Betros & Betros

[2017] FamCAFC 90

FAMILY COURT OF AUSTRALIA

BETROS & BETROS [2017] FamCAFC 90

FAMILY LAW – APPEAL – CHILDREN – final parenting orders – where the orders provided that the husband spend supervised time with the children – where the orders provided that a fresh application to lift the supervision order could be made upon the fulfilment of certain conditions – where the trial judge gave adequate reasons for imposing this order – where the trial judge gave adequate reasons for concluding that it was in the children’s best interests to have limited time with their father – where any asserted error in the trial judge’s consideration of certain evidence could not be vindicated on appeal in the absence of a transcript – where no submission by the father was sufficient to demonstrate discretionary error by the trial judge – appeal dismissed.

Family Law Act 1975 (Cth) Part VII, ss 4AB, 61DA(2)(b), 65D(2), 60CC(2)(b), 60CC(3)(j), 117(2A)

B and B (1993) FLC 92-357
Champness & Hanson (2009) FLC 93-407
Gorman & Huffman and Anor [2016] FamCAFC 174
Gronow v Gronow (1979) 144 CLR 513
H & K [2001] FamCA 687
House v The King (1936) 55 CLR 499
Moose & Moose (2008) FLC 93-375
Rice and Asplund (1979) FLC 90-725
Slater & Light (2013) 48 Fam LR 573

APPELLANT: Mr Betros

RESPONDENT: Ms Betros

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 3685 of 2011

APPEAL NUMBER: EA 72 of 2016

DATE DELIVERED: 12 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Thackray, Murphy & Austin JJ

HEARING DATE: 4 May 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 6 April 2016

LOWER COURT MNC: [2016] FamCA 225

REPRESENTATION

FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Ms McMahon

SOLICITOR FOR THE RESPONDENT: Women's Legal Service NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shearman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The appeal is dismissed.

2. 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 Betros & Betros 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 SYDNEY

Appeal Number: EA 72 of 2016
File Number: PAC 3685 of 2011

Mr Betros

Appellant

And

Ms Betros

Respondent

REASONS FOR JUDGMENT

1. On 6 April 2016, Hannam J made parenting orders between the parties under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of their three children.

2. The father, who was the applicant at first instance, appealed against the orders, but only in so far as they made provision for the children to spend supervised time with him at a contact centre every second month (Order 4), for them to infrequently communicate with him in writing (Orders 5 and 6), restrained him from otherwise approaching them, including at their schools (Order 11), and specified he was at liberty to make a fresh application to review the orders upon fulfilment of certain conditions (Order 13). There was no challenge to the orders that provided for the children to live with the mother and for her to have sole parental responsibility for them.

3. The appeal was resisted by the mother and Independent Children’s Lawyer, as the orders replicated those they proposed to the trial judge, consistently with the Family Consultant’s recommendations.

Background

1. The parties married in 2004, separated in March 2011, and divorced in July 2012. Their three children were born in 2005, 2006, and 2008 and were aged between ten and seven years at the time the orders were made.

2. Parenting orders were first made in February 2013. With the parties’ consent, the Court ordered that they have equal shared parental responsibility for the children, for the children to live with the mother, and for them to spend time with the father. The children's visits with the father included four nights each fortnight during school terms and half of school holiday periods.

3. Unfortunately, those orders did not resolve the parties’ conflict. The father commenced fresh proceedings in December 2013, which were determined by the orders made on 6 April 2016.

4. The orders made in April 2016 represented a significant shift from those made in February 2013. The father was deprived of any parental responsibility for the children, the time they were to spend with him was both drastically reduced and subjected to professional supervision, and their communication with him was tightly constricted.

5. Central to the appeal were the father’s contentions that the trial judge made erroneous findings about the nature of his coercive and controlling conduct, that the orders unfairly impinged the children’s loving relationships with him, and that such findings and orders were not satisfactorily explained by the trial judge’s reasons.

Ground 1

1. Ground 1 alleged the trial judge erred at law by:

   …failing to provide sufficient reasons for her decision to require the father to engage in “regular and consistent therapy with a child and family therapist for a period of not less than 24 months”.

