BIRCHER & BIRCHER

[2020] FamCAFC 214

FAMILY COURT OF AUSTRALIA

BIRCHER & BIRCHER [2020] FamCAFC 214

FAMILY LAW – APPEAL – Parenting – Appeal from final parenting orders providing for the children to spend equal time with the parties and the allocation of parental responsibility – Where the grounds of appeal assert mistake of fact, mistake of law and inadequate reasons – Where findings made by the primary judge were open on the evidence – Where the primary judge correctly considered how evidence affected the determination of contentious issues – Where the primary judge’s reasons adequately explain the decisions relating to the allocation of parental responsibility and the equal time regime – Where there is a failure by the primary judge to provide adequate reasons to explain why a communication order was made in particular terms – Where that error of law is not sufficient to sustain the appeal – No miscarriage of justice – Appeal dismissed – No order as to costs.

FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Where the Independent Children’s Lawyer contended the proposed further evidence did not advance the appeal – Where the further evidence sought to be adduced would not help demonstrate any error made by the primary judge – Evidence rejected – Application dismissed.

Family Law Act 1975 (Cth) Pt VII, s 117

Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Pettitt v Dunkley [1971] 1 NSWLR 376
U v U (2002) 211 CLR 238; [2002] HCA 36

APPELLANT: Ms Bircher

RESPONDENT: Mr Bircher

INDEPENDENT CHILDREN’S LAWYER: Cornerstone Law Offices

FILE NUMBER: BRC 1459 of 2011

APPEAL NUMBER: NOA 108 of 2019

DATE DELIVERED: 31 August 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Brisbane (via video link)

JUDGMENT OF: Strickland, Kent & Austin JJ

HEARING DATE: 29 July 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27 November 2019

LOWER COURT MNC: [2019] FamCA 890

REPRESENTATION

THE APPELLANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cornerstone Law Offices

Orders

1. The Application in an Appeal filed on 13 July 2020 be dismissed.

2. The appeal be dismissed.

3. 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 Bircher & Bircher 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: NOA 108 of 2019
File Number: BRC 1459 of 2011

Ms Bircher

Appellant

And

Mr Bircher

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. On 27 November 2019, the primary judge made orders to determine the parenting dispute between the parties over their three children under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The orders ended a litigious saga which began in 2011.

2. Despite the longevity of the parties’ dispute, the breadth of the factual contest was eventually quite narrow. By the time the trial concluded in November 2019, the dispute was confined to two essential issues: first, whether the children should live with the parties for equal time or instead remain living primarily with the mother and continue spending substantial and significant time with the father; and secondly, the manner in which parental responsibility for the children should be allocated between the parties.

3. The primary judge determined the children should live with the parties for equal time, consistent with the father’s proposal, but contrary to the proposals of the mother and the Independent Children’s Lawyer (“the ICL”), who both sought the retention of the existing regime under which the children spend five nights in each fortnight with the father (aside from holidays and other special occasions).

4. Each party proposed that he or she acquire sole parental responsibility for the children, whereas the ICL proposed that the parties have equal shared parental responsibility. The primary judge rejected each of those proposals. Instead, the father was given sole parental responsibility for decisions about the children’s health, the mother was given sole parental responsibility for choosing which high school the two youngest children should attend, and otherwise the parties were vested with equal shared parental responsibility.

5. The mother appealed from the orders, save for the order allocating to her sole parental responsibility in respect of the choice of high school for the two youngest children. Her appeal was resisted by both the father and the ICL.

6. For the reasons which follow, the appeal should be dismissed.

Background

1. The parties married in 2003.

2. Their three children were born between 2007 and 2009 and, at the time of trial, were aged between 12 and 10 years.

3. The primary judge found that, even though the parties did not finally separate until 2012, the litigation between them under Part VII of the Act was started beforehand in 2011 (at [10], [14]).

4. Final parenting orders were made by the Federal Circuit Court of Australia in 2014, but those orders were varied in 2015 and 2017. Under those orders, the parties had equal shared parental responsibility for the children, the children lived with the mother, and they spent substantial and significant time with the father – amounting to five nights each fortnight in school terms and half of all school holidays (at [2]).

