Blaxland & Hovel

FAMILY COURT OF AUSTRALIA

BLAXLAND & HOVEL

[2007] FamCA 1087

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – FINDINGS OF FACT – Not established that Federal Magistrate erred in findings of fact but that findings reasonably open. Australian Coal & Shale Employee’s Federation v The Commonwealth (1953) 94 CLR 621 and Fox v Percy (2003) 214 CLR 118 cited.

FAMILY LAW - DISCRETION – That Federal Magistrate gave inappropriate weight to findings and drew conclusions without appropriate foundations not established.

FAMILY LAW - EVIDENCE – EXPERT EVIDENCE – Not established that Federal Magistrate erred by failing to have regard to, or give proper weight to, expert opinion evidence. Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705.

FAMILY LAW - LAW – Assertion that Federal Magistrate erred in application of relevant law not established.

FAMILY LAW - FURTHER EVIDENCE – Not established that to accept the further evidence identified in the application to adduce further evidence would show Federal Magistrate to have been in error. CDJ v VAJ (1998) 197 CLR 172 cited; s 93A Family Law Act 1975 discussed.

Family Law Act of 1975 (Cth) Section 93A

House v The King (1936) 55 CLR 499
AMS & AIF (1999) 199 CLR 160
Gronow v Gronow (1979) 144 CLR 513
De Winter v De Winter (1979) 23 ALR 211
Fox v Percy (2003) 214 CLR 118
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
D v F [2001] FamCA 382

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

MR BLAXLAND

RESPONDENT:

MR HOVEL

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

NCM

508

2006

APPEAL NUMBER:

2007

DATE DELIVERED:

14 September 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Coleman J.

HEARING DATE:

3 September 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

13 February 2007

LOWER COURT MNC:

[2007] FMCAfam 146

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Rugendyke

SOLICITOR FOR THE APPELLANT:

Mr Rugendyke Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Davies

SOLICITOR FOR THE RESPONDENT:

Abbott Pardy & Jenkins

Orders

That the appeal be dismissed.
That there be no order for costs.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Blaxland & Hovel.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 31 OF 2007
File Number: NCM 508 of 2006

MR BLAXLAND

Appellant

And

MR HOVEL

Respondent

REASONS FOR JUDGMENT

By amended Notice of Appeal dated 27 April 2007 Mr Blaxland (“the appellant”) appealed against orders made by Federal Magistrate Coakes on 13 February 2007 in proceedings between the appellant and Mr Hovel (“the respondent”) with respect to B (“the child”) born … February 2000. The appellant is the child’s father. The child’s mother is deceased.
The appellant in this appeal is not the biological father of the respondent to the appeal who is the half-brother of the child.
The orders of the learned Federal Magistrate, made after a trial in August 2006, provided that the child live with the respondent and spend time with and communicate with the appellant at specified times. The respondent was given sole responsibility for the long-term and day to day decisions regarding the care, welfare and development of the child, although the appellant was given responsibility for such day to day decisions whilst the child is spending time with him. The respondent was to keep the appellant informed of health and schooling issues in addition to other major long-term issues concerning the child’s care, welfare and development. [Appeal Book Vol 1, pages 7 – 9].
In lieu of those orders, the appellant sought orders providing that the child live with the appellant and spend time with and communicate with the respondent in similar terms to those provided by the learned Federal Magistrate’s orders. [Appeal Book Vol 1, pages 3 – 4].
The respondent resisted the appellant’s appeal and sought to maintain the learned Federal Magistrate’s orders.
On or about 30 July 2007 the appellant filed an application for leave to adduce further evidence in the appeal pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”).

