Thatcher & Thatcher
[2024] FedCFamC1A 204
•1 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Thatcher & Thatcher [2024] FedCFamC1A 204
Appeal from: Thatcher & Thatcher [2024] FedCFamC1F 324 Appeal number: NAA 145 of 2024 File number: CAC 1530 of 2021 Judgment of: ALDRIDGE, HARTNETT & RIETHMULLER JJ Date of judgment: 1 November 2024 Catchwords: FAMILY LAW – APPEAL – Father appeals from final parenting and property orders – Where the primary judge made orders for the child to live with the mother and spend supervised identity time with the father – Allegations of sexual abuse – Findings that the father posed an unacceptable risk of harm to the child – The decision of whether there is an unacceptable risk of harm is evaluative – The primary judge considered the matters the father alleges he failed to take into account – Where the reasoning process is clear – Challenges to weight – Where the primary judge made a further 10 per cent adjustment to the mother following contributions – Where property division is an exercise of a broad discretion – Failure to establish the outcome was unreasonable or plainly wrong – Appeal dismissed – Father to pay the mother’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 75 Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Livingstone v Halvorsen (1978) 22 ALR 213
M v M (1988) 166 CLR 69; [1988] HCA 68
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 69 Date of hearing: 30 September 2024 Place: Sydney Counsel for the Appellant: Ms Davis Solicitor for the Appellant: Elringtons Lawyers Counsel for the First Respondent: Mr Djurdjevic with Mr Cantrall Solicitor for the First Respondent: Swaab Lawyers The Second Respondent: Did not participate (submitting notice filed) The Independent Children’s Lawyer: Did not participate (submitting notice filed) ORDERS
NAA 145 of 2024
CAC 1530 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR THATCHER
Appellant
AND: MS THATCHER
First Respondent
MR YANAI
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, HARTNETT & RIETHMULLER JJ
DATE OF ORDER:
1 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs fixed in the sum of $17,000 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thatcher & Thatcher has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, HARTNETT & RIETHMULLER JJ:
This is an appeal against parenting and property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 17 May 2024. The Independent Children’s Lawyer and the second respondent, the paternal grandfather, took no part in the appeal, having filed submitting notices.
PARENTING APPEAL
It is convenient to deal first with the appeal against the parenting orders.
The primary judge made orders that saw the parties’ child, X, who was born in 2018, live with Ms Thatcher (“the mother”) who was to have sole parental responsibility for her. X was to spend supervised time with Mr Thatcher (“the father”) four times per year.
His Honour made these orders because he was persuaded that the father posed an unacceptable risk of harm to X from which she needed to be protected.
Commencing in December 2022, X began making statements to the mother that caused her to become increasingly concerned as to the possibility of sexual abuse occurring when X was in the care of the father. The primary judge found that a number of the described events did not have a sexual context but found that some of the statements made by X, particularly six specific statements, “provide a strong basis to consider that the father presents an unacceptable risk of sexual harm to X” (at [223]).
The first of these was a statement made in June 2023. The mother’s evidence was:
[In June 2023], [X] and I were driving to [sport] in my car. We were alone. [X] said to me: “mummy, do you have a butterfly in your bum?”. I said: “no [X] I don’t”. She said: “Do you like butterflies in your bum”. I said: “no, I don’t.” She said: “would you like a butterfly in your bum?”. I said: “no, [X] I wouldn’t, that sounds yucky, it would have lots of legs and feel like a creature and I wouldn’t like it.”
