Z and Z - [2006] FamCA 920

FAMILY COURT OF AUSTRALIA

Z & Z [2006] FamCA 920

APPEAL – Against property and parenting orders – Whether husband afforded procedural fairness – Husband did not draw attention to anything which supported his assertion he was not afforded procedural fairness.

PARENTING ORDERS – Whether trial Judge in error in ordering that wife have sole responsibility for making long term decisions in respect of parties’ only child – Evidence parties would not be able to cooperate in relation to decision making for their child – Decision reached by trial Judge open to him in the exercise of his discretion – Whether trial Judge was in error in making defined orders for telephone and holiday contact – All of these asserted grounds of appeal involved exercise of discretion by trial Judge – No appealable error on part of trial Judge in making these parenting orders – Whether trial Judge failed to give appropriate weight to child’s wishes – Whether trial Judge erred in failing to grant injunction or residence order if mother relocated in future – No error by trial Judge in not making order based on event that may or may not come to fruition – Whether trial Judge gave appropriate weight to issues relevant to child’s schooling and religious upbringing - No error by trial Judge in exercise of his discretion – No merit in these grounds of appeal.

PROPERTY ORDERS – Whether trial Judge failed to give appropriate weight to asserted informal agreement between parties at separation – Whether trial Judge gave insufficient weight to husband’s initial contribution and erred in attributing contribution made by wife’s parents as a contribution made on wife’s behalf – No error demonstrated by husband in trial Judge’s assessment of contributions – Nor was there any error in trial Judge’s assessment of relevant factors under s 75(2) – No appealable error in property orders made by trial Judge.

APPLICATION – To adduce further evidence – Not appropriate that evidence sought to be adduced be admitted – Application dismissed.

Appeal dismissed.
Application dismissed.

Legislation considered
Family Law Act 1975 (Cth), ss 60B, 61B, s 61C, s 61D, 64B, 65D, 65E,
75(2), 79

Cases considered
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
CDJ v VAJ (1998) 197 CLR 172; FLC 92-828
Gosper (1987) FLC 91-818
Gray (2005) FLC 93-228
HousevThe King (1936) 55 CLR 499
F and K [2003] FamCA 612
Kessey (1994) FLC 92-495
P and B [2002] FamCA 409
Pierce (1999) FLC 92-844
VR v RR (2002) FLC 93-099
Woodcock (1997) FLC 92-739

APPELLANT: Z

RESPONDENT: Z

FILE NUMBER: MLF 2980 of 2003

APPEAL NUMBER: NA 62 of 2005

DATE DELIVERED: 22 September 2006

PLACE DELIVERED: Melbourne

JUDGMENT OF: Finn, May and Boland JJ

HEARING DATE: 1 March 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 4 August 2005

LOWER COURT MNC: [2005] FamCA 717

REPRESENTATION

The husband appeared on his own behalf.

The wife appeared on her own behalf.

ORDERS

That the appeal be dismissed.

FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA 62 of 2005

FILE NUMBER: MLF 2980 of 2003

Appellant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This is an appeal by the husband against orders made on 4 August 2005 by Warnick J at the conclusion of competing applications for parenting orders and property settlement. The respondent wife in her submissions seeks that the husband’s appeal be dismissed.
The parenting proceedings concerned the parties’ only child A who was born in August 1993, and was aged 12 years at the date of the trial.
The trial Judge made orders that A live with the wife, that she have sole responsibility for his long term care, welfare and development and that the husband have defined contact during school holidays in Melbourne as well as other specified contact. His Honour found the parties’ property, which had a total value of $294,267.00, should be divided as to 65 per cent to the wife and 35 per cent to the husband.
Before us, as before the trial Judge, neither party was legally represented. The husband’s grounds of appeal as drafted are somewhat difficult to discern, and contain material more in the nature of submissions than grounds of appeal. However, having had the opportunity to clarify with the husband at the hearing of the appeal his areas of complaint, we discern the husband’s appeal in respect of the trial Judge’s parenting orders falls into essentially two categories of grounds.
Firstly, he asserted the trial Judge did not afford him procedural fairness. In support of this ground the husband asserted the proceedings were conducted ‘in [an] atmosphere of hurry and rush’ and this ‘grossly affected the way I preceded through the case’. He further asserted that he was not afforded an opportunity to cross examine the author of the Family Report, Mr O.
The second broad ground of complaint against the trial Judge’s parenting orders relates to the exercise of discretion by the trial Judge. The husband asserted the trial Judge erred:
·   in making an order that the wife have sole responsibility for making long term, as well as day to day, decisions concerning the care, welfare and development of A;
·   in making orders that A have contact with the husband limited to school holiday contact with a three month notice requirement, and in failing to make an order for telephone contact enabling the husband to call the wife’s landline;
·   in giving improper or inappropriate weight to A’s wishes;
·   in failing to make an order regarding A’s religious upbringing; and
·   in not restraining the wife from removing A from the Brisbane metropolitan area.
The husband’s complaints about the trial Judge’s orders in respect of the property settlement under s 79 of the Family Law Act1975 (Cth) (‘the Act’) are primarily an attack on the exercise of discretion by the trial Judge. The husband asserted the trial Judge:
·   did not give sufficient, or any, weight to an alleged informal agreement reached between the parties at the time of separation;
·   failed to give appropriate weight to his initial financial contribution to the construction of the matrimonial home, and;
·   was in error in treating contributions made by the wife’s family as contributions made on her behalf, rather than as a financial contribution on behalf of both parties.
The husband inferentially, in challenging the trial Judge’s overall assessment of contributions and s 75(2) factors, and arriving at a division of the parties’ modest pool of property totalling $294,267.00 as 65 per cent to the wife and 35 per cent to the husband, asserted that such an assessment was outside the generous ambit of discretion available to his Honour.

