on bonus” of $900,000, though the gross payment was subject to taxation. The trial judge found the tax liability was $481,500, meaning the net value of the capital contribution was $418,500 (at [43], [51]). That was an error because the parties agreed the tax was only $418,500 (Exhibit C1) and so the net contribution should have been $481,500. The trial judge mistook the quantum of the tax as the net value of the capital. The error meant the husband was not given credit for his initial contribution of an extra $63,000. The net value of the assets introduced by the husband to the relationship was therefore $913,000 instead of $850,000. His initial contributions were consequently worth $97,000 more than the wife’s and, hence, there was less equivalence in their contributions than was assumed. However, as the wife submitted, that differential many years ago in 2006 was not so great as to undermine the validity of the trial judge’s finding in 2018 about the parties’ overall proportional entitlements, given the generous ambit of the discretion being exercised. The assessment process is not so arithmetical.

7. The husband contended it was not open for the trial judge to find that the wife contributed equally during the parties’ relationship, which submission we do not accept. The trial judge found that, during the relationship, the husband’s financial contributions were far superior to the wife’s, but her non-financial contributions were superior to his. A finding of overall equality of the parties’ contributions at or about the time of their final separation was not foreclosed.

8. The husband submitted the trial judge’s findings about post-separation contributions are “difficult if not impossible to discern” from the reasons, but we do not agree. The reasons were clear about how, in the period between separation and trial, the wife’s financial and non-financial contributions exceeded the husband’s and, since the period between marital separation and judgment amounted to approximately four years, which was about one-half the length of their cohabitation, the extra percentage apportionment to the wife was open.

9. In respect of Grounds 13 and 14, the husband simply stated he “repeats submissions” already made in respect of the preceding grounds, which was hardly helpful.

10. The trial judge’s overall findings about the parties’ contribution-based entitlements were both open and clearly explained. Aside from the mathematical error already mentioned, we do not detect appealable error and reject the husband’s submissions. Grounds 12 to 14 fail.

Ground 15

1. This ground was directed to the adjustment made by the trial judge in the wife’s favour pursuant to the considerations found in ss 79(4)(d)-(g) and 75(2) of the Act. In a variety of different ways, it was contended the quantum of the adjustment was excessive and “caused” the discretion to “manifestly miscarry”.

2. After having assessed the contribution-based entitlements at 58 and 42 per cent respectively, the trial judge turned to the question of adjustment. His Honour decided on an adjustment in the wife’s favour, quantified at eight per cent, so that her ultimate share of the property was measured at 66 per cent and the husband’s at 34 per cent (at [229]). The features of the evidence which led the trial judge to that conclusion were:

   (a)The husband’s “strong capacity” to earn “strong remuneration”, should he choose to exercise his capacity (at [215]);

   (b)The wife’s significantly lesser capacity to earn income (at [216], [228]);

   (c)The future financial burdens faced by both parties (at [226]-[227]);

   (d)The wife would remain the primary carer of the child, who was then still only seven years of age (at [228]); and

   (e)The wife would retain “a significant financial burden” in respect of the child, without expectation of reliable child support payments by the husband (at [228]).

3. Significantly, the trial judge found the husband failed to prove that the wife had any reasonable expectation of future financial advantage from any of the trusts which were the subject of their debate during the trial. Consequently, the trusts were discounted as financial resources for the wife (at [217]-[225]).

4. This ground of appeal attacked the trial judge’s findings or alleged disregard of evidence, in so far as sub-sections (b), (d), (g), (l), (n), (na), and (o) of s 75(2) of the Act were applied.

5. In respect of s 75(2)(b), the husband asserted the finding that the trusts were not financial resources for the wife was “against the evidence”. In support of the submission, the husband asserted the wife exerted a greater degree of control over the trusts than was found by the trial judge, but the evidentiary platform for the submission was lacking. The husband’s written submission to the trial judge concerning the characterisation of the trusts as financial resources did not address the issue of the wife’s control of the trusts and were mostly confined to discussion of the trusts’ financial statements, which were no more recent than 2015.

6. In respect of one trust, the trial judge found the wife was the appointor and a beneficiary, but the parties agreed the trust had no assets, aside from money owed to it by the wife (at [24], [29], [165], [220]). In respect of the other trusts, the trial judge found the wife is only a discretionary beneficiary and “lacks any form of control” over them (at [23], [222]). The evidence showed that the wife was as much reliant on loans from her mother to remain solvent as she was on past financial accommodation from any of the trusts (at [224]). The trial judge’s findings about the trusts were consistent with the evidence and therefore open.

7. In respect of s 75(2)(d), the ground of appeal and the husband’s submission were confined to the bald proposition that the trial judge failed to give any adequate consideration to “the commitments of the [husband] to himself and [the child] [sic]”, the meaning of which remained quite opaque. Suffice to say, the trial judge took many liabilities into account in calculating the net value of the parties’ property, but was aware each party would individually bear other debts (at [181]-[195], [226]), so the husband’s commitments were considered.

