KALANT & JORDAIN
[2019] FamCAFC 222
•27 November 2019
FAMILY COURT OF AUSTRALIA
| KALANT & JORDAIN | [2019] FamCAFC 222 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge found that the mother had a “breakthrough” leading to an order that the child primarily live with the mother – Where the appellant father argued that the “breakthrough” either had no evidentiary foundation or alternatively the trial judge did not apportion it the correct weight – Where the child’s primary attachment is with the mother – Where the Independent Children’s Lawyer filed a submitting notice and did not participate – Where no error by the primary judge in failing to order a change of residence for the child – Appeal dismissed. FAMILY LAW – APPEAL – PROPERTY – Where there is an absence of evidence concerning the value and the appellant’s equity in the property at the commencement of the relationship – Where given the absence of evidence, it is not possible to identify the primary judge’s reasoning leading to the orders – Appeal allowed in part only in relation to Ground 5 – Property proceedings remitted – Costs certificates sought by the appellant and the respondent denied. |
| Family Law Act 1975 (Cth) ss 69ZW, 75, and 79 Federal Proceedings (Costs) Act 1981 (Cth) |
| Bennett and Bennett (1991) FLC 92-191 House v The King (1936) 55 CLR 499; [1936] HCA 40 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Sexton & Sexton [2012] FamCAFC 218 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Steinbrenner & Steinbrenner [2008] FamCAFC 193 Sun Alliance Insurance Ltd v Massoud (1990) 94 ALR 11; [1989] VR 8 |
| APPELLANT: | Mr Kalant |
| RESPONDENT: | Ms Jordain |
| INDEPENDENT CHILDREN’S LAWYER: | Yeend & Associates |
| FILE NUMBER: | PAC | 2727 | of | 2015 |
| APPEAL NUMBER: | EA | 145 | of | 2018 |
| DATE DELIVERED: | 27 November 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Austin & Tree JJ |
| HEARING DATE: | 20 May 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 October 2018 |
| LOWER COURT MNC: | [2018] FCCA 2791 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Bainbridge Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Howard |
| SOLICITORS FOR THE RESPONDENT: | Alliance Family Law |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Yeend & Associates (Not participating) |
Orders
The appeal be allowed in part.
The orders for property settlement be set aside.
The property settlement proceedings be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than the primary judge.
Otherwise the appeal be dismissed.
There be no order as to costs.
The oral applications of the parties for costs certificates pursuant to the Federal Proceedings (Costs) Act1981 (Cth) be dismissed.
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 Kalant & Jordain 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 145 of 2018
File Number: PAC 2727 of 2015
| Mr Kalant |
Appellant
And
| Ms Jordain |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
On 5 October 2018, the primary judge made final parenting and property orders between the parties. Pursuant to the parenting orders, Ms Jordain (“the mother”) was given sole parental responsibility for the parties’ only child born to their relationship, X, presently six years of age (“the child”). The parenting orders further provided that the child would live primarily with the mother, but spend progressively increasing time with Mr Kalant (“the father”) ultimately culminating to every third weekend, together with half of school holidays.
Pursuant to the property orders, the father was to pay the mother $163,076 within 60 days, and there was a superannuation splitting order made in the mother’s favour, whereby she was to receive $33,374 in superannuation from the father.
From both the parenting and property orders the father appeals.
Background
The father is presently 33 years of age, and employed as a driver. The mother is presently 34 years of age, and as at the time of trial was engaged in home duties.
There is a dispute between the parties as to when their relationship commenced, which was resolved by the primary judge at [25] on the basis that it was “sometime after February 2011” although no further precision was possible. At the time of the commencement of the relationship, the mother had a child, Y, born to an earlier relationship. Y is presently 11 years of age.
The parties commenced cohabitation in the father’s home at Suburb A, New South Wales by at least August 2012 and married on 2 November 2012. The child was born on 24 October 2013, and was only 15 months old when the parties’ relationship concluded, and the mother left the father’s home with the children in February 2015. The relationship therefore subsisted for something in the order of four years.
