Goldrick & Goldrick
[2007] FamCA 1260
•25 October 2007
FAMILY COURT OF AUSTRALIA
| GOLDRICK & GOLDRICK | [2007] FamCA 1260 |
| FAMILY LAW - APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – With whom a child lives – With whom a child spends time – Relocation – Wife moved with the children – Father to spend regular time with the children – Mother alleged father had been violent towards her during relationship – Mother acknowledged the father had close relationship with children which she wanted to continue – Father argued he was unable to relocate to be closer to children due to business commitments – Father sought equal shared care arrangement – Father argued on appeal that Federal Magistrate failed to give proper attention to the provisions of the Family Law Act 1975 (Cth) – Argued incorrect application of principles – Benefit to the children of having a meaningful relationship with both parents FAMILY LAW - APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – PROPERTY SETTLEMENT – Alteration of property interests – Contributions – Argued on appeal that Federal Magistrate gave inappropriate weight to contributions of each party – Father proposing alternative property orders dependent upon the ultimate terms of orders relating to arrangements for the children –Whether adjustment for s75(2) factors manifestly excessive |
| Family Law Act 1975 (Cth) ss 60CC; 60CC(2)(a); 60CC(3); 60CC(4); 60CC(4)(a); 60CC(4A); 61DA(1); 75(2) |
| A v J (1995) FLC 92-619 at 82,232 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
| APPELLANT: | MR GOLDRICK |
| RESPONDENT: | MRS GOLDRICK |
| APPEAL NUMBER: | NA | 40 | of | 2007 |
| FILE NUMBER: | BRM | 1792 | of | 2006 |
| DATE DELIVERED: | 25 October 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | FINN, WARNICK and MAY JJ |
| HEARING DATE: | 6 August 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 27 February 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 138 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr P Murphy SC and Mr Linklater-Steele |
| SOLICITOR FOR THE APPELLANT: | Barry & Nilsson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr R M Galloway |
| SOLICITOR FOR THE RESPONDENT: | Pennisi & Associates |
Orders
That the appeal be dismissed.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Full Court delivered this day will for all publication and reporting purposes be referred to as Goldrick & Goldrick.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
APPEAL NUMBER: NA40 of 2007
FILE NUMBER: BRM1792 of 2006
| MR GOLDRICK |
Appellant
And
| MRS GOLDRICK |
Respondent
REASONS FOR JUDGMENT
When Mrs and Mrs Goldrick separated in September 2005, they remained living for a short time in their home in Brisbane, with their two children, [X], born in March 2000 and [Z], born in December 2001. However, when [their] house was sold in December 2005, the wife took the two children to live at a home owned by her parents at [the Coast], an hour or so’s drive north of Brisbane.
In May 2007, Slack FM determined issues about with whom the children should live and the time they should spend with the other parent, as well as issues about alteration of property interests. The essential effect of his orders about parenting issues was that the children would remain living with the mother at [the Coast] and the father would see the children regularly.
As to the financial issues, the assets of the parties were about $215,000 (net) and they had superannuation interests totalling about $85,000. The learned Magistrate found contributions favoured the wife, 52 per cent to the father’s 48 percent. He made an adjustment of 17 per cent in favour of the mother on account of s 75(2) factors.
These proceedings are the father’s appeal against the order that the children live with the mother and most of the consequential orders relating to the time the father might spend with the children. He seeks either a shared-care arrangement, or that the children live with him. As well, the father appeals against the orders for property settlement, proposing alternative orders depending upon the ultimate terms of orders relating to arrangements for the children. If the arrangements remain the same, he seeks a division of 60 per cent to the mother, as opposed to the 69 per cent resulting from the Federal Magistrate’s orders.
Although the grounds of appeal are quite lengthy, in the submissions of the husband’s counsel Mr Murphy SC, in respect of the parenting orders, they are drawn into two strands; firstly, that Slack FM failed to give proper attention to the provisions of the Family Law Act 1975 (Cth) (“the Act”), in particular the “primary consideration” of “the benefit to the [children] of having a meaningful relationship with both of the [children’s] parents” (s 60CC(2)(a) of the Act); and secondly, there are asserted errors of fact.
In respect of the property settlement orders, Mr Murphy SC argued that Slack FM gave inappropriate weight to certain contributions of each party and, in particular, that the 17 per cent adjustment for s 75(2) factors was manifestly excessive.
We will firstly address the appeal against the parenting orders, after a short background of facts and findings relevant to those issues, derived from the reasons of the learned Magistrate.
Short background to parenting orders
The parties had commenced cohabitation in early 1998 but, as seen, separated in September 2005.
The learned Magistrate found:
14.The parenting arrangements for the children during the marriage was that the mother was primarily and predominantly responsible for the care of the children.
However, he also accepted:
…that the father was actively engaged in the care welfare and development of the children… .
