Weston & Nathan
[2021] FamCAFC 37
•23 March 2021
FAMILY COURT OF AUSTRALIA
Amended pursuant to r 17.02A(b) of the Family Law Rules 2004 (Cth)
Weston & Nathan [2021] FamCAFC 37
Appeal from: Nathan & Weston [2020] FamCA 541 Appeal number(s): SOA 65 of 2020
SOA 66 of 2020File number(s): ADC 3285 of 2018 Judgment of: STRICKLAND, AINSLIE-WALLACE & ALDRIDGE JJ Date of judgment: 23 March 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – International relocation – Orders made for the mother to relocate the children to the United States of America and for the father to spend time with the children in the USA and no time with them in Australia – Both parties proposed that the children spend time with the father in both countries – Procedural fairness – Father denied opportunity to address orders for no time in Australia – Adequacy of reasons – No merit in other grounds of appeal – Appeal allowed in part.
FAMILY LAW – APPEAL – PROPERTY – Assessment of parties’ contributions – Add-backs – Superannuation split – Assessment of s 90SF(3) factors – No merit in any ground of appeal – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Parenting appeal allowed in part – Father to pay part of the mother’s costs of the appeal in a fixed sum.
Legislation: Family Law Act 1975 (Cth) ss 60CC(3)(d), 60CC(3)(e) and 90SF(3)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Rules 2004 (Cth) r 19.18(1)(a)
Cases cited: Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Rolfe and Rolfe (1979) FLC 90-629; [1979] FamCA 106
Division: Appeal Division Number of paragraphs: 124 Date of hearing: 15 February 2021 Place: Adelaide (via video link) Counsel for the Appellant: Mr Robertson SC with Ms Miller Counsel for the Respondent: Mr Wilson Solicitor for the Appellant: Jordan & Fowler Family Lawyers Solicitor for the Respondent: Kennedy Partners ORDERS
SOA 65 of 2020
SOA 66 of 2020
ADC 3285 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR WESTON
Appellant
AND: MS NATHAN
Respondent
ORDER MADE BY:
STRICKLAND, AINSLIE-WALLACE & ALDRIDGE JJ
DATE OF ORDER:
23 MARCH 2021
THE COURT ORDERS THAT:
Appeal no. SOA 66 of 2020
1.The Application in an Appeal filed by the respondent mother on 29 January 2021 be dismissed.
2.The appeal be dismissed.
Appeal no. SOA 65 of 2020
3.The Application in an Appeal filed by the appellant father on 1 February 2021 be dismissed.
4.The appeal be allowed in part.
5.Paragraph 8 of the order made on 9 July 2020 be varied to provide as follows:
8.Upon the children commencing to reside in the United States of America the children spend time with the father as follows:
(a) During 2020 and in each alternate year thereafter:
(i)for three (3) weeks in Australia or the United States of America (including travelling time) between 1 July and 1 August (noting that the holiday time is 2 June until 12 August);
(ii)for the Christmas break in either Australia or the United States of America between 18 December and 3 January.
(b) During 2021 and in each alternate year thereafter:
(i)for up to one week during the Spring break in the United States of America between 13 March and 21 March;
(ii)for three (3) weeks in Australia or the United States of America (including travelling time) between 1 July and 1 August (noting that the holiday time is 2 June until 12 August);
(c)At such other times as may be agreed between the parties in writing.
6.Paragraphs 9, 10 and 11 of the said order be set aside, and in lieu thereof the following orders be made:
9.For the purposes of this order, if handovers are in Australia the mother do deliver and collect the children to and from the father’s property in Suburb M, or if handovers are in the United States of America the father do collect and deliver the children from and to the mother’s property unless otherwise agreed in writing.
10.To facilitate the time provided for in paragraph 8 hereof, the father shall pay for the children and the mother to travel between the United States of America and Adelaide (if applicable) and the father shall pay for his own costs to travel to the United States of America (if applicable) provided the father provides to the mother no less than four (4) months prior notice in writing of his intention to travel to the United States of America to spend time with the children, or of the father’s intention for the children to travel with the mother to Australia for him to spend time with the children.
11.Upon the father providing notice to the mother in accordance with paragraph 10 hereof, the father shall provide to the mother, by email, confirmation of the father’s paid airfares of travel to the United States of America, or confirmation of the children’s and the mother’s paid return airfares from the United States of America to Adelaide with such confirmation being provided not less than two (2) months prior to the travel commencing.
7. Otherwise the appeal be dismissed.
Appeal nos. SOA 65 and 66 of 2020
8.The appellant father pay the costs of the respondent mother fixed in the sum of $10,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Weston & Nathan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, AINSLIE-WALLACE & ALDRIDGE JJ:
INTRODUCTION
Mr Weston (“the father”) appeals against the final parenting (Appeal No. SOA 65 of 2020) and property settlement order (SOA 66 of 2020) made by a judge of the Family Court of Australia on 9 July 2020. The appeals are opposed by Ms Nathan (“the mother”).
The parenting orders concern the children, X born in 2010 and Y born in 2012 (“the children”). The order primarily provides for the children to live with the mother, that she have sole parental responsibility for them, that she be permitted to relocate with the children to the United States of America (“the USA”), and the children spend time with the father in the USA.
In the parenting appeal, the father primarily seeks that the order of the primary judge be discharged, the mother’s application to relocate the children to the USA be dismissed, and the children live with the parties on an equal time week about arrangement.
The mother seeks that this appeal be dismissed with costs, but she identifies at paragraph 31 of her Summary of Argument filed on 9 February 2021, that she is prepared to consent to an order varying the final parenting orders so that the children’s time with the father take place both in Australia and in the USA, as was her position before the primary judge.
The property settlement order provides for an equal division between the parties of the net asset pool of $4,767,658 (inclusive of superannuation).
The father primarily seeks an order in the property settlement appeal providing for a 70 per centum/30 per centum division of the non-superannuation asset pool in his favour, and for the parties’ superannuation interests to be equalised.
The mother seeks that the appeal against the property settlement order be dismissed with costs.
On 1 February 2021, in the parenting appeal, the father filed an Application in an Appeal seeking leave to adduce further evidence comprising affidavits of himself and his solicitor, also filed on 1 February 2021.
On 29 January 2021, in the property settlement appeal the mother filed an Application in an Appeal seeking leave to adduce further evidence comprising an affidavit of herself, and the affidavit of a financial planner, also filed on 29 January 2021.
BACKGROUND
The father was born in Country S in 1974, and was aged 45 years at the time of the trial. The mother was born in City R in 1970, and was aged 50 years at the time of the trial.
The parties met in City R in either 2006 or 2007, and commenced cohabitation in either mid-2007 or late 2008. The parties lived in the father’s rental apartment in City R.
At the time the father was employed in the finance sector, working first for the T Company from late 2003 until 2009, and secondly for V Company between 2009 and 2015. He was earning approximately USD1.3 million per annum while employed by the T Company.
The father had assets to the approximate net value of USD2 million at the commencement of the relationship. The mother on the other hand had net assets valued at around USD25,000.
