SPEKE & BRYMORE - [2012] FamCAFC 192

FAMILY COURT OF AUSTRALIA

SPEKE & BRYMORE

[2012] FamCAFC 192

FAMILY LAW – APPEAL – CHILDREN – where the father lived in Melbourne and over a year before trial the mother had moved with the child to north eastern Victoria – where the Federal Magistrate made orders for the child to live with the mother and to spend time with the father each alternate weekend – where the father alleged the Federal Magistrate erred in not ordering the return of the child to Melbourne, despite at trial not strenuously pursuing the child’s return to Melbourne – where the father alleged bias on the part of the Federal Magistrate for refusing to disqualify himself at trial, for accepting evidence of the mother and her witnesses over evidence of the father and his witnesses, and making numerous “wrong” findings on the evidence before his Honour – where the father alleges the Federal Magistrate failed to take into consideration weaknesses, errors and indications of bias in the family report – no merit found in any ground of appeal in relation to parenting issues – appeal in relation to parenting issues dismissed.

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the Federal Magistrate made orders requiring the father to pay the mother the sum of $152,900 and for the mother to contemporaneously withdraw two caveats lodged over the father’s home – where the father alleged the Federal Magistrate erred by failing to take into account the evidence as to the mother’s pension and benefits when considering the income disparity of the parties – where the father alleged the Federal Magistrate erred in his refusal to take into account a property valuation procured by the father – where the father alleged the Federal Magistrate made “wrong” findings in relation to the father’s savings and loans from his sister – no merit found in any ground of appeal in relation to property settlement issues – appeal in relation to property settlement dismissed.

FAMILY LAW – APPEAL – COSTS – written submissions sought.

Family Law Act 1975 (Cth)

Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Hickey and Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
S S Hontestroom v S S Sagaporack [1927] AC 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Ors (1999) 160 ALR 588
Wells and Wells (1977) FLC 90-285
Zappacosta and Zappacosta (1976) FLC 90-089

APPELLANT:

Mr Speke

RESPONDENT:

Ms Brymore

FILE NUMBER:

MLC

7691

2009

APPEAL NUMBER:

SOA

2011

DATE DELIVERED:	20 November 2012
PLACE DELIVERED:	Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Finn, Strickland & Forrest JJ

HEARING DATE:

14 February 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

6 April 2011

LOWER COURT MNC:

[2011] FMCAfam 299

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Baker

SOLICITOR FOR THE APPELLANT:

Xerri Rubinstein & Co.

COUNSEL FOR THE RESPONDENT:

Mr Arnold

SOLICITOR FOR THE RESPONDENT:

Rochelle Belcher

Orders

The appeal be dismissed.
Within twenty-one (21) days of the date of these orders the respondent mother file and serve written submissions in relation to the costs of and incidental to the appeal.
Within fourteen (14) days of the receipt by the appellant father of the written submissions of the respondent mother the appellant father file and serve written submissions in response.
Within fourteen (14) days of the receipt by the respondent mother of the written submissions of the appellant father the respondent mother file and serve any written reply thereto.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Speke & Brymore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: MLC 7691 of 2009
File Number: SOA 35 of 2011

Mr Speke

Appellant

And

Ms Brymore

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 4 May 2011 Mr Speke (“the father”) appeals against parenting and property settlement orders made by O’Dwyer FM on

6 April 2011. The respondent in the appeal is Ms Brymore (“the mother”), and she opposes the appeal.
The parenting orders relate to the parties’ only child, I (“the child”), born in November 2007, and to summarise they provided for the mother to have sole parental responsibility for the child, for the child to live with the mother, for the child to spend time with the father each alternate weekend from Thursday 3pm to Monday 3pm, and upon the child commencing school each alternate weekend from Friday 6pm to Sunday 4pm. Various orders were also made for the child to spend time with the father on special days and during school holidays. The property settlement orders primarily required the father to pay the mother the sum of $152,900, and contemporaneously the mother was to withdraw two caveats lodged over the father’s home.
By letter dated 31 May 2011 the Independent Children’s Lawyer (“ICL”) advised the Court that she was not funded for the purposes of the appeal and thus she has not filed any submissions and she did not appear at the hearing.

Background

At the time of trial the father was 46 years of age and the mother was aged 30 years.
According to the Federal Magistrate’s findings the parties began their relationship in approximately November 2003, commenced cohabitation in December 2003, separated under the one roof in May 2009, and physically separated on 5 July 2009.
The mother commenced proceedings in August 2009.
In March 2010 interim orders were made by Monahan FM. They provided for the parties to have equal shared parental responsibility for the child, for the child to live with the mother in north eastern Victoria, and for the father to spend time with the child four nights per fortnight.
The matter came before O’Dwyer FM for final hearing on 28 and 29 October and 1 November 2010. His Honour made orders and handed down his reasons for judgment on 6 April 2011.

Reasons for judgment of the federal magistrate

Parenting

The Federal Magistrate commenced his reasons for judgment by noting that the main focus of the proceedings was the parenting issues, and more specifically whether, as sought by the father, there should be equal shared parental responsibility for the child and an equal time arrangement for the care of the child. His Honour noted that the mother had initially sought an order for equal shared parental responsibility but changed her position after receiving the family report, which recommended sole parental responsibility be given to her.
The Federal Magistrate first outlined counsel for the father’s criticisms of the family report writer, Mr N, namely that he had reached “devastating conclusions” after observing the parties for only approximately one hour. Counsel for the father also challenged Mr N’s expertise as he was not a qualified psychologist, however, the Federal Magistrate had “no hesitation in accepting him as highly qualified and experienced in the area in which he is employed by this Court”. Upon hearing all the evidence, his Honour determined Mr N’s conclusions showed good judgment, perception and intuition.
His Honour went on to outline the evidence of three specific incidents.
The first was “the hospital incident” when the child became seriously ill and was admitted to the W Hospital. Upon the father attending the hospital there was a dispute about which parent would spend the night at the child’s bedside. According to hospital records, the father’s insistence that he stay was “accompanied by threats to have his solicitor involved, to call the police and a persistent assertion that he had 50/50 rights to be with the child” and, although the father eventually agreed not to stay the night, the mother later woke to find the father sleeping on the bed with the child. The Federal Magistrate accepted the submission of the ICL and the family consultant that this incident highlighted the conflict between the parties, the father’s inability to put the child’s needs before his own emotional needs, and his inability to surrender his sense of proprietary right in the child.
The second incident was a handover captured on a video taken by the father’s sister’s partner to demonstrate the distress of the child at changeover.

His Honour stated he was “shocked” by the video, which displayed “an emotionally indulgent father, supported by his sister and her partner, with excessive cuddling and kissing and urging to the child to go to the mother, and promising that she would see him again and that everything would be okay if she went to the mother”. The Federal Magistrate found it was “obvious that the child reacted the way she did because she was reflecting the anxiety of her father about going to the mother” and his Honour was concerned because 92 changeovers had allegedly taken place with that same result, which the family consultant said would have “a very detrimental affect [on the child], both in the short term and the long term”. His Honour again expressed concern about the father’s inability to put the child’s emotional welfare above his own. Furthermore, his Honour considered the incident reflected poorly on the father’s credit because he maintained he was unaware the video was going to be taken when there was evidence it was discussed prior to the event, and the event had been recorded without the mother being consulted and without her agreement.
The third incident was “the bribe” which comprised an offer “for the mother to surrender the child and get out of the child’s and the father’s life for a sum of $200,000”. The mother alleged that this offer was made to her by the father, whilst the father alleged that the offer was made to him by the mother. The Federal Magistrate was “more than satisfied” that the offer was made by the father to the mother, given the mother’s credibility as a witness and the father’s “proprietary approach” to his relationship with the child.
The Federal Magistrate then went on to outline the position of the ICL, which reflected the family consultant’s recommendation that sole parental responsibility be given to the mother.
His Honour found “[t]hroughout the hearing, persistently and with no restraint, all of those on the father’s side, including his Counsel and his witnesses, expressed their views in terms of the father’s rights and were aggrieved by what they saw as an infringement of those rights by a denial of an immediate equal shared care arrangement”. The Federal Magistrate also noted the father had “expressed in the strongest terms the attraction to the mother as being someone who could produce for him a child (or children)” and that, being the only child in the father’s family, all the focus of the paternal family was on the child to the point his Honour considered their focus was “obsessional” and “extremely unhealthy”. Furthermore, his Honour outlined the long standing issues between the mother and the paternal grandmother, particularly the paternal grandmother’s refusal to abide by the mother’s requests in relation to the child’s food allergies, which his Honour found “in effect amounted to disenfranchising the mother in her role as a parent”.
It was on the basis of this evidence that the Federal Magistrate concluded that the presumption of equal shared parental responsibility should be rebutted.
His Honour then turned to consider whether the child should spend substantial and significant time with the father. His Honour’s conclusions in relation to the relevant s 60CC considerations can be summarised as follows:
·His Honour found the child was “too young to express any view”.
·The Federal Magistrate found the child had a strong and meaningful relationship with each parent, but the father’s “intensity and obsession” was not conducive to the child’s emotional wellbeing, especially when it was reinforced by the paternal family. In contrast, his Honour found the child had an “excellent relationship” with the maternal grandparents who also resided in north eastern Victoria and gave evidence demonstrating their understanding of the importance of the child having a continued relationship with the father.
·The Federal Magistrate was of the view the father would not frustrate the child’s relationship with the mother when constrained by Court orders, and was satisfied the mother showed comparatively greater insight into the need for the child to maintain a meaningful relationship with the father.
·Aside from his Honour’s reservations about the father’s capacity to put the child’s emotional needs before his own, the Federal Magistrate found the father was a caring and diligent father, anxious to be involved in his child’s life.
·His Honour had no concerns about the mother’s parenting capacity.
·The Federal Magistrate noted the “considerable distance” between the parents’ residences, but determined status quo had been established since the mother and child had been settled in north eastern Victoria for more than one year and it would not be in the child’s best interests to be forced to return to Melbourne. Whilst the father acknowledged he did not apply in a timely manner to have the child returned when the mother and child first moved, at the hearing the father only made a passing reference to having them ordered to return to Melbourne.
·His Honour determined the “reality of the distance” between the parties’ residences meant there was no prospect of a shared care arrangement. His Honour instead proposed to continue the existing interim orders and provide for the child to spend time with the father from Thursday afternoon to Monday afternoon, and then once the child commenced school from 6.00pm Friday until 4.00pm Sunday, as well as telephone communication twice weekly. The Federal Magistrate acknowledged the father and his family would see that arrangement as an “infringement on his rights to have the child”, but his Honour noted the purpose of the legislation was to ensure the child had the benefit of a meaningful relationship with the father and given that relationship already existed it was “unlikely to be diminished by this arrangement”.
·The Federal Magistrate was of the view the father would return to court where his views conflicted with those of the mother.
Ultimately, the Federal Magistrate concluded that, whilst the father and his family “have a deep and abiding love of the child and are most anxious to play a significant role in her life, the conduct of the father to date has not exhibited the necessary insight and cooperation to justify a shared parental responsibility order or a shared care regime”.

