NAKUL & SABHARWAL
[2020] FamCAFC 262
•29 October 2020
FAMILY COURT OF AUSTRALIA
| NAKUL & SABHARWAL | [2020] FamCAFC 262 |
| FAMILY LAW – APPEAL – PARENTING – Where the father contends that the primary judge erred in making an order providing the mother with sole parental responsibility with respect to the child’s school – Where this ground fails as no such order was made, but there was a notation to that effect – Where having made no order for equal shared parental responsibility, the primary judge was not required to consider an order for significant and substantial time pursuant to s 65DAA of the Family Law Act 1975 (Cth) – Where his Honour nonetheless did consider significant and substantial time, but rejected the arrangement proposed by the father – Where it was not necessary for the primary judge in the exercise of his discretion to detail each fact or argument said to be relevant, nor make an explicit finding on each disputed piece of evidence – Where the primary judge, in effect, rejected the father’s proposals for school holiday time and communication beyond what the orders made provided – Where there can be no error in making an order for the mother to travel overseas with the child when the father’s counsel made that concession at trial – Where there is no merit in the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – PROPERTY – Where the father raises weight challenges to the primary judge’s assessment of the parties’ contributions and adjustment under s 75(2) of the Family Law Act 1975 (Cth) – Where the reasons are adequate – Where no error of law or fact demonstrated – Where the father’s claim that the decision was “plainly unreasonable or unjust” does not have a “discernible proper foundation” and must be rejected – Where procedural fairness was afforded – Where there is no merit in the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where both the mother and the ICL seek costs against the father – Where there are circumstances justifying a costs order being made in favour of both the mother and the ICL – Where no financial hardship would be suffered by the father – Costs orders made as sought by the mother and the ICL. |
| Family Law Act 1975 (Cth) ss 61C, 65DAA, 65DAC, 75, 79, 117 Family Law Rules 2004 (Cth) Sch 3 |
| Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Melton & Maddison [2014] FamCAFC 136 Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97 Sun Alliance Insurance Ltd v Massoud (1989) VR 8 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Nakul |
| RESPONDENT: | Ms Sabharwal |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 606 | of | 2016 |
| APPEAL NUMBER: | EAA | 26 | of | 2019 |
| DATE DELIVERED: | 29 October 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | 20 April 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 February 2019 |
| LOWER COURT MNC: | [2019] FCCA 1084 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Druitt |
| SOLICITOR FOR THE RESPONDENT: | Matthews Folbigg Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The appeal be dismissed.
The appellant father pay the costs of the respondent mother of and incidental to the appeal fixed in the amount of $15,428.40.
The appellant father pay the costs of the Independent Children’s Lawyer of and incidental to the appeal fixed in the amount of $5,511.
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 Nakul & Sabharwal 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 26 of 2019
File Number: PAC 606 of 2016
| Mr Nakul |
Appellant
And
| Ms Sabharwal |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Nakul (“the father”) from final parenting and property settlement orders made by a judge of the Federal Circuit Court of Australia on 11 February 2019.
The appealed parenting orders provide for the only child of the relationship, X born in 2008 (“the child”) to live with Ms Sabharwal (“the mother”), and spend time with the father each alternate weekend after spending a progression of time with him. In order to assist the child’s transition in spending increased time with the father, the parties and the child were ordered to attend and engage in therapeutic counselling. Further orders were made allowing the mother to travel with the child to India for six weeks each year, and that she be solely responsible for applying for the child’s passport without the consent of the father. Whilst no order was made for parental responsibility, his Honour made a notation that the mother is solely responsible for making decisions as to the school the child attends. An order was also made to change the child’s surname to include both parties’ surnames.
As for the appealed property settlement orders, the mother is to become the sole proprietor of the family home after discharging the mortgage secured against it, and is to receive a superannuation splitting payment from the father’s superannuation interest. Otherwise, the parties are to retain the assets and liabilities in their respective possession and control.
The father was also ordered to pay a contribution to the Independent Children’s Lawyer’s (“ICL”) costs of the parenting proceedings, and was restrained from dealing with funds which are held in his previous solicitor’s trust account, pending the determination of the mother’s costs application against him. The decision in relation to the mother’s costs application has been adjourned until after the determination of this appeal.
The mother opposes the appeal against both sets of orders, and the ICL opposes the appeal against the parenting orders.
Background
The father was born in 1975, and the mother was born in 1979.
The parties were married in India via an arranged marriage in early 2006. In September 2006, the mother moved to live with the father in Australia.
The mother did not work during the relationship, and obtained employment after the parties had separated. The father worked at Employer G during the relationship up until December 2017, after which he received a redundancy payment of $100,000. At the time of trial, the father had obtained other employment.
The parties’ child was born in 2008, and was 10 years of age at the time of trial.
The primary judge found that the father transferred substantial funds, “of not less than $38,000”, to his family in India, primarily during the parties’ relationship (at [69]).
