Cleland & Leggett

[2021] FamCAFC 57

FAMILY COURT OF AUSTRALIA

Cleland & Leggett [2021] FamCAFC 57

Appeal from:

Leggett & Cleland [2020] FCCA 2470

Appeal number(s):

NOA 71 of 2020

File number(s):

LEC 655 of 2015

Judgment of:

ALDRIDGE, WATTS & TREE JJ

Date of judgment:

23 April 2021

Catchwords:

FAMILY LAW – APPEAL – PARENTING – Where the father appealed from orders providing for the child to live with the mother and spend time with the father – Where the grounds of appeal devolved to weight challenges – Where weight was given to relevant s 60CC considerations but that weight was neutral – Where sufficient weight was given to the father’s evidence – Adequacy of reasons – Where reasons for judgment were clear and unambiguously expressed – Appeal dismissed – Costs order made against the father in a fixed sum.

FAMILY LAW – APPLICATIONS IN AN APPEAL – EXTENSION OF TIME – DISMISSAL – Where the father failed to comply with an order to file a Summary of Argument – Where the father sought leave for an extension of time to file an Amended Notice of Appeal and Summary of Argument – Where the mother sought the appeal be dismissed for want of prosecution – Where the non-compliance was the fault of the father’s solicitor – Where the interests of justice required the father’s application be granted and the mother’s application be dismissed.

Legislation:

Family Law Act 1975 (Cth) s 60CC

Cases cited:

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

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Division:

Appeal Division

Number of paragraphs:

41

Date of hearing:

5 March 2021

Place:

Brisbane (via video link), delivered in Cairns

Solicitor for the Appellant:

Hunter Family Law

Counsel for the Respondent:

Ms Smith

Solicitor for the Respondent:

Beek & Gallagher Legal

ORDERS

NOA 71 of 2020
LEC 655 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR CLELAND

Appellant

AND:

MS LEGGETT

Respondent

ORDER MADE BY:	ALDRIDGE, WATTS & TREE JJ
DATE OF ORDER:	23 APRIL 2021

THE COURT ORDERS THAT:

1.Appeal No. NOA 71 of 2020 be dismissed.

2.The appellant pay the respondent’s costs of the appeal in the sum of $13,269.65 within 90 days.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cleland & Leggett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, WATTS & TREE JJ:

INTRODUCTION

1. On 18 September 2020, the primary judge made orders that X, born in 2011, and hence presently nine years of age (“the child”) live with Ms Leggett (“the mother”) but spend two weekends in each school term with Mr Cleland (“the father”). From those orders, the father has appealed, however for the reasons which follow, the appeal fails.

2. At the hearing of the appeal, we gave the father leave to file and serve an Amended Notice of Appeal out of time, and extended the time in which he could file and serve his Summary of Argument and List of Authorities. We also dismissed the mother’s Amended Application in an Appeal seeking that the appeal be dismissed, because of the father’s non-compliance with orders requiring the filing of his Summary of Argument, and his otherwise not diligently prosecuting the appeal. Our reasons for so ordering were reserved, and it is convenient to now include those reasons in this judgment.

   BACKGROUND

3. The parties commenced cohabitation in 2008 when the father was 17 years of age, and the mother 16. The child was born three years into their relationship, however three months after the child was born, the parties separated under the one roof, and remained so until the father physically moved out in June 2013. Thereafter he moved from Town J, New South Wales, where the parties had been living, to Queensland, and the mother relocated to northern New South Wales.

4. Shortly after moving to Queensland, the father commenced a relationship with his present partner. Post separation the mother had a number of relationships until, in 2018, she commenced a relationship with her present partner.

5. Although post separation the father initially spent little, if any, time with the child, in January 2016 final parenting consent orders were made, which provided that the parties had equal shared parental responsibility for the child, who would live with the mother but spend time with the father, comprising two weekends during each school term, and half of the school holidays.

