Amari & Qureshi
[2017] FamCAFC 122
•11 July 2017
FAMILY COURT OF AUSTRALIA
| AMARI & QURESHI | [2017] FamCAFC 122 |
| FAMILY LAW – APPEAL – Final parenting orders – Where the appellant claims a denial of procedural fairness when not provided with an interpreter – Whether the primary judge made errors of fact – Whether the primary judge erred in not making certain findings – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the further evidence is irrelevant or contentious – Application in an appeal partly granted. FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Where costs are sought by the Independent Children’s Lawyer – Application for costs dismissed. |
| Evidence Act 1995 (Cth) s 30 Family Law Act 1975 (Cth) ss 60CC, 65DAA, 68LA(2)(b), 68LA(5), 93A(2), 117 Family Law Rules 2004 (Cth) rr 15.59, 22.45(2)(a)(i) |
| Blanding & Blanding (2016) 55 Fam LR 218 |
| APPELLANT: | Mr Amari |
| RESPONDENT: | Ms Qureshi |
| INDEPENDENT CHILDREN’S LAWYER: | Andrea Evans |
| FILE NUMBER: | CAC | 636 | of | 2012 |
| APPEAL NUMBER: | EA | 90 | of | 2015 |
| DATE DELIVERED: | 11 July 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | May, Ryan & Gill JJ |
| HEARING DATE: | 21 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 May 2015 |
| LOWER COURT MNC: | [2015] FCCA 1293 |
REPRESENTATION
| THE APPELLANT: | In Person |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Evans |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Evans Family Lawyers |
Orders
The father have leave to adduce the Notice of Child Abuse filed on 21 May 2014 as further evidence in the appeal.
Other than as provided for in Order 1, the father’s Application in an Appeal filed on 7 November 2016 be dismissed.
The appeal be dismissed.
The Application in an Appeal by the ICL that the father pay the costs of the appeal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Amari & Qureshi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 90 of 2015
File Number: CAC 636 of 2012
| Mr Amari |
Appellant
And
| Ms Qureshi |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed on 22 June 2015 Mr Amari (“the father”) appeals against various parenting orders made by Judge Brewster. Ms Qureshi (“the mother”) resists the appeal.
The parties have one child, a daughter N (“the child”) who was born in 2009. The child was 11 months old when the parties separated in July 2010, following which she lived with the mother and spent time with the father. At the time of hearing the child spent time with the father from Friday morning until Sunday afternoon each week.
At the commencement of the hearing we gave the father permission to rely on an Amended Notice of Appeal which is attached to his affidavit filed on 19 October 2016. The effect of this ruling was to allow the father’s application in an appeal filed on 19 October 2016.
In essence, the appeal concerned the decision of the primary judge that the child should live with the mother and spend reduced time with the father. Other issues included where the child should attend school and various other orders sought by the parties.
The parties share Middle Eastern ancestry and Islamic faith, as does the child. They both speak Arabic. However, they were unable to agree on which school the child would attend. At the date of hearing the child attended a secular school close to where she lived with the mother. The father was keen for the child to attend a faith based school which was a bus trip and some distance from where the child lived. An unidentified friend of his promised to pay her school fees, as did the father but he did not have paid employment. Having weighed the advantages to the child of attending the school nominated by the father, the primary judge decided that the mother could, but is not obliged, to maintain the child’s enrolment at her current school. This decision is under challenge in the appeal.
The primary judge was satisfied that the child was happy and content in her mother’s care and her needs were adequately addressed [55]. The various risks alleged by the father against the mother were found not unacceptable ([15], [18], [28], [55]) and were insufficient to contemplate changing the child’s long standing living arrangement with the mother. Although his Honour found some of the father’s concerns were reasonable, the father was found to be “somewhat obsessive and had become obsessed with supposed dangers to [the child]” [48]. The primary judge found that “even if there were no status quo” the mother was the preferred primary carer [55].
Orders were made that the parties have equal shared parental responsibility for the child, the child live with the mother and have time with the father every week during school term, half of all school holidays and on Father’s Day and the child’s birthday. During school term, the child would be with the father each alternate weekend from after school Friday until the commencement of school Monday (or Tuesday if Monday is a public holiday) and from after school each alternate Thursday until the commencement of school Friday.
The primary judge concluded that “… the parties’ capacity to communicate is extremely poor” [60]. The combined effect of the father’s complaints to the police and welfare authorities, the magnitude of his criticisms of the mother and his obsessive personality made it unlikely, it was concluded, that the parties would ever establish a workable parental relationship [60]. The judge rejected orders for a shared care arrangement, for example, 9/5 days per fortnight, finding it was not reasonably practicable [61].
His Honour settled on the time arrangements ordered as, in effect, providing a balance between the arrangements which existed at the time of hearing and the risk the father might use his time with the child to make more complaints to authorities about the mother. It was concluded that the benefits to the child of these arrangements outweighed the risks [62].
