Macris & Galanis - [2015] FamCAFC 234

FAMILY COURT OF AUSTRALIA

MACRIS & GALANIS

[2015] FamCAFC 234

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where there was a delay between the making of final orders and publication of reasons for judgment – Consideration of s 75 Federal Circuit Court of Australia Act 1999 (Cth), Richmond v BMW Australia Finance Limited(No 2) (2009) 254 ALR 76 and Besser & McCoy (2008) FLC 93-361– Where there was no reason to depart from the ordinary practice of giving reasons for judgment contemporaneously with the orders.

FAMILY LAW – APPEAL – CHILDREN – Appeal against final parenting orders – Where before the Full Court the parties consented to vary certain parenting orders concerning the children’s time with the parties during Christmas school holidays and otherwise reserved judgment – Where appeal was allowed in part – Where the appellant failed to establish error in relation to the remaining parenting orders – Where the appeal was otherwise dismissed.

FAMILY LAW – APPEAL – PROPERTY – Appeal against final property orders – Where the challenges on appeal concern the adequacy of the trial judge’s reasons – Where the trial judge erred in evaluating initial contributions – Where findings as to initial contributions provided a springboard for subsequent findings and analysis of contributions – Where contributions assessment is fatally flawed – Error established – Whether error in contributions assessment impacted application of s 75(2) factors – Error established – Appeal allowed – Property proceedings remitted for rehearing.

FAMILY LAW – APPEAL – COSTS – Where the property appeal succeeded on an error of law – Costs certificates ordered pursuant to sections 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth): ss 65DAA(3)-(4), 75(2)
Federal Circuit Court of Australia Act 1999 (Cth): s 75
Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 8, 9

Besser & McCoy (2008) FLC 93-361
Gillard & Gillard [2015] FamCAFC 169
Herridge & Handerson and Ors (2011) FLC 93-474
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Pettitt v Dunkley [1971] 1 NSWLR 376
Richmond v BMW Australia Finance Limited(No 2) (2009) 254 ALR 76
Rollings & Rollings (2009) 230 FLR 396

APPELLANT:

Mr Macris

RESPONDENT:

Ms Galanis

FILE NUMBER:

WOC

576

2010

APPEAL NUMBER:

108

2015

APPEAL NUMBER:

109

2015

DATE DELIVERED:

11 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Cronin JJ

HEARING DATE:

26 October 2015

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

Parenting orders made 12 June 2015 and judgment delivered on 18 September 2015; Property orders made 30 June 2015 and judgment delivered 7 October 2015

LOWER COURT MNC:

[2015] FCCA 2729; [2015] FCCA 2567

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Kennedy

SOLICITOR FOR THE APPELLANT:

Rita Thakur & Associates

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Hansons Lawyers

Orders

Appeal EA 108 of 2015 be allowed.
Order 1 dated 30 June 2015 be set aside.
Remit the property proceedings for rehearing in the Federal Circuit Court by a judge other than Judge Scarlett.
Subject to Orders 1 and 2 made by this Court on 26 October 2015 Appeal EA 109 of 2015 be dismissed.
There be no order as to costs in relation to Appeals EA 108 of 2015 and EA 109 of 2015.
That the Court grants to the appellant husband a costs certificate in Appeal EA 108 of 2015 pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) 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 appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent wife a costs certificate in Appeal EA 108 of 2015 pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 respondent in respect of the costs incurred by her in relation to the appeal.
The Court grants to each of the parties a costs certificate in Appeal EA 108 of 2015 pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) 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 them in relation to the new trial ordered.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Macris & Galanis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 108 of 2015; EA 109 of 2015
File Number: WOC 576 of 2010

