Keighley & Keighley
[2023] FedCFamC1A 146
•1 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Keighley & Keighley [2023] FedCFamC1A 146
Appeal from: Keighley & Keighley (No 2) [2023] FedCFamC1F 42 Appeal number: NAA 38 of 2023 File number: SYC 6003 of 2016 Judgment of: AUSTIN, KARI & STRUM JJ Date of judgment: 1 September 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where the primary judge made orders for the children to live with the mother and she have sole parental responsibility and for the father to spend only professionally supervised time with them – Where the father suffered from mental health difficulties – Whether there was unacceptable risk of direct or indirect psychological harm to the children – Where the primary judge found the father presents a psychological risk to the children – Whether the primary judge gave adequate reasons – Whether the primary judge failed to have regard to or placed insufficient weight on certain evidence – Whether the primary judge gave excessive weight to certain evidence – Whether the primary judge’s decision was manifestly wrong – Appeal dismissed.
FAMILY LAW – APPEAL – PROPERTY – Where the father appeals property settlement orders providing for a 55/45 per cent adjustment in favour of the mother – Whether the primary judge failed to give adequate reasons – Where the father contended that his contributions should have been assessed holistically – Where the primary judge did precisely that – Where the father’s complaint that the primary judge failed to have regard to or placed insufficient weight on certain evidence is devoid of merit – Where the father’s complaint that the primary judge erred in law is rejected – Appeal dismissed.
FAMILY LAW – COSTS – Where the father’s appeal from final parenting and property orders was wholly unsuccessful – Where the mother seeks her costs of the appeal calculated in accordance with the scale prescribed by Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Scale costs particularised by successful respondent only on a solicitor/client basis – Where order for costs is sought, costs should be particularised on a party/party basis at scale and on any other basis on which they may be sought – Order for costs made in accordance with scale in an amount fixed by the Full Court approximating party/party costs.
FAMILY LAW – APPEAL – Where the grounds of appeal are numerous, prolix, repetitive, confused and confusing – Where the grounds of appeal are not properly addressed or advanced in the Summary of Argument – Appeal dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA 60CC, 68B, 75, 79, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, rr 12.17, 13.23, 13.53
Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021, updated 28 November 2022 para 5.65
Cases cited: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47
B and B (1993) FLC 92-357; [1993] FamCA 143
Bachman & Self [2023] FedCFamC1A 50
Bahonko v Sterjov (2008) 247 ALR 168; [2008] FCAFC 30
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Davut & Raif (1994) FLC 92-503; [1994] FamCA 113
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hamish & MacPherson [2023] FedCFamC1A 74
Heazlewood & Harksen [2022] FedCFamC1A 217
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
HJ Heinz Company Australia Ltd v Turner [1998] 4 VR 872
Hickey & Hickey (2003) FLC 93-143; [2003] FamCA 395
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21
Mallory & Mallory [2019] FamCAFC 221
Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520
Newet and Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96
Pandya & Pandya [2023] FedCFamC1A 85
Pastrikos & Pastrikos (1980) FLC 90-897; [1979] FamCA 56
Re Andrew (1996) FLC 92-692; [1996] FamCA 43
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Rigby & Olsen [2021] FedCFamC1A 46
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
State of Victoria v Bacon [1998] 4 VR 269
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Waters v Jurek (1995) FLC 92-635; [1995] FamCA 101
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 176 Date of hearing: 29 May 2023 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Ms Windsor Solicitor for the Respondent: Hotop Family Lawyers ORDERS
NAA 38 of 2023
SYC 6003 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KEIGHLEY
Appellant
AND: MS KEIGHLEY
Respondent
ORDER MADE BY:
AUSTIN, KARI, STRUM JJ
DATE OF ORDER:
1 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $25,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keighley & Keighley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, KARI & STRUM JJ:
This is an appeal from final parenting and property orders made by the primary judge on 8 February 2023.
For the reasons which follow, the appeal will be dismissed.
BACKGROUND
The parties were married in 2008 and separated in 2016. There are two children of the marriage aged nearly 11 and 6 at the commencement of the trial.
Pursuant to interim parenting orders made in May 2019 (‘the May 2019 interim orders’), the children lived with the mother and were to spend supervised time with the father in three weekends out of four, for up to four hours at a time.
The trial proceeded over 13 days between June and November 2022. The last of written final submissions were received in late December 2022. Reasons for judgment (“reasons”) were delivered and final orders (“orders”) were made on 8 February 2023. The orders provided, in summary, for the mother to have sole parental responsibility for the children and for them to live with her; for the children to spend supervised time with the father, for an initial period of six months, for three hours each alternate Saturday and, thereafter, for a period of six hours on the first Sunday of each calendar month; and to effect a property settlement between the parties of 55 per cent to the mother and 45 per cent to the father of their net assets, including superannuation.
By reasons of the grounds of appeal, upon which we comment below, which include complaints that the primary judge failed to give (adequate) reasons and failed to (adequately) consider or give weight to various matters, it is unfortunately necessary to set out her Honour’s findings in some details, in order to consider these grounds.
PARENTING
The primary judge noted that this was not a case about credit; each of the parties saw the facts in the case through the “lens of their own experiences and vulnerabilities and in the case of the father, through serious and often debilitating mental health challenges” (at [25]).
Her Honour identified (at [38]) the issues which arose on the cases of each of the parents as being: what was the nature of the children’s relationship with the father; whether time between the children and him posed a risk to them; if so, whether the risk could be ameliorated; what was the capacity of the parents to communicate; and what was the effect, if any, of the father’s actions on the mother’s functioning?
In relation to the father, the single expert psychiatrist noted, inter alia, “quite good” interactions between the children and him. However, they were affected by his obsessional traits and the expert expressed concern regarding the father’s failure to perceive the observed “warmth, spontaneity and intimacy” in his relationship with the elder child. This demonstrated the difficulty experienced by him in responding in a proportionate manner to issues as they arose in a parenting context (at [45]–[46]).
The expert opined the children’s relationships with their father to be positive and reasonably stable but not very deep, impacted by the (limited) amount of time they had spent with him, the supervision of such time and his personality style (at [47]–[48]).
Whilst the supervised contact reports were found to be “overwhelmingly positive in nature”, the mother was unable to accept them as representative of the true position and she sought to dismiss them as a product of appeasing behaviour. The primary judge accepted that the children might have acted in ways which were designed to appease the father but was unable to dismiss accounts of positive interaction as the result only of such efforts (at [48]). Nevertheless, her Honour found that the mother’s concerns were not entirely without foundation, were genuinely held and were unlikely to be amenable to change. Further, her concern that the father’s actions may not be developmentally appropriate was shared by the single expert psychiatrist. Whilst the mother’s views appeared rigid and seemingly incapable of change, nevertheless, they were accepted to be genuine and so could not necessarily be ignored (at [54]–[58]).
The primary judge said that the positive nature of the interactions between the children and their father made it desirable to explore all options to determine whether orders could be made which protected this relationship, while at the same time understanding the complex interplay between the other factors, including the impact of orders for time on the children and the primary carer, which pointed towards a cautious approach to time between the children and their father (at [59]–[60]).
The primary judge accepted that time between the children and the father poses a risk of psychological harm to the children (at [61]), including by reason of his emotional dysregulation, “very short fuse” and difficulty controlling his anger (at [65]).
The father’s treating psychiatrist said that the father met DSM criteria for Attention Deficit Hyperactivity Disorder (“ADHD”) Combined Type, had a recurrent Major Depressive Disorder (in remission in 2015), some features of Social Anxiety Disorder, attachment issues and features of a Preoccupied (Anxious) Attachment, the significance of which was in its manifestation of his parenting (at [65]).
However, the single expert psychiatrist disagreed in relation to the diagnosis of ADHD. Rather, he opined that the father had “a serious personality dysfunction with strong obsessional, paranoid and depressive components” (at [67].) The primary judge held that such diagnosis, while relevant, was not the key issue; rather, it was the manner in which the conduct which grounded that diagnosis manifested in the father’s life and the consequences thereof for his parenting capacity. Her Honour accepted that the father’s behaviour, in particular his response to intrusive obsessive ideas, had led to a series of disproportionate responses to issues which arose for the children (at [68]).
The primary judge found that there were two distinct areas of the evidence relevant to assessment of risk: first, the father’s interactions with the children themselves and, secondly, the father’s interactions with others, including the mother, which have implications for the children (at [69]).
The primary judge accepted that when the father becomes anxious he can become belligerent, and overbearing (at [70]) and that, whilst he had worked hard to overcome this (and had ameliorated some of the worst excesses), it had not resolved the underlying obsessional and pedantic nature of his approach. His treating psychiatrist said that, by nature, he is very obsessional and “he can be a bit black and white and perhaps lacking in ability to reflect” how this might look to other people, including the children (at [71]–[72]). An example was his use of a body camera to record his time with the children in order to gather evidence.
Both psychiatrists confirmed that the father’s obsessive thinking patterns would continue and that there remained a risk of relapse triggered by loss, such as of a job or a relationship (at [73]–[74]). The single expert psychiatrist opined that, whilst the area of fixation might shift, the tendency to fixate would remain, such as the change in the father’s fixation from the younger child’s health to whether or not the elder child had been coached by her grandparents (at [75]). See also [79]–[80].
The primary judge said (at [76]) that it was those opinions about future risk, when read with the findings about the past conduct, that grounded the predictive exercise about unacceptable risk: Isles & Nelissen (2022) FLC 94-092 at [82].
The primary judge found (at [80]) that, not only was there no evidence that the maternal grandparents had coached the elder child, but it was not clear that the father had truly abandoned his concern. The father had, inter alia, set up cameras which recorded his interactions with the children in his home, as well as worn a body camera. See also [81]–[82].
