Meadows & Meadows (No. 3)
[2020] FamCAFC 124
•26 May 2020
FAMILY COURT OF AUSTRALIA
| MEADOWS & MEADOWS (NO. 3) | [2020] FamCAFC 124 |
| FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders which provided for the father to have sole parental responsibility of the child and for the mother to have unsupervised time with the child – Whether the primary judge made errors of law – Adequate reasons – Where the findings made by the primary judge were open to his Honour – Weight challenges – Where the primary judge did not fail to take into account relevant matters – Appeal dismissed – Mother to pay the costs of the Independent Children’s Lawyer. FAMILY LAW – APPEAL – PROPERTY – Where the mother appeals from final property orders adjusting the parties’ property interests 55/45 per cent in favour of the father and dismissing the mother’s application for spousal maintenance – Whether the primary judge made errors of fact or law – Where the primary judge’s errors of fact were immaterial to the orders made – Where findings made by the primary judge were open on the evidence – Appeal dismissed. |
| Anti-Discrimination Act 1977 (NSW) s 54(1) Family Law Rules 2004 (Cth) rr 2.05, 15.44 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 De Winter and De Winter (1979) FLC 90-605 Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Meadows & Meadows [2020] FamCA 12 |
| APPELLANT: | Ms Meadows |
| RESPONDENT: | Mr Meadows |
| INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
| FILE NUMBER: | PAC | 3509 | of | 2013 |
| APPEAL NUMBER: | EAA | 77 | of | 2019 |
| DATE DELIVERED: | 26 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video and telephone link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 1 April 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 July 2019 |
| LOWER COURT MNC: | [2019] FamCA 491 |
REPRESENTATION
| THE APPELLANT: | Litigant in person |
| THE RESPONDENT: | Litigant in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fermanis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
Orders
The Application in an Appeal filed on 16 March 2020 to adduce further evidence in Appeal no. EAA 77 of 2019 is dismissed.
The appeal against the orders of a judge of the Family Court of Australia made on 30 July 2019 is dismissed.
The appellant mother pay the costs of the Independent Children’s Lawyer fixed in the sum of $7,821 within 14 days of receipt by her of the cash component of the property orders made on 30 July 2019.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows (No. 3) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 77 of 2019
File Number: PAC 3509 of 2013
| Ms Meadows |
Appellant
And
| Mr Meadows |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 30 July 2019 a judge of the Family Court made final parenting and property orders in proceedings between Ms Meadows (“the mother”) and Mr Meadows (“the father”). The parenting orders are in relation to the only child of the parties’ relationship, B (“the child”), born … 2011. His Honour made orders that the father have sole parental responsibility for the child and that she live with him. His Honour’s orders further provide for an increasing regime of unsupervised time between the child and the mother.
As part of the same proceedings, the primary judge made property settlement orders as between the father and the mother which divided the then available property of the parties or either of them as to 55 per cent to the father and 45 per cent to the mother.
By her Amended Notice of Appeal filed on 25 September 2019 the mother appeals both the final parenting and property orders.
The proceedings between the parties have a long and somewhat complicated history and some background to those proceedings and the parenting orders made in relation to the child are useful to give context and understanding to the grounds of appeal.
The parties commenced to live together in 2001 in a property they jointly purchased at O Street, Suburb P (“the former marital home”). Although the parties separated in mid-2012, it was not until December 2012 that the mother and the child left the home. Sometime later, it seems in early 2013 the mother and child moved back to live in the home. In any event it appears that from that time, when the child was not in child care or spending time with the father, she was cared for by the mother.
In July 2015 property and parenting proceedings as between the parties came before the Federal Circuit Court and a judge of that Court made orders that the parties and the child attend a Child Dispute Conference. It was recognised that at this time, the child was regularly spending unsupervised time with the father. The parties were able to negotiate the time and facilitate the child’s travel to see the father, he living some distance from the mother.
In August 2016 the mother refused to allow the child to spend time with the father and, on the father’s subsequent application, in October 2016, interim parenting orders were made by consent which provided for the father to spend overnight time with the child each alternate weekend from Friday until Monday. Otherwise the orders provided for the child to live with the mother.
A further interim hearing was conducted in December 2016 on receipt of a Family Report prepared by order of a judge of the Federal Circuit Court, and as a result, orders were made in January 2017 that the child live with the father and spend overnight time with the mother each alternate weekend from Friday until Sunday and on other specified occasions. The time that the child spent with the mother was to be had at the home of the maternal grandparents with one or both grandparents being present. This order was expressed to be pending the mother having a psychiatric assessment.
The mother saw the child in accordance with the orders made in January 2017.
Although attempts were made by the Independent Children's Lawyer to make arrangements for the mother to attend an independent psychiatric assessment, the mother refused to attend and has maintained that refusal.
Some six months after the delivery of the interim parenting orders, the judge transferred the matter to the Family Court. Further applications brought by the mother were determined by a judge of the Family Court on 10 October 2017 but in the result, no change was made to the interim parenting orders that the child live with the father. In the course of making those orders, the judge made orders that the mother participate in a psychiatric assessment if she agreed.
On 5 November 2017 the mother refused to return the child to the father after spending time together. As a result an Application in a Case seeking recovery was made by the father on 10 November 2017 and an order was made for the child to be returned to the father on that date. Shortly afterwards, the earlier interim parenting orders were amended to provide that the mother’s time with the child be curtailed in that it would take place at a contact centre and the mother’s telephone calls with the child were to be supervised by the father with the option for him to terminate the call at the end of 15 minutes.
The mother steadfastly refused to see the child under this regime, maintaining that to be supervised would be to tacitly agree that there was a need for supervision. Shortly put, up to the making of the orders presently challenged on appeal, the mother had not seen the child since November 2017. She did however have telephone contact with the child.
An issue of considerable contention in the trial concerned the mother’s mental health. The father contended that the mother’s fragile mental health meant that she is a risk to the child if in her care. The mother denied that she had any mental illness.
By way of preamble to a consideration of the various medical reports tendered in the proceedings, the primary judge noted that for the duration of the parties’ relationship and from separation in 2012 until the end of 2016, the child had been in the mother’s primary care and there was no evidence that the child’s care had been in any way compromised by any mental health issues in the mother.
The primary judge noted, referring to medical records, that on 23 May 2014, the mother was seen by her local mental health team who considered her to be mentally unwell and she then held “persecutory beliefs” (at [34(b)]). The mother was involuntarily admitted to hospital for four days. Following her release from hospital, she was referred by her general practitioner to a clinical psychologist for assistance. Although the mother attended one session with the psychologist, she thereafter did not return. The primary judge at [35] concluded that there was little evidence for approximately two years after May 2014 that the mother “came to the attention of authorities or sought treatments”.
In support of the mother’s contention that she does not suffer from mental illness, the mother relied on a number of reports from practitioners not all of which were considered particularly helpful by the primary judge.
The primary judge’s conclusions on this topic were circumspect as dictated by the paucity of information before him. His Honour found that in May 2014, the mother suffered serious mental illness (at [39(a)]. His Honour referred to the mother’s complaints made to police that she was being stalked and harassed by unknown people as being an example of what the father referred to as the mother’s “erratic behaviour” (at [39(d)]).
