PEARSON & PEARSON
[2021] FamCAFC 34
FAMILY COURT OF AUSTRALIA
| PEARSON & PEARSON | [2021] FamCAFC 34 |
| FAMILY LAW – APPEAL – PROPERTY – Appeal against an order dismissing the appellant husband’s application to have consent orders set aside pursuant to s 79A(1)(a) and s 79A(1A) of the Family Law Act 1975 (Cth) – Where the appellant had alleged that the respondent had given false evidence in the application for consent orders; that the appellant had received incompetent legal advice which was not independent and that the consent orders were so unjust so as to amount to a miscarriage of justice – Where the primary judge found errors in the application for consent orders did not constitute a basis for setting the orders aside; the appellant had received competent legal advice; and the outcome produced by the consent orders were not so far beyond the range as to constitute a miscarriage of justice – Where the appellant asserted that the parties had subsequently recommenced cohabitation and there was implied consent to set the orders aside – Where the primary judge found the parties had not recommenced cohabitation – Conclusions open on the evidence – Where the primary judge did not err by not drawing an adverse inference arising from the respondent’s failure to call two witnesses – No merit to any challenge on appeal – Appeal dismissed – Costs ordered in favour of the respondent wife. FAMILY LAW – APPEAL – COSTS – Appeal against a costs order – Where it was conceded that if the substantive appeal was dismissed the appeal against the cost order should be dismissed – Appeal dismissed. |
| Evidence Act 1995 (Cth) ss 38, 144 Family Law Act 1975 (Cth) ss 79, 79A |
| Clifton and Stuart (1991) FLC 92-194; [1990] FamCA 154 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd [2003] NSWCA 66 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Manly Council v Byrne and Anor [2004] NSWCA 123 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Public Trustee (as executor of the estate of the late Gilbert) v Gilbert (1991) FLC 92-211; [1991] FamCA 10 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 |
| APPELLANT: | Mr Pearson |
| RESPONDENT: | Ms Pearson |
| FILE NUMBER: | SYC | 8557 | of | 2015 |
| FIRST APPEAL NUMBER: | EAA | 141 | of | 2019 |
| SECOND APPEAL NUMBER: | EAA | 71 | of | 2020 |
| DATE DELIVERED: | 12 March 2021 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Watts & Austin JJ |
| HEARING DATE: | 23 October 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 6 December 2019; and 6 May 2020 |
| LOWER COURT MNC: | [2019] FamCA 931; and [2020] FamCA 329 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Livingstone |
| SOLICITOR FOR THE APPELLANT: | Marsdens Law Group |
| COUNSEL FOR THE RESPONDENT: | Mr Kasep |
| SOLICITOR FOR THE RESPONDENT: | Russell Kennedy Aitken Lawyers |
Orders
The appeal numbered EAA 141 of 2019 be dismissed.
The appeal numbered EAA 71 of 2020 be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $23,580 within a period of twenty-eight (28) days of the date of these orders.
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 Pearson & Pearson 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 Numbers: EAA 141 of 2019 & EAA 71 of 2020
File Number: SYC 8557 of 2015
| Mr Pearson |
Appellant
And
| Ms Pearson |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 20 December 2019, Mr Pearson (“the appellant”) challenges an order made by the primary judge on 6 December 2019 which dismissed the appellant’s application pursuant to ss 79A(1)(a) and (b) and s 79A(1A) of the Family Law Act 1975 (Cth) (“the Act”), to set aside property settlement consent orders made by a Registrar of the Local Court of New South Wales on 26 November 2007 (“the consent orders”). Ms Pearson (“the respondent”) opposes the primary appeal.
On 6 May 2020 the primary judge made a costs order against the appellant in the sum of $136,577.52. The appellant also appeals that order. The respondent concedes that the appeal against the costs order should be allowed in the event that the appeal against the substantive order is allowed. The appellant agrees that if the appeal against the substantive order is dismissed, then so too should the appeal against the primary judge’s costs order.
