Keehan & Keehan
[2015] FamCAFC 122
•25 June 2015
FAMILY COURT OF AUSTRALIA
| KEEHAN & KEEHAN | [2015] FamCAFC 122 |
| FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made an order for equal shared parental responsibility – Where the trial judge made an order for equal time – Where the parties have a limited capacity to communicate – Whether the trial judge erred in failing to make an order providing a means of communication between the parties – Whether the trial judge gave sufficient consideration to the reasonable practicability of the orders – Where the trial judge’s findings were open to her on the evidence – Where no error found. FAMILY LAW – APPEAL – PROPERTY – Whether the orders fell outside a reasonable range of adjustment – Whether the trial judge erred by taking into account the wife’s restriction on the father’s time with the children post-separation – Whether the trial judge adequately took into consideration the wife’s post-separation contributions – Whether the trial judge erred in the exercise of discretion – Where no error found – Where the trial judge made a further percentage adjustment to the interests of the parties when considering whether the proposed orders were just and equitable – Whether this amounted to a double counting of factors already considered – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 61CA, 61D, 61DA, 64B, 65D, 65DAA(5)(b),(c) & (d), 65DAC, 79(1), 75(2), 79(2), 79(4) |
| Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 |
| APPELLANT: | Ms Keehan |
| RESPONDENT: | Mr Keehan |
| FILE NUMBER: | BRC | 3094 | of | 2013 |
| APPEAL NUMBER: | NA | 39 | of | 2014 |
| DATE DELIVERED: | 25 June 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Tree JJ |
| HEARING DATE: | 3 December 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1398 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page QC (pro bono) |
| COUNSEL FOR THE RESPONDENT: | Mr M R Green |
| SOLICITOR FOR THE RESPONDENT: | Mr B Scott of Parker Family Law |
Orders
Grant leave to the appellant wife to amend the grounds of appeal in accordance with the “Further” Amended Notice of Appeal annexed to the Application in an Appeal filed on 17 November 2014.
The appeal against the parenting and property orders of Judge Turner made on 4 July 2014 is dismissed.
Within twenty-one (21) days the respondent husband file and serve submissions in support of any application for costs.
Within twenty-one (21) days thereafter the appellant wife file and serve submissions in response to the submissions on behalf of the respondent husband in relation to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keehan & Keehan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 39 of 2014
File Number: BRC 3094 of 2013
| Ms Keehan |
Appellant
and
| Mr Keehan |
Respondent
REASONS FOR JUDGMENT
Ainslie-Wallace J
Ms Keehan (“the wife”) appeals from parenting and property orders made by Judge Turner on 4 July 2014. Mr Keehan (“the husband”) resists the appeal.
On 13 May 2014, during the hearing, her Honour made by consent an order that the parents have equal shared parental responsibility for their two children, J Keehan (born in 1999) and A Keehan (born in 2001). On 4 July 2014
her Honour made further parenting orders that the children live with the husband on a two week cycle where in the first week, they live with him during school terms from after school on Wednesday to before school on Monday. In the second week, the children live with him from after school Wednesday to before school on Friday. Her Honour ordered that the children live with the wife during school terms when they are not otherwise living with the husband.
Her Honour also made orders relating to school holidays, birthdays and other important days such as Christmas.
As to the property settlement proceedings between the parties, again, on
13 May 2014, her Honour made property settlement orders by consent in relation to various personal items, bank accounts, shares and a property to be retained by the husband.
On 4 July 2014 her Honour’s property orders referred to the orders made on
13 May 2014 and she further ordered that a property north of Brisbane in Queensland (the “Queensland property”) be sold and, from the net proceeds of sale and taking into account assets then in the possession of the wife, she be paid an amount equivalent to 55 per cent of the net asset pool, which her Honour identified in her orders.
Background
So as to provide context to the appeal it is necessary to set out some uncontentious background facts.
At the time of the hearing before her Honour the husband was aged 53 and the wife 54. The husband is a financial professional and the wife works from home in sales.
The date on which the parties commenced to live together is contentious; the husband asserting it was in 1996 and the wife 1997. The parties purchased a property in Sydney’s western suburbs, at which time the husband was working as a junior financial professional and the wife was doing design work. They married in 1998, relocated to Brisbane in 2003 and built the Queensland property in 2004. They lived there together until they separated in March 2012 and the wife and children continued to live in that property at the time of the hearing before her Honour.
At the time of the hearing the husband was spending time with the children every second weekend from 5.30 pm on Friday to 5 pm on Sunday.
The only challenge to her Honour’s orders as to parenting issues relates to an asserted failure to make orders which facilitated how the exercise of equal shared parental responsibility would take place as between the parties. In that case, it is unnecessary to traverse in any particular detail her Honour’s reasons on the parenting issues other than as are relevant to that issue.
Trial judge’s reasons
Parenting orders
Having earlier made an order for equal shared parenting responsibility,
her Honour then considered whether it was in the children’s best interests that they live in an equal shared care arrangement with the parties. Her Honour determined that it was because [159]:
·The children wish to spend more time with their father and they have held this view since the separation of the parties [161];
·The children are attached to both of their parents [175];
·The strength of the children’s relationships with the parties was such that it would allow those relationships to be maintained and nurtured if they enjoyed equal shared care from the parties [183];
·Equal shared care would provide a balance in the children’s lives between their mother’s style of parenting and that of their father [192];
·For J, such a shared care arrangement would provide him with the opportunity to spend more time with his father and explore his own needs and skills in circumstances where, her Honour found, the mother focusses primarily on A [193];
·The family report writer’s opinion was that the children need the same parenting arrangement [196] and her Honour found that the children need consistency of time with both parties [197];
·Both parties have the ability to parent the children [203];
·Although the parties acknowledge that their communication is poor, in the opinion of the family report writer, given the ages of the children, communication is not essential [204] and [209]. Her Honour further concluded that the communication between the parties will improve [212]; and
·The opinion of the family report writer was that J needed to spend more time with his father [221], that the time spent by the children with the parties needed to be in blocks [222] and that the regime of time with the father suggested by the mother would result in the children “…having an adverse reaction to the mother.” [223].
