Berrios and Berrios

[2012] FamCAFC 178

FAMILY COURT OF AUSTRALIA

BERRIOS & BERRIOS [2012] FamCAFC 178

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parenting arrangements ─ Where the father complained that the Federal Magistrate erred in making orders that the mother be responsible for taking the children to counselling where there was evidence that she failed to continue taking the children to counselling as previously ordered ─ Where late in the hearing of the appeal, the Court was advised, by Counsel for the mother, that, notwithstanding that the orders for counselling made by the Federal Magistrate as a precursor to the father spending time with the children had not been implemented, the children had in fact for some time been spending time with the father pursuant to those orders ─  Where whatever the reasons for the counselling not occurring, the Federal Magistrate’s orders for the father to spend time with the children having, it seems uncontroversially, been implemented, the order for counselling, or orders that the mother be responsible for taking the children to such counselling, has no practical significance ─ Nothing to which the Court was referred demonstrated that any of the findings of fact recorded by the Federal Magistrate were not reasonably open to his Honour or the conclusions he reached on reliance upon them ─ Appeal dismissed.

FAMILY LAW ─ APPEAL ─ Application to adduce further evidence ─ Where none of the further evidence sought to be adduced upon by the father would, if accepted, demonstrate that the decision of the Federal Magistrate was erroneous ─ Further evidence application dismissed.

FAMILY LAW­ ─ APPEAL ─ COSTS ─ Where the father’s appeal was wholly unsuccessful and the prospects of success of the appeal were minimal ─ Where the father sought to resist an order for costs on the basis of financial circumstances ─ Where given the unmeritorious nature of the father’s appeal and application for leave to adduce further evidence the Court was inclined to make an order for costs in the mother’s favour ─ Where the circumstances also justified the making of costs order in favour of the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) Part VII, s 93A

CDJ v VAJ (1998) 197 CLR 172
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Gronow v Gronow (1979) 144 CLR 513
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
MRR v GR (2010) 240 CLR 461

APPELLANT: Mr Berrios

RESPONDENT: Ms Berrios

INDEPENDENT CHILDREN’S LAWYER: JPM Legal

FILE NUMBER: EA 8 of 2011

APPEAL NUMBER: WOC 50 of 2009

DATE DELIVERED: 6 November 2012

PLACE DELIVERED: Dubbo

PLACE HEARD: Sydney

JUDGMENT OF: Coleman, Strickland and Austin JJ

HEARING DATE: 18 September 2012

LOWER COURT JURISDICTION: Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE: 3 December 2010

LOWER COURT MNC: [2010] FMCAfam 1276

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Friedlander

SOLICITOR FOR THE APPELLANT: Fulcrum Legal

COUNSEL FOR THE RESPONDENT: Mr Maddox

SOLICITOR FOR THE RESPONDENT: Marsdens Law Group

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ryan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: JPM Legal

Orders

1. The appeal be dismissed.

2. The application for leave to adduce further evidence be dismissed.

3. The appellant father pay the respondent mother’s costs of and incidental to the appeal and application for leave to adduce further evidence as agreed or assessed on a party and party basis.

4. The appellant father pay the Independent Children’s Lawyer’s costs of and incidental to the appeal and application for leave to adduce further evidence in the sum of $3,602.50.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berrios & Berrios has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 8 of 2011

File Number: WOC 50 of 2009

Mr Berrios

Appellant

And

Ms Berrios

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction  

1. By Notice of Appeal filed 4 January 2011 Mr Berrios (“the father”) appealed against orders made on 3 December 2010, and re-made on 14 January 2011 by Altobelli FM pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in parenting proceedings between himself, and Ms Berrios (“the mother”). At the commencement of the hearing of the appeal, by consent, the father was granted leave to rely upon an Amended Notice of Appeal dated 28 June 2011.

2. The mother resisted the father’s appeal, and sought to maintain the orders of the Federal Magistrate. The Independent Children’s Lawyer (“ICL”) supported the mother in resisting the father’s appeal.

3. The orders of the Federal Magistrate essentially provided that the two children of the parties, who are now aged 13 and 12 years, reside with the mother and, whilst a parenting program was undertaken pursuant to his Honour’s orders, spend each alternate Saturday with the father from 9 am to 5 pm, and, after the completion of such program, spend time with the father each Saturday from 9 am to 5 pm, and at “such other times as the parties may agree in consultation with the program co-ordinator or counsellors”. The Federal Magistrate’s orders also provided for the parties to have equal shared parental responsibility for the children.

4. In lieu of the orders of the Federal Magistrate, the father sought that the children spend periods of time with him which increased on a graduated basis.

5. The Court was informed during the hearing of the father’s appeal that the children for some time have been spending each Saturday with the father from 9 am to 5 pm as envisaged by the orders of the Federal Magistrate.

