Van Housen & Analka (No 2)

[2017] FamCAFC 252

FAMILY COURT OF AUSTRALIA

VAN HOUSEN & ANALKA (NO. 2) [2017] FamCAFC 252

FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed the mother’s application for relocation and made orders as to the time the child would spend with the father – Whether her Honour erred in her approach to the competing proposals – Where her Honour did not fail to evaluate the competing proposals – Where neither party suggested that orders for substantial and significant time in Australia were not reasonably practicable – Whether her Honour erred by making an order that overnight time commence before the child turned three when neither party sought such an order – Where this order was stayed pending resolution of the appeal and had no effect – Where her Honour’s order was supported by the evidence – No appealable error established.  

FAMILY LAW – APPEAL – PARENTING – Where the primary judge’s reasons stated that the orders would allow the mother to travel with the child overseas – Where no specific order was made – Where the father conceded the failure to make an order was a slip – Where the parties agreed on the order the Full Court should make – Order for overseas travel made by consent.

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge found that it would not be appropriate to make an order for property settlement – Where there were assets and liabilities in dispute between the parties – Where the primary judge failed to determine the dispute as to bank accounts in the father’s name before determining whether an order should be made – Appealable error established – Appeal allowed in part.

FAMILY LAW – COSTS – Where the appeal was allowed in part – Where the general principle that each party bear his or her own costs is appropriate – No order as to costs.

Family Law Act 1975 (Cth) ss 60CC, 65DAA, 117

AMS v AIF  (1999) 199 CLR 160
SCVG & KLD (2014) FLC 93-582

APPELLANT: Ms Van Housen

RESPONDENT: Mr Analka

FILE NUMBER: SYC 5100 of 2015

APPEAL NUMBER: EA 63 of 2017

DATE DELIVERED: 22 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Aldridge and Carew JJ

HEARING DATE: 31 October 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 2 June 2017

LOWER COURT MNC: [2017] FamCA 388

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Kearney SC

SOLICITOR FOR THE APPELLANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Ms Beck

SOLICITOR FOR THE RESPONDENT: Cominos Family Lawyers

Orders

1. The appeal be allowed in part.

2. Order 14 made by Cleary J on 2 June 2017 be set aside and the property proceedings be remitted for rehearing by a judge of the Family Court of Australia other than Cleary J.

By consent it is ordered

1. Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) the mother shall be allowed to travel overseas with the child B, born … 2014, subject to providing written notice to the other party no less than 14 days in advance of the departure date and notifying the other party of the address and telephone number/s of the place/s where the child will be staying during school holidays and for the purposes of such travel:

   (a) The father’s time with the child pursuant to the orders made by Cleary J on 2 June 2017 shall be suspended during the mother’s travel;

   (b) The mother shall provide to the father make up time within two months of the date of her return.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Van Housen & Analka (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 63 of 2017
File Number: SYC 5100 of 2015

Ms Van Housen

Appellant

And

Mr Analka

Respondent

REASONS FOR JUDGMENT

1. On 2 June 2017 Cleary J made orders determining competing applications in respect of parenting and property orders sought by Ms Van Housen (“the mother”) and Mr Analka (“the father”). By Notice of Appeal filed on 7 June 2017 the mother appeals against several of these orders. The parenting orders concern the parties’ only child B, who was born in 2014.

2. The mother sought orders that she be allowed to relocate to New Zealand with the child. The father opposed this relocation. Ultimately the primary judge made orders that the child live with the mother in Australia, and that the child spend time with the father on a gradually increasing basis. Notably, the orders provided that the child begin spending overnight time with the father immediately. The orders also provided that the parties have equal shared parental responsibility for the child, an agreed position between them.

3. With respect to the property application, the mother sought an order that the father pay her $300,000 by way of property settlement. The primary judge declined to make the order for payment sought by the mother and instead made no adjustment to the parties’ interests in property and liabilities.

4. Some background to the dispute is necessary so as to give her Honour’s orders, and the appeal, some context.

Background

1. Both parties were born overseas, the mother in New Zealand and the father in Country C, though at the time of trial both had resided in Australia for the majority of their adult lives.

2. The parties commenced their relationship in mid-2010, began living together in October 2011 and were married in 2013. The child was born in 2014.