As to the parties’ ability to facilitate time between the children and the other parent, her Honour said:
216. The mother’s critical view of the father has not abated and not (sic) likely to abate even though it has been the mother’s actions which have deprived the father of spending time meaningful time (sic) with the children.
217. The mother has, since separation, demonstrated an ongoing need to control and diminish the father’s opportunities, not only to spend time with the children, but to actively participate in their
co-parenting.218. Any arrangement which is not a shared care arrangement I find is likely to be manipulated and interfered with by the mother with the extra-curricular activities used by the mother as a reason to reduce the father’s time with the children.
219. The flow on impact for the children is that there (sic) relationship with the father will be negatively affected.
220. I therefore find that an equal shared care arrangement will provide a structure where the father can co-parent the children, can spend significant time with the children and provides the father with an opportunity to be actively involved with the children on a day to day basis.
Turning to a consideration of whether the proposed orders for shared care were reasonably practicable her Honour found that they were [225].
Property orders
Her Honour considered the property of the parties and each of them available for division, compiled a balance sheet and concluded that the net value of the property available for distribution between the parties was $745,089 [332].
In coming to that figure, her Honour excluded certain items from consideration (furniture and household effects [324]; bank accounts [325]; legal fees
[326]-[329] and the husband’s tools and equipment and the wife’s camera equipment and computers [330]). There is no challenge to the composition of the balance sheet or to her Honour’s conclusion about the property available for division between the parties.
After considering the contributions of the parties, her Honour determined that a just and equitable order required a division of the assets as to 55 per cent to the wife and as to 45 per cent to the husband.
The appeal
By Application in an Appeal, the wife sought to amend her grounds of appeal both in relation to the parenting and property settlement orders. After discussion with counsel appearing for the wife, the proposed amended ground 1 was abandoned and in its stead the ground as appears below was re-cast. That having been done, leave was granted to the wife to amend her grounds of appeal as sought. Grounds 1 and 2 challenge her Honour’s parenting orders.
Parenting orders
Ground 1
Ground 1 (as ultimately articulated) asserts:
In making the agreed order for equal shared parental responsibility the trial judge failed to also make the order in relation to how the parents will consult and make decisions with regard to the children.
It was argued in support of this ground that while the parties consented to an order for equal shared parental responsibility, in this case, given the difficulties between the parents identified by her Honour in her reasons, not the least of which was the parties’ difficulties in communicating with each other,
her Honour ought to have provided a means by which the duties of consultation and decision making should be achieved.
To give some context to the argument, it is useful to refer to the mother’s minute of proposed orders provided to her Honour. In that document she sought detailed orders to govern the exercise of the duties and responsibilities of parental responsibility. For example the mother proposed a five step process by which the “Consultation and Decision Making Process” would take place. Further under the heading “Communication Between the Parents” the mother sought an order:
26. To improve communication, the Mother and the Father shall attend a minimum of six counselling sessions together with the aim being to achieve a level of communication that will facilitate positive substainable (sic) co-parenting. Each parent shall pay their share of the cost.
The proposed orders sought a means by which the counsellor would be chosen and for the process for making the appointments with the counsellor. They also proposed that the mother would prepare a calendar “… each year consistent with these orders, to visually illustrate the Father’s scheduled time, school holidays and children’s commitments and events as known.” Finally the orders proposed that there be a guide as to how the parents might communicate directly with each other (by telephone) and the manner in which that communication would be effected (civil and respectful).
Her Honour found that the parties’ communication is poor and observed that this too was the opinion of the Family Report writer. After noting the mother’s submission that the lack of communication with the father would make shared care unworkable, her Honour said:
209.The family report writer disagrees, stating at [59] of the family report that whilst it “would be better if they could” communicate that it is “not essential given [the children’s] mature ages and with specific parenting Orders in place”.
(emphasis in original)
Her Honour concluded:
211. I give significant weight to the family report writer’s opinion on this issue, and as specific orders have been made as to communication, I find that an equal shared care arrangement is in the best interests of the children despite the parties (sic) difficulties with communication.
212. Further I have confidence that as time goes by, the parties’ communication will improve as the parties, prior to separation, despite their “very definite and set personalities”, as identified by the report writer at [57] of the family report “were able to work together for many years”.
(emphasis in original)
It was argued that her Honour, in light of the admittedly poor communication between the parties, ought to have provided them with a means by which they could communicate in order to exercise their parental responsibilities. It was thus argued that her Honour paid insufficient regard to the orders sought by the mother that, she contended, would assist in better communication between the parties.
There can be no doubt that the capacity of the parties to communicate was an issue of which her Honour was well aware, and indeed, the orders ultimately made by her Honour do provide for the parties to communicate and keep each other informed about matters important to the welfare of the children.
The argument however, as we understand it, is that her Honour ought to have made the orders the mother sought for counselling to assist the parties in complying with the obligations and duties of parental responsibility.
Her Honour said:
263. The father is seeking orders that communication occur between the parties by email except when there is an emergency when the most expedient means available for communication is to be used.
264. The mother is seeking orders that the parties jointly attend counselling to address their communication difficulties and that communication occur by phone.
265. I find, given the history of this matter and as both children are almost in their teenage years, that communication on most issues can be by email and in the case of emergency can be by telephone or SMS.
As the thrust of this ground devolves to an argument about the weight or importance that her Honour attributed to the evidence before her, the bar to appellate intervention is set high indeed. In Edwards v Noble (1971) 125 CLR 296 Barwick CJ said at 304:
The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding.
Her Honour was alive to the mother’s contention that there should be counselling to assist communication. Her Honour rejected that contention as she was entitled to.
No error has been established in her Honour’s approach.
Ground 2
Ground 2 asserts:
That in making an order for equal shared care the trial judge erred in that she failed to have any or any proper regard as to whether such order was practicable and or in the best interests of the children.