Mr Macris

Appellant

And

Ms Galanis

Respondent

REASONS FOR JUDGMENT

Introduction

These are appeals commenced by Mr Macris (“the husband”) against final parenting and property settlement orders made by Judge Scarlett. By Amended Notice of Appeal filed on 16 October 2015 (EA 108 of 2015) the husband appeals against Order 1 of the orders made by his Honour on 30 June 2015. That order required the husband to pay Ms Galanis (“the wife”) $400,000 within three months pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) (“the property appeal”).
By Amended Notice of Appeal filed on 12 October 2015 (EA 109 of 2015), the husband also appeals against Orders 4, 5, 6, 7 and 8 of the orders dated 12 June 2015 (“the parenting appeal”). The parenting orders concern the parties’ two children, X who was born in 2004 and Y who was born in 2006. The trial judge ordered the children live with the wife (Order 4) and that they spend time with the husband as follows:
5. The [husband] is to spend time with the children as follows:
a)Each alternate weekend during the school term from immediately after school on Friday until the commencement of school on the following Tuesday;
b)For half of each of the Autumn, Winter and Spring school holiday periods, being the first half in 2015 and all odd numbered years thereafter and the second half in 2016 and all even numbered years thereafter;
c)For two weeks during the Christmas/January school holidays, commencing at 9:00a.m. on 2 January in each year and concluding at 5:00p.m. on 16 January in each year;
…
Provision is made in the orders for the children to spend time with each of their parents on identified special occasions and at such other times as the parties agree. Stated broadly, it is the husband’s contention that the trial judge should have made orders which continued a longstanding arrangement whereby the children’s time was shared equally, albeit the scheme whereby equal time was achieved had, on occasion, been varied.
At the hearing before us on 26 October 2015, the parties agreed to vary the parenting orders insofar as they regulated the children’s time during Christmas school holidays. Orders were made by consent as set out below:
1. Appeal number EA 109 of 2015 be allowed in part.
2.That order 5(c) of the orders dated 12 June 2015 be discharged and the following orders made:
(a)That the children spend time with the father during the Christmas school holidays as follows:
(i)From after school on the last day the children are scheduled to attend school in odd numbered years and each alternate week thereafter with such time to conclude on the eighth day in each one week block at 12:00 noon,
(ii)In even numbered years the father’s time shall commence at 12:00 noon on the eighth day after the last day that the children are scheduled to attend school and then for alternating blocks of seven (7) days as set out in 2(a)(i) above.
(b)That if either party nominates a block of fourteen (14) nights with the children during the Christmas school holiday period then that parent is to give written notice of not less than sixty (60) days to the other parent setting out the dates they wish to nominate and failing agreement Orders 2(a)(i) and 2(a)(ii) of these Orders applies.
(c)That the time the children spend with either parent during the Christmas holidays shall be suspended on the occasions in Orders 5(g) and 5(h) of orders dated 12 June 2015.
(d)For the purposes of [Y’s] birthday on […], he shall spend time with the mother from 10:00 am to 2:00 pm.
3.That Orders 6(a) and 6(b) of the Orders dated 12 June 2015 be discharged and the following order made:
(a)That all school holidays are defined as commencing on the last day that the children are scheduled to attend school and concluding on the first day they are scheduled to attend school.
(b)That during the autumn, winter and spring holiday periods changeover shall occur at 12:00 noon on the middle day.
4. Judgment is otherwise reserved.
Otherwise, in relation to both appeals, the wife seeks to uphold his Honour’s orders.

Brief chronology

So as to give these appeals context, it is useful to set out some key events in chronological order.
The husband was born in 1969.
The wife was born in 1971.
The parties married in mid 2003 and commenced living together.
From the commencement of cohabitation until the husband left the family home, he worked full-time. But for two periods of maternity leave, the wife worked full-time until her maternity leave following Y’s birth expired. Thereafter, she cared for the children full-time until when about six months before the parties’ separated, she returned to work part time.
The parties’ daughter X was born in 2004 and is currently 11 years of age.
The parties’ son Y was born in 2006 and is currently nine years of age.
The parties separated on 1 March 2010, albeit they continued to live in the family home.
On 1 April 2010, the parties participated in community based mediation where they agreed the husband vacate the family home and the children’s time with both parents be shared equally. The arrangements were documented in a parenting plan. Essentially, during school term, each fortnight this involved the children living:
·from Monday morning until Wednesday morning with the wife;
·from after school/day care Wednesday until Friday morning with the husband;
·from Friday afternoon until Monday morning with the wife;
·from Monday afternoon until Wednesday morning with the husband;
·from Wednesday afternoon until Friday morning with the wife; and
·from Friday afternoon until Monday morning with the husband.
School holidays and other special occasions were shared equally.
X was five and a half years old and in kindergarten and Y was three years and four months and in day care when these arrangements commenced. So that it is clear, these arrangements were made without involvement by a court.
Provision was also made for the parties to review the children’s living arrangements six months hence. As it transpired, the review did not take place as a consequence of which on 21 July 2010 the wife commenced proceedings for parenting orders in the Federal Circuit Court.
On 28 September 2010 the husband filed his Response to that Application and added a claim for property orders. It is noteworthy that the orders he sought were no more than the parties retain property held in their respective names. In other words, the orders he proposed did not seek to alter either party’s interest in property.
In any event, by an Amended Application filed on 29 October 2010, the wife joined issue in relation to property and sought an order that the husband pay her $470,000. It was common ground the parties would each retain the property to which they were legally entitled with the only issue being whether the husband should pay the wife an adjusting amount.
The parenting and property proceedings were listed concurrently and the hearing before the trial judge commenced on 6 and 7 November 2012. It was not completed within the allocated time and was thus adjourned part-heard to 8 February 2013 and again to 19 July 2013. On 19 July 2013, the trial judge reserved his decision on all matters.
An application to, in effect, reopen the parenting proceedings was filed by the wife on 20 May 2014. Essentially, she sought to vary the operative orders pending his Honour’s pronouncement of final orders. The husband

