Atwood & Atwood
[2021] FamCAFC 11
•12 February 2021
FAMILY COURT OF AUSTRALIA
Atwood & Atwood [2021] FamCAFC 11
| Appeal from: | Atwood & Atwood [2019] FamCA 759 |
| Appeal number(s): | EAA 118 of 2019 |
| File number(s): | SYC 3943 of 2014 |
| Judgment of: | AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ |
| Date of judgment: | 12 February 2021 |
| Catchwords: | FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – No recognised ground of appeal particularised – No appealable error identified – Notation made on the invitation of the parties that the child may approach the mother of his own volition. FAMILY LAW – APPEAL – COSTS – Appeal against costs order – Financial circumstances – No error identified – Appeal dismissed – No order as to costs. |
| Legislation: | Family Law Act 1975 (Cth) Pts VII, VIII, ss 75(2), 96AA, 117(2A) |
| Cases cited: | Atwood & Atwood [2020] FamCAFC 153 House v The King (1936) 55 CLR 499; [1936] HCA 40 Mallory & Mallory [2020] FamCAFC 62 |
| Division: | Appeal Division |
| Number of paragraphs: | 43 |
| Date of hearing: | 4 February 2021 |
| Place: | Sydney, delivered in Newcastle |
| The Appellant: | Litigant in person |
| The Respondent: | Litigant in person |
| Counsel for the Independent Children’s Lawyer: | Ms Shea |
| Solicitor for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
| EAA 118 of 2019 SYC 3943 of 2014 | ||
| APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA | ||
| BETWEEN: | MS ATWOOD Appellant | |
| AND: | MR ATWOOD Respondent | |
| AND: | INDEPENDENT CHILDREN’S LAWYER | |
ORDER MADE BY: | AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ |
DATE OF ORDER: | 12 FEBRUARY 2021 |
THE COURT ORDERS THAT:
The appeal is dismissed.
No order as to costs.
NOTATION:
The parties and the Independent Children’s Lawyer agreed that the parenting orders made by the Family Court of Australia on 20 September 2019 ought to be regarded as being endorsed with the following notation:
The parties agree that notwithstanding Order 3 made on 20 September 2019, [the child] may contact his Mother of his own volition.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Atwood & Atwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ:
This is an appeal by the mother from some, but not all, orders made by a judge of the Family Court of Australia on 20 September 2019 under both Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
The parenting dispute concerned the parties’ only child, who was aged 13 years when the appealed orders were made. Relevantly, the orders provided for the father to have sole parental responsibility for the child, for the child to live with the father, and for the child to spend no time at all with the mother. That outcome reflected the applications of the father and the Independent Children’s Lawyer (“the ICL”) and correlated with the evidence given by both the single expert psychiatrist (“the single expert”) and the Family Consultant. Eventually, aside from the practical issue of the explanation of the orders to the child, the appeal from the parenting orders took the form of a singular challenge to the order which precludes the child’s contact with the mother.
At trial, the property settlement dispute was waged over the net sale proceeds of the former family home totalling $301,074 (held in escrow pending resolution of the dispute), the father’s superannuation interest worth $201,000, and the mother’s superannuation interest worth $30,000. The appealed orders split $62,400 from the father’s superannuation interest for the mother’s benefit and required the trust funds to be divided in proportions of 63.1 per cent to the mother and 36.9 per cent to the father. However, in the appeal, the mother sought to impugn only the superannuation splitting order and another order compelling her payment of one-half of the father’s assessed costs of the proceedings.
The Amended Notice of Appeal does not particularise any recognised ground of appeal which lies from an order made in the exercise of statutory discretion (House v The King (1936) 55 CLR 499 at 504–505). Nor does the mother’s Summary of Argument contain any coherent argument about legal, factual or discretionary error. The mother was and remains self-represented, which surely occasioned her considerable disadvantage, but it cannot be pretended such defects do not block her appeal. Self-represented litigants are bound by the same rules.
Rather than resort to summary dismissal of the appeal pursuant to s 96AA of the Act, these reasons address what seem to be the mother’s complaints and explain why the appeal should be dismissed for lack of substantive merit.
THE PARENTING APPEAL
The mother formally challenged the orders providing for: the father to have sole parental responsibility for the child (Order 2); the child to live with the father (Order 1); the child to spend no time and have no contact with the mother (Order 3); the father being able to take the child on overseas holidays (Order 6); and the Family Consultant to explain the orders to the child (Order 7). Despite appealing from each of those orders, the mother’s Summary of Argument addressed only Orders 3 and 7.
An explanation of the historical context, the narrow ambit of the parties’ dispute at trial, and the tenor of the evidence will reveal how the appeal is flawed.
The parties separated in March 2014, at which point the child remained in the mother’s primary care. The father commenced proceedings in June 2014, seeking both parenting and property settlement orders.
