Shaeffer v Jacobs
[2011] FamCAFC 119
•7 June 2011
FAMILY COURT OF AUSTRALIA
| SHAEFFER & JACOBS | [2011] FamCAFC 119 |
| FAMILY LAW – APPEAL – CHILDREN – Whether trial judge erred in not making findings in relation to credit of the mother and the father where serious allegations of violence – Where trial judge did not need to determine the case by reference to a finding that the alleged violence had occurred or had not occurred – Where Counsel submitted trial judge had made inconsistent findings of fact - Power of an appellate Court to overturn findings of fact discussed in light of Goodrich Aerospace Pty Ltd v ARSIC [2006] NSWCA 187 – Where trial judge unable to make a conclusive finding in relation to allegations of violence to Briginshaw standard – Failure to make finding on the basis of allegation of a party does not mean the party making the allegation was lying – Trial judge not obliged to find that a failure to make out a case involved of necessity the deliberate fabrication of evidence – Highlighted that resolution of an allegation of child abuse is “subservient and ancillary to the Court’s determination of what is in the best interests of the child” –Whether trial judge erred in rebutting presumption of equal shared parental responsibility – No error established – Child orders remain in force FAMILY LAW – APPEAL – PROPERTY – Whether trial judge erred in setting aside consent property orders pursuant to s 79A on the basis that there had been a miscarriage of justice to the mother – Whether trial judge erred in the exercise of discretion under s 79 – Where mortgage debts to father’s mother and subsequently her Estate – Where at the time of the consent orders the father either knew or ought to have known that the mortgage debts were not likely to be enforced – Where appellant father contends there was a denial of natural justice on the basis that it was not put to him that the mortgages were valid and enforceable – Held facts which underpinned trial judge’s conclusion put to the father in cross examination and raised in final submissions – Not necessary for Counsel to put conclusions to the father for natural justice to be accorded – Where appellant father contends that trial judge drew inferences from events that had occurred after the making of consent orders when the time to determine whether there was a miscarriage of justice was at the time of the consent orders – Trial judge entitled to draw the inference from the evidence that at the time of the entering into the consent orders the father knew or ought to have known that the mortgage debt was not likely to have been enforced despite trial judge considering subsequent matters – No error in trial judge’s exercise of discretion FAMILY LAW – APPEAL – Appeal dismissed FAMILY LAW – COSTS – Order appellant pay respondents costs |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) s 75(2); s 79; s 79A(1)(a) Limitation Act 1969 (NSW) s 42(1) |
| AMS v AIF (1999) 199 CLR 160 B & B [1988] HCA 66 Briginshaw v Briginshaw (1938) 60 CLR 336 House v The King (1936) 55 CLR 499 Fox v Percy (2003) 214 CLR 118 Goodrich Aerospace Pty Ltd v ARSIC [2006] NSWCA 187 M & M (1988) 166 CLR 69 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 Mollier and Van Wyk (1980) FLC 90-911 Noetel & Quealey (2005) FLC 93-230 Norbis v Norbis (1986) 161 CLR 513 Public Trustee & Gilbert (1991) FLC 92-211 Rice & Asplund (1979) FLC 90-725 Roncevich v Repatriation Commission (2005) 218 ALR 733 |
| APPELLANT: | MR SHAEFFER |
| RESPONDENT: | MS JACOBS |
| FILE NUMBER: | CAC | 557 | of | 2007 |
| APPEAL NUMBER: | EA | 121 | of | 2009 |
| DATE DELIVERED: | 7 June 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Bryant CJ, May & Benjamin JJ |
| HEARING DATE: | 18 August 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 September 2009 |
| LOWER COURT MNC: | [2009] FamCA 920 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson S.C |
| SOLICITOR FOR THE APPELLANT: | Farrar Gesini & Dunn |
| COUNSEL FOR THE RESPONDENT: | Mr Nash S.C |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray McGuinness Eley |
Orders
The appeal is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal to be assessed if not agreed.
IT IS NOTED that publication of this judgment under the pseudonym Shaeffer & Jacobs 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 CANBERRA |
Appeal Number: EA 121 of 2009
File Number: CAC 121 of 2007
| MR SHAEFFER |
Appellant
And
| MS JACOBS |
Respondent
REASONS FOR JUDGMENT
Bryant CJ & Benjamin J
Introduction
This is an appeal by the father against orders of Faulks DCJ relating to parenting orders and property orders made on 23 September 2009. The property orders were orders made pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) which set aside previous orders for property made by consent on 29 August 2006.
The father seeks orders that the appeal be allowed, that the orders be set aside and the mother’s application pursuant to s 79A of the Act be dismissed, or alternatively that her application pursuant to s 79A of the Act be remitted for re-hearing before a single judge of the Family Court of Australia, other than Deputy Chief Justice Faulks, and that the parenting proceedings be remitted also to a single judge of the Family Court of Australia, other than Deputy Chief Justice Faulks.
The parenting orders made by His Honour relate to the child E born September 2000, almost 9 years of age at the date of the hearing. There were two older twins, a boy and girl, born in 1992 but in view of their age no orders were made in relation to them. The female twin was living with the mother and the male with the father.
His Honour set out in his Reasons for Judgment (paragraphs 32-36) what was being sought by each of the parties. As there is no appeal in relation to the older children we need only refer to the orders in relation to E:
a)The mother sought that she have sole parental responsibility for E, that she live with her and spend time with her father on alternate weekends from Friday after school until before school on Monday, half of the school holidays and time on special occasions.
b)The father sought that the parties have equal shared parental responsibility for E, that E live with each parent on a week about basis and for half of the Christmas school holidays.
The Independent Children’s Lawyer who had been appointed on 12 September 2008, sought in final submissions that E live with the mother and spend alternate weekends with the father and in addition, one or two nights in the alternate week.
The judge ordered that the child spend time with the father on alternate weekends from Friday to Monday, half the school holidays and on nominated special days.
The course of the proceedings is of some significance. The matter commenced before His Honour on 4, 5 and 6 August 2008 and 3 December 2008 by way of hearing. On the application of the Independent Children’s Lawyer the matter was again listed on 24 June 2009 in relation to difficulties with E and in particular the fact that she did not want overnight contact with the father.
At that time His Honour arranged for a family consultant from the Court to discuss with the parties what arrangements might be put in place pending judgment. Thereafter interim orders were made by consent involving a graduated program of time E would spend with the father but not returning to the week about arrangements for which the original consent orders had provided.
Relevant facts which form part of the background and which were not the subject of any challenge on appeal were:
·The parties separated under one roof in July 2006.
·In August 2006 after an incident in which the father had become drunk the mother left the matrimonial home with S and E.
·Shortly afterwards on 29 August 2006 the parties reached agreement in relation to parenting and property proceedings which were the subject of consent orders. As part of the property proceedings the father was to pay the mother $25,000 while he retained the matrimonial home and indemnified the mother in respect of the mortgage.
·After the consent orders were made the mother made allegations of further intimidation and assault by the father.
·The father re-partnered and was remarried in May 2008.
·The mother had a partner but did not intend to live with him.
·The proceedings pursuant to s 79A before His Honour were commenced by the mother on 27 March 2007. On 24 July 2007 she filed an amended application including orders to set aside orders for parenting made 29 August 2006
·On 17 April 2008 a family report which had been ordered was released and His Honour noted in the Reasons for Judgment the conclusions and recommendations of the report:
[E]’s predicament is one where she loves both her parents and would like them both present in her life. However, at this time, with the high degree of parental conflict, Mr [Shaeffer’s] negative attitude towards Ms [Shaeffer] and Mr [Shaeffer’s] emotional unavailability to [E] a shared care arrangement is not in [E]’s best interest.
…
At this time it would be to [E]’s benefit if she were to predominantly live with Ms [Shaeffer] this being where she is cared for emotionally. Once Mr [Shaeffer] has attain [sic] assistance to deal with some of the issues which precluded him from being emotionally available to the children and to communicate with Ms [Shaeffer] the notion of a shared arrangement with the child/children could be revisited.
·The final hearing before His Honour took place on 4, 5 and 6 August and 3 December 2008.
The trial judge’s reasons – parenting orders
His Honour in describing the background issues said:
6.The parents are in high conflict and communicate though a communication book or through [E]. …
7.The key issue in dispute in relation to parenting issues is the father’s capacity to properly provide for [E]’s emotional needs and consequently, whether a shared care arrangement is in [E]’s best interests. …
His Honour observed that the parties had separated in July 2006 after a 15 year marriage. In general terms, the mother had characterised the marriage as being a relationship in which the father was very controlling over financial matters, including maintaining his own study which he locked, and dictating the chores the mother was to perform. His Honour observed that the mother asserted that this control regularly amounted to instances of verbal abuse, physical assault such as punching her, pulling her hair, chasing her out of his study and pushing her resulting in her falling off the verandah. He noted she also asserted there were instances of sexual assault, including raping her and using violence during intercourse including pulling her hair and holding her down. She further asserted that he would punch the children as a disciplinary measure.
