Quickley & Pelissier
[2016] FamCAFC 124
•15 July 2016
FAMILY COURT OF AUSTRALIA
| QUICKLEY & PELISSIER | [2016] FamCAFC 124 |
| FAMILY LAW – APPEAL – CHILDREN – Where the trial judge’s findings were open to him on the evidence – Where the trial judge was entitled to listen to as much of the recordings relied on by the appellant as he considered necessary – Where the trial judge’s reasons amply demonstrated the pathway leading to his decision – Where the trial judge properly considered and dispelled the presumption of equal shared parental responsibility – Where there is no error by the trial judge in his approach to the allocation of parental responsibility – Where the trial judge was not obliged to consider equal time – Where the trial judge clearly set out the parenting orders sought by the appellant and was not misled by counsel for the respondent’s final submissions – Where the trial judge was correct in not permitting objections by the appellant during the closing address of the mother’s counsel – Appeal dismissed. FAMILY LAW – APPEAL – PROPERTY – Where the trial judge clearly identified the existing property interests of the parties – Where the care of a child is a discrete factor to be considered separate from the payment of child support pursuant to s 75(2) Family Law Act 1975 (Cth) – Where the trial judge had a duty to end the financial relations between the parties and did so in the orders he made – Where it was not open to the appellant to raise a proposal on appeal that was not raised before the trial judge – Where the trial judge made no error in his assessment of liabilities in circumstances where no evidence was led about them despite there being ample opportunity for the parties to do so – Where there was no error by the trial judge in failing to add back the legal expenses of the parties when neither party raised this issue at trial – Where the trial judge was entitled to make an assessment of the appellant on the basis of how he conducted himself at trial – Appeal dismissed. FAMILY LAW – APPEAL – BIAS – Where the appellant asserted that the trial judge’s reasons for judgment demonstrated bias – Where there was a lack of specificity in relation to this complaint – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent sought an order for indemnity costs due to the conduct of the appellant and lack of merit in the appeal – Where the appeal was wholly unsuccessful – Where the appellant’s summary of argument and list of authorities were highly confusing – Where there were no exceptional circumstances to justify indemnity costs – Order for costs on a party/party basis. |
| Family Law Act 1975 (Cth) s 60CC, s 69ZN, s 69ZQ, s 75(2), s 79, s 81, s 117 Family Law Rules 2004 (Cth) r 1.04, r 1.07, r 22.22 |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 |
| APPELLANT: | Mr Quickley |
| RESPONDENT: | Ms Pelissier |
| FILE NUMBER: | PTW | 5493 | of | 2011 |
| APPEAL NUMBER: | WA | 19 | of | 2014 |
| DATE DELIVERED: | 15 July 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland, Ainslie‑Wallace & Duncanson JJ |
| HEARING DATE: | 30 October 2015 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 25 July 2014 |
| LOWER COURT MNC: | [2014] FCWA 46 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Athanasiou with Mr Athanasiou |
| SOLICITOR FOR THE RESPONDENT: | Ferrier, Athanasiou & Kakulas |
Orders
The appeal be dismissed.
The appellant father pay the respondent mother’s costs as agreed or in default of agreement as assessed on a party/party basis.
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 Quickley & Pelissier 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 PERTH |
Appeal Number: WA 19 of 2014
File Number: PTW 5493 of 2011
| Mr Quickley |
Appellant
And
| Ms Pelissier |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed 29 September 2015 Mr Quickley (“the father”) appeals parenting and property settlement orders made in the Family Court of Western Australia by Chief Judge Thackray on 25 July 2014.
Ms Pelissier (“the mother”) resists the appeal and seeks to maintain the trial judge’s orders.
Background
The mother was born in 1977 in Country A. The father was born in the United Kingdom in 1970. The parties commenced cohabitation in 2000 and were married in 2003. During their relationship the parties lived overseas, including in London where the parties own property. The parties relocated to Perth at the end of their relationship. The trial judge found that their relationship ended not later than January 2011.
The parties have two children, X born in 2005 and Y born in 2009.
The father has remarried and the mother is in a relationship.
After separation the parties unsuccessfully endeavoured to negotiate a parenting agreement. The father then abducted the children and took them from Perth to City D. The mother commenced these proceedings and a recovery order was made for the return of the children to her care in Perth.
The children initially spent supervised time with the father. On 22 November 2011 an interim order was made for the children to spend unsupervised time with the father on Tuesday and Wednesday night each week and from Friday to Sunday each alternate weekend with additional time during school holidays. This was the arrangement in place when the matter came to trial.
The parenting orders made by the trial judge were that the mother have sole parental responsibility for the children and they live with her (in Perth). His Honour also ordered that the children spend time with the father each week from Tuesday to Thursday and each alternate weekend from Friday to Sunday, together with time during school holidays and special occasions. Various other parenting orders were also made, but they are not relevant to this appeal.
