Willis & Willis
[2007] FamCA 819
•9 August 2007
FAMILY COURT OF AUSTRALIA
| WILLIS & WILLIS | [2007] FamCA 819 |
| FAMILY LAW – APPEAL FROM DECISION OF FAMILY COURT JUDGE – PROPERTY SETTLEMENT – Long marriage – Trial Judge ordered that the parties assets be divided 80% to 20% in favour of the wife - Whether the trial Judge gave too much weight to the section 75(2) factors which favoured the wife considering the decision to alter their interests in the property by reason of findings about contribution – Whether the trial Judge erred in failing to add back to the asset pool monies spent by the wife after separation – Appeal allowed in part – No order as to costs. FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Appeal relates only to the two youngest children – Older child living with the husband - Husband sought orders for a shared care arrangement – Wife sought to relocate with the two youngest children – Whether the husband was denied procedural fairness at the trial – Whether the trial Judge gave sufficient weight to the wishes of the youngest child and the evidence of the Family Report Writer – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) House v The King (1936) 55 CLR 499 |
| APPELLANT: | Mr Willis |
| RESPONDENT: | Mrs Willis |
| FILE NUMBER: | SYF | 2411 | of | 2005 |
| APPEAL NUMBER: | EA | 71 | of | 2006 |
| DATE DELIVERED: | 9 August 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | WARNICK, MAY, STEVENSON JJ |
| HEARING DATE: | 3 May 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 June 2006 |
| LOWER COURT MNC: | [2006] FamCA 591 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Dura |
| SOLICITOR FOR THE APPELLANT: | Willis & Bowring |
| COUNSEL FOR THE RESPONDENT: | Mr Thistleton |
| SOLICITOR FOR THE RESPONDENT: | Frazi Spink |
Orders
That the appeal be allowed in part.
That order 1 made on 30 June 2006 be varied by the deletion of the figure 80% and 20% and the substitution therefore of 78.7% and 21.3% respectively.
That there be no order as to the costs of the appeal.
IT IS NOTED THAT IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Willis and Willis.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 71 of 2006
File Number: SYF 2411 of 2005
| Mr Willis |
Appellant
And
| Mrs Willis |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The appeal by the husband against orders made by Lawrie J on 30 June 2006 concerns property settlement and parenting issues. The wife resisted the appeal and sought to maintain the orders of the trial judge.
The parenting orders related only to the two younger children of the parties:
The child L born … November 1992, and
The child S born … September 1997.
The child L and the child S were 13 and almost 9 years old at the time of the orders. The third child of the marriage, the child D born … November 1988, was 17 at the time of the trial.
In summary, her Honour’s orders provided that the child L and the child S live with the wife on the Central Coast of New South Wales. The girls would spend time with the husband who lived in Sydney on alternate weekends and each Wednesday afternoon, as well as half of all school holidays and on special occasions. The orders provided for the child L to spend time with her father only if she wished to do so.
The trial judge’s orders in relation to property settlement provided that the husband and wife receive 20% and 80% respectively of the net proceeds of sale of the former matrimonial home. Each of the parties would retain certain chattels. Before us it was agreed that the effect of these orders was that the wife received approximately 76% of the net pool of property.
BACKGROUND FACTS
The wife was born on … January 1954 and was thus 52 years old at the date of judgment. The husband was born on … April 1965 and was 41 years old at that time. The parties married on 19 September 1987, having lived together since 1984. They separated finally on 5 March 2004.
The child D has lived with his father for most of the time since his parents separated. The girls have lived with their mother in the former matrimonial home. Unfortunately the child D and the child L do not spend time with their non-residence parent, although the child S continues to see her father.
The wife commenced employment with [a government office] in 1972 and immediately began to contribute to a superannuation fund. At the commencement of cohabitation in 1984 she had savings, which the trial Judge found to be about $5,000.
In 1984 the husband had a Torana car and a motor cycle. He worked as a transport driver throughout the relationship.
Each of the parties received lump sums during the marriage. In 1993 the wife received an inheritance of approximately $95,000. When she was made redundant in 1996 she received a total package of $223,000. Of that amount $147,445 consisted of superannuation and the balance of $75,555 was accrued leave entitlements and a redundancy payment. In 1997 the husband also received a redundancy payment, which amounted to about $38,000.
Following his redundancy the husband commenced a trucking business, which he operated in partnership with the wife. He drove the vehicles and she was responsible for the bookwork. Since separation the husband has operated a new transport business in his sole name.
