Barrett and Barrett & Anor - [2017] FamCAFC 4

FAMILY COURT OF AUSTRALIA

BARRETT & BARRETT AND ANOR

[2017] FamCAFC 4

FAMILY LAW – APPEAL – CHILDREN – Where the appellant challenged the alleged restriction on his relationship with the children and the orders for time spent – Where the appeal is opposed by the respondent and the Independent Children’s Lawyer – Where the appellant’s grounds of appeal lack particulars and the asserted errors cannot be discerned – Where the trial judge applied the relevant sections of the Family Law Act 1975 (Cth) and gave adequate reasons for her decision – Where the appellant was unable to demonstrate that the trial judge erred in the exercise of her discretion – Where there is no merit in any of the grounds of the appeal – Where the appeal is dismissed.

FAMILY LAW – COSTS – Where no order is made as to costs.

Family Law Act 1975 (Cth) - ss 60CC, 65DAA

Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
Fox v Percy (2003) 214 CLR 118
Gronow v Gronow (1979) 144 CLR 513
Hall and Hall (1979) FLC 90-713
House v The King (1936) 55 CLR 499
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76
McCrossen and McCrossen (2006) FLC 93-283
Monie & Ors v Commonwealth of Australia (2005) 63 NSWLR 729
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Simmons and Anor & Kingsley (2014) FLC 93-581
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Ors (1999) 160 ALR 588
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT:

Mr Barrett

RESPONDENT:

Ms Barrett

INDEPENDENT CHILDREN’S LAWYER:

Ms Sinclair

FILE NUMBER:

CSC

379

2013

APPEAL NUMBER:

2015

DATE DELIVERED:

3 February 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Strickland & Kent JJ

HEARING DATE:

2 August 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 September 2015

LOWER COURT MNC:

[2015] FCCA 2584

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person (via videolink)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sinclair Family Law

Orders

The appeal be dismissed.
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 Barrett & Barrett and Anor 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 BRISBANE

Appeal Number: NA 74 of 2015
File Number: CSC 379 of 2013

Mr Barrett

Appellant

And

Ms Barrett

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 15 January 2016, Mr Barrett (“the father”) appeals against parenting orders made by Judge Willis on 25 September 2015.
The orders appealed provide for the parents to have equal shared parental responsibility, for the children to live with Ms Barrett ("the mother") and spend time with the father. The time provided is from the conclusion of school on Wednesday to the commencement of school the following Monday in alternative weeks and for half the school holidays. In addition provision was made for time with the children on special occasions; provide for communication between the children and father when the children are in the mother's care and vice versa; place a variety of restraints on the father interfering with the mother's time and relationship with the children; provide that the father ensure his property at which the children will stay meets council regulations; enable a copy of the orders to be provided to the children's school and medical practitioners; and enable the parents to attend the children's extra-curricular activities. As identified subsequently in these reasons, at the hearing of the appeal the father explained that his main objection was to restrictions on his relationship with the children and that the orders should have provided for equal time.
The appeal is opposed by the mother and the Independent Children’s Lawyer (“ICL”).

Brief Background

The mother was born in 1973 and is currently aged 44 years.
The father was born in 1968 and is currently aged 48 years.
The parties commenced cohabitation in 2004.
They married in 2006.
The father is a medical professional and the mother is a health care professional.
There are three children of the marriage; A born in 2006, B born in 2008 and C born in 2010 (“the children”).
The parties separated in September 2011 while living under the one roof. The mother moved out of the home with the children in November 2011.

