Attaway and Balloch (No 2)
[2019] FamCAFC 243
•10 December 2019
FAMILY COURT OF AUSTRALIA
| ATTAWAY & BALLOCH (NO. 2) | [2019] FamCAFC 243 |
| FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders – Where the mother withheld the child – Where the mother sought to argue matters that were not raised by the grounds of appeal or were in conflict with her case before the primary judge – The appellant is bound by the conduct of the case – Findings of fact – Assessment of risk – Discretionary decision – Appeal dismissed – Costs order made in favour of the father. |
| Family Law Act 1975 (Cth) ss 60CC(3)(d), 93A(2) and 117 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 |
| APPELLANT: | Ms Attaway |
| RESPONDENT: | Mr Balloch |
| FILE NUMBER: | NCC | 1081 | of | 2019 |
| APPEAL NUMBER: | EA | 94 | of | 2019 |
| DATE DELIVERED: | 10 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Austin JJ |
| HEARING DATE: | 10 December 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 2626 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page QC |
| SOLICITOR FOR THE APPELLANT: | Derham Houston Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Otrebski |
| SOLICITOR FOR THE RESPONDENT: | Mastronardi Legal Pty Ltd |
Orders
The appellant mother have leave to adduce further evidence in the appeal in accordance with her Application in an Appeal dated 2 December 2019.
The appeal be dismissed.
The appellant mother pay the respondent father’s costs of and incidental to the appeal in the amount of $13,400 within twenty-eight (28) days.
The solicitors for the appellant mother file and serve an affidavit, within seven (7) days in the Appeals Registry, to which is attached emails serving the Application to Adduce Further Evidence and supporting affidavit dated 2 December 2019, including the email of 3 December 2019.
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 Attaway & Balloch (No 2) 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)
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| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 94 of 2019
File Number: NCC 1081 of 2019
| Ms Attaway |
Appellant
And
| Mr Balloch |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ryan J
By Notice of Appeal filed on 26 September 2019, Ms Attaway (“the mother”) appeals against interim parenting orders made by a judge of the Federal Circuit Court on 17 September 2019. The orders under appeal relate to the parties’ youngest daughter, X, who was born in 2011. The child’s father, Mr Balloch (“the father”) seeks to uphold the orders.
The parties have three children, Y, Z and X. At the time of judgment, Y was 16 years of age, Z was a couple of weeks shy of her 14th birthday and X was nearly eight years of age. For the entirety of their relationship, the parties lived in Town A in central New South Wales. After the parties separated in January 2017, the children moved between them. In July 2017, the mother and Y moved to the B Region of New South Wales, some four and a half hours by car away from Town A. By agreement, Z and X remained with the father in Town A.
On 5 March 2019, the father and his partner (with whom he lived), Ms P, had a heated argument at home which upset Z and X. When the mother heard about it, she spoke with the children and with their agreement, she made arrangements with the father for her to take them to the B Region for a few days. Thereafter, the mother refused to return X and a dispute developed between the parties as to the younger children’s living arrangements. This was the catalyst for the current proceedings.
When the competing applications for interim orders (the mother) and a Recovery Order (the father) came before the primary judge on 23 May 2019, Y and X were in the care of the mother and Z was in the care of the father. At the hearing, it was common ground that in accordance with her views, Y would continue to live with the mother. Z wanted to continue to live with the father, which the parties also agreed should happen.
The interim orders provide for X to live with father (Order 3) and for her to spend time with the mother for half school holidays and on the third weekend of each month (Order 4). So as to coincide with the commencement of Term 4 2019, the mother was ordered to return X to the father by 6 October 2019 (Order 1). Orders were made to facilitate contact between X and the mother.
The mother’s case was that X was settled with her and that pending a final hearing, those arrangements should not be disturbed. However, based on evidence provided by a family consultant who interviewed X, the primary judge was satisfied that X felt “torn” [62] between her parents with whom she had “close and loving relationships” [52]. X did “not want to choose between them” [51]. It was also contended that there were “unanswered questions” [40] about the father’s mental health and evidence of family violence in the father’s relationship with his partner. The primary judge was satisfied that there was no unacceptable risk to the children of being exposed to family violence in the father’s household and that “both parties are probably capable of meeting the children’s needs” [66].
