TOBEY & REZEK

[2013] FamCAFC 71

FAMILY COURT OF AUSTRALIA

TOBEY & REZEK [2013] FamCAFC 71

FAMILY LAW – APPEAL – CHILDREN – where the Federal Magistrate made orders providing for the child to live with the mother and spend time with the father and for the mother to have sole parental responsibility in relation to the child’s education and psychological testing, with the parties to consult each other in relation to other issues of parental responsibility – where no merit was found in the father’s various complaints as to the Federal Magistrate’s use, acceptance and weighing of evidence in relation to both parties’ credit, the mother’s mental health, both parties’ insight as to the needs of the child, and specific incidents involving the mother’s behaviour and the child’s welfare – where the Federal Magistrate failed to give any reasons at all for making order 16, which provided for the mother’s treating psychiatrist or psychologist to determine when the mother was temporarily too ill to care for the child, and that at such times the child stay with his maternal grandmother or his half-sister’s paternal grandmother until the mother’s treating professional determined she was sufficiently well to resume care of the child – appeal allowed in part and the issue of what parenting orders should be put in place for the child’s care in the event the mother’s treating psychiatrist determines she is too ill to care for the child be remitted to the Federal Magistrates Court (now known as the Federal Circuit Court).  

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the Federal Magistrate made orders providing, inter alia, for the father to pay the mother the sum of $124,493 (order 21) – where the Federal Magistrate failed to make findings of fact, and failed to provide reasons for his conclusions in relation to the respective contributions of the parties, the s 90SF(3) factors, the justice and equitable requirement in s 90SM(3) and, to some extent, the net asset pool – appeal allowed in part and proceedings for property settlement remitted to the Federal Magistrates Court (now known as the Federal Circuit Court).

FAMILY LAW – APPEAL – EXPERT WITNESS’ COSTS – where the Federal Magistrate dismissed the father’s application to have the expert witness’ costs shared equally between the parties and the Independent Children’s Lawyer (order 24) – where the father’s counsel at trial conceded the father should bear the costs of the expert’s cancellation fee and subsequent attendance, and the Federal Magistrate dealt comprehensively in his reasons with the issue of those costs before dismissing the father’s application – no merit found in these grounds of appeal. 

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – application dismissed.

FAMILY LAW – APPEAL – COSTS – where instead of seeking written submissions on costs, the parties be at liberty to make any application that they wish to in relation to costs in accordance with r 22.53 of the Family Law Rules 2004 (Cth).

Family Law Act 1975 (Cth) ss 90SF(3), 90SM
Family Law Rules 2004 (Cth) r 22.53

AMS v AIF (1999) 199 CLR 160
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
De Winter and De Winter (1979) FLC 90-605
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Johnson & Johnson (1997) FLC 92-764
Norman & Norman  [2010] FamCAFC 66
Re F: Litigants in person guidelines (2001) FLC 93-072
Robb and Robb (1995) FLC 92-555
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Weir and Weir (1993) FLC 92-338
Wen & Thom [2010] FamCAFC 81
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT: Mr Tobey

RESPONDENT: Ms Rezek

INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

FILE NUMBER: CAC 740 of 2008

APPEAL NUMBER: EA 14 of 2012

DATE DELIVERED: 7 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Canberra

JUDGMENT OF: Coleman, May & Strickland JJ

HEARING DATE: 24 October 2012

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 14 December 2011

LOWER COURT MNC: [2011] FMCAfam 1336

REPRESENTATION

FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Ms Godstchalk &
Ms Curran

SOLICITOR FOR THE RESPONDENT: Legal Aid ACT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Haughton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

Orders

1. The application in an appeal filed by the father on 31 May 2012 be dismissed.

2. The appeal be allowed in part.

3. Orders 16 and 20 made by Federal Magistrate Neville, as he then was, on

   
   

   14 December 2011 be set aside.

4. The issue of what parenting orders should be put in place for the care of the child in the event that the mother’s treating psychiatrist determines she is too ill to care for the child be remitted to the Federal Circuit Court for rehearing by a Judge other than Judge Neville.

5. The proceedings for property settlement be remitted to the Federal Circuit Court for rehearing by a Judge other than Judge Neville, upon the basis that Orders 21 and 22 made by Federal Magistrate Neville, as he then was, on

   
   

   14 December 2011 providing for a superannuation split remain in place.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 14 of 2012
File Number: CAC 740 of 2008

Mr Tobey

Appellant

And

Ms Rezek

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction 

1. By Amended Notice of Appeal filed on 2 October 2012 Mr Tobey (“the father”) appeals against parenting and property settlement orders made by Neville FM on 14 December 2011.  The parenting orders appealed against relate to the parties’ only child, X (“the child”), born in 2005.  The respondent in the appeal is Ms Rezek (“the mother”) and she opposes the appeal.

2. In summary, the parenting orders appealed against provided for the child to live with the mother and for the mother to have sole parental responsibility in relation to the child’s education and psychological testing.  The parties were to consult each other in relation to other issues of parental responsibility, but in the event they could not agree the mother was to make the final decision.  The orders provided for the child to spend time with the father from after school Friday to before school Monday in one week and from after school Monday to before school Tuesday in the alternate week, for half of school holidays, on special days, and for telephone communication twice weekly.  Various orders were also made in relation to changeover, information sharing, the child’s medical treatment, and the parties’ conduct.  In relation to property settlement, the father appeals against the order providing for him to pay to the mother the sum of $124,493.  He also appeals against the dismissal by the Federal Magistrate of his application to have the costs of Dr M, the expert psychiatric witness, shared equally between the parties and the Independent Children’s Lawyer (“the ICL”).

3. On appeal the father seeks orders that he have sole parental responsibility for the child and that the child live with him and spend time with the mother five nights per fortnight, for half of school holidays and on special days.  The father also seeks various orders in relation to the child’s passport, education and medical treatment.  Lastly, the father seeks orders that the costs of the expert’s attendance at court on 7 September 2011 be shared equally by the father, mother and the ICL, and that the mother pay the father the sum of $124,493 by way of property settlement.

4. At the conclusion of the hearing of the appeal we made the following orders:

   1.That judgment in the appeal and the application for leave to adduce further evidence be reserved.

   2.That costs in the appeal and the application for leave to adduce further evidence be reserved.

   3.That the respondent mother is to file and serve any written submissions in relation to the adequacy of the reasons for judgment of the Federal Magistrate in the financial proceedings within
   14 days.

   4.That the appellant father is to file any submissions in response within 7 days thereafter.

5. We will explain later in these reasons the need for us to make the orders for the filing and serving of further written submissions.  In any event, on

   
   

   15 November 2012 the mother filed her further written submissions and on

   
   

   26 November 2012 the father filed his submissions in response.

Background

1. The father is a medical professional in Canberra.

2. The father and his former spouse, Ms O, were married for approximately 10 years before separating in 1999.

3. The mother has one child from a previous relationship, Y, aged 14 years at the time of trial.

4. The parties’ relationship commenced in 2003 and ended in 2007.  Their child X was born in 2005.

5. In August 2009 parenting orders were made by consent for the child to spend five nights per fortnight with the father, although those orders were subsequently amended on 4 June 2010 and 9 September 2010.  The father unsuccessfully appealed against the orders of 9 September 2010.  

6. In late May 2010 the mother admitted herself to hospital and shortly thereafter was transferred to a secure psychiatric unit.  The orders made on 4 June 2010 provided, inter alia, for Y’s paternal grandmother, Ms F, to intervene in the proceedings and for the child X to live nine nights per fortnight with the father and five nights per fortnight with Ms F.  Ms F remained a party to the proceedings until she filed a Notice of Discontinuance on 21 April 2011.    

7. The matter came before the Federal Magistrate for hearing over seven days in May and September 2011.

8. The father failed to file a Notice of Appeal within the time provided in the Family Law Rules 2004 (Cth), and on 19 January 2012 he filed an application in an appeal seeking an extension of time to file a Notice of Appeal. That application was heard by Justice Finn on 19 March 2012 and on that day

   
   

   her Honour granted an extension of time for a period of seven days to file a Notice of Appeal.  The father complied with that order and on 28 March 2012 he filed a Notice of Appeal.

9. On 2 October 2012 the father filed an Amended Notice of Appeal.

Reasons for judgment of the Federal Magistrate

1. The Federal Magistrate commenced his reasons for judgment by noting the long history of litigation between the parties, which related predominately to parenting issues.  His Honour considered the principal driving forces behind the litigation were the father’s desire to spend time with the child and the mother’s angst in dealing with the father.  His Honour also noted that, as a result of the father being unrepresented for the last two days of trial, the expression of the father’s position varied depending on whether he had legal representation or not.

2. His Honour then set out the orders sought by each party.  In summary, the father sought that he have sole parental responsibility for the child and that the child live with him and spend time with the mother seven nights per fortnight, for half of school holidays and on special days as agreed.  The father also sought orders that Ms H, counsellor and therapist, be appointed as intermediary for decision making and parental counselling sessions. 

3. The mother sought orders that she have sole parental responsibility for the child in relation to education and psychological counselling and that the parties consult in relation to other issues but, in the event they could not agree, the mother make the final decision.  The mother also sought orders that the child live with her and spend time with the father each alternate weekend, with specific arrangements to occur over Easter and Christmas.  In the event the mother was temporarily too ill to care for the child, she proposed that the child stay with either Ms F or Ms C, the child’s maternal grandmother.

4. It was the ICL’s proposal that the child live with the mother, the mother have sole parental responsibility for the child’s education, and the parties have equal shared parental responsibility in relation to the child’s health, extracurricular activities and sharing of information from the child’s school.  The ICL proposed the child spend time with the father from after school Friday to before school Monday one week and after school Monday to before school Tuesday in the other week, as well as for half of school holidays, at specified times on special days, and that there be telephone communication twice weekly.  The ICL also proposed Ms H be consulted for any counselling or psychological therapy needed by the child and that, in the event the mother was hospitalised on account of her mental health, the child live with the father and he facilitate the child spending time with Y.

5. The Federal Magistrate then set out his findings on the evidence before him.  His Honour found the father’s evidence was somewhat selective or incomplete and in particular, noted the father’s consistent denial of significant anger management issues, his criticisms of the Fs, and his criticisms of the expert evidence of Dr M.  Whilst the Federal Magistrate acknowledged the father’s wide medical experience, his Honour preferred Dr M’s evidence where there was a conflict.  His Honour also found the father’s criticisms of the Fs demonstrated his lack of insight into the child’s needs. 

