Gillespie & Gillespie
[2024] FedCFamC1A 88
•22 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) APPELLATE JURISDICTION
Gillespie & Gillespie [2024] FedCFamC1A 88
Appeal from: Gillespie & Gillespie [2023] FedCFamC1F 1128 Appeal number: NAA 18 of 2024 File number: MLC 8068 of 2022 Judgment of: ALDRIDGE, CAREW & CAMPTON JJ Date of judgment: 22 May 2024 Catchwords: FAMILY LAW – APPEAL – CHILDREN – Whether the primary judge failed to take relevant considerations into account in considering the appellant’s proposal to relocate with the children – Adequacy of reasons – Where the primary judge correctly identified the applicable legislative framework and principles – Where the primary judge gave due consideration to the parties’ competing proposals – No appellable error identified – Appeal dismissed.
FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge failed to provide adequate reasons for not including a personal debt of the appellant to her parents as a liability in the balance sheet – Failure to explain why the debt was not included as a liability does not amount to appellable error – Appeal dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 65D, 65DAA, 65DAC, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
French & Fetala [2014] FamCAFC 57
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Prince and Prince (1984) FLC 91-501; [1984] FamCA 7
Tibb & Sheean (2018) 58 FamLR 351; [2018] FamCAFC 142Number of paragraphs: 63 Date of hearing: 3 May 2024 Place: Heard in Melbourne, delivered in Sydney Counsel for the Appellant: Mr Dickson KC Solicitor for the Appellant: Middlemis & Associates Lawyers Counsel for the Respondent: Mr North SC Solicitor for the Respondent: Errard Legal Independent Children’s Lawyer: Did not participate ORDER
NAA 18 of 2024
MLC 8068 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS GILLESPIE
Appellant
AND: MR GILLESPIE
Respondent
ORDER MADE BY:
ALDRIDGE, CAREW & CAMPTON JJ
DATE OF ORDER:
22 MAY 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the respondent’s costs of and incidental to the appeal fixed in the sum of $50,419.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillespie & Gillespie has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, CAREW & CAMPTON JJ:
On 22 December 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made an order that: two children eventually live in a week about arrangement alternating between their parents; restrained the appellant from moving with the children more than 50 kilometres from the children’s school without prior written consent of the respondent; and divided the net property pool of about $9.2 million in the proportions 62.5/37.5 in favour of the respondent.
The gravamen of the appeal against the parenting order is that the primary judge failed to consider the advantages of the appellant’s proposal to live with the children in another location and the disadvantages of her remaining with the children in her current location, or alternatively failed to give adequate reasons as to those considerations.
The gravamen of the appeal against the order made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) is that the primary judge did not provide adequate reasons for failing to include a personal debt of the appellant to her parents as a liability in the balance sheet of assets and liabilities of the parties.
For the reasons which follow, the appeal will be dismissed.
To understand the appeal, it will be helpful to provide some background.
BACKGROUND
At the time of trial, which was heard over two days in August 2023, the appellant was 45 years of age, and the respondent was 61 years of age. The parties were a married couple who cohabitated for approximately 10 years before separating on 25 June 2022 when the respondent left the family home at Suburb B in regional Victoria. They divorced in late 2023.
There are two children of the marriage, namely, Y, aged nine, and Z, aged seven (“the children”). At trial, the parents agreed that they should have equal shared parental responsibility and the primary judge was satisfied that an order for equal shared parental responsibility was in the children’s best interests. Accordingly, despite their history of conflict, the parents are required to make decisions about ‘major long-term issues’ jointly. ‘Major long-term issues’ are defined by s 4(1) of the Act, and s 65DAC requires parties with shared parental responsibility to make such decisions jointly.
Additionally, the parties each have adult children from their respective previous relationships. The appellant has twins aged 22 years. The respondent has three children, aged 24, 23, and 18 years respectively. At the time of trial, the respondent was estranged from his youngest child, X, who lived with the appellant and the children until she moved to City C in January 2023 to complete her schooling at D School.
