FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – CHILDREN – where the appellant asserts that the trial judge minimised the impact upon the child of the family violence perpetrated by the respondent and did not “properly use” the evidence of the expert witnesses – where there is no error by the trial judge here – where the appellant challenges the trial judge’s understanding of and definition of the position of the appellant and Independent Children’s Lawyer as to the issue of equal time – where in defining and approaching the issues in dispute the trial judge misdirected himself and fell into error – where there is merit in this ground of appeal. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – PROPERTY SETTLEMENT – whether proceeds of an insurance policy should be treated as a contribution made by the respondent or by the parties jointly – where the use of the funds received from the insurance policy, paid out as a result of the respondent being diagnosed with cancer, occurred prior to separation – where there was a paucity of evidence in relation to the policy – where the appellant, unlike the respondent, made no submissions to the trial judge about how these proceeds should be treated – where there is no merit in this ground of appeal – where the appellant complains that the property division was “manifestly excessive” in favour of the respondent – where no appellable error by the trial judge has been established – where there is no merit in this ground of appeal – where the appellant says the trial judge erred in his assessment of the health of the respondent and the future earning capacities of the parties given the evidence before him – where on the evidence there was no basis for the trial judge to make an adjustment of 10 per cent in favour of the respondent – where there is merit in this ground of appeal. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – RE-HEARING – where in relation to parenting issues the appellant and the Independent Children’s Lawyer sought a re-exercise of the discretion in the event that the appeal was successful – where the respondent sought that the proceedings be remitted for re-hearing – where in relation to the property settlement proceedings both parties sought a re-exercise of the discretion – parenting and property settlement issues be remitted for partial re-hearing, on clearly defined issues, before a judge other than the trial judge. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where in the event that the appeal was successful the appellant sought an order for costs and if no order was made sought costs certificates – where in the event that the appeal was successful the respondent and the Independent Children’s Lawyer sought costs certificates including for any re-hearing – where no order for costs in favour of the husband is warranted – where the appeal succeeded on questions of law – costs certificates granted to the appellant and the respondent for the appeal and the re-hearing – where the question is whether s 14(1)(a), (b), (e) or (f) of the Federal Proceedings (Costs) Act (1981) (Cth) precludes the granting of costs certificates to the Independent Children’s Lawyer – if pursuing the application for costs certificates the Independent Children’s Lawyer file and serve written submissions addressing the entitlement to the same.

Yates & Yates [2012] FamCAFC 138 (31 August 2012)

Last Updated: 7 September 2012

FAMILY COURT OF AUSTRALIA

YATES & YATES

[2012] FamCAFC 138

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – CHILDREN – where the appellant asserts that the trial judge minimised the impact upon the child of the family violence perpetrated by the respondent and did not “properly use” the evidence of the expert witnesses – where there is no error by the trial judge here – where the appellant challenges the trial judge’s understanding of and definition of the position of the appellant and Independent Children’s Lawyer as to the issue of equal time – where in defining and approaching the issues in dispute the trial judge misdirected himself and fell into error – where there is merit in this ground of appeal. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – PROPERTY SETTLEMENT – whether proceeds of an insurance policy should be treated as a contribution made by the respondent or by the parties jointly – where the use of the funds received from the insurance policy, paid out as a result of the respondent being diagnosed with cancer, occurred prior to separation – where there was a paucity of evidence in relation to the policy – where the appellant, unlike the respondent, made no submissions to the trial judge about how these proceeds should be treated – where there is no merit in this ground of appeal – where the appellant complains that the property division was “manifestly excessive” in favour of the respondent – where no appellable error by the trial judge has been established – where there is no merit in this ground of appeal – where the appellant says the trial judge erred in his assessment of the health of the respondent and the future earning capacities of the parties given the evidence before him – where on the evidence there was no basis for the trial judge to make an adjustment of 10 per cent in favour of the respondent – where there is merit in this ground of appeal. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – RE-HEARING – where in relation to parenting issues the appellant and the Independent Children’s Lawyer sought a re-exercise of the discretion in the event that the appeal was successful – where the respondent sought that the proceedings be remitted for re-hearing – where in relation to the property settlement proceedings both parties sought a re-exercise of the discretion – parenting and property settlement issues be remitted for partial re-hearing, on clearly defined issues, before a judge other than the trial judge. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where in the event that the appeal was successful the appellant sought an order for costs and if no order was made sought costs certificates – where in the event that the appeal was successful the respondent and the Independent Children’s Lawyer sought costs certificates including for any re-hearing – where no order for costs in favour of the husband is warranted – where the appeal succeeded on questions of law – costs certificates granted to the appellant and the respondent for the appeal and the re-hearing – where the question is whether s 14(1)(a), (b), (e) or (f) of the Federal Proceedings (Costs) Act (1981) (Cth) precludes the granting of costs certificates to the Independent Children’s Lawyer – if pursuing the application for costs certificates the Independent Children’s Lawyer file and serve written submissions addressing the entitlement to the same.

Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz [2000] HCA 40; (2000) FLC 93-033 House v The King [1936] HCA 40; (1936) 55 CLR 499 M and M [1988] HCA 68; (1988) FLC 91-979 Maluka & Maluka (2011) FLC 93-464 Miller & Miller [2009] Fam CAFC 121 MRR v GR [2010] HCA 4; (2010) 240 CLR 461 Walker v Ruscoe S115/2001 (Unreported, High Court of Australia, McHugh and Kirby JJ, 5 March 2002) Zyk, RM & Zyk, D (1995) FLC 92-644

APPELLANT:

Mr Yates

RESPONDENT:

Ms Yates

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

FILE NUMBER:

HBC

506

of

2009

APPEAL NUMBER:

SOA

76

of

2010

DATE DELIVERED:

31 August 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Finn, Strickland & Johnston JJ

HEARING DATE:

4 October 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 September 2010

LOWER COURT MNC:

[2010] FamCA 775

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ayliffe

SOLICITOR FOR THE APPELLANT:

Munro & Associates

COUNSEL FOR THE RESPONDENT:

Mr Turnbull

SOLICITOR FOR THE RESPONDENT:

Bishops Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

ORDERS

(1) The appeal be allowed.
(2) Orders 3, 4 and 5 of the orders made by Benjamin J on 7 September 2010 be set aside.
(3) Pending further order of the Court the child shall live with the wife except as otherwise provided in Order 4 of these orders, or as agreed in writing between the parties.
(4) Pending further order of the Court the child shall live with and communicate with the husband as follows:

• (a) During school term on a 2 week cycle:-
  1. in week one from after school on Friday until the commencement of school on Monday morning, extending to the commencement of school on Tuesday morning in the event that the Monday is a public holiday or a student free day.
  2. in week two from after school on Wednesday to the commencement of school on Friday morning.
  3. such alternate fortnightly cycle shall commence on the first Friday after the commencement of each school term (and including the Easter school break) if the child was primarily with the wife for the last week of the preceding school holiday period.
  4. such alternate fortnightly cycle shall commence on the second Friday after the commencement of each school term (and including the Easter school break) if the child was primarily with the husband for the last week of the preceding school holiday period, provided that in this event the week 2 of the fortnight cycle shall apply in the first week of term.

(5) The percentage entitlement or division to be applied to the assets of the parties or either of them as specified in Orders 16(e)viii, 18(a), 19(e)iv and 19(e)v of the orders made by Benjamin J on 7 September 2010 be deleted, and be replaced with such percentage entitlement or division as may be determined at the partial re-hearing to take place in accordance with the following Order.
(6) The proceedings for parenting orders and for property settlement orders be remitted for a partial re-hearing by a single judge of the Family Court of Australia with priority, such partial re-hearing to be concluded within and subject to the following notations and conditions:

Parenting

(a) The issue to be determined is whether in each fortnight the child should spend nine nights with the wife and five nights with the husband or equal time with each parent.
(b) The starting point for a determination of this issue shall be the facts in existence at the date of the hearing before Benjamin J, and as were found by Benjamin J.
(c) The only further facts to be considered in that determination are to be any relevant facts arising subsequent to the date of the hearing before Benjamin J.

Property settlement

(d) The issue to be determined is what if any adjustment should be made to the contribution-based entitlement of the parties as found by Benjamin J as a result of a consideration of the relevant s 75(2) factors.
(e) For the purposes of the partial re-hearing the net asset pool is to be as found by Benjamin J and the respective contributions of the parties are also to be as found by Benjamin J.

(7) The husband and the wife each bear their own costs.
(8) The court grants to the husband a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the husband in respect of the costs incurred by the husband in relation to the appeal.
(9) The Court grants to the husband a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the husband in respect to such part as the Attorney-General considers appropriate of any costs incurred by the husband in relation to the new trial.
(10) The Court grants to the wife a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife in respect of the costs incurred by the wife in relation to the appeal.
(11) The Court grants to the wife a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife in respect to such part as the Attorney-General considers appropriate of any costs incurred by the wife in relation to the new trial.
(12) In the event that the Independent Children’s Lawyer seeks to pursue an application for costs certificates pursuant to the provisions of sections 6 and 8 of theFederal Proceedings (Costs) Act 1981 (Cth), within 21 days of the date of these orders the Independent Children’s Lawyer file written submissions in support of such application and serve the same upon the other parties.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yates & Yates has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 76 of 2010
File Number: HBC 506 of 2009

Mr Yates

Appellant
And

Ms Yates

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Amended Notice of Appeal filed on 30 March 2011 Mr Yates (“the husband”) seeks to appeal against parenting and property settlement orders made by Benjamin J on 7 September 2010. The respondent is Ms Yates (“the wife”). The parenting orders relate to the parties’ youngest child, F in 2004 (“the child”).
2. In summary, the orders appealed against provided for the child to live with the wife nine nights per fortnight and with the husband for the remaining five nights. Various orders were also made by consent including for the child to spend time with and communicate with each parent on special days and for equal time during school holidays. In relation to property settlement, orders were made effecting the sale of the parties’ property at SP, and providing that after payment of expenses and various liabilities, the balance of the proceeds of sale be divided 43 per cent to the husband and 57 per cent to the wife. An order was also made for the husband to pay to the wife a sum equal to 57 per cent of the value of the parties’ net interest in the property at L, and in default of payment that property is to be sold and after payment of all expenses and liabilities the proceeds of sale are to be divided 43 per cent to the husband and 57 per cent to the wife. The husband was also to transfer to the wife 320 AXA shares and the wife was to resign any position and transfer to the husband any interest she had in the Y Group Pty Ltd. Various orders were made in relation to chattels, specifically family photographs, and the parties were given leave to apply in respect of any issues regarding specified liabilities.
3. In his Amended Notice of Appeal the husband seeks parenting orders that the child live with and spend equal time with each of his parents on a week about basis. In relation to property settlement, the husband seeks orders that the parties’ net assets be divided 60 per cent / 40 per cent in favour of the husband, and that the husband’s inherited family items be quarantined from the division of chattels.

