Lange & Fischer-Lange
[2011] FamCAFC 203
•14 October 2011
FAMILY COURT OF AUSTRALIA
| LANGE & FISCHER-LANGE | [2011] FamCAFC 203 |
| FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the husband failed to demonstrate how the admission of certain documents into evidence would indicate error in the trial judge’s decision – the application was dismissed. FAMILY LAW – APPEAL – WITNESSES – Credibility – where the husband argued that the trial judge erred in regarding the wife as a more credible witness than the husband – the husband failed to persuade the Full Court that the trial judge erred, particularly given the distinct advantages a trial judge has over an appeal court in assessing credibility. FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Contributions and financial disclosure – where the husband argued that the trial judge erred in attributing insufficient weight to the husband’s greater initial contributions and superannuation entitlements, and that the wife did not make full and frank disclosure in relation to her income – where it was apparent from the trial judge’s reasons that these contributions by the husband were taken into account, and the trial judge was satisfied that the wife had disclosed all sources of income – no appealable error established. FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – where the husband argued the trial judge should have made an order for equal time – where the trial judge appropriately considered s 61DA and s 65DAA of the Act and found it was not in the best interests of the children to make an order for equal time – no appealable error established. FAMILY LAW – APPEAL – CHILD SUPPORT – Application for departure – where the husband argued that the trial judge did not take into account the wife’s earning capacity and that the husband should have be given credit for payments he made for the benefit of the children – where the trial judge fixed both parties’ adjusted taxable income on the basis of the evidence and took into account the payments made by the husband – no appealable error established. |
| Child Support (Assessment) Act 1989 (Cth) s 117 Family Law Act 1975 (Cth) s 93A(2) |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Mr Lange |
| RESPONDENT: | Ms Fischer-Lange |
| FILE NUMBER: | PTW | 4394 | of | 2008 |
| APPEAL NUMBER: | WA | 9 | of | 2010 |
| DATE DELIVERED: | 14 October 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
JUDGMENT OF: | May, Thackray & Strickland JJ |
| HEARING DATE: | 12 April 2011 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 14 May 2010 |
| LOWER COURT MNC: | [2010] FCWA 50 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Dr Dickey QC |
| SOLICITOR FOR THE RESPONDENT: | DCH Legal Group |
Orders
The Application in an Appeal filed on 29 March 2011 seeking to adduce further evidence be dismissed.
The appeal be dismissed.
The husband pay to the wife the sum of five thousand dollars ($5,000) by way of costs.
IT IS NOTED that publication of this judgment under the pseudonym Lange & Fischer-Lange is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 9 of 2010
File Number: PTW 4394 of 2008
| Mr Lange |
Appellant
And
| Ms Fischer-Lange |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Lange (“the husband”) against orders made by Moncrieff J on 14 May 2010 in proceedings between the husband and
Ms Fischer-Lange (“the wife”). The orders appealed against relate to parenting issues, property settlement and child support.
His Honour made parenting orders which provided for the parties to have equal parental responsibility for the children and for the children to live with the husband from each alternate Thursday after school until the commencement of school on the following Monday, for half of all school holidays (to include each alternate Christmas and Easter periods) and on Father’s Day. The children were to otherwise live with the wife.
As to property settlement, the trial judge found that the parties’ contributions to the pool of assets were equal, but made an adjustment of 10 per cent in favour of the wife on account of s 75(2) factors such that the pool was ultimately divided 60 per cent/40 per cent in favour of the wife. Inter alia, the wife was to retain the former matrimonial home and pay to the husband the sum of $123,774, with this payment to be reduced by any arrears in child support.
Lastly, in relation to child support his Honour made a departure order for the period from 14 May 2010 to 30 June 2012 by fixing the husband’s adjusted taxable income at $80,000 and the wife’s at $15,000. The husband was also ordered to pay, in addition to the administrative assessment of child support, half of the children’s school fees and ancillary costs, half of the cost of extra curricular activities and half of the cost of the children’s private health cover.
Background
The wife was born in Australia in 1967 and was aged 43 years at the time of the trial. In 1972, when the wife was five years old, she returned to her parents’ native home of Germany.
The husband was born in 1960 in Germany and was aged 49 years at the time of the trial.
The parties met in Australia in 1995 when the wife visited Perth, where the husband had been living and working as a tradesman for five years. The husband owned a property at Y.
In approximately 1995 the parties commenced cohabitation in Germany, although the husband moved into his sister’s apartment from October or November 1995 until the parties resumed cohabitation in March 1996. At this time the wife was employed by an airline and the husband worked for a telecommunications company.
The parties were married in Germany in 1996. The parties’ respective parents gave them a cash gift of DM 10,000 each for their wedding.
In late 1996 the parties moved to the husband’s parents’ home near Frankfurt where they paid a nominal rent for the top two floors of the property.
The parties’ eldest child, N, was born in late 1996 and was aged 13 years at the time of the trial.
Following N’s birth, the wife took three years maternity leave, during which time she completed the Bachelor Degree that she had previously commenced. The husband continued in his employment, undertaking shift work.
In late 1997 the husband’s parents gave the husband DM 40,000.
In late 1997 the husband travelled to Australia to purchase a property, as the parties had formed an intention to move to Perth. In early 1998 the former matrimonial home at H was purchased in both parties’ names. The property was purchased as an investment, until such time as the parties could relocate to Perth.
The parties’ second child, V, was born in 1998 and was aged 11 years at the time of trial.
The husband sold the property at Y in 1999.
The wife returned to her employment with the airline part-time when the second child was three years of age. She worked five days per fortnight in a job share arrangement. The husband continued his employment with the telecommunications company.
The parties visited Perth in 2000 and 2001, and in 2002 the parties and the children emigrated to Perth, initially living in rental premises as the former matrimonial home was occupied by tenants.
In late 2002 the wife obtained employment with a tourism related business, company A. The husband did not obtain employment because Australian recognition of his qualifications as a tradesman had expired and he decided to take time off work.