BACKGROUND

There is no challenge to any factual background matter contained in the trial Judge’s reasons. The background relevant to the parenting proceedings is succinctly set out by his Honour as follows:
‘9.     Each of the mother and father was born in Poland, the father in 1954, the mother in 1966 … they married [in] July 1991 in Poland. They came to Australia in about September 1991.
10.    The mother had in her care a child of an earlier relationship, [O], born [in] September 1987.
11.    The child [A] was born [in] August 1993.
12.    The parties separated [in] April 2002. Both [O] and [A] continued to reside with the mother.
13.    Shortly after the separation, the father returned to Poland. He stayed there for some months. During that time he made a few phone calls to the children.
14.    When he returned in December 2002 he stayed with the mother and the children for two weeks or thereabouts, but then he went to Melbourne to live. He remains living there, with his mother, in a rented unit.
15.    In January 2004, the parties entered into interim orders by consent, made in the Melbourne Registry. These orders provided that [A] live with the mother, the father to have contact for half of all school holidays, upon providing a copy of a pre-paid return air ticket for the child no less than four weeks before travel.
16.    There were also restraints relating to the consumption of alcohol by the father on and leading up to contact, and to denigration and course [sic] language by either party.
17.    A further consent order, entered into in Brisbane on 14 December 2004 added the following restrictions:
“1.Pending the final hearing for the application for parenting orders that the MOTHER be restrained and an injunction do issue restraining her from moving the residence of the child, [A] born 9^th August 1993, from South East Queensland.
2. The MOTHER be restrained and an injunction do issue restraining her from insisting or permitting any other person to insist that the child participate either with her or individually in the practices of the Roman Catholic religion.”’
We set out below other relevant factual matters from the judgment which include the following.
At the commencement of cohabitation the wife had no assets. The husband had approximately $65,000.00 from the sale of a property prior to the marriage.
In 1993 the wife received $40,000.00 from her parents which was applied to the construction costs of the matrimonial home. The wife received other contributions from her parents which she estimated at over $55,000.00.
During the marriage the husband engaged in studies at the University of Queensland and was in receipt of Austudy between 1995 and 1997. He thereafter conducted PhD research between January 1998 and June 2001, during which period he was in receipt of a scholarship of $16,500.00 per annum tax free. He earned additional income between July 1999 and June 2001 as a casual tutor or lecturer.
In November 2001 the husband commenced to receive a disability pension.
In about 2003 the wife commenced a relationship with Mr OC. Mr OC resided in Sydney.

THE TRIAL JUDGE’S JUDGMENT

Children’s Issues

The trial Judge, having set out in broad terms the nature of the applications before him and the background of the parties, identified the matters in dispute between the parties concerning A. His Honour noted that in mid 2003 the husband became concerned ‘… that Christian beliefs were being forced upon the child, in circumstances in which the mother had developed a relationship with a Mr [OC] in Sydney, he being a devout Christian’. The trial Judge noted the husband’s belief that the wife was about to ‘… take up residence with Mr [OC]’.
The trial Judge referred to the Family Report prepared by a Court counsellor, Mr O, who interviewed the parties and A.
The trial Judge noted the husband, having read Mr O’s report and spoken to A, said that he accepted the child’s wish to remain living with the wife, and that he did not pursue an order that A would live with him.
The trial Judge recorded the wife’s evidence that it was possible she may move to Sydney, although she had no present intention to do so. The trial Judge accepted the wife’s evidence on this point. In considering A’s wishes, the trial Judge recorded those wishes as reported to Mr O as follows:
‘… that [A] said:
“…that he would prefer to live with his mother although if he had to live with Mr [OC] he would rather go to live with his father. Despite his wishes, when asked how he feels about the judge making the decision, [A] commented I would feel OK either way”.’
The trial Judge discussed the difficulties involved with the husband’s proposition, namely that an order should be made that A live with him in the event that the wife commenced cohabitation with Mr OC, was one which required ‘… a determination now that, if a future event arises, it will be in the child’s best interests to live with the father, notwithstanding that such a decision would ordinarily be best made in the light of all pertinent circumstances at any given time’ (original emphasis).
Having noted the lack of evidence before the Court to enable such a decision to be made, the trial Judge then turned to A’s wishes noting ‘in the end, [he would] be prepared to leave the decision up to the court [sic]’.
The trial Judge concluded that it would be undesirable to make findings which would be necessary if ‘the present residence of the child was in issue’. His Honour concluded ‘[a]ccordingly, I do no more than note the present residential arrangements are not in issue’ (original emphasis).
The trial Judge then turned to the restraint on relocation sought by the husband, who wanted to restrict the wife from relocating A outside the Brisbane or Gold Coast locale. His Honour noted the unusual nature of the order sought, given the geographical distance between the parties. The trial Judge noted that the restriction was directed towards the possibility the wife may move to Sydney, that such a move would not interfere with contact arrangements, and that it was ‘difficult to see why such an order would be made, unless it arose out of a determination that the child should not reside in the same household as Mr [OC]’.
The trial Judge also noted the imposition such an order would make on the wife’s freedom of movement and the trial Judge said he would not make the order as sought by the husband.
The trial Judge then turned to consider contact issues. His Honour noted the husband reported to Mr O that he was ‘… happy to continue with the current level of contact’. The trial Judge discussed the parties’ competing positions, namely that the husband preferred an open-ended arrangement and the wife sought specificity to enable planning, limit communication and reduce prospects of conflict. The trial Judge adopted the proposals in the wife’s Summary of Argument about face to face contact.
His Honour then turned to the issue of telephone contact and disclosure of the wife’s residential address. Having set out the orders sought by the husband which required the wife to provide him with her current landline telephone number, Warnick J noted the wife’s opposition to such an order on the basis that the husband had been abusive to her.
The trial Judge recorded the wife had tendered translations of emails and made a finding that the emails were ‘… distinctly aggressive and abusive’. The trial Judge noted the wife’s proposal that A himself be able to telephone the husband as he wished and found that, as the wife was unlikely to interfere with telephone contact, such an arrangement was an appropriate one.
The husband sought two orders touching upon A’s schooling and matters relating to religion. The trial Judge set out in full the orders sought by the husband as follows:
‘“2. The mother agrees to bring up [A] in a secular way and not to force, pressure or attract him into any form of religious worship, practices or rites. Also, [the] mother’s respective servants and agents are to be restrained from forcing, pressuring or attracting him into any form of religious worship, practices or rites.
3. [A] is to be placed in a non-denominational school. The exact details of which are to be agreed between the parents. Also, any future issues concerning choice of school [A] will attend are to be agreed between both parents.”’
Having found A was happy at his present school, that he accepted the mother’s evidence about religious beliefs and the inappropriateness of making an order as sought by the husband about A’s religious education, the trial Judge declined to make the orders sought by the husband concerning A’s schooling and religious beliefs.