6. It was sensibly acknowledged by Counsel for the father that, if the appeal was successful, the proceedings would necessarily be remitted for re-hearing in the Federal Magistrates Court.

7. On 20 August 2011, the father filed an application seeking leave to adduce further evidence in the appeal pursuant to s 93A of the Act. Such application was opposed by both the mother and the ICL.

8. We note that in the Amended Notice of Appeal the father sought to appeal against the orders for property settlement also made by the Federal Magistrate. However, no grounds of appeal were set out in relation to those orders and no written submission was directed to them. We raised this with Counsel at the commencement of the hearing but we were not persuaded that in the circumstances we were in a position to address any complaint against the property settlement orders. Accordingly, we do not propose to deal with this aspect of the appeal.

background

1. It is helpful to refer in some detail to the reasons for judgment of the Federal Magistrate by way of background to the appeal.

2. At the time of the judgment of the Federal Magistrate the mother was 52 years old and the father 46 years old.

3. The parties commenced cohabitation in January 1998, married in March 1998, and finally separated in January 2009. The children of the relationship remained in the mother’s care after the parties separated.

4. On 23 March 2009 consent orders were made on an interim basis providing that the father would spend time with the children on a supervised basis.

5. During the pendency of the proceedings, three family reports were prepared. The last of such reports (dated 6 October 2010) was released to the parties on 7 October 2010. The proceedings were adjourned part-heard in May 2010 to October 2010. At that time interim orders were made by consent which provided that the father spend time with the children on a supervised basis and, after 14 August 2010, each Saturday from 9 am to 5 pm on an unsupervised basis.

6. In the October 2010 family report, the family consultant recommended that the parties have equal shared parental responsibility for the children, that the children live with the mother, “and that the father be able to provide the children with cards and presents of days relating to special occasions” (par 35).

7. The Federal Magistrate accurately recorded that, in final submissions on his behalf, the father’s Counsel urged the Court to order:

   38.      … that the parents and children attend on a psychiatrist or psychologist with expertise in parental alienation syndrome, and that the children live with the father on a gradually increasing basis commencing from 9 am to 5 pm each Saturday for three months, increasing to 9 am Saturday to 6 pm Sunday for a further three months, and then alternate weekends from after school on Friday to before school on Monday for a further period of three months, then from after school on Thursday to before school on Monday for a further three months, and thereafter each alternate weekend from the end of school on Thursday to the beginning of school on Monday in one week, and from the end of school on Tuesday, to the beginning of school on Thursday, in the following week.

8. At trial, the ICL advocated that the parties undergo a “parenting orders program” during which the children spend each alternate Saturday with the father from 9 am to 5 pm and, on completion of the program each Saturday from 9 am to 5 pm, and at “such other times as the parties may agree – as the parents may agree in consultation with the program co-coordinator or counsellors” ( par 40).

9. The Federal Magistrate’s orders accorded with the orders sought by the ICL. At the conclusion of the trial, the mother supported with one “significant variation”, in relation to the commencing and concluding time (10 am to 2 pm in lieu of 9 am to 5 pm), the ICL’s stance (par 41).

10. The “issues” before the Federal Magistrate were accurately identified, and recorded as follows:

    43.      … The relevant ones in this case include the benefit to the children of having a meaningful relationship with their father, whether there is any need to protect them from any form of harm, the role of the children’s views, and the weight to be given to them, the nature of the children’s relationship with their father, the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father, the likely effect of changes in the children’s circumstances, issues of practical difficulty and expense, a consideration of the capacity of each parent to meet the needs of the children, an examination of issues about the parents’ and children’s cultural backgrounds, an exploration of the parents’ attitudes to the children and to the responsibilities of parenthood, and then attempting to craft an order that is least likely to lead to the institution of further proceedings.

11. Having recorded that the father was a witness of “honesty and candour” (par 53), and that his past indiscretions were “inappropriate rather than abusive”, the Federal Magistrate referred to the father’s “lack of insight” which he found to have been “demonstrated several times during his cross-examination”, and “manifested in his inflexible approach to the orders sought by him” (par 53).

12. The Federal Magistrate recorded that he found the mother’s evidence “more problematic”, in various respects which his Honour described in the following terms:

    54.      … She was unresponsive at times. She did not remember matters even though they were of recent history. She gave oral evidence in relation to potentially important matters (if accepted) not referred to, in any way, in her affidavit. At several times in her cross-examination she demonstrated the same level of insight that the father demonstrated about the children’s needs to have a relationship with the father, and the paternal family, particularly given the cultural issues in this case. She was plainly unconvincing in some of her answers to questions put in cross-examination, particularly by the Independent Children’s Lawyer. In short, she was an unimpressive witness whose evidence on parenting matters needs to be carefully assessed by reference to other evidence.

