H & H
[2005] FamCA 805
•27 July 2005
[2005] FamCA 805
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY Appeal No. EA 73 of 2004
File No. CAF 1638 of 2002
BETWEEN:
H
Appellant Husband
-and-
H
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: Bryant CJ, Finn and Coleman JJ
DATE OF HEARING: 8 November 2004
DATE OF JUDGMENT: 27 July 2005
APPEARANCES:
Mr Maurice of Counsel (instructed by Lessli Strong & Associates) appeared on behalf of the appellant husband.
Ms Tonkin of Counsel (instructed by Elrington Boardman Allport Lawyers) appeared on behalf of the respondent wife.
APPEAL SUMMARY
MATTER: H and H
APPEAL NUMBER: EA 73 of 2004
(CAF 1638 of 2002)
CORAM: Bryant CJ, Finn and Coleman JJ
DATE OF HEARING: 8 November 2004
DATE OF JUDGMENT: 27 July 2005
CATCHWORDS: FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Whether the trial Judge’s findings in relation to his decision permitting the wife to relocate were supported by the evidence – Whether the trial Judge gave sufficient weight to the opinion of the expert that the wife ought not relocate – Whether the trial Juge erred in finding that the wife would not be able to meet the children’s needs were she not permitted to relocate – Whether the trial Judge gave sufficient weight to the impact that permitting the wife and children to relocate would have on the relationship between the children and the husband – Whether the trial Judge erred in making particular findings about the level of support the wife would receive should she be permitted to relocate – RESIDENCE – CONTACT – Whether the trial Judge failed to address the husband’s application for joint residence, or erred in finding that the husband conceded the wife was the primary parent or gave insufficient reasons for rejecting the joint residence application of the husband.
FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – CONTRIBUTIONS – Whether the trial Judge gave sufficient reasons for his assessment of the parties’ contribution – Whether the trial Judge gave sufficient weight to the husband’s initial contributions of real estate and savings – SECTION 75(2) ADJUSTMENT – Whether the trial Judge erred in making a 15% adjustment in the wife’s favour – Whether the trial Judge gave sufficient reasons for making the adjustment that he did.
Caselaw cited:
U v U (2002) FLC 93-112
A v A (Relocation Approach) (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
Appeal against orders in relation to children’s matters dismissed.
Appeal against orders in relation to property settlement matters found to have substance but stood over for further consideration pending the receipt of submissions concerning a re-exercise of the discretion by the Full Court or a re-trial.
Directions made for the filing of written submissions.
This is an appeal by the husband against all orders made by Faulks J (as he then was) on 27 May 2004 in proceedings between the husband and the wife relating to the future living arrangements for the children of the parties’ marriage and also relating to property settlement.
Essentially his Honour’s orders provided that the three children should reside with the wife and that she should be permitted to relocate with the children from a rural area in southern New South Wales to Adelaide, that there should be contact between the children and the husband, and that the parties’ property, which had an agreed value of $1,241,704, should be divided equally between the husband and the wife.
Background
We understand it to be common ground that the parties married in November 1989. Their eldest child, a daughter JM, was born in October 1996, with twin daughters, JE and CGR being born in August 1999.
The husband and the wife separated in March 2002 with the wife remaining with the three children on the farming property on which the parties had lived for most of their marriage, and the husband moving first to live with his mother and then renting accommodation on another farming property. There had thus been a cohabitation period of a little over twelve years.
For the period of approximately two years between separation (May 2002) and the trial before Faulks J (May 2004), the husband had contact with the children from after school or child care on Fridays until the commencement of school on Mondays and on each Wednesday after school until 6.30pm.
Proceedings between the parties commenced when the husband filed an application in the Federal Magistrates Court on 10 May 2002 seeking final and interim orders for residence of the children (with contact between the children and the wife).
The wife filed a response on 17 May 2002 seeking residence orders in her favour (with contact between the children and the husband) and also orders for property settlement. (Her response was subsequently amended on 21 May 2002 to seek spousal maintenance orders.)
On 20 May 2002, Brewster FM made interim orders for residence in favour of the wife with orders for contact between the husband and the children each Wednesday evening and on alternate weekends.
The husband filed a reply to the wife’s application for property settlement orders on or about 20 June 2002.
In December 2002 the proceedings were transferred to the Family Court.
On 2 April 2004, the wife filed an amended response in which in addition to seeking property settlement and residence orders, she also sought an order that the children be permitted to relocate with her to live in South Australia.
On 3 May 2004, a psychiatrist, Dr Rikard-Bell, prepared a report in which he made recommendations regarding residence and contact and what he described as “comments regarding the option of relocation”. The recommendations at the conclusion of his report included the following:
1.I recommend that the children remain in residence with the mother but that they also, remain in the vicinity of the father. I do believe it is important that the children be able to continue having regular contact with the father on a fortnightly basis for the weekend and possibly one afternoon during the week. Their mother appears to have more to offer as a parent from an emotional point of view at their ages. She has a much wider range of emotional resources. The father’s role is restricted and narrow in his emotional repertoire. The mother could at times, run the risk of being overly protective and overly focussed on the children. However, I formed the view that she was more in tune in the children’s needs than the father. However, the father still loves the children and his input into the children compliments the mother very well.