cross-applied and on 29 August 2014 the parenting proceedings were reopened and further evidence taken. Orders for written submissions were made and received by 4 September 2014.
The trial judge pronounced final parenting orders on 12 June 2015. It would be another three months, on 18 September 2015, before his reasons for those orders were published ([2015] FCCA 2567).
In the meantime, on 30 June 2015, the trial judge pronounced the property orders. Once again he did not publish his reasons for those orders and it was not until 7 October 2015 that these were given ([2015] FCCA 2729).
Two Notices of Appeal were filed by the husband on 9 July 2015. One in relation to the parenting orders and the other in relation to the property orders.
The husband also filed an application to stay Order 1 of the property orders and Orders 4, 5, 6, 7 and 8 of the parenting orders. This application came before the trial judge on 17 July 2015 and on 22 July 2015 he stayed the parenting orders and the property order ([2015] FCCA 2623). The latter on condition the husband pays the wife $50,000 (rather than $400,000) by way of interim property settlement within 42 days.
By Notice of Appeal filed on 23 July 2015 (EA 119 of 2015) (“the stay appeal”) the wife appealed against the stay made in relation to the parenting orders. The wife then filed an application to discharge the parenting stay orders, which application the trial judge granted on 9 October 2015. As a consequence, before us, the wife withdrew the stay appeal and orders were made to that effect on 26 October 2015.

DELAY AND THE OBLIGATION TO GIVE REASONS

Before we embark on our consideration of the grounds of appeal, it needs to be understood that even in cases of undue delay in decision-making, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself (Rollings & Rollings (2009) 230 FLR 396). Thus, counsel for the husband properly conceded that the trial judge’s delay could not, of itself, enliven appellant intervention.
Where the challenge on appeal concerns findings of fact made by trial judge and/or conclusions reached in reliance on them, the issue is not whether those findings could be unsafe by virtue of the time which elapsed between the conclusion of the evidence and the delivery of judgment but rather:
19.… is more referable to a consideration of contested findings or conclusions, and the evidence upon which they were, or could be based, or its absence. If those challenges were made out, the fact that the trial Judge’s delay in delivery of judgment may have caused, or contributed to [the] error(s) is irrelevant. If they are not, it is difficult to see how [the] delay could change anything.
(Herridge & Handerson and Ors (2011) FLC 93-474 at 85,780)
We also agree with Herridge & Handerson (at 85,780) that if material findings of fact made by the trial judge were not reasonably open, it does not matter whether that occurred because of the undue time between the hearing and publication of the judgment or for some other reason. As the Full Court said:
22.... That is also the case if such findings are shown to have been “unsafe” (see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588). If it is demonstrated that his Honour’s discretion was exercised in reliance upon material errors of fact, appellate intervention is likely to be enlivened (see De Winter v De Winter (1979) FLC 90-605).
We must also address the submissions made by counsel for the husband about the delay between his Honour’s orders and publication of his reasons for judgment, albeit the submissions focused on the potential for change in the lives of the children. This is a different issue to the effect of delay between the conclusion of the evidence and delivery of the judgment.
There is no doubt that where the justice of the situation requires it, a court may pronounce judgment and give reasons for it later. This reflects the common law in civil proceedings and for which provision is made in s 75 of the Federal Circuit Court of Australia Act 1999 (Cth) (Richmond v BMW Australia Finance Limited(No 2) (2009) 254 ALR 76). In Besser & McCoy (2008)