Property settlement

Turning to property settlement issues, the Federal Magistrate noted the father’s initial position would see the mother take “very little from the relationship”. However, when pushed in cross-examination the father offered the mother $100,000 in open court, which his Honour took to mean the property settlement orders sought by the father were that the mother be paid $100,000 in full settlement of her property claim. For her part the mother sought an effective equal division of the parties’ property pool.
In identifying the parties’ assets and liabilities, the Federal Magistrate accepted the valuation of the property at T (“the T property”) as at the date of hearing, namely $540,000. Whilst it was the father’s submission that he still owed interest to his sister for loans of $7,500 in 1999 and $35,000 in 2000, the Federal Magistrate was not presented with any documentary evidence in support of this claim. The Federal Magistrate was also satisfied the father had significantly more savings during the relationship than he disclosed at the hearing, because his savings were $85,000 at 5 November 2008 and he was unable to account for the subsequent dissipation of those savings. Thus, the parties’ assets had a total value of $686,795, the parties’ combined superannuation had a total value of $85,329.56 and, given the parties had no liabilities, the total property pool was $772,125.
Turning to the issue of contributions, the Federal Magistrate found the father was the owner-builder of the T property and he “exacted high standards of construction and finish … over a significant number of years”. On the basis of the father’s photographic evidence, the Federal Magistrate was satisfied that at the commencement of the relationship the father had undertaken “a very significant amount of the work on the property and it was nearing completion at the time of the commencement of the relationship”. Although his Honour accepted the mother’s contention that the father’s photographs were not inclusive of the whole of the property and that other parts were unfinished at the commencement of the relationship, the mother’s evidence did not indicate that she made a “significant level of direct contribution … to the physical amenity of the house”. The Federal Magistrate found the mother contributed her income for the five and a half years of the parties’ relationship and that she contributed as home maker and carer. Weighing all the evidence his Honour determined the mother made a 10 per cent contribution to the parties’ asset pool.
In relation to future needs, the Federal Magistrate considered the most significant factor under s 90SF(3) was that the mother would have care of the child for many years to come. Given the relatively small size of the asset pool and the mother’s income of approximately $550 per week compared to the father’s income of approximately $1,400 per week, the Federal Magistrate determined an adjustment of 20 per cent was appropriate.
Pursuant to s 90SM(3), the Federal Magistrate was satisfied the total “adjustment” of 30 per cent in favour of the mother was just and equitable.
Lastly, his Honour noted that counsel for the mother had sought an order that the earlier payment by the father of $15,000 made pursuant to Monahan FM’s orders of 12 October 2009 be characterised as spousal maintenance because

his Honour had left the characterisation of that payment to trial. The Federal Magistrate noted that in earlier correspondence between the parties’ solicitors the mother characterised the payment as a “partial property settlement”, and

his Honour saw no reason to alter that.
Therefore, based upon the total asset pool of $772,000 (rounded down), the wife’s entitlement was $230,100 but she was to take the Honda motor vehicle, her superannuation, her partial property settlement and her jewellery (which totalled in value $78,695) and the father was required to pay her $152,900 (rounded down).

Orders made 6 April 2011

O’Dwyer FM made the following orders:
1.The child of the relationship, [I], born … November 2007, live [sic] the mother.
2.The mother have sole parental responsibility for the child.
3.Until the child attends full-time school, the father spend time with the child as follows:
a) on each alternate weekend from Thursday 3 pm until Monday
3 pm;
b) on Father’s Day from 3 pm the day before Father’s Day until
3 pm on the Monday after Father’s Day, and in the event that the father’s time with the child falls on Mother’s Day then his time on that weekend be suspended from 4 pm the day before Mother’s Day;
c) at Christmas at times agreed, but failing agreement from
3 pm 24 December 2011 until 3 pm 25 December 2011 and each alternate year thereafter and from 3 pm on 25 December 2012 until 3 pm 26 December 2012 and each alternate year thereafter,
d) for two non-consecutive weeks over the long summer holidays at times to be agreed;
e) at other times as may be agreed in writing.
4. Upon the child commencing full-time school, the father spend time with the child as follows:
a) from 6.00 pm on Friday to 4.00 pm Sunday each alternate weekend;
b) for one week in each term school holiday, and failing agreement for the first week;
c) during the long summer holidays for one half of those holidays at times to be agreed;
d) those special days as provided for in Orders 3(a) and (b) above, save that the end of the father’s time on Father’s Day shall conclude at 4.00 pm; and
e) at other times as may be agreed in writing.
5. The father be able to communicate with the child between 6.00 pm and 6.30 pm each Tuesday and Thursday of every week by the following means, or any other that may be agreed between the parties:
i. telephone; and
ii. Skype, so long a [sic] the cost of equipment and associated costs necessary to implement this medium be paid by the father.
6.All changeovers shall occur at an agreed location and in default of agreement, the [E] Park.
7.The mother and father shall keep each other informed without delay of any illness or injury suffered by the child requiring medical attention whilst in their respective care.
8.The mother shall keep the father informed and provide the father with copies of any reports prepared by the child’s crèche, kindergarten or school concerning the child’s social and academic progress.
9.The order appointing the Independent Children’s Lawyer is discharged.
10.Otherwise all extant parenting applications are dismissed.
Property
11.The father, at the mother’s expense, transfer to the mother by way of partial property settlement the Honda … motor vehicle … presently in her possession.
12.The father, within 45 days of the date of these orders, pay to the mother the sum of $152,900 and, contemporaneously with that payment, the mother provide withdrawals of caveats … lodged over the property situate at and known as [the T property], which property is more particularly described in Certificate of Title Volume … Folio … (the property).
13.The previous payment by the father to the mother in the sum of $15,000 be characterised as a part-payment of the mother’s property entitlement.
14.Within 45 days of the date of these orders the mother collect her personal chattels (if any) from the property at a time and date to be agreed between the parties.
15.Unless otherwise specified in these orders, and save for the purposes of enforcing any moneys due under these or any subsequent orders:
a)Each party be solely entitled, to the exclusion of the other, to all other property (including property in the possession of such party as at the date of these orders);
b)Except as otherwise provided, each party forego any claims they may have to any superannuation benefits falling into or earned by the other;
c)Insurance policies remain the sole property of the owner named therein;
d)Each party be solely liable for and indemnify the other against any liability encumbering any item or property which the parties are entitled pursuant to these orders;
e)Any joint tenancies of the parties in any real or personal property or estate is hereby expressly severed.
…

The father appeals against Orders 1, 2, 3(a), 4 and 12.
We note that for some unexplained reason Order 11 made by the Federal Magistrate is described as “by way of partial property settlement”. The property settlement orders though were final orders, and thus that description is entirely inappropriate, and indeed wrong. However, this was not a matter raised in the appeal by either party and we propose to say nothing further about it.