In late 2003 the husband’s parents gave the parties a sum of money, namely 50,000 Euros, which were used to discharge the balance of the mortgage over the H property.
The parties commenced a small business, trading as company P, which imported furniture items from Germany.
In 2005 the husband, after renewing his qualifications, obtained employment with company T. The wife assumed the operation of company P and reduced her hours at company A. In late 2005 the wife resigned from company A and continued in part-time employment for both company P and a third-party business.
In early 2008 the wife commenced full-time study for a nursing qualification.
The parties separated in December 2007 according to the husband, or April 2008 according to the wife, but continued to reside under the one roof.
In May 2008 the husband terminated the wife’s access to the parties’ Bankwest account and removed her access to their remaining joint account in Germany.
From mid 2008 the Child Support Agency issued assessments of child support. The husband paid child support until May 2009, but refused to pay child support between May and October 2009 after the wife failed to pay one half of the landline telephone costs as ordered by the court.
In December 2008 the parties undertook mediation at a Family Relationships Centre and reached an agreement that the children were to remain in the family home and that the parties would come and go according to their agreement. This arrangement was continued by orders made in early 2009.
On 9 December 2008 the wife applied for and obtained an ex parte violence restraining order against the husband. The husband vacated the home on 13 December 2008 upon being served with the order.
On 17 December 2008 the husband obtained an ex parte violence restraining order against the wife.
Various interim orders were made, the effect of which was that at the time of trial the wife resided in the former matrimonial home for nine days each fortnight and the husband for five. Further orders were made in March 2009, inter alia, for the parties to share one half of the cost of the home landline telephone.
The trial was heard by Moncrieff J on 30 and 31 March and 1, 20 and 22 April 2010. His Honour delivered his reasons for judgment and made final orders on 14 May 2010.
The husband filed a Notice of Appeal on 11 June 2010.
The husband filed an Amended Notice of Appeal on 30 November 2010 and a “Re-Amended” Notice of Appeal on 14 March 2011.
Reasons for judgment of the trial judge
The trial judge commenced his judgment by outlining the orders sought by each party. In relation to parenting matters, the wife sought that she have sole parental responsibility for the children and that they spend time with the husband in one block, which effectively amounted to a reduction in the time they would spend with the husband. The husband sought equal shared parental responsibility and that the children live week about with each party. The parties agreed in relation to the arrangements for holiday time.
With respect to child support, the husband sought that his child support income be calculated only on his base salary (not overtime), that the wife be deemed to have an income of $65,000 per year and that the parties equally share the school fees and extracurricular expenses. The wife sought that the husband’s income be fixed at $100,000, with no fixed determination as to her own income.
In relation to property settlement, the wife sought an order that she retain the former matrimonial home and make a payment to the husband such as to effect a division of the parties’ assets 60 per cent/40 per cent in her favour. The husband sought to retain the former matrimonial home and to pay the wife a sum such as to effect a settlement on the wife of 40 per cent of their net assets, including their Australian superannuation entitlements, but not their German entitlements. The parties agreed to otherwise keep their respective motor vehicles, shares and bank accounts, but could not agree as to the division of furnishings and effects from the former matrimonial home.
His Honour went on to set out the background of the parties and of the proceedings, as summarised above, before turning to consider the evidence. His Honour found that the wife and her witnesses were “by and large” very impressive. He found the wife to be open in her answers and overall formed the view that she attempted to be truthful and made appropriate concessions against her own interests. He also found the wife’s witnesses to be witnesses of truth. However, his Honour found the husband to be a very unimpressive witness, noting that he took every opportunity to argue with counsel and during cross-examination gratuitously made comments about his perception of the wife’s inadequacies and failings. His Honour said that whilst overall he formed the impression that the husband was a “fair-minded and fundamentally decent person”, the husband’s “fixated view of the wife’s conduct and of his own superior position in the proceedings so distorted his presentation of his case that his evidence was rendered, for the most part, unreliable.” His Honour thus preferred the evidence of the wife where there was conflict.
His Honour then turned to determine the date of the parties’ separation. Ultimately, his Honour was satisfied that the parties finally separated in April 2008 or thereabouts.
The trial judge first addressed the parenting issues. After outlining the law applicable to parenting matters, his Honour turned to address the primary considerations under s 60CC(2). His Honour found that he could proceed comfortably on the agreed position of the parties that it was to the children’s benefit to have a meaningful relationship with each of their parents. As to s 60CC(2)(b) and the need to protect the children, his Honour noted that both parties had obtained violence restraining orders, and while there was no doubt that the children would have been exposed to the tension between their parents, neither party would willingly expose the children to abuse, neglect or family violence. His Honour found both parties genuinely had the children’s best interests at heart.
His Honour then turned to the additional considerations. In addressing the views of the children, his Honour referred to the Family Report prepared in this matter, particularly recording the views of the children as expressed to the Family Report writer. His Honour concluded that it seemed the children had given appropriate consideration to future arrangements with their parents. The trial judge rejected the husband’s argument that the Family Report was merely a historical document and was out of date. His Honour found the report reaffirmed that the children had a high level of awareness of the conflict between their parents and that they appeared to have formed their own views, which were expressed in a way and manner and with sufficient maturity that they should be respected. His Honour also had regard to the children’s respective ages and was ultimately satisfied that he should give weight to the children’s wishes.
The trial judge had no doubt that the children had a strong, loving and positive relationship with each of their parents and had a good relationship with their grandparents. Given the evidence, his Honour concluded that he did not consider the relationship between the children and the wife’s new partner to be one of significance now or in the future, but that they had a “cordial” relationship.
Turning to paragraph 60CC(3)(c), namely, the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent, his Honour said that this weighed heavily in the determination. His Honour found that it was important for the children, given their ages, to reside with the parent who had the “ability to be flexible, to accommodate changes initiated by the boys and not be judgmental or otherwise critical of any decisions they make in terms of their relationship with the other parent”. His Honour gained the impression that the husband had little respect for the wife or the positive attributes that she could bring to the children, whereas the wife gave the impression that she was far more likely to promote the relationship between the children and the husband.