5. The mother re-commenced proceedings in January 2018 and, shortly afterwards, the proceedings were transferred from the Federal Circuit Court of Australia to the Family Court of Australia. At that time, the mother’s proposal was to acquire sole parental responsibility for the children and to constrict the time spent by the children with the father to only two nights each fortnight. The father joined issue and responded with an application for the children to live with the parties for equal time and for him to have sole parental responsibility for “specific major long term issues” related to the children (at [3]).

6. By the conclusion of the trial, the mother had resiled from her initial proposal to wind back the time spent by the children with the father, but still pressed to acquire sole parental responsibility for the children (at [4], [7]). The father’s proposal did not change (at [8]). By and large, the ICL pressed for the retention of the existing regime (at [9]).

The appeal

1. Since its institution in December 2019, the appeal has been amended twice. In its current iteration, the appeal comprises six grounds, which are considered out of sequence.

Ground 5 – mistake of fact

1. In the reasons for judgment, the primary judge made findings in these terms:

   34.The mother demonstrated significant resistance to any suggestion that [the two youngest children] do not have ASD [autism spectrum disorder] and indicated her intention to continue to rely upon the old diagnoses for the purposes of continuing to receive a carer’s pension and educational support which the mother believes [the two youngest children] require.

2. As can be seen, the paragraph comprises two findings: first, the mother demonstrated significant resistance to any suggestion that the two youngest children do not now suffer from autism spectrum disorder; and secondly, the mother indicated she intended to continue relying upon their former diagnosis of the disorder so she could continue receiving attendant monetary benefits.

3. This ground of appeal asserted the primary judge erred by making one or the other of those findings because it is not supported by the evidence. Regrettably, the mother did not specify which of the two findings she contended was not open to the primary judge, but both in fact were.

4. Dr G, a paediatrician, was engaged as a single expert witness in the proceedings. Dr G assessed the children and opined that the two youngest children do not have autism spectrum disorder and should be treated as “normal developing children”. Although the children were diagnosed as suffering from autism spectrum disorder in 2010 and 2012, Dr G said it was necessary to periodically review such diagnoses in children because it is a “developmental disorder” and symptoms may change. The primary judge expressly accepted that evidence as being correct (at [30]–[31]), which finding was not challenged in the appeal.

5. During the trial, the mother was evasive when the issue of her acceptance of that expert evidence was raised, even when asked direct questions. The mother told the primary judge she intended to ask Dr G questions about her diagnostic opinion evidence, which she subsequently did, though Dr G held firmly to her opinions. Then, in final submissions, the mother and the primary judge had these exchanges:

   HER HONOUR: Yes. So you’re still the position, are you, that [the two youngest children] have ASD [autism spectrum disorder]?

   [THE MOTHER]: They still have difficulties, and they have challenges, so I’m not entirely convinced. No, your Honour.

   …

   HER HONOUR: So would you be continuing to rely upon the original diagnosis?

   [THE MOTHER]: Probably.

   (Transcript 22 November 2019, p.311 line 23 to p.312 line 9)

6. It must follow, given the controversy in the evidence and the exchange during final submissions, that the mother “demonstrated significant resistance” to the idea that the two youngest children are no longer afflicted by autism spectrum disorder. The first finding was correct.

7. The mother conceded that, due to the two youngest children’s past diagnosis of autism spectrum disorder, she received financial assistance from Centrelink of about $900 per fortnight to help her properly care for and support them. The mother also conceded she did not tell Centrelink of Dr G’s opinion that the two youngest children no longer suffer from the condition, since she considered there was “no change to the diagnosis” and “there are forms you have to go through for Centrelink”. She also admitted that if the children no longer suffer from autism spectrum disorder then she would be ineligible for the current level of financial assistance from Centrelink and her income would be reduced. In final submissions, when quizzed by the primary judge, the mother acknowledged she would rely upon the original diagnosis of the children’s autism spectrum disorder to maintain eligibility for the Centrelink payment, as this excerpt of transcript reveals:

   HER HONOUR: Okay. But would you be relying upon the original diagnosis.

   [THE MOTHER]: For what?

   HER HONOUR: Well, you get a carer’s pension - - -

   [THE MOTHER]: Yes.

   HER HONOUR: - - - because they have ASD [autism spectrum disorder].

   [THE MOTHER]: Okay. Yes.