Summary of the Trial Judge’s Reasons for Judgment

The grounds of appeal relied upon by the father, who represented himself on the appeal, state broad conclusions so lacking in particulars that the actual error or errors asserted cannot be discerned. As such, these are not proper grounds of appeal. However, we will indulge the father by starting with a detailed summary of the reasons of the trial judge to emphasise the extent to which the trial judge addressed all of the issues raised by the parties, and particularly the father. This process enables us to consider the father's fundamentally flawed grounds of appeal on the most generous (to the father) interpretation of them.
Judge Willis commenced her reasons for judgment by providing an introduction to the matter. Her Honour explained that the “parents in this matter are intelligent, loving parents”. Further, “[e]ach of them is articulate and unquestioningly each adores their three children”. However, her Honour noted that the father had strong views about the “Family Court” and his “entitlement as a father to 50:50 time with the children”, as well as his “strong views about the injustice of the child support system”. Despite this, her Honour found that in “so many important respects these two parents have cooperated to do whatever was necessary to enable their children to have fulfilling lives” (at [1] – [6]).
Her Honour then noted that she had considered the relevant evidence, the s 60CC of the Family Law Act 1975 (Cth) (“the Act”) factors and the best interests of the children.
Next, her Honour turned to consider the evidence. First, her Honour found that the “father lives in a degree of domestic chaos”, especially “compared to the mother who has a much more ordered existence for herself and the children” (at [10]). Her Honour then accepted that the children “have responded well to an order which provides for them to live in two block periods rather than changing every two or three days” as was previously the case (nine days with the mother and five days with the father). Her Honour found that in “terms of their respective capacity it is not difficult to conclude that the mother has the superior ability to raise three children in a stable, safe and ordered living arrangement” (at [11]). However, her Honour noted that there was “no suggestion that either party has caused physical harm to the children, or that the children have been exposed to domestic violence” (at [13]).
Her Honour then detailed her disappointment with the ICL and her role in the proceedings, and summarised the views, concerns and proposals of the parties and the ICL.
Next, her Honour considered the legal principles applicable in the matter. Her Honour cited Part VII of the Act, and in particular ss 60CC and 65DAA(1).
Her Honour then turned to the witnesses in the matter. In relation to the mother, her Honour explained that the mother was “sensible, pragmatic, child focused, calm and measured” and was “always willing to acknowledge the father’s contributions or correct a statement to make sure that acknowledgement was made of the father’s efforts”. Her Honour explained the distress the mother suffered throughout the trial and found that she was “satisfied that the mother has complied with her parental obligations to support and maintain the children”, often without financial assistance from the father. Her Honour also considered that the mother’s complaints about the father and his home were “validated by the facts” (at [40] – [47]).
Her Honour rejected the father’s claims that he was unable to afford suitable accommodation and found that his behaviour in relation to this issue “reflects poorly on the maturity and responsibility of the father as a parent” (at [48] – [49]).
As to child support, her Honour found that the father was not prepared to work to provide for the children and was “content to leave the financial support to the mother when making his lifestyle decisions about how much physical work he will do each week”. Her Honour explained that the father at one stage “had significant [child support] arrears of $10,000” and that he was “failing his children in this respect” (at [50]).
Her Honour then explained that the father had been “telling the children long before Court commenced, back at least four years ago, that he thinks a 50:50 time split with the mother is fair”. This occurred at a time when the children were approximately aged four, three and six months. In this regard, her Honour noted that the father did not acknowledge the damage which could be caused to the children by this behaviour until trial when it was explained that they could “feel wedged between the two people they love the most” (at [51]). Similarly, her Honour explained that the father had engaged the children in conversations about the government and the child support system and found that “[I]t [was] a tragedy that these three children have been subjected to the issues which the father feels strongly about and which have played out with the children being critical of the mother”. Her Honour was critical of the father’s ability to parent in this regard, particularly as this behaviour had the effect of “undermining the children’s relationship with the mother” (at [52]).
On the other hand, her Honour explained that the mother “has always encouraged the children’s relationship with the father, at times almost to her detriment”. This has included the father coming to visit the children during her time with them. Further, her Honour noted that the father rings the mother frequently asking to visit or speak to the children and that sometimes he “has also taken to asking the children if they would like him to come over directly either on the phone or when they are with him” without informing the mother about the arrangements. Her Honour found that in the father “fails to show any insight into the ramifications of his conduct, which is self centred” and which places the mother in a compromising position (at [53] – [54]). The mother sought orders somewhat restricting the father’s behaviour in this regard.
Her Honour then noted that the parents have different parenting styles. Her Honour provided examples which demonstrated this difference. The father asserted that he had attempted to improve the parenting issues the mother had been critical of; this was accepted by her Honour (at [57] – [58]). Her Honour noted the mother’s concerns in relation to the father’s accommodation for the children (at [59]). Her Honour then said:
60.Overall the mother has in my view shown an abundance of patience in dealing with the father’s immaturity whilst at the same time ensuring that the children have the opportunity to have a loving relationship with the father. Her requests for the father to place as much importance on the children’s safety in and around the shed, as he does on having fun with the children, are entirely reasonable.
Next, her Honour considered the evidence of Ms K, the mother’s best friend. Her Honour found that Ms K was “not particularly a good witness, in that, she did not recall dates and times very well” and her Honour was not “particularly persuaded” by her testimony that the children seemed “unsettled for a period of days” after spending time with their father (at [61] – [62]).
Her Honour then turned to the evidence of the father. Her Honour explained first that the father is “loving and fun” and is a “qualified medical [professional] and has a very responsible position”. Her Honour also noted that he has “a variety of interests which seem to be continually unfolding”. On the other hand, her Honour noted that he was “forgetful and disorganised” and had fallen into arrears of $10,000 for child support, which he had paid back by the time of trial (at [63]). Her Honour discussed examples of the father’s parenting and explained that although he is “creative … and fun loving”, he does not “have the same parenting skills as the mother nor does he have the same organisational skills”. Further, her Honour considered that he “does not show sufficient responsibility when it comes to his capacity to parent” and that he wants to “be one of the children or their best friend, rather than be an authority figure” (at [64] – [65]).
Her Honour then explained that the father’s “behaviour towards the mother has been regrettable and hurtful” at times. Her Honour discussed an example of this behaviour, being when the mother reported sighting cannabis growing on the father’s property and in retaliation the father reported “the mother for alleged Centrelink fraud, going back ten years” (at [66]). Her Honour found the father’s complaints about the mother to the Department of Child Safety to be “vexatious and self interested” (at [67]).
As to the father’s message to the mother’s phone “addressed to the children” complaining about the mother not allowing him to come over for a visit, her Honour found that this was “another example of the father’s willingness to involve the children in parental matters through manipulation, and highlights the lengths the father is prepared to go to in order to achieve what he wants, regardless of the effects on the children or the mother”. Her Honour considered this behaviour a “very poor exercise of parental decision making” (at [68]).
Her Honour then said:
69.I am satisfied that the father can be vindictive at times and it is most regrettable that an otherwise loving father has stooped to these measures. This behaviour in my view reflects very poorly on his capacity to parent and his attitude towards parenting. The mother has it seems to me put up with constant intrusions from the father almost daily at times, whether by phone or visits over and above the time the Court set out in Court Orders. The father has a sense of entitlement that every time he has an opportunity to see the children, they ought to see him.
70.The mother has been remarkably patient. The father has breached Court orders when he felt like doing it. The father decided that “he just had to move back into the shed” and that the children would stay with him overnight, despite being ordered by this Court not to do so. The father is most determined to have what he says are “his rights” even to the extent of ignoring Court orders to do so. His apologies to the Court at the final trial in regard to contravening the Orders are hollow. The father has been doing what he wants to do, whenever he wants to do it.
(Original emphasis)
Her Honour then explained that she was “critical of his attitude and preparedness” to make criticisms and scandalous claims about the mother and was satisfied that he made these claims “for strategic gain”. Her Honour considered that this behaviour “does him no credit” (at [72] – [74]).
Her Honour then turned to the evidence of the father’s drug use. Her Honour noted the evidence as to the drug urine screens taken of the father, and the reasons behind her Honour’s interim reasons and orders in this regard. Her Honour also recorded the father’s evidence in relation to his drug use and his inability to abstain from use in “the shadow of the litigation and the impending trial”. Her Honour noted that the father gave “some rather unfortunate answers” in response and “does not believe he has an addiction”. Her Honour found that the “father chooses to diminish and ignore the risks associated with his regular illegal drug consumption” (at [75] – [81]).
In relation to his drug use through the relationship, her Honour found that the father “played down his cannabis use during the relationship” and insisted that “he did smoke but … was always able to look after his children or do his work”. The father admitted that “the reason he does not drive is because it is going to slow his reaction time and he may harm somebody else” (at [82] – [83]). In relation to the father’s evidence of drug use, her Honour concluded:
84.Whether or not the father now consumes drugs in the presence of the children, I am satisfied that during their relationship when the parties were living together that the father consumed cannabis and that, at these times, it would fall to the mother to be the responsible parent and ensure the children’s safety. I accept the mother’s evidence in terms of the father’s drug consumption during their marriage. A parent who consumes cannabis and has the responsibility of looking after children, whether or not the children are asleep when the cannabis is consumed, is placing children at risk given the parents diminished ability to respond to medical or other emergencies, such as a fire, that could arise with their children. The father accepts that he would not even drive in that state. This is about the only sensible thing he had to say about his own consumption of drugs. What the father fails to realise is that there are children of a very young age who engage in smoking cannabis because of the role modelling of their parents. The role modelling of the father in terms of his willingness to engage in an illegal activity, to acquire an illegal substance and then consume it contrary to the law, is, in my view, a very poor and irresponsible decision on his part.
85.In my view it is simply a matter of time, before these very inquisitive, intelligent children become aware of the father’s cannabis consumption. I am however, satisfied that the father had no part in planting the cannabis plants that were found on the property, though, again, I regard this as an outcome which would never have occurred if the father had a zero tolerance for cannabis.
Her Honour then considered the evidence of Mr R, the father’s friend, as to the father’s drug use and the planting of cannabis on the father’s property. Relevantly, the evidence led to her Honour finding that it was not the father who had planted the cannabis and he was unaware of it having been planted.
In relation to the evidence of the family report writer, her Honour explained that there were many circumstances and factual matters that the family report writer was unaware of and thus some of the questioning of him was “global and generalised” and unhelpful (at [89]). Her Honour then explained that the family report writer “did not wish to get into a value judgment” about the accommodation and employment circumstances of the parties. Her Honour then noted that he was “not aware of all of the evidence regarding drug use” and “had a fairly relaxed view about the use of cannabis” which led him to the conclusion that there was “no evidence that the father’s use of cannabis impacted on the father’s professional ability and that there was no complaint by the children that the father was falling over or acting in a bizarre fashion” (at [90]). This evidence was contrary to that of the expert psychiatrist in the matter.

