CAPPETTO & CAPPETTO
[2011] FamCAFC 62
•18 March 2011
FAMILY COURT OF AUSTRALIA
| CAPPETTO & CAPPETTO | [2011] FamCAFC 62 |
| FAMILY LAW - APPEAL – Parenting – Interim orders – Whether the child should be ordered to go to school – Where it was found that it was in the best interests of the child to go to a local public school and interact with children of a similar age to the child and develop relationships outside of the mother’s home – Whether the children should be ordered to spend unsupervised time with the father – Where limited unsupervised time with the father was ordered. FAMILY LAW - APPLICATION – Application for an adjournment – Where the mother submitted that as she was appealing the decision of Legal Aid not to grant her aid, the proceedings should to be adjourned pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW) – Where the mother’s appeal of the Legal Aid decision was in relation to the trial proceedings and not the appeal proceedings – Application dismissed. FAMILY LAW - APPLICATION – Application that the matter proceed without a transcript – Where the mother submitted that she could not afford to purchase the transcript – Where the father and the Independent Children’s Lawyer neither opposed or consented to the application – Application allowed – Matter heard without transcript. FAMILY LAW - APPLICATION – Application for the mother to appear by telephone – Where the initial request for the mother to appear by telephone was denied – Where the mother made another request citing a different reason for wishing to appear by phone – Where a medical certificate was produced providing that the doctor was aware that the mother was expected to be in court the following day and that in the doctor’s opinion she was unfit to attend – Application allowed. FAMILY LAW - APPEAL – Parenting – Appeal from interim orders – Where the mother sought that the children live with her and have no unsupervised visits with the father – Where the mother was of the view that the children, aged 5 and 3, should determine if and when they see their father – Where the mother wished to home school the eldest child – Where the mother argued that the trial judge placed to much weight on the expert report – Where the mother complained that she had been ignored by the trial judge –Where the father and the Independent Children’s Lawyer opposed the appeal – Where there were concerns about the mother’s enmeshed relationship with the children –Where no grounds of appeal were made out – Appeal dismissed. FAMILY LAW - APPEAL – Parenting – Appeal from interim orders – Where the orders were procedural in nature – Where the mother submitted she had not been provided with enough time to find legal representation before the final hearing – Where the mother sought an adjournment of the final hearing – Where the father and the Independent Children’s Lawyer opposed an adjournment – Where the Independent Children’s Lawyer was of the view that the final hearing was urgent, not just in relation to the home schooling issues, but also so the children can have time with their father and so where the children live can be determined – Where the mother was unable to demonstrate any errors of law – Appeal dismissed. FAMILY LAW - COSTS – Where the Independent Children’s Lawyer sought one half of the costs in relation to the appeal – Where the father who was self-represented did not seek costs – Where the mother resisted an order for costs due to her financial circumstances – Where the mother’s first appeal was entirely without merit – Where the second appeal was misconceived – Mother ordered to pay half of the Independent Children’s Lawyers costs, fixed in the sum of $800. |
| Education Act 1990 (Cth) Family Law Act 1975 (Cth) s 117 Legal Aid Commission Act 1979 (NSW) s 57 |
Gronow & Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
| APPELLANT: | Ms Cappetto |
| RESPONDENT: | Mr Cappetto |
| FILE NUMBER: | SYC | 7342 | of | 2008 |
| APPEAL NUMBER: | EA | 20 | of | 2011 |
| DATE DELIVERED: | 18 March 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace & Johnston JJ |
| HEARING DATE: | 18 March 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 February 2011 |
| LOWER COURT MNC: | [2011] FamCA 68 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In Person |
| SOLICITOR FOR THE RESPONDENT: | In Person |
| SOLICITOR FOR THE RESPONDENT: | Brain Samuel & Associates |
Orders
The appeal filed 22 February 2011 be dismissed.
The appeal filed 10 March 2011 be dismissed.
The appellant pay to the Independent Children’s Lawyer costs fixed in the sum of $800.
IT IS NOTED that publication of this judgment under the pseudonym Cappetto & Cappetto 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 SYDNEY |
Appeal Number: EA 20 of 2011
File Number: SYC 7342 of 2008
| Ms Cappetto |
Appellant
And
| Mr Cappetto |
Respondent
REASONS FOR JUDGMENT
May J
Introduction
This matter concerns two appeals from interim parenting orders and from procedural orders affecting two children, who are 5 and 3 years.