The appellant had purchased a home in Town E, about two and a half hours’ drive north of Suburb B, in which she proposed to live with the children and X. The appellant proposed that the children attend D School and spend alternate weekends from Friday to Sunday and half the school holidays with the respondent.
At the time of trial, the children were living with the appellant in the former matrimonial home in Suburb B. It was common ground the appellant would retain the home as part of her property settlement (although the appellant eschewed the prospect of continuing to live in that home under any circumstances and proposed to sell it). The children were attending a local school in Town F, a short distance from Suburb B.
The respondent was living on a farm at Suburb G, also in regional Victoria and about 45 minutes’ drive away from the appellant at Suburb B, or about 60 kilometres to the north of Suburb B. City C is about two hours and 20 minutes’ drive from Suburb G, or about 180 kilometres.
The respondent was spending time with the children each alternate weekend from Friday afternoon until Monday morning and each Wednesday from after school until 7.00 pm.
The respondent opposed the children’s relocation and proposed that his time with them increase over a period to alternating weeks.
The respondent had been a farmer for many years but contended “if orders are made for him to spend more time with the children, as he seeks, he would employ assistance on the farm and could reduce his working hours, or even retire early, to enable him to spend time with and care for them” (at [58]).
At the time of trial, the appellant was working in City C. The appellant was working two variable shifts over five days; commencing at 7.30 am and finishing at 3.30 pm on one shift; and commencing at 10.00 am and finishing at 6.00 pm on the other shift. City C is about a three hour drive from Suburb B. Depending upon the shift the appellant was working, she left home between 4.30 am and 6.30 am and returned home between 6.30 pm and 9.00 pm. The appellant had commenced her employment in City C in January 2023. Shortly before trial, the appellant’s hours of employment had been reduced by 25 per cent.
Prior to obtaining her employment in City C, the appellant was employed in three part-time positions in Town F which involved her working over five, or up to seven, days per week.
GENERAL APPEAL PRINCIPLES[1]
[1] House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513.
The appeal is against a discretionary decision and to succeed in the appeal the appellant must establish some error in the decision-making process. It is not sufficient that the judges hearing the appeal would have come to a different decision on the same facts. The appellant must establish that the primary judge applied the wrong legal principles, or failed to take into account some material consideration, or took into account some irrelevant consideration, or that the decision was plainly wrong in the sense that it was no proper exercise of discretion at all.
GROUNDS OF APPEAL
At the commencement of the appeal, the appellant abandoned Ground 3 of the appeal.
Grounds 1 and 2 are interrelated and will be considered together.
Ground 1
In addressing s 65DAA(1)(b), the learned trial judge failed to make a practical assessment of the appellant’s circumstances in remaining in the Town F area, or gave inadequate reasons with respect to such an assessment.
Ground 2
In exercising the discretion in making parenting orders, the learned trial judge failed to take into account relevant considerations, being the advantages of the appellant’s proposal to relocate, and the disadvantages of the respondent’s proposal in remaining in the Town F area, or gave inadequate reasons with respect to such considerations.
In relation to Ground 1, the precise challenge is a narrow one, namely, that the primary judge “does not consider the [appellant’s] circumstances in remaining in [Town F]. [His Honour] does not consider her accommodation prospects, her income or employment prospects, or indeed her or the children’s quality of life” (appellant’s Summary of Argument filed 22 March 2024, paragraph 14).
In relation to Ground 2, the appellant argues that the primary judge failed to consider any of the advantages and disadvantages of the appellant’s proposal and submits that there were “significant advantages to [the appellant] living in the [City C] area … stable accommodation, … stable income and employment and it respected her freedom of movement”, and that “none of these matters feature in the judgment in any meaningful sense” (appellant’s Summary of Argument filed 22 March 2024, paragraph 24 and 26).
As this appeal at least in part concerns the application of s 65DAA of the Act, it is convenient to set out the relevant parts of that section below:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
…
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
It is argued by the appellant that the primary judge fell into error when considering s 65DAA(1) by prematurely concluding (at [107]) to make an order for equal time before considering whether such an order is reasonably practicable if the appellant relocates with the children to the City C area, which was her primary proposal.
