O'Hurley & O'Hurley
[2008] FamCAFC 57
•11 April 2008
FAMILY COURT OF AUSTRALIA
| O’HURLEY & O’HURLEY | [2008] FamCAFC 57 |
| FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – PROPERTY – SECTION 79A APPLICATION TO SET ASIDE CONSENT ORDERS – FINDING OF FACT – Assertion that Federal Magistrate erred in his finding relating to the duration of a second period of cohabitation not established. Nor shown that such duration materially impacted on exercise of discretion. FAMILY LAW – JUDGMENTS - ADEQUACY OF REASONS – Not established that Federal Magistrate failed to give sufficient reasons for concluding as he did, his reasoning process being reasonably apparent from his reasons for judgment and revealing that he was clearly aware of the facts upon which the husband based his claim. Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Bennett & Bennett (1991) FLC 92-191 cited. Husband failed to establish his case on the balance of probabilities. Prowse & Prowse (1995) FLC 92-557 cited. FAMILY LAW - JUSTICE – Contention that justice demands that consent orders be set aside by this Court and/or that Federal Magistrate erred in failing to consider the justice of the case not established. Section 79A Family Law Act 1975 (Cth) discussed. Section 79A does not require consideration of the justice of the case where no relief pursuant to the section has been made out. No alleged unfairness at the time of making the consent orders nor arising thereafter could have assisted the husband’s case before the Federal Magistrate. FAMILY LAW - CONSENSUAL SETTING ASIDE OF CONSENT ORDERS – Not established that Federal Magistrate erred in finding that the change in parenting and homemaking roles of the parties did not constitute implied consent to set aside consent orders. FAMILY LAW - COSTS – The appeal against the substantive judgment of Federal Magistrate being unsuccessful, no disturbance of costs order warranted. |
| Family Law Act 1975 (Cth) s 79A |
| Matthews & Matthews (2006) FLC 93-298 Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 House v The King (1936) 55 CLR 499 Gronow v Gronow (1979) 144 CLR 513 Norbis v Norbis (1986) 161 CLR 513 CDJ v VAJ (1998) 197 CLR 172 Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Bennett & Bennett (1991) FLC 92-191 Prowse & Prowse (1995) FLC 92-557 |
| APPELLANT: | Mr O’Hurley |
| RESPONDENT: | Ms O’Hurley |
| FILE NUMBER: | NCM | 926 | of | 2006 |
| APPEAL NUMBER: | EA | 111 | of | 2007 |
| DATE DELIVERED: | 11 April 2008 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 1 April 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 24 August 2007 1 November 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 653 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Byrnes |
| SOLICITOR FOR THE APPELLANT: | Byrnes Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Tregilgas |
| SOLICITOR FOR THE RESPONDENT: | Flintoff McNeilly Lawyers |
Orders
That the appeal be dismissed.
That within twenty-one (21) days the wife file and serve submissions in support of any application for costs.
That within twenty-one (21) days thereafter the husband file and serve submissions in response to the submissions on behalf of the wife in relation to costs.
IT IS NOTED that publication of this judgment under the pseudonym O’Hurley & O’Hurley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: NCM2196 of 2005
File Number: EA111 of 2007
| MR O’HURLEY |
Appellant
And
| MS O’HURLEY |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal dated 6 March 2008 Mr O’Hurley (“the husband”) appealed against orders made by Coakes FM in proceedings between himself and Ms O’Hurley (“the wife”) on 24 August 2007 and 1 November 2007. On 24 August 2007 the learned Federal Magistrate dismissed an application of the husband for relief pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). On 1 November 2007 his Honour ordered the husband to pay $2000 by way of contribution to the wife’s costs of successfully resisting the husband’s s 79A application on 24 August 2007, twelve months for the payment of such sum being allowed.
Although not expressly stated in the Amended Notice of Appeal, inferentially the husband sought that, in the event of the appeal being allowed, his s 79A application be reinstated and be remitted for rehearing by another federal magistrate. The husband sought that the order for costs of 1 November 2007 be discharged.
The wife resisted the appeal and sought to maintain the orders made by the learned Federal Magistrate.
Background
The following matters of background are not controversial and find expression in his Honour’s reasons for judgment.
The husband was 43 years of age at the date of his Honour’s judgment, lived with his parents, did not work and was reliant upon Centrelink benefits for his financial support. The husband had not re-partnered.
The husband had residing with him the child of the marriage, M, who is now aged 9. Pursuant to orders made by consent in August 2007 the child lived primarily with the husband, spending each alternate week from after school on Friday to the commencement of school on Monday and in the intervening week from after school on Wednesday to the commencement of school on Thursday and “broadly one half of the school holidays” with the wife.
The s 79A application arose from orders made by consent in a local court in October 2002 at a time when both parties were represented and had filed verified statements of their financial circumstances. The orders, which were implemented shortly after they were made, provided that the wife pay the husband $55 000 for his interest in the former matrimonial home of the parties at F which was then unencumbered. Items of personalty remained with the party possessing such items.