On 22 February 2011 the mother filed the first notice of appeal appealing two orders made by Justice Watts. The first being the orders of 1 February 2011 and the second the orders made on 15 February 2011.
The orders of 1 February 2011 provided that the eldest child be enrolled in a local public school for the 2011 school year, and for both children to have limited unsupervised time with the father. The mother was ordered to complete a Brighter Futures program and to provide a copy of Watts J’s orders to the medical centres the children attend. Orders were also made requiring the mother to provide the father and the Independent Children’s Lawyer with a doctor’s certificate, should the children be unable to spend time with their father due to illness, and the mother was ordered to have both children medically examined by a paediatrician nominated by the Independent Children’s Lawyer.
On 15 February 2011, pursuant to the slip rule, orders 1 and 2 made 1 February 2011 were deleted and additional orders were made.
The amendments in order 1 included, the changing of the school the eldest child is to be enrolled to another school, the adjustment of the prescribed schooling start date, the addition of an order providing for the father and the Independent Children’s Lawyer to enquire about the child’s progress at school, and an order restraining the mother from moving the children from their current residential address without application to the court. There was also a correction of a typographical error. Various procedural orders were made to prepare for a directions hearing on 2 March 2011.
In the reasons for judgment delivered by Watts J when amending the orders under the slip rule, he explained that he was given inaccurate information about the appropriate school to send the eldest child, based on the address that the mother confidentially provided to the court. His Honour said “I am satisfied by inquires that I have caused to be made that the appropriate public school for the catchment area in which the mother is currently residing with the children is …” and according amended the order.
His Honour also explained that given the Independent Children’s Lawyer had nominated a paediatrician to medically examine the children, an order was made indentifying the doctor, the address and the appointment time. The mother has taken the child to the paediatrician.
Orders of a procedural nature were also made.
On 10 March 2011 the mother filed an amended notice of appeal appealing the interim orders made by Watts J on 2 March 2011.
Those orders are largely procedural in nature. In this appeal the mother asks for an adjournment of the final hearing which is listed to commence on 7 April 2011.
The amended notice of appeal did not replace the original notice of appeal. I will deal with the appeals separately as they raised different issues.
The essence of the mother’s overall position appears to be encapsulated in a letter written to the father on 10 March 2011, when she was seeking to appear by telephone for this appeal. I repeat it in part:
… You have put my children, my family and myself through a lot of suffering and pain and all this is gonna end very soon. Why are you fighting for my children whom you did not consider yours while we were married? We always lived separately. …
History
The parties were married in May 2003 and separated in June 2008.
The children have lived with the mother since birth, spending very little time with the father, and on those occasions the children’s time with the father has been supervised by the mother.
There have been substantial periods of time when the children have not spent any time with the father. The mother says of this, that either she or the children were sick, or that the children had not wished to spend time with the father.
Proceedings between the parties commenced on 11 December 2008, when the children were 3 years and 18 months respectively. No resolution of any issues between the parties has been reached.
On 28 February 2011 the mother filed an application in a case seeking a stay of both the 1 February 2011 and 15 February 2011 orders. His Honour dismissed this application on 2 March 2011.
Currently the matter is listed for final hearing before Watts J on 7, 8 and 11 April 2011.
Applications in an appeal
On 15 March 2011 the mother filed an application in an appeal requesting an adjournment. The mother also asked that the matter proceed without the transcript of the proceeding before Watts J. The applications were accompanied by an affidavit filed in support.
There are three matters for our initial consideration. First, the application that the mother be heard by telephone rather than in person. Second, the application that the appeal be heard without the transcript. Third, the application that the hearing of the appeal be adjourned by reason of the provisions of s 57 of the Legal Aid Commission Act (NSW).
The mother suggested that as she has appealed the decision of Legal Aid not to grant her aid, s 57 of the Legal Aid Commission Act (NSW) requires that she be granted an adjournment until the outcome of the Legal Aid appeal is determined.
Section 57 of the Legal Aid Commission Act 1979 (NSW) provides:
Where it appears to a court or tribunal, on any information before it:
(a)that a party to any proceedings before the court or tribunal:
(i)has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
(c) that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
I understand that the mother applied for legal aid in relation to the trial proceedings not the appeal. In my view, the provisions do not require that an adjournment be granted where the application for legal aid is not in relation to the appeal. In any event, the need for the trial to be heard as soon as possible would constitute “special circumstances”.
The mother submits that she cannot afford to obtain the transcripts of the proceedings. As she wishes the appeal to be heard on this basis and did not claim that there was any disadvantage to her, we proceeded to hear the appeal.