It was argued that her Honour failed to consider or give proper consideration to the practicability of the order for equal shared care. Counsel for the mother argued that her Honour failed to take into account s 65DAA(5)(c) of the Family Law Act 1975 (Cth) (“the Act”) because her Honour did not give sufficient weight to the communication difficulties between the parties and to
s 65DAA(5)(d) of the Act because her Honour did not consider or give proper consideration to the effect of the proposed orders on the children.
We have considered the issue of the parties’ capacity to communicate when dealing with ground 1 (s 65DAA(5)(c)). We do not consider that her Honour failed to take into account this issue when determining the practicability of the order.
As to the second limb of this argument, namely the effect of the proposed orders on the children, it was contended that her Honour did not pay sufficient regard to the evidence of the father’s lack of availability for the children as evidenced by him not being at home on occasions when the children were spending time with him during school holidays.
It was argued that her Honour did not consider the reasonable practicability of the children spending equal time with the father when he would not necessarily be present with them.
This argument is somewhat baffling because it was the mother’s proposal to
her Honour that the children spend time with the father for five nights of each fortnight and it seems that his potential unavailability for that regime was not an issue. However, it appears that the point was that, given the father’s evidence that he had not been present with the children during the week of a school holiday in which they spent time with him and he had not made arrangements for alternative care, had her Honour turned her mind to the practicability of the proposed order for equal shared care, she would have concluded that the order was not practicable.
For the father it was contended that the evidence before her Honour on this issue was that the father was not absent from the children because of work commitments but because he wanted to see how the children would fare on their own. We note that the children were at the time about 12 and 14 years old.
However, in our view, whatever the reason the father was not present at all times with the children is not to the point.
Her Honour found at [225] that the order for shared care was reasonably practicable.
Under the heading: “Final comment as to equal shared care arrangement”
her Honour said:
226. The father in his proposed orders and in his evidence is aware that more is expected of him and that I am satisfied that the father will do whatever it takes to deliver.
227. The mother however has no insight into her actions and the impact on others.
228. Indications are from her proposed orders and her submissions that the mother has no intention of modifying her behaviours or attitudes towards the children and that the mother is not willing to accept that the father is an important and integral part of these children’s lives.
229. For these children, and in particular [J], it is in their best interests that there is balance in their parenting and this can only be achieved if the children live in an equal shared care arrangement with the parties.
It is abundantly clear that her Honour, while conscious of the difficulties between the parents in matters of communication, and whatever difficulties the mother perceived as flowing from the father’s work commitments, did not find them to be such that they prevented a finding of reasonable practicability. We agree. Her Honour’s findings on reasonable practicability were well open to her and no error has been demonstrated.
Property orders
Ground 3
Ground 3 contends:
That in making the orders pursuant to section 79 of the Family Law Act the trial judge erred in that:
(a) the orders made adjusting the interests of the parties in property were outside a reasonable range of adjustment;
(b) when considering whether orders made by her were just and equitable or appropriate the trial judge further adjusted the interests of the parties in the property without the power to do so;
(c) when considering the weight to be given to the contributions of the appellant post separation and with particular regard to the primary care of the children, the trial judge took into account the failure of the appellant to provide the children to the respondent for time spent.
Ground 3(a) asserts an error in the exercise of her Honour’s discretion. The written submissions on behalf of the wife argue that in light of the division of property sought by the wife, her Honour’s ultimate order by which the wife was to receive 55 per cent of the net property of the parties and each of them as identified by her Honour, was an erroneous exercise of her discretion.
As counsel for the husband observed in his written submissions, the wife had at various times advanced a percentage division of the assets of between
65 per cent to 58 per cent in her favour. In particular, the wife’s Amended Notice of Appeal sought orders, in the event that the appeal was successful, of an adjustment of 58 per cent to her. Just pausing there then, simply put, the wife’s argument is that a result of a 55 per cent adjustment in the wife’s favour as opposed to 58 per cent or, even indeed the 60 per cent that was sought in the wife’s written submissions, was outside the “reasonable range” and thus it speaks of appealable error.
Nothing put to us persuades us that her Honour’s determination in this regard was outside “the generous ambit in which reasonable disagreement is possible” (see Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 per Asquith LJ). After citing this passage with approval in Norbis v Norbis (1986) 161 CLR 513 Brennan J said at 540:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
We reject that argument and find no error in her Honour’s determination.
It is convenient to consider ground 3(c) next.
Ground 3(c) concerns her Honour’s findings at [336] and [337]. Her Honour said:
336. I find that, overall on contributions, a small adjustment of 2% is to be made in favour of the wife.
337. I base my finding on the following:-
a) The wife made a larger initial contribution than the husband, although the weight to be given to such contribution has been diminished due to the length of the relationship, the repair work and maintenance carried out on the [X] property during the marriage and the subsequent financial contributions made by the husband to the marriage with the inheritances and his redundancy payout.
b) The wife made a greater contribution as to the care of the children since post-separation although the weight to be given to such contribution has been diminished by the restrictions placed by the wife on the husband’s time with the children.
It was argued that her Honour’s discretion miscarried because she failed to make an adjustment in the wife’s favour of greater than 2 per cent being, it was said, the adjustment she would have made but for her finding as to the wife’s conduct in placing restrictions on the husband’s time with the children after separation. It was contended for the wife that the conclusion to be drawn from these findings is that “… she would have received an adjustment greater than 2% had she not withheld the children and that she was punished by no such adjustment being recognised…”. This, it was contended, amounts to an error of law.
We do not accept the complexion placed on her Honour’s findings as advanced by the wife, namely that her Honour “punished” the wife’s conduct by making an adjustment in the wife’s favour of 2 per cent where, otherwise, she may have made a greater adjustment. As will be apparent from our subsequent discussion, we do not accept the basic premise of the argument that her Honour reduced the adjustment to be made in the wife’s favour by 2 per cent or at all.
