BENDON & BENDON - [2016] FamCAFC 118

FAMILY COURT OF AUSTRALIA

BENDON & BENDON

[2016] FamCAFC 118

FAMILY LAW – APPEAL – CHILDREN – Where trial judge made findings that children were at risk of emotional, psychological and physical harm if they remained in the care of the mother – Where trial judge found the children would never have the opportunity of a meaningful relationship with the father were they to remain in the mother’s care – Trial judge determined that the father should have sole parental responsibility and that the children live with the father – Orders for supervised time and communication with mother – Reasonably practicable – Father lives in Western Australia and mother lives in Victoria – Mother’s sole challenge on appeal was that trial judge did not properly consider reasonable practicability under s 65DAA – Section 65DAA not activated given order for sole parental responsibility – Trial judge was cognisant of and addressed geographical distance between parents – No merit in appeal – Reasons in short form s 94(2A).

FAMILY LAW – APPLICATION IN AN APPEAL – Where the mother sought an order for the Court to provide the trial transcript – Where this Application in an Appeal related to grounds of appeal not ultimately pursued on appeal – Where the Application was dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the mother sought to adduce further evidence – Where it was held the Application did not meet the criteria for admitting further evidence on appeal – Where the evidence that was sought to be adduced did not have any relevance to the sole ground of appeal pursued on appeal – Where the Application was dismissed.

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

Ms Bendon

RESPONDENT:	Mr Bendon
INDEPENDENT CHILDREN’S LAWYER:	Independent Children’s Lawyer did not participate
FILE NUMBER:	DGC	672	of	2014

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

6 July 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Murphy, Kent & Austin JJ

HEARING DATE:

6 July 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 December 2015

LOWER COURT MNC:

[2015] FamCA 1065

REPRESENTATION

FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Lovering

SOLICITOR FOR THE RESPONDENT:

Fiona R McGregor, Lawyer

Orders

The appellant’s Applications in an Appeal filed on 21 March 2016 and 16 June 2016 respectively be dismissed.
The appeal be dismissed.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bendon & Bendon 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 MELBOURNE

