Koyroyshs & Koyroyshs
[2021] FedCFamC1A 54
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Koyroushs & Koyroyshs [2021] FedCFamC1A 54
Appeal from: Koyroyshs & Koyroyshs [2020] FamCA 626 Appeal number(s): EAA 128 of 2020 File number(s): SYC 2276 of 2016 Judgment of: AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ Date of judgment: 5 November 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the primary judge made final parenting orders – International relocation to Eastern Europe found not to be in the child’s best interests – Both parties restrained from removing the child from Australia – Both parties restrained from moving more than 30 kilometres from the child’s school – Procedural fairness – Findings of fact – Weight challenges – Adequacy of reasons – Consideration of evidence by the single expert – Restrictions on travel – Hague Convention – Findings open on the evidence – No error established – Appeal dismissed.
FAMILY LAW – APPEAL – PROPERTY – Short marriage – Appeal against final property settlement orders – Contributions – Debts – Weight challenges – Adequacy of reasons – Application of law – Findings open on the evidence – No error established – Appeal dismissed –
Appellant to pay respondent’s costs in a fixed sum.Legislation: Hague Convention on the Civil Aspects of International Child Abduction Cases cited: Beaton & Beaton [2020] FamCAFC 297
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Biltoft and Biltoft (1995) FLC 92-614; [1995] FamCA 45
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Deiter & Deiter [2011] FamCAFC 82
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Dublin, Wicklow & Wexford Railway Co vSlattery (1878) 3 App Cas 1155
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16
Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170
Sawant & Karanth [2014] FamCAFC 235
State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588; [1999] HCA 3
Stringer & Nissen (No. 2) (2019) FLC 93-922; [2019] FamCAFC 185
Number of paragraphs: 168 Date of hearing: 7 June 2021 Place: Sydney Counsel for the Appellant: Mr Page QC Solicitor for the Appellant: Consort Family Law Counsel for the Respondent: Mr Batey Solicitor for the Respondent: First Choice Family Lawyers The Independent Children’s Lawyer: Did not participate in the appeal ORDERS
EAA 128 of 2020
SYC 2276 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS KOYROYSHS
Appellant
AND: MR KOYROYSHS
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant mother pay the respondent father’s costs in the sum of $7,291.88.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Koyroyshs & Koyroyshs has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ:
On 6 August 2020 a judge of the Family Court (as it was then known) determined final parenting and property proceedings between Ms Koyroyshs (“the mother”) and Mr Koyroyshs (“the father”). The parenting orders concern the parties’ child, ‘B’ (“the child”), who was born in early 2015.
The parties met in late 2010, married in January 2014 and separated in March 2016. The child has always lived with the mother and there was no serious dispute that she should continue to do so.
At the time the parties married, each was working and had property and resources, although it was agreed that the father had significantly greater assets and resources than the mother.
The mother sought orders that she be allowed to relocate with the child to City Q in Country D from where the mother comes, and where her family lives and conducts business. In the alternative, the mother sought an order that she be permitted to relocate to Tasmania where she owns a property. It was never the mother’s position that should either of these relocations not be permitted, she would move without the child.
The primary judge rejected the mother’s proposed relocations and ordered that the parties have equal shared parental responsibility for the child, that the child live with the mother and spend time with the father. Both parties were restrained from relocating the child more than 30 kilometres from her school.
In relation to property settlement proceedings, the mother sought orders that the property pool be divided as to 40 per cent to her and 60 per cent to the father. The primary judge ordered that the property be divided as to 27 per cent to the mother and 73 per cent to the father.
The mother appeals these orders.
THE PARENTING PROCEEDINGS
At the time of the hearing before the primary judge, the child was spending time with the father each Tuesday and Thursday from 10.00 am until 5.00 pm and each alternate weekend from Saturday at 10.00 am until 5.00 pm on Sunday. In the middle of May 2019 the child commenced preschool in Sydney two days each week.
The relationship between the parents is fraught. The mother alleged that during the relationship and following separation, the father was verbally and emotionally abusive of her and he was aggressive at changeovers. As a result, the mother said that her mental health was affected. There was no dispute that the mother had experienced symptoms of depression and anxiety and has sought medical assistance and at least for a time, medication was prescribed to assist with her symptoms. The father denied the allegations. The primary judge was unable to determine whether any conduct by the father had caused or exacerbated the mother’s emotional distress and her parenting capacity as a result.
The primary judge had the benefit of a report from a single expert, a child and adolescent psychiatrist, Dr S, who had interviewed the relevant parties and the child, and on whose recommendations the primary judge placed significant reliance in resolving the parenting issues.
There was no doubt that there was a considerable degree of distrust and conflict between the parents and Dr S was of the view that it was unlikely to resolve.
The primary judge found that the child has and will benefit from a meaningful relationship with both of her parents (at [100]). His Honour quoted and relied on Dr S’ observations that:
117.The child was observed to have a loving connection with both parents and grandparents. [The child] was fluent in [Country D’s language] when communicating with her mother and maternal grandmother. She was fluent in [Country C] when communicating with her father and paternal grandparents. It was evident that she was much loved. There is no doubt that she will benefit from the love and attention from both sides of her family into the future. It was unfortunate that this was marred by mistrust and conflict fuelled by the ongoing allegations.
(Dr S’ report dated 21 February 2019, paragraph 117)
As to the mother’s proposed relocation, the primary judge referred to the mother’s assertion that to live in Country D would relieve her of financial stress and provide her with family support. The town to which the mother proposed to move was described by the primary judge as being on the border with Country AQ. It was accepted that travel to it was difficult from Australia, first requiring travel to Country AQ, Country AA or Country BB, followed by further long distance travel into Country D. The mother agreed that the trip would be arduous.
The primary judge concluded that such a move would severely restrict the father’s role in the child’s life, face to face time with the child would be unfeasible and the child would not see her paternal family. The travel restrictions consequent on the COVID-19 pandemic added further uncertainties.
The primary judge concluded that a move to Country D would not be in the child’s best interests.
As to the proposal to move to Tasmania, the primary judge noted that the mother had purchased a property there and was of the view that she and the child could live comfortably there because the cost of living was not as high as in Sydney. The primary judge observed that a move to Tasmania did not present many of the difficulties as would the move to Country D and his Honour pointed to the father’s asserted flexible working arrangements which would allow him to travel to Tasmania to see the child. However, the primary judge concluded that there remained the difficulty of the child not seeing the father day to day or weekly and the father’s involvement in the child’s school and activities would be lost.