The mother has not attended in person to appear for herself in the appeal.
She first made an application to appear by electronic communication on 11 March 2011. The mother’s reasons for wanting to appear by telephone then was:
My children being sick and I cannot leave them under a stranger’s care while I am inside the court room. My son is suffering from encopresis … I am suffering from travelling sickness like vomiting. …
The application was opposed by the father.
The mother’s request to appear by telephone was denied. We were of the view that the mother should appear in person to present her appeal. The mother was informed of our decision and told the court’s childcare facilities were able to provide childcare for the children on the day of the hearing.
The mother filed a further application on 17 March 2011 seeking leave to appear by electronic communication at the hearing of the appeal. An accompanying affidavit was also filed. In that affidavit the mother submitted that she had “fallen sick and totally not in a position to appear in court personally. I am suffering from virul [sic] infection and added to that gastroenthritis”.
I understand that the Appeals Registrar told the mother we would allow the mother to appear by telephone, on the condition that a medical certificate could be provided stating that the doctor was aware that the mother is required to be in court the following day and that in the doctor’s opinion she is unfit to attend.
A medical certificate was provided to the court on 17 March 2011. That certificate said:
This is to certify that on 17/03/2011 I examined [the mother] who in my opinion is suffering from Viral infection and gastroenteritis and will be unfit to attend court on 18/03/2011.
The mother was therefore granted leave to appear by telephone.
I would also mention at the outset that the mother said she had not received the written submissions of the Independent Children’s Lawyer and the father. It needs to be understood that this matter was brought on urgently. As the mother wished that the appeal be heard, we proceeded on the basis of the appeal being conducted allowing only oral submissions of the father and the Independent Children’s Lawyer. We had the three volumes of the appeal book, the mother’s written submissions and the reasons of judgment of Watts J on 15 February 2011.
The appeal EA 20 of 2011
I have already summarised the orders at the outset of the reasons.
Reasons of the trial judge- Orders 1 February 2011
The proceedings came before Watts J as a less adversarial trial, after the father and the Independent Children’s Lawyer filed an application for interim orders.
The Department of Human Services declined his Honour’s request to intervene in the proceedings. Apparently the court was informed that a conclusion was reached by the Department that the children were not at “significant risk of serious harm”.
On 19 October 2010 the father filed an application in a case seeking an order that the eldest child attend school in 2011 and that both children spend unsupervised time with him. The Independent Children’s Lawyer supported the father’s application.
The mother opposed the application as she wished to home school the eldest child for the “foreseeable future”. The mother also sought that all previous orders providing for the children to spend time with the father be set aside, and that the children decide for themselves when they spend time with their father.
Given the age of the children the trial judge did not accept the mother’s request that the children elect when they see and spend time with their father.
His Honour had available to him a single expert report prepared by Dr R dated 10 November 2010. The report refers to the material provided to him by the Independent Children’s Lawyer. It included the many affidavits of the mother, all the documents filed in the proceedings and all subpoenaed material.
Dr R is a psychiatrist of many years experience. He interviewed the father, the mother and the children on 30 September 2010. The mother suggested to us that the interview took only some minutes. A reading of the report demonstrates that this cannot be correct.
The Independent Children’s Lawyer relied on the report, particularly the concerns expressed by Dr R as to the enmeshed nature of the mother’s relationship with the children and the mother’s personality.
In his Honour’s reasons it was explained that there have been a number of attempts over a significant period of time, endeavouring to encourage the mother to allow the children to spend time with their father. Originally there were orders providing for that time to occur at a contact centre with the mother present. The mother was not satisfied with these orders as they required leaving the children with the father in the presence of a stranger.
As a result of the mother’s noncompliance, alternate orders were made providing for the mother to take the children to a shopping mall, where it was hoped that the children could spend time with the father with the mother being present. The mother complied with these interim orders apparently on about 8 out of 21 occasions. It was explained by the mother to the trial judge that she “did not believe the father would behave in any inappropriate manner when there were people about”.
Under the section characterised by the trial judge as “The father’s application for final orders” it is explained that Dr R faced a dilemma when providing his recommendations. It is said this was due to the father not providing a viable alternate, as he was then not offering that the children live with him on a long term basis. I understand that this position has now changed as the father has filed an amended application for final orders seeking that the children primarily live with him.
