Steinbrenner & Steinbrenner
[2008] FamCAFC 193
•10 December 2008
FAMILY COURT OF AUSTRALIA
| STEINBRENNER & STEINBRENNER | [2008] FamCAFC 193 |
| FAMILY LAW – APPEAL – PARENTING AND PROPERTY SETTLEMENT – Appeal from Federal Magistrate’s decision – findings of fact - adequacy of reasons – appeal dismissed |
| Family Law Act 1975 (Cth) Part VII, Section 75(2), Section 65DAA(2) Abalos v Australian Postal Commission (1990) 171 CLR 167 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 |
| APPELLANT: | MR STEINBRENNER |
| RESPONDENT: | MS STEINBRENNER |
| FILE NUMBER: | PAM | 3148 | of | 2005 |
| APPEAL NUMBER: | EA | 78 | of | 2008 |
| DATE DELIVERED: | 10 December 2008 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 21 November 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 June 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 475 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sweet |
| SOLICITOR FOR THE APPELLANT: | Stojanovic Soliciors |
| COUNSEL FOR THE RESPONDENT: | Mr Batey |
| SOLICITOR FOR THE RESPONDENT: |
Orders
That the appeal be dismissed.
That the husband pay the wife’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.
IT IS NOTED that publication of this judgment under the pseudonym Steinbrenner & Steinbrenner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA 78 of 2008
File Number: PAM 3148 of 2005
| MR STEINBRENNER |
Appellant
And
| MS STEINBRENNER |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 30 June 2008 Mr Steinbrenner (“the husband”) appealed against orders made by Federal Magistrate Donald in proceedings between the husband and Ms Steinbrenner (“the wife”) on 20 May 2008.
Relevantly for present purposes the orders of the learned Federal Magistrate provided that the husband pay the wife the sum $139 390 by way of property settlement and that the parties’ seven year old child live with the wife nine days in each fourteen day period during school term and five days with the husband during such periods.
In lieu of those orders the husband sought that he pay to the wife the sum of $28 288 and that, during school term, the parties’ child spend time with the wife from Friday afternoon to Sunday afternoon each alternate weekend.
The wife resisted the husband’s appeal and sought to maintain the orders of the learned Federal Magistrate.
Background
The following matters, which are not controversial, and find expression in the Reasons for Judgment of the learned Federal Magistrate, provide background to the appeal.
The husband is fifty seven years of age.
The wife is thirty nine years of age.
The one child of the marriage, D, was born June 2001.
The parties married in January 2000 and finally separated on 21 June 2005, the cohabitation accordingly being of approximately five year’s duration.
The property of the parties was found, uncontroversially for present purposes, to approximate $555 775, the great bulk of which the husband had acquired prior to marriage or was referrable to assets which the husband held prior to the parties’ marriage.
In the post separation period the wife has had the primary care of the child and lived with the child in rented accommodation, receiving minimal child support. Since the parties separated, the husband has occupied the former matrimonial home and received the benefit of the net rental from an investment property. The husband has paid all expenses and outgoings with respect to both properties during the post separation period.
The Reasons for Judgment of the Federal Magistrate
The learned Federal Magistrate accurately identified the proceedings before him as involving competing parenting applications and a dispute with respect to settlement of property.
His Honour identified, accurately, that the husband’s case was that the wife should receive 5 percent of the parties’ assets together with an additional 5 percent if, contrary to the husband’s contention, the child should continue to primarily reside with the wife.
On the basis that the child would continue to primarily reside with her, the wife sought 35 percent of the parties’ net asset pool.
For reasons which his Honour elucidated, the wife was ultimately awarded 25 percent of the net asset pool, 10 percent with respect to contributions together with a further 15 percent by way of section 75(2) adjustment.
After reciting the matters of “background” earlier referred to in these Reasons, the learned Federal Magistrate identified relevant legal principles and identified the parties “Assets, liabilities and financial resources”. Save in one respect (the $10 000 referred to at paragraph 17 of his Honour’s Reasons for Judgment) the finding that the parties’ net assets approximated $555 775 has not been challenged in this appeal.
Under the heading “Property acquired at the outset of the marriage and direct financial contributions”, the learned Federal Magistrate recorded, uncontroversially then and now, that the husband owned what became the matrimonial home of the parties at V and a home unit at C at the date the parties married, the former property being unencumbered, the latter subject to a mortgage. The husband also owned a motor vehicle.
His Honour recorded, uncontroversially then and now, that the wife “owned little” at the date of marriage.
The husband had not worked since being injured in the course of his employment in 1998. Thus husband received a compensation payment of $35 000 in January 2001 and was receiving an ongoing disability pension of $225 per week at the date of trial.
The sale by the husband in 2003 of his C unit and purchase of an investment unit in Queensland utilising the proceeds of sale was recorded by the learned Federal Magistrate. His Honour also referred to the evidence that, subsequent to the acquisition of the Queensland Investment Unit, the mortgage over the property was serviced by rental income from it.
The learned Federal Magistrate accepted that prior to 2003 the wife was unable to receive “government benefits” but, in 2003-2004 earned income working one day per week for three hours as a kitchen hand at RSL Club and for one year during which “she cleaned a house”.
The learned Federal Magistrate referred to the purchase by the husband from his resources of some items of personalty for a total cost of $5 200.
His Honour recorded the acknowledgement by the wife that any funds “she was able to accumulate” were sent by her to the paternal grandparents of a child of a prior relationship overseas to assist with the care of that child.
His Honour concluded, uncontroversially for present purposes that “the overwhelming direct financial contribution, both as at the date of marriage and since, has been made by the husband”.
The “Indirect contributions during the marriage” of the parties were then considered by the learned Federal Magistrate. Having traversed the competing allegations, for reasons which he detailed, his Honour concluded that the wife had been “the primary carer for about the first year of the child’s life” and had been “the primary carer for the balance of cohabitation”.
It was also accepted that the husband contributed to the welfare of the child noting that the husband “was not working” and was “at home with the Child when the Wife was absent at work or otherwise absent from the house and the Child was not in childcare. He and the Wife purchased food for the Child when they were shopping for their own food. Each cooked for the child when they were preparing their own food”.
The learned Federal Magistrate concluded that “it was the husband who contributed to the greater extent on tasks outside the house” albeit the “outside gardens were only of a minor nature and…were often destroyed by dogs”.
The learned Federal Magistrate concluded with respect to homemaking that “the wife was the primary homemaker” for reasons which he detailed.
The learned Federal Magistrate then considered “Events since separation”, noting that the husband had been in occupation of the mortgage free former matrimonial home and “receiving the benefit of any rental return from the Queensland unit that has not been required for mortgage payments or other outgoings”, albeit the husband paid all outgoings on the property.
His Honour also recorded:
37.The Wife has been the primary carer for the Child since the date of separation. She has had to pay for alternative accommodation for herself and the Child and to pay outgoings in relation to that accommodation. She has received little by way of financial support from the husband in relation to the care of the Child. The Wife took little furniture or household effects with her when she left the former matrimonial home. She has had to obtain such items.
Against the background of factual matters which he had thus recorded, the learned Federal Magistrate then detailed his reasoning in concluding that the contribution entitlements of the parties should be assessed as 90 percent by the husband and 10 percent by the wife.
Turning his attention to section 75(2) of the Family Law Act 1975 (Cth) (“the Act”) the learned Federal Magistrate referred to the ages of the parties, accepting that the husband’s 1998 injuries were “likely to continue to prevent substantial employment” in the future, as they have since at least the date the parties married.
The learned Federal Magistrate accepted that the wife was in “good health and not working” but that there were “other factors that hinder the wife in relation to employment, including her difficulty with the English language and her responsibilities in relation to the care of the child”.
Reference was then made to the availability to the husband of a disability pension and small rental income from the Queensland property.
His Honour referred to the wife’s “limited working experience” and “language difficulties” which he concluded to be a “substantial impediment to her obtaining suitable gainful employment, at least of a substantial type”.
The wife’s ongoing “primary responsibility of caring for the Child” in circumstances “where she is likely to receive little by way of child support from the Husband” was identified by the learned Federal Magistrate as a factor favouring the wife pursuant to section 75(2).
The wife’s standard of living in the post separation period was referred to by the learned Federal Magistrate, as was the “relatively small contributions” required of the husband by way of child support which the husband was seeking to review, his Honour concluding that the low level of child support received by the wife was “unlikely to change given the disability of the Husband and his continued reliance upon the disability pension currently received by him”.
For the reasons which he had thus detailed, the learned Federal Magistrate concluded that an adjustment in favour of the wife of 15 percent pursuant to section 75(2) was justified. Then, under the heading “Conclusions”, his Honour considered the implications of the orders which he proposed, concluding that such orders were just and equitable.
Although, as his Reasons for Judgment with respect to settlement of property made clear, the learned Federal Magistrate had reached a conclusion with respect to parenting matters, those conclusions found expression in his Reasons for Judgment after his reasons with respect to the property settlement dispute were articulated. Sensibly, learned Counsel for the husband did not suggest that the sequence in which the learned Federal Magistrate provided his Reasons for Judgment constituted appealable error or otherwise assumed significance in the appeal.
Having identified the competing applications with respect to parenting, which were that each party sought that the child live with that party and spend “alternate weekends and certain other periods with the other party”, and noting that the husband “in his submissions proposed, in the alternative, that there be a regime of shared care”, the learned Federal Magistrate identified the law applicable to the proceedings.
His Honour then addressed “the Primary Considerations” as required by law. For reasons which he later detailed, the learned Federal Magistrate rejected the mother’s contention that “any benefit to the child of having a meaningful relationship with the father is compromised by his tendency to violent and threatening conduct towards the mother”.
By reference to the Family Report, his Honour accepted that the child the subject of the proceedings was “attached to both the mother and the father”. His Honour concluded from the evidence “that the child has spent the preponderance of his time with the mother.” For reasons which he detailed, his Honour accepted “that there is a benefit to the child having a meaningful relationship with each parent”.
