D & P
[2006] FamCA 170
•22 March 2006
[2006] FamCA 170
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE
Appeal No. NA 40 of 2005
File No. BRF5133 of 2003
IN THE MATTER OF:
D
Appellant Mother
- and -
P
Respondent Father
REASONS FOR JUDGMENT
BEFORE: Finn, Holden and Boland JJ
HEARD: 3rd day of November 2005
JUDGMENT: 22nd day of March 2006
| Name of Appeal | D & P |
| Appeal Number | NA 40 of 2005 |
| File No. | BRF5133 of 2003 |
| Coram | FINN, HOLDEN AND BOLAND JJ |
| Date of Appeal Hearing | 3 November 2005 |
| Date of Publication of Judgment | 22 March 2005 |
CATCHWORDS
FAMILY LAW – APPEALS – from decision of Family Court judge against a discretionary order
CHILDREN – Residence - weight to be given to a welfare report.
LEGISLATION CITED/CONSIDERED:
Family Law Act 1975 (Cth) – s 68F(2)
CASE LAW CITED:
Australian Coal and Shale Employees' Federation & Anor v the Commonwealth & Ors (1953) 94 CLR 621
BBT and JMT (1980) FLC 90-809
Brear v Corcoles-Alfaro (1997) FLC 92-768
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Hall and Hall (1979) FLC 90-713
House v The King (1936) 55 CLR 499
Paskandy and Paskandy (1999) FLC 92-878
Smith and Smith (1994) FLC 92-488 at 81,084
Taylor and Taylor (1996) FLC 92-661
Appeal dismissed.
Appellant pay the respondent’s costs fixed in the sum of $2000.00.
Introduction
This is the appellant mother’s appeal against an order made by Bell J on 12 May 2005 ordering that the child, J (‘the child’), reside with the respondent father.
Background
The factual background to this matter, as recorded in his Honour’s ex tempore judgment, can be summarised as follows.
The parties commenced cohabitation in or about 1993. The child was born 11 July 1996 and is now 9 years of age.
The appellant mother had two children prior to the parties’ relationship, A and S, who at the time of the trial were 17 and 24 years old respectively. A resided with the parties whereas S did so for only a period. The parties separated in or about July 2002 and after that, the appellant mother moved to (the suburb) B.
After separation, the child resided with the appellant mother, but around Christmas time 2002 the child commenced living with the respondent father and his mother, in M.
The respondent father instituted proceedings on 24 November 2003 and on 5 March 2004 interim consent orders were made which were agreed to at a Legal Aid conference held on 2 February 2004. Those orders provided inter alia that the child reside with the father and that the mother have contact on the first and third weekend of each month commencing after school on Friday until 4pm on Sunday.
At the time the consent orders were made, the following notation was recorded:
“2.It is noted that despite the mother’s agreement to these interim orders, she intends to proceed with an application to the court for final orders that the child reside with her and that the father have contact with the child on terms similar to those contained in these Orders for the mother.”
The appellant mother filed her response, seeking residence of the child, on 10 May 2004.
The consent orders remained in place until the trial before Bell J.
At the date of the hearing the appellant mother was living with her de facto spouse, Mr T, in a rural area of Queensland.
the judgment of Bell J
After setting out a brief background, his Honour dealt with the appellant mother’s decision to allow the child to live with the respondent father. He said that he was surprised that the appellant mother said she refused to allow the child to reside permanently with the respondent father and that she did not approve of the child remaining with him. He went on to quote part of a report prepared by a Mediator employed by the Court, and reasoned that if the appellant mother was opposed to the child living with the respondent father, it would be unlikely that [the Mediator] would have been able to report the following:
“Ms D also acknowledged that at the time her emotional state was such that in part she incorrectly believed that [the child] might have been better off with the father.”
In addressing the appellant mother’s claim that her emotional state was partly a result of the abusive and violent conduct of the respondent father, the trial Judge said:
“8. There may have been much in what she said initially about Mr P about his violence and heavy drinking, but as she said, after a while she decided enough was enough and she stood up for herself and consequently I would have thought after that that she gave as good as she got.”
Later in the judgment, and continuing with the issues of domestic violence and the respondent father’s alcohol consumption, his Honour noted that the respondent father had one drink driving offence from 20 to 25 years ago and that any gun and rifles he had registered in his name were for pig shooting, a sport he had not participated in for some time.