In his reasons for judgment his Honour set out the relevant law governing the approach to be taken in children’s cases. He then considered each of the applicable objects and principles under itemised headings by reference to the Family Law Act 1975 (Cth) (“the Act”).
The trial judge concluded that there was no evidence before the court indicating that the children would not benefit from having a meaningful relationship with both of their parents.
It is the mother’s case that the father is a “bad man”. The mother explains that the father has physically abused her, threatened her with a knife and has threatened to sell both the mother and the children for prostitution. It is also said that the father has inappropriately disciplined the eldest child and that on one occasion the “father tied a restraint or strap, ordinarily used in the course of keeping a toddler in check, around [the eldest child’s] wrist and dragged him along the floor”. The father denies all of these allegations.
His Honour observed the mother when giving evidence on the above matters to describe the incidents generally, and that when questioned further started to talk at a rapid speed and without clarifying the incident any further.
The mother in her affidavit filed 5 March 2010 also raised allegations of inappropriate sexual behaviour by the father. Dr R included these allegations in his report. The mother alleges that the father “has made inappropriate sexual comments in a perverted way towards my children and that was mainly one of my fears and concerns for my children and I left never [sic] my children with the [father] and I have never allowed the [father] to change my children’s nappies from the time they were born as I am a witness to his wickedness”.
His Honour said that he was unaware of any allegations made by the mother of actual or threatened physical violence or abuse since the parties separated.
No concluded findings were made by his Honour in relation to the allegations. The trial judge did rely on other evidence available to him that allowed him to make some assessment of the weight to place upon the allegations on an interim basis.
First, the mother’s application for an ADVO to protect her against the father, was dismissed by Hornsby Local Court. This decision was reached after a defended hearing where both the mother and the father had been cross examined.
Second, the opinion of Dr R. Dr R was of the view “that there was no substance to any of the allegations of abuse” and that the allegations of sexual abuse were “extremely whimsical and vexatious”. It was said that the mother appeared to have “fantasies that abuse may be an [sic] intention of the father”.
His Honour said that the father “appears on the face of it to be a stable and steady person”. Reference was also made to Dr R’s opinion that there was no indication that the father has a personality disorder or mental illness or a person who was likely to be abusive or violent.
In concluding his consideration on this section it was said:
When assessing the weight to be placed upon the mother’s allegations in relation to the father being “a bad man” and about his past behaviour, I take into account Dr [R’s] comments about the mother’s mental status, the nature of other statements made by the mother both in writing and orally and her presentation before me. On an interim basis, I can place little weight upon those allegations. The mother will have an opportunity at a final hearing to have any allegations about family violence which she wishes to press against the father fully ventilated and tested. I will attempt to arrange for the listing of the final hearing as soon as is practicable.
It was understood by the trial judge that the mother is of the view that the children are able “to articulate an opinion about their future relationship with their father”, and that they don’t wish to see him. The mother submitted that significant emphasis should be placed on the wishes of the children. His Honour commented that this is one example of the enmeshment between the mother and the children.
Dr R reported that the children “appeared very pleased and comfortable with the father”. When the mother was questioned about this she replied that she tells the children to be “nice and friendly” towards the father and that generally the children talk to anyone. She further asserted that for the children, seeing their father is a terrible experience and that although “age-wise they are small but maturity-wise in terms of what they want, they know very well”. The mother maintains the position that it is the children’s choice not to see their father.
His Honour as stated earlier, did not accept that the children are old enough to make such a decision for themselves. The evidence of Dr R was accepted about how the children in his observation responded to their father.
The children were found to have a very strong relationship with the mother. Dr R commented that he believes that the children have not yet been adversely affected by the mother’s enmeshment, but that the mother’s anxious dynamic will potentially be quite detrimental to the children should it continue. His Honour said that the mother’s presentation before him was consistent with Dr R’s opinion.
Dr R stated that “both children also appear to have a strong relationship and regard for the father” and that the relationship between the children and the father “would grow quickly if he were able to have more time with them”.
It was explained that the father is concerned that the mother is conditioning the children against him and that this will have a long term impact on the children.
His Honour concluded that it was clear that the mother does not wish for the father to be part of the children’s lives and that “the children would be better off not having a relationship with [the father]”.
The trial judge was greatly concerned about the mother’s “fixed position”, as it was described. Although Dr R expressed the view that the children would be “enriched” by developing and sustaining a relationship with the father, the mother does not accept that the father may have a positive contribution to make to the children.