The impugned findings fall within her Honour’s consideration of and findings about the parties’ contributions before and after separation, including at [335(h)] and [335(i)] where she sets out and considers the parties’
post-separation contributions. There, her Honour recognised the contributions of the husband, including his vacating the marital home to enable the wife and children to remain living there and the wife’s contribution as primary carer of the children since separation. Then, in that context at [337] her Honour assessed the wife as having made a greater initial contribution than the husband, albeit a contribution that had to be considered against those of the husband throughout the marriage. Her Honour then recognised the wife’s contribution as primary carer of the children since separation as foreshadowed in [335(h)].
As her Honour said, while recognising the contribution of the wife, she afforded it less weight in her assessment of those identified contributions because of the restrictions placed by the wife on the time the children spent with the husband.
Assessment of contributions and the weight to be attached to them is an integral part of the exercise of the judge’s discretion.
Seen in its correct light, it is apparent that the ground is a challenge to the importance or weight that her Honour ascribed to the wife’s post-separation contributions.
The wife has not demonstrated relevant error in her Honour’s approach.
It was further argued that her Honour “…dismissed a claim that post separation financial contributions of the wife should be recognised.”
Her Honour did decline to make an adjustment in the wife’s favour because of claimed financial contributions to the children because of the matters to which she adverted at [338] where she said:
338. As to the wife’s claim that the wife is to receive an adjustment due to the financial contributions made by the wife towards the children post-separation, I find that such an adjustment is not warranted because the wife was living and continues to live in the unencumbered former matrimonial home with the children whilst the husband paid for rent, the wife was and continues to be in receipt of government benefits and the husband has paid child support in accordance with the assessment.
It was not made clear in what way this finding by her Honour was erroneous, although from oral argument it appeared that this finding is said to be affected by her Honour’s error in taking the wife’s conduct into account in determining the relevant contributions.
In this regard, her Honour’s rejection of the wife’s claim to an adjustment relating to her financial contribution to the children after separation was based on the matters to which she referred in [338]. It is not asserted that she was not entitled to take those matters into account but, it seems, argued that this rejection was in some way linked to the conduct of the wife to which
her Honour referred in [337].
We reject first the basis of the asserted error. It is plain from a reading of
her Honour’s reasons that the rejection of an adjustment based on the wife’s financial contributions after separation were those to which she referred. Secondly, that finding was entirely open to her Honour in the exercise of her discretion and no error has been demonstrated.
No error has been established by either contention.
Ground 3(b) asserts that when considering whether orders made by her were just and equitable or appropriate the trial judge further adjusted the interests of the parties in the property without having the power to do so.
Her Honour’s approach
It is useful to begin a consideration of this ground by reference to her Honour’s analysis.
Her Honour commenced her consideration of the property settlement issue at [310] under a heading “The Law” and made reference to Stanford v Stanford (2012) 247 CLR 108. She then she referred to the “four step process” as discussed in Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at [39] which is, as she summarised at [315]:
a) identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources;
b) identify and assess the parties contributions pursuant to s.79;
c) identify and assess the parties ongoing needs taking into account the relevant factors relevant under s.79 and s75(2); and
d) consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
Having established the parameters by which she was to consider the issue of property settlement orders, her Honour set about following the steps identified.
Under the heading “Application of the Law” her Honour made findings about the property of the parties and each of them and the values attributable to those properties at [321] to [331] and concluded at [332]:
I find that the property pool available for distribution is $745,089.
The judge considered the contributions of the parties: the property and other assets introduced by each to the relationship; the contributions made by the parties during the relationship both financial and by way of maintenance and conservation of property; the husband’s role as “breadwinner” and the wife’s as “homemaker and primary carer for the children” [335(f)] and the contributions of the parties made after separation. At [336] the judge concluded:
I find that, overall on contributions, a small adjustment of 2% is to be made in favour of the wife.
Her Honour then moved to consider “Future needs” and set out the matters she considered in that determination: a disparity in income between the wife and husband, although she noted the husband’s contention that the wife would be able to obtain higher paid employment; that because of the disparity of income, the wife was seeking an adjustment in her favour; the husband has “health issues” but her Honour accepted his acknowledgment that at this time his health is not affecting his ability to work although she noted that this position may change in the future and that as the parties will equally share the care of the children it is not a factor which will impact on the property division.
Her Honour, under the heading “Conclusion on future needs” said:
344. I find, having considered all of the relevant factors in sections 75(2) and 79, that an adjustment is to be made in favour of the wife of 5% for future needs.
The basis for that finding was said to be the wife’s employment prospects and that she has not worked for many years, the husband being in full time employment while the wife receives a small income from her sales work, the shared care regime will permit the wife to increase her ability to earn income although it is most unlikely that she would be able to earn a similar figure to that of the husband and the child support received by her will decrease once she and the husband are sharing the care of the children.
She then said:
346. After applying the first three steps, the wife is to receive 57% of the asset pool and the husband is to receive 43%.
….
348. But what must be considered in determining whether this represents a just and equitable division of the property pool is to consider what each party is to receive as part of the property division.
Thereafter, her Honour considered the property and assets of the parties and how they would be distributed in accordance with her Honour’s determined percentages.
She continued:
351. As a consequence the husband will be receiving significantly less cash than the wife after the sale of the [Queensland] property as the husband is retaining his superannuation fund.
352. Whilst the husband has a house property suitable for the children, the wife will need to rehouse herself.
353. But with the wife receiving such a larger proportion of cash from the [Queensland] property sale then chances are that the wife will be able to move into an unencumbered property but the husband may still need to service a mortgage.
Conclusion on just and equitable
354. I find, given the above factors, as this is a small pool and as both parties are equally caring for the children, that in order to reflect a just and equitable division of the pool then a small adjustment is to be made in favour of the husband of 2%.
355. This will enable the husband to pay more money towards the mortgage and retain the [Y] property.
356. This will still provide the wife with sufficient funds, when coupled with her shares, which can be easily converted into cash, to acquire a new home for her and the children.
357. I therefore find that a just and equitable division of the property pool is achieved if the wife receives 55% of the property pool and the husband is receives (sic) 45% of the property pool.
