Worth and Worth & Anor

[2019] FamCAFC 40

FAMILY COURT OF AUSTRALIA

WORTH & WORTH AND ANOR [2019] FamCAFC 40

FAMILY LAW – APPEAL – PARENTING – Where there was no error by the trial judge in ordering that the wife have sole parental responsibility for the two children of the marriage as a result of the high conflict between the parties and the fact that both children would be residing with the wife – Where there was no error by the trial judge in ordering that the youngest child reside with the wife – Where there is no merit in any of the complaints made by the appellant – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where there was no error by the trial judge in his treatment of the wife’s evidence as to her expenditure on legal fees and her disclosure in relation to the same – Where there was no error by the trial judge in his treatment of “add-backs” – Where there was no error by the trial judge in his assessment of the respective contributions of the parties – Where the alleged unethical conduct by the wife’s solicitor does not sound in error by the trial judge – Where there is no merit in any of the complaints made by the appellant – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent sought an order for costs – Where the Independent Children’s Lawyer did not seek an order for costs against the appellant in the event the appeal was dismissed – Where the respondent’s costs sought were based on offers made by her – Where it was accepted that written submissions as to costs would be required once the result of the appeal was known – Orders made setting out a regime for the filing of written submissions.

Family Law Act 1975 (Cth) ss 4AB, 61DA(1), 75(2) & Part VIII

Antmann and Antmann (1980) FLC 90-908; [1980] FamCA 64
Bircher & Bircher (2016) FLC 93-721; [2016] FamCAFC 123
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Kowaliw and Kowaliw (1981) FLC 91-092; [1981] FamCA 70

APPELLANT: Mr Worth

RESPONDENT: Ms Worth

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: NOA 16 of 2017

APPEAL NUMBER: BRC 1771 of 2014

DATE DELIVERED: 8 March 2019

PLACE DELIVERED: TBC

PLACE HEARD: Brisbane

JUDGMENT OF: Strickland, Kent &
Hogan JJ

HEARING DATE: 18 May 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 13 April 2017

LOWER COURT MNC: [2017] FamCA 227

REPRESENTATION

THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr George

SOLICITOR FOR THE RESPONDENT: Rosen Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

1. The appeal be dismissed.

2. Within 21 days of the date hereof the respondent wife file and serve upon the appellant husband written submissions in relation to the issue of costs.

3. Within 21 days of the receipt by the appellant husband of the written submissions of the respondent wife, the appellant husband file and serve on the respondent wife any written submissions in response.

4. Within 14 days of the receipt of any submissions in response filed by the appellant husband, the respondent wife file and serve on the appellant husband any written submissions in reply.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Worth & Worth and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 16 of 2017
File Number: BRC 1771 of 2014

Mr Worth

Appellant

And

Ms Worth

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Strickland and Hogan JJ

Introduction

1. By Notice of Appeal filed on 3 May 2017, Mr Worth (“the husband”) appeals against certain of the final parenting and property settlement orders made by Forrest J on 13 April 2017.

2. The parenting orders appealed provide that Ms Worth (“the wife”) have sole parental responsibility for the two children of the marriage, M, born in 2008 and Y, born in 2011, and the children live with the wife. In relation to spending time with the children if the husband is living in Brisbane, it is not entirely clear from the orders identified in the Notice of Appeal whether the husband is wanting to appeal against all orders in that regard, or just those orders relating to spending time with Y. In his Notice of Appeal he specifies the discrete orders made in relation to Y, but not those in relation to M, and his written summary of argument does not assist in clarifying this issue. In any event, and despite there being almost nothing said in his written summary of argument about this issue, we proceed on the basis that the husband seeks to appeal against all orders providing for the time to be spent with both children if he is living in Brisbane.

3. The effect of the property settlement orders appealed against is that there is a division of the parties’ property interests as to 65 per cent/35 per cent in favour of the wife, and the parties’ superannuation interests are adjusted so that they are equal.

4. The appeal is opposed by the wife, and the Independent Children’s Lawyer (“ICL”) opposes the appeal against the parenting orders.