6. The Federal Magistrate found the mother gave clear and concise evidence without embellishment and thus, his Honour preferred the evidence of the mother where it conflicted with that of the father.  The Federal Magistrate gained the impression the mother had recovered well since her hospitalisation in 2010 and had “steely resolve” in relation to the child’s best interests.  It was the mother’s evidence that she wanted the child to have a meaningful relationship with the father, but that extended periods of time with the father had a negative impact on the child. 

7. Whilst both parties expressed concern about the child being with the other parent, the Federal Magistrate was unable to make any relevant “comment” on certain competing allegations made by them about the other, and noted both parties’ concession that the child should spend time with the other parent.  Similarly, his Honour could make no findings as to whether the child should repeat pre-school and whether the child should attend a speech pathologist.

8. The Federal Magistrate found the significance of Ms O’s evidence was that her relationship with the father bore “strikingly similar hall-marks” to those to which the mother attested. It was Ms O’s evidence that she and the father attended counselling for their relationship difficulties and the father chose treatment by way of medication, but that the medication did not work and the relationship failed. The father had objected to the admission of Ms O’s affidavit, but ultimately, the Federal Magistrate ruled that it should be admitted pursuant to s 135 of the Evidence Act 1995 (Cth). His Honour noted that on the fourth day of trial the father’s counsel handed up an affidavit sworn by the father in reply to various matters canvassed in Ms O’s affidavit, but then suddenly withdrew the affidavit. As a consequence counsel for the ICL submitted that a Jones v Dunkel inference could be drawn adversely to

   
   

   Mr Tobey, in the light of Ms O’s unanswered evidence.  His Honour found that such an inference was capable of being drawn, but given that he preferred the evidence of Ms O to that of Mr Tobey where there was any inconsistency or contradiction between them, his Honour did not see that the inference “takes the matter any further”.

9. As to the expert evidence, Dr M, in his first report, found in relation to the mother that there was “no evident instability on mental state examination”, that she was receiving appropriate management of her Bipolar Disorder, and that there was no current impairment of her parenting capacity.  In relation to the father, Dr M found he would provide a stable developmental platform for the child’s academic and sporting commitments, but expressed concern about the father’s approach, namely his difficulty coping with frustration, his denial of his anger management problem, his failure to recognise the child’s key attachment figures, and his demonstrated lack of awareness with regard to core aspects of the child’s emotional development.  Thus, while Dr M was “strongly supportive” of the maintenance of the father’s role in the child’s life, he was reluctant to support the father in his proposal to be primary caregiver and ultimately recommended the mother have final decision making responsibility in the event the parties could not agree. 

10. In his second report Dr M referred to a report by clinical psychologist

    
    

    Dr C, which identified the child being within the range for withdrawn behaviours, attention problems and rule breaking behaviours.  She regarded the child to be “very anxious” and in need of care and stability.  Again Dr M noted the mother’s mental state had stabilised and that her current parenting capacity was more than adequate, while the father’s minimisation of his anger management problem was inconsistent with his medical records and the affidavit evidence of the mother and Ms O.  Ultimately, Dr M recommended the contact between the parents be limited and that orders be made to take into account a situation where the mother became unwell.

11. Lastly, in his oral evidence Dr M agreed with counsel for the mother that the fundamental question to be decided was how much time the child should spend with the father and that, assuming the level of conflict abated over time and there was stability in the child’s place of residence, there could be some graduated increase in that time.  Dr M stated it was important for the mother to remain “stress-free” from litigation to ensure her parenting was most effective.

12. In relation to Dr M’s costs, the father sought that they be shared between the parties and the ICL.  The matter was partly dealt with at the directions hearing on 5 May 2011 when an order was made for Dr M’s costs in attending court to be paid by the father, and that position was confirmed at another directions hearing on 17 May 2011.  It was also confirmed on that day that Dr M would be available for cross-examination on the Wednesday of the trial week, however, on the second day of trial counsel for the father suggested Dr M would not be available and an extended discussion occurred later that day between all counsel as to the options in relation to Dr M’s evidence.  The costs of Dr M’s cancellation were reserved on that day.  In light of the above evidence, including the fact only counsel for the father required Dr M to attend court personally, the Federal Magistrate dismissed the father’s application for Dr M’s cancellation and personal attendance costs to be shared.

13. After outlining the relevant law, the Federal Magistrate set out his findings in relation to s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”).

    
    

    His Honour found the child’s views were not relevant due to his young age, but that the child had a loving relationship with both parents, a close relationship with his half-sister, and a significant relationship with Ms F. In short, the Federal Magistrate was of the view the mother had greater parenting skills, a better disposition to the responsibilities of parenthood, and a greater capacity to promote the child’s relationship with the father, although there was no issue with either parent being able to provide for the child’s needs. His Honour found there were no issues of practical difficulty and expense in relation to the child spending time with the father, although any orders would need to address the communication issues between the parties. In relation to the family violence provisions, his Honour again noted the father’s tendency to understate his anger issues. In relation to s 60CC(4) and (4A) of the Act, the Federal Magistrate recorded that “the history of acrid communication and discord in the relationship between the parents … all confirm the risks to [X] if there is any requirement for the parents to communicate regularly”.

1. As to parental responsibility, the Federal Magistrate considered the only appropriate order was that the mother have sole parental responsibility, particularly as the presumption in s 61DA of the Act was rebutted by the history of family violence. Thus, his Honour ultimately determined to adopt the ICL’s proposed orders with minor variations from the mother’s proposed orders.

2. The Federal Magistrate then turned to consider the property settlement issues, noting the dispute before the court was of limited scope because the orders sought by the mother related essentially to factors arising under s 75(2) of the Act. The mother did not claim any relevant financial contribution during the relationship.

3. The Federal Magistrate then set out in full the orders sought by each party in relation to property settlement.  In summary, the father sought that a superannuation splitting order be made in favour of the mother in relation to his P fund using the base amount of $98,068, that the father pay the mother the sum of $50,000 within 60 days, that the father pay the mother spousal maintenance of $400 per week for a period of two years, and that each party otherwise retain the property in his or her possession, title or name (including liabilities).  The mother sought orders that the father pay her $200,000 within 90 days, that the father deliver to the mother specified household items within 30 days, and that a superannuation splitting order be made in favour of the mother in relation to the father’s P fund using the base amount of $98,067.92.  The mother also sought an order that, if at any time until the child attained 18 years of age the mother was unable to work full-time due to her health, the father pay the mother spousal maintenance in the sum of $400 per week. 

4. It was the mother’s submission that she made non-financial contributions during the relationship, that the increase in the value of the parties’ former residence at K was due to market forces during the relationship, and that

   
   

   ss 75(2)(b)-(c), (g), (j) and (na) of the Act were relevant. The Federal Magistrate had difficulty with the father’s submissions, saying that some were not supported by evidence at trial, some were inappropriate because they related to settlement negotiations, and some were not sustainable (for example, “negative contributions”). Regardless, it was not disputed the mother had the use and occupation of the K property between October 2007 and March 2010 and that the father continued to pay the mortgage and other outgoings. The father also continued to make lease payments on a vehicle for the mother until 2009, when he paid her $5,000 for the purchase of a substitute car.

5. In turning to consider the factors arising under s 75(2) of the Act, the Federal Magistrate recorded that at the time of trial the father was 51 years of age, in good health and earning an annual income of $350,000, while the mother was 40 years of age and recently employed in the public service earning an annual income of $70,258. His Honour’s findings in relation to the relevant s 75(2) factors are as follows:

   o(b):  The father’s income, property and financial resources exceeded those of the mother to a “very significant degree”.

   o(c):  The mother would have the greater level of care for the child until he turned 18 years of age. 

   o(g):  Some consideration needed to be given in favour of the mother in relation to the “standard of living” requirement.

   o(j):  While the mother was the child’s primary carer, the father’s income was always going to be significantly greater than the mother’s regardless of the degree to which the mother was “on the scene”.

   o(na):  The father paid almost $14,000 in child support between January 2007 and March 2010, but no child support had been paid since then.  The father had no objection to an updated assessment being made in relation to child support.

6. His Honour also noted that, contrary to orders made by Federal Magistrate Brewster in August 2010, the father effectively appropriated the equity in the K property that properly belonged to Ms Rezek, and applied it to the purchase of his current residence at Q.  Thus, his Honour found that the father had had the benefit of the equity belonging to Ms Rezek since the purchase of his property.

7. Ultimately, the Federal Magistrate determined the short duration of the relationship, the income disparity between the parties, and the mother’s greater level of future care for the child were all significant factors.  Given the agreed splitting order, his Honour determined the superannuation should be excluded from the total asset pool, leaving a non-superannuation pool of $335,698.

   
   

   His Honour concluded a 35 per cent split of the non-superannuation asset pool should be made in the mother’s favour, which would require the father to pay the mother $124,493.

Orders made 14 December 2011

1. The Federal Magistrate made the following orders in so far as they are relevant to the appeal:

   (1)      All prior parenting Orders be discharged.

   (2)      The child [X] born [in] 2005 live with the Mother.

   (3)The Mother have sole parental responsibility for the child’s education and psychological testing, however, for his primary education the child is to remain at [A] School unless otherwise agreed.

   (4)The Mother continue to authorise the child’s school and counsellors to provide information to the Father upon his request.

   (5)Any information provided by the Father to the school or to the child’s counsellors shall be in writing and copied to the Mother.

   …

   (8)The Mother and Father consult in relation to other issues of parental responsibility but in the event they cannot agree, the Mother shall make the final decisions.

   (9)The child live with the Father as follows:

   (a)During the school term time in week one from the conclusion of school Friday to the commencement of school the following Monday and in each alternate week;

   (b)During school term time in week two from the conclusion of school Monday to the commencement of school Tuesday and in each alternate week;

   (c)For one half of all ACT school holiday periods, inclusive of the Christmas holiday period, as agreed between the parties in writing and failing agreement, for the first half in odd numbered years and the second half in even numbered years.

   (d)The Father’s time pursuant to order 9(a) will commence in the first week of school term if the Father exercised the first half of the holidays with the child and the second week in school term if the Father exercises the second half of the holidays with the child;

   (e)The Father’s time pursuant to order 9(b) will commence in the first week of school term if the Father exercised the second half of the holidays with the child and the second week in school term if the Father exercises the first half of the holidays with the child;

   (f)The Father’s time with the child pursuant to Order 9(a) and (b) will be suspended during each of the ACT school holiday periods which are defined as commencing at the conclusion of school on the last day of each term and will resume at the commencement of school on the first day of the next school term period.