   (Transcript 22 November 2019, p.311 line 43 to p.312 line 5)

8. Accordingly, the second finding was also correct.

Ground 6 – mistake of law

1. The parties’ differing perceptions about the state of the children’s health and the extent to which they require therapeutic medical intervention was a significant source of friction between them. The father contended the mother engaged in “doctor shopping” and had created a false reality for the children that they suffer from disability when they do not, which theory the mother denied. The primary judge observed their difference of perception need not be factually determined (at [72]), but was still relevant to the allocation of parental responsibility for the children and the issue was discussed by her Honour in that context.

2. During the trial, without objection by either party, the ICL tendered a list of the doctors and other medical service providers to whom the children had been presented (Exhibit 4). The ICL informed the primary judge, without demurrer, that the list was compiled collaboratively with the parties.

3. In the reasons for judgment, the primary judge referred to the exhibit when finding that the children had “attended upon 47 different health professionals since birth” (at [29]), which the Family Consultant considered to be “excessive” and the primary judge found to be “extraordinary” (at [71]).

4. Under this ground of appeal, the mother alleged the primary judge erred by merely “considering” Exhibit 4, but the ground of appeal must be rejected. Once the document was in evidence, the primary judge was obliged to consider both the contents of the list and how it affected the determination of the contentious issues. It had obvious implications for the resolution of the dispute over who should hold parental responsibility for the children, particularly in relation to decisions related to their health.

5. In her Summary of Argument, the mother made much broader submissions than were reasonably embraced by the ground of appeal. She contended her Honour did not allow “exploration” of the list, erred by finding the professionals were consulted “as a result of different presentations by the parties”, erred by finding the number of professionals on the list was “excessive”, and erred by finding the excessive consultations were caused by her. The mother also attempted to give evidence in her written submissions to explain the list in a more benign way.

6. Those superfluous submissions are rejected because:

   a)the mother acquiesced to the ICL’s submission that she helped compile the list;

   b)she consented to the tender of the list in evidence;

   c)she did not ask the primary judge for permission to give additional evidence-in-chief to explain the contents of the list, so she cannot purport to give such evidence now in the form of submissions;

   d)she did not ask to cross-examine the father about the contents of the list;

   e)she made no final submission to the primary judge about the list, even though she was well aware of the father’s allegation that she went “doctor shopping”; and

   f)this ground of appeal did not comprise any complaint about mistakes of fact concerning the list and its contents.

Grounds 1 and 2 – parental responsibility

1. The alleged errors identified by these grounds were, first, the order was made against the weight of evidence, and secondly, insufficient reasons were given for the order.

2. The flavour of the evidence commonly adduced by the parties was that they experience difficulty in reaching consensus about significant decisions relating to the children, particularly those concerning their health care and the schools they should attend.

3. The father began the trial by seeking sole parental responsibility for all decisions relating to the “health, welfare, education, religion and development” of the children, but concluded the trial by seeking sole parental responsibility simpliciter. In his final submissions at trial, he acceded to the formative idea that he could have sole parental responsibility for decisions related to the children’s health, while the mother could have sole parental responsibility for choosing which high school the two youngest children should attend.

4. Throughout the trial, the mother sought orders giving her sole parental responsibility for the children in all respects. The primary judge incorrectly recorded that the mother instead acceded in final submissions to an order allocating her sole parental responsibility for the children in respect of only “major long term issues” (at [7]), but the mistake was immaterial because the primary judge well understood the mother refused to accept having any less exclusive responsibility than that. In final submissions, when the prospect of fragmentation of parental responsibility for the children was mooted, the mother explained why she considered it was important for her to have sole parental responsibility in respect of decisions related to both their health and education. It must therefore follow that she could not envisage the parties sharing parental responsibility for at least the two issues upon which they could not then agree: the high school the two youngest children should attend and the children’s medical care.

5. In the reasons for judgment, the primary judge explained the decision to give the mother sole parental responsibility for the high school enrolment of the two youngest children, to give the father sole parental responsibility for health decisions, and to otherwise confer upon the parties equal shared parental responsibility for the children. Given the existent disputes between the parties about the high school at which the two youngest children should be enrolled and the children’s engagement with so many different health professionals, the primary judge was undoubtedly correct to observe that some mechanism was required to break the impasse over those two issues.

6. The primary judge’s succinct reasons were to the point and are worth repeating:

   5.… It was ultimately agreed between the parties that the mother would have sole parental responsibility to decide which high school the younger two children would attend and that she would bear sole responsibility for the school fees.

