Manifold & Alderton
[2021] FamCAFC 61
•4 May 2021
FAMILY COURT OF AUSTRALIA
Manifold & Alderton [2021] FamCAFC 61
Appeal from: Manifold & Alderton [2020] FCCA 2650 Appeal number(s): NOA 72 of 2020
NOA 73 of 2020File number(s): BRC 10209 of 2012 Judgment of: STRICKLAND, KENT & AUSTIN JJ Date of judgment: 4 May 2021 Catchwords: FAMILY LAW – APPEALS – Parenting and property settlement – Delay of seven years between trial commencing and delivery of judgment and final orders in both the parenting and property proceedings – Nothing in the reasons for judgment seeking to explain or justify the delay or recognising the possible effect of the delay on the decision-making process – Reasons for judgment failed to engage with the father’s case and overlooked many aspects of the evidence – No reasons provided for rejecting the recommendations of the family consultant and discounting her evidence – Failure to make relevant findings of fact arising out of the evidence – Failure to provide adequate reasons – Failure to take into account relevant and material considerations – Merit in grounds of appeals – Appeals allowed.
FAMILY LAW – COSTS – Both parenting and property appeals allowed and proceedings remitted for rehearing – Father granted costs certificate for the appeal and rehearing – Mother granted a costs certificate for rehearing.
Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, ss 65DAC, 75(2), 79(1), 79(2)
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC
93-143; [2003] FamCA 395Hsiao v Fazarri (2020) 383 ALR 446; [2020] HCA 35
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77
McCrossen and McCrossen (2006) FLC 93-283; [2006] FamCA 868
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; [2004] WASCA 149
Paggett & Cable (2015) FLC 93-670; [2015] FamCAFC 186
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Von Schoeler v Allen Taylor and Company Ltd t/as Boral Timber (No.2) (2020) 376 ALR 110; [2020] FCAFC 13
Division: Appeal Division Number of paragraphs: 127 Date of hearing: 4 March 2021 Place: Brisbane (delivered in Adelaide) Counsel for the Appellant: Mr Shoebridge Solicitor for the Appellant: Simonidis Steel Lawyers The Respondent: Self-represented ORDERS
NOA 72 of 2020
NOA 73 of 2020
BRC 10209 of 2012APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR MANIFOLD
Appellant
AND: MS ALDERTON
Respondent
ORDERS MADE BY:
STRICKLAND, KENT & AUSTIN JJ
DATE OF ORDERS:
4 MAY 2021
ORDERS MADE ON 4 MARCH 2021
1.The appellant be granted leave to rely on his late filed Summary of Argument filed on 18 January 2021.
2.The respondent’s Application in an Appeal filed on 2 March 2021 insofar as it seeks leave to file a Notice of Cross Appeal be dismissed.
3.The respondent’s said Application in an Appeal insofar as it seeks leave to adduce further evidence comprising the appellant’s Application in a Case filed on 19 November 2020 seeking a stay, the Affidavit in support thereof, and the order made by the primary judge on 11 December 2020 be dismissed.
4.The respondent’s said Application in an Appeal insofar as it seeks leave to adduce evidence of the amended final property settlement orders of the primary judge made on 19 November 2020 be granted.
5.Judgment be reserved.
ORDERS MADE ON 4 MAY 2021
1.The appeals be allowed.
2.The parenting orders made on 21 September 2020 be set aside.
3.The property settlement orders made on 21 September 2020 and amended on 19 November 2020 be set aside.
4.The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.
5.The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 father in respect of the costs incurred by him in relation to these appeals.
6.The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (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 party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manifold & Alderton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND J
The extraordinary feature of these appeals is the gross and deplorable delay on the part of the primary judge in the Federal Circuit Court of Australia in rendering final judgment in parenting and property settlement proceedings.
The trial of these proceedings initially took place to a conclusion of the evidence on 19 and 20 September 2013. Yet it was not until 21 September 2020, some seven years after that initial trial had concluded, that the primary judge made orders and delivered reasons for judgment on 21 September 2020.
Whilst within that intervening seven year period whilst final judgment was awaited, interlocutory applications brought had caused some aspects of some parenting issues to be revisited, at least on an interlocutory basis, and the proceedings had been reopened for three days of hearing, for the reasons which follow, nothing which occurred dispels the conclusion that the sheer delay involved contributed to the making of substantial errors by the primary judge.
It follows that these appeals must be allowed.
On 21 October 2020, Mr Manifold (“the father”) filed two Amended Notices of Appeal, one being appeal no. NOA 72 of 2020 appealing from final parenting orders made by a judge of the Federal Circuit Court of Australia on 21 September 2020, and the other being appeal no. NOA 73 of 2020 appealing from final property settlement orders made by the same judge on the same day and later amended on 19 November 2020.
The appeals were consolidated and heard together.
Ms Alderton (“the mother”) opposes both appeals.
The parenting orders appealed from provided for the parties to have equal shared parental responsibility for their two children X and Y, for the children to live primarily with the mother, and for them to spend time with the father.
The property settlement orders appealed from essentially provided for the parties to each retain the property already in their respective possession.
BACKGROUND
The father was born in 1973 and will shortly turn 48 years of age. The mother was born in 1981 and is 40 years of age.
The parties met in October 2000 and commenced their de facto relationship in 2001.
The parties have two children, X born in late 2008, and Y born in late 2009 (“the children”). Both children have special needs. X has autism spectrum disorder and Y has attention deficit hyperactivity disorder and post-traumatic stress disorder.
In 2012 the mother had a lotto win of just over $1.1 million.
On 25 April 2012 the mother told the father that the relationship was over, and the father left the home four days later. The mother transferred $300,025 of the lotto winnings to the father, assuming that that would finalise the property matters between them. The mother later purchased land at C Street, Suburb D and built a home thereon with the lotto winnings that she retained.
Parenting and property settlement proceedings were instituted by the father in the Federal Circuit Court of Australia in November 2012, and the final hearing took place on 19 and 20 September 2013, when the primary judge reserved her judgment (referred to as the first tranche of the hearing).
Some four years later, no judgment having been rendered in the meantime, the father filed an application for interim orders. As a result interim parenting orders were made by consent on 27 October 2017 and the matter was listed for the taking of further evidence in relation to the final orders application. That hearing took place on 5 March 2018, and judgment was again reserved (referred to as the second tranche of the hearing).
Between June 2018 and September 2018, the mother unilaterally suspended time between the children and the father.