   …

   (11)The Father will communicate with the child each Tuesday and Thursday between the hours of 7.00pm and 7.30pm with the Father to telephone the child for the purposes of exercising such time.

   (12)For the purposes of changeover of the child, each parent will collect and return the child on school days to and from the child’s school and if falling on non school days, changeover shall occur at ‘[M]’ if [M] is available (and the parties shall do all things necessary to ensure [M] is available as a changover [sic] point) and if [M] is not available the changeover shall occur at [E] Cinema in [C] unless otherwise agreed between the parties in writing.

   (13)The Mother may use an agent to effect the changeover. It is noted that, in the absence of notice by the Father via text message, the Mother will not be required to wait more than 20 minutes after the designated time for delivering the child to the Father.

   …

   (16)In the event the Mother’s treating psychiatrist or psychologist determines that the Mother is temporarily too ill to care for the child, the child will stay with either [Ms F] or [Ms C] until the Mother’s treating professional determines she is sufficiently well to resume care of the child, and the Orders in respect of the child’s time with the Father will continue.

   …

   (20)Within 60 days of the date of these Orders, the Applicant pay the Respondent the sum of $124,493.00.

   (21)In accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of [Mr Tobey] from his interest in the [P Superannuation fund], [Ms Rezek] is entitled to be paid (by the Trustee of the [P fund]) the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulation 2001 using a base amount of $98,068.00 and there shall be a corresponding reduction in the amount [Mr Tobey] would be entitled to receive but for these Orders.

   (22)The Operative time for Order 21 is four (4) business days after the service of these Orders upon the Trustee.

   …

   (24)The Application to have the costs of [Dr M] shared equally between the parties is dismissed.

2. The father appeals against Orders 2, 3, 4, 5, 8, 9, 13, 16, 20 and 24.

Application to adduce further evidence

1. On 31 May 2012 the father filed an application in an appeal and his supporting affidavit seeking leave to adduce further evidence.

2. The further evidence sought to be adduced is twofold.  First, there is evidence of the mother’s hospital treatment from December 2011 to February 2012, and a subpoena is sought to be issued to the Hospital for the production of the medical notes in relation to this.  Secondly, there is the evidence of the father’s actual liability to the Australian Taxation Office.

3. Addressing the latter aspect first, as will be seen we consider that the Federal Magistrate erred in failing to provide adequate reasons for making the order that the father pay to the mother the sum of $124,493 by way of property settlement, and the appeal against that order should be allowed, that order set aside, and that issue remitted to the Federal Magistrates Court (now the Federal Circuit Court) for rehearing.  Thus, there is no need for us to address the application to lead evidence of the father’s income tax liabilities.  That evidence can be presented at the rehearing.

4. Turning to the other aspect of the application, that is opposed by both the mother and the ICL.  Indeed, the mother filed a response and a supporting affidavit on 17 October 2012 seeking dismissal of the application.  We observe though that if this aspect of the application is allowed, the mother seeks to rely on her affidavit and affidavits of Ms F and Ms C filed on the same date.

5. Section 93A(2) of the Act provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. In CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. McHugh, Gummow and Callinan JJ said this:

   109One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

   …

   111… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

   …

   113In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).

   …

   117The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.

   118The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare …

   …

   148… The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the
   s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.

6. To put it at its highest, the father’s reason for seeking to adduce the further evidence is that his case at trial was that the mother had not yet recovered from her illness and the Federal Magistrate erred in finding otherwise, and then making the parenting orders that he did.  The further evidence will establish that the mother was hospitalised shortly after the conclusion of the trial suffering a relapse of her mental illness, and this demonstrates, it is said, that the basis of his Honour’s orders was erroneous.

7. The difficulty we see with this proposition is that although in paragraph 117 of his Honour’s reasons he said that he was “taken by her recovery (to which

   
   

   Dr [M] formerly attested, as did her treating health professionals)” there was in fact no finding by the Federal Magistrate that the mother had fully recovered from her mental illness, and as counsel for the mother correctly submitted, the evidence before the Federal Magistrate and which he accepted, (for example, in paragraph 5 of the reasons for judgment) was that the mother continued to have a mental illness, and the recovery referred to was from her previous relapse and hospitalisation.

8. His Honour’s reasons contemplate that there could well be further relapses and hospitalisation of the mother, and hence the order that he made in relation to alternative arrangements.  For example, his Honour said this when discussing the evidence of the expert psychiatric witness Dr M:

   151.There was a discussion between [Mr Tobey and Dr M] over the Mother’s medication regime, but in my view, little turned on it.   The fact of the matter is that [Ms Rezek] is being appropriately medicated, and [Dr M] had referred to it in his reports.  This is not to say that [Ms Rezek’s] medication and treatment regime is unimportant; it clearly is.  And [Dr M] commented on it at some length, including her need to stay on prophylactic medication that needs to be monitored carefully and regularly.

   …

   157.[Dr M] confirmed that it would be essential for [Ms Rezek] to remain as stress-free (notably from litigation) as possible to enable her to parent [X] most effectively, and also as free as possible from “interference” from [Mr Tobey].

   158.An important part of [Dr M’s] cross-examination by Counsel for the ICL related to his view that [Ms Rezek] was at some risk or heightened vulnerability concerning her mental health having suffered the “episode” that led to her hospitalisation in 2010.

   [Footnotes omitted]

9. Thus, if the further evidence was accepted, and even though it may be uncontroversial, a relapse was anticipated by his Honour and could not demonstrate that his decision was erroneous.  Thus we propose to dismiss the application.

Grounds of appeal

1. The grounds of appeal as contained in the Amended Notice of Appeal filed by the father on 2 October 2012 are as follows:

   1.The Learned Federal Magistrate erred in elevating to a crucial or highly determining finding the greater sensitivity or insight to the child’s needs he found in the mother than the father.

   2.The Learned Federal Magistrate further erred in making the crucial finding by making findings of fact not in evidence:

   a.At 177:  in short, in my view, [Ms Rezek] has the greater capacity to promote [X’s] relationship with his father”

   b.At 177, “…she has the greater parenting skills”

   c.At 177, “and the better disposition to the responsibilities of parenthood than does [Mr Tobey]”

   d.That the father conceded that one effect of the orders sought, taken in isolation, would mean that [X] would not spend any time with his sister [Y], for the next year.

   e.That an incident at the Child’s school on 20 September 2010 was directly related to the limited time he was spending with his mother.

   3.The Learned Federal Magistrate erred in making the crucial finding by failing to act on or use generally the evidence of the mother’ [sic] deficiencies in parenting insight or sensitivity.

   4.The Learned Federal Magistrate erred in making the crucial finding by failing to act on or use generally the evidence of the father’s parenting insight or sensitivity.

   5.In applying himself to the crucial finding the Learned Federal Magistrate made findings that were patently unreasonable on the evidence.

   6.The Learned Federal Magistrate erred by failing to act on or use generally the evidence in relation to the mother’s mental health.

   7.The Learned Federal Magistrate erred in not making any finding in relation to ligature marks around the child’s neck.

   8.The Learned Federal Magistrate erred in making findings of fact not in evidence in relation to the mother’s insight into the effect of her illness on the child.

   9.The Learned Federal Magistrate erred in making a finding of credit to the mother, at while conceding each party was truthful and despite irreconcilable differences in the evidence.

   10.The Learned Federal Magistrate made a factual error by finding that the father had objected to the mother’s mental health records going to the Court’s expert [Dr M].

   11.The Learned Federal Magistrate erred by failing to act on or use generally the evidence of [Dr E] by way of affidavit and by way of the report of the Court’s expert.

   12.The Learned Federal Magistrate’s [sic] erred in finding that the mother admitted to, and apologized for, sending an email to many persons making allegations against [Mr Tobey] and one of his prominent work colleagues.

   13.The Learned Federal Magistrate erred in making Order 16 that should the Mother’s treating psychiatrist determine that the mother is temporarily too ill to care for the child, the child will stay with either [Ms F] or [Ms C] until the Mother’s treating professional determines she is sufficiently well to resume care of the child, and the Orders in respect of the child’s time with the father will continue.

   14.The Learned Federal Magistrate’s jurisdiction miscarried in making a finding of credit to [Ms O], without weighing the evidence of her affidavit against that of the father obtained in cross examination.

   15.The Learned Federal Magistrate erred at Law in making a Jones v Dunkel inference in respect of [Ms O’s] evidence.

   16.The Learned Federal Magistrate erred in the drafting of the orders for contact.

   PROPERTY

   17.The Learned Federal Magistrate erred in making a property distribution without taking account of 79 (4) factors being post-separation contributions by the father.

   18.The Learned Federal Magistrate erred in fact in finding the purchase of the [Q] property was misappropriated equity, contrary to orders made by FM Brewster on 11 August 2010.

   19.The Learned Federal Magistrate erred in fact in finding the redraw facility attached to the mortgage over the [Q] property was misapplied equity, contrary to orders made by FM Brewster on
   11 August 2010.

   20.The Learned Federal Magistrate erred in making a property distribution by making a finding contrary to the evidence that the father had not provided his assets and liabilities.

   21.The Learned Federal Magistrate erred in making a property distribution that was unjust by not taking account of other relevant considerations:

   a.The 75(2) factor being the age of the parties.

   b.The 75(2)(o) factor, as found in Robb & Robb (1995) FLC 92-555, in relation to the husband’s contributions to the mother’s child [Y] from another relationship.

   c.The deterioration in the father’s financial circumstances.

1. We pause to note that in relation to the issue of property settlement his Honour in his reasons for judgment and the father in his grounds of appeal incorrectly referred to the sections of the Act that apply to married persons rather than the sections that apply to persons in a de facto relationship, as these parties were. Instead of s 79 and s 75(2) the correct sections are s 90SM and s 90SF(3). We propose to refer to the correct sections in addressing the grounds of appeal directed to the order for property settlement. We also observe that the content of the sections is the same and no appealable error arises from this mistake by his Honour.

Discussion

Parenting orders

Grounds 1, 2, 3, 4 and 5

1. It is convenient for us to address these grounds of appeal together.  The essential complaint here is that the Federal Magistrate erred in finding that the mother had greater sensitivity and insight than the father when it came to meeting the needs of the child, and then in regarding that issue as crucial to the outcome (Ground 1).