Her Honour then explained that the family report writer “would not be drawn on any particular arrangements that would suit these parties and said that he did not believe that they had all of the essential requirements to facilitate an equal time arrangement” (at [92]). Her Honour set out what the family report writer considered to be the pre-conditions for sustaining a shared care arrangement and noted his opinion that only a few, if any, applied in this case.
Despite this, her Honour recorded the family report writer’s opinion that there should be a “marginal increase in the number of days or nights the children spend with their father”, though he expressed that an attachment and bond between parent and child “is a matter of how time is spent with the child rather than the quantity of time spent with a child” (at [94] – [95]). The family report writer considered it important for the children to have some contact with their father when they were living with their mother but did not consider that there was “a likelihood of the bond the father has with the children diminishing simply because there is a period of eight or nine days in which the father does not physically have them in his care” (at [96]). The family report writer considered that the 9/5 arrangement was “working very well for the children” (at [97]).
In relation to the child A’s view that 50/50 would be “fair”, the family report writer expressed that at her age of eight years, “developmentally, it is entirely expected that her expression would have a view of what is fair and that most children at this age would make reference to what is fair” (at [98]).
Although the family report writer did not consider there to be any issues as to the father’s drug use and previous compliance with orders and regulations, her Honour rejected this and noted the father’s wilful damage of another person’s property, his continued drug use, and his lack of compliance with court orders.
The family report writer agreed that the father’s complaints about the mother to Centrelink went “to the heart of co-operation and communication” between the parties which would be essential for equal shared care (at [101]).
Next, her Honour considered the evidence of the single expert psychiatrist in the matter. Her Honour explained that he was not required for cross-examination. Her Honour then noted that he had wrongly stated in his report that the father had never been in trouble with the police. Her Honour was not informed throughout the trial as to whether the father had omitted this information or whether the single expert had missed this information, despite requesting the parties to inform her.
The single expert opined that “each of these parents are intelligent, both well educated, both functioning well in life and both have a lot to offer the children” (at [103]). He also found both parents to be “strongly motivated, both reasonably insightful into the difficulties that there are between them and both perfectly capable of looking after children on any basis that the Court sees fit” without “any psychiatric considerations needing to be taken into account” (at [105]). However, her Honour queried whether the single expert had all the evidence in relation to the father’s accommodation, his previous issues with the police and his compliance issues (at [106] – [107]).
In conclusion, her Honour expressed that she accepted the report of the single expert in “terms of his psychiatric observations” (at [111]).
Her Honour then turned to the “primary considerations”. First, her Honour found it was in the best interests of the children to have a meaningful relationship with both of their parents. Her Honour explained that the children “love their parents and spending time with each of their parents” and that each parent has much to offer them (at [112]).
As to the children’s views, her Honour again referred to the conversations the father had engaged the children in and opined that the “views of the children … would need to accommodate their young ages” and the fact that they “have been groomed for years to be supportive of the father’s position”. Thus, her Honour considered that limited weight could be given to their views (at [114]).
In relation to parental capacity, her Honour found that the “mother exercises a higher degree of parental responsibility and capacity to parent than the father” and that the father’s parental capacity was “lacking at times”. Her Honour was not satisfied that the father “has the ability to provide the level of routine, structure and order for these children such that he should be parenting in a week-on week-off situation”.
Her Honour then found that the “mother has the appropriate parental responsibility, attitude towards parenting and capacity to parent” as opposed to the father. Her Honour explained that this did not mean the children did not love the father, but they were unaware of the factors which impacted their best interests in the father’s care. Her Honour noted this was particularly the case in relation to the accommodation available with the father. Her Honour expressed that, though living in the shed was the father’s lifestyle choice, she was “not satisfied that in the long term … there are appropriate private spaces for any of the children”, particularly A who will soon commence puberty. Her Honour was similarly concerned about the children sleeping in the same room as the father and his new girlfriend (see [117] – [119]).
Her Honour accepted the mother’s assertion that the father’s home is not the “most ideal setting to be coming and going from school every day, doing homework, and getting to bed early”. Her Honour commented that the mother’s concerns as to the style of living in the father’s home were understandable, but that the father “does not acknowledge any such difficulties or even the basic difficulties” (at [120] – [121]).
In relation to the youngest child, C, the father argued that he did not have the same level of closeness with him due to his hearing and the fact that he was aged 16 months when the parents separated. Her Honour noted that it was ironic that the father complained of this when he had not “placed as a high priority the need for [C] to have his hearing aid or the little attachment to it always charged, ready for kindergarten or even always present on the days that he presents [C] to kindergarten”. The father “attempted to minimise the significance” of the small device attached to the hearing aid. Her Honour was satisfied this was an important issue for the mother, whereas the father was more “laissez-faire” towards it. Her Honour considered that this “lack of attention to detail” by the father was troubling (at [122] – [125]).
As to the father’s conduct in engaging the children in conversations about the child support system and the mother not allowing him to see them, her Honour considered that this was undermining the mother’s relationship with the children and was “entirely at odds with the father’s assertions that he always has the children’s best interests at heart” (at [126] – [127]).
Similarly, her Honour found the father’s conduct in reporting the mother to Centrelink was “vindictive”. Though the father eventually agreed that the motivation for this complaint was his anger at the mother for reporting the cannabis growing on his property, he asserted that he had dealt with the separation and did not need professional help. Her Honour did not agree. Her Honour also considered that the father’s conduct was illogical in circumstances where he had cooperated with the police by inviting them to discuss the planting of the cannabis with him after discovering who may have planted it. In relation to the mother reporting the father, her Honour did not consider this was “vicious or vindictive” (at [130]).