The parties resumed cohabitation subsequent to the making of the consent orders, for a period which his Honour found to have been from 18 months to three years in duration, such cohabitation commencing at the earliest in late 2002 and concluding at the latest in May 2005.
The bases of the husband’s application for relief pursuant to s 79A of the Act were that the parties consented to the October 2002 orders being set aside and/or, absent such consent, the change in circumstances of the parties arising from the child commencing to primarily reside with the husband subsequent to the making of the orders.
The Federal Magistrate’s Reasons for Judgment
The learned Federal Magistrate published reasons for judgment on 24 August 2007. Having accurately identified the bases of the husband’s application for relief pursuant to s 79A of the Act, matters of background, the substance of which have already been recited, were recounted. His Honour also referred, accurately there is no doubt, to the “[c]onsent orders for alteration of property interests”.
Under the heading “The reconciliation”, the learned Federal Magistrate considered the “conflicting evidence from both parties as to the initial date of separation, the date of resumption of cohabitation and the period for which the second period of cohabitation continued”. There being, sensibly in the Court’s view, no challenge to the Federal Magistrate’s findings of fact, it is necessary only in that context to refer to his Honour’s conclusions with respect to those issues, they being that:-
21.Consequently, whilst I am not able to make precise findings as to the period during which the parties resumed cohabitation, at the most, it was at some time in 2002 until May 2005, probably about three years or a little more or at the least, from mid 2003 until late 2004, when separation occurred under the same roof, that is a period of a little more than 18 months.
His Honour then considered the evidence before him in relation to both “the manner in which the parties conducted their affairs during the first period of cohabitation of marriage and the period of resumption of cohabitation”. By reference to the “[f]irst [p]eriod”, the learned Federal Magistrate referred to the history of the parties’ contributions during their first cohabitation. As with other areas of his Honour’s judgment, there was no challenge to any finding of fact there recorded. His Honour clearly, for reasons which he stated, preferred the evidence of the wife to that of the husband where there was disagreement.
So far as the “[s]econd period” was concerned, the learned Federal Magistrate recorded the “common ground that by the time the parties resumed cohabitation the orders had been fully implemented”, in that the husband had transferred to the wife the whole of his interest in the F property and the wife had paid the husband the $55 000 called for by the October 2002 orders. His Honour referred to the manner in which the husband utilised the monies which he thus received.
The contributions made by each of the parties during the second period of cohabitation were considered by the learned Federal Magistrate, as were the financial arrangements between the parties, the latter including the absence of joint bank accounts, joint debts or joint credit cards, the maintaining of separate bank accounts and the practice of one party paying for the parties’ food and the other paying for the parties’ other expenses.
His Honour referred to the comparative financial contributions made by the parties in the second period of cohabitation, to the absence of the payment by the husband towards the mortgage on F or any outgoings with respect to it or relating to his occupancy of the property.
The learned Federal Magistrate referred to the wife having borrowed $30 000 in 2004 against the security of F in addition to the $55 000 which she had previously borrowed to pay the husband. His Honour also referred to the wife’s evidence that her intention at the time of borrowing the further monies was to benefit herself, the husband and the child of the marriage. His Honour found, uncontroversially, that the wife had made all mortgage repayments including the payments with respect to the additional loan.
His Honour referred to the “common ground that there were no discussions between the parties as to what would happen to such orders [of October 2002], or the effect if any, upon their resumption of cohabitation”. Reference was made to the wife’s evidence that “said that she did not know what would happen to the old orders”. His Honour also recorded:-
47.Within three weeks of the separation in May 2005 the wife conceded that it was appropriate for the husband to have the predominate care of [M] and for her to live with him as a consequence of her shift work. The husband commenced proceedings seeking parenting orders in April 2006 and interim parenting orders were made in this court on 5 July 2006 providing for [M] to live with her father and spend time with the mother each alternate weekend and in the intervening week during school terms and for portions of school holidays. The orders provided that the parents exercise equal shared parental responsibility as to major long term decisions.
The learned Federal Magistrate first considered the application by the husband for relief pursuant to s 79A of the Act on the basis that the parties consented to such course. By reference to a decision of Carmody J in Matthews & Matthews (2006) FLC 93-298, the learned Federal Magistrate detailed his “[o]bservations, findings and conclusions”. He there recorded that “the period of resumption of cohabitation is inconclusive, irrespective of whether it was in fact for the shorter period or for the longer period”.
His Honour recorded that:-
54.I find on the evidence that the parties did not resume cohabitation for financial reasons. Neither party asserts or indeed suggests that living together during the earlier part of the resumed cohabitation, or once the wife obtained employment in 2004 came about as a result of one requiring financial assistance from the other. The evidence establishes that the parties resumed cohabitation for the sake of the children. No other reason is advanced by either party.
It was further found that:-
55.Once the wife obtained employment … she had a greater capacity to contribute to the household’s financial needs, and did so. It was her income that enabled the household bills to be paid and for household expenditure to be met. To that extent, the husband benefited from the wife’s greater income bearing in mind that he received Centrelink benefits.
The learned Federal Magistrate regarded the financial arrangements between the parties as “no more than apportioning of the meeting of household expenditure in accordance with income”, the husband’s income being Centrelink benefits.
