Aiken & Cassone
[2022] FedCFamC1A 220
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Aiken & Cassone [2022] FedCFamC1A 220
Appeal from: Cassone & Aiken [2022] FedCFamC2F 1238 Appeal number(s): NAA 222 of 2022 File number(s): MLC 9466 of 2019 Judgment of: AUSTIN, REES & KARI JJ Date of judgment: 21 December 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Unacceptable risk – Where the father appeals from final parenting orders – Where the appeal is misconceived – Where not all orders are the subject of grounds of appeal – Where the appeal is confined only to the orders truncating the amount of time the children will spend time and communicate with the father and imposing the need for professional supervision – Whether the primary judge failed to take relevant considerations into account – Where the father makes bare complaints about the credibility of the mother’s evidence – Where the primary judge was not obliged to accept and act upon opinion evidence given by the Court Child Expert – Weight arguments – Where there was a satisfactory evidentiary foundation for the findings of the primary judge – Where the father’s disagreement with a finding does not render it mistaken – No error identified – Appeal dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the proposed evidence is rejected because it would be contentious and would not help establish appealable error – Application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 69ZW, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: Albert & Plowman [2020] FamCAFC 23
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Scott and Scott (1994) FLC 92-457; [1994] FamCA 12
U v U (2002) 211 CLR 238; [2002] HCA 368
Number of paragraphs: 64 Date of hearing: 8 December 2022 Place: Heard in Melbourne, delivered in Newcastle The Appellant: Litigant in person Counsel for the Respondent: Mr Strong Solicitor for the Respondent: Victoria Legal Aid Counsel for the Independent Children's Lawyer: Mr Foo Solicitor for the Independent Children's Lawyer: V M Family Lawyers ORDERS
NAA 222 of 2022
MLC 9466 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR AIKEN
Appellant
AND: MS CASSONE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN, REES & KARI JJ
DATE OF ORDER:
21 DECEMBER 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 1 December 2022 is dismissed.
2.The appeal is dismissed.
3.The Independent Children’s Lawyer’s application against the appellant for costs of and incidental to the appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aiken & Cassone has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, REES & KARI JJ:
This is an appeal by the father from a selection of orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 14 September 2022 in respect of the parties’ two children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The mother and the Independent Children’s Lawyer (“the ICL”) both resisted the appeal. For the reasons which follow, the appeal is dismissed.
Background
The parties met and commenced cohabitation in 2013.
Their children were born in 2015 and 2017 and are now aged seven and five years respectively.
There was a live dispute about when the parties’ finally separated but it was common ground that, regardless of the status of the relationship, both parties lived with the children until the mother vacated the former family home in August 2019. Almost immediately, the parties obtained family violence orders against one another in a State court and the mother initiated proceedings seeking relief under Pt VII of the Act.
In October 2019, interim parenting orders were made with the parties’ consent providing for the children to live with the mother, but to spend only supervised time with the father.
Since then, the children have never spent any time with the father without supervision. The supervised visits have occurred fortnightly, subject to interruptions caused by two changes of professional supervision agencies and other misadventure, though the children and the father have regularly communicated by telephone.
In December 2021, the State court made an indefinite family violence order against the father for the protection of the mother and the children. The father consented to the order being made in the midst of the hearing in which he was defending the application, though without him making any specific admission about his alleged misconduct to justify such an onerous order. The father withdrew his application for a reciprocal family violence order against the mother.
The trial of the parenting proceedings before the primary judge lasted four days spread over March and April 2022, with judgment delivered in September 2022.
In summary, the appealed orders provided for: the mother to have sole parental responsibility for the children (Order 1); the children to live with the mother (Order 2); the children to spend time with the father, but only under professional supervision and only on four occasions each year (Orders 3 and 4); the children to communicate voluntarily with the father by telephone (Order 5); the father being permitted to send written correspondence to the children on their birthdays and at Christmas (Order 6); and for the children to travel overseas without the father’s consent (Order 12).
The orders largely reflect those sought by the mother, but they enjoyed the broad support of the ICL and are generally consistent with the opinion evidence given by the Court Child Expert.
