GOLDMAN & GOLDMAN
[2018] FamCAFC 65
•12 April 2018
FAMILY COURT OF AUSTRALIA
| GOLDMAN & GOLDMAN | [2018] FamCAFC 65 |
| FAMILY LAW – APPEAL – PARENTING – Whether the primary judge’s order for only a four week moratorium on the time the children spend with the wife was inconsistent with the expert evidence and was therefore erroneous – Where the order was open on the evidence – Whether the primary judge erred by placing insufficient weight on her findings of unacceptable risk – Where the point of the moratorium was to ameliorate the risk – Whether the primary judge should have made an order requiring the wife to complete treatment before the moratorium is lifted – Where the husband did not seek such an order at first instance, made no submissions in support of such an order to the primary judge, where the evidence did not support such an order and where no ground of appeal was directed to such a complaint – Adequacy of reasons – Appeal dismissed – Husband ordered to pay the costs of the wife and the Independent Children’s Lawyer. FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge’s findings about the payment of the parties’ mortgage were erroneous – Where the findings were supported by the evidence – Whether the primary judge erred by omitting from the property pool a sum of money held by the wife’s solicitors on the basis that it was a loan from the wife’s parents – Where this finding was open on the evidence – Appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the evidence the husband seeks to adduce is controversial – Application dismissed. |
| Family Law Act 1975 (Cth) ss 75(2), 79(4) Family Law Rules 2004 (Cth) Sch 3 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Blinko & Blinko [2015] FamCAFC 146 Calvin & McTier (2017) FLC 93-785; [2017] FamCAFC 125 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235 Kohan and Kohan (1993) FLC 92-340 M v M (1988) 166 CLR 69; [1988] HCA 68 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Muldoon & Carlyle (2012) FLC 93-513; [2012] FamCAFC 135 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 |
| APPELLANT: | Mr Goldman |
| RESPONDENT: | Ms Goldman |
| INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
| FILE NUMBER: | SYC | 3001 | of | 2015 |
| APPEAL NUMBER: | EA | 83 | of | 2017 |
| DATE DELIVERED: | 12 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Murphy & Aldridge JJ |
| HEARING DATE: | 20 February 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 June 2017 |
| LOWER COURT MNC: | [2017] FamCA 531 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Anderson |
| SOLICITOR FOR THE APPELLANT: | Humphreys Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Brezniak |
| SOLICITOR FOR THE RESPONDENT: | Raihani Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Neville |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
Orders
The appeal be dismissed.
The appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $6,646.00.
The appellant pay the costs of the respondent as agreed or, in default of agreement, as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Goldman & Goldman 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 83 of 2017
File Number: SYC 3001 of 2015
| Mr Goldman |
Appellant
And
| Ms Goldman |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Goldman (“the husband”) appeals against both parenting and property settlement orders made by Cleary J on 23 June 2017 in proceedings between him and Ms Goldman (“the wife”).
The husband commenced property settlement proceedings in the Federal Circuit Court of Australia on 16 June 2015 and amended those proceedings to include an application for parenting orders on 22 October of that year. A number of interim parenting orders were made by the Federal Circuit Court throughout 2015 and 2016.
On 25 October 2016 the matter was transferred to the Family Court of Australia and on 28 October 2016 orders were made to ensure that the matter came on very promptly for hearing. The primary judge heard the proceedings over six days in February and March 2017.
The appeal against the property settlement orders is opposed by the wife. The appeal against the parenting orders is opposed by both the wife and the Independent Children’s Lawyer (“ICL”).
The parenting appeal
The parties began living together in late 1999 and married at the end of that year. They had two children born in 2005 and 2007. Their relationship ended in either August 2013, when the husband says the parties separated under one roof, or, as contended by the wife, in July 2014 when the husband moved out of the family home. They were divorced in April 2016.
The children lived primarily with the wife following separation, seeing the husband on a very limited basis and often in very difficult circumstances which are detailed in the primary judge’s reasons (at [68] and following).