In relation to property settlement the trial judge found that the parties’ property should be divided 57.5 per cent to the mother and 42.5 per cent to the father. His Honour considered how to achieve that outcome and concluded that the parties’ properties in London should be sold and the proceeds divided in such a way as to achieve the percentage division ordered.
The Trial Judge’s Reasons
The trial judge commenced his reasons by setting out the relevant background of the parties and summarising the parenting and financial orders sought. Both parties sought an order for sole parental responsibility. The mother sought an order that the children live with her and spend time with the father in accordance with the existing arrangement. The father sought an order that he have leave to relocate the children to City D, failing which they live with the parties in a shared arrangement and ultimately a week-about arrangement.
In relation to property settlement the mother sought a sale of the properties in London and disbursement of the sale proceeds 70 per cent to her and 30 per cent to the father.
The father sought to retain the London properties (including taking over the debt), and if necessary provide the mother with some of his superannuation entitlements, with any balance paid by monthly instalments from his wages.
As to his impression of the parties and credibility, the trial judge found that the parties were not necessarily untruthful, but that each saw matters from their own perspective. His Honour had difficulty in determining differences in factual matters by reason of the poor quality of the affidavit evidence and the failure to effectively cross-examine.
Relevantly, the trial judge referred to numerous tape recordings of the parties’ interactions made by the father, of which his Honour listened to some random samples.
After setting out the legal framework within which to determine the parenting aspect of the proceedings, the trial judge discussed the primary and additional considerations referred to in ss 60CC(2) and 60CC(3) respectively of the Family Law Act 1975 (Cth) (“the Act”). His Honour found the children have a meaningful relationship with both of their parents and it is to their benefit that that continues. He found the children had been exposed to fighting and acrimony between their parents, but he did not anticipate there would be future violence between the parents.
The trial judge considered there was no advantage to the children “in uprooting them from their present environment and taking them to live in [City D]” as sought by the father (at [61]). His Honour found the current arrangement, whereby the children spend somewhat more of their time with the mother than the father, to be in their best interests. He also considered it in their interests to spend half of school holidays with each parent.
In relation to parental responsibility his Honour said:
66The parents both sought sole parental responsibility and both appeared to accept that it is impossible for them at present to communicate in a way which would make equal shared parental responsibility a viable option. The presumption in favour of equal shared parental responsibility has been displaced by the existence of family violence, but in any event, I consider shared parental responsibility is not practicable given the inability of the parents to communicate. The mother has been the primary carer of the children in the past and will continue, at least for the time being, to have the care of children for the majority of the time. I consider that she should therefore have sole parental responsibility, but on the basis that prior to making any long term decision concerning the children’s welfare, she should at least consult with the father to ascertain his views.
In relation to property settlement, the trial judge referred to s 79 of the Act and the decisions in Stanford v Stanford (2012) 247 CLR 108 and Bevan & Bevan (2014) FLC 93-572.
His Honour was satisfied that it had been readily established that it was just and equitable to adjust the existing interests of the parties in their property since the parties were no longer living in a marital relationship and there would be no future common use of the property they acquired together.
The trial judge found the assets and liabilities as at the date of the trial to be those contained in a table which he compiled from an exhibit tendered to him during the course of the trial. His Honour determined the items in dispute, including liabilities to third parties. He excluded legal costs from the table which he considered should be dealt with separately and also excluded borrowings of the parties for legal costs. His Honour also excluded the father’s post-separation superannuation entitlements as the mother had failed to disclose what superannuation she had accumulated post-separation.
His Honour found the total assets of the father amounted to $1,112,832 and those of the mother amounted to $386,300. The total of the father’s liabilities amounted to $1,027,056 and those of the mother amounted to $356,949.
As to contributions, the trial judge found that neither party had any assets of substance at the commencement of cohabitation, although the father had a modest CBA superannuation entitlement at that time.
His Honour found the father was the primary income earner and at times when the parties were living in London he earned a very high income. The mother had little paid employment and was the primary carer of the children, with minimal assistance from the father while they were together.
The trial judge found that following separation the father continued to earn an income and have responsibility for managing the parties’ investment properties in the United Kingdom. The mother also earned some income and had greater responsibility than the father for the care of the children.
His Honour rejected the father’s submission that he made the larger contribution because of his higher income and his responsibility for the investments post-separation. The trial judge considered these contributions should not be given any greater weight than the non-financial contributions of the mother.
His Honour found the contributions during the course of the relationship and following separation were “of roughly equivalent value”, the only disparity being the father’s contribution of the “modest superannuation entitlement” with CBA (at [89]). His Honour left the father with that entitlement.
