Marsters & Radcliffe (No 2)
[2024] FedCFamC1A 69
•2 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Marsters & Radcliffe (No 2) [2024] FedCFamC1A 69
Appeal from: Radcliffe & Marsters [2023] FedCFamC2F 611 Appeal number(s): NAA 170 of 2023 File number(s): LNC 590 of 2021 Judgment of: RIETHMULLER J Date of judgment: 2 May 2024 Catchwords: FAMILY LAW – APPEAL – Property – Parenting – Where the appellant alleges errors of fact – Where the parties agreed to leave their vehicles off the balance sheet – Where the primary judge mistakenly included appellant’s vehicle in balance sheet resulting in error – Respondent accepts error was made and advocates for use of slip rule – Error not within the ambit of the slip rule – Appeal allowed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 79
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
De Winterv De Winter (1979) 23 ALR 211
DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox & Percy (2003) 214 CLR 118; [2003] HCA 22
Gronowv Gronow (1979) 144 CLR 513; [1979] HCA 63
Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 30 Date of hearing: 26 March 2024 Place: Parramatta Counsel for the Appellant: Litigant in person Solicitor for the Respondent: Glynn Williams Legal Counsel for the Independent Children's Lawyer: Did not participate ORDERS
NAA 170 of 2023
LNC 590 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MARSTERS
Appellant
AND: MS RADCLIFFE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.Appeal NAA 170 of 2023 be allowed in part and the property settlement application be remitted for rehearing.
2.Orders 14, 15, 16 and 19 in proceeding LNC 590 of 2021, dated 25 May 2023, be set aside.
3.The respondent be granted a costs certificate pursuant to s 6 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 respondent in respect of the costs incurred by the respondent in relation to the appeal.
4.The respondent be granted 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 the respondent in respect of the costs incurred by her in relation to the new trial ordered.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsters & Radcliffe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The appellant appeals against parenting and property settlement orders made on 25 May 2023.
The parties commenced their relationship in 2004. They were married in August 2007. The parties have one child together, X, who was born in 2009. The respondent mother has an adult daughter, and the appellant father has two adult sons, each from the parties’ respective previous relationships.
The parties separated in November 2020, after the father called the police alleging that the mother had perpetrated family violence against him. The police attended the matrimonial home as a result. The mother was unaware of the father’s report and was distressed that X was home, and believed it was a ploy to denigrate her in front of their child. After being interviewed by the police (at the police station), the mother collected her things to leave the home. The parties asked their child who he would choose to live him, and he ultimately decided to remain with the father in the matrimonial home. The father’s Family Violence Order application was unsuccessful.
Following a trial, the primary judge ordered that the parties have equal shared parental responsibility and that the child live with the mother and father on a week about basis (as well as orders setting out holiday time, interstate travel, and the like).
The primary judge made property settlement orders dividing the parties’ property 55/45 in favour of the appellant father, after taking into account numerous factors, the most significant of which appears to be the greater initial contributions of the father. The property orders provided for the father is to, within sixty days, discharge the mortgage on the former matrimonial home, pay the mother $140,481.40 by way of property settlement and $3,740 of valuation fees. If he does not comply, the former matrimonial home is to be sold by public auction to pay this amount. A superannuation splitting order was made where $71,428.86 is allocated to the father out of the mother’s interest in her super fund. The father’s application for spousal maintenance was dismissed.
THE GROUNDS OF APPEAL
The father, who is unrepresented on the appeal, amended his Notice of Appeal on 29 January 2024, reducing the number of his grounds to 28. The grounds address both the property settlement orders and the parenting orders.
The vast majority of the appeal grounds are the father contending an error of fact in the Reasons. An appeal court should not interfere with a finding of fact if there was evidence on which that finding could be made, that is, if it was reasonably open on the evidence: see Edwards v Noble (1971) 125 CLR 296 and Gronow v Gronow (1979) 144 CLR 513. This principle has been expressed as high as “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”: see Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43] (with respect to a finding based in part upon assessment of the witness in the witness box). The reason for this approach is that appellate judges are in a “permanent position of disadvantage as against the trial judge” in assessing the evidence and the credibility of witnesses (Fox & Percy (2003) 214 CLR 118 at [77]).
As Ground 2 must succeed with respect to the property settlement orders it is unnecessary to traverse the other grounds that relate to these orders.
Ground 2
During the course of the trial, the parties agreed that their respective motor vehicles (and the debts associated with their motor vehicles) should not be included on the list of their assets and liabilities. This was a pragmatic approach to limit the issues at trial, given that the value of the motor vehicles, after deducting the debts related to them, was minor.
