Chiles & Petrenko

[2024] FedCFamC1A 112

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Chiles & Petrenko [2024] FedCFamC1A 112

Appeal from:

Petrenko & Chiles [2024] FedCFamC2F 1444

Appeal number:

NAA 354 of 2023

File number:

SYC 7025 of 2018

Judgment of:

TREE J

Date of judgment:

12 July 2024

Catchwords:

FAMILY LAW – APPEAL – Parenting – Where the primary judge made orders providing that the child’s overnight time with the father was required to be supervised by the maternal grandparents and made orders permitting a change in the child’s name – Inadequacy of reasons – Where the primary judge gave no cogent reason for finding that the risk the father posed to the child was different at night – Assertion of evidentiary error – Where there was historical evidence from some years earlier of how the child was likely to react to a change of surname – Assertion of discretionary error – Where the primary judge did not need to repeat a relevant consideration when specifically considering a separate issue – Appeal allowed in part – Matter partially remitted for rehearing.

Cases cited:

Bant & Clayton (2015) 53 Fam LR 222; [2015] FamCAFC 222

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Monie v The Commonwealth (2005) 63 NSWLR; [2005] NSWCA 25

Number of paragraphs:

67

Date of hearing:

4 June 2024 

Place:

Cairns via video link

Counsel for the Appellant:

Mr Cox SC and Mr O’Brien

Solicitor for the Appellant:

Family Focus Legal

Counsel for the Respondent:

Dr Barnett SC

Solicitor for the Respondent:

Barkus Doolan Winning

ORDERS

NAA 354 of 2023
SYC 7025 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CHILES

Appellant

AND:

MS PETRENKO

Respondent

ORDER MADE BY:	TREE J
DATE OF ORDER:	12 JULY 2024

THE COURT ORDERS THAT:

1.Save that on 4 June 2023 the father was given leave to rely upon a Further Amended Notice of Appeal dated 20 May 2024, the Application in an Appeal filed 21 May 2024 is dismissed.

2.The appeal is allowed in part.

3.Orders 20, 23 and 24 of the Federal Circuit and Family Court of Australia (Division 2) made 27 November 2023 are set aside.

4.Otherwise, the Further Amended Notice of Appeal dated 20 May 2024 is dismissed.

5.The issue of what, if any, conditions other than Order 19 of the primary judge’s orders, should, until 27 November 2025, be imposed upon the appellant spending time with the child X Chiles Petrenko, born 2015 is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.  

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

INTRODUCTION

1. On 27 November 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) made final parenting orders in relation to the parties’ now nine-year-old son X (“the child”). Under those orders, Ms Petrenko (“the mother”) has sole parental responsibility for the child, who would primarily live with her, but spend time with Mr Chiles (“the father”). There is no appeal from those orders.

2. However, the child’s time with the father between 7:30pm and 9:00am (“overnight time”) was required to be supervised by the father’s parents (“the paternal grandparents”) and in the event that they did not proffer undertakings in terms specified in the primary judge’s orders, then the child’s time with the father would, on one construction of the orders, apart from special occasions, either wholly cease, or on another construction, not include overnight time, and hence be significantly reduced. The father appeals against those orders.

3. Finally, the primary judge permitted a change in the child’s name, but not in the way for which the father contended. The father also appeals against that order.

4. The mother resists the appeal in all respects.

5. For the reasons which follow, the appeal will be allowed in part, but otherwise dismissed.

   BACKGROUND

6. The father is 42 years of age. The mother is 49 years of age. The child was conceived in 2014 whilst the parties were in a casual sexual relationship. At no time have they lived together.

7. Although initially the mother did not inform the father of his paternity of the child, once she disclosed it, he began to spend time with him. However thereafter issues developed, although the history of the consequences of those issues is not relevant to the appeal. What is relevant is that it transpired that the father has an astonishing history of traffic related offences which caused the mother to be concerned of a risk of harm to the child if he was a passenger in a vehicle driven by the father.

8. Conflict also developed about the child’s surname.

9. The mother commenced those proceedings in 2018. Interim parenting orders were made by consent on 14 November 2018 under which the father spent time with the child on two occasions each week, being 3.5 hours on Tuesday and 9.5 hours on Saturday (Order 2). However such time was to be supervised by the paternal grandparents, who were required to sign an undertaking in relation to that supervision (Order 3) and the father was restrained from driving a motor vehicle in which the child was a passenger, and from consuming alcohol in the period 24 hours prior to the child going into his care, or whilst in his care (Order 5).