2.I recommend that the contact arrangements continue.
3.It may be necessary for the mother to relocate to another town in the area if the alienation and isolation is a great problem. It is probably hard to see that a compromise is possible because either the mother could move to Adelaide and the children reside with the father and then she could commute on a regular basis to see the children. However, I believe that this would be detrimental to the children because they need her nurturing. Should the children move to Adelaide with the mother, I believe that gradually they would become distanced from the father and their relationship would be diluted severely. Unfortunately, the best thing for the children, which is to remain in close contact with both parents, is possibly not the best thing for the mother who needs to get away from the local community.
…
6.Should the mother remain in the area, I believe that the father should actively promote support for the mother.
7.If the mother did become severely depressed and unable to function, then it may be necessary for her and the children to relocate, however, this would be at great cost to the children and the father.
Faulks J heard the parties’ cross applications on 24, 25 and 26 May 2004. Again, we understand it to be common ground that at the commencement of the trial, the husband amended his application in respect of the children to seek a joint or shared week about arrangement.
On 27 May 2004 his Honour delivered an ex tempore judgment. It needs to be emphasised, given some of the issues raised on the appeal, that his Honour delivered his judgment on the day immediately following a three day trial. At the beginning of his judgment, he announced that he would permit the children to relocate to Adelaide and that there should be an equal division of the parties’ property. His Honour then gave his reasons for the decisions he had made. As is to be expected with an ex tempore judgment delivered almost simultaneously with the end of the trial, his Honour’s reasons focussed very much on the form and content of the submissions made to him on behalf of the parties.
The husband appealed all orders made by his Honour by a notice of appeal filed 19 July 2004 – the time for the filing of that notice having been extended by orders made by consent on 16 July 2004.
The husband’s appeal against the orders concerning the children (including the order permitting their relocation)
It was explained by Counsel for the husband at the outset of his submissions that the gravaman of the appeal was that the evidence did not support the findings on which the trial Judge relied in reaching his decision that the wife should be permitted to relocate the children to Adelaide.
The husband’s notice of appeal contained twelve grounds of appeal directed to the orders concerning the children. One ground (ground ten) was expressly abandoned before us. The remaining grounds were conveniently argued by Counsel for the husband in three groups – although ground twelve, which asserted that his Honour had given insufficient reasons “for discounting the primary recommendation [of Dr Rikard-Bell] that the wife and children ought not relocate to Adelaide”, was regarded as forming part of the challenge contained in each of the three group of grounds. We will now address sequentially those groups of grounds.
Grounds 1, 2 and 3: the husband’s application for joint residence
By grounds one, two and three, it is asserted that his Honour erred by:
·failing to address the husband’s application for joint residence (ground one);
·finding that by amending his application the husband had conceded that the wife was the unchallenged primary parent (ground two); and
·giving insufficient reasons for rejecting the husband’s joint residence application (ground three).
At an early stage in his judgment, his Honour identified the proposals of the parties (as he is required to do by authorities such as U v U (2002) FLC 93-112 and A v A (Relocation Approach) (2000) FLC 93-035) in the following way:
8.… Until the beginning of these proceedings, the father was seeking that the children live principally with him. That claim was abandoned at the beginning of these proceedings – and appropriately so in the light of the report from Dr Rikard-Bell…
9.At the beginning, the father sought that the children should live with each of their parents on a week and week about basis which would necessarily involve a restriction of the mother’s residence to a radius of about 70 kilometres from the husband’s present farming properties…. The father did not, however, seek to impose any other instructions upon the mother as to where she might live in that area. For some reason, this appeared to excite [the] ire [of Counsel for the wife]. It seems to me that it was a reasonable approach for him to take and to his credit, not for his criticism.
10.For her part, the mother seeks that she should be permitted to relocate with the children to Adelaide and for the children then to have what amounts to holiday contact with their father, although other supplementary methods of keeping in touch with him were agreed upon.
Against the background of his Honour’s comment (in paragraph 8 of his judgment) to the effect that it was appropriate in light of Dr Rikard-Bell’s report that the husband had at the beginning of the trial changed his application from one whereby the children would “live principally with him” to one where they would live week and week about with each parent, it was submitted by Counsel for the husband that his Honour had erred in not then examining in greater depth the husband’s application for a week about residence arrangement.
It is true that nowhere in his judgment does his Honour seem to have addressed the husband’s application for shared week about residence apart of course from the passing reference to that proposal made in paragraph 8 (and also in paragraph 24 when referring to a submission by Counsel for the husband). Nor did his Honour give any reasons for rejecting that application.
However, a consideration of the transcript of the trial, particularly of the final submissions of Counsel for the husband, indicates that there was little emphasis on a shared week about arrangement in the husband’s case before his Honour. Rather, the emphasis in the husband’s case seems to have been on finding a way in which to keep the wife and children within a reasonable range of the husband’s farm so that the children could continue to have frequent contact with the husband. The mechanics and/or feasibility of a week and week about arrangement seem never to have been explored in any depth. In these circumstances, the trial Judge cannot be criticised for not addressing such an arrangement other than in the passing way in which he did.