2. The father says that in so finding the Federal Magistrate:

   a)Made findings of fact not in evidence (Ground 2).

   b)Failed to take into account the “evidence” of the “deficiencies” of the mother (Ground 3).

   c)Failed to take account of the “evidence of the father’s parenting insight or sensitivity” (Ground 4).

   d)Made findings that were “patently unreasonable on the evidence” (Ground 5).

3. In his written submissions, the father identified nine instances from

   
   

   his Honour’s reasons (and he added one more in his oral submissions) which he says indicate his “lack of insight or sensitivity”.  He then identified five instances from his Honour’s reasons which he says indicate the mother’s “greater insight”.

4. The first comment to make is that his Honour’s conclusion here is clearly not based on a quantitative assessment, and thus, despite this being emphasised by the father, it matters not that there are “fewer instances indicating the mother’s insight”.

5. Pausing there, and conclusively addressing one aspect of the father’s challenge, we do not accept that it was not open to the Federal Magistrate on the evidence before him to treat the issue of the sensitivity, or insight, that either parent exhibited in relation to the needs of the child as crucial, or highly determinative, in assessing what parental order should be made in the best interests of the child.  In this case in particular that issue loomed large and the Federal Magistrate was entitled to accord it significant weight.  In any event though we agree with the submission of the mother that this issue, although important, was only one of many findings made by the Federal Magistrate which informed his decision as to what parenting orders should be put in place.

6. It is also well to remember that the fact that other findings may have been open to the Federal Magistrate on the evidence before him does not of itself render the findings made by his Honour erroneous.  To enliven appellate intervention, it is necessary for the father to demonstrate that his Honour’s findings were not reasonably open to him, either because he erroneously accepted evidence which should have been rejected, or rejected evidence which should have been accepted, or gave excessive or insufficient weight to evidence which was accepted.

7. To continue; in this context the father submitted that the assessment of parenting capacity is not something that can adequately be done by the court, and expert evidence is needed.  The father then complains that of the four experts who had provided reports the Federal Magistrate was selective in what he used and what he did not use from their assessments, and he only seemed to rely on the evidence of the one expert who gave evidence and was cross-examined, namely Dr M.

8. It is unnecessary for us to comment on the submission as to the ability of the court to assess parenting capacity, because it goes without saying that the court plainly has that ability, but what the father overlooks is not only the wide discretion that the Federal Magistrate had, but also the distinct advantage that the Federal Magistrate had in seeing and hearing the evidence of the one expert who gave evidence, namely Dr M, in assessing the weight to be attached to his opinions and recommendations.

9. It is noteworthy that of the four experts, it was Dr M of whom the father was highly critical both in the conduct of his assessment, and as to the content of his report, although we observe that in his oral submissions the father curiously suggested that this was not the case.

10. In any event, the thrust of the father’s submission is that his Honour failed to have regard to, and take into account, the opinion of one of the other experts, Ms H, and particularly where she assesses the mother.

11. The father is correct in that his Honour did not put much if any store in the report of Ms H.  However, a prime reason for that is that the report was dated 20 August 2009 and clearly his Honour considered that it was of greater value to him to rely on the contemporary report and evidence of Dr M, as well as seeing and hearing for himself the mother giving her evidence.  His Honour, as was plainly open to him, devoted a substantial part of his reasons to analysing and assessing not only the evidence of the mother but also that of the father, and we are not persuaded that his Honour erred in this approach or in his assessment of the parties.

12. A final comment though, the father in his written submissions suggests that the evidence indicates that the mother had a “narrative” about him, and that demonstrates that she did not have the greater insight and sensitivity to the needs of the child.  Given the evidence of the conduct of the father towards the mother, it is unsurprising that she had formed a negative view of him and how that affected his parenting capacity.  However, we are again unpersuaded that that concern of the father detracts in any way from his Honour’s assessment of the mother and the respective parenting capacities of the parties.

13. We find no merit in Ground 1 of the grounds of appeal.

14. With Ground 2, in his written submissions the father identifies five “findings of fact” made in support of his Honour’s conclusion that the mother has the greater parenting capacity, which he says were “not in evidence”.  The first three (paragraphs a., b. and c.) can immediately be discounted given that they comprise nothing more than the father saying the Federal Magistrate was wrong in the conclusions that he reached in paragraph 177 of his reasons for judgment, but without adding anything to what he submitted in relation to Ground 1.  For completeness, paragraph 177 reads as follows:

    The considerations contemplated by sub-paragraphs (c) and (i) of s.60CC(3) were the subject of most of the evidence at trial. I have commented sufficiently already on the capacities and limitations I perceive in particular in [Mr Tobey’s] parenting skills and his relationship with [Ms Rezek] as to obviate the need to traverse these matters further. In short, in my view, [Ms Rezek] has the greater capacity to promote [X’s] relationship with his Father; she has the greater parenting skills, and the better disposition to the responsibilities of parenthood than does [Mr Tobey].

15. As to paragraph d. of the written submissions, the error of fact alleged is that his Honour in his reasons at paragraph 49, said the father conceded his proposed orders would mean that the child would not spend any time with his half-sister (Y) for the next year, when the relevant evidence reveals that in cross-examination the question put to the father was that there would be no holiday contact with the half-sister except for two weeks at Christmas.  Thus, we accept that this was an error by the Federal Magistrate, but it can be categorised as de minimus, and certainly insufficient per se to indicate that

    
    

    his Honour’s assessment of parenting capacity was inaccurate.  The point of

    
    

    his Honour referring to this in paragraph 49 of his reasons is what his Honour said in the first sentence, namely:

    A rather remarkable, but certainly candid, part of [Mr Tobey’s] evidence was his confirmation that the object of his orders (as then sought) was deliberatively punitive. …

16. This finding is unchallenged by the father, and in our view appropriately so.  The tenor of the father’s evidence on this topic clearly justifies that comment by his Honour, and it was plainly open to his Honour to take this into account in assessing parenting capacity.

17. With paragraph e. of the submissions, his Honour appears to make an error based this time on the evidence of the mother.  The error was the Federal Magistrate’s statement in paragraph 126 of his reasons that when the school incident occurred on 20 September 2010, the child had not seen his mother for seven weeks.  Although there was some confusion as to timing when the mother was cross-examined about this, this does appear to be the mother’s recollection.  However, the relevant order made on 17 August 2010 provides for the child to commence spending time with the mother from 17 September 2010 (the weekend before the incident), and thus the mother’s recollection was inaccurate.  Again though it is not as black and white as the father suggests.  It is plain from paragraph 49 of his Honour’s reasons that his Honour was concerned that the incident was directly related to the limited time that the child was then spending with the mother, and to that extent his Honour was not in error.  Nevertheless, this is an example of the father attempting to argue that one finding by his Honour, assuming it to be an error, among many other unchallenged findings by his Honour, can bring down his Honour’s conclusions formed by taking into account all those findings, no matter how material or immaterial the one erroneous finding is.

18. We are not persuaded that this finding by his Honour is sufficiently material to the exercise of his Honour’s discretion, again assuming it is erroneous, to result in a finding that his Honour’s assessment of the respective parenting capacities of the parties was wrong and his Honour’s decision should be overturned

    
    

    (De Winter and De Winter (1979) FLC 90-605).

19. We find no merit in Ground 2.

20. Turning to Ground 3.  This challenge consists of the father taking us to the evidence that he says indicates “deficiencies” in the mother’s insight or sensitivity to the child’s needs and then making the submission that the Federal Magistrate failed to take this into account.

21. In putting this submission the father overlooks that it is unnecessary for the Federal Magistrate in his reasons for judgment to set out and refer to absolutely every aspect of the evidence that might bear upon every issue that the Federal Magistrate needs to consider.  As was explained by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983]

    
    

    3 NSWLR 378, at 385-386:

    … a duty [to give reasons] does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding.  It is not the duty of the judge to decide every matter which is raised in argument.  He may decide a case in a way which does not require the determination of a particular submission; in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing …

    Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence.  It will be sufficient, if the inference as to what is found is appropriately clear …

22. Further, as Kirby J said in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at paragraph 62:

    A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue.  Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.

23. Again, the Federal Magistrate has a wide discretion in determining what parenting orders should be made in the best interests of the child.  It is also not the case that simply because the father thinks that certain evidence is relevant and necessary to refer to, that that makes it so.

24. In any event, the fallacy in this challenge is revealed with the very first piece of evidence that the father refers to in his written submissions.  He suggests that the evidence indicates that “[t]he mother coached the child to make allegations”, and that that in turn demonstrates that “[t]he mother failed to promote the relationship with the father.”  The particular evidence relied on relates to an allegation by the father that the mother told the child to tell the police that his father punched him.  However, that is simply not established on the evidence, and in cross-examination the mother denies it.  Indeed, of more concern is what the father did when the child allegedly disclosed to him that the mother had told the child that his father punched him.  The father then recorded on his telephone his inquisition of the child on this topic.  That in itself demonstrates a lack of insight and sensitivity to the needs of the child by the father.

25. As to the other specific pieces of “evidence” to which the father refers, we have considered the same and we are not persuaded that there is any force in any of the complaints made by the father.

26. There is no merit in this ground.

27. With Ground 4, this challenge is the obverse of Ground 3.  In other words, the father takes us to evidence that he says demonstrates his “parenting insight and sensitivity” and then submits that the Federal Magistrate failed to take this evidence into account.

28. First we observe that the general comment that we made when addressing the challenge in Ground 3 equally applies here, and thus to a significant extent this renders this challenge unmeritorious.

29. Secondly, as to the specific pieces of evidence referred to by the father, they comprise a grab-bag of issues, some plainly ambiguous in what they indicate, some clearly of little or no moment, some with marginal relevance to the issues raised, and with the balance insufficient to support a submission that the Federal Magistrate erred in the exercise of his discretion by failing to take into account relevant considerations.  For example, in the ambiguous category is the evidence that it is suggested indicates the father exhibited insight in relation to issues surrounding the child’s schooling.  That evidence is described by the father in his written submission as follows:

    a.… In evidence from the Expert in examination by Counsel for the mother (A1673, Ln 26-Ln35): “Would you agree that, certainly in relation to the school issue, the father displayed a lack of insight into [X’s] needs?---It’s difficult in that there were aspects of the school issue where he demonstrated a lack of awareness such as the issue with regard to the school readiness issue from my point of view.  However, in other aspects [Mr Tobey] was at paints [sic] to point out his awareness of there being developmental challenges for [X] and the need for additional input in the school context.  So I don’t think it’s as simple as having no awareness but rather a matter of weight in that there are some issues where he was – he had formed a different view from the school with regard to school readiness issues or pre-school teachers, and in other areas where he had been a very strong advocate for additional intervention.”

