GAO & WANG
[2016] FamCAFC 183
•12 September 2016
FAMILY COURT OF AUSTRALIA
| GAO & WANG | [2016] FamCAFC 183 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – DE FACTO – Where the primary judge made orders which gave the husband significantly more of the parties’ assets than the wife – Where the wife appealed those orders – Discussion of Stanford v Stanford (2012) 247 CLR 108 – Challenge to the primary judge’s finding that the wife had gambled away a significant portion of the parties’ assets – Challenge to the primary judge’s exercise of discretion in altering the parties’ interests in the property – Challenge to the weight attributed by the primary judge to the wife’s admissions about making a false financial statement – Where the wife submitted that the primary judge failed to take into account under s 90SF(3)(c) and s 90SF(3)(l) the wife’s future care of the parties’ children – Where there was no evidence that the children will be returned to the wife’s care – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent was self-represented and did not incur any costs – No order as to costs. |
| Family Law Act 1975 (Cth) ss 79, 79(4), 90SF(3)(c), 90SF(3)(l), 90SM, 90SM(3) |
Bennett and Bennett (1991) FLC 92-191
Gould and Gould (2007) FLC 93-333
Gronow v Gronow (1979) 144 CLR 513
Kannis and Kannis (2003) FLC 93-135
Norbis v Norbis (1986) 161 CLR 513
Oriolo & Oriolo (1985) FLC 91-653
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Weir and Weir (1993) FLC 92-338
| APPELLANT: | Ms Gao |
| RESPONDENT: | Mr Wang |
| FILE NUMBER: | MLC | 1846 | of | 2014 |
| APPEAL NUMBER: | SOA | 54 | of | 2015 |
| DATE DELIVERED:: | 12 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Aldridge & Kent JJ |
| HEARING DATE: | 1 March 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 July 2015 |
| LOWER COURT MNC: | [2015] FCCA 1861 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Matta |
| SOLICITOR FOR THE APPELLANT: | Coote Family Lawyers |
| THE RESPONDENT: | In person with an interpreter |
Orders
The appeal be dismissed.
There be no order as to costs.
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 Gao & Wang 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 MELBOURNE |
Appeal Number: SOA 54 of 2015
File Number: MLC 1846 of 2014
| Ms Gao |
Appellant
And
| Mr Wang |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 July 2015 Judge Riley made a series of orders dividing the property of Mr Wang (“the husband”) and Ms Gao (“the wife”) pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). The effect of the orders is that the husband received significantly more of the assets available at the time of the hearing than the wife. Central to the primary judge’s reasons for the orders was her Honour’s finding that the wife had gambled away, or at least lost the benefit of, $1.25 million of the parties’ assets since separation.
The wife appeals against the making of those orders and seeks an order that the matter be remitted for a re-hearing. The central plank in that appeal is the challenge to the finding as to loss of the $1.25 million.
In order to understand the appeal some background is necessary.
The parties were in a de facto relationship from 1997 until 21 July 2010. They had three children who were born in 1998, 2000 and 2003.
For the first three years of the relationship the husband worked as a tradesman. Later he ran several businesses. The primary judge found that, at times, the wife worked part time in those businesses. Throughout the relationship the parties also bought and sold a number of properties.
In 2004 the husband purchased a business in a town in north-western Victoria and the family moved there. That business was sold in 2008 and in 2009 the husband established a similar business in a town in South Australia. At some point the wife and children returned to Melbourne, but it is not clear whether they did so in 2008 or 2010.
In 2010 the husband sold the business in South Australia and returned to Melbourne. The proceeds of sale were $100 000. It was common ground between the parties that all of those funds were subsequently lost through gambling. The wife contended that both parties were responsible for the loss. The husband asserted that the wife was solely responsible. The primary judge preferred the husband’s evidence on this issue.
In late 2009-2010 the husband developed a business at Suburb D, spending some $155 000 on the fit-out and $22 000 on equipment. The source of those funds was never identified. The business opened at about the time the parties separated. In May 2013 the husband sold it for $20 000.
After separation, the children lived with the wife until October 2012, when she took them to live with the husband. On 8 January 2013 the husband returned the children to the wife’s residence. She was not at home, but he left the children there anyway.