His Honour noted that the father denied the allegations concerning assaults and insisted that household chores were shared. He did not deny he spent considerable periods in his study and rather asserted that he locked it to prevent the children from stealing his things, and that the mother knew where the key was kept. He accepted he was responsible for all of the financial matters in the household, including control of the mother’s income which went into his account and from which he then gave her $70 per week, but alleged this was because the mother had asked him to manage the finances as she was not interested and not able to do so.
We record one further matter because it is of some relevance to His Honour’s findings about parental responsibility. At the close of proceedings on 6 August 2008 and after the mother’s Counsel had concluded submissions, His Honour offered the father’s Counsel the opportunity to discuss the possibility of settlement with the father before proceeding with her submissions, on the basis that His Honour was being asked to make findings about violence, and before doing so wanted to explore with Counsel whether there was an alternative to the need for him to deliver judgment on the parenting issues.
After speaking to her client, the father’s Counsel indicated that the father did not wish to see E again and consented to the property orders being vacated. However, Counsel informed His Honour that she did not think he was in a fit state of mind to give instructions and that he was completely overwrought and that she did not accept that the instructions were given of his own free will. His Honour then adjourned the submissions for a further 12 days and suspended the father’s time with E during that period.
When the matter resumed for the finalisation of proceedings in early December 2008 cross examination took place and there was no indication that the father sought other than the equal shared parental responsibility and the week about arrangement that he had sought in his written material.
When His Honour came to consider the question of parental responsibility he noted that s 61DA(1) of the Act provided there should be a presumption of equal shared parental responsibility which could be rebutted. His Honour found that the presumption was adequately rebutted pursuant to s 61DA(4) for the following reasons:
·The parties’ relationship was so strained and difficult that it would be hard to imagine they could work cooperatively to determine matters in relation to E’s long term welfare and benefit.
·The father’s conduct in August 2008 albeit for a short time, taking the position that he would not see E again, was an abrogation of his responsibilities as a parent and for that period, at least, His Honour found he demonstrated unequivocally that he was unable to place E’s best interests ahead of his own.
·As the future was likely to be about challenges and frustrations, if the father was not robust enough to meet those challenges and place E’s best interests first, major decisions about her welfare should be made by her mother.
·It was difficult to imagine having regard to these matters that he could objectively work in effect in partnership with E’s mother to decide matters for her future.
·Finally, His Honour noted that although it was asserted by the mother that the father had engaged in acts of violence towards her and towards the children, and although His Honour could not form a concluded view about whether the allegations were true, if they were true they would preclude the application of the presumption.
In doing so His Honour was referring to s 61DA(2) which provides:
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, as a member of the parent’s family (or that other person’s family); or
(b)family violence.
His Honour specifically said however that was not a determination he was prepared to make but that he was applying s 61DA(4) in rebutting the presumption on the grounds stated above.
His Honour then went on to consider the time that E should spend with each parent. He noted that whether or not the presumption of equal shared parental responsibility was rebutted that it was appropriate to consider whether E should spend equal time with each of the parents or substantial and significant time. His Honour then moved to consider orders in the best interests of E having regard to the matters in s 60CC of the Act.
His Honour dealt with the two primary considerations in s 60CC(2) and cited with approval Brown J’s description of a “meaningful relationship” in Mazorski & Albright [2007] FamCA 520 as adopted by the Full Court in McCall & Clark (2009) FLC 93-405 that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.” His Honour made some observations about the nature of meaningful relationship including:
·That both parents wanted E to have a proper and meaningful relationship with her father (Reasons for Judgment, paragraph 50);
·That the independent children’s lawyer and the mother argued that the father might have a more meaningful relationship if E did not spend equal time with him;
·That the arrangement for equal time had been tried between the parties and the proceedings in part grew out of the concern expressed by E that the arrangement was not to her liking;
·The father seemed to have listened to the criticism made of him and adjusted his work hours to spend more time with E during the week; and
·Although there were three periods when the father had not maintained the shared care arrangement they were not decisive.
His Honour then considered the other primary consideration, namely, the need to protect the child from physical or psychological harm. He observed that the allegations by the mother regarding physical abuse to E emerged only in cross examination at the trial many months after the proceedings had begun and after affidavits had been filed, and that the father had seemed visibly shocked at the allegations and vehemently denied them.
His Honour then turned to consider what findings he could make in light of the evidence.
His Honour noted and was aware of the standard of proof as set out in the Evidence Act 1995 (Cth) in s 140(2) and where what is sought to be proved is a grave and serious matter, must apply the test in Briginshaw v Briginshaw (1938) 60 CLR 336.
His Honour found that as far as the allegations of physical assault and abuse to the children was concerned they did not meet the standard imposed by Briginshaw noting:
·The late reporting of the allegations by the mother;
·What appeared to be the genuine distress and vehement denial by the father;
·It would be odd at least for the mother to agree to E spending half her time with the father after separation if she were concerned about her physical safety; and
·Accepting her deep set and genuine concern for E’s welfare the unlikelihood of her consenting to spending half her time with the father if she were concerned about her welfare to the extent asserted.
His Honour then continued at paragraph 57:
However, in coming to that conclusion I do not conclude that the mother must necessarily have been lying. The fact that I am unable to find an allegation proved does not mean that I would necessarily find that it was false. In particular in general terms, notwithstanding the strong contrary submissions from the father’s counsel, I thought the mother gave her evidence in a straight‑forward and believable way. I would not be prepared to make any generalised or (in this particular) case any particular determination that she had not been truthful as she believed it to be.
His Honour then turned in paragraph 58 to the allegations about the violent conduct the mother alleged the father had perpetrated to her which he found to be of a slightly different category. This was because he found they had a longer provenance and in this respect her evidence was more believable than the denials by the father. However, His Honour found that the allegations were exaggerated and said at paragraph 58:
…however, like so many things in life, the truth lies somewhere in between the allegation and the total denial. Again it is difficult for me to make any positive finding that the events occurred in accordance with the requisite standard of proof.
He concluded at paragraph 59:
I am left with an uneasy feeling about the allegations. While they do not involve violence directed to a child, if the violence did occur it would have to have a bearing upon matters relating to [E]’s best interests. In a matter in which it was sought to prevent one parent from having any time with a child at all it may be necessary for me to examine in great detail the nature of the allegations and to make a determination. In this matter there are a number of other factors which bear upon [E]’s best interests which, in my opinion, preclude my having to make such a detailed enquiry. ... (footnote omitted)
His Honour noted that it may not be in a child’s best interests for a court to make a determination about some factors: M & M (1988) 166 CLR 69; B & B [1988] HCA 66; and that the orders “must be subject to the overall prescription as I have said above of [E]’s best interests.”
His Honour then proceeded to assess the relevant considerations in s 60CC(3), and in particular, His Honour considered E’s views. The Family Consultant had indicated that E would prefer to live with her mother and see her father on weekends, although she also wanted to spend weekend time with her mother. She had noted in particular that E perceived she did not have enough time with her father and that he was emotionally unavailable to her. The Family Consultant said “[E]’s desire to spend more time with her mother is based on the comfort she derives in her mother’s home”. The Family Consultant also opined “[E] tries hard to please everyone and in this process her needs may well be maligned”.
The Family Consultant further noted that although the relationship between E and her father was observed as close and affectionate as it was with her mother, with her father E was observed to be the relationship caretaker. She concluded her remarks in her report by saying that “…at this time, with the high degree of parental conflict, Mr [Shaeffer’s] negative attitude towards Ms [Shaeffer] and Mr [Shaeffer’s] emotional unavailability to [E] a shared care arrangement is not in [E]’s best interest.”
His Honour noted the concerns about E expressed by the Family Consultant (paragraph 61) that E appeared to be more sensitive to, and more concerned about her father’s emotional well being than he is about hers and that is an extraordinary burden for a young person to have. He concluded that it would be preferable that E should primarily remain in the area that she feels most comfortable, that is with her mother and to have her mother as her primary carer.
His Honour then considered other relevant factors in particular, his satisfaction that E’s mother notwithstanding quite extreme provocation, had continued to exhibit a willingness and, indeed, an ability to facilitate a relationship between E and E’s father. Whereas, on the other hand, E’s father while acknowledging the role that the mother has played in E’s case and upbringing has on occasions been so self-absorbed as to be unable to provide perhaps the support that E needed.
His Honour noted that arrangements for E to spend time with the father had existed over the last year in different ways and it would be difficult to say that anything would not constitute some variation. He noted the parents had reached agreement most recently at least on an interim basis on a transitional program to restore the time that E spends with her father.
The grounds of appeal – parenting orders
The appellant father relied upon amended grounds of appeal which were divided into six areas.
The first three areas contain grounds of appeal in relation to the parenting orders and the latter three contain grounds of appeal in relation to the property orders and will be addressed later in these reasons.
Credit – grounds 1, 2 and 3
Ground 1
The first part of this ground related to the father’s submission that His Honour had failed to make findings in relation to credit which issue should have been resolved either in favour of the mother or the father. This, it was submitted, was because there were serious allegations made by the mother, denials by the father and lack of cross examination on some of the issues by the mother’s Counsel.
