Ansilda and Hartford (No 2) - [2009] FamCAFC 198

FAMILY COURT OF AUSTRALIA

ANSILDA & HARTFORD (NO. 2)

[2009] FamCAFC 198

FAMILY LAW - APPEAL – FROM A DECISION OF A FAMILY COURT JUDGE – CHILDREN – Mother ran a trial based on sexual abuse/risk allegations – On the last day of trial the mother’s counsel sought to re-open on the basis that the mother conceded the evidence did not support unacceptable risk findings and the mother had ‘turned the page’ – Statements were read into evidence of the mother’s acknowledgment she had to “move forward” on the basis the child had not been sexually abused and that a changeover had successfully been carried out a few days previous – Trial Judge ordered that the child live with the father, spend time with the mother – Numerous findings were made as to the mother’s motivation in raising sexual abuse claims and need for caution in assessing the evidence of the mother – The mother argued that given the child’s young age and history of not spending overnight time with the father the trial Judge ought have made interim orders – Not satisfied that the trial Judge’s findings and course were not reasonably open – Mother asserted that the trial Judge made no positive finding that the evidence of the mother’s change of heart was false – No finding needed, open to trial Judge to place little or no weight on mother’s evidence of change – Trial Judge’s findings in relation to the likely attitudes of the mother’s other children, in light of mother’s voiced concerns, well open – Mother asserted that the trial Judge should have sought evidence of matters between end of trial and judgment (a period of four months) – Mother made no application to re-open the case before judgment was delivered – Mother submitted that had judgment been delivered immediately upon the end of trial, the orders would be “virtually unassailable” – Mere passage of time does not create appellable error – No merit in any ground of appeal – Appeal dismissed

FAMILY LAW - COSTS – Respondent sought costs on an indemnity basis – Not satisfied that the grounds were unarguable or that anything in the mother’s conduct at appeal or conduct of the trial ought justify indemnity costs – Costs as agreed or in default as assessed

Family Law Act 1975 (Cth) s 117(2A)

APPELLANT:

Ms ANSILDA

RESPONDENT:

Mr HARTFORD

APPEAL NUMBER:

2009

FILE NUMBER:

MLC

10686

2007

DATE DELIVERED:

6 November 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Finn, Warnick and Stevenson JJ

HEARING DATE:

12 October 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 January 2009

LOWER COURT MNC:

[2009] FamCA 23

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ackman QC

SOLICITOR FOR THE APPELLANT:

DKP Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Mawson SC

SOLICITOR FOR THE RESPONDENT:

Gillian Coote Family Law

Orders

That the appeal be dismissed.
That the mother pay the father’s costs of and incidental to the appeal as agreed, in default of agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Ansilda & Hartford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 9 of 2009
File Number: MLC 10686 of 2007

