WM and BEM

[2006] FamCA 1051

[2006] FamCA 1051  JFWMBEM

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE

Appeal No. SA 21 of 2005
File No. MLF 2280 of 1997

IN THE MATTER OF:

WM

Appellant/Wife

- and -

BEM

Respondent/Husband

REASONS FOR JUDGMENT

BEFORE:  Holden, Coleman & Mushin JJ
DATE OF HEARING:         30^th day of January 2006
DATE OF JUDGMENT:     19^th day of October 2006

APPEARANCES:                 The appellant wife appeared on her own behalf.

Mr Weil of Counsel, (instructed by Marshalls & Dent Solicitors, Level 13, 459 Little Collins Street, Melbourne VIC  3000) appeared on behalf of the respondent husband.

Name of Appeal  WM & BEM
Appeal Number  SA 21/2005
Date of Appeal hearing  30^th day of January 2006
Date of Judgment  19^th day of October 2006
Coram  Holden, Coleman, Mushin JJ

Catchwords:   APPEAL – Application for leave to appeal/appeal trial Judge’s dismissal of application for spousal maintenance and child support. No finding of fact of trial Judge successfully challenged - State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 applied. No error of principle demonstrated. No error in exercise of discretion demonstrated.

Application for leave to appeal/appeal dismissed
Costs reserved

1. By Notice of Appeal filed 28 April 2005,    the wife sought leave to appeal against orders made by Joske J on 1 April 2005.  The wife sought that paragraphs 1, 2 and 3(b) of the trial Judge’s orders be set aside and that orders be made in lieu thereof in the terms of her Notice of Appeal which provided:

   1.   That Paragraphs 1, 2 and 3(b) of the Orders of the Honourable Justice Joske made 1 April 2005 be set aside.

   2.   That the Husband pay for the maintenance of the Wife:

   a.The sum of $400 per week from 24 March 2000 to 17 March 2004;

   b.The sum of $550 per week from 17 August 2004.

   3.   That the arrears created by Paragraphs 2 and 5 herein be payable as a lump sum by the Husband to the Wife within 60 days of the date of these Orders.

   4.   That all further payments of maintenance by the Husband to the Wife pursuant to these Orders shall be by way of direct debit to the Wife’s bank account held with the M Credit Union by 4:00pm each Tuesday.

   5.   That the arrears created by Paragraph 2 of these Orders shall have deducted from them all payments of spouse maintenance paid by the Husband pursuant to the interim Orders of the Honourable Justice Morgan made 10 March 2004.

   6.   That the Husband pay the Wife’s costs of and incidental to the Appeal.

   7.   Such further or other Order or Orders as the Full Court deems appropriate. 

2. The husband resisted the wife’s application and sought to maintain the trial Judge’s orders.

3. Orders 1, 2 and 3(b) of the trial Judge’s orders provided:

   1.   That the wife’s application for spousal maintenance be dismissed.

   2.   That the orders of Morgan J. made 10 March 2004 be discharged inclusive of all arrears.

   3.   That the Administrative Assessment of Child Support payable by the husband in these proceedings to the wife commencing 12 February 2004 be varied and departed from as follows:

   …

   (b)in assessing arrears under this Order the husband shall be credited with all payments made to the wife pursuant to the Order of Morgan J. made 10 March 2004.

4. By agreement between the parties, the Court made directions on 30 January 2006 that the appeal proceed by way of written submissions.  The Court has subsequently received written submissions from counsel for each of the parties.

THE TRIAL JUDGE’S JUDGMENT

1. The hearing before Joske J occupied seven hearing days.  His Honour provided written reasons for his decision on 1 April 2005.

2. By way of introduction to his judgment, the trial Judge referred to consent orders entered into by the parties on 24 February 1999 pursuant to which the wife, prior to 1 August 1999, made application for spousal maintenance.  Such application formed part of the proceedings determined by his Honour.  Other applications were identified by the trial Judge as Departure Applications in respect of “all prior child support assessments from 24 August 1999 to 11 February 2004”, “[e]nforcement of certain of the Orders of 24 February 1999, and 28 February 1997”, and “[v]ariation of the 24 February 1999 orders insofar as they relate to the children of the marriage”.  The last mentioned topic assumes no significance for present purposes.

3. Under the heading “Background”, the trial Judge recorded the dates of birth of the parties and their two children, both of whom were born in 1991. The husband was 52 and the wife was 64 at the date of the trial Judge’s judgment.  The parties had been separated since December 1996.

4. Reference was made to the orders for settlement of property made by consent on 24 February 1999, pursuant to which the husband was to pay the wife $35,000.00 and transfer to her his interest in the parties’ former matrimonial home in Victoria, free of encumbrance.  For her part the wife was required to resign any office holdings she may have had in a named corporation and transfer to the husband or his nominee any entitlements she may have had with respect to that corporation.

5. The trial Judge referred to the order for interim spousal maintenance made by Morgan J on 10 March 2004 in the sum of $400.00 per week.

10.   There having been some apparent “confusion as to the precise applications that were before the Court”, the trial Judge had requested counsel for the wife to produce a document which became “Court’s Exhibit X”, which set out the orders being sought by the wife.

11.  His Honour recorded that “[c]ounsel for both parties have agreed that this document should be regarded as being the repository of all of the issues that the wife wishes to have determined by the Court” (Judgment, paragraph 8).