The appellant submits that it is only if it is determined to be both in the children’s best interests and reasonably practicable that equal time or substantial and significant time can be ordered, and if it is not reasonably practicable, then the question of what parenting order is in the children’s best interests “is at large” (appellant’s Summary of Argument filed 22 March 2024, paragraph 4.4).
Paragraph 107 of the reasons provides:
107However, for the reasons which follow, I am satisfied that the children spending equal time with each of the parents, with an appropriate graduation thereto, would be in their best interests and also reasonably practicable, if they live in the same vicinity. Accordingly, I propose to make such an order, as the [respondent] seeks, albeit with a slower transition than he contends for, but as [the Family Report writer] recommends and is sought by the Independent Children’s Lawyer in her minute of proposed orders.
Further, it is submitted by the appellant that the error is compounded when the primary judge only turns (at [108]–[110]) to consider whether an order for equal time, which the primary judge has already determined he will make, is reasonably practicable, by reference to the particular provisions of s 65DAA(5), not upon the basis of the appellant’s proposal that she will relocate to the City C area with the children, but upon the basis that she will be restrained from relocating to the City C area.
At [109]–[110], his Honour relevantly provided:
109I note, for the purposes of s 65DAA(5)(a), that the [appellant] will be restrained from relocating to [City C] (or, more precisely, beyond a radius of 50 kilometres from the children’s school) and thus will remain living in the [Town F] area, where the children attend [H] School. The [respondent] will remain living in [Suburb G], approximately 60 kilometres away from the [appellant’s] current residence and the children’s school, as he has done since separation.
110…I accept that the difficulties in the parents’ communications will remain, whether the children live with the [respondent] for five nights per fortnight, as conceded by the [appellant] in the event she is not permitted to relocate, or seven nights per fortnight.
The appellant argues that the primary judge failed to consider the competing proposals of both parents on their merits and failed to weigh up the advantages and disadvantages of the appellant’s proposal against the advantages and disadvantages of the respondent’s proposal. Alternatively, the appellant submits that the primary judge failed to provide adequate reasons of those considerations.
It is conceded by the respondent that the primary judge does not “when considering s 65DAA(1)(b), expressly make mention of the circumstances of the [appellant] in the event that she remained in [Town F]” (respondent’s Summary of Argument filed 16 April 2024, paragraph 7) but submitted that “[t]he absence of mention of one matter that the [appellant] failed to establish by evidence, is unremarkable” (respondent’s Summary of Argument filed 16 April 2024, paragraph 14) and does not amount to appellable error.
The respondent further submits that regard must be had to how the appellant’s case was run at trial, for example, equal time or substantial and significant time could not occur if the children lived in the City C area and the respondent remained in Suburb G. Further, the respondent argues that when the reasons of the primary judge are read in their entirety, the mandatory considerations of s 65DAA are addressed, and the ultimate reasons for the determination are apparent. The respondent did not expand upon this submission by identifying particular parts of the reasons supportive of his submission.
Discussion
The Full Court observed in French & Fetala,[2] in relation to s 65DAA, “[w]hile a consideration of the section’s requirements is mandatory and, indeed, conditions the power to make parenting orders, the breadth and depth of the court’s consideration of the requirements will depend upon the issues joined between the parties”. In adopting the passage just quoted, the Full Court in Tibb & Sheean[3] said:
86.Thus, the challenge directed toward the objective manifestations of a judge’s thinking (i.e. the manifestations of what has been “considered”) must depend upon “the circumstances of the individual case” and a failure to refer to aspects of that subjective process, for example in the reasons, does not necessarily indicate that the judge has not complied with the obligation to consider.
87.In a case without pleadings (as is the case here) the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial. In turn, those matters will inform what is, and what is not, included in the reasons.
88.The matters just discussed have led to the Full Court saying that there are “circumstances in which it can be safely inferred from the facts and circumstances of the case before the trial judge that [s 65DAA] was considered”.
(Footnotes omitted)
[2] [2014] FamCAFC 57 at [48].
[3] (2018) 58 Fam LR 351 at [86]–[88].
As with all cases, adequacy of reasons will depend on the nature and extent of the case conducted at trial.[4]
[4] Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267.