The trial judge did not consider that paragraph 60CC(3)(d), the likely effect of any changes, weighed heavily in the determination, and was confident that the children’s relationship with their parents would not be significantly affected by the parties living physically separate from one another. There was no evidence of any practical difficulty or particular expense in the children spending time with or communicating with each of their parents, nor was there any suggestion that either party would not adequately provide for the children’s physical, emotional or intellectual needs (s 60CC(3)(e) and (f)).
The trial judge recognised the relevance of the children continuing to be made aware of their German heritage, however he did not foresee either parent as being other than supportive of this. His Honour did not consider there would be anything problematic in the future with respect to the parties’ attitudes to the children or their responsibilities of parenthood.
His Honour explained he would consider the issue of family violence in the context of parental responsibility (paragraphs 60CC(3)(j) and (k)) and commented that further proceedings in the future would be less likely if the children were to live with the wife.
The trial judge then addressed whether the presumption of equal shared parental responsibility applied in this case. His Honour referred to the instances of violence which had occurred between the parties and concluded that the actions were “situational only, arising more as a consequence of the intense proximity that the parties had to endure by virtue of the arrangements that they had initially agreed on and which were subsequently made orders of the Court.” His Honour said it was a “recipe for disaster” and led to inevitable conflict. His Honour was not satisfied that the behaviour of the parties was sufficient to cause ongoing concern to the Court, and was not satisfied that the children were likely to be exposed to physical harm from either of the parties. His Honour thus did not find that the parties’ behaviour was such as to rebut the presumption of equal shared parental responsibility, nor did his Honour consider that the parties’ apparent inability to communicate about issues negated the presumption. Thus, his Honour determined it was appropriate to apply the presumption.
The trial judge was not satisfied that it would be in the children’s best interests to make an order for equal time. His Honour considered the proposal of the husband, commenting that it involved the children being “latchkey children” due to the husband’s work arrangements. His Honour determined that the children were at a “critical time in their lives where they need routine, sound and firm guidance…and a high level of physical certainty” and that at the time the wife was more physically available to the children and she had a greater insight into their needs. His Honour then outlined the orders he proposed to make as to parenting.
The trial judge then turned to the property settlement issues.
After outlining the four step approach the Court is to take in property settlement matters, his Honour recorded the value of the assets and liabilities that were agreed between the parties. His Honour recorded that the husband sought a 20 per cent differential in his favour and the wife sought a 20 per cent differential in her favour.
One issue in dispute was whether paid legal fees should be notionally added back to the property pool. The trial judge commented in his discussion of this issue that the quantum of the husband’s legal fees was disproportionate to that of the wife and that a degree of the husband’s expenditure on legal fees was “wasteful and unnecessary and driven by his fixation with certain matters of ‘principle’”. His Honour ultimately concluded that there had been no real severance of the parties’ financial interrelationship and thus the paid legal fees were notional assets to be added back to the pool.
The next issue his Honour addressed was alleged non-disclosure by the husband of significant transactions in accounts operated by him in Germany. After outlining the evidence on this issue, his Honour commented that the failure of the husband to make adequate disclosure in relation to the transactions was cast into “sharper relief” when viewed against the husband’s “overly pedantic” requests for disclosure by the wife in relation to her conduct of company P and her earning capacity. The trial judge was not satisfied that the husband had provided adequate disclosure in relation to the three matters addressed and concluded that he had failed in his obligation to provide full and frank disclosure. His Honour said that all of the transactions were uniquely within the husband’s knowledge and his inability to produce documents was at odds with the level of precision he had otherwise applied to the presentation of his evidence.
His Honour then turned to consider contributions. The husband sought that contributions be assessed at 65 per cent in his favour, outlining that he should receive a 5 per cent adjustment for initial contributions, 2.5 per cent for the provision of low cost accommodation by his parents and a further 7.5 per cent to 10 per cent for the pre-inheritance gifts he received from his parents. The wife said there should be a finding of equality of contributions. The trial judge ultimately concluded that, whilst at the commencement of the relationship the husband had greater assets than the wife and his parents made a significant direct and indirect financial contribution to the parties, his Honour was not satisfied that those contributions should be given significant weight overall, when viewed against the contributions made by the wife following the parties’ arrival in Australia, the husband’s election not to work and her efforts with both company P and her other part-time employment. Consequently, his Honour found there was equality of contribution.
The trial judge then turned to consider the relevant s 75(2) factors. In summary, his Honour noted that the wife and the husband were aged 43 and 49 respectively and did not have any significant health issues. The husband earned $78,000 with the opportunity to substantially increase his earnings with overtime and the wife anticipated a significant improvement in her income position upon completion of her qualifications. His Honour had regard to the fact that the children were to reside primarily with the wife. His Honour noted that the husband had slightly greater superannuation entitlements than the wife, although the wife would be able to enhance her contribution upon securing employment in the nursing field. His Honour also noted the husband’s reluctance to pay child support, although indicated this would be considered separately, and that there had been periods when the husband had “deliberately” fallen into arrears. Ultimately the trial judge found that the husband did have an underlying acceptance of his obligations to pay child support, however
his Honour declined to further take into account the husband’s non-disclosure under s 75(2)(o) as he said he had already taken this into account in the consideration of the parties’ contributions.
In relation to the s 75(2) factors, counsel for the husband proposed an adjustment of 5 to 7.5 per cent and counsel for the wife sought a 10 per cent adjustment. His Honour ultimately concluded a 10 per cent adjustment in favour of the wife was appropriate as the husband had significant earning capacity, the income disparity between the parties was likely to continue, and the wife would have the primary responsibility for housing and providing for the children.
The asset pool was thus to be divided 60 per cent/ 40 per cent in favour of the wife. His Honour determined to exclude the parties’ superannuation entitlements on the basis that each was to retain their own entitlements.
His Honour was not satisfied that any further adjustment was required on account of superannuation.