It was the appellant’s case before the primary judge that:
·The consent orders were a collaboration between the parties so that the appellant could receive Centrelink benefits between May 2007 and December 2014; and
·Although the parties separated in 2007, their relationship as a couple restored in 2008 until they finally separated on 16 December 2014 and the orders should be set aside on the basis of the implied consent of the parties following their reconciliation.
The primary judge rejected both of those contentions (at [144]–[145], [151] and [273]).
For reasons which follow, both appeals should be dismissed.
Background
The parties married in 1979 in Country G. The three children of the marriage were 36, 30 and 28 at the time of the hearing before the primary judge.
The primary judge concluded the parties separated on 10 May 2007 (at [164]). The parties were divorced in April 2015.
Prior to the parties signing the application for the consent orders on 7 November 2007, the parties each received independent legal advice. The consent orders required the appellant to transfer to the respondent his interest in three jointly owned properties (two of which had no equity); and those transfers were signed either on 7 November 2007 or soon thereafter. The transfers were subsequently dated 21 November 2007.
Appeal against the consent orders (Appeal No. EAA 141 of 2019)
Ground 11 was abandoned.
Ground 1
The trial judge erred by failing to have regard to clear and compelling evidence that after the date that consent orders were made the parties resumed living together under the same roof and that the parties entered into the orders for the purposes other than to finalise their financial relationship
Ground 1 contends that the primary judge failed to have regard to clear and compelling evidence relating to both legs of the appellant’s case. The second leg of Ground 1 complains that the primary judge did not deal with the appellant’s contention that the parties entered into the consent orders so that he could obtain Centrelink benefits. However, in the appellant’s Summary of Argument filed on 16 April 2020, the only evidence referred to relates to the appellant’s assertion that the parties had resumed their relationship in 2014. Consequently, the only complaint in this ground is that the primary judge “did not engage with the clear and compelling evidence” adduced from the appellant “about where he actually lived” (appellant’s Summary of Argument filed 16 April 2020, paragraph 8).
At [45] of the reasons, the primary judge concluded that the appellant was being untruthful when he asserted that he resided primarily at the former matrimonial home between 2007 and 2014. The primary judge found that “the [appellant] had for a short period of time visited the former matrimonial home for the purpose of trialling dialysis” (at [145]) and that he did so “from about perhaps as early as July 2014 or as late as September 2014 through to December 2014” (at [148]). The primary judge concluded:
173.I am not satisfied that the dialysis was indicative of a resumption or continuation of the parties cohabiting. It is evidence of the [respondent’s] generous nature as she agreed to the trial to assist the [appellant] for a relatively short period of time. He was not to stay overnight.
The appellant asserts the evidence, which he says his Honour disregarded, indicated that his presence at the former matrimonial home went beyond this purpose.
The first piece of evidence upon which the appellant focused, as relevant to this ground, is Exhibit E25. This was a “Home Visit Risk Assessment Checklist” by V Area Health Service dated 4 July 2014. The appellant relies upon the fact that this form gives the address of the former matrimonial home as his address and the location where the home visit is to take place. Further, the appellant also relies on an answer to the question “[w]ho else will be in the home at the time of the visit”, the document records “wife”. The appellant says that “[h]is Honour’s reasons do not engage with [the word]… wife” (appellant’s Summary of Argument filed 16 April 2020, paragraph 4). We place no weight on that submission as, given the parties did not divorce until 2015, the appellant could accurately describe the respondent as his “wife”.
The primary judge discussed Exhibit E25 at [171] of the reasons and accordingly there is no merit in the complaint that the primary judge failed to consider the document. Nor do the parts of the document to which the appellant draws attention, constitute clear and compelling evidence that his Honour’s finding at [173], that the dialysis was not indicative of a resumption or continuation of the parties’ cohabiting, was “glaringly improbable”, “contrary to compelling inferences” (Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”) at [29]) or that the primary judge failed to use or misuse his advantage (Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479).