The primary judge considered that a move to Tasmania would not be in the child’s best interests.
In considering the mother’s application that she be permitted to relocate the child’s residence away from Sydney, of particular relevance to his Honour’s reasons was Dr S’ opinion that the mother’s desire to relocate the child’s residence was motivated by her wishing to rid the father from her life.
In answer to this question from the primary judge:
HIS HONOUR: Dr S, do you see any clear connection between what the mother says the benefits would be to her and her psychological state in living in either [Country D] or Tasmania and her insight into her own behaviour on the child?
(Transcript 12 December 2019, p.254 lines 27–30)
Dr S said:
DR S: … Your Honour, the issue of the mother’s insight is, in some ways, difficult to evaluate, in that I have only seen her in the context of a Family Court assessment where she had a particular motivation. As I’ve already said, I – I was not able to discuss such issues with her treating psychologist. That being said, I do think that the mother has a particular agenda. I think, like a lot of people, it is very easy to identify a particular, obvious factor to be the cause of all problems, and in this situation she identifies the father. And being forced to be in living circumstances that she is not happy with, being forced to remain resident in Sydney she’s evidently not happy with. She would ideally like to relocate to [Country D], although I did identify that – that the proposal to relocate to Tasmania was also very attractive, both to the mother and to the maternal extended family. And, you know, that would solve all her problems. And the reason it would solve all her problems, from her point of view, is because it would take the father out of her life, and then she could get on and have no further problems.
(Transcript 12 December 2019, p.254 lines 30–43)
Dr S recommended against any relocation, because, in his opinion it would have the effect of significantly diminishing the father’s role in the child’s life, a conclusion accepted by the primary judge.
The primary judge also found that the mother had demonstrated an inability to promote the child’s relationship with her father, referred to the mother’s emotional fragility and said:
117.… These considerations militate against placing the child both primarily in the mother’s care and a long distance from the father. They do not support either proposed relocation.
Despite the agreed tension and distrust between the parents, the primary judge nonetheless concluded that there should be equal shared parental responsibility and said sole parental responsibility would likely be used by the mother to exclude the father from the child’s life, whereas equal shared parental responsibility would support and entrench the father’s role in the child’s life (at [203]).
However, those same factors operated against an order for equal time between the child and the father (at [210]) but the primary judge considered substantial and significant time between the child and the father to be in her best interests and noted that if the mother remained living in Sydney, it was not contended that such arrangements would be impractical.
The father and the Independent Children’s Lawyer sought an order that the mother be restrained from relocating the child’s residence from within a specified geographical area being described by radius from a point in Sydney.
The mother opposed any such restraint. His Honour noted her contentions that it would prevent her from having flexibility and as she was committed to living not far from where the child attended school, it was an unnecessary restriction.
The primary judge said:
215.… There is some force in these submissions. But one problem is that the mother herself has shown a past inclination to relocate her residence without consultation. It is also true that flexibility can be catered for by a reasonably generous geographical area.
216. On balance I am satisfied the interests of the child would be best served by prescribing a geographical area within which the child should live. The parties can then order their affairs, including accommodation, accordingly. The mother’s submissions point to the child’s school as a focal point, rather than [Suburb AP] or Sydney… This has some attraction as a practical approach, since the parties have agreed upon a mechanism to choose the child’s school. Both parties live south of the Sydney … in any event.
Thus the primary judge ordered that the mother not be permitted to relocate the child’s residence further than 30 kilometres from the child’s preschool (for the balance of 2020) and after that, from her primary school.
The parenting appeal
Of the 13 grounds of challenge to those orders contained in the Notice of Appeal filed 2 September 2020, only eight were pressed. The mother’s Summary of Argument filed 19 April 2021 noted that Grounds 1, 2, 3, 9 and 13 were abandoned.
Of the remaining grounds, two contend that the primary judge had made errors of fact (Grounds 4 and 5) and three assert that the primary judge had failed to give appropriate weight to certain evidence (Grounds 6, 7 and 10).
Ground 7 and Ground 8 cover the same issue albeit in different terms. Ground 7 contends that the primary judge gave inappropriate weight to the father’s submission that he and the mother had been able to cooperate about changeovers between the date of hearing and the delivery of the judgment. Ground 8 argues that the primary judge failed to apply the principles of natural justice in accepting that assertion by the father.
Ground 10 asserts that the primary judge failed to have proper regard to the evidence when imposing a restraint on the mother travelling internationally with the child.
Ground 11 argues that the primary judge erred in the application of relevant principle by requiring the mother to “establish ‘reasons for relocation’” and Ground 12 contends that the primary judge failed to give adequate reasons for restraining the mother and child to living within 30 kilometres of the child’s school.
Denial of procedural fairness (Grounds 7 and 8)
Challenges which contend judicial bias; that a trial or proceeding was procedurally unfair or that a litigant was denied natural justice, are very serious and, if correct, cut to the heart of the validity and acceptability of the outcome and for that reason such contentions must be considered first because if established, there can be no outcome other than a rehearing (Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 at [117]).
Here, Ground 8 contends that the primary judge denied the mother procedural fairness in accepting an assertion of the father. However, regrettably, no submission either in writing or oral addressed this very serious challenge. It will be dismissed but it is unfortunate that such a serious contention was raised and not supported, nor was it withdrawn.
It is convenient to turn to consider Ground 7 which concerns the same subject matter. The ground contends:
That the primary judge placed inappropriate weight, outside the reasonable exercise of discretion, in accepting the submission of the father that “the parties had been able to cooperate about the changeovers between the final hearing and the delivery of judgment” in the absence of direct evidence of same.
As with Ground 8, no submission is made in relation to this ground, although the mother’s Summary of Argument refers to the submissions made in relation to Ground 6 which were said to encompass the submission on these two grounds. It does not.
However, it appears that the genesis of the complaint arises in the reasons at [201] where the primary judge having referred to Dr S’ evidence that once the litigation was at an end and orders were in place, the parties may “settle into a better pattern of co-operation”.
The primary judge then commented:
201.… I note that in his submissions the father contended the parties have been able to co-operate about the changeovers between the final hearing and the delivery of judgment. While there is no direct evidence, I infer this is likely.
The written submissions to which the primary judge referred were made following the conclusion of the evidence and pursuant to a direction by the primary judge and it seems that the parties were asked to make submissions about the effect of the COVID-19 pandemic on the then existing arrangements for the child.