   …

   73.Unfortunately the conflict between these parents will continue so there needs to be a mechanism for decisions about the children’s health issues to be resolved. The parents, or more importantly the children, cannot continue to live their lives through the courts. Furthermore, the children cannot continue to be caught in the middle of disputes about whether or not they have an illness or disorder or require medication or not. Another example of the impact on the children of the parent’s opposing views is that they take prescribed medication in one household for sleep disturbance (the mother gives the children Melatonin each evening) and not take it in the other household (the father says the children do not have trouble sleeping in his household). The children seem, on the father’s account, to present as healthier and with fewer symptoms in his household and the father appears to be more amenable to the idea that the children are healthy.

   74.Accordingly, I propose to order that the father have sole parental responsibility for all health issues and, so as to ensure the children receive the same medical care in each household…

   …

   77.At the end of the trial the parties agreed that the mother could make the decision about where the younger two children go to high school (it seems likely that they will attend the same high school as [the eldest child]). The parents were unable to agree about [the eldest child’s] high school earlier this year and the Court had to determine the issue. The dispute caused significant stress and anxiety for [the eldest child]. In the current proceedings the mother has agreed to pay the school fees for [the two youngest children] as she does for [the eldest child]. On this basis the issue of which high school [the two youngest children] will attend was resolved.

   78.It is not apparent that there are other major long term issues which will require decisions e.g. religion, names etc. but in the event there are, I propose to order that the parents have equal shared parental responsibility about major long term issues other than health and the high school to be attended by [the two youngest children]. While a joint decision will be required about other major long term issues I consider the likelihood of dispute about such matters to be less likely.

7. Such reasons adequately expose the decision made about the manner in which parental responsibility for the children was allocated.

8. The mother filed an Application in an Appeal on 13 July 2020 seeking to adduce further evidence in the appeal, intending that it would strengthen her submissions in relation to these two grounds of appeal. The father filed a Response on 24 July 2020, seeking dismissal of the mother’s application. The ICL contended the proposed further evidence did not advance the appeal, but neither consented nor objected to the mother’s application.

1. The relevant evidence the mother sought to adduce comprised the “Personalised Learning Plans” created for the two youngest children by their school staff in May 2019. In her supporting affidavit, the mother said:

   4.I consider that the [primary] judge would have come to a different decision had these been made available to [her Honour] at the time.

   5.… A different outcome would have been determined had this information been available to all parties.

2. Presumably, the mother was there referring to the prospect of a different decision being reached about the allocation of parental responsibility for the children, to which particular decision these two grounds of appeal are directed.

3. The mother deposed how she provided copies of the Personalised Learning Plans to Dr G well before trial, so the single expert must have been aware of the documents when formulating her opinions. The documents were not discretely mentioned in Dr G’s report, but the mother did not cross-examine the expert about the omission of any reference to them in the expert report. Having given the documents to Dr G to consider and then deciding to refrain from asking Dr G any questions at trial about the significance of the documents, the mother cannot now submit that the expert failed to take them into account. There is no way she could know.

4. Although the mother may genuinely believe that the receipt of the documents in evidence would have resulted in the primary judge reaching a different decision, her belief is not proof of the fact. The mother did not articulate how such evidence would have made any difference to the decision made by the primary judge about the manner in which parental responsibility for the children was allocated. In fact, admission of the documents as further evidence in the appeal would make no difference at all because the Personalised Learning Plans simply tabulate the children’s academic strengths, difficulties and needs, as they are perceived by the members of the school staff who contributed to the compilation of the Plans. The children’s scholastic performance says nothing about the parties’ capacity to share parental responsibility for decisions about their education or health care. Since the receipt of the Personalised Learning Plans as further evidence in the appeal would not help demonstrate any error made by the primary judge, the evidence is rejected and the Application in an Appeal is dismissed.

5. The mother’s contention that the decision to give the father sole parental responsibility for decisions concerning the children’s health care was against the weight of evidence is rejected, even if the evidence was to include the Personalised Learning Plans. In trying to make good that argument, the mother simply adverted to evidence which demonstrated she had historically taken primary responsibility for making decisions related to the children’s health care, which fact was not in doubt. The point of tension was whether she had done so reasonably in the children’s best interests. The father contended she had not, with which opinion the Family Consultant agreed and which fact the primary judge found established (at [71]).