Post separation the mother moved to live in Canberra, whereas the father remained living in Suburb A.
The father commenced these proceedings on 10 June 2015, seeking a location and recovery order. In due course, after numerous interlocutory steps, the trial proceeded before the primary judge for three days in 2017, with judgment reserved. However whilst the decision was reserved, both the parties sought to re-open the proceedings insofar as they related to parenting, and the matter proceeded for a further three days in 2018.
By the conclusion of the trial, the father was seeking that the child go primarily into his care, and after a moratorium period, resume spending time with the mother. He sought to justify those orders on the basis that such a regime was the only way that there was any realistic prospect of the child having a relationship with both her parents. For her part, as ultimately formulated, the mother sought orders that she have sole parental responsibility for the child, who would live with her and spend time with the father each alternate weekend from 11.00 am on Saturday until 3.00 pm Sunday, with the paternal grandmother to be substantially present during that time.
As to property, the father contended for no adjustment to the parties’ interests, whereas the mother proposed that she receive a payment of $200,000, together with a superannuation splitting order in her favour amounting to 50 per cent of the father’s superannuation interest.
The primary judgment
Central to the parties’ dispute before the primary judge were the mother’s allegations of family violence against the father, including allegations of sexual assault of the child. Without exception, they were all resolved in the father’s favour. Further, live for resolution before the primary judge was the father’s claim that the mother was actively seeking to impede any relationship between him and the child, which was determined in favour of the father as well. For instance, the primary judge said:
342.Throughout the long history of the proceedings the mother through her conduct has undermined [the child’s] relationship with her father and continued making allegations against the father unabated…
However notwithstanding that finding, the primary judge found at [452] that the mother had “somewhat of a breakthrough”, as a result of which, provided that the mother strictly complied with the orders, it would be in the child’s best interests for her to remain living with the mother, but spend unsupervised time with the father.
As to the property proceedings, they were the subject of scant attention during the course of the trial. That is scarcely surprising, considering the modest pool available for division. Regardless, the lack of assistance given to the court by the parties, both by way of inadequate evidence and cursory submissions, made the primary judge’s task far more difficult than it should have been. Ultimately however, her Honour determined that the father made the greater financial contribution at the commencement of the relationship, but both parties made “substantial contributions during the relationship either by way of financial contributions or non - financial contributions” (at [518]).
As to relevant factors under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), the primary judge found that there was a significant income disparity between the parties (at [536]), that the mother had considerable legal fees owing, which were far greater than the father’s outstanding fees (at [538]), and that under the parenting orders the mother would have the full time care of the child, albeit that she intended to re-enter the workforce once the child went to school (at [543]). The primary judge concluded that these factors favoured the mother. Her Honour ultimately determined that the mother should receive 55 per cent of the net equity of the former matrimonial home, and 55 per cent of the father’s interest in a particular superannuation fund. The primary judge found that such an outcome was “just and equitable in all the circumstances” (at [545]).
The appeal
In his Amended Notice of Appeal filed 20 March 2019, the father advanced the following grounds:
1.The learned trial judge’s decision is plainly wrong, unreasonable or unjust and exceeds the reasonable exercise of discretion.
2.The learned trial judge erred in finding that it was just and equitable to make orders altering the parties’ interests in property.
3.The learned trial judge’s award of 55% of the home equity and 55% of the [the father]’s superannuation to the [mother] was not just and equitable in the circumstances.
4.The learned trial judge erred in her assessment of the property pool, by providing a fixed sum, and failing to provide a percentage split of the property proceeds of sale.
5.The learned trial judge failed to provide adequate reasons with respect to property orders.
6.The learned trial judge erred in failing to order a change of residence for [the child].
