Lock & James

FAMILY COURT OF AUSTRALIA

LOCK & JAMES

[2007] FamCA 366

FAMILY LAW – APPEAL AGAINST DECISION OF FEDERAL MAGISTRATE – PROPERTY SETTLEMENT – Section 79 factors - Alteration of property interests – Substantial contribution by the husband from damages claim – Assessment of contributions – Section 75(2) factors – Appeal dismissed

FAMILY LAW – APPEAL – CHILDREN - Parenting orders – Best interests of the children - With whom a child spends time - Appeal allowed – Rehearing ordered

COSTS – Certificate – Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parenting) Act 2006 (Cth)

AMS v AIF (1999) FLC 92-852
Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Bremner and Bremner (1995) FLC 92-560
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Money and Money (1994) FLC 92-485
Norbis v Norbis (1986) 161 CLR 513
Pierce and Pierce (199) FLC 92-844

APPELLANT:

LOCK

RESPONDENT:

JAMES

FILE NUMBER:

BRM

16451

2004

APPEAL NUMBER:

2006

DATE DELIVERED:	27 April 2007
PLACE DELIVERED:	Brisbane

JUDGMENT OF:

May J

HEARING DATE:

5 May 2006

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 November 2005

LOWER COURT MNC:

[2005] FMCAfam 704

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Duane

SOLICITOR FOR THE APPELLANT:

Trenches Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Hogan

SOLICITOR FOR THE RESPONDENT:

Belinda Eyers Solicitors

Orders

(1)That the appeal in relation to parenting orders made on 30 November 2005 in the Federal Magistrates Court be allowed and paragraph 5(b) of the order made 30 November, 2005 be set aside.
(2)That the husband’s application for parenting orders be reheard.
(3)That the husband’s appeal in relation to paragraphs (24), (25) and (26) of the orders made on 30 November 2005 in the Federal Magistrates Court be dismissed.
(4)That the Court grants to the husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the husband in respect of the costs incurred by the appellant in relation to the appeal against the parenting orders.
(5)That the Court grants to the wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife in respect of the costs incurred by the respondent in relation to the appeal against the parenting orders.
(6)That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the husband and wife in relation to the rehearing of the application.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 8 of 2006
File Number: BRM 16451 of 2004

LOCK

Appellant

And

JAMES

Respondent

REASONS FOR JUDGMENT

Introduction

An appeal was filed on 20 December 2005 by the husband from orders made on 30 November 2005 by Federal Magistrate Coakes in relation to competing applications for parenting orders and property settlement. The amended Notice of Appeal was filed by the husband on 24 February 2005. The respondent wife in her submissions seeks that the husband’s appeal be dismissed.
I mention at this introductory stage that this appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under section 94AAA(3) of the Family Law Act 1975 (“the Act”). This matter was decided by the Federal Magistrate prior to the introduction of the Family Law Amendment (Shared Parenting) Act 2006 commencing on 1 July 2006; consequently, that legislation does not apply to the appeal but would if the appeal is allowed.
The parenting proceedings concerned the parties’ two children, a daughter born in April 1996, and a son, born in July 1998. The trial Judge made orders that the children live with the wife and that the husband have defined contact with the children. Both parties share the responsibility for the long-term care, welfare and development of the children.
His Honour found the parties’ property, which has a total value of $378,948 should be divided as to 62.5 per cent to the wife and 37.5 per cent to the husband. It was ordered that the wife pay to the husband the sum of $142,500 in return for the transfer to her of the former matrimonial home, located rurally. In the event that the wife did not comply with that order, the alternate order required the sale of the matrimonial home and the subsequent distribution of the proceeds of such a sale between the parties.
The husband’s appeal in respect of the trial Judge’s orders falls into two distinct categories. The first deals with children’s issues and the second in relation to the orders made by the trial Judge with respect to the property settlement. It seems appropriate to deal with the parenting and property issues separately.
On 2 March 2006 in the Federal Magistrates Court, a stay of order 5(b) of the orders made 30 November 2005 was granted along with a partial stay in relation to the property orders on certain terms which provided for the husband to vacate the former matrimonial home on or before 12 noon on 20 March 2006 and the wife to have exclusive occupancy thereafter with the wife to pay $142,000 and the husband able to use $10,000 of that sum towards relocation costs.

Grounds of Appeal

The husband was granted leave to rely on further amended grounds of appeal; the Notice of Appeal was filed on 24 February 2006.
Those grounds are as follows:
Children’s Issues
1.   That the Court erred at law in the exercise of its discretion in that it materially acted upon an error of fact namely as to what contact was occurring as at the date of hearing and had occurred since April 2005 or failed to take into account the children’s contact and the effect of a reduction of contact.
2.   The Court erred at law in failing to give any or sufficient reasons for the reduction of the husband’s contact with the children.
3.   That the Court erred in failing to adequately or at all explain the procedure to a self represented person insofar as what documents the Court read and had regard to.
Property Issues
4.   That the Court erred at law in arriving at a result which was plainly wrong and no reasonable exercise of discretion.
5.   That the Court erred at law in the approach taken to the consideration of the husband’s earnings and earning capacity and health.
6.   That the Court erred at law in failing to give reasons for not following established authority in connection with the determination of the husband’s earnings and earning capacity.
7.   That the Court erred at law in the exercise of its discretion in the way in which it apparently took into account the attachment of the children to the home, the wife’s capacity to pay the husband a sum of money and an order restricting the wife’s freedom of movement.
Having had the opportunity to clarify the position with counsel for the husband at the hearing of the appeal, I understand the husband does not wish to pursue grounds 3, 5 and 6, which were abandoned by counsel for the husband in his oral submissions.
The husband’s appeal is from the following orders made by the trial Judge on 30 November 2005:

Parenting Orders:

(5)That the Father have contact with the Children at all reasonable times as agreed between the parties in writing, including but not limited to:
(a)Each alternate weekend during school terms from after school on Fridays until commencement of school on Monday mornings, extended to Tuesday if the Monday is a public holiday or pupil free day, but in the event either of the Children are engaging in Little Athletics, soccer or dancing or such other activity as may be consented to by the Father, hereinafter called extracurricular activities that fall on a Friday or on a Saturday, then contact will be suspended during such activities and the Mother shall collect the Child or Children 30 minutes prior to the earliest activity and deliver the Child or Children 30 minutes after the latest activity commencing on Friday 9 December 2005;
(b)Each alternate Thursday during school terms from after school until commencement of school Friday and commencing on Thursday 1 December 2005;

Property Orders:

(24)The wife pay to the husband the sum of $142,500 within 60 days of today.
(25)Simultaneously with such payment, the husband transfer to the wife all his right, title and interest in and to the [former matrimonial] home….
(26)If the wife does not comply with the previous order, then both parties do all acts and things and sign all necessary documents to enable the former matrimonial home to be sold with the net proceeds, after payment of agent's commission and legal costs to be divided between the parties in the proportions of 37.5 per cent to the husband and the balance to the wife.

It is necessary to add paragraph (20) to appreciate the appellant’s argument: -
(20)The mother is restrained from changing the place of residence of the children from [the former matrimonial home] in the State of New South Wales for a period of three years, unless with the consent in writing of the father.
In essence the husband’s grounds of appeal in relation to the contact orders complain that the Court erred in the reasonable exercise of its discretion and that the Court acted upon a factual error or failed to take into account the children’s contact with their father at the time of the trial. Further, that the Court failed to provide sufficient reasons for the reduction of his contact with the children.
In relation to the property issues, the grounds of appeal complain of an error in the exercise of discretion leading to a result that was “plainly wrong”. Counsel for the husband argued that the Court took into account irrelevant or extraneous matters being the attachment of the children to the home, the wife’s capacity to pay and an order in relation to the wife not changing the children’s place of residence from the home.

Background

The parties commenced cohabitation in 1991 and were married on 22 May 1995. There were brief periods of separation during this time until the parties finally separated in 1999. A decree nisi of dissolution of marriage became absolute on 23 May 2002.
The husband is 40 years of age and the wife 33. The husband is self employed, and works as a handyman. The wife is a casual cook and was employed in a business conducted by her mother and father at the time of the trial.
There are two children of the marriage, a daughter, born in April 1996, and a son, born in July 1998.
The parties occupied various residences during the course of their relationship between Sydney and the North Coast of New South Wales, including extended periods of cohabitation with the maternal grandmother.
On the 28 July 1992, the husband suffered injuries in a motor vehicle accident. As a result of a claim for damages he received net of expenses $320,000 in late 1997.
In 1997, the parties holidayed in Israel for seven months. Following their return to Australia the parties resided with the maternal grandmother, briefly, until the matrimonial home was purchased in 1998 at a purchase price of $165,000. The whole of the purchase price, stamp duty, conveyancing costs and other attendant expenses related to the acquisition of the property were paid from the monies received from the claim for damages by the husband. The trial Judge in his reasons for judgment explained at some length the residential history of both parties following separation.
The background relevant to the parenting proceedings was set out by his Honour as follows:
“28. In summary, the children have lived predominantly with the mother since separation in 1999 and for varying periods have spent different periods of time living with their father, and whilst there is a dispute on the evidence which was explored during the course of the hearing, I am satisfied that between 1999 and 2003 there was in effect a shared parenting arrangement with the children spending time with their father for at least half of one weekend and for the whole of or the majority of the alternate weekends. There was a period when the father went overseas to Israel, to which I have referred.
29.The contact arrangements changed in January of 2004. It seems that the father did not have contact until mid May of 2004 when orders came into being. It seems on the evidence before me that the parents have been able to arrange suitable contact arrangements until a more bitter separation occurred in January of 2004. There was a dispute on the evidence as to the period when the father did not have contact in early 2004 and the reason for it.
30. I am satisfied on the balance of probabilities that the father did not have contact with the children until about mid May of 2004 and that following those events the father has had regular contact pursuant to various orders to which I will refer in a moment.
31. The parents both seem to say that contact has occurred regularly and in accordance with the orders. There has been very little flexibility as to contact, other than in accordance with the orders. There was a dispute concerning arrangements for contact in the July school holidays of this year and in respect of which there were no orders.”

The Trial Judge’s Judgment

In his Honour’s reasons for judgment he described the issues:
“44. Turning then to the issues it seems to me these are:
(1)whether the children should continue to reside predominantly with the mother or reside with the father as the father seeks;
(2)whether a shared care arrangement as proposed by the father is appropriate.
45The father during the course of the case said that if the children were to be living predominantly with their mother then it would be his proposal that in addition to the alternate weekend contact, which the children currently have with him, that he would also seek contact each Tuesday night, overnight, and then back to school Wednesday morning, and each Thursday night, overnight, then back to school Friday morning.”
46.As part of the second issue I need to consider also the appropriateness of the respective applications.
(3)The third issue is the effect upon the children if the present arrangements are changed;
(4)The fourth issue relates to the significance of the cultural differences between the mother and the father, given the father's Hebrew faith and his observance of the faith and the mother not being Hebrew or Jewish or following that faith and the children not being Jewish;
(5)whether either parent uses marijuana and the effect, if any, upon each of their respective parenting ability;
(6)communication between the parents and how that might be improved and the effect of poor communication upon the children;
(7)whether either parent physically disciplines the children and if so whether that represents, a continuing risk to the children;
(8)the father's proposal in relation to accommodation of the children if the mother returns to the home and the father's proposals generally in relation to property, which would preclude the sale of the matrimonial home, under his proposals for some time;
(9)an appropriate division of property between the parents, and in particular the s.75(2) factors.

Children’s Issues

The trial Judge, having set out in broad terms the nature of the evidence before him and the background including orders made identified the matters in dispute affecting the children.
The reasons contained extensive findings regarding the factual disputes between the parties in relation to residence and contact arrangements.