With final judgment still awaited, the father filed a Contravention Application in relation to those breaches on 11 July 2018.
The mother admitted to having breached the parenting orders without reasonable excuse on 27 September 2018, and was placed on a bond to be of good behaviour, and to comply with the then interim parenting orders.
In December 2018 the mother unilaterally removed the children from their school and commenced home schooling.
In breach of the interim parenting orders made on 27 September 2018, the mother failed to make the children available to the father from around 16 November 2018.
The father filed a further Contravention Application in relation to those breaches. The children were not made available to the father until that application was heard.
After a contested hearing of the Contravention Application on 17 April 2019, the mother was found to have breached the interim parenting orders without reasonable excuse.
The mother was ordered to re-enrol the children in their usual school, and orders were made for the children to spend additional time with the father. The Contravention Application was otherwise adjourned.
On 23 May 2019, as a consequence of the findings on 17 April 2019, the primary judge ordered that:
(a)The mother be placed on another bond to be of good behaviour, and to complete a course of counselling;
(b)The parenting arrangements be varied to expand the time that the children spent with the father (those orders were made by consent);
(c)A new court expert be appointed to prepare a further family report;
(d)The mother pay the father’s costs (which she has failed to do); and
(e)The matter be listed for a further three days of hearing in relation to the Application for Final Orders.
On 21 August 2019, again with final judgment yet to be forthcoming, the father filed a Second Further Amended Initiating Application. He sought parenting orders which are summarised as follows:
(a)That the children live with him;
(b)That he have the sole parental decision making responsibility; and
(c)The children spend time with the mother on alternate weekends.
This third tranche of the hearing took place over three days on 2, 3 and 4 September 2019, and once again judgment was reserved. Given the delays of the primary judge to that point it might have reasonably been expected that such judgment would be rendered expeditiously. However not until more than another 12 months had elapsed did the primary judge deliver judgment on 21 September 2020.
THE MOTHER’S APPLICATION IN AN APPEAL FILED 2 MARCH 2021
Two days before the date set for the hearing of the appeals, the mother filed an Application in an Appeal seeking leave to file a Notice of Cross-Appeal, and leave to adduce further evidence.
At the hearing of the appeal, the application to lead further evidence was resolved by allowing the mother, without objection, to adduce evidence of the amended final property settlement orders made on 19 November 2020, and dismissing the application insofar as the mother sought to adduce evidence of the stay proceedings instituted by her also on 19 November 2020, as a result of the mother not pursuing that aspect of the Application in an Appeal.
As to the application seeking leave to file a Notice of Cross-Appeal, that was opposed by the father, and this Court dismissed the same, indicating that reasons for that order would be included in these reasons for judgment.
To repeat, the application was filed on 2 March 2021, only two days before the hearing of the appeal. The mother’s explanation for pursuing a Notice of Cross-Appeal at the last moment was that once she saw the father’s Summary of Argument filed on 18 January 2021, she decided to raise concerns that she had with what her Honour did, and she expressed that in her Summary of Argument filed on 5 February 2021. However, it was not until later that she became aware of the need to file a Notice of Cross-Appeal, although we were not told when precisely that was.
Plainly, the mother had ample time to file and serve a Notice of Cross-Appeal in order to provide the father with a proper opportunity to address it. However, the last minute attempt to file a cross-appeal would have clearly prejudiced the father in the running of the appeal if the application was allowed. For that reason this Court dismissed the application, it being far too late.
THE APPEALS
The grounds of appeal in each of the appeals are almost identical, and the issues raised can be summarised as follows:
(a)As a consequence of the delay between the commencement of the final hearing on 19 September 2013 and the delivery of the reasons for judgment and the making of final orders on 21 September 2020:
(i)Her Honour failed to engage with the father’s case and assess the evidence, and make appropriate findings on the basis of that evidence;
(ii)Her Honour failed to take relevant matters into account;
(iii)There are material mistakes in her Honour’s reasons;
(iv)Her Honour’s findings were unsafe; and
(v)Her Honour’s reasons were inadequate.
The delay
The delay here is extraordinary, and it is debatable whether it is made better or worse by there being two occasions during the seven year timeframe when the final hearing was reopened. And then of course there was a further significant delay between the second reopening and the delivery of judgment and the making of final orders.
It is though rendered palpably worse by the fact that just as was identified in the High Court decision of NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 (“NAIS”) per Gleeson CJ at [3], there is nothing in the reasons of the primary judge that “seeks to explain or justify the delay”. Nor is there anything said by her Honour that:
[r]ecognises any possible effect of the delay on the decision-making process, or seeks to explain how any possible problem resulting from the delay might have been taken into account or overcome. The reasons are expressed in a form that appears to treat the time involved in the [court] process as immaterial to the adjudicative function.
Although it is the case that delay is not itself a ground of appeal, the authorities are clear that where there is delay, the reasons for judgment must be subject to the strictest of scrutiny (e.g. McCrossen and McCrossen (2006) FLC 93-283). Indeed, it is sometimes said that inordinate delay represents a denial of procedural fairness in the form of a denial of a fair hearing. For example, the delay creates a real and substantial risk that the court’s capacity to assess the evidence and evaluate the claims was impaired (NAIS at [10]).
Here, as conceded by the father’s counsel, the focus is not on the delay per se, but the failure by the primary judge to take relevant matters into account, to engage with the father’s case and with the evidence, and to provide adequate reasons for her conclusions. It is of course submitted that the delay led to those failures, and the father was denied a fair trial.
The parenting appeal
The central issues of the parenting dispute were with whom the children should live, and who should have parental responsibility.
At what has been described as the first tranche of the final hearing in 2013, the father sought orders that there be equal shared parental responsibility, and the children live with the parties on a week about basis, but at the third tranche of the final hearing in 2019, he sought orders that he have sole parental responsibility, that the children live with him, and that they spend time with the mother on alternate weekends from after school on the Friday until the commencement of school on the Monday.
For the mother’s part she at all times sought orders that the parties have equal shared parental responsibility and the children live with her. However, the orders she sought as to the time that the children spend with the father changed from time in each week, to time on alternate weekends.
In the final orders made on 21 September 2020, her Honour provided for the parties to have equal shared parental responsibility, for the children to live with the mother, and for the children to spend time with the father each alternate weekend from the conclusion of school on the Wednesday until the commencement of school on the Monday.