3. At the commencement of the relationship the father owned two properties. During the relationship both parties purchased a property each, with the mother’s purchase financed by her parents who hold an unregistered mortgage over the property.

4. The parties separated on 26 July 2015. On 30 July 2015 the police made an application to the Local Court on behalf of the mother for an Apprehended Domestic Violence Order (“ADVO”) to be made against the father.

5. On 3 August 2015 without prior discussion with the father, the mother travelled with the child to New Zealand where she stayed with her family. The next day, 4 August 2015, the mother’s Initiating Application for parenting orders was filed in the Family Court in Sydney, having being signed by the mother before she left for New Zealand.

6. On 10 August 2015 the ADVO came before the Local Court. The mother did not appear on the application.  The father appeared and consented to an ADVO being made for a period of 12 months (without admissions). The order was for the protection of both the mother and the child.  

7. On 27 August 2015 the father filed an Application in a Case seeking the return of the child by the mother to Australia and interim parenting orders.  

8. On 12 September 2015 the mother returned to Sydney with the child, and consent orders were made between the parties on 14 September 2015. Relevantly the orders provided that the parties have equal shared parental responsibility for the child, and that the child spend six hours each week with the father, not including any overnight time.

9. These orders continued until the final hearing before her Honour, though it appears that the parties between themselves agreed to vary the orders by extending the father’s time with the child on the weekend by an hour. Consent orders were also made in November 2015 and December 2016 for the mother to travel to New Zealand with the child over the Christmas period, with make-up time to be given to the father.

10. It was not contended that the child should live other than with the mother. Thus the issue for her Honour was the mother’s application to relocate the child’s residence to New Zealand.  Although three potential outcomes were posited by the family consultant – that is, that the child live with the mother in New Zealand or in Sydney, or that the mother remain living in Sydney for some years and then relocate – only the first two were propounded by the parties.

11. The primary judge found that the child had a meaningful relationship with both parents at [92] and that the child’s meaningful relationship with each parent brought her substantial benefit at [101].

12. The primary judge then found that she could not be confident that the mother would make every effort to sustain the relationship between the child and the father because she could not be confident that the mother valued the relationship between the father and the child (at [102]). Her Honour determined that due to this, regular daily face to face contact with both parents was the best way to ensure the child’s relationship with each parent was sustained (at [104]).

13. Her Honour concluded that the best interests of the child would be promoted by the child remaining in Australia, living with her mother and spending increasing periods of time with her father. Her Honour found that overnight time should commence straight away “consistent with [the child’s] needs for significant and substantial time and the ability of the father to care for her” (at [163]), and that the evidence of the maternal grandmother was that the mother was able to remain in her current home with the financial support of her parents if she was unable to relocate to New Zealand (at [165]).

14. Ultimately the primary judge made orders for equal shared parental responsibility and for the child to spend time with the father on a gradually increasing basis as follows:

    ·Until she turned three for eight hours each Wednesday and one overnight period of 24 hours each weekend; then

    ·From when she turned three until she started school (2020) each Wednesday for eight hours, each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday, and for one period of five days in each three month period commencing after August 2018; then

    ·From the commencement of school (2020) for four nights each fortnight and for half of each school term holiday period.

15. A conditional stay was granted on 29 June 2017, to the effect that the child has not yet commenced spending overnight time with the father.

The appeal

1. As we have said, the mother appeals against both the parenting orders and the property order.

2. The mother’s Notice of Appeal asserted 25 grounds of appeal against the primary judge’s orders. On the hearing of the appeal the grounds in relation to the parenting aspect of the appeal were reformulated by counsel for the mother into three issues. Those issues picked up some but not all of the asserted grounds and counsel informed the court that those grounds not directly referred to in the reframed issues were abandoned.

3. The grounds in relation to the property aspect of the appeal were argued together.

Parenting

1. Before we begin our consideration of the challenges to the parenting orders, and given that at least part of the challenge to her Honour’s orders rests in contended errors in the application of ss 60CC and 65DAA of the Family Law Act 1975 (Cth) (“the Act”), it is important to set out the principles relevant to her Honour’s decision and a brief summation of her Honour’s reasoning process which will provide some foundation for the discussion that is to follow.

