Family Court of Australia

BAGHTI & BAGHTI AND ORS 	[2015] FamCAFC 71	

FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made an order for sole parental responsibility for the parties’ child to the respondent wife – Where the appellant husband asserts errors in the trial judge’s reliance on the expert evidence – Where the expert’s evidence was influential on the trial judge’s determination of the parenting issues – Where the trial judge did not err in the acceptance of and the weight placed on the expert evidence – No merit in this ground of appeal – Where the appellant husband submitted that the trial judge erred in failing to make findings of fact in relation to allegations of family violence – Where the appellant husband could not point to any clear evidence which would have allowed the trial judge to make the findings of fact – Where, in any event, it was not necessary for the trial judge to make findings in relation to the allegations made – No merit in this ground of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made an order requiring funds be released from a controlled monies account in order to satisfy a loan taken out by the interveners to enable the appellant husband and the respondent wife to purchase a property – Where the appellant husband asserted that the trial judge’s finding effectively reverses the onus of proof in respect of such a proposition – Where the trial judge did not err in this regard – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS ORDERS - Where the appellant husband challenged costs orders made by the trial judge – Where the appellant husband conceded that if the appeal against the parenting and property orders failed, the appeal against the costs orders would also fail – Appeal dismissed.   

FAMILY LAW – APPEAL – COSTS – Where the respondent wife, the interveners and Independent Children’s Lawyer sought their costs against the appellant husband – Where the interveners sought an order for costs against the appellant husband on an indemnity basis in relation to the property aspect of the appeal – Where the husband was wholly unsuccessful – Where it was appropriate that a costs order be made – Where the intervener’s application for indemnity costs was dismissed for a failure to comply with r 22.53(3) of the Family Law Rules 2004 (Cth).	

Family Law Act 1975 (Cth) – s 117(2A)

Family Law Rules 2004 (Cth) – r 22.53(3)

Gronow v Gronow (1979) 144 CLR 513
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378	

Appellant:	Mr Baghti	

FIRST Respondent:	Ms Baghti	

SECOND Respondent:	       		       Mr Banis 

Third Respondent:				       Mrs Banis

INDEPENDENT CHILDREN’S LAWYER:	       Legal Aid NSW

File Number:	SYC	2145		of	2009	

APPEAL NUMBERs:	EA	118		of	2012	
	EA	10		of	2013	

DATE DELIVERED:	5 May 2015	

Place Delivered:	Adelaide	

Place Heard:	Sydney	

Judgment of:	Strickland, Ainslie-Wallace & Ryan JJ	

Hearing date:	17 September 2014	

Lower court jurisdiction:	Family Court of Australia	

lower court judgment date:	22 August 2012 
27 November 2012	

LOWER COURT MNC:	[2012] FamCA 711
[2012] FamCA 1112	

REPRESENTATION
		
COUNSEL FOR THE APPELLANT:	Mr Levet	
		
SOLICITOR FOR THE APPELLANT

COUNSEL FOR THE FIRST RESPONDENT:	State Lawyers Pty Ltd

Mr Lawson	
		
Counsel FOR THE second and third RESPONDENTs:

SOLICITOR FOR THE second and third RESPONDENTs:	
Mr Gould

McDonell Milne Toltz	
		
Counsel FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Boyle	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	

Legal Aid NSW	

Orders
(1)	The application in an appeal filed by the husband on 1 August 2014 be dismissed.
(2)	Appeal number EA 118 of 2012 be dismissed.
(3)	Appeal number EA 10 of 2013 against orders 3, 4, 5, 6, 7, 8 and 11 made by Fowler J on 27 November 2012 be dismissed.
(4)	The husband pay the costs of the wife of and incidental to the appeal, such costs to be assessed on a party/party basis in default of agreement.
(5)	The husband pay the costs of the interveners of and incidental to that part of the appeal against the orders for property settlement, such costs to be assessed on a party/party basis in default of agreement.
(6)	The husband pay the costs of the independent children’s lawyer of and incidental to that part of the appeal against the parenting orders, such costs to be assessed on a party/party basis in default of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Baghti and Ors 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 SYDNEY	