His Honour recorded that:-
57.The fact that there was no creation of joint bank accounts or joint credit cards or joint borrowings does not, by itself, suggest a conscious desire or step to maintain separate finances. This state of affairs existed during their first period of cohabitation.
The learned Federal Magistrate accepted (paragraph 58) that the additional $30 000 borrowed by the wife was “intended by her for joint purposes”, the significance of the transaction being that “the wife retained the ownership of the property, she was the sole borrower and she assumed sole responsibility for the mortgage repayments and the liability pursuant to such borrowings”. Whilst “[t]he husband gained an indirect benefit in the ability to use the swimming pool”, the “transaction alone cannot be construed as an implied consent by the wife to an abandonment of the final property orders” being “equally consistent with the wife regarding property orders as continuing in force and not seeking a sharing of the responsibility for the burden of the loan”.
During the second period of cohabitation his Honour reiterated that there “was no intermingling of funds and no joint property purchased or joint liability incurred”.
His Honour concluded with respect to the intentions of the parties that:-
61.The evidence establishes that neither party gave any conscious consideration to the effect of their resumption of cohabitation upon the consent orders into which they entered in 2002. I accept the evidence that each of the parties has given in respect to that issue.
62.Further, the evidence does not suggest, and I am unable to find on the evidence that the parties considered the terms and conditions of their reconciliation, particularly as to financial matters, prior to or during their resumed cohabitation.
63.I am not able to find on the evidence that when the wife supported the household financially upon obtaining employment, and borrowed further monies that she thought, consciously or otherwise, that this amounted to an implied consent not to be bound by the existing orders. In fact, the evidence establishes she had not considered such matter.
The somewhat changed roles of the parties in terms of homemaking and parenting, particularly after the wife commenced working in 2004, did not “by itself” lead the learned Federal Magistrate to conclude or infer that “the parties no longer regarded themselves as bound by the previous orders”.
Uncontroversially, the learned Federal Magistrate recorded that the wife had not actually consented to the 2002 orders being set aside and that “the conduct of the parties does not amount to an implied consent or inferred consent to the setting aside of such orders”.
Ultimately, his Honour concluded that:-
66.This is not a case where, in my view, the conduct of the parties could lead to a finding that their conduct during their resumption of cohabitation could be found to be consistent with either an intention to disregard the previous property settlement or to act in accordance with it. (footnotes omitted).
He further concluded:-
67.In my view the wife acted wholly consistently with ownership of the property pursuant to the consent orders and doing with it as she saw fit both by way of increasing the mortgage liability for which she assumed sole responsibility and carrying out improvements in the form of a swimming pool.
Reference was then made to the standard of proof by reference to which the proceedings fell to be determined. That was the “civil standard, that is on the balance of probabilities”. His Honour said “[w]hen I come to weigh all the evidence I am not satisfied that the husband has established, on the balance of probabilities, a reasonable and definite inference of consent or that implied consent can be drawn”.
The learned Federal Magistrate then proceeded to consider the submission on behalf of the husband “that the justice of the case requires that the husband’s present circumstances should be taken into account given that he now has the greater responsibility for the care of M”. His Honour concluded with respect to such submission:-
71.I find that it is not a question in this case of whether there is injustice to the husband at being denied the opportunity to pursue a further claim for property settlement. The orders made in 2002 were final orders and have been fully complied with. Further, I find on the evidence that the issue of injustice is not a ground upon which I can find that by itself, that is the basis upon which implied or inferred consent can be found to exist all that the wife should be estopped from denying that there was an implied consent to the orders being set aside.
So far as the alternate basis of the husband’s claim for relief pursuant to s 79A of the Act, his Honour accepted that:-
74.There has been a change in the responsibility in the care of [M] after making the orders in 2002 and after the period of resumed cohabitation came to an end in that [M] is now living permanently with the father.
His Honour concluded in that regard:-
75.The parents, between them have been responsible for [M’s] upbringing, shared on a different basis between them from time to time. It could not be said that the change which has now occurred is such as to take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur. The evidence establishes that the person’s available to care for [M] on a full time basis, before the orders were made in 2002 and at all times since are the husband and the wife respectively.
No ground for relief having been established, his Honour accordingly dismissed the husband’s application.
Relevant Law
The law which governs this appeal is not in doubt and does not require extensive restating for the purposes of this appeal. There is a presumption that the decision of the learned Federal Magistrate is correct. Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 said (at 627):-
I shall not repeat the references I made in Lovell v. Lovell [(1950) 81 CLR 513, at pp 532-534] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
The husband thus bears the onus of demonstrating that his Honour’s decision was “clearly wrong”.