On 13 January 2006, shortly after the mother moved to [the Coast] with the children, orders were made by consent that on an interim basis the children continue living with the mother on [the Coast] and the father have contact each Tuesday and Thursday during school term, from after school until 6.30pm; Friday late afternoon to Sunday late afternoon, on alternate weekends; and on school holidays. Orders also provided for special occasions and telephone contact.
At the time of trial (February 2007) both parties were 34 years of age. The children were attending a Catholic Primary School where [X] was in Grade 2 and [Z] in Grade 1 and at which they had attended since the beginning of 2006. At trial, the mother maintained that whatever the outcome of the proceedings, she would reside on the [the Coast]. She paid rental of $200 per week to her parents and was hopeful after property settlement of purchasing the property from them. She had established a small book-keeping business, intending to operate it during school hours.
The father intended to continue residing in a leased property at [a Brisbane suburb], or to live in another property in that area. He operated a business as a [professional …] in partnership and earned an income of approximately $60,000 per annum. His parents resided close by and extended family members lived in the general area. The father maintained that he was not able to relocate to the [the Coast] because of business commitments. If he moved to [the Coast] he would need to secure other employment.
Though the mother alleged that the father had been violent towards her during the relationship, she did not seek to place constraints on the father’s relationship with the children and she acknowledged that the children had a close relationship with their father which she wanted to continue.
The proposals of each party as identified by the learned Magistrate were:
[the mother’s proposal]
3.…[T]hat the children…live with her and spend time with their father each alternate weekend and during the week and school terms and half of their School holidays. On the basis of her proposal the children will continue to live with her on the [the Coast]… .
…
5.The father seeks orders that the children live with him and spend time with their mother depending on where she chooses to live.
6.In the event that the mother chooses to live in Brisbane he would propose an equal time shared care arrangement for the children.
7.… [T]he consequence of that arrangement would be that the mother would return to live in Brisbane and live closer to the school that the children would attend and the father’s home.
However, as seen, the Federal Magistrate said of the mother that:
28.She maintains that whatever the outcome of these proceedings, she intends to continue to reside on [the Coast]… .
We now turn to the arguments against the parenting orders.
Did Slack FM fail to correctly apply the provisions of the Act?
As the application of legal principles involves both identification of facts and law, Mr Murphy SC’s submissions highlighted aspects of both.
As to fact, he pointed to (among other matters), the following findings of Slack FM:
63.The children have maintained a close relationship with extended family members on both sides.
…
74.I accept though, for the purposes of this consideration, that:
(a)the father has shown since the separation a strong continuing commitment to the welfare and development of his children;
(b)he has demonstrated an attitude to maintain his involvement in the children’s lives;
(c)there has been no real criticism of his capacity to parent the children and provide for their daily needs;
(d)the children appear to have developed a strong bond with their father and it is likely they will enjoy similar interests and activities with him over the years… .
…
78.I accept that the mother’s decision to move to [the Coast] was in fact, in large part, to put distance between herself and the father… .
As to the incorrect application of legal principle, in his written summary of argument Mr Murphy SC said:
13.The learned Federal Magistrate did not approach the issue/s in dispute as required by the Family Law Act and, in particular, that Act as amended by the Reform Act.
…
19.If, pre-Reform Act, it was correct to say that “the best interests approach offers no hierarchy of values” such a statement must now be questioned in light of the legislatively-mandated distinction between “primary” considerations and “additional” considerations.
20.A clear legislative intent in making the distinction was to:
“…elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act…”
21.Importantly, this point has been underscored by this Court:
“The child’s best interests are ascertained by a consideration of the Objects and principles in s. 60B and the primary and additional considerations in s. 60CC”; and
In our view, it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their childrens’ lives, both as to parental responsibility and as to time spent with children…provided it is in their best interests and reasonably practicable [footnotes identify these passages as being from Goode and Goode [2006] FLC 93-286, paras 9 and 72].
22.Any distinction between a legal principle (the “paramouncy of the best interests of the children”) and a “competing” principle or “right” (to freedom of movement) must be seen in that legislative context.
23.This is because, for the first time in the Family Law Act’s history, there is a nexus between specifically-expressed Parliamentary intention and the notion of paramount “best” interests; the Parliament has specifically flagged the parameters and principles by which best interests should be “ensured”.
24.The nexus is underlined in the legislation itself:
§The Objects are said to be inserted into the legislation “…to ensure that the best interests of children are met by…” them. Best interests are “ensured by…” a number of objects which include “both” parents having a “meaningful” involvement in the lives of their children “to the maximum extent” consistent with best interests (emphasis added in each case);
§That object (among others) is furthered by a principle “underlying” it of the right to spend time with both parents “on a regular basis;”
§The Objects are connected to the “Primary Considerations” by s. 60CC itself. The primary importance of considering the benefit of a “meaningful” relationship with both parents must be consistent with the Objects.
25.It is submitted that “meaningful”, then, can only be seen as being set against a legislative objective of ensuring parental involvement in the lives of their children “to the maximum extent” consistent with those best interests.
