Bakal & Kapicic (Appeal)
[2017] FamCAFC 102
•8 June 2017
FAMILY COURT OF AUSTRALIA
| BAKAL & KAPICIC (APPEAL) | [2017] FamCAFC 102 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Appeal against orders providing child live with the father and spend time with the mother – Allegations of family violence, bias on behalf of the Family Consultant and lack of procedural fairness – No error established – Appeal dismissed. FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Appeal against property settlement dividing modest asset pool 75/25 in favour of the mother – Adequate reasons given by the trial judge – Trial judge did not err in making adjustments under s 75(2) – No error established – Appeal dismissed. FAMILY LAW – APPEAL – Application to adduce further evidence – Evidence would not have demonstrated error on the part of the trial judge – Application dismissed. |
| Family Law Act 1975 (Cth) ss 75(2), 69ZN |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Bakal |
| RESPONDENT: | Mr Kapicic |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4291 | of | 2011 |
| APPEAL NUMBER: | SOA | 47 | of | 2016 |
| DATE DELIVERED: | 8 June 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray ACJ, Aldridge & Johnston JJ |
| HEARING DATE: | 15 May 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 May 2016 |
| LOWER COURT MNC: | [2016] FamCA 410 |
REPRESENTATION
| THE APPELLANT: | In Person |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Du Barry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
The appeal be dismissed.
The Application in an Appeal filed on 1 May 2017 be dismissed.
There be no order as to costs.
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 Bakal & Kapicic (Appeal) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 47 of 2016
File Number: ADC 4291 of 2011
| Ms Bakal |
Appellant
And
| Mr Kapicic |
Respondent
And
| Legal Services Commission of South Australia |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 26 May 2016, Berman J made orders resolving disputes between Ms Bakal (“the mother”) and Mr Kapicic (“the father”) concerning the division of their property and future arrangements for their son, now aged 12.
The mother’s appeal against these orders is opposed by the father and by the Independent Children’s Lawyer (“the ICL”).
Background
The father and mother married in 1992 and separated in either 2005 or 2007. Their only child, who was born in 2005, lived with the mother following the separation and spent occasional time with the father.
In May 2013, consent orders were made for the parents to have equal shared parental responsibility and for the child to spend time with the father on four nights each fortnight and during part of the school holidays.
In September 2013, the father applied to vary the orders and filed a Notice of Risk detailing many concerns about the mother’s care of the child. The mother responded and filed a Notice of Risk, claiming that the father had possibly sexually abused the child and making a variety of other allegations.
After determining that there had been a sufficient change of circumstances to warrant the dispute proceeding to trial, a Federal Circuit Court judge transferred the proceedings to the Family Court. Reports were later provided by the department responsible for child protection (“the Department”) and by a Family Consultant, which suggested there would be a serious risk to the child if he remained living with the mother.
On 11 December 2014, interim orders were made for the father to have sole parental responsibility for matters of health and education, and for the child to live with the father and spend time with the mother each alternate weekend and during parts of the school holidays.
The final parenting orders which are the subject of this appeal provided for the father to have sole parental responsibility; for the child to live with him; and for the child to spend time with the mother each alternate weekend and half of the holidays. The property orders resulted in the mother receiving 75 per cent of the modest asset pool and the father 25 per cent.
The appeal against the parenting orders
The mother’s appeal against the parenting orders relies upon six grounds, Ground 3 having been abandoned.
Ground 1 – allegations of family violence
To provide context for the first complaint, we note that the trial judge:
·recorded the mother’s contention that the parties’ relationship was characterised by family violence perpetrated by the father (at [38]).
·found that while the police had involvement with the family “it was usually because the father was fearful of the child’s predicament in the mother’s care or at her instigation” (at [71]).
·concluded that the mother’s allegations of violence, threats to kill stalking, etc had no basis and that the allegations, which she had also made in a letter to all the staff at the child’s school, were “scandalous” (at [107]).
The mother asserts by Ground 1 that the trial judge erred in finding that the allegations were “scandalous” and she further asserts that his Honour failed to have appropriate regard to her affidavit evidence. In support of this ground, the mother relied upon four attachments to her trial affidavit which she submitted demonstrated that she had experienced physical abuse over a prolonged period.
Three of the attachments to the mother’s affidavit are records of statements made by her to the police about the father’s alleged violent behaviour. The fourth was an intervention order made in the absence of the father, which was later revoked. None of these documents establish that the mother was the victim of the abuse she claims to have experienced. On the contrary, they corroborate the trial judge’s finding that the mother had made many assertions over an extended period, none of which had been established.