In House v The King (1936) 55 CLR 499 the High Court said (at 504 – 505):-
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
It was, sensibly in the Court’s view, conceded by counsel for the husband that no ground of appeal agitated on his behalf involved any challenge to any finding of fact made by the learned Federal Magistrate by reference to which his discretion was exercised. The judgment of Stephen J in Gronow v Gronow (1979) 144 CLR 513 is relevant in those circumstances. His Honour there said (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
At least inferentially, and sensibly, it was acknowledged by learned counsel for the husband that, on the unchallenged findings of fact made by him, the learned Federal Magistrate could have principally exercised his discretion either in favour of the husband or against him. The judgment of Brennan J in Norbis v Norbis (1986) 161 CLR 513 is relevant in those circumstances. His Honour there said (at 539 – 540):-
The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [[1948] 1 All ER 343 at 345], Asquith L.J. 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 a 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.
In more recent times, Kirby J said in CDJ v VAJ (1998) 197 CLR 172 (at 230 – 231):-
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction. (footnotes omitted).
Grounds of Appeal
Ground 1
Ground 1 of the Amended Notice of Appeal provided:-
1.The Learned Federal Magistrate wrongly considered the submission that the duration of the parties’ resumed relationship may have been as little as 18 months. His Honour erroneously stated that the Husband had conceded that separation under the one roof occurred six months prior to actual separation. The Husband did not ever concede that, nor did the Wife assert it, nor did the Wife’s Counsel put that to the Husband. (Appeal Book, page 2, par 1).
Although learned counsel for the husband addressed this ground in his comprehensive written summary of argument, nothing further was advanced in support of it on the hearing of the appeal. Given the general concession made with respect to findings of fact, that course was, with respect to counsel, well advised.
A balanced reading of his Honour’s reasons and findings leaves little room for doubt that his Honour did not base his exercise of discretion on the “minimum” possible duration of the period of the resumed cohabitation of the parties. His Honour, as the passages which have earlier been referred to make clear, decided the case on the basis that the parties had resumed cohabitation for a period of not less than 18 months and possibly almost three years.
There is thus no error of fact on the part of the learned Federal Magistrate that has been established pursuant to this ground. Moreover, it has not been shown, whatever the duration of the resumed cohabitation was, or should have been held to have been, that such duration materially impacted upon the learned Federal Magistrate’s decision. Nor has it been shown that regarding the resumption of cohabitation as having extended for almost three years would or should have impacted upon the exercise of discretion resulting in a different outcome. Having regard to his Honour’s reasoning process it would not have. It is thus unnecessary to say more about this ground.
Ground 2
Ground 2 of the Amended Notice of Appeal provided:-
2.His Honour failed to give any or adequate reasons for his decision.
It was submitted in support of this challenge that the learned Federal Magistrate’s reasoning process had been inadequately articulated by him in the course of his reasons for judgment and that, as such, appellate intervention should be enlivened.
The law which governs challenges to the adequacy of reasons for judgment is not in doubt and does not require extensive restatement in this appeal. In Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378 Mahoney JA said (at 385 – 386):-
There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law: see, for example, Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697; McCarroll v Fitzmaurice [1979] 2 NSWLR 100.
…
However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument.
…
In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons. Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement: see Pettitt v Dunkley (at 387, 388). But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process. However, the fact that the function of the requirement is, at least in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what will be a discharge of it. Thus, in some cases where ordinarily an appeal is not contemplated, there may not be a need for reasons.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 McHugh JA said (at 280):-
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.
…
Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related “to the function to be served by the giving of reasons”. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal.
In Bennett & Bennett (1991) FLC 92-191, the Full Court said (at 78,266):-
Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge’s decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
The Court is not persuaded that the learned Federal Magistrate’s reasoning process was not reasonably discernable from his judgment. Without referring to it again in detail, why his Honour concluded as he did has been explained by him. A brief tracing of the learned Federal Magistrate’s reasoning process denies this challenge success.
His Honour considered the duration of the resumed cohabitation to be “inconclusive”, whether it was for “the shorter period or for the longer period”. His Honour found that “the parties did not resume cohabitation for financial reasons” but rather, and solely, “for the sake of the children”, being the child of the marriage and the wife’s child of an earlier relationship.
The learned Federal Magistrate did not consider that there had been any “intermingling of the parties’ financial affairs” and referred to the absence of joint financial transactions as not significant given that the parties had a adopted a similar approach to their finances during their first period of cohabitation.
His Honour accepted that the wife intended the monies borrowed by her for a swimming pool to be for “joint purposes” although the more significant factors were that the wife retained the sole ownership of the property, was the sole borrower of the monies, and assumed sole responsibility for repaying the monies. His Honour concluded that the borrowing of funds to build the swimming pool should not of itself be “construed as an implied consent by the wife to an abandonment of the final property orders” and was “equally consistent with the wife regarding property orders as continuing in force and not seeking a sharing of the responsibility for the burden of the loan”.
The learned Federal Magistrate found that “neither party gave any conscious consideration to the effect of their resumption of cohabitation upon the consent orders into which they entered in 2002”. He also recorded that he was unable to find that “the parties considered the terms and conditions of their reconciliation, particularly as to financial matters, [either] prior to or during their resumed cohabitation”. No financial transactions undertaken by the wife during the second period of cohabitation were considered to amount to “implied consent not to be bound by the existing orders”, the evidence establishing that “she had not considered such matter[s]”.
The modified homemaking and parenting roles of the parties in the second cohabitation period also did not lead his Honour to conclude or infer that the parties “no longer regarded themselves [as] bound by the previous orders”.