FLC 93-361, Coleman J held (at 82,427) that orders made by a federal magistrate five weeks before publication of reasons “… could not reasonably be regarded as having been ‘provided very soon after’ the orders were made” and thus the orders could not stand. However, as Rares J said in Richmond v BMW, Coleman J did not address s 75 of that Act and, in our view, it appropriate to approach his decision with a degree of caution. But Coleman J’s point that a five week gap between orders and reasons is troubling is well made.
It is trite that a litigant is entitled to a decision based on the reasons which led a judge to that conclusion. In other words, the husband was entitled to know that before his Honour decided to substantially reduce his time with the children, careful consideration was given to the evidence and a considered view formed that the best interests of the children required change. We also agree that it would be very difficult for a litigant in the position of the husband to accept why, if his Honour had performed that essential task, three months would pass before the reasons for those orders were published.
A significant delay puts a litigant in an untenable position of not knowing, other than by conjecture, why the orders were made. There is also the quandary of whether there is a justifiable basis to appeal. The appeal consideration is not merely based on the outcome so much as on whether there is a justifiable ground to assert error either as to law or as to the determination of the facts. It is for this reason that a failure to give reasons simpliciter has long been held to be an error of law (Pettitt v Dunkley [1971] 1 NSWLR 376). Hence, the delivery of subsequent reasons both inside and outside of a designated appeal period may not cure the injustice caused by the failure to publish reasons contemporaneously with, or very soon after, the pronouncement of orders. Of course, each case has to be determined by reference to its own facts and in one case a gap may create injustice whereas in another case a similar gap may be inconsequential.
However, there can be no doubt that a gap of three months is very troubling. More so when no explanation is provided for it. The three and a half months gap between the property orders (again without explanation) and reasons is more egregious. The point being, in the absence of explanation, there seems to have been no proper basis for his Honour to depart from the ordinary practice of giving reasons for judgment contemporaneously with the orders.
It is not difficult to anticipate that in some cases a gap of the magnitude involved in this case may seriously compromise the orders. However, as we will shortly explain and for other reasons, we will allow the property appeal. Thus it is not necessary to decide whether in the property appeal the time between the orders and reasons for judgment amounts to an error of law.
Otherwise, it will be recalled that in relation to the parenting appeal the submissions focussed on the potentiality for changes in the children’s circumstances and there is no claim that the delay between orders and reasons in the parenting appeal visited an injustice on the husband. It follows we do not need to decide whether in the parenting appeal the time between the orders and reasons for judgment invites appellate intervention. Again, as we will shortly discuss, the parenting orders are on all fours with the evidence and, notwithstanding the irregularity surrounding the circumstances in which they were made, the orders are patently in the children’s best interests.

The parenting appeal

The husband challenges the parenting orders on three bases which may be summarised as error by the trial judge:
·in the approach taken to the reopening;
·in failing to provide adequate reasons for limiting the children’s time with the husband to four nights per fortnight during school term; and
·in finding that the orders made in the husband’s favour amounted to substantial and significant time as defined in ss 65DAA(3) and (4) of the Act.

Error in relation to the reopening

We will consider first the challenge made in relation to the reopening of the matter on 29 August 2014. The asserted errors are that his Honour:
·only permitted limited cross-examination of the parties on affidavits recently filed; and
·declined to hear further evidence from the court expert.
As we will shortly explain, his Honour’s rulings in relation to the application for interim orders, which morphed into reopening the final proceedings, accords with the approach both counsel encouraged him to take. Reference need only be had to the transcript of the trial to establish the point.
It will be recalled that in the context of the trial judge having reserved his final decision, on 20 May 2014 the wife applied to discharge all interim orders and, pending final orders, to change the existing equal time arrangement in favour of the children spending four consecutive nights in each 14 with the husband and the balance with her. Provision was also made for the children to have time with each of their parents on special days.
The husband did not oppose the reopening and agreed the interim orders required further consideration. In his Response to the wife’s Application, he proposed that during school term the children live with him 10 nights in each 14 and with the wife each alternate weekend from after school Friday until before school Monday and on other weekends, from after school Friday until 7.00 pm Saturday. He proposed that school holidays be divided equally and particular days of special significance be shared. Each of the parties filed an affidavit in support of his or her position.
After the trial judge took opening addresses from counsel for each of the parties, he addressed counsel for the husband thus:
…So your application, as I understand it, would be that there should be focused cross-examination on this material so that it has the same status as the other material before the court?
(Transcript of proceedings, 29 August 2014, p 3, lines 25-28)
Counsel for the husband responded in the affirmative and the following exchange occurred:
The other consideration is that as a consequence of the response that my client has filed responding to the application in a case, he now seeks different orders because he has some concerns about the matters that the mother has raised in her application in the case. And he would be seeking that the children now live with him the majority of the time, for reasons which he has outlined in his affidavit material, including whether or not the mother has the emotional insight to parent these children appropriately on a seven-seven basis. So then we’re in the vexed situation of whether or not – and this we say is a matter for the court – your Honour requires further evidence perhaps from Dr [H] in relation to that as well.
And if that is the case then there would be no purpose, in my respectful submission, in having the short cross-examination that was envisaged by my friend when he made the submissions to your Honour.
(Transcript of proceedings, 29 August 2014, p 3, lines 45-47, p 4, lines 1-10)
Counsel for the husband continued:
I must say, your Honour, that in terms of whether or not your Honour would be assisted by further expert evidence, that’s not a matter that I’m instructed to make a submission for one way or another, save to raise with your Honour that our position has changed, and that’s not something that was put to Dr [H] when she was present to give evidence before the court, although she did give evidence in relation to some concerns that she had in relation to the proposal at that stage, or proposals, I should say, at that stage that were before the court. So it would be something that the court would need to consider too, in our respectful submission, whether or not you would be assisted by further evidence from Dr [H].
(Transcript of proceedings, 29 August 2014, p 4, lines 16-26)
Counsel for the wife agreed that cross-examination on the recently filed evidence was appropriate and argued there would be no benefit in asking the court expert to again update her report.
The trial judge agreed with counsel for the husband that the interim applications should be treated as applications to reopen the parenting proceedings and the evidence relied upon should be tested by