In support of this group of grounds, it was also submitted that his Honour should not have concluded that the wife was “the unchallenged primary parent” and that, in so finding, his Honour made a fundamental factual error. The finding in question was said to be found in paragraphs 20 and 38 of his Honour’s judgment which are as follows:
20.The relationship of the children with each of their parents is really at the hub of my considerations, as I indicated previously. The mother is the primary carer, has been and since the father abandoned his application about residence, will be, for the foreseeable future. Equally, however, perhaps as strongly, if not equally, the father’s involvement in the children’s lives is important.
…
38.In other words, the evidence for her family support is tenuous but it is a reasonable inference that she is more likely to derive support from that source or, indeed, from any other reasonable source in Adelaide than it would be from her residence anywhere in the designated radius. I have no concerns about her ability as a mother to make appropriate day-to-day arrangements for the children physically which includes providing adequate accommodation for them, ensuring that they are appropriately fed and warmed and schooled. A criticism of the vagueness of her proposals, bearing in mind that there has been no challenge to her competency as a parent or as a primary parent in these proceedings at all, (save only as to her alleged attitude towards the father) seems to me to be misplaced.
Again it has to be acknowledged that his Honour’s reference in paragraph 20 of his judgment to the husband having “abandoned his application about residence” appears to involve something of an oversight given that there was formally before his Honour an application by the husband for shared or week and week about residence. But, as we said above, that aspect of the husband’s case seems to have been little emphasised at the trial, and thus his Honour’s oversight is understandable.
But in any event when paragraph 20 is read as a whole, it will be appreciated that his Honour was there focussing on the relationship of the children with each parent, and thus it is difficult to see that his Honour’s reference to their future primary carer had any great significance or relevance.
In relation to paragraph 38, it is important to note what his Honour actually said, and that was, that there had been no challenge to the wife “as a primary parent in these proceedings at all”. Accordingly, the history of interlocutory applications by the husband for residence (which was relied on by Counsel for the husband in his written submissions) has no real relevance to any complaint directed to what his Honour said in paragraph 38.
Finally, in relation to the complaint which is embodied in this group of grounds, being that his Honour found the wife to be the primary parent of the children, it is important to note the following exchange which occurred during the cross-examination of the husband (Transcript 24/05/04 at p 70):
[COUNSEL FOR THE WIFE]: [Mr H], you’re not suggesting for one minute that [the wife] wasn’t the primary carer of the girls before separation are you? --- No.
Accordingly, and having regard particularly to the manner in which the husband’s case was conducted at trial, we do not consider that there is sufficient substance in any of grounds one, two and three to warrant our interference with his Honour’s decision.
Grounds 6 and 7: the wife’s capacity to meet the needs of the children if she was not permitted to relocate
Grounds six and seven assert that his Honour erred:
·in finding that the wife would not be able to meet all of the needs of the children, including their emotional needs were she to remain in the region (where the parties had lived) as this was contrary to the evidence (ground six); and
·by failing to take into the admissions made by the wife and by other witnesses to the effect that since separation the wife had always been able to meet all of the needs of the children, including their emotional needs (ground seven).
We understand from the written submissions of Counsel for the husband that these complaints are directed to conclusions reached by his Honour in paragraph 19 of his judgment concerning “the potential impairment of the wife’s capacity to parent were she not to relocate to Adelaide”.
Paragraph 19 of his Honour’s judgment needs to be read together with paragraph 18. These two paragraphs occur at a point in his Honour’s judgment where he is discussing the children’s wishes in the context of his consideration of the matters contained in s 68F(2) of the Family Law Act 1975 (“the Act”). Having concluded in paragraph 17 of his judgment that, given the ages of the children, their wishes were “not substantially relevant” to his ultimate determination, his Honour continued (emphasis added):
18.However, it seems to me that one aspect of the children's wishes is indirectly, if not directly, relevant to these proceedings and that is the question of their emotional support and happiness which is, in part, if not exclusively, but certainly primarily, dependent upon their mother. This is recognised by the Court-appointed expert in par 1 of his recommendations on page 11 of his report. He concluded that the mother was able to offer the children more emotional support and I must say that as a result of my observation of the parties in the giving of their evidence over what amounted to nearly 3 days, his conclusion is one with which I agree.
19.In my opinion, the father’s ability to provide emotional support for his wife, perhaps in the past, (although that is irrelevant in these proceedings) and certainly for the children in the future, is limited by the factors outlined by Dr Rikard-Bell in his report. As a conclusion from that, if the children’s mother is in an unhappy and isolated or distressed condition or worse, if she were to become depressed, this cannot reflect comfortably or well about the happiness of the children or indeed about where they would want properly to live.
We do not understand the husband to challenge the finding in paragraph 19 that if the wife was to be “in an unhappy and isolated or distressed condition or worse, if she were to become depressed, this cannot reflect comfortably or well about the happiness of the children”. Nor do we understand the husband to challenge his Honour’s recording in paragraphs 18 and 19 of Dr Rikard-Bell’s opinions. Rather, the overall complaint in grounds six and seven seems to be that the evidence did not support a finding that the wife would not be able to meet the needs of the children (including their emotional needs) if she were to remain in the farming area where the family had always lived, and also that the evidence would support a contrary finding (that is, that the wife would be able to meet those needs if she remained in that area).