…
28.Importantly, the Parliament has inserted a requirement to consider a layer additional to the Primary and Additional Considerations: the court must also consider the extent of any failure to facilitate post-separation contact or communication.
29.The section does not speak of absolutes; it speaks of the extent to which failures have occurred. Thus, whether or not the primary motivation of the mother was to curtail or make more difficult the father’s relationship with the children, the fact that her actions did, is a matter which ought to have been taken into account under this section.
…
32.The Act requires a Court determining final parenting orders to holistically embrace the concepts of shared parental responsibility, the Objects and the Considerations.
…
34.A “right” to freedom to move has no place in the Objects, Principles or Considerations accorded primacy by the legislature.
…
37.To adopt what is submitted is the correct approach, the learned Federal Magistrate, it is respectfully submitted, needed to:
§Identify what each party’s proposal meant for a “meaningful relationship” for each parent with the children;
§In considering the context of that meaningful relationship, compare the extent to which each proposal maximized the opportunity for involvement of each parent in the childrens’ lives;
§Ask whether, and to what extent, those opportunities for maximum involvement were in the childrens’ best interests and, in particular, considerations as to facilitating a close and continuing relationship between each parent and the children;
§Ask whether any evidence was to the effect that, to any extent (and, if so, to what extent) post-separation parenting arrangements and/or decisions failed to facilitate the other parent “participating in making decisions about major long-term issues in relation to the child” in light of the definition of that expression in the Act. (footnote references and footnotes removed)
Despite ground 5 being framed as follows:
5.The learned Federal Magistrate erred in law in concluding that the Orders made by him provided for the father to have a “meaningful relationship” with the children within the meaning of s. 60CC of the Family Law Act.
no argument based on principle was raised which required us to examine the meaning or parameters of the term “meaningful relationship”.
In assessing these submissions, we find it useful to return to the learned Federal Magistrate’s judgment, both to identify such findings of fact as he made that might “offset” those favourable to the husband and upon which Mr Murphy SC relied, and to consider the learned Federal Magistrate’s identification and application of principles.
As to findings, Slack FM further said:
62.I consider that the children are more closely attached to their mother at this stage because she has been their primary attachment.
And, after setting out the findings favourable to the father in paragraph 74 (earlier quoted), he said:
75.Notwithstanding those findings, it remains the case the father has never been responsible for the full-time parenting of the children and he has never been responsible for the necessary routines of daily living. On the evidence available he has enjoyed an active sporting and social life.
…
After setting out the following sentence (also quoted earlier), his Honour continued:
78.I accept that the mother’s decision to move to [the Coast] was in fact, in large part, to put distance between herself and the father. I do not accept though that the primary motivation was to restrict the relationship between the children and their father. I consider that the mother had anticipated that she would inevitably continue to fulfil what she saw as her role as primary carer for the children. I accept that there were advantages for her in moving to [the Coast]… .
79.…There has been no indication since the separation that the mother has attempted to limit or alienate the children from their father… .
As to the effect of any changes in the children’s circumstances, Slack FM said:
81.On the proposals of the father it would mean changes for the children in that they would need to move to another school and they would have different parenting arrangements to what they have been used to date.
82.Ms [T] [family report writer] considered that the shared parenting arrangement could be in place if the parents were in the same vicinity.
83.She did acknowledge though that the older child appeared to be a more sensitive child and appeared to be more attached to his mother. She indicated that he may have difficulties in making adjustments in moving from the primary care of his mother to a shared equal time arrangement.
As to the law, towards the beginning of his judgment, after the “Background facts”, the Federal Magistrate addressed “Legal principles”. He referred to many sections in Part VII of the Act, including s 60CC and he set out the “primary considerations” expressed therein. He stated that he intended to give those considerations careful attention. He noted ss 4 and 4(a) of s 60CC, relating to the extent to which each parent had fulfilled his or her parenting responsibilities post-separation and facilitated the other parent in fulfilling his/her parenting responsibilities. He said that he would be guided by s 60B which set out “…the objects of the part.”
Then, after noting the identity of the witnesses called by the parties and that the family reporter gave evidence, Slack FM turned to the “primary considerations”. He found:
52(a)It is important to and in the interests of the children that they have a meaningful relationship with both their mother and father.
After explaining his reasons for that and another conclusion, he turned to the “additional considerations”. He said:
58.I do not intend to place significant weight on any views stated by the children because the children are relatively young and they seem to want to express loyalty to both of their parents… .
Slack FM then discussed the children’s relationship with significant persons, in terms substantially set out earlier, before turning to “Parenting and discharge of parenting responsibilities”. He set out relevant paragraphs of s 60CC(3) and also ss 4 and 4(A) of that section.