2. It is first important to note that determining an application for relocation is driven by a consideration of the child’s best interests, as it remains the paramount consideration in all parenting orders (see AMS v AIF (1999) 199 CLR 160).

3. Turning to her Honour’s reasons, the primary judge determined that there should be an order for equal shared parental responsibility. Such a determination engages s 65DAA which provides that, where such an order for parental responsibility is made, orders for equal time or substantial and significant time have to be considered if they are in the child’s best interests and reasonably practicable. Of course, if neither party seeks such time it is not incumbent on the trial judge to engage in a consideration of a proposal that neither party propounds (see SCVG & KLD (2014) FLC 93-582).

4. The whole of the primary judge’s reasons consider whether it would be in the child’s best interests to move to live with the mother in New Zealand. Her Honour concluded that such a move would not be in the child’s best interests.

5. The primary judge then made orders for time with the father in Sydney. Her Honour said that the orders she made, which included overnight time, provided for substantial and significant time. Importantly, neither party contended that the father spending time with the child if the mother was in Sydney raised any issue of reasonable practicability.

Competing proposals

1. The first challenge concerned her Honour’s approach to the parties’ competing parenting proposals.  The overall challenge comprised four separate contended errors.

Failure to consider the mother’s relocation application in context of s 60CC and s 65DAA

1. This challenge asserted that her Honour failed to consider the mother’s primary application in the context of ss 60CC and 65DAA of the Act.

2. In essence, this challenge contended that her Honour did not consider the entirety of the mother’s proposal for time between the child and the father in the event that she was permitted to relocate to New Zealand.

3. The details of the mother’s proposal for the time that the father would spend with the child should she and the child be living in New Zealand are found in paragraphs 5 to 9 of Annexure A to the Outline of Case filed on her behalf.  In broad she proposed that if the father travelled to New Zealand, at most once a month, he would spend some seven hours with the child over four days, two of which were not to be consecutive.  As the child grew older this time was to extend to eight hours per day, and when the child was in primary school would involve two overnight periods with the father. In the event that the mother and child were in Sydney, which was to occur for three weeks per year, the father would spend time with the child on four or five occasions in each week for seven or eight hours.  The mother’s proposed orders also provided that there be further periods of time as the parties agreed in writing.  The orders further provided for time on special occasions in Sydney, and that the child would spend Christmas in New Zealand, although if the father was in New Zealand he could spend time with the child on Christmas Day (orders 10 and 11).  Further communication between the father and child was to be facilitated by Skype or Facetime at least three times a week (order 13).

4. The father opposed the relocation of the child’s residence to New Zealand.

5. Her Honour set out a summation of the mother’s primary proposal at [87], albeit without reference to the Skype or Facetime communication.

6. It was further argued that her Honour erred in that she should have considered the mother’s proposal in light of the father’s evidence about his ability to travel to New Zealand to visit the child were the mother and child to relocate.  It was asserted that had the primary judge taken into account both the communication orders sought and the father’s proposal, her Honour would have concluded that the parties’ proposals provided for the continuation of the child’s meaningful relationship with the father if relocation was allowed.

7. Counsel called in aid of this submission the evidence of the family consultant as to the effect of the mother’s proposals on the maintenance of the relationship between the father and the child.

8. As part of the consideration of the mother’s argument about the family consultant’s evidence, it is useful to set out in greater detail the evidence of the family consultant in both his report and oral evidence.

9. It is first to be understood that when the family consultant saw the parties for the family report the child was 22 months old.  At the time of the hearing, and the family consultant’s oral evidence, she was two and a half, and when judgment was delivered the child was nearly three.  In his consideration of the mother’s proposed relocation to New Zealand the family consultant said:

   [The child] living with [the mother] in New Zealand. [The child] is assessed to have an attachment to her father.  He has been a significant and regular presence in her life since birth(apart from a period of six weeks she was in New Zealand) and they were observed to have comfortable, warm and appropriate parent/child interactions. If [the child] were to move to New Zealand and see her father only a few times a year, as seems likely given the practical constraints, she would experience a significant loss. While it does not appear that [the mother] has the intention of severing or curtailing [the child’s] relationship with her father, even if she were to promote [the father] and take steps to keep him alive in [the child’s] mind during her times away from [the father], because of [the child’s] age and consequent limited ability to understand concepts of time and distance the father/child relationship would inevitably diminish in intensity and depth. 

