Weston & Weston - [2008] FamCAFC 168

FAMILY COURT OF AUSTRALIA

WESTON & WESTON

[2008] FamCAFC 168

FAMILY LAW – APPEAL – PARENTING – EQUAL TIME – Where appeal against a discretionary judgment – Where appellant husband asserted reliance by trial Judge upon erroneous findings of fact – Where such findings were not inherently improbable – No appealable error – Where appellant husband asserted the trial Judge’s discretion miscarried – Where no evidence that trial Judge failed to consider relevant material or took extraneous material into account – No appealable error – Where appeal against discretionary judgment – Where no error demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where trial Judge ordered husband to pay the wife’s costs of two interim proceedings and 50 per cent of the wife’s costs of the substantive proceedings – Where trial Judge has very broad discretion – Where trial Judge found husband was wholly unsuccessfully in relation to the issue of equal time and largely unsuccessful in relation to other matters – Appeal dismissed.

FAMILY LAW – COSTS – Where appellant husband works full-time and respondent wife works part-time – Where appellant husband wholly unsuccessful – Appellant husband to pay respondent wife’s costs of the appeal.

Family Law Act 1975 (Cth) – s 60CC, s 61DA, s 65DAA, s 117
Family Law Rules 2004 (Cth) – r 11.02

CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
De Winter & De Winter (1979) 23 ALR 211; (1979) FLC 90-605
Gronow & Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Penfold & Penfold (1979-1980) 144 CLR 311; (1980) FLC 90-800
Rice & Asplund (1979) FLC 90-725

APPELLANT:

Mr Weston

RESPONDENT:

Ms Weston

FILE NUMBER:

2008

APPEAL NUMBER:

PTW

1713

2004

DATE DELIVERED:

17 November 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Perth

JUDGMENT OF:

Warnick, Boland & Thackray JJ

HEARING DATE:

15 July 2008

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

21 December 2007, 14 March 2008

LOWER COURT MNC:

[2007] FCWA 154

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr J Hedges

SOLICITOR FOR THE APPELLANT:

Kott Gunning

COUNSEL FOR THE RESPONDENT:

Ms G Braddock SC with Mr E Martino

SOLICITOR FOR THE RESPONDENT:

Paterson & Dowding

Orders

That the appeal against the parenting orders made by the Honourable Justice Penny on 22 January 2008 is dismissed.
That the appeal against the costs orders made by the Honourable Justice Penny on 14 March 2008 is dismissed.
That the appellant father pay the mother’s costs of and incidental to the substantive appeal and the costs appeal as agreed and failing agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Weston & Weston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: PTW 1713 of 2004
File Number: WA 7 of 2008

Mr Weston

Appellant

And

Ms Weston

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Weston and Ms Weston are the parents of two children, “J” and “L”, aged respectively 10 years and 8 years at the time Penny J published her reasons for judgment and made parenting orders under Part VII of the Family Law Act 1975 (“the Act”).
Before the trial Judge the father sought orders that the children live with him in an equal shared “week about” parenting arrangement, that the children equally share school holidays with each parent, and for time to be spent with him on other special occasions. The mother’s position was in broad terms that orders which had been made by consent in April 2005 (“the consent orders”) be discharged, and orders not substantially dissimilar to the consent orders should be made, but with more specific arrangements for school holiday periods and for arrangements at Easter (when Easter did not fall in school holiday periods) and Christmas.
Penny J, after hearing the parties’ competing applications in May 2007, because of her concern about the effects of the parties’ behaviour on the children, deferred publishing her reasons for judgment, and made orders which provided for the parties to attend upon a counsellor.
On 21 December 2007 the trial Judge published her reasons for judgment, and parenting orders were made on 22 January 2008. Those orders provided in summary that:
·    the children live with the mother;
·    except for sporting arrangements, the parties have equal shared parental responsibility for the children (the father is to have responsibility for sporting arrangements during winter months and the mother to have responsibility during summer months);
·    during school terms the father spend time with the children each alternate week from the conclusion of school on Friday until 8.00 am the following Monday, and each Wednesday evening from after school until 8.00 am the following day; and
·    during school holidays the father spend time with the children for one half of the holidays at the end of terms 1, 2 and 3 and for time on other special occasions.
On 14 March 2008 the trial Judge delivered reasons for judgment in respect of the mother’s application for costs (“the costs judgment”) and made orders that the father pay the mother’s costs of an interim application, and one half of the mother’s costs of the substantive proceedings.
This is the father’s appeal against the parenting and costs orders.
Before us both parties’ counsel agreed that, in the event the appeal was successful, it would be necessary for the matter to be remitted for retrial.
It is appropriate that we record at this point the trial proceeded on the basis that there had been a significant change of circumstances since the making of the consent orders, and that the “rule” in Rice & Asplund (1979) FLC 90-725 had no application to the proceedings.