Appeal Number: SOA 79/2015
File Number: DGC 672/2014

Ms Bendon

Appellant

And

Mr Bendon

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

KENT J

In my opinion this appeal ought be dismissed and as it does not raise any question of general principle, reasons for this decision in short form are all that is required (s 94(2A) of the Family Law Act 1975 (Cth) (“the Act”)).
On 2 December 2015 Johns J made final parenting orders with respect to the parties’ three children then aged 10, eight and six years respectively. In summary, those orders provide for the father to have sole parental responsibility and for the children to live with the father.
The orders made for the children to spend time and communicate with the mother are predicated upon:
a)The fact that the father continues to live in Western Australia, where the family had been living for some years prior to the time of the parties’ final separation in September 2013, whilst the mother lives in Victoria; and
b)Findings of the trial judge that the children are at risk of emotional and psychological harm in the care of the mother; and
c)Findings of the trial judge that the children are at risk of physical harm and neglect in the care of the mother; and
d)Findings of the trial judge that the children would never have the opportunity of a meaningful relationship with the father were they to remain in the mother’s care.
The sole ground of appeal pursued by the mother on appeal is Ground 3 contained in her Notice of Appeal filed on 22 December 2015 which is in the following terms:
3.The judge failed to apply the “Reasonably practicable” test in determining the orders, omitting to consider the very considerable distances involved.
To the extent that this challenge is founded upon s 65DAA of the Act it is misconceived. That section, by its terms, only operates if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child. As already noted, the trial judge determined that an order should be made for the father to have sole parental responsibility. Thus, s 65DAA was not activated.
To the extent that this challenge is to be interpreted as a more general complaint that the trial judge disregarded, or failed to adequately consider, the geographical distance between the respective places of residence of each parent, it is without merit when regard is had to the Reasons for Judgment of the trial judge. Those Reasons contain numerous references to that factor. In particular, commencing at [302] of the Reasons for Judgment the trial judge specifically addresses s 60CC(e) of the Act (practical difficulty and expense of a child spending time with and communicating with a parent) with her Honour noting in the course of discussing that consideration (at [310]) that “[t]here are enormous challenges in terms of the children spending physical time with the mother by virtue of the distance between Western Australia and Victoria.” Her Honour specifically there notes the travel costs involved and the added burden of supervision. Further, in addressing s 60CC(e) of the Act (whether preferable to make the order that would be least likely to lead to the institution of further proceedings) at [320] and following, the trial judge made reference to steps the mother might take to effect change so as to seek orders in future for unsupervised time; and her Honour also referred to the prospect of the mother having more frequent time with the children if she herself returned to live in Western Australia.
There is no substance in the complaint that the trial judge omitted to consider the practicalities surrounding the geographical distance between the parents or the fact of that geographical distance.
The mother’s Application in an Appeal filed on 21 March 2016 for the Court to provide her with a trial transcript for the six days of trial was only arguable when the mother sought to agitate the bias and procedural fairness grounds (Grounds 1 and 2) her Notice of Appeal foreshadowed. However, as confirmed by the mother’s Amended Summary of Argument filed on 7 June 2016, and as confirmed by the mother on the hearing of the appeal today, the mother did not press Grounds 1 and 2 and she acknowledged that there was no utility in pursuing that application. On that basis that application ought be dismissed.
The mother’s Application in an Appeal filed on 16 June 2016 to adduce further evidence on appeal does not meet any of the criteria for admission of further evidence on appeal as discussed by the High Court in CDJ v VAJ (1998) 197 CLR 172. None of the further evidence sought to be adduced has any relevance at all to the sole ground of appeal (Ground 3) pursued. Moreover, it could not be concluded that any of this evidence, even if accepted, could rationally affect the outcome determined by the trial judge based upon the findings earlier referred to; nor demonstrate any material error of fact made by the trial judge. This application ought be dismissed.
I observe in passing that the mother’s abandonment of Grounds 1 and 2 was appropriate given that, as expressed, neither of those grounds constitute proper grounds of appeal. Each state a conclusion unburdened by particulars or specificity. As a result the errors purportedly asserted in each cannot be discerned. On this basis, even if the mother had sought to pursue either of these grounds, it could not have been concluded that either of these grounds had any merit.
There being no merit in the appeal it ought be dismissed.
Whilst the father sought an order for costs in the event the appeal was dismissed, essentially on the basis that the appeal is without merit, I am conscious of the mother’s constrained financial circumstances as affecting her ability to travel to Western Australia to maintain time with the children. Whilst impecuniosity is not normally a bar to an order for costs where an order is otherwise warranted; and certainly there are circumstances here to justify an order; on balance having regard to the desirability in the children’s best interests of the mother travelling to Western Australia to spend supervised time with the children, I would decline the father’s application for costs.
I would order that:
1.        The appellant’s Applications in an Appeal filed on 21 March      2016 and 16 June 2016 respectively be dismissed.
2.        The appeal be dismissed.
3.        There be no order as to costs.

AUSTIN J

I agree with the orders proposed and with the Reasons given by Justice Kent.

MURPHY J

I agree that this appeal raises no issue of principle and that the Reasons for Judgment should be given in short form. I agree with Justice Kent’s Reasons for Judgment and join in the orders proposed by his Honour dismissing the appeal and the Applications in an Appeal. I also agree that there should be no order for costs. The orders of the Court then will be:
1.        The appellant’s Applications in an Appeal filed on 21 March   2016 and 16 June 2016 respectively be dismissed.
2.        The appeal be dismissed.
3.        There be no order as to costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Kent & Austin JJ) delivered on 6 July 2016.

Associate:

Date: 7 July 2016