The trial judge considered the factors in s 75(2) of the Act and found that as a result of the parenting orders made each party will have significant responsibility for caring for the children, although the mother will have the greater care of them. Having considered the relevant factors, his Honour found there should be a modest adjustment in favour of the mother to take account of the fact that she has a lower income earning capacity than the father and for the time being will have a greater responsibility for the care of the children. He considered an adjustment of 7.5 per cent, bringing about a 15 per cent disparity would be appropriate. Thus, the parties’ property, excluding the father’s CBA superannuation, would be divided in proportions 57.5 per cent to the mother and 42.5 per cent to the father.
The trial judge then turned his mind to how to achieve that settlement. The parties had agreed the value of the properties in London, namely, at Suburb N in the sum of $669,700 and at Suburb O in the sum of $380,100. His Honour said:
92Although the value of the flats in London was agreed, the mother obviously hopes they will sell for considerably more than the agreed value. There is little in the way of objective evidence to support this proposition, but as the father did not demonstrate any means of being able to afford to meet any settlement entitlement of the mother, I consider that the appropriate outcome is for both properties to be sold and for the proceeds to be divided in such a way as will bring about the percentage outcome mentioned above.
As to liabilities, in the absence of agreement and by reason of the lack of evidence as to their extent, his Honour was unable to make findings concerning their full extent. He, therefore, ordered that the liabilities be discharged from the proceeds of sale of the London properties and gave the parties liberty to apply if orders were required to resolve any dispute.
The Appeal
Fourteen of the 18 parenting orders made by the trial judge were the subject of the appeal (some in part only), as were the substantive property orders.
The Amended Notice of Appeal comprises two principal grounds of appeal. The first ground, namely that his Honour failed to provide a fair hearing, comprised paragraphs (a) to (q). We will deal with each of these paragraphs individually.
The second ground, namely that the trial judge erred in law by demonstrating bias against the father, also comprised paragraphs (a) to (f), but it is convenient to treat those paragraphs as examples of the ground.
The father filed a Summary of Argument on 29 September 2015. Unfortunately, the numbered paragraphs therein do not correlate to the numbered grounds of appeal in the Amended Notice of Appeal as required by r 22.22(2)(a) of the Family Law Rules 2004 (Cth) (“the Rules”). Instead the Summary of Argument is divided into two categories, being “Financial Matters” and “Children’s Matters”, and consequently, at the hearing of the appeal, it was necessary for us to explore with the father his argument in relation to each ground.
Ground 1
His Honour failed to provide a fair hearing:
Ground 1(a)
His Honour erred in law in failing to consider all of the evidence in the case; or His Honour erred in failing to consider the relevant evidence in the case.
It seems that this ground relates specifically to the recordings which the father had made of telephone conversations between himself and the mother. They were over five hours long, and there was no objection to their admissibility at the trial.
The trial judge stated at [26]:
I did not listen to more than some random samples of the numerous tape‑recordings the father has made of their interactions. Although many of these recordings put both of the parties in a fairly poor light, it was noteworthy that, on occasions, the parties also demonstrated a capacity to engage in a rational, sensible conversation.
We ascertained from the father that he makes two complaints here, first, that his Honour failed to consider the whole of the recordings, and/or secondly, he failed to consider sufficient of the recordings.
However, we drew the father’s attention to his own closing submission where he stated:
I submit the whole thing, [the transcript of the tape recordings that are attached to the appellant’s affidavit evidence] but I’m certainly not asking your Honour to listen to it.
(Transcript, 16 July 2014, page 24, lines 48 - 49)
The father explained “it” meant the whole recording, and he then conceded that having said that he was not asking his Honour to listen to the whole of the recordings, he could not then complain his Honour had not done so, and he did not pursue the first of his complaints.
The father maintained his position that the trial judge failed to consider the relevant evidence by not listening to enough of the recordings to find the mother’s version of events to be wrong and to accept his version. The issue in dispute concerned family violence in terms of the father threatening, yelling and shouting. The father’s case was that the recordings would establish he did not behave in that way. However, in argument on the appeal he could not explain how the fact that he did not yell during the recordings meant one could infer he did not do so at other times.
Similarly, the father could not explain how his Honour was to know how much of the recordings to listen to. The father’s argument was essentially that the trial judge should have listened to enough of the recordings so as to find in favour of the father.
His Honour was not obliged to listen to the whole of the recordings and was entitled to listen to as much of them as he considered necessary. This is entirely the province of the trial judge. Section 69ZN in Division 12A of the Act sets out the principles for conducting child-related proceedings. The second of those principles at s 64ZN(4) is “that the court is to actively direct, control and manage the conduct of the proceedings.”
