BRICK & BRICK
[2016] FamCAFC 267
•20 December 2016
FAMILY COURT OF AUSTRALIA
| BRICK & BRICK | [2016] FamCAFC 267 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the father for an extension of time to file an Amended Notice of Appeal and Summary of Argument – Application allowed. FAMILY LAW – APPEAL – CHILDREN – Where the orders made by the trial judge provided that the mother have sole parental responsibility and the father may not communicate or see the children unless at their instigation or invitation – Where the mother must facilitate any request by the children to spend time or communicate with the father – Where the father appeals on the basis that the trial judge should have made orders for equal shared parental responsibility and should not have restricted his communication with the children – Where the children previously spent time with the father – Where the mother suspended the children’s time with the father because of allegations made by the father’s step-child – Where the father was charged and acquitted of all charges – Where the father argued the trial judge made errors of fact in finding the parents could not communicate – Where there is no error by the trial judge and where the father misunderstands the nature of an order for equal shared parental responsibility – Where the father argued the trial judge failed to have regard to relevant evidence such as his proposals for weekend time and that the children attend counselling – Where the father argued the children gave conflicting views about their desire to see him and that he did not breach an order by communicating with the children in a language other than English – Where there is no merit in the appeal – Appeal dismissed. FAMILY LAW – COSTS – Where the mother sought costs – Where in the circumstances of this case an order for costs is not justified – No order as to costs. |
| Family Law Act 1975 (Cth) s 60CC |
| House v The King (1936) 55 CLR 599 |
| APPELLANT: | Mr Brick |
| RESPONDENT: | Ms Brick |
| INDEPENDENT CHILDREN’S LAWYER: | Glezer Lanteri & Associates |
| FILE NUMBER: | MLC | 1691 | of | 2013 |
| APPEAL NUMBER: | SOA | 42 | of | 2015 |
| DATE DELIVERED: | 20 December 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, Ryan & Kent JJ |
| HEARING DATE: | 4 March 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 May 2015 |
| LOWER COURT MNC: | [2015] FamCA 427 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Brick (in person) |
| COUNSEL FOR THE RESPONDENT: | Ms Buchanan |
| SOLICITOR FOR THE RESPONDENT: | Victoria Legal Aid |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Did not participate in the appeal |
Orders
The Application in an Appeal filed by the father on 18 February 2016 be allowed, and the father be permitted to rely on the Amended Notice of Appeal and Amended Summary of Argument.
The appeal be dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brick & Brick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 42 of 2015
File Number: MLC 1691 of 2013
| Mr Brick |
Appellant
And
| Ms Brick |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Mr Brick (“the father”) appeals orders of Stevenson J made on 28 May 2015. Those orders provided that Ms Brick (“the mother”) have sole parental responsibility for two girls now aged 16 and 14 years (“the children”) and for the girls to live with her. The orders provide that the father may only communicate with the children, or attend the children’s events, at their instigation or invitation. The mother is obliged to authorise information from the school and health professionals to be received by the father at his request. In addition, the orders require that the mother facilitates any request by the children to spend time or communicate with the father. The orders were consistent with those sought by the mother and the Independent Children’s Lawyer (“the ICL”).
At the trial, and before us, the father appeared for himself. The ICL did not appear at the appeal, there being no funding. The mother was again represented by counsel.
At the outset of the hearing of the appeal, it was necessary to clarify the father’s grounds of appeal. The father filed a Notice of Appeal on 24 June 2015, which listed 16 grounds of appeal. On 22 October 2015 the father filed his Summary of Argument. On 2 February 2016, the father attempted to file an Amended Notice of Appeal and an Amended Summary of Argument. However they were not accepted by the Appeals Registry as the documents were out of time and did not comply with the Family Law Rules 2004 (Cth) (“the Rules”).
The father filed an Application in an Appeal on 18 February 2016 seeking an extension of time to file the amended documents. Unfortunately annexed to his affidavit filed in support were two conflicting sets of documents purporting to be his Amended Notice of Appeal and Amended Summary of Argument. The father confirmed during the hearing of this appeal that he intended to rely upon those documents contained at Annexure B and C to his affidavit. We allowed the application, there being no real objection from the mother.