Grounds of appeal and orders sought

The grounds of appeal as contained in the Notice of Appeal filed by the father on 4 May 2011 are as follows:
1.His Honour failed to take into consideration conduct of the mother which he should have taken into consideration, in particular;
(a)that she had departed from the family home together with [I] and had unilaterally determined the time the child would spend with the father;
(b)that she had departed from [Melbourne] in circumstances when she was employed, received free accommodation, had friends, attended a mothers group, had assistance from her parents who could be comfortably accommodated in her apartment, and had relocated to [north eastern Victoria] with [I] without the [father’s] consent and had determined the time that he could have with the child and
(c)had represented to the [father], to the Court and to the Family Consultant, Mr [N], that she intended to return with [I] to live in Melbourne in the near future; and
(d)that she had failed to inform the Court and the [father] prior to the Court hearing that she had changed her mind about returning to Melbourne well before the Court hearing; and
(e)that she had received payment of $15,000 from the [father] on her representation to the Court and to the [father] that she required the funds in order to obtain accommodation in Melbourne and that she had then used the funds to pay her solicitor’s costs.
2.The Grounds of Appeal in paragraph 1 above are repeated and the [father] says that the failure of His Honour to take the [mother’s] conduct into consideration is an indication of His Honour’s bias against the [father].
3.His Honour failed to take into consideration weaknesses and errors and indications of bias in the report of the Family Consultant, Mr [N], including the following:
(a)Mr [N’s] findings that the father worked 6 days a week and considered it appropriate to let his aged parents care of [I];
(b)That the father’s wish to have the child spend more time with him indicated that the father was not focused on the child’s interest and put his own interests above those of the child;
(c)That Mr [N] failed to take into consideration that the [mother] had herself willingly left [I] to be cared for by the maternal grandmother prior to the [mother] departing from [the T property] and with her own parents when the [mother] was living in [Melbourne] and in [north eastern Victoria];
(d)That Mr [N] had offered no criticism of the mother’s conduct in departing from [Melbourne] and relocating to [north eastern Victoria] in circumstances in which the mother had been employed and had received free accommodation in [Melbourne] and knew that the time the child spent with the father would be affected and that the result would be that the child would have to be transported between Melbourne and [north eastern Victoria];
(e)That Mr [N] had observed the father to act appropriately with the child throughout the interview session and that Mr [N] had recommended that the mother have sole parental responsibility for the child on the basis of Mr [N’s] very brief observation of the father’s conduct at the end of the session and despite the fact that the [mother] had herself requested that she and the father have shared parental responsibility for the child;
(f)that Mr [N] had failed to consider the matters on which the father and mother were able to agree concerning the child and had focused only on the friction between the mother and father;
(g)the Mr [N] had failed to say why he considered a week about contact arrangement for the child to spend time with her parents would not be a child-focused arrangement whereas the child spending considerably less time with the father than with the mother would be acceptable;
(h)Mr [N] had incorrectly believed that the father had not completed a parenting course;
(i)That Mr [N] wrongly considered that the distance between Melbourne and [north eastern Victoria] was a relevant factor in determining whether the child shall spend time with the father on an alternate week basis;
(j)That Mr [N]’s report had been based on the mother’s representation to Mr [N] that she would be returning to live in Melbourne as soon as she was able to do so;
(k)That Mr [N] had wrongly taken into account as a relevant factor that the picture diary presented to him by the father did not contain a picture of the mother.
4.His Honour when questioning Mr [N] indicated a tendency to lead
Mr [N] to a conclusion or reply detrimental to the father and thereby indicated bias against the father.
5.His Honour placed excessive weight on the taking of the video and what the video revealed in determining that the father was unlikely to promote the child’s relationship with the mother.
6.His Honour placed excessive weight on the conduct of the father at changeovers. His Honour failed to take into consideration, alternatively failed to give sufficient weight to the fact that all the witnesses, including the mother had said that [I] was a happy, normally developing child.
7.His Honour placed excessive weight on what had occurred when the child was admitted to … Hospital and was excessively critical of the [father] for having insisted on remaining with the child in the hospital after he had travelled from Melbourne to be with the child, and His Honour incorrectly found that the father had slept on the bed with the child and His Honour showed bias by not taking into account that the mother had also insisted on staying with the child and had slept in the child’s bed at the hospital despite the fact that the mother resided in [north eastern Victoria].
8.His Honour was wrong not to consider:
(a)ordering the mother to return the child to live in Melbourne or, alternatively,
(b)ordering that the issue of the child’s time with the father when the child commences school be considered at or about the time when that happens.
9.The Grounds of Appeal in paragraph 1 above are repeated and the [father] says that had His Honour taken into consideration the mother’s capriciousness concerning whether she would be returning to Melbourne then His Honour should have found that there was a strong possibility that the mother’s place of residence would in the near future be in Melbourne and in the circumstances there was good cause to delay a final decision concerning the child until when the child commenced school.
10.His Honour predetermined the issues of parental responsibility and the time the child should spend with the parents prior to hearing all the viva voce evidence.
11.His Honour displayed bias against the [father] and indicated a tendency not to hear and consider evidence that indicated that the mother and father were able to agree on matters concerning the child when His Honour wrongly:
(a)accused the [father’s] Counsel of misleading Mr [N] to a significant degree during Counsel’s cross examination of Mr [N]; and
(b)wrongly accused the [father’s] Counsel of colluding with the [father] to mislead the Court concerning whether the [father] was in possession of the video.
12.His Honour failed to take into account that the effect of the time which the child spent with the [father] severely limited the contact which the child had with her paternal grandparents and her aunt (the [father’s] sister) and the aunt’s partner.
13.His Honour failed to take into consideration that the mother had told
Mr [N] that she believed the father should have more time with the child.
14.His Honour in his Reasons showed bias, particularly as follows:
[23]His Honour said that with no restraint all on the father’s side including his Counsel and his witnesses expressed their views in terms of the father’s rights in respect of the child.
[24]His Honour said that the father, his parents and his sister focus on the child without restraint and that the focus is obsessional and His Honour further wrongly found that they all only begrudgingly acknowledged that the mother has a role to play in the child’s life.
[25]His Honour said that the paternal grandmother’s attitude towards feeding the child was ‘primitive’. His Honour further wrongly found that the paternal grandmother would not use the food prepared for the child by the mother and further, His Honour wrongly found that the paternal sister’s partner had said words to the effect that the mother should be compliant to the opinions of the paternal grandmother and His Honour wrongly found that the conduct of the paternal grandmother had disenfranchised the mother in her role as a parent. Each of the findings referred to above as being wrong were findings made contrary to the evidence or were not supported by the evidence.
[29(b)] His Honour found that the father’s interest in the child was obsessive and not conducive to the child’s well being and that the father and his immediate family share a sense of grievance against the mother which has its genesis in a very self centred, emotionally indulgent expectation of what they are entitled to. His Honour further found that the father and the paternal grandparents would not encourage the continued relationship of the child with the mother. Those findings were contrary to the evidence and are indicative of bias on the part of His Honour.
[29(f)] His Honour found that the father had failed to put the child’s needs before his own; that finding was contrary to the evidence and was wrong.
15.His Honour erred in finding that the presumption of equal shared parental responsibility had been rebutted.
16.His Honour wrongly found that the mother’s relocation to [north eastern Victoria] was dictated by the mother’s need to find solace, comfort and support of her parents in [north eastern Victoria]. The mother had said that she had moved because her employers were making increasing demands on her time.
17.His Honour erred in not ordering that the child spend time with the father on the child’s birthday.
Property Issues:
18.His Honour erred in failing to take into account that the [mother] received a Family Assistance Benefit $150 per week, a pension of $125 per week and child support payment of $63 per week.
19.His Honour was wrong not to take into consideration the value of the property as at January 2005 when assessing the contributions of the parties at commencement of cohabitation.
20.His Honour was wrong to consider the value of the property at $540,000 (at date of hearing) instead of $500,000 being its value as at the date of separation.
21.His Honour wrongly found that the [father] had not explained the reason for the reduction of the balance of his savings after 5 November 2008. The [father] had produced in evidence copies of bank statements showing withdrawals made by him for the purpose of repaying loans totalling $42,500, which his sister had loaned to him and $2,500 which he said was paid in respect of interest. His sister gave evidence of the making of the loans. Documentary evidence of the payment of the loan amounts was produced. His Honour rejected the evidence of the [father] in part because he had found the [father] not to be a truthful witness. That finding was unwarranted and indicates bias on the part of His Honour. His Honour was wrong to find that the asset pool included $85,000 which the [father] should have in savings.
22.Further to ground of appeal 19 above, His Honour rejected the evidence of both the [father] and of his sister concerning the loans of $35,000.00 and $7500.00 which they had both said the sister had loaned to the [father]. The rejection of the evidence was unreasonable. Documentary evidence in support of the oral evidence had been presented.
23.His Honour was wrong not to take into consideration that the [mother] had failed to disclose her superannuation funds after 2007.
In his Notice of Appeal filed 4 May 2011 the father seeks to maintain orders that the parties have equal shared parental responsibility for the child and that until the child commences full-time school she live with each party on an equal time basis with changeover to occur each Thursday at 4pm. The father also seeks orders that the child return to reside in the Melbourne metropolitan area, that both parties be restrained from removing the child from the State of Victoria without the written consent of the other party, and that the mother be restrained from referring to the child by any name other than the name on her birth certificate. The father proposed that the issue of the time the child spends with each parent once she commences full-time school be determined at or about the time the child commences full-time school.
In relation to property settlement, the father seeks an order that within 45 days of the date of orders the father pay to the mother the sum of $124,728 and contemporaneously the mother withdraw two caveats lodged over the T property, or in the alternative that the matter be remitted to the Federal Magistrates Court for determination by a Federal Magistrate other than O’Dwyer FM.
Otherwise the father proposes that Orders 3(b), (c), (d) and (e), 5, 6, 7, 8, 9, 10, 11, 13, 14, 15 and 16 made by O’Dwyer FM on 6 April 2011 remain in force.

Discussion

It is apparent that not all of the grounds of appeal raise discrete issues and it is convenient to address some of the grounds together in groups. For example, we see it as appropriate to deal with Grounds 1, 8 and 9 together, likewise Grounds 2, 4, 10, 11 and 14, Grounds 5, 6 and 7, and Grounds 21 and 22. The balance of the grounds will be addressed individually.

Parenting issues

Grounds 1, 8 and 9

The gravamen of these challenges is said to be that his Honour erred in not ordering the return of the child to Melbourne. To appreciate the issues involved in this claim it is necessary to consider the sequence of events as follows:
a)The mother left the home of the parties on 5 July 2009 taking the child with her as agreed between the parties. She moved to a suburb of Melbourne which is approximately 30 kilometres away, where she had accommodation and employment.
b)
In a letter sent by the mother’s solicitors to the father’s solicitors on