The significant change in the times the father would spend with the child was a central issue in the appeal. It is the father’s case that if error is established, the child should live with him nine days and the mother five days each fortnight during school term. School holidays would be shared. It is immediately apparent that although the father raised concerns about the primary judge’s assessment of risks to the child in the mother’s care he himself did not and does not consider the risks to be sufficient to justify restrictions as to the time the child has with the mother, and certainly would not justify that it be supervised. To a considerable degree his stance resonates with what the primary judge, the expert and Independent Children’s Lawyer (“ICL”) regarded as his exaggerated and inconsistent response to injuries suffered by the child and statements attributed to her. The father also sought 13 injunctions addressed to a wide range of day to day parenting matters.
The ICL resists the appeal and seeks to uphold the orders.
Preliminary applications
By a second application in an appeal filed on 19 October 2016 the father sought to have the ICL “removed” and the appeal continued without her. The ICL opposed his application and it was appropriately withdrawn.
The father filed a second application in an appeal on 7 November 2016 to adduce further evidence in the appeal pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”), as contained in his affidavit filed the same day and in a contested appeal book. He claimed the further evidence would demonstrate that the orders under appeal were erroneous.
We agreed that the Notice of Child Abuse, Family Violence or Risk of Family Violence filed on 21 May 2014 should be admitted. The balance of the application will be dismissed. As we explained during the hearing, this further evidence was either available at the time of trial, was considered by the primary judge and could be considered without the application, was irrelevant (transcript of proceedings before Judge Neville on 13 December 2013) and/or contentious. In circumstances where the father had been represented by counsel in the court below he was bound by forensic decisions taken at first instance. The contentious evidence would undoubtedly necessitate a rehearing yet we were far from satisfied the result would be any different. In other words the introduction of the further evidence would have been inconsistent with the principles that emerge from CDJ v VAJ (1998) 197 CLR 172.
In her summary of argument filed on 9 November 2016, the ICL argued that because the father filed his summary of argument nine months out of time, he failed to prosecute the appeal in a diligent manner and thus, pursuant to r 22.45(2)(a)(i) of the Family Law Rules 2004 (Cth) (“the Rules”), the appeal should be dismissed. Rule 22.45 is concerned with dismissal of an appeal for non-compliance or delay.
The ICL did not file an application in an appeal in support of the application and hence required leave to make an oral application for dismissal. In circumstances where the appeal was ready to proceed, the issues were fully engaged and there was no adequate explanation for the failure to file an application in the usual way, the ICL withdrew her application.
The grounds of appeal
As the father correctly identified in his summary of argument, this is an appeal against his Honour’s exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A possible different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
By his Amended Notice of Appeal filed with our leave, the father presented four grounds of appeal to the orders. Broadly stated, he argued that the primary judge erred by:
·Failing to afford him procedural fairness (ground 1);
·Misapplying s 65DAA of the Act (ground 2);
·Making errors of fact including failing to make necessary findings (ground 3); and
·In exercising his discretion, particularly in relation to expert evidence, the assessment of risk and demonstrated apprehended bias (ground 4).
Was there a denial of procedural fairness?
The father raises three matters as indicative of his being denied a fair trial. The first concerns the lack of an interpreter, the second that the primary judge should not have been concerned with issues about the mother’s desire for an Islamic divorce and the third bias by the ICL.
As to the nature of a fair trial, in National Companies and Securities Commission Ltd v News Corporation Ltd (1984) 156 CLR 296 at 312; 52 ALR 417 at 427 Gibbs CJ explained that:
“The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.”
Ultimately, questions of procedural fairness turn on their own facts.
Turning to the lack of interpreter, this raises the fundamental principle of a person’s right to be heard when an order is to be made which will deprive a person of some right or interest. Such a person is entitled to know the case against him or her and is to be given the opportunity of replying to it (Kioa v West (1985) 159 CLR 550 at 582).
The father’s first language is Arabic and, as was apparent during the hearing before us, he is also competent in written and spoken English albeit he is more comfortable in Arabic. An interpreter was available to the father for the appeal but was not required. Although on occasion we and he needed to clarify a point, this was easily done. That said, we understand that some 15 months passed between the trial and appeal hearing and accept that during the intervening period the father’s command of the English language may well have been enhanced. We will therefore measure the procedural fairness question by reference to the trial transcript and pay no heed to the father’s English language skills demonstrated before us.
The father complained as to the process which resulted in him not having an interpreter and the effect of there being none.
Turning to the first interpreter issue, namely that an order was made in the father’s absence and without his knowledge and which ostensibly vacated an earlier order providing an interpreter would be made available.
Trial directions were made by Judge Hughes on 25 September 2014 which included a notation to the effect that an interpreter would be made available for the final hearing, unless the father notified the Court within 28 days that no interpreter was required. Notice was not given and thus the father proceeded on the basis that the court would arrange for an Arabic interpreter to be present at the hearing.
On 12 December 2014 her Honour made fresh trial directions, without notice and in chambers, discharging the earlier directions. The new directions did not include a notation as to an interpreter. However, on a proper reading of the fresh directions the order vacating the previous ones did not displace the arrangements for an interpreter. Whatever the reason for the lack of an interpreter, it was not the product of an order to discharge the earlier arrangement and it follows that it was not the product of an order made without notice to the father.
In these circumstances, it cannot be said that ex-parte orders were made to deprive the father of an interpreter, or that he was deprived of procedural fairness in respect of whether an interpreter would be made available.