Property Issues

In dealing with the competing applications under s 79, the trial Judge noted that the husband sought an equal division of the net sale of proceeds of the matrimonial home, or payment of a sum equal to half of the equity in the home on the basis there was an agreement as to such a division between the parties. He also noted the husband’s alternate proposal for the wife to remain in occupation of the home but to pay rent to him. Such rental payments were to be applied to school fees for the wife’s child O.
The trial Judge also noted the wife’s position, namely that she sought to retain the matrimonial home on a payment of 30 per cent of its current market value to the husband over a period of 12 months and the husband to discharge the mortgage debt secured over the home from his share of the proceeds of the payment to be made by her.
The trial Judge recorded the husband’s initial contribution of $65,000.00 which contribution is not in dispute in this appeal. His Honour also set out the contributions alleged by the wife during the course of the parties’ cohabitation, the husband’s income, which was derived from a scholarship, as well as income from a position as a casual tutor or lecturer between July 1999 and June 2001. He also noted the wife’s assertion that the husband did not generally assist around the home or with the care of the children.
The trial Judge then turned to examine the events between separation and trial, including the husband’s assertions in relation to an agreement between the parties.
The trial Judge set out the parties’ respective ages and income at the date of trial and then recorded the assets, liabilities and financial resources of the parties as found by him. The husband disputed the trial Judge’s inclusion into the list of assets and liabilities available for division between the parties a debt of $6,000.00 to K College which debt he included in his Financial Statement.
Having discussed various assets and liabilities of the parties which were not in dispute, the trial Judge turned to an assessment of contributions and made the following finding:
‘90. Though the monies and the other contributions from the mother’s parents were given to both parties, as they came from her parents it is appropriate that the mother receive credit for them’.
The trial Judge noted the slightly greater direct financial contribution by the husband attributable to the disparity between the husband’s initial contribution and that from the wife’s parents. His Honour found that the wife made ‘… the significantly greater non-financial contribution as homemaker and parent’. The trial Judge also made findings about the wife’s greater contribution post separation to A’s care, the benefit she had received by reason of her occupation of the matrimonial home, noting that ‘… except for the father’s contributions until mid-2004, [she has] maintained it and met associated outgoings’. The trial Judge concluded his assessment that the contributions of the parties were of ‘equal weight’.
The trial Judge thereafter considered relevant factors under s 75(2) noting that the wife would have the primary care of A. He also considered the husband’s age, his dependence on a disability support pension for some time and concluded that he doubted the husband had ‘… much of a capacity to earn in the future’.
The trial Judge concluded the wife had ‘probably something of a better earning capacity’ but found that capacity to be modest and limited by English not being her first language and her responsibility for the care of A.
His Honour concluded that the financial and non-financial burden of A’s care was likely to fall overwhelmingly to the wife and made an adjustment of 15 per cent, or $44,140.00 to reflect appropriate factors under s 75(2).
The trial Judge then considered the overall justice and equity of the orders and concluded that the husband should be entitled to 35 per cent of the net assets or $102,993.00 and if such sum was not paid within 90 days, the house should be sold.

THE PROCEDURAL FAIRNESS GROUNDS

As we identified above, the husband relied on two bases for his assertion he was not afforded procedural fairness, namely that the trial was ‘rushed’, and that he was not afforded the opportunity to cross examine Mr O.
The husband was unable to take us to any part of the transcript which supported his assertion that the trial Judge had rushed the hearing or had curtailed in any way his presentation of his case.
A reading of the transcript reveals that the trial Judge assisted the parties to identify the relevant applications requiring determination and referred the husband to specific relevant sections of the Act in respect of both the parenting and property proceedings.

The trial Judge, having identified the material to be relied on by the parties, referred to ‘… the considerable deficiency of evidence’ and asked the parties whether they wished him to proceed with the hearing. Thereafter, his Honour carefully explained the procedure to be adopted at the hearing including the manner of giving evidence, objections to the tendering of documents and then asked the husband whether he had any questions, to which the husband replied ‘No’.
The husband sought to rely on an affidavit filed by a lay witness, Mr N and the trial Judge read this affidavit. Mr N was not required for cross examination. We return to the husband’s complaints about the treatment of Mr N’s evidence shortly.
At the outset of the trial, the trial Judge asked the parties if either wished to cross examine Mr O, and when the husband confirmed he wished to do so, his Honour pointed out the necessity to advise Mr O he would be required in Court. At the conclusion of the parties’ evidence the following exchange occurred:
‘HIS HONOUR: Just a moment, thank you. I’m sorry, you’ve just reminded me, I’ve made a mistake. I’d forgotten about Mr [O], because both of you wanted to ask him questions.
[THE WIFE]: No, I don’t.
[THE HUSBAND]: Well, your Honour – sorry.
HIS HONOUR: No, you – well, let’s deal with my mistake first. I shouldn’t have asked [the wife] to address me, I should have decided about Mr [O], who is available if we want him. I don’t know whether he’s available now, but he would be available if not now, tomorrow. So I’m sorry, that’s my mistake, I’ve overlooked that. Now, what do you want to do about that, [to the wife]? Do you want to ask Mr [O] questions?
[THE WIFE]: No, your Honour, I don’t. I am - - -
HIS HONOUR: What about you, [to the husband]?
[THE HUSBAND]: But, your Honour, as a professional I wouldn’t question another professional.
HIS HONOUR: Yes.
[THE HUSBAND]: It’s academic integrity.
HIS HONOUR: Yes.
[THE HUSBAND]: But there’s certain things I would like to ask Mr [O] to clarify, because the point - - -
HIS HONOUR: All right. So we should have Mr [O] then, should we?
[THE HUSBAND]: No, I explain you – perhaps you think its [sic] not necessary. But can I in a minute explain myself?
HIS HONOUR: Well, I – all right, go ahead.
[THE HUSBAND]: The case is about parenting. If I said the child has been psychologically abused by enforcing certain ideas, well, perhaps in the report there should be clear statements saying what the intellectual world view of the child is. And it’s not. The other thing is issue of parenting. Well, that was – probably would be a very simple thing to ask then my stepson, [O], what he thinks about me. That would give you the clue what sort of the parent I am. And these questions are not asked and there’s nothing like that in the family report.
So on the one hand, I don’t challenge the findings of the family report, I wouldn’t question another professional, but in the sense it deprives me of the – the bulk of my evidence is the children – what the children said and it’s not that. So I leave it at that stage, your Honour.
HIS HONOUR: All right, so I take it you’re content not to ask Mr [O] questions? Anything else then you want to say?
[THE HUSBAND]: No, that’s all, your Honour.’
There was nothing to which the husband drew our attention which supported his assertion that the trial was conducted in a way which afforded him a lack of procedural fairness. To the contrary, the trial Judge pointed out deficiencies in each party’s evidence, provided the parties with relevant extracts from the Act and gave a careful explanation of procedure including cross examination and re-examination.
The exchange between the husband and the trial Judge which we have extracted above demonstrates the husband did not pursue his application to cross examine Mr O.
We are satisfied that the husband’s complaints of lack of procedural fairness on the two identified bases are without merit.