The primary judge’s orders moved the primary care of the children to the husband who was to have sole parental responsibility for them. Her Honour did so because:
310.Overall, I formed the impression that the [wife], although she may have some knowledge of having done harm to her children, has been almost entirely focused on the [husband], on punishing him, on seeing him punished by third parties and on turning the children’s affections away from him. She has caused emotional harm to the children and represents an unacceptable risk to the children of such harm continuing.
…
378.The children have a close dependent relationship with [the wife], described by the Single Expert as enmeshed which is not conducive to good future mental health.
There is no appeal against those orders. Rather, the husband appeals against Order 12 which provides for the time that the children are to spend with the wife. It states:
12.That the [wife] spend time with the children, commencing not before four weeks have elapsed after the date of these orders, as follows:
(a)At a supervised contact centre:
(i)For up to two (2) hours on the third Sunday of each month for three (3) months; and thereafter
(ii)For up to two (2) hours on the first and third Sunday of each month for a period of three (3) months; and thereafter
(b)With a supervisor, either agreed to, or appointed by, the [husband] from 10.00 am to 4.00 pm on the first and third Sundays of each month for a period of six months; and thereafter
(c)Unsupervised from 9.00 am to 5.00 pm on the first and third Sundays of each month; with changeovers to be at a supervised contact centre unless otherwise agreed; and
(d)At such other and or additional times, if any, agreed between the parties.
The first ground of appeal against this order is that the primary judge erred in providing for a moratorium of only four weeks in relation to the children spending time with the wife because “there was no realistic prospect of amelioration of the established unacceptable risk of further harm to the children”. The second ground is that the primary judge did not give adequate reasons for making this order.
At the commencement of his submission, counsel for the husband was granted leave to amend the orders sought by the husband in the event he was successful, removing the proposed Order 7 and seeking in lieu an order that “the issue of the period of time before supervised time commences be remitted for rehearing”. Originally, the proposed Order 7 sought, amongst other things, that the moratorium on the children spending supervised time with the wife be for twelve months.
Did the primary judge err by providing only for a four week moratorium?
The husband submitted that the primary judge’s order providing for a moratorium on the children spending time with the wife for a minimum of four weeks was “not consistent with the evidence provided by the expert, nor with the application of the [husband]” (Husband’s Summary of Argument filed 8 November 2017, paragraph 17).
The husband’s application was that there be a minimum period of no contact between the children and the wife for 36 months from the date of the orders or alternatively for the period recommended by the single expert.
Dr G, a psychiatrist, was the single expert appointed by the court. In a report dated 20 September 2016, he opined as follows at paragraph 137:
Should the Court find that the [wife] is continuing to expand on these allegations without a factual base this should be viewed as evidence of emotional abuse. Under such circumstances I would recommend that the children be removed from her care with residence transferred to the [husband]. Further, contact should be suspended with her for a minimum of one month and reinstituted in a supervised environment.
In a report dated 6 February 2017, Dr G suggested that if the Court found that the wife’s allegations against the husband were not factual, then there should be a change of residence to the husband and “temporary suspension of the children’s contact with [the wife]” (at paragraph 13).
In the course of his oral evidence the following exchange occurred:
[COUNSEL FOR THE ICL:] Dr [G], you recommend a period of time that contact – in the event that her Honour accepts that the children should live with the [husband] – that there should be a period of time in which their contact with the [wife] is suspended?‑‑‑Yes.
And I think you say a minimum of one month. Firstly, did you see the [husband]’s proposal that there be a suspension of time for three years?‑‑‑I don’t – don’t recall that, but I think – I think that – that that would be an excessively long period of time.
And it would suggest a pretty poor view of – on one view it’s a punitive order that he seeks, isn’t it?‑‑‑It is.
Are you able to give a time that you would recommend?‑‑‑I think if – if one was thinking about three months, that would give the – the children an opportunity to settle – to settle in.