The other documents relied upon by the appellant in support of this ground was a Facts Sheet in support of an Apprehended Domestic Violence Order against the appellant and records generated by New South Wales Police after they were called to the former matrimonial home on 16 December 2014 at around 8.00 pm (Exhibit “M” to the appellant’s affidavit filed 17 April 2019 and Exhibit E22). At [27] the primary judge acknowledged that evidence. The respondent and the adult children had locked the appellant out of the house. The appellant had admitted to picking up a machete. Part of the police records note that the appellant did dialysis at the home from 10.00 pm to 6.00 am. The source of this information is not apparent. In cross examination, the respondent said she could not remember if that was accurate because she was on a rotating shift (Transcript 18 October 2019, p.139 lines 22–25).
There was a large body of evidence which undermined the appellant’s assertion that there was a resumption of cohabitation after the consent orders were made in November 2007.
For example, at [47]–[49] of the reasons, the primary judge concluded that information in documents the appellant provided to Centrelink, including that which led him to obtain rental assistance, were inconsistent with his assertions about his residence being the former matrimonial home. At [50]–[53], the primary judge discussed the history of the appellant’s residential addresses by reference to his driver licences and registration records in respect of his boat and trailer, concluding the appellant gave no plausible explanation about the information in those documents.
At [88]–[109], the primary judge discussed the evidence from the parties’ daughter who lived in the former matrimonial home from November 2007 until 2011 and partly lived at the home from 2011 until 2013. When she was no longer residing there she still regularly visited the respondent at the home. The primary judge recorded that he was impressed by the evidence of the parties’ daughter (at [107]–[109]). The effect of the daughter’s evidence was that the appellant was not living at the home during the periods of time when she was living there or visiting.
The arguments in this ground sought to isolate a few pieces of evidence which, the appellant argued, provided clear and compelling evidence of the fact that he and the respondent were, at the time the consent orders were made, still living together.
However, his Honour’s conclusion that they were not, rested on his consideration of all of the evidence, including that to which the appellant referred. To extract a fact or circumstance established in the evidence (or several as the appellant has here), and argue by reference only to that evidence that it compels the conclusion that the parties were living together is to ignore the balance of the evidence which, as his Honour found, compelled the rejection of the appellant’s contention.
The determination of what facts are found based on the evidence in the case is quintessentially a matter for the primary judge. An appeal court will not interfere with a primary judge’s finding of fact unless convinced that it is wrong (Edwards v Noble (1971) 125 CLR 296, Barwick CJ at 304) and, where the finding was reasonably open on the evidence before the primary judge, it cannot be said to be wrong.
There is no merit in Ground 1.
Ground 2
The learned trial judge erred in failing to have regard to false evidence given in the Application for consent orders
The appellant refers to the “false evidence” in the application for consent orders which the parties mutually presented to the Local Court.
First, question 58 in the application asks, “[w]ere the financial contributions of the parties the same?” (s 79(4)(a) of the Act). That answer is marked ‘no’ by the respondent with the additional statement, “[the respondent] made financial contribution to purchase investment properties and matrimonial home. [The appellant] did not contribute to purchase the properties” (Exhibit E15) (as per the original). The appellant indicated in the application for consent orders that he agreed with those statements.
Secondly, neither the application nor the consent orders referred to the fact that the parties jointly owned vacant land at Suburb F.
At [132], the primary judge concluded the mutual statement that the appellant did not contribute to the purchase of the properties was inaccurate as the appellant had made financial contributions through his wages. His Honour found that both parties knew that was an incorrect assertion, but was satisfied the appellant was motivated to support the application because as he himself contended, the order relieved “him of the burden of mortgages and debt and [allowed] him to live a life free of the constraints of family, married life, mortgages and the like”.
The primary judge discussed the parties’ ownership of the Suburb F property and concluded that its omission did not amount to a material non-disclosure by either party (at [176]–[180]).
Accordingly, the appellant’s complaint that the primary judge failed to have regard to these two errors in the application is palpably wrong. That is sufficient to dispose of this ground of appeal.