With regard to the provisions of the last-mentioned subsections, the learned Federal Magistrate set out the contentions of the father:
76.The father contends that the mother does not support his relationship with the children and will not continue to support his relationship with them into the future. In particular he alleges that the mother’s decision to unilaterally relocate to [the Coast] against his objections is a strong indication of her determination to limit his involvement in the children’s lives. He argues that at separation it would have been just as convenient to her to remain residing in the Brisbane area where she grew up and where her parents continue to live as it was to move to [the Coast]. He argues that the decision to move to [the Coast] was a cynical exercise in putting distance between himself and the children and making it extremely practically difficult for him to enjoy an ongoing relationship with the children.
However, as earlier seen, the Federal Magistrate rejected those propositions in paragraph 78 and part of paragraph 79 of his reasons, containing findings and conclusions favourable to the mother and relating to her motivation in moving to [the Coast] and to her attitude to the relationship of the children with the husband.
Next, the Federal Magistrate addressed the “Effect of any changes in the child’s [sic] circumstances” and part of his consideration under that heading (about change of school and the attachment of the older child to the mother) was earlier set out.
After a brief reference to the topic of family violence, his Honour then turned to the question of the application of the presumption of equal shared parental responsibility deriving from s 61DA(1) of the Act. He stated that he intended to apply the presumption and gave his reasons for that conclusion.
As he was consequently required to do, his Honour turned to the question of “equal or substantial and significant time with each parent”. He addressed the proposals of each party and said:
96.The advantages for the children on the mother’s proposal (in summary and in general):
a)The children will continue to have the mother as their predominant carer. She has cared for them throughout their lives and they present as healthy well adjusted children.
b)They have the benefit of housing that is subsidized and allows other income to be available to their needs.
c)They have support from their mother’s family including her parents who plan to retire to [the Coast].
d)The mother is able to balance her parenting responsibilities with her work responsibilities.
e)The mother can parent the children in a place of her choosing and she is likely to be the best parent she can be in those circumstances… .
97.The advantages for the children of their father’s proposal are (in summary and in general):
a)They would continue to experience parenting input and regular involvement and time with both their parents.
b)His proposal is in line with the children spending equal time with both of their parents.
c)The children seem to want to have additional time with their father which would be available to them if he lived close by.
d)They would have a closer association with the father’s family and, in particular, the paternal grandparents.
Having said this, his Honour referred to the orders he had decided to make and stated that his conclusions were in the best interests of the children, for reasons he then gave. In effect, most of these reasons amounted to a preference for the advantages in the mother’s proposal that he had identified and the corresponding limitations in the father’s proposal. Additionally, he said:
100. …
d) … The children have enjoyed a close relationship and time with their father since the separation and I consider that arrangements can be put in place that will allow them to spend significant time with their father.
e) I am satisfied that the father can organise his business affairs and live closer to the children which would allow him to have a greater participation in their care. For example, he would simply need to move 30 minutes drive closer to the children to allow him to play a more active role in the care of the children. I do not see how such a move would interfere with his business operations.
Later, when we discuss the asserted errors of fact, we will identify some challenges to some of the conclusions in the passages just quoted, but for present purposes in considering the adequacy of the Federal Magistrate’s identification and application of legal principle, we will assume that those conclusions stand.
Returning to Mr Murphy SC’s submissions, in the fourth point of his paragraph 37 (set out earlier) he referred to a requirement that the court ask to what extent, post-separation, one parent had failed to facilitate the other parent “participating in making decisions about major long-term issues in relation to the child”. Subsection (4) of s 60CC, from which that quoted passage comes, refers to other types of parental involvement beyond decisions about long term issues, and, particularly in light of Mr Murphy SC’s earlier submission in paragraphs 28 and 29 (also earlier set out), we do not take him to limit his argument to the factor of participation in long-term issues.
However, we do not accept Mr Murphy SC’s argument, about ss 60CC(4) and (4A) as expressed in paragraph 29, repeated here:
29.The section does not speak of absolutes; it speaks of the extent to which failures have occurred. Thus, whether or not the primary motivation of the mother was to curtail or make more difficult the father’s relationship with the children, the fact that her actions did, is a matter which ought to have been taken into account under this section.
The full terms of the subsections are:
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
In our view, it is clear that, while the impact of any parent’s relevant actions should, if the evidence permits, be identified, the references to “fulfilled, or failed to fulfil responsibilities as a parent” and “…facilitated, or failed to facilitate” demonstrate that the actions of each parent in the relevant respects are to be evaluated for something beyond consequence alone; namely what those actions say of the person’s capacity to parent.
In that assessment, the learned Federal Magistrate’s findings about the mother’s motivations and expectations were relevant and important.
Otherwise, as to Mr Murphy SC’s formulation of what the Federal Magistrate “needed” to do, set out in paragraph 37 (earlier quoted) of Mr Murphy SC’s written submissions, without endorsing or rejecting that formulation, we say this:
(i)Though we recognise that, before the court comes to a final conclusion about parenting orders to be made, it must follow a sequence that emerges from the terms of s 61DA and 65DAA(1) and (2), we otherwise see no need, at least in this appeal, for us to attempt to restate, paraphrase or re-arrange the terms of Part VII.
