MM & AEM
[2006] FamCA 58
•16 February 2006
[2006] FamCA 58
JFMMAEM
FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
Appeal No. EA 113 of 2005
File No. PAF 1095 of 2004
IN THE MATTER OF:
MM
Appellant/Wife
- and -
AEM
Respondent/Husband
REASONS FOR JUDGMENT
BEFORE: Holden, Coleman & Warnick JJ
DATE OF HEARING: 8th day of December 2005
DATE OF JUDGMENT: 16th day of February 2006
APPEARANCES: Ms Winfield of Counsel, (instructed by Griffin Lawyers, Level 12, 418A Elizabeth Street, Surry Hills NSW 2010) appeared on behalf of the appellant wife.
Mr Dura of Counsel, (instructed by Levy Partners, 14 Pope Street, Ryde NSW 2112) appeared on behalf of the respondent husband.
Ms Druitt of Counsel, (instructed by Legal Aid Commission, Level 3, 85 Flushcombe Road, Blacktown NSW 2148) appeared on behalf of the children.
Name of Appeal MM & AEM
Appeal Number EA 113/2005
Date of Appeal hearing 8th day of December 2005
Date of Judgment 16th day of February 2006
Coram Holden, Coleman, Warnick JJ
Catchwords: Appeal against orders for residence, contact, specific issues and settlement of property and refusal to stay orders made in children’s proceedings.
Application to adduce further evidence dismissed – not established that further evidence, if accepted, would render erroneous the trial Judge’s conclusion.
Appeal grounds essentially asserting inadequate or excessive weight given to relevant facts and circumstances – challenge not made out - no appealable error demonstrated in accordance with House v The King (1936) 55 CLR 499.
No order for costs despite appellant’s lack of success by reason of disparity of financial circumstances of the parties.
Appeal dismissed
No order for costs
By Amended Notice of Appeal filed 8 November 2005 the wife appealed against orders made by Watts J on 31 August 2005 in proceedings between herself and the husband. The orders made by Watts J related to residence, contact, specific issues and settlement of property. The wife appealed against all orders made by the trial Judge and sought, in lieu thereof, the relief particularised in her Amended Notice of Appeal, the effect of which, if granted, would be to restore the residence of the children to the wife and to provide a more substantial settlement of property for her than did the trial Judge’s orders. The husband opposed the appeal and sought to maintain the trial Judge’s orders.
At the completion of the hearing of the appeal, the Court dismissed the wife’s appeal so far as it related to children’s issues, but reserved its judgment with respect to property settlement.
THE FURTHER EVIDENCE APPLICATION
The wife filed an application for leave to adduce further evidence in the appeal. In support of that application the wife filed affidavit material which was largely superseded by a document supplied to the Court by the wife’s counsel which outlined the “FURTHER EVIDENCE SOUGHT TO BE RELIED ON”. With respect to grounds 4, 5, 10, 11 and 13 of the Amended Notice of Appeal, a number of references to the transcript of proceedings subsequent to the trial Judge’s judgment were provided in support of the application to adduce further evidence.
It was conceded by counsel for the wife that the entirety of the “FURTHER EVIDENCE SOUGHT TO BE RELIED ON” related to events subsequent to the trial Judge’s judgment. Without referring to it in detail, neither individually nor collectively could the further evidence, much of which was inconclusive, or, to the extent that it was evidence of the husband, contained no admissions, satisfy the requirements for a grant of leave to adduce further evidence in that the further evidence, if accepted, would not render erroneous the trial Judge’s decision (see CDJ v VAJ (1998) 197 CLR 172). In reality, many of the transcript references reveal matters which the trial Judge’s reasons for judgment suggest his Honour had anticipated, and taken into account in concluding as he did with respect to the matters to which such evidence related. Nothing more can productively, or needs to be said in relation to the application for leave to adduce further evidence which the Court rejected during the hearing of the wife’s appeal.
BACKGROUND
Some background to the proceedings is appropriate. The following matters find expression in the trial Judge’s Judgment and are not controversial. The wife was born in 1968 and was thus 37 years of age at the date of the trial Judge’s judgment, whilst the husband, who was born in 1971 was then aged 34.
The parties commenced cohabitation at some time during 1998, their accounts differing by 10 months as to when cohabitation in fact commenced.
There are two children of the marriage, E who was born in 1999 and A who was born in 2001, the children being aged 6 years and 4 years respectively at the date of the trial Judge’s orders.
The parties separated in late July or August 2003, at which time the children continued to reside with the wife. Contact orders were made thereafter from time to time. Contact was problematic. The trial Judge, for reasons which he gave, concluded that the best interests of the children required that they reside with the husband and have contact with the wife.
The trial Judge found the assets of the parties to be worth $2,506,317.61 net, and ordered that such assets be shared between the parties as to 22.5 per cent of the net pool of assets to the wife and the remainder to the husband.
THE TRIAL JUDGE’S JUDGMENT
10. In a detailed and thorough judgment, the trial Judge identified the issues before him, made findings of fact, the latter reflecting the trial Judge’s preference for the evidence of the husband to that of the wife, whose evidence was found to have “lacked credibility in a number of areas”, the wife having “deliberately lied” or been “dishonest” (Judgment, paragraph 26).