It was contended for the wife that because her Honour had, before making that final adjustment, considered the factors under s 79 and s 75(2) and come to a conclusion that the appropriate adjustment based on the matters to which those sections refer was as to 57 per cent in the wife’s favour and 43 per cent in the husband’s favour, there was no matter remaining to which she could refer in order to make any further adjustment of the percentages to which she had arrived. The argument is that s 79(2) does not provide a means by which to make percentage adjustments of the parties’ property entitlements.
The question thus raised in this ground is whether s 79(2) provides a basis by which a further percentage adjustment may be made in addition to those referrable to ss 79(4) and 75(2).
The operation of s 79(2) and the determination of just and equitable
In Bevan & Bevan (2013) FLC 93-545, it was said that the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108:
71. … will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.
72. It follows that judges would be well advised to avoid what we consider to be arid discussion of the “stage in the process” at which “adjustments” are permissible. Such discussion tends to elevate the four step process to the status of a statutory edict, when in fact it is no more than a shorthand distillation of the words of a statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so.
… …
86. …The just and equitable requirement is therefore not a threshold issue, but rather one permeating the entire process.
Section 79(2) of the Act provides that the court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Thus the power to make an order adjusting property interests is conditioned on a finding that the proposed order is just and equitable.
It is the order in respect of which the court must be satisfied as being just and equitable – not just the underlying assessment of the parties’ contributions and the other factors, because the application of percentages does not necessarily result in a just and equitable order (see Russell v Russell (1999) FLC 92-877 and JEL v DDF (2001) FLC 93-075 at [140]).
How is this satisfaction obtained?
In Phillips & Phillips (2002) FLC 93-104 the Full Court said:
66. … A trial judge must identify and value the assets of the parties, identify and assess the matters of contribution and identify and assess the relevant other factors. It is also necessary, having undertaken these tasks, to be satisfied that the proposed outcome is just and equitable.
…
70. … However, it is necessary to “stand back” and consider if overall the ultimate award was just and equitable to both parties and in our view this is what his Honour failed to do in this case. …
The extent of the operation of s 79(2) was considered by Nygh J in In the Marriage of W (1980) 6 Fam LR 538 at 549:
It must be stressed however that s 79(2) does not give this court an independent power to effect ‘palm tree justice’. What is just and equitable depends on a proper consideration of the factors set out in s 79(4) … I am satisfied that the adjustment of the property rights of the parties as proposed by me is “just and equitable” within the meaning of s 79(2) in the light of the considerations set out in s 79(4).
In Teal & Teal [2010] FamCAFC 120, the Full Court said:
69. It must be remembered that s 79(2) is expressed in negative terms:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
70. By implication however s 79(2) requires if the Court is to make an order under s 79(1) altering the interests of the parties to the marriage in property, such an order must be just and equitable. This legislative imperative is often described as the requirement that a judicial officer “stand back” and look at the reality of the percentage division at which she or he has arrived. That requirement requires consideration of the actual assets to be retained by each party, and may include consideration of the effect when one party is to retain the greater proportion of his or her entitlement in superannuation of the nature, form and characteristics of the superannuation …
71. It will often require consideration of whether the percentage adjustment arrived at after assessment of contributions under
s 79(4)(a)–(c), and adjustment for relevant factors under s 79(4)(d)–(g) when applied to the actual assets and liabilities requires the making of an order slightly outside the precise percentage arrived at as a result of the statutory imperatives. This exercise has particular relevance when a judicial officer is dealing with modest assets, and/or where the parties’ respective earning capacities are minimal or non-existent …72. In this particular case the Federal Magistrate, at paragraph 55 of his reasons, had not considered the mix of assets to be retained by each party. He did not conduct that exercise until after he had determined to make a further adjustment of an additional 3 per cent in the wife’s favour. His expressed reason for the further adjustment was the husband’s greater earning capacity. That factor had already been taken into account in respect of the consideration of s 75(2)(b), and the resultant adjustment made under s 75(2) in favour of the wife of an additional 12 per cent. On its face, the further adjustment represented a double adjustment for the same factor – the husband’s greater earning capacity.
Clearly then, whatever order is made in satisfaction of the requirement for justice and equity must not involve “double counting”.
Such error was identified in Manolis & Manolis (No. 2) [2011] FamCAFC 105 in which it was said:
65.It can be seen that power to make orders in regard to property is not exhausted after the third step. It is not until orders are made that the power is exhausted. The exercise of power pursuant to s 79 of the Act remains subject to the overarching requirement of justice and equity imposed by s 79(2) until it is exhausted. Therefore, we cannot accept that the Federal Magistrate lacked the “power” to revisit the outcome to which she had been led by her consideration of s 79(4) and s 75(2) factors by reference to s 79(2) of the Act. If so doing persuaded her Honour that her proposed outcome was not just and equitable, she could not properly make orders in those terms.
66.Having regard to the nature and extent of the matters which had been evaluated pursuant to s 79(4) and s 75(2) of the Act prior to her consideration of s 79(2), the Federal Magistrate’s scope for varying the substance of the outcome resulting from that exercise would have been limited. It is difficult to discern specific matters impacting a consideration of s 79(2) which are not articulated in either s 79(4) or s 75(2) of the Act. The section does however oblige the court to “stand back” from its preliminary determination, and consider its impact. So doing may inform the terms of the orders appropriate to produce a just and equitable outcome in those terms. It may result in a re-consideration of s 79(4) and or s 75(2) factors, and a different outcome. Whatever the scope of s 79(2), the court’s determination with respect to it cannot be dependent upon findings or conclusions which are irreconcilable with those recorded in the context of a consideration of s 79(4) or s 75(2). Regrettably, that is what occurred in this case. In our view, paragraphs 71 and 78 of her Honour’s reasons cannot stand together.
Her Honour’s decision to further adjust the percentage entitlements in this case was reflective of there being a small pool of assets and the fact that the husband will retain the Y property and thus be solely liable for repaying the mortgage on that property. This approach was wholly in accordance with the process described in Teal (above), which requires a judge to examine “the reality of the percentage division at which she or he has arrived”. As this “reality” requires the husband to repay a fairly significant mortgage,
her Honour was entitled to make an order “slightly outside the precise percentage arrived at as a result of the statutory imperatives.” While both of these matters could have been considered by her Honour under s 75(2), she did not and thus neither of them had already been taken into account in
her Honour’s consideration of the s 79(4) or s 75(2) factors. There had then been no “double counting”. It follows that no error has been established. This ground is not made out.
