Granville & Blakeslee

[2017] FamCAFC 162

FAMILY COURT OF AUSTRALIA

GRANVILLE & BLAKESLEE [2017] FamCAFC 162

FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – Where both parties’ minutes of orders sought an order for equal shared parental responsibility without qualification – Where the primary judge made orders giving the mother responsibility for decision‑making in relation to medical and educational issues – Error conceded by mother – Appeal allowed on this point – Re-exercise – Order for equal shared parental responsibility made.

FAMILY LAW – APPEAL – CHILDREN – Consideration of s 65DAA – No error in his Honour’s approach – Failure to make orders in relation to “special days” – Where the error is not productive of any substantial miscarriage of justice in the circumstances – Not sufficient to warrant appellate intervention.

FAMILY LAW – APPEAL – PROPERTY – Assessment of contributions – Where the father asserted that the primary judge placed insufficient weight on his contributions –Where the father’s father was not called to give evidence as to the intention of funds gifted –Where the Court is satisfied that the primary judge regarded the funds as being a contribution on the father’s behalf – Where it was undisputed that the mother owned a property and savings at the start of the relationship and made substantial post‑separation contributions – Where the father’s contributions were correctly described in this context – No appealable error.

FAMILY LAW – APPEAL – PROPERTY – Consideration of s 75(2) factors – Where the father asserted that the primary judge failed to make findings of fact as to income and earning capacity – Where his Honour’s findings were sufficient – Where it was undisputed that the mother would continue to be the primary financial support for the children – Whether the primary judge erred in his treatment of the mother’s superannuation fund in the United Kingdom – Where the United Kingdom fund could not be treated as property – Where the primary judge did not consider the s 75(2) factors in relation to the superannuation pool – Where the primary judge’s consideration of the non‑superannuation property interests obviously proceeded on the basis of superannuation pool assessment – No appealable error.

Family Law Act 1975 (Cth) ss 60CC, 65DAA, 65DAC, 75(2), 79, 90MC, 90MD, 90MT, 94

Byrnes v Kendle (2011) 243 CLR 253
Dickons v Dickons (2014) 50 Fam LR 244
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kessey and Kessey (1994) FLC 92-495
Lane & Nichols (2016) FLC 93-750
Lovine & Connor and Anor (2012) FLC 93-515
Rice and Asplund (1979) FLC 90-725

APPELLANT: Mr Granville

RESPONDENT: Ms Blakeslee

FILE NUMBER: CAC 751 of 2013

APPEAL NUMBER: EA 88 of 2016

DATE DELIVERED: 16 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bryant CJ, Ainslie-Wallace & Kent JJ

HEARING DATE: 21 June 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 19 May 2016

LOWER COURT MNC: [2016] FamCA 422

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lethbridge SC

SOLICITOR FOR THE APPELLANT: Farrar Gesini Dunn Family & Collaborative Law

COUNSEL FOR THE RESPONDENT: Mr James

SOLICITOR FOR THE RESPONDENT: DDCS Lawyers

Orders

1. The appeal against Order 1 of the orders made by Faulks DCJ on 19 May 2016 be allowed, that order be set aside and in its stead order:

   That the parents have equal shared parental responsibility for the children C born … 2007, B born … 2008,  and D born … 2011 (“the children”).

2. The appeal otherwise be dismissed.

3. The respondent file and serve written submissions (not exceeding 10 pages) dealing with the issue of the costs of the appeal within 14 days of these orders.

4. The appellant file and serve written submissions in response within 14 days of service of the submissions referred to in Order 3 being received (not exceeding 10 pages).

5. The respondent file and serve any submissions in reply within 7 days of the submissions referred to in Order 4 (not exceeding five pages).

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 Granville & Blakeslee 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 88 of 2016
File Number: CAC 751 of 2013

Mr Granville

Appellant

and

Ms Blakeslee

Respondent

REASONS FOR JUDGMENT

1. On 19 May 2016 Faulks DCJ made final orders in parenting and property proceedings between Mr Granville and Ms Blakeslee.  It is convenient that we adopt the primary judge’s approach of referring to the parties as “father” and “mother” respectively.  By his Amended Notice of Appeal filed on 1 December 2016 the father appeals against both the parenting and property orders.

2. The parties began living together in late 2003 and married in 2006.  There are three children of their relationship who were born in 2007, 2008 and 2011.

3. The parties separated in May 2013.  In July 2013 interim orders were made in the Federal Circuit Court which provided that the parties have equal shared parental responsibility for the children, and that the children spend five nights each fortnight with the father.

4. The matter was transferred to the Family Court in November 2013 and the final trial took place over three days in July 2014. 

5. In January 2016 the primary judge invited the parties to reopen the evidence given the delay in the delivery of reasons.  On 11 April 2016 the primary judge acceded to the father’s application to reopen the evidence and made informal directions as to the scope of the reopening, essentially for the parties to obtain updated valuation evidence of the former matrimonial home and to each file an affidavit updating their financial circumstances. The reopening of evidence occurred on 9 May 2016 and judgment was delivered on 19 May 2016.

6. Central to the appeal was the delay between the conclusion of the evidence at trial in July 2014 and the delivery of judgment.  It was argued that the delay resulted in the reasons containing factual errors which were translated to the orders ultimately made.  The mother conceded some errors but contended that none was material to the orders ultimately made.

Parenting Issues

1. So far as the parties’ proposals for parenting were concerned, each sought an order for equal shared parental responsibility.  Each parent sought orders for the children to live primarily with that parent and to spend substantial and significant time with the other parent.  The father sought additional orders which covered the children’s time on special days being Mother’s Day and Father’s Day, the birthdays of each of the parties, and each of the children, Easter and Christmas.  The mother’s minutes made no reference to special days other than Mother’s Day and Father’s Day and, it seems from the minutes, the parties were in agreement as to the arrangements for those days.

2. In summary, as to the time that the children would spend with the parties, the father sought orders that the children live with him and spend six nights each fortnight with the mother.  The mother sought orders that the children spend time with the father for five nights in each fortnight and the rest of the time live with her.

3. His Honour made orders as to the time spent with each party in accordance with the orders sought by the mother.  His Honour made no orders as to any special days, whether those agreed by the parties as reflected in their respective minutes, or those in dispute.  

4. The appeal raised six grounds of challenge to his Honour’s orders.  The first four concern the parenting orders.

The minutes of orders sought by the parties (Ground 1)

1. Ground 1 contends that the primary judge erred in determining the issues having regard to the father’s minute of orders sought which was filed in July 2014 rather than the minute filed in May 2016, and the mother’s minute of orders filed in February 2014 rather than the minute filed in July 2014.

2. The primary judge’s reasons attached as an addendum the parties’ minutes of orders sought and it was uncontentious that the minutes attached were the minutes of each party first filed in 2014, not those filed later.  This became the focus of the complaint of the primary judge’s errors of fact and it was contended that by referring to the orders originally sought by the parties in 2014, the primary judge was led into error.

3. In both minutes filed, the father sought that the children live with him and spend six nights a fortnight with the mother, while the mother consistently sought an order that the children live with her and spend five nights a fortnight with the father.

4. The father sought the same orders as to special days and as to the timing of handovers in both minutes.  The only difference in the parenting orders sought by the father was that the 2016 minute removed the reference to the youngest child commencing primary school.

5. Likewise, the mother’s minutes were virtually the same save for the mother’s position in respect to parental responsibility which we propose to consider in Ground 2 below.  Otherwise, the only difference was that an order in relation to schooling was not pressed, and a slight variation in regards to the handover times put forward by the mother. However, we note that ultimately in submissions on the reopening of the matter in 2016 the mother reverted back to her original position on handover times and submitted that the times specified in the interim orders of July 2013 should continue.  Both of the mother’s minutes made proposals for time on Mother’s Day and Father’s Day, but did not address any other special days.   

6. Leaving aside the issue of parental responsibility, we fail to see how his Honour’s consideration of the orders sought in the earlier minutes could have led him into any material error when the orders sought by the father and mother in relation to parenting were, for all practical purposes, identical in both minutes.