And if they’re not? If they’re not settled within that three month period?‑‑‑Six months.
So between three and six months is – do I understand your evidence; correct?‑‑‑Yes. Yes.
And then after that?‑‑‑Well, I think – I think that the – one would – one would ideally like the children to maintain a kind of significant relationship with [the wife]. It will depend upon her capacity to contain her – her responses to the children. And I’ve seen no evidence to support the view that that’s something that she can do. But if, given, you know, that her contact with the children was dependent on that, then one would hope that she would be able to, you know, re-establish contact every – for monthly and then fortnightly contact, but it really depends on her capacity to – to alter her approach to the children’s care.
(Transcript 3 March 2017, pp.490–491)
Thus taking Dr G’s evidence as a whole, there is a recommendation of a suspension of time for a period between one and six months, although in cross‑examination, he did express a preference for a three to six month period. There was a positive recommendation against the husband’s proposal of 36 months.
It is apparent that the primary judge was well aware of the close relationship the children had with the wife and that this was a matter that bore directly upon the length of any moratorium on time. Her Honour described that relationship as the children’s “most significant relationship” because the wife had “provided their care all their life” (at [386]). When dealing with the effect of any changes in the children’s circumstances, her Honour said:
393.The children will be impacted by removal from the care of [the wife]. They will miss her and are likely to be anxious and panicky. The [wife] was identified by the Single Expert as having skills to calm them down. They are dependent on her at this time because they are unable to regulate their own emotions.
394.The children will need the assistance of expert therapeutic intervention to help them to understand the upheavals in their lives over the past three years in particular and to teach them to do themselves what [the wife] has done for them in relation to their feelings.
The primary judge was acutely aware of the effect that a moratorium on time would have on the children. Thus, her Honour had to balance the need for the moratorium to be for a period sufficient to allow the children to settle down with the husband but not so long as to cause them to be overly distressed about not seeing the wife.
Her Honour concluded:
418.In accordance with the recommendations of the Single Expert there will be a period of no time between the children and [the wife] which will include the third term holiday period, enabling the [husband] to take them away on an enjoyable holiday if he is in a position to do so. He has “family commitment flexibility” in his current role. They will certainly need a great deal of his undivided attention in the coming weeks and months.
(Footnote omitted)
It can be immediately seen that the period provided for in the orders of “not less than four weeks” before time commenced is within the range recommended by Dr G, if his original reports are taken into account.
To the extent it is submitted that her Honour was obliged to pick a range between three to six months, we do not accept that the evidence was so limited. As we have said, the recommended range was one to six months, and the course taken by her Honour was open to her on the evidence.
At best, this submission devolves into an argument that the primary judge erred in the exercise of her discretion by imposing a “not less than four week” moratorium rather than a three to six month delay before commencing supervised time. The difficulties attendant upon such a submission are well known: House v The King (1936) 55 CLR 499; Norbis v Norbis (1986) 161 CLR 513.
In any event, the primary judge was not obliged to accept all of the evidence of the expert witness. As the Full Court has said many times, it is fundamentally within the ambit of a trial judge’s discretion to determine the weight to be given to expert evidence: see Muldoon & Carlyle (2012) FLC 93-513 at [105] and the cases cited therein. Clearly enough, her Honour was very concerned about the impact of the orders on the children and found it was in their best interests for contact with the wife to resume sooner rather than later.
Accordingly, we reject the submission that her Honour’s reasons were not consistent with the evidence.
Counsel for the husband also submitted that the primary judge gave insufficient weight to the findings of unacceptable harm to the children. In doing so, the husband referred to M v M (1988) 166 CLR 69 at [25], Johnson and Page (2007) FLC 93‑344 at [68]–[69] and Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) at [83].
In Blinko at [83] the Full Court affirmed the following statement of principle:
…If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child…
We consider that that is exactly the course followed by the primary judge in this case and we cannot see any error in the exercise of discretion.