The father had sought orders for the parties to have equal shared parental responsibility for the children and, after gradually increasing the frequency and duration of their visits with him, for them to live with the parties for equal time. Even though the father proposed the children should live with the mother for not less than an equal amount of time, he persisted in contending before the primary judge that she posed a risk of harm to them by both abuse and neglect, lacking the sagacity to appreciate the inconsistency of his case. Ultimately, his concerns about the mother were rejected by the primary judge (at [278(d)] and [328]).
The judgment instead reflected findings that the father poses risks of harm to the mother and the children (at [278(e)], [293], [295], [302], [318], [321(f)], [322] and [328]). Based upon the evidence given by the single expert psychiatrist and the apparent lack of any benefit the father derived from his participation in a parenting course, the primary judge found it was unlikely his behaviour would change (at [305]–[309] and [332]).
Application in an Appeal
On 1 December 2022, the father filed an Application in an Appeal seeking leave to adduce further evidence in the appeal, listed for hearing on 8 December 2022. The father wanted the application immediately determined on the papers in chambers in advance of the appeal hearing, but it was instead listed for hearing in conjunction with the appeal, which is the usual course (r 13.39(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
The application to adduce further evidence was both late (r 13.39(1)) and deficient in that it did not identify the grounds of appeal to which the evidence relates (r 13.39(2)(b)). In any event, those irregularities can be overlooked as the application should be dismissed for substantive reasons.
The father wanted to adduce extra material he regrets he did not give as evidence-in-chief at the hearing before the primary judge. His explanation for not having led such evidence at first instance is that he was deterred from so doing by the advice given by his former lawyers. Although the father deposes his instructions were “ignored” and his hand was “forced” to proceed on that basis, such inherently improbable evidence is rejected (Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 561 and 586–589; Scott and Scott (1994) FLC 92-457 at 80,729–80,731). The affidavit upon which he relied at trial was sworn or affirmed by him on 18 March 2022 and filed later the same day. Most probably, in light of the advice proffered by his lawyers, the father voluntarily (even if reluctantly) relied at the trial upon a shorter affidavit, culling the more voluminous material he originally furnished to his lawyers.
The proposed evidence is rejected because it would be contentious, it would not help establish appealable error by the primary judge, and its reception now would tend to obliterate the distinction between original and appellate jurisdiction (CDJ v VAJ (1998) 197 CLR 172 [111], [114], [148], [149] and [186.9]). The father’s right of appeal is only the right to evaluation of whether the exercise of discretion miscarried, not an opportunity to try and make the case he wishes he had at the trial (Hsiao v Fazarri (2020) 270 CLR 588 at [53]).
The appeal
The father filed a Notice of Appeal on 11 October 2022, but purported to amend it on 23 November 2022. The Amended Notice of Appeal was not filed, but was served upon the mother and the ICL, and so the father is granted leave to move on the appeal in its amended form.
In so far as the appeal purports to challenge Orders 1, 2, 3, 4, 5, 6 and 12, it is ill conceived.
The order allocating the mother with sole parental responsibility for the children (Order 1) is not the subject of any ground of appeal.
The order providing for the children to live with the mother (Order 2) is not the subject of any ground of appeal, which is unsurprising when the father’s counsel opened his final submissions in this way:
[COUNSEL FOR THE FATHER]: Your Honour, this is a case that centres primarily on the quantum of time that is to be spent by my client with the children and under what circumstances and what, if any, restrictions should be put in place with regard to that time. …The father’s position is that time should immediately transition to being unsupervised and should gradually expand.
(Transcript 7 April 2022, p.463 line 46 to p.464 line 1; p.469 lines 19–20)
The order enabling the children to be taken outside Australia without the father’s consent (Order 12) is not the subject of any ground of appeal. In fact, it was not even the subject of any challenge at first-instance. The primary judge said in the reasons for judgment:
325.The remainder of the orders are appropriate in the circumstances … In relation to the issue of the passport, no evidence was led about that, although the mother would be entitled to obtain a passport for the children and travel with them in the exercise of sole parental responsibility. To the extent that a specific order is required to facilitate the obtaining of a passport, such an order is also appropriate.
(Footnotes omitted)
The appeal is therefore really confined to the orders truncating the amount of time the children will spend with the father and imposing the need for professional supervision (Orders 3 and 4), but also tangentially concerns the confinement of their communication (Orders 5 and 6).