Background

The following background matters appear in the trial Judge’s reasons and are not the subject of controversy.
The parties married in 1994.
Following the birth of the elder child the mother ceased working and became the primary caregiver to the children. At the date of the trial the mother was engaged in part-time employment and the father was engaged in full-time employment.
Until 2004 the mother and the children spent significant periods of time with the maternal grandparents. The father became concerned about the mother’s relationship with the maternal grandparents. By 2004 the mother had severed all ties with the maternal grandparents.
Around Christmas 2003 the maternal grandparents tried to arrange to see the children. The father wrote to the grandparents declining to allow them to see the grandchildren.
The maternal grandparents commenced proceedings in the Court in 2004, and in February 2005, orders were made, by consent, for them to have specified periods of contact with the children.
The parties separated in September 2004. The trial Judge noted “their relationship was reasonable for a while and they were able to negotiate the terms of their property settlement and consent orders in relation to the children”.
On 22 April 2005 the parties entered into the consent orders which provided for the children to have contact with the father each alternate weekend from 5.30 pm Friday until 8.00 am Monday, and every Wednesday from 5.30 pm until 8.00 am on Thursday. Additionally, the orders provided for the father to spend a further four weeks during school holidays with the children, including two weeks during the Christmas holidays and the balance during other school holidays. The orders contained provisions for Easter, Christmas and birthdays.
In January 2005 the mother met her partner, Mr A. The trial Judge noted the mother and Mr A commenced “a close personal relationship in or around July 2005”.
In May 2005 the mother wrote to the father seeking financial assistance from him for out of pocket expenses as a result of a decrease in the amount of child support she was receiving because of the increased time the father was spending with the children pursuant to the consent orders.
On 2 September 2005, that is, five months after the consent orders were made, the father wrote to the mother requesting contact with the children for an additional night per fortnight and one additional week of school holiday time. The trial Judge noted the mother replied “by saying she would only be prepared to enter into a new contact arrangement which enabled both of the parties to share equitable time with the children which allowed them to participate in school and extracurricular activities” (reasons for judgment, para 19).
On 13 December 2005 the father wrote to the mother proposing a week about arrangement commencing on 2 January 2006. The father requested a response no later than 20 December 2005. The trial Judge noted the mother “had not responded to this request by Christmas Day” (reasons for judgment, para 20).
In February 2006 the father commenced proceedings seeking the children spend week about with each of the parents.
The trial Judge noted “[d]uring 2006 the parties argued about a number of things, including where [L] would attend for callisthenics, the contact [the father] would have and which cricket team [J] would play in. This particular dispute in relation to the cricket team had the result of causing [J] extreme distress” (reasons for judgment, para 21).

Grounds of appeal

(a) Parenting appeal

Grounds 1 and 2 of the Amended Notice of Appeal challenging the parenting orders assert that:-
· the trial Judge made an error of fact or law in concluding it would not be in the children’s best interests to spend equal time with each of their parents;
· the trial Judge made factual errors, in particular, that the father’s business commitments were fixed, his commitments would involve the children being looked after by other people, in particular, a Mrs S, and this would lead to increased contact between the children and Mrs S which would not be in their best interests.
It was submitted on behalf of the father that these factual errors vitiated the exercise of discretion by her Honour resulting in her rejecting his application for week about shared care.

(b) The costs appeal

The grounds of appeal relied in respect of the costs appeal assert:
·that her Honour’s order that the father pay the costs of interim applications was “plainly unjust” (by reason of the father not having the mother’s response until after the hearing);
·the decision of the trial Judge to award 50 per cent of the costs of the substantive proceedings was “plainly unjust”; and
·her Honour’s conclusion that the father’s application for equal shared care was unlikely to succeed was erroneous.
We propose to deal first with the challenges raised in respect of the trial Judge’s parenting orders and we will thereafter consider the costs appeal. Finally we will consider costs of this appeal.