Further, s 69ZQ sets out the general duties of the court in giving effect to these principles which include:
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
…
(d)in deciding whether a particular step is to be taken–consider whether the likely benefits of taking the step justify the costs of taking it;
Rule 1.04 provides that the “main purpose of [the] Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”.
Rule 1.07(e) provides that to achieve the main purpose of the Rules, the court applies the Rules in a way that “gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases”.
Plainly the trial judge was mindful of these provisions at the outset of the trial when he expressed his concern in saying “this case strikes me as one as having the capacity to go off the rails and to delve into minutiae that is going to delay us” (Transcript, 14 July 2014, page 5, lines 33 - 35).
Clearly his Honour was able to make the findings he did upon the evidence he took into account and the fact that the evidence included only “random samples of the numerous tape-recordings” did not prevent him from making those findings.
We find no error in his Honour’s consideration of the evidence.
Grounds 1(b) and (c)
(b) His Honour erred in law in failing to give adequate reasons for his decisions.
(c) His Honour erred in law in failing to set out sufficient findings to explain why the mother’s significant evidence was preferred over the father’s.
The father said these grounds were closely related. We agree, and shall deal with them together. The father’s argument appeared to be that the trial judge set out the evidence of each of the parties and then baldly asserted he preferred one to the other. However, [27] of his Honour’s reasons clearly indicates he did not do that. His Honour said this:
Although neither of the parties created a good impression in the witness box, I did not gain the impression they were necessarily untruthful. Rather, each showed a marked tendency to see and recall matters from their own perspective. To the extent there were differences in factual matters, it was difficult to determine where the truth might lie given the poor quality of the affidavit evidence and the manifest failure to address differences in an effective way in cross-examination.
In our view the father’s complaint arises from his inability to distinguish between matters in relation to which his Honour made findings of fact and matters in which he did not. By way of example, the father referred to the trial judge’s reference at [54] to the mother’s claim that the father “forced me into a sex act which humiliated me greatly”. Although the father did not cross‑examine the mother about this, his Honour did not make a finding about that claim.
On the other hand, where his Honour did make findings of fact, he plainly did so based on the evidence. For example, his Honour said at [38]:
I am satisfied the children have been exposed to a great deal of fighting and acrimony between their parents and they would have found this confusing and distressing. The mother also alleged the father has punched or kicked walls and I am not prepared to rule out the possibility this occurred. However, there has been little direct physical violence, with the only real incident being the one occasion when the father slapped the mother on the face in London.
We find no error has been established.
As to the complaint of a lack of reasons, we are not persuaded that that is justified. His Honour provided adequate reasons for his findings and the pathway leading to his decision is amply demonstrated.
Ground 1(d)
His Honour erred in law in failing to consider the competing proposals of the parties.
The thrust of the father’s arguments was that the trial judge “copied and pasted” the orders sought by the mother and used them. He said his Honour made the orders the mother wanted.
On the other hand, the father complained that in relation to some of the orders he sought, his Honour merely described them as “[a] variety of other orders that need not be discussed here” (at [19]).
The father said by way of further example, an order sought by him was that each party have the opportunity to care for the children when the other is not available. He submitted his Honour did not give reasons for rejecting this proposal.
The trial judge set out the Single Expert’s opinion at [59]. His Honour then discussed the parties’ proposals at [60] to [67] where the reasons why he considers the orders he makes to be in the best interests of the children are clear.
Specifically, the trial judge found at [64] in relation to the children’s living arrangements:
In my view, the court expert was entirely right to conclude that there was no apparent reason why the current arrangement should not continue. It allows the children to see a great deal of each of their parents. The children also see their maternal family regularly and have been able to take holidays to see the other part of their family in [City D]. The current arrangement where the children spend somewhat more of their time with their mother than their father seems to me to be in their interests and to reflect the fact that the mother has always had somewhat greater responsibility for their care. In due course, it would be desirable for the father’s time each fortnight to be spent in one block so as to minimise the number of handovers and the disruption to the children. In my view, the change should probably be made at around the time [Y] turns 9 years of age.
With respect to parental responsibility, the trial judge recorded that both parties sought sole parental responsibility and at [66] set out his reasons why the presumption in favour of equal shared parental responsibility had been displaced, and in any event was not practicable.
The orders he made were those he considered to be in the best interests of the children irrespective of whether they were the orders sought by the father or the mother. His Honour’s findings were well open to him and no error has been demonstrated.
Ground 1(e)
His Honour erred in law in failing to consider the extent to which the parents had behaved as responsible parents, when considering an order for parental responsibility.
The father’s submission was that he was the party who acted responsibly. He argued that he had demonstrated a willingness to communicate with the mother and, therefore, his Honour ought to have made an order that he have sole parental responsibility for the children.