Counsel for the father commenced his submissions by asserting that the obligation to make findings was not simply because a positive finding one way or the other would have inevitably had a bearing on the ultimate issues to be determined, but also because of what Counsel described as “the flowing relevance of the willingness to make a false or unsubstantiated allegation to credit generally and in resolving other issues; and secondly, the relevance of the same matters in terms of parental attitude and general relevance in the parenting proceeding”.
The context and gravamen of this argument needs to be carefully examined. Counsel conceded that His Honour found that he did not need to determine the case by reference to a finding that the alleged violence had occurred or had not occurred, and was able to determine parenting issues on other bases. Whilst accepting that a trial judge is not obliged to determine every issue if it is ultimately irrelevant to the process. Counsel contended that because the parties delineate the issues over which the case will be agitated, the serious nature of these allegations, identified by the mother as a significant part of her case, required His Honour to make findings.
It is important that we record here the basis on which His Honour concluded it was in E’s best interests to make the orders he did. Those matters were:
· E said she was more comfortable in her mother’s primary care; (Reasons for Judgment, paragraph 63)
· Has the burden of being more concerned for her father’s emotional well being than he is for hers; (Reasons for Judgment, paragraph 61 and 62)
· The mother is more conscious of E’s needs and able to provide for them on a regular and supportive basis; (Reasons for Judgment, paragraph 65)
· That the mother is able to facilitate the relationship between E and her father; (Reasons for Judgment paragraph 57)
· The Father had been so self absorbed as to be unable to provide the support E might need to feel comfortable in moving from him to her mother and visa versa; and (Reasons for Judgment, paragraph 67)
· E’s wishes to spend less time in her father’s household rather than week about. (Report of the Family Consultant, paragraphs 42-44)
For the purpose of considering this argument the allegations raised by the mother need to be considered in the three discrete areas into which they fell. Those areas were:
a)The mother’s allegations that the father was violent to her throughout the marriage. These were allegations raised in her affidavit material and in respect of which she called corroborative evidence from her sister. The father denied each and every allegation, his denials being that each and every one of them was untrue.
b)The mother’s allegations that the father had been violent to the children which first emerged in the course of the hearing in her evidence. The father denied each and every allegation and asserted that they were untrue.
c)An incident which occurred at Court in November 2008 in which after an interim hearing the mother alleged the father had abused her calling her a “whore” which is alleged to have occurred in the presence of his present wife. The father denied the allegation in its totality, denied that any words had been said to the mother and his evidence was corroborated by his present wife.
His Honour was conscious of the extent and seriousness of the allegations of the mother made against the father. In considering the various sections of the Act which had relevance to violence in relation to the children and the mother, His Honour dealt first with the allegation of violence to the children in paragraph 51, noting that one of the primary considerations under s60CC of the Act was to ensure that the child was not subjected to any abuse or violence. His Honour said:
… There is some force to the submissions made about these matters made by Counsel for the father. The mother did not raise at the time when the events occurred or even at the beginning of the proceedings allegations about violence to the children. These emerged in cross examination at the trial many months after the proceedings had begun and after affidavits had been filed. I observed that the father was visibly shocked at the allegations and responded with a vehement denial. (original emphasis)
In relation to the allegations of violence against the mother His Honour said at paragraph 52:
More broadly the mother had alleged that her signature on the consent orders had been obtained through duress and in circumstances where the father had applied both sexual and physical violence towards her.
His Honour then considered the standard of proof applicable. He noted that the civil standard applicable to these proceedings is that the Court must apply s140 of the Evidence Act 1995 (Cth), that is, the Court must be satisfied their case has been proved on the balance of probabilities. His Honour then went on to note that s140(2) of the Evidence Act 1995 (Cth) provided for further consideration where what is being sought to be proved is a grave and serious matter or might be a criminal action in which case the Court is required to apply a Briginshaw standard. His Honour cited Briginshaw v Briginshaw (1938) 60 CLR 336, in particular the judgment of Dixon J noting that:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
His Honour then went on in paragraph 56 to indicate that he was not able to make a finding on the facts as alleged by the mother in light of the standard impose by Briginshaw in relation to violence to the children a result of:
·the late reporting of the allegations;
·what appeared to be the genuine distress and subsequent vehement denial by the father of the matters alleged; and
·the mother’s agreement in the past to the child spending half her time with her father would be at odds with a specific concern for her safety.
In paragraph 57 His Honour then made a comment which is the subject of robust attack in the appeal. He said:
However, in coming to that conclusion I do not conclude that the mother must necessarily have been lying. The fact that I am unable to find an allegation proved does not mean that I would necessarily find that it was false. In particular in general terms, notwithstanding the strong contrary submissions from the father’s counsel, I thought the mother gave her evidence in a straight‑forward and believable way. I would not be prepared to make any generalised or (in this particular) case any particular determination that she had not been truthful as she believed it to be. (our emphasis)
We will return to these allegations later.
His Honour then turned to the allegations about the conduct against the mother in paragraph 58 and said that they were in a “slightly different category” for the following reasons:
·they have a longer provenance;
·her evidence was more believable than the denials by the father; and
·that like so many things in life His Honour suspected the truth lay somewhere in between the allegation and the total denial.
His Honour then said it was difficult for him to make any positive finding that the events occurred in accordance with the requisite standard of proof.
There were two attacks on His Honours finding thus expressed. The first relates to what His Honour said in paragraph 59 where His Honour went on to say:
I am left with an uneasy feeling about the allegations. While they do not involve violence directed to a child, if the violence did occur it would have to have a bearing upon matters relating to [E]’s best interests. In a matter in which it was sought to prevent one parent from having any time with a child at all it may be necessary for me to examine in great detail the nature of the allegations and to make a determination. In this matter there are a number of other factors which bear upon [E]’s best interests which, in my opinion, preclude my having to make such a detailed enquiry. … (footnote omitted)
His Honour noted that the test laid down by the High Court of Australia in M & M (1988) 166 CLR 69 allowed for the court to go about considering its task of what was in the best interests of the children without the necessity to make a finding about some of the factual matters. His Honour then went on to consider the other matters which bore upon his decision. At paragraph 129 of the Reasons for Judgment when His Honour was dealing with the mother’s allegations of duress in relation to the property appeal His Honour said:
My view is that contrary to the assertion of the [father] there were violent acts perpetrated upon the wife during the course of the marriage. I am satisfied that these acts were the subject of some report by her to her sister who was a police woman. I do not accept, however, that the acts were of the ferocity and frequency that the wife asserted. ... (original emphasis)
Counsel for the father submitted that the first sentence of paragraph 129 quoted above was contrary to the findings by His Honour at paragraph 58 and perhaps paragraph 59. Counsel said, having drawn the Court’s attention to the first sentence in paragraph 129:
[N]ow I invite your Honours to put a thumb on that page and turn back to paragraph 58. The same standard of proof applies. Exactly the same evidence was being considered. At 58 he says doesn’t get over the line. At 59 he says, “I feel uneasy about this notwithstanding” then at 129 he has made a positive finding in the opposite direction.
Counsel submitted that there are inconsistent findings and fatal to any view that the fact finding process that His Honour had undertaken would be protected by usual appellate standards.
Finally, we were pointed to paragraph 131 of the Reasons for Judgment in which His Honour said:
In summary, therefore I do not accept the husband’s general denial of any violence. I do accept the mother’s assertion that there was some violence. I do not accept the mother’s assertion that the violence was either as frequent or as significant as she asserted and I do not accept the mother’s claim that the husband had assaulted the children.
Four things emerge however from His Honour’s findings:
a.That he did not accept all of the evidence of the mother about the violence that had occurred to her.
b.That he accepted there was some violence albeit not as the mother asserted.
c.Although the father denied all allegations he did not accept his general denial.
d.The evidence did not allow him to find particular allegations occurred as asserted.
Conclusion
The arguments in this part of the appeal seek primarily to overturn findings of fact made by the trial judge.
Reference was correctly made by Counsel for the appellant to the decision of the Supreme Court of New South Wales in Goodrich Aerospace Pty Ltd v ARSIC [2006] NSWCA 187 part of which we would repeat here:
The power of an appellate court to overturn findings of fact
11.Stern sentinels have long barred the gateway to appellate success against findings of fact substantially dependent on demeanour and credibility. These formidable guardians are the line of cases epitomised by Devries v Australian National Railways Commission (1993) 177 CLR 472 and Abalos v Australian Postal Commission (1990) 171 CLR 167. The opening of the portals is dependent on passwords that, in practice, are rarely invoked successfully. These are: “the trial judge’s failure to use or palpable misuse of his or her advantage,” or the judge making findings “inconsistent with incontrovertible facts,” or acting on “glaringly improbable evidence,” or making findings “contrary to compelling inferences”. There are signs, however, that entry to the citadel can now more easily be achieved.
12.In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ said at 128–129, [30]–[31]:
“[30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses [eg Trawl Industries of Australia Pty Ltd v Effem Foods Pty L (1992) 27 NSWLR 326 at 348, per Samuels JA.] Thus, in 1924 Atkin LJ observed in Société d’Advances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) [(1924) 20 Ll L Rep 140 at 152].
‘… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.’