The mother worked part-time during her pregnancy with X, and was made redundant during her pregnancy with Y. She did not return to employment and was engaged in full-time home duties and caring for the children.
X was born in 2010 and was aged 10 years at the time of trial. Y was born in 2012 and was aged 7 years at the time of trial.
Around January 2015, the father ceased his employment with V Company and has not returned to paid employment since then. At this time the father also raised with the mother his desire to move to Australia. She initially resisted the idea.
In February 2017, the mother first sought legal advice with respect to a possible separation.
Notwithstanding the mother’s resistance the father purchased a AUD2.5 million property in Suburb M, South Australia, in May 2017. The mother was not consulted about the purchase, and was still undecided about relocating to Australia.
In mid-2017, the parties and the children arrived in Adelaide. The mother came to Australia on a visitor’s visa. The parties immediately moved into the Suburb M property, and thereafter enrolled the children in a local primary school.
In February 2018, the mother again sought legal advice about separation and emergency housing.
Separation occurred in April 2018. The mother and the children left the Suburb M property to temporarily live with the father’s step-aunt, Ms C.
THE PARENTING APPEAL
The parties’ proposals at trial
At trial the mother applied for sole parental responsibility for the children, for the children to live with her, and that she be permitted to relocate their residence back to the USA. She proposed the father spend time with the children twice a year in either Australia or the USA. The father, in his Response sought orders for equal shared parental responsibility, for the mother to be restrained from relocating the children from Australia except for holiday purposes as agreed or ordered by the Court, and for the children to live with the parties for equal time on a week about basis.
The primary judge’s decision
Her Honour made the following key findings:
(a)The children have a good and meaningful relationship with each of their parents, and it would be of benefit to the children for those relationships to continue (at [72]).
(b)Her Honour accepted the mother’s allegations of extensive family violence perpetrated by the father at [330]–[332] as follows:
330.I find that the [mother] was subjected to family violence. I find that on numerous occasions the [father] made derogatory comments to the [mother] and behaved towards her in a manner, including by way of physical aggression on occasions, such that it caused her to be fearful of him. I further find that on numerous occasions his aggressive behaviour towards her occurred in the presence or in the hearing of the children. On those occasions not only the [mother] but also the children were fearful of the [father].
331.I further find that during the entirety of the relationship after the [mother] ceased working outside of the home following upon Y’s birth that the [father], during times that he was employed up to January 2015 on an exceedingly high income and after that time when he was possessed of significant assets, denied the [mother] the financial autonomy that would have been reasonable for her to have had in the financial circumstances of the relationship.
332.I find that on occasions he unreasonably withheld financial support needed to meet the [mother’s] reasonable living expenses and on occasions that of the children, when the [mother] and the children were entirely dependent on the [father] for financial support. I further find that the [father] placed significant pressure on the [mother] with respect to moving to Australia with the children. By guaranteeing to her in writing that if their relationship foundered or she was unhappy in Australia after a period of 12 months they would deal with the matter then and she would at no time be “trapped” in Australia, he intended to coerce her into making such a decision.
(c)The children’s views on relocation could not be afforded significant weight (at [93]), and were not a factor that assisted her Honour in determining their best interests.
(d)The mother has been the children’s primary carer since birth, and they depended on her for their day-to-day needs (at [112]). Her Honour was satisfied that such circumstances accounted for the children’s greater reliance on the mother for their emotional and physical needs. However, both children were confident that the father could take care of their day-to-day needs during the time spent with him (at [113]–[114]).
(e)Her Honour considered that the likely effect of any change in the children’s circumstances was a very significant factor (at [132]) but ultimately her Honour was:
181.… satisfied that if the children were to reside with the [mother] in the United States they would manage such change, they would be supported by the [mother] and her extended family at both an emotional and physical level and that the [mother] would be more than capable of making proper arrangements for their educational and cultural development.
And her Honour said this:
185. … I find that even though the children moving back to the United States would create a significant change in their circumstance with respect to the physical availability of their father and perhaps with respect to the development of their emotional relationship with him, such a change in circumstance would not of itself be contrary to their best interests.
(f)In respect of the practical difficulties posed by a relocation to the USA, her Honour said as follows:
196.… I find that although the distance between the [father] and the children would be significant if the [mother] was to relocate to the United States with them, the cost of travel would not prohibit [the children’s] right to maintain personal relations and direct contact with both of their parents albeit, that it is likely that would be achieved by way of the children spending greater block periods of time with their father rather than spending time with him on a regular basis for lesser periods as is currently the case.
197.I am also satisfied that in the event that the [father] so desired, his many years of experience working at a high level in the finance industry in the United States would be likely to stand him in good stead if he wished to return to reside there himself in order to maintain more regular face-to-face contact with the children.
(g)Both parents were interested in the children’s educational and intellectual needs (at [200]). However, the children had a closer emotional connection with the mother due to their exposure to family violence incidents perpetrated by the father against the mother (at [205]) and at [206] her Honour said this:
206.I find that although the children love their father there is a level of insecurity in their relationship with him, particularly with respect to the relationship between X and his father. At the time of interview with Ms K that manifested itself in a wish on the part of both children to spend more time with their mother with whom they feel more confident and emotionally secure. That is not to say that they do not enjoy their time with their father.
(h)Her Honour was satisfied that the mother was best able to provide for the children’s emotional needs (at [207]).
(i)It would benefit the children to experience both their mother’s and father’s lifestyles in the USA and Australia respectively (at [211]–[212]).
(j)Due to the findings of family violence, her Honour found the father had not exhibited a responsible attitude towards parenthood (at [215]). However, he had taken steps post-separation to ameliorate his behaviour and address his alcohol dependence (at [216]).
(k)The presumption of equal shared parental responsibility did not apply because the father had engaged in family violence during the relationship (at [338]), and it was in the children’s best interests that the mother have sole parental responsibility (at [342]).
Her Honour made the order for sole parental responsibility in favour of the mother, and permitted her to relocate the children to the USA (at [343]). Her Honour declined to order any face-to-face time with the father in Australia, instead ordering that such time could occur in the USA (at [351]–[354]).
THE GROUNDS OF APPEAL
1. The Learned [primary judge] erred at law and in the exercise of her discretion in
1.1. permitting the Mother to relocate with the children to the [USA];
1.2. ordering that the Mother have sole parental responsibility;
1.3. ordering that the Father's time take place only in [the USA]; in that her Honour
(a) failed to consider or adequately consider the competing proposals of the parties (particularly those of the Father) in their entirety;
(b) failed to consider or adequately consider the provisions of s.60CC(3)(a) of The Family Law Act 1975 (Cth);
(c) failed to consider or adequately consider the provisions of s.60CC(3)(d) of The Family Law Act 1975 (Cth);
(d) failed to give any weight or sufficient weight to the evidence of the psychologist [Ms K] given before her;
(e) decided the Application on findings unfavourable to the Father which were not open on the evidence;
(f) failed to accord the father procedural fairness in making orders that were sought by neither party and was implicitly contrary to the Family Assessment of [Ms K].