7.The learned trial judge erred in placing too little weight to the Mother’s previous conduct and approach to the Father’s time with the child throughout the proceedings when making final parenting orders.
8.The learned trial judge failed to provide adequate reasons with respect to parenting orders.
The parenting appeal – Grounds 6, 7 and 8
The father’s advocate conceded at the outset that his task in seeking to disturb the exercise of a discretionary judgment was difficult. Perhaps cognisant of that, the principal argument ultimately advanced by him was that the “breakthrough” finding at [452] in relation to the mother either had no evidentiary foundation, or alternatively, such evidentiary foundation as it had, was insufficient to justify the weight which it was apparently given by the primary judge. In a sense therefore, the three grounds of appeal with respect to parenting orders all deal with this matter from different perspectives.
Turning firstly to the primary judge’s findings in relation to the father, her Honour:
a)Rejected the mother’s claims that the father had been domestically violent to her (at [180]);
b)Rejected the mother’s claims that the father had sexually abused the child (at [233]);
c)Determined that the child had a “positive, warm relationship with her father and this has developed further since proceedings commenced notwithstanding the significant disruptions to her time” (at [446]); and
d)Found that “[t]he father has demonstrated throughout the proceedings an unwavering commitment to [the child] in his desire to re-establish and maintain a relationship with her. He has accepted responsibility as a parent to the maximum extent possible in the circumstances” (at [478]).
On the other hand, her Honour’s relevant findings in relation to the mother are as follows:
a)The mother was neither a credible nor reliable witness (at [441]);
b)The mother’s allegations of sexual abuse of the child by the father were an attempt to undermine him and the child’s relationship with him (at [441]);
c)In the past the mother had failed to encourage and facilitate the relationship between the child and the father (at [268]);
d)The mother had in the past been noncompliant with court orders (at [450]), and had been found by Judge Dunkley to have contravened them on four occasions (at [407]); and
e)Her Honour had “grave concerns regarding the mother’s attitude towards the father” (at [439]).
Her Honour weighed these competing considerations in a number of places in the judgment. These include at [439] where her Honour said:
439.…If this matter was simply a contest between the parents as to which parent was likely to encourage, support and facilitate the child’s relationship with the other parent then I would have no hesitation in making orders for [the child] to live with her father…
At [489] and [490] her Honour said:
489.I accept the submissions on behalf of the mother’s Counsel that the mother’s intention is to engage in counselling to address her issues regarding anxiety. The potential circumstances for the mother are dire otherwise. She has recognised that orders may be made for [the child] to live with her father and for her time to be suspended. To this end the mother has shown at least some insight into the impact of her conduct on [the child]’s right to know her father and have a meaningful relationship with him to the extent that is consistent with her best interests. I have determined that there is a significant benefit to [the child] knowing her father, spending regular, consistent time with her father, being engaged with her father and her paternal family and providing [the child]’s father with an opportunity to participate in her care, welfare and development as she grows to be a young woman. I am satisfied that the father presents as a positive role model for [the child]. During very trying times over the past three and a half years he has unfailingly honoured his commitment to the child in attempting to maintain a relationship with her.
490.Having regard to the whole of the evidence before me, [the child]’s attachment to her mother and brother, the fact that her relationship with her father though re-established continues to develop, the mother’s willingness to undergo counselling and obtain professional help to assist her with issues regarding the father, my findings that there is no unacceptable risk for [the child] in spending time with the father, the mother’s concession with respect to communication via the Talking Parent’s app and agreeing to the father communicating with [the child] by telephone on a regular basis I determine that it is in [the child]’s best interests to live with her mother and spend time with her father.
All of these passages demonstrate that the primary judge made the necessary findings in relation to the relevant considerations identified by her Honour, and her Honour clearly went through a process of weighing them, in the course of determining the appropriate parenting orders. Her Honour’s reasoning process is clear, and sufficiently exposed (Bennett and Bennett (1991) FLC 92-191 (“Bennett”). The fact that this court may not have reached the same conclusion is not a basis for finding error (House v The King (1936) 55 CLR 499 at 504 – 505).