Appellate principles

It is not in doubt that this appeal was an appeal against a discretionary judgment. The limits on appellate interference with such judgments are well‑known.
In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J said at 519-520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828, Kirby J said at 230 – 231; 85,465:
Discretionary and evaluative decisions
186. A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision- makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
3. An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self-restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations.

The trial Judge’s reasons

At the commencement of her reasons the trial Judge explained why she did not proceed to judgment until the parties had seen a counsellor. Her Honour said:
The trial in this matter took place in May 2007. At the end of the trial I was so appalled by the conduct of the parties towards each other and the impact it was having upon their children, I decided I would not proceed to a judgment until the parties had attended upon a counsellor.
It was my opinion that while a judgment would give this family a legal resolution to their problems, it was more important for these children that their parents lose their desire to “control”, in the husband’s case, or “win”, in the wife’s. For the purpose of assisting the counsellor, I prepared some observations on the evidence to give the counsellor a flavour of the conduct undertaken by the parents. I incorporate those observations into this judgment. (paragraphs 1 and 2)
Then, having referred to the fact there did not appear to have been any change in the parties’ attitude following counselling, the trial Judge explained that both parties were able to look after the children’s physical and intellectual needs. However, her Honour said, at paragraph 4:
…Unfortunately, they seem to have little or no appreciation of the manner in which their conduct is impacting upon the children’s emotional and psychological wellbeing.
Her Honour then went on to explain that, to understand the personality of each of the parties and their dispute, she would commence her reasons with some material relevant to the dispute between the parties and the maternal grandparents.
After setting out the background material to which we have earlier referred, her Honour then reproduced provisions of Pt VII of the Act, and summarised the effect of other relevant sections, including s 61DA and s 65DAA(1) and (2).
Then, having set out the issues in dispute between the parents, her Honour turned immediately to her consideration of the primary considerations in s 60CC(2) finding (at paragraph 29) that both children had a meaningful relationship with their parents. Her Honour went on to record:
…In my view, both parties by their conduct have attempted to undermine the other parent’s relationship with the children, fortunately, to date, that has not been successful.
Thereafter her Honour addressed the question of the need to protect the children from physical or psychological harm. Her Honour noted matters relevant to her consideration under this sub-section were the “most disturbing aspect of this matter”, and then set out extracts from a report from J’s headmaster.
Turning to the additional considerations (s 60CC(3)), her Honour discussed the children’s wishes noting the father’s case for a week about arrangement was based on his assertion it was what the children wanted. Her Honour said “[t]here is no doubt that [the father] has discussed this issue with the children”.
Her Honour also recorded the mother’s position namely that while the children had told her they would like to spend more time with the father, she asserted “they do not wish to spend less time with her”. Her Honour also noted the mother’s assertion that the children complained to her “that they spent too much time with the [S] family”. Her Honour thereafter chronicled a dispute which had occurred concerning J’s cricket participation. Nothing in this appeal turns on her Honour’s recitation of that dispute.
Her Honour, having dealt with the nature of the children’s relationship with the parents and the grandparents, then went on to discuss the likely effect of a change in the children’s circumstances. As this aspect of her Honour’s reasons forms part of the subject of asserted factual errors said to have vitiated her discretion, it is useful we set out those paragraphs which are relevant:
48.[The father] argues that if the children were to live week about with each parent there would be more stability in their lives because there would be less movement between households. In his Papers for the Judge he states that this change in the children’s circumstances would also benefit the [sic] in that they would have less exposure to [Mr A] in [the mother’s] household whose “background, behaviour and influence on the mother’s actions is questionable and concerning”.
49.[The mother] says that the children would miss the close contact they have with her if they were to change to a shared week about arrangement. One of the other consequences of the week about arrangement is that they would have more exposure to [the father] and [Mrs S]. In my view, neither would be a good thing.
50.[Mrs S] is totally supportive of [the father] even though, as I stated in my observations for the counsellor, his conduct has been appalling. She filed an affidavit 17 pages long, tightly typed, damning [the mother]. I am still of the view that she is a bad influence on [the father] and amazingly seems to believe that his conduct is appropriate. In her affidavit she stated that she was aware that [J] and [L] speak “openly and honestly about week on week off, that is something they both desire immensely”. It is of concern to me that [Mrs S] thinks that it is appropriate that the children should be involved in these conversations, particularly when no decision has been made about this issue and when it is opposed by [the mother].