The father agreed that he was offended by the mother’s response to separation and the circumstances surrounding it. Her Honour did not accept that the mother would not have understood what it meant when the father walked around her and repeated three times the phrase “I divorce you”. Her Honour considered that the father’s conduct in this regard and his complaints about the mother demonstrated “a significant lack of insight into the effects of his own conduct upon others” (at [130] – [132]).
Her Honour again traversed the father’s inability to comply with the law in relation to his cannabis use and council regulations and expressed that the father still did not accept that “in terms of his drug use, he is an appalling role model”. Her Honour explained he was still willing to obtain an illegal substance and consume it and that it would be “naïve to say to the Court, that he does this illegal activity when the children are not around”. Her Honour considered it would “only be a matter of time before the children become aware as they become older that their father engages in the use of an illegal substance” (at [133] – [134]).
In relation to the effect of any changes in the children’s circumstances, her Honour accepted the evidence of the family report writer that “on the mother’s proposal, the time in between the children seeing the father will not have an impact on their relationship with the father”. Her Honour did not accept a meaningful relationship could only be maintained by 50/50 time and expressed it was about the children “spending physical and quality time with the father” (at [136]).
On the other hand, her Honour found that the father’s proposal for week about time would expose the children to “chaos every second week”. Her Honour also noted that this proposal would require good communication between the parties and that this did not occur in circumstances where it was difficult for the mother to call the father due to his phone service and when the father “refuses to read the communication book” (at [137]).
Her Honour then concluded in relation to this issue:
138.The mother’s proposal will have the effect that most of the time, the children will be living in a secure, stable, safe and organised environment. Their physical, safety and emotional needs will be accommodated by the mother. They will by and large get to their commitments such as school, with everything they require, such as lunch. The mother is also totally dedicated to the children having a loving and constant relationship with their father. I am not satisfied that the father is committed to ensuring that the children have an ongoing relationship with the mother, given the opportunities he has taken to belittle her, undermine her role as a mother, and his encouragement to the children that they should have sympathy for the father having to pay child support. Overall, there is a risk to the children maintaining their loving relationship with the mother in the event they have equal exposure to their father and his negative views. His views have included telling the children that if he comes over without the mother’s permission, he will be charged with domestic violence. As I have said elsewhere, the father can at times engage in behaviour that is not at all in the children’s best interests.
As to the practical difficulties of time with the parents, her Honour explained that both parents “live in the broader area of [suburb X], albeit the father’s block is a little way out of town”. However, her Honour explained that this had not “presented problem[s] for the parties” in the past and that the biggest issue was in relation to the father’s home (at [139]).
Her Honour then turned to the issue of parental responsibility. Her Honour noted that each parent sought equal shared parental responsibility and her Honour considered it was “in the children’s best interests to have their long term decisions made by both the mother and father”. Though the parents have different parenting styles, her Honour noted that there was “little to no evidence that they have had disagreements”, other than where the children were to live (at [143]).
Her Honour then explained the need to consider equal time and substantial and significant time. Her Honour commenced this discussion by explaining that the parents had “dramatically different parenting styles”. Her Honour then found that the mother’s parenting style would “enable these children to achieve their full potential in life and accommodate their educational and intellectual needs” but was not satisfied the father had the same ability (at [145]).
Her Honour then referred to s 65DAA(5) of the Act and the requirements therein and noted that the parties “do not have any difficulty in terms of their geographical distance apart” but that there were concerns about their ability “to implement an arrangement for the children spending equal shared time with each of the parents” given their parenting styles and the other issues in these proceedings (at [146] – [147]).
Her Honour noted that the father’s parenting style and attitude meant that his day to day parenting would be “mildly chaotic with confusion reigning supreme on many days” (at [148]).
Her Honour also noted her concern about the ability of the parents to communicate with each other to resolve difficulties which may arise in an equal time arrangement. Specifically, her Honour again explained the significant difficulties faced by the mother when trying to contact the father by phone due to his telecommunication service on the block. Her Honour explained that excellent communication was essential for an equal time arrangement.
Due to the age of the children, her Honour did not consider that the “father has the ability to properly work in a fifty-fifty parenting relationship or provide a consistency of parenting and fulfil his parenting obligations required in such an arrangement” (at [150]).
Her Honour explained that if such an arrangement was instituted, she feared the mother would be “left to … fix up the father’s shortcomings”. This problem was exacerbated by the fact that the father agreed that it is his “habit not to read the communication book intended to allow communication between the parents” and that he would only read it if the mother sent him a text telling him to do so. However, when questioned on this topic, the father claimed that he had never read the communication book. Her Honour explained that it was “this exasperating and immature side of the father’s behaviour and obvious unwillingness to actively participate in good communication, which causes the Court to be satisfied that the father does not have the ability to effectively cooperate in co-parenting” (at [151] – [152]).
Thus, her Honour found it was not in the children’s best interests nor was it reasonably practicable for the parents to have an equal time arrangement. In support of this, her Honour summarised her findings in relation to the parenting styles of the parties and the issues surrounding the father.
Her Honour then turned to substantial and significant time and noted that the mother’s proposal offered this as the limit in terms of the father’s practical ability to care for the children and in terms of the children’s ability to manage. Her Honour then found that this arrangement proposed by the mother would “enable [the children] to have a meaningful relationship with both parents” and that it was in their best interests as it would provide “stability which will advance their overall general wellbeing whilst enabling them to have a meaningful relationship with the father” (at [156] – [157]).