Ms ANSILDA

Appellant

And

Mr HARTFORD

Respondent

REASONS FOR JUDGMENT

Delivering reasons on 22 January 2009, for parenting orders made that day, Brown J said:
1.[Mr Hartford] (“the father”) and [Ms Ansilda] (“the mother) have a daughter, who was born in December, 2006. The mother alleged that the father is a sexual predator who started sexually abusing the child when she was a tiny baby and continued to do so while the litigation was on foot. She alleged he has acted in a physically (and possibly sexually) inappropriate way with one of her sons from a previous marriage and has been physically and verbally abusive to her. Until final submissions, it was her case that the child was at risk of further sexual abuse if allowed to spend any unsupervised time with her father. She sought an order that the child continue to live with her and she have sole parental responsibility for her.
2.As final submissions were about to commence, after a six day trial, counsel for the mother informed the court that she would be making a submission that the mother “needs to turn the page”. She said the mother “accepts she needs to move forward on the basis the child has not been sexually abused” and sought to reopen her case to call evidence about a changeover the previous day. …
3.In final submissions, it was put that the mother conceded that the evidence before the court was not sufficient to support a finding, at the requisite standard of proof, that the father poses an unacceptable risk to the child. She submitted the court should order the immediate introduction of unsupervised time with the child, on an overnight basis. …
4.It was the mother’s submission that orders for the father’s time with the child should be interim orders and the case should be brought back for review in twelve months. The mother would submit to any mental health treatment recommended by the independent children’s lawyer …
The six days of trial concluded on 8 September 2008 and, as seen, her Honour delivered judgment just over four months later. In her reasons, her Honour rejected the mother’s submissions. In essence, she ordered that the father have sole parental responsibility for the child, the child live with the father and spend time with the mother. The mother appeals these orders.
At trial, the independent child’s lawyer had submitted that the child should move to live with her father and he should have sole parental responsibility. The child’s lawyer does not participate in the appeal.
In oral submissions, differing in emphasis from his written summary, Mr Ackman QC for the mother, concentrates on a combination of circumstances:
·the submission for the mother at trial that she could “move forward”
·the time elapsed between trial and judgment
·the trial judge’s “failure” to seek further evidence relating to the period between trial and judgment
·a deposition by the mother (essentially seeking to demonstrate that she had “moved on”), which she sought to put before us as “fresh evidence”, and
·that the child was only two years of age, had always lived with her mother, and evidence showed the quality and significance of the child’s relationship with her siblings and extended family
Mr Ackman submits that these circumstances demonstrate that the order to change the child’s primary residence was wrong.
Highlighting the significance of those aspects, he submits, on more than one occasion, that had Brown J delivered judgment within a couple of weeks of the trial, her judgment would have been “virtually unassailable” and “unremarkable”. Nonetheless, he does not abandon any grounds, but in the circumstances, discussion of them may be brief.
The Amended Notice of Appeal contains six grounds.
To the very limited extent that grounds 1, 2, 3, and 5 are not subsumed into the primary argument, they will be set out and discussed together with discussion of the primary argument.
Ground 4 is:
The learned trial judge's finding that the Mother's conduct had exposed the Child to psychological harm was against the evidence and the weight of the evidence.
Ground 6 is:
In the alternative, [to the success of the challenges to the change of residence] the learned trial judge erred in the exercise of her discretion to the extent that Her Honour ordered that the Child spend only one overnight per week with the Mother. Her Honour should have ordered, inter alia, that the Child spend time with the Mother for not less than five overnights per week.
We will discuss the mother’s application to adduce fresh evidence when addressing the primary point and related grounds, which raise the questions about whether the trial judge ought have sought further evidence about circumstances between the completion of the hearing and delivery of judgment and, in any event, ought have made only interim orders.
Given the nature of the arguments on appeal, it is unnecessary to address at any length the findings of Brown J beyond those directly pertinent to each argument. Sufficient background can be gleaned from the following few extracts from her Honour’s reasons.
53.It is common ground that the parties met in about September 2005 and commenced a sexual relationship soon thereafter. They do not agree on the nature or extent of that relationship. I am satisfied they never lived together. …
12.The mother is 35. She has a son, [X], who is 15 or 16, from her first marriage. His father lives in Adelaide and he has little contact with him. The mother has two sons from her second marriage to [Mr Ansilda]; [Q] is 12 and [L] is eight. …
13.The father is 31 and lives in an apartment in [N]. He does seasonal work in the media and is otherwise involved in a property development and charity work. He has no other children.
Brown J made positive findings about the father and his circumstances, in support of her decision that the child live primarily with him. None of those findings are challenged in the appeal.

The primary argument (and grounds 1, 2, 3 and 5)

Those grounds are:

The learned trial judge erred in exercising her discretion to order a change of residence. Her Honour should have ordered that the Child live with the Mother on an interim basis for a period of a further 12 months.