The grounds attack the findings which underpin those particular orders, on the generic basis that some pieces of evidence which were more favourable to the father were not given sufficient weight (Grounds 1(a), 1(b), 1(d), 3(a) and 3(b)), the respective findings about the parties’ credit were made in error (Ground 1(c)), and the overall result was plainly unreasonable (Ground 2). It is also more specifically contended that the primary judge erred by making “open ended” orders about telephone contact (Order 3(c)) and by failing to make injunctive orders against the father (Order 3(d)).
The grounds were elaborated in varying degrees of detail in several iterations of the Summary of Argument, which the father prepared and filed arbitrarily.
Ground 1(c)
The primary judge said this in respect of the parties’ credit as witnesses:
30.Before turning to the evidence in detail, I note that over the course of a four day hearing, I had the opportunity to observe each of the parties and the manner in which they gave evidence and responded to questions in the course of cross-examination.
31.The mother was responsive in giving her evidence and made reasonable concessions when appropriate. I found her to be a witness of truth.
32.In giving his evidence before this court, particularly in responding to question put by counsel for the mother and by counsel for the ICL, the father was often argumentative and non-responsive. He did not make any concessions about his own conduct, and importantly, about the impact of his conduct towards the mother on the children.
33.Rather, the father appeared focussed on making sure that he said what he wanted to say about a particular issue, not necessarily answering the question that was asked. This repeatedly occurred, even though he was reminded on numerous occasions that he was required to answer the questions asked. He took every opportunity in the course of giving his evidence to repeat the concerns he had about the mother’s care of the children and the mother’s unreasonableness in refusing his ‘reasonable’ requests for how and where time might occur.
34.On balance, where there is a dispute between the evidence given by the mother and that given by the father, I prefer the mother’s evidence.
…
194.For reasons previously articulated, where there is a factual dispute between the parties, I prefer the mother’s evidence over that of the father. …
…
203.For reasons previously stated, where there is a dispute between the parties, I prefer the mother’s evidence to that given by the father. …
(Emphasis added)
This ground contends that, in making those generalised credit findings, the primary judge “had no reasonable regard to” these following considerations:
(i)numerous inconsistent statements within the evidence of the respondent mother.
(ii)evidence of the respondent mother that was glaringly improbable.
(iii)the unchallenged affidavit of the [father’s] brother… sworn 16 March 2022.
(iv)The evidence, (which was not challenged by the respondent mother) contained in the affidavit of the [father’s] mother… sworn 15 March 2022
(v)Available evidence that could decisively corroborate the assertions of the appellant father as to the respondent mother’s credibility.
(vi)The report of [the single expert psychiatrist] which raised the issue of the mother’s credibility, in the context of her apparently withholding of material evidence in her consultation with [the single expert psychiatrist].
(As per original)
It will be observed how the father does not assert such considerations were entirely ignored; only that the primary judge did not have “reasonable” regard to them. So construed, the complaint is not one of discretionary error by the failure to take relevant considerations into account, but rather one about the weight (or lack thereof) attributed to particular pieces of the evidence. Therein lies the first flaw of this complaint.
Findings are either open on the available evidence or not (Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307). Findings are not amenable to challenge by an assessment of the probative weight which ought have been attributed to various parts of the evidence, though factual findings based on the uncorroborated testimony of a credible witness may be impeached if glaringly improbable or irreconcilable with other incontrovertible evidence (Fox v Percy (2003) 214 CLR 118 at 127–129 and 138–147; Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]; Lee v Lee (2019) 266 CLR 129 at [55]).
The father’s attempt to couch this ground of appeal in terms of the mother’s evidence generally being glaringly improbable and inconsistent with other unchallenged pieces of evidence does not convert it from unsound to sound. Her evidence was not “glaringly improbable” merely because it differed from the evidence given by the father. Nor were the other pieces of evidence to which the father referred (including but not limited to the material produced to the Court pursuant to an order under s 69ZW of the Act and the contact supervision reports) properly capable of description as “incontrovertible” to necessarily impeach the mother’s evidence.