5. On 17 August 2017 the husband filed an Application in an Appeal seeking to amend the appeal index to include a number of documents. That application was heard by Registrar Spink on 5 September 2017, and relevantly he ordered that the disputed documents be included in a supplementary appeal book. The husband subsequently filed and served that book, and it became volume six of the appeal books before this Court. At the hearing of the appeal we made the following order:

   (1)The documents set out in volume six of the Appeal Books be included in the appeal record save and except for documents numbered 19 to 22 and the transcript of proceedings before Forrest J of 27 September 2016.

Relevant Background

1. The husband was born in the United Kingdom in 1974. He is a professional. He currently resides in the United Kingdom.

2. The wife was born in Australia in 1978. She is also a professional.

3. The parties commenced a relationship in the Middle East in 2004 and married in February 2005. The wife then moved back to Australia, with the husband joining her in April 2006.

4. In January 2005, at the British Embassy in a country in the Middle East, the parties signed a document entitled “Pre-Nuptial Agreement” which document listed their respective assets as at the commencement of their relationship. At trial the parties did not seek for that agreement to be treated as a Pre-Nuptial Agreement under Part VIII of the Family Law Act 1975 (Cth) (“the Act”), but it was submitted by the husband, and agreed to by the trial judge, that the agreement was relevant to the determination of the property interests owned by the husband at the commencement of the parties’ relationship.

5. On 25 July 2008 the parties’ first child M, was born. M was diagnosed as autistic in 2010 and requires a high level of care.

6. In 2008 the wife’s parents separated. The wife’s father had a life insurance policy which the wife asserted he had had for six or seven years at that time. It was agreed between the wife and her father that the ownership of that insurance policy (and with it the right to be paid the benefit on the death of the insured) be transferred to the wife and her brother, in return for them paying the premiums on an ongoing basis. The premium was $800 per month and the wife began paying half of that from “family funds”.

7. In December 2009 the wife’s brother was unable to keep paying his share of the premiums and the wife and her brother agreed that she would pay all of the monthly premiums from that time, with there to be an adjustment made in her favour out of her brother’s share of the payout upon their father’s death.

8. Over a short period of time the premiums increased to $1,800, with those premiums being paid using the parties’ joint funds. The wife’s father died in 2012 and the wife received $318,000 post-adjustment as per the agreement with her brother. This amount was deposited into the parties’ mortgage offset investment account.

9. In April 2010 the parties purchased land at Suburb Z and commenced to build a house. Construction of the home was not completed until sometime in 2011 after the birth of their second child.

10. In 2011 the parties’ second child, Y, was born. Y has been diagnosed with ADHD and moderate autism.

11. In September 2011 the wife was involved in a motor vehicle accident, and in 2014 she received compensation of approximately $125,000.

12. The parties separated in September 2013. The wife left the Suburb Z property with the children and withdrew $50,000 from the parties’ mortgage offset investment account.

13. An application for a protection order was later made on behalf of the wife by the police. The husband consented to the orders being made against him in the Magistrates Court without any admission. On 23 June 2014 a Magistrate dismissed the wife’s application for a variation of those orders and discharged the existing orders. Importantly, her Honour’s judgment and the transcript of the entire proceedings before her Honour were in evidence before Forrest J. The Magistrate’s findings were adopted by his Honour.

14. The wife made an application for a Justice’s Examination Order under the Mental Health Act 2000 (Qld) for the husband to be involuntarily psychiatrically examined. This was initially refused, but was later approved, following a second application in January 2014. There was no adverse outcome following the examination. It is the husband’s evidence, however, that he has “situational dependent adjustment disorder with anxiety and depressed moods”.

15. The wife commenced proceedings in the Federal Circuit Court of Australia in February 2014.

16. The husband also began attending Alcoholics Anonymous in February 2014, but it was observed by the trial judge that both parents had reverted to increased consumption of alcohol in the later years of their relationship to cope with stress.

17. The wife denied the husband time with the children because, she asserted, of his violence towards her and the children.

18. Just prior to a hearing before Judge Cassidy on 1 July 2014, the wife agreed to Y spending supervised time with the husband at R.

19. On 1 July 2014 Judge Cassidy made interim orders providing for Y to spend supervised time with the husband and transferred the matter to the Family Court of Australia. No order was made in relation to M spending time with the husband.