The primary judge also referred to a recording made by the father of the elder child in September 2018, when he took her to the Joint Investigation Response Team of the Department of Family and Community Services. Her Honour described the father “interrogating” the elder child about what she had discussed with them (at [83]) and observed that he was anxious, his speech seemed pressured and he returned to the same subject matter repeatedly, notwithstanding the fact that the child became increasingly distressed and was audibly sobbing. Her Honour said that his affect was insistent, cold and determined, lacking any apparent empathy for the position in which he had placed his daughter and providing her with no comfort or reassurance. Her Honour described him as persistently asking the child leading questions, trying to determine what she may have said to the police about him and expressed great concern that he seemed to make her responsible for the predicament in which they found themselves, repeatedly effectively asking her: “what are we going to do?” (at [84]).
The father, who described himself as being in a “heightened and wound-up state” on that day, acknowledged that his conduct was inappropriate, lacking in child focus, productive of considerable distress to the elder child and obsessive in nature. The primary judge did not accept that this acknowledgement of past failing provided comfort that such conduct would not be repeated. Rather, whilst he might not repeat identical conduct, her Honour accepted that his obsessional personality style would likely result in similar conduct in the future, which poses a risk of unacceptable psychological harm to the children: s 60B(1) and s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) (at [85]).
Another example of the negative impact of the father’s thinking on the children was his perception that the elder child was ignoring him. Rather than accepting that this may be normal for a child of her age, the primary judge said that the father seemed to pathologise her conduct and that “fear of being ignored appears to be a recurring theme” for him (at [86] but see also [87]–[90]). The primary judge found that the father’s actions demonstrated that he was not parentally attuned and that he failed to treat the children in a manner which was developmentally appropriate (at [93]).
An order had been made in the May 2019 interim orders that the father consult with a child psychologist, to assist him to challenge his obsessional thinking. Notwithstanding that the father had come to appreciate that his thinking was obsessional, the primary judge doubted that he is able to avoid such thinking because “the manner in which he approached the final hearing did not demonstrate a capacity to fully abandon his concerns” (at [97]). In his trial affidavit, instead of demonstrating the lessons he had learned from the child psychologist, the father’s evidence focused on the wrongdoing of the mother and her family, going as far as to suggest that she may have been the cause of his adverse ill-health. Her Honour found that this externalisation of the father’s difficulties did not enable her to conclude that he had the tools necessary to avoid repetition of similar conduct, which was relevant to the question of unsupervised time and mitigation of risk (at [98]). Having regard to the evidence, in particular, of the single expert psychiatrist and the father’s treating psychiatrist and psychologist, her Honour concluded that, for a number of reasons, she could not be confident that the father’s past engagement with professionals provided a sufficient indicator that unsupervised time would not pose a psychological risk to the children (at [100]).
Her Honour said that the most significant problematic interactions (from the perspective of the children) between the father and third parties, arising out of his obsessional personality style, were those between their parents since they had the most likelihood of impacting directly on the children’s stability (at [102]).
Whilst, when the case opened, the father persisted with his application for equal shared parental responsibility, at the conclusion thereof, he conceded that the mother should have sole parental responsibility but sought that she communicate to him, in writing, her decisions in relation to major long-term issues within seven days thereof. Her Honour declined to so order (save in relation to any hospitalisation), having found that the parties’ communication had been a cause of anxiety for the mother and that, therefore, any such requirement was likely, on past conduct, to produce correspondence which questioned her decisions (at [105]).
Insofar as the father also sought specific orders relating to the elder child’s bat mitzvah and the younger child’s bar mitzvah, which would have required the parties to reach agreement about aspects of these religious celebrations, the primary judge, concerned about the way in which such an order would impact on the children, refused to do so. Her Honour accepted that the father’s involvement in such decision-making would involve stress, anxiety, impasse and indecision and observed that “[e]ven the very detailed nature of the orders sought themselves is a signpost to the obsessional manner in which the issue would be approached (at [106]–[107]).
Relevant to the primary judge’s decision, both that the mother should not have to communicate her decision-making to the father and that the time the children spend with him should be subject to conditions designed to ameliorate risk, was the language the father uses in his communications with the mother, which her Honour accepted is a source of anxiety for her. Her Honour described the correspondence between the parties, exhibited to the mother’s trial affidavit, as being voluminous, detailed and appearing to question her judgment on issues relating both to the children and finances (at [110]). It was described by the single expert psychiatrist as having “an intrusive, passive-aggressive and irresistible component”, despite the surface politeness thereof (at [111]).
After separation, the father refused to return the younger child, who was still being breastfed, to the mother. The primary judge said that, on any view, this decision, which was made on the advice of the paternal grandfather (a general medical practitioner), could not be seen as child focused (at [119]).
Another issue which the primary judge found supported a conclusion that the father is suspicious and distrustful when it comes to the mother, were her two surgeries in early January 2020. After it was raised by the mother, a number of letters followed from his solicitors to hers requesting details of the diagnosis and procedure, which were answered. However, he did not accept the truth of what he was told. Even after the mother provided a report from her doctor, he remained unsatisfied with the information provided and caused a number of subpoenas to be issued directed to her diagnosis and treatment for cancer (at [121]–[128]). Her Honour said that the father’s focus on this issue, which she found to be “to no apparent end”, was a further example of the difficulties that would be encountered if the parties’ were required to communicate and cooperate. Her Honour concluded that:
129.[The father] either failed to appreciate the intrusiveness and obsessiveness of his inquiries and their likely effect on the mother or he appreciated the impact this conduct may have and undertook it anyway. Either option creates difficulties for the parties in their capacity to parent together in the future.
After considering other examples, the primary judge observed that the father had devoted considerable time to gathering evidence and seeking to right perceived wrongs about “relatively uncontroversial facts”. Her Honour said that these had informed her decision about parental responsibility, communication, time (and its limits and conditions) and injunctions, as they shed light on “the notorious difficulty the parties have experienced and will experience if they are required to reach any joint decision” (at [130]–[131]) and “gave the Court no confidence that any joint decision concerning the children would be anything other than an opportunity for stress, distress and conflict”, by reason of the father’s “inability to see the wood for the trees” (at [141]).
Her Honour accepted that the mother had experienced the father’s style of interaction as intrusive and controlling, giving rise to “anticipatory anxiety” on her part, and that, if he was unable to exercise restraint, this might trigger a rise in vigilance, with the potential “disturbing effect on the maternal parenting environment” (at [142]).
In relation to whether the identified risk posed by the father could be ameliorated, the primary judge expressed concern that the mother would experience facilitation of unsupervised time between the children and the father as significantly difficult, and likely to be productive of somatic symptoms (at [162]).
In relation to the evidence of the single expert psychiatrist that the father’s conduct had a very adverse direct effect on the children as well as an adverse indirect effect on them, in terms of the impact that it had on the mother, the primary judge found that the risk remained real (at [164].
The father sought that the children spend, initially, daytime with him, graduating to overnight time. However, the primary judge found that the possibility of them experiencing his recurring nightmares or erratic behaviour was highly likely and that, whilst there were many factors which suggested that time should be supervised, one of them was to ensure that the children are not afraid of their interactions with the father (at [169]).
Insofar as the mother sought injunctions against the father for her personal protection, the primary judge accepted that she experiences anticipated encounters with him (directly and indirectly) as a source of anxiety and distress, and that some injunctive relief would assist her to facilitate time between the children and him and make her better able to contemplate supervised time (at [171]–[172], [175]).
Notwithstanding that the mother held tremendous fear about risk to the children in the unsupervised care of the father, the primary judge found that the objective evidence did not support a finding that they would be at physical risk (at [178]). Her Honour accepted that there could be little doubt that she is affected psychologically, and to some extent physically, by the anxiety she feels in dealing with him. However, her Honour found that this was not a case where the mother’s functioning was so compromised that supervised contact could not be contemplated; the evidence did not rise to the level where it was necessary to make orders for no time to be spent, having regard to the balance to be struck between the benefit to the children of the relationship with their father and the protection of their primary carer and them (at [180]). Her Honour therefore concluded that the frequency with which time occurs should be decreased and that it should remain supervised, which would assist the mother to manage her anxiety.
In relation to orders for time to be spent on special occasions, in particular, on Jewish holidays and religious occasions, the primary judge said that this would cause conflict between the parties and expose the children to the father’s obsessive tendencies and the mother’s anxiety. Accordingly, the best compromise would be achieved by the father spending time with the children proximate to some important events in the Jewish calendar (at [183]).
The primary judge did not accept that continued therapeutic treatment would sufficiently mitigate the risk of the father’s obsessional traits being visited on the children during unsupervised time (at [184]). The risk was not one which was easily mitigated by a requirement for treatment, and the father was already in treatment when many of the events described in her Honour’s reason took place (at [185]).
Whilst the primary judge was cognisant of the fact that the Court is not usually persuaded to make long term supervision orders, her Honour said that supervised time will be appropriate, even in the long term, where the Court can be confident that the time will be in the best interests of the children. In this case, supervised time was demonstrably time which the children had mostly enjoyed to date and it could ameliorate the identified risk (at [188]–[190]).
Lastly, the primary judge accepted that, whilst the children had not experienced the frequency with which they had spent time with the father as problematic, nevertheless, in the longer term, if time was frequent and supervised in perpetuity, there would be greater scope for it to become unsustainable. Further, a decrease in time would also go some way towards addressing the mother’s anticipatory anxiety, and thus lessen the chance of exposing the children to any consequent impact on her functioning (at [191]).
Her Honour concluded that orders for supervised time, including proximate to special occasions, was a proportional response to the identified risk and would provide the children with a meaningful, if not optimal, relationship with the father (at [192]–[193]).
PROPERTY
At [12], the primary judge set out the parties’ assets and liabilities, according to the final joint balance sheet that was tendered in evidence.