There is accordingly no merit in this ground.
Ground 2 - allegation that the child suffers from asthma
His Honour found that the mother was convinced that the child suffers from various medical conditions, in particular asthma, but concluded that her belief was “irrational” and that this was “one of a number of areas where the mother has interfered with the child’s health management inappropriately and without foundation” (at [242] – [243]).
His Honour had earlier recorded:
86.The father gave evidence that from 30 November 2015 the child had a week of swimming. Apparently the mother attended and demanded to see the [school] principal providing him with an asthma treatment plan together with Ventolin medication. The deputy principal refused to accept the plan and ultimately the mother turned up at the swimming carnival and removed the child from the water in order to administer Ventolin.
87.The father denies that the child has asthma and that he has been taken regularly for medical investigation. A similar event had occurred at the child’s sports day in March 2015.
Ground 2 asserts error in the finding that the mother’s belief that the child suffers from asthma was “irrational”, and further error in the alleged failure of the trial judge to have regard to a document annexed to the mother’s affidavit.
At trial, the mother did not lead any evidence from a medical practitioner on this topic, and her affidavit failed to provide any context to the circumstances in which the “asthma treatment plan” was prepared. The only reference to the treatment plan was in this paragraph of the affidavit:
69.[The child] was first diagnosed with Asthma when he was aged 3 years … The child has been prescribed a Salbutamol Inhaler (Ventolin) and an Beclomethasone Inhaler. Annexed ... is a true and accurate copy of the child’s Asthma Action Plan dated 27 November 2015.
Although the mother claimed that the child had been diagnosed with asthma many years ago, the “Asthma Action Plan” annexed to her affidavit was dated just a little more than a week before she swore the affidavit, and three days before the “week of swimming” to which his Honour referred at [86]. The “Asthma Action Plan” was a pro forma document which, although bearing the stamp of a general practitioner, was unsigned and did nothing more than recommend that the child should use an inhaler “if asthma provocatory [sic] situations expected e.g. exercise, cold” and otherwise when “required”.
In his submissions on appeal, the father alleged that the mother had sourced the Asthma Action Plan “from a new Medical Centre” without the child having been seen by the doctor whose stamp appears on the document. There was no evidentiary basis for that submission as the mother was not cross-examined at trial about the circumstances in which the plan was obtained. However, the father did give evidence that the child had told him in late November 2015 that he did not want to be involved in the week of swimming because the mother had told him he had asthma, which led the father to take the child to a doctor who examined the boy and reassured him that he did not have asthma.
While the mother was being cross-examined, the trial judge noted the differing views on the asthma issue, and asked the mother whether she had any objection to an order requiring the boy to attend on a specialist to determine whether he does suffer from asthma, and for an order then to be made requiring the parents to comply with the recommendation of the specialist. The mother said she had no objection, while continuing to insist that a general practitioner had already diagnosed the boy as having asthma. Although his Honour ultimately found that the mother’s belief on this issue was “irrational”, he nevertheless included in his final orders a requirement for the further investigation to be carried out.
The mother did not challenge this order and we were informed at the hearing of the appeal that it had been carried out. Ultimately appeals are made against orders and not findings. As the mother consented to the order, that could be seen as the end of the matter. We accept, however, that his Honour’s finding about the irrationality of the mother’s view on the asthma issue would have bolstered the other concerns his Honour had about the mother’s thought processes. It is therefore important to record that the mother did take us to a few entries in the child’s medical records which she claimed showed that he had, in fact, been diagnosed with asthma.
It was not suggested that the trial judge had been taken to these isolated references to an asthmatic condition in the extensive medical records produced at trial. However, even if his Honour’s attention had been drawn to them, they would not have established that the boy had asthma since, on one reading, they could be seen merely as recording the mother’s view, as an experienced nurse, that the boy had asthma. Although the records do establish that scripts for Ventolin were written in 2008, and again in 2012, there was no evidence to suggest that Ventolin is prescribed only for asthma.
While opposing the appeal, counsel for the ICL conceded that his Honour may have expressed himself too strongly in stating that the mother’s opinion about the boy suffering from asthma was “irrational”. Having been taken to the medical records we agree that his Honour ought perhaps to have been more circumspect in what he said, but we nevertheless accept that he was entitled to be highly sceptical of the mother’s claim. Importantly, however, nothing advanced here persuades us that there is any basis for concluding that his Honour erred in his overall assessment about the mother’s tendency to arrive at conclusions that were not warranted.
We therefore find no merit in this ground.