20. In December 2014 a family consultant published a report which recommended Y spend unsupervised time with the husband and that M also commence spending time with him facilitated through an appropriate service.

21. On 20 August 2015 the principal registrar made interim orders providing for Y to move to unsupervised time with the husband and M to commence spending time with him at his school. The wife filed a stay application and told the husband and the ICL that she would not comply with those orders.

22. On 7 September 2015 the husband filed a Contravention Application in relation to the orders made on 20 August 2015. That application was heard as part of the final hearing before the trial judge (see [106]–[157]).

23. On 15 September 2015 the wife’s stay application was heard and dismissed. The wife then contacted the school and told them that she did not support M spending time with the husband there. The school withdrew its consent to facilitating that time as a result.

24. In late 2015 the Suburb Z property was sold. The husband returned to City GG, United Kingdom, telling the Court that he would only be gone for approximately one month. While the husband was overseas the previous orders made for the children to spend time with the husband were suspended, and orders were made for the husband to have contact via Skype, with Y.

25. In January 2016 the husband informed the Court that he intended to remain living in the United Kingdom indefinitely.

26. In early 2016 it was ordered that each party receive $50,000 from the net proceeds of sale of the Suburb Z property through their solicitors’ trust accounts. The husband’s $50,000 went to paying his legal fees. The wife’s $50,000 went to her solicitor, although, as noted by the trial judge, “it [was] unclear whether that money was used by her to meet legal fees she owed” ([88]).

The appeal

1. The husband’s Notice of Appeal raises five topics of complaint with each containing multiple “grounds of appeal”, in all covering five pages of the Notice. It is unnecessary to repeat all of that content, and the appeal can be disposed of by addressing just the five topics, namely:

   Parental Responsibility

   Domestic Violence

   Disclosure and Application of Add-Backs

   Assessment of Contributions

   Unethical Conduct by the Wife’s Solicitor, Mr Rosen

2. We will address the complaints raised in relation to the parenting orders first, namely “Parental Responsibility” and “Domestic Violence”.

Parental Responsibility

1. The first point to make is that although this topic was primarily about parental responsibility, the complaint also extends to with whom Y should live.

2. To repeat, his Honour ordered that both children live with the wife, and the wife have sole parental responsibility for them.

3. In the appeal the husband sought an order that Y live with him, and he have sole parental responsibility for her. It is entirely unclear though what orders he seeks in relation to the time Y is to spend with the wife.

4. The husband premised the orders that he sought on the basis that he would be living in Australia, but as can be seen, he continues to reside in the United Kingdom, and his position is that he has employment there and he needs funds to be able to relocate to Australia. Importantly, and relevantly for the purposes of this complaint, there is no certainty that that will be the case (see, eg, [192]).

5. Initially at trial the husband sought that both children live with him in the United Kingdom for nine months without any contact with the wife, and then he would return with the children to live in Australia with the wife having supervised time with the children building gradually to unsupervised time. However, the trial judge made it clear that he would not be making any order allowing the children to live with the husband in the United Kingdom ([8]), and the husband then amended the orders that he sought to only seek that Y reside with him, and M live with the wife and spend time with him.

6. As to parental responsibility, the husband sought that he have sole parental responsibility for both children, and the wife sought that she have that responsibility.

7. His Honour, having found ([42] and [165]) that the wife’s “applications for a Justices’ Examination Order under the Queensland Mental Health Act 2000 were an abuse of that process and amounted to ‘family violence’”, his Honour correctly found ([166]) that the presumption that there should be equal shared parental responsibility set out in s 61DA(1) of the Act did not apply. However, his Honour commented that even if the presumption applied, it was rebutted in this case because the parents cannot communicate with each other and they are unable to agree on decisions about major long-term issues. Thus, it was not in the children’s best interests to order that there be equal shared parental responsibility, and that is not challenged by the husband on appeal ([168]).

8. The husband based his claim for sole parental responsibility on the allegation that the wife has a mental health condition described as “Munchhausen’s syndrome by proxy”. Indeed, he cross-examined M’s paediatrician, and the psychiatrist called as a witness by the ICL about this, but both experts said there was no evidence that the wife suffered from this condition (see [174]–[175]).