His Honour did not in paragraph 19 find that the wife’s parenting ability would suffer if she remained in the farming area where the parties had always lived. However, it would be fair to say that that conclusion underlies much of his reasoning, and it is certainly a matter addressed by him in paragraphs 53 and 54 of his judgment. Those paragraphs are as follows:
53.[Counsel for the husband], by clever cross-examination, was able to make a submission that the mother had not suffered any impairment in her parenting ability by having to remain in the … area and indeed, in the highly-conflicted and isolated circumstances of her living in the former family home. This submission is unquestionably supported by the evidence and indeed, by the admissions [Counsel] extracted from the mother in the witness box. However, to some extent, it is a forensic, rather than a factual, [point] that is being made.
54The mother, essentially, had no choice and in circumstances where she was able to persist with adequately caring for the children when she was both distressed, isolated and potentially in a state of depression, (if not actually in one), it is to her credit, not to be used against her for the future. To suggest that in circumstances, which I accept must be severely distressing for her and, indeed, which were conceded, (and properly conceded by the father as being distressing and isolating for her), she should remain in those circumstances simply because there is no evidence that there has been a serious breakdown in her parenting ability so far is an ungenerous submission – even if one forensically available.
The specific complaint made by ground seven is that his Honour failed to take into account the admissions made by the wife and by other witnesses to the effect that since separation the wife had been able to meet all the needs of the children (while still in the farming area where the family had always lived). In support of this complaint, reliance was placed on the following passage from the cross-examination of the wife (Transcript 25/05/04 at p 181):
[COUNSEL FOR THE HUSBAND]: Yes, one question, your Honour. Are you able to tell his Honour if at any stage with all of this that you have gone through, you have been unable to parent the children properly, is there any point? --- Not parenting the children. I’ve had difficulty in ---
Reliance was also placed on the following passage from the cross-examination of the wife’s witness, Ms W (Transcript 24/05/04 at p 188):
[COUNSEL FOR THE HUSBAND:] Yes. And you have always seen their mother caring for them properly, so far as you are concerned? --- [MS W] Yes.
And she has never expressed to you at any time since the separation anything along the lines of that she is unable to cope? --- No, no.
No. As far as you are concerned, has always been able to look after them competently? --- Yes, she has coped very well.
However, in our view, once regard is had to what his Honour said in paragraphs 53 and 54 of his judgment, there cannot be any substance in the complaint that his Honour failed to have regard to the concession of the wife and her witness that she had been able to look after the children since separation notwithstanding that she had remained in the area where the family had always lived and which she now wanted to leave.
Further, we are of the view that it was entirely open to his Honour to express the views which he did in paragraphs 53 and 54 about the “forensic” nature of the wife’s concessions about her ability to cope as a parent in the area where the family had lived.
Perhaps the more significant complaint contained in grounds six and seven, at least as it emerged from the submissions of Counsel for the husband, is that his Honour disregarded (and did not give any reasons for so doing) the evidence of the expert, Dr Rikard-Bell to the effect that the wife’s parenting of the children had not been impaired despite the wife’s stated feelings of isolation in the rural area where the parties lived. The evidence to which Counsel directed us in this regard, and which we understood him to describe as “unequivocal” is as follows (Transcript 26/05/04 at p 232-233):
[COUNSEL FOR THE HUSBAND:] Yes. Now, at no stage did [the wife] say to you that her parent – that she was unable to cope in parenting the children at any stage after separation. Is that right? --- [DR RIKARD-BELL] That’s correct, yes.
In other words, she was obviously conveying to you her sense of unhappiness, but was not saying to you that it was so great that she was in any way impaired in looking after them? --- She never claimed that her parenting was impaired, although she did claim that she felt depressed and wasn’t coping as well as she would normally have coped.
But not to the extent that the children were suffering, or that it was affecting them? --- That’s correct.
All right. And you have weighed up the risks, that is, the risks to the mother remaining the general area as opposed to the risks to the children’s relationship with their father if she lives in Adelaide? You have weighed those up, haven’t you? --- I have, that is correct.
And you --- ? --- I think it is a difficult situation, to try and weigh up the two different possibilities. But in terms of what is best for the children, I tried to balance the pros and cons. I felt that for them it would be best for them to remain at least living within striking distance of the father rather than over 1000 kilometres away, which would make the relationship extraordinarily difficult.
Yes. And, doctor, you are convinced, aren’t you, or certain, that the mother was able to explain to you completely the concerns and anxieties and fears and other things that she was feeling being in [that area]? She gave you the full range of explanations about what effect it was having? --- Well, I mean, it was a range of explanations. She explains that she had concerns about the care of the father and the supervision at times with the children. But I felt the major issue really was her sense of feeling isolated in that community, and the need for finding better social recourse. The personal isolation as well as the physical isolation.
With respect to Counsel for the husband, we do not think that the above-quoted evidence from the doctor can be described as “unequivocal evidence to the effect that in his opinion the wife’s parenting of the children had not been impaired despite her stated feelings of isolation.” Rather, as we understand this evidence from the doctor, he accepted that the wife claimed to be depressed and feel isolated, but he had weighed the risk of this situation against the risk to the children’s relationship with the husband if they moved to Adelaide, and decided that the latter was the greater risk.