11. The trial Judge referred to the expert evidence of Dr F, a medical practitioner with specialist qualifications in child psychiatry gained in approximately 1978. Dr F prepared a report in relation to the proceedings before the Court. The trial Judge referred in detail to Dr F’s report which, on balance, provided support for the wife retaining residence of the children, albeit on the basis that the father have “[m]ore regular and longer contact visits”(Judgment, page 20).
12. His Honour referred in detail to the cross-examination of Dr F. He also referred in detail to a number of “PARTICULAR EVENTS”, making findings of fact in relation to each of such events.
13. The trial Judge referred seriatim to the provisions of s 68F(2) of the Family Law Act 1975 (Cth) (“the Act”). The relationship of the children with each of the parents was considered, his Honour concluding that “both girls are attached to their mother” and that the children have a “good and affectionate relationship with their father” (Judgment, page 32). The children were found to have “a close and loving relationship with both the mother’s and the father’s extended family” (Judgment, page 33).
14. Under the heading “EFFECT OF SEPARATION FROM THEIR MOTHER”, the trial Judge noted that an order for residence in favour of the father would change “the situation that has existed until now”, and would involve the children “being separated from their mother for the first time in their lives”, the children having not “spent more than 3 nights away from their mother” (Judgment, page 33).
15. His Honour referred to a number of submissions made on behalf of the wife with respect to the “significant status quo” in favour of the mother and to the possible impact on the children of their removal from their mother’s primary care, but concluded that “the risks to the children of not making a change far outweigh the risks associated with making a change” (Judgment, page 33).
16. No “practical difficulty in relation to contact” was found to exist.
17. The “PARENT CAPACITY AND THE PARENTS’ ATTITUDE TO THE RESPONSIBILITIES OF PARENTING” were considered in detail by the trial Judge, who noted that the wife’s “ability to look after the children physically” was unquestioned, but that the wife was “compromised by her chronic anxiety” which had not been “adequately treated” (Judgment, page 34). The wife’s failure, without reasonable cause, to facilitate contact in accordance with Court orders was discussed by his Honour who concluded that the wife “treated the children as property” being “unable to understand that others were involved in the lives of the children” (Judgment, paragraph 136).
18. The husband was found by the trial Judge to have the capacity “to properly care for all of the children’s needs”, rejecting each of the complaints made by the wife with respect to the husband’s parenting capacity for reasons which appear in some detail. His Honour accepted that the husband would modify his “working practices to be able to provide parenting time for the girls” (Judgment, paragraph 149). The husband’s financial ability to modify his working times to be more available for the children was considered by the trial Judge who made findings favourable to the husband in that regard.
19. Various allegations and counter allegations of “VIOLENCE AND ABUSE” were considered by the trial Judge, his conclusions not providing cause for concern for the welfare of the children were they to reside with the father.
20. Under the heading “LIKELIHOOD OF FURTHER PROCEEDINGS”, the trial Judge had regard to the past history of proceedings, largely instigated by the husband, in his endeavours to secure compliance with orders for contact.
21. For the reasons which he had thus detailed, his Honour concluded that the children should reside with their father and have contact with their mother as defined by his orders.
THE APPEAL AGAINST THE TRIAL JUDGE’S ORDERS WITH RESPECT TO CHILDREN’S MATTERS
22. As indicated earlier, the Court dismissed the wife’s appeal with respect to children’s matters at the completion of the hearing on Thursday 8 December 2005, on the basis that reasons for such dismissal would subsequently be published. The Outline of Submissions on behalf of the wife in relation to the orders made by the trial Judge in the children’s proceedings encompasses the arguments presented by counsel for the wife on the hearing of the appeal. It was submitted that:
1. His Honour erred on the principles to be applied pursuant to Section 68F and relevant case law in ordering that the children live with the Husband on a day to day basis.
23. Reference was made to the fact that the proceedings were heard over a period of 5 days in May 2005 and the judgment was delivered “some 15 weeks and 5 days later `on 31 August 2005”. It was not submitted that any error thereby arose, nor was the Court referred to anything which established the possibility that such was the case. It was submitted that “[n]o interim orders were made at the end of the hearing and therefore it may be assumed none were deemed necessary at the end of the hearing”.
24. Counsel for the wife confirmed that we have not been referred to anything to indicate that anyone sought that interim orders would be made at the completion of the hearing. In reality, for the trial Judge to have made interim orders of significance, those orders could only have been to change the residence of the children from the wife to the husband, a step which would generally be undesirable in the absence of published reasons in support of such a significant change in the children’s living arrangements.
25. The complaint was made that the Court “set no date for a change of residence”. In the absence of any provision in that regard, the orders operated from the time they were made in the absence of any stay or delay in their implementation. Moreover, it was conceded on behalf of the wife that the trial Judge was not asked to defer the change of residence from the wife to the husband.
26. The further complaint was made that the trial Judge’s orders “made no provision for an orderly changeover”. We have not been referred to anything which suggested that the trial Judge was asked to do so. Moreover, it would be reasonable to assume that the parents would have the capacity, in the interests of the children, to facilitate “an orderly changeover” of residence pursuant to Court orders. Similar observations apply to the complaint that the orders “made no provision for the changeover to be explained to the children”. Nothing to which the Court has been referred raises any suggestion that these complaints have substance.
27. The wife complained that the trial Judge changed the residence of children “who had never been away from their mother for more than 3 nights in their lives”, a reality of which the trial Judge was clearly acutely aware. The trial Judge took that matter into account. It has not been demonstrated that the way in which he did was erroneous.