The judgment of the learned Federal Magistrate

The learned Federal Magistrate published his settled Reasons for Judgment delivered on 13 February 2007 on 16 March 2007. The introduction to such Reasons for Judgment provides a background to the appeal to this Court.
The child the subject of the proceedings, B, was aged 7 at the time of his Honour’s Judgment. The respondent was then aged 27 and the appellant was then aged 34.
The mother of B and the respondent in this appeal died on in December 2005 aged 43. Apart from B and the respondent brother to this appeal, the deceased had another child M, who was born in April 1990. The appellant in this appeal is not the natural biological father of M.
His Honour accurately identified competing proposals of the parties. Essentially, the respondent sought that B live with him and be cared for by him and the deceased mother’s brother, John Hovel and the deceased mother’s sister, Jan Hovel in the G area. The appellant sought that B reside with him in the A area. Both parties proposed that there be contact, of necessity, by virtue of the distance between their respective places of residence, that being essentially during school holiday periods.
Under the heading “Background” the learned Federal Magistrate detailed the circumstances of each of the parties. The appellant was unemployed, lived with his parents at A and received a Centrelink disability pension. The respondent was in full-time employment in G.
The appellant and the deceased mother cohabited from approximately 1998 until July 2005.
On 30 July 2005, the appellant committed an armed robbery, was arrested shortly thereafter, and remanded in custody until the end of April 2006. The appellant was then placed on parole which terminates in March 2008.
From the time of the appellant’s arrest until the mother’s death some 5 months later B lived primarily with the mother. The cause of the mother’s death had not been determined at the time of the trial before the learned Federal Magistrate. The circumstances surrounding the mother’s death did not assume pivotal significance in the proceedings before his Honour.
From the time of the mother’s death until his Honour’s Judgment B lived with the respondent in G. His Honour’s orders continued that situation. Subject to any inferences or conclusions which this Court may draw by reference to further evidence sought to be adduced on behalf of the appellant, B has now been living with the respondent for a period approaching 2 years.
Under the heading “The relevant law” the learned Federal Magistrate set out in his judgment the legislative provisions which governed the proceedings before him. No part of this appeal involves any assertion that his Honour either erroneously stated or applied the correct law.
Under the heading “The hearing”, the learned Federal Magistrate referred in detail to the evidence of witnesses who were cross-examined before him, including Mr P, the author of the welfare report prepared for the proceedings and tendered in evidence before his Honour. For reasons which he detailed, and which are not controversial in this appeal, the learned Federal Magistrate attached no weight to B’s wishes as they had been expressed as he was “not of an age to have developed sufficiently to form a valid opinion as to where he would like to live”. [Appeal Book Vol 1, page 21, paragraph 48].
The learned Federal Magistrate accepted the criticism levelled at the respondent by Mr P for “not recognising the need for B to undergo grief counselling following their mother’s death”. [Appeal Book Vol 1, page 21, paragraph 48].
The learned Federal Magistrate referred to the respondent’s description of his relationship with B as “that of his big brother of whom he cares very much and it would never change”. His Honour considered that the respondent “demonstrated good insight” in ways which he detailed, and concluded that the respondent was “well aware (of) the challenges he faces and will have the wisdom and maturity to discharge his adopted role as parent of B if that is the outcome of his case”. [Appeal Book Vol 1, page 22, paragraph 49].
The learned Federal Magistrate considered the evidence in relation to the respondent’s hours of work and to the respondent’s recognition of “the very substantial help given to him in weekday care of B ” by John Hovel and Jan Hovel, concluding that it “enabled him to look after B and that without that help it would be very hard for him”. He added, “I infer from this evidence that Mr Hovel [the respondent] acknowledges he would not be able to look after B without their help”. [Appeal Book Vol 1, page 22, paragraph 50].
For reasons which he detailed, the learned Federal Magistrate found the respondent to be “an honest and sincere young man and a witness of truth”. Having referred to some criticisms of him by Mr P [Appeal Book Vol 1, page 23, paragraph 57] the learned Federal Magistrate concluded that he was “not left with the impression that Mr Hovel [the respondent] appeared stressed by the current proceedings” and had revealed “a high level of insight into B’s needs and a sensitivity as to the need for a relationship with his father” [Appeal Book Vol 1, pages 23 – 24, paragraph 58].
His Honour also referred to criticisms by Mr P of the parenting capacity of the respondent [Appeal Book Vol 1, page 24, paragraph 59] but concluded that “having observed and listened to Mr Hovel giving evidence, I find that on the balance of probabilities, Mr Hovel does have a parenting capacity to effectively parent B ” [Appeal Book Vol 1, page 24, paragraph 60].
The learned Federal Magistrate referred to the evidence of the respondent as to his involvement with aspects of B’s life and to his intention to “shortly move into his own home in G next to the maternal aunt Jan Hovel”. [Appeal Book Vol 1, page 24, paragraph 61].
His Honour was favourably impressed by the evidence of each of John Hovel and Jan Hovel, concluding that they were “honest and caring members of B’s family and both able and willing to continue to be involved in his care to the extent necessary”. [Appeal Book Vol 1, page 24, paragraph 63].
Extensive reference was then made by the learned Federal Magistrate to the evidence of the appellant who gave a “detailed history” of substance abuse commencing in 1990. Reference was made to the appellant’s negative urinalysis test results in May 2006. His Honour referred to the appellant’s criminal record, a number of aspects of which, uncontroversially for the purposes of the appeal, he recorded [Appeal Book Vol 1, page 25, paragraphs 65 – 68].
The trial Judge referred to the appellant’s “very poor recollection of the events” in relation to his past behaviour with respect to domestic violence and substance abuse. [Appeal Book Vol 1, page 27, paragraph 75]. The trial Judge viewed favourably the evidence of the paternal grandfather. [Appeal Book Vol 1, page 27, paragraph 78].
Reference was made to B’s schooling at G in 2005. B’s father, the appellant, and mother were cohabiting until July of that year. The appellant was incarcerated subsequent to 30 July 2005. B’s school attendance was poor during 2005. [Appeal Book Vol 1, page 29, paragraphs 85 & 86].
The learned Federal Magistrate concluded that until 30 July 2005 the appellant had “failed to ensure [B’s] attendances at school” for which he gave no explanation [Appeal Book Vol 1, page 29, paragraph 87]. His Honour concluded, by reference to the appellant’s assertion that the mother “lay in bed most of the time and that he was responsible for looking after [B] and getting him off to school” that the appellant had failed to discharge his obligations effectively given that B had missed 86 full school days during 2005, the consequence of which was that B was obliged to repeat kindergarten in 2006. [Appeal Book Vol 1, page 29, paragraph 85].
Reference was made to the appellant’s work proposals for the future, none of which assumed critical significance at trial or assumed significance in the appeal. [Appeal Book Vol 1, pages 29 – 30, paragraph 88].
The learned Federal Magistrate had “considerable concern that the father has made no attempt” to contact B in G after his release from prison in April 2006, a period of some four months leading up to the trial of the proceedings. [Appeal Book Vol 1, page 30, paragraph 92].
His Honour rejected the appellant’s evidence that he could not afford to travel to G or meet the costs of accommodation having found that the appellant had a surplus of income over expenditure [Appeal Book Vol 1, page 30, paragraph 91]. Other than for the purpose of an interview to enable a family report to be prepared, the appellant had accordingly not seen B for a period of 13 months. [Appeal Book Vol 1, page 31, paragraph 93].
His Honour said of the appellant: -
I listened very carefully to the father’s evidence and had the opportunity to observe him in the witness box. His recollection of events was very poor. He presented as flat, with very little animation. He did not present as enthusiastic about his application. I was left with the impression he felt obliged to oppose Mr [Hovel’s] application rather than wishing to actively pursue the orders he seeks. [Appeal Book Vol 1, page 31, paragraph 94].
The learned Federal Magistrate referred extensively to evidence of Mr P who recommended that B reside with the appellant and have contact with his maternal extended family from G on a substantial basis. [Appeal Book Vol 1, page 32, paragraph 97].
The trial Judge referred to Mr P’s expert opinion evidence that B would “adjust quite well if he were to move from [G] to [A]” to live with the appellant after a “settling in period”. [Appeal Book Vol 1, page 33, paragraph 101].
The learned Federal Magistrate referred to Mr P’s expert opinion evidence of the impact of B being cared for, both at present and into the future, by the respondent and maternal aunt and uncle, concluding that no evidence given by Mr P provided a basis for concern in that regard. [Appeal Book Vol 1, pages 33 – 34, paragraphs 102, 103, 104].
His Honour also referred to Mr P’s opinion that the appellant’s “revised proposal” for B to spend time with the appellant was appropriate. [Appeal Book Vol 1, page 34, paragraph 105]. The learned Federal Magistrate concluded that the respondent had responsibly and “effectively” looked out for B prior to his mother’s death and subsequent to his mother’s death committed himself to meeting B’s needs and demonstrated an appropriate capacity to do so. [Appeal Book Vol 1, page 35, paragraph 107].
The learned Federal Magistrate referred to Mr P’s evidence as to the absence of “discomfort” on B’s part in the presence of the appellant and to the child’s apparent security in the appellant’s presence. A number of other positive observations of the relationship between B and the appellant were also recorded. [Appeal Book Vol 1, page 35, paragraph 109]. Similarly, his Honour recorded a number of positive observations and absences of concern with respect to members of B’s maternal family. [Appeal Book Vol 1, page 36, paragraph 115].
Under the heading “Findings and conclusions”, the learned Federal Magistrate addressed the relevant statutory provisions by reference to his assessment of the evidence which he had seen and heard. [Appeal Book Vol 1, page 37 and following].
Having referred to a number of matters which did not assume significance in the proceedings before him, his Honour recorded his conclusion that B had a “strong, positive and growing attachment to Mr [Hovel] [the respondent] and one of affection” being “satisfied on the evidence [B] has a warm and comfortable relationship with his father”. [Appeal Book Vol 1, page 37, paragraph 123].
His Honour was also satisfied that the respondent recognised the importance of B’s relationship with the appellant and the need for regular and significant periods of time with him, subject to the practicalities arising from distance. His Honour was however “not able to conclude that the father recognises the significance of [B’s] relationship with Mr [Hovel] [the respondent], or that he is willing and able to ensure the continuity of that relationship to the same extent”. [Appeal Book Vol 1, page 38, paragraph 126].
A number of reasons were advanced in support of that conclusion by reference to findings of fact made earlier in his Honour’s reasons. Both the respondent and the appellant were criticised for failing to facilitate and ensure telephone contact following the appellant’s release from prison, the learned Federal Magistrate concluding that “the greater responsibility must lie with the father when he, at all times, knew where [B] was and with whom he was living and he had time available to him to attempt to communicate with the child”. [Appeal Book Vol 1, page 38, paragraph 128].
The likely effect of a change of circumstances was addressed by the learned Federal Magistrate who referred to the reality that B had not lived with the appellant since July 2005. He referred to the practical changes which would have to be made to B’s routine and concluded that a “very considerable adjustment” would be required by B, as a result of which his Honour was “reluctant to change the present stability for [B] unless there is compelling reason to do so”. [Appeal Book Vol 1, page 39, paragraph 131].
His Honour was satisfied that either party could provide appropriate accommodation for B and that the respondent was providing, and would continue to provide, for B’s emotional and intellectual needs. The capacity of the appellant to provide for both B’s emotional and intellectual needs was considered to be “limited” for a variety of reasons which his Honour had earlier and further detailed. [Appeal Book Vol 1, page 40, paragraph 135].
His Honour recorded that: -
[B] was observed by Mr [P] to be an engaging and well-mannered little boy. There are no issues raised by ether party concerning lifestyle, culture or traditions or any other characteristic and none which I find is relevant. [Appeal Book Vol 1, page 40, paragraph 138].
The attitudes of the appellant and respondent were considered by the learned Federal Magistrate, partly by reference to his earlier observations and partly by his recording that he found the respondent to have a “wholly appropriate attitude and responsibility towards [B]” whereas the appellant had “demonstrated a lack of responsibility both before and after the mother’s death”. [Appeal Book Vol 1, page 41, paragraph 140].
The respondent’s proposals were considered by the learned Federal Magistrate to be less uncertain than those of the appellant, for reasons which he detailed.
Reference was then made to submissions on behalf of the appellant in relation to the significance of his being a parent. His Honour accepted that he would “take into account” the submission on behalf of the appellant that the “factor of parenthood should, in this case, be determinative” [Appeal Book Vol 1, page 42, paragraph 146].
His Honour further concluded with respect to the attitudes of the appellant and respondent that: -
Whilst Mr [Hovel] cannot escape criticism for failing to enable [B] to have more frequent telephone contact with the father and be more active in arranging [B] to spend time with the father and being slow in relation to grief counselling, and I take into account the fact of the extended period the father was in prison, I find it is the father on balance who has failed [B] to a much greater extent in his responsibility as a parent as compared with Mr [H]ovel. [Appeal Book Vol 1, page 44, paragraph 152].