His Honour then addressed the appellant mother’s delay in taking any action to secure the child’s return to her and said:
“11.The thing that staggers me particularly in this case is, notwithstanding the professed fear of the father's looking after [the child], the mother appears to have done nothing from about Christmas 2002 until she filed a response in this Court in May 2004. Towards the end of 2003 the father filed an application for residency and, as I said, the response was not filed by the mother until some six months later.”
After recording the appellant mother’s explanation as to why there was a delay, his Honour suggested that perhaps he was “hypercritical of the lateness of the response” after he noticed the second notation to the consent orders which we have already set out in these reasons for judgment.
Having referred to the fact that the appellant mother did not seek similar orders for contact between the child and the father to those made in her favour in the consent orders, as it was noted she would, and sought an order that the respondent father have two hours supervised contact at a contact centre with the child every second weekend, his Honour said:
“16.… I think that is absolutely ridiculous where the father has had unsupervised residence of a child for a period of three years. But she says that the reason why she sought this was for it to be on a limited basis so that the child would be protected from the father because he had made allegations that he would kill either [the child] or her should the child ever be taken away from him. I myself consider that if anything was said like that - and I doubt it - that this man may have a temper which needs a little bit of control.”
Further on in his reasons, his Honour opined:
“29.In the three years that [the child] has been with him there is no evidence before me - and one would have thought that could have quite easily been raised insofar as school reports of concern of her in anyway being distressed by the conduct of the father.”
With regard to the child, his Honour made the following observations:
That she had been living with the father since she was about six years of age and has been having regular contact with the mother following the making of consent orders.
She was been attending the M State School for three years, “has been doing very well” and “seems to be happy there”.
She was a member of a pony club and her father has leased a horse for her.
She was doing remarkably well with her horse riding, notwithstanding she has had little or no tuition.
As to the mother, his Honour said:
“17.The mother is now in a new relationship with a Mr T, she is residing in his house, he is employed by the C Shire Council, they seem to have a reasonably stable relationship.”
He also considered that A, the appellant mother’s eldest daughter, who was residing with the appellant mother and Mr T and that “A appears to be quite attached to [the child]”.
Dealing with appellant mother’s attitude to the respondent father, his Honour observed that her view of him “is quite strong in that she does not consider that he is a man worth any form of respect at all”.
As to Mr T’s view of the respondent father, his Honour found it was “solely clouded by the view of [the appellant mother]”.
Turning to the respondent father, his Honour said the following:
“19.He has, with the assistance … of his mother, done what I consider to be a very good job for the child. … Ms P … appears to be reasonably fit, there is no suggestion to the contrary, and she does look after the child basically the whole day since the father leaves for work around about 5:00 in the morning, he is a truck driver working with a timber firm and he does not return until between 4:00pm and 5:00pm since he takes overtime. Consequently, it is the duty … of the grandmother to prepare the child for school, to get her to school and to somehow or other get her back again. He seems to be supported by his sister, who does also assist in the transporting of the child to and from school.
20.The father after school has assisted the child in extra-curricular activities, which he has given evidence of, in particular her horse riding pursuits”.
His Honour then moved to “the competing proposals” and said as follows:
“22.… The proposal of the father is, first of all, that the child has lived with him for three years. Nothing has gone wrong with the child, everything has gone right, her welfare is being advanced, she is reaching all her milestones. The school reports which have been put before me show that she has settled in well, and is, I think, there are great compliments about her word skills and general knowledge. She appears to be happy. She, in her discussion with the mediator, does not indicate a desire to be anywhere other than between the mother and the father. She said she would like to be half mum and half dad.
...
24.She does not show any fear of her father. She has probably a warmer relationship with her mother. I say probably, I am not quite sure about that. And then [the Mediator] indicates, as I see, that he would consider that she would probably get on well in either home, she is receiving appropriate care and attention in either home, but then he says that he would prefer her to be living with the mother”.
Thereafter, his Honour rejected the reasoning of [the Mediator] on which he based his recommendation that the child reside with the appellant mother. He said:
“It appears that he has accepted what the mother has said, and that is that the father was abusive, that there was violence, not aimed towards her but towards [the child].”
His Honour then quoted the following paragraph of [the Mediator’s] report:
“That a transition of residency from the father to the mother would be distressing for J, particularly in the short term. She would clearly miss her father and also seeing her animals, in particular her pony. She would face the difficulty of changing school and forming new friendships.”
His Honour then rejected [the Mediator’s] opinion that the impact of the change in residence would be lessened with regular frequent contact.