After some hours, the children returned to the husband’s residence where he refused to accept them. The children took themselves to the local police station and were later taken into the care of the Department of Human Services (“the Department”). On 8 February 2013, a Custody to the Secretary Order for a period of 12 months was made. A further order was later made and was due to expire in October 2015.
Since separation each party has commenced a new relationship.
At the time of the hearing the parties held the following property (after deduction of mortgages):
The proceeds of the sale of a house in NW Victoria
Held jointly
$389 762
House in Suburb E
Held by the wife
$430 000
House A in Suburb F
Held by the husband
$171 000
House in Suburb D
Held by the husband
$85 000
Motor vehicle
Held by the husband
$20 000
House B in Suburb F
Held by the Wang Gao Superannuation Fund
$550 000
As a result of the orders the husband received the two properties owned by him and the car. The parties were required to use the funds in the joint bank account to repay amounts that they had taken from the superannuation fund as well as any penalties that might be imposed for them having done so. The balance was to be divided with the husband to receive 75 per cent and the wife 25 per cent. The property owned by the Wang Gao Superannuation Fund was to be sold and that fund divided equally between the parties’ own superannuation funds. Finally, the wife’s property at Suburb E was to be sold and the proceeds to be divided so that the wife received 25 per cent and the husband 75 per cent.
Before turning to the appeal we make the following observations.
The hearing took eight days. The parties only had limited assistance from lawyers and, for the most part, appeared for themselves. The evidence adduced by the parties was grossly inadequate. Neither party gave any semblance of proper disclosure. This failure caused the primary judge to spend at least two days of the hearing simply trying to ascertain the property the subject of the proceedings and the parties’ contentions as to their contributions to that property and how it should be divided. These efforts resulted in the agreed list of assets set out above. Her Honour described the conduct of the hearing as “extremely difficult” (at [6]).
The law clearly and firmly obliges parties to property proceedings to make full and frank disclosure of all material facts: Oriolo & Oriolo (1985) FLC 91-653; Gould and Gould (2007) FLC 93-333; Kannis and Kannis (2003) FLC 93-135. In Weir and Weir (1993) FLC 92-338 the Court said at 79,593:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
Having failed to undertake proper disclosure, neither party can complain about the primary judge taking a robust approach to the division of their property.
The primary judge approached the task of dividing the parties’ assets on an asset by asset basis and not by constructing and dividing a pool, or pools, of assets. That accorded with the wishes of the parties who each sought a division on that basis, albeit to different effect.
The primary judge also relied on her understanding of Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) as to the approach to be taken to applications under s 90SM. That section mirrors s 79 (which was the subject of discussion in Stanford) but applies to de facto relationships.
After quoting extensively from Stanford her Honour said:
22.Following Stanford, it is no longer appropriate to think of “contribution based entitlements” or the “adjustment” based on future factors. Rather, the court is required to take into account all the relevant matters and then determine what order, if any, is just and equitable. It is also no longer appropriate to think of a pool of assets.
23.Additionally, the High Court emphasised that marriage, at common law, does not create a community of ownership: [39]. The rights a person might have in his or her partner’s property and income arise from the Act, notably s.90SM(4) and s.90SF(1) respectively.
…
25.In other words, there is not an absolute right to share equally in the income of a partner. Rather, such a right only arises where a person is not able to adequately support himself or herself and the other party is reasonably able to support the first-mentioned party. Consequently, there is no obligation to contribute all of one’s earnings to the matrimonial endeavour. However, if one party to a marriage spends a substantial part of his or her income on extraneous pursuits, it will obviously have an effect on that person’s contributions to the parties’ assets.
…
32.However, following Stanford, it is no longer appropriate to think of “contribution based entitlements” or the “adjustment” based on future factors. Rather, the court is required to take into account all the relevant matters, consider the matter holistically, and then determine what order, if any, is just and equitable.
(Footnote omitted)
Whilst none of the challenges in this appeal are directed to these obiter statements discussing Stanford, and it is thus not strictly necessary for us to engage with those statements, we consider it desirable to engage with them at least briefly in case it otherwise be thought that those obiter statements have our endorsement.
In Stanford the High Court emphasised (at [35]) that the requirements of s 79(2) (satisfaction that in all the circumstances it is just and equitable to make an order) and the requirements of s 79(4) (the matters that must be taken into account in considering what order (if any) should be made) are not to be conflated.
