Chapa & Chapa
[2013] FamCAFC 52
•9 April 2013
FAMILY COURT OF AUSTRALIA
| CHAPA & CHAPA | [2013] FamCAFC 52 |
| FAMILY LAW – APPEAL – CHILDREN – APPEAL FROM FEDERAL MAGISTRATES COURT – Where the father appeals an interim decision the effect of which was that the parties’ two small children remain living with the mother in a different state pending trial – where the father contends the Federal Magistrate failed to apply the principles contained in s 67ZBB – whether the Federal Magistrate erred – consideration of s 67ZBB – where the Federal Magistrate did not err. |
| Family Law Act 1975 (Cth) |
| C & C (1996) FLC 92-651 Goode & Goode (2006) FLC 93-286 Deiter & Deiter [2011] FamCAFC 82 |
| APPELLANT: | Mr Chapa |
| RESPONDENT: | Ms Chapa |
| FILE NUMBER: | PAC | 4726 | of | 2012 |
| APPEAL NUMBER: | EA | 5 | of | 2013 |
| DATE DELIVERED: | 9 April 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Murphy and Loughnan JJ |
| HEARING DATE: | 20 March 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 December 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1420 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Obradovic |
| SOLICITOR FOR THE APPELLANT: | Sheathers Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Snelling |
| SOLICITOR FOR THE RESPONDENT: | RJ Cole & Partners |
Orders
The appeal be dismissed.
The appellant father pay to the respondent mother her costs of and incidental to this appeal in an amount to be agreed or, failing agreement, to be assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chapa & Chapa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA5 of 2013
File Number: PAC4726 of 2012
| Mr Chapa |
Appellant
And
| Ms Chapa |
Respondent
REASONS FOR JUDGMENT
On 13 October 2012, the mother of X (born in 2006) and Y (born in 2009) relocated with the children from Sydney to Adelaide. She did so with neither notice to, nor the agreement of, the children’s father. That move precipitated interim proceedings heard by Halligan FM which concluded on 18 December 2012.
The father’s application would have seen the children return to live in Sydney pending trial. In that event he proposed that the children live with him, save on Tuesdays and Thursdays between 4.00pm and 8.00pm and on Saturdays from 11.00am to 4.00pm when, he proposed, the children would be with their mother. The father proposed no order for any time in the event that the children remained living with the mother in Adelaide. It was not part of the father’s case that he could or would move to Adelaide pending the trial.
The mother sought orders the effect of which was the children would remain living with her in Adelaide pending trial. She proposed that the father have supervised time in that city, although, as the Federal Magistrate found, she proposed no practical means whereby supervision could be effected. The mother indicated that, if orders were made for the children to live in Sydney, she would return to that city. The mother did not, however, make any proposals for time between the father and the children in the event that the children were ordered to return to Sydney.
The proceedings before his Honour were marked by allegations of “family violence” and the risk of abuse to the children. Significantly in that respect, the 2012 amendments to the Act applied to the proceedings before his Honour.
On 18 December 2012, for reasons delivered ex tempore that day, Halligan FM made interim orders that the children remain living with their mother in Adelaide with the father spending time with them each alternate weekend in that city during school terms and for two weeks during the Christmas school holidays and for one week during other school holidays.
The father appeals those orders.
Grounds of Appeal
An Amended Notice of Appeal filed 27 February 2013 replaced the existing 16 grounds of appeal with five new grounds. Those grounds are as follows (using the original numbering):
17.The Federal Magistrate was in error in that he failed to consider s 67ZBB of the Act.
18.The Federal Magistrate was in error in that he failed to consider the evidence of the mother and the Children and Young People’s Advocate as to the current circumstances of the children.
19.The Federal Magistrate was in error in that he placed weight upon facts that are in issue, which he found he could not resolve.
20.The Federal Magistrate was in error in that he failed to give any or sufficient weight to the evidence of the father and his witnesses as to the behaviour and conduct of the mother.
21.The Federal Magistrate was in error in finding that in Adelaide the maternal grandmother would provide support to the mother and that the mother has “family supports”.
The Orders in Context
The challenge to his Honour’s orders needs to be seen against a number of crucial contextual matters.