His Honour concluded at [39(j)] that the consequences of the recovery order, namely the restriction and supervision of the mother’s time with the child, exacerbated what he considered may be the mother’s underlying personality traits to the degree that it rendered her unable to consider alternative positions so far as the care and her time with the child is concerned. By way of example, his Honour referred to the mother’s refusal to spend time with the child in accordance with the existing orders.
The mother has consistently maintained that the child is at risk in the father’s household as a result of issues of family violence that had been perpetrated on the father’s new wife, Ms F by her former partner. The mother said that this posed a risk to the child as did the mother’s contention that Ms F suffered from mental illness said to be evidenced to her having an eating disorder in her youth and other matters.
The mother obtained much of this information through documents produced on subpoenas and has maintained that the father and Ms F failed to disclose these matters and thus they were not before the Court or writer of the Family Report and so not properly considered.
The mother also maintained that the father has a past history of alcohol abuse and was prone to violent and angry outbursts.
His Honour rejected the mother’s assertions that the child is at risk in the father’s home. He too rejected the submission that the mother would intentionally harm the child if she spent unsupervised time with her. His Honour said: “I think it [sic] likely the mother does suffer from some personality challenges, but she appears to function in other aspects of her life without adverse comment” (at [40]).
Thus the primary judge concluded that the child would benefit from having a meaningful relationship with both of her parents and made orders that would re‑establish the child’s time with the mother without any need for supervision (because, his Honour said, given the mother’s steadfast refusal to have supervised time, there would be little point).
The primary judge concluded:
47.I am not satisfied that the mother presents as a risk of physical harm to [the child] or will expose her to neglect or family violence in her care. The mother’s history of care reflects positively on the mother. In respect of the issues discussed above relating to the mother’s health, I do find that there is a degree of uncertainty about whether the mother can protect the child from psychological harm that stems at least from:
a)her lack of insight into the importance of the relationship [the child] has now with the father and his family;
b)her inability to accept, as I find is clear, the benefits that [the child] obtains from her attendance at her current school; and
c)her “fixation” in seeking to establish fault in the father’s parenting style and decisions and also in the character and value that [Ms F] brings, as a step parent, to [the child].
48.I am not able to determine, on the evidence, whether some of the mother’s, at times, impulsive and denigrating behaviour is a feature of a psychological or personality trait or whether she has just presented poorly over the last two and a half years because of the stressors created by his [sic] litigation as set out previously.
(Emphasis in original)
The primary judge determined that the mother should spend increasing amounts of unsupervised time with the child up to them spending a day together. His Honour also made orders for telephone conversations between the mother and the child. His Honour reflected on the earlier interim parenting orders which allowed the father to limit the calls between the child and the mother to 15 minutes and concluded that the father had not acted unfairly in this regard. Thus the primary judge ordered there be telephone contact between the mother and the child each Wednesday and the Saturday on which the mother and the child do not spend time together. His Honour maintained the need for the father to supervise the conversation for the three months following the date of the orders and directed that the calls be no longer than 15 minutes or could be terminated by the father if the mother’s conversation with the child is inappropriate.
The appeal
The mother appeared for herself and drafted the Amended Notice of Appeal and the Summary of Argument filed 18 February 2020. Not all points sought to be raised were entirely clear on their face, even after hearing the mother’s oral submissions. We have nevertheless done our best to understand the points she sought to make on the appeal.
Parenting orders
Grounds 1 and 2
By these grounds, the mother challenges Order 9 which provides:
That the mother’s telephone conversations with the child, as provided for in Order 8 hereof shall be supervised by the father, or his nominee, for the next three (3) months only and are not to be lengthy. The father may terminate the call at the conclusion of fifteen (15) minutes of time or at any time he concludes the mother’s conversation with the child has become inappropriate.
Order 8 provides that the child and mother speak by telephone as agreed between the parents but otherwise “on at least between the hours of 6.30 pm and 7.30 pm each Wednesday and each non-contact Saturday.”
There is no utility in the grounds that challenge Order 9. The order’s duration has been run. The mother made telephone calls to the child in accordance with his Honour’s order and they were, no doubt, monitored as the order envisaged. However, the order was expressed to exist for a limited time, namely three months, and that time has now expired. Whether or not the mother can make good her challenges to the order, nothing can flow from it and this part of her appeal is futile. Although this was raised with the mother during argument on the appeal, she maintained her challenge contending that although the order was no longer on foot, it was “a false application of law that has adversely affected [her] time with [her] daughter and [their] relationship” (Transcript 1 April 2020, p.21 lines 22–23).
We note that in related proceedings brought by the mother while this appeal was pending, another judge of the Family Court expressed the view that although the primary judge’s orders provide that the telephone calls between the mother and child would not be supervised after the expiration of the three month period referred to in the order, his Honour opined that the order permitted the father to continue to be present during the calls to determine whether a call should be terminated either because of its length or the inappropriate nature of the conversation (see Meadows & Meadows [2020] FamCA 12 at [55(a)]).
With the greatest of respect to his Honour, that interpretation does not fit comfortably with the order when read as a whole, which in our view serves to specify the way in which the supervision to which the order speaks is to be exercised. Equally, this interpretation does not sit easily with the primary judge’s order for face-to-face time between the child and the mother which is to be unsupervised and his Honour’s reasons in general which recognise there may be uncertainties at the outset of the resumption of time between the child and the mother. Nor does his Honour contemplate a continuation of supervision when discussing the proposed order for telephone calls between the mother and the child (at [74(e)]).
Thus we are of the view that the supervision aspect of Order 9 made by his Honour was for a limited duration and the mother and child can expect that their telephone calls can be conducted in private without the father’s presence or hearing.
It is thus unnecessary to consider the various challenges to this order, however as the mother contended that the making of the order was illegal in that it mandated acts in breach of various statutes, we will consider that aspect of the ground only.
The illegality was asserted in a number of the arguments in this ground:
·the order offends the Anti-Discrimination Act 1977 (NSW) (“the Anti‑Discrimination Act”) by imposing unequal requirements on the mother and discriminates against her in a number of ways, as to gender, disability and as a carer;
·it discriminates against her because the primary judge accepted the father’s proposed orders and rejected hers, and the orders impose unequal burdens on the parties. The mother further argues that s 60CC of the Family Law Act 1975 (Cth) (“the Act”) requires that the child be afforded the protection of the laws relevant to her and these orders are in breach of those laws (Mother’s Summary of Argument filed 18 February 2020, paragraphs 1, 9 and 10); and
·the order is unlawful and is in breach of the Surveillance Devices Act 2007 (NSW) (“the Surveillance Devices Act”) and the Telecommunications (Interception and Access) Act 1979 (Cth) (“the Telecommunications Act”). Further the mother argues that the order evidences an error in the application of the law (Mother’s Summary of Argument filed 18 February 2020, paragraphs 2 and 5).
Discrimination and unlawfulness
The thrust of this ground is that the orders treat the mother differently to the father. That is undeniably so. Here, the mother contends that his Honour’s orders offend certain sections of the Anti‑Discrimination Act, including that relating to her having a disability. It is unnecessary to consider this part of the ground further because the Anti‑Discrimination Act has no application to orders made inter partes in Family Law proceedings.