28. It was further complained that the children were then over a period of 12 weeks “to not spend one night” with the mother, having single day contact. The trial Judge provided reasons for so ordering. No error on his part has been shown to have been involved in ordering as he did.
29. To the extent that reliance was placed upon the written evidence of Dr F as suggesting “a very different outcome” to that determined by the trial Judge, the oral evidence of Dr F, to which his Honour referred in detail, was not in any way inconsistent with the trial Judge’s conclusion or his reasons for such conclusion. The trial Judge was well aware that “[t]he Husband’s care of the children alone was untested other than for two periods, 1 single night and 2 nights Easter 2005” and was also aware of the “evidence that a change of evidence was likely to cause the children acute stress”. His Honour took all of these matters into account. The passages in the evidence of Dr F relied upon by counsel for the wife were known to the trial Judge who dealt with such matters, together with a number of other matters which emerged from the oral evidence of Dr F.
30. It has not been demonstrated that the conclusion ultimately reached by the trial Judge was not reasonably open to him on the totality of the evidence, including the evidence of Dr F.
31. Ground 2 complained:
2. His Honour erred in the principles to be applied pursuant to section 68F in removing the children from residence with the Wife and ordering the children live with the Husband who had never cared for the children alone.
32. This ground appears to repeat to a large extent some of the complaints referred to in the preceding ground, but, as a reading of the submissions in support of the ground make clear, the criticism seems to be that the trial Judge unduly depreciated the significance of the status quo, the children having always lived with their mother, having only been separated for some three nights, and having had little experience of residing with their father. Those matters undoubtedly militated against an order changing the residence of the children. The trial Judge was aware of the facts in that regard, and referred to them. It is clear from his reasons for judgment, that the trial Judge was nevertheless satisfied that the father was capable of providing adequately for the children, that the children would be able to cope with a change of their residence to him, and that the wife’s demonstrated attitude to the relationship between the children and their father rendered such a course, though perhaps extreme, in the children’s best interests. There was evidence which enabled each of these conclusions to be reached.
33. The status quo is but one factor which the Court must consider pursuant to s 68F(2). The trial Judge did this and it has not been shown that he did so in a way which was not reasonably open to him. It is to be remembered that the trial Judge had, earlier in his reasons for judgment, set out in very considerable detail a number of events by which the wife provided ample foundation for the trial Judge’s adverse conclusions with respect to her credibility, capacity and attitude, all of which impugned the quality of the status quo. This ground lacks substance.
34. A further complaint was that:
3. His Honour erred in the principles to be applied pursuant to section 68F in ordering a change of residence when other alternatives were available to the Court such as contact changeover from school.
35. All that was submitted in support of this ground was the following:
Where difficulties occur at changeover times, this Court usually adopts a procedure of changeover from and to school or through a third person. This option does not appear to have been even contemplated although His Honour provided for it in order 8 (AB 14:12). (Appellant’s Outline of Submissions, page 4)
36. To the extent that these complaints extend to the provision for a changeover at school, although such prospects had not been specifically canvassed during the trial, it is difficult for the wife to now successfully raise that complaint given that, when she had the opportunity to do so, the wife chose not to provide parameters with respect to contact issues by making specific proposals in that regard. In any event, it is quite apparent that the matter of changeover at school was canvassed during the trial, as it is expressly referred to in paragraph 204 of the trial Judge’s reasons as a matter to which the husband agreed.
37. We have not been referred to anything in the transcript or elsewhere to suggest that the possibility of requiring changeovers to take place at school was urged upon the trial Judge as a reason for not changing residence from the wife to the husband. As was discussed during the course of counsel for the wife’s oral submissions during the hearing of the appeal, as the trial Judge correctly recorded, the wife did not in fact advance any proposals by way of contact, much less advance the particular matter now complained of. For a number of reasons, this complaint is without merit.
38. Ground 4 complained:
4. His Honour erred in finding in the absence of medical evidence “The mother in this case is compromised by her chronic anxiety”.
39. In the passages of Dr F’s oral evidence, which his Honour set out in considerable detail, ample foundation for his conclusion with respect to the wife’s anxiety can be found. It is to be recalled that Dr F was a “medical doctor” as well as a psychiatrist. As the passages relied upon by counsel for the wife make clear, his Honour’s conclusion was not the only possible conclusion, but, importantly for present purposes, it was a conclusion reasonably open to him. It is to be remembered that the trial Judge found that, pivotal to his conclusion with respect to residence of the children was that, for whatever reason, the wife had demonstrated an inability to promote a relationship between the children and their father which inability was, on the evidence before him, unlikely to change significantly in the future. This challenge accordingly lacks substance.
40. Ground 5 provided:
5. His Honour erred in failing to give adequate weight to the evidence that:
(a)the Wife had been primary caregiver to the children throughout their lives;
(b)the children had never spent more than 3 nights away from their mother;
(c)the Husband had never, alone, had the day to day care of the children;
(d)the Husband had a history of working long hours from 3 am;
(e)the children are aged only 6 years and 4 years respectively;
(f)the Wife had been subjected to domestic violence by the Husband;
(g)the impact of the domestic violence on the Wife as a cause of her stress.
(g)[sic] the impact of the alcohol and drug use on the Husband’s parenting capacity;
and the principles to be applied pursuant to section 68 Family Law Act before changing residence of children.