The Nature of Interim Proceedings
This Court has long recognised that, however unpalatable it might be for all concerned – including, crucially, the Court – the volume of cases in which early court intervention is necessary, requires proceedings for interim relief to be of a truncated nature. This Court said in C v C (1996) FLC 92-651 at 82,674 – 82,676:
it is obvious that if the Court could not and did not place limits on the time taken in interlocutory proceedings and the mode by which they are conducted, its workload would mean that many other litigants would suffer serious injustice be reason of increased delays. Further, there must also be concern for litigants themselves in these circumstances, where lengthy hearings of interlocutory matters are both expensive and emotionally draining and do not lead to a final determination of the issues between them ...
This Court has finite resources and a limited number of judicial officers coupled with an ever-increasing workload. If it was required to embark upon lengthy examinations of interlocutory issues such as interim custody, important though they may be to the parties, this would inevitably lead to an inability to provide hearings of final determinations of issues of custody and property within a reasonable time. In addition, other persons requiring a determination of these and similar issues would be impossibly inconvenienced …
In D and Y (1995) FLC 92-581, the Full Court said and we reiterate, there is, on occasion, too much of a tendency in this jurisdiction to expect that every issue should be the subject of extensive and often unnecessary cross-examination. This is very much the case in interlocutory matters and particularly in interim custody proceedings.
Subsequent to the significant amendments to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in 2006, this Court reaffirmed the principles just outlined in Goode & Goode (2006) FLC 93-286. The Full Court there also approved at least some of the principles emanating from the pre-amendment decision in Cowling & Cowling (1998) FLC 92-801:
68.In our view, some of the comments of the Full Court in paragraph 18 [of Cowling] are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
The 2012 amendments to Part VII introduce a number of important changes to the Act pertaining to family violence and abuse of children. Included among the changes is the inclusion of a number of mandatory obligations imposed upon the Court. An asserted failure to consider one of the provisions – s 67ZBB – founds ground 1 of this appeal. The effect of that section, and its impact upon those earlier principles, is discussed later in these reasons.
Compliance with the section is mandatory (albeit that the failure to do so “does not affect the validity of any order made in the proceedings for the order” – s 67ZBB(6)). However, the mandatory requirements of that section (and other sections introduced into the Act in 2012) do not alter the proper context of interim proceedings or the principles otherwise applicable to those interim proceedings earlier discussed.
A Highly Conflicted Relationship
The second crucial contextual factor relevant to his Honour’s orders and Reasons and the grounds of this appeal is identified by his Honour in the second paragraph of the Reasons:
2.Most of the pertinent facts in this matter are in dispute. As is usual in an interim matter there has been no cross-examination of any witness. As is less usual in a matter of this kind, there has been a large number of affidavits not only by each of the parties themselves but also by supporting witnesses that has resulted in a significant protraction of this interim hearing without adding any real benefit or casting any greater light than might have come from one comprehensive and coherent affidavit from each party.
His Honour there recognises that the interim proceedings before him were “… an abridged process where the scope of the enquiry is [necessarily] significantly curtailed.” Moreover his Honour explicitly recognised that the search for “less contentious matters” was made significantly more difficult by the nature and extent of the conflict between the parties and the extent of the affidavit material in which those allegations and counter-allegations were traversed.
Alternatives?
A number of submissions were made by counsel for the father prefaced by the admonition that the Federal Magistrate “could have” or “should have” done things which he did not do. For example, it was submitted that his Honour “could have” ordered a family report, but did not and that his Honour “could have” issued subpoenae to, for example, the Department of Human Services but did not. Similarly, it was said that his Honour did not permit cross-examination in a case where there were significant issues of conflict.
Two important points need to be made. First, not one of the actions which it is now suggested “could have” or “should have” been taken by the Federal Magistrate was the subject of any submission to that effect before his Honour. As is well known, it is, generally speaking, not open to an appellant to raise matters not raised below on appeal (see, for example, Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 at 71 and Prantage & Prantage [2012] FamCAFC 84 at [88]). That difficulty might be thought to be a fortiori true when proceedings were interlocutory and the orders appealed from are interim orders.
Secondly, in this case the assertion sits particularly ill; the assertions as to things which “should have” or “could have” been done are, of their nature, likely to have delayed determination of the interim proceedings. Yet, those suggestions purport to sit (now) with a complaint made by the father that there was insufficient expedition of the proceedings.