The father’s submission, after referring to a statement by the Chief Justice of the Family Court concerning compliance with orders in the COVID-19 pandemic continues:
2.The father instructs that the parties have already implemented changes to handover arrangements of a practical nature to assist them in the management of the day to day parenting of the child in light of the current Public Health Orders, and the orders he seeks require no amendment to see the parties through this temporary situation.
(Father’s written submissions filed 8 April 2020, paragraph 2)
The mother’s submission said:
1.The mother instructs that the parties have implemented certain changes to court-ordered handover arrangements in view of the current Public Health Orders.
(Mother’s written submissions filed 22 April 2020, paragraph 1)
The submission continues and the mother disagrees that the present orders did not need amendment.
So while Grounds 7 and 8 contend error, what is clear enough is that the parties had implemented changes to the then existing orders to accommodate the necessary structures consequent on the COVID-19 pandemic and his Honour’s conclusion reflected the parties’ submissions.
In respect of both of the grounds, no error has been shown.
Errors of fact (Grounds 4 and 5)
The two challenges to the primary judge’s fact finding concern the mother’s completion of a Triple P parenting program (Ground 4) and whether the mother had disclosed “mental health issues” before 2019 (Ground 5).
As to the mother’s attendance on a parenting program, the primary judge said:
200.The evidence makes clear that there has been significant distrust and a history of conflict between the parents. In his report, Dr S saw no indication that this distrust is likely to resolve. He held significant concerns about the capacity of the parents to act in a collaborative manner. A statutory obligation to do so would be imposed upon them by s 65DAC if equal shared parental responsibility is ordered. He pointed out that although the father had completed a … parenting program, the mother had consistently failed to do so. These factors militate against equal shared parental responsibility and compel close consideration of whether the presumption should be rebutted.
Dr S referred to the mother’s attendance on this course in the part of his report which dealt with his interview with the mother. The contentious paragraph is set out below where Dr S said:
87.The issue of attendance at the … parenting program was explored in detail. [The mother] identified that this had first been proposed some 18 months before. It had not, however, been possible to attend due to lack of babysitting for [the child].
(Dr S’ report dated 21 February 2019, paragraph 87)
Dr S returned to this topic when addressing the issue of “any other matter that the expert considers appropriate” and he said:
159.There was no indication that the lack of trust in the parental relationship was likely to resolve. This raised significant concerns regarding the capacity for the parents to act in a collaborative manner while co-parenting. Under such circumstances, parallel parenting practices are likely to be required. The use of a consistent approach to parenting will be of assistance. The father had previously completed a … parenting program. … Although the mother had been requested to attend over the past 18 months, she had failed to do so. The mother should be required to attend this course in a timely manner. Her inability to locate a suitable course was viewed as insufficient justification to fail to engage in this intervention.
(Dr S’ report dated 21 February 2019, paragraph 159)
The asserted mistake of fact was difficult to follow because at one point counsel for the mother argued that while the mother had not undertaken the parenting program when she was assessed by Dr S, she had later completed it (Transcript 7 June 2021, p.16 lines 43–48) and the primary judge erred by not taking that evidence into account and instead relied on what the mother had said to Dr S. However, as the submission developed, counsel stepped away from that assertion, submitting instead that the mother had sought the assistance of Ms R, a psychologist, to assist her in dealing with the father and to minimise conflicts. In essence counsel for the mother argued that the assistance of Ms R was as valuable to the mother as completing the parenting program.
The challenge was that the primary judge relied on that mistaken understanding in considering whether the presumption of equal shared parental responsibility should be rebutted and thus his conclusion that there should be equal shared parental responsibility was affected by error.
This submission is flawed. A reading of that paragraph makes it clear that there were a number of matters which caused the primary judge to consider whether the presumption should be rebutted, including the distrust and conflict between the parties and Dr S’ view that it might not resolve. The mother’s failure to attend the parenting program is but one factor to which the primary judge turned his mind when considering the question of the presumption of equal shared parental responsibility. It was clearly a matter relevant to the determination as to parental responsibility. No error is made out.
Ultimately counsel for the mother conceded that there was no error. This ground will be dismissed.
Ground 5 asserts that the primary judge made a mistake of fact in finding that the mother failed to disclose her mental health issues prior to 2019 and erred in taking that mistaken fact into account.
The mother’s mental health was clearly a relevant issue in the hearing before the primary judge. His Honour said at [74] that there was no dispute that she had mental health vulnerabilities or that she had sought assistance from time to time which included being prescribed medication (at [183]). At [78] the primary judge referred to Dr S’ recommendation that the mother continue to receive support and treatment, although Dr S noted that the mother’s treating psychologist refused to speak to him about the topic.
The primary judge returned to the issue of the mother’s mental health when discussing her proposed relocation with the child to Country D or Tasmania noting her evidence, that she had suffered emotional abuse and denigration from the father during changeovers of the child and that she believed his conduct had undermined her mental health. His Honour accepted that she had mental health vulnerabilities but was unable to conclude that the father had caused or exacerbated them [116].
At [180]–[181] the primary judge referred to the father’s evidence that while the mother referred to attending her general practitioner for assistance in dealing with stress, he said she did not reveal that she was referred to a psychologist who diagnosed her as having stress, anxiety and depression and she was prescribed medication until January 2019. The primary judge did not accept that the mother had attempted to suppress the evidence of her mental health but did conclude that she had sought to minimise the extent of those problems.
This conclusion was supported by the evidence of Dr S that the mother was not “forthcoming” in discussing her diagnosed mood disorder to which the primary judge referred at [186]. Dr S continued and after observing that the mother ceased medication and psychological intervention in 2017 with the result:
154.… This had led her to relocate apartments and not maintain reliable contact between the child and the father. It was only on specific questioning that she identified the she had recently recommenced psychological intervention with her treating psychologist, Ms [AO], in combination with Sertraline 50mg daily. Her current depressed and anxious mood and stress related symptoms were significant. Given her close engagement, there is no doubt that this would have amplified the child's insecurity.
(Dr S’ report dated 21 February 2019, paragraph 154)
Nonetheless, according to Dr S, both parents exhibited “a current normal mental state” during his assessment (Dr S’ report dated 21 February 2019, paragraph 155).