41. The trial Judge was acutely aware of, and in the course of his judgment dealt with, each and every one of the eight particular criticisms contained in this ground. To the extent that these matters involved disputed facts, as (f), (g) and the second (g) did, the findings of fact with respect to each of those topics favourable to the husband were made by the trial Judge who had, in considerable detail, indicated earlier in his judgment reasons for preferring the evidence of the husband to that of the wife. The position is thus that these three complaints are predicated upon assertions not found as facts and the relevant findings that were made have not been challenged in this appeal.
42. The first five criticisms, (a) to (e) inclusive, were all expressly referred to by the trial Judge and, it is clear beyond doubt, were matters taken into account by him in reaching his conclusion.
43. It is submitted that the trial Judge’s exercise of discretion involved “the incorrect application of the principles to be applied”. Nothing to which we have been referred or read for ourselves, suggests that the trial Judge failed to correctly apply any relevant “principles” in deciding the children’s issues.
44. The trial Judge clearly did have regard to the husband’s financial capacity to provide for the children consequent upon his work regime being “modified” as a consequence of having the children residing with him. Nothing to which we have been referred demonstrates error, of fact or otherwise, on the part of the trial Judge with respect to that topic. Ground 5 accordingly is without merit.
45. Ground 6 provided:
6. His Honour erred in making findings against the Wife’s credit and in making finding “the wife’s evidence lacked credibility because her chronic anxiety led her to a highly selective interpretation of some events”.
46. Nothing to which we have been referred provides the slightest foundation for accepting that the trial Judge’s finding with respect to credit was not reasonably open to him. The facts upon which his Honour relied for such finding have not been successfully challenged. Those facts provided ample foundation for the trial Judge preferring the evidence of the husband to that of the wife. This challenge thus lacks merit.
47. It was further submitted in the context of this ground that there was “an element of punishing the Wife as opposed to benefiting the children”. Nothing to which we have been referred provides any foundation for accepting that such was the case. Similarly, the assertion that the trial Judge “unduly allowed the proceedings to be conducted as adversarial litigation” is unsupported by anything to which we have been referred.
48. Ground 7 provided:
7. His Honour erred in, having made a finding “the wife’s evidence lacked credibility in a number of areas”, he gave undue weight to that finding balanced against the overwhelming objective evidence as to the wife’s care of the children.
49. It was submitted in support of this ground, as noted earlier (paragraph 47), that this was a case “which bears an atmosphere of punishing the Wife as opposed to what is in the best interests of the children”. It was submitted that there was “no evidence that the Wife had been anything other than an excellent mother in terms of her physical care of the children”. The trial Judge accepted, and expressly so stated, that this was the case. Whilst the wife may see the trial Judge’s decision as “punitive”, nothing to which we have been referred inclines us to that view.
50. Similarly, so far as the complaint that there “was no evidence before the Court of any immediate risk to the children, indeed the opposite” is concerned, the trial Judge did not find that there was any such “risk”. As a reading of the trial Judge’s judgment makes clear, the trial Judge had two choices, leaving the children with the wife in circumstances where the children’s future relationship with their father would be problematic albeit their physical care would be more than adequately addressed or, in circumstances where the physical care of the children, though adequate, may not be as well addressed, but the children’s relationship with their mother would continue, making an order that the children reside with their father. The evidence was capable of establishing “risk” in the sense in which his Honour used the word.
51. Neither choice of residence parent was ideal. The trial Judge realised this, as his reasons make clear at numerous places. His Honour could have reached a different conclusion. Were this Court to hear the case, its individual members, having seen and heard the witnesses, may not have decided as the trial Judge did. That however is not the test. The onus which the wife bears in this appeal is to demonstrate that the trial Judge’s conclusion was not reasonably open to him. As the authorities and the statement of principle by Stephen J in Gronow v Gronow (1979) 144 CLR 513 make clear, that onus is not lightly discharged.
52. This Court has not been referred to any fact or circumstance of significance to which the trial Judge failed to have regard. The fact that the trial Judge did not view such matters in the way the wife hoped and sought does not, without more, establish error on the trial Judge’s part. No doubt the wife, having lost residence of the children after being their primary carer for so long, would feel “punished” by the trial Judge’s orders. Unfortunately for the wife, the trial Judge’s obligation was to do what was in the best interests of the children having regard to the provisions to which s 68F of the Act directs attention. Nothing to which we have been referred establishes that “punishment” formed any part of the exercise of the trial Judge’s discretion. In fact, in a number of places in his judgment, the trial Judge’s sympathy for the position the mother had created for herself is apparent.
53. Ground 8 provided:
8. In the light of the opinion of Doctor F that:
(a)“…I believe that she would be distressed, anxious and angry about the girls having contact visits with their father, and that it may take several months at least for such emotions to start to resolve. If the mother continues to be very anxious and over protective, there is the potential for psychological harm to the children. I do not think that they have suffered harm to date as a result of her emotional state”; and
(b)“I think that it is probable that the father would be able to care for the children well if he were to become the parent of residence, but I cannot state this with certainty. More regular and longer contact visits would test this possibility, and would also test the mother’s capacity to manage her anxiety and to develop a more cooperative arrangement with the father”
His Honour erred in ordering that the children reside with the Husband immediately, or at all.