6. Thereafter the mother became seriously ill and the parties discussed changing the parenting arrangements, with the prospect of the child moving into the father’s care, given the risk of the mother passing away. However before any agreement was reached, after the third term school holidays in 2017, the father retained the child without the mother’s consent. That precipitated the commencement of the proceedings which were ultimately determined by the primary judge. Early on in those proceedings, in December 2017, there was an order made requiring the child to be returned to the mother’s care, and for the father’s time with the child to revert to that provided by the January 2016 consent orders.

7. The matter proceeded to trial in March 2020, albeit on the first day the parties were able to agree a number of final parenting orders, including that there be equal shared parental responsibility for the child, who would spend half of school holidays with the parent with whom she did not principally reside. That left the primary matter in dispute being the parent with whom the child should primarily reside, together with a minor dispute as to whether the child should spend two, or three, weekends with the non-resident parent each school term. It is pertinent to note that more regular weekend time was not practically feasible, given that the driving time between the parties’ homes was approximately two and a half hours each way.

   THE APPLICATIONS FOR AN EXTENSION OF TIME AND DISMISSAL FOR WANT OF PROSECUTION

8. Pursuant to orders made by a Registrar on 30 November 2020, the father was to file and serve his Summary of Argument and List of Authorities in the appeal by 4.00 pm on Friday 29 January 2021. He did not do so, and those documents were first provided to the Court under cover of an affidavit of the father’s solicitor filed 1 March 2021. That affidavit was filed in support of the Application in an Appeal also filed that day, which sought an extension of time to file and serve the Summary of Argument, and also leave to file and serve an Amended Notice of Appeal which, abandoned the extant nine grounds of appeal, and replaced them with two fresh grounds.

9. In the 1 March 2021 affidavit, the father’s solicitor identified that the failure to comply with the Registrar’s order was entirely his fault, and not the father’s.

10. For her part, by her Amended Application in an Appeal filed 3 March 2021, the mother sought that the appeal be dismissed for non-compliance with the Registrar’s order of 30 November 2020, and further sought an order that the father’s solicitor pay the costs of the appeal on an indemnity basis.

11. Plainly, the issues raised again by both applications significantly overlap, and we dealt with them conjunctively, and shall also do so in these reasons.

12. Whilst it is true that ordinarily courts are careful to ensure that their orders, including procedural orders, are complied with, such that matters proceed when they are listed to be heard, that should not be inflexibly applied, particularly where the reason for non-compliance lies not with the party, but with their solicitor (Jackamarra v Krakouer (1998) 195 CLR 516 at [66]).

13. Whilst there was some risk that, given counsel for the mother’s intimation that, if the father’s application was acceded to, she was not ready to make submissions opposing the substantive appeal, that situation was largely the product of her decision not to use the time after 1 March 2021 to prepare to resist the appeal as reframed by the 1 March 2021 documents, but rather to bring her own application seeking to have the appeal dismissed. Therefore any further delay that may have been occasioned by any adjournment of the appeal, would largely have been the product of the mother’s own forensic decisions, rather than the father’s delay in compliance with the Registrar’s order. In that regard it cannot be overlooked that the reframed appeal extended to only two grounds, rather than the nine as originally filed. Moreover, those grounds were not complex in structure or content, and were extensively addressed in the Summary of Argument contained as an annexure to the father’s solicitor’s affidavit of 1 March 2021.

14. Particularly given that the reason for the non-compliance lay entirely at the father’s solicitor’s feet, and the fact that notwithstanding the non-compliance, the mother had an adequate opportunity to prepare to meet the reframed appeal, we therefore determined that the interests of justice required that the father’s application for an extension of time be granted, and the mother’s application that the appeal be dismissed be refused.