In the Amended Notice of Appeal, the father has two grounds of appeal with a number of sub-grounds:
1.That the Court erred in the Rebuttal of the presumption for equal shared parental responsibility
1.1That the Court failed to consider / properly consider the evidence presented and available disclosing communication and cooperation of the parents in exercising joint parental responsibility & achieving the best interest of the Children
1.2That the Court failed to consider / properly consider the impact of the recognised intention of the Mother to exclude the Father from the lives of the Children and/or the Parental decision-making for the Children
1.3That the Court failed to consider / properly consider the best interest of the Children in reestablishing I and /or maintaining an ongoing relationship with the Parent Father
1.4That the Court considered the Father’s understanding of the import of an order for equal shared parental responsibility, in determing grounds for the Rebuttal, when it was not appropriate to do so
1.5That the Court failed to properly consider the Father’s proposed order’s, and the Father’s testimony in presenting the issues remaining between Parties
2.That the Court erred in placing restrictions on the actions of the Father in relation to his contact and communication with the Children
2.1The Court failed to consider / properly consider the available evidence that the Father would act in a manner with the best interest of the Children in mind
2.2The Court failed to consider or properly consider the proposed order presented by the Father, and the Father’s testimony in determing the remaining issues between parties
2.3The Court failed to consider / properly consider the impact of the Order on the best interest of the Children with regards to reestablishing and/or maintaining an ongoing relationship with the Father
2.4That the Court failed to consider / properly consider the impact of the Mother’s recognised intention to prevent the Father from participating in the lives of the Children, on the ability of the Children to initiate contact with the Father
2.5The Court failed to consider / properly consider the evidence presented to establish that the views & opinion expressed by the Children reflected their true desires and would result inachieving the best interest for them
(Errors per original)
The father also explained that although the Amended Notice of Appeal indicated an appeal against all orders, he appeals only the following orders:
(2)That the mother have sole parental responsibility for the children provided that, in relation to all decisions concerning long-term issues, she will:
(a)advise the father by email of any decision which she intends to make and
(b) seeks the father’s views by email response and
(c)takes into account the father’s views by reference to the children’s best interests and
(d)advise the father by email of her response as soon as is reasonably practicable.
….
(4)That the father forthwith provide to the Independent Children’s Lawyer (“the ICL”) his email address and telephone number, which information the ICL will convey to the children.
(5)That the father is at liberty to respond to any email or telephone call from the children or either of them but is otherwise restrained from emailing or telephoning the children or either of them.
(6)That the father is at liberty to attend any event at the schools attended by the children from time to time only if the children issue to him an invitation to do so in writing or by email but is otherwise restrained from attending the children’s schools.
(7)That the father is at liberty to deliver birthday and Christmas cards and gifts to the children, by postal or courier service only, provided that he will discontinue provision if the children or either of them advise him by email or in writing that they do not wish to receive this material.
…
(11)That the mother facilitate any request by the children or either of them to spend time or communicate with the father.
If the appeal is successful, the father does not seek to disturb the order that the children live with the mother but asks that the parties have equal shared parental responsibility. In addition he seeks that there be no restriction with regard to contact and communication with the children (or the children with the father) and the children may visit the father, if they express a wish to do so.
Further it is asked that the Court make orders so that the children and the father attend with the professionals, as proposed by the Family Consultant (in the event the Court found no risk). These orders are consistent with those sought by the father at the trial.
Background
It is necessary to appreciate that in this matter there was a history of serious allegations of sexual abuse made by the father’s step-daughter (the mother’s daughter), and to understand the apparently unusual approach taken by the parties and the judge in the trial.
After the parents separated in June 2012, the children spent time with the father on alternate weekends, one night in each other week and otherwise as agreed. At the time of the hearing before Stevenson J commencing 5 May 2015, the children had not spent time with the father since 27 January 2013. The mother unilaterally ceased the contact with the father when her daughter, Ms D, complained on 3 February 2013 of sexually inappropriate behaviour on the part of the father.
It is uncontroversial that the following are relevant facts and background in this respect. In August 2013 the father was charged with six offences of a sexual nature in relation to Ms D. He was committed for trial in November 2013 and acquitted of all charges by a jury in March 2014.