In October 2011, the parties purchased the family home as joint tenants for $400,000 with a loan secured by mortgage of $300,000.
In 2014, the father purchased a property in India with his father contributing $20,000 to the purchase price. The primary judge accepted its value to be approximately $120,190 (at [75]).
On the mother’s case, the parties separated in August 2015, albeit remaining living under the one roof. The father contended that separation occurred in September 2015 when he moved out of the family home, however nothing turns on this dispute for the purposes of the appeal.
On 11 February 2016, the mother filed an Initiating Application seeking property settlement orders. On 2 May 2016, the father filed a Response which also sought parenting orders.
Throughout the proceedings, there has been an ongoing issue as to the father providing full and frank disclosure. Various orders were made during the proceedings for the father to provide disclosure of his financial affairs to the mother, however, this was still an issue at the time of trial.
The mother’s proposal at trial was to have sole parental responsibility for the child, for the child to live with her and for orders facilitating the child’s travel with the mother from Australia. As to property settlement, she ultimately sought that she retain the family home, and that she be responsible for discharging the mortgage after applying funds from an offset account. She further sought a superannuation splitting order.
The father ultimately sought that the child live with the mother and spend significant and substantial time with him, although shortly before the trial commenced, he was seeking that the child primarily live with him. As to property settlement, his position changed at the conclusion of the evidence at the trial, and he posited for an equal division based upon his calculation of the legal and equitable interests in the parties’ property (at [21]).
The ICL’s proposal was canvassed after the evidence at the trial and included that the mother have sole parental responsibility for the child, that the child live with her, and spend time with the father on a less than significant and substantial time basis.
The Appeal
The father filed a Notice of Appeal on 8 March 2019 which asserted 27 separate grounds of appeal.
On 2 July 2019, the Appeal Registrar made procedural orders to ready the appeal for hearing, and which included an order for the father to file a Summary of Argument by no later than 17 September 2019. It appears that the father failed to do this, and thus a further order was made on 17 January 2020, by consent, extending the time for the father to file the Summary of Argument to 21 February 2020.
On 25 February 2020, the father presented a Summary of Argument which included “Annexure A” which set out amended grounds of appeal, and which reduced the earlier 27 grounds to 10 grounds. The Appeal Registrar accepted the father’s Summary of Argument for filing, however, rejected “Annexure A” for failing to comply with the relevant Family Law Rules 2004 (Cth) (“the Rules”). Whilst no formal application was made by the father at the hearing of the appeal, we gave leave to the father to rely upon his amended grounds of appeal contained in “Annexure A” to his Summary of Argument. Indeed, neither the mother nor the ICL opposed this course.
Ground 1
The [primary] judge erred in principle and discretion in his approach to making an order that provided the [m]other with sole parental responsibility for decision making in respect of the school or schools at which the child may attend.
The primary judge dealt with parental responsibility at [169]–[178]. His Honour did not make an order as to parental responsibility, and determined that s 61C of the Family Law Act 1975 (Cth) (“the Act”) should apply, subject to a notation that the mother alone is entitled to make decisions as to the school the child attends. His Honour’s reasoning for this can be seen from [169] and following:
169.I must then turn to section 61DA, the presumption of equal shared parental responsibility. As is submitted by counsel for each of the parties and the Independent Children’s Lawyer, the presumption cannot apply if a finding is made that a parent has engaged in family violence. Such a finding has been made, thus the presumption does not apply.
…
171.In this case, and for reasons that I will expand upon, I propose to make no order with respect to parental responsibility. That will leave the parties to operate under section 61C, providing them with what might be described as joint and several parental responsibility. The submission is appropriately put on behalf of the mother that this may well create some uncertainty. I propose to include notations as to the effect of the absence of an order for parental responsibility and clearly delineate what operates and applies.
172.Thus, as [the child] lives with her mother for the entirety of each school week, it will be a matter for the mother to decide the school that the child attends and appropriate notations will be included to ensure that any school authority is disabused of any notion or expectation that the parents must agree and make joint decisions. Indeed, section 65DAC, which provides for the obligations and duties of parents who operate under a regime of equal shared parental responsibility, would make that clear itself. Even if parents have equal shared parental responsibility, they are not required to make joint, consensual decisions, nor is it necessary for any third party to be satisfied that a decision is jointly made before they act upon it. All that is required is that parents consult with each other and make a genuine effort to come to a joint decision. The validity of a decision that is made or implemented by a party solely after having done so cannot be questioned.
173.In this case it would be inappropriate and onerous to impose such an obligation upon the mother, to expect her to engage and consult with the father who has perpetrated family violence upon her. It is for that reason that I propose to make an order that alleviates any such expectation on the mother’s part. She need not consult with the father at all before she makes any decision about [the child] while [the child] is in her care. That will include school as she will have all of the school week each and every week of term.
…
175.I am conscious of that which has fallen from the High Court and Full Court: that to remove a parent from any involvement in decision making for their child is a significant and important step. It is not one which I am satisfied can or should be taken in this case.