30. The expert being examined was Dr M, and the issue as to school readiness was the father not accepting that he was wrong in sending the child to school early.  Being as generous as we can, it is still difficult to see how this evidence demonstrates the father’s insightfulness.

31. An example of evidence having no moment is that taken from paragraph e. of the father’s written submissions in support of this ground of appeal:

    e.The father protected [X] from interview by police late at night, on 25 March 2009.  At A1002 (69ZW report of police incident): “[Mr Tobey] and [Dr E] allowed Reporter to view the child, [X], who was asleep at the time.  Reporter agreed not to wake the child at the request of [Mr Tobey] and [Dr E], fearing that to do so may strain the situation and create unnecessary trauma for the child.”

32. Again we find no merit in this ground of appeal.

33. Finally, there is Ground 5.  Unfortunately though this is more of the same; the father identifying various findings (and here four in all) by the Federal Magistrate and then presenting a grab-bag of aspects of the evidence given over seven days with the criticism that if his Honour had had regard to this evidence he would not have made the finding that he did.

34. Of course, again, in making this submission, the father overlooks the relevant and significant evidence that the Federal Magistrate, in the exercise of his wide discretion, considered was persuasive in making the findings that he did.  It is noteworthy that at no point does the father allege that the Federal Magistrate failed to provide any or any adequate reason for these findings; his complaint is that the findings are “patently unreasonable” when one has regard to his (the father’s) interpretation of the evidence.

35. As with the previous ground, the specific evidence sought to be relied on is variously ambiguous, of no or little moment, of marginal relevance to the issues raised, or plainly insufficient to require a conclusion that the Federal Magistrate has erred in the appellate sense.

36. Taking just one example, we set out in its entirety what the father presented in his written submission in relation to one of the four findings that are said to be “patently unreasonable on the evidence”:

    d.That ‘[Mr Tobey] was highly critical of [Dr M], both in the conduct of his assessment process and of his Report.’

    i.His Honour notes at 74, A50, “as will be observed later,
    [Dr M] confirmed he did conduct a mental state examination, as he said in his report, but which [Mr Tobey] continued to deny,⁴⁵ (footnote refers to A1263). However the father’s clarification in detail appears at Ln 20 -Ln 36, A1264.

    ii.At A1646, Ln 42 - Ln 45, [Dr M] states: “One of the difficulties in forming conclusions from the medical records of [Dr T] is that she doesn’t specifically identify her mental state examination, the changes in what’s going on with regard to medication.”

    iii.At Ln 11 - Ln 16, A1671, under cross-examination by
    Ms. Godtschalk, [Dr M] is asked: “but what do you say about whether or not you carried out a mental state examination?---A mental state examination certainly was carried out.  I think that it is correct that I didn’t identify that under a specific heading stating, Mental State Examination. But the mental state examination is evidence throughout my report.  And certainly I refer to that in my opinion. So certainly a mental state examination was completed.”

    iv.The father’s concerns in relation to [Dr T’s] previous reports and their documentation were ventilated at the hearing of his Recovery Application on 17 August 2010 (A1149, Ln 1 - 24).

37. Much could be said about this, but we will content ourselves with the comment that we are at a loss to understand how the “evidence” identified demonstrates that what are plainly observations by his Honour, rather than findings as to the father’s attitude to Dr M, were “patently unreasonable”.  The father focuses on his view that Dr M did not conduct a “full mental state examination”, yet the evidence of Dr M was clear that he did conduct a mental state examination and he, as a psychiatrist (unlike the father) was then able to opine as he did in his report.

1. At this point we are compelled to raise our concerns about how the father has conducted this appeal, and, in particular, our concerns about the issues that he raises.  It brings to mind the oft-quoted principle articulated by Kirby J in AMS v AIF (1999) 199 CLR 160, at 150:

   … an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgement, discretion and intuition which is involved.  Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.

   [Footnotes omitted]

2. There is no error here by the Federal Magistrate, and there is no merit in this ground of appeal.

Ground 6

1. Unfortunately the father’s written submissions in support of this ground are not entirely clear, but doing the best we can, it seems there are two aspects of the evidence in relation to the mother’s mental health which are emphasised.  First, it is suggested that the Federal Magistrate erred in “splitting the mother’s psychiatric condition into two”, contrary to the evidence of Dr M.  Secondly, although this is less clear, it seems to be suggested that his Honour erred in finding that the mother was being “appropriately medicated” when the evidence says otherwise.

2. As to the first issue, the father’s complaint stems from what his Honour said in paragraph 5 of his reasons for judgment, namely:

   The other dynamic is the Mother’s no less palpable angst in dealing with the Father, who she experiences as, at times angry, and often-times, controlling.  Her angst has led to one well-documented, extended stint in the secure section of the psychiatric unit in … Hospital.  She also contends with a long-time diagnosed, and mostly kept readily under control, bi-polar condition.

3. However, we do not read that paragraph as his Honour “splitting the mother’s condition into two” contrary to the evidence.  The evidence the father takes us to is Dr M saying that “the mother was admitted to hospital on 28 May in a manic state”, and then much later saying “I think it would be evident to everyone that [Ms Rezek] has a diagnosis of bipolar disorder”.  Then the father takes us to the evidence of Dr M about the role that stress plays as a trigger in a relapse or a deterioration in the disorder.

4. It is apparent that his Honour was well aware of that evidence, and we do not consider that his comments in paragraph 5 were suggesting that the mother’s bipolar disorder had no part to play in her admission to hospital.  His Honour was clearly focussing on the cause of her relapse.

5. Further, we observe that the father in promoting this ground of appeal has not come close to making out his far-fetched claim in paragraph d. of his written submission that:

   As a result of this error of fact, the Learned Federal Magistrate misdirected himself as to:

   i.The mother’s insight into her illness and its effect on the child, and

   ii.The best interests of the child.

6. As to the second issue, we also are not persuaded that his Honour has failed to “make use of evidence arising from [the] examination of [Dr M] in relation to medication”.  The evidence that the father took us to was the evidence of the medication that the mother had been taking and of the changes to that over time, and Dr M’s comments on what caused those changes.  However, that evidence does not render erroneous his Honour’s assessment of the mother’s current medication and its effectiveness on the basis of Dr M’s evidence.  Accordingly, we find no merit in this ground of appeal.

Ground 7

1. This allegation was the subject of cross-examination before the Federal Magistrate, but as with “an accusation against [Mr Tobey] involving a needle puncture mark on [X’s] arm”, and “allegations of punching of [X] by his father”, his Honour found as follows at paragraph 124:

   … The evidence is inconclusive in relation to all of these matters, in addition to which there are competing allegations by the parties.  In all the circumstances, the Court is unable to make any relevant comment on them, and certainly no finding against either party concerning them.  Both parties expressed concern of one kind or another about [X] being with the other parent, yet both also concede that [X] should spend time with the other parent.

2. Having read the relevant part of the transcript (Transcript 24 May 2011, p. 159, line 39 – p. 160, line 32, 26 May 2011, p. 319, line 23 – p. 331, line 2) in relation to this allegation, we can find no error in his Honour’s finding.  There is no doubt that the evidence was inconclusive, and thus we find no merit in this ground of appeal.

3. Before leaving this ground, we observe that the reliance by the father on what is contained in the notes made by the Police and tendered to the court (becoming Exhibit “O” and not Exhibit “P” as referred to by the father), without the author of the notes being called is problematic.  In the absence of the author giving evidence, the weight to be attached to these notes is significantly reduced.  Further, the father misrepresents the content of these notes in three important respects.  First, he fails to set out the entirety of the notes, secondly, nowhere in the notes is it recorded that the child was “terrified”, and thirdly, the Police did not form the view that the injuries were inflicted by the mother; the notes say that they were “concerned that the marks might have been caused by the mother”.

Ground 8

1. In his written submissions in support of this ground the father focuses on the evidence that Dr M gave in agreeing with the father that the mother’s evidence demonstrated a lack of insight into the effect of her illness on the child during the period May to October 2010 when her condition was at its worst.  However, not only did his Honour record this in his reasons (paragraph 152) and plainly take it into account, but significantly he also referred to the subsequent cross-examination of Dr M where he agreed that despite becoming unwell the mother had the insight and protective behaviour to try and shield the children (Y and X) from the effects of her illness.

2. In any event, it is entirely unclear what “findings of fact not in evidence in relation to the mother’s insight into the effect of her illness on the child” the father says were made by the Federal Magistrate; in other words the very complaint in the ground of appeal.  The alleged errors of fact escape us, and we find no merit in this ground of appeal.

Ground 9

1. In support of this ground the father in his written submissions presents 11 instances from the evidence (including one comprising submissions made on the mother’s behalf at an interim hearing) that he seems to suggest demonstrates that his Honour erred in his finding of credit.

2. Once again though the father has failed to appreciate that this not only assumes that his version of this evidence is correct, but also ignores all of the other relevant evidence that was given over the seven days of the trial.  Significantly, this also pays no credence to the distinct advantage that a trial judge has in assessing credit by seeing and hearing the witnesses give their evidence.

3. As Kirby J said in State Rail Authority of New South WalesvEarthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, at paragraph 90:

   The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the 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 has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. 

   [Footnotes omitted]

4. We can find no error in the finding of the Federal Magistrate as to credit.

Ground 10

1. Although there was evidence before the Federal Magistrate that the father had objected to certain psychiatric evidence from Dr T, the mother’s treating psychiatrist, being provided to Dr M and that he had objected to subpoenaed psychiatric records being forwarded to Dr M because they were “subpoenaed for another proceeding”, the father’s complaint was that there was no evidence that he had specifically objected to the mother’s mental health records going to Dr M.

2. His Honour’s finding as to this issue appears in paragraph 77 of his reasons for judgment where he said this:

   Fourthly, a matter of not insignificant concern was that, notwithstanding his constant and adverse contentions about [Ms Rezek’s] mental health, and his disquiet about [Dr M’s] assessment and Report, [Mr Tobey] objected to her mental health records going to [Dr M]⁴⁸.  This incongruity was inexplicable.  [Ms Rezek] had no objection to any of her health records going to [Dr M]⁴⁹.  Ultimately, those records of [Ms Rezek] were provided to [Dr M] and a supplementary report was prepared.  Had all records gone to [Dr M] at the outset, it is conceivable that only one report would have been necessary, and the extra cost and expense (to everyone) of the second report avoided.