On 22 January 2014 interim orders were made in the Family Court of Australia providing that the children live with the mother but spend no time with the father. On 24 September 2014 consent orders were made providing that the father communicate with the children in writing via the ICL.
On 4 May 2015 in the state courts an intervention order was made against the father for two years in respect of the child, Ms D.
The orders sought by the parties at the trial
It is not without significance to record the initial position of the parents, as the orders sought substantially changed by final submissions at the trial. In her Amended Initiating Application filed 19 January 2015, the mother sought that the children live with her, and not spend any time with the father unless they expressed a wish to do so. In those circumstances, such time would be supervised.
In the father’s Amended Response filed on 3 March 2015, the father sought orders for equal shared parental responsibility of the children and that the children live with each parent on an equal time arrangement. The father also sought that for an initial period the children would live only with the mother but attend counselling in order to assist repairing their relationship with him. The father also sought an order that there be no restriction to him “with regard to exercising his parental rights and responsibilities.”
During the trial, the issues were subsequently narrowed and the father instead sought orders to the following effect:
3. …
1.That the parties have equal shared parental responsibility for the children.
2.That the father is at liberty to communicate with the children by email, at his instigation.
3.The father is at liberty to attend events at the children’s school to which parents are normally invited, at his election.
We will later refer to the Reasons of the trial judge under these headings as it can be seen these remain the controversial issues in the appeal. At the commencement of the trial, counsel for the mother submitted that a positive finding of abuse against the father was no longer sought, rather a finding that the children would be placed at an unacceptable risk of sexual abuse should they be in the unsupervised care of the father. Conscious of the father’s altered position where he did not seek an order for face to face time with the children, the ICL submitted that it was not necessary for there to be a finding of unacceptable risk. Counsel for the mother subsequently adopted this proposition.
This left the judge in a rather curious position. The approach taken by the judge was as follows:
7.In these circumstances, I agree that it is unnecessary that I determine whether there exists an unacceptable risk of sexual abuse. In my view, it follows that there is no need for me to examine the evidence in relation to the specifics of [Ms D]’s allegations. I consider that it remains necessary that I have regard to the evidence concerning [Ms D]’s potential reaction to orders for the children to spend time and/or communicate with the father and any flow-on effect to [the children].
The Reasons of the Trial Judge
The trial judge referred to a Family Report dated 4 February 2015 and also oral evidence from the Family Consultant. A report dated 19 September 2014 by a clinical psychologist was relied upon by the ICL, which included a pyscho-sexual assessment of the father. The trial judge noted at [22] that the evidence of the clinical psychologist did not ultimately factor into a consideration of the final orders.
In determining the appropriate communication the father should have with the children, the trial judge considered the evidence of the Family Consultant at [38] – [54] of the Reasons. Both children said that they did not wish to spend time or communicate with their father at the time of the interviews with the Family Consultant in January 2015, although one of the girls had previously expressed some curiosity and confusion about wanting to see her father during a counselling session on 20 August 2014 (refer [43]).
The trial judge concluded:
45.In my view, it is likely that the children are acutely aware that the mother and [Ms D] are unsupportive of any arrangement whereby they would spend time with the father. It seems probable to me that [C] accurately reported to her counsellor that she experienced “some family pressure” to avoid seeing the father and that [B] is in the same position.
46.Nonetheless, the children are now approaching 15 and 13 years of age and their views should carry significant weight. I consider that the evidence of the Family Consultant indicates that they wish to control their future interaction with the father.
(Original emphasis)
In the Family Report, the Family Consultant recorded the father’s amended proposal that the parents have equal shared parental responsibility, but that the children could live with both parents “according to their wishes”. The father appreciated there had been significant periods of no contact since the allegations of sexual abuse were made by Ms D.
The Family Consultant recorded the mother’s views of the father, including the belief in retrospect that the father had exhibited “grooming behaviour” in relation to her child, Ms D. In addition to withholding the children from the father, the mother also ceased contact with the paternal family. The mother “acknowledged that the loss of these relationships has been significant, not only for the children, but also for her.”