In relation to the value of the assets, the parties were only $4,547 apart with the mother contending their total value to be $397,645 and the father contending it to be $393,098. The modest disparity was due to the mother including two bank accounts in the names of each of the children, totalling $13,694, and to the father including the mother’s engagement ring and other jewellery, totalling $9,150. In relation to the mother’s jewellery, the primary judge correctly said that there was no principle of law that gifts or personal effects should not be included. In relation to the children’s bank accounts, for which the father was the signatory, both parties accepted that they were held for the children and, accordingly, her Honour excluded them. Further, her Honour included the actual balance of a NAB controlled monies account, in the sum of $318,701, rather than the sum of $345,437 in the tendered final joint balance sheet (at [197]–[198]).
The value of the parties’ respective superannuation interests was agreed, in the sum of $541,282.
The mother asserted that the parties’ liabilities totalled $5,298 (comprised of two taxation liabilities and two credit card debts of hers) and the father asserted that they totalled $97,906 (comprised of two personal loans, two credit card debts, one taxation liability and unpaid superannuation on his part). In respect of his unpaid superannuation, there was no evidence thereof and, even if it were his personal liability, the primary judge held that it should be excluded because, if paid, it would increase the value of his entitlements by a corresponding amount.
In relation to the father’s personal loan, in the sum of $54,204, said by him to have been obtained to meet his living costs, the primary judge found (at [202]) that it should be included.
In relation to the father’s asserted personal loan (in the sum of $30,850), obtained from his parents to purchase a motor vehicle (with an agreed value of $16,125) after separation, the primary judge observed that neither of the parties had made a direct or indirect contribution to the acquisition of the motor vehicle and that the most appropriate course was to exclude both it and the monies said to have been lent for it (at [203]).
In relation to the parties’ respective taxation liabilities, the primary judge declined to take same into account because they had each had the benefit of their own income post-separation and therefore should bear the taxation liabilities therefor (at [210]).
Each of the parties also sought to have certain sums added back as against the other. It was agreed that interim property settlements, in the sums of $30,000 to the mother and of $6,500 to the father, be added back. Further, it was agreed that the proceeds of sale of shares, held by the father at separation, which he applied to his legal fees, should be added back. However, the mother contended that the add-back should be in the sum of $98,000, whereas the father contended it should only be in the sum of $40,000. The primary judge found that the best evidence of the entirety of the share sale proceeds received by the father was his own estimate of $100,000, recorded in his Financial Statement, and included that figure. See [200]–[201].
Additionally, the father sought to add back the sum of $5,000 drawn by the mother from the parties’ joint funds to pay for her half share of the cost of the elder child’s attendance upon her psychologist, as well as the sum of $27,551 withdrawn by the mother from her superannuation entitlements to meet her health costs, including her surgery. We pause to observe that we would have been individually, and are jointly, more critical of the father for seeking to add back this latter amount, than was the primary judge, especially given that add-backs are an exception, rather than a rule. Her Honour referred to Trevi & Trevi (2018) FLC 93-858 and concluded (at [206] and [208]) that, having regard to the principles outlined therein, the father had failed to persuade her that justice and equity required the funds which the mother had spent on surgery to be added back. Not only was that conclusion open to the primary judge but, had she done otherwise, we are of the opinion that her discretion might well have miscarried in this regard.
In relation to the monies withdrawn by the mother and applied towards the elder child’s attendance upon her psychologist, the primary judge correctly said that there is no principle which requires parents’ contribution to their children’s financial support to be equal. Here, their incomes were significantly different during the relevant period. Accordingly, her Honour, correctly in our view, declined to add-back those funds or to take them into account under s 75(2) of the Act. See [209].
The primary judge therefore found the net asset pool, inclusive of superannuation and accepted add-backs, to be in the sum of $973,815 (at [211]–[212]). The father contended that contributions should be assessed in the proportions of 65/35 per cent in his favour whereas the mother contended that they should be assessed in the proportions of 52.5/47.5 per cent in his favour.
The primary judge recorded (at [214]) that the mother accepted that the father’s initial contributions were greater than her own and found (at [215]–[216]) that, when the parties commenced cohabitation, the father’s net assets (comprised of investments) and superannuation totalled at least $671,032, whilst those of the mother (which included equity in a residential property in which they first lived) totalled $111,537, such that the father’s initial contributions should be afforded “significant weight” (at [217]). However, during the marriage, the mother’s property provided accommodation, whilst the father’s property provided income, such that, holistically, her Honour regarded their contributions in this regard “as different in nature but equivalent in terms of the value of the contribution to the parties themselves” (at [218]).
The primary judge recorded (at [219]) that each of the parties worked during the relationship and contributed their earnings to the benefit of the family. Whilst the father contributed a redundancy payment received in February 2009, her Honour accepted that it was utilised for family expenses, including in the period between receipt and his next job in June 2009, such that she did not place “any special significance” on that direct financial contribution.
In relation to the period post-separation, whilst the father’s superannuation increased in value, the primary judge found that, in the same period, the mother made the greater (if not sole) parenting contribution (at [221]–[222]).
The mother contended that the father had engaged in family violence which had an impact on her contributions. The primary judge referred to the decisions of the Full Court in Kennon & Kennon (1997) FLC 92-757, Benson & Drury (2020) FLC 93-998 and Keating & Keating (2019) FLC 93-894 and the need for “an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions” (at [225]).
The primary judge said that, even on the father’s version, his conduct was an assault: “[h]is actions, unwanted by the mother, are in the nature of physical violence” (at [230]). Further, her Honour found that he played a role in isolating her from her family (which fell within the examples of family violence in s 4AB(2)(i) of the Act). Her Honour referred to the mother’s evidence about the father’s role in preventing her from communicating the fact of her pregnancy or the younger child’s birth to her parents, and from inviting them to his “brit” (Jewish ritual circumcision). The mother was not cross-examined about her contention that the father did not permit her to inform her parents about these matters. Her Honour accepted that the father’s animus towards the maternal grandparents resulted in the mother becoming isolated and estranged from them, which removed a significant source of support to her and made the circumstances in which she made her non-financial contributions more difficult (at [231]).
On behalf of the father, it was submitted that the mother’s evidence about family violence should be rejected because it was not corroborated by her parents (with whom the parties lived for a time). However, the primary judge said that:
235.It is now notoriously well accepted that family violence is frequently perpetrated in circumstances which do not permit corroboration and this fact alone ought not impact upon the acceptance or otherwise of the evidence. …
Her Honour also found that, rather than exaggeration or overstatement by the mother in this regard, the mother interpreted the father’s conduct negatively, where a more objective observer (such as an independent supervisor) might not share the same concerns. However, her Honour correctly said that this did not enable her to reject wholesale the mother’s account of the father’s actions, where they were supported by some concessions on his part and contemporaneous complaint by her.
The primary judge recorded that the father’s written closing submissions were to the effect that he denied the severity of the violence, as alleged by the mother, but conceded some of the matters contended by her (at [236]). Her Honour said that the way in which the case was run did not enable her to make findings about all of the allegations of family violence; however, she was able to find that the father engaged in acts which met the definition of family violence over the course of the relationship and after separation (at [237]). Whilst this conduct, by itself, did not establish (either directly or by inference) that the mother’s contributions would have been made more arduous, her Honour accepted the expert evidence of the single expert psychiatrist and the mother’s treating psychologist, about the impact of the father’s conduct on her functioning, which was not undermined by cross-examination (at [238]). Accordingly, her Honour found that the circumstances in which the mother made her contributions was one of the matters to which she was required to have regard in her holistic approach to the assessment of contributions (at [241]).
Weighing the initial contributions, which the primary judge found substantially favoured the father, against the parties’ contributions during the relationship, which her Honour assessed as being approximately equivalent, save that the mother’s contributions were made in difficult circumstances, and then considering the weight to be attached to the mother’s post separation parenting contributions, the primary judge found that overall the contribution-based entitlements of the parties favoured the father, which she assessed at 57.5 per cent (at [242]).
In relation to the matters set out in s 79(4)(d)–(g) and s 75(2) of the Act, the primary judge (at [244]–[245]) referred to the parties being about the same age; each of them having faced health challenges; the mother having the children in her full-time care for more than another 10 years; the father having a greater income and earning capacity; the mother having had time out of the workforce to care for the children; and the father having the expenses of child support and for supervision of his time with the children. Balancing those factors, her Honour found that there should be an adjustment in favour of the mother of 12.5 per cent, which also took into account the modest pool available for division (at [246]).
Accordingly, the overall division of assets determined by the primary judge was 55 per cent to the mother and 45 per cent to the father. Further, in circumstances where each of the parties had sought an order which would have the effect of splitting the father’s superannuation entitlements, her Honour determined that an order splitting those entitlements should be made, such that the mother would have 55 per cent of their superannuation assets.
GROUNDS OF APPEAL
The appellant’s further amended Notice of Appeal contains 23 grounds of appeal, many of which contain numerous sub-grounds. Many of the grounds and sub-grounds are general in nature, vaguely drawn, incomprehensible, repetitive and/or prolix. Some of the grounds are more in the nature of un-particularised complaints by an unsuccessful litigant than proper grounds of appeal.
The father was self-represented in the appellate proceedings, including drawing his further amended Notice of Appeal and his Summary of Argument and appearing on his own behalf at the hearing of the appeal. His Summary of Argument and limited oral submissions only added to, rather than clarified, the confusion.
In Re F: Litigants in Person Guidelines (2001) FLC 93-072 (“Re F”) at [242], the Full Court said:
It should be recognised that persons who represent themselves are almost always at a disadvantage in legal proceedings. Advocacy is a professional skill that has almost always been performed by highly trained lawyers in our legal system. They not only bring those skills to bear but also professional objectivity that a litigant in person lacks, particularly in family law proceedings. It is simply not possible to create a level playing field where one party is represented by a professional and the other is not. …
However, the fact that the father was self-represented, is no defence to the criticisms of his further amended Notice of Appeal, his written Summary of Argument or his limited oral submissions. The guidelines set out in Re F, insofar as they are applicable to the hearing of appeals, were observed at the hearing of the appeal.