The High Court thus emphasised the distinction to be maintained between the Court considering the just and equitable requirement in s 79(2) and the process of assessment required by s 79(4). When it is appreciated that “contribution‑based entitlements” and “adjustment for future factors”, as referred to by the primary judge, are references to the requirements of s 79(4) and not s 79(2), the primary judge can be seen by these statements to do that which the High Court eschewed: namely, to conflate the requirements of the two sub-sections. Put another way, the primary judge appears to have mistakenly understood that the principles the High Court discussed as to the manner in which s 79(2) is to be considered and applied are relevant to the consideration of the matters that must be taken into account under s 79(4). Such an approach conflicts with, rather than conforms to, the principles expressed in Stanford.
Similarly, the first and fundamental point of consideration of the s 79(2) just and equitable requirement of identifying the existing legal and equitable interests according to ordinary common law and equitable principles (as referred to in Stanford at [37]) is separate and distinct from the process of assessing s 79(4) factors. This assessment may be approached by different accepted methods. For example, compiling a schedule or “pool” of property items which may well include notional items (for example paid legal fees) is simply a method in the s 79(4) assessment process, as distinct from the first point of consideration of the s 79(2) requirement referred to. In the context in which it is made, the primary judge’s statement that “it is no longer appropriate to think of a pool of assets”, thus bespeaks a conflation of the separate requirements of the two sub‑sections.
Whilst we do not endorse the primary judge’s stated interpretation of the principles discussed in Stanford, consistent with the fact that those obiter statements do not form the subject of any challenge in this appeal, we do not see them as productive of any error on the part of the primary judge in the manner in which the primary judge actually approached and determined this case.
The appeal
The Notice of Appeal and Summary of Argument were drawn by the wife who was then acting for herself. Shortly before the appeal was heard she engaged lawyers who prepared a new Summary of Argument which abandoned some grounds of appeal and recast others.
The husband, who appeared for himself, had received the new Summary of Argument only the evening before the appeal was heard. After some discussion the Court granted the wife leave to rely on the summary. In order to overcome any disadvantage to the husband from that course, orders were made for a transcript of the hearing to be provided to the husband by the court and permitting him to file written submissions in reply. No submissions were received.
We shall deal with the grounds as they appear in the amended Summary of Argument.
The learned primary judge erred in finding that the wife lost, gambled or had hidden $1 250 000 in circumstances where such finding was not supported by the evidence and/or the primary judge failed to take into account a relevant consideration by failing to deduct the wife’s living expenses
The wife submitted that the primary judge erred in finding that she had gambled away or hidden money and, in any event, also erred in failing to have regard to the reasonable living expenses that she had incurred for herself and her children.
The primary judge reached the following conclusions:
153. In broad summary, since separation, the wife:
a)borrowed $600,000 against [the house in Suburb E] and that debt has increased to $670,000;
b)received about $269,000 repaid by [the husband’s aunt];
c)received about $300,000 repaid by [the husband’s uncle];
d)received about $15,000 borrowed from the husband;
e)received about $29,000, being the interest on the loan to the husband’s cousin; and
f)received about $37,000 rent for [House B in Suburb F].
154.The wife did not claim to have retained any of that money. I assume that she has lost it gambling or has hidden it somewhere for her own use. It totals $1,250,000. If the $70,000 interest owing to the Westpac Bank is also included, the total is $1,320,000.
In coming to those conclusions her Honour noted that the wife herself said that since separation she had lost some $200 000 or $300 000 gambling. The primary judge recorded that the wife gave no evidence of having any funds in cash or at bank at the time of the hearing.
It was not controversial that the wife had borrowed $600 000 on 1 April 2012. The primary judge recorded the wife’s explanation as to the fate of those funds as follows (at [113]):
…She said that she has used that money as follows:
a)$368,000 was paid to her mother by 5 June 2012 as repayment of loans;
b)$200,000 was lent in April 2012 to a cousin of the husband, who she was unable to name; and
c)the balance was spent on lawyers and living expenses.
Pausing there for a moment, we observe that had the wife’s evidence been accepted, this would have meant she spent no more than $32 000 on a lawyer and living expenses from the funds that she had borrowed. The wife’s evidence, however, was not accepted. No challenge was made to that finding.