Appeal Number: EA 118 of 2012; EA 10 of 2013
File Number: SYC 2145 of 2009

Mr Baghti 	
Applicant

And

Ms Baghti 	
First Respondent

And

Mr Banis 	
Second Respondent

And

Mrs Banis	
Third Respondent

And

Independent Children’s Lawyer	

REASONS FOR JUDGMENT
Introduction
The application in an appeal filed on 1 August 2014
1.	On 14 May 2014 the Full Court ordered that the Notice of Appeal in EA 118 of 2012 and the Notice of Appeal in EA 10 of 2013 to the extent that that appeal had not previously been dealt with, be reinstated.
2.	It was further ordered, inter alia, that Mr Baghti (“the husband”) pay to Ms Baghti (“the wife”) “all existing orders for costs that are fixed in favour of the wife up to the amount of $16,300 on or before 30 June 2014”.  The orders then provided that in the event of the husband failing to comply with that order for the payment of costs (or an order for the filing of appeal books, his summary of argument, and list of authorities) by 30 June 2014 the two appeals be dismissed.
3.	Subsequently, the husband paid the sum of $1,300 arguing that this was the only relevant order for costs that had been fixed.  There was an order made on 27 November 2012 providing for costs of $15,000, but payment of that sum was “deferred until such time as effect is given to … any appellate judgment …” (see order 6) from the orders made by Fowler J on 
22 August 2012.  Thus, the husband’s position was that on its terms, although the costs were fixed, payment of those costs was not yet required.  
4.	The wife took a different view though, and persuaded the Appeal Registrar to advise the parties on 23 July 2014 that as a result of the husband’s failure to comply with the order made on 14 May 2014 the husband’s appeals “now stand dismissed”.  As a result the husband filed an Application in an Appeal on 1 August 2014 seeking in effect that the appeals be reinstated.
5.	At the commencement of the hearing before this Court on 17 September 2014 the Court received submissions from the parties as to the status of the husband’s appeals.  This Court determined that the Appeal Registrar was incorrect, and the appeals did not stand dismissed and did not require reinstatement.  The Court was not requested to provide reasons for this decision, and the hearing of the appeals proceeded.  
The appeals
6.	By Notice of Appeal filed 19 September 2012 (in EA 118 of 2012) the husband appealed property and parenting orders made by Fowler J on 22 August 2012.  The first respondent to the appeal is the wife, and the second and third respondents are the wife’s parents, Mr Banis and Mrs Banis (“the interveners”).  The wife opposes the entirety of this appeal and the interveners oppose the appeal insofar as the appeal is against orders that relate to them.  The Independent Children’s Lawyer (“ICL”) also opposes the appeal against the parenting orders.
7.	By separate Amended Notice of Appeal filed on 13 February 2013 (in EA 10 of 2013) the husband appealed against various orders made by Fowler J on 27 November 2012.  Again, the first respondent is the wife and the second and third respondents are the wife’s parents.  The wife opposed the entirety of this appeal and the interveners opposed the appeal insofar as the appeal was against orders that relate to them.  The ICL also opposed the appeal insofar as the appeal was against an order for costs in favour of Legal Aid NSW and an order refusing to stay the parenting orders.
8.	On 18 February 2013, in appeal EA 10 of 2013, the Appeal Registrar listed the appeal against orders 9 and 10 (orders refusing stays of the parenting orders and the financial proceedings) of the orders made by Fowler J on 
27 November 2012 for hearing by the Full Court on 14 March 2013, and ordered that the appeal against orders 3, 4, 5, 6, 7, 8, and 11 “be consolidated with, and listed for hearing by the Full Court on the same date but immediately after the hearing of the appeal in EA 118 of 2012”.
9.	On 18 December 2013 the Full Court dismissed the appeal against orders 9 and 10 made by Fowler J on 27 November 2012 (see Baghti & Baghti and Ors (No. 3) [2013] FamCAFC 201).