The orders made were against the evidence and against the weight of the evidence. The learned trial judge failed to have regard, or sufficient regard to:

(a)The age of the Child;
(b)The quality and significance of the Child’s relationship with her siblings and extended family;
(c)The undisputed evidence that the Child had always lived with the Mother;
(d)The Mother's change of position on the final day of the trial.
(e)The period of nearly twenty weeks between the date of the Mother's final submission (8 September 2008) and delivery of judgment (22 January 2009)

The learned trial judge erred in all the circumstances in exercising her discretion to order a change of residence without requiring further evidence as to events which had taken place between 8 September 2008 and 22 January 2009 which were relevant to the Mother's asserted change of position.

The learned trial judge erred in not seeking evidence as to the present state of the parties' relationship before determining that the presumption of equal shared parental responsibility did not apply and/or was rebutted.

Each of the mother and father were represented at trial by counsel and solicitors. As indicated in paragraph 2 of Brown J’s reasons earlier quoted, just before final submissions commenced, the mother’s counsel sought to reopen the mother’s case “to call evidence about a changeover the previous day…”.
Of the mother’s attitude to changeovers for the child to spend time with the father, in her reasons for judgment, Brown J was to conclude in her reasons:
229.The mother’s evidence during the trial was that she was physically and psychologically incapable of undertaking changeovers; she simply could not hand the child over to be sexually abused by the father. Her evidence was that when the child is with the father she cannot sleep, eat or function properly. When the child is to go through a changeover, the mother’s palms are wet and her knees shake; she cannot be involved.
230.As the mother saw herself as unable to undertake changeovers, these were done by her friend Ms. [G], a number of other friends and, I am satisfied, on numerous occasions by [X]. The mother said [X] wanted to be involved and wanted to help, although she denied he was involved as often as asserted by the father. She agreed he did do changeovers on Sundays and on a few Wednesdays.
Brown J granted leave to the mother to reopen her case to give further evidence. Four statements were then read into the evidence. The mother was not cross-examined upon those statements. Brown J recorded the statements in her reasons as:
232.…The mother herself attended that changeover and handed the child to the father. Ms. [G] was present but the mother entered the police station unassisted. The child brought with her a present for the father (it was Fathers’ Day). The present was accepted graciously by the father.
Based on this further evidence, the mother sought (as seen, as interim orders) that the child live with her and have liberal, overnight time with the father, starting immediately.
As we have said, while in oral submissions Mr Ackman concentrated on the trial judge’s failure to seek evidence of circumstances between trial and judgment, he also asserted that, without any error in that regard, Brown J’s failure to make orders as sought by the mother was an error of discretion.
The essential proposition here is that, given the child’s age and the history of her never being with the father overnight, given the mother’s change of heart, even though Brown J was entitled to be sceptical of that, it should have been tested by an interim arrangement.
To succeed on such an argument, Mr Ackman must demonstrate that the course that Brown J took was not one reasonably open to her.
In his written submissions, Mr Ackman argued:
7.Her Honour specified two reasons for not making interim orders as sought by the Mother:
[249.] The interim orders sought by the mother would result in at least one further court hearing. While the evidence is of the mother overcoming the blocks to her involvement in changeovers, the court could not assume her three sons will so easily or swiftly accommodate a different view of the father and of the risk he poses to their sister. If, as the mother reported, [Mr. Ansilda] expresses the view that the father is "a fucking paedophile", all three boys are likely to hold fears for their sister in her father's care. If [the child] saw more of her father she would be able, as she grows, to measure the reality of her time with him against any contradictory reality espoused by her brothers or mother. But the odds are high that she would be living in a household whose members view the father as a dangerous and perverted man and that this would expose her to the risks of which [Dr. E and Mr. V] [expert witnesses referred to later in these reasons] spoke.
8.While it was open to her Honour to conclude that the Mother's other children would not so easily change their stated views of the Father it was not open to her Honour, it is respectfully submitted, to conclude on the evidence:
(a)that the children's views were unlikely to change without having tested the evidence of change in the Mother's attitude;
(b)that any particular period of time would be required before a change of views could take effect (having regard to the respective ages of the children at the time and the change in the Mother's attitude);
(c)that the Child would, during any transitional period, reach an age at which she was intellectually capable of comprehending adverse comments from her siblings with respect to the Father and thereby suffer emotional harm.
…
10.As to the undesirability of a further hearing, which was the only other reason expressed by her Honour for rejecting the Mother's proposal for interim orders, that can be of little weight in this case having regard inter alia to:
(a)The paramountcy principle;
(b)The age of the Child;
(c)The Father's application for a change of residence on a final basis;
(d)The Father's application to split the Child from her siblings on a final basis.
We disagree that Brown J’s reasons for rejecting the orders that the mother sought are as confined as Mr Ackman suggests. Before turning to her Honour’s reasons, we note that the mother’s evidence upon reopening, which went to her behaviour on a Sunday in between the hearing the week before – when she gave the evidence that she was “physically and psychologically incapable of undertaking changeovers” – and the last day of the trial on the following day, Monday, was evidence that of itself was very limited.
Following her recording (as earlier set out) of the submissions of the mother’s counsel about the mother’s need “to move forward on the basis the child has not been sexually abused” and the concession that the evidence could not support a finding that the father posed an unacceptable risk to the child, Brown J said:
5.Despite this apparent capitulation, counsel for the mother submitted that the father fell short as a credible witness and that the court could find he had acted in some of the ways alleged by the mother.
…
35.I must find that I have no confidence in the mother’s capacity for objective recollection. Dr. [E’s] [Dr [E], a consultant psychiatrist who assessed the mother and father and whose evidence the trial judge accepted] opinion was that the mother is a vengeful woman, intractably hostile to the father and consumed by her rage against him, and this assessment was borne out by her presentation in court. …
36.In this case, I must find it more probable than not that the mother was motivated not by a desire to protect her daughter from the harm alleged, but by a desire to punish the father, and that the child became the vehicle by which to inflict that punishment. I am satisfied she endeavoured to tailor her evidence to suit the case she wanted to make and did so deliberately, with the aim of persuading the court that the father is a violent sexual predator, who has abused the child since she was a baby and continued to do so when the court allowed him to have unsupervised time with her. To this end, she reconstructed events as if writing and editing a script; she deleted words and actions which did her no credit and contradicted the case she sought to make; she inserted fictional vignettes; she rewrote previously written accounts, on realising inconsistencies within them; she put words into the mouths of bit players.
…
41.… These lies reinforce the need for caution when assessing the evidence of the mother.
…
116.Dr. [E’s] evidence was that the mother’s assertions that she was simply concerned for the child, and felt sorry for the father, who she wanted to forgive, were not congruent with her presentation, which was one of utter conviction and intractable and obvious hostility to the father. He spoke of the rage and vengefulness the mother directed toward the father.
117.While inconsistent with her rhetoric, Dr. [E] noted the mother’s conviction that the father is an evil, manipulative and scurrilous individual. He described the mother as living in the world of her emotions and spoke of her capacity to invent a set of circumstances, and rearrange history. …
…
119.Dr. [E’s] evidence was that the mother represses anything too difficult to acknowledge, then rearranges events so they can be left behind as she moves on; he said “nothing is dealt with in a truthful way”. …
…
129.Although it was the mother’s final submission that the court could not find that there was an unacceptable risk of exposing the child to sexual abuse in her father’s care, she did not resile from her allegations of inappropriate and sexualised behaviour. Her counsel listed six allegations and it is convenient to deal with the evidence by reference to them, … .
In relation to these allegations, her Honour found that on one occasion the father’s behaviour was immature, and inappropriate, but not sexually abusive, but otherwise rejected the mother’s assertions.
In his written submissions, Mr Ackman argues that Brown J made no positive finding that the mother’s asserted change of position was false. There was no need for a finding of fact. The mother’s asserted change of position was not the mother’s evidence, but rather was a submission based on it.