Grounds of Appeal

The father relied on the following grounds of appeal:
1.The trial Judge erred by failing to give adequate reasons for Judgement [sic]
2.The trial Judge failed to provide procedural fairness
3.The trial Judge made incorrect findings of fact and findings contrary to or against the weight of the evidence
4.The trial Judge wrongly exercised her discretion
5.The trial Judge violated the children’s & the father’s Human Rights (s [unknown] FLA)
6.The trial Judge favoured “what the mother was entitled to”, rather than “the views of the children”.
However, in oral submissions the father indicated that Ground 2 was the principal issue for him, and further that the major complaints that he had about the orders made by the trial judge were as follows:
a)Her Honour should not have made orders 13(a) – (e), (h). They provide as follows:
(13) The Father is restrained from:
(a)Attending at the Mother’s residence, without obtaining her prior written consent to do so;
(b)Attending at any location or function where the mother and children are attending during the Mother’s time she has with the children pursuant to these Orders, save and except that the Father is permitted to attend activities organised by the school which all parents are invited to, or to the children’s sporting or extra-curricular activities, subject always to the discretion of the school authority or organising body;
(c)Communicating with the children in any way, apart from what is provided for in the terms in these Orders;
(d)Discussing or requesting any extra time with the children, (including any variations to these Orders) over and above the time provided for in these Orders or any extra activities or engagements of any kind intended to occur in the Mother’s time pursuant to these Orders directly with or in the presence or hearing of the children;
(e)Inviting the children to any future events, activities or possible opportunities to spend time with him, outside of the terms of these Orders (including any variations to these Orders) without first discussing the proposal with the Mother (which is not to occur in the presence or hearing of the children) and obtaining her prior written consent to raise the issue with the children and FURTHER the Father is restrained from discussing with the children, the fact that he has discussed such proposals with the mother and she has not agreed to such proposals, or his disappointment about the mother’s refusal;
…
(h)Discussing his child support obligations or any aspect of his child support with the children or their living arrangement, or this litigation.
The father indicated to us that he no longer had any difficulty with Orders 13(f) and (g), and he does not challenge Order 14 which set out the conditions which the father’s time with the children was subject to.
b)Her Honour should have made orders providing for equal shared time, namely week and week about.
We will concentrate on these issues in addressing the appeal, but given the breadth of the second complaint above, it will still be necessary to deal with all of the grounds of appeal, but some to a lesser extent than others.

Discussion

Ground 1 - The trial Judge erred by failing to give adequate reasons for Judgement [sic]

This is a confusing ground of appeal, in that first, it is unclear if the alleged lack of reasons relates to Order 13 (given Order 14 is no longer under challenge) or generally to the orders made by her Honour, and secondly, under this ground the father also complains that “the facts relied on by [the trial judge] were either incorrect or contrary to the evidence or against the weight of the evidence”.
Fortunately, with the first issue, that is easily addressed, in that whatever orders the father seeks to target, we are satisfied that her Honour gave adequate reasons for those orders and for the findings that she made.
The principles applicable to a challenge to the adequacy of reasons for a discretionary judgment are well established and often repeated by this court (e.g. see Bennett and Bennett (1991) FLC 92-191). In short, the path that the trial judge took to arrive at his or her conclusion must be apparent from the reasons. As can be seen from the extensive review of her Honour’s reasons set out above, her Honour left no stone unturned in not only providing her reasons for making Order 13, but also for making all other orders.