176.The Court does not make decisions based on misericordia nor as punitive punishment. The father's behaviour, if it were before another court, may well be addressed in different fashion. This Court must make decisions by reference to what is in the child's best interests. The father has something to offer, for example, with respect to education. However, what he offers can be achieved without him being consulted by the mother as to the school the child attends. He can assist her with homework, give guidance, and attend parent teacher interviews and the like.
…
178. For all of those reasons, and further to be elaborated, I propose:
a)That the presumption would not apply, indeed it could not; and,
b)To make no order with respect to parental responsibility.
The “order” the subject of this ground is made in the following terms:
(2)THE COURT NOTES that no Order with respect to parental responsibility has been made and with the consequence that section 61C of the Family Law Act 1975 shall apply such that each of [the child’s] parents shall have responsibility for making major issues decisions for [the child] at such times as she is in their respective care and subject to:
(a)[The child] shall live for the entirety of each school term with her mother and accordingly, her mother alone is entitled to make decisions as to the school [the child] attends;
…
The father submits that by the primary judge making a “positive order” for the mother to have sole parental responsibility as to the school the child attends, this was directly inconsistent with his Honour’s proposition at [171] in which parental responsibility was to be left to operate under s 61C of the Act. He also submits that the order is inconsistent with his Honour’s recitation of principle and finding at [175]. Further, the father submits that his Honour’s statement of principle at [172] was incorrect in relation to the application of s 65DAC of the Act. The father says that this incorrect statement of principle led his Honour into error by making an analogy with s 61C, in that, there is no difference between parents with equal shared parental responsibility under s 65DAC, or parental responsibility under s 61C of the Act.
At the hearing of the appeal, the father sought to rely upon Exhibit R5 from the trial exhibits in support of this ground. That exhibit comprises two emails from the father to the child’s school teacher in relation to a parent teacher interview the father attended. However, it is not clear how those emails demonstrate error by the primary judge in relation to making the notation about schooling.
The mother submits that this ground is misconceived, as no order for parental responsibility was made by the primary judge. It was submitted that providing for the mother to be entitled to make decisions as to the child’s school was a notation only, and that it is well established that only an order can be appealed, and not a notation (Melton & Maddison [2014] FamCAFC 136 at [9]).
The ICL similarly submitted that the primary judge made no order for the mother to have sole parental responsibility for schooling, or at all, but rather made a notation which recorded the practical effect of the orders which provided that the child would live with the mother for the whole of each term; namely the mother would need to choose the school the child attends.
Thus, there is no inconsistency between his Honour making a notation, and what his Honour said at [171] and [175].
As for the father’s submission that his Honour erred in principle by equating s 65DAC with s 61C of the Act, we are not persuaded that there is any error at all. Indeed, his Honour was highlighting the difference between those two sections of the Act, and that is apparent from the next paragraph of his Honour’s reasons.
The mother and the ICL are correct as to there being no order from which an appeal can be brought, and thus there is no merit in this ground of appeal.
Ground 2
The [primary] judge erred in principle in that:
a) He wrongly focussed on the ‘explicability’ of the [m]other’s disposition to the [f]ather, rather than the impact of that on the ‘warped disposition’ on the child and the apparent inability of the [m]other to shield the child from either perception or expression of her disposition towards the [f]ather;
b) He failed to consider whether or not the child of the parties should spend significant and substantial time with the father in addition to the other protective measures required by the [primary] judge’s orders; and
c) He failed to give any or adequate reasons for rejecting the [father’s] contention that substantial and significant time was in the best interests of the child and reasonably practicable.
It is difficult to discern which, if any, of the father’s submissions in his Summary of Argument support the first limb of this ground.
However, as the mother rightly submits, the primary judge made no finding that the child (or the mother) had a “warped disposition” towards the father. The primary judge made findings as to the mother’s attitude towards the father, as well as to the child’s exposure to the mother’s attitude and anxieties towards the father, and also to the child’s experience of the father’s family violence (at [109], [111], [117], [129], [132] and [157]). Whilst the primary judge held that the mother’s attitudes were not beneficial to the child (at [123] and [132]), his Honour was not critical of the mother (at [162]). The following passages of the judgment are where the primary judge considered the mother’s views towards the father and the impact of that upon the child:
113.Again, it would be explicable that the mother would have a very low opinion of the father. It would be extraordinary if it were otherwise, in light of her lived experience of him. However, I accept that the child is fully aware of the mother’s attitudes towards the father, her lack of desire for the child to practise her relationship with him, and that this would, whether through the mother making direct comments to the child or the child overhearing comments by the mother to others, such as to her own mother, or generally through the mother’s demeanour in approaching such matters, have impacted upon the child’s presentation.