In our view, the unchallenged findings just quoted mean that it was well open to Brown J to place very little or even no weight on the evidence of the mother given when her case was reopened and to reject the submission that the mother had “changed”.
In his written submissions, Mr Ackman also argues that the mother’s evidence of a change to her attitude was not put to the expert witnesses. This is not something that the mother sought to do, though she had the opportunity.
As to Mr Ackman’s submissions that Brown J reached wrong conclusions about the likelihood of change in the attitudes of the mother’s other children to the father, and about the other possible developments during a “transitional” period, her Honour concluded:
121.When Dr. [E] was told of the role [X] had played in the Magistrates’ Court proceedings, he expressed significant concern. He said it spoke of a lack of boundaries between the mother and her maternal responsibilities, and illustrated that nothing stands in the way of her emotions, which “sweep all before them”. In his opinion, the delegation of her own functioning to a child was developmentally inappropriate.
122.…He spoke of the mother’s recruitment of people to her side and her preparedness to sacrifice them; in his opinion, all her children are at risk of suffering in meeting her needs, and of “being lost in the tumult”.
…
206.… He [Dr E] said the children will continue to be involved in the mother’s issues and that there was every prospect that the mother would involve the child in these ways, as she gets older. The child will pick up signals from her brothers, as the three boys have taken on their mother’s perception that the father is the enemy, and it is “nigh on a certainty” that over time the child will be involved by her mother in the adult conflict, as have [X] and [L].
…
231.… This [[X] being involved in changeovers] is a telling illustration of her focus on herself and her disregard for the emotional well being of her son. It is particularly telling having regard to the statements read into evidence just prior to the commencement of final submissions, which related to a changeover on the previous weekend.
…
233.This change of heart, and of actions, was relied on by counsel for the mother as signifying a change in her attitude. There is no doubt that it would be to the child’s advantage to see her parents co-operating at changeovers, and to [X’s] advantage to be released from that adult role. Nevertheless, the scepticism expressed by counsel for the father is explicable. Suddenly, one might say miraculously, the physical and psychological symptoms which precluded the mother playing this role in the months prior to trial disappeared or were rendered manageable, on the cusp of final submissions. Until then, it suited the mother’s case to be so disabled; the symptoms she described emphasised her conviction of abuse and the harm which would be done to the child were she to continue to have unsupervised contact with the father. Faced with unpalatable evidence from the experts, the symptoms resolved. The symptoms were either invented or functional; Dr. [E] noted the existence of such non-organic complaints when describing hysteria
…
237.When it was put to Dr. [E] that the child would experience less trauma if removed from her mother at thirty months, [she was about 22 months at trial] Dr. [E] said it would depend on the context. In this case, there was a chance that it would be even more difficult, if the mother’s present state of mind continued in the intervening period.
In our view, Brown J’s findings in relation to the likely attitudes of the mother’s other children towards the father, and the likely course of behaviour if the child remained living primarily with the mother, were well open to her.
The orders that Brown J made about the time the mother was to spend with the child provided that, until the child commenced school, she spend each alternate weekend, Saturday morning until Sunday evening, alternate Thursdays, alternate Mondays overnight to Tuesday evening and special occasions with the mother.
When the child commenced school, she was to be with the mother from after school Friday to commencement of school Tuesday each alternate weekend, and after school Monday until beginning of school the next day, in the other week. School holidays were to be shared.
Mr Ackman submits that because Brown J ordered that when the child became of school age she spend five nights out of fourteen with the mother, that implied that her Honour thought that by that time it was likely that the mother’s attitude towards the father would have changed. We do not accept that that is necessarily so, but even if that be so, that does not mean that Brown J’s orders involving a change of primary residence were in error. As Brown J said:
210.Dr. [E] was asked about the potential for counselling or psychotherapy to assist the mother in acknowledging that the child needs to have a relationship with the father. … His evidence was that therapy can be a “mistaken enterprise”; he said “reality is sometimes a better and more helpful experience to effect change”.