The child was later removed from the mother’s care by the State child welfare authority in June 2015 (at [94]–[95] and [184]) in response to numerous reports made over preceding months about the child’s neglect and safety, whereupon he was placed in the father’s care. For a time, the child welfare authority was a party to the proceedings before the primary judge and some affidavit evidence of its caseworkers was adduced at the trial (at [14], [79], [88] and [103]). The child has lived with the father since his removal from the mother.
In June 2015, interim orders were made by the Court (upon expiration of the emergency child welfare orders made by the State court) providing for the child to live with the father and to spend time with the mother under the supervision of the child welfare authority’s caseworkers.
Aside from the observations of the child in the mother’s company by the single expert in April 2016 (at [100], [102] and [116]) and by the Family Consultant in February 2018 (at [111] and [160]), the child has not spent any time at all with the mother since June 2015 (at [142]). She refused to allow the child to spend time with her under supervision (at [134] and [162]), despite the interim orders made in June 2015 providing for it to occur.
The mother failed to attend her appointment with the single expert in November 2015, so another appointment was made for April 2016. At the interview, the mother told the single expert she was unwilling to advance any proposal in respect of the child’s care because it was “up to the Court”.
Then, the mother failed to attend her appointment with the Family Consultant in October 2017, so another appointment was made for her in February 2018. At the interview, the mother again declined to make any proposal about how the child could spend time with her and she told the Family Consultant she thought the child should make his own decisions. She also said she had not formulated any proposal because she did not expect the Court would make any order for the child to spend time with her and, given the lapse of time, she no longer knew “what [the child] is like”.
The mother’s engagement with the child under the observation of the single expert and the Family Consultant concerned them both.
When the child was introduced to the mother in April 2016, they not having met since June 2015, she spoke rapidly to the child from prepared notes covering a wide range of personal, sporting and political topics, recording the event with her handheld recorder and repeatedly stopping the child from interrupting her. The child was observed to be “distressed and bewildered” and, when he told the mother he missed her, she dismissively said:
There’s not much you can do about that. It’s a life lesson. You’ve made some mistakes. There’s nothing you can do about it.
The child told her he had tried to email her, but she informed him she had no internet connection because she spent her money on other priorities. The child kissed and cuddled her, told her he missed her and thought about her a lot, to which the mother responded:
What you have to remember is you goofed up. You had the wrong priorities in life. You have until 16 and then things will get better.
The single expert suspected the mother suffered from a personality disorder, or perhaps even a more significant mental illness, and recommended the child not spend any time with her.
When the child was introduced to the mother again in February 2018, nearly two years later, her first words to him were:
The first question everyone wants to know – Hilary or Trump?
(As per the original)
The mother then consulted the “contact list” on her mobile telephone and proceeded to tell the child what had become of those people, some of whom were unknown to the child. The mother interrupted herself to inform the child she had given away his footballs and to ask whether he was playing croquet or had yet taken up lawn bowls.
The Family Consultant found the mother’s presentation to be “very concerning” and considered the child should not spend any time with her, at least pending psychiatric or psychological assessment.
The trial began in April 2018. During the trial, the mother did not seek any prescriptive orders in respect of the child’s care arrangements. The only order she sought was expressed in these terms (at [8], [118], [142] and [179]):
[The child] to decide as close to age of 12 and Court has precedent for this.
(As per the original)
The child turned 12 years of age in July 2018, while the trial was part-heard.
The mother made her last submissions in the trial in December 2018. Her expectation of continuing estrangement from the child during the remainder of his minority was evident from her submission in these terms (at [209(b)]):
This case is about [the child] and when he turns 18 reconciliation will be possible…
The primary judge accepted the opinion evidence given by the single expert and the Family Consultant (at [42] and [159]). His Honour found the mother neglected the child and kept him from the father before he was removed from her care (at [128]–[129], [145], [147], [167] and [172]). His Honour found the mother had since done nothing to address her state of mental health, contrary to the advice of the single expert and the Family Consultant (at [130] and [179]). That evidence, in combination with the mother not seeking any prescriptive order requiring the child to spend time with her, convinced his Honour that no such order should be made.
Even now in the appeal, if it is successful and discretion is re-exercised, the mother’s only stipulation is that the appealed order which directs the child shall not spend time or communicate with her be amended by the simple addition of the suffix “unless instigated by [the child]”.
The mother submitted in her Summary of Argument:
There are issues the court should consider and allow [the child] to make contact with me should he choose as is his Human rights as per the UN Convention for Children’s Rights ratified by Act of Parliament 1986 as well as his rights as a Citizen of NSW.
(As per the original) (Emphasis added)
It would seem, therefore, the limited extent of the mother’s grievance is that the child should be able to voluntarily make contact with her if he desires. There is no substantive challenge made to the father’s sole parental responsibility for the child, the child’s residence with the father, or there being an order that the child have no contact or communication with the mother.
The order which provides for no contact between the child and the mother (Order 3) does indeed take the form of an injunction, in much the same form as was proposed by the father and the ICL (at [2] and [9]), but the primary judge found the order crafted in those terms was warranted by the evidence and the mother did not demonstrate any error with it.