7. It was further argued that relying on the earlier minutes of orders led the primary judge to misunderstand the orders sought by the father as to time with the children.

8. It was submitted that in several places the primary judge misrepresented the orders the father was seeking.  The argument on this aspect of the appeal devolved to an exercise in which the words and phrases from his Honour’s reasons and exchanges with counsel during the hearing were extracted and analysed out of context. The father contended that these reflected a failure of the primary judge to appreciate the orders that the father was seeking. 

9. Senior counsel for the father placed particular emphasis upon the fact that at [14] the primary judge referred to the orders sought by each party, and said that “each in effect, sought a mirror image of the other’s orders”. It was argued that this demonstrated the error because the father’s orders sought that the mother spend time with the children for six nights a fortnight, whereas the mother sought that the father only have the children for five nights a fortnight.  However, during discussion with counsel for the father on the reopening of the evidence in the matter, a hearing held only a week or so before judgment was delivered, the following exchange took place:

   [COUNSEL]: … And I should say, your Honour, that the effect of our orders about parenting is actually eight/six in favour of my client.  That’s not new.  That’s the provision under the original ---

   HIS HONOUR:  I'm sorry. I was speaking in a short-hand way. I hadn’t – it depends on whether you count nights or days or hours or whatever it may be. And it appeared to me that each of the parties was seeking a division of time which was a mirror image of the other.

   [COUNSEL]: Certainly.  Just it’s usual to think nights, your Honour. … But just so that your Honour wasn’t left with a misapprehension, our minute is for an eight/six arrangement, measuring nights during school term.

   (Transcript 9 May 2016, page 9, line 28)

10. Two points must be made as to this exchange.  First, if the primary judge was in any doubt as to what order was being sought by the father, it was driven home in that exchange.  Second, it is difficult to contend that the words “mirror image” used in the judgment at [14] reflect any misapprehension as to the father’s proposal given that at [21] of the reasons the primary judge recorded:

    [T]he parties are in dispute (so far as the children are concerned) substantially on whether the children should spend nine (or eight) nights a fortnight with the father and the balance with their mother or that the children should spend nine (or eight) nights a fortnight with the mother and the balance with their father.

11. Further, irrespective of either party’s proposed orders, at [37] the primary judge discusses his consideration of “equal time or perhaps more precisely that the children should spend week and week about with each of the parents”, and at [30] his Honour again refers to equal time in the context of discussing the s 65DAA (of the Family Law Act 1975 (Cth) (“the Act”)) presumption. At [56] the primary judge gives specific consideration to the recommendation of the family consultant of the possibility of “an extra day for the father”.

12. We are not persuaded that there was any misapprehension by the primary judge as to the father’s proposal that the children live primarily with him and spend substantial and significant time with the mother.  Indeed, the expression in [14] “mirror image of the other’s orders in substance”, read in context, reflects the fact that each parent was seeking an order that the children live primarily with that parent and spend time with the other parent.  Paragraph [14] appears as part of the discussion by the primary judge about both parenting and property issues between the parties.  Turning specifically to the topic headed “The children”, apart from what is recorded at [21] already referred to, the primary judge recorded at [27] and [31]:

    27.Each of the parents acknowledges that the children love the other parent.  Each of the parents acknowledges (with far less reservation that is normally the case in matters before this Court) that the other parent is a good and competent parent. 

    …

    31.In this case, on the basis of either of the parents’ proposals, the children will be spending substantial and significant time with the other parent. 

13. It is clear his Honour was cognisant of the father’s position but did not agree with it, as evidenced by the following finding:

    39.… I believe that the father has persuaded himself (but not necessarily me) that the children want to spend more time with him.  This appears to be in part corroborated by his mother.  For the reasons expressed by the Family Consultant I do not accept that those reasons should carry the day.  The children would like to spend time with each of their parents, would benefit from spending time with each of their parents and will spend time with each of their parents.

    (emphasis as in original)

14. From [33] to [36] the primary judge discusses the primary considerations in s 60CC(2) and in that context records at [37]:

    37.There would have been certain symmetry in the parents having equal time or perhaps more precisely that the children should spend week and week about with each of the parents.  This was not a suggestion that either parent wished to adopt, although the suggestion was made by me during the course of the proceedings.  Sadly, notwithstanding the regard in which each of the parents apparently held the other they had still managed to be in dispute about many things and a higher degree of cooperation would be required for the children to spend equal time with each parent.  That having been said, it is difficult to see how the arrangements either proposes would in any way alleviate that situation particularly in circumstances where each of them has equal shared parental responsibility with the other. 

15. When the reasons for judgment are read as a whole, including the primary judge’s discussion of the s 60CC(3) “additional considerations” at [38] to [56], there is no substance in the contention that there was any misapprehension on the part of the primary judge that the father was seeking orders for the children to live primarily with him and spend substantial and significant time with the mother.  Moreover, such a reading readily reveals the path of reasoning of the primary judge to the “live with” and “spend time with” orders the primary judge made.  It follows that Ground 1 fails.

Parental responsibility (Ground 2)

1. This challenge contended that the primary judge misconceived the orders sought by the mother in relation to parental responsibility.  The primary judge ordered that the parties have equal shared parental responsibility, save that the mother have sole parental responsibility for medical and educational decisions relating to the children.

2. It was argued that this reflected his Honour’s misunderstanding of the orders sought by the parties.  It was undisputed that in her minute of orders filed in February 2014 the mother sought an order for equal shared parental responsibility, save that decision making in relation to the children’s medical and educational issues be reserved to her.  A later minute filed in July 2014 on which the mother relied at the trial sought an order for equal shared parental responsibility without qualification.

3. It was argued that, while the primary judge was not bound to follow the parties’ proposals, there was insufficient evidence on which the primary judge could have determined to reserve that decision making to the mother.  It was also argued that as the mother ultimately agreed by her orders sought that there should be an order for equal shared parental responsibility it was unfair of the primary judge to make that determination without hearing argument as to that issue.

4. We do not necessarily agree that his Honour did, in fact, misunderstand the parties’ situations, given the evidence.  In fact, the day after the mother filed her updated minute of orders in July 2014 in which she sought no exceptions to an order for equal shared parental responsibility, she said in cross-examination that she would still like sole parental responsibility for medical and educational decision making “if [she] could get it”.

5. However, in the result, the mother’s position before his Honour was that she sought an order for equal shared parental responsibility without exceptions.

6. On the appeal the mother agreed that that order did not reflect her final position and conceded that this Court should find that ground established, set his Honour’s order aside and re-exercise the Court’s discretion to make an order for equal shared parental responsibility without qualification.  That is the course we will adopt.

7. Ground 2 further contended that the primary judge failed to give proper consideration to s 60CC in the determination of parental responsibility, and failed to consider s 65DAA in formulating the parenting orders.

Consideration of parental responsibility and s 65DAA

1. It was argued that the primary judge resolved the issue of parental responsibility without first considering the children’s best interests.

2. It was further submitted that his Honour did not consider s 65DAA “at all” and, in particular, did not consider whether the orders were reasonably practicable in regards to the handover time.

3. When his Honour’s reasons are considered as a whole, these contentions fall away.

1. From [21] in the reasons, the primary judge discussed the evidence as it related to the children and identified the matters on which the parties were in dispute and those which were agreed. At [30] his Honour commenced his discussion of s 65DAA and said:

   30. The Family Law Act 1975 requires that I should apply a presumption that the parents should have equal shared parental responsibility. That is a matter of substantial agreement in this matter. If I am to make such an order then it is necessary for me to consider whether the children should spend equal shared time with the parents and, if that would not be in the children’s best interests or would be impracticable, to consider whether the children should spend substantial and significant time with each parent as those terms are defined in the Act. [footnote referencing s 65DAA(2)]

   31. In this case, on the basis of either of the parents’ proposals, the children will be spending substantial and significant time with the other parent. 

2. The primary judge then referred to the determination of best interests by reference to s 60CC and expressly determined the two primary considerations at [35] and [36] and referred to the additional considerations by reference to the report of the family consultant at [34], and in depth at [39] to [52].  