His Honour found that the conduct of the parties did not amount to “implied consent or inferred consent to the setting aside” of the 2002 orders. He further concluded that the conduct of the parties during their period of resumed cohabitation could not be found to be “consistent with either an intention to disregard the previous property settlement or to act in accordance with it”. The wife was held to have acted consistently with the orders in her dealings with the F property during the second period of cohabitation.
The crux of the learned Federal Magistrate’s reasoning process is probably found in the passages of his reasons for judgment in which he referred to the requirement that the “fact of consent must be established by the alleging party, … in accordance with the civil standard, that is on the balance of probabilities”. His Honour was not satisfied that the husband had “established, on the balance of probabilities, a reasonable and definite inference of consent or that implied consent can be drawn”.
Putting his case at its highest for the husband, it is apparent that his Honour concluded that it was equally probable that the parties intended to be bound by the 2002 orders during the period of resumed cohabitation as it was that they did not intend to be so bound. That being so, his Honour was unable to be satisfied that he husband, who clearly bore the onus of proof (Prowse & Prowse (1995) FLC 92-557) had failed to establish the facts necessary for his claim to succeed on the balance of probabilities, that is to say that his assertion that the parties had impliedly consented to the setting aside of the 2002 orders was more probable than not. His Honour’s reasoning process with respect to this topic was, in this Court’s view, adequately articulated.
So far as the alternate ground relied upon by the husband was concerned, the learned Federal Magistrate clearly recognised the facts upon which the husband based such claim. Why his Honour rejected that claim is also not in doubt as the following passages from his judgment make clear:-
76.It has been said that the ordinary vicissitudes of life, coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following upon the dissolution of their marriage and the division of their assets, and their obligations to the support of each other and the support, care and control of their children, frequently create situations in which it is desirable, having regard to the children’s welfare, that such a change occurs.
77.It is not as if the change amounts to such an exceptional change as for example the death of a parent or a serious chronic illness of a child which may, for example, require significant capital expenditure to alter the child’s home.
78.I take into account the husband’s present financial circumstances and that he has lived, during the period of separation, with his parents in their accommodation whilst they live in a granny flat at the rear of such accommodation.
79.I find, on the evidence, that the change in circumstances relating to the care of [M] do not amount to circumstances of an exceptional nature sufficient to invoke section 79A(1)(d). (footnotes omitted).
With respect to the ingenuity of the submissions of learned counsel for the husband, the learned Federal Magistrate’s reasons for judgment clearly and logically reveal the process of reasoning which led to his conclusions with respect to each of the grounds for relief pursuant to s 79A of the Act upon which the husband relied. It is not insignificant, given the cogency of the submissions made on the husband’s behalf, that his learned counsel has not been able to suggest in what way the learned Federal Magistrate could or should have said more to expose to scrutiny his reasoning process. This ground lacks substance.
Ground 3
Ground 3 provided:-
3.In paragraph 66 of His Honour’s Reasons for Judgment he directly contradicts the finding he makes in paragraph 65, which finding constitutes his actual decision.
It is convenient, for reasons which will emerge, to consider in conjunction with Ground 3 the challenge articulated in Ground 4. Ground 4 provided:-
4.If reasons for His Honour’s decision were given and they are set out in paragraph 67 of his reasons for judgment His Honour erred in the findings in that paragraph.
Rather than seek to paraphrase them, it is convenient to reproduce from learned counsel for the husband’s written submissions the assertions in support of these grounds. It was submitted that:-
3.6.4As set out above, in paragraph 65 His Honour made a determination that the conduct of the parties did not amount to an implied consent to the setting aside of the 2002 Orders.
3.6.5In paragraph 66, however, His Honour made the following comment:
“This is not a case where, in my view, the conduct of the parties could lead to a finding that their conduct during their resumption of co-habitation could be found to be consistent with either an intention to disregard the previous property settlement or to act in accordance with it.”
3.6.6There are two comments which can be made in relation to that paragraph.
3.6.7Firstly, if the conduct of the parties could not lead to a finding consistent with an intention to act in accordance with the Orders then it was not open to His Honour to make the finding set out in paragraph 65 above.
3.6.8Secondly, it was not open to His Honour to state that the conduct of the parties was not capable of being found to be consistent with either an intention to disregard the previous Orders or to act in accordance with them. Their conduct must have been capable of one of those competing alternatives.
3.6.9By making the abovementioned comments His Honour was abrogating the role required of him – namely to make a finding in relation to the manner in which the conduct of the parties should be interpreted.
3.6.10If the parties’ conduct was not consistent with an intention to disregard the previous Orders then it must be implied that their conduct was consistent with them acting in accordance with those Orders.
3.6.11In the alternative, if the parties’ conduct was not consistent with them acting in accordance with the Orders then their actions must be consistent with them disregarding or ignoring them.
3.6.12The parties [sic] conduct – whatever it was – must be capable of some finding insofar as it related to the 2002 Orders.