Aside from the paperwork for the business the wife has had only casual, part-time employment since 1998. The husband currently works as a truck driver, doing deliveries for a fruit and vegetable supply company. His work is lucrative and involves short hours.
The husband’s parents assisted the parties in two main ways during the marriage. They cared for the children while the parties worked and they loaned money for purposes such as payment of taxes. All of these loans were repaid with interest.
THE DECISION OF THE TRIAL JUDGE
Property Settlement
The trial judge found that the net pool of property had a value of $736,238, having declined to add back $19,320 which was spent by the wife after the separation. These funds came from a draw-down on her superannuation and the sale of shares.
The parties agreed that they would each retain certain items of property, as follows:
Husband
Truck$40,000
Motor cycle $10,000
St George Bank account $ 4,000
Superannuation $ 4,205
$58,205
Wife
Motor vehicle $10,000
St George Bank account $ 430
Superannuation $58,845
$69,275
The trial judge had then to determine the percentage distribution of the net sale proceeds of the former matrimonial home. The husband sought that the wife receive 60% of the net proceeds of sale of that property and the wife sought that she receive 80%. The parties agreed that they would sell the Telstra shares and divide the net proceeds equally.
The trial judge assessed that the wife made a 15 per cent greater contribution and made a further 15 per cent adjustment in her favour on account of section 75(2) factors. In addition to receiving the property referred to in the paragraph above and sharing equally the proceeds of sale of shares, the orders were that the wife receive 80 per cent and the husband 20 per cent of the net proceeds of sale of the former matrimonial home.
At paragraph 42 of the judgment the trial judge said:
“I am satisfied the orders which the wife seeks are just and equitable and in fact, giving her slightly below the 80% adjustment overall which would be a possible outcome. She will be retaining somewhat more in the non-real estate assets than the husband is, and the 80% share of the family home will give her in the order of a 75% share overall.”
Parenting Orders
The husband sought orders for a week-about “shared care” arrangement only in relation to the parties’ youngest child, the child S. He proposed that there be no orders in relation to the child L and the child D, having regard to their age.
The wife sought to relocate with the child L and the child S to the Central Coast. She proposed that the children spend time with their father each alternate weekend and each Wednesday afternoon, as well as half of all school holidays. The child L would spend time with her father only if she wished to do so.
The trial judge declined to order a week-about shared care arrangement for the child S and made parenting orders substantially as sought by the wife. In rejecting the husband’s proposal for a week-about shared care arrangement her Honour made the following relevant findings:
·the husband subjected the wife to violence
·there is a poor level of communication between the parties
·the husband involved the children inappropriately in the parental dispute
·there is a lack of commonality between the households, which would create difficulties for the child S in moving between her parents
THE GROUNDS OF APPEAL
The twelve grounds contained in the Notice of Appeal can be summarised as follows:
Property Settlement
1.The trial judge gave too much weight to the section 75(2) factors which favoured the wife.
2.The trial judge placed too much weight on the contributions made by the wife.
3.The trial judge erred in failing to add back to the asset pool $19,320 which was spent by the wife after the separation.
4.The trial judge found the wife’s inheritance to be a contribution by her but also took into account the fact that she will receive no future bequest from her family as a section 75(2) factor.
5.The trial judge made a mathematical error in calculating the husband’s share of the proceeds of sale of the former matrimonial home, with the result that the wife received $9,136 to which she was not entitled.
It was submitted on behalf of the husband that the appropriate division of the net pool of property was 65% to the wife and 35% to him, if he succeeded in obtaining orders for a week-about shared care arrangement for the child S. If the child S remains primarily in the care of the wife, the husband submitted that the net pool of property should be divided 67.5% to her and 32.5% to him.
PARENTING ISSUES
These grounds of appeal can be summarised as follows:
6.The husband was denied procedural fairness, in that the trial judge did not allow his counsel an opportunity to respond to comments which reflected her adverse opinions of the husband and his courtroom demeanour.
7.The trial judge gave insufficient weight to the wishes expressed by the child S and gave no reasons for departing from the recommendations of the Family Report writer.
8.The trial judge determined that the child S should relocate to the Central Coast with the wife, without taking into account the impact of travel on the child.
9.There was no evidence to support the trial judge’s findings that “a shared parenting arrangement was not possible, due to communication difficulties between the parties and different parenting styles”.