The primary judge concluded:
188.I conclude that both parents have difficulty promoting the child’s relationship with the other parent. However, the mother labours under a significantly greater difficulty. Her parenting capacity has been compromised by emotional and mental fragility. Although she herself attributes this to the father and his conduct, I do not accept this is the case. There appear to be broader vulnerabilities present, including the pressure of this litigation and financial pressures. In any event, there is a potential for a settled framework of orders to assist the mother with her vulnerabilities.
Neither the written nor oral argument deign to indicate where it was that the primary judge made the finding that the mother failed to disclose “her mental health issues prior to 2019” nor indeed were any of the erroneous subsequent findings based on that conclusion, identified.
In answer to the contention, it was submitted for the father that the primary judge made no such finding and the ground proceeds on a flawed basis, which we accept. It must follow that any asserted errors based on that conclusion must be equally flawed.
Equal shared parental responsibility (Ground 6)
Ground 6 asserts that in making the order for equal shared parental responsibility, the primary judge failed to have “proper regard to the relevant evidence in respect of the issue of the capacity of the parents to exercised (sic) shared parental responsibility”.
The written argument (for no oral argument was advanced in relation to this ground), says:
10.The trial judge made the order for Equal Shared Responsibility. He detailed the conduct of both parties and particularly the baseless evidence of the father that the mother had abused and injured the child. This epitomised the degree of conflict both in its terms and in its frequency. Dr S commented strongly as to the presence of conflict and its possible effect on the child. He indicated that that conflict militated against the success of Equal Shared parental responsibility.
(Mother’s Summary of Argument filed 19 April 2021, paragraph 10)
The passage quoted above takes but one aspect of what was clearly a complex and nuanced decision and reduces it to a consideration of the hostility and conflict between the parties. A clear reading of the primary judge’s reasons including his references to the evidence of Dr S show that the conflict was but one aspect taken into account in reaching the decision about parental responsibility.
However, we take the words that the primary judge failed to give “proper regard” to the evidence as being a contention that the primary judge ought not to have made an order for equal shared parental responsibility but ought to have found that the evidence led to the conclusion for which the mother contended, namely sole parental responsibility in her favour.
It needs however to be noted that while the mother’s primary position was that she should have sole parental responsibility, she conceded that there was scope for parenting responsibilities to be shared by the parents and that while total agreement on issues was unlikely, recognised a “parallel parenting pathway” to making decisions in the child’s best interests (Transcript 13 December 2020, p.315 lines 8–9). Thus from the mother’s point of view she would accept a position other than sole parental responsibility, although it would not be her first preference. This concession undermines the force of the argument on appeal.
In any event, what weight or importance is attributed to evidence is a matter quintessentially for the trial judge and successful appellate intervention faces a high bar (Gronow v Gronow (1979) 144 CLR 513). It is not enough that another judge may have come to a different conclusion on the same evidence, the demonstrates error, the appellant must show an error of the type referred to in House v The King (1936) 55 CLR 499, that is “in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong” (CDJ v VAJ (1998) 197 CLR 172 at 186).
No such error has been demonstrated here and the conclusion reached by the primary judge was plainly open on the evidence before him. This challenge is not made out.
Restraint on international travel (Ground 10)
Ground 10 asserts that the primary judge failed to have proper regard to the relevant evidence on the issue of an international travel restraint and erred in concluding that if the mother was permitted to leave Australia with the child, she would not return.
The primary judge enjoined both parents from removing the child from Australia and the mother from obtaining a European passport for the child, unless otherwise agreed between the parties (Order 18). The order restraining the actions of both parents was one sought by the Independent Children’s Lawyer. The mother sought an order which would permit her to take the child to Country D to spend time with her family there.
The father contended that the mother, if permitted to leave Australia with the child, was not likely to return the child. Although the primary judge accepted that the mother had taken actions which assumed her continuing residence in Australia such as taking up a course of education and enrolling the child in school, the primary judge nevertheless concluded that for the same reasons the relocation to Country D was denied, so too should the mother be denied international travel with the child without restraint. The difficulties to which the primary judge referred were concerned with securing the child’s return from Country D, should the mother refuse to return her, both in the cost and difficulty of enforcing the orders in a European court. Although Country D is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”), Australia does not recognise its accession. According to the expert report before the Court, there is no system in place for the recognition and enforcement of foreign orders unless there is an international agreement with Country D. In short, it seems that there exists significant problems in enforcing and executing orders relating to children in Country D. It does not appear that this evidence was controversial.
His Honour accepted the father’s submission that given the mother’s principal application had been to relocate the child to Country D, if she had the chance to take the child there she would not likely return her. The primary judge, in making the injunction, took into account that the child’s maternal family had travelled to Australia and, subject to the COVID-19 restrictions on travel, assumed that they would continue to do so, and so to restrain the child’s travel to Country D would not deprive her of contact with her maternal family.
The written argument in support of the ground is contained in one sentence:
15. There was no evidence that supported a determination that parents be restrained from involving children under 16 in international travel.
(Mother’s Summary of Argument filed 19 April 2021, paragraph 15)
This challenge must fail. There was abundant evidence before the primary judge which supported the injunction, not least of which was Dr S’ view that the mother saw a move away from where the father lived as being a panacea for her present problems and his Honour’s conclusion that that motivated her application to relocate. The evidence about the difficulty and uncertainty in enforcing Australian parenting orders in Country D in the event that the mother chose not to return the child was also significant and, of course, the primary judge had the evidence of Dr S that the child enjoyed a loving and meaningful relationship with both parents and if the child was to remain in Country D, her relationship with the father would be significantly restricted (at [126]).
Requiring the mother to establish reasons for relocating (Ground 11)
It was argued that the primary judge required the mother to establish reasons for her proposed relocation and thus acted on wrong principle.
We set out in its entirety the submission in support of the ground:
16. The decisions that have dealt with relocation have stressed that a parent relocating does not have to provide reasons for the decision. The provisions of part V11 of the Family Law Act are applied n [sic] each case.
17.What has to be considered is that relocation may effectively remove a child form [sic] conflict and the consequences of that conflict.
(Mother’s Summary of Argument filed 19 April 2021, paragraphs 16–17) (As per the original)
No oral argument was addressed to this ground.
At the commencement of the part of the primary judge’s reasons in which he discussed the mother’s proposed relocation of the child, his Honour sets out in particular detail the relevant law and quoted at length from Boland J’s decision in Morgan & Miles (2007) FLC 93-343 (“Morgan”).
We pause here to sound a note of caution on a too enthusiastic adoption of the “checklist” created by Boland J in that case. With the greatest respect to Boland J, the matters to which her Honour points in that decision are not, nor were probably ever, regarded as providing a “guideline” in the sense that it sets a benchmark for determination of similar cases.