3. Footnote 48 says this:

   See the Mother’s trial affidavit at pars.136-138, and T 69-70.  At T 69,
   [Mr Tobey] confirmed that he wanted to limit the material from [Ms Rezek] going to [Dr M].

   Footnote 49 reads as follows:

   In the context of this discussion, [Mr Tobey] rejected a contention from Counsel for [Ms Rezek] that he was a controlling person, or that ‘control’ was a feature of his personality.  See T 70.

4. The focus of the paragraphs of the mother’s trial affidavit referred to in footnote 48 was the father’s objection to Dr M having the material from

   
   

   Dr T, and having the affidavit of Ms O, but significantly the transcript reference provided by the father in his written submissions in support of this ground of appeal is to the following cross-examination of the father by the mother’s counsel.  After confirming that the father objected to Dr M interviewing the Fs, this appears:

   MS GODTSCHALK:           And I will just go back one.  You complain about [Dr M’s] assessment, but you wanted to limit material that went to [Dr M], didn’t you?---Yes.

   (Transcript 23 May 2011, p. 69, lines 36 - 37)

5. The fact is that the mother’s mental health records were not initially provided to Dr M, and we consider that given the objections that the father concedes he had to material going to Dr M, and particularly the open-ended response in his cross-examination set out above, it was not unreasonable for his Honour to make the finding that he did.  In other words, it was a finding that was reasonably open on the evidence and as we have said above that is all that is needed to quash any suggestion of appealable error.

6. We also observe that during the hearing before the Federal Magistrate the father’s then counsel, Ms Tonkin, conceded that the father had objected to all of the subpoenaed material going to Dr M.  The following exchange occurred:

   HIS HONOUR:         Thank you. Can I ask this:  my recollection, but I don’t want to rely upon recollection, but there was objection, was there not, to certain records going to [Dr M]?

   MS TONKIN:            Yes, objections to [Ms O’s] affidavit.

   MS …:More than that.

   MS HAUGHTON:      I’m instructed it was all, effectively ---

   MS …:The whole of the subpoena.

   MS HAUGHTON:      --- all of the subpoenaed material, including everything.

   MS GODTSCHALK:  Everything.

   HIS HONOUR:         So there was objection to ---

   MS GODTSCHALK:  By the father.

   HIS HONOUR:         Yes.

   MS TONKIN:            Yes.

   MS HAUGHTON:      Yes, your Honour.

   HIS HONOUR:         Yes.

   MS HAUGHTON:      Everyone else said yes.

   (Transcript 24 May 2011, p. 141 line 31 – p. 142, line 11)

7. This exchange plainly adds weight to his Honour’s finding being reasonably open to him.

8. Before leaving this ground, we note that in his oral submissions, when the relevance of this complaint was challenged, and it was put to him that whatever the interpretation of the evidence, and whether paragraph 77 of his Honour’s reasons was accurate or not, it says nothing about the father’s principal assertion that it was unsafe for his Honour to rely on the opinion of Dr M in coming to his conclusion, the father sought to change the focus of his complaint to one where he says this became just another example of a fact erroneously found by his Honour that led his Honour to the conclusion that he reached about the father’s attitude and his parenting capacity.  Apart from the fact that this is not evident from his Honour’s reasons, it does not alter our view about the lack of merit in this ground of appeal.

Ground 11

1. The complaint raised here is the use, or rather the alleged lack of use, that the Federal Magistrate made of the evidence of Dr E.

2. His Honour dealt with the evidence of Dr E, and other similar witnesses, in paragraph 60 of his reasons for judgment as follows:

   I should also note that, in my view, the various comments by
   [Mr Tobey’s] professional colleagues, all of whom said in their respective affidavits (but who were not required for cross-examination) that they had never seen [Mr Tobey] lose his temper, did not counter the history put before the Court in relation to his tendency to manifest anger.  As explained or submitted by Counsel for the Mother and for the ICL, such is perfectly understandable.  Professional colleagues relate to and deal with [Mr Tobey] in a very different environment to his former life partners and the every-day pressures that attend these more intimate relationships.  I accept such a distinction, and the submissions made thereto.

3. The father says that that distinction does not apply in relation to Dr E because they shared a house together for three years, and thus their contact was not just in a professional environment.

4. The father has taken us to the evidence from Dr E that was before the court, namely his affidavits of 26 September 2008 and 26 May 2009.  There were also notes of what Dr E is alleged to have told a police officer who attended at the father’s residence on 25 March 2010 at the instigation of the mother and which notes were included in a report that was part of subpoenaed material from the Australian Federal Police, and there was some evidence given by Dr M.

5. The affidavits were clearly before his Honour and able to be relied upon, but with the other “evidence” there must be a serious doubt as to what weight if any the Federal Magistrate could give to it.  The notes made on 25 March 2010 were clearly hearsay and thus unreliable, particularly without the author of the report being called as a witness.  And the evidence of Dr M plainly carried even less weight.  He was being asked in cross-examination to comment on what he was told Dr E said on 25 March 2010.  Indeed, when Dr M was asked whether that was “reliable evidence” by Dr E, Dr M gave the obvious and correct answer, namely, “I am not sure I am in a place to comment on the reliability of the evidence or otherwise” (Transcript 7 September 2011, p. 80, lines 40 - 41).

6. In any event, in his affidavits Dr E clearly set out his observations of the behaviour of the father in his presence and of the father’s interactions and relationship with the child both generally, and in one affidavit, in relation to a specific occasion responding to concerns raised by the mother around that time.  In summary, his observations are of a healthy, loving relationship where the child does not appear distressed and the father behaves appropriately.

7. However, the father has overlooked that the distinction his Honour was making in paragraph 60 of his reasons for judgment was not just between what might happen in a work environment compared to a home environment, but rather

   
   

   his Honour was of the view that a professional colleague, regardless of the environment, would not necessarily be exposed to what might occur in more intimate relationships where everyday pressures apply.

8. Thus, his Honour went on to make the following finding in paragraph 71 of his reasons for judgment:

   While I accept the unchallenged evidence of [Mr Tobey’s] professional colleagues that they have never seen him lose his temper, in the light of what has been discussed already in these reasons, and what is considered later, and in particular the evidence of [Ms Rezek] and [Ms O], I am satisfied that, on certain (and fortunately limited) occasions, [Mr Tobey] has made his frustration and or anger manifest and has done so in a way that is alarming for those present.  It is more likely than not, as [Dr M] notes in his second Report, that [X] has witnessed some of this protest or outrage.  [Dr M] observed (at par.37 of the Second Report) that he had “the strong impression of [X’s] experience of trauma and developmental disruption in the context of his parents’ conflictual relationship, his Mother’s mental illness and pre-occupations regarding his Father and his Father’s anger.”

9. We can find no error in how his Honour treated the evidence of Dr E and similar witnesses.

Ground 12

1. We do not propose to spend much time at all in addressing this ground of appeal.  It has no substance, and the written submissions of the father fail to demonstrate that his Honour was in error in his observations.  Indeed, it is quite apparent from the evidence that the mother admitted to and apologised for sending the email.

2. This is another of many examples throughout the father’s grounds of appeal where he is wanting the Full Court to do what Justice Kirby in AMS v AIF indicated an appellate court should avoid.

Ground 13

1. This ground challenges order 16 made by the Federal Magistrate.

2. The father seeks to challenge the order on a number of bases, but the only one that has any substance is that the Federal Magistrate failed to give any reasons for making the order.  To suggest, as the father also does, that the order is not in the best interests of the child, that Ms F failed to comply with previous orders, that she lacks an understanding of mental illness, or that she should not be entrusted with the care of X, are not to the point.  They are allegations that would need to be tested, but they were in fact not tested before the Federal Magistrate because no evidence was presented on this topic and no submissions were made.

3. In any event, to return to the issue of lack of reasons, the law is well settled.  In Bennett and Bennett (1991) FLC 92-191, the Full Court said this at 78,266:

   In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:-

   “The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:

   (a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or

   (b)      justice is not seen to have been done.

   The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”

   We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.

1. Here, and to repeat, there were no reasons at all given by the Federal Magistrate as to why the order should be made.  On that basis the ICL supports this ground of appeal and submits that the order should be set aside.

2. The mother sought to oppose the ground of appeal by suggesting that

   
   

   his Honour can be seen to have incorporated in his reasons for judgment, the reasons for judgment that he delivered on 4 June 2010 and 9 September 2010 when making interim orders for Ms F to care for the child while the mother was unwell.  The mother’s counsel took us to paragraph 18 of his Honour’s reasons for judgment where he indicated that the “detailed, immediate history of the litigation is set out in three judgments:  two from this Court” delivered on 4 June 2010 and 9 September 2010, and one from the Full Court delivered on 8 April 2011 when the father’s appeal against the order made on

   
   

   9 September 2010 was dismissed.

3. True it is that in the two first instance judgments his Honour set out in detail his reasons for having the child cared for by Ms F at those times, but his Honour did not in fact incorporate those reasons into the judgment under appeal, and certainly he did not identify those reasons as being the reasons why he was making the order that he did.

4. In these circumstances we find that this ground of appeal has merit.

5. The ICL asked that the court re-exercise the discretion in relation to this issue.  As will be explained in the conclusion of these reasons we formed the view that this issue should be re-heard with evidence both relevant and of recent origin.

Ground 14

1. Again this is a ground in respect of which we do not propose to say very much; it is a ground without any substance.

2. The plain fact of the matter is that the evidence of Ms O both in her affidavit and given orally, was unchallenged.  The father did not lead evidence-in-chief or seek leave to adduce evidence in reply.  He did initially seek to tender an affidavit which apparently responded to the affidavit of Ms O, but he then withdrew that affidavit.  Significantly, he also chose not to cross-examine

   
   

   Ms O.  Accordingly, despite the father being given the opportunity by the ICL in cross-examination to comment on the evidence of Ms O it was open to the Federal Magistrate to “accept [Ms O’s] evidence without qualification, and in its entirety”, and no error by his Honour has been demonstrated.  We refer again to the distinct advantage that a Federal Magistrate has in seeing and hearing the witnesses and making an assessment of their credit.

Ground 15

1. We propose to give this ground of appeal even shorter shrift.

2. The father complains that the Federal Magistrate made a Jones v Dunkel inference against him in respect of the evidence of Ms O.  However, a plain reading of paragraphs 136 to 138 inclusive of his Honour’s reasons for judgment indicates that although the ICL submitted that a “Jones v Dunkel inference” should be drawn, his Honour in fact did not consider that it was necessary to do so, and he did not draw any inference.