[31] Further, in recent years, Judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell the truth from falsehood accurately on the basis of such appearances [See material cited by Samuels JA in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and noted in SRA (1999) 73 ALJR 306 at 329 [88]; 160 ALR 588 at 617–618]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
13.In the same case McHugh J said at 146–147, [90]:
“[90] It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise — in accordance with a long line of authority — that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses.”
14.In CSR Ltd v Della Maddalena (2006) 80 ALJR 458 Kirby J, with the concurrence of Gleeson CJ, said at 465, [19] that Fox v Percy had brought about “an important change in the statement by this Court of the jurisdiction and powers of intermediate appellate courts”. His Honour said that the change “involved a shift to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments”. He went on to say at 466, [23]:
“[23] It would be a misfortune for legal doctrine if, so soon after Fox v Percy corrected the non-statutory excesses of earlier appellate deference to erroneous fact-finding by primary judges, the old approach was restored, as, for example, by reversion to the previous formulae about the ‘subtle influence of demeanour’ that could have affected the primary judge’s conclusion …
See further the discussion by Tobias JA in Walden v Black [2006] NSWCA 170 at [75]–[85].
After reference to a number of learned writings of judges and eminent persons from the professions Ipp JA who write the majority judgment said:
27.These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.
…
29.Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.
30.In the influential case of SS Hontestroom v SS Sagaporack (1927) AC 37 Lord Sumner said (at 50) that one of the material questions in determining whether the credibility finding in that case was erroneous was: “Is there any glaring improbability about the story accepted, sufficient in itself to constitute ‘a governing fact, which in relation to others has created a wrong impression,’ or any specific misunderstanding or disregard of a material fact … that has had the same effect?” It is in this context that the following remarks of Hayne J in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1835, [130] are particularly relevant:
“…Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, and the error identified in this case is revealed as an error in the process of fact-finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”
31. A failure by a judge, when making a demeanour finding, to deal with an improbability constituting a “governing fact” in the SS Hontestroom sense may constitute “an error in the process of fact-finding” as explained by Hayne J.
If there is a genuine contest about a factual issue and the party making the allegations is not able to establish it to a particular standard it is not axiomatic that they must be found to have been lying. Rather, a finding that they had in fact been lying would also have to be established to the relevant standard as set out in s140 of the Evidence Act 1995 (Cth); Briginshaw & Briginshaw (1936) 55 CLR 192. Counsel for the father conceded this point (T/20 line 28).
Counsel argued however that the failure to couple with that the other relevant considerations that were before His Honour, such as the failure to pursue the issue with the father at all, ought to have lead to a contrary result to “the tick of innocence” that His Honour had applied. Later Counsel put it more strongly on the basis that the mother having failed to pursue the issue in cross examination, His Honour should have formed the view it was unbelievable.
Insofar as the allegations were against the father in his behaviour towards the mother we are not persuaded that there was any obligation on His Honour to find that the mother had deliberately fabricated her evidence merely because he was not able to find the violence alleged was established to the requisite standard. It also must be remembered that the requisite standard that he was applying in this case was the Briginshaw standard in view of the seriousness of the allegation and coupled with His Honour’s “uneasy feeling” about the violence alleged to the mother such a finding would be inconsistent.
Further, insofar as Counsel asserted that there had been a failure by Counsel for the mother to cross examine on the topic or, that he was cross examined “almost as an afterthought” as Counsel for the father asserted in his written submissions at paragraph 6, as we have already explained, the mother’s allegations particularly those in her affidavit sworn 1 July 2008 are detailed and cover a variety of behaviours over a significant period of time. That contrasts with the father’s complete denial that any of the events as alleged had occurred at all and that consequently they were fabricated by the mother.
Cross examination on this point did occur on Wednesday 6 August 2010, Counsel for the mother having concluded his cross examination of the father at the end of the afternoon before. At the commencement of proceedings on Wednesday 6 August 2010 he asked His Honour’s indulgence to have the father put back in the witness box so he could address this issue. He said in particular:
…before we start, your Honour, indicate that both of us have spoken this morning and so far as the Browne v Dunn issue, if you like, is concerned we have agreed that although there have been no incident by incident suggestion to either party, neither of us will take that point.
The issue of sexual assault, domestic violence as described, and verbal abuse is clearly an issue between the parties. We allege yes there’s a clear denial on all counts by Mr [Shaeffer] and I just didn’t want your Honour to be confused about what’s going to be made of that at the end of the day. We’ve both decided that it’s clearly an issue, your Honour has seen both parties, and your Honour will make your own findings based on whatever we can persuade you, and together with your own observations and the evidence.
Further discussion led to His Honour saying (line 36) “So, I don’t expect every incident to be put”. Senior Counsel for the mother then proceeded to go through in broad terms the different kinds of violence and abuse that the mother had alleged was meted out, without putting every incident and eliciting on each occasion from the father a response that he had not carried out the behaviour alleged and that it was untrue. It also must be remembered that the judge had the affidavit of the mother where allegations were made and the affidavit of the father where he denied the allegations.
As a result we cannot see how Counsel for the appellant father can sustain an argument that the father was not cross examined about these issues. It was apparent that there was an agreement between Counsel that forensically, in view of the blanket denial of the father, there was not going to be an incident by incident consideration of the matters. In our view cross examination by the mother’s Counsel adequately put the matters in issue to him.
Finally, Counsel argued on this point that His Honour used the mother’s demeanour, without any foundation, to find that she looked like an honest person so that he was not going to form an adverse view about her credit. We do not accept that His Honour’s comments can be characterised in this way. His Honour concluded that he could not find to the requisite standard, the mother’s allegations to be proved in the context of some detailed allegations and blanket denials by the father. His Honour said that because he was unable to find the allegation proved does not mean that he would necessarily find that it was false or that the mother must necessarily have been lying and that having seen and heard both parties in the witness box he was not going to form an adverse view about her credit.
In our view His Honour was entitled to make these findings. Contrary to the submissions of the father’s Counsel there was no need for His Honour to discuss the consequences of an unsuccessful pursuit of a serious allegation upon the mother’s credit when His Honour had found specifically that he would not take an adverse view of her credit even though he could not be satisfied to the requisite standard that the facts alleged had occurred. His Honour was entitled to form that view, and we do not consider that he fell into error in doing so.
Nor do we agree as submitted on behalf of the appellant that His Honour’s findings, or more particularly in this case, lack of findings about the allegations of violence were based on an assessment of demeanour rather than facts. To the contrary His Honour did not find either of the parties to be an unbelievable witness in the sense that it would enable him to make a conclusive finding on the allegations.
Put another way the question is whether there is any glaring improbability or fact which His Honour disregarded or misunderstood, which if existed and was properly taken into account, would have led His Honour to find violence against the mother and children had or had not definitively occurred. Counsel for the appellant asserts that there is, and that failure is constituted by His Honour paying no attention to the fact that the allegations were not pursued in cross examination other than in a perfunctory way.
That may be problematic in a case in which the ultimate issue is whether or not the violence had occurred. But in this case as His Honour made clear, the ultimate issue was to arrive at orders which would be in the best interests of the child and that did not depend upon a finding of whether violence had or had not taken place or over whether one or other party had lied about that.
Returning to paragraph 131 of the Reasons for Judgment which Counsel for the father submitted was contrary to His Honour’s earlier findings, we do not agree that this is so. His Honour in our view was simply stating his conclusion in a different way. He said that he did not accept the father’s general denial of any violence. If he had then he would have no doubt been compelled to make a positive finding in favour of the father. This does no more than state his previous conclusion. He accepted the mother’s assertion that there was some violence but did not accept that it was either as frequent or as significant as she asserted.
In any event, as we have noted, a failure to find that a fact had occurred on the balance of probabilities, does not mean that it did not occur nor that it was necessarily fabricated by the party making the allegation. For the purpose, such as considering the parenting capacity of a party who might wilfully make false statements, it does not follow from the lack of a finding to the requisite evidentiary standard that the allegation is proved or otherwise.
Allegations concerning violence against the children
The second issue raised by the appellant relates to His Honour’s failure to make a positive finding in favour of the father in relation to the allegations made by the mother about his assault on the children. The attack upon His Honour’s failure to find positively that the father had not assaulted the children was more strongly urged than the allegations of assaults upon the mother. Essentially this argument relies upon three facts not present in relation to the allegations regarding the mother. The first is that this was a matter that was only raised, as His Honour explains “in cross examination at the trial many months after the proceedings had begun and after affidavits had been filed”. Secondly, His Honour’s observation that the father was “visibly shocked at the allegations and responded with a vehement denial”(Reasons for Judgment, paragraph 51). Thirdly, that there was a failure to cross examine the father on these allegations.
It was submitted by Senior Counsel for the appellant that this fell into a different category than the allegations against the mother and placed a positive obligation on His Honour to find that they were untrue and positively had not happened. The further and contradictory comments the appellant asserts His Honour made in relation to this finding are to be found in paragraph 58:
·The allegations about the conduct against her are in a slightly different category.
·His Honour’s finding that the allegation the father assaulted the children “are for evidentiary purposes unreliable and unbelievable”.