In the Notice of Appeal, the husband sought that the proceedings be remitted for re-trial if he was successful in respect of parenting issues. Alternatively, he sought orders that all three children live with each parent on a week-about basis if the wife is in Sydney. If she lives on the Central Coast, he sought orders that the child D and the child S live with him and the child L with her mother. In that event, the child D and the child L would decide what time they spend with their non-residence parent. The child S would spend time with her mother every third weekend and during school holidays. These proposals are inconsistent with the position adopted by the husband at trial when he sought no orders in respect of the child D or the child L, although as the trial judge recognised the husband would have liked a sharing arrangement of all three children.
THE GROUNDS OF APPEAL IN RELATION TO SETTLEMENT OF PROPERTY
Ground 3
It is convenient to deal with Ground 3 initially. As seen, the husband contended that the $19,320 which the wife obtained from the sale of shares and a draw-down of her superannuation should be added back to the list of assets.
Her Honour decided not to add this money back to the list of assets and made the following findings:
“I am satisfied that those funds and others raised by borrowings have been used, not for some purpose of the wife’s own, but for the support of herself and the two younger children in circumstances where there was no other source of income. The husband was paying the mortgage/loan but no other child support and no spousal maintenance. The wife has had the benefit of the occupation of the home for herself and the two youngest children, while the husband has supported the oldest child. He has had control of the income from the partnership.”
The wife said that she received $10,820 from the sale of IAG and AMP shares and withdrew $8,500 from her superannuation fund. Her evidence was that she spent this money on clothes and dancing lessons for the child L and the child S, council and water rates and general living expenses. The husband failed to challenge this evidence successfully. It seems to us that her Honour’s findings were clearly supported by the wife’s unchallenged evidence.
The funds expended by the wife were not an asset existing at trial. Whether to include this money in the table of assets for division was an exercise of discretion, somewhat similar to the addback of legal fees. The trial judge stated her reasons for the decision which she made. In our view, the choice which she made was well open to her.
Grounds 2 and 4
Essentially, these grounds amount to a complaint that the trial judge attached too much weight to the contributions of the wife and thus gave inadequate weight to the husband’s contributions. Ground 2 is an omnibus complaint and Ground 4 points to five specific contributions by the husband, to which the trial judge allegedly failed to attach sufficient weight.
The financial history of the parties’ relationship was recounted in paragraphs 17 to 31 of the judgment. The trial judge’s conclusions as to contribution were then set out in paragraphs 32 to 35.
Her Honour firstly focussed on the husband’s contribution as the “main breadwinner” and the wife’s role as “main homemaker and parent”, since her redundancy in 1996. She then acknowledged the wife’s bookkeeping work in the trucking business and the husband’s role in the care of the children. Her Honour found that these contributions should be regarded as equal up to separation but thereafter to favour the wife, the reason being that the wife has had care of the two youngest children and the husband, the much older child, the child D.
Her Honour then considered the wife’s direct financial contributions and identified her superannuation of $73,722, inheritance of $95,000 and redundancy of at least $32,000, being a total of approximately $200,000. She also referred to the wife’s indirect financial contribution of a concessional mortgage rate, available because of her employment, and her pre-cohabitation savings which were used as a deposit on the parties first home. Her Honour then acknowledged the husband’s non-financial contribution of his labour in the building and landscaping of the former matrimonial home.
In this part of the judgment there was no reference to any other contributions by the husband. In the paragraphs set out under the heading “History of Property Acquisition”, however, her Honour identified a variety of contributions made by each of the parties. Significantly, the trial judge referred specifically to contributions by or on behalf of the husband referred to in Ground 4 of the Notice of Appeal, as follows:
(a) mortgage payments made after separation in lieu of child support
(b) homemaker and parent contribution during the marriage
(c)post-separation homemaker and parent contribution in respect of the child D
(d) child care provided by the paternal grandparents
(e) labour on the renovations and improvements to the parties’ home
The husband contended that the trial judge failed to attach sufficient weight to his post-separation payment of mortgage instalments. Her Honour did recognise this contribution but balanced the mortgage payments against the wife’s responsibility to pay all other outgoings on the home, in a situation where she received neither child support and nor spouse maintenance from the husband.
The husband next contended that too little weight was attached to his homemaker and parent role. Her Honour acknowledged this contribution, which was necessarily limited by the husband’s major role of principal breadwinner for the family. Similarly, her Honour referred to the husband’s post-separation care of the parties’ oldest child but took into account the fact that the wife has the care of the two youngest children.
The next complaint in Ground 4 was that her Honour gave insufficient weight to the provision of child care by the husband’s parents. Both parties were able to remain in the workforce while the paternal grandparents cared for the children. There was, however, no evidence as to the cost of any alternate form of child care.