In dealing with the practical difficulty and expense of a child spending time with, and communicating with a parent, her Honour said:
[The father] says he can change his work commitments to ensure that he is available for the children week about. I am satisfied, however, that he would, as he has in the past, heavily rely upon [Mrs S] to supervise the children if he is unable to look after them before or after school. I have stated previously that given [Mrs S]’s attitude to [the mother], I do not feel increased exposure to her would be appropriate. (paragraph 59)
Her Honour then, in paragraphs 62 to 70 of her reasons, referred to various unfortunate circumstances surrounding events in the children’s lives. Having discussed why she proposed to alter one aspect of parental responsibility related to sporting activities, her Honour concluded, that as a result of an order she proposed to make for supervision by the counselling service of the Court for a period of 12 months, she would make an order that the parties have equal shared parental responsibility.
Her Honour then went on, as the legislation mandates she must, to consider, pursuant to s 65DAA, whether the children spending equal time with each of the parents would be in their best interests and whether it would be reasonably practicable for them to do so. At paragraph 79 of her reasons the trial Judge set out her conclusions for rejecting an equal time regime. It is clear from her Honour’s reasons that these conclusions were based on her earlier findings when considering the relevant additional and primary considerations under s 60CC. We think it important to set out her Honour’s conclusions in paragraph 79:
I do not think it is in the children’s best interests that this occurs for the following reasons:
·The children are not firmly of the view that they want to live in a week about shared arrangement. They have both expressed satisfaction with the current arrangement. They have both said that they would be prepared to try a week about arrangement. [J], who it appears to me has been under the most pressure from [the father], stated that he would like to trial it before final orders were made. He was concerned about the fact that he would miss his mother.
·[The mother] has been the primary care-giver for the children since their birth. They are closely bonded to her and they are concerned they will miss her if they are exposed to a shared week about arrangement.
·Because of [the father’s] controlling attitude towards [the mother] and the children, I do not think it is appropriate that they spend equal time with him. I am satisfied that if the children did live week about with him that, whilst he is able to control his work hours to some extent, there are business commitments which will be fixed and that he will have to meet. This would involve the children being cared for by other people, in particular, [Mrs S]. I have already made comments about her attitude to [the mother] and her support of [the father’s] poor behaviours and I do not think increased contact with her would be in the children’s best interests.
·It is in the children’s best interests that they have some stability in their lives. Apart from increasing the holiday time [the father] spends with the children, in my view, the arrangements that have existed since 2005 are appropriate except that the after school contact of Wednesdays should commence after school.
·I am not satisfied that [Mr A] is a bad influence on the children as alleged by [the father].
·The lack of co-operation between [the father] and [the mother] means an equal shared care arrangement would not work.