This ground is misconceived in so far as it purports to challenge a finding, as distinct from orders, by reason of the weight attributed by the primary judge to certain parts of the evidence. Such “weight” submissions are only pertinent to contentions of discretionary error infecting orders, characterising them as being “unreasonable or plainly unjust” or “plainly wrong” (House v The King (1936) 55 CLR 499 at 504–505; Norbis v Norbis (1986) 161 CLR 513 at 539–540; Bugmy v The Queen (2013) 249 CLR 571 at [24], [44], [51]–[52]). Any challenge of that type takes the form of an assertion that the judgment – as reflected in the orders made to resolve the cause – is manifestly unreasonable, unjust or wrong because insufficient weight must have been given to an important piece of evidence. But such grounds are rarely successful (Gronow v Gronow (1979) 144 CLR 513 at 518–520; Norbis v Norbis at 539–540).
In any event, the challenge within this ground lies only to the primary judge’s finding of preference for the mother’s evidence over that given by the father, which finding was surely open after her Honour observed the parties give their evidence. Trial judges have a palpable advantage by seeing witnesses tested in cross-examination (Robinson Helicopter Company Inc v McDermott at [54] and [56]; CDJ v VAJ at 204). There is no challenge to any particular factual finding made by the acceptance of and reliance upon the mother’s evidence and the rejection of the father’s evidence, in which event the bare complaint about their respective credibility is esoteric and immaterial.
Ground 1(a)
This ground contends that, in making orders to so drastically restrict the time the children may spend with the father, the primary judge “had no reasonable regard to” other findings made about the quality of the children’s relationships with him and the children’s desire to spend more time with him.
As this ground acknowledges, the primary judge found the children do have meaningful relationships with the father (at [3], [45], [156], [275], [292], [321(a)]) and that they did enjoy the time they spent with him (at [101], [109], [153], [156], [209], [262], [321(a)]).
However, her Honour was properly cognisant of the statutory imperative (s 60CC(2A)) to subordinate the objective of maintaining the quality of the children’s relationships with the father (s 60CC(2)(a)) to the need to ensure they are protected against the risk of harm he poses to them (s 60CC(2)(b)). To that end, the primary judge said this:
4.This dispute is fundamentally about risk: what risk the children face, if any, in the care of either parent and how any such risk can be mitigated. This case brings into sharp focus, therefore, the balance that needs to be struck by the court when making parenting orders between the benefit to a child of having a meaningful relationship with both parents, on the one hand, and the need to protect the child from harm on the other.
…
289.As stated at the outset, whilst the additional considerations are relevant and will be considered in due course, this case brings into sharp focus the balance to be struck between the two primary considerations set out in section 60CC(2). That section relevantly provides:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
290.Section 60CC(2A) further provides that in ‘applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b)’.
…
301.As stated, in balancing the two primary considerations, greater weight must be given to the need to protect the children from harm.
…
318.In addition, I repeat that I accept that the father loves his children and the children love their father. However, absent any evidence that the father can acknowledge the part he has played in the present situation, I find that there is an unacceptable risk posed by the father having regular and unsupervised time with the children and that this outweighs the need to facilitate a meaningful relationship between the children and their father. In coming to this view, I have also had regard to the children’s young age and their inability to shield themselves from the situation.
…
321.…
(d)the proposed orders will amount to a reduction in the amount of time that the children currently spend with their father, this is a factor which is of concern but has to be weighed against the risk factors identified and discussed above, which I have taken into account;
…
(Emphasis added)
Evidently, the primary judge gave due consideration to the two primary statutory factors and properly prioritised them, which her Honour was correctly implored to do by the father’s counsel in these terms:
[COUNSEL FOR THE FATHER]: … Now, it’s self-evident that the primary consideration is balancing the need for the – or the desirability of the children to have regular and meaningful time with, here, the father, against the legislative imperative that their safety be preserved…
(Transcript 7 April 2022, p.464 lines 3–6)
The complaint within this ground is baseless.
Ground 1(b)
This ground contends that, in making the orders which restrict the time the children will spend with the father, the primary judge “had no reasonable regard to” how the orders effectively reduce the time they spend with him by “six-fold”.
The complaint may be shortly dismissed by reference to the reasons for judgment.