The Family Report

The Family Report dated 1 March 2005 was prepared by Ms B, a Court counsellor and psychologist. His Honour made reference to the contents of that document and her oral evidence. The trial Judge said in relation to her evidence:
120. Mrs [B] expresses the view that the ongoing overtly expressed parental conflict is impacting negatively on the children, raising anxiety and lessening their respect of their parents. I accept that view and I am hopeful that the orders I propose to make at the conclusion of this part of the case will assist the parents to have a better understanding of the necessity for them not to have disputes about their children, and for the children to be able to move freely between two households.
121. The course of a trial like this involves the parents being put under a microscope. The family report is of course a report about their parenting ability. Neither parent seriously challenged the content of the report nor the conclusions drawn by Mrs [B] during that report, or during parts of that report, nor the recommendations she made at the end of the day. True to say that the father does not necessarily accept her recommendation, but her evidence was not seriously challenged by the father.
…
126. Mrs [B] dealt comprehensively with the children's perception of their parents in paragraphs 28 to 36 inclusively of the report. I take into account in particular the observations made by Mrs [B] in those paragraphs and the conclusions that she draws. In paragraphs 39 to 47 Mrs [B] carries out an assessment, and I take into account each of those paragraphs in particular and the conclusions which Mrs [B] drew and which I accept. In particular, I accept Mrs [B]'s opinion that the mother demonstrates little respect for the father to the children, as illustrated by occasional use of the father's first name, albeit abbreviated, and the manner in which the mother ultimately conceded I think she behaves and would prefer not to behave when she exhibits anger following her seeing the children upset or quiet or disturbed following periods of contact and which she attributes to the father.
…
128. I accept Mrs [B]’s observation that there are significant lifestyle and parenting differences between the parents. The father is more authoritative and the mother is more laissez faire and reactive, and I note that in Mrs [B]’s opinion the differences and discipline have either lessened over time or been exaggerated in the first place.
…
132. In paragraphs 48 and 49 Mrs [B] makes recommendations essentially that the present weekend contact arrangement with the father that is from Friday after school until Monday on alternate weekends and on Thursday after school into Friday on the intervening weeks and with half holidays. And whilst Mrs [B] recommends or suggests alternate Christmas Days and appropriate special days the father frankly gave evidence that he does not wish to have contact over the Christmas period, which includes Christmas Eve, Christmas Day, Boxing Day and nor New Year's Eve. His wish however, and the mother does not oppose this, is that he have contact on particular Hebrew festivals, the particulars which I will refer to later in these reasons.
The trial Judge also referred to Ms [B] oral evidence including that she felt that the number of contact periods proposed by the father were too many and she was concerned that they were likely to result in difficulties for the children. Ms [B] also felt it was preferable to reduce the frequency of changeovers, even if that required longer periods of residence with the husband in between those times. However at paragraph 140 of the judgment the trial Judge said:
“140.Mrs [B] concluded that the parents would continue to parent in a parallel fashion and that longer periods of time with the father could be difficult and counter-productive, especially as the children grew older. Against that Mrs [B] expressed the view that the father was a good parent toward the children, but that even so shared parenting was not appropriate.”

It was also recorded that Ms [B] thought it would be of benefit to the children to maintain the practices related to their cultural heritage in the husband’s home.
His Honour identified the relevant s 68F(2) factors making the following findings:

Ultimately, I conclude that little weight can be attached to their wishes, both in relation to [the children].
… the children enjoy time they spend with each of their parents.
…the children’s most significant relationship is with their mother. The mother has been the children’s principal carer for the whole of their lives. On the balance of probabilities that relationship involves a very close attachment and emotional dependency, but I find equally on the evidence that it is an insecure attachment that to the extent of the children’s relationship with their father it has the potential to be damaging.
The children also have, I find on the evidence, a very strong relationship with their father. …The children have spent very considerable periods of time with their father post separation, and it was really not until 2004 that substantial difficulties occurred.
The father is devoted to his children and it is appropriate that the relationship between he and them be fostered and to be able to continue as best it can.
…I find on the evidence that shared parenting is not a viable alternative and for these reasons. The parties have very limited capacity to communicate successfully about their children. The parents have different styles of parenting. The children have not experienced a shared living arrangement which the parties have demonstrated they can implement without affecting the children adversely. The mother is suspicious of the father's style of parenting and what goes on in the father's home which leads to the children being questioned. In my view, there is little likelihood that the parents would be able to reach a reasonable compromise concerning matters about which they disagree, as … The mother, in some respects does not respect the father as a parent. I am not confident that the parents would be able to address on a continuing basis the practical considerations that arise when children live in two homes. Overall, I conclude that there are too many factors which would prevent a shared parenting regime being successful.
I am satisfied on the evidence before me that both parents can provide the physical needs of the children and their emotional and intellectual needs. I am satisfied also on the evidence, in the context of physical needs, that the father would provide appropriate accommodation during any periods of contact.
…Here I take into account in particular the father's place of birth, the fact that he is Jewish, that he is Hebrew and supports the culture which goes with the Hebrew faith. … There is no evidence before me at all that it is to the detriment of the children that they should continue to benefit from the father's instruction in such faith and the observations which they make concerning his observation of the tenets of that faith.
…I am satisfied on the evidence that the father will not be physically abusive to the children. I am satisfied that the father does not represent a physical danger to the children. Equally, I am satisfied that the mother does not represent a physical danger to the children in the sense of physical abuse.
Against that there is the risk of conflict between the parents offering or leaving the children with the risk of psychological harm.
The consequence of that risk for them it seems to me is that their self confidence will be diminished and their self esteem could be adversely affected,…
… neither parent recognises the risk of their harmful relationship which presents to the children.
…He has not paid any child support. …

His Honour was satisfied that between 1999 and 2003 there was effectively a shared parenting arrangement. This changed in January 2004 when a “more bitter separation” occurred. As a result, the husband did not have contact with the children until mid May of that year when orders were made. Following those orders and subsequent directions from the Court the husband has had regular contact with the children. Both parties maintain that the contact arrangements have been in accordance with various orders, except for a dispute of arrangements in the 2005 July school holidays, for which there were no orders.
The trial Judge concluded that the children should reside with the wife, having done so predominately since that start of 2004. His Honour concluded that there was “no compelling evidence before me to warrant a change in the present arrangements”. His Honour also found that there was little prospect of achieving a successful outcome through a shared parenting arrangement.