12.  The relevant portions of “Court’s Exhibit X” were identified.  They included a declaration that the income of the husband “available to pay both spousal maintenance and child support for the period from 24^th August 1999 until this date is $117,000 per annum”, the wife’s claim for maintenance for herself in “the sum of $400 per week from 24^th March 2000 to 17^th March 2004”, and in “the sum of $550 per week from 17^th August 2004”, the wife’s claim that arrears created by the granting of the relief sought by the wife by way of spousal maintenance “be payable as a lump sum by the husband to the wife within 60 days” of the date of the trial Judge’s order.

13.  By way of child support the wife sought that there be a Departure Order in respect of all child support assessments from 24 August 1999 to 11 February 2004 “by fixing the husband’s child support income amount at $117,000 per annum for each assessment”.  The orders she sought provided that the balance of child support payable by the husband be paid as a lump sum within 60 days of the date of the Court’s orders, subject to specified deductions, namely, all previous payments of child support in respect of the period, all school fees paid to two nominated schools during the period and one half of all health premiums paid to a nominated health fund in respect of the wife’s family health insurance cover during the period..

14.  A variety of orders in relation to the children of the marriage were sought.  As no part of the application for leave to appeal relates to the orders made by the trial Judge in relation to those claims, it is unnecessary to refer to them.  That part of the wife’s claim which sought that the husband forthwith pay to her the sum of $2,850.59 in respect of orders made on 8 April 1997 and 24 February 1999 remains relevant.

15.  The issue of “Spousal Maintenance” was first addressed by the trial Judge who referred to the submissions made by counsel for each party in that regard.  Although it is clear that Dr Ingleby represented the husband, in places in the judgment Dr Ingleby is referred to as the wife’s counsel.  There is ultimately no room for confusion as to which counsel submitted what on behalf of which party.

16.  His Honour recorded the submission of counsel for the wife that the husband’s capacity gave rise to a weekly “total surplus of either $1,148.00 or $1,293.00”.  On that basis it was thus submitted that the husband had the capacity to pay $550.00 per week by way of spousal maintenance.

17.  Reference was made to the submissions of counsel for the husband in opposition to such proposition, including the “threshold argument” advanced on the husband’s behalf, it being submitted that the wife had “failed to establish that she is unable to adequately support herself” (Judgment, paragraph 13).  The competing submissions and the evidence, particularly of the wife, upon which her counsel relied in support of her claim, and counsel for the husband relied in opposition to that claim, were referred to by the trial Judge.

18.  The trial Judge referred to the wife’s evidence in chief in relation to her earning capacity and expenses (paragraph 22) and said of such evidence:

24. The wife’s position in relation to this matter did not improve during cross examination by Dr. Ingleby.  I disagree with Mr. Robinson’s submission that it was aggressive cross examination although it had its robust moments.  As was, to an extent, conceded by Mr. Robinson, the wife was not a credible witness in relation to expenses in respect of herself and the children, and this includes her expenses connected with her employment ...

19.  For reasons which he gave (paragraph 25) the trial Judge did not accept that a more favourable view should be taken of the wife’s evidence than he had indicated in the passage quoted above.

20.   His Honour found that:

26.  In respect to the wife’s employment with S & L I am satisfied upon the evidence that the wife deliberately chose not to disclose her employment to the Court, as she believed that to do so would prejudice her case for spousal maintenance.  However, instead of immediately admitting her error, she chose to tell further untruths which has led me to take a quite adverse view of her truthfulness and reliability as a witness.  In saying what I have in respect of the wife, it should not be thought that the husband is without fault in the presentation of his case.  Such matters, however, are not relevant to the question of the wife’s capacity to support herself, which is presently under consideration.

21.  He thus concluded that the wife was:

27.  … quite capable of undertaking substantial part time work as an employed estate agent.  The wife enjoys good health and I do not regard her age, bearing in mind the occupation under consideration, as constituting a barrier.  She has worked throughout the marriage in a full time capacity as a real estate agent.  She did, of course, have home help and appropriate arrangements were made for the care of the children during the day.  The children have had problems with their health in the past, but I am satisfied upon the evidence that this has greatly improved and should not inhibit in any way the wife obtaining part time employment.   In addition, to obtain such work in the circumstances would, on the surface at least, appear to fulfil the wish expressed by the wife in paragraph 33 of her affidavit sworn 5 March 2004, in which she attempts to explain her non disclosure of her present employment.

22.  Reference was made to the submissions by counsel for the wife in reliance upon her “regular attempts to find employment after separation”, which attempts had been submitted to have been “unsuccessful”.

23.  The trial Judge referred to the matters asserted in that regard but was not satisfied that the wife had:

31. … established that she is unable to adequately support herself, by any oral or written evidence that is acceptable to me.  It is not incumbent upon the husband to establish the absence of work as is suggested by Mr. Robinson [wife’s counsel].  For these reasons, the wife’s application for spousal maintenance will be dismissed.

24.  The issue of “The Departure Orders” was then addressed.  The trial Judge recorded the husband’s position as being that he was “prepared to pay child support upon the basis that he is earning the child support cap” (Judgment, paragraph 32).