Mr N’s evidence

In ground 21, the husband asserts that he was denied procedural fairness in that an affidavit of Mr N did not appear to have been taken into consideration by the trial Judge, or it had been marginalised.
The trial Judge read Mr N’s evidence in the proceedings. He was not required for cross examination. Mr N’s evidence comprised his affidavit sworn on 17 November 2004. Mr N’s evidence was that he had met the parties in 1995. He said that at that time the wife was an atheist who expressed a ‘very strong opposition to teaching religion in Polish Language Saturday School [in] Qld’.
The majority of the material in Mr N’s brief affidavit was extremely general with the consequence it could have carried little weight. We do not accept failure by the trial Judge to mention this uncontested evidence constitutes appealable error.

GROUNDS RELATING TO PARENTING ORDERS

That the trial Judge erred in the exercise of his discretion in making an order that the wife have sole long term care and responsibility for A

Before us, the husband submitted that the trial Judge was in error in making an order that the wife have sole responsibility for making long term decisions in respect of A. He submitted that he was a responsible parent who had done nothing disentitling him from maintaining joint long term parental responsibility. He asserted the trial Judge had based his determination on the geographical separation between the parties.
In his written submissions the husband said inter alia ‘[n]o parental misconduct or negligence on my part was demonstrated during the hearing and in [the] Judgment, which would justify such a decision’.
In dealing with this ground we find it is appropriate, as a starting point, to refer to the relevant provisions of the Act as it stood when the trial Judge delivered judgment. By operation of s 61C(1) of the Act, each of the parents of a child who is not 18 years of age has parental responsibility for the child. Parental responsibility was then defined in
s 61B as meaning:
‘… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’
Section 61C(3) provided that:
‘Subsection (1) has effect subject to any order of a court for the time being in force…’
Section 61D(1) provided:
‘A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.’
Subsection (2) provided:
‘A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a)          expressly provided for in the order; or
(b)          necessary to give effect to the order.’
Section 64B(2) provided:
‘A parenting order may deal with …
(a)       the person or persons with whom a child is to live;
(b)       contact between a child and another person or other persons;
(c)       maintenance of a child;
(d)       any other aspect of parental responsibility for a child.’
Section 65D(1) provided:
‘In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.’
The effect of the provisions of the Act, including the objects section
(s 60B) and its relationship to s 65E, was discussed in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,238.
In P and B [2002] FamCA 409 the Full Court considered an appeal against a decision of the trial Judge to grant the mother, who was relocating with the parties’ only child to Canada, sole parental responsibility for long term decisions concerning the child. The Court accepted the trial Judge’s findings that the father had very little involvement in the child’s life until the mother’s application, that there was a very high level of conflict between the parents and an extremely hostile attitude displayed by the father to the mother. The Full Court referred to VR v RR (2002) FLC 93-099 and found in the circumstances of the particular case, it was proper ‘to move away from the statutory starting point and make an order granting the wife the sole rights concerning the child’s long term welfare’ (at [59]).
In VR v RR (supra) at 88,940 the Full Court, discussing parental responsibility, said:
‘28.   The overall framework of the legislation can be seen to provide that both parents have parental responsibility for the child but that a court may take away or diminish an aspect of parental responsibility if it is “proper” to do so.
29.    Whilst the word “proper” connotes a very wide area of discretion, in our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
30.    In our view it is not the role of the Court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The Court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference.’
Prior to his discussion under the heading ‘Responsibility for long term care – joint or sole’, the trial Judge set out the orders sought by the husband dealing with the child’s schooling and religious beliefs.
His Honour also set out the husband’s affidavit evidence in relation to the wife’s religious practices and practices prior to and during the marriage, as well as after separation.
The trial Judge recorded that the wife said ‘she is a Catholic but suppressed her beliefs during the relationship’. The trial Judge accepted the evidence of the wife that it was her belief that A should be able to make a choice about religion for himself in his adult life.
The trial Judge thereafter examined the evidence which disclosed the wife had enrolled A in a Catholic school and the husband’s affidavit material in which he deposed that A was showing some distress as a result of pressures from Mr OC to participate in religious activities.
The trial Judge set out a number of extracts from Mr O’s report including his recommendations.
His Honour concluded:
‘59. Accepting for the purposes of further discussion that the court [sic] has the power to make orders circumscribing the capacity of a parent to raise a child according to a particular set of beliefs, in my view, there are a great many good reasons for not doing so, though there may be extreme cases in which such an order is in a child’s best interests’.
The trial Judge thereafter discussed the issue of whether long term responsibility for A should be exercised jointly by the parties or solely by the wife.
Having recorded Mr O’s view that there was a significant power imbalance within the relationship, the trial Judge noted that the wife had obtained a temporary protection order under the domestic violence legislation in January 2005. His Honour considered the geographical separation of the parties, and ‘the dogmatism’ of the husband (evidenced in his emails).
Although the emails were not contained in the appeal books, copies and translations thereof were made available for us at the hearing of the appeal. The husband conceded before us that his actions around the time of the separation were not appropriate.
The trial Judge set out his findings on the evidence which supported his reasoning in making the order that the wife have responsibility for the long term care and welfare of the child as follows:
‘63. Having regard to geographical separation of the parties, the dogmatism of the father as evidenced in his own material and the abusive tone of the emails referred to, I am of the view that it would be too much to expect the parties to co-operate in decision-making for [A] and that the mother, at least for the present, should have the sole responsibility for the long term care, welfare and development of [A].’
In reaching his decision to make an order that the wife have responsibility for A’s long term care, welfare and development, the trial Judge had before him the unchallenged evidence of Mr O who commented that information provided by the wife ‘“…was indicative of a significant power imbalance within the relationship…”’. His Honour also had regard to the fact that the wife had obtained a temporary protection order against the husband in 2005 under the relevant domestic violence legislation.
Having regard to all of the evidence before the trial Judge, including in particular the husband’s emails, we are satisfied it was open on the evidence for the trial Judge to find the parties would not be able to cooperate in relation to decision making for A. In making such a finding the trial Judge clearly took into account the husband’s conduct and attitude, as displayed in his material and the emails, as well as the geographical distance between the parties with the wife residing in Brisbane and the husband residing in Melbourne.
We are satisfied that the decision reached by the trial Judge was open to him in the exercise of his discretion, and we find no merit in this ground of appeal.