The primary judge correctly, with respect, identified at [95]–[101], [105]–[106], [108], [113]–[114], [116]–[120], the applicable legislative framework within Pt VII of the Act and the legal principles to be applied when considering what parenting order is “proper” (s 65D) in circumstances which included a proposal by one party to move some distance from the children’s current residence. In summary:
(a)A parenting case which involves a ‘relocation’ element is just another parenting case and should not be treated as a separate issue to that of determining what parenting order is in the child’s best interests;
(b)The use of the term ‘permitted’ in relation to an application to change the residence of the children should be avoided as it may divert attention from the child’s best interests to that of the competing needs and demands of the parents;
(c)Orders requiring a parent, as opposed to the children, to live in a particular place are rare;
(d)An applicant seeking to relocate with children need not show compelling reasons for the proposed move although the reasons for the proposed move will be one of the matters to be considered;
(e)A parent’s right to live where they choose is a factor to consider although not of itself determinative;
(f)The competing parenting proposals of the parties must be identified and evaluated by considering how each proposal will provide advantages and disadvantages for the children’s best interests;
(g)An explanation of the matters to which greater weight is given and an explanation for same should be set out in the judgment; and
(h)Section 65DAA requires a consideration of:
(i)Whether the children spending equal time (or substantial and significant time) with each parent would be in the best interests of the child;
(ii)Whether the children spending equal time (or substantial and significant time) with each parent is reasonably practicable; and
(iii)If it is, consideration of making an order for equal time (or substantial and significant time).
In our view, while not specifically described as such, the advantages of the appellant’s proposed relocation are identified throughout the reasons of the primary judge as follows:
(a)The appellant had purchased a home in Town E, in the City C area in which she proposed to live with the children (although the primary judge was critical of the circumstances and secrecy around the purchase of the property) (at [53(c)]);
(b)The appellant had employment in City C (at [53(d)]);
(c)It was “not impossible for [the respondent] to relocate to [the] [City C] area” (at [58]);
(d)The appellant contended that her parents proposed to move to City C (at [63]), although the primary judge noted that the appellant’s mother did not mention any proposed move in her affidavit (at [63]);
(e)The appellant’s primary reason for moving to City C was financial (at [64]);
(f)The appellant believed that education, employment and healthcare are all better for the children in City C (at [79]); and
(g)The appellant would be relieved of the necessity to travel for up to six hours a day which she was undertaking while living in Suburb B and working in City C (at [53(d)], the primary judge notes the significant and inconvenient travel times).
Likewise, while not specifically described as such, the disadvantages of the proposed relocation are identified throughout the reasons:
(a)Relocation would inevitably involve a reduction in the children’s time with the respondent unless he also relocated, as conceded by the appellant (at [68]);
(b)The appellant presented to the Family Report writer (whose evidence was not challenged and was accepted by the primary judge) with little support for the children’s relationship with the respondent (at [82]);
(c)Part of the appellant’s motivation for relocating with the children appeared to be to “move on from the relationship, and also to move away from the [respondent]” (at [82]);
(d)The proposed relocation “likely represents an attempt to minimise the influence of the [respondent] in [the appellant’s] life and the children’s lives” (at [93]); and
(e)Relocation of the children to City C “is not in the children’s best interests, unless the [respondent] is also able to relocate nearby, as the relationships with the [respondent] will be permanently negatively affected” (at [94]).
When considering the respondent’s proposal for the children to remain in the Town F area, it is a little more difficult to identify the primary judge’s consideration of the advantages and disadvantages. However, the primary judge certainly remained unpersuaded that the appellant’s financial position would necessarily be inferior if she remained in the Town F area. At [53(d)] of the reasons, the primary judge observed:
53 …
(d)The [appellant’s] evidence that one of the reasons for which she seeks to relocate to [City C] is for employment opportunities; however, on her own evidence, she voluntarily left her employment in [Town F], where the children attend school, to take up employment in [City C], of all places, rather than with another employer in or in the vicinity of [Town F]. At the time of trial, she was working in [City C] and leaving the former matrimonial home in [Suburb B] between 4.30 am–6.30 am on her working days, and returning home between 7.30 pm–9.00 pm, due to the lengthy travel times…
Further, at [64] of the reasons, the primary judge observed:
64The [appellant] was cross-examined regarding her assertion that a primary reason for her desire to relocate was financial. It was suggested to her that she had an income in [Suburb B]; however, she maintained throughout cross-examination that her income in [Suburb B] was not sufficient. She was unable to produce payslips from her employment in [Suburb B] or her employment in [City C] to support her comparative claims. She was further unable to produce her recent tax returns as evidence of her income. Her evidence was that she was unable to demonstrate to the Court what her income in [Suburb B] was as she had not yet completed her tax returns.