However, it should be noted that the first the father knew that he would not have an interpreter was when he arrived for the trial. He was thus confronted with the circumstance that there was no interpreter when he expected there would be. This leads to the second issue which is the important question of whether the father’s evidence was, as he claims, thereby compromised by reason of the absence of an interpreter, sufficient to deny him a fair trial.
The availability of interpreters at trial in proceedings under the Act is governed by s 30 of the Evidence Act 1995 (Cth) (“Evidence Act”). The section says nothing about who might provide an interpreter or whether or not a trial will be fair if evidence is taken without an interpreter. However, if the conditions for entitlement to an interpreter have not been met, an argument that the resulting trial was procedurally unfair will be more difficult to establish.
Section 30 of the Evidence Act provides that:
A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.
(Emphasis added)
The effect of s 30 is that a witness is entitled to use an interpreter where the conditions contained in the provision are not met. It permits a court to allow a witness to use an interpreter for only part of his or her testimony. The conditions relate to sufficiency of understanding and adequacy of response. What is sufficient or adequate will vary depending on the nature and subject matter of the proceedings, the nature and complexity of the fact in issue and its place within the proceedings. If the conditions are not met, reference to the statute provides for the grant of permission to use an interpreter. However, the use of the word “unless” in the provision means that if the conditions are met then an interpreter is not permitted by reference to s 30. There may be other situations in which an interpreter is allowed to ensure a fair trial. The use of “may” rather than “must” contemplates occasions when no one avails themselves of this right.
Normally where a witness has a difficulty speaking English and requests the assistance of an interpreter this will be permitted (Cucu v District Court (NSW) (1994) 73 A Crim R 240 at 250 per Sheller JA).
In support of the proposition that he was wrongly denied the opportunity to give his evidence through an interpreter, the father points to exchanges during the trial which he says demonstrate the need. A sample of the exchanges on which he relied are outlined below, all referenced to the transcript of 12 May 2015.
At pp 153-154 the issue the subject of questioning was whether the father was critical of the mother engaging in study. The father and his counsel sought clarification of the question which was given. The transcript shows that the father ultimately demonstrated a sufficient understanding of the question to be able to provide a properly responsive answer.
At pp 146-148 the issue the subject of questioning related to the father placing the child under pressure. The father indicated uncertainty regarding the meaning of a “tendency to aggression”. This cross-examination was preliminary to the substance of the questioning which related to an assessment by the single expert that the father’s behaviour was likely to have placed pressure upon the child. The relevant part of the report was read to the father and the father was clear in his rejection of the proposition.
At p 144 the questioning concerned the child’s behaviour at handover and the father’s role in the process. The father gave an explanation as to why he conducted himself at handover in the manner he did, indicating both an understanding of the question and an ability to respond.
By way of illustration, these exchanges are set out below:
[Counsel for the mother]: So it’s [the child’s] fault; is that right?
[The father]: No, it’s not [the child’s] fault. It’s behaviour: [the child’s] behaviour.
[Counsel for the mother]: Okay. Do you see that you have any role, not only in relation to this specific occasion with [the court expert] but also when it’s time for [the child] to return to her mother, to assist [the child] and encourage her to go to her mother?
[The father]: Before I ask this question…
[Counsel for the mother]: No, no. You don’t get to ask questions, I’m afraid?
[The father]: Then ask me again, please.
[Counsel for the mother]: All right. Do you agree that you have a role, not only on this occasion with [the court expert] but also on other occasions when it’s time for [the child] to return to her mother, to assist in that process?
[The father]: Well, this is a good question. This is where I attend a psychologist in 2013 to seek from him an advice how to deal with [the child] on the exchange because [the child] extremely on the exchange doesn’t want to go to her mother, and sometimes it’s – it’s – it’s extreme.
[Counsel for the mother]: Yes. So you would agree that this type of thing has occurred not just at [the court expert’s] rooms but on numerous other occasions; is that what you’re saying?
[The father]: This is [the child’s] behaviour, her own behaviour.
[Counsel for the mother]: Yes. And can I suggest to you that rather than assisting in that process, as you did with [the court expert], you make no effort to encourage to encourage (sic) [the child] to go to her mother?
[The father]: Incorrect. Incorrect.
[Counsel for the mother]: And it’s for that reason that on many occasions [the mother] has to sit in her car outside the… Police Station..?
[The father]: Incorrect.
Earlier in the cross-examination, at p 128, the subject of questioning was the father’s finances at the time of marriage, and in particular a marriage contract that involved the payment of funds to the mother’s family. The exchanges are now set out:
[Counsel for the mother]: The truth is that according to the marriage contract you entered into you were supposed to pay the mother’s family 2000 [foreign currency]; is that right? Is that right?
[The father]: Well, what’s this in for?
[Counsel for the mother]: Is that right?
[The father]: I don’t understand your question.
[Counsel for the mother]: The marriage contract you entered into, you were supposed to pay the mother’s family 2000 [foreign currency]; is that right?
[The father]: Again, please? Again? Because of the marriage…
[Counsel for the mother]: Yes?
[The father]: contract…
[Counsel for the mother]: Yes?
[The father]: I have to pay who?
[Counsel for the mother]: [The mother’s] family…?