At the hearing, the father abandoned grounds 3, 5 and 14 (which, directly or inferentially, complained of lack of procedural fairness); he addressed us orally in relation only to ground 10, which he pressed; and otherwise did not wish to add anything to his Summary of Argument. Contrary to r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the father failed to set out in his Summary of Argument, inter alia, for each ground of appeal, a statement of the arguments setting out the points of law or fact relied on. His summary of argument is replete with authorities, most of which have no bearing on his grounds of appeal. Further, it is confused and confusing and, if anything, obscures rather than illuminates his grounds of appeal. Endeavouring to disentangle it is akin to endeavouring to wade in treacle.
Further, contrary to r 13.23(3) of the Rules, insofar as the father seeks to challenge findings of fact, the father failed, in his Summary of Argument, to identify properly the errors (including any failure to make findings of fact) and the findings he contends should have been made; to state concisely why the findings are, or failure to make findings is, erroneous; and to refer to the evidence relied on in support of the argument.
Accordingly, his Summary of Argument has been of little assistance to us in determining the appeal. This may also explain, in part, the lack of assistance to us provided by the mother’s Summary of Argument.
Grounds of appeal must not be impermissibly vague and general; they should be expressed as a “specific and concise statement of the point sought to be argued by the applicant”: Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]. Neither of these appellate principles were observed by the father in this appeal.
An appellate court cannot be expected to mine through broadly expressed arguments that are set out in an appellant’s Summary of Argument with a view to distilling a specific and concise ground or grounds of appeal: Heazlewood & Harksen [2022] FedCFamC1A 217 at [29], referring to Newet and Newett (No 2) (2021) FLC 94-051 at [34] and Bahonko v Sterjov (2008) 247 ALR 168 at [3]. Rather, an appellant must particularise the asserted error; it is not the job of an appellate court to rummage for grounds: State of Victoria v Bacon [1998] 4 VR 269; HJ Heinz Company Australia Ltd v Turner [1998] 4 VR 872; Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540. However, that is what the father, by his conduct of the appeal, would have us do. Nevertheless, we shall not do so.
The Full Court in Bachman & Self [2023] FedCFamC1A 50 said:
17.It should also be noted that the grounds of appeal are numerous, prolix and poorly drawn, on occasion to the point of being quite impenetrable. Further, although there are 25 grounds, in fact most have multiple sub-grounds, meaning that there are perhaps approaching 100 individual grounds. Indeed their articulation in the father’s Further Amended Notice of Appeal filed 7 December 2022 extends to no less than 21 closely typed pages.
18.As the Full Court of the then Family Court said in Sieger & Department of Communities and Justice [2020] FamCAFC 172 at [20]–[22]:
20.When an appeal asserts many different errors in a relatively short first-instance judgment, as this one is, the Court is entitled to be circumspect about the merit of all the grounds (Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at [70]; Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [52]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]). Even if appealable error does exist, an unnecessary multiplication of grounds tends to conceal it (Thorne v Kennedy (2017) 263 CLR 85 at [49]).
21.Aside from the sheer number of grounds of appeal, many of them amount to no more than the intricate dissection of individual paragraphs in the reasons for judgment. This parsing approach has been rightly criticised by other intermediate appellate courts, which criticism we adopt.
22.The Full Court of the Federal Court of Australia said this in Australian Olympic Committee Inc v Telstra Corporation Ltd (2017) 258 FCR 104 at [115]), endorsing what was earlier said by the New South Wales Court of Appeal in Liverpool City Council v Turano (2008) LGERA 16 at [160]:
…the role of this Court on appeal should not be misunderstood. The analysis of a judgment for appellate purposes does not require a fine parsing exercise and does not require overzealous analysis…
Accordingly, we propose to deal with the father’s grounds of appeal and his submissions in support thereof, insofar as they are intelligible, generally and thematically, rather than seriatim, both in relation to property and parenting. Given the number of grounds of appeal, and sub-grounds, most of which are (at least) repetitive, we shall generally not do so by reference to the numbered grounds and sub-grounds.
It is well-settled that appeals from discretionary judgments must establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 504–505, where the majority said:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
It is not enough that the appellate court may have come to a different decision on the same facts; it must be “well satisfied that the primary judge was plainly wrong” and did not properly exercise judicial discretion: Gronow v Gronow (1979) 144 CLR 513 at 519.
It is also salient to recall that in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed) said:In SS Hontestroom v. SS Sagaporack [1927] AC 37, Lord Sumner pointed out, at 47, that:
“not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.”
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v. Thomas [1947] AC 484 at 488.
Further, at 179, McHugh J said:
As I pointed out in Jones v. Hyde (1989) 63 ALJR 349 at 351, when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to the demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part in her findings on the supervision issue. But in any event, no matter how impressive Professor Ferguson’s evidence may appear, it cannot claim the consideration of an appellate court to the extent necessary to overcome the advantage which her Honour enjoyed in seeing and hearing Mrs Archer give evidence. There is simply no basis for concluding that, in so far as her Honour preferred the evidence and demonstrations of Mrs Archer to the evidence of Professor Ferguson, she failed to use or palpably misused the advantage which she had of seeing and hearing the witnesses. In any event, her Honour may well have taken the view, not without justification, that Professor Ferguson’s evidence on the issue of supervision was too limited and tenuous to outweigh the effect on her of the video cassette and in-court demonstrations given by Mrs Archer.
We are conscious of the fact that we do not have the benefits to which the High Court referred in Abalos v Australian Postal Commission, but of which the primary judge was possessed.
In Hedlund & Hedlund (2021) FLC 94-065, the Full Court said:
36.These grounds, and their particulars, present an amalgam of complaints that are not confined to either taking into account of the irrelevant, or the failure to take into account the relevant. They also incorporate complaints about the “manner” of taking into account, or the placing of weight upon evidence. Such complaints do not correspond with the grounds of review established by House. In Bugmy v The Queen (2013) 249 CLR 571, Gageler J observed that:
53.… The first and second [grounds of appeal] were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention [“one or more specific errors of principle or of fact” (at [51]), as set out in House] only if the asserted impropriety rose to the level of a failure to take those considerations into account. … The third [ground of appeal] was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category [“in the totality of the circumstances was unreasonable or plainly unjust” (at [51])].
37.To the extent that the grounds constitute criticisms as to whether the consideration was “proper” or as to weight, none of these qualifiers is a valid justification for appellate intervention unless the result achieved is unreasonable or plainly unjust. …
Bearing these matters in mind, the gravamen of the remaining grounds of appeal (after the father’s abandonment of certain appeal grounds), both in relation to parenting and property, can be generally distilled into the following categories, albeit with a degree of overlap:
(a)failure to provide adequate reasons;
(b)weight, including failure to consider or adequately consider evidence;
(c)errors of law; and
(d)miscarriage of discretion.
Parenting
(a) Failure to provide reasons
Many of the father’s appeal grounds complain, in effect, about the adequacy of the primary judge’s reasons.
In Rigby & Olsen [2021] FedCFamC1A 46, the Full Court stated at [38] that:
The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is that which makes apparent how the decision was arrived at (see Bennett and Bennett (1991) FLC 92-191 at 78,266). It is not required to give reasons regarding every argument, nor to perform a microscopic analysis “if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration” (A v J (1995) FLC 92-619 at 82,230).
The father contends that the primary judge’s reasons “are inadequate making it not possible to discern the path of reasoning, including why her Honour selected one position over another of the Single Expert” and that it “is not possible to discern with clarity the legal principles her Honour applied, nor the evidence she relied upon”. However, his Summary of Argument fails to explain this contention. At most, he argues at paragraph 14 thereof that the primary judge’s:
[E]ffective starting position was the father’s mental health … which seemingly guided her consideration. There was no reference at that early stage of how that position was determined, together with a focus on the evidence of the Single Expert and minimal regard to other experts …
In relation to his assertion that the starting position was his mental health, at [25] of the reasons for judgment, the primary judge referred to the father’s “serious and often debilitating mental health challenges”. At [27], her Honour also referred to her conclusion that “the paternal grandparents’ respective amended affidavits sought to underplay the difficulties their son had experienced”.
However, the father’s poor mental health over a number of years was not (and could not be) seriously in issue in the proceedings. It was not only the subject of expert evidence from the single expert psychiatrist but also from his long-standing treating psychiatrist. The father, in his Summary of Argument, refers to the affidavit of his treating psychiatrist, affirmed on 23 May and filed on 30 May 2022. Annexed to that affidavit are four reports prepared by the treating psychiatrist dated 9 December 2019, 19 March 2020, 12 December 2020 and 16 May 2022. Insofar as they are legible (albeit some with considerable difficulty), it is apparent that the father has laboured under mental health difficulties since at least February 2015, when he first attended upon the psychiatrist. Indeed, the father was referred to that psychiatrist by his own father (i.e. the paternal grandfather) who is a general medical practitioner.
A brief perusal of those reports makes it apparent that:
·The father described “emotional dysregulation and having a very short fuse. He said that controlling his anger had always been a problem. He said that his father had prescribed prescription medication to help control his aggression”.
·The treating psychiatrist opined that the father met the DSM criteria for ADHD Combined Type; that he probably had a recurrent Major Depressive Disorder that was in remission; and that he had some features of Social Anxiety Disorder (according to the Psychiatric Diagnostic Screening Questionnaire). Further, he had been concerned about the paternal grandfather prescribing psychotropic medication to him and the “enmeshed relationship” between them.
·The treating psychiatrist had diagnosed the father as having features of a Preoccupied (Anxious) Attachment.
·The treating psychiatrist opined that the father’s attachment issues made him vulnerable to being obsessive and pedantic.
·The description of the father as being “quite anxious and insecure and suspicious and [sic] dependent man who has acquired a number of very obsessional traits, fits the description of Preoccupied or Anxious Attachment” and that, when he becomes anxious, the father can become “quite belligerent, and overbearing”.
