Banham & Banham
[2021] FamCAFC 132
•29 July 2021
FAMILY COURT OF AUSTRALIA
Banham & Banham [2021] FamCAFC 132
Appeal from: Banham & Banham (No.2) [2020] FCCA 2450 Appeal number(s): SOA 81 of 2020 File number(s): MLC 881 of 2015 Judgment of: STRICKLAND J Date of judgment: 29 July 2021 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the appellant asserts a denial of procedural fairness – Where the appellant asserts the primary judge relied on documents that were not made available to the parties – Where the references complained of were available to the parties but were not accessed by them – Where in any event a properly conducted trial could not possibly make any difference to how the primary judge dealt with the allegations of family violence and thus to his Honour’s orders – Where there was evidence from other sources that would allow for the same findings to be made – Where the primary judge appropriately applied the principle in Rice and Asplund (1979) FLC 90-725 – Where the primary judge took the evidence of the appellant at its highest – Where the appellant sought a family report – Where to grant that application would have defeated the purpose of the rule in Rice & Asplund – Where there was no merit in any of the Grounds of appeal – Appeal dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZW
Family Law Rules 2004 r 19.18(1)(a)
Cases cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
Marsden & Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128
SPS & PLS (2008) FLC 93-363
Stead v State Government InsuranceCommission (1986) 161 CLR 141
Division: Appeal Division Number of paragraphs: 98 Date of hearing: 11 February 2021 Place: Melbourne by way of video link Solicitor for the Appellant: Kennedy & Partners Counsel for the Appellant: Mr Wilson The Respondent: In Person ORDERS
SOA 81 of 2020
MLC 881 of 2015APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS BANHAM
Appellant
AND: MR BANHAM
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 23 December 2020 be dismissed.
2.The appeal be dismissed.
3.The appellant mother pay the respondent father’s costs fixed in the sum of $4,400.
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 Banham & Banham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 23 December 2020 Ms Banham (“the mother”) filed an amended Notice of Appeal appealing from two of the orders made by a Judge of the Federal Circuit Court of Australia on 3 September 2020.
The appeal is opposed by Mr Banham (“the father”).
The orders appealed dismissed the mother’s Amended Application filed on 5 June 2020 seeking parenting orders as well as all other extant applications.
His Honour applied the rule in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) in dismissing the mother’s application. There had been final parenting orders made on 28 April 2015, and the children the subject of those orders are twins, Y and X born in April 2007.
On 23 December 2020 the mother filed an Application in an Appeal seeking leave to adduce further evidence being that deposed to in her affidavit filed on the same date. On 1 February 2021 the father filed a Response seeking that that application be dismissed.
BACKGROUND
The parties commenced a relationship in 1998, they married in 2003, and separated on a final basis in 2013.
Although the relationship of the parties ceased in March 2013, they remained living in the family home until December 2013.
As a result of various health issues which made it difficult for the mother to assist the father in the children’s care as much as she wished to, the parties agreed that the mother would travel to Country D to take a break. The mother left the children with the father, travelling to Country D in August 2013 and remained away for approximately nine weeks.
The father travelled to Country E with the children in December 2013, and at that time the mother travelled to Queensland to live with her father. She subsequently re-partnered, and she continues to live with her partner in Brisbane. Her partner has a daughter who lives with them on a week about basis.
Following the father’s return from Country E he and the children have continued to reside in Melbourne. The father subsequently re-partnered but that relationship had ceased by the time of the hearing below.
The mother commenced proceedings on 9 February 2015 seeking orders that the children live with the father and spend time with her for one half of all school holidays, and for one weekend each month. The father did not oppose this application, and the orders sought by the mother essentially became the final orders made by consent on 28 April 2015.
On 6 April 2020 the mother filed an Initiating Application seeking in effect a reversal of the parenting orders made on 28 April 2015; in other words, she sought that the children live with her in Brisbane and spend time with the father for one half of the school holidays and on arranged weekends in Brisbane.