The Time Frame of the Proceedings
The father’s application for interim relief was filed on 23 October 2012. As the precise whereabouts of the mother were unknown at that time, the application included an application for orders for substituted service. Within eight weeks his Honour had:
§ Made orders effecting service of the mother; for her to file material and for her to appear (including by telephone);
§ Appointed an Independent Children’s Lawyer to independently inquire into the circumstances of the children;
§ Did so despite no notice pursuant to either s 67Z(2) or s 67ZBA(2) having been filed (allegations of family violence were contained in the affidavit material);
§ Facilitated the matter being dealt with on six separate occasions;
§ Delivered comprehensive ex tempore reasons immediately after hearing submissions on behalf of the parties;
§ Delivered those reasons and made orders within 12 days of a Notice of Child Abuse, Family Violence or Risk of Family Violence having been filed by the father.
The s 67ZBB Requirements – Ground 17
As has been seen, the father contends that his Honour failed to consider s 67ZBB. That section provides:
67ZBB(1) This section applies if:
(a)a notice is filed under subsection 67Z(2) or 67ZBA(2) in proceedings for an order under this Part in relation to a child; and
(b)the notice alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:
(i)there has been abuse of the child by one of the parties to the proceedings; or
(ii)there would be a risk of abuse of the child if there were to be a delay in the proceedings; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings.
67ZBB(2) The court must:
(a)consider what interim or procedural orders (if any) should be made:
(i)to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii)to protect the child or any of the parties to the proceedings; and
(b)make such orders of that kind as the court considers appropriate; and
(c)deal with the issues raised by the allegation as expeditiously as possible.
67ZBB(3) The court must take the action required by paragraphs (2)(a) and (b):
(a) as soon as practicable after the notice is filed; and
(b)if it is appropriate having regard to the circumstances of the case—within 8 weeks after the notice is filed.
67ZBB(4) Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain documents or information from State and Territory agencies in relation to the allegation.
67ZBB(5) Without limiting subparagraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.
67ZBB(6) A failure to comply with a provision of this section does not affect the validity of any order made in the proceedings for the order.
Reference is made in the written submissions on behalf of the father to the decision of this Court in Deiter & Deiter [2011] FamCAFC 82 at [51] to [55]. That case dealt with s 60K, a section which, for the purposes of this discussion, can be seen as a precursor to s 67ZBB. There, this Court said, relevantly:
54.Section 60K signals a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In our view, regardless of whether s 60K has been activated, it is unsatisfactory for a judicial officer to recognise the difficulty in determining the accuracy of disputed allegations of violence, without also giving consideration to dealing with those allegations as a discrete issue or expediting the final hearing.
55.We appreciate his Honour may have felt constrained in making directions about expedition in another court. Although we note he did order that the matter be listed in Sydney at the “first available opportunity”, we take that to be a listing of the balance of the interim application, which he had decided not to determine. No consideration appears to have been given to conducting a discrete hearing to deal with the allegations of violence before determining the application for the return of the children or the secondary issue concerning the venue of the final hearing.
It is contended in the father’s Summary of Argument that:
30.Although the Federal Magistrate made some reference to provisions in the Act … he said nothing about s 67ZBB of the Act. It is submitted that this was a significant error of principle.
31.Further, the path that the Federal Magistrate followed thereafter was so contrary with the directive of s 67ZBB of the Act (esp. ss (2)) that there could be no implication that he did other than ignore it. It is submitted that to leave a child in the care of a parent who was potentially {the abuser or whatever] without any step to further the enquiry for a period he identified as possibly two years was clearly contrary to principle.
The Supplementary Summary of Argument contends in this respect:
15. In light of the applications before the Court and the mother’s concession that she would return to Sydney, it is clear that his Honour failed to have regard to and follow the directive of s 67ZBB and what the Full Court held in Deiter & Deiter.
(Footnotes omitted).
Before discussing the provisions of s 67ZBB and Deiter in more detail, a number of observations should be made about the submissions just outlined.
First, his Honour treated what is termed “the mother’s concession” entirely in accordance with what was said of that topic by Gaudron J in U v U (2002) 211 CLR 238 at [30]-[32] and [37]. The mother “conceded” she would live in Sydney only in the event that the Court decided that this is where the children should live; it was no part of her proposal that this is what should occur or that the difficult questions to be answered by the Federal Magistrate should be based on that premise.