This is a confusing ground of appeal, and it is not assisted by the father’s written Summary of Argument filed on 19 January 2021.
Prima facie, the particulars (a)–(f) appear to relate to Ground 1.3 and not to Grounds 1.1 and 1.2. Indeed, there can be no doubt that particular (f) only relates to Ground 1.3. However, in the father’s Summary of Argument the submissions do not necessarily support that distinction in relation to particulars (a)–(e).
The mother in her written Summary of Argument filed on 9 February 2021 raises the same issue (at paragraphs 1 and 2).
During the course of the hearing this was clarified to a certain extent by the mother’s senior counsel indicating that Grounds 1.1 and 1.2 are informed by the error in Ground 1.3, and there was a “link” between particulars (a)–(e) and Grounds 1.1 and 1.2. In other words, if the assertions in those particulars are established, then they would demonstrate the merit of Grounds 1.1 and 1.2.
However, we fail to see the “link”, and for example, there is nothing in the particulars or the submissions in support of them, which provides a basis for the challenge raised in Ground 1.2. Indeed, we could find nothing in the father’s written Summary of Argument which addressed that ground. Significantly, there is no challenge to any of her Honour’s findings in support of the order her Honour made (at [330], [337], [339], [340] and [341]), and no error is apparent in her Honour’s reasons for judgment in this regard.
Thus, we can readily dispose of that ground and find that it has no merit.
We can also readily address Ground 1.3. There is no doubt that the mother’s proposal to her Honour entailed the children spending time with the father, not only in the USA, but also in Australia. And further, the mother indicated at paragraph 31 of her Summary of Argument that her Honour’s order as to time to be spent, can be varied to provide for that time to be spent both in the USA and in Australia.
When this was raised during the hearing of the appeal, the father’s
mother’ssenior counsel indicated that if this was the only error found in this appeal, then there would be “no reason” why this Court would not make the orders proposed by the mother.Plainly, her Honour erred in making the order that she did. The mother sought that time be spent both in the USA and in Australia, and although the father did not propose any orders if the children were in the USA, in answer to a question from her Honour, he indicated that if that was the case, then he would like the opportunity to see the children in Australia as well as in the USA (at [41]–[42]; Transcript 11 September 2019, p.280 line 44 to p.281 line 14). Thus, not only did her Honour fail to afford the father procedural fairness in making the order that she did, i.e. in not giving the father the opportunity to make submissions in relation to it, her Honour’s reasons at [350] are not sound. There, her Honour said this:
350.Ms K was clear in her view that X was less emotionally robust than Y. I accept her evidence in that regard. I am not satisfied on the evidence that either of the children would cope well with spending time in Australia with their father, even during school holidays, with their primary emotional support namely their mother being so far from them until such time as they had matured.
Now, there can be no issue about the first two sentences, but the problem arises in the final sentence. There was no suggestion in the proposals or in the evidence that the mother would not accompany the children when they came to Australia to spend time with the father. Thus, even though it was correct for her Honour to describe the mother as providing the children’s primary emotional support, her Honour was incorrect in proceeding on the basis that that support would not be present when the children were in Australia.
Looking then at Ground 1.1, and assuming that the particulars of that ground are comprised in (a)–(e).
(a) Failure to consider the proposals of the parties
A plain reading of her Honour’s reasons reveals that it is only in one respect that her Honour can be said to have failed to properly consider any of the proposals, and that is in relation to the time to be spent by the children with the father in the event that relocation was permitted. However, that is the subject of Ground 1.3, and which we have found has merit. There is no merit in this particular though insofar as it suggests that her Honour failed to consider the issue of whether the mother is able to relocate the children or not.
It is also telling that the written submissions by the father in relation to this particular are only with respect to Ground 1.3, and say nothing about Ground 1.1.
(b) Failure to consider the views of the children
This is an assertion that again seems to relate to Ground 1.3 rather than Ground 1.1, and that is borne out by how the father’s written submissions with respect to it are structured.
In any event, as referred to above, her Honour found that the views of the children should not be afforded any significant weight on the question of the proposed relocation, and they were not a factor that assisted her Honour in determining the best interests of the children.
The bald assertion is made that her Honour erred in fact in making these findings, but it is not explained on what basis that assertion is made, save and except in relation to the spend time issue. On the other hand, we consider that her Honour provided adequate reasons for these findings insofar as they relate to relocation per se. It bears setting out what her Honour said in this regard:
81.The Court gains most objective assistance with respect to this factor from the reports of Ms K dated 7 March 2019 and 6 September 2019.
82.I have already referred to the children’s positive report to Ms K as to enjoying their relationship with each of their parents, as well as her opinion on page 19 of her report dated 7 March 2019 as to the children’s more significant emotional connection with their mother than with their father.
83.Ms K had an opportunity to interview both X and Y for the purposes of her report. Her summary of her discussions with X are contained on pages 5 to 8 inclusive of her first report and with respect to Y on pages 8 to 11 of that report.
84.On page 5 of the report Ms K noted that X told her if he had a magic wand “he would change where they all live, returning to [the USA].” She described him as knowing that each of his parents wanted different things in terms of where they lived and that he wanted to change “what’s going on now” in which his parents want different things.
85.She reported that in her second interview with X when his father had brought him to the appointment he again spoke of “maybe” moving to [the USA] but also told her he would like to have a motorbike and live in a house where there was just he, his sister and his mother.
86.In his first interview with Ms K as reported on page 6 of her report he told her that he felt that the time he spent with his father twice a week was “enough” and she described him as “ambivalent” in relation to the question of a sleepover with his father.
87.She reported that in her second interview with him when brought to the appointment by the [father] he said he would like “one hour more” with him each week but conversely reported that the seven hours that he was spending with him felt “long” to him.
88.Y was described on page 8 of the report as being aware that the [mother] wanted the children to live in [the USA] with her and the [father] wanted them to live in Australia but that she was unsure as to where she would like to be.
89.Ms K said Y reported liking to see her father twice a week and to expressing that it would be “good” to have a sleepover at his house. She reported having enjoyed the visit to [the USA] with her mother and brother.
90.In Ms K’s second letter of report dated 6 September 2019 she described X as being consistent in his wishes for the current arrangement of care between his parents to continue and to vacillating between whether or not he was in favour of spending increasing overnight time with his father.
91.She described X as not wanting to express a view about living in Australia or [the USA], with Y being likewise uncertain about the idea of living in [the USA]. She was described as expressing a wish for the current time spending arrangements with her father to continue and to being hesitant as to spending more overnight time with her father.
92.I find that this is a complex matter where X and Y are perfectly well aware that their mother wishes to move back to [the USA] to live with them and where their father wants them to remain living in Australia.
93.I find that taking into account the complexities of the matter and the young ages of the children, as well as their ambivalent views about whether they would prefer to live in [the USA] or in Australia, that the question of relocation is not one where the children’s views should be afforded any significant weight.