BACKGROUND

4. The parties were married in September 1989.
5. The parties’ first child, P, was born in 1991. The wife subsequently fell pregnant with twins. One twin died at about 12 to 13 weeks gestation, and the other twin, L, was born in October 1994. After L was born it was discovered he had suffered a massive intracranial haemorrhage and as a result he was blind and would never be able to walk or talk. As he became older, L began having seizures and in October 2000 L passed away as a result of a massive seizure. F was born in 2004.
6. In March 2007 the wife was diagnosed with Hodgkin’s Lymphoma for which she was treated and went into remission in early 2008.
7. During 2008 the relationship between the parties deteriorated and the wife acted out in inappropriate ways. The parties separated in February 2009, with the wife agreeing to undergo medical treatment for mental health issues.
8. The husband sought a restraining order for the protection of himself and the children, and this was put in place in April 2009.
9. The wife commenced parenting and property settlement proceedings in the Family Court in June 2009.
10. With the help of her father and maternal grandmother, P obtained an interim family violence order. In February 2010, that order was replaced by the wife’s undertaking in the Magistrates Court that she would never again contact P.
11. The parties’ business, which they had been operating since 1995, also failed around this time.
12. There were a number of interim parenting hearings. Initially, F was permitted to spend supervised time with the wife and an Independent Children’s Lawyer was appointed. As the wife’s health recovered, her time with F was increased and the need for supervision diminished and ultimately disappeared.
13. The matter was heard by Benjamin J over five days in July 2010 and
    his Honour made orders and delivered his reasons for judgment on 7 September 2010.
14. The husband filed a Notice of Appeal on 5 October 2010 but he subsequently failed to comply with orders made by the Regional Appeals Registrar and as a result that appeal was deemed abandoned. On 14 January 2011 the husband filed an Application in an Appeal in effect seeking that the Notice of Appeal be reinstated. That application was heard by Strickland J on 10 March 2011, and orders were made providing for the Notice of Appeal to be reinstated and that an amended Notice of Appeal then be filed within twenty-one days. In accordance with that order the husband filed an amended Notice of Appeal on 30 March 2011 as referred to above.

ORDERS MADE 7 SEPTEMBER 2010

15. Benjamin J made the following orders in so far as they are relevant:

Parenting

1. All previous parenting orders in relation to the child, [F] born [in] 2004, be vacated.
2. BY CONSENT the wife and husband have equal shared parental responsibility in relation to [F].
3. As and from 6 August 2010, [F] shall live with the wife except as otherwise provided in these orders or as agreed in writing between the parties.
4. [F] shall live with and communicate with the husband as follows:-
   • (a) During school term on a 2 week cycle:-
     1. in week one (initially commencing Friday 13 August 2010) from after school on Friday until the commencement of school on Monday morning, extending to the commencement of school on Tuesday morning in the event that the Monday is a public holiday or a student free day.
     2. in week two from after school on Wednesday to the commencement of school on Friday morning.
     3. such alternate fortnightly cycle shall commence on the first Friday after the commencement of each school term (and including the Easter school break) if [F] was primarily with the wife for the last week of the preceding school holiday period.
     4. such alternate fortnightly cycle shall commence on the second Friday after the commencement of each school term (and including the Easter school break) if [F] was primarily with the husband for the last week of the preceding school holiday period, provided that in this event the week 2 of the fortnight cycle shall apply in the first week of term.
5. The husband’s application for an order that the school term living arrangements change to equal time after three months or some other specified time is dismissed
6. BY CONSENT [F] shall live with and communicate with the husband as follows:-
   • (a) in the event [F] is not in the care of the husband on the weekend of Father’s Day from 4.00pm on the Saturday before Father’s Day until commencement of school on the following Monday morning;
   • (b) in each odd numbered year; during the school Easter holiday, from after school on the Thursday before Easter until 5.00pm on the following Wednesday;
   • (c) in each even numbered year; during the school Easter holiday, from 5.00pm on the Wednesday after Easter until the commencement of school on the following Monday morning, or Tuesday if the Monday is a public holiday or a pupil free day;
   • (d) in each even numbered year from 3.00pm Christmas Day until 3.00pm Boxing Day;
   • (e) in each odd numbered year from 3.00pm on Christmas Eve until 3.00pm Christmas Day;
   • (f) in each odd numbered year on [F’s] birthday from 3.00pm until 10.00am the following day;
   • (g) in each even numbered year on [F’s] birthday from 3.00pm on the eve of his birthday until 10.00am on his birthday;
   • (h) for the last half of the term 1 and term 2 school holiday period with such time to commence in September 2010;
   • (i) in 2010/2011 for one half of the Christmas/School holiday period on a week about basis;
   • (j) in 2011/2012 for one half of the Christmas/School holiday period on a fortnight about basis as agreed between the parties and failing such agreement, in each even numbered year commencing on the last day of the school term and each alternate year thereafter;
   • (k) on each year on the father’s birthday from 3.00pm on the eve of his birthday until 9.00am the day following his birthday;
   • (l) such additional or alternate times as may be agreed between the parties from time to time.
7. BY CONSENT F shall additionally live with and communicate with the wife as follows:-
   • (a) in the event that [F] is not in the care of the wife on the weekend of Mother’s Day from 4.00pm on the Saturday before Mother’s Day until commencement of school on the following Monday morning;
   • (b) in each even numbered year; during the school Easter holiday from after school on the Thursday before Easter until 5.00pm on the following Wednesday;
   • (c) in each odd numbered year; during the school Easter holiday, from 5.00pm on the Wednesday after Easter until commencement of school on the following Monday or Tuesday morning;
   • (d) in each odd numbered year from 3.00pm Christmas Day until 3.00pm Boxing Day;
   • (e) in each even numbered year from 3.00pm on Christmas Eve until 3.00pm Christmas Day;
   • (f) for the first half of the term 1 and term 2 school holiday period commencing September 2010;
   • (g) in 2010/2011 for one half of the Christmas/School holiday period on a week about basis;
   • (h) in 2011/2012 for one half of the Christmas/School holiday period on a fortnight about basis as agreed and failing such agreement in each odd numbered year commencing on the last day of the school term and each alternate year thereafter;
   • (i) in each even numbered year on [F’s] birthday from 3.00pm until 10.00am the following day;
   • (j) in each odd numbered year on [F’s] birthday from 3.00pm on the eve of his birthday until 10.00am on his birthday;
   • (k) on each year on the wife’s birthday from 3.00pm on the eve of her birthday until 9.00am on the day following her birthday;
8. BY CONSENT both parents shall be entitled to attend all school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent-teacher interviews and social functions.
9. BY CONSENT in the event of a medical emergency with regard to [F], the parent who first has knowledge of the emergency shall forthwith notify the other parent.
10. BY CONSENT handovers on a school day shall take place at [F’s] school and on a non-school day at the playground in the City Park, unless otherwise agreed in writing between the parties.
11. Neither party shall abuse, demean or belittle the other party or members of the other party’s family in the presence or hearing of [F].
12. Each party shall keep the other informed, as soon as practicable, of any significant health or educational issue which impacts upon [F].

...
Property

14. Within thirty (30) days of the date of these orders, the husband sign all documents and do all acts to transfer to the wife a total of 320 shares he holds in AXA Asia Pacific holdings Limited.
15. The parties shall do all acts and sign all documents necessary to register the necessary easement at [the M Street property] and each of the parties shall contribute equally towards the payment of registering that easement and in the event that one party pays the whole amount then the other party shall be entitled to reimbursement together with interest in accordance with the Rules under the Family Law Act. 1975.
16. The parties shall do all acts and sign all documents to cause the property at [M Street] to be sold subject to:-

...
(e) from the proceeds of sale of the property the outstanding amounts shall be paid in respect of the:-

1. Legal costs and disbursements on the sale, real estate agent’s fees and commissions, auction fees, fees in relation to the appointment of an agent, valuer or solicitor, valuation fees, if any for the sale;
2. The reasonable costs and disbursements accrued by the parties with Douglas and Collins in obtaining an easement in respect of this property (including the liability for $2,652).
3. Mortgage to the ANZ Bank of about $125,975 (the husband to meet the normal payments of principal and interest on this mortgage pending settlement. Any amount in excess of the agreed amount of $125,975.00 is to be met from the husband’s share of the proceeds of sale of the property, in the event that the capital is reduced both parties will have the benefit of such reduced capital).
4. Debt to [Mr HN] of $16,000;
5. Capital gains tax liability of the wife of $11,491.71;
6. Overdraft account in the name of the wife up to $5,729.69;
7. Debt to Harcourts of $2,750; and
8. The balance of the proceeds of sale is to be divided as to 43% to the husband (plus or minus any adjustment of Council rates) and as to 57% to the wife.