·“I do not accept the mother’s claim that the husband had assaulted the children”. (Reasons for Judgment, paragraph 131).
His Honour made it clear that he differentiated between the allegations of violence to the mother and to the children. The submission raised by the ground of appeal in relation to this matter, is, having refused to accept the mother’s claim that the father had assaulted the children and finding her allegations unreliable and unbelievable, His Honour was then obliged to accept the father’s denials. From this it is asserted it follows necessarily that His Honour should form an adverse view of the veracity of the mother which reflects adversely on her parenting.
We do not agree with this submission. First, a finding that no violence was proved had been made by His Honour in paragraph 130, 131, and by inference in paragraph 129. Secondly, failure to prove that the violence had occurred did not necessarily lead to a finding that the mother had deliberately fabricated the allegations. If His Honour had been satisfied to the appropriate standard that the mother had fabricated the evidence it might have been a relevant factor, but it must be remembered that this was a parenting case in which as always, there are competing factors in the cases presented by both parties for and against an order being made. It is unlikely that one element alone, such as the mother having fabricated allegations about the father (which His Honour did not find) would be decisive and thus, whilst His Honour appears to have rejected the mother’s claim that the father had assaulted the children he was not obliged to make a finding, absent evidence other than that to be discerned from inference, that the mother had done so deliberately.
Neither parent, for example, was asserting that the other parent should not see the child. The contest was either the sharing of parental responsibility and the extent to which the child would spend time with each of the parents. A finding that one party had deliberately made false allegations to the Court about violence, or deliberately denied violence which had occurred, would undoubtedly have reflected badly upon their parenting but it is doubtful whether it would have lead His Honour to conclude that all other relevant factors should be ignored and that the E should spend less or more time with a parent by virtue of that fact. Indeed, this may well be a case that highlights the reason that the High Court said in M v M at [21] that the resolution of an allegation of child abuse is “subservient and ancillary to the Court’s determination of what is in the best interests of the child”.
In this case His Honour had evidence that E had a good relationship with both of her parents and there was no suggestion that she ought not have significant contact with both of them. What useful purpose therefore would have been served, in E’s interests, by making a positive finding one way or the other and then criticising the mother for having given false evidence. It is also difficult to see how it would have made any difference to the ultimate orders that His Honour made given all the other factors that His Honour had to take into account. It needs to be remembered that amongst all of the factors His Honour was considering as to what constituted the best interests of E this was only one.
Ground 2
The second ground of appeal was stated as follows:
His Honour erred in principle and otherwise made inconsistent findings (Judgment paragraph 68) where he rejected straightforward factual evidence of the appellant and his present wife yet expressly disavowing a finding of lies.
The third issue about which the appellant submitted His Honour should have positively rejected the mother’s evidence, related to the mother’s evidence that immediately following an interlocutory determination by His Honour in the proceedings, the father had called her, inter alia, “a whore”.
His Honour dealt with this in the Reasons for Judgment in paragraph 68 and said in relation to it:
…It was urged on me by counsel for the father that I should accept the father’s denial and the corroborative evidence of his wife that he did not use those words. For my part I found the father both evasive and unbelievable about this matter and I find, notwithstanding the corroboration of his wife, that he did use the words referred to. Again I do not find that this is a matter in which he has set out deliberately to lie nor do I find that his wife lied. I am satisfied, however, that the emotional nature of the events has precluded them from having an accurate memory of what happened and I accept the mother’s version.
We are conscious of the strictures by the High Court in Fox v Percy (2003) 214 CLR 118 and in particular where Gleeson, CJ, Gummow and Kirby JJ said:
27.… If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute…
28.The mere fact that the trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance of a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when the appear to be or are stated to be based on credibility of findings…
29.In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of the witnesses. In such a case, making all of the allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. … (footnotes omitted)
Keeping those observations in mind we note, however, that His Honour was not dealing with incontrovertible facts or uncontested testimony or that the facts were “incontrovertible” or the decision “glaringly improbable” or “contrary to compelling influences”. His Honour had the benefit of seeing the father extensively in the witness box over the course of the trial and was on that basis, in our view entitled to make the finding that on this issue that the father was evasive and unbelievable. There were uncontested facts to support such a conclusion. They included:
·A concession by the father that he was angry immediately before this incident because he had not been successful in securing orders to E;
·He described the court proceeding which adjourned immediately before this incident “a shenanigan”;
·The father’s present wife conceded, that after costs were awarded against him he had to be told to stand when the court adjourned and he was “frustrated”;
·The mother gave evidence that the Father was “very angry” at the time of the incident; and
·The Family Consultant also gave evidence that she agreed that the father was “angry” in his demeanour when she saw him on the same day.
In our view in those circumstances His Honour was entitled to make the finding that the emotional atmosphere at the time precluded accurate memory by the father and his present wife and this ground should not succeed.
Ground 3
The third ground of appeal was stated as follows:
His Honour erred in principle or failed to give adequate reasons for an approach which included repeated rejection of the wife’s evidence on significant matters yet failing (so the Reasons imply) to take up this rejection in any way adverse to her credit generally.
We have already dealt in some detail with this in relation to Ground 1 which relates to credit. We repeat that as His Honour was not obliged to find that a failure to make out a case involved of necessity the deliberate fabrication of evidence and a finding that reflected poorly on the mother’s parenting capacity vis a vis that of the father. For these reasons and the reasons we have already explained in covering Ground 1, this ground does not succeed.
Grounds 4 & 5 – parental responsibility
These grounds related to parental responsibility and asserted first that His Honour’s decision miscarried in that he:
4. …failed to give adequate reasons for his decision
…
5.1failed to take into account… that the parties had equal joint parental responsibility already…
5.2failed to take into account any relevant change of circumstances or the need to be satisfied with such change of circumstances, since the making of those orders.
His Honour also had sufficient evidence in our view to rebut the presumption of joint parental responsibility. His Honour pointed these matters out in paragraphs 40 and 41 of the Reasons for Judgment. First, His Honour noted that “the parties’ relationship was so strained and difficult that it would be hard to imagine they could work cooperatively to determine matters in relation to [E]’s long term welfare and benefit”. In addition, His Honour said that apart from that it would still not be appropriate to apply the presumption due to the father’s conduct in August 2008. Taking the view that he would not see E again was said to be “an abrogation of his responsibilities as a parent” and an unequivocal demonstration of being “unable to place [E]’s interests ahead of his own”.
As to the assertion that His Honour failed to take into account that the parties had equal joint parental responsibility already conferred upon them by the consent orders, we think this ground misunderstands the effect of Section 61DA of the Act. First, none of the parties at trial suggested that by reason of the matters in Rice & Asplund (1979) FLC 90-725 that there was any threshold test which had to be fulfilled before His Honour could vary the orders. Furthermore, the parties had already varied the order to take account of recent events.
Section 61DA(1) provides that “[w]hen making a parenting order in relation to a child, the court must apply a presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
Section 61DA(4) provides that “[t]he presumption may be rebutted by evidence that satisfies the court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
His Honour clearly set out in his reasons why the presumption was rebutted and gave adequate reasons for doing so. Nothing in the Act itself requires that the court consider as a relevant factor that the parties had equal joint parental responsibility conferred on them by consent orders, although it is likely that would form part of the factual matrix in deciding whether or not the presumption would be rebutted. His Honour was clearly aware that previous orders had been made by consent providing for equal shared parental responsibility (Reasons for Judgment, paragraph 5); he found that subsequent events demonstrated the difficulties with such an order (Reasons for Judgment, paragraph 40); and finally considered conduct that had occurred in August 2008 (Reasons for Judgment, paragraph 41). As a result this ground must fail.
Grounds 6 & 7
Ground 6 asserts that His Honour’s discretionary judgment miscarried. Unsurprisingly, little argument was directed to this ground as most of the submissions which might deal with it were already covered by the submissions of the appellant in relation to grounds 1, 2 & 3. The complaint arises from His Honour’s comments in paragraph 67 of the Reasons for Judgment where His Honour said:
I am satisfied that [E]’s mother, notwithstanding quite extreme provocation, has continued to exhibit a willingness and, indeed, an ability to facilitate a relationship between [E] and [E]’s father. On the other hand, [E]’s father while acknowledging the role that the mother has played in [E]’s case and upbringing has on occasions, in my opinion, been so self-absorbed as to be unable to provide perhaps the support that [E] might need to feel comfortable in moving from him to her mother and vice versa. (footnote omitted)
In written submissions the appellant contended that His Honour’s reasons made it impossible to indentify that which constitutes “the extreme provocation”. It is contended that if by this His Honour is referring to the allegations of the mother of assault by the father that His Honour has not found then to be proved to the appropriate evidentiary standard and therefore had taken into account an irrelevant matter in the exercise of discretion. Whether, as the written submissions suggest, the words “the extreme provocation” were intended to relate to allegations of physical violence by the father or whether as Counsel contended in oral submissions, it related to what occurred in November 2008 outside the court is not clear. But they are not the only inferences open. Apart from these matters His Honour referred to the evidence of the family reporter that there was a high degree of parental conflict; the father had a negative attitude toward the mother and an emotional unavailability to E, at least at a particular time (Reasons for judgment, paragraph 22); the Father’s response in August 2008 that he did not wish to see E again (Reasons for Judgment, paragraphs 27-30) and the strained and difficult relationship between the parties (Reasons for Judgment, paragraphs 40 and 41).