In the course of his oral submissions, counsel for the husband submitted that in order to ameliorate the risk of harm to the children, the primary judge should have extended the moratorium until the wife successfully engaged in therapy dealing with her approach to the children.
There are at least four difficulties with this submission.
First, the husband did not seek such an order from the primary judge.
In his Third Amended Initiating Application filed on 7 February 2017 he sought only an order that the children spend no time with the wife “for a minimum period of thirty six months from the date of these orders or, in the alternative, for a period of time as recommended by the independent expert Dr [G]”. Whilst an order was sought for “direct therapeutic family intervention” for the children, no similar order was sought in relation to the wife. Obviously, the orders proposed by the husband did not entail that the period of the moratorium should be determined by reference to therapy to be had by the wife.
In his final submissions to her Honour, the husband continued to seek only the orders proposed in his application and did not suggest any others should be considered.
Secondly, it follows from what we have just written that no submissions were made to her Honour along the lines of the submission now made to us. Contrary to the assertion made by counsel for the husband during the hearing of the appeal, we do not consider that the reference in the husband’s Case Outline to Blinko at [31], in which the Court noted that in such cases a possible order was requiring the mother and child to engage in therapy with appropriate therapists, raised that issue at all. If the husband wished to propose an order that the wife engage with therapists or that any time with the children be suspended until that therapy is successful, he was obliged to propose it as an order sought by him and to direct specific submissions to that issue. As neither occurred, it is now not possible to raise this issue in the appeal, as had the husband done so the hearing may have taken another course and further evidence may have been called: Metwally v University of Wollongong (1985) 60 ALR 68.
Thirdly, the evidence does not support the submission.
Dr G was asked about therapy for the wife in the following terms:
[COUNSEL FOR THE HUSBAND:] If the therapy was to achieve any – I would like you to assume the [wife] indicated that she would undertake some therapy, and I don’t think that’s her evidence to date, but she may do so, the type of therapy that would address the personality issues that you’ve identified would be cognitive behavioural therapy or dialectical behavioural therapy or ‑ ‑ ‑?‑‑‑No. Well, essentially there isn’t – there isn’t a particular therapy that will – will address this. I think the – the first – the first issue is, if the [wife] was to attend therapy under such circumstances, it would be very important for the therapist to have appropriate background so they understood the nature of the circumstances. And that would be more long term individual psychodynamic psychotherapy. Certainly the use of particular strategies, such as mindfulness, such as strategies derivative of dialectical behaviour therapy can be useful. It was my understanding from my dealings with the [wife] that she already has excellent understanding of strategies such as mindfulness.
(Transcript 3 March 2017, pp.494–495) (Emphasis added)
Thus, the evidence was that any therapy would be long-term and probably would not be successful.
Importantly, Dr G was not asked whether his opinion on therapy for the wife had any impact on his opinion as to the length of any moratorium. There was thus no evidence at all that linked the length of any moratorium to treatment for the wife.
Fourthly, there is no ground of appeal directed to this issue.
Faced with this reality, counsel for the husband attempted to argue that his submission was covered by Grounds 1 and 2, which are in the following terms:
1.That the Honourable Justice Cleary erred in permitting the [wife] to spend time with the children after a period of only 4 weeks from the date of the orders when the evidence established that the [wife] had emotionally abused the children by alienating the children from the [husband], obstructed the relationship between the children and the [husband], and would continue to do so if she had any time with the children. The period of time for a moratorium in relation to spending time with the children of only 4 weeks in the circumstances where there was no realistic prospect of amelioration of the established unacceptable risk of further harm to the children, constitutes an error.
2.The evidence of the expert was that the period of time for a moratorium in relation to spending time with the children should be for a longer period. The Honourable Justice Cleary failed to provide any or any adequate reasons in relation to the determination of a period of only 4 weeks.
These grounds are clearly only directed to the length of the moratorium and do not raise any issue as to therapy.