Against this background, the ratio of her Honour’s decision can be discerned from the following passages:
58.The father has, as I have previously indicated, had the two younger children in his consistent, full-time care since the mother moved to the NSW B Region in July 2017. That does not appear to be the subject of challenge by the mother. I note that the father makes a child support related complaint about the mother which will require further investigation.
…
78.Z is fond of X and they are closer in age. They enjoy each other’s company and have lived as a sibling unit in the father’s household since 2017. X had not lived with the mother and her partner in Town C until March this year. It represented a significant change in her life and despite the three months that had elapsed by the time of the Child Inclusive Conference she was still missing her friends and school in Town A.
79.If X returns to Town A she will also return to the pre March 2019 pattern of spending school holiday time and a few weekends mid‑term with the mother in Town C. This would enable X to maintain her relationship with Y and her mother.
…
84.The Court is very mindful of the fact that X has been living in the B Region for some six months and has now attended a local school for two or three terms. Unfortunately, that is the reality of the mother's decision to retain.
After the mother filed her Notice of Appeal, on 1 October 2019, she filed an application to stay the orders pending determination of the appeal. The application was dismissed and a further order was made which required the mother to return X to the father no later than 27 October 2019. The mother successfully appealed the refusal to grant a stay and a stay of the orders was then made. This appeal was expedited at the same time.
The Grounds of Appeal
At the outset, it is worth emphasising that these are interim orders made without the benefit of the evidence having been tested. Further, this is an appeal against a discretionary judgment, which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499 (“House”). It is well settled that an appellate court should be slow to overturn a discretionary decision on grounds involving conflicting assessment of matters of weight (Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) at 519).
The mother raised 10 grounds of appeal. Grounds 8 and 9 assert that the primary judge placed too much weight on the family consultant’s Memorandum. There is no reference to these grounds in the mother’s Summary of Argument or before us and they should be treated as having been abandoned. They would, in any event, fall foul of the principles that emerge from Gronow cited earlier.
Ground 10 is to similar effect, albeit the weight challenge is directed to X’s views as expressed to the family consultant. Not only is there no reference to this challenge in the mother’s Summary of Argument, or indeed in oral addresses, as is apparent from the submission extracted below, the ground is in direct conflict with the mother’s approach to this evidence before her Honour.
MR BATES: Thank you, your Honour. Your Honour, we will, obviously, turn to section 60CC and the criteria contained in that section. And if I can deal, very briefly, with the first of those criteria: the meaningful relationship that this child has with each parent. There’s no doubt there’s clearly a loving relationship with both parents and this is a rather tragic case where X’s torn between wanting to live with both parents and she wants to make both of them happy. And that’s borne out by [the family consultant’s] report – the last paragraph of her report.
(Transcript 28 June 2019, p.5 lines 11-17)
It is elementary that a party is bound by the conduct of his or her case. This means that the mother cannot invite the primary judge to evaluate evidence in a particular fashion and then complain on appeal that her Honour did precisely what she was asked to do (Metwally v University of Wollongong (1985) 60 ALR 68).
The remaining challenges can be conceptualised as asserting error by the primary judge in that she:
·Failed to consider the effect on the child of returning to live with the father and the prospect of then moving back to the mother after the final hearing;
·In finding that there was no unacceptable risk of harm by reason of the father’s mental health and family violence, made findings which were not open;
·Failed to have proper regard for the care arrangements which would prevail in the father’s household; and
·Made errors of fact concerning the parties’ attendance at mediation.
An application by the mother to adduce further evidence in the appeal must also be considered. In the event error is established, a Notice of Contention filed by the father requires consideration.
Changing the child’s circumstances – Grounds 1 and 2
These grounds focus on the application of s 60CC(3)(d) of the Family Law Act 1975 (Cth) (“the Act”) and [64] of her Honour’s reasons. Paragraph 64 needs to be considered in conjunction with [61]–[63] as it is in these earlier paragraphs that the primary judge rejects the mother’s contention that X is settled in her care.
At [62], based on X’s discussion with the family consultant, the primary judge determined that the child was torn between her parents and missed her friends in Town A. At [63], the primary judge was plainly concerned with the disruption to the sibling relationships which, given the conclusions at [78], is a reference to the effect on Z and X of their ongoing separation.