(ii)However one chooses to argue that the other requirements of Part VII may be paraphrased, or that they are best considered in a particular order, even in a case where it is possible in practicality to order that a child spend “equal time” or “substantial and significant time” with each parent, and there are no critical impediments such as risk of physical or psychological harm, nothing in Part VII mandates that orders in one or other of those terms, be made. The ultimate decision as to the orders that are in the best interests of a child remains discretionary, subject to genuine consideration having been given to the options of “equal time” and/or “substantial and significant time” (as discussed in Goode at paragraph 64).
(iii)In our view, in any event, Slack FM considered each of the aspects included in Mr Murphy SC’s formulation.
It is apparent (and was not challenged) that the Federal Magistrate correctly identified each of the principles which required consideration. He concluded that orders ought be made to effect and maintain a meaningful relationship between each parent and the children. He considered the extent to which each proposal would permit involvement of each parent. Indeed, he recorded the greater involvement that, on its face, was available within the father’s proposal but moved away from that proposal for the reasons he gave.
We turn briefly to some written submissions of Mr Murphy SC, not earlier set out. They were, in summary, that the learned Federal Magistrate wrongly approached the case on the bases that:
▪ because the parties had arranged their pre-separation parenting on the basis that the mother was the primary child-carer, this was crucial to post-separation “best interests”;
▪ because the unilateral decision of the mother had determined parenting arrangements immediately after separation, those arrangements were the “starting point” and the question became whether those arrangements should be changed; and
▪ the mother’s “freedom to move” was the “starting point”.
We say only that, firstly, the question of past care is often connected with attachment of children to carers and that is a relevant consideration. Secondly, there is nothing beyond that to which we have already referred that Mr Murphy SC points to, to support the propositions that the Federal Magistrate adopted “starting points” as asserted. We see nothing in the learned Magistrate’s reasons to support those propositions.
In these circumstances, the argument for the husband really comes down to the proposition that, though the learned Federal Magistrate identified the relevant principles he must have fallen into error, because the result was manifestly wrong, though exactly how he erred cannot be shown.
We reject this argument, as we are of the view that on the facts of this case, particularly where the proposals of each party permitted regular and frequent involvement by each parent in the lives of the children, the decision of the Federal Magistrate was well open to him.
Accordingly, bearing in mind that the appeal is from an exercise of discretion and the principles that apply to such an appeal (see Gronow v Gronow (1979) 144 CLR 513 at 519‑520 and House v The King (1936) 55 CLR 499 at 504‑505), we find no merit in this argument.
Did Slack FM make errors of fact?
That the father could “live closer to the children”
This finding was contained in paragraph 100(e) set out above, but repeated here for convenience:
100. …
e)I am satisfied that the father can organise his business affairs and live closer to the children which would allow him to have a greater participation in their care. For example, he would simply need to move 30 minutes drive closer to the children to allow him to play a more active role in the care of the children. I do not see how such a move would interfere with his business operations.
As earlier recorded, the evidence of the father was that he could not move to [the Coast] and continue to operate his business. However, we do not see that the finding of the learned Federal Magistrate is necessarily inconsistent with the husband’s evidence. It was not a finding that the husband could move to [the Coast] without discontinuing his existing business, but simply that he could live closer to the children, which would shorten the travelling time and increase his chances of involvement in their lives. In our view, this finding was open.
Mr Murphy SC also submitted:
41.Further, the only basis upon which the learned Federal Magistrate could legitimately suggest that the father should move (as distinct from the mother) is by according to the mother some right to have (unilaterally) moved in the first place and according primacy to those arrangements. Such an approach is not warranted by the Act.
This submission imputes statements or implications that do not appear or emerge in or from the reasons. The learned Federal Magistrate did not say that the father “should” move, nor imply a primacy in the mother’s arrangements brought about after separation.
That [X] was “more attached to his mother”
Mr Murphy SC’s written submission was:
47.The learned Magistrate’s finding that [X] was “more attached to his mother”, is said by the learned Federal Magistrate to be based on the evidence of Ms [T]’s evidence. It is respectfully submitted that such a conclusion is contrary to the evidence of Ms [T] taken as a whole:
▪There is clear evidence from her that it is in the best interest of both children that both parents should be as involved as possible in their lives;
▪Specifically, for example, she says that “…both parents are equally capable and they both have a good relationship with either [parent]”;
▪She says the boys would be able to adjust to a move were they to be in the primary care of their father;
▪“I think both parties have the ability to try and mitigate those negative forces for these children”;
▪I think the children would do well in either family home because they are both competent parents.