The primary judge correctly recognised the children were spending time with the father under professional supervision once each fortnight pursuant to the interim orders made in October 2019 (at [19]). The proposal of each party represented significant departure from that status quo, as the mother advocated for significant contraction of the arrangement while the father advocated for substantial expansion.
The primary judge noted the Court Child Expert did not support the father’s proposal for equal time (at [261]-[262]), but nor did the Court Child Expert embrace the mother’s proposal for the children to only see the father so infrequently as four times each year (at [273]–[275]).
Her Honour said this to explain the result:
309.Until the father accepts some responsibility for his own conduct and for the impact that his behaviour has on those around him, the risk to the children remains.
310.It is for this reason that I find that the orders proposed by the mother and the ICL that the father spend time with the children once every three months supervised by a professional contact service strike the right balance between the two primary considerations. I accept the evidence given by [the Court Child Expert] that such limited time is not sufficient to develop and maintain a meaningful relationship, however, it will be sufficient time for the children to know their father.
321.…
(d)the proposed orders will amount to a reduction in the amount of time that the children currently spend with their father, this is a factor which is of concern but has to be weighed against the risk factors identified and discussed above, which I have taken into account;
(Emphasis added)
As the reasons for judgment show, the primary judge realised the time the children spend with the father would be reduced from once each fortnight to once each quarter, which means this ground is without foundation as her Honour had “reasonable regard” to the fact.
To the extent the father implied the primary judge was obliged to accept and act upon the opinion evidence given by the Court Child Expert, he was mistaken (U v U (2002) 211 CLR 238 at 261; Albert & Plowman [2020] FamCAFC 23 at [19]–[22]). The discretion to make orders in the children’s best interests rested with the primary judge, not the Court Child Expert.
Ground 1(d)
This ground contends that, in making the findings about the risk of harm posed by the father to the children, her Honour either “did not reasonably consider” or, alternatively, placed inappropriate weight on some aspects of the evidence.
It is unnecessary to repeat what has already been said under Ground 1(c) about challenges of this nature. Suffice to say, there was a satisfactory evidentiary foundation for the finding made about the risk of harm the father poses, which means this ground fails.
In summary, the ultimate finding of risk flowed easily from the anterior findings made about:
(a)the father’s commission of family violence against the mother (at [36]–[40], [214], [300] and [327]), despite his denials (at [46], [51], [215] and [298]), to which violence the children have been exposed (at [214], [224], [293]);
(b)the father being bound by an indefinite family violence order made for the protection of both the mother and the children (at [20] and [35]);
(c)the concern held by the child welfare agency about the father’s volatility (at [74], [84], [98] and [99]);
(d)the concern of the first professional supervision service about the father’s behaviour, which caused the termination its service (at [103], [118]–[119] and [131]);
(e)the concern of the second professional supervision service about the father’s “threatening or abusive” behaviour, which caused the termination of its service (at [104], [151] and [154]);
(f)the father being “argumentative” with staff of the third supervision service (at [157]);
(g)acceptance of the single expert psychiatrist’s opinion evidence (at [305] and [308]) that the father “wish[ed] to exercise control over situations” in a way which was liable to be “detrimental to the children’s wellbeing” (at [246]) and, given his lack of insight, no treatment options could be recommended for him (at [247] and [250]);
(h)the absence of any change in the father’s behaviour, despite completing a parenting course (at [305]–[307]);
(i)acceptance of the Court Child Expert’s opinion evidence that it would be difficult to ensure the children’s “emotional safety” other than by the presence of “an assertive and vigilant supervisor” (at [262]); and
(j)the father’s lack of insight into the effects of his behaviour on others (at [278(f)] and [302]).
Ground 3(a)
This ground contends the primary judge had “no reasonable regard” to the mother’s conduct, which conduct it is asserted should have been found to constitute “domestic violence”.
As stated earlier, the father’s allegations of the risk of harm posed by the mother to the children were rejected by the primary judge (at [278(d)] and [328]). Clearly, her Honour did have regard to the mother’s conduct, but did not find it to be potentially harmful in the way the father alleged.
Ground 3(b)
This ground contends the primary judge had “no reasonable regard” to the evidence of injuries sustained by the children in the mother’s care.