10.	As for the balance of the appeal in EA 10 of 2013, at the hearing of the two appeals on 17 September 2014, counsel for the husband advised that the husband only pursued his challenge against the orders for costs, namely orders 3, 4, 5 and 6 made by Fowler J on 27 November 2012.  However, no written summary of argument was filed by the husband in relation to these orders despite an order being made requiring that; and in any event counsel for the husband conceded that if the appeal against the parenting and property settlement orders in EA 118 of 2012 fails then the appeal against the costs orders in EA 10 of 2013 must also fail.
11.	Turning to the appeal in EA 118 of 2012, in summary, the parenting orders made were that the wife have sole parental responsibility for the parties’ only child, N (“the child”) born in May 2003, that the child live with her and spend time with the father each alternate weekend, for half the school holidays and on other special occasions.  The orders also provided for the ongoing management of the child’s health issues by his attendance on a paediatrician and dietician respectively.
12.	In relation to property settlement, as relevant to this appeal, his Honour ordered a release of funds held in a controlled monies account (being the balance of the sale proceeds of a property at E Street, Suburb H) to be paid to the interveners to the extent necessary to discharge the mortgage ($465,000 plus interest) raised by them to assist in the purchase of that property by the wife. 
Background of the Parties
13.	The husband was born in 1968 and was aged 43 years at trial.  The wife was born in 1976, and was aged 35 years at trial. 
14.	The parties married in May 2002, separated in December 2008 according to the wife, and on 14 April 2009 according to the husband, and continued living separate and apart under the same roof until 11 November 2009.  
15.	The child suffers several health issues, first recorded in around 2004.  These include asthma symptoms, colds, viral infections, absent seizures, febrile convulsions and obesity. 
16.	Up until November 2004 the wife claimed that she was the primary carer for the child whilst the husband worked as a paralegal with his sister (Ms MB), and undertook undergraduate studies in law part time.
17.	In September 2004 the wife and her sister Ms B purchased a business from the interveners re-named D Business.  Renovations took place and D Business was opened in November 2004.  An agreement was in place to the effect that once it was sold, $400,000 would be paid to the interveners.  The trial judge accepted the wife’s evidence in this respect.  D Business has now been sold pursuant to his Honour’s orders. 
18.	In November 2004 the wife commenced working full time at D Business.  At that time the husband took over the primary care of the child, however the trial judge accepted that both parents contributed to the child’s care in the first 18 months and thereafter.
19.	The child attended hospital on many occasions due to his health issues; the child attended on Dr F, Professor VR, and Dr U.  The husband also consulted Dr NP and Ms GM in relation to the child’s weight, and this was allegedly undertaken without the knowledge of the wife. 
20.	On 10 October 2006 the wife purchased a property at E Street, Suburb H for $1.1 million, funded by two loans from the ANZ bank, one for $630,000 in the sole name of the wife, and one for $465,000 in the name of the interveners offering their property as security.  This sum, at trial, remained owing to the interveners. 
21.	From the period beginning in around 2009 to around 2011 the husband meticulously recorded the child’s weight.  He documented the alleged weight gain of the child when in the care of the wife and the reduction or maintenance of the child’s weight when in his care. 
22.	In 2008 the child commenced pre-school, and the husband also began working night shifts four nights per week.
23.	In January 2009 the child commenced school at V Primary School in Suburb H. Both parties contributed to the child’s care. 
24.	On 14 April 2009 the proceedings were commenced in the Family Court by the wife. 
25.	On 18 September 2009 the child was diagnosed as having absent seizures by Professor VR.
26.	In around September 2009 the husband arranged for ongoing surveillance of the wife.