Grounds of appeal

Ground 1 of the father’s Amended Notice of Appeal was as follows:
The learned trial judge made an error of fact and/or law in concluding that:
(1)It would not be in the children’s best interests to spend equal time with each of their parents.
…
No oral or written submissions were addressed to this generalised ground, and as senior counsel for the mother submitted, “[n]o particulars of error whether of fact or law have been provided in relation to this ground” (mother’s submissions, para 6).
We discern that this ground was relied on by way of a general assertion, the specific complaints being particularised in ground 2. Accordingly we propose to address the submissions raised in respect of that ground which in summary asserts the trial Judge was in error in finding:
·    the father would have fixed business commitments which he would have to meet (requiring alternate care arrangements during the week he proposed the children would live with him);
·    the father’s commitments would involve the children being cared for by other people, in particular, Mrs S;
·    the fixed commitments would increase the children’s contact with Mrs S; and
·    increased contact with Mrs S would not be in the children’s best interests.
In support of this ground the father’s counsel relied on his written submissions referring to the father’s evidence in paragraph 29-33 of his affidavit filed 20 November 2006. It appears to us the potentially relevant paragraphs of the father’s affidavit are paragraphs 29 and 30. In those paragraphs he said:
29.My current [employer company] is very family-focused. I am in the fortunate position whereby I have the ability to perform duties from my home, as well as schedule meetings so as not to impinge upon my time with [J] and [L]. Should however the rare occasion arise where I cannot, for whatever reason, make it on time to collect [J] and [L], I have an extensive network of close friends, in addition to family, that I will be able to call upon to collect and/or care for [J] and [L].
30.To this end, my current employer has paid to have installed a broadband telecommunication link and provided me with a personal laptop computer, so as to enable me to work efficiently from home as and when required. (father’s submissions, pp 1-2)
It was submitted on behalf of the father that “[t]here is no evidence from which the learned trial Judge could have drawn this conclusion” (that he had fixed business commitments) and “the husband’s evidence, which was not challenged, was that he had the ability to schedule meetings so they did not impinge on his time with [J] and [L]” (father’s submissions 1.3 and 1.4, p 2).
It was further submitted that it was inherent in her Honour’s findings that the father’s business commitments were fixed, and assumed those commitments would take place during the week when the father had the children in his care, rather than the week they were with the mother.
In her written submissions, senior counsel for the mother submitted that the findings the subject of complaint by the father, were secondary matters to her Honour’s primary finding which was “because of [the father’s] controlling attitude towards [the mother] and the children, I do not think it is appropriate that they spend equal time with him”. The mother’s senior counsel submitted “[i]t is not suggested in this appeal that her Honour was wrong in that finding”. We agree with senior counsel’s submission.
Senior counsel for the mother also submitted there was a sufficient factual basis for the trial Judge to reach her conclusion about the father’s work commitments. She noted that the father was employed on a full-time basis and had work commitments, even if he had had the ability to work part-time from home. She submitted “the evidence was that his office was at [B, a metropolitan suburb], that the company had premises at [K, a regional centre in WA], [P, a regional centre in WA] and [W, a regional centre in WA]”.
The father was cross-examined on this topic at the hearing. That evidence disclosed:
In your affidavit you talk about your work arrangements and you’re now fortunate enough to be employed by [the employer company] which is very family focused, whatever that means?---Correct.
But you don’t see fit to put into the affidavit - it may be just something you overlooked - what your usual hours of work have been since you took up that employment. Would you care to advise her Honour what your usual hours of work have actually been to date with [the employer company]?---As a professional, I mean, office attendance could be anywhere from 8.30 in the morning through to 10.30 in the morning, depending on whether or not - where I'm working at the time and anywhere between 4 o’clock in the afternoon through to maybe 6 o’clock at night on occasions if there’s phone conferences or the like there.
And between roles you’re out and about doing other things. Is that the position?---I’m in a mobile position with my occupation.
So could you just so that we get a complete picture describe, say, a typical week that you have had since you joined that company?---In, sorry?
In terms of what you do?---What do I do? I manage 24,000 hectares of property that [the employer company] has. I have got a team of four. I attend our head office in [B, a metropolitan suburb]. That is where my position is located. We have locations in [K, a regional centre in WA]. We have locations at [P, a regional centre in WA] and [W, a regional centre in WA].
I think some of us have an idea where [the employer company] operates, Mr [Weston]?---Mm ’ hm.
Could you just tell us what you do on a typical - - -? ---That’s where I was leading to, and then we - I have meetings on site at those locations, manage housing, residential accommodation by managing agents, so the desk-bound, computer-bound work either from home - I have got the capability to do that and I do do that or from the office and then I also attend - we have got locations in the Eastern States and attend those on occasions on site over there.
And how often have you been interstate - - -?---How often have I been interstate?
- - since you took up that - - -?---I have been six times since I took up occupation there.
That you started in the middle of last year. Is that right?---July last year, yes.
How often have you been out of Perth and not interstate?---On a weekly occurrence.