[The father]: Okay.
[Counsel for the mother]: 2000 [foreign currency]; is that correct?
[The father]: For what, the 2000?
[Counsel for the mother]: No. Is that correct? Is that consistent with your understanding?
[The father]: Well, put the 2000, for me, in the correct place, I can answer you. When you get married – when you write the contract in the court – like the one I done with [the mother]; okay? There is some conditions to put in the contract – inside the contract.
[Counsel for the mother]: And one of those was the 2000 [foreign currency]; is that right?
[The father]: I don’t remember. Maybe. Yes.
[Counsel for the mother]: All right. Pursuant to that you paid an amount of 1000 [foreign currency]; is that right?
[The father]: I don’t remember.
[Counsel for the mother]: And that’s – I suggest to you that’s the only money that you ever handed over to [the mother’s] family?
[The father]: No. This is not true and not correct. Yes. And…
(Transcript of 12 May 2015, p 128, lines 5 – 48)
The obvious initial lack of understanding by the father was resolved by reformulation of a multi part question into its constituent components. By line 25, the father understood the topic and was able to give a responsive answer, albeit limited by his lack of memory.
At p 131 of the same transcript the subject of questioning was the father’s use of money received by the mother in social security payments. While the father did not understand the word “withdraw”, amendment of the question to “use the card to take the money out” allowed him to respond that part of the money was paid to the mother’s mother and the balance spent on shopping.
We have considered each of the additional examples on which the father relied. In our view they demonstrate that upon clarification of the questions the father understood what was being asked and was able to make an adequate reply.
Further, we read the balance of the transcript of the father’s evidence and are satisfied that he demonstrated sufficient ability to understand what was put to him and had adequate capacity to answer without the aid of an interpreter. The meeting of these two conditions meant that the father was not entitled to give his evidence through an interpreter. We are fortified in this view by the fact that the father was able to attest to affidavits relied on at trial completed without the need for an interpreter. An example of this is his comprehensive affidavit affirmed on 7 February 2014.
Furthermore, it is notable that at trial neither the lack of an interpreter nor the need for one was raised by counsel for the father, by the father himself in the course of giving evidence, by the judge or the other parties.
The absence of an interpreter did not occasion unfairness to the father.
The second procedural fairness challenge relates to questions and discussion about the parties involvement in Islamic divorce procedures. It is common ground that in September 2013 the parties attended a mosque in Sydney where an agreement was reached as to divorce and the child’s care. The child’s time was to be shared equally between her parents. However some four weeks later the mother withdrew from the agreement, the effect of which relevantly was that the divorce did not then proceed.
A second agreement was reached which linked the child’s attendance at a faith based school and religious divorce.
At the time of trial an Islamic divorce had still not been granted and, in circumstances where the mother wished to divorce and claimed that the father’s refusal was an example of his controlling conduct, the father was questioned about his role in the divorce not proceeding. The primary judge found that the father’s evidence on the topic was disingenuous and unconvincing [67], but nothing turned on that finding. We will return to this issue when we discuss the school issue.
In this context, it is also said that the primary judge should have ruled as inadmissible questions which were designed to place the father under pressure to sign a document in court which might have (but might not have) resulted in an Islamic divorce. As was mentioned earlier, the meeting in Sydney resulted in an agreement as to the child’s living arrangements following separation. There was also agreement for a “conditional divorce”. It became apparent that the two were intertwined and when the mother withdrew from the parenting component of the agreement, the agreement as to the “conditional divorce” also came to an end. The parties and the ICL considered the circumstances under which the parties reached this early parenting agreement to be relevant as were the circumstances under which the mother withdrew from it. Sometime later the mother said that if the father gave her a religious divorce she would agree that the child attend a faith based school. The father sought to rely on this agreement as evidence that the mother herself believed attendance at the nominated school would be in the best interests of the child. Given these circumstances it is hardly surprising the questioning segued into the area of religious divorce. It is also not difficult to understand that in a case concerned with the ability of a child’s parents to communicate and cooperate in relation to the child’s care, contentious family issues around religion could be relevant.
Mere relevance however, is not a complete answer to the complaint raised by the father. On a fair reading of the transcript, there can be no doubt that the father was placed under pressure by counsel for the mother to sign a document which might at least theoretically have assisted the mother to obtain an Islamic divorce. His Honour tolerated that questioning for some little time. The father did not sign the proffered document and, although we consider it would have been preferable had the line of questioning been brought to an end sooner than it was, we fail to see how the fact of it resulted in an unfair process relevant to the orders under appeal.
Nothing to which we have been taken even hinted that the father’s conduct qua an Islamic divorce had any influence over the parenting orders. Otherwise it can be seen that the primary judge rejected the father’s contention that the second of the two agreements demonstrated that the mother thought that it would be beneficial for the child to attend a faith based school. The agreement was in fact given no weight. The issue having been given such prominence by each of the parties we accept his Honour was entitled, indeed probably obliged, to refer to it in the reasons.