Additionally, his Honour concluded that if it could be said that there was a suppression of evidence (including failure to disclose relevant information) or the giving of false evidence, there was no miscarriage of justice and he would not have exercised his discretion to set aside the consent property order (at [180], [231] and [235]). That conclusion was open to the primary judge.
Further, it was agreed before us that there was an error in the answer to question 57 where the respondent indicated that the “[p]roposed percentage division of the property (including superannuation)” was 82/18 per cent in her favour with which the appellant agreed. This error in the application for consent orders was not relied upon by the appellant before the primary judge and the appellant cannot now rely on that error on appeal (Metwally v University of Wollongong (1985) 60 ALR 68 at 71). It was conceded before us that the actual division on the face of the figures in the application was 73/27 in the respondent’s favour and would be narrowed further once the property at Suburb F (which was jointly owned by the parties) was taken into account, so even if the error had been relied upon when the order was made, it was not material. The appellant has no basis to complain that the primary judge failed to take into account the error on the answer to question 57. In fact, the primary judge, without reference to the assertion in the application for consent orders (that the effect of the orders was an 82/18 split between the parties), considers the actual values of the assets and liabilities, including superannuation, which would be retained by each of the parties as a result of the consent orders (at [237]–[239]).
Ground 2 fails.
Ground 3
The learned trial judge erroneously assessed the advice which the Appellant received when consent orders were made as competent and independent
It should be observed at the outset that negligent or incompetent legal advice is not necessarily sufficient to enliven s 79A(1)(a) of the Act. The representation needs to be so bad, as to be the equivalent to no representation at all or perverse, for example, if the representative was in league with the other side (Clifton and Stuart (1991) FLC 92-194 at 78,335 and 78,338).
The primary judge discussed the evidence of the appellant’s lawyer, who advised on the consent orders, at [73]–[87] of the reasons, and was satisfied that it was frank, clear and reliable. Before consulting his lawyer, the content of both the application and the orders had been explained to the appellant in both his first language and English. The primary judge accepted that the appellant’s lawyer had discussed matters thoroughly with the appellant and had confirmed that the appellant understood the meaning and effect of the draft consent orders and had explained his rights, entitlements and obligations.
The appellant attacks the finding by the primary judge that the appellant’s lawyer gave competent and independent legal advice.
No submission was made by counsel for the appellant which impugned the primary judge’s finding that the lawyer had acted independently.
The appellant’s principal complaint arose from the amount of time that the appellant’s lawyer spent with him which was estimated to be about half an hour. Counsel for the appellant submitted that the trial judge ought to have concluded that there was insufficient time for the appellant’s lawyer to do everything he asserted he had done in the time, and emphasises the appellant’s former lawyer failed to detect the errors in the application at question 57 and the omission of the Suburb F property.
In support of this ground, counsel for the appellant also submitted that:
[T]he learned judge had the advantage that he had experience and expertise in performing tasks similar to those which [the appellant’s former lawyer] claimed to have performed in around half an hour. Regrettably however his Honour did not assess the evidence given by [the appellant’s former lawyer] against that experience …
(Appellant’s Summary of Argument filed 16 April 2020, paragraph 21).
The gravamen of this submission is that although the primary judge knew from his own experience, prior to being appointed, that the task could not be completed in about half an hour, the primary judge was nonetheless satisfied that the appellant’s lawyer had achieved it in that time. During oral argument, counsel for the appellant rejected the suggestion that that submission was offensive but did not engage with the submission made by counsel for the respondent that this assertion completely failed to grapple with s 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”). No expert evidence was called as to how much time the appellant’s lawyer should have spent with the appellant to complete the task.
There is no merit in Ground 3.