Section 54(1)(d) of the Anti-Discrimination Act provides:
(1)Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of—
…
(d)an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment…
…
The mother further contends that the order requires a breach of both the Surveillance Devices Act and the Telecommunications Act.
Surveillance Devices and Telecommunications Acts
Section 11 of the Surveillance Devices Act makes it unlawful to publish or communicate the contents of a private conversation that has come to a person’s knowledge as a result of the use of a listening device. A listening device is broadly defined and includes a device which allows the other person to overhear the conversation. Relevant to this argument however is subsection (2)(a)(ii) of that section of the Surveillance Devices Act which excludes circumstances where the communication is made with the “consent, express or implied, of all the principal parties to the private conversation”. The mother, by telephoning the child in conformity with the orders implicitly agreed to the father overhearing it and no offence is committed.
Equally, the provisions of the Telecommunications Act concerns the interception of a conversation by means of a device whether attached to the telephone or whether by use of an extension handset. His Honour’s orders likewise engage no illegality because s 6(1) of the Telecommunications Act defines the “interception of a communication” as one done “without the knowledge of the person making the communication”. Here, as with the operation of Surveillance Devices Act, the mother’s making of the telephone call, understanding that the father is entitled to listen to it, amounts to her consent and, for the purposes of both Acts, amounts to her knowledge that the communication with the child is going to take place in the presence of the father. Thus no illegality occurs.
In respect of none of these aspects of Ground 1 has the mother established error.
Ground 2 also challenges Order 9 but here the mother contends that the order is inconsistent with the evidence of the expert witnesses. Given our earlier finding that the order has been spent, there is no utility in any challenge to it, and thus we do not propose to consider this ground further.
Ground 3
Here, the mother challenges the primary judge’s findings and consequential orders on the basis that the findings are inconsistent with the evidence and the professional opinions of medical practitioners. Further the mother argues that the primary judge has failed to give sufficient weight to evidence of her parenting of the child before the orders were made moving the child to live with the father and failed to give sufficient weight to the alleged risks to the child in the father’s household.
The mother contends that the primary judge’s findings as to: whether there is an unacceptable risk to the child in living in the father’s household ([29]–[30]); whether there is an unacceptable risk to the child living in the mother’s household ([31]–[35]); and his Honour’s consideration of the evidence relating to the mother’s mental health and parenting ability ([36]–[43]) were inconsistent with the evidence.
There is no doubt that many of the primary judge’s findings of fact about these matters were inconsistent with the mother’s submissions and her evidence. The ground here challenges the weight or importance given to certain evidence in the case as part of the decision making process. That act, the determination of what weight to give evidence is a matter quintessentially in the discretion of the primary judge and an appeal court will not interfere unless it is persuaded that the primary judge’s conclusion was “plainly wrong” (see Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) at 519–520).
Here it was not and we do not find this ground made out.
The risk to the child in the father’s household
Grounds 6, 8, 9 and 10 refer to the mother’s contention that the child is at significant risk in the father’s household. The mother argued that this risk arose from a number of factors: the father’s alcohol use; the father’s predisposition to being angry and violent; the father’s mental health; the father having stalked and intimidated the mother; and that his parenting style was detrimental to the wellbeing of the child.
Further, the mother contended that the father’s new wife, Ms F, was of fragile mental health because of an eating disorder from which she suffered as a child, some long‑standing mental health issues and being exposed to family violence from her previous partner, and these matters represented a risk to the child living in the same household.
While there was no doubt that Ms F had suffered from an eating disorder as a child and has a certain emotional fragility, the primary judge said that her evidence disclosed that she understood and was sensitive to the vulnerabilities with which she has been left. Equally, the primary judge did not accept that her exposure to family violence in her previous relationship amounted to a risk to the child in a household of which she is a member (at [46]).
The primary judge did not accept the mother’s arguments about the risk to the child from the father and found no evidence of alcohol abuse nor of violence and anger. As to the claim that the father stalked the mother, this was a matter she reported to police who concluded that the father had not stalked her (although the mother complains about the adequacy of the police investigation) and the father denied he had, a denial accepted by the primary judge which in the circumstances was open to him.
None of the mother’s complaints about the father’s household or his parenting style was accepted by the primary judge, again having assessed the evidence of both the mother and the father.
Ground 6
By this ground the mother asserts that the primary judge’s orders were based on inconsistent evidentiary findings. It seems from the mother’s Summary of Argument and from her oral submissions at the appeal hearing that the complaint is perhaps two-fold; first that his Honour gave undue weight on the evidence of Ms Z, the Family Consultant who prepared an expert report for the court and secondly that his Honour failed to give sufficient weight to other evidence which supported her contentions about the risk to the child in the father’s household.
Ground 8
Here the mother contends that the primary judge erred in making findings in circumstances where the father had failed to comply with the mandatory requirements of the Act, and in particular in relation to s 60CC(2) and s 60CC (3), in that the father failed to give proper account of the family violence and mental health issues in relation to Ms F as a member of the child’s household. As part of this ground, the mother contends that the father failed to disclose the family violence in accordance with Rule 2.05 of the Family Law Rules 2004 (Cth) (“the Rules”).
Ground 9
This ground argues that the primary judge failed to give sufficient weight to the father’s failure to disclose the “mental health factors” and previous family violence orders which affect the child’s household in determining where the child should live.
Ground 10
This ground asserts that the failure of the father to disclose these matters affected the conduct of the trial and has led to a failure to make orders that ensure the child’s safety.
Before dealing with this issue, it is helpful to provide some contextual background taken from the primary reasons for judgment and the transcript of the primary proceedings.
The father married his present wife, Ms F in 2018 although they had known each other for a longer time. Ms F has a child of her previous relationship who was born in 2011 and the father and Ms F have one child of their relationship who was born in 2018.
Through the inspection of documents produced under subpoena, the mother discovered that Ms F had been subjected to family violence at the hands of her former partner and Apprehended Violence Orders that were made for her protection had been breached by her former partner (Mother’s affidavit filed 11 December 2018, paragraph 80).
She further said that those documents showed that Ms F had been “hospitalised for suicidal behaviour and actions and also for [a]norexia and [bulimia]” (Mother’s affidavit filed 11 December 2018, paragraph 81).
She said that during the relationship the father “suffered alcohol and drug abuse issues” (Mother’s affidavit filed 11 December 2018, paragraph 83).
The mother’s affidavit continued and she said that the father had not disclosed to her “violence issues affecting his relationship” and she believed “his non‑disclosure has put [herself] and [the child] at a significant risk” (Mother’s affidavit filed 11 December 2018, paragraph 87).
The father’s affidavit did not respond to or comment on these assertions and neither did Ms F in her affidavit filed in the parenting proceedings.
Neither the father nor Ms F adverted to the past family violence between Ms F and her former partner in their affidavits or in the interviews with the Family Consultant. While they did not, the mother raised these matters both in her affidavits, in her interview with the Family Consultant and in her questions of the Family Consultant.
The mother extensively questioned the Family Consultant about the risks she perceived flowed from Ms F’s past mental health and the past family violence.
The Family Consultant had not been aware of these issues but on being taken to them said that she was not concerned for the child in that household for a number of reasons, first, she said, the father is very protective of the child and while he was not always in the house, he was supportive of her and secondly, she said that Ms F’s past history did not impact on her day to day parenting (Transcript 17 January 2019, p.16 lines 13–16).