The ultimate weighing of the risks and the ultimate decision in this case were of course matters for his Honour. It is clear from paragraphs 18 and 19 of his judgment that his Honour placed great weight on the wife’s capacity to provide the children with greater emotional support than the husband was able to give them. In such a situation, the wife’s emotional well-being was obviously a crucial consideration. It is clear from Dr Rikard-Bell’s oral evidence just quoted, that the wife had emotional difficulties, such as feelings of isolation, living in the area where she had always lived prior to the breakdown of her marriage. As we have said, the doctor had weighed up the risks involved in either permitting or preventing the wife from moving with the children to Adelaide, and had reached a conclusion that the move should not occur. His Honour reached the opposite conclusion which he was entitled to do. Bearing in mind that this was an ex tempore judgment delivered on the day following the trial, we do not think that it was necessary for his Honour to go further than he did in explaining why he reached a decision different from that reached by Dr Rikard-Bell.
Perhaps because of the way in which Dr Rikard-Bell expressed himself in his report, the submissions supporting grounds 6 and 7 suggest that there was some onus on the mother to establish that her parenting capacity had been impaired, before the Court could permit her to re-locate. This is akin to the requirement for the mother to provide “compelling reasons” for her relocation with the child, a concept rejected by the High Court in AMS v AIF; AIF v AMS (1999) FLC ¶92-852. At paragraph 190 Kirby J said:
The central attack which the mother launched on the reasons of the primary judge…concerned…his conclusion that the welfare of the child would be better promoted by him continuing in [the] situation [in Perth] in the absence of any compelling reasons to the contrary. The mother argued that these demonstrated an erroneous approach to the question for decision. I agree.
Similarly in this case there was no presumption that, absent evidence that her parenting capacity would be impaired, the welfare of the children would be better promoted by them remaining in the local community. His Honour in our view fell into no error in approaching this matter in the way he did.
In relation to the weighing of risks which this case involved, we refer also to grounds four and five which assert that his Honour erred:
·by making orders for relocation notwithstanding that he found this would lead to a diminution in the relationship between the husband and the children and a substantial reduction in contact (ground four); and
·in failing to take into account the impact of relocation upon the children’s relationship with the husband having regard to the tender age of the twins [JE and CGR] (ground five).
It was not entirely clear from the submissions of Counsel for the husband as to which of the three groups of grounds, grounds four and five were regarded as forming part. However, we consider that they can conveniently be dealt with at this point.
As ground four recognises, his Honour appreciated that a move by the wife to Adelaide would lead to “a diminution in the relationship between the husband and the children and a substantial reduction in contact”. That his Honour well appreciated these matters and indeed also the issue of the children’s ages (which is the gravamen of ground five) is clear from the following paragraphs of his judgment:
14.Essentially, the mother’s proposal in this case necessarily involves a diminution of the relationship of the children with their father. Any suggestion to the contrary, it seems to me, is unsupportable as a matter of logic or as a matter of fact. The expert evidence does not support, except in a very limited way, the proposition that longer contact at less frequent intervals would enable the satisfactory continuation of the children’s existing relationship with their father. Indeed, in Dr Rikard-Bell’s opinion, it is undesirable that present level of contact with their father should be diminished (as appears from the recommendations in page 12 of his report).
15.I qualified my statement about his opinion before because it is true that during the course of his oral evidence, [Counsel for the wife] extracted from Dr Rikard-Bell an admission that as the children get older, the need for more frequent contact diminishes in part and although the support was but faint, in all of the circumstances, it appeared that Dr Rikard-Bell was suggesting that the children were approaching the cusp, at least, of the possibilities of such an arrangement not seriously affecting them.
However, as we have already said when considering grounds six and seven, these issues of the children’s contact and relationship with their father which obviously militated against a move to Adelaide, had to be balanced against the other considerations which favoured a move. His Honour also recognised that this was so when he went on to say:
16.Those matters having been said and the contrast, therefore, clearly delineated between a reduced relationship with their father and the requirement that their mother should accept an alternative which she regarded as unsatisfactory and which, in her counsel’s submission, would impair her ability to parent, I turn to a consideration of those proposals by reference to the best interests of the children as defined by s 68F(2) of the Family Law Act…
Later his Honour returned to the issue of the children’s contact with their father and to the importance of their relationship with him. In paragraph 20 which we have quoted in an earlier context, but here repeat, his Honour said (emphasis added):
20.The relationship of the children with each of their parents is really at the hub of my considerations, as I indicated previously. The mother is the primary carer, has been and since the father abandoned his application about residence, will be, for the foreseeable future. Equally, however, perhaps as strongly, if not equally, the father’s involvement in the children’s lives is important.
His Honour then continued on the subject of the children’s relationship with their father:
21.This is a factor which, in my opinion, the mother has not adequately recognised in the past, although she expresses the view orally that she is committed to that proposition. I accept that she has, in a generalised way, accepted the importance of the children’s father but she requires, in my opinion, further assistance for the future in cementing that view in place with a firmness that cannot be displaced. That relates to questions of counselling to which I will return when I make my orders.