Secondly, it is not necessary for a court to specifically make reference, in terms, to the provisions of s 67ZBB (or, indeed, any other section of the Act) so as to establish that its provisions have been considered and, where relevant, applied. What is necessary is a clear indication from the reasons and the manner in which the case was conducted that the court is plainly aware of the relevant provisions and has applied them (see, for example, the reasoning in Tayles v Davis [2009] VSCA 304 at [25]-[26] per Neave JA and R v Bates; R v Baker [2002] QCA 174 at [71]).
We consider each to be manifest in this case. The proceedings were conducted, with respect, with commendable expedition; his Honour was alive to the serious allegations and issues in the case and considered them carefully and considered carefully whether he could make any findings in respect of same within the confines of interim proceedings. Indeed, having done so, his Honour did in fact make a finding about a contentious issue and it was a finding that can be seen to be plainly adverse to the mother and, as it were, favourable to the father.
Thirdly, the ultimate submission to which reference to Deiter and the section is directed at [31] of the submissions quoted above, assumes as a premise that there should have been a finding that the mother was “an abuser or whatever” when, in fact, his Honour, properly, concluded that no such finding could be made on the evidence before him.
Just as with s 90K (the comparable section to s 67ZBB referred to in Deiter), s 67ZBB plainly evidences “a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously.”
While, of course, the requirements of the section must be met, it is important to observe that the legislature has (it must be presumed intentionally) used a number of expressions within the section which qualify the mandatory requirements upon the Court. A consideration of interim or procedural orders includes a consideration of making no orders (see the use of the expression “if any” in s 67ZBB(2)(a)). Similarly, the requirement of expedition is bounded by what is possible, not what is ideal (see the use of the expressions “expeditiously as possible” (s 67ZBB(2)(a)(i) and (c)) and “as soon as practicable” (s 67ZBB(3)(a))). So, too, other expressions qualify the consideration of the types of interim or procedural orders contemplated by the section: “make such orders of that kind as the court considers appropriate” (s 67ZBB(2)(b)) and the section’s specified period of expedition of eight weeks “if it is appropriate” (s 67ZBB(3)(b)).
These qualifications are important because the section plainly contemplates, in effect, the reality of what confronts courts with jurisdiction under the Act in dealing with cases of this type. The daily work of the courts is significantly top heavy with cases involving allegations of family violence and abuse. All are dealt with as expeditiously as possible (and, it should be said, always have been). But demand for judicial resources in dealing with those issues is immense and significantly outstrips supply. Some delay is inevitable (as, indeed, the section contemplates).
Moreover, the courts are in the invidious position of attempting to allocate scarce resources between many, many parenting cases involving allegations of abuse or family violence. All are urgent and very important. But the courts must necessarily attribute some as more urgent and important than others. The section plainly appears to recognise this fact too, not only by introducing the qualifications earlier referred to, but also by plainly recognising that each case is different and different actions or remedies may be appropriate as a result. (See, s 67ZBB(2) and the reference to “whether” orders of the specific types referred to in s 67ZBB(3) are appropriate).
Further, and more specifically, neither s 67ZBB nor the decision of this Court in Deiter requires a court to conduct a discrete hearing with respect to the issue of family violence or abuse in every case in which such an allegation is raised. To suggest that this is, or should be the case, is to fail to recognise that what this Court said in C & C is more true now than it was then.
A discrete hearing, or an expedited hearing, or, perhaps, other procedural orders, may, in an appropriate case, be a means by which the Court attempts to meet the requirements of s 67ZBB in the particular circumstances of a case. However, in our view, it cannot be said that the section provides for any such thing in every case nor, more pertinently to this case, that failure to consider either or both is, ipso facto, an error warranting the intervention of this Court.
Here, the father points to no part of s 67ZBB to which the Federal Magistrate was referred during the course of the interim proceedings which it is said his Honour did not consider. Indeed, while the submissions make broad assertions as to an alleged failure to “follow the directive of s 67ZBB and what the Full Court held in Deiter” and that “the path” that his Honour followed was “clearly contrary to principle”, nothing to which we have been taken sustains those criticisms.
In our view, his Honour’s reasons and approach indicate that he was plainly alive to the requirements of the 2012 amendments and was specifically aware of the need for expedition. The latter is manifestly evident from the (proper) expedition of the proceedings by his Honour culminating in thoughtful and comprehensive reasons delivered ex tempore at the conclusion of that expedited process.