13. Ultimately the Federal Magistrate concluded:

    55.      My overall impression of both the mother and father, after having seen them give evidence on two separate occasions, is that they both lack insight about the needs of their children, though in different ways. ...

14. Before the Federal Magistrate, the mother and the ICL sought orders that the parents participate in the Relationships Australia parenting orders program, whilst the father sought an order that the children attend:

    56.      ... upon a court appointed psychiatrist or psychologist, who is a recognised expert in the area of parental alienation syndrome, and that the mother and father follow all reasonable directions of this psychiatrist or psychologist. (Original emphasis)

15. For reasons which the Federal Magistrate articulated, his Honour accepted the family consultant’s evidence (pars 61-62) that the children were “aligned and not alienated”, and that the children were “aligned with their mother and against their father and, at most, there are some traits indicating alienation but the matter has not reached that point” (par 63).

16. The Federal Magistrate ultimately concluded:

    66.      Having regard to the matters referred to above the father’s proposal for a therapeutic intervention is inappropriate. On the evidence before me these children are not alienated. To proceed with therapy on the basis that the children are alienated would not only not assist, but also possibly greatly exacerbate the problems that the children and this family face. I therefore accept the proposal of the mother, and independent children’s lawyer, and I have no doubt that the program in question would not have been proffered by the independent children’s lawyer had not inquiries first been made about its appropriateness on the facts of this case.

17. The critical issue before the Federal Magistrate was identified in the following terms:

    67.      Is there a meaningful relationship between the children and their father? The family consultant’s evidence indicates, in effect, that there is but only by the proverbial thread. In exploring the possible outcomes and options available to these children the risk of a total loss of any meaningful relationship was apparent. This would probably be manifested by no contact with the father. Clearly the family consultant was of the view that the family counselling option was the best one, in order to preserve and hopefully improve on the meaningful relationship between the children and their father. The consequences of the loss of this relationship was also clearly articulated. ...

18. Notwithstanding that the parties all acknowledged “the need to undertake some therapeutic intervention”, the Federal Magistrate recognised, as the family consultant conceded, that “the past history of family counselling has not worked” (par 68).

19. The father’s case before the Federal Magistrate was that the children were at risk in their mother’s care by reason of her state of mental health. By reference to the evidence of Dr H, a consultant psychiatrist who was cross-examined before him, his Honour was satisfied that the children were not at risk of harm in the mother’s household (par 69). Nor was his Honour satisfied that the mother had established that there was an unacceptable risk of harm in the father’s household having ultimately concluded:

    70.... The most significant factor, however, is that from the mother’s perspective she seeks no orders for supervised contact. True it is that she has not proposed overnight a time and that might be seen as reflecting some lingering concerns on her part. Based on all the evidence before, however, I simply do not accept that this case is about any risk of harm to the children. It is actually far more complicated than that, as is reflected in the matters that have been discussed above.

20. The evidence before the Federal Magistrate satisfied his Honour that the children would “actually prefer not to spend time with their father” (par 71), a finding not challenged in the appeal to this Court.

21. The Federal Magistrate further recorded with respect to the children’s relationship with their father:

    76.      Whilst on one level the evidence does suggest that the children’s alignment with their mother’s feelings towards their father has certainly been a contributor to the current poor relationship that exists between father and the children, this needs to be balanced with an appreciation that the father’s insensitivity towards the children, and his lack of insight about their experience of the whole separation, and his own role in his inappropriate conduct with [P], all contributes to the current unfortunate situation.

22. The willingness of the father to facilitate an ongoing relationship between the children and their mother was accepted by the Federal Magistrate (par 78), whilst his Honour found that the mother “still lacks insight, and could do more to support the children’s time with their father” (par 81).

23. The Federal Magistrate concluded that there were no issues about the mother’s parenting capacity but “concerns” about the father’s capacity (par 85). His Honour accepted the observation of the family consultant in relation to the father’s “assessed minimal insights in to the children and age and stage of development of them” (par 85). His Honour thus concluded:

    86.He clearly is able to meet the physical needs of the children, but not their emotional needs.  His proposal is, therefore, highly problematic in that regard.

24. The “attitudes to the children and to the responsibilities of parenthood” of both parents were found to have been less than optimal. The “most appropriate orders” to be made were regarded by the Federal Magistrate to be those proposed by the ICL, they being “what is in the best interests of the children, and is the best hope that this family has for restoration of the relationships between the children and their father” (par 96).

the grounds of appeal

Ground 1

1. The Amended Notice of Appeal articulated 7 grounds, the first of which provided:

   1.        The learned Federal Magistrate erred in finding that there were no issues about the mother’s mental health or psychological wellbeing that was in any way relevant to the proceedings.