6. Although the mother seemed not to realise, these two grounds of appeal were not established by emphasising her belief in her superior capacity to make decisions for the children or by the repetition of her submissions about how the evidence at trial should have been properly construed.

7. The mother’s submissions in her Summary of Argument that the father is “not able to make decisions on his own”, that he is “very controlling, secretive, uncooperative, [and] unable to compromise or negotiate”, and that “[e]qual responsibility for education was rebutted”, which submissions supposedly revealed the flaw in the orders made allocating parental responsibility for the children, are rejected as bare opinions.

Ground 4 – equal time

1. This ground of appeal asserted the primary judge gave insufficient reasons for the order requiring the children to live with the parties for equal time.

2. Prior to the trial, the children lived primarily with the mother, but spent five nights each fortnight during school terms with the father. Despite starting the litigation with the objective of reducing the time spent by the children with the father, the mother’s case evolved to the point where she wanted to retain the existing regime. The father, however, wanted to expand his engagement with the children such that they live with him for equal time. So analysed, the dispute was over whether the children should be in the father’s care for five or seven nights of each fortnight during school terms. Necessarily, there was an underlying agreement about the quality of the children’s relationships with both parties and the absence of any risk of harm to the children in either party’s care.

3. In the reasons for judgment, the primary judge identified, considered and weighed the considerations which materially influenced that decision. The factors which militated in favour of an “equal time” regime were the children’s development of some resilience to withstand the parties’ conflict, the greater ease in dealing with the children’s school attendance, two of the children expressed a desire for equal time, an equal time arrangement did not really require any additional cooperation between the parties, the children would benefit from more time with the father, and weekly changeovers at school on Fridays would be beneficial (at [58], [59], [62], [63], [65], [70]). The factors which militated in favour of retention of the existing regime were the children’s familiarity with it, the eldest child’s anxiety about any change, the Family Consultant said the existing regime was the safest option, and the children would then need to spend some extra time in after-school care (at [57], [60], [61], [66], [67]). However, on balance, her Honour concluded the advantages of equal time outweighed the disadvantages (at [69]).

4. Those reasons transparently reveal why the primary judge concluded an equal time regime would best suit the children’s needs.

5. This ground was confined to a complaint about the insufficiency of reasons so it is unnecessary to consider the mother’s wider submissions, which impermissibly strayed to why she considers the decision was wrong and why the existing arrangement should have been retained.

Ground 3 – telephone communication

1. The primary judge ordered that the children should communicate by telephone with each party once per week for up to 30 minutes when living with the other party (Order 11).

2. This ground of appeal asserted the primary judge erred by making that order when neither of the parties sought it, and additionally, insufficient reasons were given for the order.

3. The ICL and the mother both sought an order for the children to telephone the non-residential parent three times each week, but that was in the context of their proposals for the children to continue living primarily with the mother. The father proposed an order in similar terms, but capping the telephone calls at 30 minutes duration, even though he proposed that the children live with the parties for equal time on weekly rotations.

4. Given there was little difference between the various proposals concerning telephone communication, it excited little interest during the trial. However, it was an issue taken up by the primary judge with the ICL during final submissions in these terms:

   HER HONOUR: Now, what about – I see that you’re suggesting that the telephone calls three times a week continue. I think that was in the 2014 order.

   [COUNSEL FOR THE ICL]: I think it is, your Honour. I didn’t take – I must say I didn’t pay particular attention to that. I should have. But I wonder if that’s something that’s more fraught then - - -

   HER HONOUR: Well, I think it might be - - -

   [COUNSEL FOR THE ICL]: Or whether it’s necessary.

   HER HONOUR: - - - because I see that – well, (a) it interrupts the children’s time with the other parent to an extent that I don’t see is justified, particularly as they’re getting older; and, secondly, the children have expressed some dissatisfaction with having to do that.

   [COUNSEL FOR THE ICL]: Yes. If it was a week-about, your Honour, I’d be quite happy for 16 to be taken out - - -

   HER HONOUR: Yes.

   [COUNSEL FOR THE ICL]: - - - from my perspective.

   HER HONOUR: I mean, there could perhaps be some provision for a telephone call once a week.

   [COUNSEL FOR THE ICL]: I agree with that, your Honour. Three times a week might be too much. Probably that was more appropriate where the children weren’t seeing the father very often and keeping in contact with him, because that’s more designed to them ringing him rather than the mother…

   (Transcript 22 November 2019, p.273 line 40 to p.274 line 21)

5. Having heard that discussion, like the ICL, the father acceded to the good sense of the primary judge’s formative views, even though he did not formally amend his application.