His Honour was ultimately satisfied that the proposed orders were just and equitable. The outcome was to see the wife retain the former matrimonial home and the husband receive a further sum of money, which would give him a significant foundation from which to re-establish himself. His Honour noted that while the wife would be left with a significant debt, particularly having regard to her limited financial resources in the short term, and that the wife would therefore struggle to meet her commitments, his Honour was satisfied that she was sufficiently “resourceful” to ensure that she could retain the home until such time as she was able to secure a greater and more reliable source of income.
His Honour proposed to make an order that the husband vacate the former matrimonial home in the “very short term” despite there being a period of two months before the husband was to receive his capital entitlement, as his Honour considered that the issue of the occupation of the former matrimonial home needed to be resolved “immediately”. His Honour was concerned by the parties’ current living arrangements and the impact of the arrangements on the children. The trial judge acknowledged that the husband “may well perceive the outcome of these proceedings as a significant injustice to him” and
his Honour expressed concern as to the “husband’s ability to behave appropriately given the strength of feeling he has about his position in these proceedings”.
Finally, the trial judge addressed the child support issues. Both parties sought a departure from the administrative assessment of child support.
His Honour had regard to the numerous child support assessments that had been made in this matter, noting that there had been two changes of assessment. In March 2010 the husband’s assessment had been reduced to take into account the expenses he met for the children. The trial judge said the basis for the reduction would cease upon publication of his Honour’s orders because of the change to the parties’ circumstances that would then flow. His Honour was thus satisfied there was a ground for a departure, namely s 117(2)(c)(ia) – (ii) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
The trial judge was satisfied that all sources of income of the wife had been included in her tax returns and that there was no evidence that she had earned in the past the amounts claimed by the husband. His Honour agreed “entirely” with the decision of the Child Support Registrar’s delegate that the husband had not met the three criteria in s 117(7B) of the Assessment Act.
His Honour was satisfied that there was a reason for changing the assessment on the basis of the change of circumstances now confronting the parties and their commitment to continue to privately educate the children. His Honour determined to fix the husband’s adjusted taxable income at $80,000 and the wife’s at $15,000 until 30 June 2012, by which time his Honour said the wife’s income may have increased to a level where it is appropriate to reconsider the issue of child support, subject to the wife’s satisfactory completion of her nursing qualification and having obtained employment in that field.
The trial judge noted that it seemed to be agreed that the parties would share the children’s school and extracurricular costs and, despite some concerns about the parties’ ability to agree as to extracurricular costs, his Honour proposed to make the order as agreed by the parties.
The trial judge was satisfied that the orders were proper within the meaning of the Assessment Act.
Finally, his Honour addressed the effect of the division of the pool of assets and the assets and liabilities each party would retain. The wife was to receive entitlements of $432,434 and the husband entitlements of $288,290. The effect of the orders was that the wife would be required to make a payment of $123,774 to the husband and she was to retain the former matrimonial home.
Orders made on 14 May 2010
The trial judge made the following orders on 14 May 2010:
Children’s matters
1. The applicant wife and the respondent husband have equal shared parental responsibility for the children of the marriage, N born … 1996, and V born … 1998.
2.During school term the children shall live with the respondent husband from the conclusion of school on each alternate Thursday until the commencement of school on the following Monday or Tuesday in the event that the Monday is a public holiday, commencing Thursday 27 May 2010 and recommencing on the first Thursday of each school term.
3.The children shall live with the respondent husband for one half of all school holidays, such periods to include each second Christmas Eve, Christmas Day, Boxing Day and Easter.
4.The children shall live with the respondent husband from 6:00 pm on the evening preceding Father’s Day until 5:00 pm on Father’s Day in the event that the children are not otherwise living with him pursuant to these orders.
5.In the event that the children are living with the father pursuant to these orders the father’s time with the children shall be suspended from 6:00 pm on the evening preceding Mother’s Day until 5:00 pm on Mother’s Day in each year.
6. The children shall otherwise live with the wife.
7. Both parties have liberty to
(a) liaise with and discuss the progress of the children with all educational and health care professionals dealing with the children and receive, directly from those professionals, medical and school reports and circulars related to the children;
(b) where practicable, attend at and participate in functions and/or activities at or organised by any school attended by the children and any sporting educational or social events organised by the children;
(c) visit children in hospital in the event that they are hospitalised; and
(d) telephone the children at home in the event that they are not able to attend school due to ill health or injury.
8. Both parties shall:
(a) immediately inform the other of any injury or health problem suffered by the children whilst in each party's respective care;
(b) inform the other by telephone as soon as practicable, of any emergency concerning the children.
9. Both parties shall have liberty to contact the children via telephone or email at any time whilst the children are in the other's care.
10.Both parties will be restrained and an injunction is hereby granted restraining them and each of them from:
(a) discussing in the presence or hearing of the children any issue in or relating to these proceedings including the children's residence arrangements;
(b) denigrating or describing in negative terms the other party, and his or her partner, friends and family in the presence or hearing of the children or the other party;
(c) harassing the other party or unreasonably interfering with that other party's manner of living;
(d) questioning the children about the other parent's relationship and/or activities; and
(e) allowing any third party to engage in any of the actions or conduct described in paragraphs 7(a) to (d) inclusive.
Financial
11.Within four days of the date of this order the husband shall vacate the former matrimonial home situated at and known as
… D Crescent, H in the State of Western Australia and being the land more particularly described as Lot … on Plan … on Certificate of Title Volume … Folio … (“the former matrimonial home”), the intent thereafter that the wife shall be entitled to the exclusive use, occupation and benefit thereof.12.Within 60 days of the date of this order the wife shall pay or cause to be paid to the husband the sum of $123,774.
13.Contemporaneously with the payment ordered in paragraph 12 hereof the husband shall transfer to the wife all his right, title, estate and interest in the former matrimonial home to the intent that the wife shall thereafter be entitled to be the sole registered proprietor thereof.