9. Nothing that the husband presented in this appeal raised any doubt about the correctness of that evidence, and there is no basis to find that his Honour was not entitled to rely on it.

10. Apart from this claim, the only other relevant basis put by the husband at trial was that the wife had failed to involve him in decision making on matters of health and education.

11. His Honour, despite being satisfied that that was the case, and that the wife had not appropriately involved the husband in the decision making process, found it was in the children’s best interests for her to have sole parental responsibility, rather than the husband. His Honour said this:

    181.I do not consider it in the best interests of these children, particularly where their father has not seen and spent time with [M] and has not spent much time with [Y] for a couple of years, for him now to be given sole parental responsibility for the major long-term decisions in their lives. With respect, it reflects adversely on the father’s understanding and insight that he would submit to the Court that he should have sole parental responsibility for [M], yet assert that [M] should be left in the mother’s day to day physical care. I do not consider it would be in [M’s] best interests for him to be living with his mother but for parental responsibility to be solely conferred on his father.

    182.Having regard to my ultimate determination not to separate the two children but to leave them living with the mother, with whom they have been living now since separation nearly four years ago, I also do not consider it in [Y’s] best interests to confer sole parental responsibility on the father.

    183.I am quite satisfied that the mother should have parental responsibility for both children solely conferred on her. The two children will be living with her and as I consider that only one parent should have parental responsibility in this high conflict co-parenting relationship, at least for the foreseeable future, I am satisfied that it should be the mother.

12. As for the residence of Y, at trial the basis of the husband’s claim was that Y should be moved from the wife’s care for her “own safety and protection” ([196]).

13. The husband argued that M’s autism and mental retardation posed a risk to Y of being subjected or exposed to trauma, physical or emotional, at the hand of M, and particularly as he grows bigger and stronger.

14. There was documentary evidence from the general medical practice where the wife takes the children for medical treatment, that there had been instances of M exhibiting “physically violent behaviour towards the [wife] and [Y]” ([194]). There was also evidence from [M’s] school principal that [M] had demonstrated “difficult behaviour” ([200]).

15. His Honour plainly recognised and acknowledged this risk (see [194]–198]), and his Honour said this:

    199.In determining the proper orders to make, it is a question of weighing and assessing the level of risk as part of the consideration and balancing of all relevant factors and ultimately determining whether that level of risk is so unacceptable that protecting [Y] from it outweighs all other relevant considerations.

16. His Honour then concluded as follows:

    201.Whilst I acknowledge that there is a risk of [M] harming [Y] and of [Y] being exposed to [M] harming his mother as he grows bigger and stronger, I am satisfied that the mother responds to [M’s] needs and behaviour appropriately, seeking out expert assistance and respite care as needed. I am satisfied that she would act protectively of [Y] when necessary and would not wilfully expose [Y] to unacceptable risk of harm.

    202.I do not consider that the risk of [Y] suffering harm from [M] is so high that it is unacceptable and demanding of a change of day to day care for [Y] by moving her to live with her father when he returns to live in Australia.

1. Again, it has not been demonstrated to this Court, that his Honour erred in making these findings.

2. However, what did concern his Honour in determining where Y should live, was his “satisfaction that the [wife] does not really respect [Y’s] need for an ongoing, meaningful relationship with [the husband]” ([205]). Indeed, his Honour found that the wife caused emotional harm to Y by “exposing her to her feelings and attitudes towards [the husband] and… by resisting and preventing [Y] spending time with the [husband]” ([206]).

3. On the other hand, his Honour highlighted that the husband’s own “actions and inactions” in relation to returning to the United Kingdom, and the timing of that “have significantly contributed to the almost non-existent nature of the relationship that he currently has with [Y]” ([207]).

4. Thus, his Honour found as follows:

   208.At this point in time, I do not consider that the mother’s attitude, clearly demonstrated by the historical facts in the matter, should alone determine the matter in favour of moving [Y] into the principal care of her father. Whilst the father argues that he would be far better at facilitating [Y’s] relationship with her mother than her mother is at facilitating [Y’s] relationship with her father, I am not convinced of that just yet. The position he advocated in respect of [Y’s] time with her mother, particularly through the draft of the Orders he proposed the Court make at the end of the trial, was extremely restrictive of [Y’s] time with her mother and seemed to be focused more on punishing the mother for perceived wrongs than on [Y’s] best interests.