The wife’s allegations against the husband with respect to violence were considered by the learned Federal Magistrate who concluded that the “observations of the author of the Family Report, the passage of time, the cooling of emotions and the fact that the father and mother scarcely interact or communicate” justified rejecting the husband’s alleged violence as impacting upon the time appropriate for the child to spend with him. His Honour did accept that the issue “impacts upon the presumption as to parental responsibility and, in turn, the consideration the child spending equal time with each party or substantial time with the non living parent” but that it did not “serve to weigh heavily in favour of a significant restriction upon time being spent by the child with the father”.
The “additional considerations” were then considered by the learned Federal Magistrate who, substantially by reference to the Family Report which was in evidence before him, reiterated that the child had “an appropriate attachment to each of the parties” and had been “primarily cared for by the Mother at least for the first nine months of the Child’s life and since the date of separation”, the wife being “the primary attachment figure”. These matters were regarded as “of significant weight” and favouring “the Child spending significant time with each of the Child’s parents”.
The “willingness and ability of each of the Child’s parents to facilitate and encourage a close and continuing relationship between the Child and the other parent” was then addressed by the learned Federal Magistrate. Relevantly for present purposes his Honour recorded that:
89.This court is concerned that neither of the parties is likely to do all that they should to foster an appropriate relationship for the Child with the other. The Mother has a poor opinion of the Father engendered by his conduct towards her during the period of cohabitation. I do not accept, however, that the relatively few occasions when the consent interim orders have not been complied with give any indication of a deliberate ploy by her to frustrate the relationship between the child and the Father. I do accept, however, that her very submissions to this Court as to the first of the primary considerations demonstrates what I conclude is her attitude albeit held as a belief.
Also relevantly for present purposes, his Honour recorded:
90.The Father has likewise demonstrated through his demeanour in these proceedings apparent hostility towards her. His conduct towards her as discussed below does not indicate either respect or tolerance of her.
Turning to consider “the likely effect of any change in the child’s circumstances” the learned Federal Magistrate recorded:
93.If the Child was to move to live with the Father, it would be a change of circumstance in which the Child is removed from the person whom I have concluded is the primary attachment figure and who has been the primary carer. The impact on the Child of such a change can only be guessed at and would depend to a large extent upon the Father’s willingness to promote an appropriate relationship as between the child and the Mother. As discussed above, I am not convinced that he would do this. It is clear that the current arrangements have worked sufficiently well for the child to maintain a close and loving relationship with each of the parties.
His Honour concluded that to be a factor which favoured the child “continuing to live with the Mother but spending greater time with the Father, particularly in such circumstances where the Father can be more fully involved in the day to day life of the Child”.
The “Capacity” of the parties to provide for the child was examined by the learned Federal Magistrate, his conclusions in that regard being that the husband could probably better provide financially for the child were he to primarily reside with him than could the wife, although the wife had “properly cared for the Child and provided for the needs of the Child to the extent that the very positive observations of the Family Report writer were able to be made”.
His Honour ultimately concluded that, albeit not of “significant weight”, the “better financial capacity of the Father” balanced the “non financial capacity of the Mother”.
His Honour then considered the evidence with respect to cultural issues concluding that to be a “factor that favours the Child spending greater time with the Mother than the Father”.
Under the heading “Attitude to the Child and to the responsibilities of parenthood” the learned Federal Magistrate recorded that, contrary to the husband’s assertions, the wife had “been generally facilitative of the relationship between the Child and the Father” despite “an abusive relationship as between the Father and the Mother and despite the failure of the Father to comply with his child support obligations and his attempts to reduce such obligations”.
His Honour elaborated in relation to the latter topic that:
103.The Father has failed to comply with is child support obligations and has sought to minimise them. Whilst he may eventually be found to be correct in law, he should understand that the Mother is in very poor circumstances without the resources that he has. In those circumstances she is attempting to care for the Child pursuant to orders made by consent. Either not paying assessed child support or attempting to minimise it must impact upon the Child and yet the Father has continued along this path.
For reasons which he detailed, the learned Federal Magistrate was “satisfied that the Father was engaged in violent and abusive behaviour towards the Mother…in the presence of the Child”, such conduct demonstrating “poor insight into the effect of such conduct on the Child”. For reasons which he also detailed, the learned Federal Magistrate accepted that the husband had “engaged in violent and abusive conduct directed towards the Mother”.
His Honour then detailed his reasons for such conclusion. It is apparent that the learned Federal Magistrate’s conclusions were significantly influenced by his assessment of the evidence of the parties, and his preference, for reasons which he detailed (see par 109) for the evidence of the wife to that of the husband. Ultimately his Honour concluded that “whilst an important consideration, given the passage of time I do not accept that this consideration should be given significant weight”.
The issue of “parental responsibility” was carefully considered by the learned Federal Magistrate. His Honour concluded that:
116.Even though the presumption does not apply, I still find that it is in the best interests of the Child for there to be equal shared parental responsibility. This also accords with the objects and principles of Part VII of the Act. I have reached this conclusion on the basis that each party is going to maintain a significant involvement in the life of the Child and the Child is going to be spending significant time with them.
Having concluded, for the reasons which he had earlier detailed, that the parties should have equal shared parental responsibility, the learned Federal Magistrate turned his attention to the requirements of section 65DAA of the Act in order to determine the issues raised by that section which he identified (paragraph 118).
By reference to his earlier findings and conclusions, which he did not then restate, or have any need to restate, his Honour concluded that “despite the primary consideration being better served by shared care, this would not be in the best interests of the Child.”. His Honour identified as significant in that determination the:
121.…level of cooperation and communication between the parties. Clearly, there is little communication and co-operation as between the Mother and the Father. I am not satisfied that a regime of shared care in those circumstances can succeed and I am not satisfied that such a regime is in the best interests of the Child.”
Having thus concluded that equal time sharing was not in the best interests of the child, the learned Federal Magistrate turned his attention to the issue of substantial and significant time spent with each of the parents. His Honour recorded in that regard:
124.The Child clearly has a close and loving relationship with each of the parties. Taking each of the considerations into account, I am satisfied that the Child should live with the Mother. She has been the primary carer and is the primary attachment figure. The Father has displayed poor insight into the effect of his actions on the Child, particularly in relation to the financial support of the Child whilst the Child lives with the Mother and also in relation to the effect of his abuse and violence as directed against the Mother. I also note and take into account that the Father is not supportive of the cultural background of the Mother or of the learning by the Child of the Macedonian language.
His Honour concluded:
125.I do accept, however, that it is in the best interests of the Child to spend substantial and significant time with the Father and that that is reasonably practicable. The Child clearly has a close and loving relationship with the Father. The Father is available to care for the Child and has the resources to do so. By providing substantial and significant time, the Father will be better able to participate in the school activities and sports. By better constructing the orders, the Mother will be able to have some weekend time with the Child.
Relevant Legal Principles
The principles which govern the current in appeal are not in doubt and do not require extensive restating for the purpose of the appeal.
The High Court has consistently identified the bases upon which an appeal court may be entitled to interfere with the exercise of discretion. The presumption that a trial Judge’s decision is correct is outlined by Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 (at 627):
I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513, at pp 532–534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
The husband thus bears the onus of demonstrating that his Honour’s decision was “clearly wrong”.
In House v The King (1936) 55 CLR 499 the High Court said at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230 – 231:
Discretionary and evaluative decisions
186.A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
Of particular relevance to the parenting aspect of the current appeal is the judgment of Stephen J in Gronow v Gronow (1979) 144 CLR 513 in which his Honour 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.
Of particular relevance to the property aspect of the current appeal is the judgment of Brennan J in Norbis v Norbis (1986) 161 CLR 513 in which his Honour said (at 539 – 540):
The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at p.345 Asquith LJ. stated the rationale of an appellate court’s approach:
“…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
It has long been recognised that intermediate appeal courts charged with determining appeals against discretionary judgments must be mindful of what is generally referred to as “the trial Judge’s advantage”. In Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 178) McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] A.C. 37 (at 47):
…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
His Honour said:
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”. Watt or Thomas v. Thomas [1947] A.C. 484, at p. 488 (at 178).
His Honour further said:
…when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. (at 179).
In Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472 (at 479) Brennan, Gaudron and McHugh JJ observed:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”. (at 479).
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 (“Earthline”), having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment (619, paragraph 90) his Honour said:
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 of 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 conclusions 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 was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. (at 619).
The Grounds of Appeal
The grounds of appeal, and submissions in support of them, alternate between challenges to the learned Federal Magistrate’s determination of the parenting proceedings and his determination of the property settlement proceedings. Without being critical of such approach, it is hopefully helpful and logically attractive to first consider the grounds which challenge the outcome of the parenting proceedings. As was clearly stated by him in his Reasons for Judgment, the learned Federal Magistrate relied significantly upon his determination of the parenting proceedings when exercising his discretion in favour of the wife pursuant to section 75(2) of the Act.
The Court has had the benefit of extensive and closely reasoned written submissions from experienced Counsel for the parties, supplemented by oral debate.
Before proceeding to consider the challenges to the learned Federal Magistrate’s decisions in the parenting and property settlement proceedings sequentially, it is convenient to deal with what appears to be a challenge which has application to both the parenting and property settlement challenges.
Ground 1
Ground 1 of the Notice of Appeal provided:
1.His Honour erred in law in prefacing his judgment that statements of fact in his judgment constitute findings of fact in circumstances where he refers to conflicting facts on issues throughout his judgment.
In support of this challenge it was submitted that it was “difficult to determine what the exact findings of fact are throughout the learned Federal Magistrate’s judgment given that, at the commencement of the portion of the judgment that deals with evidence, the learned Federal Magistrate simply states that the ‘statements of fact constitute findings of fact’”.
It was further submitted that:
1.5…the failure of the learned Federal Magistrate to specifically identify findings of fact infects the subsequent exercise of the discretion by the learned Federal Magistrate in determining what is just and equitable in relation to orders on the division of property and, further, attracts the intervention of an Appellate Court in relation to the orders by the learned Federal Magistrate concerning the child [D].
Finally, it was submitted:
1.6…that the learned Federal Magistrate acted on incorrect principle in failing to identify the facts found by him which failure, it is respectfully submitted, attracts the intervention of an Appellate Court which should exercise its discretion in substitution for that exercise by the learned Federal Magistrate.