cross-examination. The trial judge went on to explain:
…In effect that takes this proceeding away from an interim hearing and brings these proceedings into the final proceedings in that it would seem to me that what is really sought is an expedition of final orders relating to parenting. There seems – it is not the case where interim orders are being sought just to tide the parties over until a final decision can be made.
(Transcript of proceedings, 29 August 2014, p 7, lines 19-24)
His Honour did not think it was necessary to take further evidence from the court expert and said he “…would look at making not interim parenting orders but expediting the issue of final parenting orders” (Transcript of proceedings, 29 August 2014, p 8 lines 7-8). In other words, the husband was permitted to amend the orders he sought on a final basis and the evidence presented in the interim applications became evidence in the final proceedings. It is also abundantly clear that on the basis his Honour would shortly publish his reasons for judgment in the reserved final hearing the parties agreed he need not make further interim orders.
In any event, both parties were cross-examined and in accordance with the approach pressed by counsel for the husband, provision was made for written submissions.
In support of this ground, counsel for the husband submitted that notwithstanding neither party applied for an order to update the expert report, his Honour should have done so but “…limited to the issue of the mother’s contention that [the child X] was suffering from anxiety” (Husband’s written submissions at [1.8]). The rationale being that in not doing so “…his Honour left a gaping hiatus in the evidence and erred in the exercise of the Court’s discretion when deciding the extent of the re-opening of the case” (Husband’s written submissions at [1.8]).
In other words, counsel for the husband sought to establish that his Honour erred by failing to further investigate an issue in relation to one of the children, when although given the opportunity to do so neither of the child’s parents applied for an order to that effect.
There is no doubt his Honour was not bound by the approach adopted by the parties and of his own volition, he could have required the expert to see X and update her report. But that does not mean that in the exercise of his discretion, his Honour erred by failing to do so. On a fair reading of the transcript of the trial, it is clear his Honour was concerned he had been “handicapped very much by a variety of health problems” and had not yet published his judgment. He was keen to avoid taking steps which would extend the period of time before he could finalise the proceedings and was of the opinion he had sufficient evidence from the expert to enable him to deal with the matters that arose on the reopening. These were all relevant considerations. Examined in this light, error in the manner alleged has not been made out.
Nor does the fact that his Honour failed to deliver the shortly anticipated judgment and that it took him another eight months to make parenting orders and a further three months to deliver his reasons for judgment constitute an error. These delays were regrettable, however, as we have already explained, delay does not of itself speak to error. If the husband believed a judgment based on the evidence before his Honour bore little relationship to the family’s current circumstances, it was incumbent upon him to relist the proceedings and ask his Honour to update the evidence. He is not entitled to sit back and to then complain on appeal of his Honour’s failure to take a step which the husband himself could but did not initiate (Gillard & Gillard [2015] FamCAFC 169).
Before we leave this issue, it is appropriate to acknowledge the difficult circumstances in which the parties and their representatives found themselves. We fully recognise the competing tensions between cost, the desire for finality and how difficult it is to recognise that the evidence may have become so outdated as to warrant another reopening. All the more so when a delayed judgment is promised but that promise is not fulfilled. We thus appreciate the husband’s dilemma and understand why he may have elected not to incur the expense of yet another reopening. Nonetheless, the remedy sought by this ground lay at first instance and not on appeal.