Dr R is of the view that the children’s long term well being will be detrimentally affected should the children not go to school and have the opportunity to develop healthy relationships outside of their home.
His Honour said at paragraph 40:
On an interim basis and as a preliminary view, I have serious concerns about the mother’s capacity to provide for the needs of the children arising from the untested evidence I have about the mother’s personality style …
It was said that the mother made it clear to the court, that she was of the view that the eldest child should be home schooled and that this decision was hers alone to make. The trial judge concluded that this fixed position “does not reflect well on her attitude to the children in terms of their long-term development, or her understanding about her responsibilities as a parent”, especially when consideration is given to Dr R’s opinion that the children are “at long-term risk due to the mother’s over-protective behaviour”.
As said earlier his Honour was not convinced that the allegations made by the mother precluded him from “acting upon the more obvious and immediate risks to the children”.
His Honour was aware that the mother said she would not comply with any orders that he made and that further proceedings would be necessary. However he did not consider this to be a sufficient ground for not making the orders.
To the extent that it is necessary I will refer in further detail to the issue of the eldest child’s schooling.
In her affidavit filed 14 January 2011, the mother provides her reasons for why she would like the children to be home schooled. First, that the children are at risk of harm from the father and that the court cannot guarantee the safety of her children. Second, that the eldest child suffers from chronic constipation. Third, that both children suffer from eczema.
In considering the mother’s evidence the trial judge was satisfied that an order requiring the eldest child to go to school did not create a risk of harm from the father. Rather, that should the eldest child not go to school the risk is from the mother. His Honour stated that in his preliminary view the “mother’s primary motivation for wishing to home school [the eldest child] is that she does not want [the eldest child] to be away from her”.
The eldest child was due to start school at the commencement of this school year. He has not attended pre-school or day care, his only interactions with other children being at play group for 2 hours once a week, accompanied by his mother.
It is the father’s view that home schooling has not been a long term plan and that the idea is relatively new. The mother refutes the suggestion that it is a recent plan. Even if the mother’s evidence is correct, his Honour was not impressed by the mother’s preparation for home schooling and was not convinced that the mother was “fully cognisant of the onus and obligations that will be on her to ensure [the eldest child] is educated to a standard that would allow him to integrate easily into public schooling later if the mother so desires”.
His Honour said at paragraph 55:
The mother has not been able to accept, let alone take on board, Dr [R]’s concerns that if the children do not attend school and are not able to develop relationships outside the home ‘their overall development will be severely restricted and stunted…They could become extremely anxious and in the long term quite depressed’. This rather bleak outlook is of great concern to me. (original emphasis)
And the trial judge continued at paragraph 56:
It is for that primary reason that I have formed the view that [the eldest child] has to go to school, and he has to go to school straight away. I think attempting to introduce it slowly would only give greater scope to the mother to interfere with the process. The mother, I think inadvertently, told me that [the eldest child] is socialised sufficiently and is sufficiently extraverted for her to be confident that he would be able to settle into school if I made such an order.
In consideration of the second and third reasons offered by the mother for not wishing the children to attend school, his Honour said he had “little confidence in the evidence given by the mother as being a genuine reason why [the eldest child] can’t go to a public school”. The trial judge continued:
… [f]or the purpose of these interim proceedings, I am prepared to assume children with constipation problems and eczema problems go to school and the school manages those problems in accordance with the medical advice that they receive. The extent to which [the eldest child’s] constipation problems are related to the anxious dynamic that exists arising from the mother’s dependent suspicious personality style will be a matter for further exploration at the final hearing.
In relation to about the children’s interim time with their father
It was concluded that it would be in the children’s best interests to spend some time with the father away from the mother. Despite the challenges that this may pose his Honour said “the time has come to attempt to give the children some time with their father on an unsupervised basis”.
Grounds of appeal- The first appeal
The mother articulates twelve ground of appeal in respect to the 1 February 2011 and 15 February 2011 orders. The grounds are:
1.Total injustice done to my children and my children are getting traumatised and crying bitterly and this is affecting their health.
2.I was forced to represent myself on the 1st Feb, 2011 and did not know how to represent myself and was helpless.
3.Alleges collusion in the case and my children are used as some product for auction.
4.My children do not trust their father, nor like him and unsupervised visits are traumatising them and they are crying and not able to sleep.
5.My son’s chronic medical condition is ignored.
6.My children’s safety is ignored.
7.My children’s rights and feelings are ignored.
8.My children’s maturity level is ignored.
9.Rights for me to find a solicitor is ignored.