There was in our view justification for His Honour to use these words about behaviour by the father other than allegations of violence to the mother. We also note in this context the High Court’s admonition to avoid a highly critical or pernickety analysis of the primary judge’s reasons: AMS v AIF (1999) 199 CLR 160; Roncevich v Repatriation Commission (2005) 218 ALR 733 at 749-750.
In any event, on a plain English reading of paragraph 67 the words complained of are unnecessary to found the conclusion reached by His Honour that the mother continued to exhibit a willingness and ability to facilitate a relationship between E and E’s father, whereas the facilitation of that relationship by the father was more problematic.
We therefore find no merit in ground 6.
Ground 7 asserts that His Honour failed to give adequate reasons for the resolution of the allegations of assault by the father against the mother and the children and the significance and relevance of those allegations in the proceedings.
This ground is repetitious of matters argued in grounds 1, 2 and 3 and no further submissions were directed to them. For the reasons already advanced this ground too must fail.
At the commencement of the appeal the father expressly abandoned ground 8.
Thus as we have rejected grounds 1-8 which relate to parenting orders it follows that the appeal in relation to the parenting orders must fail and His Honour’s orders 1-9 inclusive will remain in force.
The appeal against the property orders
The grounds of appeal – property orders
The appeal against the orders made for property settlement fall into two groups. The first is the contention that His Honour erred in setting aside orders made on the 29 August 2006, and the second part of the appeal attacks the discretionary orders made by His Honour under s 79 of the Act having set aside the original orders. It is axiomatic that if we find merit in the grounds relating to s 79A, then we do not need to consider the orders made by his Honour under s 79. If we do not find merit in the grounds which relate to the setting aside of the orders, then we will need to consider the matters raised in relation to his Honour’s exercise of discretion under s 79.
In setting aside the orders of 29 August 2006 His Honour made the following orders in relation to property:
(10)Pursuant to s 79A of the Family Law Act 1975 (Cth) the orders made on 29 August 2006 are set aside.
(11)To effect a property division between the parties in accordance with s 79 of the Family Law Act 1975 (Cth) the husband shall pay to the wife within 42 days of the date hereof the sum of $205,370.
(12)Otherwise each of the parties be and is hereby declared to be the owner both at law and in equity of all the property in his or her possession or control including in the case of the husband that he is entitled both at law and in equity to the property known as [D, former matrimonial home] in the Australian Capital Territory.
(13)Each of the parties will indemnify and keep the other indemnified in respect of any debt owing by that party to any other person (including in the case of the husband, any liability that may arise in relation to the husband’s mother’s estate).
(14)Otherwise each of the parties will retain any interest he or she may have in any superannuation fund or as a result of any entitlement deriving from any statute.
(15)The husband will endeavour to locate and if he is able so to locate will return to the wife her engagement and wedding ring and will do so within a period of 42 days from the date of these orders.
(16)If the husband is unable or unwilling to make the payment referred to in Order 11 above, within the period designated, unless the parties otherwise agree to extend the period, each of the parties will do such things as may be necessary to cause the property to be sold and upon completion of the sale of the property the parties will cause from the proceeds of sale a sum to be paid to the wife such as would provide her (taking into account the other assets and liabilities referred to in the schedule of assets and liabilities in my judgment delivered on 23 September 2009) so that she holds 60 per cent of the total property (excluding superannuation).
…
The trial judge’s reasons – property orders
Section 79A(1)(a) of the Act states:
(1)Where, on application by a person affected by an order made by a court under s 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance…
…
the court may, in its discretion, vary the order or set aside the order and, if considered appropriate, make another order under s 79 in substitution for the order so set aside.
His Honour summarised the issues before him, explaining the mother sought to set aside the orders on the basis that there had been a miscarriage of justice because:
a)The father misrepresented that he owed money to his mother (now deceased);
b)The father misrepresented the nature and value of his superannuation entitlements;
c)The father’s alleged violence towards the mother and towards the children and his alleged holding of E “hostage” constituted duress which overbore the mother’s will, as a consequence of which she signed the consent orders.
His Honour then went on to describe that the orders sought to be set aside provided that the mother should receive the sum of $25,000 and that otherwise the property and any other debts would remain with the father. His Honour noted that the assets and liabilities of the parties, exclusive of the amount of money asserted by the father that he owed to his mother, had a net value of $622,535 together with superannuation of $97,353.
His Honour noted that the parties were together for a period of approximately 14 years. During this time the father was in employment with the New South Wales Police Force and then the Public Service. The mother worked from time to time although she was the primary carer for the children and His Honour found that save for external contributions it was not seriously asserted that he should find other than that the parties had contributed equally to the acquisition, conservation and improvement of their assets.
His Honour pointed out however, that this was a case where there were significant external contributions. The father asserted that his mother advanced the sum of $235,000 which was secured by way of mortgage over a property in F owned by the father and the mother. She subsequently advanced a further sum of $485,000 which was again secured by way of a second mortgage. His Honour noted that if the mortgages were valid and enforceable, and likely to be enforced, even if he were to disregard the reported interest attributable on the mortgages, the principal amounts repayable alone would diminish the pool of assets for division between the parties to a point of insignificance.
His Honour explained the background which was, that in 1992 the year after the parties married the father asserted that he borrowed $235,000 from his mother and executed a mortgage to that effect. The mother asserted that she understood this to be a gift and in exchange for this gift the father had waived his right to inherit an interest in his mother’s home. The mother says the first knowledge she had of the mortgage was when it was listed in the father’s financial statement. In 1996 the father asserted that he executed a mortgage in favour of his mother in an amount of $485,000. This mortgage was said to be repayable by 31 December 2005 or upon an earlier demand with 7 per cent interest (a dispute emerged in the proceedings as to whether the interest was simple interest or compound interest). Again the mother contended that she had no knowledge of this mortgage until it was referred to by the father in the application for consent orders.
The parties separated under one roof in July 2006 and the father asserted that his mother made an oral demand for repayment of the loan in August 2006. His Honour found that there was no evidence of any repayment being made. Shortly thereafter following an incident involving the father, the mother left the matrimonial home with E and their older daughter. The father sought legal advice and the parties signed consent orders in relation to parenting and property issues. His Honour noted that the circumstances in which the father presented the consent orders to the mother were contested. The father said he gave them to the mother after they had discussed and agreed upon the property and parenting arrangements and organised a Justice of the Peace to witness it. The mother said that the father threatened if she did not sign the orders that he would retain E and that he would never allow the mother to see the children again and that she would otherwise get nothing from a property division.
As part of the allegations by the mother of intimidation and assault which we previously referred in relation to the parenting orders, one of them involved the mother alleging the father threatening her that if she did not tell the Child Support Agency they had a private agreement that he would quit his job and disappear and that during the telephone call to the Child Support Agency he is asserted to have grabbed her hair until she told them they had a private agreement. All these allegations were denied by the father.
In November 2006 the father’s mother died leaving the father and his sister as executors. His Honour found that there was no evidence that probate had been granted or that a solicitor had been instructed to commence work on the administration of the estate. He further found that there was no evidence of a demand for any repayment of the alleged loans due from the father to the estate.
The effect of the property orders was that all the mother received was a payment of $25,000. If the father’s contentions were correct and sums of money were due and owing to his mother and he was required to pay them, then there would be virtually no property and the orders providing for $25,000 to be paid to the mother would be orders which were just and equitable in all the circumstances. Implicit in that scenario is that there would be no miscarriage of justice in terms of s 79A(1)(a).
Part of the mother’s case involved an assertion that she had acted under duress as a consequence of the father’s intimidating and violent behaviour. If the mother was successful in establishing duress then she may initially satisfy the provisions of s 79A(1)(a) but, if the father was correct about the money owing to his mother then it is unlikely that the Court would at the second step, vary or set aside the order or make another order under s 79 in substitution because it would have been a just and equitable order at the time of the order was entered into. In this way the question of duress alone has less cogency than other factors in s 79A(1)(a).
His Honour then set out the law and noted that s 79A(1) is a discretionary remedy and that if the effect of setting the order aside would be simply to produce a pool of property no different or little different from that which had been asserted as available for distribution in the original consent orders then little purpose would be gained from the exercise of that discretion in favour of the mother.
His Honour also noted that if there was a difference, even a significant one between what had been represented to the mother as owing and what was in fact owing, there would be little point setting aside the orders because there would still be no net property available for distribution.
His Honour then determined to approach the matter in the following way:
·To consider and define whether the mortgages were advances made and genuine transactions
·To consider the terms of the mortgages themselves to determine whether an amount or amounts were due in respect of each mortgage either for principle or interest.
·To consider the effect of the Limitation Act 1969 (NSW)
·To consider the effect if any on the fact that subsequent to the consent orders the father’s mother had died.