3. During the hearing the primary judge discussed with the parties whether it would be in the children’s best interests for them to spend equal time with the parties, but neither party was attracted to that consideration.  His Honour reflected on equal time and said:

   37. … Sadly, notwithstanding the regard in which each of the parents apparently held the other they had still managed to be in dispute about many things and a higher degree of cooperation would be required for the children to spend equal time with each parent. 

4. After making specific reference to the additional considerations to which s 60CC refers, the primary judge returned to the time that the children would spend with each party and said:

   54. I considered making orders that the children spend week and week about with each parent.  While the symmetry of such orders is appealing, there is little to commend it on the basis of the considerations set out above.  Moreover, neither parent wanted that. 

5. Turning then to the submission of the father in relation to this issue, it was argued that the primary judge failed to consider s 65DAA “at all” in determining the orders to be made and failed to consider the reasonable practicability of the orders when there was a “substantial dispute as to the handover time on Wednesday and Thursday and whether the time would commence at home or at school”.

6. We reject so much of the submission that contends that there was no consideration of s 65DAA at all, which a reading of his Honour’s reasons makes clear. His Honour himself raised equal time which was rejected by both parties. In our opinion, that is sufficient consideration of the issue. However, in any event, the primary judge returned to the issue of equal time and considered that, because of the matters to which he referred in his reasons, an order for equal time was not appropriate. His Honour then made orders for substantial and significant time. We fail to see any error in his Honour’s approach in this regard.

7. We too reject the contention of there being a “substantial dispute” as to handover time which meant that the orders ultimately made were not practicable.  Certainly the father sought different orders than the mother as to when the children would be delivered between the parties, but the father did not contend to the primary judge that the mother’s proposed times of handover for the children rendered their spending substantial and significant time with the parties impracticable. 

8. The issue of handover time was squarely in his Honour’s mind at the reopening, as the following exchange indicates:

   HIS HONOUR: … Just the other aspect, though, … is the drop off and pick up arrangements which appear now to have moved from whatever it is now. Is it — is the — what [the mother] describes as the current arrangement, which is a drop off at 8 in the morning and a pick up by your client after school satisfactory or not?

   [COUNSEL FOR THE FATHER]: Our arrangements were for 6 in the evening, your Honour.

   HIS HONOUR: Yes, I understand. I’m just asking whether this as an alternative might be equally satisfactory.

   [COUNSEL FOR THE FATHER]: I don’t know, your Honour. We didn’t come for parenting today, so that’s the first I’ve heard of that. My instructions are ---

   HIS HONOUR: Well, you did come for parenting today, with all due respect. I made it abundantly clear on the last occasion that I wanted the parties to explore the practicalities of the orders as they existed. Now, that may not be your client’s fault or it may not be [the mother’s] fault, but I was certainly anxious to resolve the issues about those sorts of practical issues today. If you need some time to talk to your client, I will give you that time.

   (Transcript 9 May 2016, page 33 line 22 to 41)

9. There was then an adjournment for counsel to speak to the father. On return, responding to a question from his Honour as to whether there was any progress about some consensus for handover times, counsel for the father said:

   Your Honour, our position is to do it as per the orders, which provide for a 6 pm Wednesday the children would go with the mother. That’s after her work day. And to 6 pm Friday. And then 6 pm Thursday for the same reason but it’s delivery to school following Monday. There had originally been orders starting at 8 am but, of course, that was when [the youngest child] was not at school, so there was some understandable basis for that. But for the reasons I’ve said, it’s our position that we should adhere to the — what’s sought in paragraph 2 of the minute of orders.

   (Transcript 9 May 2016, page 34 line 10 to 16)

10. It is clear that even when asked directly by the primary judge whether there would be any issues of practicability as to the current interim orders continuing, counsel for the father merely restated the orders the father sought. While counsel did note that the original basis for the handover times had changed, there was no submission as to why the orders were now impracticable. This must also be considered in light of the mother’s submissions at the reopening that:

    … it is probably more suitable to do the handover to [the father] before school, which is the current arrangement … I think the children are comfortable going to [the father] at 8 am partly because they can leave their things at his place and then go on to school.

    (Transcript 9 May 2016, page 30 line 45 to 46, page 31 line 5 to 7).

11. We note also the fact that the interim arrangements had been in place since 2013 and there was no evidence before his Honour that any issues of practicability with the orders had been raised, even after the youngest child had started school.

12. We are therefore not satisfied that his Honour erred in his consideration of s 65DAA.

Special days and handover times (Ground 3)

1. There is no doubt that both parties sought different orders as to the allocation of time with the children on certain special days and different orders as to the times when the children would pass between the parents. 

Handover

1. We have dealt with the father’s challenges to the handover times insofar as they related to the reasonable practicability of the orders and need not repeat those findings. However, the father also submitted that the orders as to handover were in error as his Honour “failed to determine” the handover arrangements and failed to give reasons for the orders his Honour did make in relation to handover times.

2. The orders as to the times at which the children would pass between the parties, that is at 8.00 am and 6.00 pm, reflect the regime put in place by the orders made in the Federal Circuit Court in 2013 and reflected the orders sought by the mother in final submissions at the reopened hearing. 

3. The primary judge said:

   14. The parties were invited to examine the orders that had been operating for some time (recognising that each in effect, sought a mirror image of the other’s orders in substance) with a view to fine‑tuning the pick-up and delivery arrangements or timing.  This invitation did not produce any consensus for change.  At the re‑opened hearing the wife suggested that it would be preferable for the children to be dropped off at the husband’s home (now in [Suburb I]) at 8am and for the children be collected by him from school.  The husband, notwithstanding an invitation to reconsider the matter, persisted with seeking the orders as set out in endnoteⁱ to these Reasons for Judgment with the hand-over at 6pm. 

4. Clearly then the primary judge’s orders in relation to the times at which the children were dropped off reflect those suggested by the mother.  It is understandable that his Honour would make that order given that it had been one in place for some time; accorded with the orders sought by the mother; and where it was not suggested that there was any difficulty for the children in the continuation of that regime.

5. The primary judge discussed the implementation of the interim orders with the parties during a brief mention of the matter in April 2016.  The mother said that she and the father had been implementing the orders “quite smoothly”.  His Honour directed an enquiry to the father’s solicitor as to how the orders had been working and the father’s solicitor said:

   [SOLICITOR FOR THE FATHER]: ... I think [the mother] used the word “smooth”. I’ve gone months and months and months without hearing from my client about ever needing me for anything, so I would in broad terms have to say that while perhaps occasionally disagreements have broken out which my client has — I’ve had some conversations about, on the whole both parties have taken a pragmatic approach and have just continued …

   (Transcript 11 April 2016, page 26 line 7 to 12)

6. In light of these exchanges we do not accept that his Honour failed to consider the issue and the basis for his leaving the handover times as they were under the interim orders was clearly informed by the parties’ consensus that they were working smoothly.  His Honour’s discussion with the parties, coming as it did very soon before the judgment was delivered, must clearly have been in his mind and we are not persuaded that his Honour was in error.  We do not agree with the contention that the primary judge erred in failing to decide the issue.

7. Nor do we agree that his Honour failed to give reasons for making the orders as to handover.  His Honour said:

   25. As might be observed, the detailed arrangements about the children are substantially agreed with the exception of the additional day (or days) that they might spend with one parent rather than the other. 

8. His Honour was undoubtedly correct.  Those arrangements were substantially agreed and at [25] he provided sufficient reasons, especially in the context of his Honour’s discussion that the interim orders had been working.

Special days

1. We accept that the issue having been joined between the parties concerning orders for time on special days, it was necessary for the primary judge to resolve that issue and his Honour was in error in not doing so.  We accept that in circumstances where the parties appeared to be in agreement that orders should be made for time on Mother’s Day and Father’s Day, his Honour would appear to have overlooked making those agreed orders.

2. However, it is not axiomatic that any identifiable error on the part of a trial judge renders it “appropriate” within the meaning of s 94(2) of the Act for this Court to order a rehearing. A new trial is not ordered where no substantial miscarriage of justice has actually occurred (Lane & Nichols (2016) FLC 93‑750 at 81,959 to 81,960).