The father submitted that the evidence before his Honour on this point was incomplete. He argued that emails tendered in the trial were incomplete and, had all of the emails been before his Honour, they would have established that it was he who was attempting to communicate, and accordingly the trial judge would have made an order that he have sole parental responsibility. We note that the father did not attempt to tender further emails to his Honour to “complete” the evidence and, further, when the mother tendered the emails during the trial, took no objection to the tender. There is no force in this complaint.
The father submitted that his Honour gave sole parental responsibility to the mother on the basis that she had more time with the children. The father said he had more “waking time” with the children.
His Honour found at [66]:
The parents both sought sole parental responsibility and both appeared to accept that it is impossible for them at present to communicate in a way which would make equal shared parental responsibility a viable option. The presumption in favour of equal shared parental responsibility has been displaced by the existence of family violence, but in any event, I consider shared parental responsibility is not practicable given the inability of the parents to communicate. The mother has been the primary carer of the children in the past and will continue, at least for the time being, to have the care of the children for the majority of the time. I consider that she should therefore have sole parental responsibility…
We consider his Honour properly considered the application of the presumption of equal shared parental responsibility. Having found the presumption was displaced, and in any event equal shared parental responsibility was not practicable, he ordered that the mother should have sole parental responsibility, an order which he considered to be in the best interests of the children. There is no obligation upon a trial judge to award sole parental responsibility to the parent who may or may not be making the biggest effort to communicate.
The trial judge’s findings were open to him and no error has been demonstrated in his Honour’s approach to the allocation of parental responsibility.
Given that the father did not challenge his Honour’s finding that it is impossible for the parties to communicate in a way that would make equal shared parental responsibly a viable option, it is not necessary for us to discuss each of the father’s examples of him acting responsibly.
No error has been established here.
Ground 1(f)
His Honour, having decided that shared care was appropriate, erred in law in failing to consider equal time in the positive sense.
The father conceded that this ground should read:
Having decided that equal shared parental responsibility was inappropriate, his Honour erred in law in failing to consider equal time in the positive sense.
The father’s argument was that simply because the parties could not communicate, the children should not “miss out” on equal time and he questioned whether this was in the best interests of the children. He submitted it was an error of principle on the part of the trial judge not to consider equal time, which was in the best interests of the children, and the order sought by him.
Having found the presumption of equal shared parental responsibility did not apply, the trial judge was not obliged to consider equal time, but had to craft orders which he considered to be in the best interests of the children. For the reasons contained within his judgment he did just that and ordered that the children live with the mother and spend time with the father. There was no error in his Honour’s approach.
Grounds 1(g) to (i)
(g) His Honour erred in law in failing to consider if the proposed financial orders were just and equitable.
(h) His Honour erred in discretion in failing to take into account that the proposed sale could not reasonably be expected to leave any residual value given the small asset pool for distribution between the parties.
(i) His Honour erred in discretion in failing to take into account that the [mother] was unlikely to receive any benefit from the ordered sale of the properties, but the [father] would suffer substantial loss in the form of his property business.
It is convenient to address these three grounds together.
In the context of these grounds the father submitted the trial judge failed to identify the existing property interests of the parties. However, his Honour did so clearly in the table of the parties’ property, where ownership is set out at [75].
We also observe that at the outset the father appeared to argue that it was not just and equitable for his Honour to make a property settlement order in respect of the property at Suburb N as the property was in his name. It later became clear that his argument went to the justice and equity of the orders.
As an example of the complaint in Ground 1(g) the father argued that the adjustment his Honour made for the s 75(2) factors has the effect of double counting. The trial judge considered that there should be a “modest” adjustment in favour of the mother to take account of her lower income earning capacity and because she would have responsibility, “at least for the time being, for caring for the children for somewhat more of the time than the father” (at [91]). The father says that because he pays child support this results in a double counting.
The father’s argument in this respect is misconceived.
Section 75(2) of the Act provides that the matters to be taken into account include:
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
...
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
Whether either party has the care of a child is a discrete factor, separate from any child support provided, under s 75(2). It was, therefore, open to his Honour to consider both factors under the Act.
The father argued that the trial judge ought not to have ordered the sale of the property at Suburb N, as it was not necessary for him to do so. The father explained he offered to settle the mother’s claims by transferring his superannuation entitlements of approximately $31,000 to her. He conceded the mother could not access such superannuation until she attained the age of 60 years, but he argued that any balance of her entitlement could be paid by annual instalments of 10 per cent of his gross annual income.
In effect, his proposal was that the mother should receive the superannuation, possibly the funds in his bank account and a share of his income each year. However, at the time of trial the father was not working.
Section 81 of the Act provides:
In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
Thus, the trial judge had a duty to end the financial relations between the parties and he did so in the orders he made.
