Bryant and Stapleton
[2010] FamCAFC 5
•29 January 2010
FAMILY COURT OF AUSTRALIA
| BRYANT & STAPLETON | [2010] FamCAFC 5 |
| FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge erred in acting upon mistakes of fact – Where no transcript provided – Where father failed to establish errors – Whether the father was denied procedural fairness or natural justice by the trial Judge asking counsel for the independent children’s lawyer to source shared parenting research – Where there was no evidence of “ex parte communication” between the trial Judge and counsel for the independent children’s lawyer – Whether the trial Judge erred by departing from recommendations in the Family Reports without adequate reasons – Where the trial Judge set out concerns about the Family Reports and oral evidence of the Family Reporter – Where the trial Judge gave proper and adequate reasons for declining to accept the written recommendations of the Family Reporter and for relying on the Family Reporter’s opinion given in oral evidence – Whether the trial Judge erred in preferring the evidence of the mother’s husband to that of the father – Where the trial Judge had the benefit of observing the father and the mother’s husband – Whether the trial Judge denied the father natural justice in referring to an interim affidavit sworn by the father – Where the father’s affidavit properly became part of the evidence – Whether the trial Judge erred in failing to consider an equal time arrangement – No appealable error – Appeal dismissed. FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Application refused. FAMILY LAW - APPEAL – COSTS – Where the mother sought that the father pay her costs of the appeal and application to adduce further evidence – Where the father opposed the application for costs – Where the mother had a grant from Legal Aid secured by a charge over property – Where father had lodged security for costs of the appeal – Where the father’s appeal wholly unsuccessful – Where application to adduce further evidence dismissed – Where father should pay mother’s costs of the appeal and the application to adduce further evidence. |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Mr Bryant |
| RESPONDENT: | Mrs Stapleton |
| FILE NUMBER: | MLC | 553 | of | 2007 |
| APPEAL NUMBER: | SA | 56 | of | 2008 |
| DATE DELIVERED: | 29 January 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Warnick, Boland & Stevenson JJ |
| HEARING DATE: | 14 October 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 June 2008 |
| LOWER COURT MNC: | [2008] FamCA 451 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Bryant appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Testart |
| SOLICITOR FOR THE RESPONDENT: | Jeremy Harper & Associates |
Orders
The father’s Application in an Appeal filed on 25 September 2009 is dismissed.
The father’s Appeal against the orders of 18 June 2008 is dismissed.
The father pay the mother’s costs of the Application in an Appeal filed on 25 September 2009 and the Appeal in the sum of $3,000.00.
The Registry Manager, Melbourne Registry, Family Court of Australia is hereby authorised to release to the mother’s solicitors the sum of $3,000.00 lodged by the father pursuant to the orders of the Full Court of 11 March 2009 in satisfaction of Order 3 of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Bryant & Stapleton is approved 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: SA 56 of 2008
File Number: MLC 553 of 2007
| Mr Bryant |
Appellant
And
| Mrs Stapleton |
Respondent
REASONS FOR JUDGMENT
introduction
This is an appeal by Mr Bryant (“the father”) against orders made by Dessau J on 19 June 2008. Her Honour ordered that the then five year old daughter of the parties, live with her father in a two weekly cycle as follows:
· from 9.00 am on Friday until the commencement of kindergarten or 9.00 am on Tuesday in week 1; and
· from the conclusion of kindergarten or 1.30 pm on Thursday until 5.00 pm on Friday in week 2.
The orders also provided that the child spend half of all school holidays with each of her parents and made provision for special occasions, telephone communication and changeovers. These orders were to continue until the child commenced primary school. The arrangement would then change so that the child lives with the father as follows:
· from the conclusion of school on Friday until the commencement of school on Tuesday in week 1; and
· from the conclusion of school on Thursday until the commencement of school on Friday in week 2.
There was no change to the earlier provisions for half of all school holidays with each parent, telephone communication and changeovers. At trial, the father had sought orders for an equal shared care arrangement.
The father filed his first Notice of Appeal on 17 July 2008, followed by two amended Notices of Appeal on 15 December 2008 and 11 May 2009. On 28 April 2009 the Full Court ordered that the father file and serve any amended Notice of Appeal by 1 May 2009. Counsel for the respondent, Mrs Stapleton (“the mother”), consented to the father’s relying on the last Notice of Appeal.
If his appeal succeeds, the father seeks these orders:
1. (2) That the child … live with the Father
or in the alternate
That the Father’s parenting time be significantly increased.
2.(9)That the parties keep each other informed of the child’s address and contact details
3.Costs of and incidental to the Appeal
4.Such further and or other orders as this Honourable Court deem appropriate.
The mother sought that the appeal be dismissed.
On 11 March 2009 the Full Court heard two Applications in an Appeal filed by the mother and a Response filed by the father. We need record only that the Full Court made orders to the effect that the father could proceed with his appeal without transcript and that he lodge $3,000.00 as security for the mother’s costs. The Full Court said:
97.We are satisfied we have clearly explained to the father the difficulty he may experience in agitating his appeal in the absence of transcript. However, he has made an informed choice that he wishes to prosecute his appeal without transcript.
98.It appears to us, given the father’s opposition to providing transcript despite difficulties which have been highlighted to him, that the father’s appeal, subject to payment of the security ordered by us, should be permitted to proceed without the necessity for transcript to be included in the appeal books.
99.We conclude that if the mother as respondent to the appeal is of the view that she requires transcript of the limited portions of the evidence to which the foreshadowed grounds relate she may, at her expense, obtain such transcript and, if appropriate, make application to the Full Court hearing the appeal in respect of her costs so incurred.
Background
The father, who is now 49, and the mother, who is 47, are the parents of a little girl named E. She was born in May 2003 and is six years old.
The parties have had a complex relationship. They had a brief romance in high school but then went their separate ways. The father moved to the United States in 1990, where he married. He and his former wife had no children. The mother married Mr Stapleton in 1987. They have three children who are now adults.
When the father’s marriage broke down, he moved to a regional Victorian city. The mother lived there with her husband and children.
The parties commenced a relationship in 2002. The mother became pregnant with the child but did not inform the father until shortly before her birth in May 2003.
The mother lived with her husband until January 2004, when she and the child moved in with the father. She returned to her former home for a day in February 2004 and for one week in April 2004. The parties finally separated in April 2006, when the mother and the child left the home which they had shared with the father.