2. Order 13 provided (in part):

   13.The father is at liberty to make a fresh application to consider the lifting of the supervision requirement of his time with the children upon:

   (a)Undertaking regular and consistent therapy with a child and family therapist for a period of no less than 24 months;

   …

3. Underlying the father’s complaint that insufficient reasons were given for an order in those terms was his belief that the order “require[d]” him to engage in psychotherapy for at least 24 months. It did not. The order was not a mandatory injunction requiring his acceptance of psychotherapy. Instead, the order provided that his voluntary participation in such psychotherapy for the given period was one condition to him being “at liberty” to bring fresh proceedings to review the order that otherwise permanently imposed supervision upon his interaction with the children.

4. Debate during the hearing of the appeal revealed some confusion and room for reasonable disagreement about the intended purpose and actual effect of the order but, given its purpose and effect was not germane to the determination of the appeal and this Court was informed the father had already filed a fresh parenting application, it is unnecessary to say much more than that caution should be exercised in crafting orders that are intended to delineate circumstances which arguably condition a party’s right to institute fresh proceedings to enable re-consideration of parenting orders.

5. It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted (see Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]–[41]; B and B (1993) FLC 92-357 at [79,780]). Consideration should usually be given to whether orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows (see Gorman & Huffman and Anor [2016] FamCAFC 174).

6. For present purposes, aside from the father’s mistaken belief that Order 13 obliged him to submit to psychotherapy, his complaint was of the trial judge’s alleged failure to provide sufficient reasons about his need for it. This complaint could not be sustained. The trial judge made unchallenged findings about his lack of insight because he accepted the truth of all critical reports made by the children about the mother, he could not countenance why their reports might be false, he attributed the children’s misbehaviour to the inadequacy of the mother’s parenting capacity, and he showed no insight into the role his conduct played in influencing the children’s attitudes towards the mother or the harm thereby caused to them (see [91]–[96], [123] and[159]). The trial judge concluded the father would continue to treat the children in the same way “without some form of intervention” (at [159]) and therefore made Order 13 as proposed by the Independent Children’s Lawyer, with the mother’s support (at [160], [211]). The trial judge reasoned an order to that effect would “leave open the possibility of supervision being reconsidered” if the father fulfilled the stipulated condition of acceptance of psychotherapy to help him gain “insight into his shortcomings” and address his “harmful behaviour” (at [170], [198], [212]). The reasons were ample and so Ground 1 fails.

Ground 2

1. Ground 2 alleged the trial judge erred by failing to provide sufficient reasons to reject certain evidence, including that of the Family Consultant in particular, about the likely detrimental effect upon the children of having their interaction with the father so drastically curtailed.

2. As can be seen, the father’s complaint entailed two aspects: the asserted rejection of evidence and the insufficiency of reasons given for its rejection. However, the trial judge did neither. In fact, her Honour did the opposite. The Family Consultant’s evidence was accepted and the trial judge said she placed “significant weight” upon it (at [140]). The father made no complaint in either his written or oral submissions about the unfair rejection of any other evidence that bore upon this ground of appeal.

3. There was no contest at trial about the quality of the children’s relationships with the father. The trial judge recorded there was no doubt the father played an “important role in the children’s lives” and the children held him “in high esteem” (at [177]). Regardless, the Family Consultant recommended the children should only spend supervised time with the father on no more than six occasions each year if his conduct was found to be “emotionally abusive” to the children (at [140], [169]), as the trial judge did find on the evidence (see [121]–[122], [141], [144]–[145], [165], and [218]).

4. In making orders that reflected the Family Consultant’s recommendation, the trial judge was conscious the orders were “extreme orders” (at [166]), “insufficient to promote the children having a meaningful relationship with their father” (at [156]), and would represent “a significant change in the current circumstances for the children” (at [189]).

5. The trial judge also acknowledged the orders “would dramatically change the children’s lives and the nature of the relationship that they have each shared with their father throughout their life” and “it is likely that they will experience significant sadness and distress as a result of the separation from their father” (at [196]), and “will likely result in some short term distress for the children associated with the separation from their father” (at [220]).

6. Nonetheless, the trial judge considered:

   …it is in the long term best interests of the children to live primarily with one parent and have very limited time with the other parent due to the very negative impact that the parental conflict has had upon the children and the way in which the children have become entangled in the dispute and significantly aligned with their father.