3. This ground of appeal has no merit.

Ground 16

1. Once again, there is no substance in this ground of appeal.  As submitted by counsel for the mother, his Honour’s orders “reflect exactly the Orders proposed by the ICL”, and “[this] was his Honour’s express intention” (paragraph 78 of the reasons for judgment).

2. There is no merit in this ground of appeal.

Property settlement orders

Grounds 17 and 21

1. In these grounds, which we can conveniently address together, the father complains that the Federal Magistrate failed to take into account the father’s post-separation contributions (Ground 17) and failed to take into account relevant factors arising under s 90SF(3) of the Act (Ground 21).

2. At the hearing, we indicated to Mr Tobey and counsel for the mother that prima facie Ground 17 has merit, and although Ground 21 may be marginal the complaints raised were examples of what can be said to be his Honour’s failure to properly exercise the discretion reposed in him by s 90SM of the Act in addressing the issue of property settlement.

3. We were concerned that his Honour failed to make findings of fact, certainly in relation to the respective contributions of the parties, and to some extent in relation to the net asset pool, the s 90SF(3) factors, and the just and equitable requirement in s 90SM(3) of the Act. There was simply a dearth of reasons for judgment as to how his Honour reached the conclusions that he did.

4. However, lack of reasons by his Honour was at best only raised obliquely by the father in Grounds 17 and 21, and there was no ground of appeal that squarely raised this fundamental issue.  Thus, as referred to above, we provided for the mother to file submissions as to whether we should entertain a complaint of lack of reasons, and if we did what we should do with such a complaint.  The father was then given the opportunity to respond to those submissions.  As also recorded above the mother filed her submissions on

   
   

   15 November 2012 and the father filed his responding submissions on

   
   

   26 November 2012.

5. In her written submissions, the mother says that we should not entertain a complaint of lack of reasons.  It is argued that the father well knew of the availability of such a ground of appeal given he had raised it in his appeal against the parenting orders, and that he had ample opportunity to articulate such a ground of appeal because he filed a Notice of Appeal and then later “comprehensively amended” the grounds of appeal  Further, in these circumstances it is said that, it was going beyond the ability of a court to provide assistance to a litigant without legal representation to formulate a ground of appeal not raised by the litigant in the existing grounds of appeal; to provide such assistance risks compromising the neutrality of the court.  In this context reference is made to the Full Court decisions of Johnson & Johnson (1997) FLC 92-764 and Re F: Litigants in person guidelines (2001) FLC 93-072.

6. The father’s submissions in response were of little assistance in this debate.  Unfortunately the father well and truly missed the point, and that exemplifies the difficulties confronting a litigant without legal representation, even one as intelligent and educated as the father.  Nevertheless, we are prepared to allow the father to pursue a complaint of lack of reasons.  It is not as though he has not raised lack of reasons at all:  as we have identified, that issue was obliquely raised in Grounds 17 and 21.  In addition, given that we are satisfied that the Federal Magistrate has made a fundamental error in failing to make the necessary findings of fact and in providing reasons for his conclusions based on those findings of fact, we cannot sit idly by and ignore that this is a case where the father is without legal representation, and clearly he has not appreciated the availability of such a direct challenge to the exercise of discretion by the Federal Magistrate.

7. That said, if we were disposed to entertain a lack of reasons complaint, the mother’s counsel sought to persuade us that such a complaint could not be made out.

8. The principles as to the need for adequate reasons are well settled and we refer to paragraph 123 above.  Further, the mother’s counsel referred us to the oft-cited exposition of those principles by Coleman J sitting as the Full Court in Wen & Thom [2010] FamCAFC 81. In that case his Honour said this at paragraph 57:

   As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.

9. Further, at paragraph 96 of his reasons for judgment Coleman J helpfully provided a series of questions which can usefully be asked in determining the adequacy of reasons.  Those questions are:

   (a)       Can the basis of the decision be seen and understood?

   (b)Can the parties see which of their arguments had been understood and accepted as forming part of the basis of the judicial decision?

   (c)Can an appeal court ascertain the reasoning upon which the decision was based?

   (d)Is the losing party denied knowledge as to why his or her case was rejected?

   (e)Did every matter raised on behalf of a party require determination and exposition in judicial reasons?

   (f)Did the judicial reasons fail to address an essential part of the reasoning which led to the judicial decision?

   (g)Were matters complained of on appeal the subject of submissions or otherwise of significance in the proceedings in the court below in a way which called for a reasoned consideration of them?

10. One of the primary issues here is that the Federal Magistrate failed to assess the respective contributions of the parties.  As a result, the mother’s counsel in her written submissions suggests that if the complaint is in reality that his Honour failed to undertake the four step process referred to in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 as the preferred approach, then there are subsequent Full Court authorities which explain that the four step approach provides a useful structure to apply in determining a dispute about property settlement, but it is not an approach that is mandated by the legislation, and thus to not apply it does not per se result in appealable error (Norman & Norman [2010] FamCAFC 66).

11. Although we agree with that submission, failure to apply the four step approach is not the appealable error being suggested here.  To repeat, his Honour failed to make the findings of fact which were necessary to arrive at the conclusion that he did.  As a result, it is not possible to discern the judicial reasoning upon which that conclusion is based.

12. Certainly, as is pointed out by the mother’s counsel, his Honour set out a table of assets and liabilities in his reasons for judgment (paragraph 194), but nowhere does he explain or make findings as to why he has included some items (for example, legal fees and HECS fees) and excluded others (for example, income tax liabilities).  Then, with the issue of contributions, the mother conceded before his Honour that she had made no relevant financial contributions, and that her case was limited to an assessment of her homemaker and parent contribution.  His Honour though made no findings as to the respective contributions of the parties saying only at paragraph 100 of his reasons for judgment:

    Property: There was/is no dispute that the relationship between the parties was of modest duration, from 2003 until 2007. And Counsel for [Ms Rezek] helpfully confirmed that her client’s case was basically confined to factors under s.75(2) of the Act.

    [Footnotes omitted]

13. The mother’s counsel says that the mother’s (and the father’s) homemaker and parent contributions “were dealt with by implication throughout the parenting analysis of the roles of the parties in [X’s] life”.  Further, she says that it was “conceded in submissions that the father made a financial contribution” to the welfare of Y (the mother’s other child).  However, that simply does not overcome the absence of factual findings as to these and other contribution issues in his Honour’s reasons.

14. The mother’s counsel also correctly points out that his Honour noted that the post-separation contributions of the father were “undisputed” (paragraphs 200 and 201 of the reasons for judgment).  However, there was still no attempt by his Honour to indicate how he has taken those contributions into account in reaching his conclusion, and that is the difficulty.

15. As is apparent from his Honour’s reasons (paragraphs 203 – 209) his Honour did spend some time in addressing and making findings as to the relevant

    
    

    s 90SF(3) factors, albeit he overlooked considering the father’s contributions to the child Y under s 90SF(3)(r) (Robb and Robb (1995) FLC 92-555), but in the absence of fulsome findings of fact as to the net asset pool, and the respective contributions of the parties, this does not allow this court or the parties to discern the path of judicial reasoning trodden by his Honour. Indeed,

    
    

    his Honour’s treatment of the s 90SF(3) factors is rendered incomprehensible by the failure to first assess the respective contributions of the parties given that effectively the relevance of the s 90SF(3) factors is to provide an adjustment (if appropriate) to the position reached after assessing the respective contributions of the parties.

16. There is simply no articulation by his Honour as to how he arrived at a percentage of 35 per cent to be allocated to the mother after having considered those s 90SF(3) factors that his Honour considered relevant.

17. Similarly, his Honour did look to consider the justice and equity of the orders he proposed (paragraphs 210 – 213 of his reasons for judgment), and he concluded that they were just and equitable in all the circumstances, but without having made all the necessary findings of fact as to the net asset pool, the respective contributions of the parties, and all of the relevant s 90SF(3) factors, that is a conclusion which has no basis in the reasons for judgment.

18. The mother’s counsel submits that if, as is our position, the complaint of lack of reasons is made out, then we should not allow the appeal against the order for property settlement providing for the father to pay to the mother the sum of $124,493 on that basis because the father failed to make full and frank disclosure rendering the Federal Magistrate’s task of fact finding difficult, and the father should not be able to profit from that circumstance.

19. Certainly, his Honour made reference in his reasons for judgment to the “limited evidence before the Court in relation to property” (paragraph 187), the “significant lack of attention [by the father] to defining the parameters of the property pool” (paragraph 109), and emphasised that “without being unduly critical, the attention to detail and basic information concerning [Mr Tobey’s] property made the determination of what is ‘just and equitable’ for the purposes of s 79 [sic] of the Act, rather difficult, indeed significantly more difficult than it otherwise should have been” (paragraph 188). Further, in relation to the net asset pool his Honour said this at paragraph 195:

    Because of the lack of information or updated material filed by
    [Mr Tobey], I will take the table of assets and liabilities as provided on behalf of [Ms Rezek] as sufficient for the purposes of these reasons.  I note that the difference between the net assets set out in [Mr Tobey’s] original (and only) table, which was attached to his Counsel’s filed on 20^th May, and that which has been recently updated by [Ms Rezek’s] solicitor, is only some $17,319.

20. However, that cannot excuse his Honour’s failure to assess at all the respective contributions of the parties, or to explain why he was including some items and excluding others from the table of assets and liabilities.  That assessment, and that explanation was not prevented by, for example, the failure by the father to include the purchase of his Q property in his list of assets, and to provide an updated list of assets and liabilities, as complained of by the Federal Magistrate in paragraph 188 of his reasons for judgment.

21. Indeed, although his Honour referred to the lack of full and frank disclosure by the father, his Honour did not invoke that circumstance as a reason for making findings in favour of the mother as he might have been entitled to relying on such authorities as Weir and Weir (1993) FLC 92-338. Again, because of the lack of reasons we are left in the dark as to what use his Honour made of the father’s lack of disclosure.

22. In the context of whether the appeal against the order for the payment of money should be allowed or not, we observe that during the hearing and confirmed in her subsequent written submissions, counsel for the mother explained to us that his Honour had made a mathematical error which resulted in the mother in fact only receiving 19 per cent of the net asset pool as found by his Honour, instead of the 35 per cent determined by his Honour to be appropriate.  This error arose because his Honour, in fixing the net non-superannuation asset pool, deducted the father’s liabilities but not the mother’s liabilities.  That error, although not the subject of any cross-appeal, can be cured by us allowing the appeal against the order for property settlement as we propose.