3.6.13If His Honour meant to state that the parties by their conduct gave no conscious attention to the Orders it is necessary for him to draw a conclusion from such lack of attention – ie did it apply adherence to or the disregarding of the previous Orders.
There followed submissions the success of which involves challenges to findings of fact which have either not been maintained or are not sustainable. It was finally submitted in relation to this topic:-
3.6.19Thirdly, if paragraph 67 should be interpreted as providing the reason for His Honour’s decision then it follows that what His Honour is indicating in that paragraph is that the wife’s behaviour was (on one aspect) consistent with her adhering to and acting upon the 2002 Orders. Such a statement is, however, directly contradictory to His Honour’s findings in paragraph 66 – namely that the parties’ behaviour is not consistent with such a finding.
Although these challenges have largely been, at least inferentially, dealt with in the context of the challenge to the adequacy of the learned Federal Magistrate’s reasons for judgment, in deference to learned counsel for he husband, the Court’s reasons for concluding that these challenges lack substance will be indicated.
It is unnecessary to restate the findings of fact in relation to the circumstances of the parties’ period of resumed cohabitation. As noted earlier, there has been no challenge to any such finding of fact. Nor, sensibly, has it been suggested that the circumstances in the resumed period of cohabitation necessarily established that the parties impliedly consented to the 2002 orders being set aside or disregarded or otherwise not continuing to bound them, any more than it established the converse.
The learned Federal Magistrate found that neither party had given any “conscious consideration to the effect of their resumption of cohabitation upon the consent orders into which they entered in 2002”. Nor did they consider the “terms and conditions of their reconciliation, particularly as to financial matters, prior to or during their resumed cohabitation”.
The case thus fell to be determined on the basis of whether the circumstantial evidence established as a matter of inference or conclusion that, despite the absence of any express agreement or even consideration of the consequences of the resumption of cohabitation so far as the 2002 orders were concerned, the parties nevertheless intended to no longer be bound by the terms of those orders.
His Honour found that the conduct of the parties did not amount to implied or inferred consent not to be bound by the earlier orders. His Honour found, as was clearly open to him on the findings of fact he had made, that:-
66.This is not a case where, in my view, the conduct of the parties could lead to a finding that their conduct during their resumption of cohabitation could be found to be consistent with either an intention to disregard the previous property settlement or to act in accordance with it.
With respect to his Honour, on the findings of fact made by him, not only was that conclusion reasonably open to him, it was the only conclusion reasonably open to him. Whilst the conclusion was neutral, it assumed significance when the learned Federal Magistrate directed himself to the necessity to be satisfied on the balance of probabilities that the husband had made out his case, as the finding denied the husband the ability to advance his claim in reliance upon any express intention. The husband was thus obliged to attempt to prove his case in reliance upon circumstantial evidence. His Honour was unable on the evidence to be satisfied that the husband had “established, on the balance of probabilities, a reasonable and definite inference of consent” (which is not challenged in this appeal) or that “implied consent can be drawn”. Read in context, there are not, in this Court’s view, any inconsistencies or other matters emerging from the critical passages of the learned Federal Magistrate’s reasons for judgment which would enliven appellate intervention. The circumstantial evidence rendering the husband’s essential contention no more probable than its converse, he failed to prove his case.
Whilst in most cases preferring one party’s version of events to that of the other party will generally assume considerable significance for the purpose of determining the probabilities, that is not always so. There are cases, and this is one of them, where, at the conclusion of the evidence, and on the unchallenged findings of fact made by the court, the probabilities remain evenly balanced. His Honour’s determination of the issue has not been shown to have been erroneous. Although it is thus unnecessary to say more, on the unchallenged findings of fact made by the learned Federal Magistrate, to have found in favour of the husband would probably have been to err. These grounds thus lack substance.
Ground 5
Ground 5 provided:-
5.The justice of the case requires the Appeal be allowed.
In support of this challenge it was succinctly submitted:-
4.1At the Hearing before the Learned Federal Magistrate the Appellant [husband] made submissions as to the unfairness involved in precluding him from bringing fresh proceedings for property settlement.
4.2That unfairness should be articulated.
4.3On initial separation a division of assets was made which resulted in the wife receiving a majority of those assets. As set out above, the only way the 2002 Orders could have been just and equitable was if significant regard was had to the fact that the wife was to have primary care of [M] for the future.
4.4Shortly after those Orders were made (indeed, on the wife’s evidence, a matter of 1-2 months at the most) the parties resumed co-habitation. Sometime later they separated. During the period of resumed co-habitation the husband took on a greater role in caring for [M]. On final separation the arrangements regarding [M] consensually changed. It was no longer the wife who had her primary care but the husband. Fairness dictates that a further adjustment of the parties [sic] property should occur given that the telling factor in the adjustment of assets in 2002 had, in effect, been “reversed”.
4.5It is conceded that no reference is made in Section 79A (1) to issues of “justice” or “fairness”. It is submitted, however, that it would be a most unusual situation if such concepts were not to be given consideration when examining the operation of that Section.
4.6When considering Section 79A(1A) His Honour did not consider whether the parties, by consensually altering the arrangement in relation to [M], impliedly consented to setting aside the previous Orders regarding property settlement.