The recommendations of the Court counsellor as to the outcome of the proceedings were not accepted by the learned Federal Magistrate, for a variety of reasons. The first of those reasons was that “I had the benefit of seeing and hearing Mr [Hovel] and the father give their evidence, whereas Mr [P] did not. Mr [Hovel] impressed me as a committed, mature, thoughtful, insightful brother to [B], wiling and able to learn, emotionally stable and a responsible adult to bring up his brother. The father did not so impress me in any of those respects”. [Appeal Book Vol 4, page 45, paragraph 155].
His Honour then provided further elucidation of the reasons for his conclusion that B’s best interests would be served by his continuing to reside with the respondent. Those reasons were: -
(a)the present arrangement has been in place since December 2005 and has worked very well for [B] on the evidence before me;
(b)the risk of a disturbance to [B’s] emotional security and the demand otherwise upon him to resettle is not warranted;
(c)Mr [Hovel] is better able to provide for [B’s] physical, emotional and intellectual needs than the father and has shown he can do so;
(d)the father has been unreliable and has not given priority to [B’s] right and need to spend time with him;
(e)the father’s plans for the future have an element of uncertainty;
(f)the father is more likely to place his own emotional needs before that of [B] and I have regard in particular to his history of use of other substances;
(g)in my view, there is a risk of the father relapsing to abuse of alcohol and drugs, wether (sic) prohibited or prescribed, given his continuing physical pain and depression and this is more likely to occur when his present conditions of his release from prison expire;
(h)[B’s] relationship with his father is important for [B], that relationship is established and is able to be continued and developed by [B] spending time with his father which I find is more appropriate. [Appeal Book Vol 1, pages 45 – 46, paragraph 156(a) – (h)].

Relevant Law

The law governing the appeal is not in doubt and does not require extensive re-stating for present purposes. In deference to the submissions of Counsel for the parties however, reference to some of the authorities is appropriate.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-505: -
“…although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (House v The King (1936) 55 CLR 499 at 504-505)

In AMS & AIF [1999] 199 CLR 160, Kirby J said at 150: -
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved [In the Marriage of White [1995] FLC ¶92-648 applying In the Marriage of R [1998] FamCA 108; (1988) 23 Fam LR 456 at 471; In the Marriage of A and J [1995] FLC ¶92-619]. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial [Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 519; cf In the Marriage of Skeates-Udy and Skeates [1995] FLC ¶92-626 at 82,294 - 82,295; Moge v Moge (1992) 43 RFL (3rd) 345].
In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20: -
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, 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.
To the extent that the appellant’s grounds of appeal involve challenges to findings of fact made by the learned Federal Magistrate, the judgment of Gibbs J in De Winter v De Winter (1979) 23 ALR 211 at 217 is relevant. His Honour there said: -
It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. … There are many other authorities, from Young v Thomas [1892] 2 Ch 134 at 137 to Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
As will be seen, ultimately, though not necessarily so expressed, a number of challenges to the learned Federal Magistrate’s conclusions relate to his impressions of the parties. The judgment of the majority in the High Court (Gleeson CJ, Gummow and Kirby JJ) in Fox v Percy (2003) 214 CLR 118 is relevant in this context. In particular the following passage is significant (at 125 – 126): -
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (footnotes omitted)

The Grounds of Appeal

The appellant’s notice of appeal contained eleven grounds some of which were argued together. Counsel for the parties provided the Court with cogent and helpful written submissions, both in relation to the appeal and the application for leave to adduce further evidence.
It is appropriate, and necessary, to address each of the grounds of appeal.

Ground 1

Ground 1 provided: -
His Honour erred in finding that the respondent had demonstrated greater commitment to the responsibilities of parenthood than had the appellant. [Appeal Book Vol 1, page 3].
In oral submissions in support of his written outline in relation to this ground, and at other times during the course of his submissions, Counsel for the appellant used the expressions “scant evidence” and “fairly scant evidence”. Undoubtedly, having regard to the thoroughness of his submissions, both written and oral, the choice of those words was not inadvertent. Without putting too fine a point on it, there is a distinction between an absence of evidence and what might fairly be described as “scant” evidence. If the former is demonstrated, a controversial finding of fact will generally be successfully impugned. If the latter is established, that outcome is less certain.
It was common ground in the appeal that there was not extensive evidence in relation to a number of aspects of the life of the child whose future living arrangements were the subject matter of the proceedings before the learned Federal Magistrate. As the Court observed during the course of discussion on the hearing of the appeal, in the absence of more extensive evidence, it is unsurprising that a number of findings of the learned Federal Magistrate were reliant upon “scant” evidence.
It is relevant in those circumstances to remember that the onus of rebutting the presumption that the decision appealed from is correct rests with the appellant and that such onus is, as the authorities referred to earlier in these Reasons for Judgment confirm, a heavy onus. Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 at 627 recorded: -
[T]he true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
It was submitted, uncontroversially, that in the period between the death of B’s mother (December 2005) and the trial in the Federal Magistrate’s Court (August 2006) the care of B had been undertaken by the respondent, his uncle John Hovel and his aunt Jan Hovel.
It was submitted that the evidence suggested that the respondent’s involvement in B’s care, at least during the school week, was minimal. It was submitted, uncontroversially, that there was no evidence that B’s needs had been neglected during the period. It was conceded that there was no evidence that B had missed substantial time off school during the 2006 school year. Reliance was placed upon the failure of the respondent to attend grief counselling for B despite the topic having been raised with him by Mr P. It was submitted, correctly there can be no doubt, that after July 2005, when he was incarcerated, the appellant had no capacity to influence B’s attendances at school. Reliance was also placed upon the evidence of Mr P of an effective bond between B and the appellant, and a lack of abuse of B by the appellant before the appellant’s incarceration.
It was thus submitted: -
… in circumstances where [B’s] care in the eight months from the date of his mother’s death to the date of hearing had been primarily undertaken by the respondent’s uncle and where the respondent and his uncle had neglected what Mr. [P] described as [B’s] “immediate priority”, there was no evidence on which His Honour could safely conclude that the respondent had demonstrated greater commitment to the responsibilities of parenthood than had the appellant. [Appellant’s Summary of Argument, page 3, paragraph 1.5].
In oral submissions this ground was encapsulated as being that the learned Federal Magistrate had considered the involvement of the respondent in B’s life after December 2005 as more significant than the evidence revealed on the one hand, and that the significance of the bond between B and the appellant had been significantly depreciated on the other.
Without referring to them in detail, in his submissions in reply, Counsel for the respondent submitted that each of the matters relied upon by Counsel for the appellant had in fact been addressed by the learned Federal Magistrate, that the findings of fact made by him could not be seen as erroneous, and that, whilst other conclusions may have been reached, the appellant could not demonstrate that his Honour had erred in the respect complained of in this ground.
In order to appreciate the challenge which this ground raises, and relates to a matter which was pivotal to the learned Federal Magistrate’s ultimate conclusion, a consideration of his Honour’s reasoning process is appropriate.
The learned Federal Magistrate in fact did not make a finding in the terms suggested by this ground. That is not said critically, the ground itself encompassing a number of findings which Counsel for the appellant made clear were the subject of complaint. Rather than go directly to those particular findings, it is more instructive to examine the findings which precede them in his Honour’s reasons.
For reasons which he detailed, the learned Federal Magistrate found that the respondent “demonstrated good insight” and was “well aware (of) the challenges he faces” and would have “the wisdom and maturity to discharge is adopted role as parent of [B] if that is the outcome of this case”. [Appeal Book Vol 1, page 22, paragraph 49].
The learned Federal Magistrate was clearly aware that the respondent’s case was not that he would be the sole or necessarily major carer of B. His Honour recorded that the respondent “recognised that the very substantial help given to him in weekday care of [B] by Mr [John Hovel] and Mrs [Jan Hovel] enabled him to look after [B] and that without that help it would be very hard for him” from which his Honour inferred that the respondent “acknowledges he would not be able to look after [B] without their help”. [Appeal Book Vol 1, page 22, paragraph 50].
The respondent impressed the learned Federal Magistrate “as an honest and sincere young man and a witness of truth”. His Honour, for reasons which he gave, did not share Mr P’s opinion that the respondent was “stressed” by the Court proceedings. [Appeal Book Vol 1, pages 23 – 24]. His Honour recorded that “having observed and listened to Mr [Hovel] [the respondent] giving evidence, I find that on the balance of probabilities, Mr. [Hovel] does have the parenting capacity to effectively parent [B]”. [Appeal Book Vol 1, page 24, paragraph 60].
The learned Federal Magistrate recorded his conclusions with respect to the evidence of the appellant, having referred in detail to evidence relevant to the appellant’s history, none of which is controversial in the appeal. His Honour ultimately concluded, having seen and heard the appellant’s evidence, that his “recollection of events was very poor”, that he did not present as “enthusiastic about his application” leaving the trial Judge with “the impression he felt obliged to oppose Mr [Hovel’s] application rather than wishing to actively pursue the orders he seeks”. [Appeal Book Vol 1, page 31, paragraph 94].
His Honour referred to the evidence of Mr P in relation to “indicators for concern for the future” with respect to the appellant having regard to his “past drug use and violent behaviour”, to the fact that the appellant lives in “a supported environment”. [Appeal Book Vol 1, page 33, paragraphs 99 – 100]. He recorded, in some detail, and accepted, Mr P’s evidence of the observed relationship between B and the appellant, all of which was positive. The learned Federal Magistrate accepted that B was loved by both the respondent and the appellant and had a “strong, positive and growing attachment” to the respondent and “one of affection”. His relationship with the appellant being “warm and comfortable”. [Appeal Book Vol 1, page 37, paragraph 123].
His Honour concluded that the respondent’s evidence was “compelling that he recognises the importance of B’s relationship with his father and the need for regular and significant periods of time with him, subject to the practicalities given the distance between G in northern New South Wales and A, south of Sydney”. [Appeal Book Vol 1, page 38, paragraph 125].
His Honour was unable to conclude “that the father recognises the significance of [B’s] relationship” with the respondent or that “he is willing and able to ensure the continuity of that relationship to the same extent”. [Appeal Book Vol 1, page 38, paragraph 126]. Reasons for so concluding were detailed by his Honour, none of them having been shown to have been other than open to him.
For reasons which he detailed, and which have not been shown to have been erroneous or unsound, the learned Federal Magistrate concluded that there was “some doubt” as to the appellant’s willingness to maintain the relationship between B, the respondent and the maternal family. His Honour concluded that the appellant was “likely to be unwilling to maintain the relationship”. [Appeal Book Vol 1, page 38, paragraph 127].
The learned Federal Magistrate was even handed in relation to the failure to facilitate contact and telephone calls following the appellant’s release from prison but concluded, not unjustifiably in this Court’s view, that “the greater responsibility must lie with the father when he, at all times knew where [B] was and with whom he was living and he had time available to him to attempt to communicate with the child”. [Appeal Book Vol 1, page 38, paragraph 128].
The learned Federal Magistrate was satisfied that both parties could provide appropriate accommodation for B, a conclusion not controversial in this appeal. He was satisfied that the respondent had and would continue to provide for B’s emotional and intellectual needs whilst the capacity of the appellant to do so was “limited” for reasons which his Honour detailed. The findings of fact which underpin those reasons have not been shown to have been other than reasonably open to his Honour. [Appeal Book Vol 1, page 40, paragraph 135].
His Honour concluded that the respondent had “demonstrated a wholly appropriate attitude and responsibility towards [B]” whereas the appellant had “demonstrated a lack of responsibility before and after the mother’s death”. [Appeal Book Vol 1, page 41, paragraph 140]. The reasons for so concluding were detailed earlier in his Honour’s reasons, some of them having been referred to in the context of this ground, others being apparent from the review of the Reasons for Judgment provided by this Court at the commencement of its reasons.
The learned Federal Magistrate further concluded: -
Whilst Mr [Hovel] cannot escape criticism for failing to enable [B] to have more frequent telephone contact with the father and be more active in arranging [B] to spend time with the father and being slow in relation to grief counselling, and I take into account the fact of the extended period the father was in prison, I find it is the father on balance who has failed [B] to a much greater extent in his responsibility as a parent as compared with Mr [Hovel]. [Appeal Book Vol 1, page 44, paragraph 152].