Litigation between the parties commenced in a State Magistrates’ court a few days after the separation. The proceedings were transferred to the Federal Magistrates Court and then to this Court. At trial the father was represented by solicitor and counsel, and an Independent Children’s Lawyer (“ICL”) appeared by counsel. On appeal the father was unrepresented and the ICL did not participate.
The Father’s Application to Adduce Further Evidence
On 25 September 2009 the father filed an Application in an Appeal. He sought leave to adduce further evidence in the appeal, as set out in an affidavit which he swore on 24 September 2009. Having heard submissions from each of the parties, we refused this application and indicated that we would give reasons in the course of this judgment. We now set out our reasons for dismissing this application.
Pursuant to s 93A(2) the Full Court is empowered, in its discretion, to receive further evidence on questions of fact in an appeal. In CDJ v VAJ (1998) 197 CLR 172 the High Court majority, McHugh, Gummow and Callinan JJ said (at [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 the discretion to admit further evidence to buttress the findings already made.
Their Honours also said (at [111]):
… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
The father sought to introduce into evidence the following material:
1.a letter dated 6 October 2008 from an Investigations Officer of Victoria Legal Aid, which was referred to during the hearing of the appeal as “the ICL letter”;
2. transcript of proceedings in the Federal Magistrates Court;
3. an audio recording which he categorised as “suppressed”;
4.transcript and CD of part of his cross-examination by counsel for the mother;
5. the Trial Notice;
6. the Communication Book; and
7.information as to the current circumstances of the child.
The mother consented to our receiving the five pages of transcript of the father’s cross-examination but otherwise opposed the application. The father conceded that evidence of the child’s current circumstances would be relevant only if his appeal was successful.
The Letter from Victoria Legal Aid
The father maintained that this letter contained an admission by the the ICL of out of court communications between herself and/or her counsel and the trial Judge. He also maintained that the letter contained an admission that the ICL forgot to give the parties’ trial affidavits to the Family Reporter, Dr K.
The father alleged that the trial Judge communicated with the ICL and/or her counsel outside the courtroom to arrange for her to tender certain research material, relating to shared parenting, by Dr Jennifer McIntosh. He insisted that “there must have been private communication between Dessau J and ICL counsel to have that McIntosh research tendered. It had to be before the trial”.
On this issue the letter stated:
With regards to the McIntosh test case, Ms Lonergan [the ICL] says that the Judge asked the barrister that she had briefed, Ms Agresta, to source some copies of current research into shared parenting. Ms Agresta complied with this request and provided information to the court which ultimately, [the Family Reporter] was asked questions about.
In our view this letter does not establish that there was any out of court communication between the trial Judge and the ICL and/or her counsel. Its wording is completely consistent with a proper request from the trial Judge, on the record, to counsel for the ICL to have the research material available for tender into evidence and comment by the Family Reporter. The father chose not to provide a transcript, which would have placed this issue beyond any doubt.
The father also sought to use this letter as confirmation that the ICL failed to provide the parties’ trial affidavits to the Family Reporter before he was cross-examined. He maintained that the letter would establish that the trial Judge erroneously concluded that the Family Reporter had, in fact, read this material before he gave his oral evidence.
On this issue, the letter read:
In relation to withholding current trial documents from [the Family Reporter], Ms Lonergan concedes that in error, she forgot to provide [the Family Reporter] with copies of the wife’s and the husband’s trial documents. I understand he was subsequently provided with the material and the Judge was made aware of the error that had occurred.
At paragraph 106 of the judgment, the trial Judge said:
… Although he had read the father’s affidavit material (including the affidavit of 7 February 2007, referred to above) in the course of preparing his report, he had not referred to it in his report, not even when considering the parties’ different versions of the conflict in their relationship. …
At paragraph 107, her Honour said:
[The Family Reporter] was specifically asked by counsel for the mother in cross-examination to re-read the material.
These passages make it clear that the trial Judge knew that the Family Reporter read the parties’ trial affidavits before he gave his oral evidence. The letter could establish only that the ICL neglected to provide this material initially but subsequently rectified this error and made the trial Judge aware of the position.
It is our opinion that the ICL letter would achieve neither purpose suggested by the father. We therefore rejected the ICL letter as further evidence in the appeal.
The Federal Magistrates Court Transcript
There was litigation in the Federal Magistrates Court before the proceedings were transferred to this Court. The father sought to adduce this transcript as further evidence in the appeal. His suggested basis was that “[i]t goes to establishing the pattern of behaviour but via the ICL counsel”. He contended that “the ICL was allowed to unfairly influence the outcome” by withholding evidence, “and the trial affidavits in the Family Court trial, but also at the FMC trial”.
In our view, receipt of transcript of earlier proceedings is unlikely to demonstrate that the orders under appeal were erroneous. The transcript was thus rejected as further evidence in the appeal.
The “Suppressed Audio Recording”
There was an incident between the father and Mr Stapleton at a changeover on 14 March 2008. The father suggested that the mother and/or Mr Stapleton made an audio recording of the incident. The trial Judge preferred Mr Stapleton’s evidence about what occurred to that of the father. He submitted that the audio recording would establish that this conclusion was erroneous.
The father informed us that the recording “is all hushed and muffled” which we assume means that we would not be able to understand it. We cannot see how an indecipherable recording would demonstrate error in the orders under appeal. In any event, there were additional reasons why we declined to receive the recording as further evidence in the appeal.
The father conceded that he was aware of the existence of the recording prior to the trial and, in fact, he said that he had “asked for it”. He also conceded that his counsel did not call for its production during the trial.
The father seemed to be under the impression that there was some onus on the mother’s counsel, or perhaps the trial Judge of her own motion, to ensure that this recording was tendered in evidence. The fact that it was not tendered in the mother’s case apparently led him to the erroneous view that the recording was “suppressed” evidence.
In support of this submission, the father relied on the following passage from the judgment of the High Court majority in CDJ v VAJ (at [116]):
The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. …
Obviously, the audio recording was not “deliberately withheld”, so this authority does not assist the father.
If the audiotape is received as further evidence in the appeal, assuming that we could comprehend it, there may well need to be cross-examination of the father, Mr Stapleton and probably the mother. For all of these reasons, we rejected the father’s application in respect of the audiotape.
Transcript
As noted, we received five pages of transcript of the cross-examination of the father with the consent of counsel for the mother. This transcript related to an interim affidavit which the father swore on 15 March 2007. The affidavit was tendered in the mother’s case as Exhibit M7.