The husband submitted that the trial judge made no reference to the paternal grandparents’ child care or to the husband’s redundancy payment in the exercise of weighing the various contributions of the parties. Both of these contributions were referred to in the passage of the judgment headed “History of Property Acquisition”. Her Honour remarked on the wife’s “higher redundancy payment” which can only mean that she had in mind the smaller payment which the husband received. Earlier in the judgment there was a specific reference to the husband’s redundancy payment of approximately $38,000 in 1997.
The husband asserted that the trial judge erred in her treatment of the wife’s superannuation. It was suggested firstly that there was no evidence to support the finding that the wife had a superannuation benefit at the commencement of cohabitation. In her affidavit the wife said that she worked continuously at [the government office] between 1972 and 1996. Annexed to her affidavit was a letter to the wife in relation to her superannuation, which stated “commenced 14/8/72”. There was thus clear evidence that the wife had a superannuation benefit at the commencement of cohabitation.
It was further submitted that the trial judge was in error in concluding that 75% of the wife’s superannuation was her sole contribution. Again, it was suggested that there was no evidence to justify this finding. In particular, it was argued that there was no evidence of the pattern of growth of the fund. When she was made redundant in 1996 the wife had been a member of the scheme for 24 years and lived with the husband for half of that period. We do not take her Honour to have been attempting anything more than calculating in a broad way the value of the initial contribution of the parties; these were not precise, but erroneous findings, but an exercise designed to assess the monetary “character” of the contributions made.
As seen, the trial judge concluded that the wife “made a 15% greater contribution”. She thus found that the wife and the husband made contributions of 65% and 35% respectively to the net pool of property.
Insofar as the grounds of appeal in relation to contribution are challenges to the trial judge’s exercise of discretion, it is useful to reflect on the criteria for a successful appeal against a discretionary judgment, as set out in House v The King (1936) 55 CLR 499, at 504-505:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”
And in Gronow and Gronow (1979) FLC 90-716 at 78,848 – 78,849:
“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.”
In our opinion the trial judge properly identified the respective contributions of the parties. Having regard to the principles set out in House v The King and Gronow and Gronow, we are of the view that no part of her Honour’s exercise of discretion in the assessment of contribution should attract appellate intervention.
Grounds 1, 5 & 6
Ground 6 was a complaint that the trial Judge gave weight to the wife’s inheritance as a contribution but also took into account, for the purposes of section 75(2), the fact that she will receive no future bequest from her family. A careful reading of the judgment shows, however, that Her Honour did not take the wife’s lack of a future inheritance into account as a section 75(2) factor in her favour. The structure of the judgment indicates clearly that Her Honour had regard to this matter in considering whether the overall outcome could be considered “just and equitable”. At that stage, her Honour did not vary her assessments of contribution and section 75(2) factors in the wife’s favour. To the contrary, she noted that her proposed orders would give the wife less of the assets than the sum of her contributions and section 75(2) assessments.
As to the argument that the trial judge’s reference to the unavailability to the wife of an inheritance from parents in the future implied reliance on the prospect of such an inheritance by the husband, there is no indication that any such inference was drawn by her Honour.
At trial it was conceded on behalf of the husband that the section 75(2) factors favoured the wife. It was submitted that a proper adjustment was 7.5%. The trial judge found that there should be an adjustment in favour of the wife of 15%.
The trial judge took into account the husband’s longer future working life and superior income earning capacity. In comparison, the wife was twelve years older than the husband and had been out of the workforce since 1996, leaving aside limited casual employment. The husband acknowledged in his affidavit that he has a “higher earning capacity” than the wife.
Her Honour also had regard to the fact that the husband had the care of the parties’ son, who would be eighteen years old shortly after the conclusion of the trial. The wife, on the other hand, had the care of the two girls who were twelve and eight years old.
Another matter which her Honour took into account was that the assets retained by the wife would “include the vast majority of the superannuation which the parties accrued”. She would keep superannuation of $58,845, in comparison to the husband’s $4,205.
It was submitted that the trial judge failed to take into account the fact that the husband has no contract of employment. It was said that his work situation was thus “volatile”. The husband’s affidavit evidence was that he began to work as a fruit and vegetable delivery driver in 1998. Until 2005 he worked six days per week and, from that point, seven days per week. The husband corrected this evidence slightly in cross-examination but her Honour was left with the reality of a history of about eight years of lucrative and stable employment.
Her Honour contrasted the husband’s history of reliable and well paid employment to the situation of the wife. She found that the wife’s age and length of time out of the workforce made it unlikely that she would ever match the husband’s earning capacity. This conclusion seems to us to be logical and well justified on the evidence.