27.	In correspondence between the parties and their legal representatives, the husband asserted that the wife fed the child excessive junk food, and allowed him to sit within close proximity to the chicken roaster at D Business, against the advice of Dr F.  The husband alleged that the wife had a serious eating disorder and regurgitates after she eats and then consumes more food. 
28.	From October 2009, the wife became aware of the husband’s ongoing surveillance of her.  She asserted that she developed symptoms of stress and began to regurgitate her food as a result.  This stress, in turn, affected the child as he threw tantrums and experienced stomach problems. 
29.	On 11 November 2009 interim parenting and financial orders were made.  These orders provided for the child to spend equal time with the parties and for the sale of the E Street property.  On the same date the husband left the matrimonial home and moved in with his parents, and the wife continued to live in the former matrimonial home as the sole occupant.
30.	At or around 7 February 2010 the wife became aware that the husband was taking the child to Dr W (and Dr NP) for regular “weigh ins” prior to handovers. 
31.	In July 2010 the child was taken by the husband to Ms BN, a dietician, who prepared a report that the husband relied upon.  The wife was not told about the child’s attendance on Ms BN. 
32.	On 29 October 2010, the wife, the interveners and Ms B entered into a deed documenting the refinancing necessary to discharge the entirety of the ANZ loan secured over the Suburb A property.
33.	On 9 January 2011, Dr X, the single expert, completed her report.
Grounds of Appeal
34.	Initially, the husband sought to raise 101 grounds of appeal, but sensibly sought to move on a substantially reduced number of amended grounds of appeal as set out in his summary of argument filed on 30 June 2014.  The wife, the interveners and the ICL did not oppose these amendments being made. 
35.	On 18 August 2014 the husband’s solicitor sent email correspondence to the Appeals Registrar copied to all parties seeking to file “refined” grounds of appeal.  The wife and the interveners objected to the husband moving on the “refined” grounds of appeal, and in any event, the husband was out of time to file an Amended Notice of Appeal.
36.	At the hearing before this Court, counsel for the husband advised that “the refined” grounds of appeal were no longer pursued, and the grounds of appeal were as set out in the summary of argument filed on 30 June 2014, namely:
As to parenting
1.	That His Honour erred in accepting and placing weight on the report and subsequent evidence of Dr [X];
2.	That His Honour erred in failing to make findings of fact in relation to the allegations referred to in paras 45,53,74,77, and 79 of the Judgment;
3.	In the premises, His Honour erred and his discretion miscarried in the making of parenting orders. 
As to property
4.	That His Honour’s finding (at para 848 of the Judgment) that “The Husband has failed in the court’s view to establish that the sum said to be due with respect to the controlled monies is not due” amounts to an error of law in that:-
a.	such a finding effectively reverses the onus of proof in respect of such proposition;
alternatively
b.	is against the weight of the evidence.
Orders Sought
37.	The husband when seeking to file “refined” grounds of appeal also looked to amend the orders sought in the appeal.  However, as with the proposed “refined” grounds of appeal those amended orders were not pursued, and the husband reverted to the orders sought in his summary of argument filed on 
30 June 2014 as follows:
1.	That the parenting orders made by His Honour Justice Fowler on 22 August 2012 in respect of the child of the marriage [N] born [in] May 2003 (“the child”) be set aside.
2.	That all parenting issues be remitted for re-hearing by a single Judge.
3.	That Order 44 of the Orders made by His Honour Justice Fowler be set aside.
4.	Order that in the event that on re-hearing there is a change in the residence of the child in favour of the Husband, that the apportionment of the net matrimonial pool by His Honour on the basis that the Wife receive 55% and the Husband receive 45% be varied to the intent that the Husband receive 55% and the Wife receive 45% of such net matrimonial pool.
5.	Costs.