Property Issues

At the outset the trial Judge described the approach taken to deciding proceedings for property settlement. The trial Judge noted at an early stage in the judgment that the husband, who was self-represented at the time of the trial presented material that was “…woefully inadequate…” and caused some difficulty for his Honour. Despite this, the trial Judge was satisfied that the husband’s lack of representation and affidavit evidence “did not prejudice him in the case that he ultimately presented”. (para 54) The trial Judge also observed that “much of the background and the financial history of the parties was not in dispute in these proceedings”. (para 194)
The husband asked that the matrimonial home should be retained as the family home for the children and this was reflected in the orders that he ultimately sought. The husband placed particular emphasis on the compensation monies received by him and used for the purchase and management of the house.
The identity and value of the assets was not controversial. They were as follows:
Home   $380,000
Wife’s bank account   572
Wife’s motor vehicle   8,350
Wife’s furniture   1,000
Husband’s motor vehicle   2,000
Husband’s furniture   500
Husband bank accounts   500
Total as calculated by Federal Magistrate = $392,877
Less liabilities:
Rates  $1,504
Wife’s visa card  5,120
Wife’s debt to [bank]  955
Wife’s debt to [bank]  5,274
Total  $12,853
The trial Judge added to the liabilities the wife’s legal fees in the sum of $3,624 to reduce the value of the property to $376,400. Various other adjustments were made about which there is no complaint. The figure the Federal Magistrate used was $378,948 which did not include the wife’s costs.
The trial Judge also noted the wife’s position, namely that the children would like to return to the matrimonial home but not in the presence of the husband, who was referred to in the wife’s evidence as being controlling and restrictive and that the children are somewhat afraid of their father.
The husband had the benefit of living in the house since separation. It was an important part of his case that he had not been in paid employment from November 1992 until not long before the hearing, and that until the receipt of the lump sum he was paid benefits, being compensation related to the accident. During that time the wife worked part time.
The trial judge referred to the contributions made by the parties and the essential issues between them, the first relating to the impact of the accident compensation received by the husband, and the offsetting contribution, as asserted by the wife, toward that gain in relation to the care she provided to the husband at that time and her role as homemaker and parent.
After a lengthy consideration of the facts, the trial Judge said of the parties competing claims:
“200.Another facet of the mother's case is that she supported the father very extensively in relation to his claim, both in its conduct and the necessity to obtain medical evidence, accompanying the father to doctors and lawyers and the like.
201.The father gives a different version and said that he could have attended independently of the mother but that quite often she did come along and that usually he took her, as opposed to the mother's assertion that she took him. At the end of the day I am not able to find on the mother's evidence that she gave the father the support which she asserts to such an extent that it amounts to a significant contribution in her case to the property.
…
219.I find on the evidence that the mother has made a substantial contribution as a homemaker and a parent. I find that the parties were able to benefit from accommodation following their move to [Northern New South Wales], made available by the mother's mother. Against that, and whilst the mother asserts rent was not paid, I am satisfied on the evidence that the parties made a contribution towards the cost of occupying that property, and to that extent the benefit made available by the maternal grandmother is diluted.
220.I am satisfied also that the father carried out, in return for that occupation, some occasional work from time to time. I am satisfied that the mother made the greater contribution as a homemaker during the course of the relationship with some assistance from the father. I am satisfied that after separation the mother has remained the substantial carer of the children.
…
222.But at the end of the day I am of the view that the offsetting contributions made by the wife since the injury and in all the various ways that I am required to take them into account under the Act, and including the contributions that she made after separation to the care of the children and without financial support from the father, and whilst the father occupied the matrimonial home for a considerable period, offset or perhaps dilute or erode the initial contribution made to the present property by the father, and when I have regard to the other factors such as the contributions made by the wife to the welfare of the children since separation, they significantly outweigh the contributions made by the father.
223.I take into account in coming to that conclusion the extent of time the children have spent with their father and his not inconsiderable contribution as a parent prior to and since separation for varying periods. I take into account also the father having occupied the home. I take into account that the mother has enjoyed a financial resource in the form of her mother providing her with accommodation. I take into account also the assistance given by the maternal grandmother and to the mother from time to time.
…
225.At the end of the day I am of the view that on balance the only fair result that the Court can possibly reach in relation to the general issue of contribution is that contributions to the time of hearing are equal. It was urged upon me by counsel for the mother, that the percentage in favour of the mother should be more than 50 per cent. I do not accept that submission.”
His Honour then turned to examine the most significant of the section 75(2) factors as identified by him in adjusting the division. Neither party has superannuation. After observing that there was no evidence that the husband has health difficulties the Federal Magistrate referred to the evidence that he had been employed in casual work and found:
“231.I am satisfied on the father's evidence that he has the capacity and the ability to be gainfully employed. I am satisfied on the evidence before me that he has recovered from the injuries he received in the motorcycle accident to such an extent that he is not disabled or inhibited in obtaining employment. I gain the impression from the father's evidence and what I perceive to be his reluctance to produce more recent financial records, that he is reluctant to disclose the true extent of moneys that he has earned and consequently his ability to continue to earn.
232Equally, the mother has a capacity to work and an ability. Her mother gives evidence that she is able to offer the mother full-time employment in the mother's family business. The mother says that she proposes to take up employment in that position of four days a week inside school hours, but in any event her potential earnings from that employment are modest and probably will result in the majority of her present social security or Centrelink benefit being cancelled except for family assistance.