94.The children were however far more consistent over the three occasions they each spoke with Ms K as to their reluctance to spend significantly greater time with the [father] than they currently spend as well, in particular in their first and second interviews, as to their greater emotional dependence on their mother.
95.In cross-examination Ms K expressed an opinion that she was not surprised that both children were cautious about expressing any opinion with respect to the question of relocation in circumstances where it was her view that they did not want to take sides.
96.When asked whether she was confident that if the children moved back to the United States with their mother they would have the resilience to cope with such a change, she expressed the view that whether the children relocated or not, they had the capacity to thrive.
97.She said in cross-examination that she did not think Y would fully understand what relocating to the United States would mean in the circumstances of such move being without her father. She agreed that if Y had been aware of that reality it may have influenced her views as to whether she wanted to live in the United States.
98.Indeed, Ms K went so far as to say that she did not believe either of the children fully understood that if they relocated to [the USA] with their mother their father would not be involved in their day-to-day lives.
99.This evidence adds to my view that this is a matter where understandably the children have been reluctant to express a view as to where they would prefer to live and in those circumstances, this is not a factor that I find will assist the Court in determining the best interests of the children.
There is no appealable error here.
(c) Failure to consider the likely effect of change in the children’s circumstances
This ground has doubtful merit because it is not readily apparent that the father directly raised any argument at trial as to the effect on the children of being separated from their father (see father’s Case Outline dated 9 September 2019, p.5–6 and his counsel’s final address at Transcript 13 September 2019, p.348 lines 25–30 and p.351 line 35 to p.355 line 31).
However, it seems that the issue raised now is that although at the time of the trial there was no evidence to suggest that the children and the parties could not readily travel between Australia and the USA, there was by the time judgment was delivered in July 2020. It is asserted that her Honour should have reopened the hearing to receive evidence and/or submissions as to the effects of the worldwide COVID-19 pandemic. It is submitted that by not doing that, the father was denied procedural fairness. However, not only is that submission nowhere to be found in the grounds of appeal, it is simply unable to be maintained.
It was not for her Honour to reopen the hearing, but rather, it was for the parties, and particularly the father, if so advised. He did not take up that option, and thus he cannot now be heard to complain.
There is of course the Application in an Appeal filed by the father on 1 February 2021, seeking leave to adduce further “evidence” as to the “effect of the COVID-19 virus on both Australia and [the USA]” (the father’s solicitor’s supporting affidavit filed on 1 February 2021, paragraph 4), but not only is much of that “evidence” inadmissible, or at the very least unreliable, comprising as it does the result of Google searches by a solicitor and media reports, it cannot demonstrate appealable error by her Honour (CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at [109] and [111]). The only possible use that it could be put to is if the appeal was to be allowed and the discretion re-exercised. However, as will be seen, that is not happening in relation to the issue of relocation. Thus, that application will be dismissed.
We mention here that apart from the affidavit of the solicitor in support of the application, there was an affidavit of the father which did nothing other than provide evidence as to what has happened since the order under appeal was made. That affidavit could only be used if the discretion was re-exercised, and to repeat, that will not be the case.
We note that that application also sought that there be an “updated family assessment report”. However, what appears to be overlooked in that regard is that this is an appeal, and this is an Appeal Court, and there can be no basis for such an order to be made by this Court in this appeal. It is a mystery why the father’s
mother’slegal representatives thought that it was appropriate to seek such an order.(d) Failure to give weight to the evidence of the psychologist
This is a weight challenge which also cannot be maintained in relation to Ground 1.1.
The primary thrust of the submissions of the father are that the primary judge failed to have regard to the psychologist’s recommendations that the children spend time with the father in Australia as well as in the USA. However, we have dealt with that issue already, and no more needs to be said.
The father does make some comments as to the oral evidence from the psychologist in relation to the issue of relocation generally, but they do not establish the ground of appeal.
The psychologist provided two reports, the first in March 2019 which was a comprehensive report, and then a limited update report in September 2019.
In the first report her recommendation was in support of the relocation, but in her later report, she was unable to comment further on that issue, and the father has latched onto that aspect of her evidence. This cannot be the basis of a successful challenge though, because the order leading to the second report specified that the report was not to include interviews with each party. Thus at trial when asked if she maintained her recommendation, the psychologist said as follows:
I don’t think I can express anything different, given that I haven’t interviewed both parties…
(Transcript 11 September 2019, p.293 lines 15–16).
That comment does not of course detract from the force of her earlier recommendation.
In any event, it is readily apparent from her Honour’s reasons for judgment that she laid great store in the evidence of the psychologist, and it is impossible to maintain an argument that she failed to give weight or appropriate weight to that evidence.
(e) Made findings unfavourable to the father not open on the evidence
Here, all the father does in his written Summary of Argument is repeat his “submissions” as to Grounds 2 to 6, such as those submissions are. Thus we now turn to those grounds.
The first comment to make about these grounds is that all the father does in the Summary of Argument is set out a table at paragraph 17.1 identifying the paragraphs containing the challenged findings, and then identifying the evidence said to be “against or insufficient to support” the findings.
There is no attempt in the father’s Summary of Argument to explain or indicate how it is that the ground has merit; it is left entirely to this Court to try and work out what the particulars of the complaint are, and specifically how the evidence referred to is said to not support or to be against the findings. That is not an acceptable way of mounting an argument on appeal. Thus, we do not propose to spend much time on these grounds, and we will certainly not be trawling through the references to the evidence attempting to understand what the issue is, where it is not obvious.
We note that following the table in the father’s Summary of Argument setting out the paragraphs and the references to the evidence, this appears:
17.2.The [father] submits with respect that the [primary] judge’s findings reveal that she made findings against the [father] based on his past conduct and not based on the best interests of the children. In this way, he submits that she erred in fact and the exercise of her discretion miscarried. Accordingly, he submits that this Court can re-exercise the discretion afresh and in substitution for the exercise by the trial judge.
This “submission” does not assist either, and we can say in response that a plain reading of her Honour’s reasons for judgment reveal that she amply had regard to the best interests of the children, and in doing that her Honour had appropriate regard to the past conduct of the father.
2. The Learned [primary judge’s] finding at [202] as to the capacity of the Father to provide for the children’s emotional need is not supported by the evidence and is against the weight of the evidence.
Ground 2 concerns the finding at [202] as follows:
202.The matter however that concerns me most is the capacity of the [father] to provide for the children’s emotional needs. I have already referred at some length to this issue when considering the nature of the children’s relationship with each of their parents.
The evidence that is said to be against this finding or is insufficient to support it is as follows:
[MS K]: … [U]ltimately I think these children have the capacity to do well in either direction that the court takes. Part of my thinking that is because they are really lovely kids. I think [the mother] and [the father] have done a really good job in parenting them and I think, no matter what decision the court does make, they present as parents who will both do their utmost, then, to make sure that the children do, do okay.
(Transcript 12 September 2019, p.307 lines 33–37).
…
[FATHER’S COUNSEL]:Well, what I’m putting to you is that that will come, will it not, if the children remain here and have regular contact with both parents?