25.  Reference was made to the “most recent” administrative assessment of child support which provided that “from 12 February 2004 to 9 March 2004 the rate of child support payable be increased to $555.00 per week”, and that “from 10 March 2004 to 31 December 2004 the rate of child support payable be increased to $350.00 per week” (Judgment, paragraph 33).

26.  His Honour recorded that “[t]he reduction in child support stems from the interim order for maintenance in March 2004 made by Morgan J” (paragraph 34).

27.  He then turned to considering whether the husband’s obligation to pay child support should be assessed by “fixing the husband’s child support income amount at $117,000.00 per annum for each assessment” (paragraph 35).

28.  Reference was then made to the most recent child support assessment of 27 May 2004.  The trial Judge recorded that he had not “been provided with material that accurately sets out each administrative assessment of child support that has been made between 24 August 1999 to 11 February 2004” which he found to “create problems” which he would “subsequently endeavour to deal with” (paragraph 38).

29.  The decision of the Full Court in Hides v Hatton (1997) FLC 92-759 was referred to by the trial Judge who cited from the judgment the following passage at 84,354:

We would accept that in determining whether under s 117(4) it is just and equitable to the parties and child concerned to make a particular order, or under s 117(5) otherwise proper to make that order, the Court can have regard to the impact on the payer or the payee of the making of a departure order setting liability for a past period and thus immediately creating the burden of arrears for the payer or of a credit for the payee (the Court being able under s 117(9) to have regard to matters beyond those specified in ss 117(4) and (5)). These may also be matters which could be addressed under s 117(2)(c) when considering whether a ground for departure exists in a particular case.

30.  The trial Judge first considered the “administrative assessment of 12 February”, with reference to a “three steps” approach.  He noted the first step, that a ground of departure within s 117(2) of the legislation, was “conceded by the husband, who is prepared to pay the assessment cap”. Such concession enabled his Honour to find the assertion in ground 6, that “the income earning capacity, property and financial resources of the husband are not properly reflected in the assessment”, to be made out. 

31.  His Honour then considered the wife’s claim that ground 6 had been established by reason of “special needs” of the children. 

32.  The trial Judge referred to the particular matters relied upon by the wife as they were set out in paragraph 14 of “Court’s Exhibit X”.  The paragraph referred to a wide range of clinical, therapeutic, educational, sporting and extra-curricular activities.  He recorded that “[t]he case for special needs has only been faintly argued by Mr. Robinson” on behalf of the wife, concluding that:

48.  … What his argument really amounts to is that because the children have required specialist medical treatment and educational tutoring in the past, there may be a call for this in the future.  There is no persuasive evidence, however, to support this.  In any event, assuming the past needs to be “special” within the meaning of the ground of departure, the needs constituting a ground for departure must be current and not needs that may possibly arise in the future.

33.  The trial Judge noted that “[i]n addition, school fees at a State School and ancillary expenses connected thereto which fall within the description of ‘special circumstances’” (paragraph 49) and referred to the decision of the Full Court in Lightfoot v Hampson (1996) FLC 92-663, at 82,852.

34.  For the reasons he had thus identified the trial Judge was not satisfied that ground 6 had been established. 

35.  His Honour then considered “Step 2”, which was whether:

… the making of an order in respect of ground 8 which has been established, is the making of an order that the husband pay the assessment cap from 12 February 2004 to 31 December 2005 “just and equitable” within the meaning of s.117(4) of the Child Support (Assessment) Act?

Such question was answered in the affirmative, his Honour concluding that it was:

… just and equitable, provided that when calculating arrears the husband is credited with all past payments of child support in relation to the period and all payments of spousal maintenance made pursuant to the aforesaid order of Morgan J.

36.  His Honour was satisfied in “Step 3” that it was “otherwise proper to make the order referred to in Step 2 within the meaning of s.117(5)” of the legislation. 

37.  The trial Judge then directed his attention to “the departure orders sought in relation to assessments made prior to 11 February 2004 to 24 August 1999” (paragraph 51).  He was unable to “identify each individual assessment” but believed it nevertheless “possible to work within the spirit of Hides v. Hatton” and accordingly approached “each and every assessment made between the dates” to which he had referred pursuant to the “three steps” therein described by the Full Court.

38.  The evidence satisfied his Honour that “one or more grounds of departure pursuant to s. 117(2)” had “been established” for the period 11 February 2004 and 24 August 1999. 

39.  Step 2 was formulated as whether it was:

… just and equitable within the meaning of s.117(4) to make orders that the husband pay the assessments relating to the period referred to, calculated at the cap, subject to his receiving credits …

for a series of expenses, including previous payments of child support, school fees, medical, dental and like expenses, health insurance premiums, ballet, music and extra tuition lessons’ fees.  His Honour had not:

… included swimming and horse riding as credits in respect of retrospective departure assessments, as I do not consider them to be appropriate deductions as they are more in the nature of contact activities.

40.  In relation to Step 2, his Honour was:

52. … satisfied that such an order is just and equitable in relation to the children and their carer, the wife.  The husband might claim hardship in being placed in a position of raising a substantial sum of money within 90 days.  However, as this situation has arisen due to the fact that he has, knowingly in my view, given incorrect financial information in respect of his income and financial resources to the child support authorities, I conclude that it is just and equitable within the meaning of the section with which we are dealing.