The primary judge adhered to this request, noting in a footnote that both the husband’s motor vehicle and the debt associated with it were excluded from the balance sheet set out in the judgment. Unfortunately, the motor vehicle, valued at $32,000, was included in a list of “Plant and Equipment” taken up in the balance sheet at $152,630: see [56] of Reasons. It was accepted by the respondent that this was an error and the total of the Plant and Equipment list should have been $32,000 less. This reduces the total net value of property of the parties from $425,172 to $393,172. Thus, the appellant has established that the primary judge erred by taking into account an irrelevant matter (the value of the appellant’s motor vehicle) when considering the factors pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Having regard to the total of the parties’ assets and their financial circumstances, it cannot be said that this error (inadvertently attributing an additional $32,000 in assets to the appellant) is so small as to be negligible or immaterial.
Counsel for the respondent argued that the error could be corrected pursuant to the slip rule. No application has been made to the primary judge to correct the orders pursuant to the slip rule, by either the appellant or the respondent. The operation of the slip rule is set out by the High Court in DJL v The Central Authority (2000) 201 CLR 226 at [93]:
Ordinarily, [the slip rule] is limited to correction of the formal record for accidental mistakes or omissions of no substantive significance. Similarly, when it can be shown that a court order does not correctly reflect the court's decision as contained in its reasons, rectification of the order is viewed as nothing more than a mechanical task.
(Footnotes omitted)
In this case, the error occurred in the primary judge’s findings as to the assets of the parties, which then formed the foundation for considerations of contributions, other factors, and whether any particular orders are just and equitable. The terms of the orders made were those intended by the primary judge. The error was not simply an error in the wording of the orders or the mathematical calculations when converting the substantive findings in the judgement into orders. Rather, the error was with respect to a finding of fact, which formed the basis for subsequent findings as to contributions, future needs, and whether the overall outcome was just and equitable. The slip rule does not accommodate an error of the type that has occurred in this case.
The respondent offered to agree to a correction of the error mathematically (otherwise maintaining the findings of the primary judge and the percentage division of the property) or for the trial judge’s discretion to be re-exercised on the appeal. This would have been a convenient and cost-effective approach. However, this was not accepted by the appellant who seeks a re-hearing.
A re-exercise of the discretion must be based upon the facts and circumstances as at the date of the re-exercise of the discretion, which requires that the parties be given an opportunity to lead further evidence if they wish to do so: see Allesch v Maunz (2000) 203 CLR 172 at [31]. The appellant seeks a re-trial as he wishes to lead further evidence about events he says have occurred since the date of the judgment. As was said by the Full Court in Marcin & Marcin (2020) FLC 93-956 at [161], the Appeal Court “is ill-equipped to receive fresh controversial evidence and so, in that event, there would ordinarily be little realistic option but to remit the proceedings for re-hearing,” and as a result, a re-exercise of the discretion by the Appeal Court “is only available if the parties agree to proceed in that fashion, without needing to adduce any further evidence to deal with asserted material changes of circumstances in the interregnum”: Marcin at [163]. As the appellant seeks to adduce further evidence, there is no option other than to remit the property settlement application for a re-trial.
As the property settlement application must be remitted for re-trial on this ground, there is no need to traverse the various other grounds that go to the property settlement issues.
Grounds of Appeal relating to parenting issues
The appellant also appeals against the parenting orders. It is therefore necessary to consider the grounds of appeal that go to the parenting issues.
Alleged error of fact concerning the parties’ child’s medical costs (Ground 5)
At [97] of the Reasons, the primary judge found that "The [mother] has also met the cost of [X]'s specialist appointments and medication." The appellant alleges that there was no evidence before the Court to support this statement. Two difficulties confront the appellant. Firstly, the respondent’s financial statement lists medical expenses and the appellant’s does not, thus providing an evidentiary basis for the finding. Secondly, the appellant is pursuing the appeal without providing the transcript. As there is no transcript, the appellant is unable to show that there was not oral evidence that supported the primary judge’s findings. This ground cannot succeed.