This aspect of the appeal does not succeed.
Were the primary judge’s reasons adequate?
The essence of the challenge to the adequacy of the primary judge’s reasons is that it is not discernible why her Honour chose a moratorium of “not less than four weeks” as opposed to a moratorium of between three and six months.
We disagree. As we have endeavoured to explain, the primary judge was very concerned about the effect of the move on the children, who had been very close to the wife, and clearly thought it was desirable that they see her sooner rather than later. Thus, the path of her Honour’s reasoning can be followed and no error has been established (see Bennett and Bennett (1991) FLC 92-191).
That is sufficient to dispose of the parenting appeal. However, we wish to make the following additional comments.
Her Honour delivered judgment on 23 June 2017. On 24 August 2017 her Honour heard and determined an application for a stay of the parenting orders but found that there was no proper basis for delaying the commencement of supervised time. However, we were informed that supervised time has not yet started. That, of itself, is a cause for serious concern, considering the importance laid upon the resumption of contact between the wife and the children by the primary judge.
The practical effect of that delay is that there has been a moratorium on contact between the children and the wife for over eight months. That exceeds the period of six months that was originally said to be the order that the primary judge should have made.
Further, from the time of filing the Notice of Appeal up until the commencement of the appeal the husband continued to seek that there be a moratorium of 12 months on the time the children are to spend with the wife. Again, due to the effluxion of time, a significant part of that period has now passed with no contact.
As we have observed, the husband amended the orders sought by him in the event the appeal was successful. No doubt this was, at least, in response to this issue.
It remains of concern to us that the children have yet to spend any time with the wife.
The property appeal
During the course of oral submissions, Ground 6 was abandoned.
Before dealing with the three remaining grounds of appeal against the property orders, it is useful briefly to refer to the parties’ property.
The primary judge found the parties’ assets to have a value of $965,193, the bulk of which was represented by a home unit which had been valued at $900,000. The liabilities were found to be of the order of $315,000 (there was a small dispute as to the exact amount). The superannuation held by both was valued at $153,633.
Significantly, in the Joint Balance Sheet placed before her Honour, the husband asserted that he had a financial resource in the sum of $50,000 being funds held in his solicitor’s trust account. Similarly, the wife claimed the sum of $127,152 held in her solicitor’s trust account as a financial resource. Neither party accepted the other’s assertions. We shall return to this aspect of the matter shortly.
The primary judge determined that the appropriate distribution of the parties’ property should be 57.5 per cent to the husband and 42.5 per cent to the wife. In the event that the wife was able to refinance the mortgage on the home unit, she was to retain it and pay $275,230 to the husband. If she could not manage to do so, the unit was to be sold and the surplus divided.
The first two grounds relate to the finding of the 57.5 per cent/42.5 per cent division in favour of the husband. The husband’s submission is firstly that when her Honour’s findings as to contributions under s 79(4) and adjustment for future needs under s 75(2) of the Family Law Act 1975 (Cth) are properly taken into account, the final division should have been 60 per cent to the husband and 40 per cent to the wife and not the division arrived at by the primary judge. Alternatively it is submitted that “there is no discernible path by which her Honour has identified the ultimate conclusion in relation to the property adjustment” (Husband’s Summary of Argument, paragraph 34).
Both of these contentions may be disposed of swiftly.
Her Honour found that the contributions of the parties to the assets and to the welfare of the family at the date of the hearing favoured the wife as to 55 per cent and the husband 45 per cent (at [462]). Her Honour then considered the s 75(2) factors and concluded that, although the husband had a higher earning capacity than the wife, there ought be a substantial adjustment in his favour because he will have the primary care of the children in the future without any financial support from the wife. Her Honour determined that adjustment to be 15 per cent (at [470]).