41.  He recorded that “[i]t is plain that the answer” to the question raised in Step 3 “must be yes” (paragraph 52).

42.  The trial Judge then considered the “objections raised by Dr. Ingleby to [the making of] retrospective Departure Orders” and s 117(1) of the legislation (paragraph 53). 

43. He concluded that the expression “just and equitable” in this section should be given its “normal wide and generous meaning, as its meaning is not restricted by the text of the section as is the case, for example, with s.117(4)” (paragraph 54).

44.  Reference was made to the submissions on behalf of the husband criticising the wife for “in effect, sitting on her rights and not making an application for a departure order for many years.” This conduct was submitted by Dr. Ingleby to have been “exacerbated” by passages in an affidavit sworn by the wife in December 2003, in which she acknowledged that she only sought spousal maintenance in her application, and not child support (paragraph 55).

45.  The trial Judge found there to be “some merit” in the submission that:

56. … the wife should not gain too much of a forensic advantage in the circumstances, where her conduct may well have lulled the husband into a sense of false security, and in particular he did not keep records or retain documents.

He accordingly accepted “a degree of pragmatism in the manner in which he has estimated various heads of extra child support payment such as ballet”, but did not regard the wife’s conduct “as being of sufficient gravity for me to deem it to be just and equitable to dismiss her applications”, reiterating that “it is the husband who is responsible for having given incorrect information to the child support authority, which gave rise to incorrect assessments” (paragraph 56).

46.  His Honour thus concluded that “there should be a Departure Order in respect of all assessments operative from 24 August 1999 onwards up until 11 February 2004” and that “[t]he husband then should be reassessed on the cap which was applicable at the time of each assessment”, which would necessarily give rise to arrears. These arrears were to be assessed after deducting a number of matters which his Honour specified, including “all child support paid” and payments “in respect of which I have accepted his [the husband’s] evidence” being school fees of $40,900.61, medical expenses $8,892.15, ballet $4,800.00, music $6,225.00 and tuition $5,120.00 (paragraph 57).

47.  The trial Judge then considered the wife’s claim (paragraph 13 of Court’s Exhibit X) to be paid $2,850.59 “in respect of monies outstanding”, pursuant to orders made on 8 April 1997 and 24 February 1999.

48.  The sum of $2,850.59 was found to represent “the total of three separate claims”.  The first claim was for $750.00 which “represents one half of an account in respect of a valuation … of the parties’ estate agency business for the purpose of the property claim”.  His Honour was “satisfied on the evidence, that the wife did not commission the report on her behalf and, accordingly, is not responsible for any part of the cost of the report.” Further, his Honour was “prepared to go so far as saying it would have been astonishing had she commissioned such a joint report, knowing the circumstances between the parties” (paragraph 59).  The husband was thus found to have “no right to withhold (inter alia) the sum of $750.00 owing to the wife pursuant to an order” made on 24 February 1999.

49.  The “second portion of the claim” was found by the trial Judge to be the sum of $1,184.72 and the obligation of the husband to make “all lease payments in respect of the Mercedes Benz motor vehicle being driven by the wife”, pursuant to orders of a Judicial Registrar of 24 February 1997 and 24 February1999.  His Honour found that the husband had, “despite numerous requests, failed to pay to the wife the sum of $1,184.72”, which sum he was satisfied that the wife was owed (paragraph 60).

50.  The third “portion” of the wife’s claim related to a mobile telephone account of the wife in the sum of $453.92.  The husband was obliged, by virtue of orders of 8 April 1997, to make the payments which gave rise to the sum, with penalties and other costs arising from the husband’s default, to pay $915.87 which the wife had “been unable to recover” from the husband. His Honour was thus satisfied “on the whole of the evidence that the money is owed to the wife by the husband, as claimed by her”.

51.  For the reasons he thus gave, the trial Judge made the orders which give rise to the present appeal.

52.  His Honour then proceeded to deal with matters relating to the children which do not assume significance. 

THE GROUNDS OF APPEAL

53.  When the Court made directions for written submissions the wife was unrepresented.  The submissions lodged on her behalf were prepared by counsel.  It is convenient to deal with the submissions in the sequence in which they emerge from the written submissions on behalf of the parties. 

54.  In support of the challenge to the trial Judge’s decision with respect to spousal maintenance, counsel for the wife referred the Court to the decision in Bevan v Bevan (1995) FLC 92-600 and the “four stage process” which it was submitted that “the Court should consider for the award of spousal maintenance”.

55.  Reference was made to the trial Judge’s finding that the wife “had failed to establish cause for a threshold finding under s72”, and to the trial Judge’s conclusion that:

27. … the wife is quite capable of undertaking substantial part time work as an employed estate agent.  The wife enjoys good health and I do not regard her age, bearing in mind the occupation under consideration, as constituting a barrier.  She has worked throughout the marriage in a full time capacity as a real estate agent.  She did, of course, have home help and appropriate arrangements were made for the care of the children during the day.  The children have had problems with their health in the past, but I am satisfied upon the evidence that this has greatly improved and should not inhibit in any way the wife obtaining part time employment.

56.  It was submitted, accurately, that having concluded as he did with respect to the threshold issue, the trial Judge did not “consider the evidence as to the respondent’s capacity to pay spousal maintenance or the level of maintenance required for the applicant’s adequate support” (Wife’s Written Submissions, page 3).