    THE PRIMARY JUDGE’S REASONS

15. The primary judge’s reasons were extensive, running to some 347 paragraphs. Having noted the material upon which the parties relied, and reciting the relevant background, her Honour proceeded to make some “preliminary findings”. These included the mother’s physical and mental health, her abuse of alcohol and use of illicit substances, the child’s health (particularly addressing the prospect that she may suffer from autism) and traversed the history of the unsuccessful negotiations, which had seen the father retain the child in 2017, and the parties’ contemplation of a change of residence for the child again in 2018, in light of the mother’s illness.

16. The primary judge then addressed both of the primary considerations enumerated in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) before explicitly traversing the additional considerations contained in s 60CC(3) of the Act. A characteristic of the primary judge’s reasons is that in relation to both primary considerations, and a number of additional considerations, her Honour concluded that “this consideration does not assist me in determining the future parenting arrangements for [the child]” or words to like effect. We will need to address what her Honour meant by that in due course.

17. At [342]–[343] the primary judge concluded as follows:

    342. I find that it is in [the child’s] best interest to remain living with the mother and make that finding based on the following:

    a)[The child], except for less than a two month period in September 2017, has lived with the mother.

    b)        The mother has been the primary carer for [the child].

    c)[The child] has a close bond with the mother and is fond of [the mother’s partner].

    d)The evidence does not support that the mother poses a risk to [the child].

    e)The evidence does not support that the mother does not have the ability to care for and meet [the child’s] needs.

    f)[The child] is living in stable accommodation in a loving family unit where she is doing well at school.

    g)        [The child] has a close bond with L.

    h)The impact on [the child] moving away from the mother and L has not been given careful consideration and therefore the court must err on the side of caution and find that the best outcome is for [the child] to remain living with the mother.

    i)The father would not be the primary carer of [the child] if [the child] was to live with the father due to his work commitments and inability to drive.

    j)The ability for [the father’s partner] to care for [the child] in the father’s household given that a new baby is on its way has not been given careful consideration and therefore the court must err on the side of caution and find that the best outcome is for [the child] to remain living with the mother.

    k)[The child’s] strong relationship with the father and [the father’s partner] is able to be maintained and nurtured through her time with the father during school terms and school holidays, as well as telephone communication.

    l)[The child] will be able to develop a loving and strong relationship with her new sibling during her time and communication with the father.

    m)The mother is and has always been receptive to the father spending more time with [the child] and this can occur should the father choose to take up the offer.

    343.     I therefore order that [the child] live with the mother.

18. Her Honour then proceeded to consider whether or not the child should spend two or three weekends per school term with the father, ultimately concluding that “to order any more time [than two weekends] is likely to give rise to conflict” (at [346]).

    THE APPEAL GENERALLY

19. At the outset it is useful to restate the well-known principles applicable to appeals from discretionary judgments such as that under consideration here, as articulated in House v The King (1936) 55 CLR 499 at 504–505:

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

20. As we have already indicated, the Amended Notice of Appeal runs to only two grounds as follows:

    10.The learned Trial Judge erred at law in making findings pursuant to Section 60CC, but then failing to attach any weight to those findings made, in determining the best interests of the child and her reasons in that regard are therefore inadequate.

    11.The learned Trial Judge erred at law in failing to take into account important evidence or failing to attribute sufficient weight to important evidence in finding that the evidence does not support that the mother poses a risk to the child.

    (As per the original)

    GROUND 10

21. Although this ground in part asserts a lack of adequate exposure of reasoning, as argued, the father principally focussed upon the primary judge’s repeated use in relation to both primary considerations, and a number of additional considerations, of phrasing to the effect that they did not assist in determining the future parenting arrangements for the child. The father contended that this was an express acknowledgment that no weight was given to those considerations, or at the very least, the weight that was given to them was left unstated.

22. However, we reject the suggestion that the conclusion by the primary judge that the relevant considerations did not assist in determining the future parenting arrangements for the child, comprised a failure to give the relevant consideration weight, but rather was an expression that the impact of the relevant consideration was neutral. Perhaps the clearest example is her Honour’s dealing with the primary consideration of the benefit of the child having a meaningful relationship with both parents. At [111]–[113] the primary judge said as follows:

    111.     I find that [the child] has a meaningful relationship with each of her parents.

    112.I find that whether [the child] lives with the mother and spends time with the father or lives with the father and spends time with the mother that the meaningful relationship will continue.