Trial Notice
The father wished to place the Trial Notice before us to establish that the proceedings were subject to “traditional” rules rather than the provisions of Division 12A of the Family Law Act1975 (Cth) (“the Act”). Counsel for the mother indicated that he did not appreciate what the father meant by “traditional” rules. He submitted that the parties had been afforded procedural fairness and that the “spirit behind the formal rules of evidence” had been applied during the trial. He submitted that it was thus immaterial whether or not the proceedings were conducted pursuant to Division 12A.
We agree that it was open to the father to identify to us any denial of natural justice or other lack of procedural fairness. It was thus unnecessary for us to receive the Trial Notice as further evidence in the appeal.
The Communication Book
The father suggested that the trial Judge “just made up that she had read [the communication book]” and drew inferences adverse to his case. He seemed to imply that he could demonstrate that these adverse inferences are unsupportable, if we received the entire communication book as further evidence.
In our view, there are three short reasons why this leg of the father’s application should fail. First, the trial Judge spelled out clearly that she had read only those pages of the communication book tendered by counsel for the mother (Exhibits M4 and M5). There was no suggestion by the trial Judge that she had read the whole of the communication book.
In paragraph 71 of the judgment, her Honour said: “[c]ertain pages were tendered”. In paragraph 72 the trial Judge referred specifically to “pages clearly numbered 34 to 39 of the communications book (Exhibit M5)”.
Paragraphs 73 and 74 of the judgment refer to a particular entry in the book, made by the father in mid-2007, (Exhibit M4) which read:
Do you think this is a bit of an overreaction? Do you think that a pattern of such overreaction is becoming evident?
1.Dropping out of school in Yr 10 because of a fear of talking in front of classmates.
2.An incident with the dentist when 5 years old prevented returning to a dentist for 35 years.
3.Running away to a domestic violence refuge in another city with a 2 yr old child because you were afraid of the way I looked at you.
4.Building up a 25 year fantasy romance with me from a few dates when we were 16 years old.
5.Enacting this fantasy by initiating an affair and keeping the pregnancy secret for 8 months despite being in a marriage with 3 children.
6.Quitting work because of your fear of leaving your children with your own mother.
7.Your 14 months of demands for supervised access despite 2 family reports favouring me. This has never occurred in 50 years of combined experience at Jackson Sweet attorney’s.
The trial Judge found “[t]his represents a clear mis-use of the communication book. [Mr Bryant] was using it to further berate [Mrs Stapleton], not to record arrangements for [the child].” It is obvious that her Honour referred only to that single entry in the book.
We also rejected the communication book as further evidence because it was available during the trial and could have been tendered by counsel for the father. In addition, there would almost certainly need to be cross-examination on the contents of the communication book, if it was introduced as further evidence in the appeal.
The Grounds of Appeal
Appellate Principles
The principles governing appeals, particularly concerning discretionary decisions, may be briefly stated.In House v The King (1936) 55 CLR 499 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 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 discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J stated (at 519):
The constant emphasis of the cases is that before a 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. …
The statement of principle from House v The King is supported by these remarks of Kirby J in AMS v AIF (1999) 199 CLR 160 (at p.795):
[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. 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.(footnotes omitted)
The Father’s Summary of Argument
The father filed a densely worded, 33 page Summary of Argument in support of his appeal. While we acknowledge his effort, we found much of this material repetitive and difficult to comprehend. Nonetheless, we deal with each ground and argument which we consider to be of any significance.
Grounds 1 and 2
1.The Learned Judge erred at law in the exercise of discretion in that her Honour materially acted upon an error of fact namely the shared parenting time that had occurred since July 2006 and which had been twice consented.
2.The Learned Judge erred at law in the exercise of discretion in that her Honour materially acted upon an error of fact of her own finding, namely that a substantial change is not in the interests of the child, to substantially increase the Father-child no-contact period from one week in every three to one week in every two and significantly decrease their conscience interaction time.
In his Summary of Argument the father wrote that consent orders made on 24 July 2006 and 20 March 2007 meant that the child spent time with him as follows:
Weeks 1 and 2 Thursday 9.00 am to 3.00 pm and Friday 10.00 am until Monday 3.30 pm
Week 3 Thursday 9.00 am to 3.00 pm
He disputed the trial Judge’s finding that “[p]resently [the child] spends two out of three week-ends from Friday until Monday, and each Thursday with her father. The rest of the time she lives with her mother”.
The father complained that this finding was an incorrect “generalisation” which “causes the omission of two days of contact Mondays 9am-3.30pm and arguably two Fridays 10-3.30pm, since the child was not at school” (original emphasis). In the alternative, he maintained that the trial Judge misapprehended this regime “to include nights from Thu-Mon for 2 out of 3 weeks and Thu in the 3rd”.
In his Summary the father set out a meticulous and detailed calculation of “the child’s conscious time” with him. He wrote:
the generalisation further omits the material fact that most of the child’s conscious time was spent with the Father. Allowing for 12hrs of awake time per day for the child, the Father had contact 10 of 14 days for 2 of 3 weeks (Th(6/12) + Fr(12/12) Sa(12/12) + Su(12/12) + Mo(6/12)x2 = 96h/168h = 57%) and 11 of 21 days. The Father was effectively the child’s primary carer for two out of three weeks or 2/3 of the child’s conscious time. (original emphasis)
This proposition led on to ground 2, where the father contended that the orders: “significantly changed a long term established status quo by agreement in contradiction of [the trial Judge’s] stated intention thereby failing to provide adequate reasons”. The father referred to paragraph 113 of the judgment, where her Honour said:
Except between mid-2004 and early-2006, [the child] has primarily lived with her mother. As just noted, [Dr K] ultimately expressed the concern that a significant change to the current time apportionment might be difficult for her. If things stay fairly much as they are now, even if configured slightly differently, she is likely to continue to cope very well. …
In paragraphs 120, 121 and 122 of the judgment, her Honour clearly set out what she intended to achieve by the proposed orders. Her Honour said:
120.… In order for [the father/child] relationship to continue in a meaningful way, I am satisfied that she needs the arrangements of two years ago to be updated and configured so that she spends longer blocks of time with her father.
121.This is a case in which I am satisfied that the proposals of the ICL cater as well as possible to promote [the child’s] best interests. The proposed orders clarify and simplify the arrangements and change-overs, as recommended by [Dr K]. They increase [the child’s] block time with her father. They ensure that she does not go for a significant length of time without seeing him. They retain significant blocks of time with her mother…
122.A regime whereby [the child] lives with her father from Friday to Tuesday in one week, and overnight on the other Thursday, will enable [the father] to be involved at [the child’s] kindergarten and later school. It will enable the parents to have less to do with each other in that change-overs can largely take place in that neutral setting. It will give [the child] leisure time as well as school time with her father. And the proposal for school holidays, for that regime to continue this year, but then to change next year when she is of school age, is sensitive to her developmental stage.