It is accepted that at [64], the primary judge focussed on the effect of changing or not changing X’s living arrangements and did not explicitly address the prospect that different orders might be made after a final hearing, the effect of which would be another change to the child’s living arrangements. However, there can be no doubt that the primary judge well understood that these orders were temporary and the question of X’s long‑term living arrangements would be addressed at another hearing, which was likely to be some six to 12 months away [68]. The use of the words “likely” and “some” reveal that precisely when the proceedings would come to trial was not known and indicates that the primary judge contemplated the possibility that more than 12 months might pass before a final outcome would be known. Today we have been informed that the trial, if it were to take two days or less, may well come on sooner than 12 months, but that does not change the landscape.
This issue was also dealt with during exchanges with counsel for the mother as follows:
MR BATES: …If your Honour were to remove her and return her to the father’s home at Town A, so she’s got to make the adjustment of settling back into Town A, then there’s a final hearing and if the mother happens to be successful, then there’s a further return, a further disruption to X’s schooling, in that she would be coming back to the B Region. So my submission is that that section has relevance in that sense.
HER HONOUR: That always works both ways, doesn’t it, Mr Bates?
MR BATES: Well, it can, your Honour, but my submission is that the mother might be likely to be successful in this case and when all the facts – when all the cards are on the table – and there might be further disruption to X.
(Transcript 28 June 2019, p.11 line 44 to p.12 line 8)
Her Honour’s view that the application of s 60CC(3)(d), in this case, worked both ways is apt, and I agree with the submission made by senior counsel for the mother today that this is so. It was not established that the prospects that the mother would be successful at a final hearing were greater than applied to the father. In these circumstances, it was open to the primary judge to focus on the effect of change on the child’s important sibling relationships and that she was missing her friends and school, and in effect, to treat the ultimate outcome as so uncertain it should not affect the application of the provision or the decision.
Grounds 1 and 2 have not been established.
Risk of harm – Ground 7
There are two aspects to Ground 7. The gravamen of the first is that the finding that the father did not pose an unacceptable risk to the child of exposure to family violence or emotional abuse by reason of mental ill health, was not open. Secondly, it is argued that the primary judge was impermissibly “drawn into the determination of issues which were in dispute” and failed to proceed “cautiously” (mother’s Notice of Appeal filed 26 September 2019, p.6).
Turning first to the evidence concerning family violence. The evidence adduced in the mother’s case concerning family violence centres on a conversation between the mother and Z on 5 March 2019. According to the mother, Z told her that she had cooked pancakes, following which Ms P yelled at her about the state of the kitchen. Ms P’s daughter joined in and when the father spoke up in support of Z, he and Ms P started yelling at each other. The children retreated to their bedrooms and the argument between the adults was continued outside, during which Ms P threw the father’s cigarettes off the veranda. It is the mother’s evidence that Z told her that Ms P had anger issues, that there was at least one heated argument between the father and Ms P every week and that she was sick of them fighting.
The family consultant explored this issue with the father and the children and correctly records that by and large, the mother’s understanding of the event of 5 March 2019 was correct.
In relation to the risk of exposure to family violence, the primary judge noted the evidence of the family consultant at [35]:
…‘According to the children and the father, the mother was the one who would yell at the father and the father would try to walk away from the mother, but she would follow him. One of the children said that she thought this behaviour was normal because as long as she can remember that is how they have always behaved.’
In determining that there was no unacceptable risk to the children of exposure to family violence in the father’s household, the primary judge took into account that:
·There was no evidence of family violence in the parties’ relationship;
·Z had returned to the father’s care and made no complaint to the family consultant of further arguments/family violence in the father’s household;
·Evidence from Ms P that she had not been violent nor had the father; and
·The father and Ms P no longer lived together.
Her Honour’s assessment that there was no unacceptable risk of exposure to family violence in the father’s household was undoubtedly available.
It is not accepted that in coming to this view, that the primary judge was impermissibly drawn into the resolution of contentious matters of fact, which given that the proceedings were undertaken without cross-examination, could not be resolved. On this point, I accept the cogent and focussed submissions made by counsel for the father to this effect (Salah & Salah (2016) FLC 93-713; Eaby and Speelman (2015) FLC 93-654). The contentious matters, in any event, are minor differences in the accounts of what occurred on 5 March 2019 and the extent of yelling between the father and Ms P. Although it is difficult to see how the resolution of these differences might be relevant, the primary judge did not determine those contentious matters. In my view, her Honour’s approach to the question about the risk of exposure to family violence was a proper application of the principles that emerge from these cases.