An initial observation is that the learned Federal Magistrate did not directly express a finding about the older child’s attachment, but, in the course of discussing Ms [T]’s evidence going to the “Effect of any change in the child’s circumstances” said (as earlier seen):
83.She did acknowledge though that the older child appeared to be a more sensitive child and appeared to be more attached to his mother. She indicated that he may have difficulties in making adjustments in moving from the primary care of his mother to a shared equal time arrangement.
For present purposes, and as no argument to the contrary was put, we accept this discussion as a finding of fact.
As appears from the passage of Mr Murphy SC’s submissions, Mr Murphy SC’s argument does not point to particular parts of Ms [T]’s evidence but was that the Federal Magistrate’s “conclusion is contrary to the evidence of Ms [T] taken as a whole”. However, we were not taken to the “whole” of Ms [T]’s evidence. The parts set out in Mr Murphy SC’s submissions are not, in our view, at odds with what is said to be Slack FM’s conclusion about the attachment of the older child.
Counsel for the mother simply submitted that the relevant passage was “…not contrary to the evidence of Ms [T].”
The transcript of Ms [T]’s cross-examination by then counsel for the father contains this:
MR LINKLATER-STEELE: What do you say would be the greatest challenge for the children if they were to come and spend primary care with their father; what would their greatest obstacle be?---I think the greatest obstacle would be in terms of how they’re, particularly the elder one, the older son, being quite attached to mum, he has quite a sensitive outlook and how he is going to adjust to that and how father’s [sic] able to promote that.
While the words “quite attached” are not identical to “more attached”, in context, especially “particularly the elder one”, we are not satisfied that the use of the comparative “more” constituted an error of fact.
That a move by the mother back to Brisbane “…would cause a degree of unhappiness and resentment toward the father” and “…it seems likely that if she were not able to parent in the manner and place of her choice, then that is likely to have an impact in that it will not give the children the best parenting ability that the mother can offer them. In other words, she is more likely to be the best parent she can be if she was living in the environment of her choosing.”
Mr Murphy SC suggested that there was no evidence to support those findings. He referred to the mother’s evidence as to how she would participate in the children’s lives if by court order they lived with the father in Brisbane and she remained living, as she said she would, on [the Coast]. However, what the learned Federal Magistrate was really addressing was the prospect that notwithstanding what the mother said, she would feel the need to relocate to Brisbane. He said:
100.(f) Although the mother has indicated that she will not move from [the Coast] whatever the outcome, I consider she would return to Brisbane if it meant not continuing her role as a parent to the children. However, forcing her to do that would, in my consideration, cause a level of resentment and unhappiness which would impact on her capacity to parent. At the least, she is likely, in my view, to be the best parent that she can be if she is living in a place of her choosing. At this time, I consider that it is in the interests of the children to continue to be predominantly cared for by the mother and it is in their interests for her to be the best parent that she can be.
The Federal Magistrate did not have to accept that the mother would, in the future, act as she said she would. He did not even have to reject the mother’s veracity to question whether she would act as she thought she would. In effect, he might have concluded that the mother was wrong in her genuine belief as to how she would behave. It was open to Slack FM to address the prospect of the mother returning to Brisbane.
Once he did so, Slack FM’s conclusions about the effect that the situation would have upon her obviously relied upon inference. There is nothing surprising about the inferences drawn and nothing in the nature of them which calls for expert evidence.
As was said in A v J (1995) FLC 92-619 at 82,232:
It is important to guard against too zealous an application of the requirement to give reasons, particularly where it is argued that inadequacy in the reasons lies in the failure to make findings of fact leading to finding of a material or an ultimate fact: see Soulemezis per Mahoney JA.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-274, Mahoney JA said:
…A fact is found in a particular case if the Judge is satisfied that it is so….The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective consideration. And, if such be true of the reasoning process, it is, in my opinion, a mistake to conclude that a Judge should or can set forth the reasoning process he has followed from one fact to another.
We find no merit in this argument.
That the father would not carry out the day to day responsibilities for the children in a similar way to the mother
“That there was risk to the children in the father’s care”
These two alleged errors relate to the same paragraph of Slack FM’s reasons, paragraph 100(b), repeated here:
100. …
b)The father is still largely untested as a parent who would have the responsibility for all of the daily tasks for the children. It may be that he can carry out those responsibilities in a similar way to the mother but I am not able to reach that conclusion on the evidence and I do not consider that it is necessary or in the interests of the children to take that risk with their emotional security and stability at the present time.
In our view, as to how the father was likely to parent the children, if they primarily lived with him, the learned Federal Magistrate was saying no more than that the evidence did not permit him to reach a particular conclusion. Mr Murphy SC argued that that inability was contrary to evidence of the relationship of the father with the children and as to his parenting capacity. However, we do not see that, while that evidence supports positive findings in favour of the father’s parenting capacity, it renders unavailable the conclusion that the father might not carry out his responsibilities in a similar way to the mother. As the learned Federal Magistrate also found, the father was “…largely untested as a parent who would have the responsibility for all the daily tasks for the children.”