22.The importance of the father in the children's lives is emphasised by Dr Rikard-Bell and I accept his conclusions in this regard even if, as appears from the indication I have given previously, I do not accept, ultimately, his recommendation about where the mother should live.
23.The effect of any change in the arrangements about the children must necessarily be to dilute the relationship of the children with their father. If the mother were to be living in the [general area where the family had been living] this would mean that the mother may be able to provide more contact for the children with their father and that, in itself, may affect her relationship with the children. Certainly, her living in Adelaide would have the effect of reducing the opportunities for contact between the children and their father, - a fact which I accept necessarily involves, as I indicated previously, a dilution of their relationship with him.
Then having referred to certain submissions made on behalf of the husband in relation to contact, his Honour said:
24.… However, regular contact, if unsatisfactory in the broader sense of the word, is, nevertheless, feasible and attainable by ensuring that the children spend each of the holidays or at least part of them with their father.
Thus we do not think that there can be any valid complaint that his Honour did not have regard to the children’s relationship with the husband and to their need for contact with him. It is clear from the passages of his judgment, to which we have just referred, that his Honour did place significant weight on these matters.
But with respect to those who drafted ground four, a simple finding that the relocation would reduce the children’s contact and diminish their relationship with their father could not determine this case. His Honour had to go on and balance (as he did) those matters against other matters which favoured the wife being able to move with the children to Adelaide.
Accordingly, grounds four, five, six and seven have not been established.
Grounds 8, 9, 11 and 12: the wife’s reasons for the proposed relocation and the trial Judge’s rejection of the expert evidence
Grounds eight, nine, eleven and twelve assert that his Honour erred:
·by treating an alleged admission by the husband as evidence that the wife was more likely to receive support in Adelaide (ground eight);
·in finding that the wife was more likely to receive support in Adelaide when this was contrary to the evidence (ground nine);
·by failing to address all of Dr Rikard-Bell’s recommendations in his reasons in particular that the children ought to see the husband weekly (ground eleven); and
·by giving insufficient reasons for discounting the primary recommendation that the wife and children ought not to relocate to Adelaide (ground twelve).
Although these four grounds were addressed as a group by Counsel for the husband, we consider that they are in fact directed to two somewhat separate issues. The first issue is the wife’s proposed arrangements in Adelaide and the second is his Honour’s failure to follow Dr Rikard-Bell’s recommendations that the wife and children not be permitted to relocate.
We consider that we have earlier said all that needs to be said about the issues raised by grounds eleven and twelve, being the issue of the children’s contact with their father and his Honour’s ultimate decision which was contrary to Dr Rikard-Bell’s recommendations against relocation.
As to the matters raised by grounds eight and nine, being essentially the likely support for the wife in Adelaide, his Honour was clearly aware of the lack of detail in the wife’s proposal (including family support) when he said in the following paragraph:
37.In sub-par (h), I am to look at the responsibility of the parents and their attitude towards parenting. … I believe that the mother’s choice to move to Adelaide in these proceedings or her desire to do so is a responsible move. In this regard, while it is true, and I note that [Counsel for the mother] was unable to supply me with a single instance, other than a small time when two of the children lived with one of the mother’s brothers of support from her family, that the comparison and proposals would suggest that she is more likely to receive support if she were living in Adelaide than if she were living in any of the other areas within the 70 kilometre radius suggested by the father.
…
47.The second submission put to me by [Counsel for the father] about which I wish to comment is that the mother’s proposal about living in Adelaide was an idealised dream. This was coupled with his, I think, appropriate submission that the mother’s proposals about Adelaide were vague and to some extent ill-thought out. I accept the vagueness, I do not necessarily accept the ill-thought out because I accept, as I have suggested previously, that a person moving into a new environment must necessarily have no firm ideas about all of the physical arrangements required.
48.I do, however, accept that there is an element of idealisation in the decision of the mother to move to Adelaide. However, for the reasons that I have articulated previously, whether or not this was not as precisely thought through as she might have done, in my opinion, it does represent, in the circumstances, an appropriate move in the best interests of the children.
His Honour was thus clearly aware of the lack of detail in the wife’s proposals relating to living in Adelaide. Yet he exercised his discretion to permit her to go. We are not persuaded that our interference with that decision would be warranted. Accordingly, grounds eight and nine have not been established.
Overall, therefore, as none of the grounds of appeal directed to the orders concerning the children and their proposed relocation to Adelaide have succeeded, the appeal against these orders must be dismissed. It must be remembered that these were discretionary orders made in what was clearly a very evenly balanced case, as the difference of opinion between the trial Judge and the experienced expert Dr Rikard-Bell demonstrates. In other words, there can be legitimate differences of opinion as to what should be the correct outcome of a case such as this, with the result that an appeal court can only interfere on very limited grounds. No grounds for our interference with the orders concerning the children have been established in this case.
The appeal against the property settlement order
In his reasons for judgment, his Honour referred first to the fact that the parties had reached agreement regarding “the pool” of property and said that he would annex a schedule of that agreed pool to his judgment. However, no such schedule is annexed to the copy of his judgment in the appeal book, although we understand that the schedule is that which appears elsewhere in the appeal book (at p 242). It is as follows:
Property
Size/No.