…
129.In light of all of the above I, again, accept that family violence has been perpetrated by the father towards the mother. I accept that [the child] has experienced family violence, as reported by the mother to her counsellors, including the distressing events in March 2015. However, beyond the findings already referred to above, I am not satisfied that there is sufficient evidence to permit findings to be safely made as to the totality of allegations. I am not satisfied that the experience of either the mother or the child, with the caveat that I will touch upon shortly, is sufficient to obviate against any relationship being practised between the child and the father. I am not satisfied that it is sufficient to obviate against the child continuing to receive benefit from engagement with her father.
…
132.Whilst I accept that the child has been impacted by the father’s past behaviours, indeed his family violence perpetrated upon and towards the mother, including in the child’s presence or experience, that the child has also been impacted by the mother’s reactions and attitudes towards the father which, whilst valid and explicable, is not a beneficial thing for this child.
…
134.… It did result in significant disadvantage for the child, however, as immediately following that experience her behaviour and presentation at the contact centre changed dramatically. I accept that this could only be explained as a reaction to the child’s experience of her mother’s distress and anxiety arising therefrom.
…
138.The Family Report writer sadly, but correctly, I am satisfied, observed that each parent’s view of the other is wholly negative (paragraph 92). Again, each, whilst they have engaged with family counselling services, would not appear to have received any substantial benefit in either changing that attitude or, if it persists, and perhaps explicably so in the case of the mother, shielding the child from its expression or perception. It may become impossible for this child to show regard to both parents in light of the conflict and the negative views each has of the other. So it is opined at paragraph 92 of the Report.
…
157.The meaningful involvement that [the child] could engage in with her father, to the maximum extent that is consistent with her best interests is, I am satisfied, significantly less than many children. This child has experienced trauma. Some of that has been through exposure to the father’s behaviours. Some of it has been, I am satisfied, through exposure to, or at least awareness of the mother’s attitudes and the mother’s trauma as a consequence of her exposure to those behaviours at the hands of the father. The mother is less criticised in that regard. It is explicable that she would have experienced trauma. She has sought assistance for it. That has aided her, to some extent, but it will be a very long time before she could move on completely, if indeed she ever could, from the distrust that she presently holds for the father, explicably so.
…
162.I must make orders that ensure that children receive adequate and proper parenting. There is no criticism that this Court makes of the mother’s parenting. To the extent that [the child] is fully aware of the mother’s attitudes towards the father, her distrust of him, if not her disdain towards him, it is explicable. She could not be blamed for not being able to completely close down her emotions so that this child is not aware of those things. She would not be human if it were so. However, the mother’s parenting is of an excellent standard. The child is loved, well cared for, well fed, well dressed, well presented, and is doing well at school.
…
197.… It would suggest that the child’s relationship with the father, irrespective of a lack of support, if it is so, or certainly any ambivalence, at the very least, by the mother towards the child’s practice of relationship with the father, has survived. She continues to present. She continues to engage with her father.
…
210.There is no question as to the mother’s capacity, albeit that there is the caveat, that I accept, that the child is clearly exposed to the mother’s negative views and distrust of the father. Even if those negative views and that distrust is entirely valid, it is unhelpful for the child to have an anxiety created for her which is her mother’s rather than the child’s.
211.… However, I am satisfied each parent, and in the father’s case more so, has the capacity to meet the child’s needs for limited periods of time with the caveats attached and the therapeutic scaffolding to be imposed.
From a reading of the above passages it is apparent that the primary judge considered together not only the mother’s “explicable” attitude towards the father, but also the negative impact it has had on the child, and the mother’s inability to shield the child from those attitudes. The primary judge then found that the solution to this was the order for therapeutic intervention which would support both parents’ capacities to parent.
Thus, to suggest that his Honour wrongly focussed on the first issue rather than the other two is clearly not correct, and the first limb of this ground is not made out.
The second and third limb of this ground can be dealt with together.
The father submits first, that in reaching his conclusion as to the time the child will spend with the father, his Honour failed to follow the legislative mandate and consider significant and substantial time, and secondly that his Honour failed to provide adequate reasons for not ordering significant and substantial time. However, the mother and the ICL correctly submit that having made no order for equal shared parental responsibility, the primary judge was not required to consider an order for significant and substantial time pursuant to s 65DAA of the Act. However, his Honour nonetheless did consider significant and substantial time, but rejected the arrangement proposed by the father, given his Honour’s findings at [157], [161], [163], [164], [168], and [198]. His Honour then said this:
204.… The child will, by consent, live with her mother. There is benefit to the child of an increase in time, albeit gradual and small increases in time. This is not an equal or substantial significant time case and never has been or could have been argued to have been such. It certainly has never been, on the evidence as it has been presented and determined, a case that would suggest any basis for the child to live other than predominantly with her mother.
…
206.…
In determining for the purposes of subsections (1) and (2) [of s 65DAA(5)] whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
a) how far apart the parents live from each other; and
b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
d)the impact that an arrangement of that kind would have on the child; and
e) such other matters as the court considers relevant.