10. The paternal grandparents gave the relevant undertaking, and the father spent time with the child.

11. Further interim parenting orders were made by consent on 25 March 2019. Pursuant to them, until 5 May 2019, in the first week of each fortnight, the time the child was to spend with the father increased by an additional hour, but in the second week that time increased more substantially, so that the Saturday time was also enlarged so that it commenced at 3:00pm on the Friday. That time was all unsupervised.

12. After 5 May 2019, that regime continued, save that the father was permitted to drive a car in which the child was a passenger, so long as he held a New South Wales’s drivers licence (Order 12.1) but was prohibited from consuming alcohol 12 hours prior to the child coming into his care, or whilst in his care (Order 9). Again, no supervision of the child’s time with the father was imposed.

13. The post 5 May 2019 arrangements were the orders which prevailed at the time of trial, and indeed the 27 November 2023 orders; they had therefore been operating for about 4.5 years.

14. The trial commenced before the primary judge on 27 May 2021, with judgment being delivered in late 2023. Her Honour properly expressed regret for the difficulties which that delay caused.

    THE PRIMARY JUDGE’S REASONS

15. Relevant to this appeal, in her reasons the primary judge found that the father presented an unacceptable risk of physical harm to the child (at [548]) by virtue of his extensive breaking of road rules whilst driving (at [545]). That informed Order 19, which imposed a two-year restraint on the father driving a motor vehicle in which the child is a passenger, or from transporting the child on a bicycle, electric bicycle, motorcycle or motor scooter. The father does not seek to disturb that order in this appeal.

16. Orders were made permitting the child to spend time with the father for four occasions per fortnight (Order 6), together with block time during school holidays (Orders 11–14). During school terms, the first week of each fortnight, the time was between 3:00pm on Tuesday and 9:00am on Wednesday, and in week 2, that Tuesday overnight time was repeated, but additionally the child was to spend time with the father from 3:00pm Friday until 7:30pm on Sunday. However for two years, the time which the child spent with the father between 7:15pm and 9:00am was to be supervised by the paternal grandparents, who were required to give undertakings to the court in a particular terms (Order 20). In the event that the undertakings were not forthcoming, then Orders 6–14 and Orders 17 and 18(b) would not operate (Order 20). As I have indicated early, it is unclear whether those orders were wholly inoperative, or whether they only were operative except insofar as they afforded overnight time.

17. The basis for the orders requiring some of the father’s time with the child to be supervised for two years, and for the requirement of undertakings from the paternal grandparents, was as follows:

    245.Based on the above matters, I am satisfied that in the twenty years between 2001 and 2022:

    (a)The father committed [multiple] driving offences;

    (b)He received fines, personally, totalling over $18,000 in relation to those offences;

    (c)His licence was suspended and, or his driving privileges were withdrawn:

    (i)On no less than 10 occasions for demerit points or excess speed offences;

    (ii)On no less than two occasions for fine default where the suspension took effect before the default was remedied;

    (d)The father’s licence was suspended for no less than a total period of 60 months, that is, a period of about five years;

    (e)In his capacity as Director of [B Pty Limited], he failed to nominate the driver of a company vehicle in relation to eight traffic offences that carried demerit points. It is more likely than not that some of those offences were committed by him. It is possible that all were. As Director of [B Pty Limited], he authorised payment of traffic offence fines and fines for failing to nominate driver in excess of $30,000.

    …

    551.The mother seeks that the paternal grandparents be generally present from 6:30pm whenever [the child] is spending time with the father. The effect of the order she proposed, if strictly read, is that a paternal grandparent would be generally present whenever [the child] spends overnight time with the father commencing at 6:30pm on the day [the child] enters the father’s care and continuing until [the child] returned to the mother’s care.

    552.The mother also proposed that if a paternal grandparent is not, or cannot be generally present, that time occur for daytime periods only, namely each alternate weekend on Saturday and Sunday concluding at 7:30pm.

    553.Having regard to these matters, I infer that to the extent that the mother contends [the child] would be at risk in the father’s care, the risk is most acute overnight such that it requires supervision and that, during daytime periods, it can be mitigated by the other protective orders she seeks.

    …

    555.Noting that I consider it is in [the child’s] best interests that the father be restrained from operating a vehicle in which [the child] is a passenger, I observe that such orders are only as good as the father’s compliance with them and the mother’s ability to monitor that compliance. The evidence satisfies me that the father has, at times, failed to comply with court orders when it did not suit his purpose, such as on 2 November 2018, and on the day of the Royal Easter Show. The [...] records satisfy me that he has, on occasion, failed to comply with orders that he not consume alcohol within 12 hours of [the chid] entering his care.