The mother questioned the Family Consultant about concerns which she said arose because the child told her that she was on a diet and that the family had restricted sugar in their diets. Her concern was that in some way this was Ms F’s inculcation of the child with her own past eating disorder. The Family Consultant while understanding the mother’s anxieties, had no concerns, saying that Ms F is aware of her past illness and has sought help to manage it.
The Family Consultant said of the dietary restriction and whether she was concerned:
… Probably not very much more concern than for most children these days who are exposed to all kinds of messages, not all of them healthy, about diet and… weight and appearance. So I think when somebody has a history of those problems and they’re seeking appropriate supports and have a reasonable level of insight into how those problems might affect themselves and others, that would make me – and that – that’s what I understand is the case here – that would make me less concerned. I can understand how a mother would feel very concerned about their little girl making that comment.
(Transcript 17 January 2019, p.23 lines 32–39)
Equally, at this point the mother suggested to the Family Consultant that the child said she was made to drink lemon cordial on an empty stomach which made her vomit and the mother suggested to the Family Consultant that to drink lemon cordial on an empty stomach was a ploy used by those suffering from bulimia. This topic of questioning was disallowed by the primary judge on the basis that there was no evidence at all on the point to support the questions to the Family Consultant (Transcript 17 January 2019, p.25 line 29 to p.26 line 8).
The mother did not ask either the father or Ms F any questions about dietary restrictions or the child drinking lemon cordial. Those issues were only raised with the Family Consultant.
It was the mother’s contention that the failure of the father and Ms F to raise these matters that she identified as posing a risk to the child at any stage in the hearing impacted the trial, leaving the evidence incomplete and resulted in the Family Consultant having inadequate material on which to base her opinion. Further, the mother argues that the Family Consultant did not take that failure to disclose into account.
As to this last matter, the Family Consultant was indeed asked about this failure and said apropos the family violence, much would depend on whether the incidents were recent and if they were, she would have expected to be told about them (Transcript 17 January 2019, p.20 lines 27–30). She said however that she had some idea of an “issue” concerning Ms F’s ex-partner but said that since Ms F was not a party to the proceedings she was more focussed on the role of the parties, the biological parents (Transcript 17 January 2019, p.20 lines 32–35).
As to whether the failure to disclose this matter, the family violence and Ms F’s past medical history was an attempt to conceal those matter from view, the Family Consultant said:
… I’m not as concerned as I might be in other contexts. Because of the nature of the family dynamics in this particular matter, I can understand the difficulties in bringing up more information that then might be treated in a particular way that it mightn’t be in other family situations. So it concerns me a little bit, but it doesn’t – I also do find it to some extent understandable.
(Transcript 17 January 2019, p.21 lines 10–14)
As to the family violence, again this was a matter of which the Family Consultant was unaware but said having been made aware of these issues, she was not concerned for the child in the family. It is to be noted that she was not only informed of the past violence but also the present situation as described to her by the primary judge which is that Ms F and her former partner can now agree on time he spends with their child.
His Honour recorded at [26(m)(iv)] the Family Consultant’s view that based on the available evidence, Ms F’s emotional difficulties were historical and did not constitute a present risk factor.
His Honour considered the mother’s concerns for the child in the father’s household in the context of Ms F’s past emotional history and said at [29 (e)]:
… The mother’s attempt to point to [Ms F’s] history as a victim of serious family violence by her former partner… and seeking to blame [Ms F] in some way and asserting she puts both [Ms F’s daughter] and [the child] at risk, was without evidentiary foundation… I accept without reservation the evidence of [Ms F] about how she appropriately dealt with those issues to protect [her daughter]; that [the child] has not had contact with [Ms F’s former partner]; that there are now no current Apprehended Violence Orders in existence; that [Ms F’s daughter] sees her father by mutual agreement and that communication between her and [her former partner] has improved.
…
Perhaps even more concerning was the attack, for that is what it was, on [Ms F] by the mother arising from [Ms F’s] treatment for an eating disorder when she was a teenager – including some “self-harm” issues at the time. [The Family Consultant] did not regard those issues as a concern now. The mother, in trying to connect those issues with the food choices that [the child] now has in the father’s household (e.g. reduction of sugar), was a total disconnect… [Ms F] offered herself for cross‑examination by the mother. [Ms F] acknowledged she has suffered anxiety for most of her adult life; is appropriately medicated and has medical support. Although she had a “relapse” in her anxiety when [her daughter] was born in 2011, she had the insight to obtain treatment. No such difficulties occurred when [Ms F’s subsequent child with the father] was born in 2018.
No matter what the guise in which these issues are raised on the appeal, and as we have indicated, they underpin a number of grounds, the resolution of them was one of fact finding. The primary judge found none of the mother’s concerns made out and that finding was amply supported by the evidence before him.
It is not to the point, as the mother argued, that the father, unlike her, was not obliged to bring evidence of his parenting abilities. There was abundant evidence before the primary judge that reflected the quality of the father’s parenting of the child. The Family Consultant having spent time with the parties and the child described the child as resilient, articulate and making progress academically and socially” (at [26(i)]). She said the child was “a contended, well-looked-after” child (Updated Family Report dated 3 April 2018, paragraph 89). She said the child had a “warm and affectionate relationships with her mother and maternal grandparents” (Updated Family Report dated 3 April 2018, paragraph 92).
Again these findings are only vulnerable to appellate intervention if the appeal court came to the view that his Honour’s findings were not open to him on the evidence, not that another court may have come to a different view as to the facts (see Gronow at 519–520).
None of these grounds has been established.
Ground 7
This ground is to a degree aligned with these grounds (Grounds 6, 8, 9 and 10) as it is with Ground 1. The mother complains that the primary judge discriminated against her (contrary to the Anti-Discrimination Act) in that she provided considerable evidence as to her mental health but the father provided none despite her allegations that he had suffered from anxiety in the past and took medication for it.
The mother’s mental health had been an issue in the proceedings for some time and as we have indicated, his Honour recorded a period in 2014 where the mother was sufficiently unwell as to require involuntary hospitalisation.
At an earlier stage in the parenting proceedings, following the mother’s refusal to permit the child to spend time with the father, and in preparation of an interim hearing, the parties and the child were interviewed by Dr C for the preparation of a Family Report in November 2016. Dr C recommended that the mother be psychiatrically assessed. On 10 January 2017, a judge of the Federal Circuit Court made orders that the child move to live with the father and spend time with the mother on weekends provided that the time was spent at the maternal grandparents’ house. This order was to continue “pending a psychiatric assessment of the mother being carried out as recommended by [Dr C]”.
The mother did not have the recommended assessment but engaged a psychiatrist, Dr EE to conduct a review of relevant documents provided by the mother and from those documents offer a medical opinion.
At a directions hearing held to prepare this matter for trial, the mother sought and was given leave to file affidavits of medical practitioners, including Dr EE, to be relied on in the hearing before the primary judge. Their evidence and the weight attached to them is subject of another ground to which we will shortly turn. However, the fact is that it was the mother who produced and tendered the medical evidence concerning her mental health. None was required of the father nor do we understand did the Family Consultant recommend any information about the father’s mental health be obtained.