The third and final procedural fairness issue concerns “bias” of the ICL. In essence it is said that the ICL favoured the mother and her questioning of witnesses lacked balance and demonstrated partisanship. True it is that impartiality of dealings with the parties is an important aspect of effective representation of a child by an ICL (s 68LA(5) of the Act), however it is not obvious to us how partisanship by an ICL in a trial where all parties are represented would sound in error by the primary judge. In any event, the father was able to establish that the ICL drew from the mother evidence of allegations of family violence she made in 2011. The questions invited the mother to adopt statements she had given to others, and, armed with this evidence, the father was questioned at some length by the ICL on the topic. Counsel for the father objected to the line of questioning and following his Honour’s observations that its relevance was not apparent it came to an end. The ICL then sought to tender documents the substance of which had not been put to the father. Objection to the tender was taken by counsel for the father and the primary judge ruled against their admission.
The ICL clearly considered the question of family violence to be relevant. Ultimately, the primary judge determined that given the time that had elapsed since the last occasion on which the mother alleged the father was violent to her he did not need to take account of this aspect of the case [15]. The point being no finding was made that the father had been violent towards the mother or that in his care there was a risk the child would be exposed to that type of conduct.
We see no reason to criticise the ICL for raising and seeking to explore issues of family violence. Doing so was entirely consistent with her obligation to “act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child” (s 68LA(2)(b)).
Error as alleged by ground 1 has not been established.
Section 65DAA of the Act
The essence of the challenges raised by ground 2 is that his Honour erred in the application of s 65DAA of the Act in that, having found the parties should have equal shared parental responsibility for the child he failed to:-
a) make an order for equal time; or
b) substantial and significant time.
Allied to this is the father’s assertion that the primary judge ought to have found the mother responsible for the lack of communication or poor communication that existed between the parties. The point being, had his Honour understood that the father was willing to communicate and the barrier for communication attributed to the mother, an order would have been made for the father to have five nights in each fortnight during school term (his alternate position) rather than the four nights in each fortnight ordered.
Section 65DAA contains a suite of factors that must be considered if there is, or will be, an order that a child’s parents are to have equal shared parental responsibility, as happened here. According to the father, the effect of the provision is that the primary judge was required to consider making an order that the child spend equal time with her parents unless it is contrary to the child’s best interests as a result of consideration of s 60CC of the Act, or was impracticable.
The father complains that his Honour failed to consider equal time. At [57] however, the primary judge turned his attention to s 65DAA (reference to s 60DAA is clearly a typographical error), and, as to equal time, said that “in this case there is no issue of equal time”. The statement is correct and refers to the fact that no one involved in the case sought an order that the child’s time be divided equally between the parents. Indeed, one of the few things upon which everyone was implicitly agreed was that an order of that type would not be in the best interests of the child. This issue was considered in SCVG & KLD (2014) 284 FLR 191, in which the Full Court said that factual and legal concessions may conclusively deal with factors that legislation requires be considered and, as a consequence of which, the judgment needs to address only the contentious factual and legal matters which remain outstanding.
At [80] the Full Court explained:
Thus where there is agreement that notwithstanding an order for equal shared parental responsibility has or will be made, an order for equal time would not be in the child’s best interests, in agreeing to allow the hearing to proceed in this manner the court has, in effect and substance, considered both s 61DA (which in any event the existence of the order for equal shared parental responsibility renders irrelevant) and s 65DAA(1). With those matters resolved early in the proceedings, notwithstanding the “legislative pathway” described in Goode, ss 61DA and 65DAA(1) need not be addressed again.
This is precisely what occurred in this case. It follows that the father’s challenge to his Honour’s approach to the question of equal time cannot succeed (see also Blanding & Blanding (2016) 55 Fam LR 218).
There can be no doubt that the primary judge went on to consider s 65DAA(2), substantial and significant time, and the importance of good communication between the parties for the orders as sought by the father (in the alternative) to be reasonably practicable. His Honour decided that the poor level of communication was an impediment to orders of that magnitude and ruled against it. It is not entirely clear whether in reaching that determination the primary judge nonetheless came to the view that a lesser form of substantial and significant time would be in the best interests of the child or decided that the question of time was in effect at large. As his Honour went on to make orders for substantial and significant time, nothing turns on this uncertainty. This point will be explained further below.
The phrase “substantial and significant time” is defined in s 65DAA(3) and qualified by s 65DAA(4) of the Act. The combined effect of these provisions is explained in Ulster & Viney (2016) 310 FLR 407 per Ainslie-Wallace and Ryan JJ at [88]:
“… the test as to whether orders make provision for substantial and significant time is in two parts. The first is mandatory and requires compliance with each element of s 65DAA(3). The second requires the exercise of discretion in accordance with s 65DAA(4). If the first question is answered in the negative, the orders cannot be for substantial and significant time. However, if that question is answered in the affirmative, it is necessary to consider whether in the factual context of the case the time is both substantial and significant. It follows that a finding pursuant to s 65DAA(4) in one case is likely to be irrelevant to the resolution of that issue in a different case.”