(Mother’s affidavit filed 7 February 2024, paragraph 75)
The second was made the following day. The primary judge discussed the evidence as follows:
165At paragraph 76 of her trial affidavit, the mother describes that she was driving X to school when the following exchange took place:
She asked again about the butterfly in my bum. She said: “mummy, do you have a butterfly in your bum?”. I said: “[X] what are you talking about, is this a real butterfly, where are you getting it, why is it in my bum?” [X] said: “daddy does it”. I said: “what? Is it a real one?”. [X] said: “no, it’s daddy’s fingers.” I said: “ok is this your front or back bum?’ [X] said: “it’s in my front bum”. I said: “what does it feel like?” She said: “It feels like a worm wiggling inside me and trying to steal my bubble”. …
166The mother explained that the reference to “bubble” was to X’s clitoris which X and the mother had previously discussed during bath time. The mother says that the exchange continued:
… I said: "ok [X], where does this happen?". [X] said: "at daddy's house". I said: “has it happened once or more times?” [X] said: “it happens every day”. I said: “ok. Is there anyone else there?”. [X] replied: “no its just me and daddy.” I asked: “[X], why are you telling me this?”. [X] replied: “I want you to fix it, I don’t want to keep secrets anymore”. I said: “ok, [X], you were brave to tell me, telling a secret can be hard.” I said: “[X] we need help for this one it’s tricky. We need to tell your principal who is a good friend of mine who will help. I asked can you do that?” [X] only nodded and said: “I feel sick in my tummy”. I said: “yes [X] that is a nervous feeling, don’t worry it will be ok”. …
167The mother then described taking X to see the Director of the preschool, Ms T. The mother described the following exchange taking place in the Director’s office:
… Once we were in the office [X] sat on my lap and faced my chest and she told her: “Daddy was putting a butterfly in my bum.” I said: “what does that mean?” She replied: “Daddy was putting his fingers in my bum, and it felt like a worm trying to steal my bubble”. I asked her: “was this your front bum or your back bum”. She said: “front bum.” I asked her: “did you have clothes on or where (sic) you naked?”. [X] said: “I had clothes on”. [Ms T] asked additional questions of [X] like: “where was this?” and “who was there?”. [X] replied: “at daddy’s house, no-one was there”. [Ms T] took notes and then reported it to the principal of [the primary school].
168Ms T gave evidence in the proceedings, relying upon contemporaneous notes of the mother and X’s conversation in her presence. She described the mother and X attending the U Preschool in mid-2023, both visibly upset, the mother crying. They were taken to Ms T’s office, where the mother told X “I want you to tell [Ms T] what you told me in the car.”
169Ms T described that X said “my daddy has a secret. There were butterflies in my bottom, he put his fingers in my bottom and said they were butterflies.” Ms T described that X said that this happened frequently, often in the father’s bedroom. X demonstrated how the father would put his hands inside her underwear. She further noted that later in the day X’s teacher reported to her that X had told her that there were “butterflies in [her] bum.”
170Ms T’s notes recording the exchange differed from her description set out above. She noted the mother asked X “where was the butterfly”, with X replying “in my bum” and that “it was a trick by daddy.” She further described that it made her feel “very, very not excited, just very sad” and “daddy did it in my bum and feels like worms.” She described that he used his finger, that he touched through (Ms T described X pointing towards her underwear, and understood that this was a reference to being touched under her clothing) her clothes, telling X that it was good for her. She said that he told her that it was a secret, that it happened in her father’s room, standing up wearing clothes.
171The notes and Ms T’s recollection bore some divergence, although they bore strong consistencies, including that it was “in” X’s bum or bottom.
172Mr O described that the mother called him as she drove home from dropping X at preschool, crying and describing that X had said that the father had touched her vagina.
173Later that day the mother called the AFP, who then attended upon the mother at the home.
174The mother says that when she collected X from preschool she told her that she would need to speak to a police lady about it to help to sort it out, at which time the following exchange took place:
“good, because it hurts when daddy puts his fingers in my bum”. I said: “that’s no good [X], did you tell him that?”. She said: “yes, but he doesn’t stop”. I said: “even if you don’t speak up, he shouldn’t be doing that to you.”
175A Case Summary document produced by the police was tendered, indicating that the allegation was that X had stated to the mother that the father played with her bottom with his hand and finger (nil penetration).
176The AFP summary describes that the mother reported that in the previous day, X had asked the mother if she liked having a “butterfly on her bottom.” The mother further described that on the following day X had again asked about the butterfly on the bottom, saying “dad puts a butterfly on my bum,” that X then described the father putting fingers on her front bottom, describing that the father would put his fingers underneath her pants and it felt like “a worm was trying to steal her bubble (a reference purportedly to her clitoris).” X said that the father wanted her to keep it a secret.