As was said in Beaton & Beaton [2020] FamCAFC 297:
35.Further, it is apparent from the multitude of decisions of judges in interim hearings confirmed on appeal, that the principal issue in relocation cases is not whether the case is “an emergency”. The determination of issues regarding children whether on an interim basis or at a final hearing is by reference to the best interests principle.[1]
[1] See Stringer & Nissen (No. 2) (2019) FLC 93-922 at [26]–[27]; Sawant & Karanth [2014] FamCAFC 235 at [9]–[10]; Malcolm & Monroe and Anor (2011) FLC 93-460 at [106]–[107].
In Deiter & Deiter [2011] FamCAFC 82 the Full Court (Finn, Thackray & Strickland JJ) said:
108.Before concluding our discussion of this appeal, we wish to make mention of the use Kaeser AM made of the checklist which Boland J provided in Morgan and Miles as being useful in relocation disputes.
…
110.We accept that in preparing her checklist, Boland J was attempting to provide guidance for parties and practitioners involved in relocation disputes. However, one difficulty in creating a “checklist”, is that a gloss will be added to a statute that is already overly complicated. A further concern is that judicial officers will begin to apply the checklist, rather than the legislation, thereby overlooking the nuances contained in the statute.
Thus, it is worth emphasising here, that consideration of the “checklist” in Morgan should not occlude the principal issue in the determination of a relocation application – that is an assessment of what is in the child’s best interests. All of the other matters to which Boland J and subsequent authorities refer are subordinate to that principle.
Having set out the law relevant to relocation, the primary judge under the heading “reasons for relocation” set out the mother’s evidence in support of her application in relation to both Country D and Tasmania. His Honour concluded so much of the reasons as refer to Country D thus:
130. The paramount consideration is the best interests of the child. I am satisfied that whatever benefits the child might derive from living with the mother in [Country D], they are outweighed by the deleterious impact upon her relationship with the father, the extended paternal family and the undisputed difficulties of the child leaving from or returning to [City Q], which are profound. The mother may live where she chooses. However, I do not propose to make an order permitting the mother to remove the child from Australia to live in [Country D].
Having noted the evidence about the mother’s desire to move to Tasmania if Country D was not a permitted option, the primary judge said:
140. I accept that Tasmania may well have the lifestyle benefits described by the mother. But permitting relocation there with the child, when the primary, or at least a significant, motivation of the mother is to create distance from the father, would give the Court’s imprimatur to a purpose which is likely to result in an adverse impact on the child’s relationship with her father. It would help create a situation which is likely to work against the healthy development of the child’s prospective relationship with her father.
His Honour did not require the mother to give “reasons for her decision to relocate” but rather weighed the advantages in the move against the disadvantages through the prism of the child’s best interests. This challenge has not been made out.
Insufficient reasons for imposition of a geographical limit in which the child must live (Ground 12)
The mother argues that the primary judge erred in failing to give sufficient reasons for concluding that she should be restrained from living outside a 30 kilometre radius of the child’s school.
The submission on this ground is comprehended in a slightly incoherent sentence which says:
18. A decision to live more than 30 kilometres with a child is generally and in the circumstances of this family is unfounded and unreasonable.
(Mother’s Summary of Argument filed 19 April 2021, paragraph 18) (As per the original)
In oral submissions made in the appeal, counsel for the mother said:
[COUNSEL FOR THE MOTHER]: There was certainly issues in relation to the mother’s ability to travel within 30 kilometres of the child’s home, and in my submission there was no real reason that that injunction should have been imposed, simply on the basis that there was equal shared parental responsibility, for instance, or there was access to the court if need be for that purpose.
(Transcript 7 June 2021, p.19 lines 11–15)
Neither of these submissions assisted the understanding of the contended error.
The primary judge’s order was:
6.Both parties are restrained from relocating the child more than
30 kilometres from the location of the child’s current preschool or her school as agreed between the parties or as selected in accordance with these Orders.
At the hearing before the primary judge both the Independent Children’s Lawyer and the father proposed orders that restrained the mother from moving the child’s residence outside particular radii. The mother opposed that order, arguing that it would unnecessarily impede her ability to be flexible as to where she lived if the circumstances arose.
The primary judge said:
215.… The mother gave oral evidence that she was determined not to involve the child in lengthy travel to and from school to the home of either parent. There is some force in these submissions. But one problem is that the mother herself has shown a past inclination to relocate her residence without consultation. It is also true that flexibility can be catered for by a reasonably generous geographical area.
216. On balance I am satisfied the interests of the child would be best served by prescribing a geographical area within which the child should live.
The central point around which the nominated radius would extend was to be where the child attended school from time to time. The primary judge noted that Dr S supported changeovers occurring at the child’s school.
The primary judge was conscious that such an order is not to be made without clear evidence, and, as his Honour said, the mother had before unilaterally and without notice moved the child’s residence without telling the father (at [214]–[215]).
The primary judge’s reasons for imposing the restriction are entirely clear and the conclusion was well open to his Honour on the evidence.
This challenge will fail as will the challenges to the parenting orders.
THE PROPERTY PROCEEDINGS
There was no dispute that at the commencement of the parties’ relationship, the father had significantly more assets and resources than had the mother.
Before the parties began cohabitation, the father held a property at C Street, Suburb D (“the Suburb D property”) which while initially mortgaged, that mortgage had been discharged by the father using money received by him as severance pay from employment. The father also owned units 2 and 4 in U Street, Suburb N in Queensland. At the time of hearing the father was the sole director and equal shareholder with a business partner of a company, W Pty Ltd that sells personal care products. When the parties commenced their relationship the father was working as a professional. Later, during the relationship the father incorporated M Pty Ltd through which he conducted his business as a professional. The father also had savings.
After the parties married the mother purchased a property at Suburb F (“the Suburb F property”) for $310,000, of which $270,000 was provided by a mortgage. At the time of their marriage, the mother was working full-time at a bank.
After the birth of the parties’ child in early 2015, the mother stopped working and commenced maternity leave. She returned to work presumably after her maternity leave finished and worked part-time for a few months. Thereafter the mother has not worked but has been the primary carer of the child. The mother formally resigned her employment in mid-2017.
During the parties’ relationship both the father’s Suburb D property and the mother’s Suburb F property were sold.