The father expressed his complaint about the effect of the orders in his Summary in these terms:
The no change update reduces by half their conscious interaction time to Fri(6/12) + Sa(12/12) + Su(12/12) + Mo(12/12) + Th(6/12) = 48h/168h = 28%. (original emphasis)
We do not suggest that the concept of “conscious interaction time” is pointless. It is not, however, a notion recognised as one of any particular significance in the Act or established case law. Nothing obliges the Court to undertake detailed calculations of total hours and comparative percentages of time which a child spends with each parent. The passages of the judgment, which we have set out, indicate clearly to us that the trial Judge was fully cognisant of the existing arrangements. We are satisfied that her Honour appreciated and intended the effects which would flow from her proposed orders. It is thus our view that Grounds 1 and 2 must fail.
Ground 3
The Learned Judge erred in principle of law by initiating ex parte communication with and actively seeking the ICL counsel to tender evidence, which at that stage the ICL had not chosen to tender, into pending proceedings.
As we earlier discussed there was no evidence before us of any “ex parte communication” between the trial Judge and counsel for the ICL, whether initiated by her Honour or any other person. For that reason alone, this ground of appeal must fail.
Counsel for the mother, who also appeared on her behalf at the trial, informed us:
Were there transcript available, I would be able to point your Honours to the very exchange … between her Honour and Ms Agresta of counsel for the [ICL], where a discussion occurred about the [McIntosh research], and a request was made by her Honour to have it available to put to [the Family Reporter] in due course. (transcript, 14 October 2009, p 75)
In the absence of the transcript of the hearing we are unable to place any weight on this information. As we earlier indicated, the absence of transcript cogently demonstrates the father’s inability to establish this ground of appeal.
In his Summary the father wrote (at paragraph 54):
The anti-shared parenting research sourced, ‘A Cautionary Tale from Current Research’ by Jennifer McIntosh, was fatal to the Father’s case. The Family Reporter was found to back-flip on three equal shared care family reports under cross-examination of this research.
He then referred to paragraph 119 of the judgment, where her Honour said:
… I accept [Dr K’s] ultimate evidence that equal shared care is contra-indicated. He had to agree with the research to that effect…
This passage must indicate that the Family Reporter was cross-examined about evidence before her Honour, which the research identified as contra-indicators to shared care.
The exhibit sheet shows that the ICL tendered two articles which were co-authored by Dr Jennifer McIntosh (exhibits ICL1 and ICL2). It is thus logical to assume that the trial Judge asked in Court that counsel for the ICL ensure that this research material was available; that she tendered the two articles and that they were put to the Family Reporter in cross-examination.
There is nothing improper or inappropriate in any part of this process. The father did not suggest to us that his counsel raised any objection to the tender of the articles or the cross-examination of the Family Reporter. For all of these reasons, it seems to us that this ground of appeal must fail.
Ground 4
The Learned Judge erred in procedural fairness and/or demonstrated predetermination and intent to discredit the Family Reporter by privately asking the ICL barrister to source shared parenting research, found to be adverse to the Father’s case, into a traditional rules of evidence trial.
The father failed to demonstrate to us any “predetermination and/or intent to discredit the Family Reporter by privately asking the ICL counsel to source shared parenting research, found to be fatal to the father’s case, into a traditional rules of evidence trial” on the part of the trial Judge. As noted, we have a clear view that the father failed to establish that there was any private communication between the trial Judge and the ICL and/or her counsel.
At paragraph 62 of his Summary the father wrote:
The prerequisite, ongoing high conflict, for the McIntosh ‘parenting factors’ cautions to become contraindications was not present in any of his three evaluations over 18 months – importantly neither two before nor one after the interim (M1). The McIntosh research was not applicable and therefore [the Family Reporter] could not flip on his recommendations under cross of this material.
The trial Judge’s treatment of the evidence of the Family Reporter was the subject of Ground 10, which we consider below.
Ground 5
The Learned Judge erred at law in that she materially acted upon an error of fact namely that the Family Reporter had been given the trial affidavits by the ICL.
We have effectively dealt with this ground in the context of the father’s application to adduce further evidence in the appeal. The father did not suggest to us that his counsel complained to the trial Judge that the Family Reporter was disadvantaged in giving his evidence by the failure of the ICL to provide to him the parties’ trial affidavits.
Counsel for the mother informed us:
Were transcript available I would be able to indicate to your Honours the precise pages where the case was stood down for [the Family Reporter] to examine affidavit material including the trial affidavits of both parties, at length for hours, before cross-examination of him was conducted by myself and by [counsel for the ICL], and cross-examination by Mr Weil indeed. (transcript, 14 October 2009, p 75)
Mr Weil of counsel appeared for the father at the trial.
Again we are unable to place any weight on this information. The lack of transcript again demonstrates an absence of evidence to support the father’s assertions.
In summary, the father failed to demonstrate that the Family Reporter had no opportunity, or even insufficient time, to properly consider the parties’ trial affidavits before giving his oral evidence. It seems to us that this ground of appeal must fail.
Ground 6
The Learned Judge erred at law in that she materially acted upon an error of fact namely that supervised contact was no longer an issue after July 2006.
Before us the father conceded that the mother had sought no order for supervision of the child’s time with him since 2006. Her application at the trial was for orders that the child spend alternate weekends, half of all school holidays and special occasions with her father.
The nub of this complaint seemed to be that the trial Judge failed to make a proper assessment of the mother’s parenting capacity. The father seemed to suggest that the trial Judge gave insufficient weight to the fact that there were times when the mother insisted on supervision of the child’s time with him.
In our view, a thorough reading of the judgment indicates that her Honour gave very careful consideration to the capacity of both the parents. For example, at paragraph 40 her Honour said:
I shall return to the parents’ attitudes to each other. It is a significant weakness in their respective capacities to parent [the child].
The trial Judge then proceeded to analyse and summarise the evidence which led her to this conclusion. The following extracts from the judgment are intended to be illustrative of the depth of her Honour’s consideration of the parties’ respective parenting capacities, rather than an exhaustive recital of all relevant passages.