Nevertheless, the father and the ICL sympathetically understood the mother’s expressed concern about breaching the order if she responds to any approach the child voluntarily makes, either personally or via correspondence. To eradicate any misunderstanding, the parties and the ICL invited us to make a notation in these terms, which invitation we accept:
The parties agree that notwithstanding Order 3 made on 20 September 2019, [the child] may contact his Mother of his own volition.
The order requiring the father’s presentation of the child to the Family Consultant for an explanation of the orders (Order 7), while expressly referred to in the mother’s Summary of Argument, was not the subject of any intelligible commentary. The order was stayed by the primary judge on 20 December 2019, but that was three months after the order was made and it may have been fulfilled before it was stayed. If it has not already been fulfilled, the stay will now lapse and the order may be implemented. However, having lived under the regime of the appealed orders for more than a year, an explanation of the orders to the child now is not likely to make much difference.
THE PROPERTY SETTLEMENT APPEAL
The primary judge ordered that $62,400 be split from the father’s superannuation interest for the mother (Order 18).
The father had proposed a superannuation splitting order be made to give the mother $150,000 of his existing superannuation interest (at [196]), on the basis that he wanted the mother’s property settlement entitlement reflected in more superannuation and less cash (at [189] and [222]), but his proposal was rejected (at [224]).
The mother sought 50 per cent of superannuation “contributions + returns” for a defined period between 2006 and 2007, together with a 25 per cent share of the same equation for a defined period between 2007 and 2014. The primary judge did not know what that actually meant and the mother did not clarify the nature of her application (at [5] and [199]–[200]). In the appeal, the mother contended she was additionally entitled to 50 per cent of the “contributions and returns” from 2015 until 2030. We do not know what that means either, nor did the mother explain it.
The mother’s superannuation interest was valued at $30,000, consistent with her admission (at [213]). The reasons for judgment do not reveal how the value of the father’s superannuation interest was established to be $201,000 (at [217]), given the father deposed to its value being $188,633, but there was no complaint in the appeal about the valuation finding made in respect of his interest.
The primary judge assessed the parties’ contribution-based entitlements to their superannuation interests separately from their assets, for which approach the mother advocated (at [223]–[233]). The primary judge assessed the mother’s contribution-based entitlement to superannuation at 35 per cent with an adjustment of five per cent in her favour by reference to the factors under s 75(2) of the Act, making a total of 40 per cent (at [234]–[235] and [284]–[285]).
Given the combined value of the superannuation interests was $231,000, the mother’s 40 per cent share computed to $92,400. As she would retain her own superannuation interest of $30,000, hence the residual sum of $62,400 was split for her from the father’s superannuation interest (at [298]–[299]).
In the appeal, the mother submitted the father was seized of other undeclared superannuation interests, but no evidence was adduced to prove it, either at trial or as further evidence in the appeal. The father submitted the other superannuation accounts to which the mother referred in her Summary of Argument were “cashed in” years before, which submission was at least consistent with the evidence he adduced at trial.
In June 2020, Ryan J granted the mother’s application to be relieved of the ordinary burden of filing the transcript of the trial as part of the material considered in the appeal (Atwood & Atwood [2020] FamCAFC 153 at [24]–[30]). We are therefore unable to verify whether the mother cross-examined the father about the alleged additional superannuation interests which he denies, but it is inherently unlikely because she told the primary judge she had not and would not read the father’s affidavit material (at [17], [40] and [44]) and the primary judge recorded she made “little or no challenge” to the father’s evidence in cross-examination (at [44]). The father certainly only disclosed the solitary superannuation interest in his financial statement.
The mother failed to demonstrate any error in respect of the superannuation splitting order.
As for the costs order challenged by the mother in the appeal (Order 13), the primary judge ordered that she pay one-half of the father’s costs of and incidental to the proceedings calculated on a party/party basis (at [301]–[321]). The mother made no useful submission in the appeal other than that she is a “person of straw”, but his Honour expressly took into account her inferior financial circumstances, as s 117(2A)(a) of the Act required (at [307]–[309] and [319]). It was not an overlooked material consideration and the mother was unable to explain how or why the costs order was made in error. Her lack of means was not an impenetrable shield against the costs order (Mallory & Mallory [2020] FamCAFC 62 at [9]).
The superannuation splitting order and the costs order were both stayed by the primary judge on 20 December 2019, pending determination of this appeal, so the stay now ceases and the subject orders become enforceable.
DISPOSITION
The appeal should be dismissed for lack of merit.
On 28 April 2020, the Regional Appeal Registrar ordered that any party who envisaged making an application for a costs order should file and serve a schedule of his or her party/party scale costs no later than seven days prior to the appeal sittings. No schedule was filed by either party or the ICL and no application for costs was made at the hearing. There should be no order for costs.
| I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Austin. |
Associate:
Dated: 12 February 2021
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