Discussion
Property settlement – Ground 4
38.	It is convenient for us to address the grounds of appeal in relation to the orders for property settlement because ultimately counsel for the husband conceded that the challenge in Ground 4a could not be maintained, and that the husband could not pursue the alternative ground 4b.
39.	The complaint in Ground 4a was that his Honour’s finding at [848] of the reasons “effectively reverses the onus of proof”.
40.	The finding quoted by the husband in the ground of appeal was in fact made by his Honour at [849] rather than at [848], but when his Honour’s finding at [841] was pointed out to the husband’s counsel by the Bench he made the concession referred to above.  
41.	It is readily apparent that the relevant finding was at [841], where his Honour said this:
The wife was able to borrow $630,000 to assist in the purchase of the property and the interveners obtained a loan for $465,000 using their property at [I Street, Suburb A] as security.  The wife assets that the liability of $465,000 is still owed to her parents, and the interveners’ evidence is that this sum was to be repaid to them once the property was sold.  The Court accepts that this is so balancing the matters raised in evidence and the acceptance as truthful the evidence of the interveners and the wife on this matter.
42.	All that his Honour then did at [849] was to discuss the husband’s argument, but there is nothing there that detracts from the finding at [841], and certainly what his Honour said does not amount to a reversal of the onus of proof.
43.	In relation to Ground 4b the husband’s counsel, when asked by the court, simply indicated that he could not pursue it.  For our part, that was a proper position to take.
44.	In these circumstances Ground 4 will be dismissed.
Parenting
Ground 1
45.	Dr X was the single expert instructed by the ICL to prepare a Family Report.  Dr X is an experienced consultant psychiatrist who provided her report on 9 January 2011, and who was cross-examined by counsel for the husband, counsel for the wife, and counsel for the ICL.
46.	The opinions and recommendations of Dr X were accepted by the trial judge and they can be summarised as follows from his Honour’s reasons:
a)	Dr X considered that there were continuing risks of psychological harm due to the physical violence that occurred during the marriage.  She considered that the conflict and hostility between the parties, specifically the hostility of the husband and his family to the wife, would not be lost on the child.  This, combined with the child’s medical issues, would be problematic for the child.
b)	Dr X considered that it was unlikely that the child would be exposed to abnormal eating behaviour by the wife.
c)	Dr X was satisfied, based on Dr F’s assessment, that the wife can meet the health needs of the child.
d)	Dr X considered that the child is at risk of psychological harm in the long term because of the husband and his family’s obsessive preoccupation with his health and welfare. Dr X further opined that the child’s quiet, compliant nature may stem from an over controlling environment.
e)	Dr X concluded that there is a risk of psychological harm due to the preoccupations discussed above.  Dr X noted that the husband and his family’s reactions are “extreme” by comparison to other families who manage a child with an illness or disability.  Dr X also expressed the view that the child’s dreams concerning a “danger or threat” suggested a connection with the husband (at [407]).
f)	Dr X concluded that the child wants to spend time with the wife, the husband, and the paternal family, and the child has a strong attachment to the wife and husband.  Dr X opined that the wife is “affectionate, warm and responsive” and the husband is “also responsive and caring but overly solicitous” (at [411]).  Dr X concluded that the child is close to Mr LB (the child’s uncle), but also that “the family’s interest in the child is excessive to the point where it is obsessive and this is not a relationship context that is optimal for a child’s development” (at [412]).  Dr X considered that the maternal grandparents also are appropriately invested in the child but do not share the “obsessive preoccupation of the paternal family” (at [413]). 
g)	Dr X also concluded that the husband and his family are not supportive of a relationship with the child and the wife, and that they also do not accept that she provides an appropriate level of care.  Relevantly, the wife does not seek to limit the child’s relationship with the husband or his family.  Dr X stated that the child would suffer emotionally if he were not able to see or maintain contact with either parent. 
h)	Dr X further concluded that the husband and his family have an anxious attachment style and this manifests anxiety in the child.  Further, the husband has an obsessive and paranoid personality structure as documented by Dr WM, and this, in turn, affects his style of parenting.  Dr X also considered that the husband and his family’s hostility to the wife may manifest in alienating the child from the wife, causing psychological damage.