In the course of giving his reasons for not adopting the recommendations of Mr P the learned Federal Magistrate recorded: -
I had the benefit of seeing and hearing Mr [Hovel] and the father give their evidence, whereas Mr [P] did not. Mr [Hovel] impressed me as a committed, mature, thoughtful, insightful brother to [B], willing and able to learn, emotionally stable and a responsible adult to bring up his brother. The father did not so impress me in any of those respects. [Appeal Book Vol 1, page 45, paragraph 155].
His Honour also (paragraph 156), in the eight subparagraphs there appearing, detailed other conclusions with respect to the competing proposals for B’s future care. [Appeal Book Vol 1, pages 45 – 46, paragraph 156].
Although it is less than entirely clear, to the extent that this ground is dependent upon establishing errors of fact, it has not been made out, either in relation to the learned Federal Magistrate having made errors of fact, or, if he did, that such errors were material to the exercise of his discretion.
To the extent that the ground involves challenges to the weight which his Honour gave to any finding of fact made by him, it has not been established that disproportionate weight was given either to factors favourable to the respondent or factors unfavourable to the appellant.
The observations of the High Court in Fox & Percy (supra) which have been set out earlier in these reasons are particularly relevant to this and a number of other challenges raised on behalf of the appellant in this appeal. The learned Federal Magistrate saw and heard the parties. His Honour had advantages in that regard which this Court lacked and which the High Court has traditionally recognised. Perhaps more in parenting cases under Part VII of the Act than in almost any other kind of proceedings, those advantages must be remembered and the temptation for this Court to interfere tempered by such remembrance.
Objectively, on any view of the evidence, including that of Mr P, this case could have been decided in favour of the appellant or the respondent, without the unsuccessful party thereby having a basis for successfully seeking appellate intervention. It does not follow automatically from that reality that the learned Federal Magistrate’s decision cannot be successfully impugned. Objectively, however, only by establishing a material error of fact, or drawing of inferences or reaching of conclusions not reasonably supportable by such findings of fact could this challenge succeed.
In this Court’s view, the learned Federal Magistrate carefully considered the evidence before him. He was uniquely placed to reach conclusions as to the attitudes and capacities of the relevant adults. This he did. It is not suggested that he failed to have regard to any material fact or circumstance, or had regard to any irrelevant fact or circumstance. The challenge is, though not so expressed, that the learned Federal Magistrate should have come to a different conclusion. The fact that his Honour may have come to another conclusion does not establish that the conclusion he reached was erroneous.
The Court is not satisfied that this challenge is made out. Indeed, as his Reasons for Judgment reveal, the learned Federal Magistrate very carefully, thoroughly and even-handedly considered the evidence before him and based his conclusions upon that evidence. No material error of fact having been revealed in that regard, this complaint cannot succeed.

Ground 2

Ground 2 provided: -
His Honour erred in assessing the respondent’s capacity for and commitment to the responsibilities of parenthood in failing to take into account evidence that indicated that the respondent’s aunt and uncle were primarily responsible for the care of the child [B] born … February, 2000 (“[B]”). [Appeal Book Vol 1, page 3].
In support of this ground the Court was directed to the evidence of the respondent’s hours of employment and the arrangements for the care of B which, at least in part, arose by virtue of the respondent’s comparative unavailability. In summary, it was submitted that the respondent had little involvement in B’s day-to-day routine, and played a minor role in the child’s care, B’s aunt and uncle being of far greater significance in that context.
It was also submitted that the respondent had done “nothing to promote a relationship or contact between [B] and the appellant, either while the appellant was in prison or after his release”. [Appellant’s Summary of Argument, page 4, para 2.3].
It was accordingly submitted that the overwhelming majority of B’s care during the school week was left to the child’s uncle and aunt, that the respondent had done nothing himself to arrange counselling for B, had proposed a very restrictive control regime of contact, and had done nothing to promote communication or contact between B and the appellant. [Appellant’s Summary of Argument, pages 4 – 5, para 2.4]. It was thus submitted that “there was scant other evidence of any other independent parenting activity on the part of the respondent on which his Honour could draw any conclusion about the respondent’s capacity for and commitment to the responsibilities of parenthood”. [Appellant’s Summary of Argument, page 5, para 2.4].
In response, it was submitted on behalf of the respondent that the learned Federal Magistrate had accurately acknowledged the limited involvement of the respondent in B’s care, and the probability of that continuing to be so in the future. [The Respondent’s Summary of Argument, page 6, paragraph 14]. It was submitted that the learned Federal Magistrate had accurately recorded the history of contact, or non-contact, between B and the appellant. [The Respondent’s Summary of Argument, page 6, paragraph 15]. It was submitted to be of significance that no material error of fact had been demonstrated in relation to the basis of his Honour’s conclusions or inferences in relation to these topics.
It was submitted that it had not been established that the learned Federal Magistrate had failed to take into account any relevant fact or circumstance in relation to these issues and that, as such, no appealable error had been demonstrated. [The Respondent’s Summary of Argument, Page 6, paragraph 16].
This complaint appears to have two components, the first of which is the absence of foundation for the learned Federal Magistrate’s conclusion in relation to the respondent’s capacity for and commitment to the responsibilities of parenthood. The respondent’s attitude to the relationship between B and the appellant is not readily accommodated within the terms of the ground which appears to be a complaint that the positive findings of the learned Federal Magistrate with respect to the respondent’s capacity and commitment failed to take account of evidence which indicated that it was in fact the aunt and uncle of the respondent and B who were primarily responsible for the child’s care.
The learned Federal Magistrate’s Reasons for Judgment are instructive in relation to these complaints. His Honour recorded that the respondent “recognised that the very substantial help given to him in weekday care of [B] by Mr [John Hovel] and Mrs [Jan Hovel] enable him to look after [B] and that without that help it would be very hard for him”. [Appeal Book Vol 1, page 22, paragraph 50]. No error of fact in relation to those findings has been established. His Honour then inferred from the evidence that the respondent “acknowledges he would not be able to look after [B] without their help”. [Appeal Book Vol 1, page 22, paragraph 50]. That inference flowed logically from the finding of fact to which reference has been made, and was underpinned by his Honour’s impressions of the respondent as a result of seeing and hearing his testimony.
With respect to Counsel for the appellant, the Court cannot accept that, having found as he did, and drawn the inference he did, the learned Federal Magistrate was under any misapprehension as to the importance of the respondent’s aunt and uncle in his caring regime for B.
It is not without significance that, in no passage to which the Court has been referred, or has found for itself, did the learned Federal Magistrate ever suggest that the respondent discharged the preponderance, or majority of the duties associated with the care of B. It is to be remembered that the aunt and uncle were not parties to the proceedings.
The case required his Honour to determine whether the appellant or the respondent should have parental responsibility for B. He was thus obliged to reach conclusions with respect to their capacities and attitudes. Lest there be any doubt as to the learned Federal Magistrate’s understanding of the realities of the respondent’s proposals, that doubt is dispelled by his Honour’s findings and conclusions later in his judgment. The standard of care provided by the respondent and his aunt and uncle was established at trial and no part of this appeal relates to that topic.
So far as the criticism of the appellant’s attitude to the relationship between B and the appellant is concerned, a number of the Court’s observations in dealing with Ground 1 assume relevance. The passages referred to in the context of considering Ground 1 have relevance to this part of the complaint as it emerges from the outline of argument. The passages to which the Court has earlier referred leave no scope for suggesting that his Honour approached the issue of the attitudes of the appellant and the respondent to the relationship between B in other than a balanced and even-handed manner.
It is significant, as earlier noted, that the learned Federal Magistrate criticised the respondent in a number of respects (see paragraph 152). Without referring again to the reasons in detail, it is apparent that, in substantial reliance upon his observations of the appellant, the respondent and other witnesses, and consideration of the circumstantial evidence, the learned Federal Magistrate concluded, on balance, that attitudinal matters favoured the respondent over the appellant. Nothing to which this Court has been referred establishes that so doing was not reasonably open to his Honour.
Howsoever articulated in the ground appearing in the Notice of Appeal, the complaints agitated under this ground do not have merit.