The focus of the father’s challenge was on the lack of time provided for him to spend time with the child on special occasions. In relation to this, it is noteworthy that at trial he did not ask for orders for religious days and the like. As to special occasions he identified the child’s birthday and Father’s Day as worthy of a specific order and orders were made to that effect. By order 8 the child will spend time with the father on Father’s Day and by order 15, on her birthday. The point being, he was obviously content that on his worst case scenario he and the child would have sufficient scope to share whatever other important days might arise. The father secured one night a fortnight fewer than his worst case scenario. It is clear that the child will not necessarily spend time with the father on each occasion of particular significance to the child or of special significance to him that might arise in the future. But the provision of “substantial and significant time” does not mandate each and every occasion, it speaks of involvement. In addition to the special days orders there is ample scope within the orders for the father and child to be involved with each other in other special occasions and events.
In this respect, the definitional elements of s 65DAA(3) were met.
Consideration of the second limb of the test is thus required; namely whether, the primary judge erred in the exercise of his discretion by, in the circumstances of this case, finding that the amount of time ordered is “substantial and significant”. This question is to be considered in the context of his Honour’s determination that the child’s best interests were served by being in the mother’s primary care and the parties’ poor level of communication. Also important contextually is that the father argues that five days a fortnight with him would satisfy the provision. In essence the challenge became an assertion that the primary judge was wrong to give him four rather than five nights a fortnight during school term and to not make provision for unspecified special occasions. As we said the father did not seek orders for special occasions over and above those ordered.
As to arrangements during school term, the primary judge explained his reasoning thus:
60. In my view a nine/five arrangement or any arrangement of that type would require a reasonable degree of communication and cooperation between the parties. They would need to communicate about school matters and other day to day matters that would arise more frequently than with the more limited contact time I have ordered. It is apparent that the parties’ capacity to communicate is extremely poor. They cannot communicate face to face and do so by text message. The father hopes that this might improve but I am not so optimistic. Given the litany of complaints that he has made to [the court expert] and given the complaints he made to the police and to welfare authorities he would be asking a great deal of the mother to put these to one side and endeavour to establish a workable relationship with him. Indeed from my assessment of the father’s personality I doubt this would be possible even if the mother attempted to do so.
61. Therefore I am not satisfied that a nine/five arrangement or a similar arrangement would be reasonably practicable.
Before us, the father sought to demonstrate that the mother was solely responsible for the parlous state of the parties’ communication. He did so by attempting to demonstrate why it was that he had reason to be concerned about her care of the child and to second guess and indeed, reject the mother’s explanation for various injuries suffered by the child. In so doing, he demonstrated as clearly as one could, the climate of the distrust that exists between the parents and that the primary judge was entirely correct in his assessment of it and the potential for this to impede the parties’ capacity to co-parent.
In fairness to the father, he experienced great difficulty getting a satisfactory explanation from the mother when the child, for example, appeared to have a black eye and a welt mark on her inner thigh. And there can be no doubt that, as the primary judge said, on that occasion he was justified in his concern about these matters and, when he was unable to obtain an explanation for the injury, in taking them to child protection agencies and the like. However, none of this enhances his argument that the primary judge erred in his consideration of the parties’ ability to communicate.
The primary judge clearly considered the quantitative, qualitative and practical realities for the child and her parents. We are completely satisfied that the orders in favour of the father provide for substantial and significant time.
Ground 2 is not made out.
Failure to make necessary findings
The essence of ground 3 is that the primary judge erred by failing to make findings of fact which would have demonstrated that the mother’s evidence was unreliable and the child would be better placed living primarily with him. Had his Honour delved into the substratum of facts in the manner which it is contended should have been done it is argued that he would have come to the view that:
·The mother was still in a relationship with Mr R and hence the child was at risk;
·She could not be relied upon to maintain the child’s relationship with the father; and
·The mother was not a good role model for the child.
Before we turn our attention to the large number of matters which the father argues the primary judge should have addressed, it needs to be firmly stated that the primary judge could hardly be found to have fallen into error by failing to make findings he was not asked to make. It is a common trial experience that contentious matters are tested through cross-examination and often, by the time the evidence is completed, it is apparent that some issues have become irrelevant and need not be considered further. On occasion, although an issue may remain of personal interest to the parties, the judge is not asked to resolve it. The point being, a forensic decision is taken to not trouble the judge with the need to resolve contentious factual matters merely for the sake of it and to have the judge decide only those matters that are relevant to the relief sought. This is the essence of skilled advocacy. It is the surest way to ensure cases are decided by reference to relevant considerations and not distracted by irrelevancies. This is what happened in this case.
It follows that a judge in the position of the primary judge is not obliged to make findings in relation to every matter of fact raised in the case.
As we said earlier the father was represented by counsel at the hearing. A review of the trial transcript shows that the evidence was well tested and by the time of closing addresses a number of significant concessions had been made and certain risks had been clarified. For example, the mother had been allocated government housing and she no longer shared accommodation with her mother and sister. Her former partner did not live in the same premises and their relationship had come to an end.
At its highest, the father’s case had become that there was “some risk” to the child of harm in the mother’s care. However, the magnitude of risks from whatever source (including the maternal grandmother, the mother’s sister, the mother’s extended family, the mother’s former partner and the mother herself) was not unacceptable. This included consideration of evidence called in his case which went unchallenged. Given the evidence at the close of the case the father’s final position reflected a sound assessment of the totality of the evidence. As we said earlier the asserted risks were sufficiently inconsequential that according to the father the child should have substantial and significant time with the mother. The father is bound by the way he ran his case and cannot now raise matters he abandoned at trial (Metwally v University of Wollongong (1985) 60 ALR 68).