Ground 4 & 5 – the evidence of the Family Consultant
By these grounds the mother asserts error on the part of the trial judge in first rejecting her claim that the Family Consultant was biased and secondly in placing weight on the Family Consultant’s evidence.
The mother’s principal argument in support of these grounds was that it would have been impossible for the Family Consultant to bring an impartial mind to the issues given that both the mother and the maternal grandmother had questioned the consultant’s “qualifications, experience, and commitment to child protection”. As a result, the mother asserted that the Family Consultant should have been “disqualified” on the grounds of an apprehension of bias.
The mother had, in fact, made a formal application for the “disqualification” of the Family Consultant on the ground of bias. This was dismissed on 11 April 2014 (two years before the trial) and there was no appeal against that decision. The mother nevertheless continued to express her concerns about the Family Consultant and ultimately refused to participate in the process when the Family Consultant was asked to provide a third report in December 2014.
The trial judge did not accept that there was any basis for the mother’s hostility to the Family Consultant as appears from this extract from his reasons:
198.During her cross examination the mother was clearly hostile towards the family consultant. She was not prepared to accept the opinion of the family consultant and was keen to reinforce her own position namely, that the father represented an ongoing danger to both her and the child. It was the mother’s position ultimately that in some way the family consultant had become invested with the matter and was part of an overall conspiracy to protect the father notwithstanding that he was a paedophile and exhibited deviant behaviour.
199.The family consultant responded to the mother’s questions by highlighting that her evaluation of the child’s presentation was based upon her clear observations. When with the mother, the child was reticent and removed. When with the father, the child was clearly engaged and closely attached.
200.It was put to the family consultant that she had lied as to her observations of the mother’s home. The response was that the house was “absolutely hideous”. It was so serious that the family consultant considered that it was a child protection issue.
201.The family consultant was unmoved and unchanged in respect of the observations set out with clarity and consistency across the three reports.
202.At the conclusion of her evidence, I was impressed with the evidence of the family consultant. She had provided significant opportunity to both parties to engage with her. She had made efforts to contact other persons involved in the care of the child and the reports of the child’s pleasing improvement following his transition into the primary care of the father was corroborative of her own observations.
Nothing advanced by the mother provided any support for her complaint about the objectivity of the Family Consultant. On the contrary, we consider it was well open to the trial judge to place the weight that he did on the Family Consultant’s evidence. We observe also that the many concerns the Family Consultant expressed about the mother were corroborated by a report provided by the Department. Although the mother was also strongly critical of the Department, she failed to demonstrate that the officers of the Department and the Family Consultant had erred in arriving at their opinion about the serious deficiencies in her parenting.
Accordingly, we find no merit in either of these grounds.
Ground 6 – the evidence of the maternal grandmother
The mother complains that the trial judge failed to give any consideration to the evidence of the maternal grandmother and, in particular, the evidence that the mother asserts corroborates her claims about the father.
We accept that no mention was made in the reasons about the evidence of the maternal grandmother except that his Honour recorded that the mother relied on the grandmother’s affidavit filed on 9 December 2015 (at [31]) and save that his Honour recorded the “clear and evident hostility” of the grandmother to the continuing involvement of the Family Consultant (at [165]). However, it is not necessary that a judge mention the evidence of every witness and we see no error in his Honour not considering the grandmother’s evidence to be of sufficient importance to be discussed.
Although the maternal grandmother gave evidence concerning the father’s violence, she conceded under cross-examination that she was merely reciting information provided by the mother. Furthermore, contrary to the mother’s case, the grandmother denied knowledge of any abuse of the child by the father. Although the grandmother gave evidence of the father being a liar, his Honour found that the father had been deceptive and untruthful in some aspects of his evidence. And although the grandmother gave evidence of the mother’s affection for the child, that was not in contention either. Otherwise, the grandmother’s evidence constituted little more than her opinion of the quality of the parenting provided by her daughter and, in our view, was of little assistance to the court.
We therefore do not consider there is any merit in this ground.
Ground 7 – procedural fairness
By this ground the mother asserted that the trial judge had not afforded her procedural fairness. The mother failed to provide any particulars of this complaint and we therefore asked her at the appeal hearing to provide the three best examples of how she had been denied procedural fairness.
The mother’s first example was that his Honour had “constantly interrupted” her, such that her cross-examination of the witnesses “lost momentum”, making it difficult to “obtain truthful or honest answers”. Our examination of the 150 pages of the transcript to which we were referred does demonstrate that the trial judge repeatedly interrupted the mother. We are not persuaded, however, that the interruptions constituted anything more than his Honour endeavouring to “actively direct, control and manage the conduct of the proceedings” in the way that he is obliged to do by the principles laid down in s 69ZN of the Family Law Act 1975 (Cth) (“the Act”).