The mother also sought interim orders to address difficulties that had developed as a result of travel restrictions imposed following the outbreak of the pandemic, and on 8 April 2020 his Honour made certain interim orders to address these difficulties.
In those proceedings the mother also sought that a qualified psychologist be engaged for the purposes of preparing a family report.
The father opposed the mother’s applications to reverse the parenting orders and for a family report.
On 5 June 2020 the mother filed an Amended Application seeking the same final orders, but seeking amended interim orders including in relation to the family report. She also sought an order pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) for the provision of documents.
The proceedings returned before his Honour on 9 June 2020, and an order was made pursuant to s 69ZW of the Act requiring the Department of Health and Human Services (DHHS), Victoria Police, and Queensland Police Service provide the Court with information in relation to the children.
In bringing her application to reverse the parenting orders the mother relied on three changes of circumstances since those orders were made, namely:
(a)the children’s ages;
(b)the children’s views; and
(c)allegations of family violence, and in particular violence directed towards the children by the father.
On 9 July 2020 his Honour conducted a preliminary hearing to determine the threshold issue as to whether the mother’s application should be allowed to proceed, and in that context whether a family report should be obtained to assist the Court including to ascertain the views of the children.
THE RELEVANT PRINCIPLES
The rule in Rice & Asplund is well known. There Evatt CJ said as follows at [7]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
In light of this rule, his Honour approached the matter by giving consideration to the following:
(a)the circumstances at the time of the making of the final orders in 2015, having regard to that earlier order and the reasons for and material on which that order was based;
(b)whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing; and
(c)if there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
His Honour adopted this approach relying on the Full Court decision of Marsden & Winch (2009) 42 Fam LR 1 at [50].
There was no challenge in this appeal to the correctness of those principles and the considerations that his Honour needed to address.
THE APPEAL
There are six Grounds of appeal relied upon by the mother, but before I embark on a consideration of those Grounds, I note that none of those Grounds directly attack his Honour’s finding that the changes of circumstances relied on by the mother were insufficient to warrant the reopening of the litigation. As will be seen, his Honour’s orders and the reasons therefor are challenged in other ways.
Ground 1
The primary judge denied the mother procedural fairness by having regard to and relying upon the documents provided to the Court from the Department of Health and Human Services (“the DHHS documents”) without:
(a)informing the parties prior to judgment that the DHHS documents were available to be released to them; and/or
(b)releasing the DHHS documents to the parties; and/or
(c)informing the parties prior to judgment of the use that would or might be made of the DHHS documents; and/or
(d)allowing the parties to make submissions and/or call further evidence in light of the DHHS documents.
This Ground asserts a denial of procedural fairness, and as is well known, such an assertion must be addressed first in any appeal before an intermediate appellate court (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]– [10]).
The complaint here relates to his Honour’s apparent use of documents provided by DHHS without giving the parties the opportunity to have them and to address them.
In order to adequately consider this complaint, it is necessary to identify how the issues surrounding the allegations of family violence developed.
In support of her application the mother alleged that the children were subjected to family violence by the father. She provided examples in her affidavits of these allegations and deposed that she had reported the more serious to the relevant authorities including DHHS, the Victoria Police, and the Queensland Police Service.
Then, on 9 June 2020 his Honour made the s 69ZW order referred to above, and as his Honour records in [66] and [67], documents were subsequently provided by the three agencies detailing reported incidents between October 2018 and April 2020.
Each parties’ Summary of Argument filed for the purposes of the hearing below revealed that they had access to the records provided by Victoria Police, but there is no reference to any other document.
Significantly though, on 23 April 2020, following the mother filing her Initiating Application, and apparently in relation to the issue of travel by the children, DHHS sent to the Court a “Summary of Child Protection History”, and that would have been available to the parties. However, it would seem that neither party took up that opportunity. It is unclear from the record why that was, but his Honour certainly made use of it, and referred to it in his reasons for judgment. His Honour of course would have had no way of knowing whether the parties had accessed that document or not.