At paragraph 47 of the judgment her Honour said:
I also do not accept the picture of the mother built up by [the father], as a person virtually incapable of offering the child any stimulation at all, but instead, a sad, isolated existence in which as he and his family put it, the child would be ‘emotionally stunted’. Having always been in her mother’s primary care, [the child] is anything but emotionally stunted. [The father] is the first to say that. Of course the thrust of his evidence is that she has been ‘saved’ by her time with him. That over-simplification is not insightful on his part.
Her Honour continued at paragraph 51 of the reasons:
I have already noted that aspects of the mother’s behaviour concern me when it comes to her capacity to facilitate a close relationship between [the child] and her father. [The father] would have me believe that [the mother] deliberately and mischievously conspired to cut him out of his daughter’s life, from the moment she left without telling him where they would be, without making arrangements for him to see [the child], and when she insisted initially on supervised contact. The evidence simply does not support such an extreme account of the mother’s attitude.
At paragraph 54 her Honour said:
All that said, the mother’s blind spot as to [the child’s] safety and care with her father is troubling. I am satisfied that it is largely because of her own experiences with him. [The mother] strikes me as quite damaged by this relationship. I accept it is a relationship that she ultimately found to be psychologically abusive. There is such an obvious mis-match and imbalance in the parents’ respective personalities. [The father] is as over-bearing as [the mother] is timid. ….
Her Honour went on to say, at paragraph 56:
I am critical of the mother for the way she handed an issue in relation to [the child’s] kindergarten. The father had enrolled [the child] in a Steiner kindergarten when she was just a baby. At the start of last year, he started her in the three-year-old program, held on the one day per week when she was with him. At his request, [the mother] visited the kindergarten. She did not like what she saw. She enrolled [the child] in another kindergarten, in another three-year-old program, on one day per week. She did not tell the father about it for several months.
The father did not establish that her Honour mistakenly believed that “supervised contact was no longer an issue after July 2006”. The trial Judge’s careful analysis of the parenting capacity of each of the parties persuades us that there is no substance to this ground of appeal.
Ground 7
The Learned Judge erred at law in that she materially acted upon an error of fact by omission namely that parental communication was prohibited by the interim orders since separation (2 years) and the established facts of case.
We did not understand what the father meant by “the established facts of the case” in relation to this ground of appeal. This complaint appeared to relate to her Honour’s conclusion that the poor quality of communication between the parents was a contra-indication to shared parenting. The father seemed to suggest that her Honour should not have reached this conclusion, because orders of this Court and a State court prevented or limited communication between the parents.
Interim orders of 24 July 2006 and 20 March 2007 provided that the parties communicate only via the communication book and their lawyers, other than in the case of an emergency involving the child. A State intervention order was in force for part of the period between the parties’ separation and the trial.
The nub of the father’s argument seemed to be that he has been flexible and willing to negotiate at all times but he has been obstructed by court orders and the mother’s refusal to cooperate with him. In his Summary he sought to blame the mother for any problems in their communication. He pointed to an alleged “lifelong history of communication problems and unreasonable fear” (original emphasis), as well as “clinically significant psychopathology in [her] MMPI-2 personality profile”(original emphasis).
In our view, paragraph 99 of the father’s Summary illustrates his erroneous perception of the significance for shared care of communication problems between parents. He wrote:
I respectfully submit it is bizarre for the parent unable and/or unwilling to communicate to be rewarded with primary care.
The court’s task in no way involves notions of a parent being “rewarded with primary care”. In our view, the judgment demonstrates that her Honour carefully assessed the quality of the parents’ communication and their capacity for negotiation.
At paragraph 94 her Honour quoted with approval this passage from one of the Family Reporter’s three reports.
The Family Report writer, [Dr K], encapsulated the parents’ communication problem in his second report (at page 10):
‘Of particular concern however is the parents’ conflict and difficulties dealing with each other, although [the father] appears to overtly be prepared to negotiate regarding issues to do with [the child]. It appears to be a negotiation largely on his terms. It would appear that [the mother] largely does not wish to negotiate, because she feels that she will be steam-rolled by [the father’s] approach…’
It was open to her Honour to accept this evidence. It was also open to her Honour to conclude that the father shares responsibility for the unsatisfactory communication between the parties. The trial Judge did not accept that the parties are able to communicate and negotiate effectively. In our view, this conclusion was well open on the evidence and is not vitiated by the existence of orders which prevented direct communication. It is our opinion that this ground of appeal must fail.
Ground 8
The Learned Judge erred at law in that she materially acted upon an error of fact of her own finding namely that the Mother had always been the child’s primary carer.
To some extent this ground is linked to grounds 1 and 2, which depend on the father’s intricate analysis of “conscious interaction time”. This complaint seemed to rest on an assumption by the father that the mother was incapable of providing primary care for the child while the parties lived together. His argument appeared to be that the evidence should have compelled her Honour to make such a finding.
There is no doubt that the mother was the primary carer between the child’s birth on 30 May 2003 and January 2004. She and the child lived in the Stapleton family home during this period.
In his Summary the father suggested that the trial Judge “in fact finds the Father was the primary carer for 21 of 34 months before separation”. We see no such finding in the judgment and do not understand the basis of this proposition.
The father submits that “it was physically and emotionally impossible for the mother to have been primary carer before separation”. In support of this proposition, he relied on her time on sick leave after a miscarriage and his assertion that “[t]he Family Report identified significant health problems finding evidence of axis type 1 depression and elevated persecutory ideas” (original emphasis).
While we do not accept that the father correctly recorded these two pieces of evidence, it does not in any event follow that “it was physically and emotionally impossible for the mother to have been primary carer before the separation”. She could well have fulfilled that role while on sick leave and despite the psychological difficulties said to have been identified by the Family Reporter.
In his Summary the father referred to “post separation” factors, which he claimed as support for his argument that the trial Judge wrongly concluded that the mother has always been the child’s primary carer. He wrote:
Post separation
i)the Mother has relocated 4 known times including to another city
ii)her living arrangements and circumstances remain unknown at trial
iii)other undisclosed adult carers were admitted to be living in her home at different times
iv)the child’s primary attachment remains with the Father
v)the child prefers to live with the Father
vi)The Father resides in the owned family home.
We do not appreciate how any of these matters support the father’s contention that her Honour erred in the finding that the mother was always the child’s primary carer.
Counsel for the mother submitted to us that there was a dispute at the trial as to who was the child’s primary carer during the parties’ cohabitation. He further submitted that her Honour’s statement in paragraph 113 that “[e]xcept between mid-2004 and early-2006 [the child] has primarily lived with her mother” was not inconsistent with her Honour’s finding in paragraph 119 “[s]he has at all times lived primarily with her mother” as during the period mid 2004 until early 2006 the parties were cohabiting. We note these findings by the trial Judge were not findings that the mother was the child’s primary caregiver but rather she had lived primarily with her since birth. Without transcript, it is impossible for us to conclude that the findings of the trial Judge were not open on all of the evidence. We are not persuaded that any matter advanced by the father establishes error on the part of the trial Judge. We are of the view that this ground must fail.