As to the second issue, the father highlights parts of the evidence of the family report writer and the single expert psychiatrist, and submits that her Honour’s findings are inconsistent with that evidence and/or her Honour failed to give adequate weight to that evidence.
It is not open to the father to challenge her Honour’s findings by cherry-picking the evidence of the two expert witnesses, and suggesting inconsistency. Unlike those two witnesses, her Honour had the task of taking into account all of the evidence that was before her, including the evidence of those witnesses and arriving at a decision which is in the best interests of the children. In that regard it is instructive to recall what the Full Court said some time ago in Hall and Hall (1979) FLC 90-713, and which still holds true today (see Simmons and Anor & Kingsley (2014) FLC 93-581, at [42]). Their Honours made the following observations about the evidence of a family consultant who provided a report to the court (at page 78,819):
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
…
These observations resonate here (e.g. see [89] – [91]).
In any event, there was ample evidence given by those two expert witnesses in this case which supported her Honour’s decision (e.g. see [92] – [93] and [97]). Moreover, her Honour’s orders were generally consistent with the recommendations of the ICL.
Insofar as the complaint in this ground is a weight challenge, it also cannot succeed. It is unnecessary to repeat the well-known principles governing such a challenge. Suffice to say that what needs to be established is that in the absence of the trial judge acting on a wrong principle, the trial judge reached a conclusion that was plainly wrong, her decision being no proper exercise of her discretion. Further, it is never enough, even if it be the case, that an appellate court would have reached a different conclusion when no error of law or mistake of fact is present (Gronow v Gronow (1979) 144 CLR 513 per Stephen J, page 519-520; CDJ v VAJ (1998) 197 CLR 172 per Kirby J at page 230).
Here, it has not been demonstrated that in making her findings set out in detail above, the trial judge has acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts, or failed to take into account some material consideration (see House v The King (1936) 55 CLR 499 at pages 504 – 505). Thus, for this court to find that her Honour was plainly wrong in the exercise of her discretion, we would only be doing so on the basis that this court would have reached a different result on the same facts, and that can never be sufficient.

Ground 2 - The trial Judge failed to provide procedural fairness

It seems there are three issues raised by the father here:
a)Her Honour made the restraint orders of her own motion without seeking submissions from the parties or the ICL;
b)Her Honour took seven months to deliver her judgment;
c)Her Honour failed to address the father’s concerns about the interim orders made on 18 October 2013.
As to the first issue, the father is quite incorrect in suggesting that no application was made for any of the restraint orders. During the final address of the counsel for the mother, she handed up a set of orders sought by the mother which included some of the restraint orders ultimately made by her Honour (transcript 26.02.15 p 324). Further, during his address the father made submissions in relation to those orders sought (transcript 26.02.15 p 329 – 330), and he thus had that opportunity to put his position in relation to them.
In any event, these were orders that related to issues the subject of extensive evidence during the course of the trial, namely the effect on the children of the illegal drug taking by the father, the father discussing with the children his child support obligations and their living arrangements, the father attending at the mother’s home and other places where the mother and the children are during the mother’s time with the children without the mother’s consent, the father communicating with the children when he is not entitled to under the orders of the court, the father requesting extra time with the children during the time they are with the mother, inviting the children to activities without the consent of the mother to speak to them (see for example her Honour’s reasons for judgment at [13], [14] and [15]). Thus, again, the father had ample opportunity to address these issues and there can be no lack of procedural fairness as a result.
With the second issue, that is a complaint that also cannot succeed. It is well settled by authority that delay itself is not a basis for appellate intervention. Error must still be established, but delay can assist in establishing error. For example, in Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76, Giles JA, with the concurrence of Hodgson JA and Young CJ in Equity said this:
[123]…Delay is of course undesirable, and is contrary to the public interest in the prompt resolution of disputes. But delay, however undesirable, does not itself mean that on appeal a different result is substituted or a new trial ordered … What must be considered is the effect of the passage of time on the quality of the decision-making, including the perception of an effect. The label of delay adds little.
(Also see Monie & Orsv Commonwealth of Australia (2005) 63 NSWLR 729, McCrossen and McCrossen (2006) FLC 93-283, and Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17)
Here, the delay was seven months, and the father submits that that delay “allowed her Honours preconceived opinion about the father to influence her Judgement [sic] and discretion”. Further, it resulted “in the children’s wishes not being given adequate weight; and the mother’s entitlements rather [sic] the Best interests of the Children being given paramount consideration”. However, we were not taken to anything in the record by the father which demonstrated those alleged effects of the delay, and that is why there can be no merit in this complaint.
In relation to the third issue, the orders of 18 October 2013 are not, and cannot be, the subject of this appeal, but the complaint appears to be that the trial judge did not “consider or address the father’s concerns” about those orders. That of course does not raise any issue of procedural fairness, but the father attempts to bring that in on the basis that there was a lack of procedural fairness (as well as incorrect findings), by the trial judge in relation to those orders.
The answer to that complaint is that her Honour was then hearing the trial itself and determining the issues in dispute on the basis of the evidence presented at that time, and the submissions of the parties and the ICL. In that context her Honour did not need to “consider and address the father’s concerns” about the interim orders. Further, it is not incumbent on a trial judge to address every argument or refer to every matter raised by the parties in their respective cases (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62]). A trial judge needs only to address matters that are relevant and necessary for him or her to address in order to provide adequate reasons for the decision (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378). Any concern the father had about interim orders plainly are not in that category.

Ground 3 - The trial Judge made incorrect findings of fact and findings contrary to or against the weight of the evidence

There are a number of findings challenged here, and we will address them seriatim:

Evidence of “grooming”

This is a submission by the father that lacks any substance. He says that there was no “compelling evidence of grooming” of the children to be supportive of the father, but all he does to support that claim is to quote what the trial judge in fact found. Thus, there is no basis here for this court to find error by the trial judge.

The inability of the parties to communicate

Again, the father falls into the trap of relying just on one particular piece of evidence by the single expert psychiatrist which can be read as indicating the parties are able to communicate. However, to repeat, the task of the trial judge is to assess the entirety of the evidence, and as such, it is readily apparent that her Honour was correct in her findings in this regard (at [148] – [152]).