[MS K]: It could, and he was certainly better in his interactions within the second time I saw him than the first.
(Transcript 12 September 2019, p.320 lines 1–3).
The mother contends in response that that evidence does not go to the issue of the father’s capacity to provide for the children’s emotional needs. Additionally, while Ms K gave evidence that the father’s emotional attunement to the children would develop if they remained in Australia, the evidence at the time of trial was that the father “did not present as having the same level of emotional attunement to the children as [the mother]” (Family Assessment Report dated 7 March 2019, p.20).
The mother also submits in her Summary of Argument at paragraph 35 that the finding at [202] was premised on a number of other findings not challenged by the father, including:
(a)the children have a stronger relationship with the mother, rely on her more for their emotional support (at [113]–[114]), and would turn to her first for that support (at [101]–[102] and [106]); and
(b)the father had committed family violence in the presence of the children which on occasion had caused the mother and the children to be fearful of him (at [330]).
We accept the submissions of the mother and find no merit in this ground of appeal.
3. The Learned [primary judge’s] finding at [203] that the children depend almost entirely on the Mother for their emotional support is not supported by the evidence and is against the weight of the evidence.
4. The Learned [primary judge’s] finding at [206] that there was a level of insecurity in the children’s relationship with their Father is not supported by the evidence and is against the weight of the evidence.
These grounds concern the primary judge’s findings at [203] and [206] respectively:
203.I find that both of the children, but in particular X, depend almost solely on their mother for their emotional support. Both children clearly expressed to Ms K their memories of their parents fighting and their reactions to that by trying to avoid hearing or seeing the conflict between their parents.
…
206.I find that although the children love their father there is a level of insecurity in their relationship with him, particularly with respect to the relationship between X and his father. At the time of interview with Ms K that manifested itself in a wish on the part of both children to spend more time with their mother with whom they feel more confident and emotionally secure. That is not to say that they do not enjoy their time with their father.
These are findings made by her Honour when considering the capacity of each parent to provide for the children’s needs (at [198]–[209]). Excepting the findings at [202]–[203] and [206] the balance of the findings are not challenged in this appeal. Her Honour concludes that:
207.Taking all of these matters into account I find that the [mother] is best able to provide for the emotional needs of both of the children and that she takes that responsibility very seriously.
The evidence that the father identifies in the table in his Summary of Argument as being against and insufficient to support the findings in [203] and [206] is as follows:
(a)The oral evidence of Ms K at Transcript 12 September 2019, p.307 lines 33–38 and p.320 line 1–3;
(b)The mother’s oral evidence at Transcript 9 September 2019, p.50 lines 27–41 and p.84 lines 3–16;
(c)Ms C’s oral evidence at Transcript 10 September 2019, p.107 lines 3–4 and p.108 lines 1–8;
(d)The Family Assessment Report dated 7 March 2019;
(e)Ms K’s letter of 6 September 2019;
(f)Ms K’s oral evidence at Transcript 11 September 2019, p.285 lines 34–43, p.286 lines 45–47, p.287 lines 1–33, p.288 lines 1–23, p.289 lines 11–23, p.292 lines 29–40 and p.295 lines 36–48; and
(g)Ms K’s oral evidence at Transcript 12 September 2019, p.314 lines 5–33, p.315 lines 3–8, p.322 lines 13–15, and p.329 lines 42–44.
In the absence of any attempt to explain how that evidence demonstrates the complaint, this is a prime example of where we do not propose to traverse this evidence in an attempt to work that out. In any event, we have read the evidence, and we are unable to find that that evidence is either against the findings or is insufficient to support the findings.
It is also apparent that the exercise undertaken by the father is to cherry-pick the evidence in an attempt to demonstrate error, when it is necessary, as in this case, to read the evidence as a whole.
We find no merit in these grounds of appeal.
5. The Learned [primary judge’s] finding at [217] that the Father made no complaint about supervision of his time is not supported by the evidence and is against the weight of the evidence.
The finding at [217] is to be found in her Honour’s consideration of the parties’ attitudes towards the responsibilities of parenthood at [213]–[217]. This included her Honour’s finding that while the parties lived together, the father had had an overall derogatory attitude towards the mother, which resulted in the children being exposed to numerous acts of abuse and family violence (at [214]). Her Honour considered this behaviour was not reflective of “a responsible attitude towards parenthood” (at [215]). At [216] her Honour notes post-separation attempts by the father to ameliorate his behaviour and address his alcohol dependency. None of these findings are challenged in this appeal, and it is in this setting that the finding at [217] appears, namely:
217.The mother is the applicant in these proceedings. Until she filed her application the [father] made no complaint about her insistence on all time spending between he and the children being supervised by her. It was only in filing his Response that he sought to have unsupervised time with the children.
The evidence relied on by the father in support of this ground is as follows:
[MOTHER’S COUNSEL]: In your environment – your home. And then you go on to say – paragraph 35:
8 May, I received the following text from [the mother]: “Until our separation details are final, you should plan to see the kids supervised in a neutral location”.
[MOTHER’S COUNSEL]: That’s right?
[FATHER]: Mmm.
[MOTHER’S COUNSEL]: And did you have a problem with that?
[FATHER]: I agreed to it. I didn’t have a – I really didn’t have a choice.
[MOTHER’S COUNSEL]: Well, did you have a problem with it?
[FATHER]: I – well, yes, I didn’t think it was necessary to – for me to be supervised.
(Transcript 10 September 2019, p.136 lines 10–22).
…
[MOTHER’S COUNSEL]: In other words, you did not resist supervision at that time of your time with the children, did you?
[FATHER]: I made it an option, yes.
[MOTHER’S COUNSEL]: No, you didn’t resist it, did you? You didn’t say – this letter doesn’t say, “under no circumstances will I spend time with my children supervised. It’s completely and utterly unnecessary. It’s a nonsense and I simply refuse that proposal.” You accepted the proposal?
[FATHER]: No – yes. Because if I – if I hadn’t – if I hadn’t proposed it as such, I may not see the children.
(Transcript 10 September 2019, p.166 lines 11–18).
However, again this evidence does not establish the ground of appeal. As her Honour records, there was no complaint (our emphasis) about supervision being required. Plainly, the father did not see the need for it, but that is not the point; he accepted it and did not voice any objection. Indeed, the accuracy of her Honour’s finding is borne out by the father’s evidence as follows:
[MOTHER’S COUNSEL]: I apologise, your Honour. I go back in time, [the father]. On 24 April, and, I apologise, you initiated correspondence with my client’s solicitor, and this is the initiation of that correspondence; that’s correct? So what I’m suggesting to you is this is the first letter, post-separation, that goes between the solicitors, and it’s a letter from your solicitor to my client’s solicitor?
[FATHER]: Yes, that would – that’s correct.
[MOTHER’S COUNSEL]: And in that letter, on your instructions, [the father’s solicitor] says this in the second paragraph:
My client acknowledges that his behaviour when alcohol-driven has been of a poor standard on occasions.
[MOTHER’S COUNSEL]: That’s correct?
[FATHER]: Yes.