However, in our opinion there was an error in the trial judge’s treatment of the section 75(2) factors. Her Honour failed to consider the effect of the findings as to contribution on the respective positions of the parties, before proceeding to determine whether any adjustment was warranted pursuant to section 75(2). The effect of the 30 per cent differential established on the basis of contribution was approximately $220,000. This required consideration pursuant to section 75(2) but was not addressed by her Honour. The appeal must therefore be allowed in respect of the finding that the wife receive an adjustment of 15% on account of section 75(2) factors.
Ground 7
In this ground the appellant contends that the trial judge made a mathematical error in her calculation of the husband’s share of the net proceeds of sale of the former matrimonial home. This submission is dependent on the proposition that her Honour intended that the husband receive 25% of the net pool of property.
Paragraph 42 of the judgment indicates clearly that her Honour decided to make orders as sought by the wife in relation to the percentage division of the net proceeds of sale of the former matrimonial home. In an Amended Response filed on 10 November 2005 the wife sought the sale of the former matrimonial home and a division of the net proceeds as to 80% to herself and 20% to the husband. She also sought consequential orders and declarations, dealing with the distribution of items of personal property.
There is no indication in the judgment that the trial judge intended to award the husband 25% of the net pool of property. Her Honour clearly stated her intention to make orders as sought by the wife, to the effect that she receive 80% of the net sale proceeds of the former matrimonial home. Her Honour expressed the view that an award of 80% of the total net pool to the wife would fall within a proper range of outcomes. Her Honour then calculated that orders to the effect that the wife receive 80% of the net proceeds of sale of the former matrimonial home would give her around 75% of the value of the net pool. The more precise calculation is, in fact, 76% to the wife and 24% to the husband on this basis.
The trial judge’s reference to a 75%/25% division was thus a form of cross-checking exercise and clearly not an expression of any intention that the husband should receive 25% of the total net pool. Accordingly, this ground of appeal must fail.
CONCLUSION ON THE PROPERTY APPEAL
The result is that, with regard to property settlement, the appeal must succeed on the issue of adjustment for section 75(2) factors.
Re-Exercise of Discretion
For reasons set out below, we are of the view that the appeal cannot succeed in respect of the parenting issues. We thus consider that it is appropriate that we should re-exercise the discretion, rather than remit the proceedings for retrial. In coming to this view, we have taken into account the financial positions of the parties and the limited nature of the issues requiring redetermination.
As seen, it is clear that the section 75(2) factors favoured the wife, as was properly conceded at trial on behalf of the husband. The trial Judge’s findings as to contribution mean that the net pool of property was divided 65% to the wife and 35% to the husband. At this point, therefore, there was a differential of 30% between the parties. In dollar terms, the wife’s share of the net pool of property already exceeded that of the husband by $219,371 out of a total of $731,238.
Having regard to the respective financial positions of the parties and giving proper weight to the section 75(2) factors on each side, we would regard an adjustment of 10% in favour of the wife as proper.
The result is that we conclude that the net pool of property should be divided as to 75% to the wife and 25% to the husband. A recalculation to achieve this outcome produces the result that the net proceeds of sale of the former matrimonial home should be divided 78.7% to the wife and 21.3% to the husband. These calculations are as follows:
Assets and Superannuation
1.
Former matrimonial home (J)
$850,000
2.
Truck (H)
$40,000
3.
Motor cycle (H)
$10,000
4.
Motor vehicle (W)
$10,000
5.
St George Bank account (H)
$4,000
6.
St George Bank account (W)
$430
7.
Telstra shares (J)
$3,890
8.
Contents (J)
$5,000
9.
Superannuation (W)
$58,845
10.
Superannuation (H)
$4,205
TOTAL:
$986,370
Liabilities
1.
St George Bank mortgage
$236,132
2.
Income Tax (H)
$3,000
3.
Income Tax (W)
$6,000
Sub-Total:
$250,132
The net pool of property thus amounts to $736,238, with the household contents of $5,000 to be divided in specie. The net assets available for distribution thus have a value of $731,238, of which 75% equals $548,428 and 25% equals $182,810.
The wife will retain:
1.
Motor vehicle
$10,000
2.
St George Bank account
$430
3.
Superannuation
$58,845
4.
50% sale Telstra shares
$1,945
$71,220
less
$6,000
$65,220
and requires an additional $483,208 which is 78.7% of the net proceeds of sale of the former matrimonial home.
The husband will retain:
1.