    113.This consideration therefore does not assist in determining the future parenting arrangements for [the child].

23. It can be immediately seen that her Honour did give weight to that consideration, but noted that the consideration did not assist in determining the outcome of the litigation, because no matter with whom the child lived, she would maintain a meaningful relationship with both parents. Her Honour therefore did give the consideration weight, and plainly did engage with it, but formed the conclusion that it was neutral. Further, the path by which her Honour reached that conclusion is clear and unambiguously expressed. There is no inadequacy of exposure of reasoning.

24. The same can be said in relation to every s 60CC consideration where her Honour utilised similar phrasing.

25. Although not advanced expressly under this ground, in his Summary of Argument, the father said:

    9.        Before moving to the Grounds, the following is a relevant and brief summary:

    …

    d.Neither parent raised any threshold issues in relation to a re-litigation of the matter, namely the Respondent didn’t seek that the Application be dismissed because there was no material change of circumstances and quite plainly and properly that being the case because there had been (on each of the parties cases) a material change in circumstances.

    e.That point is made because the presumption upon which the learned Judge appears to be proceed in her reasons are reasons why the issue of where the child lives shouldn’t be made, rather than considering the competing proposals of the parties…

    …

    (Emphasis in original)

26. We reject that the primary judge approached the determination of the issues in the case by, in effect, imposing an onus upon the father to show why the extant orders should be disturbed. Her Honour was well aware of the two competing proposals, having explicitly traversed them at paragraphs [3]–[6] of her reasons, but was equally mindful that the orders proposed by the mother were simply a continuation of the status quo. Thus at [337] where her Honour said “[f]indings have not been made to support a change in the live with arrangements for the child” her Honour is not imposing an onus, but simply recognising that the mother’s proposal was for no change.

27. Ground 10 fails.

    GROUND 11

28. Ground 11 reflects a significant aspect of the father’s case before the primary judge, namely that the mother posed a risk of harm to the child by a combination of things, including what was said to be her coercive and controlling behaviour when dealing with the father. The father said under cover of this ground, that the primary judge either ignored, or gave insufficient weight to, the evidence which he led relevant to this issue. However in his oral submissions, the father conceded that her Honour did not fail to advert to any material aspect of the case which he advanced at trial, and hence the ground essentially devolved to a consideration of the weight which the father’s evidence warranted. So distilled, the difficulty with this ground succeeding is immediately manifest.

29. Her Honour addressed the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence, at [114]–[183] under the headings “Family violence in the mother’s household”, “Family violence perpetrated by mother” (with sub-headings of “Changeover” and “Social media”), “Neglect by mother” and “Abuse of child by mother,” before under the heading “Conclusion”, saying as follows:

    178.I find that there is no evidence that [the child] is at risk in the mother’s care due to abuse.

    179.I find that the mother has taken steps to cease corporeal punishment and to ensure that this continues orders have been made that corporeal punishment not take place for [the child].

    180.I find however that the mother needs to address her yelling as [the child] does not feel safe when the mother yells.

    181.Whilst part of the mother’s loud voice may be from her hearing loss, the mother needs to resort to less confronting ways of getting the children’s attention and in particular L’s attention.

    182.This can be addressed by the mother attending parenting courses and orders have been made accordingly.

    183.Otherwise I find that this consideration does not assist the court in determining the future parenting arrangements for the child.

1. In argument before us, a significant matter addressed by the father was the asserted coercive, controlling behaviour of the mother, particularly when dealing with the father by her expressing a belief over many years that the child may have autism. The father asserted that the mother knew how such assertions affected him and that she only resiled from the expression of these views in cross examination. It was also said that the child has been exposed to the latter view of the mother, and thereby has suffered harm.