The mother told the Family Consultant that despite her personal feelings towards the father, she would facilitate time for the children to spend with him if they expressed a desire to do so. The Family Consultant recorded that the father was aware the children did not wish to see him, but the father felt the mother was in some part responsible for these views:
41.According to him, [the mother] has allegedly acknowledged that whilst she has not directly denigrated the father to the children, at times they may have overheard her conversations with friends in which she made critical and negative comments about [the father]. In his view such exposure, together with [the mother]’s decision to withdraw all contact with the paternal family, would have had significant influence on [the children]…
The Family Consultant recorded that the father attempted suicide in October 2013, noting this was in the context of ongoing legal proceedings in both the Family Court and the criminal courts – no reference was made to this in the report of the clinical psychologist. However as no reference was made by the trial judge to these circumstances we can conclude that it was not a matter which informed the decision of her Honour.
In evaluating the interviews with both parents and children, the Family Consultant provided this critical opinion:
69.When a child rejects a parent, there is rarely a single, simplistic or one dimensional explanation for that child’s position. [B] and [C] have each described a significant loss of trust in their father. Given their ages and developmental stages, both [B] and [C] may view things as black or white, rather than in shades of grey. Each has stated unequivocally that they believe [Ms D] (although unaware of the details of her disclosures) and understandably view their father’s alleged behaviour as unacceptable and they feel that their trust in their father has been betrayed. Their trust has been further eroded by their experience of their father reportedly having lied to them.
70.In addition, [the children] have been exposed to their mother’s distress and heightened anxiety, particularly during the criminal proceedings. They are also morally outraged by their father’s reported abuse of [Ms D]. And are aware that members of the paternal family have questioned these allegations, causing further distress to [the mother] and [Ms D]. Consequently it is understandable that [the children] appear to be strongly aligned with their mother and their sister against their father.
…
75.[The children] have now not seen their father for two years. They have expressed concerns about their safety and clearly their trust in him has been breached. This has resulted in an impasse between them. However, notwithstanding this and their expressed views not to spend time with their father it will be in [the children’s] best interests to have the opportunity to explore the possibility of beginning to re establish a relationship with their father.
Based on this evidence, which was not successfully challenged, the trial judge made the orders as proposed by the ICL. It is useful now for us to deal with the main issues raised by the father under headings related to the orders sought by him at the trial.
Equal Shared Parental Responsibility
After referring to the relevant section of the Family Law Act 1975 (Cth) (“the Act”) and the decision in MRR v GR (2010) 240 CLR 461 the judge dealt with the parties’ evidence and submissions, in relation to the issue of equal shared parental responsibility. The judge said:
23.With respect to the father, he appeared to misunderstand the import of an order for equal shared parental responsibility. In his oral evidence he said:
“I should have equal shared parental responsibility to maintain a measure of communication that is open” and
“I think she would need some incentive to keep me in the loop. As soon as she has full control she will isolate me.”
24.The ICL proposed the following order in relation to parental responsibility:
“3.That the mother have sole parental responsibility for the children save that the mother shall prior to the making [of] any ultimate decision about any long-term issue pertaining to the children:
a.use her best endeavours to advise the father in writing via email or [sic] any decision intended to be made; and
b.seek the father’s written response (also via email); and
c.consider by reference to the best interests of the children or either of them, any such response prior to making any decisions; and
d.advise the father in writing by email as soon as reasonably practicable of her ultimate decision.”
25.The father rejected this proposal of the ICL and explained his reasons as follows:
“I am not comforted by the ICL’s proposal for parental responsibility. It does not require her to include me, it requires her to make a token attempt which can then be disregarded.”
(Original emphasis)
The judge decided that the presumption in favour of equal shared parental responsibility had been rebutted by reason of the failure of the parties to communicate effectively, but in so finding the judge did not ignore the father’s expressed fears that he might be excluded from the children’s lives. Relevantly, the judge said:
26.It was readily apparent that the parties have been unable to communicate effectively and co-operate in relation to major decisions concerning the children’s welfare since [Ms D] made her allegations. It may well be the case that the mother has deliberately attempted to exclude the father from any meaningful input into the lives of the children. The reality, however, is that there exists mutual animosity and a high level of distrust between the parties.
…
29.Regrettably, I have strong reservations that the parties will be able to communicate effectively and make co-operative decisions in relation to the children’s welfare in the future. Additionally, on all proposals the father will spend face-to-face time with the children only at school events and communicate with them principally by email. In practical terms, I cannot envisage how the parties could effectively exercise equal shared parental responsibility in these circumstances. An order for equal shared parental responsibility would not achieve the outcome which the father identified in his oral evidence.