207.These parents live not any significant distance apart from each other, geographically but, in all other respects, there is a huge gulf between them. They have no capacity to implement an equal or substantial time arrangement, indeed, I am satisfied, it would be contraindicated by the evidence, and disadvantageous to the child. Their capacity to communicate and resolve difficulties is non-existent. Indeed, it would be an egregious and onerous burden to impose upon the mother to expect her to negotiate with the father and seek to resolve difficulties in light of the history of their relationship.
Thus, not only did his Honour consider significant and substantial time when he was not obliged to do so, but his Honour provided adequate reasons for rejecting the father’s proposal, and for making the orders that he did.
Before leaving this ground of appeal we refer to two matters. First, at the hearing of the appeal, the father sought to rely in support of this ground of appeal on Exhibit R4, which comprised various photographs of the child with the father. However, those photographs fail to demonstrate any error by the primary judge as asserted by the father.
Secondly, the father indicated at the appeal hearing that he had issues with certain paragraphs of the Family Report dated 15 November 2017, and in particular paragraph 77. When the Court asked whether these matters were raised with the primary judge at trial, the father responded that the primary judge had the report before him. We take that to mean that these matters were not in fact raised with his Honour, and thus it is not open to the father to raise them on appeal (Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [120] and [121]).
Again, there is no merit in this ground of appeal.
Grounds 3 and 5
The [primary] judge failed to give any adequate reasons as to why it is in the child’s best interests not to spend time with the father during school holidays or on special occasions except in so far as those occasions fall within the fortnightly weekend times ordered.
The [primary] judge erred in principle in failing to consider the [f]ather’s application for communication with the child other than during the times that the child is to spend with the [f]ather pursuant to the orders.
Essentially, Grounds 3 and 5 relate to the same complaint, in that the primary judge failed to consider and give adequate reasons as to the child spending holidays, special occasions or having further communication with the father, other than stipulated in the final orders.
In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 as:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:–
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
However, it is not necessary for a judge in the exercise of his or her discretion to detail each fact or argument that is said to be relevant, nor is a judge required to make an explicit finding on each disputed piece of evidence (Rafferty & Spencer (2016) FLC 93-710 at [30]–[31]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA).
Both the mother and the ICL submit that whilst his Honour did not specifically address holiday time, special occasions, or communication, it is readily apparent from the central findings referred to above, and particularly when reading the judgment as a whole, that his Honour found that the time between the child and his father should be limited, and thus his Honour in effect rejected the proposals of the father for school holiday time and communication, outside of the times ordered.
We are not persuaded that there is any merit in these grounds of appeal.
Ground 4
The [primary] judge failed to give any adequate reasons as to why it is in the child’s best interest to travel overseas to India with the mother without any notice to the father for up to 6 weeks per year, with the child’s time with the father suspended during such travel, and without any provisions for make up time before or after such travel.
At [149(c)], the primary judge identifies the issue of overseas travel as a contested issue between the parties, but adds that “ultimately that would also appear agreed”.
The father contends that whilst there was a discussion before the primary judge about the father apparently conceding to overseas travel, no concession was given by the father in either his affidavit material or in cross-examination, beyond what was sought in the father’s own application for overseas travel. In the father’s minute of order (Exhibit C), an order is sought for each parent to travel overseas with the child during the Christmas holidays, subject to notice being given to the other parent. The father maintains that even if the concession was made during submissions before the primary judge, the proposed order went beyond the concession, and what was ultimately sought by the mother.
The relevant extract of the transcript is set out below. It is of the father’s counsel cross examining the Family Report writer:
[FATHER’S COUNSEL]: Right?
[FAMILY REPORT WRITER]: ---I think there’s some – if I remember rightly there’s some – here a contention about taking [the child] to India. I seem to remember [the mother] wanted to take [the child] to India for holidays. That’s another possible - - -
[FATHER’S COUNSEL]: Well, [the father] supports that. Probably didn’t when you saw him - - -?
[FAMILY REPORT WRITER]: ---Right. Right.
[FATHER’S COUNSEL]: - - - but does now?
[FAMILY REPORT WRITER]: ---Yes.
(Transcript 8 February 2019, p.37 lines 12–19)
(Emphasis added)
Plainly, this is a concession made on behalf of the father that he supports the child being taken overseas by the mother for holidays. Thus, it is difficult, if not impossible, for the father to now argue that his Honour erred in providing no reasons for making the relevant order.
At the hearing of the appeal, the father argued that what he sought from the primary judge was a mutual order allowing each party to take the child overseas, but this ground of appeal does not assert error by the primary judge in failing to make such an order.
As to the terms of the order, as the ICL points out at paragraph 31 of their Amended Summary of Argument filed on 15 April 2020, there was no oral submission made as to these terms. In particular, there were no submissions or proposals as to makeup time. Further, we note that the mother’s application was for unrestricted travel.
In the circumstances, there is no merit in this ground of appeal.
Ground 6
The [primary] judge failed to give proper weight, failed to take into account material considerations or took into account irrelevant matters in relation to the parties respective contributions under Section 79 of the Family Law Act 1975 (Cth).