Thus the mother was not unfairly treated qua the father, as his Honour dealt with the evidence each party relied on and no error has been established; certainly there is no breach of the Anti-Discrimination Act.
None of these grounds is made out.
Ground 4
This ground primarily contends that his Honour failed to consider the practicability of the orders and their effect is that the mother and child do not spend significant and meaningful time together as required by the Act.
His Honour’s orders provide that the child spend unsupervised time with the mother in a regime of increasing hours over a six month period. The first segment of the orders provide that the mother and child spend four hours together each second Saturday for three months. Thereafter, for a further period of three months, the time is increased to six hours on each second Saturday and, at the conclusion of that period, the child and mother spend each second Saturday together from 10.00 am until 6.00 pm.
The father and child live near Suburb MM in Sydney, the mother lives in E Town, some 300 km from Sydney. Obvious logistical difficulties arise in exercising the ordered time with the child.
These orders however, need to be seen against the context of earlier orders. As we have said, in 2017, orders were made that enabled the mother and child to spend time together albeit in a supervised setting. This, the mother refused to do for reasons to which we have referred earlier. Thus, the fact was that at the time of the hearing before the primary judge, the mother had not spent any face‑to‑face time with the child for the best part of two years.
His Honour referred to this at [53] observing that the mother’s failure was likely to have caused the little girl some distress. His Honour acknowledged the futility of making an order for supervised time at [69] and said at [55]:
There are some practical difficulties and expense that currently arise from the distance between where the parents choose to live, but although not ideal, they are not insurmountable.
His Honour referred to the geographical distances again at [74(b)] and noted that where the mother lives will impact on the travel that the child must undertake in order to spend time with the mother.
The mother also argues that the form of orders does not enable the mother and child to spend significant and meaningful time together.
His Honour made the orders in the understanding that the mother would, in order to see the child, be required to travel from her home to Suburb MM. The form of the orders and the primary judge’s comments about how the ordered regime might extend to overnight time at [74(c)] make it clear that these orders are to re‑establish face to face time. It is clear that the primary judge anticipated that after the initial reintroduction of face-to-face time between the mother and the child, further and perhaps longer overnight time hopefully could occur. Seen in that light, his Honour’s orders were part of the process by which significant and meaningful time may be achieved.
The mother too complained that the orders were not practicable.
That the orders will inevitably cause the mother inconvenience was accepted. His Honour too understood that if, as those orders progress, the mother and child return to E Town to spend time, it will involve travelling for the child (at [74(b)]).
To the extent that the mother contends that the order is not practicable, that term, as it is understood in the context of the Act finds itself in s 65DAA and is a matter for consideration when considering whether a child spending equal time with parents is reasonably practicable in the context of having made an order for equal shared parental responsibility or substantial and significant time. It has no work to do here. If, by the complaint of the orders being impracticable, the mother means inconvenient, no doubt they are but it does not amount to an error by his Honour and this ground is not made out.
Ground 5
This ground challenges his Honour’s findings and consequential orders as being inconsistent with evidence and which demonstrate a failure by the primary judge of understanding the mother’s insight and understanding of the child’s needs. This ground further contends that the primary judge failed to take into account the mother’s earlier applications for orders that the child live with her, to spend time with her and for school holiday time.
At [26(i)] of the primary reasons for judgment the primary judge reflected on the Family Consultant’s report in which the Family Consultant commented on the mother’s refusal to exercise the ordered supervised time. The Family Consultant said, as his Honour noted, that “‘the lack of opportunities for [the child] to spend [face-to-face] time with the mother ‘is likely to have a detrimental impact on the relationship between [the child] and her mother’” (at [26(j)]). His Honour continued at [26(j)] and said:
… I entirely agree with this opinion. It only increases my level of concern about the mother’s insight and capacity to put her daughter’s best interests first, that reading such strong and clear opinions did not persuade the mother to change her stance. Rather, the mother only had one solution – that being the child should live with her.
In support of her argument the mother pointed to the myriad of applications she had made in the past seeking to have the child live with her and to spend time with the child, none of which has been successful. Thus she argued that his Honour clearly did not understand the efforts that she had made to see the child and his view that she lacked insight was wrong.
It was entirely open to the primary judge to conclude as his Honour did, that the mother’s refusal to see the child when supervised showed an inability to act in the child’s interests rather than her own. The mother’s repeated applications for time with the child, while no doubt show a keenness to see the child, do not make his Honour’s conclusion about lack of insight erroneous.
No error has been demonstrated.
Ground 11
This ground contends that his Honour afforded unreasonable weight to the child’s school reports in assessing the benefit to the child of her present schooling arrangements.
The father’s choice of school at which the child is enrolled has been a significant issue between the parties. It was undisputed that the mother had made considerable efforts towards the child’s education while she was primarily in her care. The Family Consultant refers to the mother home schooling the child and engaging her in extra-curricular activities. It is also clear that from the point at which the child moved to live with the father, the mother has opposed the father’s choice of schools. This opposition was played out at trial, the mother contending that the school was unsuitable for the child.
The primary judge said:
58. One issue of significant conflict between the parents is the continuation of [the child’s] primary education at [HHH School, KK Town]. The mother’s criticisms of the school are not accepted. Unlike the mother, the Court believes it is likely that [the child] gains some support from knowing [Ms F’s child] and some cousins attend the school. Her report (Exhibit 4), is glowing. The comments made to [the Family Consultant] by the school principal… (see paragraphs 72 to 75) reflect, and I accept, she is happy at the school and doing well. It seems to me that the mother’s reluctance to engage properly with the school is a feature of the mother’s insistence (without foundation) that the school is not in [the child’s] best interests.
The mother contends that the primary judge had insufficient evidence on which to make this finding and said that his Honour only had one school report before him. In fact, as the father said in submissions on the appeal, the primary judge had more than one school report – two were attached to his affidavit and one tendered to his Honour at trial.
The point, however is not how many school reports the primary judge had before him which formed part of his conclusion, it is the difficulty facing the mother in challenging his Honour’s finding of fact. As we have said, an appeal court will not interfere in a finding of fact unless the court is satisfied that the conclusion drawn by the primary judge was not open to be drawn on the evidence (Gronow at 519–520). That is not the case here. Although the mother does not accept the finding, there was abundant evidence to support it (see Edwards v Noble (1971) 125 CLR 296 (“Edwards v Noble”) at 304).
This ground also challenges the weight the primary judge attached to the mother’s refusal to return the child following spending time with her in November 2017 as reflected in his conclusions at [71].
The ground also includes challenges to the primary judge’s conclusions about where the child will live, again, as being against the evidence at [66]. The challenged paragraph reflects the primary judge’s conclusion flowing from the earlier findings. Those findings are undisturbed on appeal and the conclusion flowing from them is similarly unassailable.
This ground is not made out.
Ground 12
This ground contends that the primary judge erred in finding that the mother suffered from a mental illness and the mother asserts that the primary judge erred in fact finding and failed to give sufficient weight to the expert evidence about her mental health and her ability to care for the child.
The first part of this challenge can be readily dismissed. As we have indicated, the primary judge did not find that the mother had a mental illness. His Honour concluded based on medical records produced under subpoena that in 2014 the mother experienced a period of mental illness that saw her involuntarily hospitalised for a few days. There is no foundation for this challenge.