211.That evidence was given in the context of cross-examination about the likely impact on the child were she to move to her father’s care. Dr. [E] spoke of a period of adjustment, that the child’s responses would be referrable to the level of attachment she has with both parents and that such a move could cause upset to her over a period of time. While acknowledging it would be a “difficult experience for everyone” he described that as the “smaller of the two problems”, the much bigger problem being the probability that the father will have no relationship with the child if she remains living where she is. Dr. [E’s] evidence was that a move to live in the father’s care may be a very effective way to modify the mother’s views. He said that in some ways, it could be helpful for her, as it would bring to bear a reality she has to face, and cannot avoid.
…
253.No expert supported a moratorium on the mother’s time with the child were such a move made and I am satisfied she should have regular and frequent time with the mother, from the time of the move. …
254.…the court could have no confidence the situation will change if the child remains living in her household. It is possible the reality (of which Dr. [E] spoke) of a move to the father’s primary care will lead, in time, to a change in the mother’s attitude and approach.
In short, even if the implication for which Mr Ackman contends should be accepted, the evidence supported a conclusion that the mother would only change if primary residence of the child with the father became the “reality”. In other words the implication supports, rather than undermines, the orders made.
Turning then to the primary argument of Mr Ackman, which introduces into the circumstances already discussed the proposition that Brown J should have sought evidence of matters between trial and judgment, particularly to see if the mother had measured up to the proposition that she would “move forward”. Here, the application that we receive “fresh” evidence looms large, so that, as Mr Ackman puts it, we know what could have been before Brown J, had her Honour sought it.
Much of the “fresh” evidence relates to contact between mother and father. During the period between trial and judgment, interim orders of 18 April 2008 operated. Under those orders the father spent time with the child for about half a day on Tuesday and Thursdays and for the day on Sundays.
In her affidavit of “fresh evidence”, the mother deposes that, since the end of the trial, she had “lived up to my counsel’s submission”. Apart from the submission that the court could not on the evidence find that the father posed an unacceptable risk to the child, the mother refers to the proposition that she “…would have to move forward in life on the basis that [the father] would have a substantial, meaningful and unsupervised relationship … with the child”. She then deposes to her contact with the father, that she had not gone to any counselling since the trial, that she had told her other children that they were all going to make a fresh start with respect to the father and that anything that had happened in the past had to be forgotten and that, between the end of the trial and late November 2008, her relationship with the father was cordial and they had met regularly.
She describes a specific incident when the child was hospitalised for about two days and the father and she had spent substantial time at the hospital in each other’s company.
However, she says that after an incident involving a press photograph of the father, mother and child, changeovers reverted to the Police Station. The mother also deposed that:
16.On 21 December 2008, we had a fight at a changeover at the … Police Station. The incident was isolated. Both of us have moved on from it.
This evidence, Mr Ackman says, is that which would have been placed before Brown J, had further evidence been sought. In this sense, it is not quite the “fresh” evidence that Mr Ackman suggests, as the opportunity was there for it to have been placed before the trial judge on a reopening, prior to delivery of judgment.
The failure to make that application is a factor that bears upon whether we receive that evidence.
Another factor is that Mr Mawson SC, counsel for the father, says that it is not conceded that the mother’s deposition is either accurate or complete. It follows that the evidence is contentious.
It seems to us that the evidence does not meet the criteria for admission of further evidence on appeal.
There is considerable strength in what Mr Mawson submits.
11.If there has been any moderation in the mother’s views or approach to parenting issues, it is submitted this would not support necessarily the return of the child to her primary care. Indeed, Dr [E’s] evidence indicated that the move of the child into the father’s primary care may indeed moderate the mother’s views by bringing to bear a reality that she has to face (see judgment paragraph 211). However, any such moderation in her views was taken into account by Her Honour and, because of all of the mother’s other underlying issues, should not be seen as a basis upon which the parenting orders should be reviewed. Indeed, if any such moderation of view has occurred, this may merely be evidence in support of a continuation of the orders made by Her Honour.