10.The other party, [the father’s] abuses are ignored.
11.Anything what I put forward in my affidavits are ignored.
12.No rights are being given for my children and myself.
The orders the mother seeks on appeal, in summary, are that the children live with her, that the children have no unsupervised visits with the father, that the children decide whether or not to go with their father, that further court proceedings be adjourned until the mother obtains legal representation, that in light of the eldest child’s medical condition he be home schooled, that the father’s past be investigated, that the report of Dr R be challenged by the mother’s solicitor, that the final hearing be delayed until the investigations are completed, and that the mother’s and children’s personal information not be disclosed to any organisation.
Submissions of the mother
We received oral submissions from the mother in addition to her written submissions. The mother’s complaints are largely that she and the children were ignored and that she will be unable to prepare herself for final hearing in the time period. She also alleges collusion between the Independent Children’s Lawyer, Dr R and the father. In essence it was said by her that the trial judge was wrong to accept the observations and opinion of Dr R.
The written submissions filed by the mother largely replicate the material contained in her earlier affidavit material. It is necessary to deal with each of the mother’s grounds of appeal.
Ground 1
The mother submits that the children react adversely during time spent with the father. She states that they cry “bitterly”, that they are “traumatized” and that they have bad dreams about their father. The mother said that it is her duty as a mother to kept the children “happy, loved and secured” and that she cannot do this when the children are ordered to spend time with their father.
The mother explained to us that she gives them any food they request, allows them to wear what they wish and decide what they wish to learn each day. In the mother’s opinion the children are highly intelligent and the order made by the trial judge ignored their views.
Ground 2
The mother submits that she was forced to represent herself on 1 February 2011 and that as she did not know how to represent herself and was helpless. The mother explains that she “did not know how to ask even one question to the evidence”, and “I know in my heart that the truth is with me and I will win and I could save my children from further injustice”.
The Independent Children’s Lawyer explained that the mother has been legally advised in the past. She is hardly a novice in relation to legal proceedings. The father and mother we are told, both gave extensive evidence and were cross examined.
Ground 3
This ground asserts that the Independent Children’s Lawyer, Dr R and the father have colluded against the mother. The mother states that these “men” do not know the children like the mother and consequently, should not be involved in making decisions concerning the children. For the mother, no third party should be able to be involved in the life of the children.
The mother submits that they are trying to make the mother look like “a bad mother who would spoil my children’s as [sic] future”. There was no evidence of collusion or bias. We note that the trial judge has reserved the issue of the mother’s application to remove the Independent Children’s Lawyer to the trial.
Ground 4
It is submitted by the mother that the children have never trusted their father and that they view him as a stranger to their lives. It is asserted that the father has no parenting skills, and that he suppressed the mother and children into living a “prisoner’s life”. The mother states that the father “has never shown any attempt of familiarising with his children while we were married as he never had any time or love for us”.
The mother also submits that the children were witness to the father’s abuses of her, and that exposure to such violence has caused the children to be fearful of him.
While it is obvious that none of these submissions reflect a proper ground of appeal, it can be observed that these were matters considered by the trial judge.
Ground 5
Under this ground the mother also questions how the Independent Children’s Lawyer can be given authority to recommend a paediatrician for the children. The mother is critical of the ability of the Independent Children’s Lawyer to make correct choices given the Independent Children’s Lawyer’s previous recommendation was for Dr R to write the report.
This ground requires no attention other than to observe the mother has attended upon the paediatrician who incidentally was the same doctor to whom her doctor referred.
Ground 6
The mother submits that the safety of both herself and the children are at risk. The mother explains that historically she has “taken the belting from [the father] in order to protect her children”. She states that the “animosity was caused right from the day [the parties] got married because [she] did not give dowry while marrying into [the father’s] family”.
Under this ground the mother also asserts that the father has emotionally abused her.
It can be seen from the reasons for judgment that his Honour was entirely alert to the mother’s allegations and while observing that this was an interim hearing, made the orders after hearing the evidence of the father and mother together with the report of Dr R.
Ground 7
The mother submits that she has a right to home school the children under the Education Act 1990 (Cth). She reiterates that as a mother it is her right to educate the children “in the way what [sic] is best and suitable for them”.
The difficulty for the mother in this contention is that she did not place before the judge evidence demonstrating that she had taken the necessary steps to enrol the child.
Ground 8
The mother submits that her children “are highly matured for their age” and that as a mother she respects her children’s wishes. She requests that the court respect the maturity of the children and let them decided whether they should spend time with the father.