57.  It was submitted that the evidence before the trial Judge:

… clearly established that the appellant [wife] was then, as she is now, unable to adequately support herself by reason of her care of the children of the marriage and by reason of her age and subsequent capacity to find employment. (Wife’s Written Submissions, page 3)

Apparently in support of this complaint, it was submitted on appeal that “[t]he Orders were against the evidence and the weight of evidence” and that “[t]he learned trial Judge allowed extraneous and/or irrelevant matters to guide and/or affect the exercise of his discretion”.

58.  Save in one respect, the submissions on behalf of the wife in support of this complaint do not refer to any evidence given during the course of the proceedings before the trial Judge.  The one reference which is made (to page 153 of the transcript of proceedings) is consistent with the trial Judge’s conclusions.

59.  Reliance was sought to be placed upon the decision of the High Court in De Winter v De Winter (1979) FLC 90-605, it being submitted that the trial Judge’s discretion was exercised “on the basis of a mistaken fact” (Wife’s Written Submissions, page 4). With great respect to counsel for the wife, before any consideration of the impact of a mistake of fact becomes necessary, it must first be established that there was a mistake of fact.

60.   Nothing to which counsel for the wife has referred us in the course of his written submissions (particularly at pages 4 and 5) demonstrates that the findings of fact made by the trial Judge were other than reasonably open to him.  It is to be remembered that the trial Judge saw and heard the evidence and, of particular relevance for the purpose of this complaint, the evidence of the wife during the course of her cross-examination.  It is not suggested that the concessions attributed to counsel for the wife in relation to her credibility had not been made.  Nothing to which we have been referred suggests that such concession was other than well founded.

61.  On behalf of the husband it was submitted in relation to this complaint:

5. In the context of the entirety of the material and submissions before the learned trial judge (including the discussion of the wife’s employment history at paragraph 31 as “not … only to a limited extent”) it is clear that:

*The findings are relevant only to capacity for “part time” work: a term which occurs twice in paragraph 27 alone.

*Even on its own terms, the learned trial judge did not make a finding that the appellant worked full time “at all material times throughout the entirety of the marriage”.  The attempt to elevate the statement is an example of the “pernickety” approach to discretionary decisions which was criticised in AMS v AIF; AIF v AMS (1999) FLC 92-852 per Kirby J at para [150].

*The wife’s own evidence was that:

(I) she and the husband were “both actively involved in the creation of the family business”; 3AB105: line 5

(ii) she was involved in the day-to-day running of the business during the marriage” 3AB105: line 10.

(iii) She was “actively involved in the business for 12 years”:3AB136: line 10 and the cross-examination oat 3AB109 lines 15 to 25 makes it clear that the period of time in which the wife was involved in the business extended beyond the time when the children came into the parties’ care.

*The marriage in October 1984 followed cohabitation in June 1984 – the children were not in the care of the parties until 1993 and after that date it is clear from the 4^th sentence of paragraph 27 of the Reasons for Judgment that the learned trial judge was aware that the wife had home help.

62.  It was further submitted:

6. Likewise, the submissions in the 2^nd paragraph of page 5 of the wife’s submissions are based on selective citations from the Reasons for Judgment which do not represent a fair reading of the totality of the findings of the learned trial judge in relation to the wife’s capacity for part-time employment.

63.  It was thus asserted on behalf of the husband that:

7.The final complete sentence on page 5 of the wife’s submissions correctly states the proposition that the capacity to support “adequately” extends to support beyond subsistence.  But there is no basis for any submission that the learned trial judge did not take account of that proposition.  The wife’s submissions do not refer to paragraph 29 of the Reasons for Judgment where the learned trial judge refers to that proposition precisely.

64.  The Court has not been referred, save in the manner indicated above, to anything in the transcript of the proceedings which establishes that it was not open to the trial Judge to conclude as he did in relation to the wife’s capacity for employment.  Nothing to which we have been referred suggests that the trial Judge concluded such capacity to be to the extent which appears to be asserted on her behalf.  The relevant passages in his Honour’s reasons make this clear.

65.  In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 Kirby J said at 619:

The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.

66.  In Fox v Percy (2003) 214 CLR 118 the majority in the High Court (Gleeson CJ, Gummow and Kirby JJ) said at 125-126:

On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (footnotes omitted)  

67.  We are not persuaded that the trial Judge’s finding that the wife had failed to establish the threshold requirement of incapacity to support herself was not reasonably open to him on the evidence before him.  Nor has it been established that the trial Judge erred in concluding as he did with respect to the extent of the wife’s capacity.  No material error of fact having been established, no question of intervention by this Court pursuant to De Winter arises. This challenge thus lacks substance. 

68.  It was then complained that the orders were “mainifestly [sic] wrong and unjust” and “against the weight of the evidence” (Wife’s Written Submissions, page 6).

69.  Our comments in relation to the previous challenge largely deal with this assertion.  The trial Judge made findings based on the evidence before him.  The challenges to those findings have not been made out. 