At the hearing below, as to be expected, there was discussion about the allegations of family violence made by the mother. The mother’s counsel took his Honour to the mother’s affidavits, to the letter and the report of the two psychologists who had seen the children, one in Melbourne, and one in Brisbane, and to the records produced by Victoria Police. Then in turn, the father’s counsel did likewise, but also referred to the independent evidence from the school the children attended.
There was reference in those submissions to the DHHS, but it was understood that the parties did not have the DHHS records that were the subject of the order of 9 June 2020, and those references came from the police records, given that the police and DHHS work hand in hand, and the police records also detailed the involvement of DHHS (Transcript 9 July 2020 p. 24 lines 33–45).
Turning to his Honour’s reasons, under the headings “The allegations of family violence” his Honour referred to and quoted from the mother’s affidavits, the report from the psychologist in Brisbane, the Victoria Police records, the father’s affidavit sworn 23 June 2020 and the letter from the psychologist in Melbourne. Then, under the heading “Evidence from DHHS, Victoria Police and the Queensland Police Service regarding the allegations of family violence”, his Honour quoted from the DHHS summary of April 2020, their Full Response Reports from which the summary is taken and which were the subject of the 9 June 2020 order, and the police records.
It is plain, as conceded by the mother, that “there was considerable duplication of information between the police documents and the DHHS documents” (paragraph 4 of the Summary of Argument filed by the mother on 23 December 2020), and that is entirely understandable.
However, the mother’s complaint in this Ground of appeal centres around two paragraphs of his Honour’s reasons where his Honour quotes extracts from the DHHS summary, namely as follows:
70.DHHS received a report on or about 5 November 2018, which is described in the mother and father’s submissions above. The DHHS Summary states:
‘During the investigation, it was ascertained that the incident did occur, however with no ill intent. It was ascertained that Mr [Banham] had grabbed [X]’s wrist to stop her spray-painting the floor and did not act inappropriately. No protective concerns were found, however ‘there is considerable concern for the long term in relation to the children’s well-being given the refusal for the parents to work together for the best interests of the children.’
…
79.On 14 April 2020, DHHS received the most recent report. The DHHS Summary of the incident states:
‘...the Department of Health and Human Services received a report in relation to concerns that the children were at risk in the care of Mr [Banham] given allegations that Mr [Banham] has been physically and emotionally abusive towards them on several occasions. It was reported that these incidents have been reported to Child Protection and Police. It is confirmed that the concerns raised in this report have been reported to Child protection in the past. There appears to be no new information to suggest that the children are at significant risk in the care of either parent.
It is imperative that the children are protected from the parental acrimony, and that both parents can come together to ensure that their focus and shares goal is for the emotional health and wellbeing of the children.’
...
The matter remained at the Child Protection Intake and Assessment phase and closed on or around 22 April 2020.’
(emphasis as per the original judgment)
The mother says that although the two incidents are detailed in the police records, the opinions contained in these extracts were not, and because the “mother was given no opportunity to rebut the opinion, whether by way of submissions, calling further evidence, cross-examination of the author of the opinion, or any combination of those things” she has thereby been denied procedural fairness (paragraph 8 of the mother’s Summary of Argument).
However, the complete answer to this claim is that these extracts are from the DHHS summary which could have been accessed by the mother’s legal representatives any time after 23 April 2020, but was not.
If I am wrong about that though, and his Honour should have alerted the parties to the circumstance that he would be referring to extracts from the DHHS summary, and given them the opportunity to make submissions and/or call further evidence, the question to be asked is whether being able to challenge those opinions in a properly conducted trial could not possibly make any difference to how his Honour dealt with the allegations of family violence and thus, to his Honour’s orders (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 and 147 noting further on 145.