Holiday contact notice and telephone contact notice

We discuss below the husband’s complaints about a number of aspects of the parenting orders made by the trial Judge and the trial Judge’s dismissal of or failure to make some of the orders as sought by the husband in his application. All of these asserted grounds of appeal, as does the husband’s challenge to his Honour’s property orders, involve the exercise of discretion by a trial Judge. The law in respect of the generous ambit of discretion of a trial Judge is well settled. In HousevThe King (1936) 55 CLR 499, at 504 - 505, Dixon, Evatt and McTiernan JJ said:
‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials to do so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error many not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
The gravamen of the husband’s complaint about the orders made for school holiday contact is that they are subject to a proviso that the husband give three months written notice.
In his written submissions the husband said ‘[t]he issue of [A]’s holidays was solved by signing the Consent Order on 6^th of January 2004, by me and [the wife]. The “at least 3 months” condition was not a part of the agreement. In her Final Order from 30 May 2005 [the wife] did not ask for that condition either.’
The wife, in her amended written submissions, did not address this asserted ground of appeal, nor did she make any oral submissions before us about the ground.
In examining this ground we find it is also convenient to discuss the husband’s complaints about the trial Judge’s orders in relation to telephone contact.
The husband in his amended application sought an order as follows:
‘4. The mother agrees not to restrict contact with [A] and agrees to provide the father with [A]’s current landline telephone number. The father should be notified immediately about any changes to the child’s landline telephone number.’
By contrast the wife sought in paragraph 5 of her Amended Response filed on 17 December 2004 the following orders concerning telephone contact:
‘5. If the parties are residing in different states that child to have contact with the husband as follows:
…
c. By telephone once per week at a time to be agreed between the parties.
d. The child to be able to contact the husband by telephone at all reasonable times as instigated by the child.
…
11. The wife is not required to provide the husband a land line telephone number’ (original emphasis).
Dealing firstly with the notification provision in the contact orders, we note that Mr O in his report made the following recommendations:
‘(c) [The husband] to provide written notice of his intention to exercise contact at least 3 months in advance
…
(f) Telephone contact to occur at all reasonable times. [The wife] to provide [A] with a mobile phone and ensure that it is kept in good working order and is charged at all times. Alternatively provide [the husband] with a landline telephone number.’
We accept that the trial Judge does not specifically discuss his acceptance of Mr O’s recommendations. However, his Honour clearly noted the different form of applications sought by the parties, namely ones in which the husband sought flexible orders including an order
‘“… the child be allowed to visit me, from time to time when I can afford it…”’. The trial Judge noted that the wife sought specific orders. His Honour said:
‘40. I accept the submissions of the mother that there is a need for specificity, both to enable planning, but also to limit the need for communication between the parties and reduce the prospect of conflict where the details of contact would need to be negotiated between the parties’.
The High Court has rejected the proposition that a trial Judge in a parenting case must discuss each and every aspect of a party’s evidence and submissions. In CDJ v VAJ (1998) 197 CLR 172; FLC 92-828, at 236 - 237; 85,468 Kirby J said:
‘10. A final consideration is pertinent, both to the approach that is proper to the Full Court reviewing the primary judge and to this Court reviewing a decision of the Full Court involving the evaluation of competing considerations and the exercise of a judicial discretion. Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, whilst they must be adequate for the purposes of the exercise of any right to appeal cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision. This is true of the decision of the primary judge, expressing the combination of “main considerations” that led to his ultimate conclusion that the children should reside with one parent rather than another. But it is also true of the Full Court in performing its appellate function and concluding that, exceptionally, further evidence should be received, that an error has occurred and that a retrial should be ordered. Inescapably, at both levels of the judicial process, intuition plays a part in the ultimate decision. It will sometimes be hard to explain. An appellate court will recognise the fact that it is dealing with the orders and reasons of a specialist judge. This Court, for its part, will appreciate that it is hearing an appeal from a specialist court. One function of the Full Court of the Family Court is the achievement of general consistency in the approaches taken within the Court. Where questions of evaluation and discretion are involved this Court, constitutional issues apart, should interfere as little as possible out of a recognition of the Parliament’s purpose in establishing a specialist Family Court with its own appellate structure, functions and remit.’ (footnotes omitted, emphasis added).

Additionally, in Gray (2005) FLC 93-228 at 79,766, the Full Court held:
‘[I]t is not incumbent upon a trial Judge to overtly consider every piece of evidence advanced in a case, particularly where such evidence is of marginal or no relevance and the course of, and the reason for, the Court’s determination is otherwise clear.’
We discern no appealable error in the trial Judge’s finding that it was appropriate there be specific orders with limited communication between the parties and that this finding impliedly encompassed the provision made by the trial Judge for three months written notice prior to the exercise of contact. Such provision provides certainty as to when contact will occur and minimises the need for communication between the parties.
The trial Judge specifically dealt with the parties’ competing positions about telephone contact in his reasons for judgment. The trial Judge provided cogent reasons, based on the evidence before him, for the telephone contact orders. In particular, he had regard to the wife’s evidence about abusive telephone calls and the husband’s emails. Significantly, he had regard to A’s age and his Honour’s assessment that the wife would not ‘interfere with telephone contact’. In these circumstances we find no merit in the husband’s grounds directed to the contact orders.