   209.All of the evidence, particularly the historical fact that the mother has been [Y’s] principal carer for all of her life (single handed for the last sixteen months), [Y’s] love for her brother, the desirability and benefits to siblings of keeping them together, [Y’s] own views as reported by [Ms E] (though her age and level of maturity suggest not too much weight should be given to them), and [Y’s] own special needs that the mother appears to be dealing with appropriately, persuades me that it would not be in [Y’s] best interests to move her to live in her father’s day to day care at this point in time.

5. There was also an attempt by the husband to suggest that Y had been sexually abused by the wife’s partner, but his Honour, correctly in our view, found that the observations of the husband failed “to establish an unacceptable risk of [Y] being sexually abused by the [wife’s] partner or any other person if she is left in [the wife’s] unsupervised day to day care” ([203]).

6. The husband had reported Y’s behaviour to the police and to the relevant child protection department, but no action had been taken, and there was no other evidence presented by the husband to provide any rational basis for his belief.

7. Although the husband also raised this issue on appeal in the context of “domestic violence”, it was put on the basis that the risk from the wife’s partner had not been considered and thus his Honour failed to make findings of concern about the welfare of the children in that person’s care. However, there is no doubt that his Honour considered the risk, and in our view, addressed it appropriately on the basis of the evidence that was before the Court. There is no error by his Honour here.

8. The husband in his submissions also pointed to so-called inconsistencies in his Honour’s findings such as:

   a)His Honour accepting that M poses a risk to the welfare of Y yet still leaving Y in the wife’s care, and finding that separation of the siblings was not in either child’s best interest ([194]–[200]).

   b)Finding that the wife contravened previous orders ([153]), and emotionally harmed Y ([206]), yet ordered that the wife have sole parental responsibility finding that she deals appropriately with Y’s special needs ([209]).

   c)Finding that the wife had failed to appropriately involve the husband in the decision-making process for the children ([180], [192], [193], [206]–[210]), yet still making orders in favour of the wife.

9. However, as has been seen, his Honour was alert to all of these issues and took them into account in his detailed reasons for making the orders that he did. We are not persuaded that his Honour erred in either failing to take these issues into account or failing to afford adequate weight to them. There were significant other factors, such as the children’s special needs, and the husband’s relocation to the United Kingdom (see [208] and [209]) that supported the conclusion that at the time of the trial it was in the best interests of the children for them to live with the wife and for her to have sole parental responsibility.

Domestic Violence

1. The theme of this complaint is similar to the previous one, namely, despite his Honour accepting that the wife had committed “family violence”, his Honour still made the orders that he did.

2. As referred to above, his Honour found (at [42] and [165]) that the wife’s applications in 2013 and 2014 for a Justice’s Examination Order under the Queensland Mental Health Act 2000 were “an abuse of that process and amounted to ‘family violence’ within the definition of that term contained in s 4AB of the Act”.

3. In addition, although it was not described by his Honour as “family violence”, the husband points to the adoption by his Honour ([48]) of the findings of the Magistrate in 2014 in the protection order proceedings that the allegations of child abuse made by the wife against the husband were “entirely without substance”, that she had lied to gain an advantage over the husband in the parenting dispute, and that her intention was to prevent the husband having contact with the children.

4. Indeed, his Honour went further and said this at [52]:

   …having regard to all of the evidence I have seen and heard in this case, including the oral evidence given by the mother during the trial, I am quite satisfied, as was the Magistrate, that the mother has been motivated by a determination to stop the father having a relationship with his children since their separation in September 2013...

5. Pausing there, again his Honour was plainly well aware of these issues (see [165]), and in our view his Honour took them into account in weighing up all of the evidence in order to determine what was in the best interests of Y, and M for that matter, although ultimately M’s position was not in issue.