Ground 3

Ground 3 provided: -
His Honour erred in failing to attach sufficient weight to the evidence that neither [the respondent] nor members of his family had arranged counselling for [B]. [Appeal Book Vol 1, page 3].
In support of this ground reliance was placed upon the evidence of Mr P, who had clearly, for reasons which he detailed in his report (paragraph 65 in particular), found that the respondent and his uncle J Hovel failed to facilitate grief counselling for B during the 7 months in which he had been in their care. That evidence was submitted to have been unchallenged.
It was submitted that: -
[T]his is one of the few areas on which there was evidence of the respondent’s capacity for and commitment to the responsibilities of parenthood, independently of the support of his family members. As the respondent had done nothing to arrange counselling, either before receipt of the family report or after, it is submitted that his Honour should have attached significant weight to the respondent’s failure in this regard in assessing his capacity for and commitment to the responsibilities of parenting. [Appellant’s Summary of Argument, page 6, paragraph 3.3].
On behalf of the respondent it was submitted that it was “clear that the Learned Magistrate was aware that the Respondent had failed to organise grief counselling for [B].” [The Respondent’s Summary of Argument, page 7, paragraph 20]. The fact that his Honour had (at paragraphs 48 and 152 of his judgment) criticised the respondent in that regard was submitted to have been sufficient to indicate that his Honour did give weight to those matters. [The Respondent’s Summary of Argument, page 7, paragraph 21].
It was submitted that the appellant could not demonstrate that his Honour had failed to have regard to the respondent’s failure and that the challenge to the weight given to that matter could not succeed, particularly having regard to the observations of Stephen J in Gronow (supra) to which reference has earlier been made. [The Respondent’s Summary of Argument, page 7, paragraph 21].
Mr P was undoubtedly, and understandably, critical of the respondent for failing to facilitate grief counselling at any time in the period of almost eight months following the death of B’s mother. He said in his family report: -
There is no doubt, that [B’s] immediate priority is to receive some grief counselling, in order to assist him dealing with his mother’s death. It remains negligent of [the respondent] and Mr [John Hovel] not to have facilitated some counselling for [B] during the seven months which he has been in their care. Despite this, it is clear that [the respondent] and Mr [John Hovel] have provided a secure environment for [B] since the death of his mother. However, I remain unconvinced that [the respondent] currently has the parenting capacity to effectively deal with [B’s] diversity of developmental needs. However, it remains clear that [B] has since formed a close connection with both his older brother and his maternal uncle, which in my view should be maintained, with [B] living with his extended family for consistent periods of time throughout the years. [Appeal Book Vol 1, pages 123 & 124, paragraph 65].
In cross-examination, Mr P appears to have conceded that his expectation in relation to grief counselling was not one which the general lay community would necessarily share or embrace. The learned Federal Magistrate did not in anyway excuse the respondent’s failure to facilitate such counselling. On the contrary, in at least two places in his judgment, his Honour expressly criticised the respondent in that regard.
His Honour said: -
Mr [Hovel] [the respondent] is to be criticised for not recognising the need for [B] to undergo grief counselling following their mother’s death. He conceded reluctantly in cross-examination that it should be done and said that his Uncle [John] had now made the arrangements. [Appeal Book Vol 1, page 21, paragraph 48].
Later his Honour said: -
… Mr [Hovel] [the respondent] cannot escape criticism for failing to enable [B] to have more frequent telephone contact with the father and be more active in arranging [B] to spend time with the father and being slow in relation to grief counselling... [Appeal Book Vol 1, page 44, paragraph 152].
It is not suggested that his Honour failed to have regard to the respondent’s failure to facilitate grief counselling for B. The complaint is, necessarily, that his Honour failed to give that evidence sufficient weight. The absence of any suggestion as to what impact that factor should have had in the exercise of his Honour’s discretion is significant, and indicates both the difficulty which confronts the appellant in relation to the topic and the reality that on no view of it could the topic have assumed decisive or even major significance. It was a factor to be taken into account, and it was, as his Honour’s Reasons for Judgment make abundantly clear.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate failed to give adequate weight to the findings he made in relation to this topic. This ground thus fails.

Ground 4

Ground 4 provided: -
His Honour erred in finding that [B’s] poor atendance (sic) at school in 2005 reflected poorly on the attitude and commitment of the appellant towards parenting responsibilities when the evidence was that the appellant was incarcerated for almost 2 full school terms in 2005. [Appeal Book Vol 1, page 3].
The broad thrust of this complaint, as Counsel for the appellant made clear during the course of his oral submissions, was that the learned trial Judge had been unduly critical of the appellant in relation to schooling and failed to criticise the respondent for failing to assist with B’s schooling during 2005.
There is no doubt that the appellant was incarcerated on 30 July 2005 and thereafter had no capacity to influence B’s attendances at school. It was conceded on behalf of the appellant that the learned Federal Magistrate was aware of the date upon which the appellant had been incarcerated.
It was submitted, accurately, that to attribute blame with respect to B’s non-attendances at school after 30 July 2005 to the appellant was unjustified. It was submitted that the learned Federal Magistrate had erred in not distinguishing between B’s poor school attendances in term 2 when the appellant and the child’s mother and the family members were available to care for B, and the poor attendance in terms 3 and 4 when only the mother and members of her family were available to care for B. [Appellant’s Summary of Argument, page 6, paragraph 4.2].
It was submitted that the consequence of his Honour’s erroneous conclusions with respect to B’s poor school attendances was that he “must have taken [B’s] poor school attendance throughout 2005 into account against the father in relation to the father’s attitude and commitment towards parenting responsibilities”. [Appellant’s Summary of Argument, page 7, paragraph 4.2].
It was fairly conceded by Counsel for the appellant that there was no evidence before the learned Federal Magistrate that B’s attendance at school in 2006 was other than satisfactory although it was submitted that there was no evidence that it was. With respect to Counsel for the appellant, given the thoroughness of his presentation of his client’s case at first instance, and before this Court, it is improbable that, had there been evidence of B’s school attendance in 2006 being wanting, that would not at least have been agitated in cross-examination of the respondent and his aunt and uncle. No such issue was ever agitated.
To the extent that the respondent was criticised in relation to B’s school attendances, that criticism must necessarily be limited to terms 3 and 4 of 2005 during which time B’s mother was alive and, whatever the standard of such care, was the child’s primary carer.
It was submitted on behalf of the respondent that the learned Federal Magistrate had clearly been aware of the relevant times and had criticised the appellant to an extent which was consistent with and justified by the evidence before him. [The Respondent’s Summary of Argument, page 7, paragraph 23].
It was submitted that, until the death of B’s mother in December 2005, the respondent was in no position to have influenced the course of the child’s schooling. That proposition is not realistically able to be refuted.
The learned Federal Magistrate referred to evidence given by the respondent in relation to the care of B prior to his mother’s death. His Honour made a number of positive findings (paragraphs 51 – 56 of his judgment), none of which has been shown to have been other than reasonably open to him in relation to his care of B prior to the death of B’s mother. [Appeal Book Vol 1, pages 22 & 23, paragraphs 51, 52 & 56].
It is instructive to read, fully and in context, the learned Federal Magistrate’s discussion of B’s poor school attendances during 2005. They were as his Honour suggested “very poor and of considerable concern”. Significantly, his Honour found that there was “very little full day attendance” during 2005 other than in term 4 when B was looked after by Jan Hovel. [Appeal Book Vol 1, page 29, paragraph 86]. His Honour detailed “repeated late arrivals at school” and “unexplained absences”. [Appeal Book Vol 1, page 29, paragraph 86]. No error of fact is asserted in relation to what his Honour said about those matters.
His Honour then said “[u]ntil his imprisonment on 30 July 2005, early in term 3, the evidence establishes the father failed to ensure [B’s] attendances at school and for which he gives no explanation. If the mother was disabled to the extent that the father suggests, it was his responsibility to ensure [B’s] attendance at school”. [Appeal Book Vol 1, page 29, paragraph 87].