Ultimately, his Honour concluded that it was more likely that X complained of fingers “in” her bottom.
The third matter relied upon was the complaint to Ms T, as it appears in the above quotation.
The fourth was a statement made in July 2023. The mother’s evidence was that she told X she was taking her to the doctor to examine the child’s vagina to make sure it was healthy and free from germs. X replied “well there might be some germs, before daddy sticks his fingers in my vagina he sucks them, he says to keep it a secret” (mother’s affidavit filed 7 February 2024, paragraph 96).
The fifth instance relied upon was a number of later statements made by X about the father touching her bottom and her vagina.
Finally, Mr N, a clinical psychologist appointed as a single expert in the proceedings, spoke with X in September 2023 and recorded the following in his report:
85.I asked about her father and she said “he gives me surprises, a lot of surprises. He doesn’t let me have space to grow. So I won’t get bigger. I think I need a little rest from him.” I asked how much she saw her father and she said “it feels a bit bad. Because he tells me to keep a secret about the butterfly in my bum.” I asked what that means and she said “something very bad. Sometimes my Dad does bad things.” I asked her to tell me more and she said “touching my private stuff.” She was quieter when responding to this subject, and her eyes were lowered and voice more mumbled. I asked how that made her feel and she said “sad. A bit lonely because I can’t tell anyone. I was a bit scared. It happened lots of times.” I asked [X] if her grandfather was there when she sees her father and she said “no, he’s not, but [Mr Yanai] is.” I was initially puzzled by this but realised through revisiting the documents that this is the paternal grandfather.
(Single Expert Report of Mr N filed 18 October 2023)
There was no suggestion made that the mother had invented the conversations or coached the child to say what was said.
The primary judge was not persuaded that the above established that the conduct had actually occurred. He did, however, reach the following conclusion:
226The ready availability of a sexual act or acts, as the interpretation of what X has said, is sufficient to conclude, even in the absence of a finding that the abuse has occurred, that X is at unacceptable risk of harm from the father. The interpretation supports the foreseeing of future possible harm in the sexual/psychological sense to X. As will be seen from further consideration of the evidence of the family report writer, such potential harm to X can only be seen as falling into an extremely harmful category. The unacceptable nature of the risk flows from the combination of the risk of sexual conduct toward X, and the magnitude of harm that may flow from such. Added to this, as assessed further below, is the potential risk of harm flowing from ongoing exposure to the father in the event that the father has sexually abused X.
Principles to be applied
This is an appeal from a discretionary judgment, so the following principles apply to it (House v The King (1936) 55 CLR 499 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…
The decision as to whether or not there is an unacceptable risk of harm is not, however, discretionary. It is an evaluative decision reached after considering the evidence as a whole, including matters that might point away from the possibility of a risk. In M v M (1988) 166 CLR 69 the High Court said at 77:
…After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access…
As such, courts of appeal are reluctant to substitute their own views unless an error has been identified. Whilst such a court is required to conduct a real review of the evidence to see whether there has been error (see [48] below), where two inferences were equally open it is not right for the appeal court to substitute its own view unless it formed the view that one inference “had a substantial preponderance of probability in its favour” (Warren v Coombes (1979) 142 CLR 531 at 551 quoting Livingstone v Halvorsen (1978) 22 ALR 213 at 228).
The relevant finding is as to the possibility and not the probability of risk of further harm (see Isles & Nelissen (2022) FLC 94-092). In relation to making such a finding, the following observations of the plurality in CDJ v VAJ (1998) 197 CLR 172 are apt:
151…Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order…
152… Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions...