Insufficient reasons

The challenge raised by ground 2 is that the trial judge erred:
…in failing to provide any adequate reasons for the decisions reached;
a. in limiting the father’s time with the children to four nights per fortnight during school term and in particular in failing to make findings of fact on the contested evidence that the child [X] was anxious in the father’s care…
(Husband’s written submissions, p 5)
As the ground correctly postulates, whether or not X had and would, into the future, cope with an equal time arrangement or one that had her separated from the wife for a substantial period was in real focus before the trial judge. However, there was no issue that until separation the wife was primarily responsible for the children’s care and no challenge to the expert’s opinion that the wife is X’s main attachment figure. Nor that X is more emotionally aligned and dependent on her mother than she is on her father. Nor is any challenge made to the opinion of the expert that X does not have a secure attachment to her father.
As the expert and the trial judge were at pains to point out, the differing nature of X’s attachment to each of her parents does not mean she does not love her father or that his capacity and commitment as a parent is somehow wanting. Thus, the trial judge found the children enjoyed positive and loving relationships with both their parents, both of whom have the capacity to cater for the children’s needs.
Nor is any challenge made to the expert’s evidence that X told her that the existing 5:5:2:2 nights per fortnight arrangement was not working for her and that she wanted to spend more time with her mother. In relation to this evidence his Honour found:
81.When she saw the children, Dr [H] described them as “lovely children” who complied with all adult requests politely. [X] produced the note she had written. [X] told her that the 5:5:2:2 arrangement was not working for her but [Y] said spontaneously “It works for me”. Both children though that their father would feel sad if he were to know that [X] wanted to spend more time with her mother.
82.Dr [H] spoke to Ms [R], who had been counselling the children to enquire what support she considered might still be appropriate for them:
She confirmed my impression that [the child Y] was coping better with the current arrangement than [the child X], and was a more confident, untroubled child overall. She also confirmed that she found both parents loving, devoted and attentive.
83.The Family Consultant’s conclusions were that “events since 2011 have shown that these parents lack the benchmark qualities which are required for 50:50 shared residential care to work well…
84. Further, Dr [H] stated:
It becomes a matter of identifying the least harmful option practicable under operating constraints. [X] is the canary-down-the mine in this case. As her mother is the main source of her attachment security it will be in [X]’s best interests to maximise the time she spends with her mother and minimize the transitions between her two homes.
(Reasons for judgment, 12 June 2015) (Original emphasis, footnotes omitted)
Relevant to this ground, the expert recommended that the children should live mainly with the wife “…but see their father very regularly, at least once a week. For example, they could spend three or four consecutive nights with their father with a midweek overnight in the off weeks, days selected to preserve their father’s participation in their after school activities” (Reasons for judgment delivered 12 June 2015 at [85]).
The trial judge gave some weight to X’s views and said:
134.I am of the view that the Court should follow the recommendations of the Family Consultant. There is evidence both from the Mother and particularly from Dr [H], who has spoken directly to the child, that an equal time arrangement is a source of anxiety to the child. In my view equal shared care is not in [X]’s best interests.
135.The Family Consultant did not support a different arrangement for [Y]. Thus, it must follow that there should be one arrangement for both children.
136.The evidence that I accept is that [X] wishes to spend more time with her mother but, when she spoke to Dr [H], she did not wish to hurt her father’s feelings. The Father maintains that he has seen no signs of anxiety in [X], but, if the child does not want to hurt his feelings, it seems likely that she is not saying to her father that she wants to spend less time with him.
Thus, the trial judge found, as was common ground between the parties, that considered from X’s perspective, the equal time arrangement had not worked and, irrespective of how it might be configured, the best interests of the children would not be served by orders for equal time. After his Honour observed that it was the husband’s proposal that the children spend four nights each fortnight with the wife, he determined that the orders she proposed on the reopening (four nights each fortnight with the husband) should be ordered. In so doing, he placed weight on the expert’s opinion that it was desirable to minimise the frequency of the changeovers and to ensure that the husband was able to be properly involved in the children’s care.
We agree with the submission by counsel for the wife that his Honour carefully considered the proposals of the parties, their evidence and the expert evidence. His Honour’s process of reasoning is apparent and, in our view, sufficient.
Otherwise, there can be no doubt that his Honour’s findings in relation to X’s stated desire to increase the amount of time she spent in her mother’s care and being separated from her made the child anxious were open to him. In addition, that in her desire to not make her father feel sad she, in effect, did her best to hide these feelings. It follows that whether or not the husband saw evidence of his daughter’s anxiety was more or less irrelevant.
Error as alleged by ground 2 is not made out.

Failed to make orders for substantial and significant time

The challenge raised by ground 3 is best captured in counsel for the husband’s written submission at [3.6] as follows:
It is submitted that a block of 4 nights per fortnight from after school Friday to before school Tuesday does not meet the criteria of substantial and significant time. The father would only be involved in the childrens’ [sic] school routine on one day per fortnight during school term or about 14 days per year given that the children will be on holiday for about 12 weeks per annum.
The definition of substantial and significant time is contained in ss 65DAA(3) and (4). Those provisions are set out below:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
(Original emphasis)
It will be recalled that the orders make provision for the children to spend time with the husband on father’s day, his and their birthdays, at Christmas and Orthodox Easter. True it is that the trial judge could have made orders which enabled the children to spend more substantial and significant time with the husband, however, a simple cross-referencing of the definition shows that the orders are orders for substantial and significant time. There is no substance to this ground.

Conclusion

The husband has failed to establish error in relation to the parenting orders and, subject to Orders 1 and 2 made by this Court on 26 October 2015, the parenting appeal will be dismissed.
In the event the parenting appeal failed, the wife sought an order that the husband pays her costs. Because the proceedings at first instance were heard concurrently, as were the appeals, it is appropriate to defer consideration of this issue until we determine the property appeal.