Turning to the father’s health issues, it was uncontroversial that he suffered chronic fibromyalgia for which he was prescribed Lyrica. Lyrica has multiple purposes in relation to which it was common ground that it was not prescribed for the father as an antipsychotic. Based on his fibromyalgia, the father presented a claim to his superannuation fund for total and permanent disablement which had not been finalised. In November 2018, the father was referred to a psychiatrist and a social worker; he did not act on the former and refused the latter [42]. Both parties acknowledged a history of cannabis use [88], albeit the mother stopped using some years ago. In early November 2018, the father told his doctor that he stopped using cannabis two weeks earlier. The father told the family consultant he stopped using cannabis 10 months earlier, that is, in August 2018 rather than October 2018.
The relevance of this evidence was said to be that:
[MR BATES]: …Your Honour may well have some concerns that, if the youngest child, X, is to live with him, she may well be – there may be some risk of her being exposed to behaviour by the father which certainly would not be in her best interests and she being a young child who would not be able to deal with that in any satisfactory way…
(Transcript 28 June 2019, p.10 lines 36-39)
The concerning behaviour was that the father may become stressed and emotionally abusive of the child. As to the latter, the feared emotional abuse was that the father might denigrate the mother and use the child as his personal counsellor. Again, it is uncontroversial that in the period immediately after the parties separated (some two and a half years ago), the father behaved like this with Y.
The primary judge was astute to these matters, albeit she did not notice the minor inconsistency in the dates as to the father’ cessation of cannabis. In deciding that the totality of evidence did not establish an unacceptable risk of this type to the child, the primary judge also took into account that the family consultant made no observations concerning the father’s presentation and the mother herself did not raise the father’s mental health with the family consultant as a matter of significance to her. Her Honour’s approach to this issue cannot be faulted.
Another reason why Ground 7 must fail is that at no stage was it suggested to her Honour that these risks posed an unacceptable risk to the child.
The child care arrangements in the father’s household – Grounds 4-6
By Ground 4, it is argued that “her [H]onour’s finding that the father was unemployed failed to take into account the father’s evidence that supported a finding that such was only a temporary situation” (mother’s Notice of Appeal filed 26 September 2019, p.6). This ground misstates the finding, which was that “the father is currently unemployed” [8] (emphasis added). The use of the word ‘currently’ is significant and demonstrates that the primary judge understood the father’s evidence that he had been recently made redundant and was actively pursuing employment, including at Town A Centre as a public servant.
By Ground 5, it is contended that the primary judge should have found that in the event the father gained employment at Town A Centre, Z would become X’s carer. As is correctly pointed out in the father’s Summary of Argument, the mother did not ask the primary judge to make the finding upon which Ground 5 is predicated. This is fatal to this challenge as the primary judge could not have fallen into error by failing to make a finding that she was not asked to make.
Similar difficulties arise in relation to Ground 6, which asserts that the primary judge “failed to have proper regard for the care arrangements for the child in the father’s household” (mother’s Notice of Appeal filed 26 September 2019, p.6). No doubt, this was because the mother herself was in paid employment and, the subject children had been in the primary care of the father for the best part of two years and, by all measures, they had been doing well enough.
These grounds have not been made out.
The parties attended mediation – Ground 3
Ground 3 correctly identifies that the finding that the parties attended mediation in November 2018 is erroneous. However, the footnote to this finding referenced the father’s affidavit filed on 12 April 2019 at paragraph 5. Paragraph 5 deposed that the parties attended mediation in November 2017. The submission for the father that the reference to 2018 is a typographical error and is irrelevant, should be accepted. Indeed, this ground suggests a lack of attention to the principles in House and it is a misguided attempt to have this Court engage in impermissible nit-picking.
Status quo
At paragraphs 51-56 of the mother’s Summary of Argument filed on 19 November 2019, argument was advanced in support of the proposition that the primary judge “made a presumption that the status quo that existed prior to 6 March 2019 was in the child’s best interests” (p.5, paragraph 52). There is no ground of appeal raised to this effect and it is too late for that proposition to be raised before us. Furthermore, the primary judge made no such finding and a fair reading of the reasons does not tolerate such an inference to be drawn.