The key findings made by her Honour, and which informed the orders that her Honour made, rather than the orders sought by the father, were as follows:
27.Compliance with court orders, in family law matters, is best done with not only an intention to put the orders into effect but also with a real lived intention to want to put the orders into effect and to support the children’s relationship with their father through compliance with court orders. The parties’ entrenched conflict would seem to indicate that it is likely to continue into the future. It is difficult to see that the conflict will end in the event that the children are in the father’s care anymore that it will end if the children are in the mother’s care there is no logical basis for me to consider that the parents relationship will be any improved if the children are in the father’s care. It may be the case that the children will then be less exposed to the mother’s view of the father (and to some extent the maternal grandfather’s view of the father) if they were to live with the father, but they would still be seeing the mother on a regular basis and as a consequence she would have every opportunity to continue to express those views.
…
29.Having observed these parties over a number of years and a number of court events, I have become satisfied that there will be no ending to their disputes with each other and that in their own ways each parent manages to perpetuate the disputes. It is certainly the case that it is the mother who has been the respondent to contravention applications, noting that will the mother has unilaterally suspended the children’s time with the father on two occasions for periods of months, rather than the father, but that can’t be taken as simply meaning that she is always the one who was at fault. The father’s failure to engage in matters to do with the children’s health through having a proper and respectful relationship with their treating paediatrician is a good example of when the father needs to reflect upon his own behaviour.
30.If the children were to move into the father’s care, as Ms M’s evidence makes plain, there would be a great need for the children to be receiving assistance. The father, by the final tranche of the trial, had really done very little to work out how he might support the children save as to say that he had spoken to his general practitioner about it.
…
37.The balancing act, then, is removing the children from their primary carer to their father’s care which will create so many significant changes for them and whether the father has the capacity to adequately support the children through those changes. Ms M gave her view that the children would need significant support in transitioning from the mother’s care to the father’s care. I am concerned that the father has not demonstrated how he would attend to that and I am further concerned as to his capacity to be able to support that in happening in a way which would minimise the distress and harm to the children.
However, this reveals a failure by her Honour to engage with the father’s case, and overlooks, to put it as generously as I can, many aspects of the evidence.
For example, the children’s treating paediatrician was Dr N, and the evidence was that the mother always took the children to see him. However, because of the extremely negative view the mother had of the father, as her Honour found at [34], over the years the doctor became “partisan arising from the many things that the mother [had] told him” including the baseless claim “that Y’s diagnosis of post-traumatic stress disorder [was] as a result of things the father [had] done to Y”. Indeed, as her Honour recorded at [34]:
…At the final tranche of hearings, Counsel for the mother, on instructions, acknowledged that the children should probably see a new consultant paediatrician so that both parents can be involved in that process, it probably now being too late for the father to have a good working relationship with Dr N.
Thus, although there was that background seemingly understood by her Honour, as summarised accurately by the father at paragraph 36 of his Summary of Argument, her Honour’s finding as to the father’s alleged failure to engage with the paediatrician overlooked the following evidence:
(a) The Father was frequently not told about appointments
(b) Was frequently not told about new medical providers
(c)The mother told mistruths to the pediatrician that the pediatrician seems to believe, and which seemed to have aligned the pediatrician with the mother against the father. Transcript page 319, page 324 to 326
(d)The father did in fact involve himself to a greater extent than was portrayed by the mother
(e)The pediatrician’s own oral evidence that he spoke with the father more often than was reflected in his notes. Transcript page 317, and page 321
(As per the original)
And her Honour clearly failed to take that evidence into account.
Further, as to the finding that the father “had really done very little to work out how he might support the children if they moved to his care”, again, the father at paragraph 38 of his Summary of Argument accurately summarised the evidence her Honour failed to take into account in making that finding, namely:
(a)The [father] had spoken to his general practitioner in anticipation of needing a referral to a counsellor for the children – transcript page 351; and
(b)Had had [h]is general practitioner speak to Dr N in order to liase (sic) between the doctor and himself page 361 line 25
(c)The expert witness Ms M said it was not a concern, in her view, for the [father] to wait until outcome of the proceedings to engage a counsellor.
The only part of that evidence that her Honour referred to was to record that the father had spoken to his general practitioner about how he might support the children (at [30]).
Then there is the evidence of the most recent family report writer, Ms M. Her Honour recorded this:
22.Central to the determination before the court is whether the mother is able to support the children having a relationship with the father. The third family report prepared by social worker Ms M, concluded with the view that the children should live with the father who should have sole parental responsibility on the basis that the children were tightly enmeshed with their mother. And because of the parents’ conflict predominantly arising from the mother’s view of the father, unless the children were living with him, the children would not be able to have a proper relationship with their father. Further Ms M was concerned about the care that the mother provided in circumstances where Y was exhibiting distressing behaviours including saying that he wanted to kill himself and engaging in head banging and being unable to sleep in his own bed. Ms M was concerned about the length of time it took for the mother to engage a psychologist for Y. Ms M was concerned that the children would not be able to have a healthy relationship with their father if they continue to live with their mother.
23.Ms M acknowledges that for the children to move from their mother’s primary care to their father’s will create a significant disruption to them and will be distressing.
They would grieve for the loss of their mother. On the other hand, their life adjustment is not making headway in her care. I conclude that they would be likely to thrive in their father’s positive environment after they have settled in there.
(As per the original) (Footnote omitted)
However, despite recording her evidence and recommendation accurately, nowhere does her Honour provide any reason for rejecting the recommendation of Ms M, and for discounting her evidence. Nor were there any adequate reasons provided to explain why her Honour arrived at the decision that she did in light of the evidence that was before her.
Indeed, the evidence was damning of the mother’s attitude towards the father. For example, her Honour said this:
31.However, there are a number of serious points which indicate that the mother’s attitudes and behaviours demonstrate such a fixed view of the father that it is impossible for me to consider that things will be better in the future.
32.Not only has the mother withheld the children from the father for significant periods of time but she is also made a number of unilateral decisions which have adversely impacted the children’s time with the father. For example she enrolled X into sports for children with autism which occurred on weekends and then unilaterally advise the father that he then wouldn’t be able to see X in the way that the orders provided. There was no evidence that the father could not have taken X to those sports lessons. The mother unilaterally enrolled the children in distance education at a time when their school will was having difficulties in their own communication with the mother and where they had asked her to cease volunteering on a Friday. The school had become concerned, it would seem, that they were finding themselves involved in parenting matters and the mother was using the school as an opportunity to be removing the children before the father would attend to collect them.