The property appeal

Two challenges are made in relation to the property orders albeit central to both is the assertion that the reasoning process in the judgment is so deficient it is not possible to discern “…either expressly or by implication the path by which the trial judge reached the decision”. The focus of ground 1 is his Honour’s finding the contribution entitlements favoured the husband 55 per cent to the wife’s 45 per cent. The focus of ground 2 is on his Honour’s decision to award the wife an additional 10 per cent pursuant to s 75(2) of the Act.
A theme that permeates both grounds is the assertion that his Honour did little more than summarise the evidence and submissions. However, he failed to resolve contentious factual matters and his ultimate conclusions in relation to contributions and the s 75(2) adjustment are no more than conclusions devoid of reasoning.
With respect to the submissions made by counsel for the wife, the argument that the findings made by his Honour were open to him, does not engage with the husband’s central proposition that his Honour was obliged to engage with the cases presented by each party and adequately expose his reasoning process. It is well settled that this is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side and saying that the judge prefers one body of evidence to another (Mitchell v Cullingral Pty Ltd [2012] NSWCA 389).
Turning then to his Honour’s reasons for judgment, we agree that after his Honour found that the parties cohabited for six and a half years and there were two children of the marriage who, as a consequence of orders he made on 12 June 2015, would spend more time with the wife than the husband:
·he summarised some of the evidence of the parties from [13] to [41] without (other than in one inconsequential respect) making any findings of fact in respect of such evidence; and
·turned to some of the submissions made on behalf of the parties from [42] to [48] without making any findings (or analysis) in respect thereof.
His Honour then set out the principles which govern the determination of an application for the settlement of property to which no challenge is made. We will therefore focus on his Honour’s findings and the manner in which those principles were applied.

At [56] and [57] his Honour explained, somewhat obliquely, that with the parties’ divorce the circumstances which underpinned their financial dealings with each other had altered. Thus as both parties invoked the court’s property jurisdiction it was just and equitable to make orders for the settlement of their property.
But for two minor matters, the property of the parties was agreed. The disputed items were bank accounts in the name of the wife and on the basis she was more likely to know the current balances of her accounts, her evidence was accepted.
Thus, the parties owned property to the value of $1,801,537 and superannuation in the amount of $95,931. The total asset pool was found to be in the amount $1,897,468. By reference to that combined asset pool, the parties’ contributions were then evaluated.
It was uncontroversial that at the commencement of cohabitation the wife owned a property (subject to a mortgage), a car and personalty. His Honour found the value of the assets the wife contributed at the commencement of cohabitation was $364,471, together with a car and personalty.
It was also uncontroversial that at the commencement of cohabitation the husband owned two properties, one of which was unencumbered and the other subject to a mortgage of about $158,000. He had savings of about $111,000, a car and some items of personalty. Although his Honour did not quantify the net value of the husband’s initial contributions, comment was made at [72] that counsel for the husband argued “…that the pre-marital assets of the Husband were more like $854,374”. As counsel for the husband who appeared on the appeal pointed out, this overstated the husband’s unchallenged evidence by $5,000. Although his Honour (at [72]) was correct when he apparently rejected the argument advanced in support of a finding at $854,374, he went to overlook the fact that the effect of the husband’s unchallenged evidence was that he made an initial financial contribution, including superannuation, in the amount of $849,374. It follows that we agree with counsel for the husband that his Honour’s finding (at [72]) that the parties’ initial contributions “…appears to be approximately one-third in favour of the Wife and two-thirds in favour of the Husband” indicates that in some unspecified way his Honour rejected aspects of the husband’s evidence concerning either the nature or value of the property he owned at cohabitation.
In any event, his Honour then went on to consider the parties’ contributions made later. The paragraphs which follow constitute his Honour’s findings and analysis of the parties’ contributions during the marriage and after separation. His Honour found:
74.However, the position changed over the course of the marriage. The [wife] worked until she went on maternity leave and contributed her income to the family, as well as making a contribution as homemaker and the primary carer of the children. The mortgage over [Property A1, NSW] was discharged and it can be seen that the Wife made a significant indirect contribution to that asset.
75.Counsel for the Wife has submitted, correctly in my view, that there should be a 10% differential as to contributions for the Wife, so that the contributions should be assessed as 45% by the Wife and 55% by the Husband.
76.I am satisfied that the contributions of the parties should be regarded as 45% by the Wife and 55% by the Husband.
No challenge is made to his Honour’s finding that the proposed orders would not affect either party’s earning capacity.
Section 75(2) factors were then discussed. The parties are of comparable age and each is in good health. Both had the physical and mental capacity for appropriate gainful employment. Other than the children, neither had responsibility for the support of any other person, neither had re-partnered and as a consequence of the parenting orders, the children would live with the wife and spend substantial and significant time with the husband. The husband was likely to acquire an obligation to pay child support. None of these matters were controversial. That the wife earned $673 per week was uncontroversial, as was the fact that she would live in an unencumbered property owned by her.
There was significant controversy about whether the husband’s average weekly income amounted to $813 or because of the asserted non-disclosure by the husband he had an “income earning potential in excess of the wife”. His Honour did not resolve that issue and, without analysis, at [89], said:
In my view, there should be an adjustment in favour of the Wife of 10%. Thus, the division between the parties should be 55% to the Wife and 45% to the Husband.