17. The wife sign all documents to assign to the husband any interest she has in [Y] Group Pty Ltd as Trustee for the [Yates] Family Trust and resign any position she has with that company and the husband shall indemnify the wife in respect of the liabilities of that company (which company the husband wishes to retain).
18. As to [G Street]:-
    • (a) Within sixty (60) days from the date of this order the husband will pay to the wife a sum calculated as being 57 per cent of the parties’ (or their corporate or trust structure) net interest in that property. The calculation is the value of the property, $552,500, less the following liabilities (the ‘liabilities’);
      1. The amount due to the Bank of Queensland for the overdraft account (balance approximately $89,070.08);
      2. the mortgage amount due to the Bank of Queensland of about $300,000;
      3. Payables of the [Yates] Property Trust not exceeding $22,680;
      4. Debt due to [Mrs FR] $87,520;
      5. [Yates] Property Trust ANZ overdraft 3547-06051 $35,545.10;
      6. Mercedes Finance on husband’s car $28,281.30;
      7. Mercedes Finance on wife’s car $7,092.62;
      8. [Y] Group Pty Ltd as Trustee for the [Yates] Family Trust ANZ overdraft 3545-36606 $15,702.98;
      9. Payables of [Y] Group Pty Ltd as Trustee for the [Yates] Family Trust not exceeding $38,610.00;

...

19. In the event that the husband is unable or unwilling to pay to the wife the sum calculated in respect of [G Street] then, the parties shall sign all documents and do all acts to cause the [Yates] Property Trust and its trustee to list [G Street] for sale subject to the following terms:-

...
(e) from the proceeds of sale of the property shall be paid:-

1. Council rate adjustments;
2. legal costs and disbursements on the sale, real estate agent’s fees and commissions, auction fees, fees in relation to the appointment of an agent, valuer or solicitor, valuation fees, if any for the sale;
3. the liabilities;
4. A sum to be retained in trust by the solicitor acting on the sale to meet any capital gains tax liability on the sale of the property, any GST on the sale of the property, any anticipated expenses on the winding up of the trust, and if necessary, winding up of the trustee company. Included in such expenses are the costs and disbursements of the solicitor/trustee and necessary accounting fees. On finalisation of the tax calculations and payments and winding up of the trust and trustee any remaining amount in trust is to be divided as to 57 per cent to the wife and 43 per cent to the husband. If there is a shortfall it is to be paid as to 57 per cent by the wife and 43 per cent by the husband; and
5. the balance of the proceeds of sale is to be divided as to 43% to the husband and as to 57% to the wife.

20. In respect of the variable liabilities namely [Yates] Property Trust, Bank of Queensland overdraft, Bank of Queensland building loan, [Yates] Property Trust overdraft, wife’s capital gains tax debt,
    [Y] Group Pty Ltd as Trustee for the [Yates] Family Trust, Mercedes Benz finance debts and [Y] Group Pty Ltd ANZ overdraft; the payment of those debts will be to extinguish the loans subject to neither party making any further drawings against such loans between the date of hearing and the date of payment. The parties are given leave to apply in respect of any issues regarding these loans for a period of six months from the date of these orders.
    1. That the husband provide to the wife an affidavit annexing the invoices for each and every one of the payables.
    2. That the husband provides to the wife a description of each of the liabilities referred to in those invoices.
    100. The amount of payables for the [Yates] Property Trust and
         [Y] Group Pty Ltd as Trustee for the [Yates] Family Trust will be those which are:-

Liabilities of the respective trusts properly incurred in the course of business prior to the hearing;
Not for any personal benefit to the parties or any of their children.
...

25. Within twenty one (21) days of the date of these orders the husband transfer to the wife’s frequent flyer account 454,632 frequent flyer points.

...

16. The husband appeals against Orders 4, 5, 14, 16(e)viii, 18(a), 19(e)iv and 19(e)v.

REASONS FOR JUDGMENT DELIVERED 7 SEPTEMBER 2010

17. The trial judge commenced his reasons for judgment by setting out a detailed background of the family, as outlined above. In doing so his Honour noted that the family had dealt with “enormous (and at times overwhelming) physical issues, emotional problems and pressure over many years”.
18. The trial judge went on to outline each party’s submissions. In relation to the parenting issues, his Honour recorded that the parties had agreed by the conclusion of the hearing that F would spend “essentially equal time during school holidays and primarily [live] with the wife during the school term but [live] each alternate weekend plus two other nights with the husband”. Thus, the only issue thought to remain for the trial judge to determine was whether those arrangements should continue indefinitely, as sought by the wife, or whether, as the husband sought, those arrangements should be for a defined period of three months or more and then move to an equal time arrangement during school terms. In relation to the property issues, the wife submitted that the contributions should be treated as equal but there ought to be an adjustment resulting in a 60 per cent / 40 per cent division of the property pool in her favour. The husband asserted that his overall financial contributions were much greater than those of the wife and that there should be a 60 per cent / 40 per cent division of the assets in his favour.

Parenting

19. His Honour went on to outline the relevant provisions of the Family Law Act 1975 (Cth) (“the Act”), including ss 60B, 61DA, 65DAA, 60CA and 60CC, before recording in detail the evidence as to both parties’ mental and physical health, the child’s education and development, the wife’s supervised time with the child, and the wife’s troubled relationships with her mother and the parties’ daughter, P.
20. In particular, the trial judge discussed the evidence of the family consultant,
    Ms S, who had prepared three reports, dated 21 September 2009, 10 December 2009 and 9 June 2010. In the second report the family consultant recommended the child live primarily with the husband, and in the final report she recommended the child live with the wife. Whilst the family consultant’s evidence was challenged by the husband on the grounds of bias towards the wife, the trial judge was satisfied that the family consultant had made “appropriate concessions” and that her evidence was “accurate and truthful”.
21. It was the family consultant’s evidence in all of the reports that the husband expressed “no insight” as to the wife’s behaviour. In the first report the family consultant observed that the husband did not recognise or give significant value to the wife’s role in the child’s life, but was instead focused on the information supporting his view that the child was at “high risk” in the unsupervised care of the wife (despite the professional reports indicating that the wife was not in a psychotic state and was not a danger to the child). In relation to the first report, the trial judge also accepted the family consultant’s evidence that the fears expressed by the child in relation to spending time with his mother “may have been contrived”. In relation to the final report, the trial judge accepted the family consultant’s view that it was imperative for the child to live “primarily in a home where he has the best chance of regularly spending substantial time with the other parent and with the least negativity towards the other parent”. The trial judge reproduced some of the research material referred to by the family consultant in relation to the development of children in post-separation parenting arrangements, accepting the analysis in a general sense but acknowledging that it needed to be seen as a generalisation. The trial judge also accepted the family consultant’s evidence as to the dynamics of the family, particularly noting that the wife’s role as the organiser of the family changed when she became angry and frustrated by her illness and other events and that the husband’s fear and anxiety increased as a result of this. On the basis of the family consultant’s evidence, the trial judge was satisfied that “if the child was in the wife’s primary care the ability to have a more shared care arrangement would work than if the child lived primarily with the husband”.
22. The trial judge found the wife to be “a good witness” who made “concessions against her interests and acknowledged, at some levels, her inappropriate behaviour and was clearly sad in respect of the loss of her relationship with [P]”. Whilst the trial judge was concerned that the wife “minimised and at some levels obfuscated” her behaviours over 2008 and 2009, his Honour was satisfied the wife had managed her mental health issues. The trial judge accepted the wife’s evidence that it was important for the husband to have regular and meaningful time with the child and that she would endeavour to put that into place.
23. The trial judge determined the husband “was not as an impressive witness as was the wife” because “[f]rom time to time he prevaricated in terms of his answers”, particularly in his evidence relating to P and her proceedings in the Magistrates Court. His Honour found that the husband had “little insight into the impact of his approach to the wife in relation to the parenting of the child and in regards to the relationship between the wife and [P]” and that prior to the trial he had “seemed to look to create obstacles rather than to look for solutions”. The husband also filed an affidavit by P, upon which the wife specifically instructed her counsel not to cross-examine.
24. Despite having some concerns, his Honour ultimately acceded to the parties’ preferred approach for equal shared parental responsibility, but found that equal time “would be more to meet the needs of the parents rather than the needs of the child” and thus declined to make an order for equal time.
25. It was the view of the Independent Children’s Lawyer and counsel for the husband that the trial judge should also make a determination as to the extent of the violence asserted by the husband, P and the maternal grandmother. On the evidence his Honour was satisfied that the behaviour of the wife arose out of set of circumstances during the break up of the marriage in 2008 and early 2009 that were “unlikely to occur again as the wife has taken, and had taken, significant steps to address those psychological and emotional issues”.
26. His Honour then recorded the evidence in relation to the restraining order obtained by the husband against the wife in April 2009, the husband’s role in P’s application for a family violence order, the husband’s role in the wife’s car being repossessed, and the husband’s reliance on P’s evidence during the proceedings. His Honour expressed concern that the husband’s actions were indicative of him being “more concerned about the litigation process and not the impact on the relationship between [P] and the wife and the broader family dynamics”. The trial judge also recorded several examples of the husband’s “rigidity to parenting arrangements”, noting that “[n]othing has changed since June 2009 despite significant evidence of the need for the child to see his mother”. His Honour accepted the evidence of the family consultant relied upon by the Independent Children’s Lawyer, that the weight of the opposition of the husband, P and other family members to the wife may over time diminish the importance of the child’s relationship with his mother and cause the child to develop conflicted emotions.
27. The trial judge then turned to consider the s 60CC(3) factors. His Honour’s findings can be summarised as follows:
    • The child’s views were not a relevant consideration as he was aged six and a half years at the time of trial.
    • The wife was the primary carer of the child until 2008, and their relationship survived the events of 2008 and 2009. The husband had been “significantly involved in the care of the child throughout his life” and had a close relationship which should be fostered and continued. The child’s close relationships with his sister and maternal grandparents should also be maintained.
    • The wife had accepted the “significant role and position of the husband and [P] in the child’s life”, and the trial judge was satisfied the wife would continue to encourage a close relationship between the child and his father, sister and extended family. However, his Honour was concerned the husband may not encourage the relationship between the child and the wife “to the extent that would meet the child’s needs”.
    • The proposed parenting arrangements would not result in any significant change in the child’s relationships with his parents, sister, aunt and maternal grandparents.
    • As the geographical distance between the parties was not great, there would be no practical difficulties and/or expenses attached to the child spending time and communicating with either parent or his extended family.
    • The trial judge accepted the family consultant’s evidence that both parents had the capacity to provide for the needs of the child “albeit the husband in not such an insightful way as the wife”, and was satisfied the wife had effectively dealt with her psychological difficulties.
    • The husband had adopted a child focused approach to parenting in late 2008 / early 2009 before becoming rigid in his views, although during the trial he did consent to interim parenting orders. The wife had a poor approach to parenting in late 2008 and 2009, mainly as a result of her poor psychological health, but since June / July 2009 had resumed a positive and effective attitude to parenting.
    • The wife was verbally abusive to the husband, P and most likely the child during 2008 and early 2009, and engaged in “some limited physical violence” in February and March 2009; however, the trial judge was satisfied she no longer posed a physical or emotional threat to the care of the child, provided she continued in good psychological health. In relation to P, the wife remained bound by her undertaking of February 2010.
28. His Honour then went on to consider the s 60CC(2) factors, concluding in relation to paragraph (a) that the child would benefit in having a meaningful relationship with both parents. In relation to paragraph (b), the trial judge determined that the child was not at risk of psychological harm, abuse, neglect or family violence in the care of the wife and, whilst the husband’s resistance to the child’s time with the wife had potential to impact upon the child, there was no evidence that it had done so.
29. Turning to consider s 60CC(4), the trial judge maintained it was in the child’s best interests to live primarily with the wife during school term and spend significant and substantial time with both parents. His Honour was not satisfied that the parties should move to equal time, but acknowledged it may be appropriate in the years to come.