The effect of these forensic decisions is that the father’s challenges as to matters of fact raised by ground 3 must almost entirely fall away.
For example, the primary judge mentioned the fact that the parties gave different evidence about their date of marriage. It would seem he overlooked that the marriage certificate was in evidence and that this disagreement could be resolved with absolute certainty. However interesting this is to the father, the fact in issue was irrelevant to the best interests of the child.
Much was made of the mother’s evidence that she and Mr R separated in April 2014, in light of the fact that in mid April 2014 Mr R signed an affidavit which indicated they were still in a relationship, and, under her instructions, her solicitor penned a letter which stated that separation occurred in May 2014. Again the issue is irrelevant as there was simply no credible basis upon which the primary judge could have found that as at the date of hearing the mother remained in a relationship with her former partner. In circumstances where the mother entered into an order which prevented her from bringing the child into contact with her former partner, we do not accept that his Honour erred by failing to delve more deeply into the precise circumstances of separation and to reflect on inconsequential inconsistencies in the evidence on the point.
For good reasons, considerable time was taken at trial exploring allegations by the father that the child had been abused in the mother’s care. This included consideration of photographs of the child which show her with scrapes and bruises to her legs, her torso, with sunburn and bruising to her eyes. The gravamen of closing submissions by counsel for the father was to the effect that the mother unreasonably “withheld explanations from the father” and hence his suspicions the child was maltreated could be understood. The primary judge agreed but said the father had taken the matters too far.
According to counsel for the father, of all the injuries and marks explored the only unexplained injury at the close of evidence was to the child’s right eye. It was said that the net effect of the evidence as to the child’s injuries was that “there is some risk identified”. However, and of the upmost importance as to whether or not these findings were material, it was not and is not the father’s case that the risk to the child was sufficient to justify a restriction on the child’s time with the mother.
Furthermore, the expert explored the injuries and risk of injury at some length with the parties and, importantly, with the child. The expert reported that the child “did not disclose any concerns in relation to her mother at interview and observation of contact suggests that [the child] is appropriately comfortable with and attached to her mother”. Having examined photographs produced by the father, a considerable array of medical, police and records produced by the Office of Children and Youth and Family Support, the expert accepted that the injuries evidenced normal childhood scrapes. The expert also commented that on observation there was no evidence that the child was afraid of the mother or her maternal grandmother. The child said she was not frightened of her aunt or other members of her family. Indeed, the report evidenced a careful examination of the risks of physical and sexual harm raised by the father. His Honour was entitled to accept her opinion on these matters, which he did. We make this observation cognisant of the fact that the father challenges the expert’s evidence in the manner we will shortly discuss.
It can be seen at [46]-[47] that the primary judge gave particular attention to the eye injury and the expert’s opinion, and in so doing made it clear he well understood the breadth and detail of the father’s concerns about the child’s alleged mistreatment in the mother’s care. Having acknowledged that the father was entitled to be concerned about aspects of the child’s presentation, the primary judge came to the view that the father “was somewhat obsessive and had become obsessed with supposed dangers to [the child]”.
To the extent there remained “some” risk to the child the risks were addressed through a series of injunctions, namely orders:
13. That the mother is restrained from bringing the child into contact with [R] or allowing any other person to do so.
14. That the mother is restrained from leaving the child in the sole care of her sister …. or from allowing any other person to do so.
…
17. That the mother is to notify the father of any medical practitioner involved with the child and to authorise such person to furnish any information to the father that he may request. This order does not purport to direct such persons to provide any information.
…
19. That each party is to promptly notify the other of any significant medical issue involving the child whilst she is in his or her care.
We are satisfied that the primary judge properly engaged with the issues that remained outstanding at the conclusion of the trial and that his findings were well open on the evidence.
This ground does not succeed.
Discretion and bias
By ground 4 the father seeks to revisit many of the challenges he made concerning fact finding or particularly the failure to make findings. The suggestion seems to be that his Honour failed to make findings because he was biased against the father. There was no suggestion of apprehended bias raised at the hearing. We need not restate our deliberations made about when and whether findings are required. Simply put nothing about the judge’s conduct of the hearing nor his Honour’s reasons would create an apprehension of bias in the fictional bystander.
Regrettably, it is necessary to again point out that by the close of evidence the nature and magnitude of risk asserted against the mother was relatively inconsequential and able to be addressed by the making of injunctions set out earlier. In our view, the father’s ongoing pursuit of plainly unnecessary findings does him little credit.
The father mounted a significant challenge to the reliability of the expert evidence and his Honour’s acceptance of it. It should however, be noted at this juncture that the orders facilitate the child spending more time with the father than the expert recommended. The point being that the primary judge did not adopt the expert’s recommendations in their entirety and there can be no doubt that the orders reflect his Honour’s assessment of the totality of the evidence. Furthermore, far from attempting to diminish the significance of the expert evidence, it can be seen that in closing addresses counsel for the father relied on the experts’ evidence in a number of respects. Indeed the criticisms now made by the father are in many respects at odds with the manner in which his case was conducted below.