i)	Dr X considered that there are difficulties with interpersonal boundaries, processes of separation and individuation in the husband’s family.  This over involvement could be classified as “cohesion-enmeshment” which can compromise the child’s individuation (at [421]).  Otherwise, Dr X considered that both parties are responsible in their attitudes to the child.
j)	Dr X recommended that the child spend substantial time with both parents, however a shared parenting arrangement may be difficult due to the level of conflict and hostility observed. 
k)	Dr X considered that the husband’s highly controlling and paranoid personality organisation places a level of intensity, paranoia and obsessiveness on the child.  This was not ameliorated by the husband’s family, who in fact re-enforced it.  Dr X concluded that there was little evidence to support that the wife had a psychiatric disturbance or an eating disorder.  Dr X considered that the maternal family’s parenting style is closer to the “disengaged” end of the spectrum, and that this can promote greater autonomy in the child, provided that it does not get to a level of extreme lack of care or commitment.  Dr X further opined that the wife and her family’s approach to parenting could provide a healthy balance for the child.
l)	Dr X concluded that the child is developing well despite his health issues.  Relevantly, she considered that “the adjustment of a family to [a] child with chronic health issues requires a balance between what may of necessity be high involvement versus the promotion of a healthy degree of separation and individuation in the child and his achievement of healthy autonomy” (at [432]).
m)	Dr X observed that the level of surveillance that the wife was subjected to by the husband was extreme, but the husband and his family saw no problem with this. 
n)	In conclusion Dr X considered that “if it is not possible for the husband and his family to restrain themselves from their present level of intrusiveness and of undermining the wife, then the situation may become untenable and therefore it may be necessary to consider some limitation of their involvement with the child” (at [435]).
47.	Ultimately, the trial judge accepted the opinion of Dr X that a three to four day contact arrangement was most probably the best step forward in relation to the best interests of the child, but the aforementioned level of conflict may steer the court away from a shared parenting arrangement, and if the hostility continued the outcome for the child could be poor.
48.	Dr X was of the view that the child could cope with a week about arrangement.  She acknowledged though that such an arrangement would require each parent to accept that each is entitled to parent in their own way.  Dr X also opined that sole parental responsibility may be necessary due to the hostility between the parties.
49.	With regard to the constant monitoring of the child’s weight and attendance on three dieticians, Dr X said that this was an extreme emphasis on the problem which is “not a good way to deal with children with weight issues”.  She also considered that the child would be aware that “weighing and measuring him would have something to do with spending time with his mother” and she considered that “the concealment of the weighing from the wife … [was] an attempt to recruit the child into the surveillance team” (at [447]).
50.	Relevantly, Dr X found that the husband has no insight into his own actions and blamed all problems on the wife. 
51.	Clearly, Dr X’s evidence was influential in his Honour’s decision as to the parenting issues.  The complaint by the husband, as amplified in his written and oral submissions is that his Honour should not have “accepted and placed weight on that evidence because the husband was not interviewed alone by Dr X, as was the wife, and thus he was not given the opportunity to raise the matters that he wanted to”.
52.	His Honour dealt with this at [387] saying this:
The fact that Dr [X] did not interview the husband alone, and the husband with the child without his siblings there, was a subject of criticism on the part of the husband in her cross-examination.  Dr [X] stated in her oral evidence that she did not think it was necessary to conduct a separate interview with the husband, as she had already observed the child to be happy and settled with the husband.  She also stated that she got a lot of information from all of the husband’s siblings.
53.	Thus, his Honour had no concern that the husband had not been interviewed alone, or that Dr X was not aware of his case.  Indeed, it must be remembered that, as his Honour said at [381]:
Dr [X] reviewed a vast amount of material and affidavits prior to conducting interviews with the child, the parents and other family members. …
54.	In addition to the affidavits of the husband and the wife, Dr X also had all of the relevant medical reports.  