   (At [197], see also [220])

7. It is therefore quite clear her Honour realised the appealed orders would radically alter the children’s relationships with the father and would cause them some level of distress. Her Honour made the orders in reliance upon the unchallenged opinion evidence of the Family Consultant, as urged by the mother and Independent Children’s Lawyer, once the adverse factual findings were made against the father. Consequently, there is no merit in Ground 2, but that conveniently leads to consideration of Grounds 3 and 4, in which the father contested the validity of the trial judge’s findings about the nature of his conduct.

Grounds 3 and 4

1. These grounds were prolix and their precise meaning, in the sense that grounds of appeal against discretionary judgments must fall within recognised categories to be meaningful (see House v The King (1936) 55 CLR 499 at 504–505), was difficult to discern.

2. Nevertheless, in conjunction with the written submissions, it was reasonably clear the father took issue with the trial judge’s findings that he perpetrated “family violence”, both before and after the parties’ separation, and that his conduct coerced and controlled the mother and the children. Findings to that effect influenced the ultimate determination to limit the children’s interaction with him to only six occasions each year under professional supervision.

3. It was apparent from oral argument that the father misunderstood the breadth of the definition of “family violence” in the Act (s 4AB). He seemed to regard it as only constituting actual physical violence, and perhaps also threats thereof, when in fact the definition is much wider. Had he appreciated that, the dispute about the trial judge’s findings may have dissolved or at least narrowed.

4. Admitted into evidence were, relevantly, the parties’ respective affidavits deposing to their history, the Family Report from the first proceedings concluded in 2013, and the two Family Reports compiled in the proceedings conducted before the trial judge. The father admitted to the first Family Consultant that he stopped the mother from seeing her family, limited her contact with friends, and closely scrutinised her household expenditure. In reliance upon those admissions, the trial judge permissibly found the father engaged in behaviour that coerced and controlled the mother, which behaviour amounted to “family violence” (at [100]-[101]).

5. The father criticised both the trial judge’s reception of and advertence to the contents of the first Family Report, particularly when the Family Consultant who compiled that report was not cross-examined, but the grievance was baseless. The first Family Report was adduced in evidence before the trial judge without objection, no application was apparently made to cross-examine that Family Consultant, and the trial judge only acted on the father’s admissions to that Family Consultant, which was a safe and uncontroversial course to take. The second Family Consultant and all other lay witnesses were cross-examined and so the father’s additional assertion of his denial of procedural fairness was also exposed to lack merit.

6. The father complained about the trial judge making factual findings in relation to conduct that pre-dated the final consent orders made in February 2013. The trial judge acknowledged the proceedings before her were “mainly concerned” with circumstances after the February 2013 orders (at [100]), but her Honour was unable to simply ignore past history. The provisions of the Act required her to assimilate the evidence about “family violence” to determine whether the children needed any protection from harm caused by exposure to it as part of the broader inquiry about their best interests (ss 60CC(2)(b), 60CC(3)(j)). Findings about the commission of family violence were also integral to the application of the presumption of equal shared parental responsibility (s 61DA(2)(b)). In any event, the father’s submission overlooked the fact his own affidavit evidence addressed episodes of alleged “family violence” and “abuse” before the February 2013 orders were made. He would not have placed such evidence before the trial judge unless he contended it had some relevance to the orders her Honour was asked to make and so it was inconsistent for him to criticise the trial judge for considering the evidence and factoring it into her Honour’s determination of proper parenting orders.

7. As for the children, the trial judge accepted the Family Consultant’s evidence that the children witnessed family violence, in the form of coercive and controlling behaviour by the father towards the mother, both before and after the parties’ separation, which had a “substantial impact upon their psychological and emotional wellbeing” (at [105], see also [165] and [210]). Apart from the children’s exposure to such family violence, the trial judge found the father “abused” them. Her Honour concluded the father “coerced and controlled” the children, albeit perhaps in a way that was indirect and subtle, which tended to align them with him, alienate them from the mother, impair their relationships with her, and caused them to suffer “serious psychological harm” (see [121], [141], [145], [176] and [218]), so as to meet the wider definition of “abuse” under the Act (s 4). The facts which underpinned those findings were set out in the reasons.