Property

30. The trial judge first outlined the preferred approach to s 79 proceedings identified in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143, before setting out the parties’ property pool, comprising assets totalling $1,390,381.33 and liabilities totalling $786,448.48.
31. The trial judge then turned to consider the liabilities which are variable.
32. In relation to the former matrimonial home at SP, his Honour determined the husband should be responsible for the payment of the mortgage until the property was sold. The parties also had three overdraft facilities and two liabilities with Mercedes Finance, all of which his Honour noted would be likely to increase between the time of trial and the sale of the property.
33. There was some contention about the husband’s evidence in relation to liabilities of the Y Group Pty Ltd as trustee for the Yates Family Trust (in the amount of $38,610) and the Yates Property Trust (in the amount of $22,680) as the wife submitted that no evidence was given to the Court about the purpose, timing or participation of the wife in relation to these liabilities, she had not received income from either entity, and the husband had not made proper disclosure. The wife also disputed the husband’s claim that there was a debt owing to S Yates (in the amount of $27,827) on the basis that there was no evidence about the purpose, timing or participation of the wife in respect of the alleged loan, and that she had not received any benefits from that sum.
34. In relation to add-backs, the wife sought that $57,000 retained by the husband and $43,753 paid to the husband be notionally added-back, and the husband sought that $32,876 for payments made to the wife be notionally added-back. His Honour found that during 2009 and 2010 the parties had serious financial problems which resulted in funds being “disbursed to the parties to enable them to survive” and thus determined not to allow any add-backs. However, as the amount paid to the husband was greater than that paid to the wife, his Honour adopted the wife’s proposal to disregard the debt to S Yates.
35. As to superannuation, the trial judge noted that both parties had approximately the same entitlements and, taking into account their contributions and the adjustment of non-superannuation assets, his Honour determined to divide the superannuation equally as sought by the parties.
36. The trial judge then outlined various issues and the orders that he proposed to make, which can be summarised as follows:
    • The parties’ property at SP had an agreed value of $775,000, however, there was an issue as to the cost of creating an easement to preserve that value. His Honour determined to make an order for each party to contribute towards the cost of the easement.
    • In relation to the issues involving some of the contents of the former matrimonial home and rental property, his Honour proposed various orders including that photographs held by the husband be copied and a lock of L’s hair be declared the property of F and P.
    • His Honour proposed that the husband’s frequent flyer points be divided equally between the parties, given that the nature of the points was different from the other property.
    • The property at G Street had an agreed value of $552,000. Whilst both parties wished to acquire the property, the trial judge proposed that the property be sold at auction and the proceeds of sale be used to pay out various liabilities.
    • The husband wished to keep the existing company structures.
      His Honour agreed but proposed an order directing the husband to indemnify the wife in respect of any further liabilities or other liabilities of those structures.
    • The wife sold properties at H Street in June 2009. The trial judge was satisfied that the capital gains tax incurred was a joint liability and ought to be paid out of the proceeds of the sale from the G Street property.
    • There was some dispute as to the amount of a loan from the husband’s aunt, Mrs FR. Ultimately the parties agreed the loan was $87,250.
37. Turning to contributions, the trial judge noted that the husband had made significant initial contributions in the form of a motor vehicle and a gun collection. Subsequently, the husband was gifted the land at SP and received from his parents $30,000 a year for five to seven years. The husband also asserted that he completed building works on the matrimonial home at SP and on the G Street property. Since separation the husband had also undertaken significant work on the SP property. In March 2007 the wife was diagnosed with cancer and received $190,000 from her insurance policy, $120,000 of which was used to pay the parties’ home mortgage. The wife was the carer of the parties’ three children.
38. On the basis of that evidence, the trial judge concluded that both parties “contributed to the best of their ability throughout their relationship”.
    His Honour rejected the wife’s submission that there should be a 5 per cent adjustment in her favour because he was satisfied that overall the husband’s contributions were slightly greater than that of the wife. The trial judge therefore assessed the contributions at 53 per cent / 47 per cent in favour of the husband.
39. The trial judge went on to consider “the other factors”, namely the s 75(2) factors, and his Honour’s findings can be summarised as follows:
    • At the time of trial the husband was aged 43 years and the wife was aged 44 years.
    • The husband was in good health.
    • The wife was working part time in three positions and his Honour found that her work hours would fit in with her proposal to be the primary carer of the child.
    • The wife was no longer taking medication for depression but she was continuing to meet regularly with her general practitioner, her psychologist and her oncologist.
    • It was the wife’s evidence that her problematic health, namely her thyroid condition, would have an impact on her financially. The trial judge therefore determined that the wife’s income was likely to remain at $850 per week.
    • Both parties had a responsibility to support the child with the wife resuming her role as primary carer and the child spending a significant amount of time with the husband.
    • It was clear that the parties’ financial circumstances had deteriorated over recent years and that both parties’ standard of living had deteriorated since the relationship dissolved.
    • There was no evidence as to what child support would be paid or payable.
40. Ultimately, the trial judge determined there should be an adjustment for these factors such that the property be divided 57 per cent / 43 per cent in favour of the wife, but not including the frequent flyer points and the superannuation entitlements of the parties which were to be split equally.
41. Lastly, his Honour concluded that in all the circumstances the division of property was just and equitable.

GROUNDS OF APPEAL AND ORDERS SOUGHT

42. The grounds of appeal as contained in the Amended Notice of Appeal filed by the husband on 30 March 2011 are as follows:

Parenting

1. The learned Trial Judge erred in fact and in law as to the basis upon which he dealt with the case of the Appellant for parenting orders in that:
   • (i) Despite accepting the evidence of Dr [A] which supported the Appellant the learned Trial Judge failed to act on it or otherwise deal with it;
   • (ii) Despite accepting the evidence of [Ms WM] as a reliable and impressive witness the learned Trial Judge failed to act on or otherwise deal with her evidence which was favourable to the Appellant;
   • (iii) Despite accepting the evidence of Ms [I] the learned Trial Judge failed to act on that evidence which was supportive of the Appellant or otherwise deal with that evidence. In particular the learned Trial Judge failed to act on the evidence of Ms [I] as to the affect that the violence of the Respondent had had on the child; and/or further and in the alternative, the learned Trial Judge erred in the discounting of the evidence of Ms [I] on a speculatory basis not supported in the evidence which contradicted the prognostic and diagnostic opinion of Ms [I] and her professional training and qualifications;
   • (iv) The learned Trial Judge failed to act on the finding that the Respondent verbally abused the child during 2008 and was engaged in some limited physical violence in February and March 2009 [196] and the finding that the Respondent was verbally violent to her family and physically violent to [P] and the Appellant [151];
   • (v) The learned Trial Judge failed to act generally on or failed to use the evidence that the Respondent had been the subject of Family Violence Orders and a Restraint Order and consequent Ordered undertaking in favour of the Appellant; and
   • (vi) Failed to consider the evidence of [P] in assessing that the Respondent had perpetrated physical violence within the family.
2. By reason of the matters set forth in ground 1 hereof the learned Trial Judge erred in fact and in law in his findings that:
   • (i) The Respondent’s violence was unlikely to occur again as the Respondent has taken and had taken significant steps to address these psychological and emotional issues [151]; and
   • (ii) That the Respondent does not pose a physical or emotional threat to the care of the child provided that the Respondent continues in good psychological health and the treatment which she is undertaking [198].
3. The learned Trial Judge erred in law in not making findings as to which version he preferred on the issue of the extent of the Respondent’s violence.
4. That the learned Trial Judge erred in law in his treatment of the evidence of [P] in that:
   • (i) He elevated to a determinative or highly influential level the decision of the Respondent not to cross examine [P] notwithstanding that [P’s] evidence was in conflict with the Respondent’s evidence on a number of important issues, particularly with respect to the Respondent’s dysfunctional and violent behaviour within the family and to [P] in particular;
   • (ii) He accepted and elevated to a significant factor the decision of the Respondent not to cross examine [P] as a matter which went substantially in favour of the Respondent and substantially in favour of the Respondent’s credit;
   • (iii) He failed to consider or apply the rule in Brown v Dunne [sic] given that the Respondent did not cross examine [P] whose evidence was in conflict and contrary to the evidence of the Respondent;
   • (iv) Expressly and implicitly he repeatedly criticised the Appellant for leading evidence from [P] and relying upon [P’s] evidence and praised the Respondent for not cross examining her.
5. The learned Trial Judge erred in law in that he:
   • (i) Effectively ignored the evidence of [P] and did not consider it in the findings of law and fact that he made against the Appellant; and further
   • (ii) Failed to consider the evidence of [P] as supportive evidence for the case for the Appellant and supportive of the credit worthiness of the Appellant.
6. As a result of the following matters the learned Trial Judge failed to appropriately deal with the evidence as to the making of the Family Violence Order and the ordered undertaking given by the Respondent in that he:
   • (i) Criticised the Appellant for supporting [P] in her obtaining of a Restraint Order and Ordered undertaking in order to protect herself from the violence of the Respondent;
   • (ii) Erred in finding that the Respondent was unrepresented in the Restraint Order proceedings and in any event placed inappropriate weight on the issue as to whether she was represented or not represented;
   • (iii) Criticised stridently the Appellant during the course of the Appellant giving his evidence as to his support of [P] in relation to the Restraint Order proceedings to the extent that the Appellant was shaken and substantially undermined in the giving of his evidence during cross examination and the effect of his evidence in cross examination and generally was diminished and his opportunity to advance his case was thereby substantially eroded.
7. That by reason of the matters referred to in grounds 1 – 6 hereof the learned Trial Judge erred in law and fact by reason of his failure to follow the ICL recommendation for equal time and in his decision to refuse the Appellant’s application for equal time that should commence within three months of the trial.
8. That the learned Trial Judge by reason of the matters referred to in grounds 1 – 6 hereof and failed to adequately consider whether it was reasonably practicable for the child to spend equal time with each parent and thereby failed to consider the issue of whether the child should spend equal time with each parent.
9. That the finding by the learned Trial Judge that the Appellant had great difficulty accepting the improvements in the health of the Respondent was unsupported by the evidence and/or against the weight of the evidence, not relevant and in any event ought not to have been used by the learned Trial Judge against the interests of the Appellant in that there was significant evidence to the effect that the Respondent’s health still posed a threat to the child.