The appeal will be dismissed.
Costs
At the conclusion of the appeal hearing we heard submissions from the parties on the question of costs. Counsel for the wife submitted that if the appeal was unsuccessful that he would wish to file further written submissions. Likewise counsel for the husband indicated that if the appeal was unsuccessful he would seek a special order for costs and would thus wish to file written submissions in relation to that order. We indicated that in the event the appeal did not succeed we would make directions for the provision and exchange of written submissions and we order accordingly.
Murphy J
I agree with Ainslie-Wallace J that the appeal should be dismissed.
The Appeal Against Parenting Orders
Equal Shared Parental Responsibility and s 65DAC
When filing her initial Response in the trial proceedings, the appellant mother, who prepared her own material and represented herself at the trial, sought an order for equal shared parental responsibility (“ESPR”) in respect of major long term issues for the children. Her updated Response, filed on
17 April 2014, was to the same effect.
On 17 February 2014 the trial judge ordered the parties to file ahead of the trial “signed consent orders” which minuted orders about which “there is commonality in the orders sought”. That order was complied with. The minuted consent provided to her Honour included agreement that the parties should have ESPR. When the trial commenced on 13 May 2014, an order to that effect was made.
As a consequence of that Order, s 65DAC of the Act was engaged. Expressed in broad terms, that section mandates that parties who share parental responsibility must make a decision about a “major long term issue” jointly and, in doing so, are required to do two things: to “consult” and to “make a genuine effort to come to a joint decision” about the relevant issue.
A parenting order “confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers responsibilities or authority in relation to the child” (s 61D). The order for “equal shared parental responsibility” does so. It brings with it the requirements of s 65DAC. Where two or more parties are to share parental responsibility, a parenting order may deal with, relevantly, “the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility” (s 64B(1) and (2)).
The power to make orders of that type is given by s 65D. Anomalously, orders of that type, because they are parenting orders, are subject to the presumption contained in s 61DA. Relevant for present purposes, s 65D empowers the court to make “such parenting order as it thinks proper”, that decision being bound by the requirement to regard the children’s best interests as the paramount consideration (s 61CA).
The appellant contended below for a number of orders which, in so far as they might relate to “major long term issues”, centred on prescriptions for how the parties’ admitted significant communication difficulties might, according to the appellant, be met. Whether to make those orders, different orders, or no orders was quintessentially within her Honour’s discretion.
Despite four iterations of the grounds of appeal, Mr Page SC had considerable difficulty in articulating the precise ground relied upon in respect of the challenge to her Honour’s orders in so far as any such challenge related to the order made by consent for equal shared parental responsibility. Ultimately, the ground settled upon was one contained in an earlier amended Notice of Appeal, quoted by Ainslie-Wallace J. In terms, the ground merely asserts that orders for which the appellant contended below were not made. No appealable error including, specifically, any discretionary error, is thereby revealed.
That consideration led, ultimately, to Mr Page agreeing that “… the error is a failure to take account of relevant considerations in making orders in the best interests of the child[ren]”. In support of the ground thus amplified, Mr Page submitted:
… the extent to which these parties were found by the report writer [to have been] unable to communicate and cooperate about their children, in my submission imposes an imperative that the court do something active to ensure that the very important aspect of parental responsibility is effective. I can take it no higher than that and I don’t. (Transcript of proceedings, 3 December 2015, p 19).
There is, of course, no such imperative; the only imperative is that the court make orders in the exercise of its discretion in the best interests of the children by reference to the evidence before it and the findings from that evidence. The “relevant considerations” which are contended to have been ignored by
her Honour are not identified, save to the extent of a general assertion that
her Honour did not consider (the admittedly important) issue of the parties’ inability to communicate.
As is manifestly clear from her Honour’s reasons, that assertion is without foundation.
Her Honour’s reasons evidence an acute awareness of the parties’ lack of capacity to communicate effectively and the impact it had on their co-parenting. Crucially, her Honour addressed those concerns ultimately by making “specific orders … as to communication” (albeit not those sought by the mother). Those orders are underpinned by her Honour’s findings flowing from the ages and relative maturity of the children and the additional finding, based on the Family Report, that “as time goes by, the parties communication will improve …”. (Reasons, [209] - [212]).
The asserted error in the exercise of her Honour’s discretion is not made out. No other error is otherwise apparent.
Orders for Equal Time
Despite the terms of the ground, Mr Page conceded that he could not contend that her Honour failed to have “any” regard to the practicability of the orders; that her Honour has done so is, again, manifestly clear from her Honour’s reasons.
Mr Page also conceded in oral argument that the focus of this ground was “really a failure to properly engage [specifically] with the mandatory consideration in [s] 65DAA(5)(b)”. That sub-paragraph requires the court, in considering the “reasonable practicability” of an equal time order to consider, relevantly, “the parents’ current and future capacity to implement an arrangement for the child to spend equal time … with each of the parents”. The true gravamen of the ground is, then, that her Honour failed to accord sufficient weight to s 65DAA(5)(b).
It hardly needs to be said that the attribution of weight is something quintessentially within the province of the trial judge and any appellate challenge must have a cogent foundation. (The well-known, and often-cited, passage from Stephen J’s judgment in Gronow v Gronow (1979) 144 CLR 513, 520 is pertinent).
At paragraph 225 of an extensive judgment which more than adequately addressed the evidence and all of the relevant statutory considerations,
her Honour turned specifically to deal with s 65DAA(5)(b) as part of addressing, in turn, each of the matters required to be considered by
s 65DAA(5). In addition, the judgment read as a whole shows her Honour giving careful consideration to the parties’ inability to communicate and to their capacity to implement the ordered parenting regime more generally.