Significantly, neither in his comprehensive written submissions nor in any oral submission to this Court, did learned Counsel for the husband identify an issue or topic with respect to which the error alleged pursuant to this ground was asserted to have been apparent. Indeed, as will be seen from the numerous and varied grounds agitated on behalf of the husband with respect to both parenting and property settlement proceedings, the difficulty asserted pursuant to this Ground has not impeded the detailed articulation of challenges to the learned Federal Magistrate’s decision by reference to relevant findings of fact as they emerge from his Honour’s Reasons for Judgment.
In order to better appreciate this complaint, it is appropriate to record what his Honour actually said. Under the heading “Evidence”, the learned Federal Magistrate recorded that he had regard to the affidavits to which he had been directed, “to the oral evidence of the parties and other witnesses”, to exhibits, and to submissions made on behalf of the parties. His Honour recorded that “findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties”. With respect to his Honour, that was a concise and accurate statement of the law, and nothing to which this Court has been referred suggests that he failed to proceed in accordance with it.
It is not without relevance that the trial of the proceedings before the learned Federal Magistrate occupied five hearing days, during which his Honour had the opportunity to see, hear and observe the parties giving evidence at length with respect to a variety of issues relevant to the parenting and property settlement proceedings.
It has not been suggested, save, albeit unsuccessfully, in one respect to which reference will shortly be made, that the learned Federal Magistrate failed to make findings on the balance of probabilities. There has been no challenge to the learned Federal Magistrate’s findings with respect to the credibility of the parties. As his Honour’s Reasons for Judgment make clear, there were a number of issues, perhaps most notable of them being the issue of domestic violence, which turned on his Honour’s assessment of the evidence of the parties with respect to which his Honour was, permissibly, significantly influenced by his observations.
Whatever else might be intended to be conveyed by this challenge, nothing emerging from the learned Federal Magistrate’s judgment gives any cause for disquiet in relation to his Honour’s introductory remarks. Indeed, with respect to him, nothing would be different for the purpose of the appeal to this Court had his Honour not made his preliminary observations with respect to the evidence. It is apparent from numerous parts of his Reasons for Judgment that the learned Federal Magistrate generally, albeit not without some reservations, preferred the evidence of the wife to that of the husband. So is why he did. That general preference is reflected by what are clearly “findings of fact”. The areas in which his Honour was less persuaded by the wife’s evidence are also clearly referrable to his application of the standard of proof. Nor, in the absence of any suggestion that it was not so, would it be inferred from reading the Reasons for Judgment that any finding of fact there recorded was made other than on the balance of probabilities. Whilst his Honour referred to conflicting factual assertions, the Court has not been referred to any allegedly “conflicting” findings of material facts.
The parenting appeal
Ground 8
Ground 8 provided:
8.His Honour erred in finding that the Child had spent the preponderance of his time with the Wife.
On behalf of the husband it was submitted that:
8.1At AB37.7 (para 71 judgment) the learned Federal Magistrate found that it was “clear on the evidence” that the child had spent “the preponderance of time with his mother”.
8.2It is respectfully submitted that this finding is inconsistent with the finding by the learned Federal Magistrate (AB29.1 (para 32 judgment)) where the learned Federal Magistrate found that the Respondent did not supervise the child at all times as asserted by her, due to the absence of the Respondent for purposes of her employment.
As with a number of other issues at trial, the parties had different versions of events in relation to this topic. His Honour was obliged to prefer one of them to the other. The learned Federal Magistrate saw and heard the parties give evidence in relation to the topic, an advantage not shared by this Court. His Honour made a credit finding which has not been challenged.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in making the finding which he did. Other than the alleged inconsistency recorded above, how his Honour is said to have erred has not been explained. The Court has not been referred to circumstantial or other evidence which precluded the finding his Honour made. Nor, as is apparent from a balanced reading of them, are the two paragraphs (32 and 71) of the learned Federal Magistrate’s judgment in any way inconsistent. This challenge lacks substance.
Ground 9
Ground 9 of the husband’s Notice of Appeal provided:
9.His Honour erred in concluding that the Wife was the “primary attachment figure” for the Child.
In support of this challenge, it was submitted that such finding was “inconsistent” with an earlier finding by the learned Federal Magistrate that the wife had not supervised the child at all times as asserted by her and the finding then also made that the wife had been the child’s “primary carer” for “about the first year of the child’s life”.
It was further submitted that these findings were “at odds” with his Honour’s later finding that the child was “strongly attached to the father”.
It was submitted on behalf of the husband that the evidence established “that both the Appellant and the Respondent developed an attachment to the child.” (Counsel’s emphasis).
It was thus submitted that there was “insufficient evidence so as to cause the learned Federal Magistrate to come to the conclusion that the child had a “primary” attachment to the Respondent or vice versa”. (Counsel’s emphasis).
Learned Counsel for the husband then referred to the evidence (Appeal Book 275.2) of the author of the Family Report, asserting that such “evaluation did not reach the conclusion that the child was primarily attached to one of its parents. A perusal of that report demonstrates the level of involvement of the Appellant with the child”. (Counsel’s emphasis).
It was ultimately submitted that “none of this evidence was successfully challenged in cross-examination and that, accordingly, the learned Federal Magistrate erred in making the finding that the respondent was the ‘primary attachment figure’ for the child”.
On behalf of the wife it was submitted with respect to this ground that there was no inconsistency in the findings made by the learned Federal Magistrate and that the conclusions reached by him had been reasonably open to his Honour on the evidence.
The Court was reminded, correctly, that no part of the husband’s challenge to the learned Federal Magistrate’s determination of the proceedings before him involved any challenge to the credit finding, or any suggestion that the learned Federal Magistrate had palpably misused the advantage which he had of seeing and hearing the parties give evidence and be cross-examined.
The learned Federal Magistrate did find (at paragraph 84 of his judgment) that the wife was “a primary attachment figure” of the child. It was necessarily submitted by Counsel for the husband that such a conclusion was not reasonably open.
His Honour’s finding of fact that the wife had been the child’s primary carer “during cohabitation other than when she had been absent from work” has not been challenged, nor has the reality that since the parties separated almost 3½ years ago the child has primarily lived with the wife.
Nothing to which this Court has been referred suggests that the learned Federal Magistrate’s conclusion that the wife was the child’s “primary attachment figure” was not reasonably open to him. Moreover, as suggested to Counsel during the course of debate, neither the word “primary” nor anything referred to by the learned Federal Magistrate suggests that the finding of a “primary attachment” was to the exclusion of an attachment to the husband. On the contrary, as the learned Federal Magistrate recorded at various places throughout his judgment, including paragraph 84, the child was “strongly attached” to the father.
So far as the learned Federal Magistrate’s earlier finding (paragraph 32) is concerned, the Court is not persuaded that such finding was not reasonably open or inconsistent with any later or other finding. Indeed, the learned Federal Magistrate rejected the contention of the wife that the child had “at all times” been supervised by her.
His Honour did accept that the wife had been the child’s primary carer “for about the first year of the child’s life” and the child’s “primary carer for the balance of the parties’ cohabitation”. As the subsequent paragraph makes clear, the learned Federal Magistrate was well aware of, and accepted the evidence in relation to the husband’s contributions towards the care of the child.
It is also to be noted that in these paragraphs the learned Federal Magistrate was referring to matters of fact in terms of “primary care”. Later in his judgment (paragraph 84) his Honour recorded matters of inference or conclusion, albeit they were based upon the factual findings earlier recorded.
The author of the family report had recorded an inability to “discriminate between the parties as to the child’s respective attachment levels”, for reasons which the author of the report briefly provided. Significantly, the report concluded “if however the Court can establish which parent provided the child with substantially more care, then the child’s primary attachment figure may be indicated”.
That, with respect to learned Counsel for the husband, is precisely what the learned Federal Magistrate did. So doing as “the ultimate trier of fact” was a matter, as the author of the Family Report clearly recognised, within the exclusive province of the learned Federal Magistrate.
In reaching his decision, his Honour had regard to the evidence of parties who he saw and heard cross-examined. Nothing to which this Court has been referred establishes that his Honour erred in finding facts in reliance upon the evidence before him, or in drawing inferences from those facts.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in the manner asserted by this ground.
Ground 10
Ground 10 provided:
10.His Honour erred in concluding that the Wife had been generally facilitative of a relationship between the Child and the Husband.
Having referred to the learned Federal Magistrate’s finding that the wife had been “generally facilitative of the relationship between the Child and the Father”, it was submitted that the learned Federal Magistrate erred, and ought to have found that the wife had not been “generally facilitative”.
Reference was made to the evidence of the husband alleging “difficulties that he had in pursuing a relationship with the Child by reason of the behaviour of the Respondent in actively attempting to frustrate the development of a relationship between the Child and the Appellant.” It was submitted that the husband’s allegations had not been seriously challenged during cross-examination.
Ultimately it was submitted that “the finding by the learned Federal Magistrate that the Respondent had been ‘facilitative’ is against the weight of the evidence and that this finding demonstrates an error on the part of the learned Federal Magistrate which is not supported by the evidence”.
On behalf of the wife reliance was placed upon the various caveats of the High Court in relation to appellate interference with the exercise of judicial discretion. Learned Counsel for the wife also relied upon the absence of any challenge to the learned Federal Magistrate’s findings with respect to the credibility of the parties and absence of complaint that the “trial judge’s advantage” had been “misused”.
Understandably, learned Counsel for the husband did not challenge any of the learned Federal Magistrate’s positive findings with respect to the strength of the child’s positive attachment to the husband. Such attachment could potentially have arisen for the reason ultimately found by the learned Federal Magistrate, or have arisen despite what Counsel for the husband submitted was the wife’s opposition to the child developing or sustaining a relationship with his father. Having heard the evidence of the parties, and seen them cross examined, his Honour found the former explanation and rejected the latter.
As noted earlier, there has, sensibly, been no challenge to the learned Federal Magistrate’s findings with respect to the credibility of the parties. Nor has there been any suggestion that his Honour palpably misused the advantage which he gained from having seen and heard the parties give evidence and be cross-examined by Counsel. His Honour was uniquely placed to make findings with respect to these issues. His Reasons for Judgment make clear that his Honour was alive to the competing assertions with respect to this topic and carefully considered them.