His Honour ordered the sale of the properties which the father submitted destroyed his property business. However, we are not persuaded that the two investment properties comprised a “property business” as asserted by the father. Both properties are mortgaged and the rental income is applied to the loan repayments and outgoings. The father’s income was derived from his employment which was applied to his living expenses.
The father submitted that an option for the trial judge was to just sell the property at Suburb O. This was not, however, a proposal put to the trial judge and his position at trial was that neither of the properties should be sold. Thus, it was not open to the father to raise this on appeal (Metwally v University of Wollongong (1985) 60 ALR 68).
His Honour was clearly hamstrung in the outcome that he could provide for the parties primarily because of the inadequate presentation of their respective cases. His Honour said this:
69The property part of the case was so poorly prepared that an appropriate response would be to direct the parties to start it all over again. The wife’s case essentially was that she was “not good with numbers”, the husband managed the finances and she knew very little about anything, including liabilities that are in her name and which she almost certainly must have played some part in incurring. The husband was self-represented and had no idea how to present his case and assumed that because he had given “disclosure” to the wife that somehow that disclosure would become known to me as the decision maker.
70The parties have expended much time, effort and costs in attempting to resolve their disagreement about financial issues. Although I was considering refusing to make any orders at all (given the inadequate presentation of the matter), this would not do a service to either of them. I will instead apply the broadest of broad brushes and endeavour to craft a solution that will end the proceedings and, at some point at least, break the financial ties between the parties, save for their ongoing support of the children. Hopefully, in the process, something approximating the just and equitable outcome required by the legislation might be achieved.
These grounds must fail.
Grounds 1(j) and (k)
(j) His Honour erred in law in failing to allow the [father] a reasonable chance to present his case.
(k) His Honour erred in law in compromising the [father’s] rights by insisting the case proceed on a limited time scale when procedural fairness required an adjournment.
It is convenient to deal with these two grounds together as both relate to the same complaint. Our references to the principles for conducting child-related proceedings and the main purpose of the Rules as set out at [41] to [44] above are also pertinent here. The comments of French CJ in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [5] are also relevant in this respect:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. The discretion of the primary judge miscarried.
The parties had been ordered to provide a joint schedule of assets which was not done. During the course of the mother’s closing submissions the father was given the opportunity to note the items on the balance sheet which were not agreed so that he could later take the trial judge to the evidence which supported his position. His Honour adjourned for a period of time to give the parties “some time to think about those items”. Thereafter, the father requested leave to submit further evidence the following day, which his Honour refused.
The trial judge was clearly mindful of the main purpose of the Rules to which we have referred above when he refused the adjournment and said:
There has been more than adequate opportunity for it to be prepared, and I’m not prepared to delay the matter by putting it over to another day. So the evidence is in, we’re stuck with it, and let’s see what we can do with it.
(Transcript, 16 July 2014, page 13, lines 33 - 37)
The father took issue with two of the liabilities which were excluded from the table of assets. The first related to the interest he asserted was payable on a loan from his parents. This is discussed at [82] of the judgment. The father conceded the information about the interest charged by his parents was not included in his affidavit nor was any evidence led from his mother about the interest. That of course explains why there was no cross-examination of the father’s mother about interest. His Honour accepted money was owed to the father’s family, but was not prepared to accept the father’s uncorroborated assertion in cross-examination that the loan carried interest at a rate of seven per cent.
In the absence of evidence his Honour made no error in excluding interest as a liability in the table. Importantly this defect in the father’s case could not have been cured by an adjournment, as there was no written agreement between the father and his parents regarding their loan which the father could have produced the following day.
The other liability in issue was a loan of £800 from the father’s business partner. However, again, no evidence was led about this; it was open to the father to annex the relevant documents to his affidavit and then raise the matter during his evidence, but he failed to do so. In any event, his Honour explained at [78] that this was an item (item 15) that the father agreed could be “struck”. Thus we can find no error by his Honour in excluding this liability. In any event, at an agreed exchange rate of $1.81 to the £1, the amount involved is de minimis.
There is no merit in this ground of appeal.
Ground 1(l)
His Honour erred in law in failing to add the actual legal expenses of the parties as notional assets, when the debt was a substantially smaller amount, and the effect was that of the [father] contributing to the [mother’s] legal expenses.
At the commencement of the trial a costs notice was handed up by the mother’s solicitors indicating she had spent $130,000 on legal costs. She had borrowed $60,000 from her father and taken out a personal loan of $40,000. The trial judge did not include legal costs and those liabilities incurred by the parties for legal costs in the balance sheet and dealt with them separately. The father submitted that the balance of $30,000 spent by the mother should be added into the schedule as a notional asset.