It is in this context, that the specific challenge in relation to the finding at [452] that there had been a “breakthrough”, assumes significance, in that it is the only potentially viable challenge to the exercise of the primary judge’s discretion.
At the time that the hearing first concluded before her Honour in 2017, the orders which the mother sought were that the child live with her, and until she turned eight years of age to only spend some five hours of supervised time with the father each alternate Saturday. Upon turning eight, the mother sought that the child spend unsupervised time with the father each alternate weekend from 11.00 am on Saturday until Sunday at 3.00 pm. We have already noted that, by the time of the re-opened trial, the mother had changed her position, proposing that the father spend time with the child each alternate weekend from 11.00 am Saturday until Sunday 3.00 pm. The mother also sought orders requiring herself to undertake a program of psychological counselling.
The genesis of the proposal for psychological counselling appears to be in the recommendations made in a report under s 69ZW of the Act, prepared by the Australian Capital Territory Child and Youth Protection Services (“CYPS”) dated 10 July 2018. Particularly, in that report a number of recommendations were made “[t]o reduce the risks to [the child], and promote her safety and wellbeing…” (Child and Youth Protection Services (Appraisal Form v1.01, 10 July 2018) at p.3). One of the recommendations was “[t]hat [the mother] actively engage with a psychologist/therapist for a therapeutic intervention with her mental health, [Child at Risk Health Unit “CARHU”] have recommended that [the mother] would benefit from symptom reduction therapy (for example [Dialectical Behaviour Therapy “DBT”]) to help manage her physiological responses to trauma as well as manage the impact of this on [the child], and that [the mother] demonstrate that she is able to sustain engagement with a psychologist/therapist” (As per the original) (Child and Youth Protection Services (Appraisal Form v1.01, 10 July 2018) at p.16).
Part of the material relied upon by the mother in the parenting proceedings that were re-opened in 2018 was her affidavit filed 31 July 2018. At paragraphs 6 and 7 of that affidavit, she said as follows:
6.I have been told about the appraisal outcomes in the report [by CYPS]. I agree that I need professional assistance to deal with my anxiety and stress about [the child] having contact with [the father]. I also agree that it would benefit [the child] for me to attend the [recommended] program and for her to attend the [recommended] program. I also seek that [the father] undertake psychological counselling to address issues which impact upon [the child]. As I have indicated, I live from week to week and often have to make arrangements to pay household bills on a periodic basis. I often cannot afford the costs of the sessions and of petrol involved in attendance at those programs. I seek [the father] make a contribution to those costs which I estimate at about $30 per week. I understand there to be a small fee for attendance at the programs. I understand it is about $10 per person per session for the discounted rate, which is based on what [Y] and I have been charged in the past. I also have some petrol costs of about $5 per trip between [Suburb C] where I live, and [Suburb D].
7.I am hopeful that when I have received proper treatment and with the conclusion of these court proceedings, that [the father] and I can work towards a more normal changeover and time arrangement and so I seek orders providing for a review of arrangements.
(As per the original)
At the resumption of the re-opened proceedings the following day, the father objected to the mother being able to rely upon that affidavit, but the primary judge gave the mother leave to read it.
During the course of the mother’s evidence-in-chief, two letters were tendered into evidence. The first was a letter from the mother to her solicitors dated 2 August 2018, which irrevocably authorised and directed them to hold the sum of $5,000 from any property settlement funds received, to be used only for costs of the provision of psychological or psychiatric services to her, and for her and the child’s attendance at specified programs. Some funds for petrol money for travel were also the subject of the irrevocable authority.
The second was a letter from her solicitors, also of 2 August 2018, which confirmed that they were prepared to quarantine the sum of $10,000 from any property settlement funds, $5,000 of which was to be set aside for the purposes as contained in the mother’s letter.