3. In our judgment it cannot be concluded that the subject error was productive of any substantial miscarriage of justice given the combined effect of the following:

   ·The relative importance of orders for special occasions, in the context of the parenting orders otherwise made and in the overall circumstances of this case, is reflected in the feature that at neither the final submission stage at trial in July 2014, nor when submissions were made at the reopening of the evidence on 9 May 2016, did either party address any submissions, at all, to the issue;

   ·The operative effect of the parenting orders as made means that the substantial and significant time the children will spend with each parent will include, from time to time, the special occasions identified in any event and, it must be observed, it takes little parental creativity to celebrate things such as, for example, birthdays on days proximate to the actual occasion where necessary; and

   ·By definition, parenting orders are interlocutory in nature. Parental responsibility (as defined in s 61B of the Act) means that the parents may determine special occasion time and the order that the parents have equal shared parental responsibility imposes the obligations on each parent identified in s 65DAC of the Act including the obligation to consult and make a genuine effort to come to a decision. If any impasse in decision making on this issue is encountered, a further application by either party for orders for time on special occasions could not conceivably encounter any potential impediment to a court entertaining the application by reason of the rule known as Rice and Asplund (1979) FLC 90-725 given that, as we have recorded, the issue of special occasion time has never been determined, and is not determined either expressly or by necessary implication, by the subject orders.

4. It follows that our finding of merit in this complaint does not have the consequence of us exercising the discretion in s 94(2) of the Act to order a rehearing.

Irrelevant considerations (Ground 4)

1. It was argued that in coming to his decision in respect to the parenting matter, the primary judge had regard to irrelevant matters and thus his determination was affected by error.

2. The first of these asserted irrelevant matters was said to arise where his Honour at [56] incorrectly described the orders the parties sought as seeking “little variation” to the interim orders. It was argued that to describe the father’s orders thus minimised the impact of what he was seeking; a complete change to the interim orders.  The force of the contention is somewhat diluted by the submission which continues and asserts: “Indeed elsewhere in the reasons the Court recognises the true scope of the dispute as to the children’s living arrangements” (father’s summary of argument filed 1 December 2016, paragraph 20).

3. We are left then to wonder, where it is acknowledged that his Honour recognised the true scope of the dispute, what the complaint contends.  As we have earlier discussed, it is clear when reading the reasons as a whole, and particularly [14], [21] and [56], that the primary judge well understood the ambit of the parenting dispute, and that his Honour gave due consideration to the proposal of the father. As with other grounds, this represents what we regard as an attempt to demonstrate error by cherry picking sentences and phrases from the reasons without context.

4. It was further argued that the primary judge, in referring to the fact that neither party had sought to vary the interim orders made in the Federal Circuit Court, erroneously took that circumstance to reflect that the father did not seek to change those orders.

5. Again, it is necessary to consider the context in which the impugned remarks occurred. 

6. In the course of discussing the evidence of the family consultant, his Honour at [29] recorded the comment of the family consultant that the children were apparently coping quite well “all things considered” with the arrangements then in place. After noting that the children expressed love for each parent and that the family consultant did not ascribe “any particular force” to the expressed views of two of them as to where they wanted to live, the primary judge concluded by saying: “So far as I am aware since the end of the trial neither parent has sought to vary the existing interim orders”. 

7. Then, in the context of discussing the parties’ financial support of the children, noting that the mother was likely to continue to be the principal financial support for the children and accepting the family consultant’s opinion that whatever order was made it was unlikely to have any significant effect on the children (at [45] and [46]), his Honour said:

   47. I am unable, on the basis of the evidence I have at the moment to determine whether there are at present any difficulties or particular expenses associated with the time the children were spending with each of their parents.  I am comforted by the fact that neither parent has made any application to vary the interim orders which have now been applicable for some time.  That would suggest that there has been at least toleration, if not a comfort, with the orders as they presently exist. 

   (emphasis as in original)

8. Finally, in considering the family consultant’s recommendation that the present arrangements continue but that the children spend “possibly an extra day” with the father, the primary judge said:

   56. … However the provision of the extra day does not seem to me to affect in any significant way the relationship the children will have with each of their parents and in my opinion the benefit of the continuity of the existing orders particularly in circumstances when no one has sought to change them and where each of the parents seeks but little variation in any event is not apparent. 

9. Clearly then, when read in the context in which the comments appear, the primary judge’s reference to the orders then in place served to reflect that the parties have been able to work within the orders. 

10. In our view, any suggestion that the primary judge was not aware that the father sought a change of parenting orders from those made in July 2013 is laid to rest by the following remarks of the solicitor for the father:

    They have worked amiably well, as well as can be expected under the regime imposed after an interim hearing, but my client’s position is and always has been what it was at the hearing.

    (Transcript 11 April 2016, page 26 line 25 to 27)

11. That his Honour well understood that neither party bore any onus of proof as to establishing any need for change to interim ordered arrangements is made clear by the exchanges between counsel for the father and his Honour during submissions at trial when that topic was specifically raised and discussed.  In those exchanges, the primary judge records, more than once, that there is no such onus and further records his understanding that counsel for the mother was not in fact arguing for the existence of any such onus (transcript 11 July 2014, page 297 line 5 to 25).

12. Clearly, his Honour was aware that although the orders were working well, the father still contended that they should be changed on a final basis. His Honour’s regard to the fact that the parties had worked within the interim orders without disagreement of such degree that court intervention was required was but one fact his Honour took into account in his determination of the issue, and it cannot be imputed that his Honour’s view was that the father did not seek to change the orders, or bore any particular onus of proof to demonstrate the need for change from the interim parenting arrangement as ordered.

13. We find no substance to this ground.

Property Issues

Contributions assessment (Ground 5)

1. The father further challenged the primary judge’s property orders and contended that his Honour erred in failing to make necessary findings of fact about, and therefore give sufficient weight to, the financial contributions made by or on behalf of the father.

1. Further, the ground challenges the primary judge’s characterisation of the parties’ respective financial positions at the commencement of the relationship.

Treatment of money from the father’s father

1. A significant area of contention on the appeal concerned money advanced by the father’s father.  The father contended that the primary judge failed to adequately resolve the question of whether these funds should be characterised as a joint contribution by the parties or a sole contribution of the father. It was also argued that his Honour erred in failing to quantify the amount of money given by the father’s father.

2. Before considering this argument it is useful to set out the nature of the changing evidence on this issue before his Honour.

3. In an affidavit filed 19 July 2013 the father stated:

   74. I acknowledge [the mother] is and has been the primary bread winner. However, [Granville] Investments Pty Ltd has loaned monies to [the mother] and I since 2005. This is a trust account operated by my parents …

   (emphasis added)

4. Details of the transactions were then set out. It was asserted that these transactions totalled $325,000 but in fact, correctly calculated, they total $307,000.

5. On 30 April 2014 the father filed a further affidavit in the proceedings. In this affidavit the father said:

   95.      My parents made the following gifts to me totalling $257,000 during the relationship.

   [details of dates and amounts of money]

   All of the above were paid by cheque from [Granville] Investments Pty Limited account.

   (emphasis added)

6. There was a separate loan from the father’s parents of $50,000 which was included in the figure from 19 July 2013 bringing it to $307,000, but which was ultimately repaid to them by the parties.

7. We pause here to note that not only did the father’s evidence change as to his classification of the advances from loans to gifts, but it also changed as to the recipients. That is, when he asserted that the funds advanced were loans, and thus were a debt, they were attributed to both parties in his evidence. However, when he later referred to them as gifts it was asserted that they were gifts to him alone.

8. The shifting character of the advances was raised by counsel for the  mother in cross-examination:

   You indicate, at paragraph 95 of your affidavit of 30 April, that your parents have made gifts to you totalling $257,000 and you set out where those gifts have been — or the dates those gifts were paid and the amounts set out from October 2005 to June  2012.  Do you remember putting that in your affidavit?---Is this what — which affidavit is this, sir?