    …

    557.These matters cause me to consider that there is some need for oversight of the father’s compliance with any restraint imposed on him to secure [the child’s] safety, welfare and wellbeing whilst in the father’s care.

    558.The only way to monitor the father’s compliance with that restraint on an overnight basis, is to have a third party monitor that compliance. The mother reposes some trust and confidence in the paternal grandparents to undertake that task. The father is clearly close to each of his parents and spends regular time with them including when he has care of [the child] and, or [his half sibling]. There is no evidence to suggest that one or both of them are unable to be present when [the child] spends overnight time with the father. No submission was made that they would be unable or unwilling to assist in the way the mother proposes.

    559.I am satisfied, therefore, that it is in [the child’s] best interests that for a period of two years, either or both of the paternal grandparents be generally present when [the child] spends overnight time with his father. Where the mother’s proposal, in the event that they are not present, is that [the child’s] time with the father conclude at 7:30pm, I consider that they should be generally present from 7:30pm until 9:00am the following morning.

    …

    561.Undertakings serve a number of purposes. They provide a mechanism by which the Court can have confidence that a person who is not bound by a formal court order will act in a particular way; and where they relate to supervision of a parent’s time with a child, they provide a useful means of ensuring that the scope of a person’s supervisory responsibility is clearly set out, understood and agreed to.

    …

    569.Having regard to these matters, then, I am satisfied that it is in [the child’s] best interests that each of the paternal grandparents provide written undertakings about the things they will do when they are generally present during [the child’s] overnight time with the father. I am satisfied that those matters should relate to:

    (a)Being generally present from 7:30pm until 9:00am the following morning;

    (b)Ensuring the father does not drive with [the child] in the car;

    (c)Undertake any necessary transport of [the child] themselves in the event that a taxi or Uber (or equivalent) is not used.

    (Emphasis added)

18. In respect of the change to the child’s name, the father sought that the surname be changed so that it was a hyphenated combination of his and the mother’s surnames, which the mother opposed. Ultimately the primary judge ordered that the child’s name be changed by including the father’s surname as the child’s last middle name. The primary judge canvassed the relevant evidence and issues at [583]–[605], concluding in that latter paragraph saying:

    605.[The child] has used the last name [Petrenko] since birth. If [the child’s] last name is changed, it is possible that at times he will forget to write [Chiles] or say [Chiles] when he is required to give his first and last names. Having regard to the extent to which [the child’s] surname has vexed the father, I consider it is more likely than not that the father will monitor [the child’s] use of his new last name including on any official documents required for [the child] and possibly through questioning [the child] directly on the matter. This, I consider, will only fuel the conflict between the parents. I do not consider that to be in [the child’s] best interests. Where the evidence satisfies me that [the child] will derive significant benefit from having [Chiles] as a middle name, I consider it is in his best interests that his full name be [X Chiles Petrenko].

    THE FATHER’S APPLICATION IN AN APPEAL

19. By Application in an Appeal filed 21 May 2024, the father firstly sought leave to rely upon a Further Amended Notice of Appeal, and secondly sought to read into evidence on the appeal two affidavits from the paternal grandparents. The mother consented to the former but opposed the latter. Leave was granted for the father to rely upon his Further Amended Notice of Appeal, but the decision in relation to the affidavits of the paternal grandparents was reserved.

20. During argument, senior counsel for the father advised that, insofar as the affidavits were sought to be read in the appeal, it was only in support of Ground 2. Otherwise they were relied upon in any re-exercise of the primary judge’s discretion, in the event that the appeal succeeded.

21. However senior counsel also accepted that if Ground 1 succeeded, Ground 2 was otiose, as the orders it was directed to would necessarily fall away consequent upon Ground 1 being upheld. That position was accepted by senior counsel for the mother.

22. As shall be seen, Ground 1 succeeds, in consequence of which it is unnecessary to deal with Ground 2. As the matter will be remitted for a partial rehearing, no occasion for re-exercise arises.

23. It follows that save for the leave to rely upon the Further Amended Notice of Appeal, the Application in an Appeal filed 21 May 2014 ought be dismissed. 