Further, we accept the respondent’s submission that the financial circumstances of the appellant if she remained in Town F must also be seen in the context of proceedings that included a property dispute in which the appellant would receive a property settlement of between $2,766,600 and $4,611,132. Ultimately, the order made pursuant to s 79 of the Act provided for the appellant to receive assets valued at $3,458,349.
Ultimately, the primary judge did not find the appellant’s reasons to relocate to be particularly convincing and doubted her bona fides in relation thereto (at [102]).
The primary judge accepted the respondent’s preparedness, if necessary, to also relocate to the City C area, but found that this would require him to “cease farming the rural property on which he currently lives and works” and found, given his age, that “it may be difficult for him to find paid employment there” (at [103]).
The primary judge found that an equal time arrangement (if the parties were living in reasonable proximity), would not have any adverse impact on the children (at [112]).
The primary judge concluded that the best interests of the children would be met by them remaining in the Town F area (or more specifically by the appellant being restrained from relocating more than 50 kilometres from the children’s school) and spending equal time with each parent after a gradual increase in their time with the respondent. This accorded with the unchallenged opinion of the Family Report writer and with the recommendation of the Independent Children’s Lawyer.
In our view, when regard is had to the primary judge’s reasons in their entirety, it is tolerably clear that due consideration was afforded to the competing proposals of the parties and that the requirements of s 65DAA were adequately considered.
In our view, given the issues joined at trial by the appellant, the concessions made by the appellant as to the impact of the relocation on the children’s time with the respondent, and the unchallenged opinions of the Family Report writer, we are not persuaded that any appellable error is identified by Grounds 1 or 2.
Ground 4
The learned trial judge erred in excluding the personal loan owed by the appellant to her parents of $153,000, or gave inadequate reasons with respect to such exclusion.
In the appellant’s written outline, Ground 4 is pressed only on the basis of inadequate reasons and it is accepted by the appellant that the primary judge was under no obligation to include an unsecured liability if it be determined that the other party should not “be called upon to in effect ‘contribute’ to the liability” (appellant’s Summary of Argument filed 22 March 2024, paragraph 58, quoting Prince and Prince (1984) FLC 91-501 at 79,077). The challenge to the judgment is expressed by the appellant in the following terms:
59.However, in the present case, no explanation is made as to why the liability has not been taken into account on the balance sheet. The [appellant] is left to wonder – Did the learned trial judge consider the liability to be vague or uncertain? Or that it was unlikely to be enforced? Or that it was unreasonably incurred? Or simply that it was incurred post-separation? Or was it merely omitted? Whatever the reasoning, it is not revealed by the trial judgment.
60.It is accepted that the Item 21 liability is brought into account as part of the holistic exercise required in considering the matters in s 75(2) at para[graph] 197 of the trial judgment, as his Honour was required to do (per Biltoft above). However, this does not explain why it was not included on the balance sheet at para[graph] 143. The effect has been to not require the [respondent] to contribute to the liability, notwithstanding the [appellant’s] case that it was reasonably incurred, and he had had the benefit of income from the family partnership.
61.In such circumstances, it is not possible to ascertain the reasoning upon which the decision is based; or for justice to be seen to have been done.