12.It is significant that the mother seeks to argue that she has achieved this change of heart without the assistance of any counselling. The need for the mother to engage the assistance of counselling was identified by Dr [E]. Dr [E] was of the opinion that such counselling would be ineffective unless the mother admitted that her allegations of sexual abuse by the father were wrong or misconceived.
The “fresh” evidence does not, taken at its highest, show that the orders under appeal are, or are even likely to be, erroneous. It is simply additional evidence that might have been placed with the other extensive evidence, bearing upon the question of what arrangements were in the child’s best interests.
Even if (contrary to our view) the criteria that apply to applications that the Full Court receive further evidence (arising after a judgment) on appeal may not apply with the same force to an application designed to show what evidence could have been put before a trial judge who has a reserved judgment, of events between trial and judgment, Mr Ackman does not contend that, as a matter of principle, Brown J was, or any other trial judge hearing a parenting case is, bound to seek further evidence from the parties because of the passage of time, of itself. However, he argues, in the circumstances of this case, in particular the mother’s evidence of her change of conduct on the weekend before the trial concluded, and the opportunity for the “testing” of that evidence presented by the effluxion of time, it was an error of Brown J not to seek further evidence before delivering judgment.
But, tellingly, Mr Ackman does not suggest any absence of opportunity for the mother to seek to reopen her case before the actual delivery of judgment. Moreover, given Mr Ackman’s comments that had judgment been given within a short time after the conclusion of the trial, it would have been virtually unassailable, it is immediately difficult to conceive why the mere passage of a further four months amounts to appealable error.
For these reasons, we reject Mr Ackman’s submission and we reject the application to adduce further or fresh evidence, so far as it relates to events prior to final orders.
The mother also deposes to events since the final orders. She says:
18.…Relations between [the father] and I have degenerated to some extent by reason of personal differences which do not appear to relate to the care, welfare and development of the child. Our differences have not impacted on either of our parenting styles or efforts, nor are they in any way related to the allegations of sexual abuse which I made at the trial against [the father].
Further, she deposes to the effect of the change of residence on the child and she suggests that the child had and has difficulty adjusting to the change of residence. As has been observed, such evidence is of behaviour hardly surprising, and was predicted by the experts who gave evidence before Brown J and whom were accepted by her Honour.
For reasons already given, we would also reject this evidence.
As earlier seen, ground 5 was effectively that the order granting sole parental responsibility to the father should not have been made without evidence relating to the period between trial and judgment.
As to the issue of parental responsibility, Brown J said, (as in part, already seen):
254.I have found that the mother's conduct has exposed the child to psychological harm, being emotionally abusive. In those circumstances, the presumption of equal shared parental responsibility does not apply. Were the presumption to apply I would have to find that it was rebutted, and that it would be contrary to the child's best interests. The mother has not been able to put the child's interests ahead of her own desire for vengeance; she has implicated her other children in the dispute and enlisted them in her cause, with scant regard for the destructive impact of that on them and the child; the court could have no confidence the situation will change if the child remains living in her household. It is possible the reality (of which Dr. [E] spoke) of a move to the father's primary care will lead, in time, to a change in the mother's attitude and approach.
255.It may be that, at some time in the future, the child's parents can co-operate and rationally discuss matters referrable to her health, education and other significant aspects of her development, and make decisions together. At the moment, that is not feasible and her best interests demand that the father be the person responsible for such decisions. Orders can provide for important issues to be discussed with the mother and this may lead to agreed outcomes. If the parties then cannot agree, the final decision will rest with the father. …
Mr Mawson submits:
22.Counsel for the mother conceded in submissions [at the trial] that “with the parties completely unable to talk, that a residence order necessarily comes with a parental responsibility order” (Appeal Book 918). It is entirely inconsistent for the mother now to seek to appeal the relevant order, given that concession.
We agree with that submission. In any event, the challenge to Brown J’s determination to make an order about parental responsibility without seeking further evidence fails for the same reasons as does the challenge to the rejection of the mother’s proposal for interim orders, without seeking further evidence.