In my view, that question should be answered in the negative. There was ample evidence to be found in the affidavit material, the letter and the report of the psychologists, the police records, and the correspondence from the school for his Honour to find as he did. The particular extracts from the DHHS summary, albeit important and relevant, were not the only material relied on by his Honour in reaching his decision.
For example, the mother submits that the reference in the extract in [79] to “parental acrimony” was specifically relied on by his Honour in “downplaying” the importance of the children’s views. Certainly, in [82] his Honour particularly took into account the “strong suggestion from the DHHS that a major concern for these children is a lack of a cooperative relationship between the parents”. However, it was readily apparent from the affidavit material and the police reports that a significant issue here was the acrimonious relationship between the parties, and it was open to his Honour to proceed on that basis from those sources.
In this context, the mother also points to what his Honour said in [84] as similarly downplaying the significance of the father’s alleged family violence. His Honour said this:
… I also get a sense that there is an aspect of her engagement with the psychologists in Queensland, the DHHS, the Victorian Police and Queensland Police Service as described above, is to provide an evidential basis to make an application, in particular the reports made in February to April 2020…
However, in my view the findings made by his Honour in [82] and [84] were clearly open on the evidence that was before his Honour, and did not rely solely on the DHHS extracts in [70] and [79].
This Ground fails.
Ground 2
The primary judge incorrectly applied the law relating to summary dismissal what is known as the rule in Rice [&] Asplund as applied as a preliminary matter in that:
(a)the primary judge failed to take the mother’s case at its highest and instead, afforded weight to the evidence of the father; and/or
(b)the primary judge drew inferences adverse to the mother by relying upon the father’s evidence or inferences drawn from the father’s evidence; and/or
(c)the primary judge’s reasoning was otherwise inconsistent with taking the mother’s case at its highest, or as established at face value.
As can be seen, this Ground primarily asserts that his Honour failed to take the mother’s evidence at its highest.
There can be no doubt that when a court is considering the application of the rule in Rice & Asplund as a preliminary issue, where no oral evidence is given, and there is no cross‑examination, that the starting point for the court is to take the mother’s evidence at the highest.
However, that does not mean that the court is to ignore the mother’s evidence given at the time that the original orders were made, or not take into account evidence that is before the court that the mother’s evidence does not address, or evidence that does not conflict with her evidence, or even to not draw inferences from the mother’s own evidence. Further, as the mother herself submits in her Summary of Argument, the court should “accept the evidence of the mother unless it is inherently incredible” (paragraph 11 of the mother’s Summary of Argument); and I add, unless it is internally inconsistent, or inconsistent with other evidence given by the mother in the proceedings. I also note that the mother’s counsel conceded that his Honour was able to assess the evidence in order to determine its significance.
It also must not be forgotten that even accepting the mother’s evidence at its highest, it is still open to a court, for proper reason, to find that the evidence before the court does not demonstrate a change sufficient to embark on a full rehearing.
Here, his Honour accepted the mother’s evidence contained in her affidavit material as to what the children have told her, including as to their views, and their treatment by the father.
However, some of that evidence was directly inconsistent with the evidence given by the mother herself at the time the original orders were made, it was also inconsistent with what the mother told her psychologist (at [53]), and to a certain extent it was inconsistent with the evidence the mother herself relied on from the police records, and the psychologist who was seeing the children in Melbourne, as well as the independent evidence from the school that the children attended and which the mother did not address in her evidence.
Thus, I rhetorically ask, what evidence of the mother was the primary judge to take at its highest? For example, if he took the evidence of the mother given when the orders were made, he could not take the evidence that she was now presenting at its highest. The mother, in that evidence sought to explain her position at the time the orders were made, but plainly that could not provide the answer to this rhetorical question; indeed, it further complicated the issue.