2. In support of this challenge, the Court was referred to many passages in the transcript of the evidence at trial. In opposition to the challenge the Court was also referred to numerous passages in the transcript of the evidence at trial. As will be seen, it is unnecessary, and unproductive to refer to the passages of transcript.

3. In essence, the submissions on behalf of the father in support of this challenge assert that the Federal Magistrate’s finding with respect to the reliability of the evidence of the father and the mother should have informed his Honour’s conclusion with respect to the “mental health or psychological wellbeing” of the mother. Similar submissions were based upon the evidence given by other lay witnesses.

4. As is not in doubt (see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705) whilst lay evidence of fact was potentially material to the acceptance of, or weight appropriate to be given to expert opinion evidence, that evidence could not provide an acceptable basis for the Federal Magistrate’s conclusions with respect to the “mental health or psychological wellbeing” of the mother.

5. A number of submissions were made in relation to the evidence of Dr H, the consultant psychiatrist, who had seen the mother on some 10 occasions over a period of 14 months. We are unable to accept the submissions of Counsel for the father that Dr H’s opinion was vitiated by reliance upon material errors of fact, or acceptance of statements by unqualified persons with respect to the exercise of Dr H’s undoubted expertise.

6. As we have earlier recorded, notwithstanding his assertions with respect to the mother’s “mental health or psychological wellbeing”, the father’s case at the conclusion of the trial was that the children initially live with the mother other than from 9 am to 5 pm each Saturday, at which time they would spend with the father, increasing gradually over the following 12 months to almost equal time. The father’s stance at trial is difficult to reconcile with his assertion that there remained serious “issues” about the mother’s “mental health or psychological wellbeing”.

1. It was submitted on behalf of the father that:

   6.        The Family Reporter was not in a position to test the mother’s credibility [...] and nor was she qualified to make an assessment of the mother’s mental health ...

2. We have not been referred to any objection to the qualifications or expertise of the family consultant to give the evidence she gave before the Federal Magistrate. In what way the family consultant’s undoubted inability to “test the mother’s credibility” should have influenced the family consultant’s opinions, or the Federal Magistrate’s determination of the weight appropriate to be afforded to the family consultant’s evidence has not been explained.

3. It has not been demonstrated that the conduct of the mother, as long ago as 2002 in some instances, was, or should have been taken into account to the mother’s detriment by either the family consultant or Dr H.

4. The Federal Magistrate was clearly alive to the father’s assertions with respect to the “mother’s mental health or psychological wellbeing”. His Honour recorded:

   14.      In relation to the father’s stated concerns to the family consultant that the mother had mental health issues, the family consultant noted that there was no indication that the mother was unable to appropriately and adequately care for the children, though she did acknowledge the need for a further assessment of the mother’s mental health.

5. Nothing to which we have been referred, either with respect to the expertise of the family consultant to give the evidence, to which his Honour there referred, establishes that her methodology in relation to the formulation of her expert opinion, or any factual underpinning of it was absent or deficient. Not insignificantly, as early as in the first of the three reports which the family consultant prepared, and again as the Federal Magistrate recorded (par 14), his Honour acknowledged “the need for a further assessment of the mother’s mental health”. Nor has it been demonstrated that the Federal Magistrate impermissibly relied upon the family consultant’s evidence.

6. We have earlier referred to the Federal Magistrate’s conclusions with respect to the evidence of Dr H (pars 23 and 24 of his Honour’s reasons for judgment). Nothing to which we have been referred demonstrates that it was not reasonably open to the Federal Magistrate to accept Dr H’s evidence, and to rely upon it in concluding that there were “no issues about the mother’s mental health or psychological wellbeing” (par 24) which gave cause for concern.

7. We have not been referred to any evidence before the Federal Magistrate establishing that the children’s development was other than satisfactory, or that any aspect of their lives, during which the mother had undoubtedly been their primary carer, provided a basis for concern as to the mother’s mental health or psychological wellbeing. His Honour was entitled to rely upon that evidence in support of his conclusion with respect to the mother’s capacity to provide for the children.

8. At the highest, the cumulative effect of the passages of the transcript of the trial relied upon by Counsel for the father, is that other conclusions with respect to “the mother’s mental health or psychological wellbeing” may have been open to the Federal Magistrate, but that however is not the test. In order for this challenge to succeed, Counsel for the father must demonstrate that it was not reasonably open to the Federal Magistrate to find as his Honour did. That requirement has not been met.

9. This challenge fails.

Ground 2

1. Ground 2 of the Amended Notice of Appeal provided:

   2.        The learned Federal Magistrate erred in finding that that [sic] the evidence raises no issues about the mother’s parenting capacity and that the children were at no risk of harm in the mother’s household.

2. This challenge overlaps to a considerable extent with ground 1. Our reasons for rejecting ground 1 also have application to this challenge.