His Honour correctly recorded that B’s failure to attend school in 2005 made it necessary for him to repeat kindergarten in 2006. [Appeal Book Vol 1, page 29, paragraph 87]. It is clear that his Honour did not criticise the appellant in relation to B’s poor school attendance record after he was incarcerated on 30 July 2005.
As Counsel for the respondent pointed out, the significance of the criticism of the appellant in relation to schooling becomes apparent from a later passage in his Honour’s reasons in which his Honour said “[f]or reasons given earlier, the father failed to ensure [B’s] attendance at school at a critical time and does not adequately explain such a failure”. [Appeal Book Vol 1, page 40, paragraph 136].
The learned Federal Magistrate’s finding that the appellant had not explained his inability, at a time when he claimed to have been B’s primary carer, to ensure his attendance at school has not been challenged in this appeal. The “critical time” to which his Honour referred, and upon which he based his criticisms of the appellant, was clearly the period prior to the appellant’s incarceration on 30 July 2005.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate unfairly criticised the appellant in relation to B’s schooling, either with respect to the period in which the appellant failed to secure the boy’s attendances at school or the failure to explain that inability. This ground thus lacks merit.

Ground 5

Ground 5 provided: -
His Honour erred in the assessment of the appellant’s attitude to the reponsibilities (sic) and duties of parenthood in failing to take into account the appellant’s recognition of [B’s] need for counselling. [Appeal Book Vol 1, page 3].
The issue raised by this ground has effectively been dealt with earlier, but in deference to the submissions of Counsel for the appellant, the Court refers to the matters particularly raised on the appellant’s behalf.
The Court has earlier rejected the complaint that the learned Federal Magistrate failed to give adequate weight to the respondent’s failure to facilitate grief counselling for B. The thrust of this complaint is that “[h]is Honour does not appear to have taken the father’s recognition of B’s need for counselling into account in assessing the respective attitudes of the parties to the responsibilities and duties of parenthood”. [Appellant’s Summary of Argument, page 7, paragraph 5.2].
Reference was made to the evidence of Mr P, which was not challenged, that the appellant had recognised the need for B to have grief counselling which was a primary concern of Mr P at the time. It was submitted, correctly, that the evidence in relation to the appellant’s recognition of B’s need was not referred to by the learned Federal Magistrate in the section of his judgment headed “findings and conclusions”, wherein his Honour described the appellant’s capacity to provide for B’s emotional and intellectual needs as “limited”.
It was thus submitted: -
… that His Honour should have taken into account the father’s recognition of [B’s] need in this regard, particularly as Mr. [P] described it as a matter of “immediately (sic) priority” and “[B’s] greatest need” and particularly when, if the respondent had in fact recognised [B’s] need for counselling, he had done nothing about it while [B] was in his care. [Appellant’s Summary of Argument, page 7, paragraph 5.3].
On behalf of the respondent it was submitted that there was no basis for believing that the learned Federal Magistrate had not read the paragraph of Mr P’s report upon which Counsel for the appellant relied in support of this ground and that his Honour’s judgment made clear that his Honour must have read that material. [Appeal Book Vol 1, page 44, paragraph 153; The Respondent’s Summary of Argument, page 7, paragraph 27].
It was further submitted on behalf of the respondent that: -
There is no reason to think that the Learned Magistrate did not read paragraph 45 of the Family Report and every reason to think that he did read that paragraph. [The Respondent’s Summary of Argument, page 7, paragraph 28].
It is improbable that his Honour was not aware of the qualitative difference revealed by the evidence in relation to B’s need for grief counselling. The fact that his Honour expressly criticised the respondent in the two places identified earlier in these reasons in relation to that topic, but nowhere criticised the appellant, is significant for present purposes.
Whilst his Honour did not expressly refer to the appellant’s recognition of B’s need, or commend him for it, his criticisms of the respondent leave little room for doubt that the appellant’s case was advanced by virtue of that topic. How it would have been further or better advanced by expressly acknowledging the evidence of Mr P as to the appellant’s recognition of B’s need is unclear. Had his Honour not criticised the respondent in relation to that topic this complaint may have had some attraction. The probabilities being that his Honour was aware of the evidence, and reality that he expressly criticised the respondent by reason of those parts of Mr P’s report render this complaint unmeritorious.
It should be noted that the learned Federal Magistrate did not make negative findings with respect to the parenting capacity of the appellant, finding his capacity to have been “limited”. It is significant that such finding was made despite the making of numerous adverse findings in relation to the appellant’s actions over a period of years, none of which findings has been shown in this appeal to have been unsound.
Had his Honour made a more critical finding of the parenting capacity of the appellant, this complaint may have assumed some attraction. It could however be suggested, against a background of unchallenged critical findings of fact in relation to the parenting capacity of the appellant that the finding of “limited” capacity was somewhat generous to him. Whether it was or not, the finding amply accommodates all such weight as might reasonably have been given to the appellant’s recognition of B’s need for grief counselling. This complaint lacks merit.

Ground 6

Ground 6 provided: -
His Honour erred in finding that the appellant’s failure to exercise contact with [B] between May and August, 2006 meant that he was less likely to facilitate a relationship between the child and the respondent if the child were to live with the appellant. [Appeal Book Vol 1, page 3].
In support of this ground it was pointed out that the period during which the appellant failed to exercise contact was three months rather than four. In fairness, sensibly Counsel for the appellant did not suggest that such error was material or significant.
On behalf of the appellant the Court was reminded that there was no entitlement to contact between the date of the appellant’s release from prison on 29 April 2006 and the interim orders of 30 May 2006 and that the respondent’s proposal with respect to contact had not been accepted by the appellant for reasons which he gave.
It was thus submitted: -
… that there is no logical connection between the father’s reluctance to exercise contact with [B] in those circumstances and his willingness and ability to facilitate and encourage a close and continuing relationship between [B] and the respondent. [Appellant’s Summary of Argument, page 8, paragraph 6.3].
On behalf of the respondent it was submitted that the learned Federal Magistrate had addressed all of the matters upon which the appellant relied and that his conclusion in reliance upon those matters was reasonably open to him. [The Respondent’s Summary of Argument, page 8, paragraph 30].
The learned Federal Magistrate did not accept the appellant’s evidence that he had been unable to afford to travel to G or meet the costs of the accommodation there, finding that the appellant had a surplus from his regular income after paying board and personal expenses. Those findings of fact were not challenged in this appeal, and sensibly so having regard to the cross-examination of the father in relation to his income and expenditure.
Realistically, as the appellant candidly conceded during the course of cross-examination, his election not to exercise contact with B in G was probably more the result of his perception, with some probable foundation, that he would not be welcome in G having committed an armed robbery there on 30 July 2005 and by reason of his behaviour when he had been living there.
Whilst his Honour may not have been entirely correct in concluding that “for reasons known only to him” the appellant had elected not to see B, having concluded that he had not done so for the reasons emerging from the appellant’s cross-examination could not have advanced the appellant’s case, or materially impacted the conclusions reached by his Honour in reliance upon the findings which he made in relation to that topic. [Appeal Book Vol 1, page 31, paragraph 93].
Nothing to which this Court has been referred establishes that his Honour erred in concluding as he did that the appellant had, after nine months of enforced absence of contact with his son, chosen not to see him for a further period of at least three months thereafter.
His Honour revisited the topic later in his reasons and said: -
It is of great concern to the Court that the father did not make any attempt to see [B] following his release from prison and when the Court is satisfied he had the ability to do so. This puts in some doubt the father’s willingness to maintain the relationship of [B] with Mr [Hovel] and the maternal family. I find on the evidence that the father is likely to be unwilling to maintain the relationship. [Appeal Book Vol 1, page 38, paragraph 127].
Nothing to which this Court has been referred establishes that such conclusion was other than reasonably open to his Honour.
To the extent that the complaint on behalf of the appellant suggests that the learned Federal Magistrate’s conclusions were reliant solely upon his findings in relation to his election not to have contact with B after being released from prison, a reading of the reasons preceding that conclusion leaves little room for doubt that the conclusion was based upon other unchallenged findings of fact which his Honour had made. Those unchallenged findings of fact amply underpin the conclusions. This complaint is without merit.