Before us the father argued that the expert either did not receive or did not have regard to the materials relied on in the proceedings. His criticism is predicated on unidentified statements on the first page of the expert’s report and at paragraph 166. There is nothing on the opening page of the report which lends support to the complaint. Unfortunately it is necessary to observe that his reliance on paragraph 166 is an example of him misstating the evidence.
At paragraph 166 the expert was discussing the large volume of material provided to her in relation to the mother’s sister. The mother’s sister suffers from paranoid schizophrenia and, as was mentioned earlier, the father says she poses a risk of harm to the child.
The expert wrote “I will not review all of this documentation here separately as much of the message is the same regardless of the document reviewed”. This did not support the father’s proposition that “[The expert] didn’t inspect all the materials in front of her in accordance to the Family Law Rule (sic) 2004 (Cth) r 15.59”.
As to the other matters raised against the expert, the expert was entitled to receive and take into account the social worker’s report concerning the mother’s sister and did not need to discuss absolutely everything placed before her. Again, relevance will inevitably operate as a filter. If, perchance, relevant matters are overlooked by an expert this can be explored during cross-examination and submissions made about the efficacy of an opinion based on incomplete information. No such submissions were made.
It is clear the primary judge regarded the expert’s investigation as thorough and reliable. On a fair reading of the report there can be no doubt that the expert well understood the nature and status of the investigations instigated by the father and actually undertaken. She was well aware of the nature of complaints he made about the child in the mother’s care. Although it would have been open to her to question the mother more vigorously about her relationship with her former partner, she was not obliged to do so. The point being, by the time the interviews took place the mother was clear that she and her former partner had separated. True it is that at trial the father challenged the experts’ evidence that he said he had made hundreds of notifications about the child but she was clear in her evidence that he had. The fact that he had in fact initiated 13 child risk style notifications does not make her evidence about what he said to her unreliable.
We accept that the mother agreed at trial that she gave false evidence in an ex-parte domestic violence application on 24 February 2015, namely when she said the father threatened to kill her on the nominated date. We also accept the father’s contention that the primary judge failed to refer to this admission in his reasons. However, at [43] of the trial reasons reference was made to the applications for family violence orders sought by both parties which his Honour said did not augur well for any form of shared parenting regime. No doubt had his Honour turned his attention to the mother’s false evidence he would have reached the same conclusion. In reality though, the bigger question is whether this oversight by the judge (if that is what it is) is material. In our view the father failed to establish that it is. As we see it, a fair reading of the reasons for judgment shows that this case did not turn on whether the father or mother’s evidence was more reliable. Rather the focus was on matters such as the fact that the child had been in the mother’s primary care since separation, the mother was settled in her own accommodation, the expert’s assessment of the parties parenting capacity, the effect on the child if she was removed from the mother and ultimately concessions made in relation to the assessment of risk. We do not accept that the failure to refer to one part of the evidence is sufficient to undermine the ultimate exercise of his Honour’s discretion. This ground does not succeed.
Other matters
The father sought an order that the child attend a faith based school. It is his contention that the primary judge erred in not making the order. The challenge was not directly referable to any of the grounds of appeal, however we understood the contention to be that decision not to make the order was plainly wrong.
Whether or not the child would attend a faith based school has been a point of contention between the parties over a prolonged period. There were periods when it was agreed the child would attend such a school, however when it came time for the child to start preschool the mother enrolled the child in a local secular facility. In the lead up to the child commencing kindergarten the father made a proposal for the child to attend a particular Islamic school. That school did not in fact open. In any event the mother enrolled the child at the local state school.
The primary judge accepted that it was in the best interests of the child to be as “fluent as possible in written and spoken Arabic” and that this outcome would be best accomplished by professional teachers. However, the proposed school devoted one hour each week to Arabic language classes about which his Honour said “I cannot make a finding as to the efficacy of tuition for one hour a week”. He was satisfied that the parents were well placed to bring the child up in their shared Islamic faith and both could guide her in written and spoken Arabic.
Against this background, the primary judge decided:
· The child’s current school was close to where she lived and would enable her to attend school with friends from her local community;
· She would need to change schools in order to give effect to the father’s proposal; and
· The father’s proposed school would necessitate a significant degree of travel.
In light of the above an order was made that the mother is at liberty to have the child attend her current school. This order was permissive and does not require the child to attend that, or any other school. There is no basis for us to conclude that his Honour’s decision as to schooling was plainly wrong.
Conclusion
The father has failed to establish error and the appeal will be dismissed.
In the event the appeal was dismissed, the ICL sought costs against the father. The issue of costs of an appeal is governed by s 117(1) of the Act which provides that each party to proceedings under the Act bear his or her own costs; unless the court is of the opinion that the circumstances justify the making of a costs order (s 117(2)). In determining what, if any order should be made under subsection (2) the court must have regard to the factors in s 117(2A).
In relation to the costs of an ICL, s 117(4)(b) must also be considered. By that provision the court must not make an order in favour of an ICL if the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a portion of those costs. The father is in strained financial circumstances and there is no doubt that an order for costs against him would occasion financial hardship.
The application of the ICL as to costs will therefore be dismissed.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 11 July 2017.
Associate:
Date: 11 July 2017
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