Ground 1 – Contributions

In addition to the overarching failure in the reasoning process, the husband specifically challenges his Honour’s findings in relation to:
·the magnitude and comparative value of the husband’s initial contribution;
·his failure to make any findings in relation to the husband’s contributions during the marriage and after separation;
·to explain how he came to the conclusion that the wife made a significant indirect contribution to the husband’s property at Property A1, New South Wales; and
·how the wife’s contribution increased from the 33 per cent (as found) to 45 per cent at the date of hearing.
We will deal with each of these in turn.
As we have already explained, it was the husband’s unchallenged evidence that his total initial contributions were worth $849,374 (albeit counsel at trial misstated the contributions at $854,374 and this misstatement appears in his Honour’s reasons). Thus, as counsel for the husband who appeared on the appeal said, “…the initial contributions of the parties were 69.97% to the husband and 30.03% to the wife”. Given that the calculation is without complexity, the submission advanced by counsel for the husband is to the effect that either his Honour misunderstood the comparative values of the parties’ initial contributions or, without saying why, discounted the husband’s unchallenged evidence.
As we have already explained, it is clear that in evaluating the husband’s initial contribution, his Honour overlooked the value of the husband’s superannuation and it seems he also overlooked the husband’s evidence about the value of his vehicle and personalty. In and of themselves, these omissions could be seen as de minimis and would not justify appellate intervention. However, his Honour’s findings in relation to the parties’ initial contributions are the springboard for his findings and analysis of contributions made thereafter.
One need only read [74] of the reasons (which we set out earlier), to appreciate that his Honour addressed contributions made by the wife and disregarded those made by the husband. For example, he failed to take into account:
·shortly after the parties married the husband received $60,000 from a redundancy which he used to discharge the mortgage on the wife’s property and to reduce the mortgage on one of his properties;
·the husband worked full-time during the marriage;
·the husband claimed to have made significant contributions to the welfare of the family, in particular, to the care of the children;
·the husband undertook renovations on the wife’s property; and
·post-separation, the husband cared for the children to the same extent as the wife.
True it is that the extent of the husband’s contributions to the welfare of the family was hotly disputed, but, that dispute was not resolved. For reasons we cannot discern, his Honour either overlooked or disregarded the contributions made by the husband after the parties commenced living together.
It follows that his Honour’s ultimate conclusion concerning the comparative value of the parties’ contributions is fatally flawed. His Honour was obliged to deal with the central controversies put up for resolution by the parties. The competing evidence relevant to such controversies required analysis and determination. As we have demonstrated, critical factual enquiries were not even discussed.
We cannot agree with counsel for the wife’s proposition that these errors are satisfactorily answered by the proposition that “[t]he Court’s finding that contribution should be assessed to be 45% by the Wife and 55% by the Husband is well within a range permissible given the facts of the case”. If by that proposition counsel for the wife means by reference to the husband’s evidence, it is plainly wrong. If he means by reference to a raft of findings which were not made, the proposition can be no more than speculation.
Error in the manner asserted in ground 1 is established.

Ground 2 – Adjustment

The identified frailties to his Honour’s judgment and findings concerning contributions infect his application of s 75(2). We agree with counsel for the husband that his Honour’s reference at [44] and [82] to the wife’s contention that the husband had not declared the whole of his income but not to the fact that this issue was contentious, is curious indeed. Suffice to say, as we have already mentioned, his Honour needed to resolve this controversy. By not doing so, one is left guessing about how the references at [44] and [82] influenced his Honour’s determination about why an adjustment pursuant to s 75(2) as sought by the wife compared to the husband’s position was appropriate.
This challenge has been made out.

Conclusion

The property appeal will be allowed and Order 1 of the orders made on 30 June 2015 will be set aside.
The property proceedings will be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Scarlett.

Costs

In relation to the property appeal, the parties agreed that should the husband be successful, an order for costs would not be appropriate. We agree. As the appeal has succeeded on an error of law, it is appropriate that the parties receive a costs certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth) for both the property appeal and the rehearing.
We are not satisfied that it would be proper to order the husband to pay the wife’s costs in relation to the parenting appeal. Although on that count he was wholly unsuccessful, the appeal raised matters of substance and raised issues that justified consideration by the Full Court. We also take into account that the parenting and property proceedings were heard concurrently and required only one set of appeal books.
Given the unfortunate delays involved in the proceedings below, it is requested that the Federal Circuit Court afford the rehearing reasonable priority.

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Cronin JJ) delivered on 11 December 2015.

Associate:

Date: 11 December 2015