It may be thought that her Honour’s consideration led to a 60/40 division, but the consideration did not end there. Her Honour went on to say:
472.The wife has borrowed money from her parents. The evidence suggests that her parents have lent her money and whilst hoping to be repaid will not insist on repayment, however there should be an adjustment back for the fact that the wife has borrowed to meet her legal costs and the husband has been in a superior position through inheritance from his mother which has allowed him to meet his costs from that fund.
473.Accordingly the ultimate distribution between the parties should be 57.5/42.5 per cent in favour of the [husband].
Thus it is clear that the adjustment of 15 per cent in favour of the husband was not the final adjustment. It was reduced to 12.5 per cent, taking into account the matters set out in [472]. There is no error in the calculation of the distribution of 57.5 per cent to the husband and 42.5 per cent to the wife. Further, her Honour’s reasons for making this division can be discerned. Accordingly Grounds 3 and 4 fail.
It was then submitted that the primary judge’s discretion miscarried due to the following asserted factual errors:
·The findings as to the repayment of the mortgage after separation;
·The primary judge wrongly included as assets available for division the proceeds of an inheritance received by the husband after separation; and
·The finding that the wife owed a debt to her parents.
During the course of submissions the second point was abandoned in view of the Full Court’s decisions in Calvin & McTier (2017) FLC 93-785 (“Calvin”) and Holland & Holland (2017) FLC 93-798. However, the outcome in those two appeals is hardly surprising given that they are based on long-standing authority (see Calvin at [25]).
The payment of the mortgage
The primary judge’s findings on this issue were:
454.Since separation the husband continued to meet the mortgage payments until December 2015. The mortgage was split into an approximate equal sum of two amounts of about $150,000.
455.In August 2016 the mortgage repayments were assigned by order to the [wife].
These findings are in accordance with the evidence.
In his affidavit filed 30 January 2017, the husband said at paragraph 201:
Since moving out of the matrimonial home on 27 July 2014, I continued to pay the “mortgage” on the “[Suburb L] property” until 21 December 2015. The mortgage was split into an approximate equal sum of two amounts of about $150,000…
In cross-examination, the husband agreed that he ceased paying the mortgage in December 2015 (Transcript 28 February 2017, p.131).
The wife’s evidence on the subject was:
236.[The husband] met the mortgage repayments over the former matrimonial home until around the end of 2015. [The husband] has provided no other financial support for me or the children since the date of separation.
237.I am the guarantor for the loan secured by our unit. In or around early 2016 when I discovered that the loan was in arrears, I contacted my parents and asked for their help. Mum and dad paid the arrears and have continued to make monthly mortgage repayments in the sum of $1,160 each month.
(Wife’s affidavit filed 7 February 2017, p.39)
The husband’s written submissions were:
Her Honour found that in August 2016 the mortgage repayments were assigned by order to the [wife] … The husband continued solely to meet the mortgage repayments until December 2015 … The wife had no funds to pay the mortgage.
(Husband’s Summary of Argument, paragraph 38) (References omitted)
In the light of the above evidence we are quite unable to determine what the asserted factual error on the part of the primary judge is said to be.
The loan to the parents
The primary judge found that the sum of $127,152 held in the wife’s solicitor’s trust account should be omitted from the property to be divided “on the basis that the funds referred to in that item were borrowed by the wife from her parents” ([425]).
The husband also relies on [472], which for convenience we will repeat:
472.The wife has borrowed money from her parents. The evidence suggests that her parents have lent her money and whilst hoping to be repaid will not insist on repayment, however there should be an adjustment back for the fact that the wife has borrowed to meet her legal costs and the husband has been in a superior position through inheritance from his mother which has allowed him to meet his costs from that fund.
The husband’s submission was:
The third factual error is in relation to the alleged debt owed by the wife to her parents. That item is item 26 on the balance sheet which her Honour determined should be excluded because they represent funds borrowed by the wife from her parents … Her Honour determines at … [472] that the wife’s parents will not insist on repayment of funds advanced to her but determines there should be an adjustment. It is not clear what adjustment her honour has made in terms of the percentage contribution or whether there has been double counting in relation to those matters.