30.For these reasons I find that the presumption is rebutted by evidence that it would not be in the children’s best interests that the parties have equal shared parental responsibility. I will make an order in relation to parental responsibility as proposed by the ICL. I would observe, however, that the father’s concerns in relation to the mother attempting to exclude him from major decisions in relation to the children may well have substance. In all of the circumstances, however, I see no viable alternative to the proposal of the ICL.
The father’s time and other involvement with the children
Having decided there would not be an order for equal shared parental responsibility the judge considered s 60CC of the Act. There is no doubt that the judge understood the position of each party and set out the proposed orders of the father and the ICL in full. The mother apparently agreed to the orders as proposed by the ICL.
Of some relevance to the grounds of appeal the judge noted:
36.To the father’s credit, he conceded that it would be inappropriate for an order to be made which compels the children to attend counselling against their wishes. He said: “I do not seek an order to force the girls to go to counselling. As the Family Consultant said, it would be wrong thing to force them now”.
37.The Family Consultant, Ms [G], had said in response to questions from the ICL:
“Therapeutic counselling would provide an opportunity to explore … If they told the ICL that they don’t want a therapeutic process, there is a need to take into account their ages and intelligence. The reality is that any therapeutic benefit is negated. Yes, it may make it worse.”
(Original emphasis)
Based on the expressed views of the children to the Family Consultant that they did not wish to spend time or communicate with their father, the judge did not make the orders as asked by him.
It should be acknowledged, that there is no doubt that the children’s expressed views were to some extent based on their knowledge of the allegation made by Ms D:
44.The Family Consultant opined that the children and the mother believe that the father sexually abused [Ms D]. She was of the view that they are likely to be aware that the mother and [Ms D] would be distressed at the prospect of their spending time with the father.
45.In my view, it is likely that the children are acutely aware that the mother and [Ms D] are unsupportive of any arrangement whereby they would spend time with the father. It seems probable to me that [C] accurately reported to her counsellor that she experienced “some family pressure” to avoid seeing the father and that [B] is in the same position.
(Original emphasis)
The judge also considered non-contact communication and referred to some of the letters from the father to the children. It was found that the contents of some of this communication would have placed the children under pressure:
49.… For example the father wrote:
“Dear [B], life without you is like living without colour, or eating without any taste.
Every day, I put one foot in front of another, and am walking on no path and going nowhere.
I would REALLY appreciate if you would send me even the shortest note or letter. I love you sooooo very much. Your daddy.”
(Original emphasis)
In addition, the judge was concerned that the father would not show restraint in sending emails despite indications from the children that they did not wish to hear from him. At [50] and [51] of the Reasons, the trial judge summarised the father’s views, including that he should be able to send an email at least once a month. The trial judge concluded:
52.Despite the father’s protestations, I remain concerned that he would “bombard the children with emails” if he were at liberty to determine the frequency of communication. In my view, his oral evidence made it clear that he would not accept from them any indication that they did not wish to receive email correspondence. I harbour concerns as to the contents of the father’s communications with the children, having regard to his response to the orders of September 2014.
(Original emphasis)
Although that father asked to attend school events without a specific invitation from the children, such arrangement was contrary to the opinion of the Family Consultant. Again, it is quite clear that the judge appreciated the issues and the relevant evidence:
56.The Family Consultant expressed a clear view that the father should attend school events only in response to an invitation from the children. She said:
“The father attending sporting fixtures would have to be in accordance with their wishes. It is important for the mother to be aware of that but they are sufficiently mature to extend an invitation to the father.”
57.Again, I consider that the evidence of the Family Consultant indicates that the children wish to determine the nature and frequency of their future interaction with the father. It may well be that any attendance by the father at their school events, contrary to their wishes, would be counter-productive in terms of potential re-establishment of a relationship in the future. Accordingly, I conclude that the orders proposed by the ICL will best meet the children’s needs.