…
235.…If I ignore the wife's government benefits it is clear that her earnings thus far are modest and in my view would continue to be modest. It does not seem to me on the evidence that she has any particular skills which would enable her to earn a higher income than that which is presently available to her.
236.So far as the father is concerned I am satisfied that he is able to earn income well sufficient to support himself and well sufficient for him to make a contributions towards child support, but it seems more likely than not that the father will continue to engage in casual employment which may not require him, or at least he would take the view that he could avoid disclosing the full extent of his income, sufficient for a child support assessment to be put into place.”

After referring to other factors the trial Judge then considered the parties standard of living and under this heading the wife’s desire to live with the children at the former matrimonial home. He said:
“241.I propose to enable that to occur. The father will be required to vacate the home. Presently he does not have accommodation which is reasonable to which he can go but I am satisfied that his skills will enable him over a period of time to adapt the shed on his friend's property, which he described in his evidence, and that otherwise he would rent accommodation to have contact with the children in the area in which the children are residing, or at least not so far away that travelling is prohibitive, and that he would otherwise be able to earn sufficient moneys to pay rent.”
In conclusion:
“246.My conclusion is this. Having regard to all the evidence before me I conclude that the most significant of the s.75(2) factors are the following:
(1) the children will reside predominantly with the wife;
(2)the children will be able to reside with the wife in the former matrimonial home subject to the wife paying the father some moneys;
(3)the father has an earning capacity which is underutilised, the wife also has an earning capacity;
(4) the father has not provided proper child support;
(5)the wife strongly desires to return to the former matrimonial home and last but by no means least there is no evidence before me that the father is disabled from working.
The trial Judge made an adjustment of 12.5 per cent to reflect the identified factors under section 75(2), and ordered the division of assets 62.5 per cent to the wife and 37.5 per cent to the husband. This division was said by his Honour to be achieved through the transfer of title of the matrimonial house to the wife in exchange for a lump sum payment of $142,500 by the wife to the husband within 60 days. The alternative arrangement proposed by his Honour was the sale of the matrimonial home and the distribution to the effect of 37.5 per cent to the husband and the remainder to the wife. The reasons contained in paragraph 249 as follows are significant:
“249.I have reached the above conclusion because of the necessity in my view for the children to occupy the former matrimonial home, which both the mother and the father have recognised is important for the children. I take into account also that the mother will consent to an order that she not be permitted to change the children's place of residence from that home for a period of three years. The wife needs a significant share of the realisable assets. The wife does not have the same degree of mobility as the father and the father does not need a significant share of the realisable assets.”

Grounds Relating to Parenting Orders

Ground 1

That the Court erred at law in the exercise of its discretion in that it materially acted upon an error of fact namely as to what contact was occurring as at the date of hearing and had occurred since April 2005 or failed to take into account the children’s contact and the effect of a reduction of contact.

Ground 2

The Court erred at law in failing to give any or sufficient reasons for the reduction of the husband’s contact with the children.

His Honour accurately recorded the pertinent sections of the Act (as they then were) relating to parenting issues in his reasons for judgment:
“47.As to the relevant law and first considering parenting, parenting orders arise in proceedings under Pt VII of the Family Law Act. They are subject to s.65E of the Act, that in determining the outcome it is the best interests of the children which are the paramount consideration, and that always is the overriding principle.
48.The objects of Pt VII are set out in s.60B and are designed to ensure that children receive adequate and proper parenting, to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.
49.Section 60B also provides that except when it is or would be contrary to a child's best interests there are four principles underlying the objects of Pt VII. These principles are:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development;
c)parents share duties and responsibilities concerning the care, welfare and development of their children;
d)parents should agree about the future parenting of their children.”

Submissions of the Husband

The parenting orders sought by the husband in the Amended Notice of Appeal were:
1.That the children, [a daughter] born … April 1996 and [a son] born … July 1998 reside with the father as follows:-
aEach alternate week from after school Wednesday to before school Monday;
bEach other week from after school Wednesday to before school Friday;
c.For one half of all school holidays, alternating between the first and second half of each year, including Jewish festivals.
2.That the children reside with the mother at all other times.
During the course of the appeal, counsel for the husband submitted a minute of a draft proposed order relating to parenting. This was intended to put into “concrete terms” the exact nature of the orders sought. It contained the following provisions:
1.That the appeal be allowed.
2.That the order 5(b) of the orders made on 30 November 2005 be discharged and in its place the following order substituted:
That the husband have contact each Tuesday from after school until Wednesday before school during school term.
It is submitted by the husband that Coakes FM was mistaken about what the contact arrangements were at the time of the trial. In interim orders made by consent in the Federal Magistrates Court on 4 April 2005, midweek contact by the husband to the children was ordered as follows:
“2.1During school term each Tuesday after school until Wednesday before school commencing on Tuesday 5 April 2005 and commencing for Term 2 on Tuesday 3 May 2005.
The trial Judge correctly recorded and set out the terms of the 4 April 2005 orders in his judgment. However, his Honour referred to the recommendations of the Family Report writer, Mrs [B], in the Family Report as being the current arrangement at the time of the trial. His Honour said at paragraph 132:
“132.In paragraphs 48 and 49 Mrs [B] makes recommendations essentially that the present weekend contact arrangements with the father that is from Friday after school until Monday on alternate weekends and on Thursday after school into Friday on the intervening weekends with half holidays.”

The family report was dated 1 March, 2005. His Honour failed to appreciate that the contact arrangement outlined in the orders made 4 April 2005 was in fact the arrangement at the time of the trial not those as recommended by Mrs [B]. It is argued that although the trial Judge had correctly recorded the orders of 4 Apri1 2005 in one part of his judgment, his analysis relied upon the recommendations of Mrs [B], this is apparent because at paragraph 171 he said: “At the end of the day there is no compelling evidence before me to warrant a change in the present arrangements.”
Counsel for the husband argued that this apparent misapprehension amounted to a mistake of fact or a failure to consider what the contact arrangements had been in the months prior to the trial.
It was further submitted that if the Full Court found there was an error in relation to this ground then the Court could either re-exercise its discretion or that the matter be remitted to the trial Judge who heard the matter originally.