6. The mother initially told the primary judge she took issue with the ICL’s application for telephone communication to occur three times each week (being proposed Order 16 in Exhibit 7), without saying in what way she objected, but she then withdrew her objection. Properly understood, the mother did not resile from her own application for an order requiring the children to communicate by telephone three times each week with the non-residential parent.

7. While the mother now complains about the appealed order constricting telephone communication to only once per week, she submitted in the appeal:

   …The [f]ather has many times forced the children to hang up on the [m]other and changed the phone call times without agreement … and reducing the times to be able to speak to the children will make this issue worse…

8. If the mother is aggrieved by the way in which telephone communication failed in the past, then maintaining criticism of the primary judge for reducing the telephone calls from three times per week to only once per week seems illogical, if not pointless. If such communication truly is problematic then it is likely to remain so the more frequently it must be endured, to which paradox the mother seemed oblivious.

9. It did not matter that an order constricting telephone communication to once per week was not proposed by either party or the ICL, because the primary judge was obliged to make orders designed to promote the children’s best interests regardless of their proposals (U v U (2002) 211 CLR 238 at 284-285, 263) and, to ensure procedural fairness, the issue was raised by the primary judge during final submissions.

10. Nonetheless, while the issue was debated with the parties and the ICL in final submissions, it is not mentioned anywhere in the reasons for judgment. Reasons must provide, among other things, an explanation for findings and the ultimate conclusions reached by the judge. While a judge is not required to deal with every argument and issue that arises in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection (DL v The Queen (2018) 266 CLR 1 at [130], [131]). Here, the mother maintained her application and argued for telephone communication thrice each week and the appealed order provided for only once each week, without any explanation at all being exposed by the reasons for judgment. The reservations expressed by the primary judge during the final submissions about the suitability of three telephone calls each week cannot be simply transposed into the reasons, where they do not exist.

11. The failure of the reasons for judgment to explain the form of the telephone communication order is an error of law (Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; DL v The Queen at [131]), but the error of law does not result in the appeal succeeding.

12. As discussed in Lane & Nichols (2016) FLC 93-750 (at [73]–[79]) by reference to the decision of the High Court of Australia in Conway v The Queen (2002) 209 CLR 203, the powers of this Court in exercise of its appellate jurisdiction conferred under Part X of the Act includes the power to dismiss an appeal in any case where an error of law, fact or other wrong has not resulted in any miscarriage of justice.

13. We are comfortably satisfied that the subject error has not resulted in any miscarriage of justice. In addition to the matters we have already identified in support of this conclusion, we observe that the primary judge was correct to raise with the ICL how, if the children live with the parties for equal time on weekly rotations, their communication by telephone with the non-residential parent on three occasions each alternating week is liable to create unnecessary interruption to their residential experience with the other parent. Other considerations only serve to galvanise that view: the children are getting older and do not require such frequent communication with the parties when they see them from week to week; the evidence suggests the children have expressed some dissatisfaction in the past about three telephone calls each week being too much; and the mother complained in the appeal about the unsuccessful implementation of the telephone calls in the past.

14. Order 11 was therefore soundly made, even though not explained, and thus this error has not resulted in any miscarriage of justice.

Conclusion and costs

1. The appeal is dismissed for lack of merit. The error exposed under Ground 3 was not sufficient to sustain the appeal, given the error has not resulted in any miscarriage of justice.

2. The father was self-represented in the appeal and did not seek any order for costs in the event of the appeal’s dismissal.

3. The ICL initially sought that her costs be paid by the mother if the appeal failed and, in accordance with procedural orders made by the Regional Appeals Registrar, filed a schedule of her costs in advance of the appeals sittings. The ICL’s costs amounted to $6,499.01, which is a modest amount. However, the mother was self-represented in the appeal and professed difficult financial circumstances, so as to invoke the application of s 117(4)(b) of the Act. Commendably, the ICL’s counsel did not require the mother to vindicate her submission by adducing evidence to that effect and, given his willingness to accept that s 117(4)(b) of the Act applied, abandoned the application for costs.

4. There will be no order for costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Austin JJ) delivered on 31 August 2020.

Associate:

Date:  31 August 2020