   30 April?---Yes.

   And thereafter, you set out what you say is documentary evidence of those gifts being made, but that always hasn’t been your position as far as those payments is concerned, is it, that they’re – that they were gifts to you?---As far as I know, gifts or loans.

   Well, there’s a bit of a difference, isn’t there?---At the time, I thought it was a loan.

   At what time?---When they were given.

   Or when they were lent?---Correct.

   (Transcript 10 July 2014, page 148 line 44 to page 149 line 15)

9. The father’s evidence continued:

   Well, you would accept that there is a major difference between a loan to you and [the mother] and a gift to you?---Correct.

   Why, between swearing that affidavit in July last year and swearing your affidavit in April this year, have they changed from loans to gifts?---At that time at writing that affidavit, it was a loan and, I must admit, it must have been a mistake.

   Well, how were you mistaken about that?---So the wording should have been gifted not loaned.

   So that was wrong when you put “loan” down there?---Yes.

   And you knew that at the time when you swore it?---No.

   You didn’t know.  So what has changed between July last year and April this year to change your mind as to whether you thought they were loans or gifts?---At that time, I did not speak to my accountant to establish if it was a loan or if it was a gift.

   Well, your accountant doesn’t determine whether they’re loans or gifts.  It’s the arrangements between you and your parents?---Okay, but on my understanding, at that time, it was from [Granville] Investments Proprietary Limited.  At that time, that’s where I thought the money was coming from.  I had no access to [the mother’s] bank accounts, because I had been frozen out of the accounts and [the mother] was not providing the accounts to establish that.

   Was there any loan agreement?---No.

   Anything put down in paper at all?---No.

   Was there any discussion between you and your parents about whether the money would be repayable?---Not that I can remember.

   Right.  So looking at these amounts here, as far as you’re aware, none of them would be repayable; is that right?---Probably not.

   (Transcript 10 July 2014, page 149 line 27 to page 150 line 13)

10. After discussing the separate treatment of $50,000 of the funds from the father’s father as a loan, counsel for the mother continued:

    Now, you say that these moneys came from [Granville] Investments Proprietary Limited?---Can you say that again, please?

    These moneys that you say were gifts and the loan of $50,000, did they all come from [Granville] Investments Proprietary Limited?---At the time I thought it was, but it did not come from [Granville] Investments.

    Where did it come from?---My father’s personal account.

    Right. Your mother and father are not giving evidence in these proceedings?  They haven’t got---?---No.

    ---swore an affidavit.  So we really don’t know what their intention was as far as these gifts are concerned, do we?---No.

    And it’s just as likely that their intention was to benefit both you and [the mother] by gifting these loans, isn’t that correct?---Yes.

    (Transcript 10 July 2014, page 151 line 46 to page 152 line 14, emphasis added)

11. Counsel for the mother then attempted to establish if there was any independent record of the transactions. The father gave evidence that his father had retrospectively altered the cheque butts relating to the transactions, saying:

    Originally, my father did not write anything on the account.  It was either my name or [the mother’s] name to where the account was going.  As he discovered that [the mother] and I have separated, he got extremely uncomfortable with the amount of money that he has gifted us, so he put “loan” on the cheque butts.

    (Transcript 10 July 2014, page 154 line 20 to 23, emphasis added)

12. His Honour then said:

    Sorry.  Just before you — sorry.  Obviously, my mind is not working very quickly this morning.  Can I just make sure I’ve got it right.  You say that, originally, you looked at the – you’ve looked at the cheque butts from your father and, originally, he put on them only a name, be it [the father’s name] or, presumably, [the mother’s name].  But that at some point after your separation, he went back and wrote the word “loan” on each of those?   Correct.

    And what you say, though, is at some point after that, he and you, at least, agreed that they weren’t loans, apart from the [$50,000], but were gifts.  Is that the way it is?   Yes.

    So, originally, you understood them to be gifts, then re-categorised by your father as loans contemporaneously with about the time of your separation and that, subsequently, he then went back to his original position that they were gifts?   Correct.

    (Transcript 10 July 2014, page 155 line 19 to 33)

13. The cheque butts were tendered and comprised Exhibit F8.  It was asserted for the father that the fact that some of the cheque butts recorded “for [the father’s name]”, rather than the names of both parties, was evidence of the intention of his father that the money was a gift to the father alone.

14. However, in relation to at least six of the twelve payments that comprised the advances from the father’s father, the payee on the cheque butts was “[the mother’s name]”, and the cheques were banked into an account in her sole name. Of those payments, several were paid towards the mortgage on the house in Suburb M owned by the mother in her name and were paid before the parties married, albeit they were in a relationship at the time of the advance.

15. Thus, returning to the submissions in support of this ground, it was argued that the primary judge erred in failing to determine how much money had been advanced by the father’s father. 

16. The basis for this challenge rested on his Honour’s comment at [83] that “[i]t is quite difficult to determine precisely how much money was involved”. Thus it was argued that his Honour erred in failing to carry out this exercise and that failure affected his ultimate determination of the parties’ contributions.

17. It is to be noted that there was, at first, a dispute between the parties as to the actual amount advanced by the father’s father, the mother initially contending that the sum advanced was $155,270.  However in submissions, counsel for the mother conceded the sum as asserted by the father. 

18. As part of the submission it was argued that the determination of the precise amount advanced was merely a matter of a consideration of the cheque butts.  While, of course, superficially that may be the case, we do not accept that his Honour’s comment reflected a difficulty in calculating how much money was advanced but rather the correct characterisation of the advances.

19. We are fortified in this finding by what his Honour said:

    83. It is quite difficult to determine precisely how much money was involved in the transfer from the husband’s parents to the parties or to the husband.

    (emphasis added)

20. Given the wholly unsatisfactory nature of the evidence to which we have just referred, his Honour’s reflection on the difficulty posed was entirely apt. 

21. It was next contended that his Honour erred in not determining the nature of the money advanced, whether it was intended for the parties jointly or to the father individually. 

22. The primary judge considered the characterisation of the advances and the intention of the father’s father in making them.  His Honour noted that the father’s father gave no evidence as to his intention in advancing the funds.  His Honour took this into account in his consideration of the funds and said:

    85. … In this case it would have been a lot easier if the father’s father had given evidence about the arrangements involved. He did not file an affidavit and was not called to give evidence even when the issue became apparent. No attempt was made to lead any additional evidence from him in the reopening although this issue was explored at some length with counsel for the father during the course of prior submissions. Accordingly, it would be reasonable to conclude that the decision not to call [the father’s father] was deliberate. The inference that might ordinarily be drawn from such a decision is that his evidence would not have assisted the husband. The interesting question, of course, in this matter, is “assisted the husband” in which way? Would it assist his evidence by way of affidavit of his (contradictory) evidence orally or was it something else altogether?

23. It was contended by senior counsel for the father before us that his Honour’s statement as quoted reflects an obvious error on the part of the primary judge, going to an adverse inference drawn, given that the father’s father was deceased as at the time of the further hearing on the reopening of evidence which occurred on 9 May 2016.  However, we do not accept that his Honour’s statement is reflective of such error.  As will shortly be discussed, and as is reflected in the above quoted statement, the lack of direct evidence from the father’s father was an issue first raised in the July 2014 trial.  Leaving aside that the issue, then having been raised, prompted no action by the father to address it, and neither party sought to reopen the evidence until his Honour’s invitation to do so, it was in January 2016 that the primary judge invited the parties to reopen the evidence.  It was on 5 April 2016 that the father filed his Application in a Case seeking orders for further evidence, in response to his Honour’s invitation.  However, none of the orders sought by the father were directed to any evidence of his father being adduced.  It was on 11 April 2016 that his Honour heard and determined the father’s application and at that time canvassed with both parties any further evidence either party sought to adduce.  Whilst the primary judge was informed at that hearing that the father’s father had passed away the previous day, that information was imparted only by way of explanation for the father’s non-attendance at that hearing.  There was no suggestion that the death of the father’s father had forestalled any proposal or plan by the father to adduce evidence from his father on the reopening of the evidence.  Given this chronology of events, and the specific content of the father’s Application in a Case filed on 5 April 2016 as to the further evidence he sought to adduce on the reopening, his Honour’s statement that there was no attempt made by the father to lead any additional evidence from his own father at the reopening, was entirely accurate.    