Alleged error concerning mother leaving the home (Grounds 6-10)
The events that took place in November 2020 were identified with some precision at [19] to [23] of the reasons. The father claims that the mother accelerated her car towards the father while he was standing in the driveway, resulting in him jumping out of the way. The mother claims the appellant was trying to stop her from leaving, that she found it threatening, and reversed the car away from him to escape. After the mother left, unbeknownst to her, the father reported the incident to the police. The police attended upon the parties’ home. X was present when this occurred. The mother left with the police, following them in her car. The mother was distressed that X was home while the police attended. The primary judge found at [101] that “The [father] remained resolute that seeing the police remove the [mother] from her home would not have had any impact upon [X]”. The father said he could not remove X as he did not know when the police would come. The mother later returned with police to pack her things and leave. X was asked whether he would like to go with the mother or stay at the home with the father. X chose the latter.
In De Winterv De Winter (1979) 23 ALR 211 at 217 the High Court observed, with respect to mistakes of fact by a trial judge, that:
… It may, in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
At [101] of the Reasons, the primary judge turned to consider the capacity of each of the child’s parents to provide for the needs of the child, including emotional and psychological needs, as required by s 60CC(3)(f) of the Act. His Honour referred to the events that occurred when the parties separated and the mother ceased living at the matrimonial home. The primary judge set out at [101] that the parties’ child witnessed “his mother being removed from the family home.” The appellant argues that the phrase “removed from the family home” does not accurately describe the events that took place.
The details of the events were the subject of specific findings by the primary judge at [19] to [23]. The police did not physically remove the mother from the home, nor did she resist or obstruct the police. The mother later returned with police to pack her things and leave after the child was asked about which parent he wished to live with.
In substance, the events of the day were precipitated by the father’s complaint to the police (concerning family violence by the mother). This resulted in the police involvement, which had the effect of removing the mother from the home, albeit ultimately by her leaving. I reject the father’s claim that the mother could have stayed in circumstances where the police had attended and interviewed her with respect to a claim by the appellant that she had committed family violence against him, even though he claimed the family violence was not physical violence or threats of physical violence. The family violence complaint by the father was later dismissed by the state courts. This does not change the difficult dynamic of the situation that unfolded as a result of the husband’s complaint to the police at the time. However, it highlights that an unfounded complaint of family violence to the police, who attended and investigated (as they were obliged to do), caused the mother to leave the home.
The primary judge’s description of the incident at [101] does not appear to have been intended to be read literally, but rather captured the essence of the events which was that the complaint by the appellant and subsequent police involvement caused the mother to be removed from the home, and likely provided a more accurate description of the subjective impressions of a child experiencing the events.
The appellant also complains that the primary judge erred in finding that "a police officer ask[ed] [the child] with whom he wanted to live at the time." It appears that the question was not put to the child directly by a police officer but by a parent at the request of the police. The error of fact, in the context of the events (where the question was put because the police were present and the mother was leaving the home) is immaterial as the relevance of the events was that the child was required to choose between parents at a time when the police were at the home and effectively directing arrangements.
The appellant complains about the further finding in [101] that “The [father] has also engaged [X] in the litigation process”, alleging that the court involved the child by appointing an Independent Children’s Lawyer. The quote is selective and must be read with the remainder of the sentence: “… by impressing his own views on him” written in the context of the paragraph which was discussing the events where the police attended. It was clearly open to the primary judge to find that the appellant had effectively involved the child in the litigation process as a result of the course of events that day.
The appellant has not demonstrated that the findings at [101] contained errors of fact that were material in the context of this case. In any event, when the judgment is read as a whole, it is apparent that orders providing for the child to spend equal time with each parent were so plainly right, in the circumstances of this case, that those orders should be allowed to stand.
Other grounds
Whilst a number of the other grounds address the number of days per week that one or the other party was working early in the relationship, they address the contributions findings for the purpose of the property settlement orders and not the parenting findings, which were necessarily influenced by more contemporaneous events. These matters were not material to the parenting decision.
CONCLUSIONS
The appellant has succeeded in his appeal with respect to the property settlement orders. For the reasons set out above, those orders must be set aside and the matter remitted for re-hearing on the property settlement issues. To the extent that the appeal relates to parenting issues the appellant has been unsuccessful.
COSTS
The appellant has succeeded on a point of law. It is appropriate that the respondent have a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal. There is no need for a certificate for the appellant as he was unrepresented during the appeal process and did not incur the costs of a transcript.
I am satisfied that the respondent should have a certificate under s 8 with respect to the costs of the new trial. With respect to the retrial, the appellant has provided no information as to whether he incurred costs in the trial or whether his costs were met by the funding scheme for matters where s 102NA orders have been made. In the absence of evidence of the appellant having incurred costs for the first trial I am not persuaded to order that he have a certificate with respect to the costs of a re-trial.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 2 May 2024
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