Further, the appellant’s contentions in this respect cannot be divorced from contentions central to her case at trial to the effect that specific detailed guidelines were required for the children “as to diet, bedtime, expectations, rewards, consequences, chores, internet and social media” (Reasons [272]). That contention was specifically rejected by her Honour (at [282]). That finding is not challenged on this appeal. In addition in that respect the argument ignores findings made by her Honour, again not challenged as erroneous on this appeal, that, for example, “[a]ny arrangement that is not a shared care arrangement … is likely to be manipulated and interfered with by the mother with the [children’s] extra-curricular activities used by the mother as a reason to reduce the father’s time with the children” (Reasons [218]. See also [212]; and [213] – [220] more generally to similar effect).
Error in the exercise of her Honour’s discretion is not established.
The Challenge to the Property Orders
Oral argument for the appellant was confined solely to arguing ground 3(b) and I turn first to consider that issue.
The Court’s Power to “Further Adjust the Parties’ Interests” in Property
Having considered each of sub-paragraphs (a) – (e) of s 79(4) her Honour determined that an alteration of the parties’ interests in property should reflect a disparity, expressed in percentage terms, of 14 per cent in favour of the wife (Reasons [346]). Her Honour then turned to “consider what each party is to receive as part of the property division” (at [348]) and examined the type of property and its value that each of the parties would receive as a consequence of the mooted disparity.
Having done so her Honour determined (at [354]) that there should be “… a small adjustment … in favour of the husband of 2%” for the reasons given at [354] – [356].
Mr Page on behalf of the appellant contends that the further “small adjustment” just referred to was without power. “There is”, he argues, “nothing in s 79 that enables there to be an adjustment at this stage”; the argument proceeds that, once contributions are assessed and the relevant matters prescribed by s 79(4)(e) considered, the assessment emerging as a consequence “exhausts the power”.
That argument should be rejected.
The argument appears to rest on two propositions, apparently related. First, by reference to the so-called “four-stage process” embraced by s 79(4) spoken of in Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143, the assessment which founds the ultimate orders is complete at “step three” and the “fourth step” is confined merely to fashioning appropriate orders in accordance with the result already arrived at. Secondly, s 79(2) is expressed in negative terms and her Honour has erroneously used it (implicitly) as a source of power to justify the positive step of making a further adjustment.
Prior to the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 this Court had referred to the issue under consideration in Norman & Norman (2010) FamCAFC 66 (at [54]ff) as had Thackray A-J, as his Honour then was, in Woollams & Woollams (2004) FLC 93-195. In Norman, after referring to Woollams, this Court said (at [59]) that “… the debate about the number and content of “steps” within a s 79 process … is best met by reference to the decision of the High Court in Mallett v Mallett (1984) 156 CLR 605 …”. The Court went on to say:
60.It is the mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result. For all its usefulness and merit as a “disciplined approach” or a “structured process of reasoning” (per Fogarty, Lindenmayer, McCall JJ, N and N, unreported, 10 June 1992), the “three-step” or “four-step” approach merely illuminates the path to the ultimate result.
To argue that the s 79 power is spent because a conclusion (expressed in percentage terms) has been arrived at a particular “stage” or “step” is to “elevate the so-called four-step process to the status of a statutory edict when it is no more than a shorthand distillation of the words of the statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so” (Bevan & Bevan (2013) FLC 93-545 [72]).
The power to make orders altering interests in property is given, relevantly, by s 79(1)(a). That power can only be exercised if s 79(2) is satisfied – that is, if in all the circumstances of the case, it is just and equitable to make any order altering the existing legal and equitable interests of the parties in property. (Stanford at 120). A separate inquiry must be undertaken: if an order is to be made, what order should it be having considered each and all of the relevant matters prescribed by s 79(4).
That sub-section does not provide the power to make orders altering property interests; it mandates matters which must be taken into account in assessing what order, if any, should be made. Having decided that it is just and equitable to alter existing legal and equitable interests in property, and having considered the relevant mandatory matters in s 79(4) by reference to the circumstances of the case, s 79(1) gives the court a wide discretion to make orders considered “appropriate” (s 79(1)) but only if those orders are just and equitable (s 79(2)). As this Court said in Bevan, (at [86]), the “just and equitable requirement [in s 79(2)] is … not a threshold question but permeates the entire process”.
As one part of the process, s 79(2) (expressed as it is in the negative) does its work by preventing the assumption that the breakdown of a marriage automatically results in the adjustment of marriage partners’ existing legal and equitable interests in property (Stanford (above) at 122).
If the court does determine to make an order, it has power only to make orders that it considers appropriate and, in the exercise of that discretion, “although s 79(2) is cast in the negative and amounts to a prohibition against making any order unless it is just and equitable”, the sub-section’s work is in confining the “appropriate” orders that s 79(1) empowers the court to make to those that are just and equitable (See Bevan (above) at [86] and the cases there cited).
The court’s power is not confined by any “steps” or “stages”, nor is it exhausted by reason of the consideration of any or all of the so-called “steps” or “stages”. Having without error determined that it is just and equitable to make some orders altering existing interests in property, and having considered the matters required to be considered by reason of s 79(4), the court has a “very wide” discretion to make such orders as are considered appropriate provided that any such order is just and equitable.
It was entirely open to her Honour and within power to comply with the s 79(4) process as her Honour did and to then further adjust the result mooted as a consequence of that process.
If there is to be a challenge by reference to what her Honour did, it must be a challenge to the exercise of her Honour’s discretion with all of the attendant requirements and difficulties inherent in doing so (See House v The King (1936) 55 CLR 499 and, for example, the decisions of the High Court referenced by Warnick J in G and G (2004) FamCA 1179.
In that respect, if a trial judge determines to do what her Honour did in this case, care must obviously be taken so as to not “double count” by referencing the “further adjustment” to a matter already weighed within the s 79(4) process. Doing so is likely to result in discretionary error by reason of taking into account an irrelevant consideration or wrongly attributing weight to a factor twice in making the adjustment.
No discretionary error is alleged in this sub-ground and the challenge to her Honour’s power is without foundation. This ground fails.