The father’s lack of ability to provide the level of routine, structure, and order to parent in a week off, week on situation, and the father’s undermining of the mother

As can be seen from her Honour’s reasons detailed above, there was ample evidence to lead her Honour to make these findings, and the father’s complaints are without justification. Once more the father seeks to rely on discrete statements by the family report writer, but those statements are far from definitive, or indeed relevant, and do not demonstrate error by the trial judge.

The father’s lack of respect of the mother in her role as a mother

The submission by the father is that there was no evidence from either of the expert witnesses to support this finding, but again the father misconceives the role of the trial judge. This finding is her Honour’s perception based on the evidence that was before the court, and as such was plainly open to her.

The lack of financial support by the father

This is another confusing submission by the father. Importantly, there can be no denying that the father decided to reduce his working hours, and at one stage had child support arrears of $10,000. Her Honour was appropriately critical of the father for this, and this was the basis for her Honour’s finding. Thus, there is no error by the trial judge here.

The “inaccurate” weight placed by her Honour on the “inaccurate or misleading” evidence led by the mother about the father’s drug use

Again, this is a confusing submission. The father makes a comparison between the reasons for the interim orders made on 18 October 2013 and the reasons given on 25 September 2015, and submits that in the latter her Honour replaced or forgot the earlier reasons.
Frankly, that complaint is not apparent to us from the record, and we can see no relevant error by the trial judge here. In any event, that claim does not go to establish that her Honour’s findings as to the father’s drug use on the evidence before the court were wrong, or that the weight placed on that evidence was not justified.

The mother presented “inaccurate or misleading evidence” about the shed where the father resided, and that evidence was given “inaccurate weight” by her Honour

First, we are not persuaded that the evidence of the mother was “inaccurate or misleading”, and secondly it is plain that that evidence was highly relevant to her Honour’s decision and required to be afforded great weight. Simply because the father says evidence was inaccurate or misleading, does not make it so.

The “wrong” weight was given by her Honour to the mother’s “long and vexatious affidavits and statements”

This submission relies entirely on the validity of the claim by the father that the mother’s affidavits and statements were vexatious. However, no basis has been established by the father for that claim. Further, her Honour, as any trial judge is, was uniquely placed to assess the credit of the parties, and to accept the evidence of the mother in preference to that of the father where there was a conflict (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Ors (1999) 160 ALR 588 at [90]; Fox v Percy (2003) 214 CLR 118 at [23]).

The facts relied on by the trial judge were “incorrect”, “contrary to the evidence”, or “against the weight of the evidence”

The only example of these claims provided by the father in his written submissions was in relation to the respective criminal histories of the parties. The father makes the bald statement that his history was “wrongly exaggerated” and the mother’s was “ignored”. There is no detail provided of these claims, and in particular we were not taken to anything in the record that would support them. Thus it is impossible for this court to find error in that regard by the trial judge.

Insufficient weight given to the children’s wishes (section 60CC(3)(a), (c), (ca) and (d))

This is another weight challenge, and we need not repeat what we have said above about what needs to be established to succeed with such a challenge.
The father relies primarily on comments made by the eldest child A, who was eight years of age at the time, to the family report writer, following the interim orders made on 18 October 2013. The father says that these comments indicate that the restraints now placed on the father by the trial judge in relation to him seeing and communicating with the children outside of what is allowed under the orders, will adversely affect them. There is of course no direct evidence, expert or otherwise, to substantiate that, but in any event, her Honour said this about the views of the children, and particularly A:
98.In terms of the children’s views and [A’s] expression that it would be fair to have 50:50, Mr [P] noted that at [A’s] age of eight turning nine, developmentally, it is entirely expected that her expression would have a view of what is fair and that most children at this age would make reference to what is fair.
…
114.The views of the children have been canvassed in the Family Report. The evidence that the children have been having litigation based conversations with the children for years now, is compelling. The father has been using his position of influence as the children’s father to sway the children to feel sorry for him having to pay child support and he has been instilling in them the fairness and his strong desire for equal time for about four years. The views of the children, aged 8, 7 and 5 would need to accommodate their young ages. In this matter, added to that, the children have been groomed for years to be supportive of the father’s position. Overall, allowing for these contingencies limited weight is placed on their views.
These findings were plainly open on the evidence, and we are not persuaded that her Honour has erred in making them.
The father also refers here to his “financial contributions to the children and the mother”. However, it is difficult, if not impossible, to discern from his submissions, what the complaint is.

The trial judge’s finding at [151] that “the mother will be left to (as she has done in the past) fix up the father’s shortcomings” is wrong

Again, this claim is misconceived. The father seems to think that it is about him asking the mother for assistance on two occasions, but that is plainly not what her Honour is referring to. Her Honour is emphasising the different parenting styles of the parties and identifying that the mother has to overcome the father’s failings in attending to the children’s intellectual and emotional needs in particular (at [145] – [152]).

The safety of the property where the father resides and the cultivation of marijuana