(As per the original)
Thus, understandably, her Honour concluded as follows:
36.I am very much left with the impression that the mother sees little of worth in the children’s relationship with their father and that she views herself as being the superior parent with little requirement to involve the father in either decision-making for the children or parenting generally. The children have a lovely relationship with their father, notwithstanding this exposure and their mother’s home to her attitude which seems also to be shared by her father.
(As per the original)
Yet, despite this evidence, her Honour concludes at [38] that it is in the best interests of the children not to change residence, but to marginally increase the time that the children spend with the father.
The only basis for that decision which can be discerned from her Honour’s reasons are a query “whether the father has the capacity to adequately support the children” through the changes that would be required, and that the father has not “demonstrated” how he would attend to the support needed and “minimise the distress and harm to the children” (at [37]).
As can be seen, these are all matters adequately addressed in the evidence, but which evidence was overlooked and clearly not taken into account by her Honour.
This is significant given the extraordinary delay here. In those circumstances, her Honour was required to carry out a more detailed consideration of the evidence, and analysis of the respective cases of the parties, than would normally be required. The purpose of doing so would be to demonstrate to all concerned that the delay had not affected the decision. That did not occur here.
Thus, there is merit in the grounds of appeal, insofar as they assert that her Honour failed to make relevant findings of fact arising out of the evidence (Ground 2), failed to take into account relevant and material considerations (Ground 3), and failed to provide adequate reasons (Ground 5).
There are other matters too, such as the mistakes her Honour made, and I am not here referring to the many spelling errors, the non-sequiturs, and the gaps in the reasons for judgment, which are indicative of a hurriedly put together judgment.
What I am referring to is, for example, the refusal by her Honour to grant the injunction sought by the father in relation to the maternal grandmother (at [67]), despite the fact that the continuation of the interim injunction was consented to by the mother during the course of the hearing (Transcript 20 September 2013, p.102 lines 24–26).
Other examples are matters I have already touched on, namely, in relation to the involvement of the father with the child’s paediatrician, and what the father had done by way of the support that would be provided to the child if the child was placed in his care.
Finally, I note that part of the complaint in Ground 2 is that her Honour failed to make relevant findings of fact “by virtue of…[t]he loss of the Court file and the exhibits that were tendered in the hearing in September 2013 and March 2018.”
As with the issue of the delay in delivering judgment, her Honour makes no mention of that circumstance in her reasons for judgment. Further, there is no mention by her Honour of any difficulty experienced by her in making her findings, and reaching her decision, as a result of the loss of the file and the exhibits. There being nothing said by her Honour to explain how she overcame the absence of these documents in reaching her decision, provides another basis for finding that that decision is unsafe. Thus, this aspect of Ground 2 must succeed.
The property settlement appeal
To reiterate, the same failures by her Honour are complained of by the father in relation to the property settlement orders made by her Honour, as with the parenting orders. In other words, a failure by her Honour to engage with the father’s case and the evidence, a failure to make relevant findings of fact on the basis of the evidence before the court, a failure to take relevant matters into account, the making of material mistakes of fact, and providing inadequate reasons.
It is of course asserted that these failures were a consequence of the delay in delivering judgment, and that requires a closer scrutiny of the reasons than would otherwise be the case.
Indeed, that is perhaps even more relevant in relation to the issue of property settlement, because the reopening of the proceedings in 2018 and 2019 was primarily directed to the parenting dispute. There was no cross-examination in relation to property settlement, and the evidence was limited to any changes in the respective financial circumstances of the parties.
In terms then of matters overlooked by her Honour, examples are, first, her Honour in discussing the value of the real property owned by the mother (at [71]), failed to refer to the fact that on 27 September 2018, her Honour had ordered that the property be sold, and the failure by the mother to comply with that order was the subject of contravention proceedings.
Secondly, and more importantly, at [102] her Honour was addressing the father’s health and his capacity for employment on the basis of the evidence given in the first tranche of the hearing in 2013, concluding with this observation:
…It would appear that the [father] has taken little steps to find work which he may be able to do since choosing to stop work in 2012.
Her Honour though, failed to recognise at all, that the father was working at the time of the second and third tranches of the hearing.
Two of the assets of the parties were a scholarship fund intended to benefit the children, and of which the parties were the joint trustees, and a timeshare jointly owned by the parties. The parties were in dispute as to what should happen to these assets.
Her Honour ordered that the father’s name be removed from the scholarship fund (paragraph (7) of the order), and that the father’s interest in the timeshare be transferred to the mother (paragraph (5) of the order). However, her Honour provided no reasons whatsoever for making these orders, and indeed, failed to even refer to these assets except in [72], where her Honour set out a balance sheet tendered by the mother at the third tranche of the hearing, which included these assets, and [77] where her Honour referred to the timeshare and the claim by the mother in relation to that asset. Her Honour then found that on the basis that the mother sought to keep the timeshare, she should be responsible for any outstanding payments.
It is also noteworthy that despite there being a seven year delay in delivering her reasons for judgment, and making final orders, and in that time period the hearing being reopened twice, her Honour found at [80] “that it is not possible to quantify the pool precisely”.
Plainly, the most significant issue in the property settlement proceedings centred on the lotto win, and how it should be treated.
The mother’s case was that the funds that she used to purchase the lotto ticket, were funds provided to her by her mother, and thus the winnings should be quarantined. Alternatively, the lotto win should be treated as a contribution made by the mother, and she should retain all of the winnings that were in her possession, bearing in mind that she had paid the father approximately $300,000 of the winnings.
The father’s case was that the lotto win should be treated as property that effectively arose out of the relationship between the parties, and their joint endeavours. He also asserted that the mother had funds in her possession, other than the money that she was holding on behalf of her mother, when she purchased the lotto ticket, something that was conceded by the mother in cross-examination (Transcript 20 September 2013, p.123 lines 27–40).
Her Honour dealt with this issue as follows:
89.The [mother’s] evidence about the purchasing of the ticket and her source of funds to do that was the subject of cross examination. The [mother] had not called her mother as a witness in her case and so the evidence came from the [mother] alone. I am satisfied that the [mother’s] evidence was truthful as it would seem that buying lotto tickets was not an ordinary part of what the parties expended their money on. She had held the money in her wallet that she had received from the person who came to buy her mother’s items and plan to give it to her mother when she saw her next. It is unsurprising that the maternal grandmother was aware that finances were tight in her daughter and son-in-law’s home. And it seems unsurprising that the grandmother would say to her daughter to keep the money for herself and buy something. The [mother’s] evidence at paragraph 50 (D) of her affidavit filed 25 January 2013 includes that she would not have bought a ticket using hers and the [father’s] money but as she had the money from her mother she thought “why not”.