54. It is unnecessary to refer in detail to this challenge. The trial Judge referred extensively to Dr F’s written and oral evidence. It cannot be successfully contended that Dr F’s evidence, on balance, was inconsistent with the trial Judge’s conclusion. The trial Judge was obliged to have regard to a number of matters, including those with respect to which, as an expert witness, Dr F gave evidence. It was for the trial Judge, however, as the ultimate trier of fact, to decide, by reference to s 68F(2) of the Act, how the interests of the children would be best served. We are not satisfied that Dr F’s evidence rendered the trial Judge’s exercise of discretion other than reasonably open to him, albeit other minds may have concluded differently on the totality of the evidence.
55. Ground 9 provided:
9. In the light of the evidence of Doctor F and on all the available evidence His Honour erred in finding “Dr F on the other hand said that change may well avert some serious longer term negatives for the children should the change not be made” (AB paragraph 120 judgment) and in ordering that the children reside with the Husband. AB 95: para 120
56. The complaint in this regard was that:
this was not Dr F’s evidence.
Dr F’s evidence was:
“My concern would be that her anxiety and what I see as an exaggerated over-protectiveness would be potentially damaging for them in the long term if she sustains what I see as an unreasonably negative view of the father…” AB 637:12-14.
It is submitted that His Honour’s finding is not based on the evidence.
57. This submission fails to appreciate the distinction between findings of fact made by the trial Judge and expressions of opinion made by Dr F in his capacity as an expert witness. It is clear that Dr F’s concern was predicated on the wife sustaining “an unreasonably negative view of the father”. Determining whether or not the wife had such a view of the husband was a matter for the trial Judge who saw and heard witnesses, including the wife, tested over five days of the trial.
58. As the judgement of Heydon JA, as he then was, in Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 makes clear, it was open to the trial Judge, having found, as was open to him to do, that the wife had a sustained and “unreasonably negative view” of the husband, to conclude Dr F’s concern had foundation, and to rely upon such expert evidence in the course of exercising his discretion. We find nothing which the trial Judge said in this context warrants criticism. In fact, the trial Judge did no more and no less than was required of him as the ultimate trier of fact, assisted by expert opinion evidence. This ground accordingly lacks substance.
59. Ground 10 provided:
10. In the light of all the available evidence His Honour erred in finding “I find that in this case the risks to the children of not making a change far outweigh the risks associated with making a change” (paragraph 120 judgment) and in ordering that the children reside with the Husband. AB 95: para 120
60. It was submitted in support of this complaint that “there is no evidence on which to base this finding”. In reality the statement by the trial Judge was a conclusion. The conclusion was based upon findings of fact which have not been successfully challenged, and which were detailed in his Honour’s reasons. It is unnecessary to refer in detail to those reasons, which acknowledged all of the matters the subject of particular complaint in earlier grounds of the present appeal and, to the extent that they involved disputed issues of fact, were the subject of findings of fact which have not been successfully challenged.
61. The submission seems to involve a misconception as to the nature of the exercise of discretion by a trial Judge in a residence case. Exercising the discretion, in accordance with the provision of s 68F(2) of the Act, involved, in this case, a balancing of the “risks to the children” of changing residence or not changing residence. This the trial Judge did, explaining the process of his reasoning at considerable length, and with great care and thoroughness. We have been referred to nothing, and found nothing for ourselves, which would advance this ground.
62. Ground 11 provided:
11. His Honour erred in the principles to be applied pursuant to section 68F in, having made a residence order in favour of the Husband, limiting the Wife’s contact with the children for a period of 12 weeks from the date of the orders in the absence of evidence of any benefit to the children by those limitations.
63. Apart from the fact that the 12 week period complained of has now well passed, and the fact that the Amended Notice of Appeal does not complain about the orders for contact made in the wife’s favour, nothing to which we have been referred supports this challenge.
64. Ground 12 provided:
12. His Honour erred in the principles to be applied pursuant to section 68F in placing greater weight on the husband’s contact than on the need of the children to have continued day to day care by their mother and in otherwise placing undue weight on the Husband’s contact with the children.
65. This ground can be simply disposed of. Far from erring in the manner complained of, the trial Judge did precisely what s 68F(2) of the Act obliged him to do in the circumstances of this case. The findings of fact made by the trial Judge clearly obliged him to consider on the one hand the children’s entitlement to a relationship with their father and, on the other, the desirability of the children continuing to reside with their primary carer. The decision was, in accordance with decisions such as B v B [Access] (1986) FLC 91-758, consistent with the best interests of the children. Nothing to which we have been referred in support of this ground demonstrates that it has merit.
66. Ground 13 provided:
13. His Honour erred in the principles to be applied, when having made an order that the children reside with the Husband, he made no order as to the date the orders should come into effect and made no order that the change be explained to the children prior to their removal.
67. This has been dealt with earlier, and does not require revisiting. It is a ground without merit.
68. Ground 14 provided:
14. In all the circumstances of the case His Honour erred in making orders, which were not in the best interests of the children.
69. In support of the ground it was submitted that:
the only objective view which can be taken is that the children’s relationship with their primary caregiver to 7 September 2005 has been irreparably damaged by implementation of these orders. It is submitted, as a matter of law and as a matter of common sense, that this cannot be in the best interest of the children.