The transcript of the proceedings does not reveal that the advocate for the father cross-examined the mother by reference to either the quoted paragraphs of her affidavit, or the two exhibits, although in a non-responsive answer during the course of his cross-examination of her, the mother referred to the proposed course of therapy. However she was subsequently cross-examined by reference to this proposal by the counsel for the Independent Children's Lawyer, during which the mother said:
…I had great discussions with [the writer of the CYPS report] when she called me to say that they had deliberated on their report, they had made their report final or whatever, when they were closing the case and I accept that I – I think that it does have some effect, but I accept that I may not fully understand that, but I am more than willing to get the help to try and better support the kids and fully understand that, like.
(Transcript 2 August 2018, p.196 lines 44-47 to p.197 lines 1-2)
It was plainly this material to which the primary judge was referring at [452], where her Honour said:
452.I accept that there has been somewhat of a breakthrough for the mother. I accept that she has come to the realisation that if she does not seek assistance in dealing with her anxiety surrounding [the child] having a relationship with her father then [the child] may end up living with her father. Further although the mother advised the family consultant in her view she could not consult the father about matters as he would simply disagree, she indicated at least a willingness to consider the father’s views though her evidence was somewhat contradictory in relation to primary school selection.
Later at [475], having identified concerns that the mother had attempted to undermine and destabilise the child’s relationship with the paternal family in the past, and the concerns of CYPS about the mother’s inability or unwillingness to regulate her own emotions, her Honour continued:
475.I accept however the mother intends to engage in counselling to redress these issues. She is [the child’s] primary carer and [the child] is attached to her mother. Any change of residence for [the child] at this time is likely to undermine her security. Given the orders sought by the mother it is anticipated that she will engage in therapy and counselling to manage her anxiety issues. I formed the view that it is in [the child’s] best interests for the mother to seek treatment for her anxiety which in fact is supported by the mother. I intend to give the mother an opportunity to undertake symptom reduction therapy to assist her to fulfil her parental responsibilities and facilitate [the child’s] relationship with her father.
At [477], again having traversed the concerns that the mother had in the past been unable to accept that the child had a right to know, and be cared for, by both parents, her Honour said:
477.…I formed the view that the mother had in fact discouraged the child from having a relationship with the father. The mother has a long way to go. I have determined that it is in [the child’s] interests that the mother be provided with an opportunity to undertake counselling to redress these issues. It is hoped that through assistance the mother’s attitude towards [the child] having a relationship with her father will improve.
Her Honour returned to the theme again at [489] and [490] which we have already recited at [20] of these reasons.
Finally, at [493] her Honour concluded:
493.I emphasise that in reaching this finely balanced decision that my decision is based on the mother’s full compliance with these orders. Should she fail to comply with handing over the child on 6 October 2018 a Recovery Order will issue. Should she fail to undertake professional treatment the Independent Children’s Lawyer has liberty to relist the matter.
Based on this material, we are satisfied that there was a sufficient evidentiary basis for her Honour to conclude that the mother had “some kind of a breakthrough” (at [452]). Further, her Honour has adequately detailed her reasons for maintaining the primary residence of the child with the mother, and otherwise adequately explained the balance of the parenting orders.
As to the appellant’s challenge that inadequate weight was given to the mother’s previous conduct, it is plain that her Honour was deeply troubled by that. However, there were a number of countervailing considerations, of which the mother’s “breakthrough” (at [452]) was only one. Particularly, her Honour concluded that the child’s primary attachment was with the mother, that she would suffer short term trauma if that attachment was disrupted, and that she would lose the sibling bond with Y. We are not persuaded that her Honour gave “too little weight”, as stated in Ground 7, to the mother’s previous conduct.
Finally, there is no demonstrated error in her Honour failing to order a change of residence for the child. It was not suggested that her Honour failed to identify and recognise a relevant consideration, or took into account any irrelevant consideration.