I have already referred to this contention, which on any view, is difficult to understand as a ground of appeal.
Ground 9
In making submissions on this ground the mother submits that the court should adjourn the proceedings to enable the mother to instruct a solicitor. The mother also alleges collusion between the Independent Children’s Lawyer and the father. She states “I need a solicitor to represent me as I am finding it very hard to talk amongst these people in court who are trying to make my children and my life miserable”.
The mother also requests that the medical records of the father be subpoenaed.
It is accepted that the mother has appealed the decision of Legal Aid (NSW), she was however unable to tell us when a decision was likely. Clearly it is preferable for the mother to be represented at the trial, this is a matter for the trial judge not for an appeal.
Ground 10
The mother submits that the father has also abused her family.
This is not a ground of appeal.
Ground 11
The mother submits that her affidavits should be afforded greater weight than the report of Dr R.
This as I have said appears to be the focus of her submissions. However, it was never explained why the report of Dr R should not have been given the weight afforded to it by the trial judge.
Ground 12
The mother says that she discussed home schooling the eldest child with the father when he was born.
She submits that the trial judge has not respected the rights of both herself and the children to security and privacy by disclosing the suburb in which she resides and also by passing on information to third parties.
The mother is concerned that her separation from her husband will “carry a stigma on my children’s and [her] future as it is not acceptable in India to separate or divorce an [sic] husband”.
These are further contentions which no doubt will be examined at the trial but do not form grounds of appeal.
It is not productive for us to refer any further to the grounds or submissions in this regard.
Amended notice of appeal
The mother submits that she has not been provided with enough time to find legal representation and that his Honour erred in failing to grant the mother an adjournment.
Given that the orders appealed against are of a procedural nature, with the exception of order 1, which dismissed the mother’s applications in a case filed on 23 and 28 February 2011, it is not necessary to include any detail of the orders.
From the information provided by the mother under the heading “Grounds of appeal” it can be ascertained that the mother has concerns about her ability to prepare for the hearing. The mother in particular, is concerned about her ability to find legal representation. She is aggrieved that both her applications, filed 23 February 2011 and 28 February 2011 were dismissed.
The orders sought by the mother are that the final hearing be adjourned, until such time as a solicitor is found, that leave be given to allow the mother to bring the children to court and that leave be given for the mother to challenge Dr R’s report.
Submissions of the Independent Children’s Lawyer
The Independent Children’s Lawyer seeks that both the mother’s notice of appeal and amended notice of appeal be dismissed. He submits that his Honour did not err in law in making the orders. It is said that the trial judge both outlined the relevant law and appropriately applied that law in making orders that were in the best interests of the children.
In regard to the eldest child’s schooling it is the submission of the Independent Children’s Lawyer that he should attend a NSW public school. It is submitted that the issue of the children’s schooling should be determined on a final basis. For the eldest child the decision is of particular significance as he will turn 6 later this year, the compulsory school age. The Independent Children’s Lawyer informed us that he had provided the trial judge with the documents necessary to be considered from the Department of Education (NSW).
The Independent Children’s Lawyer submits that the mother has competently represented herself in the past and that the mother did not indicate to the trial judge that she sought to obtain legal representation.
Of particular significance the Independent Children’s Lawyer submitted that the hearing of the matter is urgent, not just in relation to the home schooling issues, but also so the children can have time with their father and so where the children live be determined.
Submissions of the father
It can be said that the father relies on the submissions of the Independent Children’s Lawyer. The father rightly observed that the mother was unable to demonstrate any errors of law.
Discussion of the first appeal
It is appropriate that I set out the legal framework in which we must consider this appeal. This is particularly important since the mother is not legally represented.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ at 504-05 held:
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.
Paragraphs 519-20 of the Gronow & Gronow (1979) 144 CLR 513, is also of relevance:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Conclusion
During oral submissions, the argument revealed three broad challenges to his Honour’s determination:
1.That his Honour gave too much weight to the opinion of the expert Dr R in circumstances where the mother said much of his opinion and assertions of facts were made up, “rubbish” and lies.
2.That his Honour erred in ordering that the older child be enrolled in his local public school, when she wanted him to be home schooled.
3.That his Honour erred in ordering the father spend unsupervised time with the children.
As to the first contention, it must first be said that the trial judge was clearly aware of the limitations imposed by an interim hearing in which evidence is necessarily truncated and issues not fully explored. At a number of places in his judgment, his Honour referred to issues that will receive full ventilation at the final hearing.