Ground 9
The Learned Judge erred at law in that she materially acted upon an error of fact by omission namely the documented shared parenting agreement that existed for most of the child’s life before separation.
This ground seemed to relate to documents which the parties submitted to Centrelink for the purpose of allocating social security benefits between them. It seems that the father received “Parenting Payment Single” from June 2004 until February 2005.
Representations to Centrelink and allocation of parenting payments do not necessarily reflect the time which the child actually spent with each of the parties. As noted, we were informed by counsel for the mother that there was a dispute at the trial as to the arrangements for care of the child. The existence of these documents, which the father did not identify to us, fails to give substance to this ground of appeal.
Ground 10
The Learned Judge erred at law in disregarding the evidence of three Family Reports over 18 months with reasons that were neither sound nor adequate. And further failed to make an assessment of the Mother’s parenting capacity, in particular overprotective parenting to meet the child’s emotional needs, or establish her fear to be reasonable.
We are of the clear view that the trial Judge did not disregard “the evidence of three Family Reports without sound or adequate reasons”. The judgment amply set out why her Honour had concerns about the Family Reports and oral evidence of the Family Reporter. Her Honour explained why she accepted his revised recommendations.
We have referred already to paragraph 94 of the judgment, where her Honour quoted with approval the Family Reporter’s assessment of the communication problems between the parents and their capacity for negotiation. In the next paragraph the trial Judge said:
Despite that, in [Dr K’s] three reports he recommended equal time between the parents. In his first report dated 19 July 2006 he concluded:
‘In my opinion, [the mother] and [the father] have the ability to be able to work towards effectively caring for [the child] on a shared basis. At times, there are contra-indications for the shared-care of younger children, largely for developmental reasons. In this case, in my opinion, the parents’ personal styles and the relationship that [the child] has with each of her parents would maximise progress that she makes in her own development.’
Her Honour then noted the Family Reporter’s view that shared care was appropriate but that there was no necessity for an “equal amount of time each week with each parent”.
In paragraph 97 of the judgment her Honour noted that the Family Reporter expressed a similar concern in his second report dated 5 December 2006. He said:
Of particular concern however is the parents’ conflict and difficulties dealing with each other…
Nonetheless, the Family Reporter again recommended shared care, although not necessarily equal time in each household.
At paragraph 99 of the judgment her Honour quoted from the Family Reporter’s final report dated 21 November 2007:
The current evaluation continues to show [the mother] as the more experienced care-giver. She showed a greater tendency towards focussing on [the child’s] needs and this probably reflects, in part, her personality, but also, in part, her experience in care-giving for over two decades. Nevertheless, the quality of the relationship between [the child] and both parents is positive, and she is soundly attached with both parents, and sees both parents’ homes as where she lives.
In the next paragraph the trial Judge set out the Family Reporter’s general view as to shared care for four year old children:
Normally in children of age 4½, it would be unusual to consider a shared-care arrangement, as it is considered that children generally do better with a home-base unless the parents co-operate very well, live nearby and the child’s development is congruent with the task associated with shared-care.
At paragraph 101 the trial Judge summarised the Family Reporter’s view as to the parental interaction and cooperation as follows:
[Dr K] went on to say that the extent of the co-operation between the parents was uncertain, and their reports about the relationship between them were diametrically opposed, as they had been in the past. He referred to the police involvement over the tyre incident and was clear that such issues needed to be taken into account when considering whether there was adequate co-operation between the parents to establish a shared care arrangement. It was material not available to him at the time.
At paragraph 104 her Honour said:
I also had reservations about [Dr K’s] oral evidence, caused in part by the way he answered questions, and in part because he necessarily had a more limited snap-shot of the parties’ relationship and the extent of their capacity to communicate and co-operate, than was available to me in the course of the broader and more detailed evidence.
At paragraph 105 the trial Judge observed that the Family Reporter “seemed to maintain an unduly optimistic approach to the parents’ capacity to communicate and cooperate despite the fact that in the course of the three reports, their communications did not improve, but arguably worsened.” Her Honour concluded that the Family Reporter “did not seem to deal with that aspect by analysing the likely impact on [the child] in a 50/50 shared care arrangement”.
At paragraph 106 of the judgment her Honour found:
… he underestimated the degree of conflict and acrimony between the parties. His optimism that things would improve may not have been misplaced in the first report, but it was by the second and third. Although mediators had helped put in place mechanisms such as the communication book, the tenor of many of the communications and negotiations remained acrimonious and difficult. That seems to have been overlooked by [Dr K].
At paragraph 107 her Honour said:
It gave me the impression that he was defending the father and trying to justify the conclusion in his report.
This comment was in relation to the Family Reporter being asked for his response to the length of the affidavit material, when he replied “[i]t may well be that she has a much longer version”.Her Honour observed “[i]t was an odd thing to proffer when he had been in receipt of her affidavit material.”We appreciate that the father attempted to persuade us that the Family Reporter was not in receipt of the parties’ affidavits when he gave his oral evidence but, as indicated, we reject this suggestion.
Her Honour continued in paragraph 108:
I was concerned that [Dr K] struggled to concede – until given many opportunities – that this material lacked empathy for the mother, and was a troubling sign in terms of the hope for co-operation and communication between these parents. He said that he did not observe that level of criticism by the father in the course of his evaluation.
At paragraph 110 of the judgment her Honour summarised the concessions made by the Family Reporter in the course of his cross-examination by counsel for the ICL as follows:
[Dr K] conceded that the distrust between the parents would make it extremely difficult for them to share and co-operate in [the child’s] care. He conceded that the father’s attitude that with the mother the child would be ‘emotionally stunted’ would potentially undermine the positive effect of the mother in [the child’s] life. He conceded that the parents’ very different personalities, very different styles, lack of support for each other, and the fact that they see risks to the child in the other’s care, gave rise to serious concerns with equal shared parenting. He agreed that the research showed that for children to live equally in two homes, the parents’ flexibility is key, particularly with young children. He also conceded that it was going to be extremely difficult for [the child] to tell either parent if arrangements were not working for her as she would have issues of loyalty to both.