It follows that grounds 6, 7 and 8 all fail.
The property appeal – Grounds 1 to 5
Ground 5
It is convenient to deal with Ground 5 at the outset. This ground asserts that the trial judge gave inadequate reasons with respect to property division.
The obligation to provide reasons is well established. In Bennett, the Full Court at 78,266 adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud (1990) 94 ALR 11:
…
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
In the primary judge’s reasons in relation to property, her Honour first identified the applicable legal principles and determined the net asset pool. Her Honour then considered the initial contributions, which were largely uncontroversial, save that no evidence was led by either party as to the value of the Suburb A property at the commencement of the relationship, or the equity which the father then had in it. Her Honour then went on to consider the parties’ contributions during the relationship, concluding that both had made substantial financial and non-financial contributions.
The primary judge then made findings in relation to post-separation contributions and the conduct of the parties, before embarking upon a consideration of s 75(2) factors, which she concluded favoured the mother. Her Honour did not make any attribution of percentage based entitlements in discussing either contributions, or s 75(2) factors.
Having made those findings, at [545] her Honour concluded as follows:
545.I have determined that the property of the parties (specifically the net equity in [Suburb A] ) be adjusted so that the mother receives 55% of the net equity in addition to a splittable payment of 55% of the father’s interest in his BT superannuation fund. The effect of that adjustment is that the mother would receive a payment of $163,076 and a superannuation split of $33,374. In the event that the property is sold I intend to order each party share equally any costs of sale incurred. In my view such an outcome is just and equitable in all the circumstances.
(As per the original)
Whilst accepting that the transition from a qualitative assessment to a quantitative one always involves something of a “leap” (Sexton & Sexton [2012] FamCAFC 218 at [71]; Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234]), here it is simply not possible to identify the path of reasoning by which her Honour arrived at the conclusion that the property orders her Honour made were just and equitable in all the circumstances.
Particularly, it is difficult to discern how that outcome was justifiable given, for example, the absence of any evidence as to the value of the Suburb A property at the commencement of the relationship, and more specifically, the lack of any evidence as to the father’s equity in it at that time. By virtue of that absence of evidence, her Honour was in a most difficult position. However there was no reference in her Honour’s reasons to this issue, which was fundamental and remediable.
It follows that Ground 5 must succeed.
Ground 1
This ground alleges that the outcome of the property proceedings was unjust. However, the difficulty with that is the failure of the primary judge to adequately explain the basis upon which the property settlement orders were just and equitable, precludes a determination as to whether the assessment was plainly wrong or unreasonable. Further, absent any evidence as to the size of the father’s initial contribution, it cannot be said that the outcome was plainly wrong, unreasonable or unjust.
Ironically, because of the lack of adequate reasons, Ground 1 fails.
Ground 2
At [495] and [496] her Honour said as follows:
495.Recently in Gao & Wang [2016] FamCAFC 183 Bryant CJ (as she then was) with Aldridge and Kent JJ discussed the application of the High Court decision in Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108 when determining matters under section 79 of the Family Law Act 1975. The Full Court said:
“[22] In Stanford the High Court emphasised (at [35]) that the requirements of s 79(2) (satisfaction that in all the circumstances it is just and equitable to make an order) and the requirements of s 79(4) (the matters that must be taken into account in considering what order (if any) should be made) are not to be conflated.
[24] …. the first and fundamental point of consideration of the s 79(2) just and equitable requirement of identifying the existing legal and equitable interests according to ordinary common law and equitable principles (as referred to in Stanford at [37]) is separate and distinct from the process of assessing s 79(4) factors.”
496.In this matter the parties have separated on a final basis. Each made a contribution towards that the [Suburb A] property whether by way of direct financial contribution or indirect non - financial contribution. Each party is of the view that it is necessary to sever their interests in that property. The Court is satisfied that it is just and equitable to alter the parties’ interests in property to enable the parties to finalise the financial interests between them.