55.	The flaw in the submission of the husband in this regard was exposed during oral submissions.  The husband’s counsel was unable to tell this Court what the husband would have said to Dr X if he had been interviewed alone, and in particular what he would have been able to tell Dr X beyond what was in the material that Dr X had, and beyond what she knew in any event.  All counsel could do was take us to cross-examination of the husband by counsel for the ICL where there was an attempt to explore this issue, but it is readily apparent from that cross-examination that the little information that the husband there identified that he wished to convey to Dr X was either contained in medical reports or affidavits seen by Dr X in any event.
56.	However, most significantly it was conceded by counsel for the husband that it was not put to Dr X in cross-examination what it was that she would have been told by the husband, and thus it was not explored with her whether that further information (whatever it might be) would have made a difference to her opinion and recommendations.
57.	It was also conceded that it was not put to Dr X in cross-examination that she should have made enquiries of the husband about matters that concerned her.
58.	In a valiant attempt to maintain this ground of appeal, the husband’s counsel submitted that it is apparent from her report that Dr X spoke to the wife about domestic violence perpetrated by the husband, and the claim was made that Dr X was influenced by that.  However, counsel was not able to identify either in Dr X’s report or her oral evidence where this was demonstrated, and importantly again, it was not put to her in cross-examination.
59.	We also note that once the report of Dr X was to hand, no application was made for Dr X to reinterview the husband alone either before or during the trial.  There was also no submission made to his Honour that he should not place weight on the report and evidence of Dr X because of flaws in the process.  There was a brief reference in a written submission to the need to query the history given to Dr X, but that is as far as it went.
60.	In these circumstances, not only has it not been demonstrated that his Honour was in error as alleged in Ground 1, but it is not open to the husband in an appeal to make the criticisms that he does about the process.  Accordingly, this ground has no merit.
Ground 2
61.	The paragraphs identified in this ground are contained in that part of his Honour’s reasons headed “Background Facts”, and read as follows:
45.	In May 2008, the wife asserts that the husband grabbed her hair, pulled her head back and put his hands around her neck.  She states that she called [the] Police and made a report of domestic violence.  The husband denies this, and asserts he was the party who called police and complained on two occasions.  Whatever the truth of the detailed allegations there was a clearly hostile incident between the wife and the husband at this time.
…
53.	On 23 April 2009, it is asserted by the husband that the wife assaulted him and made allegations of stealing in the presence of [the child].  The wife denies this.  The Court is unable to determine where in relation to these allegations the truth is to be found.
…
74.	On 27 June 2009, the wife accused the husband of stealing money and threatened to chop off his fingers and call the police in the presence of [the child].  [The child] was highly agitated and scared.  The wife denies this incident occurred.  The Court is unable to determine the truth of the allegation.
…
77.	On 25 July 2009, the husband asserts that the wife said to the husband in the presence of [the child], “You are a loser, you are a nobody.  You have assaulted me and I am going to call the police”.  The parties, he says, commenced to fight over a mobile phone and the wife alleged that the husband assaulted her.  The husband called [the] Police, but there was no report of violence made by the police.  The wife denies this incident occurred.  The Court is unable to determine the truth of the allegation.
…
79.	On 3 August 2009, the husband asserts that the wife engaged in verbal abuse and badgering whilst the husband was exercising and in the presence of [the child].  The wife apparently said words to the effect of, “Everybody is laughing at you, you are a loser.  By the time I finish with you I am going to crush you”.  The wife denies this.  The Court is unable to determine the truth of the allegation.
(Original emphasis)
62.	The complaint is that his Honour erred in failing to make findings of fact in relation to the allegations described in these paragraphs.  In the husband’s written and oral submissions it is put that these allegations are serious matters that go to the welfare of the child and “if they had been decided in favour of the husband [they] may well have changed the outcome of the parenting orders made.”
63.	However, importantly it was conceded by the husband’s counsel that he could not point to any clear evidence before his Honour that would have compelled his Honour to make the findings of fact suggested.  This alone disposes of this ground of appeal, but we also make the point that it is beyond doubt that a court is not required to make findings in relation to all of the facts put in issue by the parties.  A court need only determine those facts that are necessary for the determination of the issues between the parties.