(Original emphasis)
The influence of the older sister on the children was a significant issue. The judge referred to the evidence of the Family Consultant:
58.I am of the view that [Ms D] would cope with the children having interaction with the father in the manner proposed by the ICL. The Family Consultant reported on her interview with [Ms D]:
“65.When invited to consider the possibility of [B] and [C] spending time with their father at any time in the future, [Ms D] did not express any concerns for their safety, focussing on her own needs not to see him. She said: “as long as I don’t have to see him that’s all. So if he came to our house, I would just like stay in my room or something. ”
(Original emphasis)
The Reasons concluded on this note:
That being so, I have no basis for concern that the children would be adversely affected by [Ms D]’s reaction to the orders proposed by the ICL.
The Appeal
In his oral submissions the father explained he wished to address the two grounds of appeal together. He endeavoured to argue that the judge should not have found that the presumption of equal shared parental responsibility was rebutted. The father, in addressing these grounds, had three main submissions:
a)That her Honour made errors of fact;
b)That in considering the evidence, her Honour did not have regard to all of the relevant evidence; and
c)That her Honour was led into error by counsel for the mother.
Errors of fact
As noted above, the parties’ inability to effectively communicate was a central finding of the trial judge. The father contends that this finding was in error, as there were many examples of the parties being able to communicate effectively. In support of this, the father made an oral application to adduce further evidence, being orders made on 19 June 2013 and 24 September 2014. The father contends these orders were before the trial judge, but are not contained in the appeal books. The detail of the orders are as follows:
a)The Orders of 19 June 2013 are orders by consent regarding property distribution, and noted the father’s payment of the children’s school fees. Both the mother and father were legally represented in the making of these consent orders.
b)The Orders of 24 September 2014 are orders by consent in relation to the living arrangements for the children, including in particular that the father could send gifts and letters to the children. However they must be checked by the ICL to ensure they are appropriate. The orders require the mother to keep the father informed as to the children’s schooling and also restrain both parents from discussing the proceedings with the children. The father was self-represented in the making of these consent orders
The father argues that these orders were not considered by the judge nor referenced by the other parties, and that communication was not an issue in the trial. A reading of the transcripts, in addition to the findings of her Honour based on the evidence, make plain this is not correct. However as the orders were not contentious, it was permitted to be adduced as further evidence on appeal.
The genesis of the father’s complaint is that the trial judge found that the “parties have been unable to communicate effectively and co-operate in relation to major decisions concerning the children’s welfare since [Ms D] made her allegations.” This finding was based on, he contends, a number of text messages exchanged between the parents. The father submits that the trial judge was in error in making this finding, as the text messages were actually sent in a period prior to the making of Ms D’s allegations, and were in the context of the breakdown of their marriage and could reasonably be expected to be emotional in content.
It must be recalled that the evidence of text messages was in fact evidence of the father, who on appeal correctly said that he did include perhaps damaging material against himself, but he did not wish to take any other messages out of their context.
The father submits that the Consent Orders of 19 June 2013, and 24 September 2014 demonstrate the parties’ ability to effectively communicate since Ms D’s allegations. It is not possible to draw that inference.
In the Reasons, the trial judge noted the father appeared to “misunderstand the import of an order for equal shared parental responsibility” and it seems that unfortunately, this misunderstanding continues on appeal. The evidence at the trial in relation to the difficulties the parties had in communicating and the other relevant matters referred to by the judge, properly allowed orders in terms of the proposal of the ICL as meeting the children’s best interests.
We are not persuaded that the trial judge made any error of fact in reaching that conclusion.
Failure to have regard to relevant evidence
Additionally, the father submits that the trial judge failed to correctly articulate his proposal, as he did seek weekend time if the children were agreeable. We find no merit in this submission.
The father argues that the trial judge misunderstood his initial response which sought an order that the children attend counselling in order to repair their relationship. The father submits that this order was only sought if the children expressed such a wish.
The trial judge was alive to the distinction sought by the father, as evidenced by the following paragraphs:
36.To the father’s credit, he conceded that it would be inappropriate for an order to be made which compels the children to attend counselling against their wishes. He said: “I do not seek an order to force the girls to go to counselling. As the Family Consultant said, it would be wrong thing to force them now”.
37.The Family Consultant, Ms [G], had said in response to questions from the ICL:
“Therapeutic counselling would provide an opportunity to explore … If they told the ICL that they don’t want a therapeutic process, there is a need to take into account their ages and intelligence. The reality is that any therapeutic benefit is negated. Yes, it may make it worse.”