8. In respect of s 75(2)(g), the ground of appeal and the husband’s submission were confined to the bald proposition that the trial judge failed to give any adequate consideration to the husband’s “standard of living”. Without particulars, the proposition is rejected.

9. In respect of s75(2)(l), the ground of appeal and the husband’s submission were confined to the bald proposition that the trial judge failed to give any adequate consideration to “the protection of the [husband] who wants to continue his role as a parent”. The parenting orders made by the trial judge enable the husband to continue his role as a parent, but it will be a confined parental role. The confinement of his personal engagement with the child will not foreseeably restrict his income earning capacity. Without further particulars, the proposition is rejected.

10. In respect of s 75(2)(n), the ground of appeal and the husband’s submission were confined to the bald proposition that the trial judge failed to give any adequate consideration “to terms of any order made or proposed to be made under s 79 in relation to the property of the parties”, which amounted to no more than the recitation of the statutory provision. Without particulars, the proposition is rejected.

11. In respect of s 75(2)(na), the ground of appeal and the husband’s submission were confined to the bald proposition that the trial judge failed to give any adequate consideration to “any child support under the [Assessment Act] that the [husband] might be liable to provide in the future for [the child]”. Again, this was nothing more than the recitation of the statutory provision, but the submission is flawed because his Honour did consider the husband’s future child support obligations. His Honour found the husband was in arrears with his child support payments (at [199], [209]), he voluntarily reduced his income pending determination of the proceedings (at [203]), and his payment of child support into the future would probably remain unreliable (at [228]). The correctness of those findings was challenged by the next ground of appeal, but this complaint about lack of adequate consideration cannot be sustained.

12. In respect of s 75(2)(o), the ground of appeal and the husband’s submission were confined to the bald proposition that the trial judge failed “to any fact or circumstance which in the opinion of the court, the justice of the case requires to be taken into account [sic]”. First, the complaint is meaningless. Second, if it is meant to mean the trial judge failed to take into account some other relevant consideration, the husband did not identify it.

13. It should not escape attention that the husband’s written and oral submissions to the trial judge did not even address sub-sections (d), (g), (n), or (na) of s 75(2) as being relevant considerations in the case, so his complaint in the appeal about the application of those sub-sections was rather audacious.

14. Ground 15 fails.

Ground 16

1. This ground asserted three errors by the trial judge: first, the failure to consider, either adequately or at all, the husband’s past and future payment of child support under s 79(4)(g) of the Act; secondly, erroneously finding the husband had been inconsistent in meeting his child support obligations; and thirdly, erroneously finding the husband voluntarily reduced his income pending determination of the proceedings.

2. The trial judge’s ultimate findings were based on several facts, which were not controversial. In particular, they were as follows:

   (a)Throughout almost all of the marriage, the husband was employed by an investment bank (at [81]);

   (b)By 2010, his salary was $400,000 per annum, with additional bonuses (at [81]);

   (c)The husband’s employment at the investment bank was terminated in September 2013, not long before the parties’ separation in March 2014, but he continued to receive some form of payment (at [86], [89], [90], [91], [126], [127], [135], [152], [160]);

   (d)Only a month later, in October 2013, the husband commenced work for a commercial firm based in the UK and was paid by commission, which commission income totalled about $68,000 net in the few months he was employed up until July 2014 (at [92], [98]);

   (e)The husband then began commission-based work with another employer, which employment apparently later ended in some acrimony, but the evidence was indistinct about the level of his income (at [93], [126], [127], [129], [133]);

   (f)In March 2015, the husband emailed the wife, telling her that, if she “insisted on going to court [in these proceedings]”, he would “cancel [his] [professional] two day roadshow” (at [137]); and

   (g)In May 2015, the husband sent an email to the wife threatening not to return to work until “interim financial support” had been resolved (at [139]). He did as he said.

3. On 27 April 2017, which was the appointed first day of trial, the husband successfully applied for the start of the trial to be delayed for some time. In the course of the adjournment application, the husband gave evidence and said:

   [HIS HONOUR]: And your occupation?

   [THE HUSBAND]: [A professional] normally; pro bono family lawyer at the moment.

   [HIS HONOUR]: Sorry, when you say [a professional] normally, who do you work for?

   [THE HUSBAND]: I’m not working at the moment. I’ve been dealing with this for the last 18 months to two years.

   (Transcript 27 April 2017, p.14 lines 10-17)

4. The trial judge’s finding that the husband voluntarily reduced his income during the pendency of the proceedings was, therefore, open. He was unemployed by choice because he was pre-occupied with the litigation.

5. Similarly, given that the husband’s child support payments were in arrears by $22,671.33 at the time of trial, it was certainly open to find that he had been inconsistent in meeting his child support obligations.

6. In the face of those valid factual findings, it was also open for the trial judge to find the husband’s future payment of child support would probably remain unreliable. Accordingly, the trial judge did adequately consider the provisions of s 79(4)(g) of the Act, so Ground 16 fails.