Whilst the evidence of the father’s treating psychiatrist, in summary, was that his various psychiatric issues were under control and that he had made progress with, and had insight into, them, even on the father’s own case, it could not be disputed that he had, as the primary judge described, serious and often debilitating mental health challenges. Therefore, it was not a fact in issue.
As we have referred to above, at [68] of her reasons, the primary judge said that the father’s diagnosis itself, while relevant, was not the key issue. Rather, it was the manner in which the father’s conduct, which grounded the diagnosis, manifested itself in his life and with what consequences for his parenting capacity. The primary judge said that the evidence, which she considered extensively, “demonstrated the father’s behaviour, in particular his response to intrusive ideas led to a series of disproportionate responses to issues which arose for the children” (at [68]). Accordingly, her Honour found (at [61] and [100]) that time between the father and the children poses a risk of psychological harm to them and that communications between the parents, including the tone and volume of the father’s correspondence, is a source of anxiety for, and has an adverse impact upon, the mother and, in turn, her parenting of the children (at [105], [111] and [142]). Her Honour accepted that the mother would experience facilitation of unsupervised time between the children and the father as significantly difficult and likely to be productive of the somatic symptoms she had described to her treating psychologist (at [162]).
Insofar as the father complains that the primary judge’s “reasons are inadequate making it not possible to discern the path of reasoning” in relation to “the credit and credibility of the parties, their witnesses and experts, and the Single Expert”, that is manifestly not so. Rather, as we have noted above, her Honour found that this was not a case about credit but, rather, one in which each of the parties saw the facts through the lens of their own experiences and vulnerabilities (at [25]). In particular, her Honour did not accept the mother’s submissions of deception or manipulation on the part of the father, in respect of his evidence (at [26]) or that amendments by the father and his witnesses to their affidavits (in an effort to better comply with the rules of evidence) in any way impacted on the central findings she was required to make or the major issues in the case (at [27]). The only exception was in relation to the issues of mental health and family violence, where her Honour found that the paternal grandparents had sought to underplay the difficulties their son had experienced. Her Honour concluded, in this regard, that these observations did not mean she had not determined that one party’s evidence should be preferred over the other’s in respect of certain key events (at [28]) and that, where she did so, it was apparent from her assessment of the evidence.
Insofar as the father complains that the primary judge’s “reasons are inadequate making it not possible to discern the path of reasoning” in relation to “whether the mother’s beliefs on the father are reasonable and genuine”, none of the expert psychiatric/psychological evidence cast doubt on the genuineness of her beliefs and, in circumstances where she was to remain the uncontested primary carer for the children, the reasonableness of those beliefs was secondary, albeit not irrelevant. We have referred above to her Honour’s findings in relation to the mother’s beliefs. Her Honour’s reasons therefor are manifest and cogent and, indeed, had she found otherwise, it might have been ground for appeal by the mother.
Contrary to the father’s complaints, it is abundantly clear from the primary judge’s reasons for judgment, which we have relevantly summarised above, how her Honour’s decision was arrived at. In all the circumstances, it is clear that her Honour considered and evaluated the relevant evidence and took into account all relevant factors. The father’s complaints regarding the primary judge’s reasons, or the asserted inadequacy thereof, are without merit.
(b) Weight, including failure to consider or adequately consider evidence
Many of the father’s appeal grounds assert, in effect, that the primary judge failed to consider (adequately) or to give “proper, genuine and realistic consideration” to some matters and that her Honour gave undue weight to various other matters.
It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Similarly, in Fox v Percy (2003) 214 CLR 118 at [41], Gleeson CJ, Gummow and Kirby JJ said:
… No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another.
(Footnotes omitted)
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said:
… It is not the duty of the judge to decide every matter which is raised in argument.
...
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear...
As to weight, in Gronow at 519–520, Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, 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. …
Aickin J at 534 referred to the judgment of Latham CJ in Lovell v Lovell (1950) 81 CLR 513 at 519, where the Chief Justice said:
… when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v. Wakefield) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by their Lordships in the House of Lords in this connection are not always easy to apply, but they ought not to be read as denying the long established principle (which, indeed, is expressly recognized in the cases in the House of Lords) that on an appeal from an order founded upon the exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal. …
(Citations omitted)
Aicken J further said at 537–538:
Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell:
“The proposition that the appeal court will consider whether ‘no sufficient weight’ has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.”
It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.
The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. Some objective matters such, for example, as relative financial resources and adequacy of accommodation may stand in a different position but in the present case it is not suggested that any error occurred in that respect.
(Citations omitted)
In Pandya & Pandya [2023] FedCFamC1A 85 (“Pandya”) at [48], the Full Court referred to its earlier decision in Hedlund & Hedlund at [37] and said that, to the extent that grounds of appeal constitute criticisms as to weight, that is not a valid justification for appellate intervention unless the result achieved is unreasonable or plainly unjust.
Further, referring to Gronow, the Full Court said at [57] that, insofar as a ground of appeal is a weight challenge, the weight which a matter should be afforded is “quintessentially” for the primary judge.
Similarly, at [62]–[63], the Full Court said:
62.This ground may be swiftly dealt with. The giving of any, and if so what, weight to matters of fact is quintessentially for the determination primary magistrate (Gronow). That an appellate court may have given them some, less, or more, weight does not establish error of the kind identified in House, unless the outcome is unreasonable or plainly unjust, which is not the case here.
63.Ground 3 is forlorn.
In Hamish & MacPherson [2023] FedCFamC1A 74 (“Hamish & MacPherson”) at [27]–[29], the Full Court said:
27.This is an appeal from a discretionary judgment, pursuant to the principles identified in House v The King (1936) 55 CLR 499. As confirmed by the High Court in Bugmy v The Queen (2013) 249 CLR 571, such a complaint of “too much weight” is incapable of establishing error of itself, at best pointing to a circumstance that might, when accompanied by other circumstances, point to the result being manifestly wrong.
28.As will be seen later, it cannot be considered that the judgment given by the primary judge was manifestly wrong. Rather, the exclusion of the appellant from the lives of these children was consonant with the serious risk that he demonstrably poses to them.
29.The complaint as to weight given to the evidence of Dr F is not a competent ground of appeal.
Amongst the matters complained of by the father are that the primary judge gave undue weight to the evidence of the mother, including placing “undue emphasis upon fault and wrongdoing on the father and validity of complaints by the mother”, and took an “unduly harsh approach” to his evidence in comparison. Further, the father complains that her Honour failed to consider (adequately) matters raised by him, including unsuccessful applications by the mother for apprehended domestic violence orders against him; the mother’s views and “mindset” regarding him, including the bona fides thereof; the conduct and approach of the mother “and separately events and happenings relating to the mother”; the “full range of evidence, opinions and positions” of the single expert psychiatrist; and the full range of the father’s evidence, including the documents he relied upon.
Unfortunately, as we have observed above, the father’s Summary of Argument fails to elucidate upon, and thereby assist us to understand, his complaints. His failure to address us orally in relation to most of his complaints (including these) and to explain or expand upon them at the hearing of the appeal further compounded this difficulty. In the absence of assistance from the father, on our reading of the primary judge’s reasons for judgment, he has not established that, as Latham CJ held in Lovell (to which Aickin J referred in Gronow), her Honour excluded relevant considerations or admitted irrelevant ones. Further, as Stephen J observed in Gronow, absent an error of law or mistake of fact, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight. Put another way, as the Full Court more recently said in Pandaya, to the extent that grounds of appeal constitute criticisms as to weight, that is not a valid justification for appellate intervention unless the result achieved is unreasonable or plainly unjust. This is manifestly not such a case.
Insofar as the father contends that the primary judge did not take a “balanced … or holistic approach to the parties”, any objective reading of her Honour’s reasons for judgment makes it manifest that this is not so. The issues which her Honour identified at [38] were the subject of careful and balanced consideration at [40]–[193].
The father’s complaints in relation to weight are devoid of merit.
(c) Errors of law
Many of the father’s appeal grounds assert (at least in part), in effect, that the primary judge made errors of law.
It is contended by the father that her Honour failed to take sufficient time to consider the issues and the evidence and to write her decision and make the orders; to make adequate reference to, and to consider, relevant legal principles; and to request clarification from the parties, including in relation to any ambiguity or changed position.
The trial of the proceedings spanned 13 days, as follows: 9–10, 14–16 and 20–21 June 2022; 21–22 July 2022; 9–10 August 2022; 28 October 2022; and 2 November 2022. The last of the final written submissions of the parties were filed on 20 December 2022. The primary judge made orders and delivered reasons for judgment on 8 February 2023, a few days more than the three month target specified in paragraph 5.65 of the Family Law Case Management Central Practice Direction. Her Honour’s reasons for judgment comprise 299 paragraphs, spanning 59 pages. The reasons are thorough, cogent and an orthodox application of relevant legal principles to the facts, as found. Insofar as the first two complaints referred to in the preceding paragraph are concerned, they are entirely devoid of merit. The father seems to mistake quantity for quality, albeit that quantitatively the primary judge’s reasons are substantial.
Insofar as the father complains that the primary judge failed to request clarification from the parties in relation to any ambiguity or changed position, his Summary of Argument fails to identify any ambiguity or changed position and the reasons for judgment make it clear that her Honour did not perceive there to be any ambiguity in respect of which she might have sought clarification. Accordingly, this complaint is similarly entirely devoid of merit.
Insofar as the father complains that the primary judge erred in the exercise of her discretion by allowing the mother to present significant new and further evidence at the hearing, namely, a “further lengthy affidavit” by her, the gravamen of his complaint is entirely unclear. Neither in his Summary of Argument, nor in his oral submissions, did he take us to any passage(s) in the 1,356 pages of transcript, nor in his 88 pages of written closing submissions at trial, where issue was taken by his counsel with such affidavit. His complaint is opaque and, albeit a litigant in person, it is not for the appellate court to find the proverbial “needle in the haystack”.