Truck
$40,000
2.
Motor cycle
$10,000
3.
St George Bank account
$4,000
4.
Superannuation
$4,205
5.
50% sale Telstra shares
$1,945
$60,150
less
$8,000
$52,850
He thus requires $130,660 from the sale of the former matrimonial home, which is approximately 21.3% of the net proceeds.
THE APPEAL AS TO PARENTING ISSUES
Ground 8
It was submitted that her Honour formed the following adverse opinions of the husband, in the absence of any supporting evidence:
·he had an alcohol problem
·he had an anger management problem
·he was depressed and self-medicated with alcohol
·his courtroom demeanour was “interesting”.
The substance of this complaint is that the trial judge did not allow the husband’s counsel an opportunity to respond to these observations during submissions. It was alleged that these views coloured her Honour’s determination of the parenting issues, although there is no reference to these matters in the reasons for judgment.
It is readily apparent from the transcript that the trial judge raised her adverse opinions of the husband squarely with his counsel during submissions. There was a lengthy exchange, during which counsel was afforded a full opportunity to respond to the views expressed by her Honour.
After an exchange about the husband’s alcohol consumption and driving after drinking, her Honour said to his counsel:
“In your submission he is correct in thinking he has no alcohol problems. It that the submission you are making?”
Counsel responded:
“Not at all Your Honour. I am not making a submission…..”
A little later counsel said:
“It may be my misinterpretation of Your Honour’s definition of an alcohol problem.”
Her Honour replied:
“When your life goes wrong because of things that happen when you drink, you have an alcohol problem.”
Counsel replied:
“I accept that, Your Honour.”
There was compelling evidence before the trial judge of the husband’s irresponsible and aggressive behaviour while under the influence of alcohol, to which we will refer below. In our view, there was sufficient evidence upon which her Honour could conclude that the husband had problems with alcohol abuse and anger management. In this regard, we are mindful particularly of the events of the night before the parties’ final separation.
Before her Honour the husband agreed to undertake anger management counselling. This concession seems to be at odds with the complaint that her Honour improperly imputed to him an anger management problem.
The trial judge put directly to counsel her opinion that the husband may be depressed and self-medicating with alcohol. Counsel replied: “that may be so”.
Her Honour raised squarely with counsel her observations of the husband’s courtroom demeanour. For example, her Honour said during submissions:
“I have seen the way he has been sitting behind you and doing head shaking and looking indignant at things that are being said” and
“It is not all that often that someone who has admitted that they use their clenched fist to punch someone in the head behaves in the way that your client has in court.”
Counsel replied:
“But, Your Honour, he – and what you say is correct, he has admitted to that, but that does not mean that he needs to admit, or has to admit, to everything else the wife has said.”
Her Honour then said:
“He didn’t admit it very much in his affidavit, did he? It was when the police records came here that he said ‘yes that is right’.”
A reading of the transcript makes it clear that counsel was given a full opportunity to respond to all of the trial judge’s adverse comments about the husband during submissions. This complaint really seems to be that her Honour did not resile from the opinions which she expressed during the exchanges with counsel.
In any event, as we indicated, these matters did not appear specifically in her Honour’s reasons. Therefore, not only was there no denial of procedural fairness by virtue of the exchanges discussed, but the more so because no finding on any of the particular issues was relied upon to support the orders appealed.
Ground 9
The Family Consultant in her report recommended that the child D continue to live with his father and the child L with her mother, with the child S spending alternate weeks with each parent. She also recommended that the wife “make every possible effort to remain in the [geographical area at S]” rather than move to the Central Coast.
The complaint raised by this ground is that the trial judge gave no reasons for departing from these recommendations. The short answer to this challenge is that her Honour rejected the recommendations for week-about shared parenting of the child S for cogent reasons, which appear in paragraphs 51 to 55 of the judgment. In our opinion there was an abundance of evidence to support these findings, which we will examine below in relation to Ground 12.
As well, the Family Consultant resiled substantially from the recommendations set out in her report during cross-examination. She arrived at her recommendation for week-about shared care without having observed the child S with either of her parents. She explained that she decided not to carry out these observations because she was concerned about the distress which the child S would be likely to experience, given the level of hostility between her parents. The Family Consultant refused to concede that her report was flawed in any way, despite this significant limitation on the information available to her.
It was put to the Family Consultant that the recommendation for a week-about shared care arrangement would have to be reconsidered, if the evidence established that there was a pattern of violence perpetrated by the husband against the wife. She agreed and also accepted that, in these circumstances, there would be real concerns about the husband’s capacity to care for an 8 year old child on a week-about basis. Her Honour found that the husband had subjected the wife to violence. In our view, there was an abundance of evidence to support this finding.