The issues raised by this ground were considered by the learned Federal Magistrate under the heading “The willingness and ability of each of the Child’s parents to facilitate and encourage a close and continuing relationship between the Child and the other parent”. His Honour there recorded, accurately there can be no doubt, the assertion of the husband that the wife was likely only to give “lip service” to the need to facilitate a close and continuing relationship between the child and his father and the allegations made by the husband in support of that assertion.
His Honour also recorded the wife’s response to the husband’s complaints. As is clear from his conclusion with respect to the topic, the learned Federal Magistrate was “concerned that neither of the parties is likely to do all that they should to foster an appropriate relationship for the Child with the other” for reasons which he detailed.
When considering “the likely effect of any change in the child’s circumstance” his Honour referred to the orders pursuant to which the child spends “significant time” with the husband, such arrangements having “worked sufficiently well for the Child to maintain a close and loving relationship with each of the parties”.
His Honour reasoned that his inability to be “convinced” that the husband would “promote an appropriate relationship as between the Child and the Mother” militated against the child ceasing to live with the mother but supported the child “spending greater time with the Father, particularly in such circumstances where the Father can be more fully involved in the day to day life of the Child”.
Under the heading “Attitude to the Child and to the responsibilities of parenthood” his Honour then recorded the finding to which the current challenge is specifically directed.
With respect to learned Counsel for the husband, the factual matters which his Honour had earlier recorded and to which this Court has referred supported the finding that the mother had been “generally facilitative” of the relationship between the child and his father. On the findings of fact made by him, the learned Federal Magistrate’s choice of words was apt given the criticisms of the wife which he had earlier articulated. Moreover, the “generally facilitative” conduct of the wife was able to be seen, as the learned Federal Magistrate clearly saw it, in the context of the “abusive relationship as between the Father and the Mother” and “failure of the father to comply with his child support obligations and his attempts to reduce such obligations”.
In the circumstances as they emerge from the learned Federal Magistrate’s Reasons for Judgment, the conclusion under challenge was reasonably open to his Honour. None of the findings of fact which underpinned that conclusion has been shown to have been erroneous, either by virtue of the credit finding or otherwise. This challenge fails.
Ground 11
Ground 11 provided:
11.His Honour erred in finding that the Husband had failed to comply with his child support obligations and improperly took into account that the Husband had attempted to have such obligations reduced in considering the question as to who the Child should live with.
The crux of this challenge is the assertion of learned Counsel for the husband that:
11.08There was no evidence that the Appellant had “failed to comply” or sought to “minimise” his child support obligations. Indeed, at AB368.15 the Appellant maintained that he will ‘‘pay everything’’ “when I get a final decision by the Court’’. That evidence was given when the Appellant was being cross-examined as to matters pertaining to child support.
It was accordingly asserted that the learned Federal Magistrate erred in finding that the husband had either failed to comply with his child support obligations or sought to minimise such obligation. Reference was made to the passage in the learned Federal Magistrate’s Reasons for Judgment (par 55) in which his Honour said:
55.The Husband has attempted by way of review to reduce the relatively small contributions required of him by way of administrative assessment of child support. Whether successful or not, the contribution by the Father will go only a very small way to assisting the Wife in her care of the Child. This is unlikely to change given the disability of the Husband and his continued reliance upon the disability pension currently received by him.
It was thus reiterated that:
11.11 There was simply no evidence that the Appellant had “failed” to comply with his child support obligations or “sought to minimise” those obligations. The right to seek a review of a child support assessment is a legal entitlement pursuant to the Child Support (Assessment) Act 1988.
As is apparent from his submissions, learned Counsel for the husband maintained this challenge both with respect to the outcomes in both the parenting and property settlement proceedings. To that end it was submitted:
11.15The finding made by the learned Federal Magistrate that the Appellant had sought to “minimise” his child support obligations was an extraneous matter and a mistake of fact which infected the exercise of the discretion by the learned Federal Magistrate pursuant to section 75(2) of the Act.
In the context of section 75(2), the Court cannot accept that such could be the case.
Unless his findings are shown to have been unsound, this was a matter upon which the learned Federal Magistrate could rely in the context of the parenting and property settlement proceedings. The husband’s attitude to the financial support of his child was clearly relevant under Part VII of the Act.
Section 75(2)(na) of the Act clearly obliged the learned Federal Magistrate to consider the level of child support being paid and likely to be paid in the future. If the present challenge to his Honour’s finding fails, any challenge to his Honour having regard to that matter pursuant to section 75(2) must also fail. Objectively, if a finding were made that there has historically been a low level of child support provided and that such level has been sought to be further reduced, those were matters to which the learned Federal Magistrate was entitled to have regard in the wife’s favour within the context of section 75(2).
On behalf of the wife it was submitted with respect to this Ground, and to Grounds 12 and 18, that the findings made by the learned Federal Magistrate had not been shown to be other than reasonably open to him and to be relevant to the determination of both the parenting and the property settlement proceedings. If the challenges to his Honour’s findings of fact have merit, exercising his discretion in reliance upon them may have been erroneous.
Learned Counsel for the wife referred the Court to the learned Federal Magistrate’s findings in relation to this topic (paragraph 103). His Honour there said:
103.The Father has failed to comply with his child support obligations and has sought to minimise them. Whilst he may eventually be found to be correct in law, he should understand that the Mother is in very poor circumstances without the resources that he has. In those circumstances she is attempting to care for the Child pursuant to orders made by consent. Either not paying assessed child support or attempting to minimise it must impact upon the Child and yet the Father has continued along this path.
Reference was then made to the evidence of the husband that he paid the minimum assessment of child support of $5 per week (Appeal Book 1, page 169, para 31) and to the evidence of the husband in cross-examination that, for the purpose of a child support review he had understated his income (Appeal Book 2, page 315, lines 15-21) and had filed an objection to a current child support assessment (Appeal Book 1, page 240).
No evidence to which the Court has been referred by learned Counsel for the husband establishes that the Federal Magistrate’s conclusions with respect to this issue were other than reasonably open to him. Nor does anything to which the Court has been referred establish that his Honour erred in the findings of fact upon which such conclusions were based or able to be based.
As noted earlier, the learned Federal Magistrate had the advantage of seeing and hearing the parties give evidence. That was of particular relevance in relation to the evidence of the husband on this topic. From his Reasons, his Honour did not accept the assertions of the husband to which his learned Counsel has referred. Moreover, this challenge assumes a simplistic approach to the topic which, as his reasons confirm, the learned Federal Magistrate did not adopt.
Whilst it is undoubtedly correct, as the husband clearly maintained at trial and his learned Counsel has urged upon this Court, that the husband may have been unable to pay more from his income than he was from time to time assessed to pay, and thus be able to assert that he had fully discharged his “legal obligations”, having seen and heard the husband give evidence in relation to the topic, and having regard to the matters of history to which he referred, in the circumstances, it was reasonably open to the learned Federal Magistrate to be critical of the husband in the terms emerging from paragraph 103 of his Reasons for Judgment.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in the manner asserted pursuant to his ground.
Ground 12
Ground 12 provided:
12.His Honour erred in finding that attempting to minimise his child support liability impacted upon the Child in circumstances where the Husband was in receipt of a Disability Pension and unable to work.
In reality, as learned Counsel for the husband acknowledged, in substance the same complaint as articulated in this challenge has been agitated pursuant to Ground 11.
The reasons the Court has advanced for rejecting Ground 11 thus have considerable application to this challenge. It is perhaps useful however to also record that, as the learned Federal Magistrate’s Reasons for Judgment make clear, the significance of this topic was the impact on the wife of the husband’s conduct in circumstances where the husband was required to make payments of child support which reflected his inability to work and significant reliance upon a disability pension, albeit his resources greatly exceeded those of the wife.
With respect to Counsel for the husband, the learned Federal Magistrate was clearly conscious of the limitations on the husband’s capacity to pay child support and confined his criticisms accordingly. The evidence before him entitled the learned Federal Magistrate to draw the inferences adverse to the husband which he did.
Ground 13
Ground 13 provided:
13.His Honour erred in concluding that the Husband had been engaged in violent and abusive behaviour towards the Wife and, further, that this was a factor which weighed in favour of the Child living primarily with the Wife.
Various and lengthy contentions were advanced on behalf of the husband in support of this challenge. The difficulty which however confronts the challenge is that there has not been any challenge to the learned Federal Magistrate’s finding with respect to credit. Nor has there been any assertion that the learned Federal Magistrate had palpably misused the “advantage” which he had by virtue of having seen and heard the parties cross-examined. Nor has the Court been referred to circumstantial or other evidence which would render the learned Federal Magistrate’s finding of fact in relation to this topic unsafe (see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588).
The learned Federal Magistrate was clearly aware of the outcome of the criminal proceedings. It is, sensibly, not suggested that such outcome was decisive of the issue before his Honour. With respect to learned Counsel for the husband, as his Reasons for Judgment make clear, the learned Federal Magistrate addressed this topic by reference to a number of relevant provisions of Part VII of the Act. His Honour was obliged in the circumstances of this case to do that.
Properly understood, there is no inconsistency in drawing the inferences which his Honour did from his findings with respect to the husband’s past violent conduct. With respect to learned Counsel for the husband, the Court fails to perceive any inconsistency between finding on the one hand that an incident occurred three years earlier, and on the other refusing to accept the likelihood of such incidents again occurring.
It has not been demonstrated that his Honour erred in law or logic in finding that although unlikely to be repeated, the husband’s past violence to the wife in the presence of the child and attitude it evinced was a factor favouring the child primarily living with the wife. With respect to his Honour, on the evidence before him, to have found otherwise may well have enlivened appellate intervention. Similarly, this Court perceives no error of law or logic in declining to make an adverse finding with respect to the future in reliance upon the past, yet having regard to the past in terms of attitudinal matters as the learned Federal Magistrate did.
To the extent that it may be asserted pursuant to this challenge that the learned Federal Magistrate had erred in concluding that the conduct of the husband which he found proved had demonstrated “poor insight into the effect of such conduct on the child” in circumstances where the child had observed such conduct, such challenge has not been made out.