Submissions of the Wife

Counsel for the wife submitted that his Honour was well aware of the history of the orders and the existing regime of contact at the time of trial, which was clearly set out at paragraph 35 of the judgment:
“35.Those orders remained in place until 4 April 2005 when the matter came before the Federal Magistrates Court again […]. Orders were made by consent on an interim basis, that the father have contact during school term each Tuesday from after school until Wednesday from 5 April 2005, and during school term each alternate weekend, from after school Friday until before school on Monday as from 29 April 2005 and for a block period on 18 April 2005 until 26 April 2005 and for a block period during the April school holidays.”
It was argued that there was no error of fact in relation to the history of contact between the children and the husband. Furthermore, counsel for the respondent submitted that the trial Judge made a number of findings of fact about the parenting styles of each of the parties and the viability of a shared parenting regime. His Honour said at paragraph 151 of the judgment:
“151.The father proposes, in effect, a shared parenting regime. I find on the evidence that shared parenting is not a viable alternative and for these reasons. The parties have very limited capacity to communicate successfully about their children. The parents have different styles of parenting. The children have not experienced a shared living arrangement which the parties have demonstrated they can implement without affecting adversely. …”
Counsel for the wife argued that such findings were pertinent in the consideration of the contact regime and provide a discernable basis for the orders made by the trial Judge. Furthermore, it was submitted that his Honour was cognisant of the intended change to the arrangements at paragraph 152 where he refers to the current arrangement whereby the wife asked that: “…the children have less time with their father.”
Consequently, it was submitted that his Honour found that the contact orders ultimately imposed upon the parties were those which he, in the exercise of his broad discretion, considering all the evidence, seeing the parties and hearing evidence from the Family Report writer, considered in the best interests of the children.
With respect to the statement “There is no compelling evidence before me to warrant a change in the present arrangements,” counsel for the wife submitted that this statement must be considered in context with the remainder of the paragraph. It was argued that his Honour was actually referring to the possibility of the children residing with the husband, and not the details of the husband’s contact time. The trial Judge said:
171.“... the children have lived predominantly with the mother. The children have seen much of their father since then, but at the end of the day there is no compelling evidence before me to warrant a change in the present arrangements. It is not a case where shared parenting is appropriate and I propose to order that the children reside with their mother and have contact with their father.
172.The father will no doubt be bitterly disappointed with my decision, but I would ask him to accept that his relationship with the children is not affected by the orders I propose to make. I propose to make orders that the father have continuing regular contact with the children. His relationship with them should not change.”
It was argued that those paragraphs suggest his Honour had found nothing to compel him to make a decision that the children should reside with the husband. His Honour made it clear that he intended to make orders that promoted regular contact to ensure the children’s relationship with the husband would not change.
His Honour concluded at paragraph 171:
“171.The parents have been separated for a long time. Their first separation, in a physical sense was in September of 1999 and that was the substantive separation. It was a period when the father lived beneath the same home and had a close involvement with the children. It is now six years since their final separation. Since then the children have lived predominantly with the mother. The children have seen much of their father since then, but at the end of the day there is no compelling evidence before me to warrant a change in the present arrangements. It is not a case where shared parenting is appropriate and I propose to order that the children reside with their mother and have contact with their father.”

Conclusion in relation to Children’s Orders

The husband is simply seeking that his previous mid week contact be restored. It is apparent that when discussing the opinion of Ms [B] and considering the matter, his Honour overlooked the pattern of contact at that time. Certainly there are no reasons provided for that order not continuing other than a reference to the evidence of Ms [B] that frequent contact between the parties was undesirable. The impression given in the reasons of his Honour was that he was not interfering with the time the husband was having with the children (see paragraph 172).
It is necessary in these circumstances for the appeal in relation to paragraph 5(b) be allowed. In the absence of consent by the parties it is not possible to simply restore the previous consent interim order.
If the parties are unable to agree in relation to contact then unfortunately there must be a rehearing for two reasons. First, there have no doubt been events which are relevant and have occurred since November 2005 which ought to be considered. Secondly, the legislation has been radically amended since November 2005 and different principles apply. Evidence is needed directed to those considerations.
As the husband is only asking for a variation in relation to mid week contact it is appropriate to set aside only order 5(b), there is no cross appeal by the wife. It would be expected that the husband would have some mid week contact, even in terms of the current order until the parties were able to resolve the dispute themselves or there is a re-hearing.
In the limited circumstances of this issue it may be appropriate for the same Federal Magistrate to hear an application about the time the husband is to spend with the children mid week during school term however, I will leave that entirely to him and the parties. It may be that on a rehearing the husband or the wife will seek different orders entirely about all the arrangements for the children.

Grounds Relating To Property Orders

Ground 4

That the Court erred at law in arriving at a result which was plainly wrong and no reasonable exercise of discretion.

Ground 7

That the Court erred at law in the exercise of its discretion in the way in which it apparently took into account the attachment of the children to the home, the wife’s capacity to pay the husband a sum of money and an order restricting the wife’s freedom of movement.