26 June 2009 foreshadowing the mother’s departure the sum of $15,000 was sought by way of lump sum spousal maintenance to enable the mother and the child to re-establish themselves. The father’s solicitors responded on 3 July 2009 rejecting this claim describing it as “absurd”.
c)The mother filed an Initiating Application on 31 August 2009 seeking orders for property settlement and spousal maintenance, and an interim order for a partial property settlement of $20,000. In her supporting affidavit the mother indicated that the latter amount was made up of $15,000 to enable her to establish rental accommodation in the area where the father still resided and $5,000 for her legal costs.
d)The father filed a Response on 2 October 2009 seeking both parenting and property settlement orders on a final and an interim basis. Significantly, there was no order sought that the child be returned to live in the area where the father remained living, or at all.
e)On 9 October 2009 the mother swore an affidavit for the purposes of the interim hearing which was listed to take place on 12 October 2009. In that affidavit the mother said this:
39.For the last two weeks the child and I have been principally living at [a north eastern Victoria town] on the basis that my employers needed my apartment …. I have made some general enquires [sic] and ascertained that with ease I should be able to obtain employment in my current or better capacity in the [north eastern Victoria] area. It is a high tourist area.
40.I am now desirous of moving to the [north eastern Victoria] area to be close to my parents. With the present circumstances my mother has to travel down to assist me whereas for the short term I would propose living with my parents and she would be readily available. The costs of rental on a permanent rather than short term basis is also more affordable in [north eastern Victoria] than it is in Melbourne.
41.I simply cannot afford to [sic] the set up costs in the Melbourne metropolitan area and I cannot continue to live in my employers’ apartments indefinitely. This was not intended to be a long term arrangement. But the arrangements have also lead [sic] to me being at the “beck and call” of my employers with my mother having to respond with assistance.
42.The drive to [north eastern Victoria] from the Respondent’s home is approximately 3.5 hours. I am aware that this will impact upon the frequency of which the child would see and spend time with the Respondent but I [sic] am [sic] I feel that I now have no other option. I am desirous of the Respondent sending [sic] with the child and will facilitate this within the circumstances to the best of my ability.
Thus, the father was on notice that the mother intended moving to north eastern Victoria with the child.
f)The matter came before Monaghan FM on 12 October 2009, and interim orders were made by consent including for the payment unconditionally of an amount of $15,000 by the father to the mother within seven days. His Honour also listed the matter for final hearing on 11 March 2010. Significantly the only parenting order made was that pending the making of final orders neither party remove the residence of the child from Victoria without the consent of the other party.
There was no injunction sought by the father, for example, preventing the mother from moving to north eastern Victoria with the child despite the father being on notice that that was the mother’s intention.
We also observe that up to this time and continuing the parties had reached agreement about the time the child was to spend with the father.
g)The mother filed a Reply on 26 October 2009 seeking both parenting and property settlement orders on a final and on an interim basis, including that she “be permitted to relocate with the child to [north eastern Victoria]”. As it happened, at this time the mother was in fact in north eastern Victoria with the child staying with her parents. It was not until mid-November though that she decided to remain living there with the child.
h)The father paid the sum of $15,000 to the mother in accordance with the consent order but at a time when she was living in north eastern Victoria with the child. The mother used this money primarily to pay legal costs.
i)From the time the mother and child moved to north eastern Victoria the child commenced to spend four nights each fortnight with the father.
j)On 7 December 2009 an order was made for the preparation of a Family Report.
k)The Family Report was prepared by Mr N and was dated 2 March 2010. In paragraph 11 of that Report the mother is recorded as indicating that living in north eastern Victoria was not a long-term plan at that stage but she was unable to return to Melbourne until she was more “financially stable”.
Significantly the father is also recorded as telling Mr N (paragraph 22) that he would “like Ms. [Brymore] to return to Melbourne, but he does not think she will”, and he added that, “if she chooses to remain in [north eastern Victoria] that a week about arrangement [which is what he was seeking] would actually be ideal and he would seek that hand over occurred midweek”.
l)In an affidavit filed on 18 February 2010 the mother deposed in paragraph 29 that it was not her “intention to make a long term commitment to living in [north eastern Victoria] with [I]”. Further, she said that her relocation back to Melbourne was dependent on a number of factors including finding suitable employment and being able to meet the setting up costs.
m)In the father’s affidavit filed on 4 March 2010 the issue squarely raised by him was not a return to Melbourne by the mother, but that the child live week and week about with the parties.
n)The matter then came before Monaghan FM on 11 March 2010. However, the final hearing was adjourned because of the recognition that more time was required to complete the hearing than was allocated. Accordingly, on that day his Honour made interim orders and adjourned the final hearing to take place commencing on 13 September 2010. Significantly the father again did not pursue any order requiring the mother to return the child to Melbourne and the issues canvassed were whether there would be orders providing for the parties to have equal shared parental responsibility and for there to be equal time. We also note that this was in the context of there being a formal order sought in the father’s documents that the mother return to Melbourne with the child.
The orders made by the Federal Magistrate were that until further order the parties have equal shared parental responsibility, the child live with the mother, and the child spend time with the father each alternate weekend from 3pm on the Thursday until 3pm on the Monday. There was also an order made for the appointment of an Independent Children’s Lawyer.
We observe that the order as to the time the child was to spend with the father formally put in place what had been happening up to that time by agreement.
o)In an affidavit filed on 13 August 2010 the mother again deposed that it was not her “intention to make a long term commitment to living in [north eastern Victoria] with [I]”. She also reiterated that any relocation back to Melbourne was dependent on finding suitable employment in Melbourne and being able to meet the costs of setting up a household.
The mother also deposed that it was her “intention and desire to return to live in Melbourne metropolitan area” and to live within a suburb or two of the father. However, she added the rider that until she was certain of her financial security she would not be relocating. For example, she later deposed that with her then income she could not afford to live independently of her parents, she living with them in north eastern Victoria.
p)In an affidavit filed on 27 August 2010, for the first time the father deposed that the mother should be “ordered to return” the child to the area where he lives. That also became an order that he sought in his Amended Response filed on the same day.
In that same Affidavit he deposed that he had not challenged the mother’s move to north eastern Victoria previously because of the fact there had been an early listing of the final hearing in March 2010. We observe though that when the final hearing was not able to take place at that time and was adjourned to September 2010 there was no application made by the father for the child to be returned to Melbourne.
We also note that the contents of this affidavit do not sit well with the submission of the father before the Federal Magistrate when the final hearing eventually took place, that he prepared his case for that hearing on the basis that the mother would be voluntarily returning to Melbourne with the child.
q)In her case summary filed on 10 September 2010 the mother made it perfectly clear that she intended to stay in north eastern Victoria with the child. In paragraph 6 the mother said she did not propose any changes to the child’s circumstances, and in the orders that she sought she repeated the order that was in her Reply filed on 26 October 2009 and which was not altered in her Amended Reply filed on 13 August 2010 seeking permission to relocate to north eastern Victoria. This again does not sit well with the submission of the father made to the Federal Magistrate at the final hearing about the basis on which he had prepared his case.
r)
Significantly, in the father’s outline of case document filed on

9 September 2010, under the heading “Contentious Parenting Matters” the father says this:
It is submitted that the [mother’s] move to [north eastern Victoria] should not detract from the [father’s] right to have [I] live with him.
The issues squarely raised under this heading are whether there should be equal shared parental responsibility and equal time. This, again, despite in the final orders sought there being an application for the mother to return with the child to reside in the Melbourne metropolitan area.
It is apparent then that the father’s case before the Federal Magistrate was run on the basis that albeit the mother and child had relocated to north eastern Victoria that should not prevent orders being made for equal shared parental responsibility and equal time. This of course is how the Federal Magistrate approached the parenting issues as indicated in paragraphs 6, 10 and 29(d) of his Honour’s reasons.
s)The final hearing took place before O’Dwyer FM on 28 and 29 October, and 1 November 2010. It is unclear from the documents before us why that hearing was adjourned from September, but that would appear to be of no moment in the context of the appeal.
At the commencement of the hearing the Federal Magistrate raised with the mother’s counsel what the mother’s intention was as to where she would be residing, north eastern Victoria or Melbourne. Counsel’s response was that the mother’s intention was to remain in north eastern Victoria until, and if, she can afford to relocate to Melbourne.

With that background we turn to how his Honour dealt with this issue.
During cross-examination of the mother it became apparent that having been in north eastern Victoria for over a year she and the child were well settled there and that her previously expressed intention to ultimately return to Melbourne albeit dependent upon a number of factors including employment and finances, was no longer as strong as it was. Indeed, that was the clear impression formed by his Honour and confirmed by the mother in her further evidence.
Then, his Honour made the following telling statements during the course of the cross-examination of the mother:
HIS HONOUR:        Well, I don’t know where all this line of questioning is going, quite frankly. If it is all designed to show that Ms [Brymore] is a scheming manipulator who has always intended never to return back to Melbourne and she has strung everybody along, well, that may or may not be so but I am concerned – my own concern is just what is in the best interests of the child. And I haven’t heard or read anything that would suggest that there is anything there that would require me to order in the best interests of the child, Ms [Brymore] and the child to return to Melbourne.
…
HIS HONOUR:        She might have been that manipulative, done all those things but now chooses to stay in [north eastern Victoria] – it doesn’t alter anything as far as I can tell.
MR BAKER:Well, it does alter things, with respect, your Honour, because it affects the father’s future – future contact with the child. It has.
HIS HONOUR:        Yes. But that is the history of the matter. That is the reality of the situation he finds himself in.
(Transcript 28 October 2010, page 36, lines 26-33 and 45, to page 37, line 5)
At that point counsel for the mother reminded his Honour, quite correctly in our view, that the father’s application was for “week-about even if the mother is living in [north eastern Victoria]”. This then led to a discussion between his Honour and counsel for the father as to whether given the evidence that was before the Court a week and week about arrangement was warranted.
This interchange indicates quite clearly that his Honour took the view that his task was to decide what was in the best interests of the child based on the child’s circumstances at the time of the hearing. His Honour was plainly aware of the father’s case as to what had happened since separation, although we observe that it was not entirely as suggested by the father in Grounds 1(a), (b), (c), (d) and (e), as we will elaborate on later in these reasons, but his Honour’s approach was to concentrate on what was undoubtedly, on the father’s own case, the primary issues that were in contention, namely, what period of time should the child spend with the father, and whether there should be equal shared parental responsibility. Thus, in his Honour’s reasons for judgment he said the following:
2.It is not an [sic] unfair to say that the main focus to the proceeding was on the parenting issues, which principally focussed on the question of whether there should be equal shared or sole parental responsibility in respect of the child, and whether there should be equal shared care of that child.
…
10.It is to be noted that the father, despite the mother taking the child to [north eastern Victoria], never made application in a timely manner for the forced return of the mother and child to Melbourne pending a final hearing. As a consequence, a significantly established status quo subsisted at the time of the hearing which saw the mother and child resident in [north eastern Victoria]. Whilst a passing request was made for an order requiring the mother to return, this aspect was not prosecuted with any vigour at the hearing and would not, in any event, have been likely to have been successful.
…
29.…
(d)The child has lived now for over a year with the mother in [north eastern Victoria], a considerable distance from the father’s residence in [Melbourne]. When the mother left Melbourne to live in [north eastern Victoria], the father did not apply in a timely manner to have her return. There is now a status quo established which sees the child and mother settled in [north eastern Victoria], with the mother now working. It would be both unsettling, and now impractical, for the mother to be forced to return to Melbourne and such a forced move would not be in the best interests of the child.
This reality was, I believe, acknowledged by the father in how he conducted his case. Although there was a passing reference to having the wife and child ordered back, the hearing did not focus on this in any way apart from levelling criticism at the mother for allegedly misleading both the father and the Court into the belief she fully intended to return to live in Melbourne.
These findings by the Federal Magistrate are undoubtedly correct when viewed in the context of the background outlined above. The father was not concerned so much with whether the mother lived in north eastern Victoria or Melbourne, but was seeking orders for equal time and for equal shared parental responsibility.
Thus, there can be no merit in Ground 8(a).
That the father was not strenuously pursuing a return to Melbourne is also borne out by how he wanted us to take into account the mother’s alleged “deception” in this appeal. In his written submissions he put that “her behaviour and her relocation were critically important to the question of whether the mother could be relied on to encourage [I’s] continued relationship with her father in the future”, and to the question of asking her to return to Melbourne to live. However, this issue was put beyond doubt by the father’s counsel in oral submissions before us when he said this, referring to the order sought for the return of the child to Melbourne:
… it was submitted to his Honour a number of occasions and was not as vigorously contested as the question of how much time the father should have and the question of shared parental responsibility.
(Transcript 14 February 2012, page 15, lines 8-11)
Clearly then, Ground 1 cannot succeed and the premise upon which Ground 9 is based disappears. There is simply no basis to suggest that his Honour “should have found that there was a strong possibility that the mother’s place of residence would in the near future be in Melbourne…”.
As to Ground 8(b) we observe that there were no written or oral submissions put to us in support of this ground, and for that reason alone it cannot succeed. In any event, it is plain that his Honour not only “considered” the order the husband sought, but that he rejected it. His Honour said this in his reasons for judgment:
29.…
(l)There is an obligation upon the Court to bring to an end the litigation between the parties and to make orders less likely to result in continuing litigation (see s.60CC(3)(l) of the Act). It is revealing, in my view, and concerning, that Counsel in final submissions, after arguing for an equal shared parental responsibility went on to say that the question of the future schooling of the child is one that can be considered at a later date, with provision in my orders for leave to make an application at that time. It is illuminating to quote directly what was submitted by Counsel, who, I am sure, reflects that attitude of his client:
MR BAKER:As far as orders for what happens when the child begins school is concerned, I submit, your Honour, that it would perhaps be best to give leave to make the application at the time, for the parties to make the application at the time, if they cannot agree, because, as I say, it is really, on what this court has heard, really unclear whether the mother’s professed wish to remain in [north eastern Victoria] is genuine.
HIS HONOUR:      Sorry. Application for what? To do what?
MR BAKER:An application for an adjustment of the times the parents will have the child, and where the child will live, should be dealt with at a time shortly before the child is due to commence schooling.
HIS HONOUR:    So, as I understand what you’re saying is week-about until the child attends school.
MR BAKER:Yes.
HIS HONOUR:    And then when that event occurs, leave granted to make an application as to where the child should attend school ---
MR BAKER:Yes.
HIS HONOUR:    --- and where the child should live.
MR BAKER:Yes.
HIS HONOUR:    Is that what you’re suggesting?
MR BAKER:That’s correct, your Honour. That’s correct.
HIS HONOUR:    So we’re back here again. Is that what you’re suggesting?
[Original emphasis]