[MOTHER’S COUNSEL]: And it goes on to say:
My client acknowledges that he needs professional intervention and will undertake same with your client’s involvement.
[MOTHER’S COUNSEL]: Is that correct?
[FATHER]: Yes.
[MOTHER’S COUNSEL]: And it goes on to say:
My client would like to see the children, perhaps this coming weekend. He accepts that your client might want this to occur under supervision. He has no supervision options, but would be content to see the children in the presence of your client for a few hours at the [suburb M] property or at a public place.
[MOTHER’S COUNSEL]: That’s correct?
[FATHER]: Yes.
[MOTHER’S COUNSEL]: So in this correspondence, you raise no objection whatsoever to my client’s suggestion there should be supervision? In fact, you say - - -?
[FATHER]: Yes.
[MOTHER’S COUNSEL]: - - - your client might want it to be supervised, and you say I haven’t got a supervisor, but you don’t say that is unacceptable – I will – I do not require supervision and I want the children unsupervised; that’s correct?
[FATHER]: That is correct
[MOTHER’S COUNSEL]: So implicit in this correspondence is your acceptance of my client’s request for supervision; that’s right?
[FATHER]: Yes.
(Transcript 10 September 2019, p.141 lines 6–44).
Again, there is no merit in this ground of appeal.
6. The Learned [primary judge’s] finding at [347] as to the depth of the children's relationship with the Father is not supported by the evidence and is against the weight of the evidence.
Ground 6 concerns her Honour’s finding at [347] as follows:
347.I find that the quality of the relationship the children have with their father, albeit different to that they have with their mother, is secure enough to enable them to maintain that relationship at a distance by electronic means in the main and otherwise by such face-to-face time with their father as he sees fit to avail himself of pursuant to the terms of these orders. I intend that that time occur in the United States during school holiday periods in circumstances where I am not satisfied, taking into account in particular the observations of the expert Ms K, that the children have the depth of emotional relationship with their father as with their mother.
The father cites the evidence referred to under Grounds 3 and 4 as being against or insufficient to support her Honour’s finding at [347], and the issue in those grounds is almost precisely the same as that raised in this ground, namely the relationships between the children and each of their parents. Just as we have found that the evidence identified does not establish Grounds 3 and 4, it does not establish this ground.
As submitted by the mother, the evidence cited by the father is entirely consistent with her Honour’s finding that both children have a good relationship with, and love each parent, but they have a stronger relationship with the mother, and prefer to spend more time with her.
There is no merit in this ground of appeal.
7. The Learned [primary judge’s] finding at [350] that the children would not cope well spending time in Australia is not supported by the evidence and is against the weight of the evidence.
8. The Learned [primary judge] erred in failing to provide adequate reasons for her findings at [350].
These grounds in effect raise again the complaint that is encapsulated in Ground 1.3. Having found merit in that ground, there is no need to say anything more in relation to the topic of the children spending time with the father in Australia.
9. The Learned [primary judge] failed to have regard to relevant considerations in the exercise of her discretion, namely:
9.1. the advent of the COVID-19 pandemic and the notorious and publicly available information of its impact on, inter alia, overseas travel, the requirement to quarantine and risks to travellers when considering the additional considerations set out in s60CC(3) of the Act and, in particular:
9.1.1. s60CC(3)(d);
9.1.2. s60CC(3)(e).
The father contends that the relocation proposal before her Honour contemplated the father being able to move relatively unrestricted, and often between the USA and Australia. Indeed, the oral evidence of the mother (Transcript 9 September 2019, p.19 lines 41–43), page 21 of the Family Assessment Report and counsel for the mother’s submissions (Transcript 13 September 2019, p.370 lines 20–29) were consistent with that assumption.
That assumption was accurate at the time of the trial, from 9 to 13 September 2019. However, circumstances had changed by the time judgment was delivered on 9 July 2020, due to the supervening COVID-19 pandemic, and associated restrictions on international travel.
The father submits that he was denied natural justice by her Honour’s failure to reopen the case to hear evidence and/or submissions regarding the COVID-19 pandemic, and to reconsider s 60CC(3)(d) and s 60CC(3)(e) of the Family Law Act 1975 (Cth) (“the Act”). In that context, he seeks to adduce further evidence in respect of the impact of COVID-19, the travel regulations, and the travel warnings.
However, this is the same argument that the father pursued in particular (c) in Ground 1, and having dealt with it there, we do not propose to say anything more in response to this ground. Consistent with what we said above in [42]–[45] this ground of appeal has no merit, and the Application in an Appeal filed on 1 February 2021 will be dismissed.
Conclusion
Having found merit in Ground 1.3, but in no other ground of appeal, this appeal will be allowed in part. In re-exercising the discretion, paragraph 8 of the order made on 9 July 2020 will be varied to provide as follows:
8.Upon the children commencing to reside in the United States of America the children spend time with the father as follows:
(a) During 2020 and in each alternate year thereafter:
(i)for three (3) weeks in Australia or the United States of America (including travelling time) between 1 July and 1 August (noting that the holiday time is 2 June until 12 August);
(ii)for the Christmas break in either Australia or the United States of America between 18 December and 3 January.
(b) During 2021 and in each alternate year thereafter:
(i)for up to one week during the Spring break in the United States of America between 13 March and 21 March;
(ii)for three (3) weeks in Australia or the United States of America (including travelling time) between 1 July and 1 August (noting that the holiday time is 2 June until 12 August);
(c) At such other times as may be agreed between the parties in writing.
As a result, it will also be necessary to set aside paragraphs 9, 10 and 11 of the said order, and in lieu thereof make the following orders:
9.For the purposes of this order, if handovers are in Australia the mother do deliver and collect the children to and from the father’s property in Suburb M, or if handovers are in the United States of America the father do collect and deliver the children from and to the mother’s property unless otherwise agreed in writing.
10.To facilitate the time provided for in paragraph 8 hereof, the father shall pay for the children and the mother to travel between the United States of America and Adelaide (if applicable) and the father shall pay for his own costs to travel to the United States of America (if applicable) provided the father provides to the mother no less than four (4) months prior notice in writing of his intention to travel to the United States of America to spend time with the children, or of the father’s intention for the children to travel with the mother to Australia for him to spend time with the children.
11.Upon the father providing notice to the mother in accordance with paragraph 10 hereof, the father shall provide to the mother, by email, confirmation of the father’s paid airfares of travel to the United States of America, or confirmation of the children’s and the mother’s paid return airfares from the United States of America to Adelaide with such confirmation being provided not less than two (2) months prior to the travel commencing.
THE PROPERTY SETTLEMENT APPEAL
There were eight grounds of appeal propounded in the Notice of Appeal filed on 4 August 2020. However, at the hearing of the appeal the father’s senior counsel advised that the sixth ground (Ground 1(f)) was not pressed, and that the father relied primarily on the first ground (Ground 1(a)). We did not take that to indicate though that all other grounds were being abandoned, and thus we will need to address them, but not necessarily to the extent that would otherwise be the case.