4.7(In fairness to His Honour it is conceded that neither party gave specific evidence on that issue nor did it form part of the parties’ cross-examination)
4.8Having said that, however, the parties were (by their own admission) unsophisticated and unaware of the specific provisions of the Family Law Act.
4.9It was open to His Honour, however, (and it is open to this Court) to infer from the conduct of the parties, their attitude towards the previous Orders.
4.10It is respectfully submitted that the only inference to draw, given the 2002 Orders was that the parties by consensually altering the arrangements regarding [M’s] care, impliedly consented to the setting aside of the previous Orders.
4.11His Honour did not specifically consider that issue in fairness to him it was only vaguely referred to in submissions to him.
4.12To the best of the Appellant’s [husband’s] knowledge no prior authorities consider such an argument.
4.13In Smith and Wilson (475 of 1996 – unreported 7 February 2000) Warnick J made reference to how an “objective observer” would comment on the behaviour of the parties and their intentions regarding pre existing orders.
4.14It is submitted that the justice of this case strongly points to any objective observer forming the view that the parties consented, when consensually changing the arrangements regarding [M], to set aside the previous Orders.
4.15The “Justice of the case” argument has another aspect. The “logic” inherent in His Honour’s determination is that the Appellant [husband] exists in some form of legal vacuum devoid of rights he would have otherwise have but for the fact that he did not divorce his wife prior to their resumption of cohabitation.
4.16On the parties resuming cohabitation their resumed relationship may have been characterised in a number of ways. They could have resumed living together as “landlord and tenant” or “boyfriend and girlfriend”. Had they done so the Appellant [husband] would have obviously have [sic] had no ground to seek to vary the previous Orders.
4.17It appears that the parties could not have resumed cohabitation as a defacto couple pursuant to the definition in the Property (Relationships) Act. As the parties remained married throughout they could not fall within the definition of a defacto relationship under that Legislation.
4.18The only other characterisation of the parties’ relationship is that their cohabitation meant a resumption of their marital relationship.
4.19Indeed, there was no issue as to that. At lines 34 and 38 – 39 (pg 31 transcript 7/8/07) His Honour stated “there is no doubt these parties continued their marital relationship”.
4.20One wonders how the parties could continue a marital relationship and not – by doing so – impliedly consent to the setting aside of the previous Orders. The expression “marital relationship” connotes a relationship marked by a degree of interdependence, mutual support, sharing of responsibilities etc. That concept is alien to the assertion that one party to the relationship participates in it relying on the “finality principle”. It is conceded, however that the authorities state that parties can resume a martial relationship but not be taken to have impliedly consented to setting aside previous Property Orders.
4.21Such an interpretation, however, leaves someone such as the Appellant [husband] devoid of the rights he would otherwise have. That can be demonstrated by examining the rights available to the Appellant [husband] in similar circumstances.
4.22If the parties had divorced and then remarried, on resumption of cohabitation the husband would have a right to bring an Application for property settlement in relation to the fresh marriage.
4.23If the parties had divorced and resumed a relationship but not remarried the husband could bring an Application for adjustment of interest under the Property (Relationships) Act.
4.24If the parties had not married during the first period of cohabitation but had lived together as a defacto couple (with Orders being made on the termination of that relationship) and then resumed such a relationship the Appellant [husband] would have rights under the Property (Relationships) Act in respect of the renewed relationship.
4.25If the parties had cohabited in a defacto relationship during the first period of cohabitation and then married the Applicant [husband] would be able to bring proceedings under the Family Law Act in relation in [sic] the resumed period of cohabitation.
4.26In this case, however, (and it must be said, perversely) the Appellant [husband] has no right to claim in relation to the resumed period of cohabitation unless he can demonstrate the matters set out in Section 79A(1A).
4.27It is respectfully submitted that recognition of such unfairness to someone in the position of the Appellant [husband] should be a factor in determining Applications pursuant to Section 79A(1A).
Whilst it is less than clear that it is necessarily the case, with respect to learned counsel for the husband, this challenge seems to involve the proposition that the “justice of the case” may provide a foundation for success pursuant to s 79A of the Act where no ground for relief under the section has been made out. If that is the effect of this challenge, the Court cannot accept that it is a correct statement of the law. The Court perceives from the terms of the section that, unless a ground for relief is made out under s 79A, no broader consideration of the “justice of the case” is required.
Similarly, to the extent that the submissions in support of this ground seek to impugn the orders made in 2002, either by reference to some unfairness then or some unfairness which is submitted to have arisen thereafter, such matters could not, in this Court’s view, have advanced the claim of the husband before the learned Federal Magistrate in the present case.
Section 79A provides grounds upon which the making of orders can be challenged. None of those grounds was raised in support of the application before the learned Federal Magistrate and could not thus by some other indirect means be successfully relied upon. The grounds upon which the husband relied pursuant to s 79A involved events after the 2002 orders were made, rather than a direct challenge to their making.
To the extent that the challenge relies upon some broader “unfairness”, as the terms of the section and the authorities in relation to it make clear, s 79A of the Act does not provide a vehicle whereby a party can be relieved from what was at the time, or later became, a “bad bargain”.