Did the primary judge fail to properly assess the likelihood or potency of the risk of harm? (Ground 1)
This ground asserts that the primary judge erred in the following ways:
·Failed to consider the alternative hypothesis that pointed to an explanation other than abuse;
·Failed to consider the father’s denials and lack of opportunity;
·Failed to consider the evidence as to the father’s inherent characteristics;
·Failed to consider evidence of the positive relationship between the father and the child; and
·Failed to consider what mechanisms may have been available to ameliorate the risk
Alternative hypothesis
The “alternative hypothesis” postulated in the father’s Summary of Argument was that the statements of the child “were actually said as reported but did not indicate sexual abuse” (father’s Summary of Argument filed 26 August 2024, paragraph 20). At the hearing of the appeal the submission became slightly different – it was suggested that the child might not have been describing matters correctly.
The basis of the submission is that the primary judge did not accept that all of the statements made by X pointed to sexual abuse. The father also pointed to statements of the child that could not be literally true such as “it happens every day” (at [166]) or that it happened “frequently” (at [169]) or “he hurts me in my bed every night” (at [192]).
As the submission makes plain, his Honour considered each statement made by the child and determined whether it was indicative of abuse or not. Of those that were in the former category, the primary judge said:
224Even if it were to be considered that each of these statements contains some ambiguity as to meaning, and that they are consequentially unable to establish on the balance of probabilities that the father has sexually abused X, each, considered both individually and together, remains suggestive that the father has sexually dealt with X. While it may not be the case that a sexual act is the only explanation for the statements made by X, a sexual act remains a reasonable and cogent interpretation of X’s comments. The denials by the father are not sufficient to displace this interpretation of the events, although they point away from a conclusion that sexual abuse has occurred.
225The cogency of such an interpretation remains despite the evidence as to the different mechanisms that may influence what a child may say, as identified by Mr N. The interpretation gains added weight when considered in the light of Mr N’s assessment of the significance of what was expressed by X and the manner in which it was expressed. However, the ability of X’s comments to point to a sexual act by the father remains even absent Mr N’s assessment of X’s presentation.
(Emphasis added)
The primary judge did therefore consider that the statements might not indicate abuse and the error is not demonstrated. It must be remembered that at this stage his Honour was not considering whether sexual abuse had actually occurred but whether the statements pointed to an unacceptable risk that such abuse might occur.
It must be accepted that there is a possibility that the child was describing something entirely different to sexual abuse but that does not negate the possibility that the statements were descriptive of sexual abuse. We are unable to see any error in his Honour’s approach.
The father’s denials and lack of opportunity
As we have just seen, the primary judge expressly took the father’s denials into account. They were also taken into account at [223] and at [140]. This contributed to a lack of any positive finding of abuse being made (at [234]).
As to opportunity, his Honour said:
186Some emphasis was placed by the father and the second respondent on the door to the father’s room (and everyone else’s room for that matter) always being open. The father in particular described that it was a cultural practice to leave doors open, as a closed door would result in other family members coming to the room to see what the problem was that had closed the door. It was suggested that this limited or negatived opportunities for the father to have harmed X. While it may be taken to reduce the opportunities for such to occur, it was not so persuasive as to allow a conclusion that opportunities for clandestine harm of X did not arise.
In oral submissions at the appeal hearing, the father sought to rely on evidence from the paternal grandfather’s cross-examination that he was always with the father when the child was present. Properly understood however, the evidence was as to what the grandfather would do if he was appointed as a supervisor, not as to what had occurred in the past. As other answers made plain, there were many occasions where the grandfather agreed that he was not present with the father and the child.
The father’s inherent characteristics
The single expert undertook an assessment of the father as to “whether he has characteristics that are suggestive that he may be a sexual abuse risk” (at [200]).
His Honour declined to place weight on the assessment saying:
200…It was not suggested, in the event that there has been no sexual abuse of X, that such features are sufficient to establish that the father presents a risk of sexual abuse. That is, the significance of such characteristics is reliant upon whether the father has engaged in sexual abuse of X. If he has they are interpreted in the light of such, and assist to explain such conduct. If the father has not abused X, the characteristics do not of themselves demonstrate risk.
201If a conclusion is reached that the father does present a risk of sexual abuse based on X’s comments, then the further assessment of possible risk due to the father’s characteristics becomes unnecessary. Given the conclusions as to risk reached later in this judgment, it is not necessary to separately consider those characteristics.