Sh. Price
Owner
Value
[“C” property]
-
-
[“N” property]
-
-
[“B” property]
952.3
H & W
$945,000Furniture & Contents
W
$15,000
Furniture & Contents
H
$10,000
Livestock
H
$122,300
Plant & Equipment
H
$6,000
Woolclip
H
$51,599
Motor Vehicle – 1994 Toyota Hilux
H
$10,850Motor Vehicle – 1999 Holden Jackaroo
W
$22,850Bank Account – CBA
W
$4,000
Bank Account – Police Credit Union
W
$1,900Bank Account – Westpac
H
$38,523
Telstra Shares
1000
4.56
W
$4,560
IAG (NRMA) Shares
788
4.75
H & W
$3,743
AMP Shares (H)
210
5.76
H
$1,210
AMP Life Assurance Policy
H
$3,241
Superannuation – Husband
H
$15,929
Superannuation – Wife
W
$2,999
TOTAL ASSETS
$1,259,704
Liabilities
Wife’s Family Allowance Debt
-$13,000Wife’s 2001 Taxation Debt
-$5,000
TOTAL LIABILITIES
-$18,000
NET ASSETS
$1,241,704
It will therefore be seen that the net assets of the parties have a value of $1,241,704.
Before his Honour, the husband had apparently been prepared to concede an equality of contribution during the marriage, but he then sought that because of his initial contributions (being three farming properties and savings of $300,000 – see husband’s case summary for the trial), the division on account of contributions should be 75-25% in his favour. The husband was also prepared to concede a 10% adjustment in favour of the wife on account of the s 75(2) matters, although on account of which particular matters is not clear. It is however clear that a 10% adjustment on account of the s 75(2) matters was to be on the basis of a 75-25% finding in the husband’s favour on account of contributions (see Transcript 26/05/04 at p 253).
The wife was apparently prepared to concede that the husband had made the larger initial contribution but she nevertheless sought that her contribution be assessed in the region of 35-40%. She then sought a s 75(2) adjustment in the region of 25-30%, principally, it would seem, on the basis of a lack of income earning capacity (see Transcript 26/05/04 at p 271-275).
In his reasons for judgment, after referring to the husband’s claim that he had initially contributed the bulk of the property and also referring to a relevant authority, his Honour reached the following conclusions concerning the parties’ contributions:
67.There can be no doubt that in this matter, the total pool of property was substantially contributed to by the initial contributions of the husband. Moreover, the development of them during the course of the marriage, while reflected in contributions made by each of the parties, was reflected in the ultimate values that represented a substantial part of the pool.
…
68.This was not a case in which an initial contribution was, in some way, kept separate or quarantined and might therefore be satisfactorily disregarded for other purposes. In my opinion, the substantial additional contribution made by the husband should be reflected in an assessment of contributions between the parties which otherwise were conceded to be equal as 65 per cent to 35 per cent in favour of the husband.
By ground 13 the husband claims that his Honour erred in the exercise of his discretion “in finding contribution on behalf of the husband to be only 65% notwithstanding the overwhelming initial contributions by him”, and by ground 17 the husband claims that there were “insufficient reasons for [his Honour’s] finding on contribution” (as well as for the adjustment under s 75(2)).
In his submissions to us, Counsel for the husband placed particular emphasis on his Honour’s failure to mention the $300,000 in savings which the husband had in addition to his rural properties at the commencement of cohabitation. This is a significant sum in the context of the value of the parties’ overall estate and we cannot be satisfied that his Honour did have regard to this significant asset when he reached his conclusion that the contributions of the parties should be assessed 65-35% in favour of the husband.
When his Honour turned to consider the s 75(2) matters he stated (in paragraph 69) that there were two factors which principally affected his determination:
·the first was that the wife “has been, since separation, and will continue to be in the future, the primary carer for the children who are quite young”;
·the second was that the husband’s “financial circumstances are vague.”
His Honour then explained this second matter in the following way:
70.… It is his failure adequately to explain those in some respects, which leads me to conclude (because of his failure to negative the contrary) that he is likely to continue to derive a reasonable, if not substantial, income from his activities as a farmer into the future. In this regard, his income over the last few years, which has been more substantial than it was in the past, was not the subject of any comment from him nor was it suggested by him that this situation was likely to change in the future.
71.In addition, although I reject, for reasons I will identify in a moment, the wife’s submissions about the possibility of the father’s inheriting the [CC] property, it seems to me that the history of his farming and the comments made by his mother, when called as a witness, interestingly, by the wife, confirmed that there has always been a cooperative farming enterprise associated with [the husband’s] parents properties and his own. Even if, as a result of my orders, [the husband] is obliged to sell some of his property, it seems to me that the most likely inference I could draw for the future is that he will continue to be able to farm both properties for purposes of his own stock and crops and that consequently, his financial circumstances will not be substantially affected on a year-to-year basis, although, unless he were to inherit the [CC] property, clearly his wealth will be diminished by the property settlement.