(Original emphasis)
The father argued before us that he withdrew the submission for counselling upon learning from the ICL that the children were not interested in such a step. The father says he became emotional upon learning that, and withdrew that application. The father now says that the judge was wrong to have accepted that, and should have considered compelling the girls to attend counselling to repair their relationship.
Additionally, it is the father’s belief that the children gave conflicting views about whether they wanted to see him and the judge failed to have sufficient regard to that evidence. It is clear from the orders, and in particular (11) that the trial judge had regard to the views of the children and designed the orders in a way that would allow them to explore a relationship with their father if they wished to do so. The father argued in response that the girls would never make such wishes known because of the influence of the mother, and their step-sister. This was another matter the trial judge considered, stating:
45.In my view, it is likely that the children are acutely aware that the mother and [Ms D] are unsupportive of any arrangement whereby they would spend time with the father. It seems probable to me that [C] accurately reported to her counsellor that she experienced “some family pressure” to avoid seeing the father and that [B] is in the same position.
46.Nonetheless, the children are now approaching 15 and 13 years of age and their views should carry significant weight. I consider that the evidence of the Family Consultant indicates that they wish to control their future interaction with the father.
(Original emphasis)
The final ambit of this challenge is the weight afforded by the judge to a letter the father wrote in an African language to one of the children. As noted in the Reasons, consent orders were originally in place which allowed the father to communicate with the children via the ICL (at [47] – [49]). The father argues he was not in breach of the orders by writing in another language.
It is clear to us that while the orders may not have explicitly stated that the letters had to be in English, a common sense interpretation of the orders would mean all written communication had to be in a form intelligible to the ICL.
That the trial judge was led into error by counsel for the mother
On this final issue the father submitted that he was of the opinion that counsel for the mother unintentionally led the trial judge into error. This is because the initial submissions of counsel for the mother were for the trial judge to make a finding of unacceptable risk in circumstances where the father originally sought orders for face to face time.
As noted above, the father varied his application and the judge was no longer asked to make such finding. The father submits however that he was wrongly cross-examined on issues of risk which he says led the trial judge into error by being influenced by that cross-examination.
It is clear from [3] and [5] – [7] of the Reasons that the trial judge was properly alive to the issues put before the Court. Namely, the judge was clear that the father had substantially changed his position, and that neither the ICL nor the mother sought a finding of unacceptable risk. Even if it is correct to say that counsel for the mother should not have been allowed to cross-examine the father on issues of risk, it is obvious that the trial judge understood the relevant issues (see [32]).
The father was asked on appeal if the trial judge was led into error, then what order should have been made in these circumstances. The father submitted during the hearing that it would have been better for the trial judge to have made an order for equal shared parental responsibility, which “changed the picture” and less restrictions for communication would have been imposed upon him. There is no merit in this contention. As we have earlier discussed, the trial judge's determination to make the order for parental responsibility her Honour made was founded upon conclusions unrelated to any question of unacceptable risk.
Conclusion
This was a difficult case for the trial judge. It must be recalled that this is an appeal from a discretionary judgment. In House v The King (1936) 55 CLR 599 the majority, comprising Dixon, Evatt and McTiernan JJ said at 504 – 505:
… 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 appellant 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 appellant 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 appellant 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.
The father unfortunately misunderstands the operation of the legislation, and remains of the belief that if an order for equal shared parental responsibility had been made, this would have been in the children’s best interests. The father, who is self-represented, fails to appreciate that an order for equal shared parental responsibility was not appropriate, or in the children's best interests, given the findings of the trial judge to which we have referred and which were well open on the evidence.
As the expert evidence explained, cases where children reject a parent are complex. The obligation of the judge is to make an order in the best interests of the children. We see there was no appellable error made by the judge and the appeal must be dismissed.
Costs
At the conclusion of the hearing of the appeal we asked for submissions in relation to costs. Counsel for the mother explained that she was in receipt of Legal Aid and asked for costs. In our view the circumstances of this case do not justify an order for costs.
There should be no order as to costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ryan & Kent JJ) delivered on 20 December 2016.
Associate:
Date: 20 December 2016
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