Asserted failure to give appropriate weight to A’s wishes

From ground 14 of the husband’s grounds of appeal, and his written and oral submissions, we discern that his complaint about the treatment of A’s wishes is inextricably bound up with the husband’s assertions that the trial Judge should have made a ‘conditional’ residence order in the event that the wife relocated to Sydney, and orders dealing with the question of A’s religious upbringing.
In relation to the former, the husband in his written submissions said:
‘4F. I appeal against the dismissal of Specific Issues Order 4, sought by me concerning relocation of the child to Sydney. I argue that it will destroy the environment he has known for his entire life. I am of the opinion that if his “world” as he has known [it] will cease to exist, and with parents in disagreement, the wishes of the child should be a determining factor in this matter. [A] has expressed his wish to live with me if his mother relocates to Sydney’ (original emphasis).
In her written submissions the wife set out, as did the trial Judge, Mr O’s report of A’s wishes ‘“…that he would prefer to live with his mother although if he had to live with Mr [OC] he would rather go to live with his father. Despite his wishes, when asked how he feels about the judge making the decision, [A] commented I would feel OK either way”.’
Before the trial Judge, the husband cross examined the wife about any proposal to relocate to Sydney. The wife’s evidence on her potential relocation was as follows:
‘[THE HUSBAND]: [To the wife], did you express your intention to move to Sydney in late 2003?---Yes and no.
Thank you. Do you still intend to move?---Is this the question?
HIS HONOUR: Yes.
[THE HUSBAND]: Yes?---No, I don’t intend to move at the moment.
HIS HONOUR: Have you any present intention to move at any particular time in the future? ---No. No, none whatsoever.
What are your thoughts about moving to Sydney, is it possible?---It certainly is possible, because I am - - -
Is it probable?---Yes, I am in the relationship with someone from Sydney. But the relationship is casual only, so I do not intend to move, as I said at the moment, but I am not excluding the possibility in the future.
What’s your best guess? When do you see yourself moving to Sydney?---I don’t think that I will move at all.
Well, you just answered to me that it was probable that you would move to Sydney?---No, not probable. It’s not impossible, but I do not have any intention of moving whatsoever, at the moment.’
The trial Judge accepted, as he was entitled to do, the wife’s evidence on this point. The husband conceded it was appropriate for A to live with the wife. Having noted that the husband sought an order restraining the wife’s relocation of A ‘“to another town (except within Brisbane – Gold Coast – Sunshine Coast metro areas) without a written consent from the father”’.The trial Judge commented:
‘30. This is a requirement asked for in unusual circumstances, where the mother and the father already live in locations far apart. It would seem an oddity that, if the mother wished to move to Melbourne or closer to the father’s residence, she could not do so without the father’s consent.
31. However, the restriction is clearly directed to the mother possibly moving to Sydney to live with Mr [OC]. If a possible move would not interfere with then [sic] present contact arrangements, it is difficult to see why such an order would be made, unless it arose out of a determination that the child should not reside in the same household as Mr [OC].
32. As I said earlier, a conditional residence order would prejudge a future situation and in my view, in the circumstances, so would a restraint of the nature requested.’
We accept that the trial Judge was called upon to make orders in A’s best interests at the time of the hearing and not to make orders on a speculative basis about what may happen in the future. As the trial Judge noted ‘[t]he proposition assumes that it can presently be decided that the one event, if it occurs, whenever that is, would alter a presently preferred arrangement, namely that the child live with the mother, to produce a preference that the child live with the father’. His Honour also noted ‘[t]here is also not before the court [sic] the necessary evidence to enable such a decision to be made’. It is clear that the trial Judge carefully noted A’s wishes at the time of the trial, which were to live with the wife and which arrangement was not contested by the husband. We agree with the trial Judge that it would have been wholly inappropriate for him to make an order based on an event which may or may not come to fruition and without regard to the relevant evidence at that time.
The husband inferentially asserted that A’s wishes were not given appropriate weight by the trial Judge when considering the orders sought by the husband in respect of A’s upbringing. We find it convenient to deal with this assertion as part of our general discussion of the issue of A’s religious upbringing, which we discuss below.

A’s schooling and religious beliefs

In his oral submissions before the trial Judge, the husband asserted that there were two matters of relevance in the proceedings:
‘That … my child is not exposed to psychological abuse in [the] form of indoctrination, and he is not relocated from South Eastern Queensland without my knowledge’.
We discern from the husband’s grounds of appeal, his written submissions and oral submissions before us, that questions relating to A’s schooling and religious education were fundamental to the husband’s challenge to his Honour’s orders.
The trial Judge identified the husband’s concerns about A’s education and religious beliefs at the commencement of his discussion under the heading ‘Child Issues’. His Honour noted ‘[u]pon separation the father was not concerned that [A] live with him. However, on his case, the father became concerned in mid-2003 that Christian beliefs were being forced upon the child, in circumstances in which the mother had developed a relationship with a Mr [OC] in Sydney, he being a devout Christian’. Having set out the two orders sought by the husband about A’s religious and general education, the trial Judge referred to the husband’s evidence in chief about the parties’ belief system at the commencement of cohabitation, their civil marriage, that neither O nor A were baptised and ‘“… our common understanding in relation to the children was that things would be carried on as before our separation, avoiding disturbances to the children’s lives as much as possible. The issue of religion and at the time was non-existent and did not come up at all.”’
The trial Judge noted:
‘The mother says she is a Catholic but suppressed her beliefs during the relationship with the father. She says, and I accept, that she believes the child should be able to make a choice of selecting a way of life for himself in his adult life.’
The trial Judge also recorded the wife’s evidence about A’s change of school to a Catholic school, noting that the wife asserted she had made such a change based on academic considerations.
The trial Judge set out extracts from Mr O’s report, including the following:
‘“33. … Although it is not within the realms of this report to comment further in relation to the baptism itself, there was no evidence on the day that suggested that [A] is being “unduly forced” into the religious context of the Catholic father [sic] by [the wife] to the point that this could be considered harmful.
34. [A] did report being forced into religious practices by Mr [OC] for example having to attend church on at least one occasion, he also appeared to have been under the impression that he should share prayers with Mr [OC]’s daughters at night before retiring to bed on one occasion when he and [the wife] visited the family in Sydney.”’
The trial Judge noted when commenting on the likely attitudes of the parents to belief systems during cohabitation Mr O said:
‘“36. …Under these circumstances it is highly unlikely that any choices were given to children regarding this particular religious upbringing. [The wife] appears to have a less rigid viewpoint and it is likely that she would allow [A] greater freedom to explore his developing views.
37. In conclusion, there does seem to be an intrinsic relationship between [the husband]’s loss of power and influence over these matters and his amended application for residency. It would appear that his actions were more reflective of addressing his own needs than those of the [A] [sic]. [The husband]’s current position that he now only intends to challenge residency should [the wife] choose to reside with Mr [OC], further supports this viewpoint.”’
An examination of the evidence reveals that the husband conceded A had told him several days before the trial that he was happy at his present school and that he wanted to attend the local Catholic school because it was close to the wife’s home. The husband also gave evidence that he did not contribute to A’s school fees or expenses.
The evidence before the trial Judge was that A was doing well and was happy at his present school. The trial Judge, who had the unique opportunity to observe the wife during the trial, accepted her evidence about her religious beliefs, and in particular her statement that A should be able to make a choice, as an adult, about his way of life.
His Honour concluded:
‘Accepting for the purposes of further discussion that the court [sic] has the power to make orders circumscribing the capacity of a parent to raise a child according to a particular set of beliefs, in my view, there are a great many good reasons for not doing so, though there may be extreme cases in which such an order is in a child’s best interests.’
The trial Judge gave careful consideration to the unchallenged expert report of Mr O and the evidence of each of the parties. Given the trial Judge’s acceptance of the wife’s evidence we find no error on his behalf in the exercise of his discretion in refusing to make the orders sought by the husband, or any merit in these grounds of appeal.