Had the husband established a ground for relief under s 79A, the matters to which learned counsel for the husband refers would have been relevant to the exercise of the Court’s discretion to set aside or vary the 2002 orders. Having not established a ground for relief under the section however, they could not have that effect, either before the learned Federal Magistrate or before this Court.
Ground 6
Ground 6 of the Amended Notice of Appeal provided:-
6.The Learned Federal Magistrate did not properly consider whether the parties, by consensually altering the care arrangements regarding the child [M] impliedly consented to the setting aside of the 2002 Orders.
In support of this challenge it was submitted:-
5.1Section 79A(1)(d) allows the Court to vary existing Orders if a number of preconditions are met.
5.2That section states that the Court needs to be satisfied that, in the circumstances that have arising since the making of the Orders, a child or the Applicant [husband] would suffer hardship if the Court does not vary the Order.
5.3The circumstances referred to above must be exceptional and relate to the care welfare and development of the child.
5.4His Honour did not accept that there was anything exceptional in this case.
5.5It is conceded that, ordinarily, a change in the living arrangements of a child following the making of Property Settlement Orders is not “exceptional”.
5.6It is submitted, however, that the authorities in relation to Section 79A(1)(d) deal with situation where, following separation, there has not been a resumption of cohabitation.
5.7In this case, shortly after the making of the 2002 Orders cohabitation resumed and on final separation the care arrangements in relation to the child altered.
5.8The absence of any prior authorities dealing with a similar factual situation attests to the uniqueness of such a scenario. As such it should be regarded as “exceptional”.
5.9The circumstances of this case should also be seen to be exceptional for the reasons set out under the previous heading “The Justice of the Case”.
5.10One can well understand the approach of previous Court to deter parties from recommencing proceedings for property settlement on every change of residence after the parties separate and Orders are made. The finality principal [sic] rightly applies in such circumstances. In those cases the parties remained separate and apart and have (presumably) altered their affairs since the making of the previous Orders to suit their own purposes (and not for the general benefit of the family).
5.11That situation should be contrasted with the present scenario. Here the parties resumed their marital relationship. Here the parties consensually agreed to vary the arrangement in relation to the care of [M]. The cumulative effect of those two matters, coupled with the justice of the case, causes this matter to come within the definition of the term “exceptional”.
5.12As such His Honour erred in not allowing that ground of the Appeal.
5.13There is clearly hardship to the Appellant [husband] in the Court not varying the previous Orders. It deprives the husband of an entitlement to an adjustment of the joint pool of assets based on the very same factor which entitled the wife to receive more than a majority share of the assets in the 2002 Order[s]. Depriving the husband of the opportunity to recover such a sum clearly constitutes hardship to him.
By no process of logic with which the Court is familiar can it be successfully contended that the parties consensually altering the care arrangements for their child constituted an implied consent of the setting aside of the 2002 orders for settlement of property.
It was further submitted on behalf of the wife that:-
74.The Learned Federal Magistrate did consider this issue especially at reasons at paragraphs 37, 38, 47, 59, 64 and by inference 69. Appeal Book at pages 16, 17, 19 and 20 respectively.
75.And concluded at paragraph 64
‘The evidence establishes that both parties continued their role as parents during the resumption of cohabitation. Such roles had been performed by each of them prior to their first separation. Whilst it is true that the husband’s role changed during the resumption of cohabitation and I find his role as a parent increased after the wife commenced work in 2004 the role remained essentially shared. That by itself does not lead to a conclusion or inference that may be drawn that the parties no longer regarded themselves bound by the previous orders.’ Appeal Book page 20.
The passages of his Honour’s judgment to which learned counsel for the wife referred the Court leave little room for doubt that the learned Federal Magistrate properly considered the matter complained of in this ground. The logic of his conclusion cannot be successfully disputed. As was fairly conceded by counsel for the husband during the hearing of the appeal, the decision of the learned Federal Magistrate does not leave the husband in the position of having a right without a remedy. Either by periodic or other payments, the husband may seek to have the financial implications of the changed circumstances of the parties’ child visited upon the wife pursuant to the child support legislation if that is warranted. This challenge fails.
Ground 7
Ground 7 provided:-
7.His Honour erred in finding that s 79A(1)(d) did not apply.
Nothing otherwise submitted in support of the husband’s appeal advances this challenge.
Ground 8
So far as the challenge to the learned Federal Magistrate’s order for costs of 1 November 2007 is concerned, it was, fairly and realistically, suggested in Ground 8 of the Amended Notice of Appeal that “[i]f the Appeal is allowed the Costs Order of 1 November 2007 should be discharged”. As is apparent from this Court’s judgment, the orders of 24 August 2007 will not be disturbed. There is accordingly no basis for disturbing the learned Federal Magistrate’s order for costs.
Conclusion
No ground of appeal having been established, the husband’s appeal will be dismissed.
Costs
It was agreed by the parties that each would have the opportunity to make brief written submissions with respect to the costs of the appeal and the Court will so direct.
I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 11 April 2008
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