The mother’s second example was the trial judge’s alleged failure to permit her a sufficient opportunity to examine and photocopy financial statements which became available only during the course of the trial. We were not persuaded there was merit in this complaint and in any event it clearly did not have any impact on the outcome of the parenting dispute.
The third example was that the mother was given insufficient time to cross‑examine witnesses. In particular, the mother said that she had wanted to cross-examine the Family Consultant for two days, but had not been permitted to do so. The record discloses that the mother cross-examined the Family Consultant at length and there is nothing to indicate that she complained that she had been cut off by the trial judge or that any request had been made for any further opportunity to cross-examine the Family Consultant.
For these reasons, we are not persuaded there is any merit in this complaint.
There being no merit in any of the complaints, the appeal against the parenting orders must fail.
The Appeal against the Property Settlement Orders
The mother relied upon three grounds in challenging the property orders.
Ground 1 – inadequacy of reasons
The mother asserted that the trial judge failed to provide adequate reasons for the orders that he made by way of property settlement.
Although his Honour’s reasons were brief, it is possible to understand clearly the basis upon which the decision was reached, which is not to suggest that other outcomes were not available in the exercise of the wide discretion.
In giving his reasons, his Honour:
·set out the “Financial Background”;
·set out relevant legislative provisions and discussed the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108;
·made findings about contributions and concluded that the overwhelming contribution had been made by the mother and that, on the basis of contributions alone, the asset pool ought to be divided in proportions 85/15 in favour of mother;
·discussed the adjustment to be made under s 75(2) of the Act and concluded that the principal relevant factor was that the child would remain predominantly living with the father, and that it was unlikely the father would receive any financial assistance from the mother;
·concluded that there should therefore be a 10 per cent adjustment, which his Honour calculated would create a “differential in favour of the father of $50,852”; and
·decided, as a result, that the assets should be divided in proportions 75/25 in favour of the mother.
His Honour’s treatment of the issue was orthodox and his reasoning clearly able to be understood. There is accordingly no merit in the complaint.
Ground 2 – consideration of failure to give proper disclosure
This ground asserts that the trial judge failed to give appropriate weight to the father’s failure to make a full and frank disclosure of his financial affairs and in particular the income received from his present employment.
This complaint cannot be sustained in light of the fact that his Honour:
·said he could not place any reliance upon the father’s version of the parties’ financial history because he had been deceptive both in his financial statement and in his evidence of his current employment;
·concluded that it was difficult to assess the father’s financial position but was satisfied that he was working and earning not less than $50,000 per annum, notwithstanding his initial claim that he was unemployed;
·found that the father had deliberately left blank a portion of his financial statement relating to his new partner and that accordingly his affidavit and financial statement relating to the property settlement issue were of “no value or assistance to the Court” (at [270]);
·found that “little is known of the financial circumstances of [the father’s] partner” (at [293]); and
·decided that the adjustment to be made on account of the father’s support for the child “must be tempered by the uncertainty of his employment status and the income that he receives” (at [297]).
After making all of these findings, his Honour said that “doing the best that I can, I propose to order an adjustment of 10 per cent in favour of the father...” (at [298]). In our view, an adjustment of greater than 10 per cent for the s 75(2) factors may well have been appropriate, but his Honour clearly had regard to the unsatisfactory evidence provided by the father and therefore “tempered” the outcome accordingly.
We see no basis for complaint about such an approach.
Ground 3 – the adjustment for s 75(2) factors
The mother complains that his Honour erred in making the s 75(2) adjustment, but no particulars were provided to identify the alleged error.
As we have already said, an adjustment of more than 10 per cent might have been warranted were it not for the factors that his Honour identified concerning the unreliability of the father’s evidence. In our view, there is certainly no basis for the mother to complain about this part of the decision.
There being no merit in any of the complaints, the appeal against the property orders must also fail.
Application to adduce further evidence
The mother sought to introduce a large quantity of further evidence in the appeal. We were not persuaded that this material, even if introduced, would have demonstrated error on the part of the trial judge.
Having regard to what was said in CDJ v VAJ (1998) 197 CLR 172, we propose to dismiss the application.
Costs
The father and counsel for the ICL advised that no order for costs would be sought against the mother in the event the appeal was dismissed.
There will therefore be no order as to costs.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray ACJ, Aldridge & Johnston JJ) delivered on 8 June 2017.
Associate:
Date: 8 June 2017
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