Turning then to the evidence of the medical witnesses, the primary judge had the benefit of an opinion and assessment of the Family Consultant who in the usual way interviewed the child, the parties and other relevant people. At an earlier time in the proceedings between the parties, another expert, Dr C prepared a Family Report dated 8 December 2016 for the judge then hearing the proceedings between the parties. The mother sought to adduce that report in the proceedings arguing that the Family Report was important because it gave a historical context to the child’s behaviour and she also argued that there were statements in the report with which the mother did not agree and about which she wished to cross-examine Dr C. The application was refused. The primary judge regarded Dr C’s report as having little weight given the time that had passed since it was made and that by reason of the nature of the hearing for which it was produced was conducted, she was not cross-examined. It is clear that the primary judge did not take the Family Report into account. Given the dispute before his Honour and the time that had passed since the making of Dr C’s report, his Honour’s conclusion about its relevance was entirely open to him.
At an even earlier point in the proceedings between the parties a Child Dispute Memorandum had been prepared by a Family Consultant after a brief interview with the parties. This was not before the primary judge and there is nothing to suggest that the mother asked that it be taken into account.
The mother adduced evidence from other medical practitioners on the issue of her mental health. Dr EE, a psychiatrist, conducted a review of documents stemming from 2014 around the time of the mother’s hospitalisation and based on his review of the documents, expressed a view about the mother’s mental health. Dr LLL is a General Practitioner whom the mother consulted and whose report concerned attendances and routine tests administered. Dr GG, another General Practitioner whom the mother consulted between January 2016 and December 2017, expressed the view that the mother did not suffer from a mental illness. All of the reports were before the primary judge.
While none of the witnesses was physically present, each was available to give evidence by telephone however neither the father nor counsel for the Independent Children's Lawyer wished to cross-examine them. The primary judge concluded that the weight to be attributed to the opinion of the medical practitioners was diminished because they were not cross-examined. We do not understand how those circumstances have any impact on the weight to be attributed to the reports and this statement by his Honour is incorrect. That they were not the subject to cross-examination simply means that the parties accept their evidence as reflected in the reports. Of course, his Honour could and it is tolerably clear, did regard those reports as having little forensic weight and set out the frailties of those opinions in his reasons at [36]. However, his Honour noted that none of those reports revealed any “psychiatric concerns” in respect of the mother (at [36(g)]).
Before we turn to the challenge, we note that before the Full Court, as before his Honour, the mother seemed to be confused by the process by which these experts gave evidence. The mother’s complaint was that had the experts been cross‑examined they may have given other evidence which would be helpful to her case. At least at one point in the trial, the primary judge pointed out to her that the evidence of the witnesses was that which was in their affidavits or reports and she was not permitted to ask further questions of them (Transcript 14 January 2019 “R1”, p.13 lines 24–26). Still the mother maintained the complaint on appeal and submitted that had the witnesses been called they may have clarified their opinions or “provided a lot more insight into the situation, particularly now that his Honour has decided to label me as mentally ill” (Transcript 1 April 2020, p.51 lines 42–43). This submission cannot be supported, the primary judge as we have already noted, made no such conclusion about the mother’s mental health.
We agree with the primary judge, the evidence of the witnesses called by the mother was or ought to have been complete in the form in which it was submitted. Whether or not they were available to be cross-examined, is not to the point. That they were not means that their evidence was not challenged. The mother is of course not a lawyer and this might be perhaps a matter of nuance, but nevertheless, the evidence she presented was unchallenged and she cannot complain because further information which might have assisted her was not adduced through cross-examination. It is also apparent that the mother believed that she would be entitled to cross-examine these witnesses and she erroneously referred to them as “single experts” a reference to witnesses whose evidence is obtained pursuant to r 15.44 of the Rules. None of the professional witnesses on whose evidence the mother relied were “single experts” in any sense. They were not appointed jointly by the parties as required by the Rules. The mother had no right to cross-examine her own witnesses.
The mother adduced evidence of a psychologist, Ms FF, with whom she had professional contact and who made a report which was before the primary judge. It appears that at some earlier time, Ms FF had offered some counselling to both the father and the mother and part of her report dealt with that counselling. So much of her report as detailed that contact was rejected by the primary judge. The balance of Ms FF’s report was admitted.
In essence, Ms FF had some early contact with the mother and father and, in 2018, had conversations with the mother and from which it seems Ms FF’s opinions stem. Ms FF filed an affidavit in the primary proceedings on 21 February 2018 which was before his Honour. Her opinion to which the primary judge adverted was as follows:
11.The telephone consultation on 20/1/2018 indicated that both [the mother] and [the child] appeared to be experiencing high levels of stress in regards [sic] the complete separation. The allowance of 15 minutes contact by phone three times a week appeared to be taking place under rigid and unfriendly supervision. It would be useful to request a psychiatric examination of [the father]. The father's situation is a complex one in which [the child] is an outsider. In my assessment of the current arrangement this is not in the best interest[s] of the child and a more equitable time division would be healthier.
12.In my assessment [the mother] is a safe parent, capable and willing to provide consistent and interested parenting.
(Annexure A to Ms FF’s affidavit filed 21 February 2018)
The primary judge observed that Ms FF had not seen the mother in person since 2014 and had never interviewed or seen the child. His Honour further noted that Ms FF was not aware of the contents of reports or other material then before him. It is clear then that his Honour regarded Ms FF’s opinion as having little weight in the determination of the issues in the case.
The Family Consultant suggested that the mother’s time with the child required monitoring by way of supervision. She agreed that her observations of the child with the mother were very positive and she did not doubt that the child enjoyed her time with the mother (Transcript 17 January 2019, p.11 line 45 to p.12 line 3). The Family Consultant said her principal concern was the mother’s actions in withholding the child and not returning her to the father and it being apparently without understanding of the negative effects it could have on the child. Although not of the same order of importance, the Family Consultant said that if the mother’s concerns about the quality of the child’s care in her father’s household and the quality of her schooling were found to be groundless, then she was concerned that the mother could not support the child in the placement with the father and, it seems might act or say something undermining of the placement.
Thus, Ms FF’s opinion about the mother’s parenting was different from that of the Family Consultant, given the obvious frailties on which Ms FF’s opinion was based, his Honour was entitled to rely on the opinion of the Family Consultant.
Here, that finding was open to his Honour and no error is established (see Edwards v Noble at 304).
The appeal against the parenting orders will be dismissed.
Property orders
The mother raises four grounds of challenge to his Honour’s final property orders (Grounds 13 to 16).
The primary judge compiled a table of the assets of the parties and each of them then available for distribution, coming to a net figure of $621,168 which included the parties’ superannuation entitlements in the combined figure of $201,990 (at [83]).
Having discussed the parties contributions during the marriage, including the mother’s contribution as primary carer of the child and accepting her contention that the father had the benefit of occupation of the former marital home, albeit paying the mortgage, whereas she and for significant time the child, were living elsewhere paying rent. His Honour took into account the relative disparities in the parties’ income and earning capacities. He concluded that the mother’s contribution based entitlements were slightly greater than those of the father and assessed them at 55 per cent in favour of the mother.