3. As with ground 1, Counsel for the father relied upon numerous passages of the transcript of the trial of the proceedings. The antiquity of many of the events emerging from those transcript passages upon which Counsel for the father relied is significant.

4. As suggested to Counsel for the father during the course of the hearing, the issues of capacity required determination at the time of the hearing before the Federal Magistrate, and by reference to the evidence as to relevant facts and circumstances at that time.

5. We have earlier referred to the orders which the father sought at the conclusion of the trial, and the inconsistency between those orders, and any belief that the mother’s parenting capacity exposed the children to the risk of harm in her household. We have earlier referred to the expert opinion evidence which was able to be, and was accepted by the Federal Magistrate, and challenges to the acceptance of which we have earlier rejected.

6. The circumstantial evidence upon which the family consultant, and the Federal Magistrate relied were also supportive of his Honour’s findings, and inconsistent with those asserted on behalf of the father before us.

7. The thrust of this challenge was ultimately articulated in the following terms:

   25.      In summary we submit that the mother had demonstrated herself to be wholly self centred and willing to sacrifice all of her children for her own motives. We believe that the learned Federal Magistrate erred in finding that there were no issues about her parenting capacity and that the children were at no risk of harm in the mother’s household. In fact we submit that the children are at very great risk of emotional and psychological abuse while living with her.

8. As we have earlier noted, the Federal Magistrate made a number of findings which were critical of the mother’s parenting capacity. However we have been referred to no evidence before the Federal Magistrate which obliged his Honour to find that the mother had “demonstrated herself to be wholly self centred and willing to sacrifice all of her children for her own motives”. As we have earlier suggested, the orders sought by the father before the Federal Magistrate were inconsistent with the father having a genuine and reasonable belief that such was the case.

9. In the various paragraphs of his reasons to which we have earlier referred, the Federal Magistrate criticised aspects of the mother’s parenting capacity, principally in relation to her insights into the importance of the children retaining a relationship with their father, and the mother’s recognition of her obligations to encourage the retention of such a relationship.

10. The Federal Magistrate made a number of adverse findings with respect to the father’s capacity. A balanced reading of his Honour’s reasons for judgment makes clear that neither party’s parenting capacity was considered to be entirely acceptable or satisfactory, and that the Federal Magistrate’s decision ultimately turned more on other matters, which his Honour identified and discussed.

11. To the extent that this ground of appeal asserts, as in reality it does, that the Federal Magistrate should have found that the children were “at very great risk of emotional and psychological abuse” while living with the mother, nothing to which we have been referred establishes that to have been the case. At its highest, the evidence referred to by Counsel for the father may have rendered other conclusions with respect to the question of risk reasonably open to the Federal Magistrate, but that is not the test for present purposes.

12. This challenge fails.

Ground 3

1. Ground 3 of the Amended Notice of Appeal provided:

   3.        The learned Federal Magistrate erred in placing insufficient weight on the negative influence of the mother on the perceived attitudes of the children to the father.

2. As is apparent from its terms, this ground raises a “weight challenge”. The law in relation to such challenges is not in doubt, and does not require extensive restatement in this case (see Gronow v Gronow (1979) 144 CLR 513 per Stephen J). The fact that more weight may have been given to a fact or circumstance than it was given by the Federal Magistrate does not advance this challenge. Moreover, we perceive that the challenge is based on a false premise.

3. Pivotal to this complaint is the assertion that the evidence established that the “children’s perceived attitudes to the father” were referrable to the “negative influence of the mother”. The Federal Magistrate did not so find. The references to the transcript of the trial before his Honour, do not establish, either individually or cumulatively, that his Honour should have found that the children’s perceived attitudes to the father were referrable to the “negative influence of the mother”.

4. Though colourful, the assertion on behalf of the father, that:

   29.      ... the children had no option other than to overtly criticise the father, especially in the presence of the Family Reporter, as they knew their mother would be informed of what was said, and to do otherwise would have been seen as a betrayal of her

   has not been substantiated by reference to any evidence before the Federal Magistrate. Nor has the assertion that the children’s “stated opinions” of the father were “not genuine”. As is clear beyond doubt, the Federal Magistrate accepted that, prior to the separation of their parents, the children had a meaningful relationship with the father. As is also not in doubt, at the time of the Federal Magistrate’s judgment, the children retained, albeit “only by the proverbial thread” (par 67) a meaningful relationship with their father.

5. As the Federal Magistrate’s reasons for judgment revealed, the children’s attitudes to the father were complex, and had changed over time. The family consultant recommended that the children spend no time with the father, a recommendation which neither the mother nor the ICL supported. His Honour’s orders in fact provided for the children to spend regular time with the father.