It was not controversial that the parties had lent significant sums ($269 000 and $300 000) to the husband’s aunt and also to his uncle. The evidence of the aunt and the uncle, which was denied by the wife, was that, over time, they had repaid those loans to her. Their evidence was accepted by the primary judge, which led to the finding that the wife had either spent, gambled away or hidden the money that she had received from the husband’s aunt and uncle.
The primary judge was thus faced with an admission of significant gambling by the wife and the unexplained disappearance of very large sums of money. It was an easy and obvious inference for her Honour to draw that the wife had either lost funds of over $1.25 million, probably by using them for gambling, or had retained but hidden them. Those findings are supported by documents to which we shall refer shortly.
We turn to the issue of reasonable living expenses.
The parties separated in July 2010. The children remained in the wife’s care until late 2012. The primary judge recorded:
2.…However, on 8 January 2013, the children were taken into the custody of the Secretary of the Department of Human Services (“DHS”). DHS records, which I accept as accurate, indicated that the wife was not looking after the children because she was often busy gambling. She asked the husband to look after them for a time, which he did.
3.However, the DHS records indicated that the husband then returned the children to the wife’s house and left them there, although she was not at home. The children then took a taxi to the husband’s home. He told them he did not want them and closed the door on them. The children then took to a taxi to the [Suburb D] Police Station. The police were unable to contact the wife. The husband told the police he did not want the children.
It can therefore be accepted that the wife was obliged to and did support herself from the time of separation until the hearing and largely supported the children for some two and a half years (the primary judge recorded that the husband paid minimal child support).
Other than for the reference to the sum of $32 000 referred to earlier, the wife gave no evidence of her living expenses or those of the children from the time of separation until the time of the trial.
The primary judge referred to the wife’s evidence that, since separation, she had lived on Centrelink benefits. The wife also conceded that she had not paid the mortgage instalments on the $600 000 borrowed and that the loan had increased to $670 000.
In addition to the Centrelink benefits, between October 2010 and August 2012 the wife received $36 786.52 in rent from one of the parties’ properties. From August 2012 the husband received the rent.
We would also infer, given the extensive gambling to which she admitted, that it is likely that the wife, from time to time, had some winnings available to her.
The primary judge therefore had evidence before her that the wife had some sources of income. The primary judge had no evidence of the wife’s or children’s reasonable living expenses, as the wife’s evidence was entirely silent on this issue. Speculation is no substitute for evidence. The evidence did not permit the primary judge to make a finding that the living expenses of the wife exceeded her Centrelink benefits, rent received and winnings. Even if they did, the evidence did not enable a finding to be made as to by how much her expenses exceeded her income.
Therefore it was entirely open to her Honour to find that the wife had received the benefit of $1 250 000 and had either gambled it away or kept it hidden. In either way it was a benefit to be taken into account when adjusting the parties’ interests in the property.
The wife submitted that her Honour’s finding at [115] that “she has either gambled away the money, or used it for her own purposes or has it hidden somewhere” cannot be reconciled with the later finding at [154] that she “has lost it gambling or has hidden it somewhere for her own use”. Her Honour’s reasons must be read as a whole. We do not take her Honour’s final comment to be rejection of a possibility that the wife had spent some of the funds on supporting herself and the children. The phrase “for her own use” admits of that possibility. The findings are, however, recognition that there was no evidence as to the wife’s actual living expenses from the person who was in a position to call such evidence. Thus, on any view, the loss of $1 250 000 remained unexplained.
No error has been shown on the part of the primary judge and this ground does not succeed.
The learned primary judge erred in the exercise of her discretion and/or failing to provide adequate reasons as to how she arrived at the alteration of the parties’ legal and equitable interests which was manifestly excessive and contrary to the preponderance of the evidence
The wife submits that her Honour erred in the exercise of discretion as to the division of the assets in two ways. The first was that her Honour gave too much weight to the wife’s use of $1 250 000 of the parties’ funds after the separation. It was accepted by counsel for the wife that this aspect of the ground could only succeed if the first ground, which challenged the finding the primary judge made about the wife’s gambling, was established. As that ground was not established, it is not necessary to address this point.
The second aspect of the ground was that, in any event, the division of property arrived at by the primary judge was so generous to the husband as to establish manifest error.
It is well accepted that challenges as to weight and to the exercise of a discretion face a high bar: Gronow v Gronow (1979) 144 CLR 513 at 519; Norbis v Norbis (1986) 161 CLR 513.