Ground 17

1. This ground contended the property settlement orders achieved a result under Part VIII of the Act which was “unreasonable or plainly unjust”.

2. For reasons already explained, the trial judge’s finding about the wife’s ultimate entitlement to 66 per cent of the parties’ property and superannuation was open on the evidence and not “unreasonable or plainly unjust” (House v The King (1936) 55 CLR 499 at 504-505).

3. However, the husband’s submissions in support of this ground went further and contended the orders made by the trial judge did not ensure that the husband received his 34 per cent share of the property. He contended the orders required the transfer of trust assets to the wife, the effect of which was to leave him with less than 34 per cent of the property. The assets which he alleged were transferred to the wife were a parcel of real property and “substantial tax losses”.

4. The husband’s submission cannot be accepted for several reasons.

5. First, the trial judge’s orders did not make any provision for the transfer to the wife of any trust assets, as was wrongly alleged. Rather, subject to the transfer of some trust assets to him (Order 2) and the wife’s payment of a cash sum to him (Order 3), the orders directed the husband to transfer to the wife all of his interest in the trustee corporation and the trust (Order 1). Whatever assets remained within the trust were the legal property of the corporate trustee. The wife did not acquire direct proprietary interest in any trust assets, though she did acquire control of the corporate trustee.

6. Secondly, it will be remembered that the parties expressly agreed on the value of the trust during the trial in 2017 (at [235(b)]), so any complaint about the current value of the trust assets is not to the point. As is obvious, the value of assets fluctuates over time – sometimes up and sometimes down.

7. Thirdly, the husband submitted he would seek leave to adduce fresh evidence in the appeal about the sale of the parcel of real property, which he did by filing his Application in an Appeal on 7 May 2019. The only evidence he sought to lead about the subject real property was that it has been sold. He did not know the sale price so, even if leave was granted for the husband to adduce that limited evidence in the appeal, it would not prove the point he sought to make in this ground of appeal.

8. Fourthly, it remains entirely unclear to us how the alleged “substantial tax losses” incurred by the trust could be an asset in the wife’s hands and, in any event, the trial judge found the trust’s liabilities were only $9,251 (at [235(b)]).

9. Ground 17 fails.

Ground 18

1. This final ground complained that the trial judge’s reasons for the property settlement orders were inadequate because it is impossible to discern the path by which the result was reached.

2. In support of the ground, the husband’s written submissions simply stated he “repeats submissions earlier made herein”, which was entirely unhelpful. Suffice to say, the trial judge identified and explained his conclusions about the parties’ property and superannuation, explained findings about their respective contribution-based entitlements, explained the extra adjustment made in the wife’s favour, and explained how their overall proportional entitlements would be achieved by the division of their property. The reasons were adequate and so Ground 18 fails.

Conclusion and costs

1. The appeal is dismissed for lack of merit.

2. As set out at the commencement of these reasons, the trial judge determined to dismiss the wife’s child support applications (at [199]-[203]), but omitted to make any order to carry that determination into effect. We shall now make an order to achieve that outcome, as s 94(2) of the Act permits. The parties agreed we could and should do so.

3. In exercise of the same power, an order will also be made to correct the mathematical error reflected in Order 3.1 made by the trial judge.

4. The wife sought her costs of the appeal from the husband if the appeal failed, which order the husband opposed.

5. We are satisfied a costs order is warranted, but not in the quantum sought by the wife. There are three principal reasons for that conclusion. First, the grounds of appeal which challenged the parenting orders were wholly unsuccessful (s 117(2A)(e)). Secondly, although the grounds of appeal pertaining to the property settlement orders revealed two mathematical errors, one of which required correction, the remainder of those grounds were devoid of any merit (s 117(2A)(g)). Thirdly, given the wife’s concession of the now corrected mathematical error in her summary of argument, which was filed and served several weeks in advance of the appeal, it was open to the husband to approach the trial judge to seek its correction under the slip rule and thereby avoid the need to prosecute the appeal (s 117(2A)(c)).

6. The husband resisted any costs order only on the basis that his poor financial circumstances reasonably precluded it (s 117(2A)(a)), but we are not satisfied his financial position shields him against a costs order. We were informed he is now re-employed, though perhaps not with the high level of salary he previously enjoyed. Nevertheless, he was able to pay $66,073 to his own counsel to prepare and conduct the appeal for him. We were not told how he raised those funds but we are entitled to infer he did so from his own income and assets. In addition, as a result of our correction of the mathematical error inherent in Order 3.1 made by the trial judge, the wife will be obliged to pay the husband an extra $45,767.

7. We will order the husband to pay 75 per cent of the wife’s costs of the appeal, calculated on an ordinary party/party basis, in the sum agreed or assessed. We were told the wife has already paid the husband the sum of $94,246 as originally ordered under Order 3.1 by the trial judge so we will make an additional order enabling the wife to hold back the extra $45,767 payable by her to the husband as security for his payment of her costs as ordered.

I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Watts & Austin JJ) delivered on 8 July 2019.

Associate:

Date: 8 July 2019