70. To read the submission is to readily appreciate its lack of merit. If, which the further evidence sought to be relied upon fell far short of establishing, the effect of the trial Judge’s orders proved to be as submitted, that may be a basis for a further application for residence. There was however no evidence whatsoever before the trial Judge to establish that the orders he proposed making would have the consequence asserted by this ground. A number of unchallenged findings of fact by the trial Judge provided support for concluding that the kind of obstacles to the father and the children retaining a relationship would not arise in the context of a relationship between the children and their mother if the children were to reside with their father in the future. This ground has no substance.
CONCLUSION WITH RESPECT TO CHILDREN’S MATTERS,
71. For the preceding reasons, the Court has dismissed the appeal against the trial Judge’s orders with respect to the children. It remains however to consider the challenges to the trial Judge’s decision with respect to property settlement.
THE APPEAL AGAINST THE TRIAL JUDGE’S REFUSAL TO STAY HIS ORDERS.
72. Having rejected the wife’s appeal against the trial Judge’s orders with respect to children’s issues, it is academic to embark upon a consideration of the appeal against the refusal to stay such orders. Even if this Court were persuaded that the trial Judge erred in declining to stay the orders changing the residence of the children from the wife to the husband, no practical benefit or consequence could possibly flow from such a conclusion. It is to be noted however that, somewhat unusually, the trial Judge heard evidence in support of the stay and exercised his undoubtedly broad discretion to refuse such stay. No useful purpose is served by our revisiting the stay issue. The appeal against the refusal to grant a stay, to the extent that it has not at least inferentially been dismissed, should be formally dismissed.
THE TRIAL JUDGE’S REASONS FOR JUDGMENT WITH RESPECT TO SETTLEMENT OF PROPERTY.
73. His Honour dealt in his judgment with a number of disputed issues of valuation, his conclusions in that regard not forming any part of this appeal, and concluded that the assets of the parties were worth $2,506,317.61 net.
74. The date of commencement of cohabitation was in contention before the trial Judge, the wife asserting February 1998, the husband December 1998. The trial Judge concluded that “between February 1998 and December 1998 the parties could not be said to be actually cohabiting” but did:
303. … during this period have a close and exclusive relationship spending a reasonable amount of time together and during this period the wife was making non-financial contributions towards the improvement of the BH property. The wife also fell pregnant with E during this period”.
75. His Honour then evaluated “INITIAL CONTRIBUTIONS” which included “Contributions to the BH property”. The latter contributions related primarily to the husband’s acquisition of the property in March 1998. Under the heading “RENOVATIONS OF BH”, the trial Judge referred to contributions to the improvement of the BH property subsequent to March 1998, such improvements including work done by members of the husband’s family and by members of the wife’s family.
76. His Honour found that by December 1998, the property was valued at $495,000.00, having increased in value by $145,000.00 in the short period during which the husband had owned it.
77. Reference was made to the “V STREET LAND” which the husband was found to have purchased in December 1998.
78. A number of “OTHER INITIAL CONTRIBUTIONS” were considered, these being contributions by each of the parties. The “FINANCIAL CONTRIBUTIONS” of the parties during cohabitation were discussed by the trial Judge. A number of “NON-FINANCIAL CONTRIBUTIONS” and “HOMEMAKER AND PARENT” contributions were considered, the latter including a finding that the wife “primarily undertook” the care of the children “during the cohabitation and after separation” and that the wife was “also the primary homemaker” (Judgment, paragraph 347).
79. His Honour set out in table form a “summary of the increase in the value of the BH property”. As the increase in the value of that property and its significance in the assessment of contributions is of considerable significance in this appeal, we set out the detail of the table formulated by the trial Judge:
| February 1998 | Relationship Begins | |
| Husband acquires property Mtge $280,000 Equity $70,000 | $350,000 20% | |
| Also husband pays stamp duty $11,244 | ||
| February 1998 – December 1998 | Husband and wife spend 2-3 nights together Parties renovate dwelling (wife and wife’s family do a lot) which adds minimal value to the property today | |
| Husband puts in $15,000 | ||
| December 1998 | Parties move into property. Cohabitation commences. Property has increased to Equity now (215 ¸ 495) | $495,000 |
| April 1999 | E born | |
| January 2001 | A born | |
| July 2003 | Separation. Wife and children continue to live in property Property value Equity now (1,175 – say 220 ¸ 1,175) | $1,175,000 |
| At some time after September 2003 | Further rezoning potential becomes know | |
| May 2005 | Property value $2,500,000 Mtge $193,000 Equity $2,307,000 | $2,500,000 92% |
| Increase in value from February 1998 to May 2005 | $350 to $2,500,000 = | 714% |
80. He then considered a number of authorities relevant to the “INCREASE IN VALUE OF THE BH PROPERTY” and cases relevant to “Short marriages” before reaching a “Conclusion about contributions to the increase in the value of the BH property”.
81. The “POST SEPARATION” period was considered, as was the “SALE OF THE V STREET LAND” at “the end of 2003” with a consequential payment to the husband of “$87,500 after payment of the mortgage” (Judgment, paragraph 371).
82. The trial Judge, for reasons which he identified as having been detailed in “paragraphs 297 to 397 above” concluded the “contribution to the overall net assets and superannuation by the husband to be 77.5% and by the wife 22.5%” (Judgment, paragraph 380).