    THE APPEAL

24. At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:

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

    Ground 1

25. This ground provides:

    1.The primary judge made a material error in finding that the child’s time with the father was required to be supervised between the hours of 7:30 am and 9:00 pm for a period of two years, by:

    a.Failing to identify a proper risk factor from which the child needed to be protected between the hours of 7:30 pm to 9:00 am for a period of two years; or

    b.        Making that finding without evidence; or alternatively

    c.        Making that finding by drawing incorrect inferences from the evidence.

26. The father contends that the apparent rationale for requiring supervision of his overnight time with the child is to provide a greater opportunity for detection of any non-compliance with Order 19 than applies during daylight hours. However, he says that there is no finding, and in any event no sufficient evidentiary base for any finding, that he poses any greater risk of breaching Order 19 at night rather than during the day. Further he says that there is no logical reason why he would be more likely to breach Order 19 by driving a car in which the child was a passenger in the 13.5 hours between 7:30pm and 9:00am, than in the 10.5 hours between 9:00am and 7:30pm.

1. Moreover, an analysis of the evidence of the times when the father has been detected breaching traffic rules, whether by driving with unlawful levels of alcohol in his body or otherwise, does not suggest that his offending is restricted to the hours between 7:30pm and 9:00am.

2. Whilst there is Full Court authority which supports supervision being raised as a means of ensuring compliance with orders, such as where a parent poses a flight risk (Bant & Clayton (2015) 53 Fam LR 222) nonetheless there would need to be a cogent reason for finding that the risk was different at night rather than the day, so as to impose supervision at that time.

3. But that was explicitly not the finding of the primary judge at [548] where her Honour said:

   548.I am satisfied in all of the circumstances that the risk to [the child] of being a passenger in a vehicle being driven by the father is unacceptable and that it is in [the child’s] best interests that his father be restrained from driving any vehicle in which [the child] is a passenger and from using a bicycle, e-bike, motorbike or motor scooter to transport [the child].

4. Given her Honour’s conclusion at [555] as to the father’s seeming indifference to compliance with court orders, and hence potentially Order 19, logically therefore, supervision would, prima facie, have been required for all the time that the child was in the father’s care for the two-year period, something which was plainly not feasible for the paternal grandparents to undertake. To the extent that [553] might provide some illumination, it is nothing more than a recital of the inference which her Honour drew from the mother’s case. Even if the primary judge’s subsequent imposition of supervision of overnight time demonstrates an implicit acceptance of the mother’s contention, there is no explanation for why the risk of breach of Order 19 was greater between 7:30pm and 9:00am then outside of that time period.

5. The imposition of supervision for some, but not all, of the time which the child spends with the father is simply unexplained. Absent cogent explanation, it is plainly unreasonable, or at the very least, there is an insufficient exposure of any reasoning for partial supervision.

6. Orthodox risk assessment and management in parenting proceedings has been the subject of explanation in several full court authorities, most notably in Isles & Nelissen (2022) FLC 94-092). It bears repeating that the usual course in undertaking the assessment is to identify the contended risk event, gauge the likelihood of it occurring, and then consider the magnitude of harm which might ensue if the risk event does occur. One then considers whether in the light of those matters the risk of harm is acceptable or not.

7. The purpose of ameliorative conditions is to mitigate a risk of harm from unacceptable to acceptable, such that when the risk analysis is repeated with the ameliorative condition in place, the relevant risk is assessed as acceptable.

8. Absent that process being undertaken here, one is left simply guessing as to why the prospect of the father breaching Order 19 by driving with the child was acceptable between 9:00am and 7:30pm, but otherwise unacceptable without supervision by the paternal grandparents.

9. Ground 1 is made out.

   Ground 2

10. This ground provides:

    2.The primary judge erred in making orders for the paternal grandparents to provide undertakings and supervise the time between the child and the father between the hours of 7:30 pm and 9:00 pm for two years:

    a.        Without evidence supporting such an order; or alternatively; and

    b.By drawing an improper inference from the evidence in support of that order.

11. Given that Ground 1 succeeds, it is unnecessary to consider this ground, as necessarily the orders requiring undertakings of the paternal grandparents must fall away.

    Ground 3

12. This ground provides:

    3.The primary judge erred in making an order that the child’s name was to include the father’s surname as a middle name, by:

    a.Making an incorrect finding that there was no evidence about the reaction that the child would have if his surname was changed to include the father’s surname at J [601];

    b.By failing to properly consider the benefit that the child would receive of having a similar surname to his half-brother; and

    c.By failing to consider relevant material in the exercise of her discretion including those matters at J [471], [510], [406], [407], [432] and [454] which were relevant to determining whether a change in his surname was in his best interests under s60CC of the Family Law Act 1975 (Cth).