The Family Consultant agreed that she did not pursue the issue of domestic violence with the husband. Although she said that she “accepted what the mother said about these incidents” it was apparent from subsequent cross-examination that she had very limited knowledge of the extent of the husband’s alleged violence.
The Family Consultant conceded that she could not predict the effect on the child S of the introduction of a week-about arrangement. She maintained that the child’s disturbed state may have been due to her “not being happy with the current situation”. She then conceded that the child S’s distress could equally have been due to concern at the prospect of seven consecutive days and nights in the care of her father.
The recommendation against the wife’s proposed relocation to the Central Coast seemed to rest on the child D’s wish to stay at his present school and then attend University in Sydney. From that premise, the Family Consultant concluded that the wife must remain in the [geographical area at S] area so that the three children had the maximum opportunity to spend time together.
The trial judge set out cogent reasons in favour of the proposed relocation. Her Honour had regard to the opportunity for the wife to re-establish a “peaceful and safe” environment for herself and the girls, after their experiences of the husband’s violence. Her Honour also referred to “the simple pleasures of the seaside location” where the wife proposed to live, and to the security for her of being able to purchase her own accommodation. The advantages to the children of being able to keep their pets also weighed in the trial judge’s favourable consideration of the proposed relocation
The limitations in the assessment process carried out by the Family Consultant were fully ventilated in cross-examination. The trial judge heard the concessions made by the Family Consultant in relation to the recommendations set out in the report. Obviously her Honour had regard to the whole of the evidence of the Family Consultant, and not only to the contents of her report, in determining the weight to be given to her recommendations.
Ground 10
This ground is a complaint that the trial judge “discounted” the wishes of the child S in her consideration of the wife’s proposal to relocate to the Central Coast. The “wishes” in question were the views expressed by the child S to the author of the Family Report.
The Family Consultant gave this evidence of the child S’s wishes in her report:
“[The child S] was very clear that she wanted to have one week with her father and [the child D] and the next week with her mother and [the child L]. The [child S] thought this would be fair and that this way she would also have more time with her father than she has now.”
Her assessment of these wishes was that:
“[The child S’s] expressed preferences sounded spontaneous and were stated in her own words. She did not express any fear of her father and to the contrary, she seemed to be keen to continue her relationship with him.”
In cross-examination the Family Consultant was asked about the child S’s likely understanding of the reality for her of a week-about arrangement. She thought that the child S would have some concept of an equal sharing of time with her parents but that she would “perhaps not” understand what it would be like to be away from her mother for seven consecutive days. She then conceded that it was relevant that the child S had never been away from her mother, in the care of her father, even for two consecutive nights.
It was put to the Family Consultant in cross-examination that there was nothing to suggest that the child S was under any pressure by either parent to state a preference in regard to her living arrangements. She answered that she could not say what pressure might have been brought to bear on the child S. She reiterated that the child S’s stated wish to spend equal time with each parent appeared to be spontaneous and said “I could tell that she had thought about it”. She said, further, that it was likely that the child S would agree with the views of her brother the child D when with him and her sister the child L when she was with her. The Family Consultant said that “The child S tries very hard to please everyone and has worked out her dilemma by electing equal time with each parent”.
The trial judge referred to the evidence in the Family Report concerning the child S’s stated wishes. Her Honour noted that the Family Consultant rejected the notion that the child S had been pressured by the husband, as alleged by the wife. The trial judge had regard to the child S’s “keenness” and “being very clear”, as described by the Consultant, and to the husband’s history of involving the children in the parental dispute. These matters left her Honour with reservations that the child S’s wishes may have been influenced by pressure from her father.
The trial judge then concluded that a week-about arrangement could not be sustained on all of the evidence, “particularly having regard to the violence and denigration directed at the wife by the husband”. It is thus apparent that her Honour declined to order a week-about arrangement, despite the child S’s stated wishes, for cogent reasons. Her Honour plainly concluded that the child’s expressed wishes must yield to stronger considerations pertinent to her best interests. In our view, this evaluation of the child S’s stated wishes was necessary and properly undertaken by the trial judge.
Ground 11
It was clear that the trial judge did consider the impact of the wife’s proposed move to the Central Coast on the child S’s opportunities to spend time with her father. She noted that people regularly commute from the Central Coast to Sydney to go to work. Her Honour also noted that the husband is a professional driver with reliable vehicles at his disposal. As well, his employment commitments leave him with substantial free time. We think her Honour’s conclusions were well open to her.