In his Summary of Argument, the father appears to have undertaken an analysis of a substantial number of the primary judge’s past decisions and submits that, in them, her Honour accepted the single experts’ opinion and did not critique it, nor consider their credit; accepted the ICL’s position; and had an “overriding tendency” to make orders that favoured the mother/wife. This is neither a competent ground of appeal nor a proper submission to make.
The father also asserts that the primary judge erred in law by failing to consider (adequately) “legal principles relating to evidence, and separately erred in failing to apply or failing to appropriately apply legal principles relating to evidence”. He complains, inter alia, that the primary judge’s reasons for judgment do not “directly refer to applicable evidentiary legal principles, such as admissibility, weight, hearsay, reliability, standard, the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336, Browne and Dunn [sic] (1983) [sic] 6 R 67 M & M [1988] HCA 68 and applicable statutes” (footnotes omitted). However, as with so much of his Summary of Argument, his submissions in support of this complaint are unintelligible. Her Honour was, in part explicitly and in part implicitly (but clearly), aware of the applicable legal principles and no error in this regard is apparent to us, either on the face of her reasons for judgment or from the father’s Summary of Argument.
The father asserts, under the misnomer of “custody” (which term has not featured in the Act since the last millennium), that the primary judge proceeded on incorrect legal principles and misdirected herself in relation to s 60CA and s 60CC of the Act, “such as the ‘benefit to the children of having a meaningful relationship with both of their parents’ and the legal principle of ‘optimal’”.
It is not at all apparent how the father asserts that her Honour proceeded on incorrect legal principles and misdirected herself in relation to s 60CA of the Act which provides that “[i]n deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”, or in relation to s 60CC.
At [34], her Honour referred to s 60B of the Act, which sets out the objects of Part VII of the Act (dealing with children); to the requirement to “apply the ‘best interests principle, that is, whatever parenting orders are to be made must operate in the best interests of the subject children”; and to the requirement, in determining what orders will be in the best interests of the children, to consider the matters listed in s 60CC (which provides that, in determining what is in a child’s best interests, the court must consider the primary considerations in subsection (2) and the additional considerations in subsection (3) thereof). See also at [60].
At [59], her Honour referred to the right of children to know and be cared for by both of their parents, except where it would be contrary to their best interests. Her Honour recognised that, in this case, the positive nature of the interactions between the children and the father made it desirable that the Court explore all options to determine whether orders could be made which protected this relationship, while at the same time taking into account the complex interplay between the other factors which pointed towards a cautious approach to time being spent between the children and the father.
At [60], after again stating that she was obliged by the Act, in making parenting orders which were in the best interests of the children, to consider the objects and principles which underlie the making of all parenting orders, the primary judge said:
… Perhaps most significantly, in the circumstances of this case, ensuring that [the elder child] and [the younger child] have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests. Charting the boundaries of what is the maximum amount of time in a case like this is challenging because it requires analysing the extent to which an uncontested carer can tolerate and facilitate time, assessing the impact of orders for time on the children and the primary carer and importantly using the evidence about what has occurred to date to predict how the parent exercising time, in this case the father, will conduct himself during the periods of time which are to be ordered.
At [103], in relation to the allocation and exercise of parental responsibility, her Honour said that it was relevant to consider the impact of the parties’ interactions, and their capacity to communicate and co-operate, “both because of the competing positions regarding allocation of parental responsibility and also because of the relevance to the time which might reasonably be considered in the best interests of the children”. Her Honour found at [104] that “[n]o part of the evidence supported a conclusion that an order for shared parental responsibility would operate in the best interests of the children”. Her Honour said (at [107]) that the requirement to make orders which were in the best interests of the children dictated that she make orders which the evidence supported and that:
… The evidence that the father’s involvement in decision making … would involve stress, anxiety, impasse and indecision, is overwhelming. Even the very detailed nature of the orders sought themselves is a signpost to the obsessional manner in which the issue would be approached. Where the interests of a parent, understandable as they are, are in contest with the interests of the children, the parent’s needs and desires must give way and so it is here.
At [161], the primary judge recognised that, whilst the Court must have the children’s best interests squarely at the centre of the enquiry, nevertheless:
[C]onsistently with the application of the paramountcy principle, it is permissible and desirable to take into account the impact of proposed orders on the uncontested primary carer of the children since orders which impact on her functioning are on balance likely to impact on the children”.
Similarly, in relation to the father’s desire to be involved in the children’s religious upbringing, her Honour said (at [183]) that it “must be secondary to the consideration of whether such participation, in the circumstances of this case, would operate in the best interests of his children”. Her Honour expressed concern that, as a consequence of the long history of disagreement between the parents, his involvement in this area of their upbringing would cause conflict and expose them to his obsessive tendencies and the mother’s anxiety.
In relation to the benefit to the children of having a meaningful relationship with both of their parents, the primary judge (at [54]) accepted that the time the children spend with the father appears, by report, to be objectively enjoyable and enjoyed by both the children and the father. However, it did not follow that the mother’s concerns had no validity or relevance because her Honour had “formed the view that her concerns were not entirely without foundation and genuinely held an unlikely to be an amenable to change”. Her Honour also acknowledged that assessment of risk requires an appreciation of the entirety of the children’s circumstances, as opposed to an assessment of one factor in isolation.
At [60], the primary judge recognised that charting the boundaries of what was the maximum amount of time to be spent between the father and the children was challenging because it required analysing the extent to which the mother, as their uncontested carer, could tolerate and facilitate time, as well as assessing the impact of orders for time on the children and her, and using the evidence about what had occurred to date to predict how the father would conduct himself during their periods of time together in the future. Her Honour then accepted (at [61], [162] and [178]) that time spent with the father posed a risk of psychological (but not physical) harm to the children and (at [158]) said that it was necessary to evaluate the evidence and each of the parties’ proposals to ensure that, in order to ameliorate that risk, the orders to be made were necessary and proportionate to it. At [162], her Honour accepted that the mother would experience facilitation of unsupervised time between the children and the father as significantly difficult and likely to be productive of somatic symptoms, inter alia, because she experiences anticipated encounters with him as a source of anxiety, based on her experiences of him (at [171]). Her Honour recognised, consistent with the decisions of the Full Court in Keane & Keane (2021) 62 Fam LR 190 and Re Andrew (1996) FLC 92-692, that the effect orders may have on the primary carer of a child should be taken into account and held (at [172]) that the mother’s continued capacity should be protected, in circumstances where she was “not able to see the situation except through the lens of her own experience” and therefore exhibited hypervigilance around the father (at [178]). Her Honour accepted that it was not inherently incredible that the mother’s anxiety manifests in physical symptoms and said that, on the evidence, she had little doubt that the mother is affected psychologically, and to some extent physically, by the anxiety she feels in dealing with the father (at [180]).
However, at [180] her Honour accepted the evidence of the single expert psychiatrist that the mother’s functioning was not so compromised that supervised contact could not be contemplated and that it was not necessary to make orders for no time to be spent. Rather, it was necessary to strike a balance between the benefit to the children of the relationship with the father and the protection of them and their primary carer. Her Honour concluded that the appropriate balance would be struck by decreasing the frequency with which kind occurs and ordering that it remain supervised. This was a perfectly orthodox approach to the law and its application to the evidence, as found by the primary judge.
Insofar as the father asserts that the primary judge erred in her application of the primary consideration in s 60CC(2)(a) of the Act, namely, the benefit to the children of having a “meaningful relationship” with him, he entirely overlooks the other primary consideration in s 60CC(2)(b), namely, the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, which consideration is to be afforded greater weight pursuant to s 60CC(2A). See Mallory & Mallory [2019] FamCACFC 221. At [109] her Honour referred to her conclusion that, without evaluating each individual claim by the mother, there was sufficient evidence that the father did engage in family violence. See also [227]–[237].
Having so found and, in any event, the father having conceded sole parental responsibility to the mother at the end of the trial, s 65DAA of the Act was not engaged and her Honour’s discretion in relation to the time to be spent between the father and the children was at large, subject only to the matters set out in s 60CC of the Act, including sub-section (2)(a) thereof.
The father, in his references to a “meaningful” relationship between the children and him and to what he incorrectly asserts to be “the legal principle of [an] ‘optimal’” relationship between them is misconceived. There is no such legal principle. It is well settled that “meaningful”, for the purpose of s 60CC(2)(a) of the Act does not necessarily mean “optimal”: Godfrey & Sanders (2007) 208 FLR 287 at [36]. Further, in Mazorski & Albright (2007) 37 FamLR 518 at [26], Brown J held that “meaningful”, when used in this context, is synonymous with terms such as “significant”, “important”, “of consequence” and “valuable to the child”, and is a qualitative adjective, and not a strictly quantitative one. However, ultimately, it is s 60CA of the Act and the best interests of the children which must prevail and which, on the primary judge’s findings, did so, culminating in the orders her Honour made.
The father further contends that the primary judge “erred or proceeded on an incorrect legal principle by requiring indefinite supervision of the father and separately not ordering the provision of supervision reports”. Insofar as indefinite supervision is concerned, her Honour acknowledged at [186] that, insofar as the younger child (who was aged six years at the time) is concerned, the order for supervision will likely last for 11 years. Further, her Honour acknowledged that the Court is not usually persuaded to make long-term supervision orders, including by reason of the artificiality, sustainability and costs of the arrangement, as well as the issue of whether such a situation is capable of supporting a meaningful relationship between the children and the supervised parent. Her Honour referred to B & B (1993) FLC 92-357 (see at p 79,780); Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 at [19]; and Bielen & Kozma (2022) FLC 94-123 at [67], and to the dicta of Tree J in the penultimate case, that these reservations “are not legislative edicts and each case must be decided on its own facts”. Her Honour (at [188]) accepted, correctly in our view, that supervised time will be appropriate, even in the long-term, where the Court can be confident that the time will be in the best interests of the children, which she found to be the case in this matter. Her Honour found (at [189]–[190]) that supervision could ameliorate the identified unacceptable risk in this case, which was twofold: that the children might be exposed to psychological harm if the father repeated obsessional patterns of questioning or monitoring; and that the children might be exposed to harm arising from the mother’s anxiety should the time be unsupervised. Again, this was an orthodox approach at law and open to the primary judge in the exercise of a discretion.