13. As argued, sub-ground (a) contended a conflict between [596] and [601] of the reasons. Those paragraphs provide:

    596.I am comfortably satisfied that [the child] identifies with his [Chiles] family members. Notwithstanding that [Chiles] did not feature in his name at the time he saw [Ms C], as I observed in my judgment on the father’s interim application, at a young age:

    (a)[The child] stated confidently to [Ms C], psychologist that his last name was [“Petrenko-Chiles”]; and

    (b)He said to his mother “Mummy, you’re [a Chiles].  I’m [a Chiles].  [Y is a Chiles].  “[Chiles] have fun”.

    …

    601.To the extent that incorporating the name [“Chiles”] into [the child’s] surname will prove problematic or challenging for [the child], there is no evidence that allows me to make any finding as to how [the child] will experience a change to his surname. [The child] may be delighted to have a hyphenated surname. He may struggle with having a new surname. He may not care about the matter at all. The evidence, however, permits no finding on the matter.

    (Emphasis added)

14. The father contends that in fact there was evidence as to the child’s likely reaction to a change in surname.

15. Strictly speaking, it appears that the primary judge’s earlier reasons were not part of the material formally before her at trial. However, whilst Ms C’s evidence was objected to at trial (and in light of that objection, not sought to be led) nonetheless Ms D, the family report writer, had regard to Ms C’s report (Family Report 1 May 2020 paragraph 65) which informed her recommendation of a change in surname.

16. Thus paragraph 80 of the Family Report provides as follows:

    80.This family report is informed by the report and conclusions made by [Ms C] about [the child’s] surname. Indications from this assessment are also that [the child] has a solid relationship with [the father] and this is likely to strengthen over time. The incorporation of the name [Chiles] into [the child’s] surname, either as a single surname or hyphenated, may benefit [the child] as a symbol of his connection to the paternal side of his family, particularly his connection to [his half sibling]. Names are representative of and reflective of one’s identity. As pre-school aged child, [the child] is at a stage of development where his sense of self is beginning to form; the adolescent stage of development being when [the child’s] identity will be much more fully shaped. It is suggested that [the child’s] surname name be hyphenated, maintaining the name [Petrenko] with the addition of [Chiles], reflecting the heritage of both of his parents. This is a common solution parental disagreement about the name. With a simply and consistent explanation from each parent about the change of surname, [the child] will be able to accept the change if it is not a source of parental conflict and if his parents present the change to [X] with confidence. The reality is that [the child] and [his half sibling’s] family backgrounds and the current context of their family lives is different, and therefore [the child’s] name being hyphenated would not necessarily be to [the child’s] detriment but reflective of their different life contexts.[The child] and [his half sibling] would be connected through the name [Chiles]. [The child] having a hyphenated surname will be understood by the half-brothers when they are old enough to understand this.

    (Emphasis added)

17. In cross-examination Ms D said:

    [SENIOR COUNSEL FOR THE MOTHER]: Right.  And just staying with that last paragraph I was asking you some questions about, you say this:

    With a simple and consistent explanation from each parent about the change of surname, [the child] will be able to accept the change if it is not a source of parental conflict. 

    [MS D]: Yes.

    [SENIOR COUNSEL FOR THE MOTHER]: Continuing:

    And if – and if his parents present the change to [the child] with confidence.

    [MS D]: Yes.

    [SENIOR COUNSEL FOR THE MOTHER]: Did you see anything that would lead you to conclude they could do that, and if so, can you tell me what it is that leads you to that conclusion?  

    [MS D]: Well, I would like to know how they presented him going to school, to his school.  That could be an example.

    [SENIOR COUNSEL FOR THE MOTHER]: Right.  Well, assuming there’s no evidence of that, do you know of anything else that would fortify your conclusion that they could present it in a simple and consistent way and with confidence?  

    [MS D]: I think this is – could be an example of parents who are able to consider their wellbeing of their child enough, and this is ..... to then be able to go, the decision is made, now we make the most of it.  We ensure that our child can progress from here.

    [SENIOR COUNSEL FOR THE MOTHER]: And so if you had a parent who doesn’t comply with orders though, that might lead you to have a concern that they wouldn’t present it in a – in a consistent way and in a child-focused way if they haven’t been able to comply with orders?  