Ground 12
This ground, in substance, is a complaint that there was no evidence to support her Honour’s finding that shared parenting was not possible because of communication problems and different parenting styles between the parties. The short answer to this submission is that the trial judge gave strong reasons for rejecting the husband’s proposal for shared parenting, which went well beyond the difficulties of communication and parenting styles. In particular, her Honour found that the husband had directed violence and denigration at the wife and involved the children in the adult dispute.
There was graphic evidence of the husband’s violence against the wife, particularly in relation to an incident on the night preceding the separation. The husband gave an account of these events only in cross-examination, when confronted with a police report (exhibit C). In summary, he admitted that the drove home from a golf club, while under the influence of alcohol, and went into a bedroom where the wife was asleep with the child L. He dragged the wife out of bed and punched her about the head with a clenched fist. He then told the child D to ring the police because he had “lost the plot”, at which stage the child L was crying and screaming.
This report indicated that the husband tried to prevent the police officers from entering the premises and told them that he had “weapons waiting”. When he did open the door the police observed an axe, a metal chain, a shifter and a crowbar near the front doorway. The report indicated that the husband attempted to blame the wife for the incident, although his account was incoherent due to his state of intoxication.
The wife’s evidence was that the husband dragged her from the bedroom down the stairs and pushed her out the front door of the house. She was terrified and hid in a neighbour’s front yard for approximately one hour. She returned home later, when she felt safe, and the parties separated that day. This evidence was not successfully challenged by the husband.
The wife made allegations of earlier episodes of violence perpetrated against her by the husband. She said that in 2002 she and the girls were in a bubble bath when the husband arrived home, smelling of alcohol. He entered the bathroom and pulled her hair, then hauled her out of the tub in front of the children. The husband said only that he had no recollection of any such events.
The wife alleged that in February 2003 the husband came home, smelling of alcohol, after she and the children had eaten dinner. He became angry and began to throw objects, including tools, around in the garage. She and the three children went to a neighbour’s house. Later, they went to a hotel where they stayed for the night. The husband admitted that he became upset when he tripped over a toolbox in the garage. He also conceded that the wife and the children spent that night at a hotel.
The wife alleged that the husband frequently called her “a fat pig” during arguments. The husband admitted that he used these words to refer to her.
In our opinion there was sufficient evidence to justify her Honour’s finding of poor communication between the parties. For example, in 2005 the child D was charged with the sexual assault of a teenage girl. The husband was made fully aware of the details but did not share this information with the wife.
In another example in October 2005, the wife told the husband that the child S was sick and could not go to his house that night. During a phone call the husband told the wife that he did not believe her. Later that afternoon, he sent the child D to her home to check on the child S’s condition. The wife’s unchallenged evidence was that the child S received medical treatment during the course of the next two days.
In cross-examination the husband admitted that communication between himself and the wife is very poor at present. He was asked:
“And even today, sir, in March 2006 you are sitting in this court – and I am not criticising you for it – but you want the court to know that your communication with [Mrs Willis] really has very, very big difficulties?”
He answered:
“I hope it gets better but it is very difficult at the moment.”
As to the challenge to what the trial judge said about parenting styles, her Honour said simply:
“In another case the court comments on the lack of commonality in the parenting styles of the parties being a counter-indication to shared parenting. There must be some degree of consistency for the children in the rules in the different households. These would be very different households for [the child S] to move between. Her brother is in a very different peer group, nearly leaving school and hoping to do well enough in the Higher School Certificate to study law. He is unlikely to be spending much time with his nine year old sister. The husband’s mother has also been significantly involved in the domestic arrangements for the husband since separation (despite his parents saying in evidence that the father had done everything). This may well continue. Unfortunately the paternal grandmother did not seem concerned at the violent attack on the mother when questioned about it. [The child S] would also be separated from her sister, her closest sibling for one week at a time.” (footnotes omitted)
As can be seen, the trial judge did not make a general finding about differences in parenting styles, but merely some specific findings which were not challenged.
In our view there is no substance to any of the grounds of appeal which concern parenting issues. We consider that there was more than sufficient evidence to warrant the trial judge’s rejection of the husband’s proposal for a week-about shared care arrangement for the child S.
COSTS OF THE APPEAL
Having regard to the mixed results of the appeal, the comparative financial circumstances of the parties and the matters identified in section 117(2A) of the Family Law Act, we consider that there ought to be no order as to costs.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 9 August 2007
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