(Appellant’s Summary of Argument filed 22 March 2024, paragraphs 59–61)
The appellant submits that the primary judge’s failure to explain the exclusion of the $153,000 from the balance sheet is compounded by the incorrect observation at [11] of the reasons stating that the appellant did not rely upon her mother’s affidavit. The appellant’s mother set out the details of the loan in her affidavit and stated that the loan was required to be repaid. It is common ground that that appellant did rely on her mother’s affidavit, although her mother was not required for cross-examination. In her affidavit, the appellant’s mother gives the following evidence:
10.We have provided financial assistance to [the appellant] by way of ongoing loans which now total $152,629.
We do require the repayment of those funds when [the appellant] receives a property settlement.
The funds advance to [the appellant] include:-
(i) A contribution towards legal fees in an amount of $69,161:
(ii)[D School] fees and additional costs for [X] in an amount of $28,814;
(iii) Top up funds for [the appellant] in an amount of $41,800;
(iv)A contribution towards living expenses (comprising the purchase of groceries):-
(a) Aldi - $2,781
(b) Coles - $1,585
(c) Woolworths - $1,256
Total - $5,622
(v) Property maintenance supplies in an amount of $575;
(vi) Purchase of fuel in an amount of $3,736;
(vii) Garden Equipment maintenance in an amount of $108;
(viii) Pharmacy expenses in an amount of $259;
(ix) Purchase of children’s clothing and shoes in an amount of $449; and
(x) Sundry expenses in an amount of $2,105.
The respondent submits that in circumstances where the primary judge “neither overlooked nor ignored the liability or its amount…[t]he inescapable conclusion is that his Honour did not consider that the [respondent] ‘should be called upon to in effect “contribute” to the liability’” (respondent’s Summary of Argument filed 16 April 2024, paragraph 33).
The joint balance sheet, which became Exhibit C-1, references the personal loan of $153,000 at item 21 as follows:
Description Ownership [Respondent’s] value [Appellant’s] value LIABILITIES 21 [Appellant’s] personal liability to [her parents] [The appellant] Personal Personal post sep[aration]
[the appellant] owes $153,000[5]Liabilities subtotal $1,847,997 $1,833,901 [5] The words referencing that the appellant “owes $153,000” have been added to Exhibit C-1 in handwriting.
The joint balance sheet represents the appellant’s loan from her parents as a personal post separation loan which is not included in the subtotal of the liabilities in either column.
At [140] of the primary judge’s reasons, his Honour sets out what is described as the “largely agreed list of assets…and liabilities, which was jointly tendered and marked Exhibit C-1”. It provided as follows:
Description Ownership [Respondent’s] value [Appellant’s] value LIABILITIES 21 [Appellant’s] personal liability to [her parents] [The appellant] $153,000 Personal post sep[aration] Liabilities subtotal $1,847,997 $1,833,901
The primary judge incorrectly included the loan as a deduction on the respondent’s side of the ledger, although, consistent with Exhibit C-1, the subtotals do not include the $153,000. Nothing turns on this error, and it was not referred to by the appellant.
The primary judge does not refer to the loan in his deliberations when determining the net assets available for distribution, notwithstanding that the appellant argued for its inclusion and the respondent argued for its exclusion. The primary judge does not include the $153,000 as a liability in the settled balance sheet at [144].
At [189] of the primary judge’s reasons, his Honour assesses the contributions of the parties in the proportion 62.5/37.5 in favour of the respondent and at [204] determines that “no further adjustment is warranted pursuant to s 79(4)(e)”. In coming to that conclusion, the primary judge at [197] specifically considered the loan of $153,000:
197.Each of the parties has post-separation, personal liabilities including, in the case of the [appellant], a debt to her parents, said to be in the order of $153,000. Given the monetary extent of their contribution-based entitlements, whilst I have regard to the fact of post-separation liabilities, I do not find that a further alteration, on account of these liabilities, is warranted.
During submissions at trial, in the context of a discussion between the primary judge and then counsel for the appellant about the liabilities to be included, then counsel for the appellant submitted:
[COUNSEL FOR THE APPELLANT]: It’s $153,000. It’s money advanced to her, as she said in her evidence. And it has to be repaid. Well, it’s a very simple proposition, your Honour. There’s no challenge to the forensic foundation for it.