24. During the initial hearing in 2014, the primary judge clearly raised his concern as to the evidence that the father’s father might be able to give concerning his intention in making the advances:

    [COUNSEL FOR THE FATHER]:   So it can’t be right that those cheques are made out to [the father], but the author of the cheque butt has written “For [the father]” and it’s written in the same handwriting as the “[the mother’s name]”.  And so if one was intending to benefit both parties one might have written “for [the mother and the father]”.

    HIS HONOUR:   They might have or you might not.  I don’t believe the evidence of the cheque butts is unequivocal.

    [COUNSEL FOR THE FATHER]:   Can I just go on, your Honour?  There’s more than that, than just the cheque butts.

    HIS HONOUR:   Yes.

    [COUNSEL FOR THE FATHER]:   Then we’ve got a statement of purpose by writing “For [the father]” on the cheque butts and, of course, that’s a statement made back in 2005, ’06, ’07 and following by the author of the cheque butt who is the donee of the money.  The best evidence, in my submission, both comes from the donor plus what he writes contemporaneous with the transaction, rather than some self-serving statement — which the court does see sometimes — of someone who comes to court at the time of a court case to give evidence, usually self-serving, about what they meant to do some years earlier with money that was received by a party to a marriage.

    HIS HONOUR:   You’ve got a problem …  The plain fact of the matter is there’s no evidence to suggest that [the father’s father] is not available and wasn’t available, couldn’t give evidence.  He didn’t give evidence.  I suspect without knowing — and I’m not being critical, I’m just simply saying — as a matter of forensic tactics you looked at Kessey, said the evidence in Kessey says if there isn’t any evidence as to intent then the court should effectively assume it’s a gift on behalf of one party.  You decided there wasn’t any evidence that would support the contention other than it was a gift on behalf of one party and, therefore, you chose not to call the one witness who could have put the matter at least beyond doubt so far as his sworn evidence was accepted. You didn’t call him.  Now, the fact that he writes something on a cheque butt, and the fact that he then subsequently apparently, according to your client at least, inappropriately and wrongly, and perhaps one might almost say intending to be deceptive, wrote “loan” on all of them after the event when things became a little hairier, would suggest that his evidence is not very reliable.  You’ve got a Jones v Dunkel because your client then changed his evidence in the course of his oral evidence and was quite unequivocal in saying it was a gift made to both.  So the only evidence, the only sworn evidence, by anyone who would reasonably know about it is from your client and that’s to the contrary of the proposition for which you’re contending. 

    (Transcript 11 July 2017, page 288 line 1 to 43)

25. Given the evidence about the alteration of the cheque butts, it may have been a reasonable forensic decision by counsel not to call the father’s father to give evidence on the matter.  However, the fact remains that where the question of the intention of the donor was squarely in issue due to the inconsistencies in the father’s evidence and the equivocal nature of the cheque butts, the primary judge did indeed turn his mind to the issue.

26. Moreover, to give what was noted on cheque butts by the father’s father determinative significance as to the donor’s intention, as counsel for the father sought to do, ignores that these were merely cheque butts noted by the author, presumably for his own record-keeping purposes.  There was no suggestion on the evidence that the cheque butts, or copies of them, were distributed to anyone and no consequent contemporaneous financial statements or records, deriving from the cheque butts, were in evidence to demonstrate that the recipient of funds was solely the father.  In an analogous context discussing intention of a settlor in a trust context, as expressed in Austin Wakeman Scott and William Franklin Fratcher and Mark L. Ascher, Scott and Ascher on Trusts, (Aspen Publishers, 5^th ed, 2006), sec 4.1, cited with approval by Gummow and Hayne JJ in Byrnes v Kendle (2011) 243 CLR 253 at 275:

    In some situations, legal consequences do turn on actual intentions, as in the case of those charged with certain crimes.  Ordinarily, however, the legal effect of a transaction does not depend on the parties’ secret intentions, but on the outward manifestations of their intentions.  For practical reasons, we disregard the parties’ undisclosed states of mind.  To be accurate, therefore, it is necessary, when dealing with the creation of a trust and its terms, to speak not of the settlor’s intention but of the settlor’s manifestation of intention.

27. As we have sought to demonstrate, on the father’s own evidence with all of its variances, on at least one view the intention manifested by the father’s father to him was an intention to benefit both parties via gifts of the funds.

28. As a matter of general principle, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child (see Kessey and Kessey (1994) FLC 92-495). However, here, such was the “confused and … confusing” nature of the evidence, his Honour was entitled to draw no inference as to the intention of the father’s father.

29. In any event, examining his Honour’s reasons and his final assessment as to contributions, it is apparent that his Honour did find that the advances reflected a contribution by the father.

30. His Honour concluded:

    89. … Because of the confused and to some extent confusing evidence of the husband about the contributions from his family, while I note that they were of benefit to both the parties, I am not prepared to give them the weight that [counsel for the husband] suggests that they should have. Nor for that matter, am I prepared to accept the wife’s submissions that her contributions during the relationship so clearly outweighed the husband’s that she should be regarded as having made a substantially greater contribution than he did.

31. The primary judge then considered the contributions made by the mother after separation to the maintenance of the Suburb F property, which was the most significant asset in the asset pool. His Honour viewed this as a “substantial contribution”, saying:

    90. … The amount involved is quite substantial. The increase in the value of the asset as a consequence of her maintaining it has been significant. The husband derives benefit from that increase in value …

32. His Honour then concluded:

    92. Taking all of those matters into account and analysing the situation as best I might, I determine that the contributions made by the parties in total should be ascribed as being 55 per cent by the wife and 45 per cent by the husband.

1. This assessment must be considered in light of the earlier comments of the primary judge as to the effects of his treatment of the funds from the father’s father on the contribution assessment:

   86. If I were to accept that this was a contribution made by or on behalf of the husband, in straight dollar amounts the initial contributions of the wife as developed and exemplified and realised through the [Suburb M] house (with acknowledged contributions physically and otherwise from the husband) and the contributions made by or on behalf of the husband from his family would be relatively similar. If on the other hand I were to accept that the gifts were made to both parties then the wife’s contribution would obviously be substantially greater.

   (Emphasis added)

2. Given his Honour’s final assessment was 55 per cent to the mother and 45 per cent to the father, and taking into account the “substantial” post separation contribution that his Honour indicated would be in the mother’s favour, it is clear that his Honour accepted the funds were contributions on behalf of the father, otherwise, in accordance with his Honour’s reasoning at [86] “the wife’s contribution would obviously be substantially greater”.

3. Thus, we do not agree that his Honour failed to characterise the nature of the advances and, despite there being equivocal evidence as to the intention of the father’s father, it is clear that his Honour regarded the advances as being a contribution on the father’s behalf.

4. The primary judge’s findings on this aspect are put into proper relativity when it is borne in mind that the net worth of the non-superannuation property interests of the parties, as found by the primary judge, totalled $822,291 (at [105]).  The post-separation period was three years during which the mother had continued to be primarily responsible for the financial support of the children.  Notwithstanding that the operative care arrangements involved the children living mainly with the mother, she paid substantial child support to the father of $960 per month at the time of the family report (February 2014) and $308 per fortnight at the time of judgment (at [44]).  In other words, aside from meeting the children’s expenses when living with her for the majority of time, the mother had paid to the father by way of child support about $10,000 per annum or about $30,000 in total.  The primary judge’s findings, unchallenged on appeal, included that (aside from rates) the mother had since separation solely met mortgage interest payments on the former matrimonial home totalling $73,253.14 and had reduced the principal of the mortgage debt by $22,359.  In the post-July 2014 period the home had increased in value by $125,000 (at [65]).  Viewed another way, primarily due to the mother’s contribution to maintaining the former matrimonial home as an asset, the net value of that asset at the time of orders was $751,251 compared to its net value of $603,892 as at the July 2014 trial.  The father occupied the home for about half of the post-separation period (at [64]).  Against that background the disparity of 10 per cent, produced by a 55 per cent/45 per cent assessment for contribution in favour of the mother was worth, in real money terms, a modest $82,229.10.