Grounds 2, 4, 10, 11 and 14

These grounds allege bias on the part of the Federal Magistrate. However, it is not the case that we need to address all of these grounds. First, on the resumption of the hearing on the third day of the trial the father’s counsel made an oral application for the Federal Magistrate to disqualify himself from further hearing the matter on the grounds of “ostensible bias”, pre-judgment, and failure to give counsel the opportunity to present his submissions. His Honour refused to disqualify himself, and in effect dismissed that oral application.
The problem for the father in raising these matters again is that there was no appeal from his Honour’s refusal to disqualify himself, and thus, there can be no merit in Grounds 4, 10 and 11, being the very same complaints that were the subject of the unsuccessful application for the Federal Magistrate to disqualify himself, and from which refusal no appeal is brought. Secondly, with Grounds 2 and 14 it is readily apparent that these grounds do not allege apprehended bias, or actual bias as those concepts are understood in the law. What is being suggested is that the Federal Magistrate in failing to accept the evidence of the father and his witnesses in various respects, in accepting the evidence of the mother in those and other respects, and in making findings in favour of the mother against the father, has exhibited bias. To that extent the father’s complaints are misconceived, and they are really complaints that the Federal Magistrate ought not to have rejected or accepted the evidence as the case may be, or not made the findings because they were against the weight of the evidence or were not supported by the evidence. Where these complaints need to be addressed we will of course carry out that exercise, but not with a view to considering whether the Federal Magistrate was biased.
Although we have not included it in the grounds that we are considering here, we observe that Ground 7 is also in this category, but we will address that ground together with Grounds 5 and 6 later in these reasons.
In relation to Ground 2 then, all we need to say is the alleged conduct of the mother identified in Ground 1 was not relevant to his Honour’s determination given the focus of the father’s case as we have outlined above in addressing Grounds 1, 8 and 9. We again observe though that the father has not been entirely accurate in describing the “conduct” of the mother in Ground 1. With sub-paragraph (a), there was no urgent application for example filed by the father seeking different arrangements than were put in place by the parties themselves, and indeed when the matter did come to court on 12 October 2009 there was no order that the father sought in relation to the time that the child was spending with him. The same comment can be made in relation to paragraph (b), but in addition, as referred to already, there was no application by the father to have the child return to Melbourne when the move to north eastern Victoria was made, or indeed to prevent the move to north eastern Victoria. With paragraph (c), what is omitted is that there were conditions that needed to be satisfied before the mother could return to Melbourne, and they were never fulfilled. As to paragraph (d), we refer to paragraphs 34(p), (q) and (r) above which clearly indicate the inaccurate way in which this paragraph was framed. Finally, with paragraph (e), the $15,000 was ordered to be paid to the mother unconditionally and how it was to be allocated was to be determined at trial. Thus the mother was able to use that money in any way that she saw fit.
Accordingly, there is no merit in Ground 2.
Turning to Ground 14, there the father makes a series of complaints that

his Honour made “wrong” findings on the evidence before him. In particular, the findings challenged are those that appear in the following paragraphs of

his Honour’s reasons:
23.Throughout the hearing, persistently and with no restraint, all of those on the father’s side, including his Counsel and his witnesses, expressed their views in terms of the father’s rights and were aggrieved by what they saw as an infringement of those rights by a denial of an immediate equal shared care arrangement.
24.It must be remembered that this child is the only child of the father, that he expressed in the strongest terms the attraction to the mother as being someone who could produce for him a child (or children); that the father’s parents only have one grandchild; and further, the father’s sister has no other related children in her life other than her beloved niece. The focus of all has been on this child and without restraint they seize upon every single moment they have in the child’s company. It is not unfair, in my view, to call this focus obsessional. By way of example, the sister’s partner has recorded 45 hours of video of the child, taken on those few occasions each year when he and the father’s sister visit from Tasmania where they live. The father at interview with Mr [N] produced a large folio of photographs showing the activities that he and the child, and others, have partaken in. It is a family dynamic that is reinforcing in its single focus on the entitlement of the father to his daughter and the resentment they feel towards the mother, who they seem only begrudgingly to acknowledge has a role to play in the child’s life. It is an extremely unhealthy focus for this child’s emotional and psychological wellbeing into the future. Nonetheless, it is the reality of this child’s existence.
25.There were long standing issues between the mother and the paternal grandmother, which revolve essentially around the paternal grandmother’s refusal to abide by the requests of the mother in how the child was cared for when the parties were together. On the mother’s evidence the child suffers from food allergies and requires specific foods which the mother prepared for the child to be given by the paternal grandmother when she was caring for her. However, the paternal grandmother had her own beliefs about what was good for the child and would not use the food prepared and created her own meals which caused difficulties with the child’s wellbeing. The paternal grandmother’s attitude in this regard was, I believe, primitive and the friction between the mother and the paternal grandmother was understandable. The sister’s partner sought to explain the friction as a clash of cultures, which I understood him to be saying that the opinion of the paternal grandmother was, and should be, taken as determinant and the mother should be compliant. This simply is untenable and the mother resented the father’s reluctance and inability to support her against the conduct of the paternal grandmother. The conduct of the paternal grandmother, if not deliberately calculated to do so, certainly in effect amounted to disenfranchising the mother in her role as a parent.
…
29.…
(b)The child has a strong and meaningful relationship with each of her parents. They clearly love her dearly and that love is also clearly reciprocated. In that regard, she is a fortunate child. The intensity and obsession by the father in respect of the child, however, is to a level not, in the long term and, indeed, in the short term as evidenced by the trauma at changeover, conducive to the child’s emotional wellbeing.
The intensity and single minded focus of the father is substantially reinforced by his immediate family to the degree they share the sense of grievance about what, I am sure they feel, is the attempt by the mother to deprive both the father and them of their entitlement to a predominate role in the child’s life. I am satisfied their grievance has its genesis in a very self centred, emotionally indulgent expectation of what they are entitled to by way of the joys associated with having prodigy under their care and influence, and the deprivation they feel when the mother does not accede to their demands.
The maternal grandparents, I am satisfied, have an excellent relationship with the child. Together with the mother, I am satisfied, they actively encourage and facilitate the close and continuing relationship between the child and her father.
The maternal grandfather gave evidence which was compelling. He impressed as an intelligent, considered and insightful man who clearly had the best interests of his grand daughter foremost in his considerations and who strongly supported the father’s continued primary role as a father to the child. He gave me confidence that the child’s present environment where she lives affords the child the loving support of child focused grandparents, a close community and developing friendships. I was also impressed by his understanding and acceptance of the need for the child to have a meaningful relationship with her father, and likewise I was by the maternal grandmother. The three - the mother and the maternal grandparents - I am confident would ensure the continued relationship of the child with her father. The same cannot be said of the father and the paternal grandparents in respect of them maintaining the relationship the mother has with the child.
…
(f) Apart from my reservations about the insight exhibited by the father and his family as to the emotional needs of the child, and my concerns about the proprietary approach to the child and the father’s failure to put the child’s needs before his own, he otherwise is a caring and diligent father most anxious to play a part in his child’s life.
I have no concerns about the mother’s capacity to be a caring and appropriately nurturing mother, whether as to the child’s emotional or her physical needs.
Initially the father’s counsel made broad sweeping statements that there was no evidence to support these findings, and that his Honour was “wrong”. That of course overlooks that there is a presumption that a decision by a trial judge or a Federal Magistrate is correct, and the onus is on an appellant to demonstrate that the trial judge or Federal Magistrate made an error of fact or law (Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621).
The father’s counsel then took us to some parts of the evidence given by the father and his witnesses in an attempt to demonstrate that these findings of the Federal Magistrate were “wrong”. However, it readily became apparent that in fact there was evidence, and in particular from the father’s sister’s partner which supported his Honour’s findings in paragraph 25 for example. It also became apparent that his Honour’s conclusions in paragraph 24 were reasonably open to his Honour.
We also observe that in this context the father’s counsel avoided any reference to the evidence and his Honour’s findings as to the bribe made by the father (paragraph 21 of his Honour’s reasons). That, together with the evidence in relation to the DVD and the hospital incident, clearly supported

his Honour’s findings that are under challenge.
It also must not be forgotten that a trial judge or Federal Magistrate enjoys advantages that we lack. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Ors (1999) 160 ALR 588 Kirby J said this at 619:
[90]The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusion on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
[Footnotes omitted]

In all the circumstances then we are not persuaded that his Honour erred in the findings that he made about the father and his relatives, and there is no merit in this ground of appeal.
Finally, although it relates to properly settlement issues, it is convenient to briefly mention Ground 21 here. We consider that it is in the same category as Grounds 2 and 14 in so far as it alleges bias; in other words that allegation is misconceived. We will address this ground though in more detail later in these reasons.