·If there was a legal liability due from the father to his mother’s estate whether such liability was proper to be taken into account in relation to the division of property between the father and the mother.
Findings by the trial judge
His Honour found that not withstanding the mother’s challenge it became clear during the course of evidence that it was more likely than not that the money asserted to have been advanced by the father’s mother was advanced. His Honour accepted the evidence of the father and accepted that the advances were made by his mother.
His Honour found that the mortgage documents on their face appeared to be genuine and accepted the evidence of the father that the mortgages did exist, were contemporaneous with the advances, and were genuine to the extent that they were intended to create a legal liability.
As far as the mortgage first in time was concerned, His Honour found that the relevant clauses of the mortgage required the mortgagor to repay the advance together with all interest and other monies due within three months of the date of service on the mortgagor of written notice from the mortgagee requiring the advance to be repaid. His Honour also found that the mortgage provided that no interest would be payable unless the mortgagee served a written notice requiring interest to be paid and if a default occurred the whole of the secured monies including interest would at the option of the mortgagee become due and payable immediately. His Honour found, and it was not the subject of challenge, that the option referred to, namely to require the advance to be paid was not exercised by the father’s mother prior to her death.
His Honour also found the father’s actions in dealing with the property, by selling it, constituted default and this default occurred without the consent in writing of the mortgagee. His Honour found that the events constituting the default were known to the father’s mother and that no action was taken by her until a conversation which occurred in around August 2006 when the father asserted that his mother orally requested that a sum of $1,354,550 be repaid for both mortgages.
His Honour found that he was satisfied that the conversation had occurred but that there was no evidence that the father’s mother as mortgagee made a written request for the money owed pursuant to the relevant clauses of the mortgage. None of these matters are the subject of dispute in the appeal.
His Honour then turned to the mortgage second in time. He found that the mortgage provided for the principle sum of $485,000 and all other monies secured including must be paid on or before the 31 December 2005 or upon earlier demand. He further found that the mortgage required interest to be paid “on the principle sum or on so much thereof for the time being shall remain unpaid calculated on annual rests, and upon any judgment or order in which this or the preceding covenant may become merged at the rate of seven percent per annum”.
His Honour found that the father had represented to the mother at the time the consent orders were entered into that interest was payable. His Honour found that contrary to the father’s contention it was not compound interest which was implicit in the amount the father contended was owing to his mother. His Honour found that it was more likely than not that the father misconstrued what the nature of the interest was. This matter was the subject of one of the grounds of appeal but for reasons which we will explain later we do not think it affects His Honour’s decision, nor ours.
In relation to the mortgage first in time, His Honour found that no written notice was given by the father’s mother prior to her death and although the estate could exercise the option of calling in the debt, it had not done so and the limitation period had not yet commenced and no interest was yet payable.
His Honour found that the situation was different in relation to the mortgage second in time and that the principal would appear to be recoverable and not affected by s 42(1) of the Limitation Act 1969 (NSW). His Honour found pursuant to that Act that the only interest capable of being recovered from the father’s mother’s estate was interest accrued at 7 per cent on annual rests from 1 July 2004. His Honour calculated that to be $169,750.
In our view it is clear that the cross examination referred to in the previous passages accepts as its underlying basis that there were advances and that the mortgages were valid and enforceable if demands were made in accordance with the mortgage. It is clear that the gravamen of the cross examination was to establish as part of the factual matrix that although there were advances and properly drawn mortgage documents the facts surrounding them provided the factual planks for a submission that there was no obligation on the father to repay and that at the relevant time of the making of the consent orders he was aware of it.
The cross examination in summary, established that inter alia:
·That at least one of the mortgages was not stamped;
·That the mortgages were not registered against the properties secured;
·That no written notice had ever been made to enforce;
·That no repayments of principal interest had ever been made or provided in written form;
·That there were no written instructions from the mortgagee to consent to other borrowings being secured against the property;
·A failure to disclose to commercial lenders the material fact that the property on which their security was to be registered was already heavily secured;
·An admitted failure to advise the banks in the face of an obligation to do so;
·A failure to advise his fiancé of the fact that he owed his mother’s estate $1.3 million dollars; and
·A failure with his sister to apply for probate in relation to his mother’s estate.
In our view whatever the state of the case at its opening may have been, the passages to which we have referred to and the matters summarised, clearly went to the issue of whether the obligation would be enforced and not solely whether the advances had been made or whether there was a mortgage capable of being legally enforced. The factual matrix underpinning the ultimate conclusion of His Honour that the obligations were not likely to be enforced was established. It was not necessary for Counsel to do more than put the facts to the father which would support a legal conclusion, and he was not obliged to put the legal conclusion (that there was no obligation to repay) to the father. Thus, we do not consider that the appellant has established that there was a failure to accord natural justice because the case of the mother was not put to him.
In addition, we do not agree with the submission of the appellant that there was an ambiguity in the mother’s final submissions at trial. It is clear that the passages that we have referred to in cross examination were based on the underlying assumption that the advances were made and that the documents were valid. Although relying on various submissions, Counsel for the mother squarely put the gravamen of his case to His Honour when he said “Your Honour, fourthly it’s my submission that it’s open to you to find that whatever their status, the so-called loans will not be called upon or recovered”.
In argument in the appeal, Senior Counsel for the father asserted that he could not meet a case that was only put in final submissions. However as we pointed out in argument, it was available to Senior Counsel for the father to raise this with His Honour and seek to reopen if there was further evidence which he might call on this issue. Senior Counsel’s response that the onus was on the mother to prove her case and not on the father only highlights the forensic choice that was made, not the options that were available.
In our view, the facts which underpinned this conclusion were put to the father in cross examination and what His Honour might properly conclude from the facts was raised in final submissions. It was not necessary for Counsel to put the conclusions to the father for natural justice to be accorded.
Grounds 13.1, 13.2, 16 & 17
To the extent that the appellant relies upon errors by His Honour in drawing inferences as a consequence of the failure to call evidence from the appellant’s sister, (grounds 13.2 and 17) we will deal with them when considering the other major submission of the appellant namely the submission that there was a transposition of the dates of hearing to the date of consent orders by His Honour.
The alleged transposition of the date of hearing to the date of the consent orders
The jurisprudence as to the time at which a miscarriage of justice pursuant to s 79A(1)(a) must occur is well established. The miscarriage of justice must have occurred at the time of the making of the orders sought to be set aside, in this case, 28 August 2006: Mollier and Van Wyk (1980) FLC 90-911 at pp 75,767-75,768; Public Trustee & Gilbert (1991) FLC 92-211 at pp 78422, 6-427 and 78428.
The appellant’s argument has two parts to it. The first is that His Honour drew inferences from events that had occurred after the making of consent orders such as the failure to obtain probate, the failure of the father to relinquish his office as co-executor of his mother’s estate and the failure of the estate to call in the debt when the time to determine whether there was a miscarriage of justice was at the time of the consent orders.
The second part is that if the advances were genuine and if there was a valid enforceable agreement (as His Honour found) then because the decision whether or not to call in the loan was that of the father’s mother and not of the father, His Honour could not have found as a fact or as a conclusion that the father “knew or ought to have known” that the debt was not likely to be enforced.
There is a third and related part to the appellant’s argument which is that it was incumbent on the mother to put to the father that the valid and enforceable liability to his mother was unlikely to have been enforced at the time of the consent orders.
Whilst we have previously dealt with the question of whether the obligation to repay was put to the father this is a slightly different argument as we perceive it, requiring the proposition to have been specifically put to the father that he knew it was unlikely to have been enforced at the time of the consent orders. However we think it clear that the cross-examination referred to in paragraph 135 was directed to the position at the time of the consent orders.
Evidence of what transpired after the consent orders
The consent orders were entered into on 28 August 2006 and the father’s mother died in November 2006. It was an accepted fact that no steps had been taken by the father’s mother at the date of her death to legally enforce the obligations contained in the mortgages.
At the time of the conclusion of the hearing in December 2008, 2 more years had elapsed and still no final demand had been made. Indeed, despite Senior Counsel for the appellant asserting that it would not be necessary within a family arrangement, the evidence did not establish that any arrangement for repayment of the loan had been made. This included as His Honour found, a failure to apply for probate 2 years after the father’s mother’s death.
We agree with Senior Counsel for the father that His Honour was obliged to make findings at the time the consent orders were entered into. Although His Honour considered subsequent matters they were unnecessary as there was plenty of evidence in our view to support the finding that the father knew or ought to have known at the time he entered into the consent orders that the obligation contained within the mortgages would not be enforced.
Specifically the unchallenged evidence that:
·The mortgage first in time provided that default occurred if the property was disposed of without the written consent of the mortgagee or sale of the property without such consent occurred in 2003 prior to separation of the parties. No action was taken by the father’s mother on this default by way of any written notice.
·The mortgage second in time was entered into in July 1996 with the former to be repaid including any interest by 31 December 2005 or by earlier demand.
·No payment of principal or interest had been made by the time of the consent orders.
·No action was taken by the mortgagee by August 2006.
·Prior to the consent orders of 2006 the father applied twice to the Bendigo Bank in August 2004 and September 2004 for overdraft limits and did not disclose either mortgage to that bank.