64.	By way of analogy, it is instructive to recall what Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 when considering the obligation of a judicial officer to provide adequate reasons for the decision.  His Honour said this (at page 385-386):
There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law: … .
…
However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding.  It is not the duty of the judge to decide every matter which is raised in argument.  He may decide a case in a way which does not require the determination of a particular submission:  in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: … .  A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.
However, the decision of (sic) a particular submission may be an essential part of the judge’s reasoning to his final conclusion.  This may be so because it is necessarily so, ie, because he cannot come to his final conclusion without deciding it; or because the reasoning which in fact he follows makes it so.  In such a case, the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed.  Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them.  (I put aside cases involving, for example, constitutional or jurisdictional issues, where special considerations may apply.)  In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.
(Authorities omitted)
65.	Here, we are not persuaded that, even if his Honour was in a position on the evidence before him to do so, it was necessary for his Honour to make findings in relation to the allegations made.  We were not taken to any submission made to his Honour as to the need to determine the truth or otherwise of these allegations in order to reach a decision as to what parenting orders should be made.  Indeed we note that during oral submissions in this Court, counsel for the husband conceded that it was never put to Dr X that if the husband’s view of these incidents was established that that may change her opinion or recommendation.  
66.	It must also be remembered that the hearing before his Honour took place over 14 days, following which he published an extremely detailed judgment.  In the absence of it being established that his Honour’s expressed inability to determine the truth of the allegations in the paragraphs identified was affected by an error of principle, a mistake, or a misapprehension of relevant facts, it seems clear to us that his Honour was not satisfied that there was anything about the manner in which the parties gave their evidence in relation to these matters, which persuaded him that he ought prefer one party’s evidence over the other.  It can be seen that these are examples of the application by 
his Honour of “that unique advantage which the primary judge alone possessed … of seeing the parties …”.  (Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 517).
67.	In the circumstances there is also no merit in this ground of appeal.
Ground 3
68.	This is plainly a ground which depends on the success of one or other of Grounds 1 or 2.  Thus, having found no merit in either of these grounds, this ground falls away.
Conclusion
69.	Given that there is no merit in any of the grounds of appeal, appeal number EA 118 of 2012 must be dismissed.  On that basis, as conceded by the husband’s counsel, the balance of appeal number EA 10 of 2013 must also be dismissed.
Costs
70.	At the conclusion of the hearing we sought submissions from the husband, the wife, the interveners and the ICL as to costs depending on the result of the appeal.
71.	In the event of appeal number EA 118 of 2012 being dismissed:
a)	the wife sought that there be an order for costs against the husband;
b)	the interveners sought an order for costs against the husband in relation to that part of the appeal against the orders for property settlement with such costs being calculated on an indemnity basis; and
c)	the ICL sought an order for costs against the husband in relation to that part of the appeal against the parenting orders.
72.	The husband has been wholly unsuccessful in the appeal and thus it is appropriate for orders for costs to be made.  We note that there was no factor arising from s 117(2A) of the Act relied on by the husband as being a basis for no order for costs being made.
73.	It is necessary though to separately consider the application by the interveners that their costs be calculated on an indemnity basis.  Although we have some sympathy for the interveners in this regard, we are not in a position to order indemnity costs because r 22.53(3) of the Family Law Rules 2004 (Cth) has not been complied with.  Thus, the application in that regard will be dismissed, and the costs of the interveners, unless agreed, will be assessed on a party/party basis.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Ryan JJ) delivered on 5 May 2015.

Associate:  

Date:  5 May 2015