6. The Federal Magistrate clearly, and accurately, recognised that a major component of the father’s case was that the mother had caused the children to become alienated from him. This issue was explored in detail by his Honour under the heading “The best therapeutic intervention for this family” (pars 56-66). During the course of his deliberations, the Federal Magistrate referred to, and accepted the expert opinion evidence of the family consultant, and explained why he did. Nothing to which we have been referred demonstrates that the findings there recorded by his Honour or the conclusions reached by him were other than reasonably open on the evidence.

7. Under the heading “The children’s views”, the Federal Magistrate considered the evidence, particularly of the family consultant, with respect to the children’s wishes (pars 71-72). Nothing there recorded establishes the foundation for this challenge. Nothing to which we have been referred establishes that the Federal Magistrate erred in not making findings of the kind upon which this challenge is predicated. Nor did anything found by the Federal Magistrate with respect to the “nature of relationships” (pars 73-77) of the father and the children provide the foundation for this challenge. Nothing to which we have been referred provides a rational basis for disturbing any of the findings of fact recorded by the Federal Magistrate in relation to the children’s wishes, or the conclusions he reached in reliance upon them.

8. Consistent with the Federal Magistrate’s reservations about the mother’s parental capacity, his Honour reiterated his agreement with the family consultant’s view that:

   81.      ... although the mother has taken practical steps to improve the children’s relationship with their father, she still lacks insight, and could do more to support the children’s time with their father. ...

9. Those concerns were reiterated by the Federal Magistrate when he referred to the mother’s “own problems with lack of insight, particularly in terms of the medium to long-term importance of the children having a relationship with their father” (par 88).

10. Nothing to which we have been referred establishes either of the components articulated in this ground. We have not been referred to anything which establishes that the Federal Magistrate erred by failing to find that the children’s perceived attitudes to the father were other than as the family consultant recorded, and his Honour accepted that they were. Nor does anything to which we have been referred establish that the Federal Magistrate erred in failing to find that the mother had negatively impacted the children’s perceived attitudes to their father. As his Honour recorded, “having seen [both parties] give evidence on two occasions ... they both lack insight about the needs of their children, though in different ways” (par 55).

11. The Federal Magistrate’s rejection of the father’s assertion that “the children were, in effect, alienated from their father” (par 58), and the reasons for his Honour’s conclusions in that regard (pars 56-66), none of which has been successfully challenged before us, provide further cogent reasons for rejecting this ground.

12. This challenge fails.

Ground 4

1. Ground 4 of the Amended Notice of Appeal provided:

   4.        The learned Federal Magistrate erred in placing insufficient weight on the negative influences of (a) [Mr and Mrs W] (b) [Mr L] (c) [P] and (d) [R] on the perceived attitudes of the children to the father.

2. In support of this ground, the Court was referred to a plethora of references in the transcript of the trial to evidence relating to each of the witnesses referred to in this ground of appeal. Curiously, whilst Counsel for the father at trial, who also appeared for the father before this Court, made a number of references in her concluding submissions to each of the persons referred to in this ground, the thrust of the submissions was not that the mother had sought to influence those persons to support her cause. Be that as it may, the cumulative effect of the passages of evidence relied upon by these parties cannot establish that the Federal Magistrate erred in the way in which this ground asserts.

3. The Federal Magistrate said of two of the witnesses:

   22.      In relation to the evidence of [Mr and Mrs W], all I need to say is that, whilst their involvement with this family was well-intended, they probably did not play a constructive role in assisting the ultimate resolution of the issues before the court. I need no longer refer to their evidence in these reasons.

4. The Federal Magistrate adopted the evidence of the family consultant regarding P including:

   34.      ... On the material obtained for this report and previous reports, there is no indication that [P] has actively discouraged [X]’s or [Y]’s relationships with their father. (Original emphasis)

5. The Federal Magistrate further recorded:

   78.      There seems no issue about the father’s willingness to facilitate an ongoing relationship between the children and their mother. The father raises as an issue the extent to which [P] has contributed to the poor relationship he has with the children, and the extent to which the mother has failed to protect them from this. [P] was not cross-examined, a choice made by the father, and quite appropriately so. What seems to have impressed the family consultant is the lack of any knowledge that the children had in relation to [P’s] allegations towards the father. This does tend to indicate that [P] has not been overt in seeking to undermine the relationship between the father and her sisters.

6. It is clear that no part of the exercise of the Federal Magistrate’s discretion was in reliance upon any evidence given by any of the persons referred to in this ground. Whilst Counsel for the father has assiduously chronicled passages of the transcript in support of this complaint, in none of the passages of the transcript relied upon do we perceive any evidence which established that the children had been, or were likely to have been negatively influenced by any of the persons referred to in this ground with respect to their attitudes to the father. Importantly, as the family consultant recorded, and the Federal Magistrate accepted, the children’s wishes with respect to the father were equivocal/ambivalent (par 71).

