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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FamCAFC 198
Decision Date: 6 November 2009

CaseChat Overview and Summary

Ansilda and Hartford (No 2) involved a family law appeal concerning a dispute over the custody and care of a child. The mother, Ansilda, had raised allegations of sexual abuse against the father, Hartford, which were central to the trial. On the last day of the trial, Ansilda's counsel sought to reopen the case based on her concession that the evidence did not support her allegations and her acknowledgment that the child had not been sexually abused. Despite this, the trial judge, Brown J, ordered that the child live with Hartford and spend time with Ansilda. The mother contested this decision, arguing that the trial judge should have made interim orders due to the child's young age and history of not spending overnight time with the father.

The legal issues before the court included whether the trial judge should have required further evidence regarding events that occurred between the trial and judgment and whether the trial judge erred in not seeking evidence of the present state of the parties' relationship before determining that the presumption of equal shared parental responsibility did not apply. The mother also argued that the trial judge should have considered evidence of her change of heart, which she claimed would have led to a different outcome. The court was required to decide whether these alleged errors warranted the appeal's success.

The court found that the trial judge's decision to order the child to live with Hartford and spend time with Ansilda was reasonably open and not against the evidence or against the weight of the evidence. The court held that the trial judge did not err in exercising her discretion without requiring further evidence regarding events between the trial and judgment. The court also concluded that the trial judge was not required to seek evidence of the present state of the parties' relationship before making her decision. The mother's change of heart was considered, but the court found it open to the trial judge to place little or no weight on this evidence. The court dismissed the appeal and ordered Ansilda to pay Hartford's costs of and incidental to the appeal as agreed, in default of agreement, as assessed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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: 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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