However, that was not how the case was run by the father. He did not cross‑examine about it, and importantly this matter was not raised with his Honour. Thus, his Honour cannot be criticised for failing to take it into account, and this ground cannot succeed.
Ground 1(m)
His Honour erred in law in treating the father’s cross-examination of the mother as evidence.
The father complained of the trial judge having regard to the way in which the father cross-examined the mother as “evidence”. Apart from the fact that we were not taken by the father to where this alleged error is demonstrated, his Honour was entitled to make an assessment of the father on the basis of how he conducted himself before him. Indeed, in the context of how the father is likely to deal with the mother in the future, it was reasonable for his Honour to take account of how the father cross-examined the mother. This was part of the assessment of the father and highly relevant given his Honour’s findings at [24] and [26] where his Honour said:
24Both parties presented as very immature for their years. Both wallowed in self-pity, each resorting on occasions to theatrics and crocodile tears. The father presented as smug, arrogant and pedantic, although very occasionally showing some insight into the poor impression he was creating of himself. As Mr [J], the Single Expert said, the father’s approach “can be overwhelming for those on the receiving end of [the father’s] determination” and he may “underestimate the effect his determination to present the full details of his position can have on others”. Although the father endeavoured to portray the mother as the party not able to let go of negative thoughts and emotions relating to events that are now receding into the distant past, I gained the impression this was somewhat a case of the “pot calling the kettle back”. The father also demonstrated a complete failure to understand why the mother would have been so traumatised by his conduct in abducting the children and why this would have made her extremely distrustful of him.
…
26The dynamic between the parties was clearly a most unhealthy one, which would provide a most unfortunate model for the children. Hopefully, having had their opportunity to score points against each other during the trial, they might now settle down and attempt to improve their personal interaction and concentrate on being effective parents to their children. …
We find no error in his Honour’s approach.
Ground 1(n)
His Honour erred in law in preventing the father from objecting during closing address, despite the many instances in which the [mother’s] solicitors mislead [sic] the court, and subsequently paraphrasing misleading sections of the [mother’s] solicitor’s closing address in his Reasons.
The father complained the trial judge did not permit him to object during the mother’s counsel’s closing address in which he said counsel misled the court.
For example, the mother’s counsel said in closing that the father sought to have the children live with him in London, failing which City D, or failing which Perth.
The father was not permitted to object to explain that he sought either London or City D. He then submitted to us that there was a third option, however, this was clearly not part of his application and he eventually conceded that.
At [19] of his judgment the trial judge clearly set out the father’s position and the parenting orders sought by him. His Honour was not misled by anything said by the mother’s counsel in his closing address.
His Honour was correct not to permit objections during the mother’s closing address and he has clearly not been misled by counsel. His findings were open to him on the evidence and his reasons explain why he made the orders he did.
Grounds 1(o) to (q)
(o) His Honour erred in law in failing to attempt to clarify the submissions of an unrepresented litigant, despite expressing an opinion to the effect that the substantive issues were being ignored or obfuscated by garrulous or misconceived advocacy.
(p) His Honour erred in fact on many occasions and as a consequence drew the wrong conclusions or made the wrong orders.
(q) His Honour erred in drawing conclusions that were not open on the evidence before him.
The father put forward no argument in relation to grounds 1(o), 1(p) and 1(q). They were general assertions which were unsupported. Thus, these grounds must fail.
Ground 2
His Honour erred in law by demonstrating bias against the father by:
(a) allowing himself in his Reasons to make extensive unnecessary disparaging remarks about the father, irrelevant to the task at hand, and without referring to the evidence supporting such his opinion.;[sic]
(b) making almost all of the orders that the mother sought without modification, yet failing to show any consideration of the orders them [sic] father sought, and failing to give reasons for preferring the mother’s orders sought over the father’s;
(c) drawing inferences from the father’s failure to cross-examine (even though he had given evidence in response) but failing to draw inferences from the mother’s solicitor’s failure to cross-examine the father about the same evidence;
(d)overlooking evidence adverse to the mother, but mentioning similar types of evidence about the father;
(e) overlooking evidence favourable to the father, but mentioning similar types of evidence about the mother; and
(f) writing orders that contained a gender bias without providing reasons for why the gender bias was reasonable.
It was agreed on appeal that we should address this second ground of appeal by taking paragraphs (a) to (f) as the examples of the alleged bias. However, as we will explain later in these reasons, one of the immediate difficulties with these examples is the lack of specificity.
The test for apprehended bias is well established. For example, in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345, the High Court adopted the test set out in the earlier decision of the High Court in Johnson v Johnson (2000) 201 CLR 488, and said this:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications related to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
Of course, here the complaint is that the bias demonstrated by the trial judge was contained in his reasons for judgment, rather than in the conduct of the hearing, to which the above test is primarily applicable.