In November 2015, two amounts of $485,000 were withdrawn from an account in the father’s name and deposited into two accounts, one in the mother’s name and one in the father’s. It appears that these funds were the combination of the father’s savings and the proceeds of the sale of the Suburb D property. In April 2016, shortly after the parties separated, a joint account was opened by the father. He said the joint account was opened with the intention of the mother depositing into it, the money in the account held in her name, which she did.
The Suburb F property was sold after separation in April 2016. The parties agreed that the proceeds of the sale, some $249,287, would be held in a solicitor’s trust account.
In May 2018 the mother purchased a property in Tasmania for $376,000.
The determination of the property settlement issue required the resolution of a number of controversies which became the focus of the property appeal grounds.
The property appeal
The father’s interest in Unit 2, U Street, Suburb N (“Unit 2”) (Grounds 14, 15, 20 and 21)
At the hearing, the father contended that although the property was purchased by him in his sole name, using his funds to pay the deposit, the balance of the purchase price came from a joint bank account, in his name and in the names of his siblings and so, the father asserted that he had a 44 per cent beneficial interest in the property.
As the primary judge noted, when the father first swore a Financial Statement in the proceedings in April 2016, he claimed that he held a 100 per cent interest in Unit 2. In an Amended Financial Statement filed in July 2017, he claimed a 40 per cent interest, and in November 2019 he said his interest was 44 per cent.
The father said that he and his siblings share in the rental income although he claims the entirety of the income in his tax return, while his siblings do not apparently declare their share of that income.
While observing that the apparent arrangement with the father’s siblings was “untidy and subject to opaque tax treatment” the primary judge accepted both the evidence of the father and his siblings that they had contributed to the purchase of the unit and concluded that the father did indeed hold Unit 2 partly on trust for the siblings (at [245]).
Turning then to the grounds of appeal that deal with the primary judge’s findings about Unit 2, Ground 14 contends that the primary judge attributed excessive weight to the evidence of the father’s siblings and Ground 15 contends that the primary judge failed to give adequate reasons for finding that the father’s interest in Unit 2 was as to 44 per cent.
The mother’s Summary of Argument does not address or seek to support the individual grounds of appeal but is something of a portmanteau of complaints. It seems that we are left to rummage around in the written argument to glean what we can from it to support the asserted grounds.
It is tolerably clear that Ground 14 challenges the primary judge’s acceptance of the father’s evidence about the purchase and ownership of Unit 2. It was argued that in accepting the evidence that the father held part of the property on trust for his siblings, the primary judge failed to take into account the inconsistencies in the father’s evidence and the evidence of his siblings.
In concluding that the father, while the legal owner, was beneficially entitled to 44 per cent of the property, the primary judge, after outlining the evidence of the father and his siblings said:
245. I am satisfied it is more likely than not that the [father] holds Unit 2 partly on trust for his siblings. The siblings as witnesses were credible. The arrangement, though untidy and subject to opaque tax treatment, is not implausible between family members who trust each other. The alleged trust is likely to have arisen because the father’s siblings contributed to the purchase in the manner described. The manner in which the father accounts to his siblings is somewhat obscure but this does not persuade me his siblings did not make the contribution to the purchase as alleged, [t]he [father’s] interest in Unit 2 should be included in the balance sheet with a value equivalent to 44% of ownership.
The father was cross-examined on his varying accounts of ownership in his Financial Statements and, as the primary judge’s reasons set out, agreed that he alone claimed the rental deductions on Unit 2 and he alone received the rental income from it (Transcript
9 December 2019, p.58 lines 27–29). Equally, he agreed that he had no bank statements showing the asserted payments of a proportion of the rent to his siblings. Further the father agreed that he continues to receive the whole of the rent for that unit and included its receipt in his Financial Statement.
The father’s sister, Ms AG, gave evidence that she received a share of the rental income after her brother had paid tax on it and she did not therefore declare it in her own tax return (Transcript 10 December 2019, p.95 line 47 to p.96 line 15). Although Unit 2 was purchased in 2008, when Ms AG applied for a housing loan in 2016, she made no mention of receipt of rent from Unit 2.
Both Ms AS and her brother, Mr AE, said that the purchase of
Unit 2 was funded from a joint bank account in the Bank XX and produced bank statements to support their evidence.
In short, this ground challenges the primary judge’s acceptance of the father and his witness’ evidence.
As counsel for the father observed in his Summary of Argument filed 25 May 2021, there was no evidence to contradict the evidence of either of the father’s siblings or indeed the father, and the mother’s argument points to no evidence which ought to have been taken into account but was disregarded by the primary judge (at p.9–10).
The law has long recognised the difficulty of successful appellate challenge to a primary judge’s fact finding.
Where a finding of fact is reasonably open on the evidence in the case, it will not be reversed merely because the appeal court would not have made the same findings (Edwards v Noble (1971) 125 CLR 296). Where the factual findings are likely to have been affected by the judge’s impressions about the credibility or reliability of the witnesses formed from seeing and hearing them give their evidence, unless those findings are demonstrated to be “glaringly improbably” or “contrary to compelling inferences” significant appellate restraint is required (see Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; Lee v Lee (2019) 266 CLR 129).
Here, it was argued that there were inconsistencies in the father’s evidence which ought to have caused the primary judge to reject his evidence. Where there are inconsistencies in a witnesses evidence, it is a quintessential aspect of the judge’s role in fact finding that they may reject part of a witness’ evidence and accept parts if the trier of fact comes to the view that the witness’ account is credible (Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322; Sahrawi & Hadrami (2018) FLC 93-857 at [59]).
This challenge is not made out.
Ground 15 too must fail. This ground contends that the primary judge failed to give adequate reasons for his acceptance of the father’s evidence and his conclusion that the father only held a 44 per cent beneficial interest in Unit 2 is not established. The obligation on a judge to give adequate reasons is well-known (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267). The reasons must enable the parties to understand the basis of the judge’s decision and the extent to which the parties’ arguments have been accepted (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]).
The primary judge’s reasons make his reasoning process clear.
Ground 20 contends that the primary judge erred in failing to “apply matters of law and appropriate principle in finding that the father enjoyed sole ownership of Unit 2 … for the purposes of the assessment of contributions yet a 44% interest for the purposes of the asset pool”.
The thrust of this ground was clarified somewhat in oral argument. It was argued that the primary judge erred in making inconsistent findings about the ownership of Unit 2 and that error led him to undervalue the property pool for consideration.
The error was explained thus.