In her Summary of Argument the mother identified the specific instances of where she says her evidence was not taken at its highest, and I turn to address each of those instances seriatim, referring to the paragraph of his Honour’s reasons, in the same way that the mother did in paragraph 12 of her Summary of Argument:
Paragraph [39] (second sentence)
His Honour was entitled to proceed on the basis of what the mother’s application and affidavit filed at the time of the making of the orders revealed. His Honour was not able to resolve the obvious inconsistency between that evidence of the mother, and her attempts to explain that evidence away. In any event his Honour was ultimately entitled to take into account what the 2015 material revealed in determining whether there was a sufficient change of circumstance since then to warrant a reopening of the litigation.
Paragraph [39] (fourth sentence) and [54]
I make the same comment here. It was highly relevant that in 2015 the mother made no allegation of family violence against the father, or indeed any allegation that he failed to take responsibility for the care of the children.
Paragraph [47]
It was open to his Honour to compare the evidence of the mother as it appeared in her own affidavit, and his Honour accepted what the mother said in both paragraphs. Again that evidence was highly relevant to whether there was a sufficient change of circumstances.
Paragraph [83]
To take the mother’s evidence at its highest, the evidence has to be able to be taken into account. To make the generalised assertion that there had been “ongoing difficulties in the children being available at the scheduled time” without deposing to those difficulties, and then saying that she “discovered” things “afterwards” without identifying the source of those discoveries, is not evidence that can be given any weight, and particularly in considering whether there was a sufficient change of circumstances.
Paragraph [84] (second sentence)
That is no “frolic” of his own, and is a finding entirely consistent with taking the mother’s evidence at its highest. It is plain from the mother’s own evidence that she has been “actively pressing for the children to live with her for a number of years”.
Paragraph [84] (third sentence)
Again, this is an observation that is entirely consistent with taking the mother’s evidence at its highest. She has clearly been looking to the psychologist, DHHS and the police “to provide an evidential basis to make an application”.
Paragraph [84] (fourth sentence)
There is no error of fact here. There is no evidence that the police “recommended any intervention with this family”, and I will address this in detail when I come to consider Ground 4. Certainly, it is not an example of his Honour failing to take the mother’s evidence at its highest.
Paragraph [85]
Again, this generalised submission is without merit. It must be remembered that this paragraph is in that section of his Honour’s judgment where he sets out his reasons for finding that the evidence does not provide a sufficient basis for the litigation to be reopened. It does not reveal or demonstrate that his Honour failed to take the mother’s evidence at its highest. Indeed, the challenge to his Honour’s conclusion could only be on the basis that it was not open to his Honour on the evidence before him, including taking the mother’s evidence at its highest, and I am not prepared to make that finding.
Paragraph [87]–[89]
It is entirely unclear how the submission here relates to a claim that his Honour failed to take into account the mother’s evidence at its highest. Indeed, the submission seems to be that his Honour’s consideration of the financial circumstances of the parties had at best only marginal relevance to what his Honour had to decide. That is quite a different complaint.
It is a proposition with which this Court agrees, but it does not sound in appellable error by his Honour. His Honour repeats the evidence of the parties as to their finances and what they each pay for or in relation to the children, but his Honour is certainly not saying that it would not be in the best interests of the children to reopen the litigation because one or both of the parties could not afford it.
Paragraph [90]
Again, it is unclear how this paragraph reveals that his Honour failed to take the mother’s evidence at its highest. His Honour identifies that the mother made her health an issue at the time the original orders were made, and also correctly identifies that the mother has not provided any independent evidence of her current health.
Paragraph [91]
This is a contention that is misconceived. By his Honour identifying the possible effects on the children of lockdowns brought about by the global pandemic, his Honour is not saying that can explain the views of the children. His Honour is merely stating the obvious, and it is not inconsistent with taking the mother’s evidence at its highest.
Again, this paragraph provides an aspect of his Honour’s reasons as to why it would not be in the best interests of the children to reopen the litigation. His Honour identifies the concerns that COVID-19 creates for the matter and for the parties.
In summary, none of these “examples” reveal or demonstrate appellable error by the primary judge.
The mother then identifies in her Summary of Argument “important parts of [her] evidence” to which his Honour made no reference, and which he should have if he was taking her evidence at its highest (see paragraph 13 of the mother’s Summary of Argument).