6. As already identified, his Honour, in a careful and fulsome judgment, traversed in detail all of the relevant evidence bearing upon the issues that he had to address in the exercise of the wide discretion reposed in him, and we are not persuaded that his Honour fell into error in the exercise of that discretion (CDJ v VAJ (1998) 197 CLR 172 per Kirby J at [186]).

7. Once again, the husband has fallen into the trap of overlooking that there were many other relevant factors that his Honour needed to take into account other than those presented by the husband, and that is readily apparent from [208] and [209] of his Honour’s reasons.

8. The husband sought to raise other issues before us as matters that he claimed were examples of “domestic violence” or “family violence” to which his Honour failed to afford sufficient weight. They included the failure by the wife to provide the husband with access to funds to allow him to return to Australia, the wife’s failure to facilitate a relationship between the children and the husband, her conduct in actively preventing contact with them, and the risk that the wife’s partner posed for the children, and specifically Y.

9. At trial, the latter three issues were raised by the husband in the context of being highly relevant factors in determining what parental responsibility and live with orders were in the best interests of the children, and ultimately of course, just Y. To describe them as examples of domestic violence or family violence does not give them any added weight in that determination, and as we have set out already, his Honour was well aware of these issues and their importance, and in our view took them into account appropriately.

10. In reality, and as conceded by the husband, these complaints, as well as others made by the husband, can be categorised as weight challenges, and such challenges are notoriously difficult to establish. As was said by Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519–520:

    The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…

    Here there is no error of law or mistake of fact alleged, and it is plainly insufficient to suggest appellate interference is justified as a result of an allegation to the effect that his Honour failed to afford adequate weight to the husband’s claims.

11. As for the claim about access to funds, that was dealt with by his Honour at [98]–[101], and his Honour rejected the submission that this was an act of family violence within either s 4AB(h) or (i) of the Act. His Honour said this at [101]:

    …I do not accept that the mother’s refusal to agree to a distribution of capital to the father on an interim basis when property adjustment was still in dispute and awaiting trial amounts to behaviour that coerced or controlled him. I do not accept that the father was entirely or predominantly dependent on the mother for financial support at the time he was seeking that distribution of capital. I do not accept that a refusal to agree to the capital distribution the father was seeking amounted to preventing him from “keeping connections” with his children. He chose to return to the UK in the first instance. He said it was only temporary when he went. He stayed there. He obtained employment there. He chose not to return to Australia as and when he previously said he would. He did not adduce sufficient evidence to satisfy me that he could not return to Australia and again set up residence without the capital distribution that he requested.

12. We can find no error here by the trial judge.

Disclosure and Application of Add-Backs

1. These issues relate to his Honour’s consideration of the amount of $125,000 that the wife received by way of damages in 2014 for the motor vehicle accident that she was involved in in September 2011, and the amount of $50,000 that she removed from a mortgage offset account at separation in September 2013.

2. The husband’s case was that both of these amounts should have been “added-back” to the “pool of assets”.

3. His Honour determined to add-back the sum of $15,916.85 from the amount of $50,000, and $75,000 from the amount of the damages, finding that these amounts were spent on legal costs by the wife (see [283] and [288]).

4. The issue of disclosure, or rather non-disclosure by the wife, arose from the failure by the wife to detail in her affidavit the source of the funds spent by her on legal costs in accordance with an order made by his Honour to that effect. In the affidavit the wife deposed that her legal costs in the Magistrates Court proceedings were $15,916.85, and her legal costs in the Federal Circuit Court of Australia and the Family Court of Australia were $78,426.19 to that time. The total of these costs was approximately the same as the amount contained in her solicitor’s costs notice.

5. Pausing there, the husband submitted to the trial judge that he should not believe either the wife or her solicitor as to the amount of costs paid, suggesting that they were significantly more. However, his Honour found nothing in the evidence that indicated the wife and her solicitor were not being truthful, and was satisfied that the total amount of costs was as set out by them ([277]).

6. The husband’s claims in this regard were based on calculations that he made attempting to extrapolate from the declared costs what he says they should have been when taking into account all “court appearances and administration”. His Honour rejected a similar attempt by the husband at trial which resulted in an alleged total costs outlay of $1,952,510 (see [273]–[274]).