None of the father’s complaints of errors of law by the primary judge have any merit.
Property
(a) Failure to provide adequate reasons
Appeal ground 15, which contains four sub-grounds, complains that the primary judge failed to provide adequate reasons that enabled an understanding of the “relevant factual material and financial history considered”; an understanding of the “financial issues and matters considered” and the findings in relation thereto; an understanding or identification of the evidence relied upon in reaching factual conclusions; and discernment “with clarity [of] the legal principles her Honour applied”.
The father purported to address this ground of appeal, together with appeal grounds 16, 17, 18, and 19, jointly in his Summary of Argument. However, as with his grounds of appeal in relation to her Honour’s reasons for the parenting orders she made, his Summary of Argument did not, in fact, illuminate his arguments in support of these grounds of appeal in relation to her Honour’s reasons for the property orders she made, jointly or severally.
In circumstances where each of the parties sought an alteration of interests in property, albeit to different effect, it was implicit that they each conceded, and it is similarly implicit that her Honour found, that it was just and equitable for the Court to make an order under s 79(1) of the Act, as required by subsection (2). See Stanford v Stanford (2012) 247 CLR 108 and Bevan & Bevan (2013) FLC 93-545.
Having so found, her Honour proceeded in an orthodox fashion to consider the parties’ assets (including superannuation and add-backs) and liabilities; their various contributions within s 79(4)(a)–(c); and the matters required by s 79(4)(d)–(g), including those referred to in s 75(2), as required by s 79(4)(e). See Pastrikos & Pastrikos (1980) FLC 90-897 and Davut & Raif (1994) FLC 92-503.
First, the primary judge addressed (at [195]) the necessity to make a finding about “the composition and value of the asset pool available for adjustment between the parties”. At [197]–[210], her Honour carefully considered and made findings in relation to the parties’ competing contentions regarding which assets to include in the pool available for division between them, liabilities to be taken into account and add-backs. At [211], her Honour set out the assets, superannuation, liabilities and add-backs as she found them to be. The reasons why her Honour did so are patently discernible from the preceding paragraphs to which we have referred.
Secondly, the primary judge turned to consider the parties’ various contributions within s 79(4)(a)–(c) of the Act. Her Honour recorded at [212]–[213] that the parties were content to approach the case as one involving the assessment of contributions to a single pool of assets, “notional assets” [sic], liabilities and superannuation and, in particular, the father’s contention that his contributions should be assessed holistically. At [214]–[242], her Honour did precisely that.
In Bevan, the Full Court said:
79.We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. …
Similarly, in Trevi the Full Court said:
46.In Stanford v Stanford, the High Court emphasised as fundamental that a consideration of whether it is just and equitable to make a property settlement order begins by “identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”.
47.The essence of a claim for addbacks is that the asserted sum/s should be added to the value of the existing property interests of the parties and, subsequent to the assessment of contributions, credited to the spending party as part of the value of their assessed entitlements. Doing so does not offend what was emphasised by the High Court. Adding back does not seek to create property interests that do not exist. Rather, doing so emphasises that satisfying the respective requirements of ss 79(2) and (4) of the Act to do justice and equity can require an “accounting” or “balance sheet” exercise for the purposes of s 79(2) and (4), so as to include the value of the dissipated property or expended sums within the total value of the parties’ existing interests in property, and to credit the value of same against the assessed entitlement of the dissipating or spending party.
(Footnotes omitted)
At [214]–[216], the primary judge considered the parties’ initial contributions, including the mother’s tacit acceptance that those of the father were greater than her own, and at [217] her Honour found that the father’s initial contributions should be afforded “significant weight”.
At [218]–[220], the primary judge considered the parties’ various contributions during the marriage and prior to separation.
In relation to the parties’ post-separation contributions, at [221]–[222] her Honour found that whilst the father’s superannuation had increased in value, nevertheless, in that period, the mother had made the greater parenting contribution, which she found to be a significant non-financial contribution over a period in excess of six years.
In relation to the contribution-based adjustment sought by the mother by reason of the father’s conduct (namely, family violence), the primary judge referred (at [224]) to Kennon & Kennon, Keating & Keating and Benson & Drury. At [225], her Honour correctly acknowledged that an evidentiary nexus was required between the conduct complained of and the capacity and/or effort expended to make relevant contributions. At [227], her Honour referred to the non-exhaustive list of conduct set out in s 4AB(2) of the Act which may constitute family violence and she then proceeded to consider the evidence of the father’s conduct.
Her Honour noted at [230] that, even on the father’s version of events, his conduct in stomping on the mother’s feet was an assault.
Her Honour referred at [231] to the mother’s evidence that the father’s actions had caused her to become estranged from her family, as well as to the father’s contention that her relationship with her family was more ambivalent than she conceded. Her Honour found that, during the parties’ relationship, she had become more estranged from her parents, which represented a change in her position from the beginning of the relationship and after separation, and that the father played a role in isolating her from her family. Her Honour referred to the mother’s evidence about the father’s role in preventing her from communicating the fact of her pregnancy or the younger child’s birth to her parents or inviting them to his “brit” (Jewish ritual circumcision at the age of eight days). Her Honour said that the mother was not cross-examined about these matters and found that it was:
231.…plain that the father’s animus towards the maternal grandparents did see the mother become estranged from her parents … [which] removed a significant source of support to the mother making the circumstances in which she made her non-financial contributions more difficult.
Whilst those contributions should properly have been referred to as contributions to the welfare of the family, including in the capacity of homemaker and parent, pursuant to s 79(4)(c), rather than as non-financial contributions (being contributions other than financial contributions to the acquisition, conservation or improvement of property pursuant to s 79(4)(b)), nothing turns on this in circumstances where it is well settled that, as a matter of law, there is no intrinsic difference in the various categories of contributions contemplated by s 79(4)(a)–(c). See Mallett v Mallett (1984) 156 CLR 605 at 636.
At [235], the primary judge accepted the father’s contention that the mother interprets his conduct negatively, where a more objective observer might not share the same concerns. However, her Honour said that did not allow her to reject wholesale the mother’s account of the father’s actions, where they were supported by some concessions on his part and contemporaneous complaint by her.
Her Honour further recorded at [236] that, in the father’s written closing submissions, whilst he denied the severity of the violence alleged by the mother, he nevertheless conceded some of the matters complained of by the mother. At [237] her Honour said that, whilst the way in which the case was run did not enable her to make findings about all of the allegations of family violence, nevertheless, she was able to find that the father did engage acts which met the definition of family violence (including stomping on her foot and isolating her from her family), both over the course of the relationship and after separation.
At [238], her Honour recognised that such conduct, by itself, did not establish that the mother’s contributions would have been made more arduous, either directly or by inference. However, her Honour accepted the expert evidence of the single expert psychiatrist and the mother’s treating psychologist about the impact of the father’s conduct on her functioning which, she found, was not undermined by cross-examination.
At [239]–[240], her Honour considered the decision of the Full Court in Benson & Drury, to the effect that a so-called (but incorrectly called) “Kennon claim” is not a stand-alone claim or an isolated claim for an additional share of the available property but, rather, is integral to the entire process and that the Court must take a holistic approach, weighing contributions which have been made significantly more arduous together with all other contributions by each of the parties. Accordingly, her Honour correctly held at [241] that the circumstances in which the mother made her contributions was one of the matters to which she was required to have regard in her holistic approach to contributions.
Having identified above the primary judge’s references (at [213], [240]–[241]) to the need to consider and assess the parties’ contributions holistically, and our acceptance that her Honour did so, we reject the father’s submission, at [63] of his Summary of Argument, that she “did not use a holistic approach”. Insofar as he contends that a holistic consideration of contributions requires an evaluation of all contributions collectively, rather than segmenting or compartmentalising the various contributions, he is correct; however, her Honour did just that.
Insofar as the father submits, at [71] of his Summary of Argument, that there needed to be an evidentiary nexus between the family violence of which the mother complained and her capacity to make contributions, the primary judge found that there was such a nexus and such finding was indubitably open to her on the evidence. Further, insofar as the father submits, at [72] of his Summary of Argument, that her Honour’s observation, at [231] of her reasons for judgment, that the mother was not cross-examined about her contention that the father did not permit her to inform her parents about her pregnancy with, and the birth and “brit” of, the younger child “does not reference any applicable law for [sic] position that lack of questioning is conceding an issue”, we need say no more than that he is misguided and wrong in his submission. The mother was not challenged in respect of this evidence by the father’s counsel and, accordingly, it was open to her Honour to accept it, unless it was inherently incredible.
The primary judge (at [242]) undertook her assessment of contributions by weighing the parties’ initial contributions, which she found substantially favoured the father, against their contributions during the relationship, which she assessed as approximately equal, save that the mother’s contributions were made in difficult circumstances, and the mother’s post separation parenting contributions, and her Honour concluded (at [247]) that the overall contribution-based entitlements favoured the father, which she assessed at 57.5 per cent in his favour (including superannuation). In a period spanning a marriage of eight years, followed by a post-separation period of six years, in our view, her Honour’s assessment, whereby the father received 15 per cent more than the wife on account of contributions, could not be said not to have afforded significant weight to his initial contributions, as she had earlier found ought to be the case (at [217]).