Failure of trial Judge to restrain the wife from removing A from Queensland

We have already dealt with the husband’s challenge to the trial Judge’s asserted error in failing to make a ‘conditional’ order in the event that the wife sought to relocate to Sydney. The husband’s challenge to the trial Judge’s judgment in failing to restrain the wife from relocating A’s residence from the Brisbane area overlaps to a substantial degree his earlier challenge in respect of the form of his Honour’s orders.
We have already referred to the wife’s evidence relative to any relocation and noted the trial Judge’s comments on the ‘oddity’ of the restraint sought by the husband should the wife wish to move closer to the husband’s home. The trial Judge also had regard to the wife’s freedom of movement.
We are satisfied on the evidence before the trial Judge that his Honour did not err in the exercise of his discretion in failing to grant an injunction restraining the wife from moving A from the Brisbane/Gold Coast area.

PROPERTY ORDERS

Failure to give appropriate weight to asserted informal agreement between the parties

Ground 15 of the husband’s Notice of Appeal appears in part to address this asserted error by the trial Judge. The wife did not provide any submissions in respect of this alleged ground.
The trial Judge referred to the orders sought by the husband as follows:
‘67. Effectively, the father sought equal division of net sale proceeds of the former matrimonial home, or payment of half the equity in the home, remarking in his address that he thought it arguable that the mother would not be entitled to that much, but he adhered to an agreement of the parties.’
The husband’s affidavit evidence contained no details of financial or other contributions made by him. He did however provide an annexure to his Financial Statement. In that annexure he said ‘[d]uring our marriage, at the time of separation, during the divorce and until 9^th of July 2004 there was common understanding between us that we share everything on the 50-50 basis’.
He further said:
‘9. When our marriage broke out (April 2002) my ex wife intended to sell the house and divide proceedings 50-50. I have convinced her that for her and [the] children[’s] sake it will be much better if she stays in the house until we both know how our lives will turn up (mortgage payments for the house where [sic] at that stage around $75 per week).
10. Prior to my departure to Europe in June 2002 we have reached a following verbal agreement: Each of us shares 50 percent of the house. My ex wife stays in the house for a year, and then we make a decision what to do with our property. She pays the mortgage of $ 75.00 (seventy five) per week. On my part I do not charge her for renting of my share of the property (estimated weekly rent of the property $ 240.00 as per Sworn Evaluation attached). I do pay 50 % of Council Rates, and 50 % of major repairs and improvements to the house.’
The wife in her affidavit sworn 8 July 2005 deposed to making all of the mortgage payments in respect of the matrimonial home following separation. She additionally deposed to paying for A’s school fees, school uniforms and books as well as the children’s clothing, shoes and other expenses relating to them. The husband did not cross examine the wife about any matters relating to the property proceedings. In his oral submissions before the trial Judge the husband reasserted his position ‘[i]t has been always 50/50’.
The status of an informal agreement, which has not been finalised by the making of consent orders, does not oust the jurisdiction of the Court under s 79, see Woodcock (1997) FLC 92-739 and F and K [2003] FamCA 612. In Woodcock (supra) at 83,968, the Full Court, referring to the provisions of the Act then in force said:
‘In our view the cases referred to above clearly indicate that the Court's jurisdiction to grant relief under s 74 or 79 can only be ousted by court order or by an agreement approved pursuant to the provisions of s 87. It may be that the ability of a court to take into account the terms of an unapproved agreement creates in the words of Hoffman LJ “the worst of both worlds” as it will be impossible to predict from case to case, exactly what weight ought to be given to the agreement (Schokker v Edwards: agreement followed; c/f Klesnik: agreement given little weight). However it is the dominant and unwavering thread of all of the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the Court.’
The trial Judge set out the husband’s assertions about the agreement when documenting the parties’ evidence about events occurring between separation and the trial.
The husband did not dispute that the wife had paid all mortgage payments after separation and had solely provided for the financial and other support of A, with the exception of the expenses associated with the husband’s contact with him. Having regard to the manner in which the case was conducted before the trial Judge, and his Honour’s assessment of the parties’ respective contributions, we discern no error in his Honour not making orders in identical terms to the agreement asserted by the husband, as such an outcome would not have properly reflected the parties’ respective contributions, relevant factors under
s 75(2), or led to orders which were just and equitable in the circumstances. We find no merit to this ground.