The primary judge made the following findings:
178.This matter is very difficult, not least because the parties have not provided full and frank disclosure about their financial history and present financial circumstances.
179.In this case, the husband contributed a little more at the outset. However, the significance of his somewhat greater contribution diminished over time. During the relationship, the contributions of the parties were roughly equal, except that the wife lost gambling at least $100,000, being the proceeds of [the business in South Australia]. Since the relationship ended, the husband has borrowed about $454,000 against [house A in Suburb F], without adequate explanation. He may have lost, hidden or spent that amount. Since the relationship ended, the wife has lost, hidden, incurred unnecessarily or spent about $1,320,000. Consequently, I consider that the husband’s post separation contributions have been significantly greater than the wife’s. This is especially so as neither party is presently caring for their children.
180.The husband is able to work and earn about $50,000 to $60,000 per year. I also consider the wife to be able to earn a modest income. The husband has a child from his new relationship to support. Neither party is supporting the children from their own relationship, who are in foster care. The wife has a husband whose financial circumstances she did not disclose. She is living with him in [Suburb G]. In the absence of adequate disclosure of the financial circumstances of her new relationship, I consider that the future needs of both parties are about the same.
181.Viewing the matter holistically, I consider that the following arrangements are just and equitable.
As we have seen the primary judge eschewed the use of pools, the identification of overall contribution based entitlements and adjustments pursuant to s 90SM(3). There is no appeal against that approach and, indeed, the primary judge was invited to follow an asset by asset approach.
It is true, as the wife points out, that the orders provide for the husband to receive some 80 per cent of the value of the properties held by the parties, 75 per cent of the net joint proceeds of sale and 50 per cent of the superannuation.
At the time of the hearing the parties had the following assets:
Joint proceeds
House in NW Victoria
$389 762
Wife
House in Suburb E $1 100 000
Less mortgage of $670 000$430 000
Husband
House A in Suburb F $625 000
Less mortgage of $454 000House in Suburb D $385 000
Less mortgage $300 000Motor vehicle
$171 000
$85 000$20 000
Total:
$1 095 762
Superannuation
House B in Suburb F
$550 000
TOTAL ASSETS:
$1 645 762
In accordance with the orders the following division results:
Wife to receive
25% of House A in Suburb E ($430 000)
25% of NW Victoria property ($389 762)
18.7%:
$107 500
$97 440
$204 940
Husband to receive
House in Suburb D
House A in Suburb F
75% of House in Suburb E
75% of NW Victoria property
Motor vehicle
81.3%:
$85 000
$171 000
$322 500
$292 322
$20 000
$890 822
Superannuation
Superannuation
$550 000
Wife is to repay
$37 000
Husband is to repay
$20 100
New fund
$607 100
Each to receive
$303 550
However, the repayments to the superannuation fund must be deducted from the parties’ interest in the joint proceeds. Thus the assets received by the parties under the orders are:
Total Assets
Wife
$167 940 +$303 550
=$471 490 (28.65%)
Husband
$870 722 + $303 550
=$1 174 272 (71.35%)
Thus the orders provided for the wife to receive approximately 29 per cent of the assets available at the time of the hearing and the husband 71 per cent. That division has to be seen in the light of the primary judge’s findings as to how the parties have dealt with the assets since separation. For convenience we shall repeat them:
152.That is, the husband has received about $140,900 since separation from the parties’ assets. He has paid about $40,500 for expenses associated with the parties’ assets. He has borrowed $454,296.20 against [House A in Suburb F]. He has paid about $20,000 to his new wife’s father. He has acquired an asset with equity of about $85,000.
153. In broad summary, since separation, the wife:
a)borrowed $600,000 against [House in Suburb E] and that debt has increased to $670,000;
b)received about $269,000 repaid by [husband’s aunt];
c)received about $300,000 repaid by [husband’s uncle];
d)received about $15,000 borrowed from the husband;
e)received about $29,000, being the interest on the loan to the husband’s cousin; and
f)received about $37,000 rent for [House B in Suburb F].
154.The wife did not claim to have retained any of that money. I assume that she has lost it gambling or has hidden it somewhere for her own use. It totals $1,250,000. If the $70,000 interest owing to the Westpac Bank is also included, the total is $1,320,000.