Ground 4
The learned primary judge erred in failing to give weight to the failure of the Respondent to call either of the parties’ sons, who were present at court during the trial, and available to give evidence
The appellant relied upon the inference available arising from the rule in Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) to complain that the primary judge failed to draw an adverse inference against the respondent because she did not call either or both of the parties’ sons to give evidence in her case as to whether the appellant resided in the matrimonial home at relevant times. It was not controversial that the sons lived at the former matrimonial home between 2007 and 2014.
This complaint fails for several reasons.
First, the respondent was never challenged nor asked to explain why it was that either or both her sons were not witnesses in her case.
Secondly, apart from the documentary evidence to which reference has already been made, the primary judge accepted the evidence of the respondent and of the daughter of the parties as credible. The primary judge made findings based on all of this evidence (at [72] and [109]). In JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd[2003] NSWCA 66 Meagher JA (with whom Beazley JA agreed, and Mason P substantially agreed) said:
24.… when a finding of fact has been made in a party’s favour by a judge, the fact that an absent witness’s evidence, if it were given, would not support that finding, cannot disturb the finding actually made.
Thirdly, whilst the applicant inferentially submitted to the primary judge that the evidence of the sons would have been superior to the evidence of the parties’ daughter, because for a period she only visited the former matrimonial home, counsel for the appellant did not submit that their evidence would have been superior to the cumulative evidence already before the primary judge on the issue. The principles outlined in Jones v Dunkel do not operate to require a party to give cumulative evidence and the respondent was not required to call corroborating evidence from every possible witness (see Manly Council v Byrne and Anor [2004] NSWCA 123 at [60]–[67]).
Fourthly, although the sons might be presumed to be in their mother’s camp, the appellant could have chosen to call either or both his sons and, if leave was granted, question them (s 38 of the Evidence Act).
There is no merit in Ground 4.
Ground 5
The primary judge erred by giving weight to the witness the [respondent] did call who, on her own admission, was absent from the matrimonial home for lengthy periods
A challenge as to the weight the primary judge gave particular evidence faces a high bar (Norbis v Norbis (1986) 161 CLR 513 at 539–540).
The evidence of the parties’ daughter which, the appellant asserts to be unsatisfactory, includes the history given by her of her attending the former matrimonial home after 2011; the attendance of the appellant at her wedding; the attendance of the appellant at the funeral of the maternal grandfather; and her involvement in the argument at the matrimonial home on 16 December 2014 about the appellant unilaterally taking funds from the parties’ joint account.
As already discussed, his Honour discussed the parties’ daughter’s evidence in some detail and finds it frank, truthful and reliable and was entitled to do so (at [88]–[109]) and made a general finding that the appellant had failed to establish that he and the respondent regularly attended social functions such as weddings and funerals as a couple.
Ground 5 fails.
Ground 6
His Honour failed to deliver adequate reasons addressing the manifold and obvious inconsistencies in the Respondent’s case at trial
The primary judge’s reasons are clear and carefully considered. His Honour’s reasons were not only adequate but abundant. The appellant’s submissions do not articulate in any meaningful way how the primary judge’s reasons are said to be inadequate.
There is no merit in Ground 6.
Ground 7
That [h]is Honour erred in not finding that the Appellant’s decision to transfer his remaining superannuation savings balance to the [respondent] was consistent with the parties having by their conduct abandoned the consent orders
In June 2013 the respondent received $33,305.98 which the appellant had transferred out of his superannuation account.
The appellant gave no evidence about this transaction but the respondent was cross examined at length about it.
The primary judge found at [186]:
I am satisfied that the [respondent] loaned the [appellant] considerable funds to enable him to have work undertaken on his teeth. I am satisfied that the payment of $33,305.98 in May 2013 by the [appellant] to the [respondent] after the trip to [Country Q] was a repayment of monies paid by her to enable the [appellant] to have dental work undertaken in [Country Q]. It was not a gift or a contribution by the [appellant], but a repayment of a loan. The timing of this payment is consistent with the [respondent’s] version of events.
The appellant has not established that these findings were not open to the primary judge, and indeed did not even establish on the evidence that other findings were open to the primary judge.