90.I am satisfied with that evidence. The failure by the [mother] to call her mother to support the eBay/Item/payment in cash/keep it for yourself issues does not trouble me in circumstances where the evidence otherwise has a ring of truth to it and where the [mother] was cross-examined and her evidence remained consistent.
91.The reason this is relevant is because the circumstances of the purchasing of the ticket are relevant as to whether the matter should be seen as a contribution by one party or a windfall which is effectively the contribution of both parties. (See the matter of the Zyk and Zyk [1995] FamCA 135). It would seem to be the case that these parties were not in the habit of buying lotto tickets. It would seem to be the case that the mother’s purchase of the lotto ticket was a spur of the moment decision coming soon after her mother said that she could keep the $38. The reason the [mother] had the $38 can be considered to be a gift from her mother to her and the children arising from the maternal grandmother’s natural love and affection for her daughter and grandchildren. The purchase of the ticket was the [mother’s] action and the [mother’s] action alone. She did not use matrimonial funds or any jointly held assets to purchase the ticket. I am satisfied that the lotto [win], therefore, should be perceived to be a contribution by the [mother] to the party’s financial circumstances. I note that it came very late in the parties’ marriage, and indeed was probably what precipitated the [mother] advising the [father] that the marriage was over. At the point of final separation, the lotto winnings where the single asset of real substance of the parties.
(As per the original)
As to these reasons, and her Honour’s conclusion, the father made the following submissions:
(a)Her Honour failed to engage with the father’s case, and in particular why the winnings should not be treated as property effectively arising out of the relationship between the parties and their joint endeavours;
(b)As can be seen, her Honour was satisfied that the evidence of the mother as to the source of the funds to purchase the ticket was “truthful”. Further, her Honour was not troubled by the mother’s failure to call her mother to support her evidence, where that evidence had “a ring of truth to it”, relying on the mother being cross-examined and her evidence remaining “consistent”. In making these findings her Honour ignored the cross-examination of the mother in 2013 as to the source of the funds, and her concession that there were funds in her possession, apart from the funds left with her by her mother; and
(c)Her Honour failed to apply the relevant legal principles to the evidence when deciding how to regard the lotto win. For example:
(i)there was no dispute that the parties were still cohabiting at the time of the purchase and they were pooling their funds; and
(ii)as referred to above, it was conceded in cross-examination by the mother that she had joint funds of the parties with her when she purchased the ticket, and there was an issue as to whether she had used the funds left with her by her mother, in circumstances where her mother was not called as a witness.
I accept the accuracy of these submissions, and agree that by failing to engage with the father’s case, her Honour’s conclusions as to this issue are unsafe. At the very least, there is a failure by her Honour to provide adequate reasons addressing the factual dispute, or the legal argument raised by the father, at the first tranche of the hearing.
In summary, I find merit in the grounds of appeal as they relate to the orders for property settlement.
CONCLUSION
Having found merit in all but one aspect of one of the grounds of appeal in the parenting appeal, the appeals must be allowed and the orders set aside.
The question then becomes whether, given the unfortunate history of this matter, and in particular the inordinate delay in delivering judgment, it would be possible for this Court to re-exercise the discretion, rather than remit the proceedings for rehearing. As much as this Court would favour that outcome in the interests of the parties, as was conceded by the father, it is not open to this Court to do that, given the bases on which the appeal is being allowed. Accordingly, the proceedings will be remitted for rehearing.
COSTS
In the event that the appeals were allowed, the father sought costs certificates for both the appeal and the rehearing, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
The mother had no legal costs in relation to the appeal, but she sought a costs certificate for the rehearing.
Both applications will be granted.
KENT J
I have had the advantage of reading in draft form the separate reasons given by Strickland J and Austin J. I agree with the orders their Honours propose and with their Honours’ respective reasons for those orders.
AUSTIN J
I agree with the orders proposed by Strickland J, but offer these separate reasons in respect of the two appeals.
The father appeals separately from parenting orders (Appeal NOA 72 of 2020) and property settlement orders (Appeal NOA 73 of 2020) made between he and the mother pursuant to Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit Court of Australia on 21 September 2020. The property settlement orders were later amended on 19 November 2020 in a way which makes no difference to the second appeal.
The trial of the proceedings began in September 2013 but, rather extraordinarily, did not finish until September 2019. In that time, the evidence was re-opened twice – in 2018 and 2019 – to deal with changed circumstances and overcome the prejudice caused by the delayed delivery of judgment. Even when judgment was reserved for the third time, another year elapsed before the appealed orders were finally made and the reasons for judgment were published in September 2020.
As can be readily appreciated, by the time the appealed orders were eventually pronounced seven years after the trial began, the children had grown from infancy to near adolescence and the parties’ property bore little correlation to that which they owned when proceedings were first started in November 2012.
Such gross delay was integral to the appeal. The father contended it impaired the primary judge’s capacity to distil the issues, properly assess the evidence, and make necessary findings, particularly against the background of the parties’ shifting proposals in respect of both parenting and property settlement orders. He exemplified how the exercise of discretion under Pt VII and Pt VIII of the Act had miscarried, proving the reasons for judgment do not withstand the closer scrutiny justified in instances of excessive delay (Paggett & Cable (2015) FLC 93-670 at [2] and [19]).
But delay was not the only mischief encountered here. The Court file was lost. In September 2019, at the start of the third stage of the trial, the primary judge told the parties’ legal representatives the Court file had “disappeared” and there is no suggestion, either in the transcript or in the reasons for judgment, of its eventual recovery before judgment was pronounced in September 2020. Her Honour told the parties’ legal representatives that the
hard-copy exhibits had also been lost. The parties were informed there was no exhibit list from before April 2019, though an exhibit list from the second stage of the trial in March 2018 must have later been found for it to be included in the Appeal Book. While the primary judge was presumably furnished by the parties with fresh copies of their filed documents, since they now appear in the Appeal Book, it remains unknown whether the missing exhibits were ever replaced. It may be wondered how it would even be possible when no exhibit list exists for the part of the trial conducted before March 2018. The only reasonable inference to draw is that her Honour, when determining the disputes, was deprived of and therefore did not take into account material evidence.