14.Henceforth the wife shall pay and discharge all rates, taxes or other outgoings accruing as a consequence of her ownership or occupation of the former matrimonial home, including any liability for any mortgage secured thereby and the wife shall use her best endeavours to refinance any such borrowing in her name solely.
15.By the close of business on Monday 17 May 2010 the husband shall present to the wife two lists prepared by him representing an equal division of the chattels situated in and about the former matrimonial home. The wife shall nominate the list of chattels she would seek to retain and the chattels enumerated in such list are hereby declared to be her sole property to the exclusion of the husband and the husband shall henceforth retain as his sole property to the exclusion of the wife the chattels enumerated in the list not nominated by the wife.
16.The husband shall forthwith transfer all of his right, title and interest (if any) in the following items to the applicant:
(a) the Honda CRV motor vehicle registration No …;
(b)any superannuation entitlements including but not limited to her ING Superannuation entitlements;
(c) the … shares registered in the wife’s name;
(d) all bank accounts held in the wife’s sole name.
17.The wife shall indemnify the husband and keep him indemnified in relation to all debts or liabilities pertaining to or connected with the loan from Esanda Finance secured against the Honda CRV motor vehicle and advanced to facilitate its purchase.
18.The wife do forthwith transfer to the husband all of her right, title and interest (if any) in and to the following items:
(a) the Mitsubishi Magna motor vehicle in his possession;
(b) the Ford Falcon motor vehicle in his possession;
(c) the Sparda accounts held by the parties in Germany;
(d)any superannuation entitlements held in the husband’s name but not limited to his AMP and Connect Superannuation entitlements;
(e) any shares held in the sole name of the husband;
(f) any bank accounts held in the sole name of the husband.
19.Each party retain to the exclusion of the other any entitlements they may have in the Deutsche Rentenversicherung superannuation fund in Germany;
20.Henceforth each of the parties shall discharge their several debts without calling upon the other to contribute thereto.
21.The amount payable by the wife to the husband pursuant to paragraph 12 hereof shall be reduced by any arrears of child support outstanding as at the date of payment and the wife shall notify the Child Support Registrar of such a reduction by way of a “non agency payment advice” pursuant to Section 71 of the Child Support (Registration and Collection) Act to the intent that such arrears shall be reduced to nil.
Change of assessment
22.Pursuant to the provisions of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support in force for the period commencing the 14th day of May 2010 until the 30th day of June 2012 by fixing adjusted taxable income amounts for the husband of $80,000 and for the wife of $15,000.
23.That in addition to any amounts of child support payable by way of an administrative assessment of child support in force from time to time the husband shall pay one half of the children’s school fees and ancillary costs, inclusive of books and uniforms or other fee prescribed or charge levied by the school at which they attend, together with one half of the costs of and incidental to any agreed extra-curricular activity undertaken by the children, whether sporting or otherwise, and to include one half of the cost of provision of relevant uniforms and/or equipment or instrument properly required to complete or participate in the activity and one half of the cost of the provision of private health cover for the children at no less than current cover.
The husband appeals orders 2, 11 to 14, 22 and 23.
Grounds of appeal and orders sought
The husband’s Re-Amended Notice of Appeal does not contain identifiable grounds of appeal, but rather his complaints are made in the form of submissions. In most of the husband’s complaints he fails to outline any specific errors of law or fact, however they can be summarised and/or re-framed as follows:
o That the orders are “extremely unfair” and as a result he would be “finacially [sic] devastated”.
o That the trial judge erred in relation to the assessment of contributions, in particular as:
o the husband was in a substantially better financial position at the commencement of cohabitation;
o the husband made a greater contribution during the marriage by way of the parties having the benefit of living in the husband’s parents’ house at below market rent and the two substantial “pre-inheritances” received by the husband.
o That the trial judge erred in relation to the child support orders as the husband cannot afford to pay child support based on an income of $80,000 or to pay half of the children’s school fees and private heath insurance.
o That the wife hid her true income in the period before separation.
o That there was a “negative bias” towards the husband while the wife could “do no wrong”.
o The husband complains of the conduct of the wife and her legal representatives stating the “whole trial was conducted in an extremely tactical manner”.
o That the court erred in finding that the wife was a credible witness and the husband was not. The court therefore erred in discounting the husband’s affidavits in favour of the wife’s affidavits.
o That the court erred in not ordering shared care of the parties’ children.
Usefully the wife’s senior counsel in his summary of argument further refined the husband’s complaints into six topics, namely:
Property Settlement
(a)The trial judge erred in regarding the wife as more credible a witness than him.
(b)The trial judge erred in his assessment of the parties’ respective contributions under s. 79(4)(a), (b) and (c), particularly by giving insufficient weight to the value of the property that the husband brought into the parties’ relationship at the commencement of cohabitation.
(c)The trial judge did not take sufficiently into account that the wife did not make full and frank disclosure of her earnings when working in association with Ms B.
(d)The property settlement orders made by the trial judge were not just and equitable for the purposes of s. 79(2).
Child Related Matters
(e)Having determined that the parties should have equal shared parental responsibility for the 2 children of the marriage, the trial judge should have proceeded to order that the children spend equal time with each parent.
Child Support
(f)In determining a child support departure order, the trial judge:
(i)should have brought into account the Wife’s earning capacity, and
(ii)should have given the Husband credit for payments that he is otherwise to make for the benefit of the children.
It is convenient for us to address the husband’s complaints under these topics.
Although the husband does not expressly seek that there be a re-exercise of discretion, he seeks an order that the initial contributions of the parties be “weighed as 65% husband to 35% wife”. There is confusion though as to the adjustment the husband seeks on account of s 75(2) factors, as he outlines that they be “weighed” at both “5 to 7.5 % as suggested by [his] counsel” and “0 to 5 %”.
In relation to parenting matters, the husband seeks that there be “fully balanced care, 7days/7days”.
Lastly, the husband seeks an order that the child support payments not to be based on “overtime”.
The Application in an Appeal filed 29 March 2011
On 29 March 2011 the husband filed an Application in an Appeal in which he sought an extension of time to file his Form 21 (Application in an Appeal) and affidavit, and subject to the granting of such an extension he sought leave to adduce further evidence in the form of his supporting affidavit.