Characterisation of the father’s contributions at the start of the relationship

1. The second argument raised in relation to the primary judge’s findings on contributions took issue with his Honour’s observation at [82]. The focus of this argument was his Honour’s expression “[f]or all practical purposes the father had very little indeed”. This comment was seized upon as reflecting the primary judge’s misapprehension of the evidence and, it was argued that the primary judge did not evaluate the father’s contribution at the commencement of the relationship.

2. The undisputed evidence established that the mother is a solicitor and has worked in that profession throughout the relationship.  The father is a health care professional, having obtained the necessary qualifications during the marriage. 

3. At the commencement of the relationship in 2003, it was undisputed that the mother owned a property in Suburb M, which was subject to a mortgage, and savings.  The father had some shares which were gifts from his father and had some savings.  While there was evidence as to the price obtained on the sale of the father’s shares in 2009 and 2010, there was no evidence of their value at the time the parties commenced cohabitation.  Further, the dividends from some of the shares of the father were reinvested to acquire further shares although there was no evidence as to how many shares ultimately sold had been acquired by the reinvested dividends.

4. The property owned by the mother was re-mortgaged to finance renovation works on a property that the parties purchased jointly in 2009, which became the parties’ marital home. The mother’s property was then sold in 2011. As we discussed above, the mother contributed significantly to the increase in value in the former matrimonial home after separation. We consider this argument to be based on a flawed and selective reading of his Honour’s reasons.  His Honour said:

   81. It is uncontroversial that at the time that the parties began their relationship the mother owned a house in [Suburb M] in the Australian Capital Territory in which the parties subsequently lived when they returned from the UK. That property was substantially renovated and improved with the effort of both parties and the money primarily from the mother. It increased in value significantly and was the spring-board for the parties’ ability to acquire the [Suburb F] property, which is the substantial asset of the parties.

   82. It was equally uncontroversial that at the time of the parties’ relationship the mother had some savings.  Where they went to is not entirely clear on the evidence but there is no suggestion that it was in any way the subject of waste on the part of the mother or frittered away in some insignificant form.  I accept that was a contribution on her part.  I further accept that the mother’s contributions to superannuation at the beginning of their relationship did exist.  For all practical purposes the father had very little indeed.  He had about $5,000 in superannuation and some further shares that eventually were sold and invested back into the family …

5. Against the mother’s initial contributions to the relationship as set out by his Honour, the father was properly described as having “very little indeed” at the commencement of the relationship. No error has been demonstrated.

6. It follows that Ground 5 reveals no error in his Honour’s decision.

Section 75(2) factors and the treatment of the mother’s superannuation (Ground 6)

1. After considering the matters to which s 75(2) refers, the primary judge decided that no further adjustment to the already found contributions was necessary.

2. It was argued that to fail to make any adjustment in the father’s favour reflected an error because his Honour failed to take into account the parties’ relative incomes and earning capacities and had failed to give proper consideration to the mother’s interest in the superannuation fund in the United Kingdom (“the UK”). It was also submitted that his Honour erred in failing to undertake a s 75(2) assessment in relation to the superannuation pool.

Findings as to the parties’ incomes and earning capacities

1. It was argued that the primary judge failed to make necessary findings of fact as to the parties’ incomes and earning capacities and that this error affected his Honour’s consideration of the s 75(2) factors.

2. There was no dispute that the mother’s income and earning capacity was significantly greater than that of the father.  The father filed an updated affidavit as to his income, assets and liabilities in 2016 on the reopened hearing. 

3. On several occasions in his reasons, the primary judge reflected on the father’s capacity to earn income.  At [13] in considering an argument by the mother that the father had failed to make a full disclosure of his income, his Honour queried how, on the evidence the father had put before the court, the father “survives financially on a week to week basis”.  However, as to the effect of this argument by the mother, his Honour concluded:

   13. … While the lack of detail from the husband arouses suspicion about his credibility, no substantive evidence was adduced which would contradict his broad assertions about the veracity of his financial resources or capacity.

4. The primary judge found that the father did not seem to be very interested in working and had “effectively given up full time work” (at [22]).  His Honour later said:

   44. … It would be fair to say, that I formed the impression that the husband was not overwhelmingly enthusiastic about pursuing remunerated employment of one sort or another.

   45. It is likely, in my opinion, that the mother will continue to be the primary financial resource and support for the children …

5. We do not accept the foundational premise for the ground to the extent that the father contended that the primary judge was obliged to, in effect, perform an accounting exercise to determine the precise income and earning capacities. In the oft-cited judgment, Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378, Mahoney JA said at 386:

   Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence.  It will be sufficient, if the inference as to what is found is appropriately clear …

   (References omitted)

6. Importantly, but for a broad and ultimately not accepted submission by the mother that the father had not made full disclosure, the facts going to the parties’ earning capacities and incomes were not in significant dispute, nor was it suggested that to find that the mother’s earning capacity and income exceeded the father’s was wrong. We thus find no error in his Honour’s approach as to this aspect of the ground.

7. It necessarily follows that his Honour’s findings that the mother’s income and earning capacity was greater than that of the father were sufficient for consideration of s 75(2). Nonetheless it is helpful to consider his Honour’s reasons in dealing with this challenge. He said:

   97. It is acknowledged on both sides that the mother earns more than the father and will continue to do so.  The father was not deceptively but significantly vague about his future and what he might or might not earn and what sort of time would be involved in his doing so.

   98. The assumption is that the mother will go from strength to strength and will earn a reasonable, if not substantial, income into the future.  It was suggested by counsel for the father that his client would struggle to find appropriate accommodation for himself and for the children when they are with him.  I have little enthusiasm for this submission if for no other reason than, at no point was any further evidence suggested as being available to provide an insight into the father’s future plans. 

   99. Equally vague is the assistance he might receive by way of the [Granville] Family Trust Fund.  It is significant that the parties agreed that there was an asset which was at that point the father’s loan account.  That was appropriately an acknowledgment of a legal entitlement or perhaps a vested entitlement.  It was not made clear, nor were submissions made about, the potential benefit the husband may receive from that trust in the future.  It was common ground that [Company N] was a substantial enterprise and it is not clear whether or if the husband will have any benefit from the family business or the family trust in the future.  I draw no inference one way or the other except to note that when his entitlement to funds in the trust are declared and acknowledged and agreed it is reasonable for me to take into account at least in the broadest sense the fact that he has an existing entitlement and may and probably will continue to have an entitlement in the future.

8. Thus expressed, the assertion seminal to this challenge, that is that the father’s circumstances were greatly inferior to those of the mother, falls away to a degree.  Further, the evidence given by the father and its “vagueness” about his plans to earn income in the future, make a challenge to the weight that was attached to the evidence difficult to mount. 

9. Finally, the finding of the primary judge, unchallenged on this appeal, that the mother will continue to be the primary financial support for the children has critical significance.  At the time of judgment these children were aged only nine years, seven years and five years respectively.  We have already referred to the significant child support the mother has paid the father historically, notwithstanding that the children have lived primarily with the mother, as they will continue to do.  The financial burden borne by the mother will increase as the children age and will likely be borne by her for a significant time to come.  Given her age, it is unlikely that the mother will be able to access any of her superannuation to assist her in that endeavour.

10. In any event, challenges to the importance or weight attached to evidence face a considerable hurdle to appellate intervention.  It has not been shown that his Honour’s conclusions on the evidence were plainly wrong.