“Outside a Reasonable Range of Adjustment” – Ground 3(a)
This Court has frequently sought to stress the principles applicable to appeals from discretionary judgments emanating from long-standing and often-repeated decisions of the High Court. (Again, see for example, the decisions referred to by Warnick J in G and G (above)). In that case, Warnick J commenced a discussion of those principles by saying (at [82]): “[r]evisiting those statements, one is struck by the regularity with which the width of discretion of the trial court and the caution that the appeal court should exercise, are stressed.” His Honour’s summary was adopted by this Court in Norman (above).
The written outline of argument by counsel for the respondent correctly sets out what the mother has, at different times during the trial and appeal process, contended variously as a just and equitable settlement of property expressed in percentage terms. Notably, the orders sought by her in the event the appeal succeeds represents between three and five per cent more than what her Honour ordered (in dollar terms representing between $22,500 and $37,500).
That fact is of itself indicative of the difficulties faced by the appellant in respect of the challenge in ground 3(a). As Barwick CJ said in Sharman v Evans (1976-1977) 138 CLR 563, 565, “... the function of a court of appeal, in my opinion, is not to offer what in connexion with another discipline would be called ‘a second opinion’. Such a court is strictly confined to the remedy of error in the trial or in the assessment of the trial Judge”.
In the absence of any specific discretionary error, nothing to which this Court has been taken in argument persuades me that, as Kitto J put it in Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, her Honour’s decision is “clearly wrong” or, by way of corollary, that “strong presumption in favour of the correctness of the decision appealed” is displaced.
There is no merit in this challenge.
Post-Separation Contributions and “Punishing” the Appellant – Ground 3(c)
The appellant’s challenge in this sub-ground centres on [337] of her Honour’s reasons:
337.I base my finding on the following:
a)The wife made a larger initial contribution than the husband, although the weight to be given to such contribution has been diminished due to the length of the relationship, the repair work and maintenance carried out on the [X] property during the marriage and the subsequent financial contributions made by the husband to the marriage with the inheritances and his redundancy payout.
b)The wife made a greater contribution as to the care of the children since post-separation although the weight to be given to such contribution has been diminished by the restrictions placed by the wife on the husband’s time with the children.
It is important to understand that this paragraph of the reasons is preceded by a comprehensive series of findings about contributions of all types referable to s 79(4)(a)-(c) across the entire relationship, including the period post-separation.
It is also important to understand that, by reason of s 75(2)(o) – which is incorporated into the s 79(4) process by s 79(4)(e) – the court can, where relevant, take account of “any fact or circumstance which the justice of the case requires to be taken into account”. Her Honour did not specifically mention s 75(2)(o) but within reasons which, with great respect, evidence plainly a knowledge and understanding of the relevant principles, it was not essential for her Honour to do so.
What was said by this Court in Norman, at [60] quoted above, pertains equally to the instant discussion. The fact that s 75(2)(o) might be said to be included at the “s 79(4)(e)” or “third step” does not limit its operation to that “step”; to repeat, the “stages” or “steps”, for all their analytical usefulness, merely illuminate the path to an ultimate result that is just and equitable. As was said in Norman, reference to what the High Court said in Mallett remains instructive. In Mallett, Gibbs CJ makes plain the point just made (at 608):
The circumstances which the court is specifically required to take into account may be regarded as falling within two main classes. First, the court must consider the extent to which either party has in the past contributed to the acquisition, conservation or improvement of the property … Secondly, the court must consider all those circumstances which relate to the present and future needs, and to the means, resources and earning capacity, actual and potential, of the parties … [references to specific provisions of s 75(2) not relevant for present purposes] … and "the effect of any proposed order upon the earning capacity of either party" … In addition, the court may take into account "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account": s.75(2)(o) … It is not necessary in the present case to consider whether this includes the fault or misconduct of either party. The Act does not indicate the relative weight that should be given to different circumstances, or how a conflict between opposing considerations should be resolved - those things are left to the court's discretion, which must, of course, be exercised judicially.
(Emphasis added)
The premise for the appellant’s challenge can be seen at [13] of the her amended written outline of argument:
By reasons of the statements made in paragraph 337(b) the wife must assume that she would have received an adjustment greater than 2% had she not withheld the children and that she was punished by no such adjustment being recognised. Such a course is not consistent with s 79. This was an obvious error of law.
It is of note that Chief Justice Gibbs does not, in the passage quoted above, exclude from consideration “fault or misconduct”. In some cases, those words have been used as synonymous with “conduct”. In my view, they clearly are not. Conduct, distinct from fault or misconduct, has always been of relevance in proceedings for settlement of property; indeed many findings, for example of different types of contribution, centre upon findings as to the conduct of the respective parties.
To my mind, her Honour’s finding at [337] has nothing to do with “punishment”. Rather, it recognises, as was found to be the fact, that the wife made greater post-separation contributions to the welfare of the family by reason of her care of the children. Equally, the finding recognises, as
her Honour found to be the fact, that the husband’s contributions in that respect were impacted by decisions taken by the appellant excluding him from further care of the children (as distinct, for example, from a situation where the respondent avoided making those contributions).
Using those factual findings, her Honour gave that factor the attribution of weight evident in her final assessment of contributions. Quite apart from the general appellate consideration that “…an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight” (Gronow & Gronow (1979) 144 CLR 513, 520 per Stephen J), I can see no specific error in her Honour’s approach.
The challenge embraced by ground 3(c) is not made out.
Conclusion
I would, then, dismiss the appeal.
Costs
Given the applications by each of the parties referred to by Ainslie-Wallace J, directions should be made for the filing of submissions on costs. I agree with the directions proposed.
Tree J
For the reasons given by Ainslie-Wallace J and Murphy J, I agree that the appeal should be dismissed. I also agree with the proposed directions as to costs.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy & Tree JJ) delivered on 25 June 2015.
Associate:
Date: 25 June 2015
Key Legal Topics
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Family Law
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Appeal
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Jurisdiction
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Compensatory Damages
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