7. We can find no error here by the trial judge, and we too reject as misconceived, the calculations made by the husband in an attempt to demonstrate that the costs were far greater than disclosed.

8. To return to the non-disclosure, what did concern his Honour was that despite the order that he made, in the affidavit all the wife said was that she had paid the costs she set out from “either [her] own source of funds, [her] partial property settlement of $50,000 or from [her] personal injury claim” ([278]). Plainly, this did not identify the source of the two amounts referred to above.

9. However, when the wife was asked by his Honour during her cross-examination what she had done with the damages of $125,000, she said that she had paid a total of $75,000 in legal fees from it, and in re-examination, she said that she had paid about $14,000 from the money she withdrew at settlement for legal costs in relation to the Magistrates Court proceedings.

10. This evidence allowed his Honour to find that $75,000 came from the damages, and $15,916.85 being the precise amount specified in her affidavit (rather than the approximate amount of $14,000 referred to in her oral evidence) came from the money she withdrew at separation.

11. Thus, although there was a lack of disclosure in her affidavit, when coupled with her oral evidence, his Honour was able to comfortably make the findings that he did. Accordingly, we can find no basis for appellate interference here.

12. That also provides the answer to the husband’s complaint about the application of add-backs. In other words, the primary basis of the complaint was the lack of disclosure in the affidavit.

13. The husband did contend that the wife received an “unjust increased entitlement” from the notional add-backs, but it was difficult to understand this submission, and specifically the claims that “[t]he add-back of the $100,000 advance legal Cost Order resulted in a $14,940 positive payment to the [wife]”, and “[t]he add-back of the disputed [wife’s] legal costs $90,917… which the [wife] took from the family pool preventing the [husband] from the same legal representation, resulted in a $31,844 negative payment to the [wife]” (Ground 2.7).

14. There was no challenge at trial to the add-back of $100,000 ([254]), and the husband does not explain the figures of $14,940 and $31,844.

15. Further, it is apparent from the husband’s summary of argument at paragraph 4.4 that he has misunderstood the purport of the authorities that he cites in relation to indemnity costs (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397), reducing the value of the assets (Kowaliw and Kowaliw (1981) FLC 91-092), the notional adding-back of legal costs (Chorn and Hopkins (2004) FLC 93-204), and how the unilateral disposal of property should be dealt with (Bevan v Bevan (2013) FLC 93-545). He seemed to mount an argument based on these authorities that he should somehow have the benefit of the amounts of legal costs claimed.

16. The husband also contends (Ground 2.7) that his Honour erred in that “the add-backs should have been considered within the contributions”. However, what his Honour did, and correctly in our view, was to leave until the assessment of the respective contributions of the parties consideration of the balance of the $125,000 and the $50,000 that he did not notionally add-back ([287]–[289]). Thus again, no error is demonstrated here.

17. Finally, in Ground 2.9 the husband submitted that his Honour made an error of law in providing a financial benefit to the wife where the Court found that the wife had prevented the husband from having access to legal funds, contravened parenting orders, failed to comply with orders for disclosure, abused the process, perpetrated domestic violence as assessed by the Magistrates Court, and prevented the husband from having access to the children. However, there can be no basis for claiming an error of law here. These are not matters that can prevent the wife from receiving her entitlement to property settlement as determined by the trial judge. Indeed, and in any event, not all of these allegations were established on the evidence, and with the issue of the contraventions, his Honour imposed a cost penalty on the wife.

Assessment of Contributions

1. The husband asserted that his Honour erred in determining that the wife’s father’s insurance investment policy was “an inheritance” ([314]), and thus erred in failing to find that the payout of $318,000 was contributed to equally by the parties (Ground 5.1). Again though, it seems that the husband has misunderstood the reasons of the trial judge. His Honour did not find that the policy was “an inheritance”. His Honour determined to treat the amount received by the wife “like an inheritance or a gift from one spouse’s family, as a contribution made on that spouse’s behalf, but with regard had to the contribution the father made by the payment of substantial monthly premiums from family funds between 2008 to 2012” ([314]).

2. His Honour rejected the argument that the insurance payout had been contributed to “equally”, as the policy arose from the wife’s father, and he had permitted the wife to take it over ([312]–[314]).