83. The trial Judge then, under the heading “SUBSECTION 79(4)(d)-(g) CONSIDERATIONS”, considered a number of factors made relevant by those sections and s 75(2) of the Act. Relevant in that regard were the following:
· The proposed property orders would not have an effect on either party’s earning capacity.
· The husband is in good health and has a capacity for gainful employment, such capacity being superior to that of the wife.
· The wife may need to obtain retraining, the length of the marriage having to some extent affected the wife’s earning capacity.
· The wife suffers from chronic anxiety.
· As a result of the orders, the husband will have significant property and primary care of the two children of the marriage. Consequently the child support received by the wife will be reduced, and the husband’s financial responsibility for the children will increase.
· Neither party has responsibility for any dependent adult, nor has either party commenced cohabitation with a person with whom they have a financial relationship.
· There was no application for spousal maintenance.
· Superannuation was taken into account as part of the net asset pool and therefore not under s 79(4)(e).
· The parties had not entered into a binding financial agreement.
84. For those reasons his Honour declined to make any adjustment to the contribution based entitlement which he had determined. The entitlements of the parties accordingly remained as 77.5 per cent on the part of the husband and 22.5 per cent on the part of the wife.
THE GROUNDS OF APPEAL
85. Ground 15 of the Appellant’s Outline of Submissions provided:
15. His Honour erred in failing to give adequate reasons for his finding and otherwise in the principles to be applied pursuant to section 79(4) in finding:
(a)that the Husband was entitled to receive 77.5% of the matrimonial assets; and
(b)that the Wife was entitled to receive 22.5% of the matrimonial assets AB 131: para 380
86. In support of the ground the following appeared:
It is submitted that it is unclear as to how His Honour reached his conclusions. While reciting the facts and law, His Honour does not indicate by what process he reached his conclusion.
87. In response, it was submitted on behalf of the husband that “in the circumstances of this case there is little more the learned trial judge could usefully have articulated by way of reasons for approaching the relevant contributions in the way in which he did” (Respondent’s Submissions, page 15).
88. It is clear, on the undisputed findings of fact made by the trial Judge, that the husband’s assets at the commencement of the relationship of the parties significantly exceeded those of the wife. In March 1998, by which time a significant relationship had commenced between the parties, the husband had not less than $62,169.84 which he applied to the acquisition of the BH property. That property had increased in value by $145,000.00 by December of that year. The trial Judge found the husband to have contributed equity of $70,000.00 or 20 per cent of the value of the property. That finding has not been challenged.
89. It is clear that the trial Judge made no finding as to the equity, if any, of the husband in the V Street land, either in December 1998 or at any other time. It is also clear that the trial Judge referred to the wife receiving some $22,000.00 of funds accumulated during cohabitation after separation (in July and August 2003). The husband was found to have received $87,500.00 from the realisation of the V Street land subsequent to separation. It is clear that the husband was found to have made the greater financial contribution on a periodic basis during cohabitation whilst the wife made the greater contribution as homemaker and parent. None of those findings has been successfully challenged.
90. All of these matters were detailed in paragraphs 297-397 inclusive of the trial Judge’s reasons. As paragraph 380 makes clear, those factors led the trial Judge to conclude the contribution entitlements of the parties to be in the percentages to which he referred.
91. The law relating to the adequacy of reasons is not in doubt and does not require extensive re-statement in this appeal. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279, McHugh JA said:
… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
92. The trial Judge’s reasoning process is apparent, and adequate. There is no doubt as to the factors to which the trial Judge had regard in reaching his conclusion with respect to the contribution entitlements of the parties. The “basis of the decision” is readily discernible. There is force in the submission on behalf of the husband that it is difficult to see what more the trial Judge could productively have said with respect to his conclusions. We are thus not persuaded that this challenge has substance.
93. Ground 16 provided:
16. His Honour erred in failing to give any or adequate weight to:
(a)the contribution made by the Wife and her family to acquisition, contribution and improvement of the BH property in the period February to December 1998 prior to the parties’ moving into the property;
(b)the contribution made by the Wife when the Husband stayed with her during the period February to December 1998 with little financial contribution to the household.
94. Reference was made to the trial Judge’s finding (paragraph 354) that:
The husband made a contribution initially of about $81,244 towards the acquisition of the BH property in February 1998. At the commencement of the relationship between the parties he had a 20% equity in the property. By the time the parties commenced to live together on a full time basis in that property, that equity had increased to 43%.
it being submitted that:
this finding ignored the uncontested evidence that the Wife and her family had improved the property before the parties moved into it at the end of 1998. Further it ignored the evidence of the contribution the Wife was already making to the welfare of the Husband prior to cohabitation when he stayed at her home and she at his. In about July 1999, some 4-5 months prior to cohabitation the Wife became pregnant with the parties’ first child E and her contribution to the three of them as a family commenced.
It is submitted that His Honour gives no indication that he took these factors into account in making the above finding. (Appellant’s Outline of Submissions, page 10)
95. As noted above, at paragraph 380 of his Judgment, the trial Judge referred to the preceding 82 paragraphs which led him to conclude as he did. In the context of examining the “INCREASE IN THE VALUE OF THE BH PROPERTY” (paragraph 348), the trial Judge referred to the renovation of the “dwelling” on the property between February 1998 and December 1998 recording “wife and wife’s family do a lot”. It is apparent from earlier passages in his judgment under the heading “RENOVATIONS OF BH” that the trial Judge was conscious of contributions made by or on behalf of each of the parties.