As has been seen, the section specifically requires a consideration of s 69ZW and s 68B of the Act (s 67ZBB(4) and (5)). We reiterate that it is not necessary for a court to refer in terms to any such provisions provided that the court’s reasons and approach plainly evidence compliance with the mandatory requirements. In addition, those requirements must be seen in light of what is relevant to the particular circumstances of a case. For example, the facts of some cases will plainly reveal the need to consider deeply the granting of a s 68B injunction while, in other cases, the facts will indicate that any such consideration need only be fleeting. In that regard, the orders sought and the submissions made by the parties at first instance will play an important role in the nature and extent of the consideration necessary to be given to the specific matters referred to in the section.
We have been taken to nothing in the evidence before his Honour which could properly suggest that the circumstances of the case required specifically any order pursuant to s 68B. No such submissions were made at first instance and no such submissions were made to us on this appeal. In our view it is not incumbent upon a court of first instance – much less in ex tempore reasons delivered in interim proceedings – to perform a “paint by numbers” exercise where matters which the Act requires must be considered are “ticked off” when the circumstances of the particular case plainly do not indicate the application of the particular matter to the facts of the case. That is all the more so where, as here, no such submission is made to the court of first instance.
Similar considerations apply to the specific reference in s 67ZBB to the provisions of s 69ZW of the Act. Again, we have been taken to nothing in the evidence before his Honour which could properly suggest that the circumstances of the case required specifically any order pursuant to s 69ZW. Again, no such submissions were made at first instance and no such submissions were made to us on this appeal.
As we have said, his Honour was plainly alive to the need to conduct a process and deliver a judgment with real expedition. No submission was made to his Honour, nor have we been taken to any part of the appeal record where it was suggested to his Honour, that the provisions of that section could have availed the parties – and more particularly the children – of any specific assistance in relation to the issues confronting the court. Further, and by no means insignificantly, the invoking of the process contemplated by s 69ZW or, indeed, as is suggested on appeal for the first time, the obtaining of a Family Report, would have, undoubtedly, involved delay. That delay is antithetical both to the needs of the children in this case and the underlying purpose or purposes of the 2012 amendments to the Act. The irony of this line of argument is palpable when viewed against his Honour’s unheeded complaint about the unnecessarily voluminous evidentiary material with which he was required to deal.
We find no merit in this ground.
The Remaining Grounds
The Remaining Grounds in Context
The matters to which we have earlier referred including, particularly, the fact that these were proceedings for interim orders, provide a crucially important context for the remaining challenges to his Honour’s orders which can conveniently be dealt with together. The point is again made that there was no application made to his Honour that evidence ought to have been tested by cross-examination (albeit that, given the matters earlier referred to, any such application might well have been rejected).
Appeals from parenting orders are appeals from exquisitely discretionary decisions. That is all the more so when the appeal is from interim parenting orders. Although a path well trodden, it is nevertheless important to (again) reiterate the important principles relevant to the exercise of this Court’s function in such an appeal. The words of Kirby J in CDJ v VAJ (1998) 197 CLR 172 at [186] bear repeating (again) in respect of the issues in this appeal:
A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal …
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of … the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions … that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
…
10. A final consideration is pertinent, both to the approach that is proper to the Full Court reviewing the primary judge and to this Court reviewing a decision of the Full Court involving the evaluation of competing considerations and the exercise of a judicial discretion. Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, whilst they must be adequate for the purposes of the exercise of any right to appeal cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision. This is true of the decision of the primary judge, expressing the combination of “main considerations” that led to his ultimate conclusion that the children should reside with one parent rather than another … Inescapably, at both levels of the judicial process, intuition plays a part in the ultimate decision. It will sometimes be hard to explain. An appellate court will recognise the fact that it is dealing with the orders and reasons of a specialist judge …
(Footnotes omitted).
In a similar vein, it has elsewhere been said, for similar reasons, that, “an appellate court has to resist the temptation to subject the judgment to a narrow textual analysis …” (Re F(Children) [2012] EWCA Civ 828 at [39] per Justice Black).
With one possible exception relating to a finding as to the comparative attachment of the children to their parents, which will be discussed below, the challenges made within these grounds amount effectively to an assertion that the Federal Magistrate ought to have attached greater weight to some aspects of the evidence and attached too little weight to other aspects. In our respectful view, in comprehensive ex tempore reasons, his Honour skilfully avoided making findings which he was unable to make by reason of the nature of the proceedings before him and the highly conflicted evidence with which he was confronted.