It was submitted on behalf of the husband that “it does not follow that, because the criminal charge of assault was dismissed on the criminal standard, it is established on the balance of probabilities, which was the conclusion erroneously arrived at by the learned Federal Magistrate”. With respect, that submission inaccurately and unfairly reflects what the learned Federal Magistrate said with respect to this topic.
Having noted that criminal proceedings against the husband were dismissed in 2005 (paragraph 107), the learned Federal Magistrate said:
109.I note the cross-examination of the Father in relation to this incident. The Father was not convinced and both his answers to questions asked and his demeanour was evasive. I find it more probable than not that the Father did conduct himself in the way alleged by the Mother in the statement made by her to the Police.
His Honour had earlier said:
74.As to the second of the primary considerations, I again note the allegations made by the Mother as to violent behaviour and threats being made towards the Mother by the Father. These allegations are denied by the Father and, indeed, charges brought against the Father in relation to such incidents were dismissed. I do accept, of course, that the burden of proof in criminal proceedings is quite different to that in these proceedings.
It is clear beyond doubt that, having seen and heard each of the parties cross-examined with respect to this topic, the learned Federal Magistrate directed his mind to the probabilities and concluded as he did. No circumstantial evidence to which this Court has been referred renders his findings in that regard to have been other than reasonably open to him.
With respect to the ingenuity of the submissions of Counsel for the husband, none of the various matters raised elsewhere in the submissions in support of this ground changes the position or otherwise entitles the challenge to succeed. Even if, contrary to this Court’s conclusions, the learned Federal Magistrate was not entitled to give any weight to his findings with respect to the husband’s abusive behaviour towards the wife in the context of determining the best interests of the child, there were sufficient other factors to which his Honour clearly referred and upon which he clearly relied which supported his conclusion in that regard.
Ground 14
Ground 14 provided:
14.His Honour erred in concluding that the presumption, pursuant to section 61DA(1) of the Family Law Act 1975 did not apply.
As his Honour’s Reasons for Judgment (para 118) and the orders he made (Order 8) confirm, the learned Federal Magistrate applied the presumption of shared parental responsibility. Why his Honour did that is not in doubt when his Reasons for Judgment are read and understood.
Accordingly, as the submissions of learned Counsel for the wife suggest, there seems little point in exploring the minutiae of the submissions of learned Counsel for the husband in support of this challenge. The challenge appears in substance to involve a reiteration of earlier challenges to the learned Federal Magistrate’s findings with respect to the husband’s previous violent and abusive conduct towards the wife.
It is sufficient to record that none of the matters raised pursuant to this ground, whether or not they were raised in earlier challenges, advances the current complaint. Nor does the challenge to the adequacy of the learned Federal Magistrate’s reasons with respect to this topic. As the Court has made clear in rejecting earlier challenges to the learned Federal Magistrate’s decision, having seen and heard the parties cross-examined with respect to an issue about which theirs was the only, or crucial, evidence, the learned Federal Magistrate made findings on the balance of probabilities. Such findings were, unsurprisingly, significantly influenced by his Honour’s unchallenged credit findings and “advantage” as the trial Magistrate as that term is understood in Australian law.
Then, permissibly in this Court’s view, his Honour considered that the effluxion of time and other intervening circumstances to which he referred did not militate against the presumption of equal shared parenting or restrictions on the nature or quantity of time which the father should spend with the child in the future.
His Honour carefully explained why, notwithstanding his conclusions with respect to those matters, amongst other significant factors, the findings with respect to the husband’s past violent and abusive conduct towards the wife in the presence of the child remained of some significance in the context of considering whether the child should spend equal time with both parents.
As has been found with other challenges to the learned Federal Magistrate’s exercise of discretion in the parenting proceedings, no appealable error has been demonstrated pursuant to this ground.
Ground 15
Ground 15 provided:
15.His Honour erred in concluding, pursuant to section 65DAA of the Family Law Act 1975 in that it would not be in the best interests of the Child to spend equal or substantial and significant time with each of the Child’s parents.
It should be noted at the outset that the learned Federal Magistrate in fact expressly found that it would be in the best interests of the child to spend substantial and significant time with each of the child’s parents.
In the light of the submissions of learned Counsel for the husband on the hearing of the appeal, this complaint appears to be that a sharing of the child’s time between his parents during school term of nine days per fortnight with the wife and five days with the husband could not constitute “substantial and significant” time with the husband.
As is self evident, if, contrary to the submissions of Counsel for the husband, the learned Federal Magistrate was entitled to conclude that equal sharing of time with each parent was not in the best interests of the child, only by establishing that his Honour should have ordered eight days with the wife and six days with the husband in each fortnight during school term could this challenge succeed. The husband must therefore establish that six days per fortnight could constitute “substantial and significant time” but five could not.
To the extent, as may be the case, that this challenge asserts that the learned Federal Magistrate erred in concluding that the child spending equal time with both parents was not in the child’s best interests, the challenge has not been made out. The Court’s rejection of earlier challenges to the learned Federal Magistrate’s conclusions with respect to domestic violence and abuse and child support contribute to that lack of success. To the extent that the complaint is directed to the learned Federal Magistrate’s conclusions with respect to the “level of cooperation and communication between the parties”, nothing to which the Court has been referred by learned Counsel for the husband persuades the Court that his Honour erred. Logic and commonsense suggest that those were matters which were relevant to the issue before his Honour and were matters with respect to which his Honour was uniquely placed to make findings of fact, as he did. Not insignificantly, the findings of fact of the learned Federal Magistrate in relation to that topic are not the subject of challenge in this Court, and sensibly so.
With respect to learned Counsel for the husband, what orders courts “frequently make” has no relevance to the present case. The learned Federal Magistrate was exercising a broad discretion by reference to the particular facts and circumstances of the case before him. Nothing to which this Court has been referred demonstrates that the exercise of discretion was vitiated by reference to extraneous facts or circumstances, or the erroneous application of principle or the relevant provisions of Part VII of the Act. Nor has it been demonstrated that the exercise of discretion was vitiated by the failure to refer to any relevant fact or circumstance. It has not been demonstrated that the learned Federal Magistrate erred in failing to conclude that the child should spend equal time with the parents.
It is necessary to consider whether, as submitted on behalf of the husband, the orders made by the learned Federal Magistrate were incapable of constituting “substantial and significant” time spent with the father.
With respect to learned Counsel for the husband, the decision of the Full Court in the passage from Eddington v Eddington (No. 2) (2007) FLC 93-349 at (82000) (par 15.15 of his submissions), cited by him, reinforces the reality that each case turns on its own particular facts and circumstances. Beyond noting that the “legislative requirements are conjunctive”, little is gained from that decision for present purposes. As the facts of the case make clear, the Court’s decision in Eddington was significantly influenced by the comparative infrequency of time spent by the child with one parent as that emerged from detailed references to calendars.
In this case, the orders of the learned Federal Magistrate provided that during school term the child spend time with the husband from after school Friday to before school the following Tuesday morning, i.e. four nights, the whole of the weekend, part of two school days and the whole of another school day. The orders further provided that in the intervening week the child spend time with the husband from after school Thursday to before school the next day, i.e. part of two school days and one over night.
As noted earlier, the contention of Counsel for the husband is necessarily that, to constitute substantial and significant time, having rejected equal time sharing, the learned Federal Magistrate should have ordered that the child spend eight days with the wife and six with the husband in each fortnight period during school term. In what way six days represented the “substantial and significant” quality that five did not was not explained.
Nothing to which this Court has been referred establishes that the order made by the learned Federal Magistrate could not constitute both substantial and significant time within the meaning of section 65DAA(2) of the Act. This challenge accordingly fails.
Ground 16
This Ground provided:
16.That in considering what order would be appropriate as to the Child His Honour took into account extraneous matters to guide him as to his judgment in that he took into account the alleged violence that had occurred in the past and an alleged failure of the Husband to properly understand the effect of failing to comply with his child support liability.
As the submissions of learned Counsel for the husband sensibly acknowledged, the fate of a number of earlier challenges is decisive of this challenge. For reasons which the Court has provided with respect to those challenges, this challenge necessarily fails. As has earlier been recorded, nothing to which this Court has been referred establishes error in relation to either the finding of fact or the drawing of inferences or reaching of conclusions in reliance upon them with respect to each of the two topics referred to by this ground.
Grounds 17 & 18
Similar observations apply to each of Grounds 17 and 18 which respectively provided:
17.His Honour’s discretion miscarried in concluding that a regime of shared care could not succeed and/or that such a regime was not in the best interests of the Child in circumstances where such a determination was unreasonable and/or unjust.
18.His Honour erred in finding that the Husband had displayed poor insight into the effect of the financial support of the Child and the alleged violence allegedly directed against the Wife and took into account these extraneous matters when considering what was the appropriate parenting order to make in relation to the Child.
Grounds 21 and 22
It remains only in the context of the challenges to the determination of the parenting proceedings to refer to Grounds 21 and 22 of the Notice of Appeal. Those grounds respectively provided:
21.His Honour’s discretion miscarried when he concluded that it was appropriate to order that the Child live with the Wife in that his conclusion in this regard was unreasonable and/or unjust.
22.His Honour’s discretion miscarried when he concluded that it was appropriate to order that the Child spend time with the Husband as set out in Order 10 of the orders made by His Honour in that the making of such an order is unreasonable and/or unjust.
Sensibly, other than to confirm that these grounds were sought to be advanced by reference to submissions made, unsuccessfully, in support of earlier grounds, learned Counsel for the husband did not make any specific submissions. In reality, only by earlier grounds of appeal succeeding, and thereby rendering these grounds unnecessary could the grounds succeed. Conversely, no earlier challenge having been made out, no independent basis for either of these grounds succeeding has been or could be suggested.
The Property Appeal
Ground 2
Ground 2 provided:
2.His Honour erred in finding that the Husband did not borrow the sum of $10,000.00 (ten thousand dollars) and in failing to take that sum into account in reaching his ultimate judgment on property matters.
The husband had given evidence that he had borrowed $10 000 in cash on account of his legal costs in the proceedings, $7000 of which had been borrowed from Mr and Ms B and $3 000 from Mr M. The evidence of the husband was that he increased his debt to the ANZ Bank to $74 543.64 when he repaid those monies. [Appeal Book Vol 1, page 134, paras 2-3].