The primary judge thus considered the father’s inherent characteristics but declined to give them weight.
The evidence of a positive relationship with the child
The primary judge recorded the Family Report writer’s observation that X was “really, really excited” to see the father and described him as “the best father” (at [229]).
At [133] his Honour noted that the mother contended the child was resistant to seeing the father and fearful of him. The father asserted there was a rich and positive relationship.
The primary judge did not descend into that arena because he said it had no bearing on future parenting arrangements if a finding of unacceptable risk was made (at [134]).
The father contends that a positive relationship would point against the likelihood of sexual abuse and that his Honour failed to undertake that consideration.
The findings of the Family Report writer noted at [31] above appeared just after a section of the reasons headed “Discussion and conclusion as to risk” and immediately before the section headed “Conclusion as to parenting”. The inescapable result is that the findings of the Family Report writer as to the attitude of X towards the father were taken into account in coming to the outcome.
Mechanisms to ameliorate risk
On appeal, the father had difficulty identifying the mechanisms that were available to ameliorate the risk, let alone those raised at the hearing before the primary judge.
The father’s position was that he did not pose any risk of harm to the child. He did not suggest any orders to the primary judge that might be appropriate if that primary contention was not accepted.
The Independent Children’s Lawyer proposed orders largely along the lines of the orders put forward by the father.
It is difficult to find that a trial judge erred by failing to take into account orders that might deal with any risk of sexual harm when none was suggested. Nonetheless, his Honour explained why he made the orders for the limited time at [233]–[236].
This ground therefore does not succeed.
It has to be said that during the course of submissions, counsel for the father often descended into matters of weight, which is not the ground, or made submissions in support of a conclusion that there was no risk of harm whatsoever. Again, that is not a ground of appeal.
Did the primary judge fail to give adequate reasons for not accepting the father’s denials of sexual abuse and why the identified risk of sexual abuse was unacceptable? (Ground 2(a) and (b))
The primary judge gave extensive reasons for his finding that there was “reason to exercise some caution in evaluating the evidence of the mother” (at [126]). He added however:
128Where the parties chose not to traverse important factual contentions raised by the mother, for example, as to particular disclosures attributed to X, then the identified cautions in respect of her credibility or reliability do not carry the same significance.
129This is particularly the case where there was little direct challenge to the any of the mother’s evidence of purported disclosures by X, and in large part no challenge at all to that evidence.
Similarly, substantial reasons were given for the finding that the evidence of the paternal grandfather also need to be approached with caution (at [93]).
No such consideration was carried out in relation to the father. However, the father’s denials were expressly taken into account (at [223]) and apparently given weight on that point.
We are not persuaded that the premise of Ground 2(a) has been established. Further, even vehement denials of abuse carry little force when there is cogent evidence of the possibility of abuse.
In this case it was not disputed that a four-and-a-half-year-old child said a number of things to the mother, the director of her pre-school and the single expert which are clearly capable of being seen as describing sexual abuse. His Honour gave extensive reasons for those findings. His Honour’s reasoning process is abundantly clear and the reasons are therefore adequate (Bennett and Bennett (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). Ground 2(b) is therefore also not made out.
Did the primary judge err in his assessment of the credibility of the father and the paternal grandfather because the assessment was against the evidence and the weight of the evidence? (Grounds 4 and 5)
We have some difficulty with these grounds and the submissions made under them which essentially assert we should substitute our view of the credibility of these parties in substitution for the findings of the primary judge.
That is not an available course. In Lee v Lee (2019) 266 CLR 129, the plurality said:
55A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts...
(Footnotes omitted)
See also Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 and Fox v Percy (2003) 214 CLR 118.
The father did not point to any such compelling unfairness, incontrovertible evidence or glaring improbabilities and this ground must therefore fail.
Did the primary judge fail to give adequate reasons for why the father was not found to be credible? (Ground 6)
This ground is based on a mistaken premise – there were no findings as to the credibility of the father’s evidence. As we have pointed out, his Honour took the father’s denials into account in determining not to make a finding of sexual abuse.