We have no difficulty in receiving the application albeit it was out of time, but we are not prepared to receive the further evidence that is sought to be adduced.
Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. In CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. McHugh, Gummow and Callinan JJ said:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Their Honours then said:
111.… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
And finally their Honours said:
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
The wife opposes both applications to adduce further evidence.
The further evidence is set out in the form of annexures to the affidavit of the husband filed on 29 March 2011. These annexures are as follows:
A – Various photographs.
B – The husband’s PAYG payment summary for the financial year ending 30 June 2010.
C – Translation from German to English of “summary statements for [the husband’s] share investments as produced in court”.
D – Statutory Declaration by the husband’s brother-in-law.
E – A one page unsworn document setting out “important events that did not make [it] into [the husband’s] main affidavit due to [his] lawyer’s decision”.
F – Transcript of hearing before a State Magistrate in December 2008 in relation to the wife’s application for a restraining order.
G – The affidavit of the wife filed on 10 February 2009.
H – The husband’s “unofficial response” to the affidavit of the wife filed on 10 February 2009 sent to his lawyers.
I – The wife’s Initiating Application and Financial Statement filed on
5 September 2008.Addressing each of these annexures in turn:
AThe husband suggested that this bundle of photographs demonstrates that in relation to certain topics the wife’s evidence was incorrect and his was accurate. However, for further evidence to be led it has to be “accepted” by the Court and photographs per se are simply not admissible. Here, for example, although the husband in his oral submissions identified what two of the photographs represented, there was no evidence as to who took the photographs, when they were taken, and what each photograph is said to represent. They do not without more say anything about the credit of the wife.
In any event, we are not persuaded that if the photographs were accepted that they would render erroneous the decision of the trial judge. Thus, there is no basis to receive these photographs.
BThis pay slip indicates that the husband’s taxable income for the financial year ending 30 June 2010 was $81,257. We fail to see how receiving this pay slip would indicate error on the part of the trial judge. Indeed, it supports his Honour’s finding that the appropriate income for the husband for child support purposes is $80,000. Thus, again, there is no basis to receive this document.
CThese were translations of documents that were produced during the re-examination of the husband by his counsel. However, because they were in German and there was an objection to them being used, the re-examination on these documents was not pursued and nor were the documents sought to be tendered. The husband went on though to give oral evidence on the topic which was the husband’s share investments in Germany.
There is no doubt that, if relevant, these documents could have been translated and the translations produced during the trial. Indeed, his Honour said this in paragraph 206 of his reasons for judgment:
It appears that after the adjournment of the matter, part heard on
31 March 2010, that the husband then attempted to obtain some documents from Germany. The only documents he produced were in German and no attempt had been made to translate them. The husband’s answer to that was that the wife could read German.The husband suggested that apart from anything else, because the wife’s signature appears on certain of the documents, that demonstrates that the wife was not telling the truth when in her affidavit she deposed that the husband’s mother rather than her had access to one of the husband’s accounts. As the wife’s senior counsel submitted, there may be isolated occasions such as this where the wife’s evidence was not entirely accurate, but this does not reflect on his Honour’s credit findings on significant issues. Thus, this cannot render his Honour’s decision erroneous and there is no basis for admitting the documents.
DThis is a Statutory Declaration from the husband’s brother-in-law relating to a visit that he made with his family in March 2008 to the husband and the wife and their children. Again it fails all of the tests for the reception of further evidence. It is not admissible; if relevant, it could have been put in the form of an Affidavit and relied on at the trial; and it has not been demonstrated how its reception would indicate that his Honour erred in his decision. Accordingly, we refuse to receive this document.
ELikewise, there is no basis to admit this document. It is inadmissible being an unsworn document, and it allegedly contains information deliberately excluded by the husband’s solicitors from the husband’s affidavit of evidence-in-chief, and if that was not enough, it has not been demonstrated how its reception would render his Honour’s decision erroneous.
FThis also fails the tests for the reception of further evidence. If relevant, it could have been provided and relied upon at the trial before his Honour, and it has not been demonstrated how its admission would indicate that his Honour erred.
GThere is no basis to admit this affidavit. It was not an affidavit relied on at the trial by either party, but it could have been if it was considered relevant. Further, it has not been demonstrated how reception of this affidavit would render his Honour’s decision erroneous.
HThis document is not able to be admitted for the same reasons as the one page document in annexure E cannot be admitted.
IThe husband failed to demonstrate any basis for the admission of these documents. They were not relied on by either party at the trial, but they could have been if relevant, and there is no indication of how receipt of these documents indicates that his Honour erred.
Thus, we propose to dismiss the Application in an Appeal filed by the husband.
Discussion
a)The trial judge erred in regarding the wife as a more credible witness than the husband.
When summarising the reasons for judgment of the trial judge we recorded that his Honour found that “the wife and her witnesses, by and large, were very impressive”. His Honour formed the overall view that the wife “attempted to be truthful” and he considered her and her witnesses to be “witnesses of truth”. However, his Honour formed a different view of the husband. He found him to be a “very unimpressive witness” such that “his evidence was rendered, for the most part, unreliable”. In conclusion, his Honour preferred the evidence of the wife and her witnesses where there was conflict with the evidence of the husband.
There is of course a presumption that a decision of a trial judge is correct, and the onus is on the appellant to demonstrate that the trial judge made an error. This is always a difficult task where the challenge is to a trial judge’s findings on credit, because a trial judge enjoys advantages that we lack. In Mims & Green and Green (2008) FLC 93-359 the Full Court there referred to the
High Court decision in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 where McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47:
…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.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588, having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages”. In the course of his judgment his Honour said at 619:
90.The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. (Footnotes omitted)
Here, although there are a number of specific areas where the husband challenges the acceptance by the trial judge of the evidence of the wife in preference to his evidence, the husband has not taken us to anything which persuades us that his Honour erred in these findings, particularly given the distinct advantages that the trial judge had over us in that regard. Thus, there is no merit in this complaint.
b)The trial judge erred in his assessment of the parties’ respective contributions under s 79(4)(a), (b) and (c), particularly by giving insufficient weight to the value of the property that the husband brought into the parties’ relationship at the commencement of cohabitation.