Ground 4

The learned trial judge's finding that the Mother's conduct had exposed the Child to psychological harm was against the evidence and the weight of the evidence.

Ground 4 suggests a mistake of fact. As just seen, this finding of fact appears in paragraph 254 of her Honour’s reasons:
254.I have found that the mother’s conduct has exposed the child to psychological harm, being emotionally abusive. In those circumstances, the presumption of equal shared parental responsibility does not apply. …
Mr Ackman submits that the finding in the first sentence was inconsistent with a finding by her Honour in paragraph 205 of her Honour’s reasons, as follows:
205.… the child is in exactly the same position as [the child, [L]] but at the moment she is too little to know what is going on, so is not yet adversely affected. Until the mother abandons her campaign the court can have no confidence the child could grow up free of a belief she has been sexually abused. (emphasis added)
In the following paragraph, Brown J referred to Dr E as saying:
206.… He said the children will continue to be involved in the mother’s issues and that there was every prospect that the mother would involve the child in these ways, as she gets older. The child will pick up signals from her brothers, as the three boys have taken on their mother’s perception that the father is the enemy, and it is “nigh on a certainty” that over time the child will be involved by her mother in the adult conflict, as have [X] and [L].
We see no inconsistency. The finding in paragraph 254 was as to the nature of the mother’s conduct and, from it, the risk to the child of psychological harm. It was not a finding that she had been harmed.

Ground 6

In the alternative, the learned trial judge erred in the exercise of her discretion to the extent that Her Honour ordered that the Child spend only one overnight per week with the Mother. Her Honour should have ordered, inter alia, that the Child spend time with the Mother for not less than five overnights per week.

In his written submissions Mr Ackman simply repeated and relied on matters set out with respect to grounds 1, 2 and 3 in support of this ground. Mr Ackman made no oral submissions directed to the ground.
Therefore, in rejecting this ground, we think we need say little more than we have already. As seen, the child was only about twenty-two months old at trial. The orders that her Honour made, to operate until the child was of school age, provided for frequent time between mother and child, namely five days out of fourteen, with two overnights.
Nothing in the arguments presented persuades us that that order was made in error.

Conclusion

As we have found no merit in any of the arguments, the appeal will be dismissed.

Costs

Mr Mawson seeks costs of the appeal on an indemnity basis.
Mr Ackman submits that there should be no order as to costs; the mother is impecunious; though little is known of the father’s financial circumstances, they are better than those of the mother; the grounds of appeal were not unarguable.
We consider that the nature of the proceedings, namely an appeal and the result, failure, are the significant factors of those relevant under s 117(2A) of the Family Law Act 1975 (Cth) and the mother should pay the father’s costs of and incidental to the appeal.
Pursuant to directions, Mr Mawson has filed written submissions, which were to be addressed to the proposition that if ordered, costs should be on an indemnity basis.
To the extent that the submissions go to the question of costs on a party/party basis, we think we need say no more.
As to the issue of indemnity costs, put shortly, Mr Mawson argues that the appeal “arises entirely as a result of the manner in which the appellant has conducted her case”. That is “compounded further by the damning findings made by her Honour…”.
Mr Mawson also refers to a successful application by the father for security for costs. He relies on two affidavits filed in support of that application. As well, he quotes a comment made by the Full Court in its reasons for ordering security (“the appeal does not have strong prospects of success”) and submits that “The Appellant has continued to pursue this appeal despite the warnings inherent in this conclusion”.

We are not satisfied that the grounds of appeal were unarguable. We are not satisfied that anything in the mother’s conduct of the appeal justifies indemnity costs or that anything in the conduct of the trial ought influence the issue of the proper basis for an award of costs of the appeal.
Accordingly, we do not propose to order costs on an indemnity basis.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 6 November 2009