The primary judge then proceeded to consider what, if any, adjustment should be made to the contribution-based entitlements of the parties “to take into account their respective future financial needs”, as set out in ss 79(4)(d)–(g) and s 75(2) of the Act. We pause to note that, not only do the matters in s 79(4)(d) and (f)–(g) transcend so-called “future financial needs”, but even in respect of s 79(4)(e), which imports the matters referred to in s 75(2), insofar as they are relevant, many of those matters are independent of the “needs” of the parties: Waters v Jurek (1995) FLC 92-635 at 83,379 (per Fogarty J). Nevertheless, this misnomer does not, in and of itself, give rise to an appellable error.
At [244]–[246], her Honour took into account that the parties were about the same age; each of them had faced health challenges; the mother had the children in her full-time care and would continue to do so for more than 10 years; the father had a greater income and earning capacity based on the unchallenged history of his employment and remuneration set out in his affidavit material; the mother had time out of the workforce to care for the children; the father would have expenses for child support and supervision of his time with the children; and the asset pool available for division was modest.
Balancing all of these factors, her Honour found (at [246]) that there should be an adjustment in favour of the mother of 12.5 per cent, such that the overall division between the parties would be 55 per cent to the mother and 45 per cent to the father. We observe that the 10 per cent disparity between the parties, in favour of the mother, amounted to slightly less than $100,000, in circumstances where, in his Financial Statement sworn on 27 May 2022, at item [16], he disclosed a gross income amounting to in excess of $260,000 per annum.
So analysed, the father’s complaint that the primary judge failed to provide adequate reasons is entirely devoid of merit.
We would add at this convenient juncture that, insofar as the father submits, at [74] of his Summary of Argument, that the primary judge’s further adjustment of 12.5 per cent in favour of the mother, in respect of s 75(2) factors, pursuant to s 79(4)(e) of the Act, was “unsubstantiated, manifestly wrong and not supported by the evidence”, again, for the reasons above, that is not so. Moreover, insofar as the father submits, at [76] of his Summary of Argument, that “[c]ontradictorily, despite raising issues of the father’s mental health, [h]er Honour did not consider, nor make an adjustment for the father’s medical conditions” pursuant to s 79(4)(e) and s 75(2)(a), it is not (and never has been) the case that trial judges are required to make a separate assessment of each party’s relevant s 75(2) factors and then offset one against the other in order to determine whether an adjustment should be made in favour of one or the other of them. At [244]–[246] of her reasons for judgment, the primary judge identified relevant s 75(2) factors of the parties and determined holistically that, on balance, they favoured the wife such as to warrant an adjustment of 12.5 per cent in her favour. In an oft cited passage from Steinbrenner & Steinbrenner [2008] FamCAFC 193, Coleman J said:
234.Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case. …
To that, we would add that the evaluation of s 75(2) factors similarly inevitably moves from a qualitative evaluation to a quantitative reflection thereof, such that there will inevitably be a leap from words to figures. That is what the primary judge did, and unremarkably so.
(b) Weight, including failure to consider
Insofar as the father contends, in appeal ground 17, that the primary judge failed to consider (adequately) pre-separation contributions, post-separation contributions and “future financial requirements”, from our analysis of the primary judge’s reasons for judgment above, it is manifest that this complaint is similarly devoid of merit and requires no further consideration, in circumstances where it is manifest that her Honour did so.
Insofar as the father contends, in appeal ground 16(a), that the primary judge failed to consider (adequately) if he was entitled to an “adjustment in his favour”, it is unclear (both from the ground of appeal as drawn and from his Summary of Argument) to what he refers. Her Honour manifestly considered and determined that he was entitled to a contribution-based entitlement of 57.5 per cent. In her Honour’s consideration of s 75(2) factors, pursuant to s 79(4)(e), she took into account, in his favour, that he had faced health challenges and that he would have expenses for child support and supervision of his time with the children.
(c) Errors of law
Insofar as the father contends, in appeal ground 16(b), that the primary judge proceeded on an incorrect principle by “giving an unduly wide interpretation of entitlement in the mother’s favour”, it is again entirely unclear, both from the ground of appeal as drawn and from his Summary of Argument, what is meant by this complaint. As such, it is not a competent ground of appeal.
Insofar as the father contends, in appeal ground 19, that the primary judge erred in principle by failing to consider (adequately) s 79 of the Act, that is both unfair and incorrect, as is manifest from our analysis above of her Honour’s reasons for the property orders she made. As such, his complaint in this regard is entirely devoid of merit.
Insofar as the father further contends, in appeal ground 19, that the primary judge erred in principle by failing to consider (adequately) “whether the financial outcome was fair [sic] and equitable”, we presume that he refers to the requirement to consider whether the overall alteration of interests that her Honour proposed to order (namely, 55 per cent to the mother and 45 per cent to him) was just and equitable. See Hickey & Hickey (2003) FLC 93-143 at [39] and Bevan at [59]–[72] and [86]. Whilst her Honour did not specifically, in terms, address whether the alteration of interests that she proposed to order was “just and equitable”, we are not satisfied that she erred in law. As the Full Court said in Bevan at [71], the decision of the High Court in Stanford v Stanford serves “as a reminder that the four step process ‘merely illuminates the path to the ultimate result’”. Further, the Full Court continued at [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.
At [29], the primary judge referred to the requirement in s 79(2) of the Act that the Court not make an order under s 79 unless it is satisfied that, in all the circumstances, it is just and equitable to do so. Further, at [30], her Honour acknowledges that, in approaching the consideration of the justice and equity involved in each of the parties’ competing proposed property orders, it was necessary to consider the relevant matters in s 79(4) and s 75(2) of the Act, which she manifestly did. See also [128] and [202]. In the circumstances, it is clear that her Honour was well aware of the requirement to ensure that the orders she proposed to make were just and equitable. Further, it is tolerably, albeit inferentially, clear that her Honour was satisfied that those orders were, in fact, just and equitable, albeit that it would have been preferable for her to make the implicit, explicit.
In the circumstances, there is no merit in the father’s contention that the primary judge erred in principle by failing to (adequately) consider “whether the financial outcome was [just] and equitable”.
Parenting and property - omnibus ground of appeal
Appeal ground 18 contends that the primary judge’s “decision on financial entitlement based upon the whole of the evidence is manifestly unjust”. Appeal ground 23 similarly, but more generally, contends that the decision of her Honour (presumably, in its entirety) “is plainly wrong and manifestly unjust, either on its own or having regard to the other grounds”. The only submission in support of these grounds of appeal in the father’s Summary of Argument is to be found in the final paragraph thereof, namely, paragraph 89, in which he blithely submits: “Based upon the matters set out in any of the other grounds (either alone or in combination), there was no proper exercise of jurisdiction [sic] by her Honour ([Gronow])”. On the assumption that the father means “discretion”, rather than “jurisdiction”, from our reasons herein it will be obvious that we disagree and that this appeal ground similarly is devoid of merit.
Appeal ground 20
This appeal ground contends:
20.Her Honor erred or her discretion miscarrying by enabling the following, with her not authorised, empowered or having relevant legal authority.
20.1.Not making an order requiring the mother to remove inappropriate material on the father from the internet. Thereby,her Honour allowed continued breaches of section 121(1) of the FLA by the mother and continuing defamation by the mother of the father.
20.2. The mother’s breaches of the orders.
20.3.The mother’s non-disclosure of financial information and failure to comply with the continuing financial disclosure requirements.
…
So drawn, this is not a competent ground of appeal. In fact, it is unintelligible and, as with the other grounds of appeal, it is neither illuminated nor elucidated by the father’s Summary of Argument. Paragraphs 86 and 87 of his Summary of Argument, which appear after his recitation of appeal ground 20 (as well as appeal grounds 21 and 22, which are merely of earlier complaints), are unintelligible.
DISPOSITION
The father’s further amended Notice of Appeal will be dismissed.
COSTS
At the conclusion of the hearing of the appeal, we sought submissions from each of the parties, both in the event the appeal was successful and in the event it was unsuccessful. Relevantly, the mother sought an order for costs in the event the appeal was unsuccessful, which the father opposed.
Notwithstanding s 117(1) of the Act, in circumstances where the father’s appeal has been found by us to be devoid of any merit whatsoever and therefore wholly unsuccessful, we are of the opinion that there are circumstances that justify the making of an order for costs.
The mother filed schedule of costs pursuant to r 13.53 of the Rules, said to be in accordance with the scale of costs in Schedule 3 thereof. Each of the costs claimed in her costs schedule is referrable to the scale of costs. She seeks costs of the appeal totalling $31,461.84, and costs of two Applications in an Appeal by the father (both of which were dismissed) totalling $3,037.53 and $1,960.18 respectively – a total overall in the sum of $36,459.55.
We raised with counsel for the mother that, whilst the costs claimed may be at scale, from our perusal of her costs schedule, it appeared that such costs were not claimed on a party/party basis but, rather, on a solicitor/client basis. Counsel did not disagree and did not seek to persuade us that costs, if ordered, should be on any basis other than party/party costs.
Given especially that s 117(1) of the Act provides that, subject to certain exceptions, each party to proceedings under the Act shall bear his or her own costs, we are of the opinion that costs schedules should set out a party’s party/party costs at scale and, if anything in excess thereof is sought, namely solicitor/client or indemnity costs, then costs on such basis too. See r 12.17 of the Rules.
In particular, r 12.17(1)(a) provides that the Court may order that a party is entitled to costs of a specific amount. Both parties conceded that, if we were not minded to order costs in the total sum claimed by the mother, we could fix the sum of costs to be paid to her. Taking into account the general position in respect of costs pursuant to s 117(1) of the Act, that the mother has specified the costs sought by her only on a solicitor/client basis (albeit at scale) and that we are of the opinion that the father should be required to pay her scale costs on a basis approximating party/party costs, we shall fix the sum payable by him in the sum of $25,000, which approximates two-thirds of the amount claimed by her.
I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Kari & Strum. Associate:
Dated: 1 September 2023
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