It was submitted that, by referring to the ANZ Bank debt at $66 000, the learned Federal Magistrate had erred given that the actual sum then outstanding was $74 543.64.
On behalf of the wife it was submitted that, had the learned Federal Magistrate included as a liability the current balance of the ANZ Bank debt ($74 543.64) as asserted by Counsel for the husband, nothing would have changed in that so doing would have resulted in an additional and offsetting $10 000 being notionally added back with respect to the husband’s paid legal fees. It was thus submitted that, whilst the liabilities would have increased, so, to a corresponding degree, would the assets, the net asset pool not changing as a result.
Quite apart from the reality that the issue is de minimus, no evidence to which the Court has been referred establishes that the learned Federal Magistrate erred in approaching the matter in the way in which he did. Notwithstanding that the whole of the transcript of the proceedings before the learned Federal Magistrate was included in the Appeal Books in this Court, learned Counsel for the husband conceded that Counsel’s final submissions did not form part of the Appeal Books. As such, what, if anything, was put to his Honour by way of final submissions in relation to this topic could not be established.
The husband bears the onus of demonstrating appealable error. There is a presumption in favour of the learned Federal Magistrate’s decision. The learned Federal Magistrate does not appear to have referred specifically to this issue in his judgment. In the absence of clear evidence that his Honour was obliged to do so, and there is none, or submissions establishing that his Honour was referred to the topic, this Court does not conclude that his Honour erred. There is a logical explanation for the absence of any reference to the topic, as learned Counsel for the wife suggested. It is unnecessary to speculate about such matters however. Neither the evidence to which learned Counsel referred the Court or any other matter relied upon establishes that this ground has substance.
Ground 3
Ground 3 provided:
3.That His Honour erred in finding that the Wife was the primary carer of the Child of the marriage [D Steinbrenner] born [in] June 2001 (hereinafter referred to as “the Child”).
Albeit in the context of the challenge to the parenting orders, this ground has effectively been considered and rejected earlier in these Reasons for Judgment.
The learned Federal Magistrate’s unchallenged preference of the evidence of the wife over that of the husband where the two were in conflict, in conjunction with the positive findings he made with respect to the husband’s contributions to the care of the child, deny this complaint any entitlement to success.
The parties disagreed about this topic. Each gave extensive evidence. The learned Federal Magistrate heard and saw the parties cross-examined in relation to the topic. Significantly, the learned Federal Magistrate did not accept the entirely of the wife’s assertions with respect to the topic and carefully identified the different situations which applied during the course of the parties’ cohabitation. Nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in making the findings he did on this topic.
Even if, contrary to this Court’s conclusions, the learned Federal Magistrate had erred in fact, it would not necessarily follow; having regard to the husband’s own evidence, that such error of fact vitiated the exercise of the learned Federal Magistrate’s discretion. Albeit a significant aspect of the wife’s contribution based entitlement, there were other matters upon which the learned Federal Magistrate could rely and did rely.
Ground 4
Ground 4 provided:
4.His Honour erred in finding that the Wife was the primary home maker.
An obvious difficulty confronting this complaint arises from the learned Federal Magistrate’s unchallenged preference for the evidence of the wife to that of the husband where the two were in conflict. As recorded at numerous other points throughout these Reasons for Judgment, the parties disagreed in relation to this topic, gave extensive evidence about it and were cross-examined with respect to it, at times in considerable detail.
The learned Federal Magistrate had the advantage over this Court of seeing and hearing the parties give evidence. It has, sensibly, not been suggested that the learned Federal Magistrate misused that advantage. In the absence of any demonstration that any finding relating to the evidence of the parties themselves were unsound, and there has been no such demonstration, the challenge to the learned Federal Magistrate’s finding of fact cannot succeed.
The submission that the learned Federal Magistrate “failed to take into account that the appellant was not working and was engaged in the care of the child with whom he had developed a close relationship” ignores the reality that the learned Federal Magistrate recognised, and recorded, that the husband had not worked since 1998 and had a close relationship with the child.
Ultimately it was submitted on behalf of the husband that:
4.7…on the evidence before the Court, the learned Federal Magistrate erred in not finding that the Appellant was the primary carer when, on an objective analysis of the evidence, the evidence would have lead the learned Federal Magistrate to the conclusion that the homemaking duties were equally shared between the Appellant and Respondent and that the Respondent was the primary carer of the child when an objective analysis of the evidence would have escapably (sic) lead one to the conclusion that, during the period of cohabitation, that (sic) the Appellant was the primary carer of the child or, alternatively, that the caring duties of the child were shared equally between the Appellant and Respondent.
As was submitted by learned Counsel for the wife, on the evidence before him, the learned Federal Magistrate may have so concluded. That however is not the test. Objectively, the learned Federal Magistrate was faced with only two people, the propounders of those differing versions of the facts, really knowing where the truth most probably lay. In those circumstances the learned Federal Magistrate was entitled, and did, prefer the evidence of one party to that of the other. Quite apart from the reality that such general preference was not challenged before this Court, the learned Federal Magistrate provided reasons throughout his judgment for such preference.
In the absence of circumstantial evidence rendering the preference of the wife’s version against that of the husband preferable on the balance of probabilities, and the Court has been referred to no such circumstantial evidence, this challenge cannot succeed. Even if it could, it would not automatically or necessarily follow that the asserted errors of fact necessarily vitiated the exercise of his Honour’s discretion. This challenge fails.
Ground 5
Ground 5 provided:
5. His Honour erred in finding that the Wife had limited working experience in that in considering this matter he ignored the employment history of the Wife prior to the marriage.
Having referred to the evidence, none of which was at variance with anything relied upon by the learned Federal Magistrate, it was submitted that the wife:
5.5…was 30 years of age when she arrived in Australia. Having completed three years of High School in Macedonia she would have been available to participate in the workforce, prior to coming to Australia for approximately fifteen years.
It was further submitted that:
5.6In circumstances where there is no evidence at all as to the Respondent’s work history in Macedonia, it is respectfully submitted that the learned Federal Magistrate erred in concluding that the respondent had limited work experience as there was no evidence at all which would support such a finding.
Reliance was placed upon the child of the parties being in child care three days per week in support of the challenge to the learned Federal Magistrate’s finding.
It was thus ultimately submitted that:
5.8…the error made by the learned Federal Magistrate as to the Respondent’s work history indicates that he has made an error in making this finding as there was no evidence to support it. Moreover, it is respectfully submitted that the learned Federal Magistrate has acted on a wrong principle in that he has made a finding where there is no evidence to support such a finding. Accordingly, it is respectfully submitted that, having made such an error, the ultimate determinations made by him should be reviewed by an Appellate Court which should exercise its own discretion in substitution for that exercised by the learned Federal Magistrate.
It is instructive to refer to what the learned Federal Magistrate actually said about the wife’s “limited working experience”. Albeit in support of the complaint with respect to the learned Federal Magistrate’s conclusion with respect to contributions, it was not submitted on behalf of the husband that his Honour had understated the wife’s “working experience” during the course of the marriage”. As his Honour recorded, the wife had employment “1 day a week for 3 hours” during 2003 and 2004, together with work cleaning a house for one year during the parties’ cohabitation. Nor was the Learned Federal Magistrate’s favourable finding “that the overwhelming direct financial contribution, both as at the date of marriage and since, has been made by the Husband” challenged.
How that work history is inconsistent with the description “limited working experience” has not been explained. Counsel for the husband did not refer the Court to any cross-examination of the wife establishing, or seeking to establish, experience or qualifications for employment other than in the terms to which his Honour referred in his judgment.
The Court has not been directed to any evidence before the learned Federal Magistrate which established, or tended to establish, that the wife’s education or experience in Macedonia, prior to arriving in Australia, equipped her to enter the workforce in this country, in any capacity. Nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in finding that the wife had “limited working experience”. On the contrary, the evidence to which this Court has been referred suggests that a finding in terms more favourable or positive to the husband would have been unsustainable. This challenge fails.
Ground 6
Ground 6 provided:
6.His Honour erred in failing to make a finding that the Wife was in receipt of a Social Security benefit at the date of hearing.
In essence, as the submissions of learned Counsel for the husband make clear, the complaint in relation to this issue is essentially that, within the context of section 75(2) of the Act, the learned Federal Magistrate recorded (paragraph 45) that the husband had the “benefit of a disability pension” but failed to refer (inferentially in paragraph 46) to the reality that the wife was also in receipt of social security benefits.
Learned Counsel for the husband referred to the evidence, which is not disputed, as to the social security benefits being received by the wife. It was thus submitted that:
6.4…the failure of the learned Federal Magistrate to acknowledge that the Respondent was in receipt of a Social Security benefit infected his ultimate conclusion that there should be an adjustment, pursuant to section 75(2) of the Act, in favour of the Respondent.
It was further submitted that:
6.5…the learned Federal Magistrate acted on a wrong principle in failing to acknowledge the income of the Respondent. In these circumstances it is respectfully submitted that the learned Federal Magistrate made a mistake as to fact, which mistake as to fact infected his ultimate determination as to the adjustment to be made in favour of the Respondent pursuant to section 75(2) of the Act.
It is literally correct to assert that the learned Federal Magistrate did, in the context of section 75(2)(b), record that the husband receives a disability pension and did not record that the wife also received social security benefits.
Although the learned Federal Magistrate did not expressly say so, the evidence before him was clear that the wife’s primary source of funds in the post separation period was the receipt of social security. His Honour’s findings with respect to the wife’s capacity for employment (paragraphs 44 and 46) leave no scope for suggesting that his Honour was under any misapprehension in relation to this issue.
As the submissions of learned Counsel for the husband sensibly acknowledge, the critical issue raised by this challenge is whether the learned Federal Magistrate adjusted in favour of the wife pursuant to section 75(2) in reliance upon the husband’s acknowledged social security benefits in the absence of any acknowledgement that the wife was also in receipt of such benefits.