Somewhat unusually in an interim hearing, his Honour heard evidence from both parties and each was cross examined by the Independent Children's Lawyer. His Honour asked questions of the parties. The mother said that she made clear to his Honour her reservations and criticisms of Dr R’s report.
His Honour therefore had the advantage of hearing from both parties and the report of the expert.
As already observed, Dr R had been provided with most of the relevant documents by the Independent Children's Lawyer in preparation of his report, including the documents filed by the parties and documents produced under subpoena.
The weight or reliance to be placed on evidence is a matter for the discretion of the judge and is done in the context of all of the evidence before him.
There was nothing put to me that persuades me that his Honour erred in placing too much weight on the report.
As to the second contention, I am satisfied that there was ample evidence on which the trial judge could find that, while the mother proffered the view that she had always intended to provide home schooling for the children, she had made no or no significant effort to put the process in place. Further, her evidence to his Honour that she believed that it was the responsibility of the Department of Education to set the curriculum for home schooled children, was demonstrated to be incorrect, which his Honour properly took into account in his finding on her preparedness for this course.
His Honour also had before him the opinion of Dr R that, in his opinion based on his interviews with the parties, it would not be in the child’s interest that he be schooled at home, but rather, that he would benefit from the socialisation that comes from attendance at school with other children.
As to the third issue, it is clear from his Honour’s reasons that he was well aware of the history between the parties and, in particular, that despite a number of orders providing for time to be spent between the children and the father, those orders had not resulted in the children spending regular, significant time with the father.
Dr R had observed the children with the father and expressed the view that they appeared relaxed and pleased to see him. He also expressed the opinion that there was nothing of which he was aware that would indicate that the children should not enjoy a meaningful relationship with each parent.
His Honour was aware that the mother was trenchantly opposed to the father spending time with the children, whether supervised or at all.
As I have indicated, this appeal challenges the exercise of his Honour’s discretion in making the orders that he did. The onus is on the mother to show, not that the orders are not what she sought or indeed that other judges may have made in different circumstances. The mother must show that in coming to his decision, his Honour made some error of fact, took into account irrelevant considerations, ignored relevant considerations or acted on an incorrect principle and that the errors were such that they undermine the proper exercise of his Honour’s discretion.
The mother put nothing in her submissions that would persuade me of any of the errors necessary to maintain a successful challenge to his Honour’s discretion.
Being conscious that the mother represented herself in the appeal, it should be considered whether the decision was affected by any other errors of the type to which I have referred in the two well known decisions. I can find none.
The mother’s appeal against his Honour’s orders made on 1 February 2011 and 15 February 2011 should be dismissed.
Amended Appeal Conclusion
As has been observed this is an appeal from procedural orders. The matters complained of can best be considered by the trial judge. These include, whether the mother can prepare her case in the time allocated and whether she will have a solicitor representing her. It amounts to an application before the Full Court for an adjournment of the trial. It is not really in the nature of an appeal and in any event there is no basis for it. I would also dismiss that appeal.
Ainslie-Wallace J
I agree with the orders proposed by her Honour Justice May and with her Honour’s reasons for reaching that conclusion. I have nothing further to add.
Johnston J
I also agree with her Honour Justice May’s reasons for judgment and have nothing further to add.
Costs
An application has been made by the Independent Children’s Lawyer, as he explains he is obliged to make, for an order for costs. He seeks one half of the costs in relation to the appeal, which taking into account GST is approximately $800.
The mother resists an order for costs because of her financial circumstances. She has explained to us that she is entirely dependent on a pension and of course, she has the children to support.
In ordinary circumstances I would not make an order for costs, however when one takes into account the provisions of s 117 of the Act, it can be seen that there are circumstances justifying an order for costs.
In my opinion this appeal was entirely without merit. It has put the Legal Aid office to some expense and my reasons reveal that there was nothing about the trial judge decision about which there could be any complaint. In relation to the second appeal, it was what one would have to describe as misconceived.
I would make an order that the mother pay one half of the costs of the Independent Children’s Lawyer fixed at $800.
Ainslie-Wallace J
I agree with the reasons of her Honour Justice May and with the orders that she proposes.
Johnston J
I also agree with the reasons for the decision about costs proposed by Justice May and the orders she proposes.
I certify that the preceding one hundred and forty nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Johnston JJ) delivered on 18 March 2011.
Associate:
Date: 24 March 2011
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