3. There is no error here by the trial judge.

4. Next, the husband contended that his Honour erred in his assessment of the wife’s contributions by failing to take into account the wife’s actions in terminating the marriage, leaving with the children and removing money from a joint account without any notice to the husband, and falsely claiming domestic violence (Ground 5.2).

5. As is plain, this contention is similar to the claim made by the husband referred to above in [88], and our response is also along the same lines. It is not open to a court to take into account conduct such as is alleged when assessing contributions. That conduct is in the nature of negative contributions and it has long been held that with few exceptions, that concept is not relevant to, and is not a factor to be taken into account in the assessment of contributions under the Act (Antmann and Antmann (1980) FLC 90-908; Bircher & Bircher (2016) FLC 93-721). Thus, again, his Honour did not err in this regard.

6. After carefully addressing and taking into account the post-separation contributions made by both parties ([316]–[318]), his Honour determined (at [319]), that there should be an adjustment of 10 per cent to the assessment of the wife’s contributions as at the date of separation because of her greater post‑separation contributions.

7. The husband challenges this assessment on appeal (Ground 5.3), but as his Honour noted at [319], the husband conceded that the wife’s post-separation contributions exceeded his and should be recognised.

8. Further, nothing to which the husband took us in his summary of argument demonstrated that his Honour erred in this assessment. The husband primarily sought to rely on the same allegations as to the conduct of the wife as he sought to rely on in challenging his Honour’s conclusions as to the assets available for distribution between the parties, and similar allegations to those made in response to his Honour’s assessment of the wife’s contributions to the date of separation. However, suffice to say it was still not open to the trial judge to take such allegations into account, even if they had all been established on the evidence.

1. Under this heading the husband also complained that his Honour erred in making a further adjustment to the wife’s entitlement of 15 per cent on account of the relevant s 75(2) factors (Ground 5.4).

2. However, as recorded by his Honour at [326], at trial the husband conceded that, as submitted by the wife’s counsel, a 15 per cent adjustment for the relevant s 75(2) factors was “probably correct”. His Honour accepted this submission and so found. Thus, it is not open to the husband to challenge this finding on appeal and there can be no merit in this complaint.

Unethical Conduct by the Wife’s Solicitor, Mr Rosen

1. The husband contends that the wife’s solicitor knowingly attempted to deceive the Court by providing evidence which had been discredited in the Magistrates Court proceedings, by providing inaccurate evidence as to the legal fees incurred by the wife, by swearing documents including an affidavit and a Notice of Undertaking of Disclosure which he knew to be false, and finally, by acting in an overly aggressive manner designed to further delay the case.

2. None of that though sounds in error by the trial judge, which is what must be established on appeal. Accordingly, the submission of the husband was that the error by the trial judge was in failing to reprimand the solicitor, or order his removal from the case, or disregard evidence from him, and that resulted in delays, exacerbated his separation from his children, and increased court actions and costs.

3. However, the premise of this complaint is that the solicitor engaged in unethical conduct, and that was not established before his Honour. On appeal the husband was unable to demonstrate that his Honour erred in this regard and thus, there can be no merit in this complaint.

Conclusion

1. Having found no merit in any of the complaints raised by the husband, the appeal must be dismissed.

Costs

1. At the conclusion of the hearing of the appeal we sought submissions as to the issue of costs.

2. If the appeal was to be dismissed, the wife sought an order for costs of $34,000 calculated on an indemnity basis. We were told that this claim was based on offers made by the wife, and because we are not permitted to know of the content of those offers prior to making our orders, it was accepted that written submissions as to costs would be required once the result of the appeal was known. Thus, in our orders we will set out a regime for the filing of those written submissions. That will not though involve the ICL, given that the ICL did not seek an order for costs against the husband in the event the appeal was dismissed.

Kent J

1. I have had the benefit of reading the reasons for judgment of Strickland and Hogan JJ in draft form. I agree that this appeal should be dismissed and with the orders proposed, and I agree generally with the reasons of their Honours.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Hogan JJ) delivered on 8 March 2019.

Legal Associate: 

Date:  8 March 2019