8. In reaching those conclusions, the trial judge accepted and relied upon the evidence given by the mother and the Family Consultants, the latter of which was not controverted. Such evidence included representations made to each of them by the children. Conversely, the trial judge attributed little or no weight to representations made by the children to the father that were critical of the mother, which he considered was unfair, but her Honour adequately explained that was because the children were most probably unduly influenced by him. Otherwise, any asserted error manifest in the trial judge’s acceptance or rejection of, or attribution of weight to, certain evidence could not be vindicated on appeal in the absence of a transcript. Due to the father’s modest financial circumstances, his application to conduct the appeal without providing the trial transcript was granted after he was informed and he said he understood that, to the extent such a deficiency impeded proper consideration of his grounds of appeal, the responsibility rested with him.

9. The father’s submissions were not made good and Grounds 3 and 4 fail.

Ground 5

1. Ground 5 contended the trial judge erred by failing to give sufficient weight to some aspects of the evidence: in particular, the children’s close relationships with the father, the children’s views and experiences with both parties, and the eldest child’s experiences with the mother. There is no merit in this ground of appeal and its dismissal can be shortly explained.

2. As to the first aspect, the trial judge was cognisant of the children’s close relationships with the father. Some of her Honour’s acknowledgements of that fact are extracted in the discussion pertinent to Ground 1. They need not be repeated.

3. As to the second aspect, the trial judge was also cognisant of the children’s expressed views. Her Honour realised that the two eldest children expressed the desire to live with the father (at [171]–[173]) and the youngest child expressed a view that she should live with the parties for equal time (at [174]). However, the trial judge decided to attach no weight to the children’s “consistently and strongly stated” views because of their young ages, relative immaturity, and her conclusion they were influenced by the father (at [175]). Those conclusions were well open to the trial judge on the available evidence.

4. As to the third aspect, the father’s oblique references to the children’s “experiences” with the parties were meant to convey his impression of their positive experiences with him and their negative experiences with the mother. Part of the case conducted at trial by the father was that the mother physically abused the children and neglected their medical needs. Her Honour traversed the evidence related to those issues at length and rejected the allegations (at [66] and [97]). Those findings were also well open to the trial judge. In any event, it was difficult to understand the logic of the father’s complaint on appeal about the children’s alleged adverse experiences with the mother because he ended the trial advocating for the children to spend substantial time in her care (at [161]) and he did not appeal the order which provided for the children to live with her. There was no point pursuing an appeal on grounds of an asserted failure by the trial judge to pay sufficient heed to evidence that was critical of the mother’s parenting capacity when he accepted the trial judge’s decision that the children should live with her.

1. Overall, this ground of appeal asserted discretionary error by the failure to ascribe sufficient weight to some particular aspects of the evidence, but an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight (see Gronow v Gronow (1979) 144 CLR 513, at 519–520). No submission made by the father was sufficient to overcome that obstacle.

2. Technicality aside, the father contended the trial judge had “alternative options”, besides making orders that so substantially curtailed the children’s relationships with him, which could have “remedied” any concerns about the destructive effect of his conduct upon the children, but in reality her Honour had none. Significantly, the father failed to articulate any alternative option during the appeal. The evidence before the trial judge presented only a polarised choice between retention of a parenting regime similar to that imposed by the February 2013 orders, which was failing spectacularly, or a radical change. The father’s lack of insight into the need for modification of his behaviour forced the trial judge’s hand to adopt the latter course.

Conclusion and Costs

1. The appeal must be dismissed.

2. The Independent Children’s Lawyer did not seek any order for costs if the appeal failed, but the mother did and her application was resisted by the father.

3. The mother was legally aided and her costs were quite modest, but the father’s financial circumstances militated against any costs order. He was unable to afford legal representation on the appeal and his application for a grant of legal aid was refused. While his part-time employment yields income of between $700 and $800 per week, his liabilities apparently far exceed his assets. No other aspect of s 117(2A) of the Act was addressed as relevant. Although the father was entirely unsuccessful in his appeal, we consider the parties should bear their own legal costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy and Austin JJ) delivered on 12 May 2017.

Associate: 

Date: 12 May 2017