(Transcript 22 August 2023, p.91 lines 41–43)
It is clear from the exchange between then counsel for the appellant and the primary judge, that the primary judge understood the submission as one in which the appellant was contending that the $153,000 should be included in the balance sheet as a liability. Then counsel for the appellant continued:
[COUNSEL FOR THE APPELLANT]: The fact of the matter is that the [respondent] has paid his legal costs from funds generated out of the partnership. He has made – he has paid no child support. She has looked to her parents for assistance in relation to the weekly expenses in their house and the provision of funds to the lawyers, otherwise she has paid capital amounts recognised by both parties to the solicitors during the course of the proceedings…and has a significant debt, over six figures, to pay [the appellant’s lawyers] at the conclusion of these proceedings. Now, in our submission, it would be inequitable not to recognise that loan in those circumstances.
HIS HONOUR: Yes…
(Transcript 22 August 2023, p.92, lines 24–37)
Then counsel for the respondent addressed the primary judge about the $153,000 loan as follows:
[COUNSEL FOR THE RESPONDENT]: …Your Honour, in terms of what my learned friend said about she has got a debt of 153,000, that’s a debt she says she owes her parents. The status of that is somewhat dubious but, in any event, your Honour, she shows - - -
HIS HONOUR: Well, you could have cross-examined on it, I suppose…
…
HIS HONOUR: There’s some evidence there. It’s not - - -
[COUNSEL FOR THE RESPONDENT]: I don’t doubt, your Honour, that moneys have probably come from her parents. Is it repayable? Don’t know. Is it a situation, your Honour, that it’s personal to the [appellant], uncontested? It is. Did she choose representation from senior counsel, yes, she did. She [sic] paying for it. Why are we liable for it? What’s the relevance of it as far as we’re concern? …It’s a personal debt in the same way, your Honour, that our legal fees are our personal debt.
(Transcript 22 August 2023, p.109 line 39 to p.110 line 28)
Discussion
While it certainly would have been preferable for the primary judge to provide an explanation for his Honour’s decision not to include the $153,000 as a liability, we are not persuaded that the failure to do so amounts to appellable error in the circumstances of this case because:
(a)It is apparent that the primary judge did not overlook the loan;
(b)Each party had post separation personal loans and neither were included as liabilities or were considered by the primary judge to justify an adjustment pursuant to s 79(4);
(c)While the loan from the appellant’s parents included $28,814 for X’s school fees, the primary judge did not accept that X’s enrolment at D School occurred with the father’s consent (at [53(b)]);
(d)The appellant concedes the liability was “brought into account as part of the holistic exercise required in considering the matters in s75(2) at para[graph] 197 of the trial judgment” (appellant’s Summary of Argument filed 22 March 2024, paragraph 60); and
(e)It is tolerably clear that the primary judge did not consider that the respondent should be called upon to in effect contribute to the repayment of the loan.
In any event, even if the loan or part thereof had been included as a liability, the overall difference to the result would represent a de minimis sum given the net assets of the parties were about $9.2 million.
We are not persuaded that Ground 4 amounts to appellable error in the circumstances of this case.
Ground 5
In the event the parenting orders are set aside, the assessment of the parties’ ‘future needs’ pursuant to s 75(2) is erroneously premised on the foundation that the children will live with the spouse parties on an equal time basis.
As Ground 5 only arises if the appeal otherwise succeeds, it is otiose.
DISPOSITION
As the appellant has failed to establish appellable error, the appeal will be dismissed.
COSTS
It is not in contention that if the appeal fails, costs should follow the event in the quantum claimed by the respondent as calculated in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Although it is unclear on the respondent’s schedule that the calculation of costs represents only party and party costs as opposed to solicitor and client costs, in the absence of challenge on the quantum claimed, we do not propose to reduce the total sum claimed other than for the sum claimed for senior counsel’s attendance at the appeal. The sum claimed was for a hearing taking at least three hours. The appeal was concluded in substantially less than three hours and therefore this sum should be substituted with the scale amount for a hearing of less than three hours. Accordingly, the appellant will pay the respondent’s costs fixed in the sum of $50,419.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Carew & Campton. Associate:
Dated: 22 May 2024
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