70.  Reliance was placed upon the decision of the Full Court in Mitchell v Mitchell (1995) FLC 92-601 wherein it was said at 81,997:

Importantly, and particularly in more recent times, there is the notorious circumstance that there is a significant gap between theory and reality for employment, especially for people in middle age, lacking experience and confidence, and who have been out of the skilled work- force for many years, and in the context of current high unemployment. Loss of security, missed promotion opportunities, loss of retraining in developing skills in an increasingly skilled work-force with the loss of confidence which this brings, particularly in times of high unemployment, are notorious circumstances of which the Court must take notice and apply in a realistic way.

71.  Reliance was also placed upon a 1992 Canadian decision which was referred to in Mitchell’s case.  It was thus submitted that the trial Judge should, for reasons asserted on the wife’s behalf, have taken “notice that she has no prospect of gainful employment again” (Wife’s Written Submissions, page 8).

72.  On behalf of the husband it was submitted in relation to this challenge that:

9.In relation to the wife’s earning capacity the learned trial judge correctly stated that she had the onus of establishing that she was unable to support herself adequately.  The finding that the wife had not discharged this onus was clearly open to the learned trial judge on the material before him.  Further, the appellant’s capacity to submit that the finding is in error is severely limited by her counsel’s (responsible) refusal to make any challenge to the severe findings against the wife’s credit.

73.  On behalf of the husband reliance was placed upon:

10.The finding that the wife (Reasons for Judgment paragraph 26) “deliberately chose not to disclose her employment to the Court” is particularised in paragraphs 16 to 18 of the Reasons for Judgment; and could have been further particularised by the absence of reference to such employment in her:

*financial statement filed 12^th November 2003: 2AB601

*affidavit of documents filed 15^th July 2003: 3AB90 line 20

*tax return: 3AB84 line 5

74.  It was further submitted on behalf of the husband that:

11.The further finding in paragraph 26 of the Reasons for Judgment that “instead of immediately admitting her error, she chose to tell further untruths which has led me to take a quite adverse view of her truthfulness and reliability as a witness” is also unchallenged by the appellant; and indeed could not be challenged given the conduct of the wife in the witness box, as referred to in paragraphs 24 and 25 of the Reasons for Judgment; which findings were an inevitable consequence of the cross-examination at 3AB67 to 92.

75.  The husband’s counsel asserted that:

12.The finding in paragraph 25 of the Reasons for Judgment that the wife was “an able and intelligent woman who made the grave error of attempting to improve her case by telling untruths under oath” is also one which the appellant quite properly does not challenge.  The finding follows inexorably from the sequence of events which is set out at paragraphs 16 to 24 of the Reasons for Judgment.

76.  It was thus submitted “[i]n summary” that:

13. … the wife swore an affidavit to the effect that she was unable to find employment at a time when she was employed and when her concealment of her employment was discovered then deposed to the payment of expenses which she had not made (as noted by the learned trial judge at 3AB73 line 15.  The relevant cross-examination appears at 3AB67-92 and contains not only the “oral untruths” but also the wife’s admissions as to non-disclosure of income to the revenue authorities and her completely unsatisfactory evidence in relation to business expenses which is the subject of the finding in paragraph 24 of the Reasons for Judgment.

77.  Each of the particular matters relied upon by counsel for the wife in relation to the wife’s “depletion argument” was answered by counsel for the husband with particular reference to the relevant passages of the transcript and the trial Judge’s reasons in relation thereto.

78.  It is unnecessary to do more than re-iterate our earlier conclusion that the trial Judge’s finding that the wife had not discharged the threshold onus, for the reasons given by him, has not been shown to have been erroneous.  The findings of fact upon which the trial Judge’s conclusions were based were not successfully challenged, nor were the conclusions based upon them shown to have been other than open to him. Accordingly, this complaint lacks persuasion.

79. It remains to consider the complaint that the trial Judge failed to “take notice” that the wife had no prospect of gainful employment. We do not consider this complaint has substance. The trial Judge had evidence before him in relation to the issue. As his reasons for judgment make abundantly clear, the trial Judge was under no misapprehension as to the wife’s age, employment history, qualifications and prospects of employment, which he deduced from the evidence before him. Far from being entitled to “take notice” that the wife had “no prospect of gainful employment again” the trial Judge was, in the circumstances which prevailed before him, precluded from doing so, other than by having regard to the provisions of s 144 of the Evidence Act 1995 (Cth) (see X & X (2000) FLC 93-017).

80. We have not been referred by counsel for the wife to any request during the course of the trial on behalf of the wife that the trial Judge enliven the provisions of s 144 as a precursor to taking notice of the kind now urged upon us.

81.  The submission that “[r]ealistically she is now just too old to be employed” was not made out before the trial Judge, who gave cogent and extensive reasons for his conclusions in that regard.  Those conclusions have not been shown to have been other than reasonably open to his Honour.

82.  It was finally submitted in the context of this complaint that:

Spousal maintenance may also in appropriate circumstances [be] awarded in part to replace capital depleted as a result of the inability to otherwise adequately support oneself. (Wife’s Written Submissions, page 8)

Perhaps not insignificantly, the only authority advanced in support of that proposition was a decision in 1976 (Tye v Tye (1976) FLC 90-028).