   (Family report dated 28 July 2016, paragraph 49)

10. The family consultant concluded:

    The best option for [the child] would be for her to remain in Sydney, reside close to both her parents and have them involved in her day to day life as she grows up.…

    (Family report dated 28 July 2016, paragraph 51)

11. In his oral evidence the family consultant said that if the child was not living in Sydney it would be more difficult for her to retain memories of her father sufficient to sustain that relationship during his absences (transcript 15 February 2017, page 256, lines 13 to 16). 

12. He also agreed that contact by Skype is entirely different to face to face contact with a child, especially for an infant (transcript 15 February 2017, page 256, lines 29 to 32). 

13. The family consultant said that the diminution of the relationship with the child would result from lack of time with the father and observed that the father had expressed some doubts about his financial capacity to travel to New Zealand more than a few times a year.  The consultant emphasised that the issue of importance for him was the regularity of the time spent between the child and the father as well as how much time was spent (transcript 15 February 2017, page 256 lines 25 to 27, page 262).

14. It was suggested to the family consultant:

    And an arrangement, if her Honour made an order that permitted [the child] to relocate to New Zealand with her mother, that saw the father seeing [the child] for block periods of time, whilst not the same as twice a week, would assist [the child] in her enhancement and development of her relationship with her father.  Would you agree with that?‑‑‑It would – that would be better than, I suppose, what was proposed initially.

    And if those block periods of time looked like this – and I will – let’s say that the father gives – assume that the father gives evidence that he has four weeks a year holiday, and that he would be prepared to use those four weeks to go to [the child] – go to New Zealand to see [the child], right, and if you scattered those four weeks over a year and then you overlay that with the mother coming to Australia for three one week blocks, then that would be a better outcome for [the child] than what you had in mind when you were talking about the few occasions.  Would you agree?‑‑‑That would – that would be better.  I don’t think that’s the preferable, but that would be better.

    …

    So an arrangement, let’s say, that looked like that that had [the child] seeing each parent at least in each location, if not monthly, six weekly would be a good outcome if she has to move to New Zealand?‑‑‑If she has to move to New Zealand.

    (Transcript 15 February 2017, page 263, lines 5 to 35)

1. The family consultant’s view was unchanged even if he accepted that the child had a good relationship with the father. He said:

   … No, she’s still so – so young, so it’s – so even if the relationship is excellent now the – the – the potential for that to be diminished – I mean, she’s – she’s so young.  So the – yes, it’s difficult for that to carry over. 

   (Transcript 15 February 2017, page 264, lines 40 to 42)

2. Her Honour then directed some questions to the family consultant at the end of his oral evidence:

   Now, the proposals at the moment – and this – the proposals are the orders sought by each of the parents on the basis of the success of their application.  So what I’ve got before me is what the mother would like to see happen if she and [the child] go to New Zealand and what the father would like to see happen if they stay here?‑‑‑Yes.

   The mother’s proposal for at least the next year or two is that she would fly to Sydney with the child for a block of seven days ‑ ‑ ‑?‑‑‑Mmm.

   ‑ ‑ ‑ and that the child would spend time with her father on three or four of those days during the day?‑‑‑Okay.

   She would do that three times a year, and that she proposes the father would come for a week like that to New Zealand four times a years.  So it’s seven blocks of time a year ‑ ‑ ‑?‑‑‑Mmm.

   ‑ ‑ ‑ daytime only ‑ ‑ ‑?‑‑‑Yes.

   ‑ ‑ ‑ and the evidence of the mother is that when she came to Australia she’s not sure where she would stay.  It might be in a hotel.  It might be at a friend’s house ‑ ‑ ‑?‑‑‑Mmm.

   ‑ ‑ ‑ and there’s no particular evidence about what the father would do, but presumably similar kind of accommodation, a hotel.  What I want to ask you is what’s the impact on the child of seeing the father in those circumstances?‑‑‑Well, it would be preferable that she comes to a home where there’s toys and there’s everything for her, sort of thing.  Obviously, the time with the father is important, but that would be less than ideal, I suppose, because it’s – she would have a sense of her father’s space currently, but that – that may not be present, obviously, in a hotel room.