There is no doubt that the husband brought into the parties’ relationship property of greater value than the wife, and the trial judge identified what each had brought in in paragraphs 20 to 23 inclusive of his reasons for judgment. The husband in his oral submissions complained that the trial judge did not mention his superannuation entitlement in these paragraphs. However, it is plain from paragraph 27 of his Honour’s reasons for judgment that he was aware of the husband’s superannuation entitlement because there were records that in 1997 the husband “cashed out” his superannuation from his employment with Telstra.
The husband’s major contribution was his house property at Y which had an equity of $117,000. However, in 1999 the husband sold that property, and he says he used the proceeds of sale to purchase shares which then “fell substantially in value” and “never fully recovered”.
It is recorded by the trial judge in his reasons for judgment, that in December 1997 and November 2003 the husband’s parents gave him the equivalent of $34,114 and $81,366.96. It was also agreed that for a time the parties lived in the husband’s parent’s home at a low rent.
It is apparent from his Honour’s reasons that he took into account these contributions by the husband. His Honour, after citing what the Full Court said in Pierce & Pierce (1999) FLC 92-844, said this:
277Whilst there is no doubt that at the commencement of the relationship the husband had greater assets than the wife, and his parents made a significant direct and indirect financial contribution to the parties, I am not satisfied that that initial and family contribution should be given significant weight overall when viewed against the contribution made by the wife following the parties arrival in Australia, the husband’s election not to work and her continuing, (albeit modestly) successful efforts with the balance of [company P] high-chairs, and from her part-time employment.
278When contrasted with the husband’s contribution when arriving in Australia and commencing employment and his failure in terms of any success with [company P], combined with the absence of full and satisfactory disclosure by the husband, I am satisfied that as against the identifiable asset pool the appropriate finding is to equality of contribution.
This is quite clearly a “weight challenge” and the difficulties confronting the husband in succeeding in such a challenge are well known.
In Norbis v Norbis (1986) 161 CLR 513, Brennan J said at 539:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v Satterthwaite [1948]
1 All ER 343 at p. 345 Asquith L.J. stated the rationale of an appellate court’s approach:“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:
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.
In this case the husband has not demonstrated to us that his Honour, in assessing the respective contributions of the parties exceeded the “generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong.”
We are not persuaded that his Honour erred, and thus this complaint must also fail.
c)The trial judge did not take sufficiently into account that the wife did not make full and frank disclosure of her earnings when working in association with
Ms B.
The simple answer to this complaint is that his Honour was satisfied that the wife had disclosed her income from all sources. His Honour said this in his reasons for judgment:
362I am satisfied that the wife’s income from all sources has been included in her relevant taxation returns and otherwise accounted for.
363There is no evidence that the wife has in the past earned the amount of income that the husband suggests. Indeed the husband, as I have observed, was critical of the employment undertaken by the wife and yet extraordinarily enough is now critical of her for attempting to retrain in obtaining her nursing qualification, which will have the capacity to increase her income in the medium term.
His Honour found that the husband had “demonstrated an almost fixated view of the wife’s conduct to do with [the business] [company P]”.
This business, which had initially been operated by the husband, was ultimately transferred to the wife. Once this occurred she was able to expand the opportunities for sales through an association with Ms B. His Honour described this as follows:
264As a result of their meeting and subsequent discussions, the wife “piggy backed” [company P] and the sale of [furniture items] on
Ms [B’s] business ….265The wife and Ms [B] agreed to undertake stall and casual mall positions at shopping centres where space could be taken on a weekly basis. The wife and Ms [B] each sold their respective products and shared some expenses. Further, the wife was then able to supplement her income by undertaking work for Ms [B] as the sale of [furniture items] was slow.
266The wife invoiced Ms [B] through [company P] for her time.
His Honour also found the husband’s assertions about the wife “squirreling funds away for her sole benefit to be without foundation”.
Once again, the husband has not taken us to anything which persuades us that his Honour erred in these findings. Thus, we find that complaint to also be without merit.
d)The property settlement orders made by the trial judge were not just and equitable for the purposes of s. 79(2).
This is yet another “weight challenge”.
As is pointed out by the wife’s senior counsel, the total asset pool (excluding superannuation) found by his Honour was $720,724. His Honour concluded that there was equality of contribution by the parties, but the wife should receive a 10 per cent adjustment on account of the relevant s 75(2) factors. Accordingly, the division of property between the parties was to be on the basis of 60 per cent to the wife and 40 per cent to the husband.
The result of this division in monetary terms was the wife would retain or receive property to the value of $432,434 (less her paid legal fees of $75,522, plus her superannuation entitlements) and the husband would retain or receive property to the value of $288,289 (less his paid legal fees of $123,080, plus his superannuation entitlements).
The parties’ Australian superannuation entitlements at trial comprised $18,611 for the husband and $11,684 for the wife. With their German superannuation entitlements the evidence was that the husband’s projected retirement income would be approximately 516 Euros per month, and the wife approximately
414 Euros per month.
This result allowed the wife to have the former matrimonial home on the basis of her making a cash payment to the husband of $123,774.
As the wife’s senior counsel said, his Honour in addressing the justice and equity of the orders that he proposed was particularly concerned that the wife retain the former matrimonial home. His Honour said this:
325One of the significant issues between the parties has been the question of who will retain the former matrimonial home. The husband has, and to which I have referred above, maintained that he has some superior right to the former matrimonial home based, it would seem, on his superior initial financial contribution. I reject such an assertion.
326I have, as is evident from my remarks above, determined that the wife should retain the former matrimonial home and make a cash payment to the husband, particularly having regard to the fact that the wife will have the primary responsibility for the care of the children. The home very much represents the children’s “base” and will continue to offer them stability in the future, particularly given the instability they have had to endure in the recent past.