In the face of proven legal, factual and discretionary error, as unattractive as the proposition may be, there is now no option but to remit the proceedings for re-hearing. If the dual objectives of the attainment of justice and efficiency cannot be mutually achieved, justice must prevail.
Parenting appeal
When the trial commenced in 2013, the father applied for the children to live with the parties for equal time and for the parties to have equal shared parental responsibility (at [3]), whereas the mother applied for the children to continue living primarily with her and for them to spend substantial time with the father. She agreed to the parties’ allocation with equal shared parental responsibility (at [6]). At that time, the parenting dispute was not so wide, but it broadened substantially as the litigation progressed without any timely resolution.
By the time the trial concluded in September 2019, the father sought to reverse the children’s residence and he wanted sole parental responsibility for them (at [5] and [18]), whereas the mother sought to constrict the time spent by the children with the father from four nights to only three nights per fortnight in school terms (at [6], [7] and [18]). The mother had consented to interim parenting orders in May 2019 providing for the children to spend four nights each fortnight in school term with the father, but she offered no explanation for the proposed reduction to only three nights each fortnight at the trial in September 2019, which was curious because any issue about the children’s safety in the father’s care evaporated and she remained content for the children to spend one-half of the school holidays with him.
During the course of the trial, the mother abandoned her quest for any positive finding that the father posed a risk of harm to the children, which had been the premise for the alternate regimes of parenting orders set out in her Amended Response and her Case Outline document filed in August 2019, her choice depending upon whether or not the “adverse findings” against the father for which she intended to advocate were made by the primary judge. The mother’s case (at least in part) had formerly been the children were at unacceptable risk of harm in the father’s care and, if that be so, she was unwilling to formulate any proposal as to how they should spend time with him and she would leave that decision entirely to the Court.
The father’s application for exclusive parental responsibility for the children and for them to instead live with him reflected his experience of the mother’s past hindrance of the children’s contact with him, which he asserted had the potential to impair their relationships with him. Indeed, the third Family Consultant gave opinion evidence which strongly supported the validity of the father’s perception (at [22]). Just as significantly, it was twice found – in September 2018 and again in April 2019, while judgment in the substantive dispute was still reserved for the second time – that the mother had contravened, without reasonable excuse, interim orders requiring the children to spend time with the father (at [24]–[26], [32]–[33] and [57]). The mother’s contraventions effectively prevented the children from spending time with the father for months at a time.
Three Family Consultants were appointed during the litigation to report their opinions and recommendations about the family. The first reported in 2013, the second reported in 2017, and the third reported in 2019, just before the third and final stage of the trial in September 2019. The third Family Consultant said she specifically focussed on what had been happening within the family “in the last couple of years”.
At the time of her report in July 2019, the third Family Consultant reported neither party identified any relevant live issue about “family violence”, “abuse” or “child protection”. Importantly, her opinions about the mother’s unsatisfactory attitude and her recommendation for the children’s change of residence were reported in these terms:
167.It is my view that [the mother] is blind to any opinion about [the father] that differs from her own. The children’s difficulties can all be attributed to him. He has never been a responsible father…
168.I hold significant concerns about the quality of care that [the mother] is providing for the children…
…
173.[The mother’s] ongoing villainization of [the father] has to stop for the children’s benefit. In my opinion, they need to enjoy a healthy relationship with him – free from heinous assertions – and this will not happen in the current arrangements.
174.[The father’s] commitment to the children has been unswerving. He has an easy manner with them and he has been child-focussed. He has always supported [the mother’s] relationship with them and it has only been after matters have broken down twice so completely that he has shifted his view to believing that they will be better off living primarily with him.
…
178.In my opinion, [the children] would find a change of residence disruptive and distressing. They would grieve for the loss of their mother. On the other hand, their life adjustment is not making headway in her care. I conclude that they would be likely to thrive in their father’s positive environment after they have settled in there.
…
180.From the information available to me at the time of this report preparation, it is recommended that the following actions be given serious consideration at this stage;
180.1. The children live with [the father].
The third Family Consultant was cross-examined by the mother’s counsel. Aside from confessing she had no evidence the children would “thrive” living with the father, she staunchly adhered to her opinion that the children would be better served living with the father (at [22]) and said she had “serious” reservations about whether the mother’s compliance with the existing orders would endure beyond the determination of the litigation.
With judgment reserved for the third time, after the elapse of another year, the primary judge nonetheless decided the children should remain living with the mother, which decision was essentially motivated by these factors: the reversal of the children’s residence would be disruptive and distressing (at [23] and [53]); the father had done little to demonstrate how he would help the children to cope with such a change (at [30] and [37]); and the parental conflict was unlikely to abate even if the children’s residence was reversed (at [27]). Instead, her Honour concluded the dispute was best resolved by orders ensuring the children spend more time with the father and less time living with the mother to redress the imbalance of their exposure to the parties (at [38] and [60]).
In Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, the Western Australian Court of Appeal said:
31.…a long delay can give rise to disquiet…because of the suspicion, on the part of the losing party, that the task may have become too much for the Trial Judge and that he or she has been unable in the end to grapple adequately with the issue.
Similarly, the Full Court of the Federal Court of Australia said this in Von Schoeler v Allen Taylor and Company Ltd t/as Boral Timber (No.2) (2020) 376 ALR 110 (“Von Schoeler”) in respect of a judgment delivered after a very long delay:
92.… The long wait for the judgment must have created tension, uncertainty and a sense of injustice for all parties. Inevitably, the losing party, [the appellant], must feel a greater sense of injustice, arising from an understandable suspicion that, after a delay of such length, the primary judge could not have adequately or properly considered [the appellant’s] case.
…
101.There are other difficulties with the reasons for judgment. The length of the delay created a substantial risk that the primary judge would, under pressure, gravitate to the conclusion that was easiest to make and express. The reasons tend, in several places, to corroborate [the appellant’s] submission that the primary judge simply followed the easiest path.