7. As we have earlier recorded in the context of the consideration of ground 3, other than to the extent that the children’s wishes may have been impacted by the words and acts of the parents, there is no evidence establishing that they have been influenced by either of the persons referred to in this ground or anyone else. Nor does anything to which we have been referred demonstrate that the Federal Magistrate erred by failing to find that to have been the case.

8. A number of the emotive submissions made in support of this ground, such as paragraphs 54, 55 and 56 of Counsel for the father’s summary of argument, have not been substantiated, either by reference to the passages of the transcript relied upon by Counsel for the father, or otherwise. Those submissions do not warrant further comment.

9. Whatever the attitudes of the persons referred to in this complaint, nothing to which we have been referred establishes that the Federal Magistrate should have found that the children’s attitudes to the father were referable to things said or done by any of them.

10. This challenge fails.

Ground 5

1. Ground 5 of the Amended Notice of Appeal provided:

   5.        The learned Federal Magistrate erred in making orders that the mother be responsible for taking the children to counselling where there was evidence that she failed to continue taking the children to counselling as previously ordered.

2. Late in the hearing of the appeal, the Court was advised by Counsel for the mother, that, notwithstanding that the orders for counselling made by the Federal Magistrate as a precursor to the father spending time with the children had not been implemented, the children had in fact for some time been spending time with the father pursuant to those orders. It was in our view disingenuous to persist with this challenge in those circumstances.

3. But for Counsel for the mother informing this Court that the children were, in fact, spending time with the father pursuant to the Federal Magistrate’s orders, the Court would have proceeded on the basis that, the counselling having not taken place almost 2 years after the Federal Magistrate made his orders, the father had not seen his children. Without suggesting that Counsel for the father intended or consciously misled the Court in relation to this issue, we cannot fail to record our disappointment that this complaint was agitated.

4. Whatever the reasons for the counselling not occurring, the Federal Magistrate’s orders for the father to spend time with the children having, it seems uncontroversially, been implemented, the order for counselling, or orders that the mother be responsible for taking the children to such counselling, now can have no practical significance. Nor do they begin to have any academic interest which might impel us to engage with the submissions of Counsel for the father in relation to the issue, other than to reiterate our regret that, having chosen to persist with this challenge, and make detailed submissions in support of it, Counsel for the father did not see fit to point out that, notwithstanding that counselling had not taken place, the father was in fact spending time with the children as the Federal Magistrate’s orders provided that he would after such counselling had concluded.

5. This challenge fails.

Ground 6

1. Ground 6 of the Amended Notice of Appeal provided:

   6.        The learned Federal Magistrate erred in finding that the father could not meet the emotional needs of the children.

2. The Federal Magistrate provided extensive and cogent reasons for finding that the father could not meet the emotional needs of the children. We have earlier identified the passages in which his Honour considered this issue. In summary, his Honour concluded that, albeit a witness of “honesty and candour”, for the reasons which were identified, his Honour recorded that he found that the father “lacked insight in to the needs of his children” (par 53), and “that the children did have a significant relationship with their father prior to the separation” (par 74).

1. The Federal Magistrate considered, having regard to the totality of the evidence, and particularly the expert opinion evidence of the family consultant, that the father’s proposal demonstrated his “insensitivity” about the needs of the children, as well as a “minimisation of the complex issues confronting this family” (par 83). His Honour recorded his acceptance of the family consultant’s expert opinion in relation to the father’s “assessed minimal insights in to the children and age and stage of development of them” (par 85). Albeit in a comparative sense, the Federal Magistrate also referred to the father’s demonstrated “inappropriate conduct” which reflected “poorly on him in terms of responsibilities of parenthood” (par 87).

2. Nothing to which we have been taken demonstrates that any of the findings of fact recorded by the Federal Magistrate, in the passages of the reasons for judgment to which we have referred, were not reasonably open to his Honour.

3. This challenge fails.

Ground 7

1. Ground 7 of the Amended Notice of Appeal provided:

   7.        The learned Federal Magistrate erred in finding that the parents do not have a current nor future capacity to communicate with each other and resolve difficulties that might arise in implementing an equal time arrangement.

2. With respect to Counsel for the father, this ground substantially overlooks the basis upon which the Federal Magistrate reached his conclusion with respect to the children’s best interests. The subject matter of this complaint can be seen as having played little part in his Honour’s conclusion that equal time was not in the children’s best interests when regard is had to the reasons for judgment.

3. It is unnecessary to reiterate the passages of the Federal Magistrate’s reasons for judgment in which his Honour revealed the process of reasoning which led him to decide this case in the way his Honour did.