This ground does not succeed.
PROPERTY APPEAL
The parties had divisible net property worth $1,436,000. It consisted largely of two suburban properties and some superannuation. His Honour found that the various contributions of the parties favoured the mother as to 57.5 per cent against the father’s 42.5 per cent. Taking into account, in particular, the mother’s future care of X, the primary judge determined that the just and equitable outcome was that the mother receive 67.5 per cent of the parties’ property and the father 32.5 per cent.
There is no appeal against the finding as to contributions.
Ground 2(d) was not pressed.
Did the primary judge err by failing to consider the parties’ “respective property entitlement after the contributions based assessment as the first step in assessing any adjustment”? (Ground 3(a))
There is no reason to think that the primary judge did not have in mind the contributions-based findings when making the s 75(2) adjustment. There was nothing about the property so divided that called for comment.
Indeed, the submission was essentially that the outcome was too much in favour of the mother which is the subject of the next ground. Further, as there was no challenge to the contributions finding and a concession was made at the hearing of the appeal that an appropriate further adjustment would have been of the order of 2.5 per cent to 5 per cent, this ground is doomed to fail.
Was the assessment of s 75(2) factors unreasonable or plainly wrong or were inadequate reasons given? (Grounds 2(c) and 3(b))
The point of this ground is that the primary judge did not take into account a differential of $700 per week in the parties’ income, a child support payment and a superannuation payment in determining the further adjustment of 10 per cent.
At [352] and [353] his Honour found the mother’s weekly income was $2,900 and the father’s $2,200.
There was no challenge to those findings and the question as to the superannuation payments may therefore be put to one side (it was said that an item in the mother’s Financial Statement filed 3 April 2024 referring to superannuation described additional income).
The father’s Financial Statement filed 4 April 2024 shows that the amount of child support payable was $222 per week. The mother’s indicates that only $137 per week was actually being paid. That discrepancy appears not to have been resolved.
As can be seen, the mother will have the sole care of the parties’ child who was five at the time of the hearing.
The primary judge found:
369Both parties are reasonably placed in terms of their future prospects, in the sense that each holds tertiary education and each works in the executive level of the public service. The mother however will have the sole care of X, who is aged 5, warranting an adjustment in her favour of 10 per cent, to equate to a 67.5 – 32.5 split.
The father submitted that the difference in income favoured an adjustment in his favour and that the payment of child support ameliorated, at least to some extent, the costs of the child’s future care.
Having regard to those matters the father submitted that the adjustment was unreasonable and plainly wrong. Alternatively, it was put that the reasons were inadequate in that they did not explain how those matters were taken into account.
There is no reason to think that the primary judge did not have the difference in income or child support in mind when making the above finding. Indeed, his Honour noted the difference in income at [352] and [353] and the payment of child support at [351].
The essential question is whether having regard to those matters, the outcome, including the 10 per cent adjustment is unreasonable or plainly wrong. Counsel for the father properly accepted that some adjustment was called for having regard to the mother’s future care of X. As we have said, she suggested that, in all the circumstances, something of the order of 2.5 per cent to 5 per cent would be appropriate.
It is to be borne in mind that error is not established by persuading an appeals court that it would have come to a different result or that the outcome was generous. It must be persuaded that the outcome was unreasonable or plainly wrong. In the case of property settlement proceedings, the division involves the exercise of a very broad discretion. Ultimately it is a question of impression and evaluation having regard to the facts and circumstances as found by the primary judge and the unchallenged findings consequent on them. Having done so, we are not persuaded that the high bar facing the appellant has been met.
It follows that the appeal will be dismissed.
COSTS
It was accepted that in the event the appeal was dismissed it would be just to make a costs order. The father did however question some aspects of the mother’s Schedule of Costs. Some of the matters included do appear to be solicitor/client costs but they are fairly modest. There will be an order that the father will pay the mother’s costs fixed in the sum of $17,000.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Hartnett & Riethmuller. Associate:
Dated: 1 November 2024
9
1