The first thing to note is that the requirement is to take the mother’s evidence at its highest, and not to refer to every piece of evidence presented by the mother.
That provides the answer to four of the five examples identified by the mother in this respect, and nothing more needs to be said.
With the other example, namely his Honour not taking into account when considering the evidence of third parties, the children’s alleged fear of disclosing to third parties the father’s behaviour, that does not reveal a failure by his Honour to take the mother’s evidence at its highest; that was not the mother’s evidence that I could see.
There is no merit in this Ground of appeal.
Ground 3
The primary judge misdirected himself as to the purposes and function of a family report and that misdirection had the effect that no adequate consideration was given to matters that were required to be considered to determine what was in the best interests of the children.
It is unclear whether this is a complaint that his Honour erred by not ordering a family report, or that his Honour erred in not considering all of the factors that are relevant to assessing what is in the best interests of the children. I will proceed on the basis that it is both.
The first thing to note is that although there is no doubt that the rule in Rice & Asplund is a “manifestation of the best interests principle” (SPS & PLS (2008) FLC 93-363 at [48]), his Honour’s task under the rule was to determine whether there had been a significant change in circumstances since the initial order was made such that it would be in the best interests of the children to reopen the litigation. That process involves the weighing of the significance or sufficiency of the changes against the potential detriment to the children caused by the litigation itself. That potential detriment extends to all that would be involved in reopening the litigation, including the exercise of obtaining a family report.
The application for a family report here was wide-ranging and far-reaching. The mother sought that the report address the following matters:
(a)the parties’ respective applications;
(b)the appropriate parenting arrangements for the children in the immediate and long term;
(c)the matters set out in s 60CC of the Act, and particularly, but not limited to, the children’s views and any risk to the children associated with family violence or exposure to family violence; and
(d)any other matters considered relevant by the family report writer.
In my view the place for such an extensive report is not at the stage of the preliminary hearing, but at the trial that would follow a finding of sufficient changed circumstances to warrant that trial to occur.
To involve the children in such a process before it has been decided whether the litigation should be reopened, is putting the cart before the horse, and raises the spectre of the potential detriment to the children that the rule in Rice & Asplund is designed to avoid. Thus, the application had to be dismissed in the context of the primary judge finding that there had not been a sufficient change of circumstances to warrant reopening the litigation.
However, it is not apparent that that is how the primary judge dealt with the application for a family report. The mother is correct in submitting that his Honour only spoke of a family report being required to ascertain the views of the children (at [19] and [80]). Nevertheless, that is an error without consequence.
His Honour addressed the application for a family report in the context of his consideration of whether there was the necessary sufficient change of circumstances (at [80] – [95]).
In that context, his Honour found that it was unlikely, on the material filed by the mother that the Court would make the orders sought by her (at [82]). His Honour said this at [92]:
I accept that a skilled and experienced family consultant may be able to factor these particular circumstances into an assessment, however significant concerns remain for the Court. It is pivotal to my decision that the mother’s application is so significant. Drawing on what was said in Marsden at [47], given the history of the matter and the evidence filed, I think it unlikely that the Court would make the orders sought by the mother even if both children expressed to a family report writer the view that they both wanted to live with the mother. In those circumstances, I consider that the interests of the children are more powerfully served in dismissing the mother’s application at this stage rather than allowing it to proceed. It may of course have been a different matter if the mother had relocated to Melbourne and the proposed change of arrangements were not so dramatic.
This Court finds no error in that conclusion.
Thus, it is not to the point to submit, as the mother does, that his Honour gave no consideration to the wider and more far-reaching aspects of the application for a family report. It is readily apparent that if his Honour did, he would have been even less inclined to grant the application.
In any event, and to repeat, to grant such a far-reaching application in this case would defeat the purpose of the rule in Rice & Asplund.
There is no merit in this Ground of appeal.