(As per the original)
By this ground, the father asserts that the primary judge misunderstood his contention that there should be no adjustment to the property interests of the parties. Before us he asserts that was a reflection of the principles espoused in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), however that was not his submission at trial. Although the father sought that there be no adjustment of the property interests of the parties, this was not based on Stanford. Parties are bound by their conduct of the case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71). Thus, the father cannot now suggest that her Honour erred in finding that it was just and equitable to alter the parties’ interest in property.
As we have already remarked, her Honour received little assistance from the parties in the resolution of the property proceedings. The father’s Outline of Case filed 17 July 2017, insofar as it dealt with property at all, comprised only a table of assets and liabilities. His Second Further Amended Initiating Application filed 7 July 2017, simply sought no adjustment of the property interests to the parties of the marriage, but to repeat, not based on Stanford, and the only amendment being to delete his previous proposal that he pay the mother $30,000.
The father also submits that her Honour conflated the requirements of ss 79(2) and 79(4) of the Act. However, it is plain from [496] and [497] that her Honour only moved to consider s 79(4) of the Act once she had found that it was just and equitable to alter the parties’ interests in property.
Ground 2, therefore, fails.
Ground 3
This ground, which again asserts the outcome of the property proceedings was not just and equitable, is akin to Ground 1, in that absent a sufficient articulation of reasons as to the justification for the 55 per cent award in favour of the mother, and absent knowing the quantum of the father’s initial financial contribution to the relationship in the form of the equity in the Suburb A, it is not possible to conclude that the outcome was not just and equitable in the circumstances.
Again, ironically, Ground 3 therefore fails.
Ground 4
It is common ground that the parties had, at the conclusion of the property trial, agreed the value of the Suburb A property and that was used by her Honour in crafting the order. No party applied to re-open the property proceedings in the course of re-opening the parenting proceedings, notwithstanding the opportunity afforded to them. Rather, in arguing this ground, the father submitted that the court should have taken judicial notice of the subsequent decline in the Sydney property market, and hence that the Suburb A property may no longer have the value that it had in 2017.
Her Honour’s property orders required the payment of a sum of money by the father to the mother within a certain period of time, in default of which the Suburb A property would then be at risk of sale. This form of order had been sought by the mother, and no submission opposing it was advanced by the father.
True it is, as the father identifies in his written submissions, that there are a number of authorities which indicate that it is preferable for property orders to express a percentage entitlement in the event of sale, but the father did not seek that at trial, nor did he apply to re-open the property proceedings in 2018 to seek such an order.
We are not satisfied that the failure of the primary judge to provide a percentage split of the proceeds of sale, in the event of default of the payment of the specified sum, constitutes an error.
Ground 4 has no merit.
Outcome
It therefore follows, for the reasons we expressed earlier, that only Ground 5 in relation to the property settlement orders succeeds. We have already adverted to the evidentiary deficiency before her Honour as to the value of the Suburb A property at the commencement of the relationship, and the father’s equity in it. Further, there was no evidence sought to be led before us as to those matters, or indeed as to the present value of the Suburb A property. It is therefore not possible for us to re-exercise her Honour’s discretion, and the matter should be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than the primary judge.
Costs
In the event that he was successful in the appeal, the father did not seek an order for costs, but did seek a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The father has only succeeded in relation to the property appeal, but part of the reason why he has succeeded arises from the very difficulties which both parties placed her Honour in, by failing to properly put evidence before the court to enable the just resolution of the property proceedings, or to argue them in a way which properly distilled the issues for her Honour.
The mother also sought a costs certificate in the event the appeal succeeded. However, as we have said, it succeeded by virtue of the parties’ failure to properly conduct the trial in a way which enabled the primary judge to avoid error.
In those circumstances, we decline to give a certificate to either party.
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Austin & Tree JJ) delivered on 27 November 2019.
Associate:
Date: 27 November 2019
8
2