   Well, when the – for the three weeks that the mother came to Australia, the three or four days of visiting in that block would presumably be wherever the father took her?‑‑‑Where the father is, yes.

   But that would be three times a year in ‑ ‑ ‑?‑‑‑Yes.

   ‑ ‑ ‑ close – and beyond that, the lack of familiarity, what’s the impact on the child of that level of regularity?  That is close visits together spaced out, seven of them, over the course of a year.  How does she process that?‑‑‑Well, I suppose, she processes that dependent upon how well her parents are able to – to work that through – work that – you know, work through her with that, sort of thing, and – and prepare her for what’s going on.  I suppose, the success of that is really dependent upon how they do – how they deal with that, and, obviously, when – you know, if that – if that were to occur then – then still bringing and making sure that she had as many things – things from home that would make her comfortable in those settings, you know, like when she came – when she came to the court she had her – a little teddy bear with her, sort of thing, so things that would be familiar to her would – would assist.

   (Transcript 15 February 2017, page 267 to 268)

3. We note that at the conclusion of her Honour’s questions to the family consultant, counsel for the mother did not take issue with her Honour’s expression of the mother’s proposal for the time that the child would spend with the father if the mother was permitted to relocate with the child to New Zealand. Nor, in our view, could there have been an exception taken because her Honour’s summary correctly set out the mother’s proposal.  Thus to the extent that it was argued on appeal that the summary of the mother’s position by her Honour at [87] was incomplete or represented an imperfect understanding of the mother’s proposal, we reject the contention.

4. We now turn to the mother’s submission that her primary proposal should have been considered in light of the father’s proposal, contained in a minute of order handed up in court on the final day of the hearing. The minute set out the capacity of the father to travel to New Zealand in the event that the Court allowed the child to relocate there. The father proposed that he spend time with the child every two months for a long weekend, alternating between time in New Zealand and Sydney, as well as block periods of time during the school holiday period. The father’s proposal must be read in context with his oral evidence:

   Now, you don’t suggest, do you, that if an order is made for [the child] to live with her mother in New Zealand that you won’t be able to afford to go, do you?---I believe not, so I won’t be able to afford.

   You believe you won’t be able to afford to go?---No.

   (Transcript 14 February 2017, page 204, lines 12 to 16)

5. Thus the father’s evidence of the time he could spend with the child in addition to the time proposed by the mother was somewhat uncertain and we do not understand how it could have, if taken with the mother’s proposal, persuaded her Honour that the child’s relationship with the father would be fostered and maintained if she lived in New Zealand.

6. We do not accept that the primary judge failed to evaluate the parties’ competing proposals.

Reasonable practicability of orders

1. It was argued that the primary judge failed to consider whether, having regard to the proposals of each party, it was reasonably practicable for the child to have substantial and significant time with the father.

2. It was not submitted, nor do we see how it could have been submitted, that the proposal for time in New Zealand would amount to substantial and significant time. In any event, key issues of practicability in terms of whether either party could afford the proposals were the mother to relocate to New Zealand were dealt with by her Honour, who found that there was no certainty that the mother could afford her own proposal. It seems then that the complaint is that her Honour did not consider whether the father’s proposal or the final orders ultimately made were reasonably practicable.   

3. However,  as we have said, neither party suggested to her Honour that there was any practical impediment to the implementation of the proposed time between the child and the father in Sydney and in those circumstances her Honour was not required to embark on an independent consideration of the issue (see SCVG & KLD (2014) FLC 93-582 at [78] to [81]). No error in her Honour’s approach has been shown.

Errors in certain findings

1. At [98] her Honour found that the mother could be critical of the father and had sent him two emails with a sharp tone. At [102] her Honour found that she could not be confident that the mother would make every effort to ensure that the relationship between the child and the father was sustained if the mother and child were living in New Zealand.  At [103] her Honour recorded that her impression was that the mother considered the child’s family to be represented by the maternal grandparents and the extended maternal family.  Her Honour also found that the attitude to the father expressed by the maternal grandmother tended to suggest that she undervalued the father’s relationship with the child (at [108]), that there was uncertainty surrounding the mother’s ability to find work of sufficient flexibility to permit her to provide the time between the child and the father that she herself proposed or whether she could in fact afford her proposed time (at [127]) and that the mother obtaining an ADVO against the father was a tactical decision (at [156]).