Ground 4
In relation to the respondent’s family violence the primary judge erroneously found that “the Police do not recommend any intervention with this family” (reasons at [84]).
As can be seen, the complaint here is that his Honour’s observations were contrary to the evidence. That complaint is rejected.
There are three pieces of evidence identified in the mother’s Summary of Argument that are relied on to found this complaint (see paragraphs 19 – 21 of the mother’s Summary of Argument).
The first is the Victoria Police noting in relation to an incident in November 2018:
DHHS making referrals re – support for father.
However, this can be discounted because it is not a “recommendation” by the police, and it is not an “intervention”.
The second is an entry by Victoria Police in relation to an incident in April (not June as suggested) 2019:
A/H CP NOTIFIED AND WILL COMPLETE APPROPRIATE REFERRALS
Again, this is not a “recommendation” by the police, and it is not an “intervention”. Indeed, it is entirely unclear what is being referred to.
The third is an entry by Victoria Police in relation to an incident in February 2020:
RESP SPOKEN TO ON PHONE, ACKNOWLEDGED INCIDENT AND TAKING NEWS AS ‘A WAKE UP CALL’. AGREED TO ENGAGE WITH RELEVANT AGENCY.
Once more, this is not a “recommendation” by the police, and it is not an “intervention”.
This Ground of appeal fails.
Ground 5
The primary judge made findings that had no proper evidentiary foundation including:
(a)that “the mother has been actively pressing for the children to live with her for a number of years” (reasons at [84]);
(b)that an “aspect” of the mother’s engagement with agencies was “to provide an evidential basis to make an application” (reasons at [84]).
I referred to these claims when addressing Ground 2, and I do not need to repeat all that I there said. Suffice to say these observations by his Honour were soundly based on the evidence, or at the very least on inferences that could legitimately be drawn from the evidence that was before his Honour. I refer in particular to the independent third party evidence such as the Victoria Police records.
There is no merit in this Ground.
Ground 6
The primary judge took into account matters that were irrelevant to the evidence and/or the issues before him including:
(a)the parents’ “financial capacity to afford the litigation” (reasons at [87]). and
(b)“the current circumstances arising from COVID-19” (reasons at [91].
Again, I addressed these complaints when considering Ground 2 and I will not repeat what I there said.
There is no merit in this Ground.
CONCLUSION
Having found no merit in any of the Grounds of appeal the appeal must be dismissed.
APPLICATION IN AN APPEAL
I have not needed to address the Application in an Appeal filed by the mother on 23 December 2020 seeking to adduce as further evidence the contents of her affidavit filed on the same date. That is because that evidence is nothing more than updating evidence deposing to alleged events occurring subsequent to the date of the orders the subject of the appeal. Thus that evidence certainly could not be received in order to demonstrate appellable error by the primary judge. The only possibility of it being received would have been if the appeal was allowed and this Court determined to re-exercise the discretion. However, as can be seen that is not the outcome of the appeal. Accordingly, the application must be dismissed.
COSTS
At the conclusion of the hearing of the appeal the father, who appeared without legal representation, sought an order for costs if the appeal was dismissed. He had had advice and assistance from a firm of solicitors in responding to the appeal, but his Schedule of Costs filed on 4 February 2021 was inadequate, as was the Schedule filed by the mother on 5 February 2021. Accordingly, an order was made on 11 February 2021 providing for each party to file and serve an amended Schedule of Costs within seven days. The mother complied with that order, and the father did as well, albeit slightly late.
The total amount of costs sought by the father is $5,794.84. However, I am not satisfied that all of the work done, or all of the disbursements claimed, were necessary. Thus, I propose to make an order pursuant to r 19.18(1)(a) of the Family Law Rules 2004 that the mother pay the father’s costs fixed in the sum of $4,400.
I note that at the hearing of the appeal the mother’s counsel indicated that if the appeal was dismissed the mother could not oppose an order for costs being made in favour of the father.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 29 July 2021
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