In relation to the former, all the father does is claim the trial judge was “wrong”, and states that the children and the parents had lived there safely during the past 10 years. That statement does not demonstrate error by the trial judge on the evidence that was before the court. In that regard her Honour recorded this:
58.The father says he has tried to improve the issues with his parenting which the mother has criticised him about. I accept that the father has tried to improve some issues, since they were raised by the mother at the interim hearing. The father has tidied up the house, for how long, I do not know. This was obviously done to show the Court and to further his position in this litigation. … I note that when the mother lived in the shed years ago, the washing machine didn’t work and she went to the laundromat. … The services are so primitive at the father’s shed that things taken for granted at the mother’s home, such as a washing machine and a fridge, are not available or not working.
59.Safety issues of wiring are a legitimate concern with three young children as are unfenced water courses around the shed. The mother said at times, the shed is on an island as the water comes up all around the shed. She explained when she lived there with three young children, she did not let the children out of the house without her. If the children were outside, so was she, if she came inside so did they. She does not have the confidence that they are safe from these water perils as the shed currently stands without any fencing. She explained how she tried to ensure that vermin did not get in.
60.Overall the mother has in my view shown an abundance of patience in dealing with the father’s immaturity whilst at the same time ensuring that the children have the opportunity to have a loving relationship with the father. Her requests for the father to place as much importance on the children’s safety in and around the shed, as he does on having fun with the children, are entirely reasonable.
And then her Honour concluded as follows at [177]:
It is the Court’s expectation that the father will do all acts and things to forthwith attend to securing Council compliance with the issues of sewerage, water, lighting, power and the other issues raised by the mother. These are valid and serious concerns, which the father has been tardy and irresponsible about in not resolving them years ago. As they involve the direct safety and health of the children I intend to make his time spent with the children conditional upon him attending to the issues necessary to fully comply with council regulations and bylaws, forthwith which means straight away. The father needs to appreciate that the children’s safety whilst living in the shed is resting entirely in his hands.
As to the cultivation of marijuana the suggestion is that her Honour had a “preconceived opinion of the father [which] had a major impact at the trial”. However, once again nothing we were taken to in the record demonstrates this, and it is a claim that cannot succeed. Indeed, her Honour said this at [85]:
…I am however, satisfied that the father had no part in planting the cannabis plants that were found on the property …

The father’s contravention of the interim orders made on 18 October 2013

Here the complaint is that it was “cruel and wrong” for the trial judge to refer to the father’s apologies for breaching the orders as “hollow”. There is no basis provided by the father in his submissions for this to be considered as an appealable error by the trial judge.

The proposal of the ICL for “more time with the father” was not given sufficient weight, and no weight was given to the father’s capacity as a [medical professional] demonstrating that he could safely care for his children and develop their full potential

The first point to make is that although the orders the ICL sought in her initial outline of case document was for the children to spend time with the father from the conclusion of school on the Wednesday until the commencement of school on the following Tuesday, in the final address of the ICL that was changed such that the suggested conclusion of the time became “on the following Monday or perhaps Tuesday” (transcript 26.02.15 p 314, line 29).
Again, these are weight challenges and they suffer the same fate as the previous challenges.
It has not been demonstrated that her Honour was “plainly wrong” in the exercise of her discretion when formulating the orders for the children to spend time with the father.
As for the implication to be made from the father being a medical professional, her Honour instead had due regard to the evidence before the court as to the father’s actual capacity to parent the children, and found that to be wanting. There is no error here by her Honour.

Ground 4 - The trial Judge wrongly exercised her discretion

The areas where the trial judge is said to have wrongly exercised her discretion are:
a)Her Honour concluding that “the mother is entitled to have her time with the children uninterrupted and not to have to field the enquiries from the father every second day about more time”.
b)Her Honour failing to find that s 65DAA of the Act applies, is satisfied, and should result in an order for equal time.
c)Her Honour’s decision of 18 October 2013 proceeded on a mistake of fact (“incorrect and misleading evidence”) and her reasons were inadequate. That had “an impact on the Trial and the Judge’s preconception of the father, and the Judge’s final Orders and Restraints placed on the father”.
d)Her Honour penalised the father because he had an “unconventional lifestyle”.
e)Her Honour failed to consider s 60CC(3)(l) of the Act.
The first complaint can be dealt with briefly. Given the evidence of the father indiscriminately, and with no regard for the peace of mind of the mother and/or the children, both interrupting the children’s time with the mother, and also contacting the mother and the children, was not only open to her Honour, but it was imperative that her Honour put in place orders to prevent that occurring.
With the second complaint, her Honour plainly had regard to s 65DAA of the Act (see [146] – [176]), and error by her Honour is not demonstrated by the father in effect suggesting her Honour was wrong in how she applied that section. It also does not add anything to the father’s argument here to raise again, as he does, his submission about the views of the children.
As to the third complaint, once again this appeal is not against the interim orders made on 18 October 2013, and there is no evidence to suggest that her Honour formed a preconceived opinion of the father that impacted upon the orders her Honour made this time.
The fourth complaint fares no better. Her Honour was well aware of the father’s “unconventional lifestyle”, and in our view took it into account appropriately. There was no question of “penalising” the father. It was plain on the evidence that his lifestyle was not one which could meet the best interests of the children, and the mother had by far the greater parenting capacity required for that purpose.
Finally, there is the fifth complaint, and that goes nowhere either. Her Honour, as she must, plainly had regard to the best interests of the children, and there is no basis to suggest that there were orders her Honour should have made which would be less likely to lead to further proceedings than the orders her Honour did make. Certainly, the orders proposed by the father were not in that category.

Ground 5 - The trial Judge violated the children’s & the father’s Human Rights (s [unknown] FLA)

This is an unsustainable ground of appeal. The Act sets out how a court exercising jurisdiction under the Act determines the parenting dispute, not the United Nations Convention on the Rights of the Child.
Although Australia is a signatory to that Convention, it is not yet part of the domestic law of Australia. Certainly, one of the objects of the Act is to give effect to the Convention, but that is done through the application of the Act itself. It follows from what was said by Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at [286] – [288] that unless there is a re-enactment of the term in domestic law, international treaty obligations can only give assistance in the interpretation of existing domestic law and in determining its proper application so as to avoid where possible conflict with treaty and international obligations.
There is no violation of the human rights of the father and the children by her Honour’s application of the Act to the evidence before the court.

Ground 6 - The trial Judge favoured “what the mother was entitled to”, rather than “the views of the children”

The father says that this ground raises the same issue as the first complaint in Ground 4 above. We have found no merit in that complaint, and thus we find no merit in this ground either.

Conclusion

Having found no merit in any of the grounds of appeal, the appeal must be dismissed.

Costs

At the conclusion of the hearing of the appeal we sought submissions from the parties as to costs depending on the result of the appeal. In the event that the appeal was unsuccessful no order for costs was sought against the father by either the mother or the ICL.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland & Kent JJ) delivered on 3 February 2017.

Associate:

Date: 3 February 2017