2. The mother contended that these particular findings were made in error.

3. We do not understand the argument to be that these findings were not open to her Honour on the evidence before her, nor in our view could this have been argued. The thrust of the argument was that other findings were available on the evidence. This being the case, no error is established.

4. The mother also contended that her Honour erred in stating that there was a “possibility” that a cluster of day time visits with the father followed by six weeks separation would be quite upsetting and unhelpful for the child at [129]. Such a statement does not constitute a finding by her Honour, and no error is established in relation to this aspect of her Honour’s reasons.

Geographical proximity

1. Aligned with the preceding arguments was a contention that the primary judge erred in determining that the maintenance of a meaningful relationship between the father and child required geographical proximity in Australia.

2. That finding by her Honour was informed by a number of subordinate findings, but importantly also by the evidence of the family consultant to which we have earlier referred. 

3. Her Honour’s conclusion as to the need for geographical proximity was a finding not only open to her on the evidence, but driven by the opinion of the family consultant.  There was no suggestion by either party that the father would move to New Zealand were the child to be relocated to New Zealand so we see no error in her Honour’s conclusion that this geographical proximity should be in Australia.

4. There is no substance in any of the challenges comprehended in this issue.

Orders for travel to New Zealand

1. The mother contended that her Honour erred in failing to make an order facilitating the mother’s travel to New Zealand with the child. At [167] her Honour said:

   The orders enable the mother to travel to New Zealand when the child is in her care subject to the constraints of school when that commences.

2. No order specifically directed to overseas travel was made, although orders were made removing the child from the Airport Watch List and providing that the child’s passport be kept in the possession of the mother.

3. On appeal the father conceded that her Honour’s failure to make an order as indicated in [167] was a slip and the Full Court could itself make that order.  While it was faintly argued for the mother that the failure to make the indicated order represented some deeper misunderstanding of the evidence, in circumstances where the only order seeking facilitation of the mother’s travel to New Zealand was that propounded by the mother, it is entirely clear that the order to which the primary judge referred at [167] was that suggested by the mother.  In those circumstances we are of the view that to fail to make that order was a mere slip and we are content to make the order which is contained in paragraph 13 of the mother’s outline of alternative orders by consent.

Commencement of overnight time

1. There was contention between the parties about the age at which the child should commence spending overnight time with the father.  The mother’s position, whether she stayed in Australia or relocated to New Zealand, was that overnight time should not occur until the child commenced primary school, although she did give evidence that the child may be ready for overnight time with the father at four (transcript 13 February 2017, page 82, lines 11 to 13).  The father contended that the overnight time should commence when the child was three.

2. In the result, the primary judge ordered that overnight time commence immediately. At the time the order was made the child was aged two years and 10 months. However, her Honour’s orders for overnight time were stayed pending resolution of the appeal and the parties informed us that overnight time has not yet taken place.  The child has since turned three, and thus the orders that the child spend overnight time before she is three have no effect.  Notwithstanding that the appeal against this order seemed to have little utility, the challenge to her Honour’s order was pressed.  It was argued that her Honour gave no reasons for the commencement of the time at that point nor was it supported by the evidence of the family consultant.

3. When it was suggested to the family consultant that age three may be an appropriate time for overnight time to commence, he said if the child appeared comfortable in the father’s presence, there was no practical reason for that not to occur.  The family consultant noted that it had been some time since he had last seen the child and did not know how the relationship between the father and child had developed. He later said that overnight time was important because it enabled the father to be involved with the child’s nightly routine and would strengthen their relationship.

4. It is clear from reading the family consultant’s evidence as a whole that he felt constrained by not having seen the child for some time.  However, her Honour had the benefit of hearing from both parties about the child’s relationship with the father and how she had been spending the time with him.  Her Honour’s order that the overnight time with the child should commence immediately was well supported not only by the evidence, but by her Honour’s findings about the child’s relationship with the father. 