At [263] the primary judge said when dealing with the direct or indirect financial contributions by a party:
263.As at the time of entering the marriage the father owned 3 properties being: [the suburb D property], and the two units at [Suburb N]. I have found that he enjoys ownership in both units, and his siblings do not enjoy any interest in Unit 2. …
Yet, it was argued, at [241]–[245] the primary judge found that the father while being the legal owner was beneficially entitled to 44 per cent of Unit 2, holding the balance on trust for his siblings. Counsel for the mother rejected the suggestion that the primary judge’s reference at [263] to Unit 2 was a mere slip, but argued that he erroneously made inconsistent findings and by including Unit 2 in the balance sheet at $79,200 (being 44 per cent of its value) rather than at $180,000 (100 per cent of its value) wrongly reduced the value of the property pool.
In the mother’s Summary of Argument, it was said:
19. …There is no question that at the commencement of these proceedings the [father] deposed to being the owner of the property. There is no doubt that the trial judge in concluding the value of the property at the time the relationship with the mother commenced and took into account the whole property.
(Mother’s Summary of Argument filed 19 April 2021, paragraph 19)
Unfortunately there follows a reference to “see page 131 Para 1… subpara 2.1” which we cannot relate to any of the appeal documents.
The father did claim to be the owner of the property, correctly in terms of the legal ownership. The primary judge did not value Unit 2 at the commencement of the relationship and we do not understand the submission that he took the “whole property” into account. At [256] when the primary judge came to resolve the disputes in relation to the parties’ joint balance sheet, he added Unit 2 in with a value of $79,200 and again at [310] when concluding the adjustment of property as between the parties.
The primary judge’s reference at [263] to Unit 2 is clearly an inconsequential slip. This challenge is not made out.
Ground 21 asserts that the primary judge failed to apply “matters of law and appropriate principles in finding that the [father’s] initial contributions were significantly greater than the [mother] and his overall contributions as a result from his erroneous and inconsistent findings as to the [father’s] interest in Unit [2]”.
We have already rejected the contention that the primary judge made inconsistent findings about Unit 2. However, even if the true reflection of the value of the father’s interest in Unit 2 was $180,000 rather than $79,200, given the uncontested evidence of the father’s property and assets at the date of the commencement of the parties’ relationship, we do not understand how the failure to include Unit 2 at its full value would drive a finding that the father’s initial contributions were not significantly greater than those of the mother. Indeed, if he in fact held 100 per cent of the legal and beneficial interest in Unit 2, given that it was acquired in 2008, it would increase the value of the property held by him at the time the parties started their relationship. Of course, if the father did own 100 per cent of Unit 2 and it was included in the balance sheet at $180,000, it does not follow that the financial adjustment in the mother’s favour would change accordingly, because it would give a greater value to the father’s contributions.
This challenge is rejected.
Money advanced to the mother by her parents (Grounds 16 and 19)
The mother argued that $207,167 being funds advanced to her by her parents should be included in the pool of property as a debt. The mother argued that the funds were liable to be repaid. The funds advanced were comprised of $33,800 being for the deposit on and renovations to the Suburb F property purchased by the mother in October 2011, $50,000 towards the purchase of her property in Tasmania, $22,490 to buy a car, $73,500 to pay legal fees and the balance used for living expenses for her and the child.
The primary judge rejected that argument, finding it was unlikely that the maternal grandmother would call in the loans and his Honour noted at [251] that while the maternal grandmother agreed that while each loan was made for six years, if at the end of that time the mother could not repay it, the term of the loan would be extended. Further the maternal grandmother said that some of the money might never be repaid.
Ground 16 argued that the primary judge failed to give adequate reasons “for his finding that the monies advanced by the [mother’s] parents were not characterised as a loan and would not necessarily be repaid”.
The primary judge did not find that the advances were not loans. He concluded that they were loans but were unlikely to be called in.
The written submission that seems to refer to this ground and Ground 19 says:
19.… The mother’s mother swore an affidavit. She detailed the loans and repayments leaving a balance of $157,167. She discussed the terms on which the mother held those funds but did not ever suggest that they should not be repaid. These loans are r[presented (sic) in the property that form the asset pool. As loans they are a considerable contribution noy (sic) taken into account by the trial judge.
The trial judge determined that he was dealing with a pool of $1,504,177. This included 1,207,827 in Superannuation. Given the decisions made the mother would receive $406,127.79 and the father $1,098049.21 (sic). In all of the circumstances that is not a just and equitable division. The loans from the mother’s family must be relevant in considering the 75(2) factors.
(Mother’s Summary of Argument filed 19 April 2021, paragraph 19) (Emphasis removed)
In submissions on appeal, counsel for the mother argued that the maternal grandmother’s evidence was that the loans would be required to be repaid and if necessary the mother would have to sell her Tasmanian property.
The maternal grandmother’s evidence was somewhat different. She said that the mother was repaying her as soon as she had money but she had time to pay because the loan was for six years and said that the last loan would fall due in 2025 (Transcript 11 December 2019, p.234 lines 22–30). She said that the mother could repay the loan from rental income she received from the Tasmanian property (in the event that the mother did not relocate to live there) or that the mother could sell the Tasmanian property to repay her (Transcript 11 December 2019, p.238 line 29 to p.239 line 6). However, in answer to the question about what would happen if the mother could not pay the loan at the time due, the maternal grandmother said:
[MATERNAL GRANDMOTHER]: So we will just extend the deadlines, the repayment deadlines.
[COUNSEL FOR THE FATHER]: So you can imagine, can’t you, that some of the money might never be repaid?
[MATERNAL GRANDMOTHER]: Yes, I can imagine that.
(Transcript 11 December 2019, p.237 lines 13–19)
In Biltoft and Biltoft (1995) FLC 92-614 at 82,127, the Full Court said of the treatment of loans to a third party:
Notwithstanding the general practice which has developed, the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred.
The evidence of the maternal grandmother about the likelihood of her pressing for repayment of the various loans well-entitled the primary judge to refuse to include them as joint liabilities of the parties. The rationale is clear, where a loan is unlikely to be repaid it would be unfair to the other party to have the amount of their property adjustment reduced to take into account a loan which will perhaps not be called in.
Against this well settled legal context, the primary judge’s reasons are clear and this challenge is not made out.
Ground 19 again, wrongly asserts that the primary judge decided that the advances were not loans, but continues and argues that by having concluded that they would not be taken into account as debts of the parties, erred in not then taking the advances into account as a “relevant consideration pursuant to s 75(2) of the Act”.