It is to be observed that the amount lost or hidden by the wife is some 80 per cent of the assets available for distribution at the time of the hearing.
Clearly the primary judge has had significant regard to the very large sum of money that the wife had the use of since separation without adequate explanation by her. We are quite satisfied that her Honour took into account the findings to which we have just referred in coming to the division of property reflected in the orders that were made.
It is to be recalled that the primary judge was hampered in her approach to this matter by the inadequate evidence called and inadequate disclosure given by the parties. The evidence that was before her Honour, however, demonstrated that the wife had received the benefit of a significant part of the parties’ assets prior to the separation.
The orders that her Honour made were open to her on the evidence.
It is well established that a court is obliged to give adequate reasons for its decision: Bennett and Bennett (1991) FLC 92-191. It must be possible to “identify the basis of the judge’s decision and the extent to which the parties’ arguments had been understood and accepted”: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59].
We consider that the primary judge has clearly identified the reasons for the orders that she made consistent with her asset by asset approach. It is true that her Honour does not set forth an arithmetical calculation that led to the adjustment of interests in the individual assets, but we do not consider that her Honour was bound to do so. We recall here the words of Coleman J in Steinbrenner & Steinbrenner [2008] FamCAFC 193:
234.Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case. In some cases, the “leap” is so great, and so unheralded by the discussion which precedes it as to render the reasoning process defective….
In the present case the alteration of property was heralded by a detailed discussion in which her Honour’s reasoning was made plain. We are satisfied that the reasons are adequate. It follows that this ground is not established.
The learned primary judge erred in the exercise of discretion by placing excessive weight on the wife’s admission in relation to a letter written by the wife on 27 February 2012 to extend to the totality of the wife’s evidence
In 2012 the wife provided the Westpac Banking Corporation with a letter dated 27 February 2012. The letter was in support of her application for an advance of $600 000. The letter falsely stated that the wife had been employed by a company in China since October 2007 and had earned AUD$95 000 per year. The wife admitted during the first instance hearing that she had never worked for that company.
The submission is that the primary judge gave excessive weight to that letter which led her, at times, to prefer the husband’s evidence. It was also submitted that the primary judge misinterpreted some of the wife’s evidence. It is appropriate at this stage to note that counsel for the wife accepted that the only significant issue that turned on the primary judge’s preference of the husband’s evidence over that of the wife was the fate of the proceeds of sale of the shop in South Australia. Those proceeds were $100 000. The wife said that both she and the husband gambled that sum away whereas the husband said it was lost entirely by the wife.
The primary judge’s findings were:
11.Neither party appeared in the witness box to be entirely reliable. The husband sometimes gave one version of the facts but, after he was presented with documentary evidence of them, he “remembered” another version. The wife basically told the court that she would admit nothing unless presented with documentary evidence.
12.Overall, the matters alleged against the husband were not as clear and unequivocal as the wife’s dishonesty in giving the letter dated 27 February 2012 to the Westpac Bank.
13.In any event, because of the wife’s dishonesty in relation to that letter, where there is a difference in the testimony of the husband and the wife, I often prefer the husband’s evidence, but sometimes I simply prefer the evidence that strikes me as more plausible or find one party or the other more credible on a particular issue.
When the wife provided the letter to the bank she engaged in an act of significant dishonesty. Quite properly the primary judge was entitled to give that dishonesty significant weight in assessing the credibility of the wife’s evidence.
However, the primary judge’s finding as to the husband’s evidence about the fate of the $100 000 did not rest solely on general credit findings. The husband’s unchallenged evidence was that when he was working in the business in South Australia, the wife was gambling to such an extent that she was frequently away from home. His evidence was that on at least 10 occasions he had to call the police to check on the welfare of the children and that this ultimately led to the involvement of the Department. His evidence was corroborated, to a degree, by the Department’s records.
Therefore the finding that the wife alone was responsible for losing the sum of $100 000 was open to the primary judge.
As to the second aspect of the ground, it was submitted that the primary judge unfairly found that the wife would “admit nothing unless provided with documentary evidence”. It is necessary then to turn to the evidence.
In the course of cross examination, the wife was asked if she believed that the husband had paid $3000 to Westfield. The wife answered, “only believing hard evidence”.