As to the former, although the complaint is not of actual bias, it is useful to record the comments of von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]:
In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more it is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
(Emphasis added)
Turning then to the specific examples raised by the father:
(a)In his written summary of argument the father provided some examples of where he alleged his Honour “denigrated” him. It is entirely unclear whether that is what the father is complaining about here, but there is no other detail provided of this allegation in either that summary or in his oral submissions to this court. In any event, we do not accept that the examples demonstrate denigration of the father by his Honour, and they certainly do not satisfy any test of bias that we are aware of.
(b)We have addressed this complaint earlier in our reasons, and we rejected it. Thus we need not say anything more about it here.
(c)There is nothing in the father’s written summary of argument, nor in his oral submissions, which identifies where his Honour has either drawn inferences, or failed to draw inferences as alleged, and thus this complaint cannot satisfy any test of bias either.
(d) & (e)These examples are in the same category. Nothing in the father’s written summary of argument or in his oral submissions provided any detail of the examples such that we could find that they demonstrate bias.
(f)This complaint depends on an acceptance that the orders “contained a gender bias”. However, not only has the father failed to take us to anything in his Honour’s reasons to establish that premise, but we are not satisfied that there is any such bias demonstrated.
We refer again to the principles for conducting child-related proceedings set out in Division 12A of the Act which his Honour was obliged to apply, and add that his Honour was entitled, and indeed it was necessary in this case, to comment on the inadequate presentation by both the father and the mother of their respective cases, and to form impressions as to each party as best his Honour could, based on their evidence and their presentation before him.
This ground of appeal has no merit.
conclusion
We find there is no merit in any of the father’s grounds of appeal, and thus the appeal must be dismissed.
costs
At the conclusion of the hearing of the appeal we sought submissions from the parties as to the question of costs, depending upon the result of the appeal.
In the event that the appeal was dismissed, the mother sought an order for costs. In response, the father seemed to indicate that he did not oppose the application, but rather took issue with the amount of costs sought by the mother.
Counsel for the mother submitted that costs should be fixed at $11,000. We were not provided with any information as to how this figure was arrived at. When questioned about this counsel submitted that an order for indemnity costs was appropriate.
Counsel submitted that the father’s list of authorities was lengthy and included several cases that had no relevance to the matter at hand, including an appeal from a Native Title Tribunal. This caused unnecessary expense to the mother as her solicitors were required to read irrelevant material in preparation for the appeal. Counsel also submitted that the father, had he been properly advised, should have known that there was no chance of success in relation to the appeal.
As to whether there should be an order for costs at all, s 117(1) of the Act provides each party to proceedings shall bear his or her own costs. However, s 117(2) provides that if the court is of the opinion there are circumstances that justify doing so, the court may, subject to s 117(2A), make such orders as to costs as it considers just. Section 117(2A) provides as follows:
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
The parties’ financial circumstances are contained in the trial judge’s reasons.
The most relevant factor in this case is s 117(2A)(e), namely, the father has been wholly unsuccessful in the proceedings in that his appeal has been dismissed. Section 117(2A)(c) is also relevant with respect to the father’s preparation of a highly confusing summary of argument and list of authorities which were unhelpful.
We find there are circumstances which justify the making of an order for costs.
We then turn to consider whether costs should be awarded on a party/party or indemnity basis.
In Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 at 256, Sheppard J referred to the “settled practice” that where a court orders one party to pay another party’s costs, the order is for costs to be paid on a party/party basis. His Honour also said “there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice” at 257.
In an appropriate case the court has a discretion to order costs on an indemnity basis. An order made in the exercise of that discretion is a very great departure from the normal approach and the circumstances justifying the departure should be of an exceptional kind (Kohan and Kohan (1993) FLC 92-340).
In the recent case of Madin & Palis (Costs) [2016] FamCAFC 25 this Court made reference to the increasing number of applications for indemnity costs and said at [23]:
Finally, we take the opportunity to observe that in so far as the appellant sought an order for indemnity costs, applications for such costs should only be made, and such costs will only be ordered, in the most extreme cases. This is particularly so having regard to the fact that the primary rule in this jurisdiction is that each party should pay their own costs.
We are not satisfied that this case is one in which exceptional circumstances are present, nor is it a “most extreme” case. The father is a self-represented litigant and it is unsurprising that his grasp of relevant case law and ability to structure his summary of his argument was limited.
We propose to order the father pay the mother’s costs on a party/party basis. It is hoped the parties can agree these costs without the necessity of having costs assessed.
I certify that the preceding One Hundred and Twenty Four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Duncanson JJ) delivered on 15 July 2016.
Associate:
Date:
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