THE GROUNDS OF APPEAL
1(a). That the Learned [primary judge] erred in that her Honour: failed to attach sufficient weight to the [father’s] financial contributions at the commencement of the relationship and during the relationship;
The thrust of the father’s argument here is first, that there was a substantial disparity between the respective financial contributions of the parties at the commencement of their relationship, and secondly, given the increase in the value of the asset pool to the time of trial, the effect of her Honour’s overall assessment of the respective contributions of the parties is to credit the father with only 14 per centum of that growth, and the mother with 86 per centum. Thus, the father concludes as follows in paragraph 37 of his Summary of Argument filed on 19 January 2021:
37.The [father] submits that the substance and effect of her Honour’s assessment is manifestly unjust and inequitable having regard to the fact that the asset pool was almost entirely a result of the [father’s] personal exertion. Of course, due regard must be had to the [mother’s] contribution to the relationship and her much greater contribution to the raising of the children, including that this enabled the [father] to earn the fund [sic] that comprised the pool of assets. However, it is hard to understand how that contribution can be reflected in the effect set out above. The [father] submits, with respect, that the [primary] judge’s assessment punishes the [father] for his past misconduct rather than assesses his just and equitable entitlement. The [father] submits further that in doing so the discretion of the [primary] judge miscarried.
This argument is manifestly flawed.
First, as the authorities now well recognise, all contributions of the parties, be they financial or non-financial are to be assessed holistically (Dickons v Dickons (2012) 50 Fam LR 244 (“Dickons”) at [21], [24] and [26]).
Secondly, as has always been the case, contributions made as a homemaker and parent are to be “recognised not in a token way but in a substantial way” (Rolfe and Rolfe (1979) FLC 90-629 at 78,273).
Thirdly, as the Full Court said in Dickons at [25], “the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise”. As the Full Court went on to say:
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
Fourthly, in Lovine & Connor and Anor (2012) FLC 93-515, the Full Court opined:
42.As part of the process of ultimately determining just and equitable orders under s 79 there is included a complex of discretionary assessments and judgments of many components of contribution, only some of which are capable of measurement in money terms and then often only in historical, rather than present, money terms. Any dictate to the effect that in the course of assessment each disparate component part or kind of contribution must be assigned a discrete and identifiable value or percentage is antithetical to the nature of the discretion involved.
Fifthly, although the ground is framed in terms of a weight challenge, and as to which see Mallet v Mallet (1984) 156 CLR 605, per Gibbs CJ at page 614, and Gronow v Gronow (1979) 144 CLR 513, per Stephen J at pages 519–520, in the father’s Summary of Argument it is suggested that her Honour’s assessment was “manifestly unjust and inequitable”. However, no foundation for this conclusion has been demonstrated. An appellate court’s decision that a trial judge’s discretionary conclusion is wrong, must have a discernible proper foundation, and that cannot merely be that it would have reached a different conclusion on the same facts (see Babett & Falconer (2015) FLC 98-067 at [31]–[38]).
Sixthly, no appealable error can be discerned in the application of these principles from the approach of her Honour in assessing the respective contributions of the parties, and, as the mother submits, there is no basis advanced for the assertion that the primary judge’s assessment “punishes the [father] for his past misconduct”.
There is no merit in this ground of appeal.
Ground 1 - That the Learned [primary judge] erred in that her Honour:
(b) failed to bring to account payments made by the [father] to the [mother] post separation including an interim settlement of property payment of $50,000;
(c) failed to bring to account the payment of $24,000 for the [mother’s] legal fees from the joint assets of the parties;
(d) failed to bring to account the value of the [mother’s] furniture and effects;
The parties addressed these grounds together, and we will do the same.
The short answer to the assertion in Grounds 1(b) and 1(c) is that, in response to her Honour’s invitation, the parties submitted a schedule of assets and liabilities which was agreed, save and except as to the value of each of the party’s furniture and household effects, and that schedule did not include the $50,000 interim property settlement payment, or an amount of $24,000 for the mother’s legal fees. Thus, it is not open to the father to now complain that her Honour failed to bring them to account. Further, it is incorrect to suggest that notwithstanding her Honour’s reasons, her Honour recognised that there was a lacuna in the evidence as to some matters. The parties were able to lead whatever evidence they chose, and/or make whatever submissions they wished to in relation to these matters, and they did, as identified by her Honour at [373], [376], [377], [378], [384] and [391].
That said, it is plain that her Honour did not “add-back” the sum of $50,000, but it is equally plain that $40,000 of that was spent by the mother on her legal costs. Thus, how her Honour dealt with the issue of paid legal costs ultimately determined what her Honour did with this interim property settlement payment, and also bearing in mind, as her Honour found at [383], that the mother had no money of her own at separation, and had no access to any funds other than from the father, and this of course feeds into Ground 1(c).
As to that ground, after reviewing the relevant authorities as to the treatment of paid legal fees at [389] and [392]–[393], her Honour said this:
394.Taking all of those matters into account I am satisfied that in the circumstances of this case:
•The source of funds utilised by each of the [mother] and the [father] for the purpose of paying legal fees was, to the extent of the available evidence, those funds held by the [father] as at the date of the parties separation in his sole name and accumulated during the period of the relationship through his income earned and real estate bought and sold. As at the date of hearing the [mother] had expended $74,026.90 on legal fees with the [father] expending $50,229.53.
•Of the amount expended by the [mother], $30,000.00 was on her evidence by way of the litigation funding provided to her by the [father] by order of the Court and $40,000.00 came from the Court ordered partial property settlement.
•The effect of each of the parties paying their legal fees from what appeared, on the limited evidence available to the Court, to be savings accumulated in the name of the [father] had the effect of diminishing the overall amount available for distribution between the parties at the time of trial. The funds so utilised no longer existed.
•On the evidence it would appear that the [mother] had utilised approximately $25,000.00 more than the [father].
395.I find that in the circumstances of this case and taking into account the principles to which I have referred with respect to the issue of “adding back” paid legal fees to the asset pool in most circumstances where they have been paid from joint funds that exist at separation, it is more appropriate to deal with the question of whether any adjustment may be called for in my consideration of the section 90SM(4) and 90SF(3) factors.
Her Honour then revisited this issue when addressing s 90SF(3) of the Act, and concluded as follows:
468.Both parties’ legal fees as at the date of trial had been paid from funds that existed at separation. Taking into account the findings I have made with respect to the contributions of both parties to the acquisition, conservation or improvement of any of their property, I find that both parties can be seen as having an interest in those funds.
469.The [mother’s] legal fees as at the date of trial were $74,026.90 and the [father’s] were $50,229.53. Of the $74,026.90 expended by the [mother], her evidence was that $30,000.00 was from the litigation funding provided to her by the [father] pursuant to the order of Berman J to which I have previously referred with $40,000.00 coming from the Court ordered partial property settlement. In total, $124,256.43 of the parties’ funds that existed at separation no longer existed at the time of trial as a result of the payment of both parties legal fees to that date.