    [MS D]: Well, I – we were also talking about what I do think is that the parents – I do think they both really care for their – their child and – and [the child]

    (Transcript 8 October 2021 p.65 line 39 to p.66 line 23)

18. Correctly Senior Counsel for the father noted that before the primary judge the challenge made of Ms D by the mother was that her name-change recommendation was not really her view, but had been adopted from Ms C.

19. The father also directed my attention to some text message exchanges from October 2017, in the course of which the father said:

    “… I’d like to sort out [the child’s] name out because he is by rights [a Chiles].”

    To which the mother replied:

    “He is also ‘by rights’ a [Petrenko]. We can add [Chiles] – either hyphenated or not, and I’m not fussed by what order … but I don’t agree to erasing [Petrenko].”

    (Mother’s affidavit filed 10 May 2021 annexure MP 35)

20. However the paragraph of the mother’s affidavit which annexed that exchange says:

    141.Immediately following the exchange of text messages deposed to in paragraph 141 above, [the father] requested that [the child’s] last name be changed to [Chiles] and said “Because he is by rights [a Chiles]”. At the time, [the child] was 2 years of age. I responded to [the father] by informing him that [the child] was also a [“Petrenko”]. A copy of the text message exchanges between [the father] and I are available for tender as [MP]35.

    142.At the time given, [the child] was only 2 years of age and [the father] and I at that point in time were able to communicate with each other in a sometimes reasonable manner in relation to parenting matters concerning [the child], I was considering a hyphenated name for [the child]. [The father] did not agree to hyphenate [the child]’s name at that time.

    143.Since the text message exchange referred to above, the relationship between [the father] and I and or ability to co-parenting has deteriorated significantly. As deposed to in my previous affidavit filed 24 May 2019, the deterioration in our relationship culminated into [the father] forcibly removing [the child] from my car in November 2018 and necessitated the commencement of these proceedings which were initially for a Recovery Orders so that [the child] could be returned to my care.

    …

    146.Following the conversation [the father] and I had about [the child’s] surname on 30 October 2017, [the father] became angry and blocked me into the driveway and subsequently followed me to my parent’s home.

    (Mother’s affidavit filed 10 May 2021)

21. Ordinarily, a judge is not required to traverse every piece of evidence germane to an issue in their reasons (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney J). However here the father contends that the lengthy delay in the publication of the primary judge’s reasons, engages the discussion of the New South Wales Court of Appeal in Monie v The Commonwealth (2005) 63 NSWLR 729 (“Monie”) at [43]–[44]:

    43.In a series of cases, stemming largely from a decision of the English Court of Appeal in Goose v Wilson Sandford & Co (1998) 142 SJLB 92, the Australian Courts have dealt with the consequences of a judge’s delay in giving judgment. In particular, there has been one decision of the Court of Criminal Appeal (Regina v Maxwell, unreported, 23 December 1998), one of this Court (Hadid v Redpath [2002] NSWCA 16), and one of the Full Court of the Federal Court (Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 209 ALR 568) which have developed the approach to be taken on appeal. That approach may be stated as follows:

    (1)Appellate courts usually give deference to findings of fact made by a trial judge on the basis that the judge has had the advantage, not open to the appellate court, of having seen and heard the witnesses give evidence and of observing their demeanour when they do so.

    (2)That advantage will ordinarily prove decisive on appeal unless it can be shown that the trial judge either failed to use that advantage or misused it. Statements made by the trial judge of a general assertive character — such as that the witness’s demeanour when giving the particular evidence cast doubt on the truth of that evidence — can usually be accepted as encompassing a sufficient consideration of the evidence.

    (3)Moreover, the appellate court is entitled in such cases to assume that the mere failure of the trial judge to refer to evidence relevant to a particular finding does not mean that such evidence has been overlooked or that some other form of error has occurred.

    (4)However, incontrovertible facts of the case or uncontested testimony may nevertheless demonstrate error in the findings of the trial judge notwithstanding that they are stated to be based on credibility findings.

    (5)But the trial judge’s advantage does weaken with time. Where there is a significant delay between seeing and hearing the witnesses and the delivery of judgment, the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made. If, for example, the judge is able to explain in the judgment given that contemporaneous notes had been made of the impressions formed of the evidence given by the relevant witnesses, confidence in the decision given would no doubt be maintained despite the delay.