Realistically, if it could be demonstrated that the learned Federal Magistrate adjusted in favour of the wife pursuant to section 75(2) because he erroneously regarded the husband’s position as being superior by reason of social security benefits, appellate intervention may be enlivened. Quite apart from the fact that it has not been established that the learned Federal Magistrate erred in fact, a balanced reading of his Honour’s reasons does not provide a rational basis for concluding that the wife’s entitlement pursuant to section 75(2) was enhanced by reason of the receipt of pensions.
A balanced reading of paragraphs 45 and 46 of his Honour’s reasons suggests that, albeit for quite different reasons, the capacity of each party for “appropriate gainful employment” was regarded as not so dissimilar as to provide a basis for any section 75(2) adjustment. The husband was clearly, as his Honour found “physically unfit for gainful employment”. The wife’s language difficulties and limited work experience, and the nature of that work experience, constituted a “substantial impediment to her obtaining suitable gainful employment, at least of a substantial type”.
In no other part of the Learned Federal Magistrate’s assessment of section 75(2) factors was the question of work capacity or pension entitlement referred to.
It has not been established that any part of the wife’s section 75(2) adjustment was referrable to the husband’s receipt of an invalid pension or any misapprehension as to the wife’s receipt of pension benefits. This challenge accordingly fails.
Ground 7
Ground 7 provided:
7.His Honour erred in finding that the Wife was not likely to cohabit with another person in the foreseeable future.
This challenge, as learned Counsel for the husband’s submissions confirm, is directed to paragraph 54 of the learned Federal Magistrate’s judgment at which, in the context of section 75(2)(m) of the Act, his Honour recorded “neither party is cohabiting with another person nor is it likely in the foreseeable future that this situation will change”.
It is to be noted that this challenge does not assert that his Honour erred in failing to find that the wife was cohabiting with another person. It is also to be noted that the absence of any finding of cohabitation related to both parties.
It was submitted on behalf of the husband that there was “simply no evidence before the Court which would support such a conclusion”, i.e. the conclusion that it was not likely in the foreseeable future that the wife would cohabit with another person. As is usually the case, proof of a negative is generally difficult and often impossible. Moreover, the submission of learned Counsel for the husband overlooks the reality that it was only in the event of there being evidence which obliged the learned Federal Magistrate to find that it was in fact likely that section 75(2)(m) would have potential relevance. In fact, the section does not invite judicial speculation about what might be, instead focussing upon what is. Unless sustainable as a finding of fact, with respect to him, his Honour’s conclusion was irrelevant for the purposes of s 75(2).
Reference was made to the wife’s relationship with a man named “G”. It is apparent from cross-examination of the wife at trial that the husband suspected the wife of having a relationship with “G”. The wife did not dispute that she associated with the man “G” but maintained that she was not cohabiting with “G” or in any financial relationship with him.
This Court has been referred to no evidence which precluded the learned Federal Magistrate from making the finding he did in relation to the wife’s likely future cohabitation. The learned Federal Magistrate’s unchallenged finding with respect to credibility also has relevance to this issue.
On behalf of the husband it was submitted that:
7.10…in reaching the conclusion that the respondent was not likely to cohabit with another person in the foreseeable future, when there was no evidence to support such a conclusion, there was an unreasonable and unjust assessment of section 75(2) factors operating in favour of the Respondent in circumstances where the learned Federal Magistrate took into account an extraneous matter of which there was no evidence to support.
There are numerous logical flaws in this submission. First, and most relevantly, the learned Federal Magistrate did not make an adjustment in favour of the wife in reliance upon the finding that it was not likely in the foreseeable future that she would commence cohabitation with another person. On no construction of his Honour’s reasons could the contrary be rationally suggested.
Moreover, there was evidence supporting his Honour’s conclusion, that being the evidence of the wife which was able to be accepted and was accepted by the learned Federal Magistrate. As noted elsewhere, the learned Federal Magistrate’s conclusions with respect to credibility have not been challenged in this appeal. It has not been suggested that his Honour palpably misused the advantage he had over this Court of having seen and heard the witnesses give evidence over the course of a lengthy trial. On the evidence before him, other than by disbelieving the wife’s evidence, the finding made by the learned Federal Magistrate was the only finding reasonably open to him.
The wife is entitled to have a relationship with whom she pleases. There is no presumption that having a relationship with another person necessarily leads to cohabitation or any other relevant financial arrangement.
The learned Federal Magistrate did not err in fact. Even if he had, given that the wife’s section 75(2) adjustment was not enhanced by virtue of section 75(2)(m), such mistake of fact would not enable this challenge to succeed.
Ground 19
Ground 19 provided:
19.His Honour’s discretion miscarried when he concluded that the Wife’s contribution based entitlement was 10% of the pool of property of the parties in that his conclusion was unreasonable and/or unjust and that he failed to give reasons in his judgment as to how he reached the figure of 10%.
In lieu of the contribution based entitlement determined by the learned Federal Magistrate (10 percent or $55 000), it was submitted by learned Counsel for the husband that his Honour should have found an entitlement of 5 percent ($27 500).
As the judgment of Brennan J in Norbis v Norbis (1986) 161 CLR 513 confirms (at 539 – 540) the obstacles to success confronting this challenge are substantial.
Before dealing with the actual challenge to his Honour’s conclusion with respect to the parties’ contributions, it is convenient to refer to the submission on behalf of the husband that the learned Federal Magistrate erred by adopting a “global” approach to the evaluation of the parties’ contributions.
Learned Counsel for the husband was unable to refer the Court to anything in the transcript to suggest that this topic had been agitated before the learned Federal Magistrate, or that his Honour had been urged on behalf of the husband to adopt, as Counsel for the husband submitted his Honour should have, an asset by asset approach to the evaluation of the parties’ contributions.
With respect to the submissions of learned Counsel for the husband in relation to the approach to be taken, as the High Court recognised in Norbis, it is a matter of discretion for a trial Judge or Federal Magistrate, as to which approach to take. Neither is inherently likely to produce a just or an unjust result.
Whilst the preferred approach will suggest itself in many cases, and without suggesting that an asset by asset approach would have been clearly inappropriate in the circumstances of this case, the “global” approach adopted by the learned Federal Magistrate was sensible in the circumstances of this case. Indeed, it is not difficult to see how, in the circumstances of this case, an asset by asset approach to the evaluation of contributions could have rendered a relatively uncomplicated task complex and capable of resulting in error.
As his Honour recorded, other than in a number of limited areas, with respect to which his Honour made findings of fact, few controversial issues of substance arose in the case. The overwhelming bulk of the assets available at trial were assets which the husband had at commencement of cohabitation, or derived from the sale of other assets which the husband had at commencement of cohabitation (the Queensland investment unit).
The earnings of the parties during cohabitation, and thereafter, were not in doubt. In the circumstances, to adopt a “global” approach to the assessment of contributions was logical and sensible. It did not however guarantee a just and equitable determination, and it is to the two aspects of the outcome of the “global” approach that the Court now turns its attention.
A number of submissions were made in support of this Ground. It is unnecessary to refer to those submissions, for reasons which will become apparent.
The learned Federal Magistrate was exercising an undoubtedly broad discretion. This challenge is directed in part to the weight which his Honour gave to a number of facts and circumstances, the bulk of which have either not been challenged or, for reasons earlier provided, unsuccessfully challenged. The ground also appears to assert that the learned Federal Magistrate failed to provide adequate reasons for his decision.
It is convenient to dispose of the latter issue first. In what way the learned Federal Magistrate failed to articulate his reasoning process has not been suggested by learned Counsel for the husband. That is unsurprising when one reads his Honour’s Reasons for Judgment.
In the course of his reasons, the learned Federal Magistrate, sensibly in this Court’s view, addressed the issue of contributions by reference to three periods of time. They were, the commencement of cohabitation, the period of cohabitation, and the period subsequent to the determination of cohabitation. It is apparent, save for the contributions which the learned Federal Magistrate found the wife to have made during cohabitation and “events since separation”, that the direct and indirect financial contributions were “overwhelmingly”, as his Honour recorded, made by the husband.
Whilst the wife was found to have made somewhat greater contributions as homemaker and parent, as his Honour also recorded, the contributions of the husband in those areas were not insignificant and the husband made greater non-financial contributions to “tasks outside the house”.
In the post-separation period, his Honour concluded, for reasons which he detailed, that the husband had been in a significantly better financial position than had the wife, particularly when regard was had to the level of child support which the wife was receiving for the child of the parties who primarily resided with her.
Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case. In some cases, the “leap” is so great, and so unheralded by the discussion which precedes it as to render the reasoning process defective. In this Court’s view this is not such a case.
Essentially, for the reasons which he carefully and accurately detailed by reference to the facts found by him, that, overall, the husband’s contributions vastly outweighed those of the wife, the learned Federal Magistrate grappled with the difficult question of “by how much”.
With respect to learned Counsel for the husband, what more his Honour could constructively have added to his Reasons for Judgment is difficult to imagine. Whether or not such conclusion was reasonably open to him, the learned Federal Magistrate adequately “spelt out” why he concluded as he did. The reader is not in any real doubt as to why the wife’s contributions were assessed as they were. The Court is not persuaded that the learned Federal Magistrate’s Reasons for Judgment were inadequate.
A number of complaints about the failure to refer to particular contributions were advanced in support of this ground. Those complaints conveniently overlook a number of matters.
The learned Federal Magistrate expressly referred to the receipt by the husband of $35 000 by way of compensation in 2001. To the extent that he did not refer to other contributions for living and other expenses, those are not matters of significance given his Honour’s conclusion that “the overwhelming direct financial contribution, both as at the date of marriage and since, has been made by the Husband”. It was unnecessary in those circumstances for his Honour to say more.
A number of submissions, none of which has been shown to have been made before the learned Federal Magistrate, and which cannot advance matters in any event, appear in the written submissions of learned Counsel for the husband. The Court does not perceive that it is obliged to refer to everything put to it in those submissions. With respect to learned Counsel for the husband, to read many of the complaints articulated in support of this challenge is to appreciate their absence of substance.
It has not been successfully submitted that the learned Federal Magistrate was mistaken as to any material fact in relation to the exercise of his discretion.
His Honour identified, accurately, the vast disparity in the financial positions of the parties at the commencement of cohabitation. He concluded, accurately, that the “overwhelming” direct financial contribution, at the commencement of marriage and thereafter had been made by the husband.