Ground 7 & 8

Ground 7 and 8 were argued together and they provided: -
7. His Honour erred in finding that the respondent was more likely to facilitate a relationship between [B] and the appellant when the evidence was that up until the commencement of the hearing, the respondent proposed that the appellant’s time with [B] only take place during day-time, in [G], supervised by a member of the respondent’s family.
8. His Honour erred in finding that the respondent was more likely to facilitate a relationship betweeb (sic) [B] and the appellant when the respondent was unable to give evidence of any benefits that he recognised for [B] to have a relationship with his father. [Appeal Book Vol 1, page 3].
It was submitted on behalf of the appellant that the learned Federal Magistrate’s favourable view of the respondent’s recognition of B’s need for a relationship with the appellant, and motivation and capacity to foster that relationship, were inconsistent with his attitude as revealed by the respondent’s application and amended application, each of which was submitted to have indicated a desire to minimise the relationship between B and the appellant.
It was thus submitted that: -
Effectively, the respondent was only proposing that the appellant have contact with [B] with which he, the respondent, agreed, and then only on a very limited basis detailed above, or otherwise as ordered by the court. In fact, up until commencement of the hearing, the respondent had no proposal that the appellant have contact with [B] at any defined time. [Appellant’s Summary of Argument, page 9, paragraph 7.3].
It was thus submitted that the evidence of the respondent in cross-examination was not consistent with his Honour’s positive views of him.
The other aspect of these complaints was that having taken an unjustifiably favourable view of the attitude of the respondent, the learned Federal Magistrate took an unduly unfavourable view of the appellant in relation to such matters.
It was submitted on behalf of the respondent that cross-examination of the respondent provided ample factual underpinning for the favourable conclusions of the learned Federal Magistrate which these grounds seek to challenge and for the unfavourable conclusions which his Honour reached with respect to the appellant. The Court has read the entirety of the transcript of the proceedings, and in particular has read the cross-examination of the respondent in relation to this topic. With respect to Counsel for the appellant, when read in its entirety and in context, the answers given by the respondent in cross-examination provided a sufficient basis in fact both for his Honour’s findings in relation to these issues, and the conclusions which he reached in reliance upon them.
As noted earlier in these reasons, the learned Federal Magistrate’s impressions of the witnesses who gave evidence before him, and particularly of the appellant and the respondent, are significant. It is unnecessary to re-state those conclusions, other than to record that his Honour was generally favourably impressed by the evidence of the respondent, and that those conclusions have not been shown to have been other than reasonably open to his Honour. As also noted earlier, it is significant the learned Federal Magistrate was alive to and critical of a number of aspects of the respondent’s actions in relation to B’s welfare.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate’s favourable conclusions with respect to the respondent’s attitudes to the relationship between B and the appellant were not open to him. To the extent that reliance was placed upon the restrictive orders for contact sought by the respondent in his application and amended application, the evidence of the respondent in cross-examination rendered a benign view of the terms of the relief then sought on each of those occasions able to be taken, as his Honour undoubtedly did.
So far as the criticisms of the appellant are concerned, as noted earlier in these reasons, those criticisms were based upon a significant number of unchallenged findings of fact. Whilst it may be that in isolation some of those adverse findings would not support his Honour’s ultimate conclusions with respect to the appellant’s capacities and attitudes, the cumulative effect of those unchallenged findings of fact does have that effect. It is unnecessary to refer in detail to those findings, save to record the nature and extent of concerning aspects of the appellant’s past and present amply justified the learned Federal Magistrate’s reservations about him, both in relation to the subject matter of these complaints and in the broader context of where B’s best interests might lie.
The Court is thus not persuaded that these challenges have substance.

Grounds 9 & 10

Grounds 9 & 10 were argued together and they provided: -
9. His Honour erred in the exercise of his discretion in failing to attach sufficient weight to the recommendations in the Family Report.
10. His Honour erred in failing to take into account the evidence of the author of the Family Report concerning his observation of the close relationship between [B] and the conclusions to be drawn from those observations. [Appeal Book Vol 1, page 3].
A number of submissions were advanced in support of these challenges.
It was submitted that “leaving aside the further evidence that the appellant seeks to adduce”, many of the findings made by the learned Federal Magistrate “in relation to the respondent were unsafe and not supported by the evidence”. [Appellant’s Summary of Argument, page 11, paragraph 9.3].
With respect to Counsel for the appellant, the Court has not been referred to the evidence in relation to any matters in support of that assertion. It is to be remembered there is, as the learned Federal Magistrate clearly recognised, a difference between the role of the trial Magistrate and that of the author of the Welfare Report. The evidence of the author of the Welfare Report was expert opinion evidence liable to be given the weight appropriate in the circumstances. As the judgment of Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705, makes clear, it is an issue for the “ultimate trier of fact” to determine the issues upon which the outcome of the proceedings turns.
His Honour had the considerable advantage, as he explained in his reasons, of seeing and hearing the parties and witnesses with respect to whom Mr P expressed his opinions. His Honour heard the testimony of those people tested in the time honoured way. His Honour’s findings of fact have not been shown to have been other than reasonably open to him. His Honour was not obliged to accept Mr P’s recommendations. He was obliged to give those recommendations such weight as he considered appropriate in all the circumstances.
To the extent that his Honour reached different conclusions about various aspects of the capacities and attitudes of the parties and witnesses to those advanced by Mr P, it has not been shown that his Honour erred in so doing.
It is to be noted that whilst it is undoubtedly the case that Mr P’s opinions were in some instances supported by the evidence, for present purposes the focus of interest is whether the appellant can demonstrate that the conclusions of the learned Federal Magistrate and/or his findings of fact were not supportable on the evidence. As the authorities make clear, the fact that other conclusions were reasonably open to the learned Federal Magistrate is not the test for present purposes.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in declining to adopt Mr P’s recommendations. His Honour was clearly aware that his conclusions were at variance with those of Mr P in a number of material respects. His Honour identified those respects and gave cogent reasons for not adopting Mr P’s conclusions and/or recommendations.
The basis upon which his Honour concluded as he did has not been shown to have been erroneous. It has not been shown that his Honour failed to give sufficient weight to Mr P’s expert opinion evidence. It is plain that the case before his Honour was difficult, and could have been decided in favour of the appellant. The fact that it was not, notwithstanding that the author of the Family Report supported the appellant’s case is not the issue.
Having not demonstrated error in relation to his Honour’s approach to Mr P’s expert opinion evidence, these grounds fail.

Ground 11

Ground 11 provided: -
His Honour erred in law in the application of the unreported decision of the Full Court of the Family Court [D v F] EA111/2000 as to the significance of the factor of parenthood in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person. [Appeal Book Vol 1, page 3].
The submissions in support of this ground in reliance upon a decision of the Court in 2000, at a time when the provisions of Part VII of the Act were materially different to those which prevailed at the time that this case was heard, are curious. The extent, if any, to which the significance of a party being a parent has been elevated by virtue of the amendments to Part VII of the Act which commenced on 1 July 2006 was not raised in the appeal, or before the learned Federal Magistrate.
It might be thought from the terms of sections 60B and 60CC of the Act in its current form that the legislature had evinced some intention that the significance of a child’s relationship with a parent has been elevated by the amendments. The point having not been argued in this Court, it is unnecessary and undesirable that the Court express even tentative views in that regard. It is necessary however to deal with the complaint which has been agitated on behalf of the appellant.