96. It is not suggested that his Honour’s detailed references to what was done by or on behalf of the wife were in any way erroneous, or other than reasonably open to him on the evidence. Significantly, the trial Judge noted (paragraph 323) that “[t]he contributions made by the wife and her family on her behalf between February 1998 and December 1998 are capable of recognition”. There can be no doubt that the trial Judge had regard to the contributions made by the wife and her parents to the renovation of the BH property. Nor can there be any doubt that the trial Judge was aware of the wife’s other contributions, to which he referred in paragraphs 303, 334, 335, 336, 337, 339, 340, 341, 342, 343 and 347 of his judgment.
97. The contributions referred to in this ground clearly having been taken into account, it remains to consider whether adequate weight was given to those contributions. The evidence does not suggest, nor does any submission made to us, any basis upon which the parties could have acquired the BH property but for the husband’s ability to provide not less than $62,000 in March 1998 for that purpose. As the trial Judge noted, that represented 20 per cent of the equity in the property. The trial Judge was entitled, in accordance with the decision in Pierce v Pierce (1999) FLC 92-844, to have regard to the husband’s initial contribution to the acquisition of the equity in the BH property.
98. The effect of the trial Judge’s conclusions, as his reasons confirm, was to divide the asset pool of $2,506,317.61 in shares of $563,921.00 to the wife, and $1,942,396.00 to the husband. For reasons which the trial Judge detailed, the determination of the entitlements of the parties involved the exercise of a broad discretion, albeit that discretion was required to be exercised judicially, and not arbitrarily. Nothing to which this Court has been referred suggests that the exercise of discretion was based upon any mistake as to the facts, on erroneous or misapplied principles, or was otherwise tainted by any identifiable error.
99. In Norbis v Norbis (1986) 161 CLR 513 Brennan J said at 539 – 540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made in not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite (1948) 1 All ER 343 t p.345 Asquith LJ. stated the rationale of an appellate court’s approach:
“…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
It may be that other judges would have awarded the wife somewhat more than did the trial Judge in reliance upon the evidence at trial. That however, as the authorities make clear, is not the test. In the circumstances of this appeal, to be successful, the wife must establish that the award fell beyond the ambit of a reasonable exercise of what was, on the facts of this case, a very broad discretion. The onus which confronts the wife in this case is not readily discharged, and nothing to which we have been referred, or discovered for ourselves, persuades us that the trial Judge’s conclusion with respect to contributions fell outside the ambit of a reasonable exercise of discretion. We thus find this ground lacks substance.
Ground 17 provided:
17. His Honour erred in failing to find that the increase in the value of the property was to be shared equally by the parties as distinct from a contribution made by the Husband.
It was submitted in support of the ground:
if the husband had a 20% interest in the property at the commencement of the relationship, then the increase in value during the relationship was 80%. It is submitted this should be shared equally between the parties to give the Husband 60% and the Wife 40% on contributions. In the marriage of Zyk (1995) 19 Fam LR 797; FLC 92-044.
Alternatively:
At the very least, and it is submitted that this approach is too conservative as it ignores the pre-cohabitation contributions by the Wife, if the Husband had a 43% equity in the home at the commencement of the relationship, the increase in value at the conclusion was 57%. It is submitted that if that increase were shared equally between the parties the Husband would receive 77.5% and the Wife would receive 28.5%. On either view, an order that the Husband receive 77.5% and the Wife receive 22.5% is too generous to the Husband. (Appellant’s Outline of Submission, page 10)
The first contention is readily able to be disposed of. On no basis that has been identified in this appeal could it be suggested that the trial Judge was obliged, given the undisputed circumstances surrounding the acquisition of the BH property in March 1998, to share the increase in value in the property equally between the parties. The approach of the trial Judge was not only open to him but, in our view, consistent with the logic which underpins decisions such as Pierce v Pierce.
Similar considerations apply to the second part of the submissions in support of this ground. It is simplistic, and not consistent with commonsense or authority, to seek to approach increases in property values in the way in which this ground contends. As noted earlier, nothing to which we have been referred suggests that, but for the husband’s initial, and substantial, capital contribution to the acquisition of BH, would there have been any property which could have appreciated in the way in which BH did. We thus find this ground lacks substance.
Ground 18 provided:
18. In all the circumstances of the case His Honour erred in making orders which were not just and equitable to the Wife.
It was submitted in support of the ground that:
taking all the circumstances of the case into account, the order made were not just and equitable to the Wife as required by section 79(2).
What those circumstances were, or how they combined to render the trial Judge’s order “not just and equitable” was never suggested. This ground has no substance.
COSTS
The appeal having failed, the husband has sought costs which the wife has opposed, essentially, and understandably, in reliance upon the very substantial disparity in the financial positions of the parties. Although all of the wife’s appeals have been found to be without merit, the difference in the financial positions of the parties, almost $1.5 million, is so substantial as, in our view, to render no order for costs the appropriate outcome, and we will so order.
ORDERS
That the application for leave to adduce further evidence be refused.
That the appeal against the orders for residence, contact and specific issues, and the appeal against the refusal of a stay of such orders, be dismissed.
That the appeal against the orders for settlement of property be dismissed.
That there be no order for the costs of the appeals or the application for leave to adduce further evidence.
I certify that the preceding
109 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 16/02/06
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Appeal
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Jurisdiction
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Costs
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