How often have you been away overnight?---Never
So in Western Australia you don’t have to stay overnight?---[W, a regional centre in WA, is] a two-hour drive from home so, no, I do not have - - -
You have to come and go within the - - -?---I have to commute, yes, but we time the meetings so that they’re - being a remote location as it is, the majority of the staff there commute there every day anyway so the meetings aren’t called at 8 o'clock in the morning so - - -
You enjoy your work?---I do.
And I take it you’re well thought of by your employer?---Yes, I am.
And you intend to continue to work for this company?---I see no reason why I shouldn’t. (Transcript 2 May 2007, pp 86-87)
The mother’s evidence included her assertion that the father worked long hours prior to separation, albeit for a different employer (paragraph 177), and that he had travelled interstate in November 2006 (paragraph 179) (mother’s affidavit filed 30 November 2006).
The circumstances whereby a factual error made by a trial Judge may vitiate the exercise of discretion are discussed by Gibbs J in De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. … It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v Storie (1945) 80 CLR 597, both Latham CJ, at p 600, and Rich J, at p 604, cited from the judgment of Viscount Simon LC in Blunt v Blunt [1943] AC 517 at 526; [1943] 2 All ER 76 at 79: “If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court's discretion will have been exercised on wrong or inadequate materials. …” … It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.
In this case, as we have already set out, the trial Judge’s determination that an equal week about shared parenting regime would not be in the children’s best interests was based on a number of her findings made pursuant to relevant s 60CC factors and summarised in paragraph 79 of her reasons.
We accept the submissions of senior counsel for the mother that the findings made by the trial Judge on the issue of the father’s availability to personally care for the children were, having regard to the whole of the evidence, not inherently improbable. Further these findings were not the pivotal or primary findings of the trial Judge which she took into account in the exercise of her discretion in determining that it was not in the children’s best interests that they spend equal time on a week about arrangement with each parent.
Given the other significant findings of the trial Judge supporting her conclusions that it was not in the best interests of the children for there to be an equal shared care arrangement, we are not satisfied, if there was a mistake of fact about the father’s working arrangements (which we do not accept), that it has affected the final result. Accordingly we find no merit in this challenge.
The father also asserted the trial Judge was in error in her determination that “those fixed commitments would involve the children being cared for by other people, in particular, [Mrs S]”.
As we have previously set out, the trial Judge found the father’s full-time work would involve the children being cared for by other people and, in particular, Mrs S. The father asserted there was no evidence to support this proposition. The father also complained about the trial Judge’s finding that increased contact with Mrs S would not be in the children’s best interests. It was submitted on behalf of the father (father’s submissions, para 4.2) “that there was no evidence upon which the learned Trial Judge could conclude that increased contact with [Mrs S] would not be in the children’s best interests”.
The father in answer to questions in cross-examination confirmed that children spent time with Mrs S. The following passage of cross-examination is illuminating:
Now, it’s right, isn’t it, that since you separated your children have continued to spend a lot of time with [Mrs S] and her family? - - -Correct.
And that time has most recently been during the time since about July 2005. That has been during the time that the children are with you, not during the time the children are with their mother?- - -In the fact that I have got the relationship with [Mrs S] and [Mr S], yes.
Continuing relationship with [Mrs S]?- - -Yes, indeed, and [Mr S].
And [Mr S], sorry, I don’t mean to minimise [Mr S’s] place in his own household. Obviously a number of the reasons for spending time with the [S] family are that they are friends and the children are friends?- - -Correct.
But it’s also right to say, isn’t it, that on a number of occasions previously assisted you as a married couple and your wife as a separated woman in terms of picking up from school or - - -?---Correct, yes.
And there’s nothing wrong with that at all?- - -No, I wouldn’t say so.
But it’s right, isn’t it, that a lot of the time you spend with your children you actually are spending in company with [Mrs S] and her family?- - -Some of the time.
A reasonable chunk of the time?- - -Yes. (Transcript, 2 May 2007, pp 79-80)
We accept the submissions of senior counsel for the mother that it was open to the trial Judge to conclude if the children spent more time in the father’s care that they would likely be cared for from time to time by other persons, including Mrs S by reason of past practice and the demands of his full-time employment, as well as the need to travel to locations outside the Perth metropolitan area and interstate.
The father also asserted error by the trial Judge in her finding that increased contact with Mrs S would not be in the children’s best interests.
At paragraph 50 of her reasons (which we have earlier set out) the trial Judge, who had the opportunity to see Mrs S in the witness box, formed an adverse view of her, particularly by reason of the involvement of the children in conversations about their care arrangements. The trial Judge referred to the affidavit filed by Mrs S in the proceedings noting it comprised 17 pages, “tightly typed, damning [the mother]” (judgment, paragraph 50).
On reading of it, Mrs S’s affidavit clearly discloses the material contained therein was very critical of the mother.
We do not discern that her Honour took into account any irrelevant matter or that she otherwise erred in the exercise of her discretion in reaching her considered conclusions that an equal shared parenting arrangement would not be in the children’s best interests.