Taking into account the matters to which s 75(2) of the Act refers, his Honour took into account the relative disparities in their income and earning capacities. His Honour took into account that the father will be the principal carer for the child and that it was unlikely that the mother could make significant child support contributions towards her support and concluded that these matters spoke to an adjustment in the father’s favour of 10 per cent. His Honour’s orders then made overall adjustments to the property pool as to 55 per cent in the father’s favour.
Ground 13
Ground 13 contends that the primary judge made errors of fact in relation to the finances and the composition of the “asset pool”.
Value of the former marital home
The mother contends that the primary judge attributed the wrong value to the parties’ former marital home. His Honour referred to the valuation evidence and concluded that the home was valued at $620,000. That was an error. The valuer’s oral evidence was that he had made a mistake and the property was valued at $640,000 (Transcript 17 January 2019, p. 47 lines 35–41). Thus an extra $20,000 ought to have been added into the balance sheet in relation to the property. On the basis of the primary judge’s assessment of contributions and the adjustment by reference to the matters to which s 75(2) refers, the error if remedied would result in a further payment to the mother of $9,000 which in our view is de minimus in a pool of property for division of some $621,000 and thus the error is not material to the ultimate result (see De Winter and De Winter (1979) FLC 90-605).
Extent of the mother’s financial contributions to renovations to the former marital home
Next, the mother contends that the primary judge failed to give proper account to the efforts of the mother in renovating the parties’ property during their cohabitation. She claimed that not only did she do physical work on the property, which she carried out when the father was working, she purchased items for the renovations.
The primary judge referred to this at [82(e)] and after noting that there was a dispute between the parties as to how much each did in relation to the renovations, and also noting that there was little evidence on the topic before him, the primary judge said:
… [T]he [father] conceded the [mother] made some financial contributions to renovating the bathrooms. The [mother] says she did more than that… but as they were an intact couple at the time, I suspect they both contributed manually although the [father] with his skills probably did more work…
The finding was open to his Honour on the evidence although not a finding for which the mother contended. No error has been demonstrated.
Petrol for the car
The ground next complains that the primary judge was wrong in finding that for a time after separation, the father’s business paid for petrol for her car (at [82(f)]). The challenge is not to the fact of the payments but that the primary judge said that the mother conceded that to be the case. The written argument throws little light on the challenge. The mother in her Summary of Argument said:
76.… The [mother] advised of the struggles of facilitating the childs [sic] time with the father due to the petrol costs and maintenance costs of the vehicle on a centrelink [sic] benefit and of which the father conceded that he had not assisted the mother to repair the vehicle when she was predominantly reliant upon him.
(As per the original)
In an exchange with the primary judge the mother contended that during the relationship the father paid for health insurance and car running expenses from his business income. She complained that he ceased making those payments, and she complained that she had incurred considerable expense driving the child to see him. The exchange occurred during a discussion about the mother’s proposed cross-examination of the father on this topic (Transcript 14 January 2019, p.18 lines 33–44). It is tolerably clear that the mother’s position was that the father had for a time met the car expenses and petrol but stopped paying those expenses. Thus, it seems his Honour erred both in finding that the father paid those expenses after separation and in finding that the mother conceded that he had. While his Honour was incorrect in that finding, it is not material to his considerations of the contributions to the property and nothing flows from it.
Health Insurance
The mother too complained that despite an apparent agreement, the father stopped paying for her and the child to be covered by health insurance. This too was raised by the mother in discussion with his Honour. The father conceded that for a time he paid for health insurance coverage for the mother and the child but that stopped. Whilst far from clear, it seems that the child was on the mother’s policy but coverage so far as the child was concerned was “suspended” because the father did not pay the fees nor did the mother. The father said it was an “expensive policy” to maintain (Transcript 16 January 2019, p.101 line 30). The primary judge made no finding about the payment of the health insurance premiums for the mother or the child which the mother contends was an error in his Honour’s consideration of the parties’ financial contribution.
Given that both the provision of petrol and the provision of health insurance cover for the mother and child were matters in issue at or about the time of separation and noting that the father has had the virtual full time care of the child since January 2017, the mother had no need for the provision of petrol nor was she responsible for the child’s health insurance, the error, such as it is, is immaterial to the consideration of the contributions to the property.
Funds withdrawn from the home mortgage
It was uncontentious that the father had made withdrawals from the home mortgage for various reasons. In March 2015, he withdrew $4,000 to repay credit card debt. In February 2014 (after separation) a sum of $35,000 was withdrawn and lent to the mother’s parents. Of that amount, $30,000 was repaid and the balance outstanding plus interest was paid to the father but not repaid into the mortgage. The $5,000 was added back into the pool of assets. The mother contends that this was an error, saying that the father withdrew $40,000 from the mortgage and thus retained $10,000 not $5,000 for his own benefit.
During her cross-examination of the father on this point it emerged that $40,000 was withdrawn from the mortgage account, and the father said that that $35,000 was lent to her parents and the balance was used to pay credit card debt (Transcript 16 January 2019, p.144 lines 13–16). The father also said that the loan was repaid in two payments, the first of $30,000 and the second of $5,000 and he said that the mother’s father added another $1,000 by way of interest which he also kept.
Again, the mother is correct, his Honour was incorrect in ascribing the father as having the benefit of $5,000 plus interest which his Honour opined was not likely to be very much (at [86(h)]) but was, in fact, $1,000. The evidence before his Honour was that the father had the benefit of $11,000 drawn from the mortgage, and not repaid.
Although his Honour was incorrect in this finding, the consideration, as with the mother’s complaint regarding the s 75(2) considerations of the primary judge, is de minimus in a pool of property for division of approximately $621,000. This error is not material to the ultimate result of the primary judge.
Capitalisation of the father’s occupancy of the former marital home
The mother argues that the primary judge ought to take into account the benefit to the father of his occupancy of the former marital home since 2012 and that there should be a capitalisation of that benefit by reference to the rental costs of properties in the same area. It seems clear that there was no evidence of what those costs might be and in her Summary of Argument, the mother referred to the father’s “guestimate” of what rent was being asked for properties around the same area. The primary judge refused to bring the capitalised rental benefit into account but said that it was more properly considered in assessing contributions as his Honour did at [87(f)]. This approach was open to his Honour especially where there was no expert evidence on which any other approach could be taken.
Inadequate child support and HECS debt
The mother contended that while she had the care of the child, the father paid a minimal amount of child support at a time when she was struggling financially. She sought that the primary judge “add back” to the property pool an amount of $40,000 being child support that the father ought to have paid. His Honour at [86(k)] rejected this noting that there were means by which the mother could have sought a review of the child support payments at the time and, inferentially no evidence that she had or if she had that it produced a different payment, and thus there was no warrant for any money to be notionally added back.
The primary judge added to the pool of assets, the mother’s HECS debt incurred during her studies during the relationship. The orders have the effect of requiring the father to meet almost half of the outstanding amount of some $21,153. His Honour said that it accrued after cohabitation in 2002. The mother complains not about the order but that her last year of university was in 2005. The complaint is pointless.