Correspondingly, we see nothing illogical in a finding that, because the father was largely untested as a parent, there was a comparative risk that if the children lived primarily with him, he would not parent as well as it had been established the mother had done.
Conclusion as to the grounds asserting erroneous findings.
We are not satisfied that the learned Federal Magistrate erred in any of his primary findings of fact or conclusions of fact of a secondary nature.
The appeal against the property settlement orders
The argument that the learned Federal Magistrate erred in his assessment of contributions
Mr Murphy SC relied upon his written submissions. On this point they were contained in five short paragraphs which we now set out:
54.The initial contribution of the wife was disputed and was, at best, marginally greater than the father.
55.The learned Federal Magistrate failed to take into account the far superior contribution made by the father financially by the provision of income and the fact that the primary asset generating the bulk of the property pool available for division was the extension, renovation, and then sale, of the parties’ former matrimonial home.
56.The learned Federal Magistrate failed to take into account the father’s effort as [a professional …] in completely redesigning and renovating the property had generated the most significant increase in the parties’ net asset position.
57.The learned Federal Magistrate failed to differentiate between general labour and resources contributed by the mother’s family as opposed to the significant cost reductions by the father’s family that had been demonstrated on the evidence to generate a significant increase in the net return obtained on sale.
58.The finding by the learned Federal Magistrate that the mother’s family had provided “fairly significant amounts of money” had no substantive evidentiary foundation and could not be seen to be significant compared to the efforts of the father and the father’s family in increasing the net return from the sale of the primary asset being the matrimonial home.
Slack FM said of contributions:
134.Over the course of their marriage the parties received significant financial and other assistance from members of their respective families. There is a dispute between the husband and the wife as to the quality and standard of that assistance.
135.Much of the work was done in improving the matrimonial home. Substantial improvements were undertaken on the property.
136.Insofar as their own contributions were concerned:
a)Both parties brought to the marriage qualifications and skills- in the husband’s case as [a professional …]; the wife’s case as an [professional …].
b)The wife made a greater initial contribution (and although there is a dispute between the parties as to the extent of their initial contribution, it does seem the wife made the greater initial financial contribution).
c)Over the course of the marriage the husband worked and applied his income to the benefit of the family. Although the wife suggests or asserts that he used family income to pursue his own social needs, I was not satisfied on the evidence that that entertainment was of such a nature as to warrant a finding that it was wasteful.
d)The wife worked and applied her income to the family needs. She was primarily responsible for the care, welfare and development of the children and in particular during times when the husband was working overseas.
e)The wife’s parents contributed both their labour and money to assist the parties. Although I have not taken the moneys provided by the parents into account as a loan, it is nevertheless the case that the parties received those monies and they were used for their joint benefit.
f)The husband’s family applied their labour and resources to the work on the matrimonial home.
g)Since the separation the husband has continued to pay child support and continued to have an active involvement in the care of the children.
h)The wife has continued in her role in the care, welfare and development of the children.
137.Both parties contend that they should be regarded as having made the more substantial contribution through themselves and their respective families to the acquisition and improvement of the property acquired by the parties during their marriage, in particular the former matrimonial home.
138.Much of the affidavit material contains evidence of the work that was undertaken by various family members (including the ability to obtain cheaper materials that [sic] was otherwise available on the market). The husband particularises the contributions of his family and himself over the marriage in paragraphs 128 to 138 of his affidavit.
139.The wife particularises the work undertaken by herself and her family and the monies provided by members of her family.
140.Although there was much evidence about the work undertaken by various family members and the value of that work, this is not an accounting exercise. Both parties brought skills to the marriage which were used to their full ability over the course of the marriage. Both families assisted the parties in various ways- such as money, labour and providing materials at reduced cost.
141.In all of the circumstances I conclude that the contributions should slightly favour the wife because of the following factors:
b)her initial contributions were greater than those of the husband;
c)her family, in my assessment, provided the family with fairly significant amounts of money;
d)I was unable to conclude that the work undertaken by various family members on both sides (including using their resources to provide less expensive materials) was greater than the other;
e)I do not consider that the contributions by the parties themselves during the marriage were greater than the other.
142.I assess the contributions to be 52/48 in favour of the wife.
A reading of the paragraphs of Slack FM’s reasons just set out demonstrates that in so far as Mr Murphy’s submissions suggested “failures by the Federal Magistrate to take into account certain contributions by the father and his family, particularly in respect of the former matrimonial home, those suggestions must be rejected. His Honour clearly was mindful of the contentions, though he did not necessarily make findings in respect of them as sought by the father. There are no submissions as to why he should have.
Further we see merit in some of Mr Galloway, counsel for the mother’s submissions:
27.The Appellant seems to suggest that his Honour was wrong so to find and that, somehow, he ought to have found that contributions by members of the Husband’s family improved the value of the property more than did those of the Wife’s family. Such a finding could never have been open to his Honour because it was conjectural, not in accordance with any expert evidence, and wrong in law.