83.  Whilst ingenious, the submission in support of this challenge is lacking in substance.  It has not been established that the trial Judge erred either in finding the wife’s capacity to be as his reasons for judgment record, or in failing to find that the wife had to “use up all her capital” and is thus “unable to support herself adequately”. The wife failed to discharge the onus she bore in relation to each of those issues.  We are not persuaded by this submission as it has not been demonstrated that the trial Judge’s conclusions in that regard were other than reasonably open to him on the evidence before him.

84.  It was also complained that the trial Judge failed to address the “needs of the children”.  Reliance was placed upon the undisputed fact that the wife “receives a Child Disability Care Payment from Centrelink” (Wife’s Written Submissions, page 9).

85.   Reference was made to a statement in the course of evidence by the respondent husband that:

I think from time to time, their needs – their special needs have been overstated, however they’ve had special needs and I have always been prepared to contribute time, welfare and finance as to those needs.

86.  It was thus submitted that the conclusion of the trial Judge:

… that the wife can find substantial part time employment to adequately support herself at her age and with the care of the children is beyond the exercise of reasonable discretion

and further that the Full Court:

… ought find that the wife is not capable of adequately supporting herself for the above reasons and that the threshold for issue of an application for spousal maintenance has been met.

87.  It was submitted on behalf of the husband that:

17. The finding of the learned trial judge in paragraph 27 of the Reasons for Judgment “The children have had problems with their health in the past, but I am satisfied upon the evidence that this has greatly improved” is not, and could not be, the subject of challenge, given the admissions of the wife at 3AB146-154: see husband’s submissions 2AB601 final complete paragraph.

88.  The trial Judge gave careful and detailed reasons with respect to the impact of the children’s needs on the mother’s capacity for employment.  In so doing, his Honour was careful to differentiate between the past and the present.  Nothing to which we have been referred on behalf of the wife persuades us that it was other than reasonably open to the trial Judge to find and conclude as he did and we find that this complaint thus lacks merit.

89.  It was then complained that “[t]he learned Trial Judge failed to give adequate reasons for his ultimate decision and notice of intended orders made”. 

90.  In particular it was complained that:

The learned Trial Judge did not indicate to Counsel that he intended discharging any arrears due under the interim spousal maintenance order and was therefore not addressed on this, nor is it clear in the evidence before his Honour if there were any arrears.  The wife would say that there remains a shortfall between the amounts paid by the husband from the date of her Honour Justice Morgan’s order and the trial between the amount of child support and spousal maintenance that should have been paid for that time.  This evidence was not led at the trial, nor was the learned Trial Judge addressed on it as there was no notice given by him that it would be relevant to the orders made. (Wife’s Written Submissions, page 10)

91.  It was thus submitted that “although it is appropriate to discharge an interim maintenance order at a final hearing it is not appropriate to discharge arrears accumulated under that order which was not appealed at the time by the respondent.” 

92.  It was further submitted that:

… if the learned Trial Judge was to discharge the arrears for some reason then as a matter of fairness this should be put to Counsel and submissions allowed.  Neither party submitted this as an order sought by them.  No reason is offered in the judgment for the order.

93.  Complaint was made that:

His Honour orders in paragraph 3(b) that the arrears of child support created by the wife’s successful departure application be credited with any payments of interim spousal maintenance made.  Again no warning is given to either Counsel that it is proposed to make this order and so neither party have the opportunity to address the Court on it, it is not sought by either party and no reasons are given for the making of the order. (Wife’s Written Submissions, page 11)

94.  Counsel for the wife asserted that the trial Judge had failed to consider whether the impact of the proposed orders by virtue of his conclusions with respect to the wife’s spousal maintenance application was “just and equitable”, relying upon the decision of Hides v Hatton (1997) FLC 92-759.

95.  Finally, it was complained that the trial Judge denied the wife natural justice, rendering her counsel “unable to cross-examine or make submissions on that aspect” and failing to provide reasons for the orders which he made. The decision of the Full Court in Bennett and Bennett (1991) FLC 92-191 was relied upon in support of this challenge.

96.  Ultimately, it was submitted that “the orders fall outside the reasonable ambit of the learned Trial Judge’s discretion and should not stand on that basis”.  In support of that complaint it was submitted that:

… the Court ought not balance amounts owed or arrears under one type of order (in this case interim spousal maintenance) with payments that ought to be made under another type of order (departure application for child support) without very carefully considering whether it is proper to do so.  No such consideration appears to have been made, as no reasoning was given by the learned Trial Judge in this case.  The order ought therefore to [sic] be set aside” (Wife’s Written Submissions, page 13).

97.  On behalf of the husband it was submitted that there was no denial of natural justice or procedural fairness, particularly as the orders 2 and 3(b) of the orders made by the trial Judge were “sought by the husband in his written submissions”. It was contended that the wife was given “the opportunity to reply” to the husband’s submissions, which she “exercised … in the written submissions which appear at 2AB704” (Husband’s Written Submissions, paragraph 18).

98.  It was submitted that:

Once the learned trial judge had found that the wife had not established an entitlement to spousal maintenance he was required to make “tidying up” orders as to the relationship between spousal maintenance and child support, especially in circumstances where:

(I) the complexity of the proceedings was attributable to the wife’s failure to clarify the relief sought until after the commencement of the trial;

(ii) the wife herself sought backdated orders in relation to child support for the first time in December 2003: see the discussion at 3AB25 line 30 to 3AB26 line 40;

(iii) the wife herself sought such “tidying up” orders, albeit in different terms: Reasons for Judgment paragraph 9(6).