2. As to the mother’s other asserted coercive, controlling behaviour when dealing with the father, and particularly concerns about that which the family report writer held, her Honour traversed a number of matters germane to this, including the father having unilaterally withheld the child in September 2017, together with his concession that he should not have done so (at [86]), and the mother’s concession that in the past she has yelled and sworn at the father and his partner at changeovers (at [126]) of which the child was plainly aware, however noted that the mother said that she now had “a lot of strategies to control [her] anger” (at [129]), ultimately concluding that the conflict at changeovers had abated (at [136(a)]).

3. As to the family report writer’s concerns in relation to the mother’s conduct, at [339]–[340] the primary judge concluded as follows:

   339.     The family report writer holds very strong views of the mother:

   a)“The mother’s behaviour appears to amount to emotional manipulation” ([34] second family report).

   b)“It appears that the mother uses denial and avoidance as defence mechanisms to deal with this dispute” ([34] second family report).

   340.Whilst I respect the views expressed by the family report writer I am unable, based on the evidence to concur with such views.

4. Before us it was not suggested that these findings were not open to the primary judge, and indeed they plainly were.

5. As to the mother’s asserted belief that the child had autism, beyond the father’s suspicion that the mother may have exposed the child to her beliefs, there was no evidence upon which the primary judge could have so concluded. Nor was there any evidence that the mother’s historical concerns about the child having autism were not genuine. Moreover, the primary judge dealt with the mother’s assertions to the father about the prospect of autism at [65]–[69] of the reasons, saying:

   65.The father is highly critical of the mother because over the years the mother has expressed concerns to the father that [the child] may be autistic, have ADHD or ADD and learning difficulties ([161] trial affidavit) and the father does share these concerns.

   66.[The father’s partner] shares this criticism commenting that the mother “wants the father to support [the child] being checked for autism” ([96] [the father’s partner’s] March 2020 affidavit).

   67.In late 2019 the mother spoke to the father about having [the child] tested for autism.

   68.As at the final hearing the mother states that “[the child] has no serious health concerns to date outside of common childhood complaints” ([79] trial affidavit).

   69.In cross-examination the mother explained that she no longer holds concerns that [the child] suffers from autism but has a long held belief that [the child] may have “traits” but that these traits are “not severe enough to have her tested” for autism.

6. Therefore, not only was there no evidence of the mother discussing such matters with the child, but there was no evidence that the mother used her concerns to control the father and in any event the mother, by the time of trial, no longer had concerns that the child was autistic.

7. There is no merit to Ground 11, and it therefore fails.

   OUTCOME

8. Neither ground of appeal is established and the appeal must therefore be dismissed.

   COSTS

9. In the event that the appeal was dismissed, the mother sought her costs in the sum of $13,269.65. No challenge was made to the reasonableness of that sum, however the father generally opposed any order for costs, primarily by reference to his presently straitened financial circumstances, including that he is no longer in employment, rents the home in which his family resides, has recently had a young child, and that his only asset is a motorcycle. It appears as though his parents may be financially assisting him at this time.

10. However on the other side of the equation, the mother’s financial circumstances also appear fraught, in that she too is in rental accommodation, has the care of two young children, and is only in part time employment. Although at trial she was in receipt of legal aid, she was not legally aided in the appeal.

11. The appeal has wholly failed, and given the nature of the challenges made by the amended grounds, was necessarily at significant risk of failing. Whilst the father may be impecunious, that of itself is well recognised as being no bar to an order for costs (Northern Territory v Sangare (2019) 265 CLR 164). Moreover it cannot be doubted that the mother has been put to significant expense by virtue of the father’s unmeritorious appeal.

12. Weighing those matters in the balance favours an order for costs in this case, and given the lack of dispute as to reasonableness of those fees, it will be in the sum sought by the mother. We shall, however, give the father 90 days to pay them.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Watts & Tree.

Associate:

Dated:           23 April 2021