Proceeds of a Vehicle 2
It seems to be undisputed that during the relationship, through the father’s business, he provided a Vehicle 3 for the mother’s use and she has been in possession of it since 2013. On the other hand, the father had a Vehicle 2 which, his Honour said was sold after separation and the proceeds partly used to purchase a Vehicle 4. His Honour while noting the transactions said that there was no evidence of the value of either car and thus would not include the vehicles either in the mother’s possession or in the father’s in the balance sheet. The mother complains that the primary judge failed to take into account that the father sold the Vehicle 2 and spent the proceeds of $3,000. His Honour did not fail to take it into account as can be seen from his discussion at [86(f)].
Ground 14
This ground contends that the primary judge afforded too much weight to the present living arrangements for the child in coming to a determination of the property matters and further “any reconsideration or appeal of the parenting issues needs to allow for reconsideration of the overall property pool division split” (Mother’s Amended Notice of Appeal filed 25 September 2019, p.5).
It is difficult to determine what complaint is being made through this ground and it seems merely to be a comment, however, notwithstanding the ground, the mother’s Summary of Argument traverses other complaints not necessarily connected with his Honour’s consideration of the father’s ongoing care of the child.
The mother’s contribution in caring for the child
For example the mother complains that the primary judge did not give sufficient weight to her financial struggles when she had care of the child as against the father’s relative superior income.
His Honour was well aware of the mother’s strained financial circumstances while having the care of the child and at [87(e)] the primary judge referred to her significant contribution in that regard.
The complaint then is one of the weight or importance given by the primary judge to the evidence. As noted previously in these reasons, the apportionment of importance to evidence is a matter for the primary judge and an appeal court will not interfere unless it is established that the primary judge was “plainly wrong” (Gronow at 519–520). His Honour was not. There is no error established.
The father’s occupancy of the former marital home
The mother complains that the primary judge failed to give sufficient weight in the mother’s favour to the father’s occupancy of the former marital home with his new partner while she was caring for the child and without his financial assistance. Further the mother complains that the primary judge failed to give sufficient weight to the circumstances in which the father has been living in the property and she has been living in smaller premises while awaiting a division of property. His Honour took the father’s occupation into account and considered it to be an indirect contribution by the mother, albeit noting that the father’s occupation included payment of the mortgage, rates and taxes on the property (at [87(f)]). No error has been established.
The nature of the father’s business
The mother further complains that the primary judge misunderstood the nature of the father’s business. The primary judge notes at [82(d)] of the primary reasons for judgment that in about 2010 the father incorporated a company which contracted work to him. For a few years from 2010 to 2013, the mother was an employee of the company and, his Honour concluded that it was a means by which the father’s income could be split as between the parties. The business also paid a number of expenses of the parties such as the provision of a car and petrol. His Honour accepted the father’s evidence that it was, in effect, his income that was making those provisions. The father’s business ceased trading in about October 2017 and he took up employment for another company. The mother asserted that at the date on which it ceased trading the business had a value of “up to $50,000” (at [86(j)]).
The primary judge rejected that assertion, noting that the mother produced no evidence to support her claim and his Honour found that at the time the business ceased trading its only assets were two vehicles. Equally his Honour rejected the mother’s assertion that in closing the business down, the father engaged in a reckless dissipation of the assets. The primary judge rejected the mother’s account of the father’s taxable income as being incorrect and he found that she had referred to the gross income from the business rather than the taxable income being that remaining after deduction and before tax (at [87(h)]). His Honour found that the father’s income from his then employment paid him about what he was earning through the business.
It is not apparent to us that his Honour misapprehended the nature of the father’s business and no error has been established.
Thus there is no substance to any of the complaints made under the rubric of this ground.
Ground 15
This ground challenges his Honour’s failure to make an order that the father pay spousal maintenance for the mother.
The primary judge found that the mother’s then current income of $560 per week was barely sufficient to cover her claimed expenses (at [99]). Nonetheless, his Honour was not persuaded that the mother was unable to support herself adequately. In coming to that conclusion the primary judge took into account that she the mother would receive funds from the property division (some $188,000), she was able to consider full time work since she will not have the full time care of the child and, referring to her evidence that she might move to a major country town, his Honour noted that might improve her finances, we infer by having more work opportunities available to her.
His Honour too considered that the father’s financial circumstances was superior to those of the mother, but observed the father’s obligation to provide care for the child, to pay for accommodation which necessitated mortgage repayments and to also care for Ms F, their child and her child of her previous relationship. He concluded that even if the mother was not able to adequately support herself, the father did not have the financial capacity to pay spousal maintenance.
Thus his Honour dismissed the mother’s application.
The ground further contends that the primary judge failed to give sufficient attention to the financial disparity between the parties and the capacity of the parties, and that the primary judge did not take properly into account the effect of the marriage on the mother’s capacity to obtain work.
The primary judge considered all of these matters, in particular his Honour noted that unlike the father, the mother had tertiary education and was at that time working part time as a receptionist in a medical practice.
The challenge to the orders then devolves as so many of these grounds did, to a challenge to the weight ascribed by the primary judge to the evidence. We are unpersuaded that any error has been demonstrated.
Ground 16
Ground 16 challenges the primary judge’s reliance on the submissions of the solicitor for the Independent Children's Lawyer, and in effect argues that the primary judge placed too much weight on them. The submissions of the Independent Children's Lawyer were just that, submissions, it was for his Honour to assess the evidence and determine what orders should be made. No error is established.
The appeal against the property orders will be dismissed.
Application in an Appeal
The mother sought leave to adduce evidence in the appeal, which are records from Family and Community Services (“FACS”) from February to March 2014 and February 2017. During the hearing before the primary judge, a bundle of documents taken from those files was tendered by consent. The documents sought to be adduced on appeal had not been amongst them. When asked whether this material was before the primary judge, the mother stated that there were quite a few documents in the FACS bundle and therefore it was an “oversight” on her behalf for her not to have tendered the documents she wished to adduce on appeal, in the primary proceedings. It is clear that the mother did not invite the primary judge to include further FACS documents in the primary proceedings, nor did she engage his Honour in a discussion about there being other documents that she wanted to tender even though she had the opportunity to do so.
When questioned about the asserted relevance of these documents at the appeal hearing, the mother stated that the FACS documents she wished to adduce were “used and discussed” during the primary proceedings, however was not tendered (Transcript 1 April 2020, p.3 lines 19–20). We assume this means that the mother wished for the entirety of the FACS material to be in front of the Full Court, however we do not understand the relevance of these documents on appeal.
The capacity of the Full Court to accept further evidence on appeal is constrained and the evidence which the mother would have had us accept does not fall within those constraints and thus we refuse the application (see CDJ v VAJ (1998) 197 CLR 172 at 201).
Costs
The father represented himself and did not seek an order for costs in the event that the appeal was dismissed. The Independent Children's Lawyer sought an order for costs in the sum of $7,821 to be paid by the mother.
The mother opposed the making of a costs order and submitted that she was not then working, was studying full time and was in receipt of a Centrelink allowance. She will however shortly receive the benefit of the property orders made by the primary judge and, although she submitted that there are already costs and expenses that need to be met from that sum, we are of the view that as the appeal has been wholly unsuccessful (s 117(2A)(e) of the Act), it is appropriate that the mother bear the costs of the Independent Children's Lawyer as claimed.
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I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 26 May 2020.
Associate:
Date: 26 May 2020
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