Property

10. That the weighting of 6% in favour of the Appellant on the basis of his superior contribution to property was manifestly inadequate.
11. That the learned Trial Judge erred in fact and in law in his finding that the contribution by the Appellant by way of work done on and to the [SP] property was wholly negated by the Appellant’s exclusive occupation of the home and because this finding was not supported by the evidence and in any event ignored the fact that the Appellant was the primary carer for the children for much of the time post separation.

(i) That the learned Judge erred in failing to appropriately consider the Husbands case for specific and precious inherited personal items.

12. That the learned Trial Judge erred in treating the insurance payout to the Respondent as a significant contribution in her favour when such payment was not a windfall but a benefit received from a contract of insurance in circumstances where the evidence had not expressly or inferentially established which of the parties had paid the premiums but rather such evidence established by inference that it was likely that the premiums had been paid jointly by the parties or, in the alternative, particularly during the years after separation was likely to have been more substantially contributed to by the Appellant.
13. That the learned Trial Judge erred in fact and law in finding that a 10% premium be afforded to the Respondent for the Section 75(2) factors when:
    • (i) Such a finding was manifestly excessive;
    • (ii) Such a finding was unsupported by the evidence and/or against the weight of the evidence;
    • (iii) Such a finding was based on an erroneous finding of fact that the Appellant would in the medium term earn substantially more than the Respondent;
    • (iv) The finding that the Respondent’s health was problematical was in conflict with the finding at [1] – [9] and in any event there was no evidence that indicated her earning industrial capacity was affected by any health issue.

Miscellaneous

14. That orders 18 and 19 are in conflict in that order 18 failed to deal with the scenario arising whereby there was a shortfall.
15. THAT the Order that the Husband pay the mortgage pending assets sales was in conflict with the undisputed evidence that the Husbands [sic] had no funds.
43. At the hearing of the appeal Ground 2 was abandoned, and the husband’s counsel confirmed that Grounds 9, 11, 14 and 15 were not pursued. However, during the hearing of the appeal we granted leave to the husband to amend the grounds of appeal to include Ground 7A as follows:

The learned Judge erred in his understanding of and definition of the position of the father and ICL as to the issue of equal time.

44. In relation to Ground 14, a plain reading of Order 18(a) indicates that the total amount of the liabilities to be taken into account exceeds the value of the property, and thus to provide that the husband is to pay to the wife 57 per cent of the parties’ net interest in that property creates an obvious difficulty with the implementation of that order. A similar difficulty arises with the implementation of Order 19(e). However, to repeat, the husband did not pursue Ground 14, and nor did he otherwise address these difficulties, and in these circumstances it is not open to us to attempt to remedy the same.
45. With the grounds of appeal that have been pursued, it seems to us that some can be grouped together in the following way. There is a common thread running through Grounds 1, 3, 4, 5 and 6, and they can conveniently be dealt with together. In those grounds the husband complains about his Honour’s approach to the issue of family violence and the evidence of that. Finally, Grounds 7 and 8 also lend themselves to being addressed together, and we will do so.
46. In his Amended Notice of Appeal filed on 30 March 2011 the husband seeks parenting orders that the child live with and spend equal time with each parent during school terms, as follows:
    1. With his Father in week one from after school Friday (3.00pm) until before school on the following Friday (8.50am) and each alternate week thereafter; and
    2. With his Mother in week two from after school Friday until commencement of school the following Friday and each alternate week thereafter.

Otherwise the husband proposes that Orders 6, 7, 8, 9, 10, 11, 12 and 13 made by Benjamin J on 7 September 2010 remain in force.

47. In relation to property settlement, the husband seeks orders that the parties’ net assets be divided 60 per cent / 40 per cent in favour of the husband and that the husband’s “inherited family items be quarantined from the division of the chattels”.

DISCUSSION

Parenting

Ground 7A

48. We propose to address this ground of appeal first given that it is the ground of appeal upon which the husband primarily relies, and indeed it was the first ground of appeal argued by counsel for the husband.
49. This ground challenges his Honour’s understanding and appreciation of the issues in dispute.
50. His Honour said this in paragraph 27:

At the conclusion of the parenting hearing the parties, to their credit, were in almost complete agreement as to the living arrangements for [F], which were essentially equal time during school holidays and primarily living with the wife during school term but living each alternate weekend plus two other nights with the husband. The only issue left for me to decide was whether these arrangements should continue indefinitely (as sought by the wife) or be a defined period of three months or more and then to go to an equal time arrangement during school term (as sought by the husband).

51. However, as the husband’s counsel correctly commented in his written submissions, “[t]his characterisation by his Honour took the emphasis away from the real focus of the dispute, that is that [F] should spend equal time with the parties on a permanent basis during school time”. His Honour plainly also fell into error when later in his reasons for judgment he set out the position of the parties. He said this at paragraph 148:

At the commencement of the hearing the issue as to time was significantly broader than it was at the end of the hearing. At the end of the hearing the parties consented to making orders that the child live primarily with the wife during school term and live with the husband substantially in accordance with the recommendation made by the Family Consultant. The issue in this case was whether the child spend significant or substantial time with each parent or equal time with each parent. Having regard to the evidence of the wife (which I generally accept) and the evidence of the Family Consultant I find that equal time, in the circumstances of this case, would be more to meet the needs of the parents rather than the needs of the child. To the credit of both parents neither seeks equal time and neither does the Independent Children’s Lawyer. Accordingly, in accordance with the law I have considered equal time but I will not make an order for equal time.

52. This mistakes the position of the husband and the Independent Children’s Lawyer, and his Honour repeated this mistake in paragraph 219 when he said that “neither party seeks equal time”. The clear position of the husband, and the Independent Children’s Lawyer whose position his Honour appeared to completely overlook, was that on the evidence the finding that was in the best interests of the child was that the child should spend equal time with each parent. That error of his Honour is also demonstrated by his Honour stating at the conclusion of the hearing that the parties consented to the making of orders “that the child live primarily with the wife during the school term”, and
    his Honour making an interim order in those terms, and then later a permanent order. Neither the husband nor the Independent Children’s Lawyer sought such an order on a final basis.
53. We agree with the submissions of the husband that in defining and approaching the issues in dispute his Honour has “misdirected” himself and fallen into error. As to the importance of such an error we refer to the Full Court decision in Maluka & Maluka (2011) FLC 93-464.
54. As a consequence of his Honour’s misunderstanding of the issues, it is said that he has simply considered the issue of equal time as an aspect of his duty to apply s 65DAA of the Act instead of approaching that issue as the fundamental issue in the dispute between the parties. Depending on which it is, the focus in considering the evidence and applying the relevant principles is quite different, and we reject the argument by counsel for the Independent Children’s Lawyer that there is in fact no difference between those enquiries. Although the evidence does not change, when just considering the mandatory application of
    s 65DAA it is clearly unnecessary to address that evidence to the same extent as is required when the question of equal time is the fundamental issue to be determined in the case.
55. In these circumstances we consider that this ground of appeal has merit and
    his Honour has erred.