The father’s submissions in his Summary of Argument as to this ground do not identify the matters to which it is alleged the primary judge either failed to give proper weight, or failed to take into account, or took into account irrelevantly.
However, as the mother submits, the gravamen of the father’s argument appears to be his dissatisfaction with the primary judge’s assessment of contributions which does not, of course, bespeak appellable error.
At paragraph 36 of the father’s Summary of Argument, it appears he is challenging the primary judge’s adequacy of reasons, in that the reasons do not assist in understanding how his Honour weighed the relevant matters in arriving at a contribution-based finding.
His Honour’s findings in relation to the parties’ contributions were as follows:
236.I accept that which is submitted by the parties and each of them that, until the point of separation of these parties in or about 2015, that their contributions were equal.
237.The [mother] has not sought to agitate what might be described as a Kennon claim: that her contributions were rendered more onerous or difficult as a consequence of the [father’s] behaviours. What is clear and apparent in this case and from the agreed facts, as referred to at the commencement of these reasons, is that the [father] was in substantial paid employment throughout the relationship whilst the [mother] was not. Whilst the [mother] has, in the statement of agreed facts, perhaps unkindly referred to this circumstance as her being unemployed, it is simply not so. The [mother] was very much employed as a homemaker and parent. The [mother] worked very hard and very well at that endeavour. She was simply not financially rewarded.
238.The contributions of the parties should be accepted, I am satisfied on the above basis, as equal until the point of their separation. Following separation, the [mother’s] contribution increased. She has had very much the full-time care of [the child]. She has had limited and irregular financial assistance, she has had the burden of these proceedings and the costs incurred with respect thereto which, whilst I am not satisfied should be deducted as a liability, can and should be included as a section 75(2)(o) adjustment.
239.To that extent, I am satisfied that the [mother’s] contributions would exceed those of the [father]. I am satisfied an adjustment with respect to contribution would be made in the [mother’s] favour in a range of 5 to 10 per cent. If one were to take the middle ground, that would be an adjustment of 7.5 per cent but any of the figures within that range would be appropriate. To do otherwise would be to ignore the reality that, for the last four years, the [mother] has made contributions over and beyond the [father].
240.The [father] has earned much greater income but has used it as he has chosen, funnelling some portions of it to his family in India, although he is not criticised for doing so, there may well be some cultural imperative connected therewith, but he has kept his money to himself. There has been a niggardly attitude by the [father] in relation to his Child Support obligations and towards general support of both [the mother]… and of [the child].
241.Thus, the [mother’s] homemaker and parent contributions substantially outweigh the [father’s]. She has met and serviced all responsibilities with respect to the [family home], albeit with some largess advanced by the mortgagor at one point in reducing payments on the basis of hardship. However, it is the [mother’s] contributions solely which have kept the wolf from that particular door. Thus, the adjustment which I have referred to is made.
It would have been preferable, and more in accordance with authority, if his Honour had assessed the respective contributions of the parties holistically, rather than first finding them equal at the point of separation, and then using the terminology of looking to what “adjustment” should be made to that finding for the respective contributions of the parties post-separation (Dickons v Dickons (2012) 50 Fam LR 244 at [23]–[26]). However, fortuitously, his Honour’s approach has provided the parties with direct insight as to how his Honour has balanced and weighed the respective contributions of the parties, and there can be no error in the adequacy of the reasons.
This ground has no merit.
Ground 7
The [primary] judge failed to give proper weight, failed to take into account material considerations or took into account irrelevant matters in relation to the parties respective needs under Section 75 of the Family Law Act 1975 (Cth).
The primary judge’s findings which led to his determination that there should be an adjustment to the mother of not less than 15 per cent pursuant to s 75(2) of the Act, are particularised at [242]–[261], and in conclusion, his Honour found:
261.With respect to section 75(2) and particularly having regard to the latter adjustments pursuant to section 75(2)(o), I am satisfied that an adjustment should be made in favour of the [mother] of not less than 15 per cent.
262.That would appear to be a significant adjustment in light of the modest asset pool of these parties; however, the three amounts – the redundancy payment, the withdrawal of funds from Suncorp and the cashing of the insurance policy – represent more than 15 per cent of the value of the presently available legal and equitable interests of the parties and thus, to do less - and bearing in mind that there is real suspicion, although nothing which would safely support a finding of fact, that the [father] has had other resources available to him during his period of suggested unemployment – would be inappropriate. This factor might suggest that, perhaps, the adjustment could be even greater.
Under this ground, the father merely recites the primary judge’s findings as to s 75(2) and makes the general submission that:
39.… proper regard to all of the above matters ought to have resulted in the conclusion that no further adjustment was warranted in favour of the [mother] pursuant to section 75(2) beyond say 5 per centum, or a 10% differential, after contribution findings.
(Father’s Summary of Argument filed 25 February 2020)
That of course is insufficient to establish error.