    (6)If, after such delay, the trial judge has not given specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance in the appeal, and where there does not exist any indication in the transcript or the evidence which clearly explains the judge’s finding, the appellate court is obliged to give careful scrutiny and consideration to those findings. Where there has been significant delay, there can be no assumptions that statements of a general assertive character made by the judge are based on a sufficient consideration of the evidence, or that evidence relevant to a particular finding not considered in the judgment has not been overlooked by the judge in making that finding where that evidence, if accepted, could have supported a different finding.

    (7)The consequences of significant delay in delivering judgment are not limited to the judge’s failure to use the advantage given to a trial judge of having seen and heard the witnesses give evidence and of observing their demeanour when they do so. With the emphasis placed for some years now on the need for cases to be resolved expeditiously — not only for the benefit of the parties to that particular case but also for the benefit of the parties in other cases waiting to be heard — the judge who has delayed, for whatever reason, giving judgment in the particular case will inevitably be subjected to considerable pressure to complete and deliver the judgment.

    (8)That pressure will come in large part from the conscientious judge him or herself because of a recognition that the case needs to be resolved expeditiously. In many cases, the pressure will come from the Chief Judge who has administrative responsibility for the Division to which the judge is assigned, whether or not a complaint has been made concerning that case. In some cases, it will come from one or other or both of the parties to the case itself. In a few cases, it will come from the media, through either a party’s complaint or the public interest in the case itself. All of this pressure has an insidious effect on the judge, in that it may well lead to a subconscious effect on the judge’s decision-making process — not necessarily one of bias but rather on the speed with which, in the end, the decision has to be reached and on the degree of attention which the judge is able to give to the often difficult issues to be decided within that time. A decision which is rushed because of the pressure placed on the judge to apply him or herself to writing the judgment speedily after a significant delay may well cause the judge to overlook matters which should have been given more careful and unrushed consideration.

    (9)And, finally, the long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility that such an apprehension may be held by the losing party requires the judge to deal with that party’s arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning.

    The approach stated in pars (5) and (6) and in the last sentence of par (9) was made clear in the decisions of Regina v Maxwell in December 1998 and in Hadid v Redpath in November 2001. Although not reported, those decisions were well-known within the Supreme Court and the profession. It must be assumed that they were well-known to Dowd J when he finally delivered judgment in December 2003.

    44.It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given. Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial. Delay may assist an appellant in establishing such error because, as the approach identified by the Full Federal Court demonstrates, the inference will more readily be drawn that a trial judge’s failure to deal in a significantly delayed judgment with particular matters on which the appellant relied in contradiction of the findings made in that judgment resulted from those matters being overlooked by the judge — either because of the time which has passed or because of the pressure on the judge in the end to complete the judgment. In Boodhoo v Attorney General of Trinidad and Tobago [2004] UKPC 17; [2004] 1 WLR 1689 at [11], the Privy Council acknowledged that the delay in giving the decision may adversely affect its quality to such an extent that it cannot be allowed to stand. That is what must be shown in order to demonstrate error resulting from delay which warrants either a reversal or a new trial. That is what I understand the judgment in Expectation Pty Ltd v PRD Realty Pty Ltd at [69] et seq to be saying.

    (Emphasis added)

1. Even factoring in those observations, and giving careful scrutiny and consideration to the primary judge’s findings, the father’s challenge under this aspect of the ground nonetheless is flawed. There was indeed, as at November 2023, no current evidence of how the child was then likely to react to a change of surname, although there was historical evidence from some years earlier which may have afforded the father some optimism. However patently that historic evidence could not simply be assumed to carry forward, especially as the child had started school since that time.

2. This is plainly what the primary judge was adverting to when she said that the child’s relevant utterance recited at [596] was “at a young age,” whereas [601] is addressing the future. In relation to [596], the year in question was 2019 when the child turned four; the family report was May 2020 when the child was five, and Ms D’s cross-examination in October 2021 was when the child was six. Two years had thereafter elapsed, in which time the child had started school, necessarily being enrolled with the mother’s surname. Therefore the conclusion in the last sentence of [601] was well open to the primary judge. Monie does not assist the father in this respect. Indeed it should be noted that the reasons of the primary judge were extensive, extending to 129 pages and 632 paragraphs. On any view, the reasons are comprehensive.

3. As to sub-ground (b), this is a weight challenge dressed up in “proper consideration” attire; it nonetheless remains a weight complaint. The weight to be afforded to relevant evidence is quintessentially a matter for the primary judge (CDJ v VAJ (1998) 197 CLR 172 at 230–231 per Kirby J).