The crux of the complaint was: -
In those circumstances, it is submitted that, where the Full Court had held that the factor of parenthood “may be determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person….” that His Honour was obliged to give reasons why the factor of parenthood should not be determinative in the case before him. It is submitted that, in circumstances where the respondent could not be described as “an outstanding neighbour, foster parent, sibling or other person” that the fact of parenthood carried even greater weight than it would have if he had been. In those circumstances, His Honour was obliged to give very careful and precise reasons why the factor of parenthood should not be determinative in the case before him. It is submitted that His Honour failed to do so and failed to correctly apply the law as established in the decision of [D v F]. [Appellant’s Summary of Argument, page 12, paragraph 10.2].
In response, it was submitted that the learned Federal Magistrate dealt with the submissions made on behalf of the appellant, and had done so in a way which did not provide any basis for successful complaint.
The Court has some reservations as to the relevance of the authorities to which the learned Federal Magistrate was referred, given the changes in the legislation governing parenting proceedings subsequent to those cases having been decided. Accepting however, for the purpose of this appeal, given the way it has been conducted, that his Honour was obliged to have regard to those authorities, the Court is not persuaded that his Honour failed to do so. It is to be remembered that each case turns on its own facts as found and the nature of the broad discretion which the Court exercises in a parenting case, as explained by the authorities, is also relevant.
His Honour had regard to the submissions made on behalf of the appellant that he was “now a capable parent and that any defect in his parenting before imprisonment did not have an adverse impact on the child”. It is apparent from the subsequent paragraphs of his Honour’s Reasons for Judgment, particularly commencing at paragraph 151, that his Honour did not accept without reservation that the appellant was a “capable parent” in the sense which the decision of the Full Court in D v F [2001] FamCA 382 appears to have envisaged. It is to be remembered that the Full Court in that case did not suggest the fact of parenthood to be a decisive factor but to be no more than a “very significant factor” in the case involving a “capable parent”.
Other than inferentially by elevating the fact of the appellant’s parenthood to decisive status, it is not apparent in what sense that factor could or should have impacted upon the learned Federal Magistrate’s exercise of discretion. His Honour was clearly aware that the appellant was B’s father, and of the nature and importance of the relationship between the two.
His Honour also had regard, as the legislation required, to the relationship between the child and other relevant adults. It is apparent that his Honour did have regard to the appellant’s parenthood. It is true that its ultimate impact is less than entirely clear. What is however clear beyond doubt is that, for the reasons which he detailed, and which have not been found to have been erroneous or deficient, the learned Federal Magistrate concluded that, on balance, it not having been established that the learned Federal Magistrate failed to give sufficient weight to the fact of the appellant’s parentage, it follows that this ground then fails.

Conclusion

No ground of appeal having been made out, it is necessary to consider the application to adduce further evidence.

Further evidence application

On 30 July 2007 the appellant filed an application seeking leave to adduce further evidence in the appeal pursuant to s 93A(2) of the Act. The law governing that application is not in doubt and can be briefly stated.
In CDJ v VAJ (1998) 197 CLR 172 the majority said (at paragraph 109): -
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
In order to consider whether to admit the further evidence, it is necessary to consider the further evidence itself. Mr G, a private inquiry agent, deposed on 26 July 2007 to having conducted “surveillance” between 3 April 2007 and 30 April 2007 at three addresses in G. [Affidavit of Mr G, sworn 26 July 2007, page 2, paragraph 1].
Mr G deposed in his affidavit, in a form which invites objection, that he observed B to be residing with John Hovel and Jan Hovel’s son at … Street G, that during that period he observed the respondent to be residing at other premises in G, in the main “alone”. Mr G did not observe the respondent to drive B to school on any occasion during the period of “surveillance”. The thrust of Mr G’s was that, apart from only one occasion, being 4 April 2007 he did not ever observe the respondent to be “involved in [B’s] care”. [Affidavit of Mr G, sworn 26 July 2007, pages 2 & 3, paragraphs 4, 10].
Mr G’s affidavit seeks to convey the impression that between 3 and 30 April 2007 there was only one occasion when the respondent was seen to have been “involved” in the care of the child B. Significantly, Mr G’s affidavit refers throughout only to “the period of surveillance”. Whilst he deposes to what he “did not observe” and to having made observations “on several days”, Mr G does not specify, save with respect to 3 and 4 April 2007, the actual dates when he made the observations which led him to conclude as he did.
Ignoring for the moment the reality that the conclusions Mr G purports to express in his report would be objectionable, and that the admissible evidence in his affidavit would not lead one to draw those conclusions in any event, the evidence which is capable of being accepted, if accepted would not render erroneous any conclusion of the learned Federal Magistrate.
The other evidence sought to be relied upon by the appellant was contained in an affidavit sworn by him on 26 July 2007. In the course of that affidavit the appellant deposed to a conversation with B in what would appear to have been January 2007. It is to be remembered that the learned Federal Magistrate had not decided the proceedings at that time, and indeed did not deliver his judgment until the following month. Evidence of conversations at that time could have been the subject of an application to re-open the proceedings before the learned Federal Magistrate.
The thrust of the evidence of the appellant is that the respondent has in fact moved to his new home. It was confirmed by Counsel during the hearing in this Court that such was the case, and that the respondent had in fact moved to the premises which had been referred to before the learned Federal Magistrate.
In his affidavit, the appellant set out a number of other conversations including conversations in June of 2007 during the course of which the appellant alleged that the child B made a number of comments critical of the respondent’s girlfriend and suggested that he spends very little time with the respondent and sees very little of him at other times. The appellant deposed to other matters in relation to his personal circumstances, none of which could render erroneous the learned Federal Magistrate’s conclusions.
It was submitted on behalf of the appellant that the learned Federal Magistrate could not possibly have reached the conclusions he did with respect to the respondent’s commitment and capacity had he known that the events referred to in the affidavit sought to be relied upon would occur after the case concluded.
On behalf of the respondent it was submitted that what had occurred was not inconsistent with the expectations of the learned Federal Magistrate and, as the affidavit of the appellant himself revealed, were matters which had been openly disclosed by the respondent.
It was submitted that it could not be concluded that, if those matters were established, as this Court must proceed on the basis that they are, the learned Federal Magistrate would have reached a different conclusion in the proceedings.
A number of passages in his Honour’s Reasons for Judgment are instructive for present purposes. It was clearly the respondent’s case before the learned Federal Magistrate that he would “shortly move into his own home in [G] next to the maternal aunt [Jan Hovel]”. [Appeal Book Vol 1, page 24, paragraph 61]. It is common ground that that is in fact what has occurred.
The learned Federal Magistrate recorded that he had been “left with the impression that both Mr [Hovel] and Mrs [Hovel] were honest and caring members of [B’s] family and both able and willing to continue to be involved in his care to the extent necessary”. [Appeal Book Vol 1, page 24, paragraph 63]. That “impression” is not inconsistent with anything revealed by the further evidence sought to be relied upon by the appellant.
Later in his Reasons for Judgment the learned Federal Magistrate dealt with the evidence of Mr P in relation to any disadvantage to B were he to be looked after by the respondent and his uncle and aunt “as opposed to one particular person”. His Honour referred to and accepted Mr P’s evidence that he would not have concerns with such an arrangement in the circumstances of this case. [Appeal Book Vol 1, page 33, paragraph 102].
It is apparent that the learned Federal Magistrate anticipated that B’s ongoing care would be significantly dependent upon the continuing assistance of the respondent’s aunt and uncle. The respondent’s own acknowledgment of that reality had also been referred to by his Honour in his Reasons for Judgment.
Whilst it would be overstating the position to suggest that the further evidence does little more than confirm the learned Federal Magistrate’s impressions and his anticipation, it does tend to have that effect. Whatever its effect, accepting the further evidence would not demonstrate that the decision of the learned Federal Magistrate was erroneous.
The further evidence application cannot succeed.

Conclusion

No ground of appeal having been made out the further evidence application having been unsuccessful the appeal must be dismissed.

Costs

To his credit, the respondent did not seek any order for costs in the event of the appeal being unsuccessful. There will accordingly be no order for costs.

I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of Justice Coleman.

Associate:

Date: 14 September 2007

[2007] FamCA 1087

14 September 2007

Key Legal Topics

Areas of Law

Family Law

Evidence

Statutory Interpretation

Legal Concepts

Appeal

Expert Evidence

Judicial Review

Costs