The father does not particularise in any detail the matters which were said to be given inappropriate weight, or not taken properly into account, besides two matters. These were that the primary judge failed to give sufficient regard to the disparity between the parties after the contributions determination, and failed to place sufficient weight on the form and character of the property to be retained by the father.
As for the two matters identified, plainly they raise weight challenges. However, where there is no error of law or fact asserted, or no demonstrated failure to take into account relevant considerations, or the taking into account of irrelevant considerations, such challenges devolve to simply suggesting that this Court should reach a conclusion different from that under appeal. That is not an approach which is open to this Court, and as Stephen J said in Gronow v Gronow (1979) 144 CLR 513 at 519–520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
As to the first matter raised, that is nothing more than a bald assertion without any articulation of what the alleged error in fact is. His Honour was plainly aware of his assessment of the respective contributions of the parties, and in that knowledge, his Honour determined that there should be an adjustment of 15 per cent in favour of the mother, as a result of his Honour’s consideration of the relevant s 75(2) factors. Indeed, his Honour expressed the view that “the adjustment could be even greater” (at [262]).
We can find no error in this regard in his Honour’s finding as to the appropriate adjustment pursuant to s 75(2).
As to the second matter raised, it is also merely a bald assertion without any articulation of what the alleged error in fact is. It is not explained what it was about the “form and character of the property to be retained by the [father]” (father’s Summary of Argument filed 25 February 2020, paragraph 38.8.2) that needed to be taken into account, and was not. To point out that that property “included no more than that to which the [father] was legally or equitable [sic] entitled and to which he had been entitled prior to any property adjustment” does not provide that explanation (father’s Summary of Argument filed 25 February 2020, paragraph 38.8.2).
Again, we are not persuaded of any error in this regard by his Honour.
Ground 8
The [primary] judge’s decision in relation to the property adjustment orders was plainly unreasonable or unjust.
All the father submits in relation to this ground is that the appeal ought be allowed as a result of both:
a)the particular errors contended for in Grounds 7 and 8; and
b)a consideration of the cumulative effect of each of those findings and the orders made by the Court in relation to property alteration.
(Father’s Summary of Argument filed 25 February 2020, paragraph 40)
However, we have found no merit in Ground 7, and there is nothing put either in the written or oral submissions of the father, that would provide a basis for finding merit in Ground 8. It is a ground without substance, and unfortunately, it is a ground that is often asserted, without any consideration being given to what it in fact entails.
Albeit lengthy, it bears repeating yet again what was said by this Court in Babett & Falconer (2015) FLC 98-067 where the same argument was raised:
(b) The “Generous Ambit of Discretion” and Error
31.It is by no means uncommon to see grounds of appeal framed in terms identical, or similar, to Ground 3 in this appeal. That such a contention of discretionary error can be made might be seen to emanate from the concluding part of the frequently-cited passage from the judgment of their Honours, Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504, 505 (“House”). Their Honours, having set out specific errors that might inform discretionary error, said:
… the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
32.Their Honours’ statement in House makes it clear that the conclusion of unreasonableness or injustice must be so “plain” that it permits of an inference that there has been a failure to “properly” exercise “the discretion which the law reposes in the court of first instance”. More recent statements by the High Court also underscore the required aberrance. For example, in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, their Honours Gleeson CJ, Gaudron and Hayne JJ said (at 203–204):
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.
…
“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result.” Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
33.Earlier statements by the High Court have emphasised the “very wide discretion” inherent in s 79 (Mallett v Mallett (1984) 156 CLR 605, 608). That very wide discretion can be seen to be an example of where “… the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion” and, as a result, “the latitude” given to a trial Judge is “considerable”. By way of corollary, “… it is never enough that an appellate court, left to itself, would have arrived at a different conclusion” (Gronow v Gronow (1979) 144 CLR 513, 519 per Stephen J).
34.However, what is at issue here is a discretionary conclusion reached from established facts none of which are challenged on appeal. An appellate court’s decision that a trial Judge’s discretionary conclusion is wrong must have a discernible proper foundation and that foundation cannot be merely that it would have reached a different decision based on the same facts. Justice Stephen’s often-quoted passage in Gronow v Gronow (1979) 144 CLR 513, 520 pertains:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight …
(Emphasis added, See also, Aickin J’s statement to similar effect at 538).
35.Some five years later, Gibbs CJ, having cited those statements with approval, said to similar effect in Mallet v Mallet (above) at 615:
The conclusion reached by the Full Court that [the trial judge] had failed to give [the relevant factors] proper weight can only be explained by the fact that their Honours disagreed with his conclusion. However the mere fact that they themselves would have made a more liberal provision for the wife was no justification for substituting their own exercise of discretion for that of the primary judge.