Grounds 1, 3, 4, 5 and 6

56. The force of these grounds has been taken away somewhat with the abandonment of Ground 2, and we will say something more about that shortly. Nevertheless, they remain grounds that we need to address.
57. As explained in his written submissions there are two aspects of the husband’s case with which, it is said, the trial judge erred in dealing, namely:
    • (i) The [husband’s] case on family violence; and
    • (ii) The failure to properly use the evidence of Dr A, Ms WM and
      Ms I.
58. It is beyond doubt that the issue of family violence perpetrated by the wife was a significant part of the husband’s case. The primary relevance of it though was the impact on the child and any risk of it recurring in the future requiring orders being put in place to protect the child.
59. The evidence of the family violence was effectively unchallenged, as was the evidence of the deleterious effect of this violence on the child at the time he was exposed to it.
60. The complaint is that his Honour “fell into error in truncating and minimising this important aspect of the Appellant’s case”. However, on a fair reading of the reasons for judgment what his Honour did was to closely consider how that evidence should be utilised in assessing what was in the best interests of the child, and as a result his Honour determined that it was both unnecessary and inappropriate to make detailed findings about that evidence, and its use should be limited because his Honour found that the wife had recovered (as was conceded by the husband) (paragraph 151 of the reasons for judgment), and that to highlight that evidence might very well further damage family relations (paragraph 152) (see the decision of the High Court in M and M [1988] HCA 68;(1988) FLC 91-979).
61. We can find no error by his Honour in that approach. It must of course be remembered that this was a case where the respective orders sought were not so diametrically opposed that the issue of family violence would per se determine the outcome. In other words, it was not a case where the husband was saying that there should be no or only limited time spent with the wife because of the family violence, and in which case that issue would assume vital importance. Here, there was no longer any issue of supervision, or limited time, but rather the issue was whether there would be a nine day / five day split in favour of the wife (as she wanted) or a nine day / five day split in favour of the wife for three months and then an equal split (as the husband wanted), or even as the Independent Children’s Lawyer put, a nine day / five day or eight day / six day split in favour of the husband for three months and then the same split in favour of the wife for three months, and then equal time. Further, in this context, we observe that the importance of the abandonment of Ground 2 is that there is no longer any challenge to his Honour’s findings that the violence was unlikely to occur again as the wife had taken significant steps to address her psychological and emotional health (paragraph 151 of the reasons for judgment), and that the wife does not pose a physical or emotional threat to the care of the child (paragraph 198). Thus, the parameters of the dispute narrow even further.
62. The wife of course had denied the extent of the family violence alleged by the husband and his witnesses, but, to repeat, given what the future held, we agree with the trial judge that there was still no basis to make specific findings.
63. It is suggested that “[h]is Honour was under a duty to properly consider and analyse this part of the father’s case.” It was clearly necessary for his Honour to consider the evidence as to this issue, but his “duty” was to apply the paramountcy principle of what was in the best interests of the child, and if that did not require making specific findings about the family violence then
    his Honour has not erred.
64. It is also said that his Honour erred in that he “discouraged any cross examination on violence”, referring particularly to the cross-examination of the family consultant. However, again, if that cross-examination was not required for the purposes of assessing what was in the best interests of the child then
    his Honour was correct to limit it, and that was plainly the case.
65. It is quite apparent from his Honour’s reasons that he was well aware of the nature and extent of the violence perpetrated by the wife in 2008 and 2009, but that clearly was not the determining issue here, and particularly given the evidence of the circumstances applying at the time, and the evidence that the wife had taken steps to address her psychological and emotional health and that in effect she had recovered and that behaviour was unlikely to reoccur.
66. Turning then to the evidence of Dr A, Ms WM and Ms I.
67. It is a little unclear what the complaint is here, but the husband appears to be suggesting that if his Honour acted on the evidence of these witnesses he would not have been so critical of the husband “for unreasonably continuing to be apprehensive and fearful with respect to the behaviour of the [wife] towards [F]”, and his Honour would have been more accepting of “the parenting offered to [F] by the father.”
68. The answer to this complaint is that his Honour also had other evidence before him, and in particular from the family consultant, that allowed him to make the findings that he did, albeit that he also accepted the evidence of these three witnesses. For example, his Honour said this in paragraph 74:

The Family Consultant gave evidence that in all of the reports the husband expressed that the wife had “no insight” into her behaviour and this flowed through to the last report where at page 10 the Family Consultant observed:-
[the husband’s] stance, which is motivated by his perception of risk to the children through association with their mother, is considered to be out of proportion to the expert medical opinion and the actual events that occurred. It is also consistent that the [wife’s] relationship with [the child] prior to separation; her consistent effort to remain a fixed feature in [the child’s] life since separation; and [the child’s] obvious connection with her, indicate that joint parental responsibility rather than sole parental responsibility is important.
And further in paragraph 76:
In her first report the Family Consultant observed that the husband was overly focused on “information that supported his view that [the child] is at high risk in the unsupervised care of his mother”. The Family Consultant went on to say that the husband needs to “consider more carefully the professional reports that the wife was not in a psychotic state” and not a danger to the child. The Family Consultant says the wife was positive about her ongoing use and reliance on a counsellor and likewise with her general practitioner. [Footnotes omitted].

69. That evidence does not detract from the evidence of the other witnesses, but it is far more powerful and helpful to the trial judge, given its content and timing.
70. Dr A prepared a report in respect of the parties in October 2009, almost a year before the hearing. He made observations as to the mental state of each of the parties, but importantly he did not see the child. Ms I, psychologist, saw the child on referral from the husband on a number of occasions between April 2009 and December 2009. She did not see the mother though, and his Honour, in accepting her evidence, said this in paragraph 66:

I accept the evidence of Ms [I], although it must be seen in the context of the nature of the counselling and in the absence of the wife. ...
Her observations also preceded the final report of the family consultant.

71. Ms WM is the husband’s sister, and although his Honour described her as an impressive witness, his Honour also observed as follows in paragraph 118:

Ms [WM] was not apprised of the psychiatric and psychological difficulties of the wife but has, seemingly accepted uncritically the views of the husband (her brother) in respect of the wife.
Her observations too preceded the final report of the family consultant.

72. Thus, it can be seen that his Honour was able to accept the evidence of these three witnesses as far as it went, but still act upon the evidence of the family consultant who not only had seen both the parties and the child but had done so over an extended period of time; her first report was dated 21 September 2009 and her third and final report was dated 9 June 2010. We also reject the submission of the husband that his Honour “placed too much weight” on the evidence of the family consultant. His Honour recognised her expertise and the value of her opinions given her significant involvement with the parties and the child.
73. There was also other relevant evidence before his Honour. For example,
    Dr CD concluded at a time after the report of Dr A that “the wife was compliant with her medication” (paragraph 52 of the reasons for judgment); Dr N, the wife’s general practitioner, also after Dr A’s report said, “[o]ver the last 12 months I have observed a strong improvement in [the wife’s] mental health. In my view, she is functioning in a normal manner”. And Ms D, the wife’s psychologist opined, also after Dr A’s report that, “the wife’s psychological health is presently good” (paragraph 123).
74. Thus, we consider that there is no merit in this part of Ground 1.
75. At this point we observe that in what we have said to date we have also effectively dealt with Ground 3, and we likewise find no merit in that ground.
76. Next there is the issue of both the fact of P being called as a witness by the husband, and the evidence that was in her affidavit. P of course was the
    19 year old daughter of the parties who was estranged from her mother, and lived with her father. She had obtained an interim family violence order against the mother with the help of her father and her maternal grandmother, but that was replaced in February 2010 with an undertaking by the wife to the Magistrates Court that in effect she would never again contact P. Unsurprisingly his Honour found P to be “aligned to her father’s cause”.
77. The husband prepared an affidavit for P and filed it and relied on it in support of his application before the trial judge. The wife though instructed her lawyers “not to seek or allow cross examination of [P]”, and his Honour, correctly in our view, found that that was “a powerful example of her ‘child focused’ behaviour” (paragraphs 17 and 144 of the reasons for judgment).
78. As to the fact of P presenting an affidavit and being requested to give oral evidence his Honour was critical of the husband’s role in that exercise, and particularly after the wife chose not to cross-examine P. His Honour said this in paragraph 160:

When the wife took the appropriate step of not requiring [P] to be cross-examined, the husband, through his counsel as I have said elsewhere, still wanted [P] to come to court to give evidence. That is indicative of the husband being more concerned about the litigation process and not the impact on the relationship between this child and the wife and the broader family dynamics.