In paragraph 111 of the judgment her Honour recorded that the Family Reporter agreed with:
…the research referred to in an article by Dr Jennifer McIntosh and the Honourable Richard Chisholm entitled ‘Shared Care and Children’s Best Interests in Conflicted Separation – A Cautionary Tale from Current Research (Volume 20 Number 1 Australian Family Lawyer) and in particular the following passage (at page 9):
The Research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:
Parent factors:
· Low levels of maturity and insight;
· A parents’ poor capacity for emotional availability to the child;
· Ongoing high level conflict;
· Ongoing significant psychological acrimony between parents;
· Child is seen to be at risk in the care of one parent.
Child factors:
· Under 10 years of age;
· The child is not happy with a shared arrangement;
· The child experiences a parent to be poorly available to them.
Her Honour noted that the Family Reporter agreed that equal shared care would be contra-indicated if those “parent factors” were present. He also concluded that a major change to the child’s current routine “could also be of concern”.
The father made several specific complaints as to the adequacy of her Honour’s reasons in dealing with the evidence of the Family Reporter. We will deal in turn with these complaints.
The father again alleged that there was an “ex parte communication” between the trial Judge and the ICL and/or her counsel. He argued that this communication led the trial Judge to “act on a wrong principle”. We have already disposed of this complaint.
The father next alleged that the trial Judge was influenced by extraneous or irrelevant matters, which he identified as the “urgings of an absent, non-involved ICL”. The father put nothing to us which even suggested that counsel for the ICL did other than make proper submissions based on the whole of the evidence.
In our experience it is far from unusual for a solicitor who acts in the role of ICL to be absent for parts of the trial, having briefed experienced counsel who is present throughout the proceedings. Funding constraints on legal aid bodies mean that this reality must be accepted. We see no basis for criticism of the trial process or her Honour’s judgment for this reason.
The father next submitted that the trial Judge “mistook the facts”. He again referred to his contentions about supervision of contact not being a live issue; the Family Reporter not being in possession of the trial affidavits; “incorrect treatment of the findings of the family reporter”; and the reasonableness of the mother’s fears. We have dealt with these complaints earlier and concluded that they lack substance.
The father next contended that the trial Judge failed to take into account relevant matters, which he set out at paragraph 121(iv) of his Summary as follows:
iv) failed to take into account relevant matters;
Adversarial child expert witness report
Primary attachment and child’s wishes
Pre-existent shared care agreement
Court orders prohibiting direct interaction/communication
the Mother’s living and care circumstances remained unknown
Significant health problems and ‘likely overprotective’ parenting
We have dealt already with the substance of these complaints.
At paragraph 122 of his Summary the father wrote:
The admission of the adversarial child expert report Exhibit (M7), without referring to this evidence in her Reasons, must necessarily render those reasons for rejecting the Family Reports inadequate.
The so-called “adversarial child expert report” was annexed to the interim affidavit sworn by the father on 15 March 2007. It is a report dated 30 December 2006 prepared by a clinical psychologist, Dr E.
This report came into evidence because the father was cross-examined on his interim affidavit, which was then tendered (Exhibit M7). It is true that there was no reference to Dr E’s report in the judgment, probably for the good reason that it was untested and thus given no weight by her Honour.
The father’s written submissions in support of this ground were five pages and some 32 paragraphs in length. He repeated much material which appeared elsewhere in his Summary. We have indicated above that we are satisfied that the trial Judge gave proper and adequate reasons for declining to accept the written recommendations of the Family Reporter and for accepting the opinions which he expressed in his oral evidence. We have also indicated that we are satisfied that her Honour made a careful and valid assessment of the parenting capacity of the mother. In our opinion, this ground of appeal must fail.
Ground 11
The Learned Judge’s discretion miscarried in circumstances that were plainly wrong and manifestly unjust namely preferring the Mother’s estranged husband’s hearsay regarding an incident at McDonalds when the audio evidence of his concealed recorder was suppressed.
We have referred already to the alleged “suppression” of the audio recording. As we have observed, this issue was not pursued at the trial by the father and his lawyers.
A DVD described as the “silent video” recording was tendered by the mother as Exhibit M6 at the trial. The father asserted this was a DVD which included footage from a McDonalds restaurant security video. The father’s challenge to the trial Judge’s findings about what occurred on this changeover depends on the contents of the audio recording, which we have declined to receive as further evidence.
The trial Judge observed that the father and Mr Stapleton gave evidence as to their conflicting versions of what occurred during this changeover. Her Honour had the benefit of observation of their demeanour in the witness box and was entitled to find one witness more credible than the other. The father did not demonstrate to us that this finding was erroneous and this ground of appeal must thus fail.
Ground 12
The Learned Judge erred in procedural fairness and/or relied upon inadmissible evidence to allow an adversarial child expert report without consent of the ICL, neither tended or filed after 18 months nor disclosed as being relied on for trial, which was submitted under guise of an unfiled affidavit of the Father.
We have already considered the substance of this ground, which relates to the tender of the father’s interim affidavit. There is no basis for criticism of the way in which the affidavit came into evidence.
Grounds 13 and 14
13.The Learned Judge erred at law in failing to review the orders made at the March 20, 2007 interim hearing, which show the Father’s application and affidavit of February 7 2007 (Exhibit M1) were withdrawn before hearing by consent.
14.The Learned Judge denied natural justice and/or gave unfair weight to self-drafted interim material resiled from 18 months earlier and withdrawn before hearing not to be relied on, resubmitted by the [mother] as the evidence of the [father] in contravention of Family Law Rules in a “traditional” trial.
These grounds seem to be based on an assumption by the father that the interim affidavit could never become part of the evidence, because his application for new orders was withdrawn before a scheduled hearing in March 2007. This assumption is erroneous because the father’s affidavit properly became part of the evidence after the father was cross-examined on its contents and it was tendered by counsel for the mother. It is significant that the transcript shows that the father’s counsel did not object to the tender. He merely said “I have not seen it in the brief” (transcript. 11 June 2008, p 82).
At paragraph 217 of his Summary the father wrote:
… I respectfully submit that the learned judge gave unfair weight to this interim affidavit by failing to provide adequate reasons and/or establish a creditable or sound train of evidence to justify her finding that the opinions and attitudes expressed in these 1½-year old interim affidavits remain germane or threaten the Mother-child relationship.
A careful reading of the judgment indicates that the contents of the father’s interim affidavit were but one matter which led the trial Judge to reject the suggestion that the father had resiled from these opinions and that he now has a much more favourable and conciliatory view of the mother. At paragraph 75 the trial Judge said:
However, his recent behaviour gave me no confidence that he was other than mouthing what he believed he had to say to gain the shared regime that he sought.