36.Emphasising that a proper foundation must be established for an appeal court’s conclusion that a trial Judge’s discretionary conclusion is wrong, the former Chief Justice also said:
The meaning of the statement which is found in the authorities that an appellate court may interfere with an exercise of discretion when it reaches the clear conclusion that no weight, or no sufficient weight, has been given to relevant considerations was explained by Latham C.J. in Lovell v. Lovell [1950] HCA 52; (1950) 81 CLR 513, at p 519, as follows:
If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. (See also per Kitto J., at pp. 533–4.)
37.While it can be contemplated that assessments of contributions pursuant to s 79 might be judged erroneous by reason of fitting the description “unreasonable” or “plainly unjust”, it is a description that begs a foundation for this Court doing other than substituting its own discretionary conclusion for that of the trial Judge. In this, as in so many like cases, the central contention is that error is established by the result being “so outside” something that is not only unidentified but is not referenced to any foundation save for that assertion.
38.In those circumstances, the submission is no more or less than a submission that this Court would reach a different conclusion to that of the trial Judge. As Barwick CJ said in Sharman v Evans (1976–1977) 138 CLR 563, 565:
... the function of a court of appeal, in my opinion, is not to offer what in connexion with another discipline would be called “a second opinion”. Such a court is strictly confined to the remedy of error in the trial or in the assessment of the trial Judge. It cannot be too strongly said that a mere difference of opinion ... does not indicate error on the part of the trial Judge.
(Emphasis in original)
The claim here that the decision was “plainly unreasonable or unjust” does not have a “discernible proper foundation” and must be rejected.
Grounds 9 and 10
The [primary] judge failed to give procedural fairness to any other third party with an interest in the funds held in the [father’s] solicitor’s trust account before ordering an injunction restraining the [father] from dealing with or providing instructions to his legal representation [sic] to deal with those funds.
The [primary] judge erred in principle in failing to give any or adequate reasons for the order imposing an injunction against the father dealing with or providing instructions to his legal representation [sic] to deal with funds held on trust for the [father].
Both Grounds 9 and 10 challenge paragraph 32 of the appealed orders, and thus they will be dealt with together.
Paragraph 32 provides:
(32)Pending determination of the [mother’s] Application for costs the [father] shall be and is hereby restrained from dealing with or providing any instruction to his legal representatives to deal with funds presently held by them in trust on behalf of the [father].
The first impediment for the father in pursuing these grounds, is that given the injunction is interlocutory in nature, leave to appeal is required, and that has not been sought. However, in any event, and putting that aside for the moment, neither of the grounds of appeal can be maintained.
As was submitted correctly by the mother, the funds were being held in trust for the father, and there was no evidence of any interest that any third party had in those funds. Thus, there was no failure by his Honour to provide procedural fairness to the father in making the order that he did.
Secondly, the mother submits that the rationale behind this paragraph of the Order, can be gleaned from what his Honour says at [264]:
The [mother] would receive 71.6 per cent of the total whereas, on the basis of the above calculations, her entitlement would possibly exceed that amount. There would be difficulty in such greater orders being made, however. They are not ultimately pressed at hearing, although I accept that the [mother] has made a pragmatic adjustment to her position. The major difficulty is not that. It is the lack of enforceability. I have no satisfaction that an order which required the [father] to pay additional funds would be complied with. The [father] would argue he was unable to comply with it. Whether that is so or not, I need not be concerned. It is a simple reality that it would lead to future proceedings and it would cause further disadvantage both to these parties and their child.
Even if there was an application for leave to appeal and leave had been granted, there is no merit in these grounds of appeal.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
Costs
In the event the appeal was unsuccessful, both the mother and the ICL sought their costs of the appeal from the father.
The mother seeks her costs in the amount of $15,428.40 calculated in accordance with Sch 3 of the Rules. Those costs are sought on the basis that the father would be wholly unsuccessful in the appeal, that she has the primary care of the child, and the father’s financial circumstances allow for such a costs order.
The ICL seeks costs in the amount of $5,511 on the basis that the father would be wholly unsuccessful in the appeal, and his financial circumstances allowed for such a costs order to be made.
Although the father does not challenge the amounts sought, he opposes both costs orders sought against him. He submitted that despite his high income, his monthly expenses are such that he does not have the capacity to meet a costs order. Such expenses are said to be child support, paying off a mortgage in India, and supporting his parents.
In relation to the application for costs made by the mother, plainly there is a circumstance that justifies an order being made, namely the father has been wholly unsuccessful in the appeal (s 117(2A)(e) of the Act), and the discretion should be exercised in her favour. Importantly, the financial circumstances of the father cannot prevent the order being made.
As for the application for costs made by the ICL, it is necessary to address s 117(4)(b) of the Act.
Pursuant to that paragraph, the Court must not make an order for costs against a party in favour of an ICL if the Court considers that that party would suffer financial hardship if an order is made. We are not satisfied that financial hardship would be suffered by the father, and thus we propose to make the order sought. Again, there is a circumstance justifying such an order, and the discretion should be exercised in favour of the ICL.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Aldridge JJ) delivered on 29 October 2020.
Associate:
Date: 29 October 2020
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