Ground 3

Here the father complains that there were “weaknesses and errors and indications of bias” in Mr N’s report, and that his Honour failed to take these into “consideration”.
The report of Mr N was of course before the Federal Magistrate, and Mr N was subject to cross-examination by all counsel. The complaints that the father makes about Mr N’s evidence were all matters of which his Honour was aware, and indeed the father’s counsel conceded that all of these complaints were put to Mr N in cross-examination. Nevertheless, his Honour, in his discretion, determined to reject the arguments of the father and accept the evidence of

Mr N. His Honour said this in his reasons for judgment:

The Family Report Writer and the question of shared or sole parental responsibility

12.Counsel for the father was unrelenting in his criticism of Mr [N’s] report and, ultimately in final submissions, of Mr [N’s] evidence. Before his Honour Monahan FM, he described the report as “totally deficient” and before me as a “load of twaddle”, “illogical” and “facile”.
13.His criticism of the report focused on the devastating conclusion
Mr [N] had reached after only a short observation of the parties (approximately one hour). He questioned how Mr [N] could come to the conclusion he did through the observation of the handover of the child at the interview and the observations made and conclusions reached about the father when observing the dynamic between the parties. He was very critical of the illogicality of the evidence that said, as given in the report by Mr [N] and at the hearing, that it was permissible for the father to have four days in 14 but not to have seven days in 14. This was particularly so, it was contended, when it was accepted by all that the father was a very good father, who loved his child dearly and was anxious to spend as much time as possible with her. He also challenged Mr [N’s] expertise, highlighting that he was not a qualified psychologist and therefore not qualified to form the views he did and make the recommendations that he did.
14.In respect of Mr [N’s] expertise, I have no hesitation in accepting him as highly qualified and experienced in the area in which he is employed by this Court. He impressed as having high level powers of observation and sound application of knowledge and skill in the interpretation of those observations, which formed the basis of his opinions and recommendations. I am particularly reinforced in that view after hearing all the evidence in this case. The conclusion he reached about the appropriateness of sole parental responsibility has a number of components. First, in my view, it shows good judgment on the part of Mr [N]; secondly, his observation of the father at the changeover before him is reflective of how obviously inappropriate the father’s behaviour was that warranted the recommendation being made; and thirdly, it reflects Mr [N’s] perception and intuition in relation to these matters. Completely independent of Mr [N’s] observations are a number of significant events which occurred after he had provided his report which is confirmatory of the significant recommendation that there should only be sole parental responsibility.

We observe that despite many, if not all of the alleged errors and weaknesses in

Mr N’s report identified in this ground being the subject of cross-examination of Mr N by the father’s counsel before his Honour, that did not alter Mr N’s opinions or recommendations.
We also emphasise that an important aspect of what his Honour said in paragraph 14 of his reasons is that the accuracy of the opinions and the force of the recommendations of Mr N were confirmed by all of the evidence that

his Honour heard. Thus, appropriately, his Honour did not rely solely on the evidence of the family consultant, and he used his unique advantage as a trial Federal Magistrate to form his own conclusions from all of the evidence before him.
Finally, to suggest that Mr N was biased is to fall into the same trap as we have identified in relation to aspects of the allegations of bias against the Federal Magistrate. In other words, all that is in fact being alleged is that

Mr N did not agree with what was being suggested by the father or his counsel.

Grounds 5, 6 and 7

It is convenient to address these grounds together as they relate to his Honour’s findings as to the conduct and behaviour of the father, and they comprise what has become known as “weight challenges”.
The difficulties confronting the father in succeeding in such challenges are well known. For example, in Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Further in CDJ v VAJ (1998) 197 CLR 172, Kirby J said this at 230:
Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
[Footnotes omitted]
Against this background of the relevant principles we turn to each of the challenges raised.
As to the DVD, the submissions of the father’s counsel are in the nature of confession and avoidance. In other words, “yes the father might have done this, but what about his child-focussed actions to which his Honour did not refer”.
However, in addition to these submissions, the father’s counsel appears to suggest that no adverse inference can be drawn against the father from the circumstances of the taking of the DVD or from what it demonstrated, because his Honour was wrong in referring to the father’s purpose in showing the DVD. In other words, it is said that the father did not “introduce” the DVD, and thus presumably he should not be criticised in relation to it, despite his Honour’s assessment of its contents contained in paragraph 18 of his Honour’s reasons being unchallenged. However, the fact of the matter is that the father’s sister’s partner took the video, his Honour rejected the father’s claims that he was unaware that the video would be taken and that he had not discussed this with his sister and her partner before the event, and the father was the one in possession of the DVD. Prior to the commencement of the hearing the court was requested by the father’s solicitor to make available a device for the playing of the DVD. Significantly, the father placed the DVD in the list of documents to be relied upon in his outline of case document, and albeit the mother referred to the taking of the DVD in her affidavit, the father in his responding affidavit deposed that the DVD was being taken to record the child’s “reactions and behaviour on being returned to the [mother]” in order to show the same to a psychologist to obtain “help to ease the changeover for [I]”. Thus, although his Honour may have been incorrect in giving the impression in his reasons for judgment that the DVD was shown by the father whereas it was the ICL and the mother’s counsel who ultimately requested that the DVD be shown, that cannot alter his Honour’s findings as to the circumstances of the taking of the DVD and his Honour’s unchallenged assessment of its contents. On this basis we consider that it was entirely open to his Honour to make the findings that he did. His Honour said this in his reasons for judgment:
18.On viewing the DVD I was shocked by what it displayed. It displayed an emotionally indulgent father, supported by his sister and her partner, with excessive cuddling and kissing and urging to the child to go to the mother, and promising that she would see him again and that everything would be okay if she went to the mother. It is obvious that the child reacted the way she did because she was reflecting the anxiety of her father about going to the mother. This DVD would make a perfect educative DVD to show other parents on how not to hand over children. It is very concerning that this exercise had gone on for so many times (at the hearing I was told 92 changeovers had taken place to the date of the hearing where this reaction was displayed). Mr [N] had highlighted that exposing the child to this sort of trauma has a very detrimental affect, both in the short term and the long term. It was suggested by the father’s Counsel that if he had done wrong in this regard then he would not repeat it and would act appropriately next time. The difficulty with that proposition, however, is that on his own evidence he had attended a parenting course and was unaware of appropriate conduct after it. I also have little confidence the father has the necessary insight as to put the child’s emotional welfare above his own emotional needs, taking as I believe he did, some gratification and encouragement from his daughter’s reaction as confirmatory of his better relationship with her and the lack of appreciation, on his part, of what is a necessary and appropriate relationship the child must have with her mother.
We can find no error in how his Honour treated either the circumstances of the taking of the DVD or its contents.
We also do not consider that the evidence of the Family Consultant that the child “maintains a very strong, healthy and positive attachment with both her parents” prevented his Honour from relying on the contents of the DVD as indicating that the father does not have “the necessary insight as to put the child’s emotional welfare above his own emotional needs”, or as reflecting “the lack of insight and sensitivity of the father and those around him” leading to a finding that equal shared parental responsibility was inappropriate in this case. They are clearly different issues that can readily coexist without one detracting from the other, as is readily apparent from Mr N’s own report where he formed the same opinion as to the father’s failings in this regard.
Further, for the evidence to reveal that the father had agreed to the mother’s “occasional requests for changes to the times and places of changeover”, and that there were similar facilitative actions by the father, does not indicate that his Honour was plainly wrong in the weight that he attributed to the circumstances of the taking of the DVD and the conduct and behaviour of the father revealed in that DVD. One does not necessarily “affect” the other, and thus it cannot be said that the exercise of discretion by his Honour miscarried.
Thus we find no merit in Grounds 5 and 6.
As to the incident at the hospital, Ground 7 is also couched in the language of confession and avoidance. In other words, “yes I did it, but the mother also stayed and that should overcome any criticism of my conduct”.
The evidence of what happened is unchallenged save and except that apparently the father did not sleep on the bed but in a chair in the room. That of course is an error by his Honour relied on by the father, but we consider it to be of no consequence in the appeal. Thus, the scenario presented is one where the father being aware of the hospital’s policy, behaved inappropriately and then ultimately flouted the policy. It is not to the point that the mother insisted on being the parent to stay, because the child was in her care at the time. In our view there can be no excuses for the father’s conduct and his Honour was quite entitled to find that the incident not only highlighted the conflict between the parties, but the “inability of the father to surrender his sense of proprietary right in the child and his sense of a right to 50 per cent of time with the child”.
In the ground of appeal it is suggested that his Honour exhibited bias by not taking into account that the mother insisted in staying. There is no basis established for that claim and we reject it.
We also observe that in his written summary of argument, whilst he failed to address at all the challenges identified in the ground of appeal, the father suggested that comments by his Honour to the Family Consultant during his oral evidence “were suggestive to Mr [N] of the import of the hospital records and of his Honour’s pre-judgment concerning the relevance of what had occurred at the hospital before hearing all evidence concerning the events”. However, we fail to see how the words used by his Honour can be given the interpretation that the father suggests, and again we reject this argument.
We find no merit in this ground of appeal.

Ground 12

We are unclear as to whether this ground of appeal is being pursued. In the father’s written summary of argument the contents of the ground were simply repeated in a few lines, and the ground was not addressed in oral submissions before us. Thus, we have not been taken to any relevant evidence or submissions that were before the Federal Magistrate, or to any relevant paragraph or paragraphs of his Honour’s reasons which demonstrate that

his Honour erred in the way suggested.
In these circumstances we cannot take this ground of appeal any further and we find that it has no merit.

Ground 13

With this ground there is some amplification in the father’s written submissions of the complaint being made, however again this was not addressed in oral submissions before us.
The mother’s counsel in his written submissions has correctly pointed out that both in the ground of appeal and in the written submission the father’s counsel has failed to accurately set out what the mother said to Mr N. In other words, the mother did not say that the child should spend more time with the father; she said time “on a more frequent basis”. Indeed, this was raised and clarified when the mother was cross-examined by the father’s counsel on this topic.
Thus, there can be no merit in this ground of appeal.

Ground 15

With this ground not only was there no oral submission in support, but no written submission either. Accordingly, we are in no position to find error by the Federal Magistrate, and in any event, as pointed out by the mother’s counsel there was ample evidence before his Honour to rebut the presumption.

Ground 16

This ground alleges his Honour was wrong in his finding as to the mother’s reason for moving to north eastern Victoria. However, it is not suggested why, even if his Honour was wrong, this error should lead to appellate interference. In this regard we note that this ground of appeal was not addressed in oral submissions before us.
In any event, when the mother’s affidavit material that the father identifies in his written summary is considered, as well as the affidavit material of the mother identified by the mother’s counsel in his written submissions, it is apparent that there was not just one reason for the mother moving to north eastern Victoria; it was a combination of reasons including the support that her parents could provide. Thus, again, we find no merit in this ground of appeal.

Ground 17

Again this ground raises a discrete issue in respect of which there is no written or oral submission.
Although we note that this was an order the father sought at trial, we have not been taken to anything by the father’s counsel which demonstrates that

his Honour erred in not making an order to that effect.

Property settlement issues

Ground 18

As with other grounds that we have addressed, this ground seeks to identify a discrete error made by the Federal Magistrate without suggesting how that affected his Honour’s decision. As well, there was no written or oral submission to explain this ground.
His Honour in paragraph 43 of his reasons took into account, as he should, the disparity of income between the parties. His Honour referred to what the mother earned from her part-time employment, but did not repeat the evidence that was before him from the mother as to her family assistance benefit, her pension and the child support that she receives. However, it is plain to us that even if his Honour overlooked these benefits they would have made no difference to either this aspect of his Honour’s decision or the decision itself.