At the appeal hearing, the only amplification of submissions in relation to this ground was that “the extent of $207,100-odd should have been considered as a considerable contribution by the mother in any case as well as a liability of the [mother’s]” (Transcript 7 June 2021, p.5 lines 7–9).
In closing submissions, the mother’s counsel conceded that so much of the loan as related to the payment of legal fees of $73,500, should be disregarded unless the father’s legal fees were treated in the same way (Transcript 12 December 2019, p.288 lines 8–15). The mother’s counsel argued that so much of the loan which was used to purchase the Tasmanian property and the mother’s car should be included in the balance sheet as liabilities of the mother and as the father’s Summary of Argument notes at paragraph 38.2, the primary judge included these two amounts of $50,000 and $22,490 at [250]. It is clear that his Honour took that approach.
As to the balance, there remained an amount of about $33,800 some of which the mother used to renovate the Suburb F property, with the balance expended on living expenses for her and the child. The maternal grandmother said that the loan to renovate the Suburb F property was repaid by the mother when it was sold and then relent to her to assist her to purchase Tasmania (Transcript 11 December 2019, p.232 lines 10–11).
Clearly then, the primary judge took into account the liabilities through the loans as attached to the mother’s assets included in the balance sheet and we do not agree that he failed to consider the money advanced to the mother by her parents as a “considerable contribution” made on the mother’s behalf. First, as counsel for the respondent observed, the primary judge adopted a global approach to the assessment of contributions and since the $50,000 referrable to the Tasmanian property and the $22,490 for the mother’s car were in the balance sheet, there is nothing to suggest that the primary judge having rejected the loans as liabilities per se, did not take them into account as contributions.
This challenge is not made out.
Money paid into the account of the AD Business (Grounds 17 and 18)
The AD Business was established by the father and the mother said that he attended to the administrative work necessary for the AD Business (Mother’s affidavit filed 10 November 2019, paragraph 38). The mother said that based on an analysis of the father’s bank accounts, that between June 2016 and March 2018, the father had transferred $72,267 from his personal account to the AD Business account (Mother’s affidavit filed 10 November 2019, paragraph 127).
That actual sum involved was said to be $69,000 by the father referring to the documents attached to the mother’s affidavit. The primary judge when dealing with this dispute referred to the figure as $69,000.
The father explained that he received the cash takings from the AD Business and other cash referable to the AD Business management and deposited it into his personal account and then transferred the same amount from his account back to the AD Business (Father’s affidavit filed 13 December 2019, paragraphs 2–3). He did not, in his affidavit explain why he adopted that approach.
In any event, the mother sought that the $69,000 be included in the balance sheet because, she contended that it was in fact the father’s money.
The primary judge said this:
246. The next item is said by the mother to be retained profit or surplus from the [AD Business]. The mother contended that the father, who controlled the finances of the … [AD Business], used its bank account to “park money”. The evidence showed the father had transferred to $69,000 to the [AD Business’] account between 26 March 2016 and 3 June 2019. The [father] explained this as using his personal account to reimburse the [AD Business] for cash he received on behalf of the [AD Business] from [….] He gave evidence that he chose not to bank the cash receipts, but transferred to the same amount to the [AD Business] account from his personal account. He claimed [AD Business] ledgers maintained by the [AD Business] treasurer, Mr [AR] identified the transactions. The [father] also gave evidence that he also received into his own account reimbursement of expenses he paid on behalf of the [AD Business.
247. The mother contended I should not accept this evidence. But although the father adopted a disorderly approach to the management of the [AD Business’] finances, I am not persuaded he used the account to “park money”. The father’s explanation is plausible when seen in the context of the modest operations of [AD Business] over a number of years. I am not satisfied any amount for surplus or retained profit of the … [AD Business] should be included in the balance sheet.
(Emphasis in original)
Ground 17 contends that the primary judge gave insufficient reasons to support his finding that the funds advanced by the father to the AD Business were not an asset of him to be included in the balance sheet. Ground 18 contends that the primary judge failed to have proper regard to and gave insufficient weight on the available evidence in coming to the conclusion that the funds transferred to the AD Business were not the father’s.
No submissions, either written or oral were addressed to these grounds and since those appearing for the mother did not consider the grounds sufficiently important to be the subject of submissions, it is not for us to try and discern what facts or circumstances sit behind the contended errors. These grounds will be dismissed.
The father’s financial contributions to the Suburb F property (Ground 22)
This ground contends that the primary judge failed to give adequate reasons for finding that the father made “some contribution” to the mortgage secured over the Suburb F property.
Once again, those acting for the mother did not make submissions on this ground.
The primary judge said:
270. The mother stated that the [father] did not contribute to the mortgage over the [Suburb F] property. The evidence was not clear about this. The father gave evidence that he withdrew a total of $76,500 from three different credit cards and paid the borrowed money directly into the [Bank Y] mortgage account secured against the [Suburb F] property in the mother’s name (see His Trial Affidavit, [34], [39], [47]). In her evidence the mother claimed the father did not contribute money to the account from which the mortgage was paid (see Her Trial Affidavit, [14]), which seems to be different to the mortgage account. No submissions were made about these contributions to the [Suburb F] property claimed by the [father]. I find the [father] is likely to have made some contribution to the [Bank Y] mortgage account secured against the [Suburb F] property in the mother’s name.
271. I conclude the financial contributions were largely equal, during cohabitation although the mother carried the greater burden of servicing the mortgage secured against the [Suburb F] property.
Counsel for the father contended that the primary judge was entitled to accept the father’s evidence that he had withdrawn $76,500 using a number of credit cards which he paid into the mortgage account on the Suburb F property, although the mother asserted that while the father withdrew that money, he did not pay it into the account from which the mortgage was paid.
His Honour’s reasons for the conclusion reached in [270] are entirely clear. This challenge is not made out.
CONCLUSION AND COSTS
The appeal will therefore be dismissed.
In the event that the appeal failed the father sought an order that the mother pay his costs of the appeal. Although what might politely be termed an “ambit claim” to costs was filed by those acting for the father, in oral submissions counsel for the father sought an order for costs fixed in the sum of $7,291.88.
The appeal has been wholly unsuccessful and it is appropriate that an order for costs be made against the mother.
I certify that the preceding one hundred and sixty-eight (168) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Austin. Associate:
Dated: 5 November 2021
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