79. The husband explained in his evidence why he made the decision to call P, namely that he had discussed it with her but was persuaded by P indicating that she would be empowered by being able to tell her story to the Court.
80. However, we consider that it was open to the trial judge to form the view that it was irresponsible for the husband as P’s father to not only permit her to give evidence but to encourage and support it, and to assist her in giving evidence (paragraphs 144 and 145 of the reasons for judgment). This applied not only in the context of the hearing before his Honour but also to the obtaining of a family violence order by P. This view was clearly consistent with his Honour’s general approach, that in the circumstances that then prevailed, to make specific findings as to the family violence and to highlight the same was first unnecessary given the parameters of the dispute and secondly profoundly damaging to the future of the relationships between the members of this family and to the future parenting of the child.
81. Given this approach, in respect of which we can find no error, it was then equally open to the trial judge to give the wife “great credit” for not cross-examining P.
82. The criticism is also made by the husband that given P provided evidence of the family violence, and there was no challenge to that evidence by way of cross-examination, his Honour erred by not “considering” that evidence “in assessing that the Respondent had perpetrated physical violence within the family” (ground of appeal 1(vi)).
83. Further, in this context, it is said that his Honour failed to “consider or apply the rule in Brown and Dunne [sic]” given there was no cross-examination by the wife when her evidence was “in conflict” with P’s evidence.
84. We respond to these complaints in the same way as we have to the other complaints. In other words, his Honour was well aware of the evidence of P, but in the circumstances of the case it was not only unnecessary to make specific findings about that, but also his Honour considered it inappropriate to do so. We can find no error in that approach.
85. It is also true that his Honour placed riders on his acceptance of the evidence of P, namely that it was “somewhat coloured by the events of that time” (paragraph 197 of the reasons for judgment) and that there was “an element of subjectivity in respect of all of the evidence” (paragraph 202). However, these are riders that his Honour put on all of the evidence before him, and it does not seem to us that that breaches the so-called rule in Browne v Dunn, which properly stated requires the case of the respondent to be put to the applicant in order to be able to rely on it, and even if it did, we are not persuaded that how his Honour used the evidence of family violence demonstrates an error that would require the appeal to be allowed. His Honour was clearly entitled to make comment overall as to his assessment of the evidence that was before him, regardless of whether that evidence was directly challenged or not.
86. It also does not demonstrate that his Honour erred in his treatment of P providing evidence, and the content of that evidence, to point out that the Independent Children’s Lawyer considered there was a “need to call or lead evidence from [P]”. His Honour exercised the wide discretion that he had in making the findings that he did, and it has not been demonstrated to us that his Honour erred in undertaking that task.
87. Finally on this topic, although it is not the subject of a specific ground of appeal, it is said that the lynch-pin of his Honour’s decision is his finding that the husband’s fear and anxiety about the interaction between the wife and the child were greater than what was reasonable in the circumstances (paragraphs 94 and 210 of the reasons for judgment), yet his Honour could not have made that finding without first analysing the evidence of the family violence and making specific findings about that, and he did not undertake that task. However, we do not agree with these submissions. First, a fair reading of paragraphs 148 to 174 of his Honour’s reasons for judgment indicates plainly that there were other factors, many also arising out of the evidence of the family consultant apart from the unreasonableness of the husband’s fear and anxiety on which his Honour based his decision. There were a number of negative issues about the rigidity of the husband vis a vis the interaction between the wife and the child. Secondly, his Honour was well aware of the evidence of family violence and he did not need to “analyse it” and make specific findings to enable him to reach the conclusion that he did about the reasonableness or otherwise of the husband’s fear and apprehension. We again observe that there was ample support for that finding in the evidence of the family consultant, and we again refer to what his Honour said in paragraph 74 of his reasons for judgment.
88. Thus, there is no error here by the trial judge.
89. Ground 6(i) and (ii) is directed to his Honour’s treatment of the specific evidence of the family violence orders that were put in place. The complaint is the same, namely it is said that his Honour “failed to appropriately deal with” this evidence. Unsurprisingly then, our response to this ground is also the same, namely, that his Honour was well aware of the orders and the undertaking by the wife, and it has not been demonstrated that his Honour’s discretion in applying the evidence miscarried. Indeed, we observe that there is no real attempt in the written or oral submissions of the husband to indicate in what way his Honour had inappropriately “dealt with” this evidence. Thus, this ground must fail.
90. We do not consider it necessary to address Ground 6(iii) given that it does not demonstrate appealable error to allege that the husband was “shaken and substantially undermined in the giving of his evidence during cross examination” by his Honour’s strident criticism of the husband as to his support of P in the restraint order proceedings. In any event, there is no evidence before us that the husband was affected in the way that he alleges.

Grounds 7 and 8

91. These grounds are based on an acceptance of Grounds 1 to 6. Thus, given that we have found no merit in those grounds equally there can be no merit in Grounds 7 and 8. We add in relation to Ground 8 that a plain reading of
    his Honour’s reasons indicates that his Honour properly considered the question of whether or not it was reasonably practicable for the child to spend equal time with each parent. As counsel for the respondent has pointed out,
    his Honour refers specifically to the relevant High Court decision of MRR v GR [2010] HCA 4; (2010) 240 CLR 461 in paragraph 222 of his reasons for judgment, and in paragraph 225 of his reasons his Honour specifically refers to the issue under discussion, concluding that, “[b]oth equal time and significant and substantial time are reasonably practicable”.

Property settlement

92. In his written submissions the husband said this:

Ground 10 is subject to Ground 12 and is not pressed in its current form, i.e. “manifestly inadequate” because the error can be identified. If ground 12 is not upheld it is submitted as an alternative that the ultimate split is manifestly excessive.
Thus, we propose to address Ground 12 first.

Ground 12

93. The issue raised here is whether the proceeds of the insurance policy should be treated as a contribution made by the wife or made by the parties jointly.
94. His Honour’s reasons unfortunately do not reveal much about the basis for
    his Honour’s treatment of this issue. His Honour simply recorded that the wife had an insurance policy, and after being diagnosed with cancer she received a lump sum payment of $190,000, $120,000 of which was paid to the parties’ home mortgage. His Honour then later said this at paragraph 289:

I have had regard to the significant initial contributions of the husband and contributions since separation. I have had regard to the contribution by the wife in terms of her insurance when she was unwell.

95. The husband’s submissions on appeal can be summarised as follows:
    1. The lump sum was paid, not as compensation for the cancer, but pursuant to a contractual obligation on the part of the insurance company.
    2. The policy was probably taken out during the marriage.
    100. The parties pooled their income and it was likely that the premiums for the policy were paid out of the husband’s business in which the wife participated.
    4. The parties were still cohabitating when the wife was diagnosed with cancer.
    5. In these circumstances it was a joint contribution.
96. The wife’s submissions on appeal can also be summarised as follows:
    1. The proceeds of the insurance policy were received because the wife suffered cancer.
    2. Even if the policy may have been maintained out of joint funds (about which there was no evidence) there needed to be a diagnosis of cancer before the payment could be made.
    100. In these circumstances it cannot be argued that the parties contributed equally to this payout.
97. As was explained by the Full Court in the case of Zyk, RM & Zyk, D (1995) FLC 92-644 when faced with how to treat a lottery win, “the critical question in such cases is – by whom is that contribution made?” (at 82,515). We consider that that is also the question to be asked here.
98. In the case of Miller & Miller [2009] Fam CAFC 121, which is relied on by the wife before us, Strickland J found that where the husband had received a lump sum payment from an insurance policy after separation as a result of suffering a heart attack the amount that he contributed therefrom to meet joint debts of the parties was primarily a contribution by him, but there was a contribution by the wife as well represented by the maintenance of the policy from joint funds both prior to and subsequent to separation. At paragraph 101 his Honour said this:

... This payment was not a windfall. It was a payment received by the husband because he suffered a heart attack. It matters not that it was a minor attack from which he recovered. Despite the husband’s good fortune in this regard, his health into the future is “significantly compromised” as a result according to the evidence of his cardiologist. Thus, although the fact that it was a joint decision to take out the insurance and the fact that the premiums were maintained out of the parties’ joint funds can be treated as contributions by each of the parties, there still needed to be a life-threatening event before a payment could be made. It is simply not open to the wife to argue that the parties have contributed equally to this payout. It is the husband’s money to which the wife has made an indirect contribution of a relatively minor nature.

99. However, we consider that this case is distinguishable from the decision in Miller because there the heart attack occurred and the proceeds were paid out to the husband after separation, and the issue was how to treat the use made by the husband of those proceeds. Here, all the relevant events including the circumstances surrounding the taking out and the maintenance of the insurance policy as well as the use of the funds during the marriage, but more particularly their use as an aspect of the parties’ ongoing financial relationship, occurred prior to separation.
100. In any event, it is still a matter of determining whose contribution it is, and there may be many permutations of that. In other words, it may be a sole contribution by the party whose insurance policy it is, it may be an equal contribution by both parties, or it may be that it is a joint contribution but with one party making a greater contribution than the other. Importantly that decision as to whose contribution it is will depend very much on the evidence that is before the judicial officer, and the difficulty in this case is the paucity of evidence in relation to the policy. Indeed, the policy was not even before the Court and the only evidence was comprised in paragraph 82 of the wife’s affidavit where she deposed as follows:

In March 2007, I was diagnosed with cancer ... I had an insurance policy and I received a lump sum payment of about $190,000. We used the sum of $120,000 to pay towards our home mortgage.

101. There was no evidence of when the policy was taken out, the circumstances in which it was taken out, who paid the premiums, how those premiums were paid, or what the financial or other arrangements were in relation to the policy.
102. In these circumstances, and also given that the husband, unlike the wife, made no submissions to the trial judge about how his Honour should treat these proceeds, it does not behove the husband to now complain that his Honour erred in how his Honour did treat those proceeds. His Honour plainly proceeded on the basis of the only evidence that was before him, namely paragraph 82 of the wife’s affidavit, unchallenged by the husband. There was also the submission by the wife’s counsel in his final address that the proceeds of the insurance policy could be treated as a contribution made by the wife and that contribution could offset to a great extent the significant initial contributions made by the husband.
103. The husband had the opportunity to provide evidence to the trial judge which might have caused his Honour to come to a different view than he did, but that is a difficulty for the husband and does not demonstrate any error on the part of the trial judge. Thus, we find no merit in this ground of appeal.

Ground 10

104. Given that we have found no merit in Ground 12, we need to address this ground.
105. The complaint is that “the ultimate split is manifestly excessive”, but the submissions in support of that complaint still centre around the alleged error by the trial judge in taking the proceeds of the insurance policy into account as a contribution made by the wife. In other words, it is said that if that had not been the case then the percentage difference would have been 11 per cent and not 6 per cent on the basis of 5 per cent representing the contribution of the proceeds of the insurance policy.
106. Putting aside though the issue of the proceeds of the insurance policy given that we have found no merit in Ground 12, the complaint becomes nothing more than a “weight challenge” in the context of this being an exercise of discretion by the trial judge.
107. The law in relation to appeals against discretionary judgments is not in doubt. It has been expressed in many cases, and most notably in the decision of the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499. Their Honours said this at 504-505:

... 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 for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

108. Here it is apparent that his Honour took into account all of the contributions of the husband including the “significant initial contributions at the start of cohabitation”. His Honour also took into account the contributions of the wife, including the proceeds of the insurance policy, and in weighing up all of their contributions found that he was “satisfied that overall the husband’s past contributions are slightly greater than that of the wife”.
109. This court may have been more generous to the husband, but that is not the test. It has not been demonstrated that his Honour exercised his discretion by reference to erroneous facts, or by having regard to extraneous or irrelevant facts or circumstances, or by failing to have regard to relevant facts or circumstances. No error of principle has been demonstrated, and it is not apparent that his Honour’s conclusion was plainly wrong. Nor has it been established that, despite the absence of demonstrable error, the conclusion reached by the trial judge was manifestly excessive. Thus, we find no merit in this ground of appeal, focused as it was on the contribution assessment.