Treatment of the mother’s interest in the superannuation funds

1. We begin our discussion of this topic with reference to the authorities emphasising that the s 79 discretion involves an holistic evaluation of contributions of all kinds and has proper regard to the (differing) nature, form and characteristics and origin of the property considered (see, for example, Lovine & Connor and Anor (2012) FLC 93-515 and Dickons v Dickons (2014) 50 Fam LR 244 and the authorities referred to in those cases). Here, the reasons of the primary judge demonstrate that as part of that holistic exercise, the primary judge approached the question of any adjustment to the

   
   

   non-superannuation assets (worth a net total of $822,291) knowing what share of total superannuation (interests of an entirely different nature, form and characteristic) (worth a total of $286,308) each party would hold as a result of his Honour’s determination concerning superannuation. To demonstrate error in that approach, it must be shown that the overall outcome produced reflects some material failure in the discretionary exercise involved. In short, provided the proper evaluation of s 79 considerations (including s 75(2) factors where relevant) finds reflection in the making of just and equitable, and appropriate, orders ultimately, the destination may be reached in a variety of ways.

2. The father submitted that the Court failed to consider the relevant s 75(2) factors in considering how the superannuation pool should be divided between the parties.

3. We first note the following comments by then solicitor for the father at the April 2016 hearing:

   Your Honour, I can’t resile from the position that we had in July 2014.  It’s quite clear the position that we had.  And it was based on the fact of the ..... had made greater contributions and we did not apply section 75(2) factors to that [superannuation] pool.  It appeared to be that that was based on a contribution-based analysis and that our then greater percentage was then being — we were reflecting that in the non-super pool …      

   (Transcript 11 April 2016, page 17 line 14 to 19, emphasis added)

4. Where the father’s case was advanced on the s 75(2) factors being addressed only in the non-superannuation pool, he cannot now complain that his Honour was in error in following this course. Moreover, irrespective of any approach contended for by the father, the primary judge’s task was to determine appropriate and just and equitable orders.

5. In this case, apart from it being the approach the parties encouraged the primary judge to take, there was good reason for his Honour to give discrete consideration to a “pool” of superannuation interests, on the one hand, and the non-superannuation assets on the other, and consider any necessary adjustment for s 75(2) matters in relation to the non-superannuation property interests.

6. Section 90MC of the Act provides that a “superannuation interest” as defined in s 90MD is to be treated as “property”. That permits of the s 75(2) matters being considered in any alteration of “rights in respect of property” where a “superannuation interest” (as defined) is under consideration (s 79(4)(e)).

7. However, the majority of the mother’s interests in superannuation, and a very substantial component of the parties’ combined interest in superannuation, was the mother’s interest in what was referred to as “the UK fund”, an interest valued at $138,017. That interest was not an interest in an “eligible superannuation plan” and thus was not a “superannuation interest” within the meaning of those terms in s 90MD. That interest could not be treated as “property” and the interest was not amenable to a splitting order under s 90MT; it was not “property” for the purposes of s 79 and thus the s 75(2) matters could not be applied to this. His Honour was plainly correct to find at [75]:

   The UK funds, to the extent they exist, should be treated as a resource in the wife’s hands and taken into account generally under s 75(2) of the Family Law Act 1975 in relation to the division of the other property. 

8. In these circumstances no error in principle is demonstrated by the primary judge having taken the approach, as indeed was contended for by the father at trial, in undertaking consideration of the s 75(2) matters in relation to the non‑superannuation property interests. The consideration obviously proceeded on the basis that the mother would retain the financial resource represented by her interest in the UK fund and on the basis that the combined worth of the parties’ Australian “superannuation interests” was to be adjusted to effect an overall 55 per cent/45 per cent division of the worth of these interests in favour of the mother.

9. Finally, it was argued that the primary judge took the mother’s superannuation into account twice by considering it both in relation to the division of the superannuation asset pool and the non‑superannuation asset pool, and that his Honour placed insufficient weight on the mother’s UK superannuation funds in his consideration of s 75(2).

10. The mother had contributed to a number of superannuation funds, three in Australia and one in the UK.  The father had an interest in a superannuation fund.

11. On the funds in which the mother had an interest, one had been held by her before the relationship with the father and to which she had not contributed after the relationship. The primary judge found that the increase in those funds reflected growth in the fund rather than through the mother’s contributions and that she should be given further credit for it as it had been acquired prior to the relationship (at [73] and [74]).

12. As to the other two funds in Australia the primary judge found that even if the growth in the mother’s interest reflected contributions made during the relationship and there may be an element of indirect contribution by the father, the mother made the greater contribution to those funds (at [74]).

13. Turning then to the mother’s interest in the UK fund, the primary judge noted that there was some doubt about the net value of those funds if the mother sought to bring the money to Australia. His Honour further noted the parties’ apparent agreement that the Court had no power to make an order in relation to the funds.  Thus, his Honour concluded that he would take the mother’s interest in that fund into account as a financial resource (at [20]).

1. It was argued that the primary judge considered the mother’s superannuation funds as contributions both in the superannuation asset pool at [73] and the non‑superannuation pool at [82]. We do not accept that contention. 

2. At [73] when discussing the superannuation asset pool his Honour said:

   Of the funds remaining in Australia the wife asserts, without cross‑examination or contradiction that the funds contributed to the AMP were contributed pre-relationship and any increase in the value of those funds (some $3,000) is attributable to natural growth rather than any further contribution from her. Even if I were to assume that the balance of funds in Australia were contributed during the course of the relationship and therefore might properly have an indirect contribution from the husband, there is no doubt that the wife contributed more financially to her two superannuation funds and certainly should be given additional credit for the AMP funds because it was pre-relationship.

3. At [82], when discussing the parties’ contributions in respect to the non‑superannuation asset pool his Honour then said “I further accept that the mother’s contributions to superannuation at the beginning of their relationship did exist”.

4. We do not accept that his Honour’s mention of the AMP superannuation fund at [82] amounted to “double counting” of that asset when he had clearly, some paragraphs before, indicated the division that he proposed to effect, in relation to the superannuation policies in Australia.

5. It was also argued that his Honour failed to give the mother’s entitlement to the UK fund sufficient weight in assessing the s 75(2) factors.

6. It was undisputed that the Court could not make an order in relation to that fund. Further, there was real doubt as to whether the funds could be withdrawn from the fund and brought to Australia without significant taxation consequences.  So much is clear from his Honour’s description of the funds at [20]:

   It remains a question whether it would be just and equitable for me to make any order in relation to that fund except perhaps taking it into account as a financial resource of uncertain value.  

7. His Honour noted that as there was no evidence as to what those consequences might be, the most appropriate way of dealing with the fund was to set it to one side and treat it as a financial resource available to the mother ([71], [72] and [75]). As his Honour foreshadowed, at [101] he took that fund into account in considering s 75(2).

8. It bears repeating that on the primary judge’s unchallenged findings the mother will continue to be the primary financial support for three young children. Not only will the mother bear the cost of supporting the children when they are in her care, but on the post-separation history will subsidise the father’s care by way of payment of substantial child support from her (after tax) income. Any reasonable reflection upon the likely prospective financial cost involved in supporting three young children to financial independence in their adulthoods puts the significance of a financial resource valued at $138,017 (but which value appears to be subject to potential contingencies which may diminish its worth) into proper perspective. The primary judge properly recognised that the mother’s financial resource is not cash or its equivalent and there was no evidence to demonstrate ready accessibility of what is an interest in the nature of superannuation. We are not persuaded that the primary judge failed to give sufficient weight to the mother’s interest in the UK fund in assessing relevant s 75(2) matters.

9. We see no error in his Honour’s treatment of the mother’s superannuation.

10. This challenge will fail.

Conclusion

1. Thus, but for Ground 2 concerning the order for equal shared parental responsibility, the appeal will fail. Order 1 made on 19 May 2016 will be set aside.

2. It was agreed that if the appeal succeeded only as to that issue, the Court could re-exercise the discretion.  Both parties agreed that they should have equal shared parental responsibility without reservations. 

3. On that basis, and taking into account the evidence before the primary judge, we are of the view that to make that order would be in the children’s best interests.

Costs

1. In the event that the appeal succeeded only on the conceded ground in relation to parental responsibility, it was agreed that the parties should be offered an opportunity to place written submissions before the Court. Orders setting out a schedule for such submissions will be made.

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace & Kent JJ) delivered on 16 August 2017.

Associate: 

Date:  16 August 2017