99.  Counsel for the husband asserted that none of the complaints made on behalf of the wife in relation to natural justice or procedural fairness had substance.  It was further submitted that the trial Judge gave ample reasons for his decision and that, as such, these challenges lacked merit.

1. His Honour was clearly aware, as his reasons for judgment make clear, of the nature of the conflicting applications of the parties.  It is not suggested that his Honour’s recording of the status of “Court’s Exhibit X” was other than accurate.  It is apparent from that document that if the question of spousal maintenance was determined other than in a way sought by the wife, there were likely to be consequential orders needed to reflect that conclusion.  This is in fact what occurred, for clear and detailed reasons which the trial Judge gave.

2. So far as the challenge to the trial Judge’s treatment of interim spousal maintenance paid by the husband to the wife is concerned, it has not been established that the circumstances surrounding such orders involved any absence of natural justice or procedural fairness.  The parties were represented.  Nothing to which we have been referred suggests that either party was in any doubt at the time as to what was being sought by the opposing party and his or her counsel. 

3. To submit that evidence was “not led at the trial” in relation to the issue overlooks the abundance of evidence to which the trial Judge referred in relation to the financial position of each party during the relevant period.    It has not been established that the trial Judge failed in any relevant sense to give “notice” in relation to the issues complained of.  At the latest, those issues were “live” from the time “Court’s Exhibit X" was produced. The trial Judge’s reasoning process in relation to the topic is abundantly clear.

4. We are not persuaded that the trial Judge was not entitled to “discharge arrears accumulated” under an interim order, which was not appealed against by the husband (Wife’s Written Submissions, page 10) and nothing to which we have been referred so persuades us.  It is perhaps not insignificant that no authority has been cited in support of that proposition.

5. So far as the “fairness” of so doing is concerned, as we have noted above, from at least the time “Court’s Exhibit X” materialised, neither party should have been in any doubt as to the relief sought by the other party, and the consequences of such relief being granted in whole or part within the context of both spousal maintenance and child support.

6. Similar observations apply to the complaint with respect to the “crediting” of interim spousal maintenance payments previously made by the husband against arrears of child support arising out of the wife’s successful departure application.  To the extent that such an outcome was not addressed on behalf of the wife, nothing to which we have been referred establishes that such a situation arose by virtue of any failure on the part of the trial Judge to discharge his obligations to the parties.

7. So far as the complaints with respect to the adequacy of the trial Judge’s reasons are concerned (Wife’s Written Submissions, page 11), we are not persuaded that such challenge has merit.  It has not been suggested that the trial Judge other than accurately recorded the difficulties arising from the “confusion” with respect to a number of aspects of the proceedings before him.  His Honour’s initiative led to “Court’s Exhibit X” materialising.  His Honour gave detailed reasons with respect to his conclusions regarding each of the “three steps” which he was obliged to take in determining the child support proceedings.

8. The judgment of Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 at 18 is instructive in relation to the adequacy of a judge’s reasons for judgment. His Honour there said that:

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

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

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

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

9. McHugh JA (as he then was) in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 said at 279:

   … without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.

10. Drawing upon these authorities, the Full Court of this Court in Bennett and Bennett said at 78,253:

    In the absence of adequate reasons the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.

11. With great respect to counsel for the wife, the trial Judge’s reasons in relation to all the issues before him leave no doubt as to the process of reasoning by which he reached the various decisions recorded in his judgment.  Pivotal to those findings and conclusions was his Honour’s rejection of the essential thrust of the wife’s evidence in relation to her capacity for employment.  As noted earlier, those findings and conclusions in turn were largely the result of his Honour’s conclusions with respect to the wife’s credibility. 

12. We have earlier referred to the statements of principle of the High Court in relation to the grounds upon which an appeal Court can interfere with a trial Judge’s finding in relation to credibility, and concluded that none of those grounds have been made out in this case.

13. Having found as he did in relation to the wife’s capacity, the trial Judge proceeded to determine the various issues for the reasons which his judgment reveals.  We have not been referred to anything which establishes that his Honour failed to explain his reasoning process, or that any aspect of that process was erroneous.

14. Finally, on the evidence presented before us, we are not persuaded that it was not open to the trial Judge, as a matter of principle or discretion on the evidence before him, to offset payments of spousal maintenance against child support obligations.

CONCLUSION

1. No proposed ground of appeal having been made out, the application for leave to appeal should be refused (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 and Rutherford and Rutherford (1991) FLC 92-255).

2. Having so concluded, it is unnecessary to consider what course would be adopted in the event of leave to appeal being granted and the appeal being allowed.

COSTS

1. The submissions of counsel for the parties do not address the issue of costs.  It is appropriate that either party make submissions with respect to costs of the application within 28 days or such longer period as the parties agree, with each party having 21 days thereafter in which to reply to any such submissions and we propose so ordering.

ORDERS

1.   That the application for leave to appeal be dismissed.

2.   That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party within 28 days of the date hereof.

3.   That the other party have a further 28 days in which to make written submissions in answer thereto by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party.

4.   That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Melbourne Registry of the Family Court and serving it on the other party within a further 21 days.

I certify that the preceding
116 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 19/10/2006