Ground 13

110. In his reasons for judgment, his Honour addressed a number of factors arising under s 75(2) of the Act to arrive at his adjustment of 10 per cent in favour of the wife. For example, his Honour considered the health of the parties, their past and present employment and their future employment prospects, their income, their financial commitments, their responsibilities to support the child F, their standard of living, the funds available to each of them, and the issue of child support.
111. Crucial to his Honour’s conclusion though was his assessment of the health of the wife and the future earning prospects of each party, and it is here the husband says his Honour has erred given the evidence that was before him.
112. As to the wife’s health, the husband’s counsel has taken us to the evidence about that, and it is readily apparent that that evidence indicates that the wife was “functioning normally”, her cancer was in remission, she was compliant with her medication, and her psychological and mental health was “good”. Indeed, that was the basis of the wife’s case in relation to parenting issues. More significantly though, there was no evidence presented by the wife that indicated her ability to work and earn an income was impaired in any way by her health, and in fact at the time of the hearing before his Honour the wife was holding down three part-time jobs, and her evidence was that she was enjoying that work, that she was coping, and that she was doing well.
113. As to the respective earning capacities of the parties, again we have been taken to the relevant evidence which indicates that although the wife was unlikely to earn more than she was at the time of the hearing, namely approximately $850 per week, the business that the parties had operated had effectively ceased and was in liquidation, and it was submitted by the husband’s counsel that the husband was earning little or nothing with no obvious prospects for the future. However, that overlooks the concession made by the husband’s counsel during the hearing before the trial judge and which then became an agreed fact, namely, that “the husband will go back to work and find employment and earn a reasonable income which is what he has done in the past” (transcript, 29 July 2010, page 410, lines 11-12). That though does not indicate, as his Honour found, that the husband will earn a substantially greater income than the wife.
114. In these circumstances we agree with the submission of the husband’s counsel that it was not open to the trial judge to find that the wife’s health was problematic to the extent that it affected her earning capacity, and that the husband “would, in the medium term, earn an income substantially greater than that of the wife”. Thus, we find that there was no basis on the evidence to make an adjustment in favour of the wife of 10 per cent on these grounds. That does not mean though that part of that adjustment was not justified by for example that as a result of his Honour’s orders the wife would resume the primary care of the child, but his Honour failed to identify what proportion if any of the adjustment was attributed to that factor, and clearly the two bases referred to above were the major components of that adjustment.

CONCLUSION

115. As can be seen we have found merit in Ground 7A in relation to the parenting orders, and in Ground 13 in relation to the property settlement orders.
116. These findings require us to allow the appeal and set aside the orders made by the trial judge, unless on a re-determination of the matter we were to make the same orders as the trial judge. However, the important question then becomes whether we should re-exercise the discretion in respect of both parenting and property settlement issues or remit the proceedings for re-hearing.
117. We raised this question with all counsel in the event of the appeal being successful. In relation to the parenting issues, counsel for the husband and counsel for the Independent Children’s Lawyer both urged us in that event to re-exercise the discretion without receiving any further evidence or submissions. They both conceded that ideally, given the passage of time and the prospect of changes having occurred, further evidence including the preparation of an updated Family Report would be necessary, but given the history of this case, that course should not be adopted. The wife’s counsel though took the opposite stance and submitted that if the appeal was successful further evidence and in particular an updated Family Report was required, and for that purpose the proceedings should be remitted.
118. In relation to property settlement, counsel for the husband submitted that if the appeal was successful then we should re-exercise the discretion without receiving any further evidence or submissions, and counsel for the wife did not necessarily disagree with that approach.
119. Our preference, certainly in relation to the parenting issues would be to re-exercise the discretion if we could in the interests primarily of the child concerned but also the parties themselves, given the history of this case. However, we are mindful that the instruction of the High Court in Allesch v Maunz [2000] HCA 40; (2000) FLC 93-033 is that the re-exercise of discretion by this court on appeal is a re-exercise on the facts and the law as they stand at the time of determination of the appeal and not as they were at the time of the hearing before the trial judge. Thus, given the passage of time and the prospect that circumstances may have changed, and the fact that the parties are not in agreement that we should re-exercise on the basis of the evidence before the trial judge, we do not consider that we could re-exercise the discretion in relation to the parenting issues without receiving further evidence including an updated Family Report. However, we could well expect this further evidence, or aspects of it, to be controversial and require, for example, cross-examination, something which a Full Court is ill-equipped to deal with. That is not a difficulty though that would be visited on a single judge at first instance, and accordingly we propose to remit the parenting issues for re-hearing before a judge other than the trial judge.
120. However, in the particular circumstances of this case we propose to place limits on that re-hearing. That is possible given the precise terms of s 94(2) of the Act (Walker v Ruscoe S115/2001 (Unreported, High Court of Australia, McHugh and Kirby JJ, 5 March 2002) per McHugh J).
121. Here, the dispute is within a narrow compass, namely whether in each fortnight the child should spend nine nights with the wife and five nights with the husband, or equal time with each parent. Thus, the re-hearing should be limited to a determination of that issue.
122. Further, we consider that in order to determine that limited dispute, the starting point for the re-hearing should be the facts as they existed at the time of the hearing before the trial judge, and as were found by the trial judge, and for the new judge to then only take into account relevant facts that have arisen subsequent to that date. In particular, we consider it unnecessary for evidence to be led at the re-hearing as to the historical facts and issues put before the trial judge including for example the allegations of family violence. We also consider that it would be of significant benefit to the new judge who re-hears this matter for there to be an updated Family Report prepared, but we will leave that issue to that judge.
123. On this basis the only orders that we would propose setting aside in relation to the parenting issues are Orders 3, 4 and 5 made by the trial judge. We observe that although Order 3 was not appealed, it needs to be set aside as a result of our decision.
124. Given that there will inevitably be a delay before the re-hearing takes place we propose to make interim orders in accordance with Orders 3 and 4 of the Orders made by his Honour.
125. In relation to property settlement, again, although we would prefer to re-exercise the discretion we are not necessarily persuaded that with the passage of time new facts and circumstances would not have arisen and thus for the same reasons as we have expressed in relation to the parenting issues, we consider it necessary to remit the property settlement proceedings for re-hearing. Similarly though, we consider that in the particular circumstances of this case only a limited remission is called for.
126. There is no challenge to his Honour’s findings as to the net asset pool, and we have found no merit in the challenge to his Honour’s findings as to the respective contributions of the parties. It is only as to what adjustment if any should be made as a result of a consideration of the relevant s 75(2) factors that need be the subject of the re-hearing. We observe that that of course has some synergy with a re-hearing to determine the time the child should spend with each parent, given that that circumstance becomes a factor to be considered under s 75(2) of the Act.
127. In terms of the orders that we need to address for the purposes of such a limited re-hearing on the issue of property settlement it is those orders where a percentage entitlement or division is set out given that those percentages incorporate the 10 per cent adjustment that the trial judge allowed as a result of his consideration of the relevant s 75(2) factors. Those orders are Orders 16(e)viii, 18(a), 19(e)iv and 19(e)v, and we note that they were the only Orders as to property settlement appealed.
128. However, it is unnecessary to set aside the entirety of those orders given that it is only the percentage entitlement or division which is to be the subject of the re-hearing. Thus, we propose to delete those percentage entitlements or divisions and leave them to be replaced with such percentage entitlements or divisions as may be determined at the re-hearing. In all other respects those orders should stand. We again acknowledge though the difficulties inherent in Orders 18(a) and 19(e) as referred to above, and in respect of which ultimately there was no appeal.

COSTS

129. At the conclusion of the hearing we sought submissions from the parties as to costs.
130. In the event the appeal was successful the husband sought an order for costs, but if no order was made then he sought costs certificates (including for any re-hearing) under the Federal Proceedings (Costs) Act (1981) (Cth) (“the Costs Act”). The wife sought costs certificates (including for any re-hearing) in the event the appeal was successful.
131. Counsel for the Independent Children’s Lawyer also sought costs certificates (including for any re-hearing) in the event the appeal was successful.
132. In the circumstances of this case we consider that no order for costs in favour of the husband is warranted. Thus, given that the appeal has succeeded on questions of law we propose to grant costs certificates to the husband and to the wife for both the appeal and the re-hearing.
133. As to the Independent Children’s Lawyer, there is an issue as to whether costs certificates can be granted. Section 14 of the Costs Act provides as follows:

(1) A court is not empowered by this Act to grant a costs certificate to:
(a) the Commonwealth;
(b) a State;
(c) the Northern Territory;
(d) a person suing, or being sued, on behalf of the Commonwealth, of any State or of the Northern Territory;
(e) an authority of the Commonwealth, of any State or of any Territory (including the Northern Territory and Norfolk Island);
(f) a body corporate that has a paid-up capital of $200,000 or more; or
(g) a body corporate that is not a body corporate referred to in paragraph (f) but is related to such a body corporate.
(2) For the purposes of subsection (1), the question whether bodies corporate are related to each other shall be determined in the same manner as the question whether corporations, within the meaning of the Corporations Act 2001, are related to each other would be determined under that Act.

134. Thus, the issue is whether s 14(1)(a), (b), (e) or (f) of the Costs Act precludes us from granting costs certificates to an Independent Children’s Lawyer where that Independent Children’s Lawyer is a lawyer employed by the particular Legal Aid Commission which has arranged the representation, in this case the Legal Aid Commission of Tasmania. We understand that that is the case here, namely that the Independent Children’s Lawyer is a lawyer employed by the Legal Aid Commission of Tasmania.
135. This issue has been raised in a number of other cases, but to our knowledge it has never been authoritatively determined. Although counsel for the Independent Children’s Lawyer here sought costs certificates no submissions were made as to the entitlement of the Independent Children’s Lawyer to be granted such certificates. Thus, in the event that the Independent Children’s Lawyer wishes to pursue the application for costs certificates we propose to require written submissions to be lodged addressing the entitlement to the same. These submissions should also be served upon the other parties, but given that this matter only affects the Independent Children’s Lawyer it is unnecessary for those parties to make any submissions.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Johnston JJ) delivered on 31 August 2012.
Associate:
Date: 31 August 2012