The contribution grounds

The nub of the husband’s complaint about the trial Judge’s assessment of contributions is his assertion that the trial Judge gave insufficient weight to his initial contribution of the sum of approximately $65,000.00, and that he attributed the funds provided by the wife’s parents, which he conceded to be at least $40,000.00, as contributions made on behalf of the wife.
The weight to be afforded to initial contributions is comprehensively discussed in Pierce (1999) FLC 92-844 at 85,881 and in particular at [28], where the Full Court said:
‘In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase of the matrimonial home.’
The husband provided no evidence to support his claim that his initial contribution was $65,000.00. However, such assertion was noted by the trial Judge as undisputed by the wife.
The trial Judge did, as was open to him, accept and prefer the wife’s evidence to that of the husband as to contributions made by her parents. In the exercise of his discretion in assessing contributions, the trial Judge said ‘[t]hough the monies and the other contributions from the mother’s parents were given to both parties, as they came from her parents it is appropriate that the mother receive credit for them’.
This Court has regularly dealt with the question of gifts, advances or loans made to parties to a marriage by members of their family (see Gosper (1987) FLC 91-818 at 76,168 and Kessey (1994) FLC 92-495 at 81,149 - 81,151). In the latter case Baker, Finn and McCall JJ held:
‘It was submitted by counsel for the appellant husband that Gosper is distinguishable from the present case because Gosper was concerned with the matter of gifts and in the present case there is no evidence of a gift. In our opinion the application of the principles enunciated in Gosper should not be so limited. Rather, those principles should be regarded as being applicable in all cases where there has been an advance of money or property by a parent (or perhaps even by some other relative) of one of the parties, to one or both of the parties (or to their property), and the circumstances of the advance cannot be categorised as a loan, or as any other recognised commercial transaction.’
In Gosper (supra) at 76,168, Fogarty J said:
‘Where a gift is made solely to the donor’s relative (for example a gift by parents to their married daughter) and that spouse applies that property to the marriage, that is a direct financial contribution solely by that party and will be assessed in the ordinary way alongside other contributions by each party to the marriage.
…
The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to Court in such a case to look at the actuality and treat that as a “financial contribution made directly ... on behalf of” the spouse relative (see for example Rainbird, Matthews, W., Underwood, Abdullah, Freeman , cf. Cleary, Hogan J. in Freeman , and Antmann ).
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made “because she was a daughter of that family” as was said in W.'s case at p. 75,527.
It is clearly a “financial contribution” and one “made directly” to the acquisition, conservation and improvement of property. In such cases it is open to the Court to conclude, if the facts justify it, that it was made “on behalf of” one spouse.
In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them.
These views are consistent with the statement in Lee Steere and Lee Steere (1985) FLC ¶ 91-626 at p. 80,078 . I do not consider that the views of the Full Court in Antmann or the observations of Hogan J. in Freeman require the opposite conclusion.’

The husband provided no material to support his contention that the funds and other goods and services provided by the wife’s parents were intended to benefit the parties jointly.
We are satisfied that the trial Judge’s treatment of the contributions by the wife’s parents was well open to him on the evidence in this case and was consistent with decided authority. The trial Judge, in his reasons for judgment, set out the matters he took into account in arriving at his assessment of the parties’ respective contributions. That assessment recognised the husband’s initial substantial contribution and other contributions throughout the marriage. The trial Judge also recognised the significant financial contributions made on behalf of the wife and her predominant role in the care of A both during the marriage and post separation. No error has been demonstrated by the husband in the trial Judge’s assessment of contributions, which we are satisfied is within the generous ambit of his Honour’s discretion.
Similarly, having regard to the parties’ respective financial circumstances, and in particular the wife’s ongoing responsibility for A, we discern no error in his Honour’s assessment of relevant factors under s 75(2). Thus, we find no appealable error in the property orders made by the trial Judge.

APPLICATION TO ADDUCE FURTHER EVIDENCE

By his Application in a Case filed 10 November 2005, the husband sought to adduce further evidence. The proposed evidence was not annexed to the husband’s affidavit but was included by the husband in the appeal books.
We deal with each of the documents sought to be adduced by the husband, by way of fresh or further evidence, as follows.

Department of Child Safety Notification

The husband did not subpoena the records of the Department of Child Safety for the trial, but set out in his affidavit allegations that the wife had left A without proper supervision. He subsequently obtained records from the Department of Child Safety pursuant to a Freedom of Information request. The husband was the notifier to the Department. Nothing in the Department of Child Safety records adds to the evidence which was before the trial Judge in the husband’s affidavit. In accordance with the principles enunciated in CDJ v VAJ (supra) we find nothing which would make the admission of the Department of Child Safety records relevant and admissible.

Bank transfer receipts

Page 181 of the appeal books contains a summary, prepared by the husband, of total expenses of $3,600.00 asserted by the husband to have been paid by him for O and A. A number of the items claimed are not supported by receipts. The evidence if admissible could properly have been presented by the husband to the trial Judge at the hearing. Accordingly, we do not find that such evidence should be admitted.

Character statements

The husband asserted we should receive into evidence ‘[c]haracter statements about Appellant by 3 professional colleagues. Not filled [sic] with an application for the Case, but presented at the Hearing on 21^st of July 2005’.
It appears the statements to which the husband refers were used as part of his evidence in the interim hearing.
The trial Judge carefully assisted the parties to identify documents upon which they relied at the hearing. The character statements on which the husband now seeks to rely all predate the hearing. They are not in admissible form and are of a very general nature. We do not propose to admit the character references.

Letter from K College

This document appears at page 197 of the appeal books. Although described as a letter it is in fact a statement/tax invoice addressed to the husband dated 6 February 2004 in the sum of $6,809.00. The husband set out the debt to K College as asserted by him in his Financial Statement at $6,000.00.
It is clear from the date of the tax invoice that the document was in the husband’s possession at the time of the trial, and could have been tendered before the trial Judge.
The liability for the school fees was incurred during the course of the parties’ marriage. The trial Judge took the sum of $6,000.00 into account as a joint debt of the parties, a course which was open to him on the evidence at trial. We discern that the receipt of the tax invoice would not, if admitted ‘have produced a different result if it had been available at the trial’; see CDJ v VAJ (supra) per McHugh, Gummow and Callinan JJ at 202; 85,448, at [111]. Further we are satisfied on the material as a whole that there was no appealable error in the inclusion of the school fees as a liability.
In summary we are satisfied for the reasons set out above, that the husband’s application to adduce further evidence should be dismissed, and that his appeal should be dismissed.

COSTS

The husband’s appeal has been unsuccessful. In such circumstances we would normally seek submissions on costs. We do not propose to do so in this case as the wife was unrepresented, and incurred no legal costs.

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 22 September 2006