His Honour made findings of fact, albeit by no means overwhelmingly, that the wife had made a greater contribution as the carer of the parties’ child to the date of separation than had the husband, that the wife had, albeit not overwhelmingly, made the greater contribution during that period as homemaker, and that the husband had, albeit of a seemingly modest nature, made the greater contribution to “tasks outside the house”. In the post separation period, in the ways identified by him, the learned Federal Magistrate recorded the disparity in the parties’ circumstances.
Against the foregoing background, the learned Federal Magistrate concluded, in the exercise of an undoubtedly broad discretion, that the contribution based entitlements of the parties should favour the husband over those of the wife by a margin of 90 percent to 10 percent. Nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in any manner recognised by long established appellate principles. It has not been demonstrated that his Honour’s discretion was vitiated by the failure to refer to any relevant fact or circumstance or by his having referred to any irrelevant or extraneous fact or circumstance. No error of principle was involved in the exercise of discretion. The exercise of discretion was not vitiated by any material error of fact. Nor was the exercise of discretion so plainly wrong that, notwithstanding discernable appellable error, this Court should interfere with it.
His Honour may in the exercise of his discretion have recognised the wife’s contributions as 5 percent as submitted on behalf of the husband. Conversely, his Honour may have considered the wife’s contributions to be somewhat in excess of 10 percent. This Court is not persuaded that the award made by the learned Federal Magistrate fell beyond the ambit of a reasonable exercise of his discretion, notwithstanding, as the authorities recognise, that others may have come to a different conclusion.
The complaint that the learned Federal Magistrate failed to apply, or misapplied the decision of the Full Court in Pierce v Pierce (1999) FLC 92-844 is manifestly unsustainable, and not simply because the learned Federal Magistrate cited the relevant passage from the Full Court’s judgment in that case.
Properly analysed, the whole process of evaluating the contributions of the parties was conducted under the umbrella of the decision in Pierce. Objectively, as the learned Federal Magistrate correctly recognised, that was what the contribution aspect of the case was all about. The evidence was clear and unequivocal that all the property in existence or its source had been owned by the husband at the commencement of cohabitation and had been supplemented by the contribution in 2001 of $35 000 by way of personal injury sustained by the husband prior to the cohabitation of the parties.
The learned Federal Magistrate clearly had regard to the so called “erosion” principle emerging from Pierce. With respect to learned Counsel for the husband, it has not been demonstrated that the learned trial Judge erroneously “eroded” the husband’s initial contributions. Nor has it been made clear on what basis his Honour was alleged to have thus erred.
The challenge to the learned Federal Magistrate’s conclusion with respect to contributions accordingly fails.
Ground 20
Ground 20 provided:
20.His Honour’s discretion miscarried when he concluded that it was just and equitable that the Wife receive by way of an adjustment in her favour, pursuant to section 75(2) of the Act a further 15% of the matrimonial assets in that such a conclusion is unreasonable and/or unjust.
A number of submissions were made in support of this challenge. As is apparent from reading them, a number of those submissions rely upon challenges which have earlier been rejected. It is unnecessary to refer again to those matters.
With respect to learned Counsel for the husband, to succeed, a number of other challenges require a conveniently selective reading of the learned Federal Magistrate’s Reasons for Judgment and a similarly convenient ignoring of earlier parts of his Judgment. Perhaps the most effective way of considering the various challenges with respect to section 75(2) is to have regard to what the learned Federal Magistrate actually said in that context. So doing, each of the various challenges agitated in support of this ground can be seen to lack substance.
As is not in doubt, the learned Federal Magistrate made an adjustment in favour of the wife of 15 percent by virtue of section 75(2) of the Act. In monetary terms, such adjustment translated as a sum of approximately $77 000.
The first matter addressed by the learned Federal Magistrate for the purpose of his section 75(2) determination was the “age and state of health of the parties”. There is no suggestion that his Honour erred in any fact found and recorded by him in that context so far as the husband is concerned.
Importantly, the learned Federal Magistrate referred to the age of the husband, the fact that he had not worked in any “significant capacity” since he was injured in the course of his employment in 1998, and to the husband’s receipt of a disability pension. The learned Federal Magistrate accepted that the husband was likely to be precluded from “substantial employment in the future”.
The learned Federal Magistrate accepted, uncontroversially for present purposes that the wife was “in good health and not working”. His Honour saw and heard the wife give evidence over the course of the lengthy trial before him. It was reasonably open to his Honour to conclude as he did that the wife had “difficulties with the English language”. That was a matter of fact, or of fact and inference, well within the jurisdictional competence of the “ultimate trier of fact”.
The child of the parties was aged 7, had been, and would continue to be in the wife’s primary care. The wife was entitled pursuant to section 75(2) to rely upon her “responsibilities in relation to the care of the Child” as the learned Federal Magistrate acknowledged.
The learned Federal Magistrate reiterated his findings with respect to the husband’s capacity, in the context of the parties’ financial resources and capacity for employment.
His Honour further accepted that “most of the rental income” from the Queensland investment property was utilised “for purposes associated with the purchase and maintenance of that unit” and thus not available to the husband to spend.
The learned Federal Magistrate found that the wife had “limited working experience”, which he detailed. There has been no challenge to the accuracy of the learned Federal Magistrate’s identification of the work the wife had undertaken subsequent to the date of marriage. The challenge to his conclusion that the wife had “limited working experience” has failed. It was reasonably open to his Honour, and consistent with common sense, to conclude that the wife’s “language difficulties” were “a substantial impediment to her obtaining suitable gainful employment, at least of a substantial type”.
What unexercised capacity for appropriate gainful employment the wife possesses, has not been suggested to this Court. Nor has any relevant prior experience for employment been suggested. Notwithstanding these observations, a balanced reading of the paragraphs of the learned Federal Magistrate’s judgment dealing with section 75(2)(b) provides no foundation for concluding that any part of the wife’s section 75(2) adjustment arose by virtue of the parties’ income, employment or capacity for employment. The only inference reasonably open from his Honour’s reasons is that the parties were, albeit for different reasons, in roughly similar circumstances.
The learned Federal Magistrate then identified, accurately, that the wife would continue to have the primary responsibility of caring for the parties’ child in circumstances where she was “likely to receive little by way of child support from the husband”.
Challenges to those conclusions or findings have been rejected by this Court for reasons which have been earlier detailed. Objectively, whether pursuant to section 75(2)(c), or section 75 (2)(na), or a combination of the two provisions, the future care of the child, and the prospect of receiving “little by way of child support from the husband”, were matters to which the learned Federal Magistrate could give considerable weight when determining the quantum of the section 75(2) adjustment to be made in the wife’s favour. The parties’ child was not yet eight years of age. The future financial and non-financial burden which the wife would thus bear was considerable.
The learned Federal Magistrate clearly did not adjust in favour of either party by virtue of section 75(2)(d), (e) or (f).
The learned Federal Magistrate recorded pursuant to section 75(2)(g) that the wife had “suffered a significant deterioration in her standard of living since the parties’ separated”. At least inferentially, and permissibly, the wife received a modest adjustment by virtue of that factor.
Other than by way of amplification of matters earlier discussed (section 75(2)(l) and section 75(2)(na), no other fact or circumstance was taken in to account by the learned Federal Magistrate.
Under the heading “Conclusions”, the learned Federal Magistrate recorded that a section 75(2) adjustment in favour of the wife of 15 percent was in the circumstances justified. It is clear from his Honour’s judgment (para 59) and the consideration of section 75(2) which preceded it, that the 15 percent section 75(2) adjustment was based overwhelmingly, if not entirely, on the fact that the wife would have the greater financial and non-financial responsibility for caring for the parties’ child in the future, in circumstances where she would receive “little by way of child support from the husband”.
Significantly, the learned Federal Magistrate did not have regard for the purpose of section 75(2) to the fact that the husband had, and would continue to have, significantly greater assets than would the wife. That is not to suggest that his Honour should have done that. Quite properly in the circumstances of this case, the wife did not in any way benefit pursuant to section 75(2) from the husband’s greater capital resources.
Significantly, the effect of his Honour’s orders was not to disturb the husband’s continued unencumbered ownership of the former matrimonial home, or, on his Honour’s findings, to materially reduce the husband’s income. The sale of the Queensland property to satisfy the wife’s entitlement, albeit still leaving the husband with a substantial capital sum, would not result in the loss to the husband of a significant income stream. As his Honour recorded, little of the rental income from the Queensland property remained after the payment of expenses “associated with the purchase and maintenance of that unit”.
As with the assessment of contributions, determining an appropriate section 75(2) adjustment involved the exercise of a broad discretion. This Court may not have been as generous to the wife as was the learned Federal Magistrate, but that is not the test. The learned Federal Magistrate did not exercise his discretion pursuant to section 75(2) by reference to erroneous facts, nor did he have regard to extraneous or irrelevant facts or circumstances or fail to have regard to relevant facts or circumstances. No error of principle has been demonstrated. Nor has it been demonstrated that, despite the absence of demonstrable error, the adjustment made by the learned Federal Magistrate was manifestly excessive.
With respect to the submissions of learned Counsel for the husband, the section 75(2) adjustment made by the learned Federal Magistrate has not been shown to have fallen “beyond the ambit of a reasonable exercise of discretion”. Nor has it been demonstrated, whether pursuant to section 75(2)(o) or section 79(2), that the learned Federal Magistrate’s decision with respect to property settlement was unjust or inequitable.
As noted above, the effect of his Honour’s decision was, when implemented, to provide the wife with a modest capital sum with which to secure the future of herself and the parties’ child whilst leaving the husband with secure accommodation, and, after satisfying the wife’s entitlement, presumably by selling the Queensland investment unit, a lump sum likely to be in the order of $50 000. Such an outcome has not been shown to be unjust or inequitable.
Conclusion
No ground of appeal with respect to the parenting or property settlement proceedings having been established, the husband’s appeal will be dismissed.
Costs
Learned Counsel for the husband sensibly conceded that, if the appeal were dismissed an order for costs of the appeal should be made in favour of the wife. The Court will so order.
I certify that the preceding two hundred and seventy three (273) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman
Associate:
Date: 10 December 2008
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