Submissions for the Husband

The property orders sought by the husband in the amended Notice of Appeal are as follows:
1. That the former matrimonial home be sold and the net sale proceeds be divided:
a.60% to the husband;
b.40% to the wife.
2. That the parties otherwise retail all assets and property in their possession or control.
As with the parenting orders, counsel for the appellant submitted a minute of a draft proposed order relating to property, should the appeal be successful. The provisions of this minute are set out below:
1.That the appeal be allowed in relation to the property.
2.  That the wife pay to the husband by way of further property settlement the sum of $85,500 on or before …
3.      That the husband pay to the wife an amount of $40,000 by way of lump sum child support contemporaneously with the payment in order 2.
4.      That the sum in order 3 is to be credited towards:
a)payment in discharge of any arrears of child support; and
b)payment towards any future periodic liability to pay child support.
5.      Otherwise than as provided here the orders made 30 November 2005 and 2 March 2006 be confirmed.
Counsel for the husband argued that the orders made by the trial Judge erred in two ways. First, they gave too much weight to the various contributions of the respondent and not enough weight to those of the husband. The second assertion was that his Honour erred in principle by referring to initial contribution cases in his assessment of the property, in particular, the husband’s financial contribution.
The uncontested facts are that the husband received net $320,000 compensation in late 1997, only two years prior to final separation. Those funds were used to:
(a)Fund a 7 month overseas holiday to Israel and Thailand for the family;
(b)Purchase in joint names unencumbered the former matrimonial home including stamp duty, real estate and legal costs for $180,000. This property is now valued at $380,000 (AB517-532) and the only substantial asset of the parties; and
(c)Purchase a motor vehicle;
(d)Meet in part the families living expenses which had been met up to the payment of the lump sum by weekly compensation payments.
Counsel for the husband submitted that the only real property available for the parties to divide had been wholly acquired by the contribution by the husband and consequently was deserving of a significant finding in his favour on contributions. A finding of equal contribution between the parties was “plainly wrong”.
It was argued that the trial Judge should have determined that the contribution range was between 55 percent and 75 percent in favour of the husband. Furthermore, counsel for the husband submitted that his Honour erred in making a “substantial adjustment” to the contributions based on section 75(2) factors. It was argued that an adjustment of between 5 per cent and 15 per cent would have been more appropriate. It was argued that the overall result ought to have favoured the appellant 60/40, and the result which favoured the respondent 62.5 per cent to 37.5 per cent fell outside the range and was plainly wrong.
Counsel for the husband further argued that reference by the trial Judge to “initial contribution” cases suggested an error in fact or reasoning. At paragraph 218 of his judgment, his Honour referred to Money and Money (1994) FLC 92-485, Bremner and Bremner (1995) FLC 92-560 and Pierce v Pierce (1999) FLC 92-844. These cases all concern the assessment of initial contributions or at least where funds or property held by one party at the commencement of cohabitation were greatly in excess of the other.
It is submitted that the husband’s substantial monetary contribution was made in late 1997 a mere two years prior to the final separation. Thus it was asserted that the husband’s contribution could not be classified as an initial contribution. Counsel for the husband submitted that a more accurate approach to assessment of contributions was made in Pierce v Pierce (supra). Although this case was not alike in fact, it was submitted that when looking at contributions the Court would be entitled to place some fairly significant weight on financial contributions, when they were made and what they were used for. Particular reference was made to paragraph 28 of that judgment:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.”
Although his Honour placed significant emphasis on the wife’s care of the children post separation, it was submitted that the overall result was not justified and that it was not appropriate to attribute 20 per cent for an absence of child support or for a finding of primary care. It was submitted that in this case those circumstances flowed from the particular arrangement the parties had, which was not in dispute, including that for a period of time the parties resided together post-separation. As was found by the trial Judge the parties at that time shared equally the responsibilities and activities associated with the care of the children.
Subsequently, the parties lived separately, and the care of the children was undertaken primarily by the wife together with meeting their financial needs when not with the husband.
In the reasons for judgment the trial Judge found that the total assets of the parties were valued at $392,877.00 and the liabilities $12,853.00. With respect to child support it was conceded that whilst a child support assessment existed no significant child support had been paid to the wife since separation.
His Honour observed (at paragraph 222):
“222.…I am of the view that the offsetting contributions made by the wife since the injury and in all the various ways that I am required to take them into account under the Act, and including the contributions that she made after separation to the care of the children and without financial support from the father, and whilst the father occupied the matrimonial home for a considerable period, offset or perhaps dilute or erode the initial contribution made to the present property by the father, and when I have regard to the other factors such as the contributions made by the wife to the welfare of the children since separation, they significantly outweigh the contributions made by the father.”
Counsel for the husband submitted that as the wife was the primary carer and received no financial support, she was entitled to a 10 per cent allowance for contributions made post separation until the hearing. This would ultimately result at best for the wife in a 60:40 division of property in favour of the husband.

Submissions for the Wife

Counsel for the wife argued that the conclusion reached by the trial Judge was within the wide ambit of discretion available to the Court.
In relation to the argument of the husband that his Honour erroneously applied a number of authorities for a proposition that was not correct, counsel for the wife referred to paragraph 218 of the judgment where it was said by his Honour after setting out those authorities:
“218.…Ultimately, it is for the Court to determine at the end of the day, the weight to be attributed to the various contributions of the parties in all their various guises.”
Counsel submitted that the trial Judge had quite clearly looked at all the contributions and made particular reference to the authorities in relation to substantial significant financial contributions made by one party. Counsel further submitted that his Honour in considering, for example, Pierce v Pierce (supra), showed that he made his decision and exercised his discretion, quite aware of the principles espoused in those authorities. It was submitted that it could not be argued that his Honour exercised the discretion in a vacuum, and in doing so failed to take into account the effects of decisions such as Pierce, Bremner and Money (supra).
Counsel made reference to paragraph 220 of the judgment of the trial Judge where he said:
“220.…I am satisfied that the mother made the greater contribution as a homemaker during the course of the relationship with some assistance from the father. I am satisfied that after separation the mother has remained the substantial carer of the children.”
It was asserted by counsel for the wife that his Honour was required to take into account the substantial financial contribution on the part of the husband but not ignoring the contributions made by the wife as a home maker and parent. Contributions made by the maternal grandmother were also considered. This is set out at paragraph 219 of the judgment where his Honour said:
“219.I find on the evidence that the mother has made a substantial contribution as a homemaker and a parent. I find that the parties were able to benefit from accommodation following their move to [Northern New south Wales], made available by the mother’s mother. Against that, and whilst the mother asserts rent was not paid, I am satisfied on the evidence that the parties made a contribution towards the cost of occupying that property, and to that extent the benefit made available by the maternal grandmother is diluted.”
And at paragraph 222:
“222.…the offsetting contributions made by the wife since the injury and in all the various ways that I am required to take them into account under the Act, and including the contributions that she made after separation to the care of the children and without financial support from the father, and whilst the father occupied the matrimonial home for a considerable period, offset or perhaps dilute or erode the initial contribution made to the present property by the father, and when I have regard to the other factors such as the contributions made by the wife to the welfare of the children since separation, they significantly outweigh the contributions made by the father.”
The issue of child support was referred to by his Honour at paragraph 166 where it was observed that the husband had not contributed any child support monies to the wife.
“166.…He has not paid any child support. He does not recognise in my view the need to do so, given that the mother has the greater financial responsibility for the children.”
Counsel submitted that although there had been shared parenting in the sense that the husband had been involved and had contact with the children, it was clear that there was a finding that the wife had made an overwhelming contribution as a parent in the day to day care of the children since the time of separation and that this accorded with the evidence.
It was conceded by counsel that both parties had benefited from having occupied the former matrimonial home for periods of time and that the husband had made some contribution to the wife and the children as the property had been entirely purchased with his funds.
Counsel highlighted payments that the wife had made in relation to the home. This was also noted by his Honour at paragraph 224 of his reasons for judgment:
“224.I take into account also that the mother has paid proportions of the rates for the home since the father has occupied the home. I take into account also the fact that the mother has been required to insure the home. …”
Counsel submitted that no weight was given beyond the desirability of giving the wife an opportunity to buy the house, and that there was nothing to suggest that his Honour made any change to any assessment on contributions by virtue of that fact. It was submitted that his Honour properly took into account whether there was any utility in making an order that the wife be afforded an opportunity to raise the money to pay the husband for the share of the matrimonial property. It was found at paragraph 255 of the judgment that the wife did have the capacity to pay such an amount.