Given it was the repayment of a loan, it is not “consistent with the parties having by their conduct abandoned the consent orders”.
Ground 7 fails.
Ground 8
The learned trial judge erred in not determining that the consent orders were so one sided, so unjust and so inequitable as to amount to a miscarriage of justice. His Honour’s [sic] misdirected himself by concluding that it was relevant that the [appellant] would have a higher superannuation balance than did the [respondent]
The contention in this ground of appeal was considered and rejected by the primary judge (at [236]–[243]). As already discussed, the primary judge, without reference to the assertion in the application for consent orders that the effect of the orders was an 82/18 per cent split between the parties, considers the actual values of the assets and liabilities, including superannuation, which would be retained by each of the parties as a result of the consent orders (at [237]–[239]). Counsel for the appellant accepted that those figures provided for a 73/27 per cent division of net assets in the respondent’s favour without the joint ownership of the Suburb F property being included.
In Harris v Caladine (1991) 172 CLR 84, Dawson J said at 124:
… Provided that a court, or a Registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met…
(Citation omitted)
The primary judge was satisfied that the appellant wanted his freedom and to be released from the obligations of various loans and mortgages (at [241]).
The primary judge was “not satisfied that in the circumstances the division of property was so far beyond the range, if it was beyond the range, in such a way as to have reached the threshold of being a miscarriage of justice within the meaning of the section of the Act” (at [243]). That finding was open to the primary judge.
There is no merit in Ground 8.
Ground 9
That his Honour erred in failing to give any weight to the fact that while the Respondent asserted that the Appellant proposed to leave Australia and be free that the Appellant remained in Australia
Again, this is a challenge to the weight given to a particular circumstance. The respondent’s evidence was, at the time of the making of the consent orders, the appellant expressed a desire to move to Country G in order to not have to deal with the mortgage and the bills and for “freedom” (at [241]). His Honour did generally accept the respondent’s evidence about that.
Whilst the primary judge recorded the eight occasions when the appellant spent significant time out of Australia between August 2007 and December 2013 (at [56]), his Honour did not make a specific finding that the appellant had a desire to move to Country G as at the date of the consent orders. His Honour did however make a specific finding that at the time of the making of the consent orders, the appellant wanted his freedom and to be released from the obligations on the various loans and mortgages (at [132] and [241]).
A person can have an intention to do a thing but subsequently not act on that intention. There is no logic in the submission that the primary judge should have weighed the fact that the appellant did not permanently relocate to Country G after the consent orders were made, against the respondent’s evidence at the time the consent orders were made when he had expressed an intention to do so.
Finally, s 79A(1)(a) of the Act is intended to apply only to circumstances occurring before or at the time of the making of the order. The term “miscarriage of justice” does not aptly apply to matters which arise after the order has been made (see Public Trustee (as executor of the estate of the late Gilbert) v Gilbert (1991) FLC 92-211 at 78,427).
Ground 9 is without substance.
Ground 10
The learned trial judge had regard to irrelevant and extraneous matters including [10.1] his high opinion of the Respondent [10.2] the demeanour of the parties [10.3] an opinion that the Appellant enjoyed a grasp of the English language, not open on the evidence and [10.4] an allegation that the Appellant was a violent person
In his Summary of Argument at paragraph 36 the appellant sought leave to amend this ground by inserting the word “allegedly” before the word “violent”.
It was open to the primary judge to find as a relevant matter, that the respondent endeavoured to tell the truth, be frank and had no intention to deceive (at [70] and [72]).
The appellant suggests in this ground that it was irrelevant or extraneous to comment that the respondent had a “generous nature” when she permitted the appellant to undertake dialysis at the former matrimonial home. This finding was relevant in the context of the ultimate finding that the appellant’s presence at the former matrimonial home was not “indicative of a resumption or continuation of the parties cohabiting” (at [173]).