…
56.Next, in the same paragraph, is that as the extension, renovation and sale of the former matrimonial home was the basis for the parties’ (modest) wealth then the learned Federal Magistrate ought to have imputed to the Husband greater contributions because, supposedly, his efforts were those which generated the significant increase in the parties’ net asset position.
57.In fact there is just no evidence for those propositions apart from valueless assertion in material.
We find no merit in this ground.
The argument that a 17% variation to the wife on account of s 75(2) factors was manifestly excessive
The learned Federal Magistrate’s full reasoning on this point was:
143.The wife is currently operating a small home base business as a [clerk]. She earns $30 per hour and intends for the time to limit the time of the business to school hours.
144.She, in accordance with my Orders, will continue to be predominantly responsible for the care of the children although I anticipate that the husband will play a significant ongoing role in their care.
145.The wife has greater superannuation than the husband but she has less capacity to increase her superannuation as compared to the husband.
146.She is not in any new relationship. She hopes to purchase her parents’ interest in the home in which she currently resides and it is likely that she will receive the benefit of her parents’ largesse in assisting her to acquire that property.
147.She is in good health and has the capacity to earn income into the future.
148.The husband is in good health. He is a qualified [professional …]. He earns approximately $60,000 per annum.
149.If he chooses to move to [the Coast] it may mean that he will need to re-establish himself on [the Coast] as [a professional …] and for a time his income may be reduced.
150.This is a matter where I consider there should be an adjustment for the s.75(2) factors. The salient factors that warrant such an adjustment are:
a)The wife will predominantly have responsibility for the continuing care of the children who are still of relatively young age. Balanced against that though it is likely she will continue to receive child support and ongoing involvement from the husband in their care.
b)The wife’s earning capacity is less than that of the husband and although her earning capacity is likely to increase, she is not likely to have a similar earning capacity to the husband for some years.
c)The parties have limited superannuation but for a time the husband will have a stronger capacity to contribute to his superannuation.
151.Having regard to the guidelines in Clauson 1995 FLC 92-595, I must assess any adjustment for the relevant s.75(2) factors with a consideration of the real impact in money terms and not operate “within artificially delineated boundaries”. The Full Court in Clauson also acknowledged that the “payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction of an independent lifestyle which the obligation to care for children usually entails.”
152.In the context of this case, I consider that a 17 percent adjustment (approximately $51,509) is an appropriate adjustment for the s.75(2) factors.
Mr Murphy SC’s full written submissions were:
60.Such an adjustment is manifestly unjust in all of the circumstances of the case, including:
▪the far superior superannuation position of the mother;
▪The mother, in generating such superannuation, had demonstrated a significantly superior earning capacity than the father while employed;
▪The finding that the father has a far stronger capacity to contribute to superannuation is without an evidentiary foundation;
▪The mother’s earning capacity as [a professional…] was equal to if not greater than the father’s ability to earn income in the medium to long term.
61.The learned Federal Magistrate had already found in essence that the father would be relocating to [the Coast] yet failed to take into consideration the fact that on the evidence if that occurred the father’s position was such that his […] business would no longer continue in its present form and it was likely that he would be simply an employed [professional …] within a firm.
62.No consideration was made to the mother’s subsidized housing as a factor counting against the awarding of such a significant s.75(2) adjustment.
63.It was inherently inequitable and unjust in circumstances where the father was seeking to share the care of the children, but was unable to do so because the unilateral decision of the mother to relocate to suggest that the mother’s earning capacity and the care of the children should be such a significant factor when considering the s.75(2) adjustments.
The content of the last paragraph is an argument from an emotional or “moral” base rather than a legal one.
As to the content of paragraph 61, we disagree that Slack FM had found, in essence that the father would be relocating to [the Coast]. The prospect of the father becoming an employed […] on [the Coast] was only a possibility, and the learned Federal Magistrate had regard to that.
As to the content of paragraph 62, the learned Federal Magistrate specifically mentioned the mother’s plan for housing. Subsidisation, or the prospect of it, was not a matter of much moment.
As to the balance of the argument, while the mother may once have had a greater than, or matching, earning capacity to that of the father, that was not the prospective position under consideration.
We were not taken to any evidence to demonstrate that the findings upon which the adjustment was based were wrong.
While in percentage terms the adjustment is high, the learned Federal Magistrate correctly acknowledged the importance of the “real impact” in money terms.
We find no merit in this ground.
Conclusion overall
It follows that the appeal should be dismissed.
Costs
Mr Galloway sought an order for costs in the event which has transpired. Mr Murphy SC opposed an order on the primary basis of the father’s modest financial circumstances, and in particular the mother’s greater capital.
He also submitted that the appeal against parenting orders raised novel points. We disagree.
In our view the result in both “arms” of the appeal is the significant factor and the father should pay the mother’s costs.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 25 October 2007
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