Counsel submitted that by making order (26) of the orders the learned Federal Magistrate showed that he was not so influenced by the attachment of the children to the house as he ordered:
“(26)If the wife does not comply with the previous order, then both parties do all acts and things and sign all necessary documents to enable the former matrimonial home to be sold with the net proceeds, after payment of agent’s commission and legal costs to be divided between the parties in the proportions of 37.5 per cent to the husband and the balance to the wife.”
Counsel submitted that should the appeal be allowed and the discretion be re-exercised that the matter be reconsidered on an assessment of contributions and section 75(2) factors. It was submitted that an adjustment in favour of the husband be no greater than 5 per cent and that the assessment would be weighted appropriately in favour of the wife in the 15 to 20 per cent range, when considering the financial burden of the children.
The husband’s capacity to earn income was discussed by his Honour at paragraph 228 and further at 231:
“228.…The father has not brought to the Court any evidence at all that he is disabled from working or restricted in working.”
…
231“I am satisfied on the father’s evidence that he has the capacity and the ability to be gainfully employed. … I perceive to be his reluctance to produce more recent financial records, that he is reluctant to disclose the true extent of the monies that he has earned and consequently his ability to continue to earn.”
In relation to an assessment of appropriate 75(2) factors counsel submitted that the wife would be left to bear all of the financial costs of the children until they are of age. Further, that it is not likely that the husband would contribute financially to the wife during that period.

Appellate Principles

It is appropriate at this stage to refer to the established principles governing an appeal from a discretionary judgment.
In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J described the appropriate level of restraint that an appellate court should exercise in respect of a discretionary matter as follows:
“There is a strong presumption in favour of the correctness of the decision appealed from and that that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.”
In House v The King (1936) 55 CLR 499, at 504-505 that:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”
In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:
“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.”
Thus, as a matter of firmly established appellate process it is necessary first to establish whether there is any recognised ground for reviewing the discretionary decision of Coakes FM consistent with these principles. In addition as was explained by Kirby J in AMS v AIF (1999) FLC 92-852, at 86-043:
“[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.”
In the case of discretionary decisions, it is only where the effect of the orders exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere, per Brennan J (as he then was) in Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172 per Kirby J at page 230..

Conclusions

This is an unusual case where many minds may differ.
The contribution by the husband in a direct financial sense created the property now held by them. This contribution was in the latter part of the relationship.
However, the husband has had the benefit of living in the home including after the separation and then alone until 20 March 2006. The children have stayed with him during contact in the house.
It is of some concern that the learned Federal Magistrate referred to three cases where the facts are vastly different from the present and deal with different principles. The weight placed on factors contained in Ground 7 may also be an error.
The parties’ position in 1999 was that the husband had made a vastly greater contribution. However, after that separation the children have lived predominantly with the wife who has also provided most of their financial support.
The finding of the trial Judge that the husband would not pay child support in the future (albeit that he had a capacity to earn income) was not challenged on appeal.
The children are currently aged 11 years and nearly 9 years. Consequently the wife has many years ahead to meet the children’s financial needs, a considerable burden even if the children spend the time envisaged by the orders together with mid week arrangements.
It is the circumstances since 1999 together with the respective financial circumstances of the parties currently and into the future which supports the ultimate finding that the wife receive 62.5 percent of the parties’ assets. It cannot be said to be outside the range or plainly wrong.
I therefore make the following orders, both in relation to property and parenting.
(1)That the appeal in relation to parenting orders made on 30 November 2005 in the Federal Magistrates Court be allowed and paragraph 5(b) of the order made 30 November, 2005 be set aside.
(2)That the husband’s application for parenting orders be reheard.
(3)That the husband’s appeal in relation to paragraph (24), (25) and (26) of the orders made on 30 November 2005 in the Federal Magistrates Court be dismissed.
(4)That the Court grants to the husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the husband in respect of the costs incurred by the appellant in relation to the appeal against the parenting orders.
(5)That the Court grants to the wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife in respect of the costs incurred by the respondent in relation to the appeal against the parenting orders.
(6)That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the husband and wife in relation to the rehearing of the application.

I certify that the preceding one hundred & two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 27 April 2007

[2007] FamCA 366

27 April 2007

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Appeal

Costs

Jurisdiction

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