Conclusions

As we set out at the commencement of our reasons, this was an appeal against a discretionary judgment. No error having been demonstrated in the trial Judge’s exercise of a discretion the appeal must be dismissed.

Costs Appeal

The trial judge’s reasons

In her reasons delivered on 14 March 2008 the trial Judge noted that she had earlier made provision for the mother, if she wished to do so, to make a claim for costs against the father in respect of the proceedings. At the commencement of her reasons the trial Judge noted that the timetable fixed by her required the father’s submissions to be filed by 15 February 2008.
Her Honour noted that on 15 February 2008 the father’s solicitors wrote to the mother’s solicitors requesting an extension of time in which to prepare their submissions. However, by letter dated 20 February 2008, the mother’s solicitors advised they opposed the request for an extension of time.
Having referred to r 11.02(1) of the Family Law Rules 2004 her Honour noted that an extension of time could have been obtained from the Court. The trial Judge said:
…However, the [father’s] solicitors chose to file the submissions without seeking an extension of time within which to do so when they were well aware that the [mother’s] solicitors objected to them filing the documents. On that basis they should not have been filed without the requisite extension of time and, therefore, pursuant to Rule 11.02(1), they are of no effect. This being the case, I do not intend to take them into account. (paragraph 4)
Having referred to s 117 of the Act her Honour repeated some brief historical matters concerning the parties, and then explained at paragraph 10:
The wife now seeks the costs of the proceedings on the basis that the orders made by me did not allow for the children to spend time with the husband week about, and only slightly increased the time that he would have with them.
Her Honour went on to note that the mother sought the father should pay costs, both of interim applications and the trial, or in the alternate that he should pay for the costs of the trial or a considerable portion of them.
Her Honour then turned, under s 117(2A), to consider the financial circumstances of each of the parties. Having noted that the father worked on a full-time basis and the mother worked on a part-time basis and had primary responsibility for the care of the children, the trial Judge recorded that the mother had been billed in excess of $80,000.00, including disbursements and counsel’s fees in respect of the father’s application.

In dealing with the conduct of the parties her Honour noted the following:
When the wife’s counsel suggested that she may bring an application that the husband pay her costs, I warned that neither party was blameless in relation to the manner in which they have exposed the children to their highly conflictual relationship. The wife submits, however, that I should take into account, in particular, the conduct of the husband in seeking to re-open the issues surrounding the time he spent with the children only 10 months after consent orders were made in April 2005, the manner in which he ran the proceedings and the fact that he was largely unsuccessful. (paragraph 14)
Her Honour explained the nature of two applications originally filed by the father, and recorded that Magistrate Monaghan had found insufficient change of circumstances to consider the interim application, and that his Honour had reserved the mother’s costs of that application.
The trial Judge noted on 1 September 2006 the father filed another interim application concerning periods he wished to spend with the children during the September/October school holidays. Her Honour noted that that application had been determined with each party ordered to pay their own costs.
The trial Judge then recorded that the father filed two further applications for interim orders, one on 3 November 2006 and on 20 November 2006 in which he sought, inter alia, to review the Registrar’s decision on listing his application. Her Honour noted that the application also sought to amend orders sought in the Form 2 application filed on 3 November 2006 to encompass orders “that [J] plays cricket, or football or other sporting events in a team coached by the husband”. Her Honour noted that ultimately these applications were listed for hearing on 14 December 2006 when orders were made by consent in relation to Christmas school holiday contact and in relation to cricket. Her Honour noted “[t]he parties each agreed to pay their own costs in relation to that application” (paragraph 20).
Her Honour thereafter recorded that the father filed a further application on 15 March 2007 concerning the time he should spend with the children for Easter and orders in relation to the football team that J should play in. Her Honour noted “[t]he wife filed a response in relation to the Easter time the children should spend with the husband”, and then explained the orders she made were largely in terms of the mother’s response. The costs of those proceedings were reserved.
Her Honour went on to find that as a result of her judgment the father was wholly unsuccessful in relation to his application for week about time with the children. Her Honour then said:
[The father] was firmly of the view that the children wished to reside week about with him because they told him so. He did not think it was likely that they made these comments to him because it was what he wanted to hear. It was clear from the report of the Family Consultant that the children were not “firm” in their view. In addition, he stated that one of the other reasons the children should spend less time in the wife’s household was because of the negative effect upon them of their contact with [Mr A]. My determination was that [Mr A] was not a negative influence upon the children.
Two further matters which, indicated to me, that it was not appropriate that the children spend week about with each party was the husband’s very poor attitude towards and opinion of the wife, and their highly conflictual relationship.
Even though the husband was largely unsuccessful, there is no doubt that the wife’s conduct, especially as it relates to the children’s sporting and extracurricular activities was a significant issue at trial. The wife was as responsible as the husband for the problems resulting from their inability to agree on these issues. (paragraphs 23-25)
Her Honour then set out her conclusions at paragraph 26 of her reasons finding that the father should pay the mother’s costs associated with his application of 20 March 2006 (being the application for interim orders refused by Magistrate Monaghan). Her Honour found the Magistrate’s determination that there had been no change of circumstance since the time of the consent orders to be the basis for the costs order; however, her Honour excluded from the cost of that application any costs associated with the mother’s affidavit in which she opposed the obtaining of a Family Report.
In relation to the second interim application her Honour noted that the issue had been adjourned to the trial, which was listed for hearing for only two months later, and that the father should pay the costs of the application.
In respect of the trial, the trial Judge reiterated that the father was aware before the trial the children had not expressed a firm view to the Family Consultant and concluded “[w]hile the wishes of the children were not the only matters to be taken into account, it should have been obvious to the husband and his solicitors that it was unlikely an order would be made in the terms sought by him”. Her Honour determined that the father should pay 50 per cent of the costs as agreed, or if not agreed, as assessed.