Ground 19

The father presented a valuation of the property at T as at January 2005 which was the date when the father said that cohabitation commenced. There was an issue about that date with the mother saying that it was December 2003, however his Honour found that he could not accept the valuation as accurate, not because of the dispute as to the date of the commencement of cohabitation, but as he said in his reasons for judgment:
33.… I accept the submission on the part of the mother to ignore the valuation at the commencement of the relationship as it was a retrospective valuation based upon the history of the property given by the father to the valuer. I am not satisfied that I can have any confidence that that history is accurate and therefore the valuation arising from it cannot be accepted as accurate. …
Despite then his Honour not having a valuation of the property as at the date of the commencement of cohabitation, when considering the issue of contributions his Honour said this in his reasons for judgment:
40.… It cannot be disputed, in my view, that at the commencement of the relationship whether that be in December 2003 or January 2005 the father had done a very significant amount of the work on the property and it was nearing completion at the time of the commencement of the relationship.

His Honour ultimately concluded that the respective contributions of the parties should be assessed at 90 per cent / 10 per cent in the father’s favour.
It has not been demonstrated to us that his Honour erred in refusing to take account of the valuation procured by the father. Again, there were no written submissions, and virtually no oral submissions to assist our consideration of this ground of appeal and we find that in the circumstances it has no merit.

Ground 20

This is a ground that simply cannot succeed. Not only were there no written or oral submissions by the father in support of it, but the authorities are clear that the value at the date of the hearing is the correct value to use rather than the value at the date of separation (Zappacosta and Zappacosta (1976) FLC 90-089; Wells & Wells (1977) FLC 90-285; Hickey and Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143).
There can be no merit in this ground of appeal.

Grounds 21 and 22

There appear to be two issues here. First, whether his Honour was “wrong” in finding that the father had not explained the reduction in the balance of his savings as at 5 November 2008. Secondly, whether his Honour was “wrong” in refusing to accept that two loans were made to the father by his sister, and that he repaid them but leaving outstanding interest.
As to the reduction in savings his Honour said this in his reasons for judgment:
35.I am satisfied the husband had significantly more savings during the relationship than he has disclosed at the hearing. Those savings were in the sum of $85,000 as at 5 November 2008. He was unable to persuade me he could account for the dissipation of those saving. He did suggest that during the time of the relationship, he contributed part of his savings to his superannuation on advice and brought shares. If this be true, which I do not accept it to be so as I do not find the father a truthful witness, it still does not account for all of the money. I have no confidence he has given a full and frank disclosure and in those circumstances find that the asset pool should include those savings of $85,000.
The alleged loans were addressed separately by his Honour and he said this in his reasons:
34.The father claims an amount $7,500 was loaned to him by his sister in 1999, which amount was increased by a further sum of $35,000 in 2000 to fund, it was said, the settlement of his former wife’s claim.
The evidence was he has repaid those loans, but there remains outstanding the interest owing – said initially to be $7,500, but increased to “about $10,000”. He claims that the asset pool should be diminished by that interest owing. The father relied on the evidence of his sister as well as his own in support of this contention. Based on that evidence it appears that the a [sic] loan was advanced to the father some 10 years ago in circumstances where there was no provision for any interest to be paid, there was no provision for a time in which the principal loan was to be repaid and there was a vague suggestion, which I thought to be a recent invention when the issue was put to the father, that he would perhaps pay $10,000 by way of interest. There was no documentary evidence in support of this loan save for the production of bank statements with significant redaction. No acceptable evidence was given to explain the redactions in that document and all told, I am unpersuaded that any loans were advanced, but if I am wrong in that regard, there certainly was not any arrangement for the payment of interest on those loans. Accordingly, the asset pool should not be diminished. I did not find the evidence of the sister at all convincing, nor did I find her a reliable witness more generally.
It is unclear to us why there is a separate ground of appeal in relation to the alleged loans. In the father’s affidavit he deposes that there was a loan of $7,500 on 20 May 1999 which he put towards the purchase of a motor vehicle, and then a loan of $35,000 on 23 May 2000 which he used to enable him to comply with the order for property settlement requiring payment of that amount to his first wife. This of course was all well before the parties even met.
As to repayment, the father also deposes in his affidavit that he repaid $20,000 on 17 March 2009, a further sum of $5,000 on 26 March 2009, and then an amount of $20,000 on 15 April 2009.
The father explains that repayment was not made earlier because his sister “had no need of the money until she told [him] she was planning renovations to her house”.
Significantly for his Honour’s reasons, the father also deposes that he and his sister “have agreed to interest on the total amount of the loan in the sum of $10,000”, and therefore he still owes his sister $7,500.
We understand that the father wanted the amount of interest owing to be taken into account in the asset pool, but his Honour refused to do that, as he concluded in paragraph 34 of his reasons.
To return to where we started, it seems to us that the discrete issue about the loans from the point of view of an appeal can only be his Honour’s refusal to include the interest allegedly owing as a liability to be taken into account. However, this is not the subject of Ground 22, or any other ground of appeal, and we fail to see the utility of Ground 22 in simply challenging his Honour’s rejection of the evidence as to the loans.
However, given what emerges from the affidavit evidence referred to above as to the repayment of the alleged loans, it seems to us that that is an aspect of the challenge in Ground 21. In other words it seems to be the father’s case that the reduction in savings from $85,000 as at November 2008 to approximately $31,000 as at separation is explained primarily by the repayment of the loans, and that is the relevance of that circumstance.
Turning then to Ground 21, there is no doubt that the father withdrew a total of $50,000 from his account (including $5,000 for his own purposes) in March and April 2009, just before separation, and that is clear from the bank statements produced by the father to his Honour. The issue though is what did he do with that money? The father says that he used $45,000 of it to repay the loans to his sister and $2,500 by way of interest, but his Honour rejected that.
The father’s sister in her affidavit corroborated what the father had deposed to in his affidavit to a certain extent. She indicated though that there was no written loan agreement, and like the father did not explain on what basis interest was either calculated or indeed payable.
The issue of the alleged loans was the subject of cross-examination of the father and of his sister, and we consider it necessary to reproduce almost the entirety of this cross-examination. First, the cross-examination of the father:
MR ARNOLD: Now, when do you say you realised or when was the relationship on the rocks?---I don’t have the exact date, but it would have been - - -
There was tension since [I’s] [sic] birth, wasn’t there, in relation to your mother at the very least? That’s a fair point?---It wasn’t since birth; it probably was, you know, three/four months, three months after that.
Because what you’ve done prior to the July date when she walked out was transfer to your sister $45,000, wasn’t it, out of your bank account?---No. Prior to, no.
Prior to her walking out?---No.
When do you say that was done?---Well, I don’t have the records in front of me, but I did transfer moneys to my sister, because I owed my money – moneys to my sister, way before – way before that.
Let’s just have me ask the questions and you answer them. Do you know when it was?---Not exactly.
If I say to you it was just prior to separation, would that surprise you, that it was April/May in 2009?---Yes.
That would surprise you?---Yes.
And you say that you had owed that money to your sister since at the very least the year 2000?---That’s correct.
When she had given you $35,000 to pay your ex-wife?---That’s correct.
And the year prior to that money to buy a car?---That’s correct.
When you borrowed the money to pay for the car, where were you when that agreement was made?---Where was I?
Yes. Was it done in person; was it over the phone?---Probably over the phone.
Probably over the phone?---I can’t remember.
You can’t remember?---No.
When you borrowed the money you say for the $35,000 to your ex-wife, when did you separate from your ex-wife, by the way, what year?---2000.
2000?---Yes.
Settlement took place in 2000?---Yes, well, 2000.
Did you come to court?---Yes, 2000 was – well, and a – and a year before that, so 1999.
…
When did you marry your ex-wife?---Seven years prior to that.
Seven years prior to that. Because when your sister has provided the bank statement saying, “I’ve paid this money”, did you provide that bank statement to the solicitor or did your sister provide the bank statement with the things crossed off? You annexed it to your affidavit?---I think it was – I think I provided them and got them through my sister.
Who did the black ink through the balances and the account numbers?---I’m not aware of who did them. I can’t recall. I can’t recall it, sorry.
Well, it’s not that long ago that you got that bank statement. Your sister provided it to you?---Yes.
You looked at it. Were there black lines through it?---I did look at it, but I can’t recall the black lines, sorry.
So it may have been you that did the black lines or someone else?---I didn’t do any black lines.
Because all the balances are out and you say that you borrowed money from your sister in 2000. Where was that agreement made?---It’s my sister. It’s a verbal agreement.
Yes, but on the phone, in person?---I asked for X amount of money. It was probably – she was probably with me at the time. I can’t recall.
Probably with you at the time?---I can’t recall.
What was the agreement?---No agreement. I asked for – I asked for money to pay my ex-wife off.
There’s no agreement; she just gave you money?---Yes, it’s family. I don’t need to ask for an agreement.
I’m not talking written agreement; I’m talking of verbal agreement?---Okay, it would have been a verbal.
What was the arrangement?---I’ll pay it back when I can.
When you can?---Yes.
You’re honestly saying that when you produce bank statements in 2004 showing that you’ve got, I think, $160,000 in the bank?---Yes
HIS HONOUR:   What was that figure again, sorry?
MR ARNOLD:   $160,000, I think, in 2004, sir. I would have to check that.
You’re saying you didn’t have enough money to pay her back in 2004?---I didn’t say I didn’t have enough money.
Well, you’ve just told the court - - - ?---It’s just she never asked.
- - - the agreement was that you would pay her back when you had the money?---Okay.
And you had the money in 2004 and you didn’t pay it back, did you?---Okay.
And I certainly haven’t heard you mention that any interest was payable on it. There was no talk about interest, was there?---Between us?
Yes?---Well, you never asked the question.
Well, in all the documents that you’ve filed, there’s no talk about interest?
MR BAKER:   There is.
THE WITNESS:   I’m sure there is.
MR BAKER:   There is, your Honour.
MR ARNOLD:   On - - -
MR BAKER:   There is.
MR ARNOLD:   On the affidavits that he has sworn - - -
MR BAKER:   No.
THE WITNESS:   I’m sure there is.
MR ARNOLD:   What was the rate of interest?
HIS HONOUR:   Mr Arnold - - -
MR ARNOLD:   I’ll retract that, sir.
What was the rate of interest?---I’ll probably give her an extra $10,000 towards the end of it, roughly.
You’ll probably give her an extra $10,000, so there was no agreement in relation to interest?---No. We didn’t have an agreement as to when and how I would pay it back. I would give it back to her one day. What’s so hard about that?
Because I put it to you that when you separated from your wife, ex-wife, you parked some money with your sister?---My ex-wife.
You parked some money with your sister and she gave it back to you in 2000, and what you’ve done now is done exactly the same thing. When - - -
MR BAKER:   Has my friend got evidence for this because this is a serious allegation to put.
MR ARNOLD:   I’m allowed to ask the question, sir.
MR BAKER:   No, sir, no.
HIS HONOUR:   Yes, Mr Baker, what are you doing? He is putting a proposition to him in cross-examination.
MR BAKER:   But he can’t make stuff up, your Honour.
HIS HONOUR:   It’s quite legitimate. Sit down. For the sixth time, sit down.
MR BAKER:   Well, I hope he has got the evidence because that will be an appeal point, that’s for sure.
HIS HONOUR:   Put the question.
MR ARNOLD:   Did you get that question? You parked some money with your sister - - -?---Can you start from - - -
- - - when it hit the fan with your ex-wife, so she wouldn’t get her hands on it, and your sister paid it back in 2000?---Not at all.
And then you’ve done exactly the same thing in 2009?---Not at all. I still had plenty of money in the bank, even with that 30,000 or 40,000 gone, there was still plenty of money in the bank, so no, I didn’t.
It’s certainly decreased the asset pool, hasn’t it?---Okay, so it decreased the asset pool.
And what you’ve done prior to separation and after separation is to make sure my client doesn’t get a cent; do you appreciate that?---Not at all.
That’s your application in your response?---Not at all. There is still money in the bank and I’m – and – and furthermore I’m not – I’m not aware - - -
Listen to the question please?----- I’m not aware that [Ms Brymore] is - - -
Listen to the question, please?---I’m not aware that [Ms Brymore] is entitled to my moneys and there’s still money in the bank. So, no, it wasn’t all withdrawn.
…
(Transcript 29 October 2009, pages 181-185)
Secondly, the cross-examination of the sister:
MR ARNOLD: And you have said in your affidavit that your brother borrowed money from you in 1999 for a car?---Yes.
Yes?---Towards a car.
Towards a car. Do you recall where you were when you had the conversation about that loan?---Where I was?
Yes?---In 1999?
Were you standing next to him or was he on the phone when he asked for the money?---I don’t recall totally but quite possibly it was on the phone.
The court is not interested in possibilities. If you have a memory of it, please tell us?---Yes.
If you don’t have a memory of it, I don’t recall is probably the best response?---Right.
Okay. Do you remember where you were?---I don’t recall.
Do you remember anything about the conversation?---Yes. He asked me if I could loan him some money and I did. Yes. It was one of two things - on the phone or in person. It was highly likely it was actually on the phone.
Was there - there were obviously discussions about the amount, you say?---Yes.
Yes, and was there discussions about when he would repay it?---Not at that time.
Were there any discussions about any interest rates?---Not at that particular moment in time.
Do you say there were subsequent discussions about when he would repay it?---Well, there was. We spoke about it and I said, “Yes”. He asked me for that loan for $7500 and I said, yes, I would give it to him, no problem, and that he would repay me when I needed it.
When you needed it?---That’s right. When I asked for it.
Right. His version of events in evidence is that he would pay it back when he could. That was the agreement. So you say that’s not right?---Well, when he could is also correct because when he could is when I would ask for it. The two coincide.
Well, with all due respect, they are two different things. When you need it and when he can pay it back are two different things. Do you appreciate that?---Yes.
Now, in relation to the loan to pay out his ex-wife, do you remember whether that was in telephone or in person?---That was quite possibly also in telephone.
That’s still only a possibility that it was telephone. You don’t remember?---No, I don’t recall totally.
Do you recall the details of it? The interest rate?---Not on that particular occasion, no.
Was there any interest rate discussed at all?---Yes, eventually. Yes, when he could pay me off.
It sounds like from the affidavit material, the interest rate was discussed after he repaid the principal sum just recently. Well, last year, I should say. Is that when the interest was talked about?---No.
When was the interest talked about?---During the time. I said to him that when I needed my money that I would ask it back from him and he said, “Not a problem.”
Again, he gave evidence to say the agreement was he would repay it when he could?---That wasn’t an issue for me. That was fine.
And, indeed, his evidence was that in 2003, I think it was, or before 2003, he sold a property and he received a substantial amount of money. Do you remember that?---I don’t recall. Well, I think he did sell a property, yes.
Yes, and so that would be the appropriate point in time where he could afford to pay it back?---Well, according to you. But once again, it wasn’t an issue for me. As I said, we had an agreement. When I needed the money, my funds, I would ask for it back and that is the truth, your Honour.
And you have provided bank statements?---Yes, I have.
Yes. And the period in which you have provided bank statements provide an opening balance of roughly about the same amount that you have lent him, isn’t it? $45,000, the opening balance?---Well, if that’s what my bank account states, well, then that is correct.
But you don’t provide any evidence as to how you saved that $45,000, do you?---Well, what is the relevance of that question?
Well, it’s very relevant because I put it to him that what he did when things were getting bad with his ex-wife is he paid you some money or parked some money with you and you subsequently repaid it?---That is totally incorrect. That is a hypothesis that is totally implausible and downright incorrect.
It’s implausible, is it? It’s implausible?---To me it is because it is my funds. I worked for those funds that I loaned him.
Because what he has done is when it has all gone bad with my client, he has done exactly the same thing and paid you some money?---That is also incorrect, your Honour. These are the funds that I worked for - very hard, may I add - and out of the goodness of my heart, he asked me for some money to loan him and I did so. These are my funds - - -
So has there - - -?--- - - - and when it was time - when I said to him, quite, clearly, “When I need my money, I will ask you for it,” and he said, “Not a problem.” Why is that difficult to understand?
But nearly 10 years without a loan agreement?---That’s right. He is my brother. We had a formal, verbal agreement. I don’t see what the problem is. We’re a small family. I only have one brother. It’s not as if I can, you know, I have seven brothers and sisters to say, “Oh, no, no, no, he won’t do that.” I have one brother and it’s not an issue.
And you say in those 10 years you have never had the need for 45 - - -?---Sorry, can you repeat that?
In those 10 years you have never had the need for $45,000?---No.
No?---As I said, when I needed my funds, I will ask for them and - - -
But then we go one step further in the affidavit material and there’s an interest amount put in everything now. How much was agreed - - -?---Yes. Actually, it was very nice of my brother to say, you know, “It has been a while and you know that I’ve had it for a while,” and I said, “Yes.” And he said, “Well, you know, I can give you some interest money towards it because I have had it for a while,” and I said, “That’s very nice of you.” Because the reason why I asked for my funds back, back then in early last year was because [F] and I were actually contemplating have an extension and renovation done to our house and so, yes - - -
When do you say this - - -?---Just a minute, please. Let me finish.
No. Excuse me. I’m asking the questions. You can give the answer, okay? And then we’ll be a lot shorter. When do you say that agreement in relation to interest that you are talking about, took place?---It was a while back but not in 1999 and not in 2000.
Roughly, what year?---It would have been sometime, you know, early 2000 - between 2000 and 2004, roughly speaking.
Because the evidence that your brother gave was that the repayment was the date where he determined the amount of interest and, in fact, I think on the affidavit it says $7500 and in evidence he says 10?---Well, my affidavit states that he has actually returned $45,000 to me, which he has. Right? Now, and so, yes, and he owes me another $7500. So it does accumulate to $10,000 interest.
Why would he say in his evidence that he owes you 10 in interest?---But that’s true, because 35 and seven and a half is 42 and a half. And so the other 10 is 52 and a half and so if you tally that up, it’s implicitly $10,000.
You can appreciate from my client’s perspective, it all looks a bit fishy?---No, I actually disagree with you. That is totally incorrect. These are my funds. I worked for them. I even asked the bank to trace all my bank records back then to actually prove it, to nail it, you know. But, unfortunately, the banks don’t have records that far.
Yes, they don’t have records that far, conveniently?---That’s right, and so if I was trying to cover anything, surely I wouldn’t ask for such things.
What you did cover was the first bank statement that you provided, showing the withdrawal and the payment. You covered all the balances, didn’t you, and the account numbers?---Well, I didn’t think that was relevant.
Yes?---But if you would like to see them, I am quite happy to give them to you.
…
(Transcript 29 October 2009, pages 276-279)