His Honour’s Reasons are not only redolent generally of that being so, but also contain specific findings – adverse to both parties – explaining why that is so. For example:
29.To say that I am troubled by the glaring inconsistency between the seriousness of the allegations each parent makes against the other and their total failure to act to secure the safety of these children would be a gross understatement. It is possible that the parties are exaggerating. It is possible they are simply lying. It is possible that they did not appreciate the need to afford these children a place of safety and therefore failed them at the most fundamental level in meeting their responsibilities as a parent.
30.Which it might be, at this stage, I cannot determine, but it leaves both parties, in my view, in a very poor light and the allegations are probably as telling against the party making the allegation as they are against the parent subject to the allegation.
Moreover, as earlier referred to, in respect of one specific matter, his Honour did make a finding, but it was a finding adverse not to the father, but to the mother (see, Reasons at [43]).
Grounds 18, 20 and 21
Ground 18 uses the language of “failing to consider” but it is in our view plain that the challenge is to the weight attached to other evidence in preference to the evidence the subject of the ground. Ground 20 is, in terms, an attack on the weight attributed to specific evidence. Nothing to which we were taken on behalf of the father, nor broader reference to the Reasons, persuades us that the intervention of this Court is warranted on these grounds.
Ground 21 is expressed as an alleged error of fact. The assertion is, in effect, that his Honour erred by making a finding without there being an evidentiary basis for that finding. In truth, as the written outline of argument reveals, this ground, too, is an attack on the weight attributed to one part of the evidence and not to other parts. The finding sought to be attacked by this ground would appear to be that which is at [73] of the Reasons, relevantly:
If the Court were to order the mother to return to Sydney, the Court would be ordering the mother to come back to a situation that she says she has fled in fear, leaving behind her family supports, and leaving behind the other support mechanisms that she has begun to engage with through the domestic violence service that she engaged with upon arriving in Adelaide in October.
It is of some importance to note that his Honour also held (at [74] and [68] respectively):
As I say, the father’s own evidence is that the mother has difficulty making friends in Sydney. There is no other maternal family in Sydney. The father’s sister and the person described in the father’s case as [Y’s] godmother have previously, even on the mother’s admission, provided some limited support to the mother in the care of the children, but they are now clearly aligned with the father. They are witnesses in his case against the mother, and the mother has disputed extensive aspects of their evidence. To suggest that these people could remain supports for the mother is simply impractical.
So far as the distance the mother travelled to escape a violent relationship, as she would put it, I am satisfied that if the mother’s allegation is true, where she went was not inappropriate. The father’s own evidence is that the mother had difficulty establishing close friendships in Sydney. The mother’s family is all in Adelaide. Certainly, she has a dysfunctional and poor relationship with her sister and, it would seem, has great resistance to her children mixing with her sister’s children and those children are not infrequently at the maternal grandmother’s home, creating arguably some difficulty in relation to the mother accessing support within the grandmother’s home that she did immediately after the overdose in September 2009.
We consider that the finding was open to his Honour and particularly so in light of its place as but one of a number of matters considered by his Honour, as s 60CC required, in assessing the children’s best interests.
Accordingly, we consider there is no merit in grounds 18, 20 and 21.
Ground 19 and the Issue of “Primary Attachment”
The foundation for this ground as outlined in written submissions on behalf of the father is, in essence, that the Federal Magistrate specifically found that he could not make a finding as to family violence by one party toward the other but had, nevertheless, impliedly found the father was violent. Specific reference is made to his Honour referring to the mother’s move to Adelaide not being inappropriate if her claims of violence by the father are made out. In that context, it is submitted that the Federal Magistrate “made some observations about how the mother ‘fled in fear’”, referring to [73] of the Reasons. In fact, what his Honour there said was:
If the Court were to order the mother to return to Sydney, the Court would be ordering the mother to come back to a situation that she says she has fled in fear, leaving behind her family supports, and leaving behind the other support mechanisms that she has begun to engage with through the domestic violence service that she engaged with upon arriving in Adelaide in October.
(Emphasis added).
Contrary to the argument, his Honour evidences in that passage the approach which his Honour properly took, in the context of interim proceedings, to issues the subject of significantly controversial evidence.
Nothing to which we have been taken, nor any part of his Honour’s reasons persuades us that his Honour erred in the manner in which ground 19 alleges in respect of family violence.