Her Honour then set out a number of matters which underpinned this conclusion.
Her Honour first referred to the father’s trial affidavit and said (at paragraph 76 of the judgment):
… whilst this time drafted with the assistance of lawyers, and whilst carefully acknowledging that [Dr N] did not believe that the mother was suffering from a diagnosable psychiatric illness or any form of personality disorder, [the father] still emphasised findings that she was ‘anxious, secretive, unforgiving, over-reactive, and a person who had avoided difficulties in her life from an early age’.
At paragraph 77 her Honour said:
I note too that his answers to questions during the hearing did not leave the impression that he has mellowed in his view of the mother. He was cross-examined about having described her in an earlier affidavit as ‘sociopathic’. He was presented with the ideal opportunity to recant on such an ugly, unreasonable and inaccurate description. Instead, he said it was ‘just a word’, and again he said he was not really ‘qualified’ to say.
At paragraphs 78 to 81 of the judgment her Honour referred to the mother’s miscarriage of a baby son of the parties early in July 2005. The mother swore that the baby was buried two days later and that a requiem mass was held for him 10 days after the burial.
The father alleged that the mother kept the foetus in her refrigerator until the day of the requiem mass. The mother denied that she did so and annexed church and burial records which supported her version of events.
Her Honour noted that the father said in cross-examination that, having seen the records attached to the mother’s affidavit, he accepted her version and resiled from his allegation that she had kept the foetus in her refrigerator. He suggested that his acceptance of the mother’s account of these events suggested that he had been able to “move on”.
Her Honour then recorded that the father was forced to concede that he had written a letter to the mother’s solicitor on 25 May 2008, only days before trial, as follows:
Please note my objection to the authenticity of [the Church] burial records marked as attachment “E” and “F” of [the mother’s] affidavit. Please make originals and [Father H] available for cross-examination if your client is to rely upon these documents. (Exhibit M2)
This letter led her Honour to conclude:
When [the father] said that he was no longer pursuing the issue, that he was ‘trying to spare’ the mother’s feelings, and anyway, it was all one-and-a-half years ago, that did not sit honestly with his request for those witnesses just days before trial.
Her Honour next referred to an incident in mid-2007, when the father was observed near the mother’s car in a YMCA car park. The mother returned to her car to find one of the tyres deflated. The father was charged with an offence but not convicted after a hearing in a Magistrates’ court.
The father made various assertions which would suggest that he was the innocent party in this event. The trial Judge’s view was that she was “unimpressed that the father was anywhere near the mother’s car”. Her Honour then said “what impressed me least was that a year later he could not readily concede that, quite simply, he should have stayed away from her car”.
At paragraph 86 of the judgment her Honour next referred to a number of instances when the father returned the child late to the mother between April 2007 and February 2008. It appears that nine of those occasions were close in time to the trial. Her Honour was unimpressed with the father’s explanation, which was that he sat with the child in the car at the changeover point to “relax her”. He said he did so because the child was distressed at the prospect of leaving him. The trial Judge was of the view that there was a strong element of “gamesmanship” in the father keeping the child in the car, while he kept the mother waiting to collect her.
At paragraph 88 her Honour then referred to an incident in February 2008 when the father “overheld” the child. Apparently he was of the belief that “makeup” time was due to him but the mother unreasonably failed to reach an appropriate agreement. Her Honour noted:
What is clear however is that [the father] now says he realises that his actions in unilaterally taking make-up time would have embroiled [the child] in further conflict. My concern is that as recently as February this year, either he did not appreciate that, or he ignored it.
All of this material indicates clearly to us that the father’s interim affidavit was but one of several considerations which led the trial Judge to form the view that the father still harbours an adverse view of the mother. We thus reject the submission that improper weight was accorded to the contents of, and annexures to, the father’s interim affidavit. These two grounds of appeal must thus fail.
Ground 15
The Learned Judge erred at law in the exercise of discretion in that she failed to provide reasons why equal time was not considered in a parallel parenting order in circumstances where for over 2 years
i)The uncontested evidence was that ‘the child’s progress is a testament to her parents care of her,
ii)interim orders prohibited direct parental interaction or communication,
iii)three family reports recommended the child’s development required maximum time with both parents, and in particular where
iv)a substantial shared parenting order which prevents communication or interaction save in an emergency was preferred.
As we pointed out during the hearing of the appeal, the term “parallel parenting” is not found in the Act or established case law. Her Honour was thus under no obligation to consider “equal time in a parallel parenting order”. We have already dealt with the particulars of this ground, in which we find no merit.
Conclusion
It is therefore our conclusion that there is no substance to any ground of appeal advanced by the father. The appeal will be dismissed.
Costs of the Appeal
The mother sought orders that the father pay her costs of an unsuccessful appeal and the application to adduce further evidence, which we dismissed during the hearing. Her counsel pointed out that the mother had to file a Response and an affidavit on 7 October 2009, in relation to the father’s Application in an Appeal.
The father opposed the mother’s applications for costs. He informed us that he had a grant of legal aid for the trial and that a costs order would “bankrupt” him.
As the Full Court observed in its judgment of 11 March 2009, the mother had a grant of legal aid for the appeal. As a term of the grant, she was required to provide a charge over her interest in a property which she owns jointly with Mr Stapleton. She will be obliged to repay all legal fees outlaid on her behalf by Victoria Legal Aid, in the event that she and Mr Stapleton reach a property settlement.
As noted, the Full Court ordered on 11 March 2009 that the father lodge $3,000.00 as security for the mother’s costs of the appeal. This figure was the approximate total of Victoria Legal Aid’s scale rate of solicitors’ professional costs of $1,550.00 and counsel’s fees of $1,410.00 for the appeal. Those orders provided that his appeal would stand dismissed if he failed to lodge this sum by 30 June 2009.
The father’s appeal was wholly unsuccessful. His application to adduce further evidence in the appeal was dismissed other than for our receipt, by consent, of five pages of transcript of the father’s cross-examination at trial. As noted, the mother’s counsel consented to our receiving this material. In our view, this material did not advance any of the father’s grounds of appeal
For these reasons, we will order that the father pay the mother’s costs of the appeal and the application to adduce further evidence. The hearing before us was confined to one day, so the amount of $3,000.00 should cover the mother’s legal and scale costs of both the appeal and the application to adduce further evidence. Accordingly, we will order that the father pay the mother’s costs in the sum of $3,000.00.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 29 January 2010
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