327Further, the wife does not presently have the capacity to rehouse herself given her limited income circumstances, whilst the husband, given the sum of money that he will receive as a result of my orders and his income circumstances does have that capacity.
Once again, it has not been made apparent to us that his Honour was plainly wrong in the exercise of his discretion in this regard. We can find no error by his Honour and this complaint must also be dismissed.
e)Having determined that the parties should have equal shared parental responsibility for the two children of the marriage, the trial judge should have proceeded to order that the children spend equal time with each parent.
At trial the parties were in dispute as to whether there should be equal shared parental responsibility or whether the wife should have sole parental responsibility.
His Honour addressed s 61DA of the Act and appropriately considered whether the presumption that equal shared parental responsibility is in the best interests of the children applied here. Specifically his Honour considered whether that presumption was rebutted, and after canvassing the relevant evidence he concluded that the presumption was not rebutted and should be applied.
As is required by s 65DAA of the Act his Honour then considered “whether the children should spend equal time or substantial and significant time with each parent.”
His Honour found that it was not in the best interests of the children that they spend equal time with the parents and, as identified by the wife’s senior counsel, his Honour’s reasons for this finding were as follows:
a)The children’s wishes as expressed to the family consultant.
b)The father’s work commitments.
c)The mother’s availability.
d)The mother’s better appreciation of the children’s needs.
e)The desirability of the children having a single home base.
The husband’s written submissions on this topic were limited. First he suggested that in what he told the family consultant “[N] is quite clear that he would agree to fully balanced care if I would stay in the house”, and secondly he suggested that “the children were in fact influenced by their mother’s determined efforts to create the impression that I will have to vacate the house.” However, the husband conveniently overlooks what his Honour accurately described as the “strong views” expressed by [N] to the family consultant. According to the family consultant those views are that [N] “wanted to spend more time with his mother but acknowledged that he had not told his father this as he indicated a belief it ‘would upset him’”. Further, the family consultant concluded as follows in his report:
27In summary, [N] indicated a preference to spend the majority of time with his mother and wanted to live with her in the family home. He emphasised that he wanted to spend time with his father and that he loved both of his parents.
As to the issue of influence, the family consultant identified that each parent has “canvassed with the children the idea of living with them”, but the wife may have done so to a greater extent than the husband. There is no justification here for the claim that the husband makes.
Next, the husband says that if there had been a “fairer distribution of assets”, and his contributions considered he would not have to work as much. Plainly this is not an answer to what his Honour was referring to, namely the husband’s work arrangements in the past and his future work commitments expressed without any knowledge of the outcome in relation to the issue of property settlement.
We observe that the husband in his written submissions and his oral submissions at the hearing of the appeal suggested that the family report was “too old”, and should have been updated, but he made no application for that to occur and he failed to cross-examine the family consultant.
Once again, we have not been taken to anything by the husband which persuades us that his Honour erred in finding that it was not in the best interests of the children for there to be equal time.
f) In determining a child support departure order, the trial judge:
i) should have brought into account the wife’s earning capacity; and
ii)should have given the husband credit for payments he is otherwise to make for the benefit of the children.
As to the issue of the wife’s earning capacity his Honour carefully and painstakingly addressed the claim by the husband in this regard, and analysed the decision of the Child Support Registrar’s delegate when this issue was raised in the context of the husband seeking a departure from the administrative assessment of child support.
His Honour concluded, correctly in our view, that the evidence did not establish that the wife’s earning capacity was as claimed by the husband, however
his Honour, again appropriately in our view, found that the wife’s income was likely to increase in the future once she had completed her nursing qualifications. Thus his Honour only fixed the wife’s adjusted taxable income amount at $15,000 until 30 June 2012, by which time the future income of the wife should be known and may then justify a reconsideration of the issue of child support.
We observe that his Honour also fixed the husband’s adjusted taxable income at $80,000 for the same period. His Honour did so despite the husband wanting it to be fixed at his base salary of $78,000, on the basis that the slightly higher figure was an appropriate one when considering a period of two years, and given the history of overtime worked by the husband.
We can find no error by the trial judge here.
As to the issue of the husband being given credit for payments that he makes for the benefit of the children, we fail to see how the trial judge is said to have erred. His Honour recorded the agreement between the parties to each pay one half of the children’s educational expenses and the fact that the husband agreed to continue to maintain the children’s private health cover. As is apparent from his Honour’s reasons he then took this into account in his determination.
Thus, again we can find no error by his Honour.
Conclusion
We have found no merit in any of the complaints of the husband and thus the appeal must be dismissed.
Costs
At the conclusion of the hearing we received submissions on the question of costs.
If the appeal is dismissed, as we propose to do, the wife’s senior counsel submitted that there should be an order for costs in favour of the wife. The circumstances said to justify such an order are that not only was the appeal unsuccessful, but that from its inception it had no prospects of success; there were no proper grounds of appeal, and the summary of argument was inadequate and unhelpful.
The amount sought by the wife for costs was $17,600, comprising $12,000 for counsel fees plus GST and $4,000 for solicitor fees plus GST.
This application for costs was opposed by the husband.
We do not have any difficulty in making an order for costs for the reasons relied upon by the wife’s senior counsel, but we do have concerns about the amount of the costs sought.
It is readily apparent that those costs and particularly the counsel fees are not calculated on the family law scale for party/party costs, and no attempt was made to justify the costs being calculated on an indemnity basis. Further, it is not apparent to us on what basis it was necessary for senior counsel to be instructed to appear for the wife on this appeal.
In the end result the wife’s senior counsel indicated that he would leave the amount of costs to be ordered up to us, preferring there be an amount specified rather than sending the matter to taxation or assessment.
In all the circumstances, and taking into account the respective financial positions of the parties we propose to fix the costs to be paid at $5,000.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Strickland JJ) delivered on 14 October 2011.
Legal Associate:
Date: 14 October 2011
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