Primary Attachment
The father’s Supplementary Summary of Argument – leave for the filing of which was given at the hearing of the appeal – sought to argue in addition to that referred to above that this ground is made out by reference to findings made about the relative attachments of the children with each of their parents. This issue derives its importance by reason of being identifiable as the central matter upon which, ultimately, his Honour was persuaded, amidst a plethora of conflicting allegations and evidence, that the children’s best interests lay in living with their mother in Adelaide pending the trial.
Reference is made in the Supplementary Summary of Argument to [45] of the Reasons where his Honour says:
The question is whether or not there is evidence that this is the mother’s current presentation or whether there is an unacceptable risk of it recurring such as to warrant the children living with the father, as he suggests, where, as I will come to in a moment, I am satisfied that these children have habitually been in the mother’s primary care, that the father’s involvement in the care of the children has been very much peripheral and I am satisfied, especially bearing in mind the young age of these children, that they would have a much stronger attachment with their mother and would feel far more acutely a separation from their mother than their father.
It is contended that this matter “was clearly in dispute between the parties”, a fact noted at [22] of the Reasons by the Federal Magistrate. Reference is also made to [60] and [71] of the Reasons where his Honour held:
60.Based upon the chronology, even on the father’s evidence, I am satisfied that of the two parents, the mother has preponderantly met these children’s needs on a day to day basis and I infer that it is far more likely than not that these children are more closely bonded and attached to the mother than they are to their father, and as I have already said, I am satisfied that the effect of separation from the mother would be far greater than separation from the father.
…
71.The next matter is the likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other relevant person. I have already found that I am satisfied that there would be a far more significant adverse impact upon these children from separation from the mother than from the father, which is what the father seeks.
In essence, it is contended on behalf of the father that the finding of, in effect, the children having a primary attachment with their mother was not open on the evidence – and particularly so given the highly conflicted nature of that evidence, including as to the nature and involvement of the father’s care of the children.
The findings in the first of the two passages from his Honour’s Reasons extracted above emanate from [58] and [59] of the Reasons, which contain the “chronology” referred to in that passage:
58.It has thus been a little over six years since [X’s] birth and during that period, on my reckoning, the total period of cohabitation of the parties according to the father has been about four years and nine months, but for 10 months of that, the father was there only half the time.
59.When the parties cohabited - and I make no criticism of the father for this - he was absent on his own admission working long hours in his business to provide materially for his family. The mother was not working outside the home. The total periods of separation of these parties to date has been 16 months since [X’s] birth according to the father. These children, as I say, are now six years and three years 10 months.
Counsel for the father contends that time with a parent does not necessarily equate to attachment to a parent. So much may be true and, as a result, the issue of the children’s respective attachments to their parents may well be a subject explored at the trial. But, that is a different proposition from contending that, in the evidentiary and procedural context in which the orders were made, the inference was not open to his Honour.
It is important to point out that his Honour did not find that the children were not attached or bonded to their father; rather in balancing competing care arrangements that involved the parents living geographically remote (as each, on the evidence before his Honour, desired) his Honour inferred that the bond and attachment to their mother was closer. We consider that inference was open to his Honour. Other inferences may have been open to his Honour emanating from that evidence, or the evidence as a whole, but that does not establish error. Given the findings made by his Honour about the living arrangements of the family over the years, which are not the subject of challenge, it is difficult to contemplate what other inferences could be as comfortably justified as the inference he drew here and we are, accordingly, satisfied that there is no merit in this ground.
Costs
It is submitted on behalf of the father that, in the event that the appeal was dismissed that there should be no order as to costs. It was contended that the father’s financial circumstances are such that the discretion inherent in s 117(2A) of the Act should not be exercised so as to override the rule provided for in s 117(1).
The father has been wholly unsuccessful in respect of an appeal from an interim decision where a trial awaits both parties. The consequence of a successful appeal would have been (effectively inevitably given the nature of the conflict inherent in the evidence and contentions as to what “could have” or “should have” been done by the Court of first instance) remittal to the Federal Magistrates Court for a further interim hearing.
In all of the circumstances of this case, we consider it appropriate that the father pay the mother’s costs of and incidental to the appeal to be agreed or, failing agreement to be assessed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Murphy and Loughnan JJ) delivered on 9 April 2013.
Associate:
Date: 9 April 2013
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