…
113.The primary judge’s delay created requirements in respect of the reasons that would not ordinarily apply. It was incumbent upon his Honour to inform the parties of the reasons why the evidence of a particular witnesses had been accepted or rejected and to say why the evidence of one witness had been preferred over the evidence of other witnesses. The primary judge was also required to explain how, despite the delay, he was able to recollect the oral testimony and demeanour of witnesses in order to demonstrate that delay did not affect his decision. The reasons do not meet these requirements. In addition, the reasons expose examples of the primary judge appearing to skirt more difficult issues and driving toward simple conclusions. Further, some aspects of his Honour’s reasoning reveal a lack of clarity which suggest that the delay has affected the decision. In addition, his Honour overlooked issues that had been squarely raised in the case. The reasons demonstrate that the primary judge was unable to satisfactorily determine the case six years after hearing the evidence. It must be concluded that the judgment is unsafe.
(Emphasis added)
Likewise, here, the father suspected the primary judge did not properly consider his case, skirted the more difficult issues, was unable to grapple adequately with the central issue, and simply gravitated to a conclusion which was easiest to make and express. Although the appealed orders in Von Schoeler were made six years after the trial concluded and, here, the appealed orders were made 12 months after the trial concluded, the delay still related to contested issues and evidence extending back seven years.
It was uncontroversial the children would be distressed if their residence was reversed but, without any evidentiary basis for it, the primary judge seems to have presumed their distress would be pervasive and long-lasting. In fact, it may have only been ephemeral, since it was beyond dispute the children enjoyed “lovely” relationships with the father (at [36]). The third Family Consultant conceded the children would find the reversal of their residence “disruptive and distressing”, but she still strongly recommended that the children be moved to live with the father. The reasons for judgment do not deal with the rejection of such expert opinion evidence, leaving the father to legitimately wonder why that particular part of the third Family Consultant’s evidence was rejected when other parts were adopted.
The primary judge found the father had done “very little to work out how he might support the children [emotionally]” if he was to assume their primary residential care (at [30]) and her Honour was left with some concern about the father’s “capacity” to support the change so as to minimise the children’s distress (at [37]), but that hardly represented a balanced analysis of the evidence. The father gave unchallenged evidence that he obtained a referral for the youngest child to a psychiatrist in January 2019, upon which he was unable to act because the mother withheld the children from him, but he then later spoke to his general practitioner about the referral of both children to psychiatrists and paediatricians. The third Family Consultant said she was not troubled by the father not already having made counselling appointments for the children, since he was unsure of the outcome of the litigation. The third Family Consultant entertained no doubt about the father’s capacity to provide residential care for the children and it was not put to the father in cross-examination by the mother’s counsel that he lacked such capacity. Her case was just she was the better choice; not that the father was incapable.
The primary judge found the father had failed to engage with the children’s doctors, particularly their paediatrician (at [29]), but that too seems an unbalanced conclusion. The father confirmed he had consulted with the children’s paediatrician though, from July 2016, the paediatrician refused to speak to him directly so the father lodged a complaint against the paediatrician and thereafter had his general practitioner contact the paediatrician about the children’s medication as needed. The paediatrician gave evidence at the trial (at [11]) and the primary judge actually found him to be partisan and an advocate for the mother (at [34]), causing her Honour to ultimately order the parties to change the children’s paediatrician (Order 23), which finding and order cast a quite different complexion over the difficulty the father had experienced with the paediatrician. Even though the primary judge found the mother’s attention to the youngest child’s medical needs had been lax (at [63]), as did the third Family Consultant (at [22]), that seemed not to have conversely been given much, if any, weight by her Honour.
The primary judge found the parental conflict was “intractable” (at [19]) and concluded it was unlikely the conflict would end if the children’s residence was reversed (at [27]), which consideration (at least inferentially) militated against any change to the children’s residence. Conflict is one thing, but compliance with Court orders is quite another. Unlike the mother, who had been twice been found in contravention of orders without reasonable excuse, the father had no proven history of disobedience. He proposed that the children should spend substantial amounts of time with the mother if they moved to live with him and there was no valid evidentiary basis for the primary judge to doubt his willingness or ability to comply with the orders for which he advocated.
Despite the primary judge’s apparent concern over the likely perpetuation of parental conflict, which her Honour found caused the parties’ relationship to be “toxic” and their communication “dysfunctional” (at [56]), somewhat counter-intuitively, her Honour made an order allocating equal shared parental responsibility for the children to the parties (Order 2).
In other words, the primary judge considered the parental conflict was too great to warrant the children living with the father, but not enough to stop them from spending substantial amounts of time with him, even though it made no difference to the number of times the parties had to exchange the children between them. Nor was the conflict considered enough to stop the parties from conferring over important issues related to the children, as the law requires (s 65DAC of the Act).
Even if the inherent paradox of those findings could be reconciled, the reasons for judgment do not explicate how the parental conflict, as a material consideration, influenced the decision about the children’s residence. That is particularly so when the primary judge found it was the mother, rather than the father, who had the most work to do improving her attitude to parental co-operation (at [57]).
The solitary explanation given for the order for equal shared parental responsibility is that the parties “should both be involved in their children’s lives in any decision-making that needs to happen for them [sic]” (at [64]), which aspiration is not a satisfactory substitute for the rational synthesis of the findings about the parties’ intractable and probably enduring conflict with their consequent legal obligation under s 65DAC of the Act.
As already mentioned, with the support of the third Family Consultant’s opinion evidence, the father contended the mother could not be trusted to continue adhering to orders requiring the children to spend time with him once the litigation was concluded and so the reversal of their residence was the only tenable outcome. Even though the primary judge said it was difficult to accept the mother’s assertion that she would henceforth comply with the Court’s orders (at [26] and [43]) and was left with the impression that the mother “sees little of worth” in the children’s relationships with the father (at [36]), her Honour still declined to reverse the children’s residence. Of course, it was open to make that decision, but her Honour then had to explain why the decision was made against the weight of evidence to the contrary, which was not done satisfactorily.
Instead, her Honour decided to expand the amount of time spent by the children with the father from four nights per fortnight in school terms (under the interim orders made with the mother’s consent in May 2019) to five nights per fortnight in school terms. Arrangements in the school holidays and on other special occasions remained largely unchanged. Given the father wanted the children’s residence reversed and the mother wanted the children’s time with the father reduced to only three nights per fortnight in school terms, the appealed orders wear the thin appearance of a compromise to try and appease the parties.
There is no thorough analysis in the reasons for judgment of the underlying disputes about the mother’s willingness and capacity to support the children’s relationships with the father and to continue abiding by court orders. The appealed orders do not vindicate the father’s belief or the third Family Consultant’s opinion that reversal of the children’s residence was necessary to preserve their long-term relationships with the father. Nor do the orders reflect the primary judge’s expressed doubts about the mother’s willingness to adhere to them once the litigation is over. No explanation is given in the reasons for why the mother could be expected to ensure the children spend even more time with the father than was required under prior orders, which orders she had repeatedly breached, particularly when she had applied to constrict rather than expand the children’s time with the father.