470.In exercising my discretion as to how to treat the funds used to pay those costs, I reject the submission of Counsel for the [father] that the [mother’s] legal fees should be “added back” to the asset pool and then deemed to be assets retained by the [mother] upon separation. I find that justice and equity would be better served by excluding legal fees paid by each of the parties to the date of trial when identifying the asset pool, and do not intend to make any further adjustment in that regard. I am mindful that the result of that determination is that the [mother] had the benefit of an additional $24,000.00 of legal fees being paid on her account from the parties joint assets.
(Footnote omitted)
We can find no appealable error here by her Honour; it was a matter for the exercise of her Honour’s discretion.
As to Ground 1(d), the mother’s evidence was that her furniture had a value of $4,151 and it was purchased from the interim property settlement payment of $50,000. On that basis her Honour excluded that furniture from the asset pool (at [373]). Ultimately, as we know, her Honour also in the exercise of her discretion determined not to add-back that amount of $50,000.
As submitted by the mother, it is unclear from this ground, and her brief Summary of Argument in support, what error the father is contending for. In any event, even if it can be said that her Honour erred in some way, it is readily apparent that with an asset pool of $4,767,658, to fail to include an amount of $4,151 is de minimus, and would not warrant the appeal succeeding.
1(e). That the Learned [primary judge] erred in that her Honour: failed to order a transfer of the [father’s] shares in [BW Pty Ltd] to the [mother];
Unhelpfully, nothing is put in the father’s Summary of Argument in support of this ground.
In any event, it is a ground that cannot succeed. As emphasised by the mother in her Summary of Argument at paragraph 11, during the hearing the father conceded that if the mother did not seek to retain the father’s 12.5 per cent interest in the company, the asset would go on the father’s side of the ledger (see [362]). The mother did not seek a transfer of those shares, and thus plainly there is no merit in this ground of appeal.
1(g). That the Learned [primary judge] erred in that her Honour: included the [mother’s] superannuation entitlement in the settlement sum due to the [mother] in lieu of a superannuation split;
At trial the father sought that his Individual Retirement Account with Super Fund 1 in the USA be split equally with the mother so that she would receive $287,500 (at [475] and [480]).
However, consistent with the mother’s position, her Honour determined not to do that, and instead included the value of the Retirement Account in the asset pool, left the fund with the father, but discounted the amount that the mother was to receive by $87,500 on account of the fact that she would be receiving her entitlement thereto by way of a cash amount.
Her Honour’s reasons for that outcome are as follows:
475.There was no evidence before the Court as to the particular structure of the [father’s] BZ Brokers Investment Fund or how the superannuation entitlement accrued by him in the Super Fund 1 may be able to be “split” between the parties as was proposed in the [father’s] case outline.
476.In those circumstances I am satisfied that justice and equity would be better served by the [father] retaining both the BZ Brokers investment and his United States superannuation interests, and a cash payment being made to the [mother] as part of the overall settlement reflective of the value of both of those funds.
The only evidence before her Honour at trial was the father’s bald assertion in his affidavit material that a split was “achievable”. No expert evidence was presented as to the nature of the fund or with respect to the proposed split. Thus, pausing there, there is no basis to find that her Honour erred in how she dealt with this fund, and the ground of appeal has no merit. However, in her Application in an Appeal filed on 29 January 2021, the mother sought to lead further evidence comprising an affidavit of a financial planner, which addressed the nature of the fund, whether a split was possible, and the financial consequences of the same. It is said that this evidence demonstrates that even if a split was made, the amount that would have been received by the mother after payment of tax and any penalties, was not much less than the amount of $200,000 fixed by her Honour.
The receipt of that evidence was consented to by the father. The father’s senior counsel explained the reasons for that were first, the evidence established that there could be a split, and secondly, although the amount received by the mother would be similar to the amount awarded by her Honour, that order denies the father certain tax benefits that would flow from the split.
Despite that each party seeks that this Court receive that evidence, we propose to dismiss the application. We are not persuaded that the evidence should be received; from the father’s perspective, the evidence does not demonstrate appealable error by the primary judge in accordance with the principles established in CDJ v VAJ, and from the mother’s perspective, it is unnecessary to receive the evidence in order to bolster the decision of the primary judge. No appealable error by the primary judge has been demonstrated.
There is no merit in this ground of appeal.
1(h). That the Learned [primary judge] erred in that her Honour: assessed Section 90SF(3) factors at 15% and failed to consider or adequately consider the dollar value of the adjustment.
It seems that there are two bases here for challenging the adjustment of 15 per centum, namely, the failure to consider or adequately consider the dollar value of the adjustment, and the claim that it is “inequitable and unjust”. The first is to be found in the ground of appeal itself, and the second in the father’s Summary of Argument, albeit not in the ground of appeal.
The second claim can be disposed of easily, with the same reasoning being brought to bear as set out by this Court when finding no merit in Ground 1(a). There is no foundation for the claim other than that this Court should come to a different conclusion on the same facts, and that plainly is insufficient.
In the reasons for judgment, her Honour carefully and thoroughly traversed all the relevant evidence and considered and assessed each factor arising under s 90SF(3) of the Act (at [432]–[472]), and no error has been demonstrated here.
As for the first issue, it is correct that her Honour did not discretely record the dollar value of the adjustment, but as submitted by the mother, while it might be desirable to do that, the authorities are such that its absence is not an error per se. Moreover, whether it is desirable or not, can depend on how the primary judge addresses the overall result. Here, her Honour was well aware of the dollar amounts, and set them out at [483] and [484]. Thus, it was unnecessary for her Honour to specifically record what 15 per cent represented in dollar terms on the way to reaching that overall result, where it is all important.
Before leaving this ground, as the mother did, it is necessary to address the father’s claim that “the adjustment deprives the [father] of twice that sum” (father’s Summary of Argument, paragraph 42). That claim is misconceived. The adjustment only “deprives” the father of 15 per cent, and not 30 per cent.
This ground of appeal too has no merit.
CONCLUSION
Having found no merit in any of the grounds of appeal, this appeal must be dismissed.
COSTS
In the event that the appeals were allowed the father sought costs, but if no costs order was made, then he sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
For her part, if the appeals were allowed, the mother opposed any order for costs and sought a costs certificate. If though the appeals were dismissed, the mother sought costs.
In the end result the property settlement appeal is being dismissed, and the parenting appeal is only being allowed in part, with just one ground of appeal being successful.
We propose to make an order for costs in favour of the mother in relation to the property settlement appeal, and in relation to that part of the parenting appeal which will be dismissed. However, the father should have some costs for that part of the parenting appeal which succeeded, given that it could have been conceded by the mother well before she agreed to a variation of the parenting orders.
We have taken into account the Schedules of Costs filed by the parties, and we propose to fix a specific amount to be paid by the father pursuant to r 19.18(1)(a) of the Family Law Rules 2004 (Cth), after offsetting the amount to be paid by the mother. Thus, the order will be that the father pay the costs of the mother fixed in the sum of $10,000.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Ainslie-Wallace and Aldridge. Associate:
Dated: 23 March 2021
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