It is apparent to us from a consideration of this evidence that his Honour was quite entitled to reject both the father’s and the sister’s evidence as to the alleged loans and their repayment, and thus his Honour was also entitled to find, as he said in paragraph 35 of his reasons, that the father was unable to persuade him he could account for the reduction of his savings from $85,000 to approximately $31,000.
This of course must be viewed in the context of his Honour’s finding that the father was an untruthful witness, and we refer again to the advantages that a trial judge or a Federal Magistrate has over an appellate court in assessing credit, and which precludes appellate interference unless it can be demonstrated that the trial judge or the Federal Magistrate has “failed to use or has palpably misused his advantage” (S S Hontestroom v S S Sagaporack [1927] AC 37, per Lord Sumner at 47). That has not been demonstrated here.
We observe of course that although bank statements of both the father’s account and the sister’s account were produced to his Honour, they cannot and do not indicate anything more than particular amounts of money were withdrawn or deposited at particular times; they do not indicate where the deposit came from or to whom the withdrawal went, and for what purpose. Here there was no written loan agreement, and the evidence of both the father and his sister was vague as to the terms of repayment of the alleged loans and why they were repaid at the time that they were. The evidence of the requirement for interest to be repaid was equally as vague and frankly unconvincing.
In these circumstances we find no merit in these grounds of appeal.

Ground 23

Unfortunately, this is yet another ground of appeal where there were no written submission in support and virtually nothing was said about it in oral submissions. Again, we therefore have no basis to find error by the Federal Magistrate as suggested in the ground of appeal. We were not taken to anything which persuades us that appellate interference is warranted, and we find there is no merit in this ground of appeal.

Conclusion

Having found no merit in any ground of appeal as to either the parenting or the property settlement issues the appeal must be dismissed.

Costs

At the conclusion of the hearing we indicated that when we delivered our reasons for judgment we would make directions as to the filing of written submissions on costs. We propose to set out a regime for the filing of those submissions in the orders that we make today.
We observe that the reason for not taking these submissions at the conclusion of the hearing was that at that time the legislation to address the invalidity of property settlement orders made in de facto matters was still pending, and we were not in a position to deliver our judgment until that legislation was in place. That occurred in April 2012.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Forrest JJ) delivered on 20 November 2012.

Associate:

Date: 20 November 2012