Counsels’ submissions

In his submissions in respect of the costs appeal reference was made by counsel for the father to the interim application filed by the father on 15 March 2007 in which he sought orders for Easter 2007 and for J to be enrolled at a particular football club. It was submitted on the father’s behalf that as the mother did not file a response until 3 April 2007 the father did not have notice that the mother agreed to any of his proposals. It was further submitted that the main issue related to the issue of the team with which the child J would play, and that issue was adjourned to the trial and ultimately settled.
Senior counsel for the mother noted that the father had filed six interim applications and that the application filed on 15 March 2007 was filed six and a half weeks prior to the final hearing date (when the application ultimately settled). Senior counsel noted that the orders made by the trial Judge were largely in terms of the mother’s response and the application was not disposed of on terms sought by the father (mother’s submissions on costs, para 3). Significantly at paragraph 11 of her submissions senior counsel for the mother said:
The issue is not that the application in relation to [J’s] football was ultimately resolved by consent, but that it was brought at all so shortly before the date set for trial. That alone justifies a costs order on this part of the application. [original emphasis]

Relevant Principles - Costs

The question of costs under the Act is governed by s 117. Section 117(1) and s 117(2A) provide as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
…
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
There is no doubt that a trial Judge in awarding costs exercises a broad discretion (see Penfold v Penfold (1979-1980) 144 CLR 311; (1980) FLC 90-800). In that case Stephen, Mason, Aickin and Wilson JJ said:
It is an accurate description of s 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s 117 (2). As sub-s (1) is expressed to be subject to sub-s (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117 (2) in “a clear case”.

Discussion

We discern no error in the wide discretion available to her Honour in making the order that the father pay the mother’s costs of the two interim applications.
Insofar as the father seeks to challenge the trial Judge’s determination that he should pay 50 per cent of the mother’s costs of the substantive proceedings that challenge is based on one finding of the trial Judge, namely, notwithstanding the children’s wishes as reported by the Family Consultant, it was obvious that the Court would conclude it would not be in the best interests of the children and reasonably practicable to spend equal time with each parent.
It is clear from reading her Honour’s reasons as a whole that her determination that the father should pay 50 per cent of the mother’s costs was not entirely based on the father’s failure to take account of the children’s views as expressed in the Family Report. Her Honour was clearly entitled to find that the father was wholly unsuccessful in relation to the issue of a week about regime and largely unsuccessful in relation to the other matters agitated at trial. We have already referred to those matters in discussing the appeal against her Honour’s substantive judgment. Given the very broad discretion available to her, we see no error by the trial Judge in the exercise of her discretion insofar as her costs orders are concerned. Thus the costs appeal must be dismissed.

Costs of the appeal

At the conclusion of hearing the appeal we sought submissions from both parties in respect of costs. We take into account the parties’ respective earning capacities and note that the father works on a full-time basis whereas the mother is engaged in part-time employment. The most significant factor in our view is that the father has been wholly unsuccessful in respect of both appeals.
Accordingly we find that the father should pay the mother’s costs of the substantive appeal, and the costs appeal, as agreed, and failing agreement as assessed.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

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