·The father said that he “couldn’t remember” whether he disclosed the loan to the Commonwealth Bank on borrowing monies to build the home.
·The father conceded that it was misleading not to have advised the bank of the borrowing from his mother but said that he had no dishonest intentions towards the bank.
·At least one of the mortgages was not stamped and neither were registered.
·The father conceded that the easiest way to make it apparent that his mother required the loan to have been repaid would have been to have obtained a written notice from her but that never occurred.
·The father had not bothered to read the mortgage to see what it really contained about repayment or conditions.
Having regard to these matters in our view His Honour was entitled to draw the inference from the evidence that at the time of the entering into the consent orders the father knew or ought to have known that the mortgage debt was not likely to have been enforced and the representation to the mother that it was an enforceable debt was a misrepresentation.
The ground as set out and argued was that His Honour made a finding about whether the liability was likely to be enforced at the date of hearing, and simply has posed it to the date of the consent orders. In our view it is clear that His Honour’s findings, notwithstanding his finding about the position at the date of hearing, was a finding about the father’s state of mind and misrepresentation to the mother at the time the orders were made. This is clear from paragraph 125 of the Reasons for Judgment where His Honour said:
However, in conformity with my findings above, the father at that time either knew or ought to have known that the mortgage debt was not likely to be enforced and his representation that it was an enforceable debt was therefore a misrepresentation. (our emphasis)
For those reasons in our view these grounds must also fail.
To the extent that it is asserted that Counsel for the mother did not put this precise proposition to the father, this assertion falls to be answered in the way we have dealt with the other arguments about “puttage”. That is, Counsel was not required to put the conclusion to the father but was entitled to ask His Honour to draw inferences to arrive at a conclusion from evidence of matters that were put to the father in cross-examination.
The appellant contended further in Ground 11 that the father could not form a view about the enforceability of a loan which could only be enforced by a third party. We do not agree. His Honour was entitled to draw inferences from the evidence. His Honour was concerned with the father’s belief as to the facts and what he represented to the mother. The evidence to support the father’s state of mind, particularly, but not only his dealings with the banks entitled his Honour to make the finding he did.
Ground 15 was not taken further in submissions but insofar as it contends an implicit admission by the respondent on account of signing the consent orders, there can be no admission by the respondent on the information contained in the Application for consent orders, where the basis upon which those orders had been entered into includes a misrepresentation as to liabilities.
Ground 12 asserts that His Honour erred by failing to consider what order he would have made pursuant to s 79 of the Act at the time of the consent orders and without doing so it was impossible for him to conclude that the orders made gave rise to a miscarriage of justice. This ground requires little analysis because it must be abundantly clear that in light of His Honour’s findings in relation to the mortgage liabilities the payment to the mother of $25,000 out of a pool of $804,990 (as set out in the application for consent orders) would have been manifestly unjust and represented 8.47 per cent of the asset pool.
Ground 14 asserts an error by His Honour in failing to find there was compound interest. We do not need to deal with this ground further as in his written submissions the appellant conceded that this ground if successful only supports a conclusion of higher indebtedness and would only have relevance if the orders were set aside. It thus becomes unnecessary for us to consider this ground any further.
Grounds 18, 19 and 20 are directed to the orders made by His Honour under s 79 and contend that:
· His Honour failed to take into account the contribution by the appellant by his late mother as a contribution that represented an amount in excess of net property of the parties at the date of the hearing.
· His Honour’s discretion miscarried that in evaluating the contribution made on behalf of the appellant by his late mother he undervalued the extent of the interest forgone.
· That his Honour’s discretionary decision was manifestly unjust and plainly wrong.
The basis upon which a discretionary judgment can be overturned are well known: House v The King (1936) 55 CLR 499; Norbis v Norbis (1986) 161 CLR 513.
His Honour was well aware of the contributions on behalf of the father by the advances from his mother. His Honour made a number of comments about these contributions:
· They constitute on the part of the father a significant additional contribution in addition to his own contributions (Reasons for Judgment, paragraph 145).
· The contributions made by the father principally through his mother’s advances are considerably higher than the mother’s contributions (Reasons for Judgment, paragraph 146)
· The father’s external contributions considerably exceeded those of the mother, their contributions from personal exertion particularly the contributions of the mother as home-maker and parent were for all practical purposes equal or possibly favouring the mother. In conclusion the father’s contributions should be seen as being 70 per cent and the mother’s as being 30 per cent (Reasons for Judgment, paragraphs 148-149).
In coming to this conclusion His Honour was primarily moved by the significance of the contributions made by the father’s mother. Findings in relation to these contributions included:
· the fact they were made by way of loan,
· the fact that interest was payable, and
· the fact that they should not be regarded as liabilities means they should be regarded as significant contributions by or on behalf of the father.
It is apparent that His Honour considered all matters relevant to the advances and the interest and gave considerable weight to the advances in the balancing exercise he ultimately made. Given the other contributions of the parties and the length of their relationship His Honour’s exercise of discretion could not be seen to be manifestly unjust or plainly wrong.
Finally ground 21 says that His Honour erred in principle in the form of order 16 in that he ought to have ordered upon settlement of sale of the home that the mother receive an amount in percentage terms rather than in a fixed sum.
Unsurprisingly given the other matters raised in the appeal little argument was directed to this issue. In Noetel & Quealey (2005) FLC 93-230 the Full Court included the principles generally applicable to the practice of drafting orders based on a percentage entitlement rather than a fixed sum. In paragraph 143 the Full Court said:
143.The practice of drafting orders based on a percentage entitlement rather than a fixed sum to achieve fairness between parties in the event of a sale is subject of many authorities. Those authorities were subject of comprehensive review in Sinclair and Sinclair [2000] FamCA 262. We take this opportunity to repeat that summary and emphasise the importance of the well established principle:
“108.A long line of authority in this Court (Waters and Waters (1981) FLC 91-019 at 76,208; Williams and Williams (1988) FLC 91-959 at 76,940; Docters van Leeuwen and Docters van Leeuwen (1990) FLC 92-148 at 78,024; Little and Little (1990) FLC 92-147 at 78,020; Smith and Smith (1991) FLC 92-261 at 78,759; and Bell and Bell (1993) FLC 92-347 at 79,683) establishes as a clear guideline for the exercise of discretion under s.79 of the Act, that, absent some special consideration (such as a desire by one spouse to retain a particular piece of property, in specie), and particularly where the value of an asset is contentious, or even where it is not but the market for the property is volatile, or there is likely to be a significant time lapse between judgment and sale, and where the value of the asset is to be divided between the parties, the Court should order its sale and the apportionment of the proceeds between the parties rather than order one party to pay to the other a fixed sum representing a notional proportion of its assessed value.
109.Moreover, in Docters van Leeuwin (sic) (supra) at 78,025, the Full Court (Fogarty, Nygh & Rowlands JJ), after citing a passage from the judgment of Mason and Deane JJ in Norbis v Norbis (1986) FLC 91-712 at 75,165-6, said this:-
‘In our view the time has come to regard a departure from a long-standing guideline, such as the one given in Waters, without adequate explanation as a ground for finding that the exercise of discretion has miscarried.’
110.In Bell and Bell (supra) at 79,763, the Full Court (Ellis, Baker & Purvis JJ), after referring to the earlier decisions in Docters van Leeuwin (sic), Little, and Waters (all supra) said this:-
‘We see no reason to depart from the line of authority referred to above. There is always uncertainty in relation to the amount which will ultimately be obtained in respect of the sale of matrimonial property and, in particular, matrimonial real estate.
…
Although the order which the trial judge made was essentially discretionary in nature, in our opinion the authorities above referred to clearly establish that where a sale of property is necessary to satisfy a lump sum order for settlement of property and the calculation of any lump sum payable arises from a finding as to the value of the property to be sold, then the amount to be paid to one or other of the parties following any such sale should be expressed in percentage terms, rather than by way of lump sum payment, unless good and sufficient reasons are given for doing so.
The trial judge gave no reasons for departing from the above principle and, given the facts of the case, we are unable to perceive that there was any justification in law for doing so. For this reason therefore, we consider the trial judge has erred in the proper exercise of his discretion and we would allow the appeal to this extent.’”
We need say no more in this case than that the facts, as conceded by the appellant, are different from Noetel & Quealey. This was a case in which the father wished to retain the matrimonial home and pay a sum to the mother. It forms the exception referred to in Noetel & Quealey where no sale was contemplated and the father wished to retain the property. In any event, order 16 provides for a percentage distribution in the event the father was unwilling to make a payment to the mother. (Amended by the slip rule on 5 November 2009). We see no merit in this ground.
Accordingly, for the reasons given we find that the appeal must fail.
Costs
The appellant conceded in the event he was unsuccessful he could not resist an order for costs. Accordingly, our orders will reflect that the appellant is to pay the respondent’s costs.
MAY J
I agree with the reasons given by the Chief Justice and Benjamin J, that the appeal should be dismissed. I would also order that the appellant pay the respondent’s costs.
I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Benjamin JJ) delivered on 7 June 2011.
Associate:
Date: 7 June 2011
24
20
3