The father said the children’s injuries had a “disturbing impact” upon him but, evidently, the effect was not so disturbing as to convince him that the children should not live with her.
The primary judge expressly addressed the evidence adduced by the father about injuries sustained by the children (at [160]–[187]), but did not find any were caused by abuse or neglect. The ultimate finding was expressed thus:
278. ...
(c)I also find that during the relationship, and since separation, the children have from time to time suffered injuries and illnesses both whilst in the mother’s care and also whilst spending time with the father;
(d)having regard to the totality of the evidence, including the inquiries made by the [child welfare agency] in the course of their review of the various complaints made by the father, the father has not established that the children are at risk of physical harm in the care of the mother;
The evidence was taken into account. The father’s disagreement with the finding does not render it mistaken.
Ground 3(c)
This ground contends the primary judge erred by making “open ended” orders about telephone communication.
The relevant order provides:
5.The mother will inform the children that they are at liberty to telephone the father (or communicate with him by any other electronic means) at all reasonable times and the mother will assist the children to call the father if they request to do so by providing a telephone (or relevant technology) and a setting in which such communications can occur privately.
The primary judge reasoned that order in this way:
311.In terms of telephone time, the mother proposes orders which would allow the children to decide if and when they wish to call the father. She says that if they express a desire to do so she will facilitate that time. I accept her evidence that she will do so.
312.As stated earlier, it is a credit to the mother that notwithstanding the continued pressure she has been subjected to as a result of the numerous complaints made to authorities by the father, complaints which have resulted in her life being subjected to investigation and inquiry by numerous organisations, she has nonetheless supported a positive and meaningful relationship between the children and the father.
…
314.The ICL proposes that there be regular and specified times for telephone time between the children and the father. The ICL further proposes that that time occur once per fortnight and on each of the children’s birthdays and at Christmas.
315.The difficulty I have with this is that in the ordinary course, the purpose of telephone time is that it is a mechanism by which a child can communicate with a non-resident parent in between physical visits as a means of maintaining and supporting that relationship. In this case, I am satisfied on the totality of the evidence that telephone time has been problematic. It has provided an avenue for the father to continue to make disparaging remarks about the mother and to probe the children for information about where they live and who is living in the mother’s home etc. When asked about this, the father gave evidence that of course he is going to ask about the children’s lives and he is entitled to know who is living in their home, for example. I also accept that the father has used the telephone time to collect ‘evidence’ that he has then continued to use as a basis for further complaints against the mother.
316.On the basis of the evidence as it currently stands, I am not satisfied that the father would not continue to behave in this way if he were to have regular telephone time. I also am not satisfied that regular telephone time is appropriate for such young children when there is limited supervised time each year.
317.I therefore find that the mother’s proposal in relation to telephone time better strikes the right balance in the present circumstances between the two primary considerations in section 60CC(2) of the Act. I accept that [the Court Child Expert’s] view is that the children are still very young and ought not placed in a position where they have to determine the frequency of their telephone contact with the father. However, in the context of the limited supervised time ordered, the children will not feel pressured by the father to telephone them as they might if they were having more regular contact with him.
(Footnotes omitted)
No error is demonstrated in either the order or the reasons behind it.
Ground 3(d)
This ground contends the primary judge erred by “failing to consider making injunctive orders against the [father] during supervised contact”.
Neither party nor the ICL proposed that any injunctions should have been made to restrain the father’s conduct during supervised visits with the children, in which event the primary judge was not in error by omitting to make such an injunction.
Ground 2
This ground contends the decision to restrict the children’s time with the father to a total of only eight hours each year is “plainly unreasonable”.
The assertion is rejected. The reasons for judgment explain clearly how that result was reached and, absent the demonstration of frank error, the result is not so inexplicably incongruent with the evidence that some appealable error must necessarily be inferred.
Conclusion
The appeal fails for lack of merit.
The ICL sought her costs of the appeal, assessed in the sum of $3,871, against the father on the basis that the appeal was wholly unsuccessful. The application is dismissed because we accept, based on the appellant’s summary of his financial circumstances, that he would suffer financial hardship if liable for a proportion of the ICL’s costs (s 117(4)(b) of the Act).
The mother did not seek costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Rees & Kari. Associate:
Dated: 21 December 2022
0
15
0