Next, the appellant complains that his Honour’s finding at [113] contains an irrelevant or extraneous consideration:
113.Much was made of the term that the child [A] would ‘stay with both parents’. This child had attained the age of 17 years about two months before the orders were made and turned 18 some ten months after the Consent Orders were made. I am satisfied that the [appellant] had little or nothing to do with the child following separation and that the [respondent] was the child’s sole carer from at least 10 May 2007.
Given the context in which [113] sits in the reasons for judgment, it is not apparent that the primary judge put any significant weight on the finding in the last sentence of that paragraph.
The respondent’s evidence was that the appellant had “nothing to do” with the child following the making of the consent orders. In cross examination the respondent was challenged about that evidence:
[COUNSEL FOR THE APPELLANT]: Well you can’t remember whether or not he might have seen his son every day?
[THE RESPONDENT]: That’s what I said I don’t know.
(Transcript 17 October 2019, p.79 lines 10–11)
The appellant gave no such evidence about seeing the youngest child every day. The appellant does not articulate how in the face of the unchallenged evidence of the parties’ daughter, it was not open to the trial judge to make the finding that he did.
The appellant complains that the primary judge’s findings were heavily reliant upon demeanour. Whilst it is accepted that the primary judge made findings influenced by demeanour and credit, the appellant’s ground is completely vague and generalised. No attempt is made to particularise what findings are challenged. The appellant has not established how a consideration of demeanour was irrelevant and extraneous. In-court demeanour together with a host of other considerations form the basis upon which a primary judge may assess witness credibility and appellate courts will only intervene to correct factual findings based substantially on impressions formed about credibility through observations of the evidence unfolding in the trial if the finding is “glaringly improbable” in the face of other incontrovertible evidence (Lee v Lee (2019) 266 CLR 129 at [55]; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]; Fox v Percy at [28]–[31] and [65]–[90]).
The primary judge did not find that the appellant was an “allegedly violent person”. The primary judge concluded that there had been a history of violence at [145] and [148]. Once again, the appellant does not attempt to explain why those findings are extraneous. The finding of violence was generally relevant to whether there was a reconciliation and specifically relevant to the incident on 16 December 2014 when the appellant took hold of a machete.
The appellant’s submissions do not address Ground 10.3. The appellant’s ability to grasp the English language was relevant to the issue about his receipt of advice before he signed the consent orders.
There is no merit in Ground 10.
Ground 12
Having accepted that the Appellant did not live at various addresses given as his residential address his Honour erred in finding that this meant that the Appellant was not living with the [respondent]
The basis of the assertion in this ground seems to be the primary judge’s observations at [98]:
In cross-examination the daughter said that she allowed the [appellant] to use her address at her current home and a previous rented property at [Suburb Z] and that some mail arrived for him at that address, including mail from Centrelink. She said she held mail that the [appellant] never collected.
It is unremarkable that the primary judge did not consider this evidence when considering whether the appellant had resumed living with the respondent in the matrimonial home. This evidence which demonstrates the appellant was using his daughter’s address as a mailing address is not evidence of the appellant residing at the matrimonial home.
There is no merit in Ground 12.
Conclusion in relation to the substantive appeal
In relation to Appeal No. EAA 141 of 2019, there is no merit in any ground of appeal and accordingly the appeal shall be dismissed.
Appeal against the costs order (Appeal No. EAA 71 of 2020)
As indicated above, the primary judge made a costs order on 6 May 2020 in the respondent’s favour and the appellant conceded that if the appeal against the substantive order is dismissed, then the appeal against the costs order would also be dismissed. Accordingly, Appeal No. EAA 71 of 2020 shall be dismissed.
Costs of the appeal
The appellant conceded that in the event that the appeal was dismissed, the appellant could not resist an order for costs and did not seek to challenge the amount set out in the respondent’s schedule of costs which (after adjustment for two items in relation to a stay application) was in the sum of $23,580. An order for costs will be made in the respondent’s favour in that amount. The appellant will have 28 days to pay that amount.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Watts & Austin JJ) delivered on 12 March 2021.
Associate:
Date: 12 March 2021
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