4. Nothing to which we have been referred demonstrates that it was not reasonably open to his Honour to conclude that “equal time is neither in the best interests of the children nor is it reasonably practicable” (par 94). Even, as Counsel for the father submitted, if his Honour should have found that equal time was “reasonably practicable”, which he has not, that would change nothing. Both the requirements of best interests and reasonable practicability needed to be satisfied before the Court could consider making orders to that effect (see MRR v GR (2010) 240 CLR 461).

5. This challenge fails.

application to adduce further evidence

1. No ground of appeal having been established, it is necessary to consider the further evidence application of the father.

2. The further evidence is contained in an affidavit sworn by the father on 15 August 2012 and filed on 20 August 2012.

3. For reasons which we have suggested in the context of ground 5, paragraphs 8 and 9 of the father’s affidavit, which commence with the heading “Appellant’s attendance at Parenting Orders Program”, could not, if accepted, demonstrate that the decision of the Federal Magistrate was erroneous (see CDJ v VAJ (1998) 197 CLR 172), and it is somewhat disingenuous to assert that they could.

4. Under the heading “Examples of Respondent’s attitude to and interference with the children spending time with the Appellant, including counsellor’s involvement and views”, of the affidavit of further evidence advanced on behalf of the father, a series of allegations are made (pars 11-20). The majority of the occasions there referred to post date the trial of the proceedings before the Federal Magistrate. Neither individually, nor cumulatively, could the matters there referred to, if accepted, which much of the material could not safely be having regard to the terms in which it is articulated, persuade this Court that the Federal Magistrate’s decision was erroneous .

5. In reality, the contents of paragraphs 11-20 of the affidavit of further evidence of the father are more revealing of, and damaging to his appeal than potentially supportive of it. If the allegations made by the father were accepted, they would, were the respondent mother to rely upon them, tend more to “buttress” the Federal Magistrate’s decision than to provide a basis for interfering with it.

6. As with paragraphs 8 and 9 of the affidavit of further evidence of the father, paragraphs 22-28, which allege “the Respondent’s failure to facilitate counselling involving the children”, could not enliven appellate intervention, and are disingenuous given that, as we have earlier recorded, notwithstanding the absence of counselling, whatever the reasons for it not occurring, the father has in fact been seeing the children in accordance with the Federal Magistrate’s orders. Similar observations apply to the concluding paragraphs of the affidavit under the heading “Counsellor’s difficulties with interpretation of the Orders and failure to complete the requirements set out in the Orders” (paragraphs 32-36).

7. None of the further evidence sought to be relied upon by the father would, if accepted, demonstrate that the decision of the Federal Magistrate was erroneous.

conclusion

1. No ground of appeal having been made out, and the further evidence sought to be relied upon by the father being unsuccessful in demonstrating that the decision of the Federal Magistrate was erroneous, both the appeal and application for leave to adduce further evidence will be dismissed.

costs

1. Counsel for the mother sought an order that the father pay her costs of and incidental to the appeal as agreed or assessed on a party and party basis.

2. The appeal was undoubtedly unsuccessful. The obstacles to the success of the appeal were well known to the father’s legal representatives. At best, the prospects of success in this appeal were minimal. The father was entitled to prosecute his appeal, but, having failed comprehensively in that exercise, the mother’s application for costs has considerable attraction. The mother was wholly successful in resisting the father’s appeal.

3. Counsel for the father sought only to resist an order for costs on the basis of the father’s financial circumstances. In short, having paid his legal fees for the appeal to this Court, the father has cash in the sum of approximately $11,000, and earns approximately $30,000 per annum. We accept that a costs order would impact significantly upon the father’s finances. We have not been referred to any evidence establishing that the mother’s financial position is one of such affluence as should disincline us to make an order for costs in her favour.

4. Given the unmeritorious nature of the father’s Amended Notice of Appeal and application to adduce further evidence, we are of the opinion that the father should pay the mother’s costs of and incidental to the appeal and the application for leave to adduce further evidence as agreed or assessed on a party and party basis.

5. Counsel for the ICL also sought an order for costs, quantified in the sum of $3,602.50. Whilst disputing that costs should be awarded, Counsel for the father, sensibly conceded that the amount sought by Counsel for the ICL was reasonable. The observations recorded above with respect to the mother’s application for costs have relevance to the ICL’s costs.

6. Unlike some appeals to this Court, the ICL, by learned Counsel’s written submissions, made a significant and helpful contribution to the appeal. The ICL was wholly successful in resisting the father’s appeal. In the circumstances we have explained above, we do not consider that the public purse should bear the burden of the ICL’s costs. We are of the opinion that the circumstances also justify the making of a costs order in favour of the ICL in the sum sought by her.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Strickland & Austin JJ) delivered on 6 November 2012.

Associate:

Date: 06.11.2012