In re-examination the wife said:
THE INTERPRETER (RESPONDENT): Okay. Only thing I wanted to say is I do not say that I need everything in hard evidence. The reason I did that is because I do not trust this person. Okay. It shows from his first affidavit, it shows that everything he is doing is all planned, well planned.
HER HONOUR: Okay. Look, it doesn’t help me to have general statements like that. What I need is specific evidence and if you don’t have anything like that to tell me then you shouldn’t say anything.
The primary judge was not bound to accept the evidence given by the wife in re-examination. However, even if the primary judge did overstate the wife’s position we do not see how any such overstatement was material to the finding of credibility of the parties, especially in relation to the $100 000. On that issue neither party relied on any records or any “hard evidence”.
We are not satisfied that any error on the part of the primary judge has been established.
This ground does not succeed.
The learned primary judge erred by failing to take into account and/or accept the wife’s evidence that an adjustment in her favour was necessary to care for the parties’ children and/or protect the wife who wished to continue her role as a parent pursuant to s 90SF(3)(c) and s 90SF(3)(l) of the Family Law Act 1975
This ground is based upon the premise that, contrary to the findings of the primary judge, the children were shortly to be returned to the care of the wife. It was submitted therefore that an adjustment in the wife’s favour ought to have been made under s 90SF(3)(c) and s 90SF(3)(l) to take account of her care of the children. It was also submitted that it was not open to the primary judge to find that the children would not be returned to the wife’s care because the husband had not put this to the wife during cross examination.
The primary judge found:
5.The current order giving custody of the children to the Secretary expires in October 2015. At that time, the children’s ages will range from 17 to 12. The wife maintains that the children will be returned to her care in October 2015. However, there is no objective evidence in support of that assertion and I do not accept the wife’s claims in that regard. I proceed on the basis that the children will not be returned to the wife’s care in October this year.
…
159.The children of the relationship are currently in the care of the Secretary of DHS. The mother may have applied to the Children’s Court to get them back but has not been successful to date. The current order expires in October 2015. There is no reason to believe that the children will be returned to the wife in October this year or ever. To conclude otherwise would be entirely speculative.
In a Confidential Court Report dated 12 April 2013 officers of the Department said:
In the interests of the safety and well-being of [the children], it is assessed that the application to revoke the protection order should be struck out for the following reasons:-
·first the children are on a custody to the Secretary order until 07/02/14
·they are well settled in their kinship placement which meets their needs for nurturing care, safety, security and stability
·they are settled in their schools
·it is assessed that the mother needs to undertake assessment for treatment in relation to her mental health and gambling addiction, and education around children and their development needs, before reunification of the children to her primary care, can be considered.
(As per the original)
The primary judge recorded that the children were under a protection order which was in force until October 2015. The only available inference therefore is that the wife’s application to revoke the order, which application she made in 2013, did not succeed. It also follows that in 2014 the order was extended until October 2015.
The report continued:
DoHS assesses that it would be beneficial towards assisting the mother in obtaining her goal of resumption of the primary care of the children, if the following conditions are added to the current CSO:-
·Mother must undertake a psychiatric/psychological assessment of her mental health, and must commit to following through with recommendations for treatment/therapy from such an assessment. Mother must allow reports around engagement and progress to be given to DoHS.
·Mother must undertake an assessment for gambling addiction, and must commit to following through with recommendations for treatment/therapy on such an assessment. Mother must allow reports around engagement and progress to be given to DoHS.
·Mother must undertake a program of education around children’s developmental needs and parenting skills, to enable her to develop age appropriate parenting strategies, and to foster a more positive relationship with her children. Mother must allow reports around engagement and progress to be given to DoHS.
(As per the original)
The wife did not give any evidence as to whether she had agreed to comply with the conditions sought to be imposed by the Department or whether she was attempting to comply with them. In the absence of such evidence, there was no obligation on the husband to suggest that she was not doing so.
More importantly, the primary judge could only act on the evidence that was before her. Her Honour’s findings accurately reflect that evidence. There was no evidence upon which her Honour could find that the care of the children would shortly return to the mother. This ground has not been made out.
It follows that the appeal will be dismissed.
Costs
The husband appeared for himself but sought an order for costs nonetheless. After some discussion he accepted that he had not incurred any costs and that if the appeal was dismissed there should be no order as to costs. We will make that order.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Aldridge & Kent JJ) delivered on 12 September 2016.
Associate:
Date: 12 September 2016
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