23. Although perhaps unnecessary in light of our conclusion as to the lack of adequate reasons, we now return to the specific grounds of appeal raised by the father against the order for property settlement.  We have said all we need to though in relation to Ground 17 given that there the father complains about one aspect of his Honour’s failure to assess the contributions of the parties, and submits that his Honour thereby erred in the exercise of his discretion.  We agree with that submission.

24. We also referred above to Ground 21. There the father complains that the Federal Magistrate failed to take into account three factors when assessing the relevant factors arising under s 90SF(3) of the Act. The first factor is that of the parties’ ages. However, this is a specious submission given that as the mother’s counsel points out, his Honour referred to the ages of the parties in paragraph 197 of his reasons for judgment, and the father did not make any submissions to the Federal Magistrate that the ages of the parties demanded any adjustment in his favour. His Honour clearly did not consider the ages of the parties were relevant, and with that we agree.

25. The second factor identified is the contribution made by the father to the welfare and support of the child Y.  Here, we agree with the father that

    
    

    his Honour erred in failing to take this into account at all under s 90SF(3)(r) of the Act (the equivalent of s 75(2)(o) referred to in the father’s submission). It also does not provide an answer to suggest, as the mother’s counsel does, that there was no dispute about this issue. Certainly, the onus was on the father to present evidence of his contributions in this regard, and although he did not entirely satisfy that onus, there was evidence that should have led his Honour to take this factor into account.

26. The third factor is said to be “the deterioration in the father’s financial circumstances”.  In his written submissions the father clarified this factor as being a deterioration as a result of his legal fees.  Nevertheless we find no merit in this claim.  We accept the submission of the mother’s counsel that the father failed to present any admissible evidence demonstrating a deterioration in his financial circumstances.  He also failed to provide any updated material as to his assets and liabilities, and his Honour had to do the best he could in fixing the table of assets and liabilities.  Of course, his Honour failed to include the father’s estimated income tax liability in the table, and for that we have been critical of his Honour, but that omission does not translate into his Honour failing to take into account any alleged deterioration in the father’s financial circumstances.

Ground 20

1. On that note it is opportune to turn to Ground 20.  By this ground the father complains that the Federal Magistrate erred in making findings on the basis that the father had not provided evidence of his assets and liabilities.  In his written submissions the father identifies paragraph 188 of the reasons for judgment as the paragraph where his Honour notes that purchase of the Q property by the father was not included in his list of assets.  The father then points to his financial statement which did include this property.

1. However, we consider there is no merit in this ground of appeal.  His Honour in paragraph 188 of his reasons for judgment was referring back to what he correctly observed in paragraph 109 of his reasons for judgment, namely that in the schedule of assets attached to the father’s then counsel’s case outline filed on 20 May 2011, the Q property was not included.  In any event, importantly his Honour included the Q property in his table of assets and liabilities set out in paragraph 194 of his reasons for judgment.  Thus there was no error here by his Honour.

Grounds 18 and 19

1. It is convenient to address Grounds 18 and 19 together.  As to Ground 18, that his Honour erred is conceded by the mother, but given the lack of reasons it is unclear how, if at all, this error influenced his Honour’s decision.  Thus this clearly becomes part of the reason for allowing the appeal against the order for property settlement.

2. As to Ground 19, there is no concession by the mother.  The relevant order of Brewster FM made on 11 August 2010 was an injunction restraining the father from “further encumbering the new property”.  However, in completing the purchase of the Q property a re-draw facility of $150,000 was put in place, and his Honour found that the father had “further encumbered the property by virtue of [this] re-draw facility” (paragraph 106 of the reasons for judgment).  His Honour was clearly entitled to make that finding though, given that in cross-examination the father conceded that by him re-drawing $15,000 from that facility he had “further encumbered the new property” (Transcript

   
   

   23 May 2011, p. 50 lines 4-5).  Thus, there is no error here by the Federal Magistrate.

Costs order

1. By order 24 the Federal Magistrate dismissed the father’s application to have the costs of Dr M shared equally between the parties.  In his Amended Notice of Appeal the father sought to appeal against that order, but he omitted to set out any ground of appeal in relation to that.  He did though seek an order on appeal (order 12) that the costs of Dr M’s attendance on 7 September 2011 be shared equally by the applicant, the respondent and the ICL.

2. Although there was no ground of appeal, and no written submissions by the father in relation to this issue, we permitted oral submissions.

3. The father submitted that if his Ground 10 was successful, then order 24 made by the Federal Magistrate should be set aside, and order 12 substituted.  He explained that the link with Ground 10 was that if it was found that he did not object to the mother’s psychiatric records going to Dr M, and therefore he was not responsible for Dr M having to prepare a supplementary report, he should not be responsible for Dr M’s costs.

4. We have found no merit in Ground 10, and therefore on the father’s own submission, any complaint about order 24 dissipates.

5. However, the father is incorrect in tying order 24 to Ground 10 and the question of whether a supplementary report by Dr M was required because of his objection to the mother’s psychiatric records going to Dr M.

6. The fact of the matter is that the supplementary report was paid for two thirds by Legal Aid on the mother’s behalf and one third by the father.  Thus, the costs of that report were not the subject of the father’s application which was dismissed by his Honour.  In that application the father was seeking the costs of the cancellation of Dr M’s appointment to give evidence on 25 May 2011, and the costs of him attending court on a subsequent date to give evidence, be shared by the parties.

7. His Honour dealt with this issue comprehensively in paragraphs 159 to 169 of his reasons for judgment.  Importantly, as his Honour records, the father’s counsel at the time appropriately conceded that the father should bear the costs of the cancellation and the subsequent attendance by Dr M, and it was on that basis that the Federal Magistrate dismissed the father’s application.  In these circumstances there has been no error by the Federal Magistrate in making order 24.

Conclusion

1. In relation to the appeal against the parenting orders we have found merit in Ground 13, and thus the appeal should be allowed in part and order 16 set aside.  In relation to the appeal against the property settlement orders we have found merit in Grounds 17, 18 and 21(b), but more importantly we have found that his Honour erred in failing to provide adequate reasons for making order 20.  Thus, again, that part of the appeal should be allowed and order 20 set aside.

2. The next question for us is whether we remit the relevant aspects of the proceedings to the Federal Magistrates Court (now the Federal Circuit Court) for rehearing, or whether we can re-exercise the discretion.

3. The mother sought that we re-exercise the discretion as to the issue of property settlement in light of her mental health.  The expert evidence at trial was to the effect that it was “essential for [Ms Rezek] to remain as stress-free (notably from litigation) as possible to enable her to parent [X] most effectively, and also as free as possible from ‘interference’ from [Mr Tobey].”  Thus, it is said, the mother should not be put through a rehearing.

4. However, as to what course should be taken if order 16 is set aside, the mother’s counsel submitted that it was not open to us to safely re-exercise the discretion because since his Honour’s orders there has been a relapse and further period of hospitalisation, and those orders were invoked.  In other words, there would be a need for further evidence to be presented on a

   
   

   re-exercise of discretion, and that evidence is likely to be controversial.  Thus, bearing in mind that this court is not set up to hear and determine evidence, that prospect would realistically prevent this court from re-exercising the discretion.  That of course is not what the mother wants given the concerns about her health, but as her counsel recognised, this court really has no choice.

5. Dwelling for the moment on the consequences of setting aside order 16, the father’s position was that that issue should be remitted for re-determination to enable submissions to be made as to what orders should be put in place.  The ICL’s position was that we should re-exercise the discretion and put in place the orders that the ICL sought at trial.

6. Given the submissions of the mother and the father, it is plain that we could not re-exercise the discretion in relation to this aspect of the proceedings.

7. We did indicate at the conclusion of the hearing of the appeal, that when delivering our reasons for judgment we would seek further submissions depending on the result as to “how the matter should then proceed”.  However, having re-visited the issue and in particular the submissions that were made by the parties and the ICL, we see no point in delaying this matter in order to seek further submissions.

8. We emphasise at this point that what is to be remitted is the issue of what parenting orders should be put in place for the care of the child in the event that the mother’s treating psychiatrist determines that she is too ill to care for the child.  Such orders of course would then remain in place until the mother’s treating psychiatrist determines that she is sufficiently well to resume the care of the child, or should there be a dispute, the court.

9. To return to the issue of property settlement, in addition to raising the issue of the mother’s health, her counsel submitted that the evidence is all there and we would be able to re-exercise the discretion.

10. The father’s submission in relation to this issue was that he would want to adduce further evidence and that would be the evidence of his taxation liabilities.

11. Sympathetic as we are to the concerns about the mother’s mental health, we have no choice but to remit this aspect of the proceedings for rehearing.  Given the absence of findings of fact by the Federal Magistrate, it is a contradiction in terms for us to say that we will nevertheless re-examine the discretion having not heard any evidence as the mother suggests we could, and, even if evidence was presented, not being able to facilitate the taking of that evidence.  Our decision in these circumstances would be no less arbitrary than we have found his Honour’s was.

12. There is also the added circumstance that if this court did re-exercise the discretion, the only avenue of challenge either party has if dissatisfied is by seeking special leave to appeal to the High Court.

13. Accordingly we propose to also remit this aspect of the proceedings to the Federal Magistrates Court (now the Federal Circuit Court) for rehearing.  We will also provide for that rehearing to be before another Federal Magistrate (now known as a Judge).

14. It perhaps goes without saying, but to conclude this topic, there was of course no appeal against the agreed superannuation splitting order, and thus, despite the need for a rehearing as to the property settlement proceedings, that splitting order is to remain in place.

Costs

1. At the conclusion of the hearing of the appeal on 24 October 2012 we did not seek submissions on costs, but we indicated to the parties that when delivering these reasons for judgment we may allow each party a short period of time to provide written submissions as to costs.  We then made an order, inter alia, that the costs in the appeal and the application for leave to adduce further evidence be reserved. 

2. Upon reflection, instead of seeking written submissions on costs, we will leave it to the parties to make any application that they wish to in relation to costs in accordance with r 22.53 of the Family Law Rules 2004 (Cth).

3. We also observe that given the impending retirement of Coleman J, any application for costs that a party does make will be determined by the court comprising the remaining two members of the Bench, May and Strickland JJ pursuant to s 28(4) of the Act.

I certify that the preceding one hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Strickland JJ) delivered on 7 May 2013.

Associate: 

Date:  7 May 2013