The Application to adduce further evidence
The mother has failed to establish error and thus, her application to adduce further evidence in the appeal pursuant to s 93A(2) of the Act must be considered. The further evidence is, in essence, the evidence adduced in the application to stay the primary orders. It comprises affidavits by the mother and the father and correspondence passing between their solicitors concerning the father’s job applications and offer of employment at the Town A Centre. It is the mother’s evidence that she knows people who work at the Town A Centre and she understands that this involves shift work including, at night. This evidence seems to be uncontroversial, but ignores the terms of the job offer upon which the mother relies, which shows that as a casual employee, the father is able to nominate when he is available for work.
The purpose of the evidence adduced by way of further evidence is to provide the evidentiary foundation for setting aside the orders of the primary judge and ordering a new hearing of the mother’s application for interim parenting orders. In CDJ v VAJ (1998) 197 CLR 172 at 218, the plurality (McHugh, Gummow and Callinan JJ) said that in these circumstances, the Full Court must be satisfied of two things, namely:
149.The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.
The submission by counsel for the father that this further evidence was not likely to have produced a different result, should be accepted. There was no evidence that while the children had been in the father’s care, he failed to ensure they were adequately supervised. Rather, the evidence established that when the children lived with him, including when he worked full‑time, they had been doing well at school and were apparently adequately parented. Against this background, if the father made himself available to work shifts that from time to time made him unavailable, it could safely be inferred that he would make proper arrangements for the care of the children. The notion that they may have brief periods of time at home unsupervised, would not have troubled her Honour and would not have influenced the outcome.
Notwithstanding that the application is presented out of time, and the strong submissions made by counsel for the father against the receipt of this evidence, because the evidence relates to interim parenting orders I would admit the evidence for the purpose of considering whether there was evidence which was likely to have produced a different result and whether it would be in X’s best interests to require a remitted re‑hearing. I need not repeat my earlier remarks and I am strongly of the view that it would not be in the child’s best interests, nor that of her sisters and parents for them to be subjected to the delay, uncertainty and stress of another interim hearing.
Conclusion and costs
The effect of this is that in my view, the mother has failed to establish appealable error and the appeal should be dismissed. In these circumstances, the Notice of Contention is otiose.
Aldridge J
I agree with the reasons of Justice Ryan and the orders proposed by her Honour.
Austin J
I agree with the orders proposed and the reasons given by the presiding judge.
Ryan J
The father seeks that the mother pays his costs in the amount of $13,400. Quite properly the quantum is not disputed by the mother. An application for costs is governed by s 117 of the Act. Prima facie, each party to proceedings under the Act shall bear his or her own costs, unless the Court is of the opinion that there are circumstances which justify an order for costs. As is fairly conceded by senior counsel for the mother, her lack of success in the appeal would satisfy the question of whether there were justifying circumstances for an order for costs. It is not conceded that an order for costs in itself should be made, but in my view the mother’s lack of success amounts to justifying circumstances for an order, as well as the order sought.
The father has incurred legal expenses unnecessarily and unreasonably. Although the parties are of modest circumstances, the mother can be taken to have understood that if her appeal did not succeed, she was vulnerable to an adverse order for costs. She has had the benefit of advice from a solicitor, junior counsel and senior counsel, for some time. I infer that this was a risk she was prepared to take and, notwithstanding that it may occasion her some financial discomfort, it is appropriate that she pays the father’s costs in the amount sought. I would order that those costs be paid within 28 days.
Aldridge J
I agree.
Austin J
I agree with the costs order proposed and the reasons given by the presiding judge.
Ryan J
Therefore the orders of the Court will be :
(1)The appellant mother have leave to adduce further evidence in the appeal in accordance with her Application in an Appeal dated 2 December 2019.
(2)The appeal be dismissed.
(3)The appellant mother pay the respondent father’s costs of and incidental to the appeal in the amount of $13,400 within twenty‑eight (28) days.
(4)The solicitors for the appellant mother file and serve an affidavit, within seven (7) days in the Appeals Registry, to which is attached emails serving the Application to Adduce Further Evidence and supporting affidavit dated 2 December 2019, including the email of 3 December 2019.
I certify that the preceding fifty (50) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Austin JJ) delivered on 10 December 2019.
Associate:
Date: 13 December 2019
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