4. As to sub-ground (c), as cast it is a complaint that the primary judge failed to take into account relevant considerations.

5. In essence it is said that the primary judge correctly identified in other parts of her reasons that in the past the mother had not properly supported a relationship between the father and the child, but did not take that into account when considering the change of name issue. However, that misconstrues the structure of the primary judge’s reasons. The passage upon which the father relies as comprising findings as to the mother’s failure to properly support the child’s relationship with the father must be read in context. It is part of the primary judge’s consideration of each parents’ parental capacity, which she identified as an issue relevant to the child’s best interests generally, not just parental responsibility or his living arrangements (see the heading preceding [44] and, for instance, [48](c)(v)). Thus, when her Honour considered “the father’s concerns about the mother’s attitude to [the child] and the responsibilities of parenthood” at [397]–[435], including under a sub-heading “the mother’s resistance to facilitating time between [the child] and the father” that discussion was equally pertinent to the proposed change of the child’s name. Her Honour did not need to repeat it when specifically considering that issue.

6. Moreover at [598] the primary judge did reference the prospect of the mother dropping the unwanted part of any hyphenated surname, and at [604] concluded that the ongoing parental conflict will likely continue. Even given the extensive delay in the production of the primary judge’s reasons, there is no reason to think that she did not have regard to the mother’s past inclination to not support a relationship between the father and the child in considering the name change issue, nor quarantined her earlier “best interests” analysis to the case other than insofar as it dealt with the child’s name.

7. Ground 3 fails.

   OUTCOME

8. Ground 1 succeeds, such that Orders 20 of the primary judge’s orders should be set aside, and hence Orders 23 and 24 logically also fall and should be set aside.

9. However, what should then ensue is a little complicated.

10. The first question is what orders should be set aside. The father, whose appeal it was, only contends that the orders pertaining to the two year period of supervision of his time should be set aside (ie Orders 20, 23 and 24), whereas the mother says that in addition, all orders as to the father’s time with the child (Orders 6 to 18) should be set aside as well, contending that the totality of them were all part of “one package.” However, I cannot see that an error on the part of the primary judge relating to a condition of the father spending time with the child should, at least in this case, see the whole issue of the child’s time with the father redetermined.

11. The next issue is whether I should re-exercise the discretion, or whether the matter should be remitted for rehearing. Ultimately, I did not understand either party contended strongly for the former, as the mother’s foreshadowed challenge to the paternal grandparents’ evidence, and her intention to herself lead further, and likely controversial, evidence, renders re-exercise impractical. The matter will thus have to be remitted.

12. Whilst on one view, the issue for partial remitter might be limited to the imposition of conditions (if any) on the father’s time with the child between 7:30pm and 9:00am, I think that is too narrow, if only because the selection of the times was unexplained by the primary judge, and difficult to understand. In my view the partial remitter ought be limited to the imposition of any conditions on the child’s time with the father beyond Order 19.

13. I do not overlook that the rehearing will confront the incongruity that the primary judge:

    (a)determined that the father’s driving with the child as a passenger posed an unacceptable risk of harm (at [548]), justifying him being restrained from doing so for two years (Order 19 and [541]) none of which is challenged on this appeal and hence remains undisturbed by its success;

    (b)found that the father had a history of ignoring court orders if they did not suit him (at [555]), and thus may not obey Order 19.

14. I say it is incongruous, as those findings, being undisturbed, might well support more onerous conditions than were in fact imposed by the primary judge. For example, if supervision of all of the child’s time with the father is implausible, other conditions, such as the imposition of a significant surety, might be justified. Another example might be that the father is required to surrender all keys to all of his motor vehicles upon the child going into his care.

15. These matters, somewhat ironically, might see the father’s success in this appeal ultimately result in more onerous conditions than overnight supervision being imposed on the rehearing. The father might have won the battle, only to lose the war.

    COSTS

16. In the event that the appeal succeeded, the father sought his costs in the sum of $26,092.79, which was opposed by the mother.

17. The appeal has succeeded on one ground, but failed on another. Whilst at trial the mother advocated for overnight supervision, I do not conclude that she thereby materially contributed to the primary judge’s error in imposing it.

18. It appears that the father’s financial circumstances are significantly better than the mother’s.

19. I am not satisfied there are circumstances justifying any order for costs in this case.

20. The appeal has partially succeeded, but not on a question of law. Therefore no occasion for the issue of any costs certificates arises.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:       12 July 2024