72.The fact that there are uncertainties about the future, so far as the husband’s income is concerned, leads also to questions of uncertainties as to child support that would be available and this is a factor which I am entitled to take into account in the adjustments that I reasonably make. …
His Honour then went on to explain why he was rejecting the wife’s claim that the husband may inherit from his mother the “CC” property. No issue arises about that matter on this appeal.
His Honour then concluded his consideration of the s 75(2) matters in the following way:
77.Taking all those factors into account and accept that necessarily, my determination of these matters must be, to some level, a question of discretion and one which it is difficult, in some respects, to quantify by any objective determination or means, I think there should be an adjustment in favour of the wife because of those factors which would provide a differential between the parties of 30 per cent which is, in practical terms, an adjustment of 15 per cent which would increase her division of the property to 50 per cent and reduce the husband's accordingly to 50 per cent as well.
Then in considering the overall justice and equity of his award, his Honour said:
78.The effect of such an order is to supply or to require the husband to find a substantial sum of money to provide for the wife. I have little information from him about his capacity to do this except that the orders that he seeks require that he find the sum of $310,000 and find that within 90 days.
79.It would appear that at least part and approximately one half of the sum that is required to be paid is available to him almost immediately. I make no assumptions about any assistance he may receive from any members of his family. It may be, unfortunately, and I say it genuinely, unfortunately, that he is obliged to dispose of some of his property for the purposes of providing a settlement in accordance with the orders I have determined.
80.I do not regard that as unjust or inequitable in the circumstances. I am, to some extent, buoyed in my feelings about that by the fact that the arrangements about his farming have been, to some extent, independent of the title to some of his property for the last some years.
In addition to challenging in ground 17 the sufficiency of his Honour’s reasons for his s 75(2) adjustment, and making the general assertion in ground 16 that his Honour erred by making the 15% adjustment in favour of the wife pursuant to s 75(2), the husband asserts the following specific errors in grounds 14 and 15:
14.His Honour erred in finding that [there] were uncertainties about future child support to be paid by the husband contrary to the evidence.
15.His Honour erred in finding that the husband’s income and financial circumstances would not be affected even if he was required to sell his farming property in order to meet the orders.
In support of these grounds, it was submitted that his Honour had no regard to the evidence that the figure in the region of $1,300 per month was being paid to the wife by way of spousal maintenance and $1,500 per month by way of child support. It was further submitted that his Honour had no regard to the wife’s earning capacity.
We need only say that we agree with these submissions, and thus find substance in the grounds directed to his Honour’s s 75(2) adjustment. As earlier indicated, we also find substance in the grounds directed to his Honour’s assessment of the husband’s contributions.
Conclusion
Accordingly, unless we were to re-exercise the discretion and arrive at the same overall result as his Honour, the appeal against the property settlement orders would have to be allowed.
We understood it to be the position of both Counsel that were we minded to allow the appeal against those orders, a new trial of the property matter would probably be necessary.
However, in an endeavour to minimise costs for the parties and if both parties agree, we would be prepared to re-exercise the discretion on the basis of:
(a)the evidence which was before his Honour and concessions made in relation to such evidence;
(b)any further evidence which the parties agree should be before us; and
(c)written submissions on behalf of both parties as to:
(i)the net value of the parties’ property (if there is agreement that that value has changed);
(ii)the appropriate assessment of the parties’ contributions in light of the evidence with respect to the husband’s initial contributions of assets and monies; and
(iii)the relevant s 75(2) matters in light of particular evidence and the appropriate adjustment on account of those matters.
At this stage, therefore we will only make an order dismissing the appeal against the parenting orders, and we will stand over the appeal against the property settlement orders for further consideration in light of submissions from the parties in relation to the matters referred to in the last paragraph.
Costs of the appeal
Given the decisions which we have reached in relation to this appeal against the orders concerning the children and the appeal against the property settlement orders, it will be necessary that the parties make written submissions in relation to the costs of the appeal in accordance with directions which we will make after the further course of the property settlement appeal has been determined.
Orders
That the appeal against Orders 1 to 18 (being the orders relating to children) of the orders of the Honourable Justice Faulks of 27 May 2004 be dismissed.
That the appeal against Orders 19 to 25 (being the orders relating to property) of the orders of the Honourable Justice Faulks of 27 May 2004 be stood over for further consideration by the Full Court pending receipt of the submissions referred to in Order 3 of these orders.
That by 4.00pm on Monday, 29 August 2005 each party file with the Appeal Registrar at the Sydney Registry and serve on the solicitors for the other party written submissions addressing the following issues:
(a)Whether that party contends that the Full Court should re-exercise the discretion or remit the property settlement matter for re-hearing and the reasons for such contention;
(b)In the event that a party contends that the Full Court should re-exercise the discretion:
(i)What updating evidence, if any, would that party want to put before the Full Court (having regard to the direction of the Full Court that it will only receive evidence agreed by both parties)?
(ii)What in that party’s submissions should be:
(A)the net value of the parties’ property (if there is agreement that that value has changed);
(B)the appropriate assessment of the parties’ contributions in light of the evidence with respect to the husband’s initial contributions of assets and monies; and
(C)the relevant s 75(2) matters in light of particular evidence and the appropriate adjustment on account of those matters.
I certify that the preceding 78 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court
Associate
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