Essentially, the primary judge said only this:
38.It seems to me that another way forward for this family is to increase the time the children spend with their father so that they have more exposure to him and a little less exposure to their mother. Plainly that will require further travel between the parents’ homes and for the children, between their father’s home and the school. It would allow though the children to continue to be in the mother’s primary care and to not be disrupted and distressed by such a significant change in their circumstances whilst increasing their time with the father with whom it would be to their benefit to have a meaningful relationship.
…
65.I am satisfied that it would not be consistent with the children’s best interests for them to leave their mother’s primary care, but rather the children’s time with their father should be extended so that they are spending more time in his care during school term. As the children get older they will no doubt be able to form their own views about their parents and their parents’ dispute and the way that has improperly involved them.
(As per the original)
In my view, the difficult issues were skirted by the primary judge. The decision for the children to remain living with the mother but to spend more time with the father was the easiest one to make, even though laced with inconsistent findings. The exercise of discretion miscarried.
Property settlement appeal
The primary judge correctly identified the manner in which the property dispute should be determined (at [70]), consistent with the legal principles enunciated in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, but then inexplicably failed to apply those principles.
Her Honour found it was impossible to “quantify the pool precisely” (at [80]) but, in fact, made no findings at all to quantify the parties’ respective property interests. The first task was to identify and value, as far as the evidence would allow, the parties’ existing legal and equitable property interests (Stanford v Stanford (2012) 247 CLR 108 at [37] and [50]; Hsiao v Fazarri (2020) 383 ALR 446 at [50]).
Nor did her Honour make any findings as to the parties’ overall contributions or whether an adjustment under s 75(2) of the Act was warranted.
In the absence of any such findings, it was meaningless for her Honour to recount the parties’ competing applications, expressed as percentages of the contested property (at [113]–[114]).
In final submissions which were made during the last part of the trial conducted in 2019, the mother tendered a controversial balance sheet as an “aide-memoire”, the contents of which were extracted in the reasons for judgment (at [71]). But the exhibit proved only the parties’ admissions, of which there were few, and the areas of their disagreement, of which there were many. The most significant disagreement concerned the most valuable asset, a parcel of real property owned by the wife (“C Street, Suburb D”), which she wished to retain. It was last valued in 2013 and, even though the parties’ opinions about its value in 2019 differed by $165,000 (at [73]), her Honour proceeded to determine the dispute without any value being ascribed to it.
The primary judge ordered that the mother would retain exclusive title in C Street, Suburb D, subject to its encumbrance, but that order was in direct conflict with an earlier interim order made with the mother’s consent in September 2018 requiring C Street, Suburb D to be sold and the sale proceeds used to discharge certain debts, to pay sums to each party by way of “partial property settlement”, and to deposit the balance in escrow pending determination of the proceedings. C Street, Suburb D was still not sold by September 2019 when the trial resumed. The father alleged the mother thwarted the sale and brought a contravention application to sanction her breach in December 2018, which the primary judge found established in April 2019. The pre-existing interim order requiring the parties to sell C Street, Suburb D logically explains why no updated valuation was procured for the last stage of the trial in September 2019. The most compelling inference is that by September 2020, when the judgment was finally written, the primary judge had simply forgotten those things, because they were not mentioned.
A complicating feature of the dispute was the mother’s lotto win of over $1.1 million in April 2012, at about the time the parties’ finally separated. The mother gave the father $300,025 from the winnings (at [93]) and then used the balance to buy the land and build the new house at C Street, Suburb D (at [96]–[97]). The primary judge found the lotto win should be regarded as a financial contribution made solely by the mother (at [91]) but, otherwise, found the parties’ contributions “during the marriage” were equal (at [98]). However, the parties’ marriage ended when they divorced in July 2013 and her Honour referred to their relationship of “nearly 12 years”, so the finding of their otherwise equal contributions only covered the period up until either their separation in April 2012 or their divorce in July 2013. The primary judge made no findings as to the parties’ respective overall contributions taking into account the ensuing period of six or seven years up until the conclusion of the trial in September 2019.
Her Honour found the father was not working and had “taken little steps to find work” after he voluntarily ceased employment due to a back injury in 2012 (at [102]). It is correct he was not working during the initial stage of the trial in 2013 but, according to unchallenged evidence at the two subsequent stages of the trial in 2018 and 2019, he was then gainfully employed. The finding about his unemployment and disinterest in obtaining any work was therefore simply wrong. The primary judge did not say whether or not the finding affected the outcome of the property settlement dispute, but it must be assumed so because it was discussed in the reasons for judgment as a material consideration under s 75(2)(b) of the Act.
The ultimate finding made by the primary judge was in these terms:
119.In all of the circumstances, although I am satisfied that it would be just and equitable to adjust the parties property between them as they have separated on a final basis and they both ask the Court for a final property adjustment order, I am satisfied that the proper outcome with respect to the property proceedings is for the parties to each retain the items which they currently have in their possession or control and for neither of them to be required to pay any monies to the other party. I am satisfied that that is appropriate in the circumstances of these parties’ situation.
(As per the original) (Emphasis added)
It is, of course, impossible to discern whether the outcome was indeed just and equitable, which enquiry the Act demands be made and answered affirmatively, without any findings at all being made as to the identity and value of the parties’ property interests, the parties’ respective overall contributions, and what, if any, adjustment was justified by reference to future circumstances. The decision was made in error, since it lacked any proper factual or legal foundation.
The decision is also internally inconsistent because, while her Honour was satisfied it would be just and equitable to adjust the parties’ property interests, thereby satisfying the enquiry mandated by s 79(2) of the Act, her Honour then found no adjustment order at all should be made under s 79(1) of the Act.
Then, despite finding no adjustment order should be made, the primary judge proceeded to inconsistently make one. The parties jointly owned two items of property described as a “timeshare” and funds held with the scholarship fund (at [71]), which the primary judge ordered be transferred exclusively to the mother (Orders 5 and 7), without any finding made as to the value of either asset.
The property settlement orders under Pt VIII of the Act are vitiated by error.
I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Kent & Austin. Associate:
Dated: 4 May 2021
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