5. We do not accept that her finding as to the commencement of overnight time was unsupported by her reasons and this challenge will fail.

Property

1. The challenges in relation to the property aspect of the appeal were argued together and devolved to an assertion that her Honour failed to identify and determine the existing legal and equitable interests in property that the parties held. In particular, it was asserted that the primary judge failed to determine the conflicting position between the parties in respect of bank accounts in the father’s name. The mother argued that her Honour’s failure to give reasons on this issue infected her  assessment of the parties’ assets and thus her conclusion that it was not just and equitable to make an order for the division of the parties’ assets could not be supported.

2. Given the rather narrow issue in this challenge, it is unnecessary for us to consider her Honour’s reasons in detail. 

3. At [168] her Honour set out the law she would apply in considering the property settlement proceedings.  While there was some contention raised by counsel for the mother as to the correctness of that intended approach, it is unnecessary to determine that point given our conclusion that follows that her Honour’s determination of this issue was erroneous for other reasons. 

4. Her Honour then set out the parties’ assets and liabilities in a joint balance sheet at [169]. Under the heading “Addbacks” her Honour referred, inter alia, to three bank accounts held by the father. The amounts on the mother’s balance sheet totalled $218,326.77, while the father ascribed the value in each account to be zero. The father contended that of those accounts, two were his and he had spent the money. As to the third, the father said that the money was his father’s held on his behalf. It was not disputed that in all three cases, the accounts were in the father’s name alone.

5. Also in dispute between the parties was the amount of indebtedness secured against a property owned by the mother.  Her Honour concluded that the actual amount owing on the property to the mother’s parents could not be safely concluded based on the mother’s evidence and found that any indebtedness was unlikely to be called in (at [211]).

6. After consideration of this debt, the parties’ individual property holdings and their values, together with the fact that the parties had before entered into a Binding Financial Agreement, the primary judge concluded that no order for adjustment of the parties’ current interests in property should be made. Her Honour thus made an order declaring that neither party had any interest in the property of the other, and dismissed the mother’s application.

7. While it was argued that her Honour failed to take into account various factors to which s 75(2) relates, as we have said the thrust of the challenge was her Honour’s failure to determine the controversy surrounding the father’s bank accounts. As the primary judge’s reasons demonstrate, her Honour set out to identify the parties’ existing legal and equitable interests in property before considering whether, having regard to those interests, it would be just and equitable to make any order for property alteration.  However, in making this determination, she failed to deal with the material issues concerning the money in the bank accounts in the father’s name, and she did not resolve the significant dispute as to whether, in fact, one of those accounts was held on behalf of the father’s father.  Nor did her Honour resolve the dispute as to whether, in relation to one of those accounts, the funds in fact still existed. If her Honour considered that it would not have made any difference, as argued by the father, her Honour was obliged to provide reasons for so concluding.

8. The sums once held in the accounts were significant and the bulk of the funds were accrued during the relationship and notionally were funds to which the mother contributed. To fail to resolve the issue about the accounts before determining whether an order should be made represents an error and the challenge to her Honour’s property order is made out.

Conclusion and costs

1. The mother’s appeal has succeeded in relation to the property aspect. The parties agreed that the only outcome, were the property appeal to succeed, was that the matter be remitted. This is an appropriate course given the error we have identified and such an order will be made.

2. In the event that the appeal was successful the mother sought a costs order against the father, or in the alternative costs certificates for the appeal and any rehearing. In the event that the appeal was successful the father sought a costs certificate, and if the appeal was to fail sought costs against the mother. Both parties resisted the respective costs orders sought against them.

3. In the result, the appeal has both succeeded and failed. The appeal in relation to the parenting orders has been wholly unsuccessful. The property appeal has succeeded on the basis of a clear error of law and should have been conceded by the father. In our view, in these circumstances there is no reason why the general principle enunciated in s 117(1) of the Act should not apply and each party should bear his or her own costs.

4. While the parties each sought that in the event that a rehearing of the matter was ordered, the court order costs certificates for the rehearing, we are disinclined to make that order. Rather that cost is properly borne by the parties.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Carew JJ) delivered on 22 November 2017.

Associate: 

Date:  22 November 2017