(Husband’s Summary of Argument, paragraph 40)
Plainly this submission does not assert any factual error. It is difficult to see the relevance of it to the ground of appeal.
The wife’s evidence was that in addition to the gifts made by her parents, her parents made the monthly mortgage repayments of $1,160 since early 2016, had lent her $35,000 to meet her legal expenses, paid a bill to her former lawyers in the sum of $6,674.80, and paid $100,000 from their superannuation into her lawyer’s trust account.
There is no reason to conclude that these matters were overlooked by the primary judge. Her Honour was well aware of and expressly referred to the financial assistance that the wife received from her parents. The primary judge also recognised the wife would wish to repay her parents, to the extent that she could do so, even though they may not insist on repayment. That characterisation of the nature of the advances was open on the evidence.
Again, these matters received scant attention in either the evidence before or the submissions to her Honour. In light of those matters, we consider that the course taken by the primary judge was open to her and that no error has been identified.
Conclusion
Given that we have found no merit in any of the grounds of appeal, the appeal must be dismissed.
Application to adduce further evidence
By an Application in an Appeal filed on 29 January 2018 the husband seeks to adduce extensive further evidence in the appeal. We dismissed that application during the course of the appeal. These are our reasons for doing so.
The bulk of the evidence sought to be adduced by the husband is directed to establishing what is said to be an unacceptable risk of harm to the children if they spend time with the wife. That evidence consists almost entirely of statements made by the children to the husband of physical and emotional abuse when they lived with the wife. The affidavit also annexes some pages from an affidavit sworn by the wife in response to an application for a stay of the primary judge’s orders. It is clear enough from the few pages that are there that the evidence relied upon by the husband is controversial.
The wife has also filed an affidavit putting these matters in issue or casting a different complexion upon them.
There is no means by which we can determine the veracity of that evidence which makes it difficult to receive on an appeal.
The husband submitted that the evidence should be received because there was no apparent reason for believing that the evidence was not credible and referred to CDJ v VAJ (1998) 197 CLR 172 at [115].
At that paragraph and the paragraph immediately preceding it the majority said:
114No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
115Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
The proposed evidence is in dispute and its credibility has been called into question. Thus there is an apparent reason, albeit an untested one, for believing that the proposed evidence is not credible.
As counsel for the ICL pointed out, the primary judge declined to place any weight on the views expressed by the children because they had been subjected to enormous emotional pressure. Yet, much of the proposed evidence consists of statements made by the children to the husband, and similar considerations could still continue to apply.
In short, the evidence is controversial and this Court has no means of determining that controversy.
The other point of the affidavit is to attempt to establish that the wife has not lived in the former matrimonial home from either June or September 2016. We do not understand the relevance of that to the appeal because it would not demonstrate error on the part of the primary judge.
As to any hardship being suffered by the husband due to the property orders not being put into effect, we would note that on 24 August 2017, on the application of the husband, the property orders were stayed pending the hearing and determination of this appeal.
Costs
The ICL sought costs of the parenting appeal in the sum of $6,646 calculated at the Legal Aid scale. The husband made no submission in opposition. The appropriate order is that the husband pay those costs, having been entirely unsuccessful in the appeal.
The wife sought to make an application for indemnity costs. We dismissed that application because no notice had been given of any such application, the rules relating to the making of such an application had not been complied with and because we considered that there were no exceptional circumstances which justified such an order: Kohan and Kohan (1993) FLC 92-340 at 79,614.
The wife then sought an order for costs on a party and party basis, which was not opposed. It is appropriate to make such an order, although as the wife was unable to quantify these costs by reference to the scale set out in Schedule 3 of the Family Law Rules 2004 (Cth), they will have to be assessed if they cannot be agreed.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Aldridge JJ) delivered on 12 April 2018.
Legal associate:
Date: 12 April 2018
6
2