His Honour then concluded that he:
“30.… cannot, with great respect to [the Mediator], understand his reasoning. There appears to be nothing that I could accept which would indicate that [the child’s] welfare is other than being advanced by remaining with the father.”
When it came to addressing the section 68F(2) factors of the Family Law Act 1975 (Cth) (“the Act”) his Honour said:
“31.… I would have thought that my feelings are expressed quite clearly in what has fallen from me prior to this, but I will, for the purpose of that, refer to the Summary of Argument prepared by Galloway of counsel and filed 1 April 2005 in favour of the husband, and indicate to the parties that I have considered, and think that they are reasonable submissions, those submissions as set out in the Summary of Argument under the heading “Reasons” on page 4, and I include in these my Reasons for Judgment, paragraph 1 of those reasons.”
The submissions his Honour refers to are as follows:
“(a)[The child] wishes that her parents would reside together. She is 8 years of age and her wishes are entitled to some respect. Her primary wish cannot be realised, but her contentment in living with her Father and he success that he has had in managing her and in permitting her to have a good relationship with her Mother indicate that there should be no change in her residence;
(b)[The child] has a good relationship with each of her parents and with all other people who play a significant role in her life. She has been in her Father’s care since she was 6 years of age and her stability and emotional balance indicate that the parenting she has received from her Father is more than adequate;
(c)The changes sought to [the child’s] circumstances by her Mother are likely to be extremely deleterious:
(i)Her Mother’s antipathy to her Father is undisguisable (and even find its way into her Mother’s Summary of Argument). Thus, [the child] will be entering a household where there is marked hostility to the Father who has been her primary carer for the last third of her life;
(ii)Her Mother proposes a significant geographical relocation and the need, midway through the year, to change schools;
(iii)[The child] is deeply attached to her Father and a change of residence would betray that attachment for reasons that could not be understood by [the child] (and which would have no merit in any event);
(d)The Mother’s proposal that the child have limited supervised contact with her Father, apart from being grotesque in the circumstances, would impose enormous practical difficulties upon the Father, given that he resides in M. Alternatively, as matters now stand, the parties have made workable arrangements for contact to the Mother to occur and this is reflected in the evidence (sic) the present well being of the child;
(e)The capacity of the Father to provide for the emotional, intellectual and other needs of [the child] is established. [The child] has, by the consent of the parties, spent the last 2½ years in his care and yet has maintained a positive relationship with her Mother. Apart from her natural desire to see her parents reunite, [the child] is particularly well adjusted to their separation and this reflects on the abilities and insights of her Father. The capacities of the Mother need to be judged from her allegations and in particular from the orders she seeks. Her case is an entirely negative one. She admits no virtue in [the child’s] Father at all and the orders that she proposes are so extraordinary (and the reasons given in her Case Outline to justify them are tendentious) that the Court will have the very real concern that [the child’s] good relationships with her Father, his mother and others, will be adversely affected should the child be placed in her Mother’s care;
(f)There are no factors of maturity, sex, and background that will compel a decision in the Mother’s favour in this case. However, the child, though clearly young, is sufficiently mature that her attachments may be reliably judged by others. The Father’s evident success in preserving [the child’s] attachment to the Mother (which is not greater than her attachment to him) bespeaks his capacity for effective and beneficial parenting;
(g)The Mother’s negative case is composed almost entirely of allegations concerning the Father’s conduct. These are persuasively denied by the Father. Furthermore, the Court will acknowledge the fact that the Mother was prepared to consent to an arrangement whereby [the child] resided with the Father. It is improbable in the extreme therefore that, except for forensic purposes now, there was ever any true concern by the Mother that [the child] might come to physical or psychological harm in the care of the Father. On the other hand, the Father is bound to refer to the case mounted by the Mother against him and to deep antipathy that it evidences. He submits that the likelihood of psychological harm being caused to [the child] if she lives in an environment where he is regarded so poorly is bound to have adverse psychological effects upon her;
(h)[The child’s] Father has discharged the duties of a responsible parent since [the child] came into his sole care. He has been very successful in this regard and [the child] has a good relationship with both of her parents in consequence. Furthermore, she is evidently otherwise happy and well adjusted and it is her right to continue to flourish in that way;
(i)There is an allegation made by the Mother of family violence which the Father rejects;
(j)There are no current domestic violence orders in place;
(k)The order that would be least likely to lead to the institution of further proceedings is the order sought by the Father. If the order sought by the Mother is made, particularly the unnecessary and demeaning order for supervision, the parties are likely to enter into a round of perpetual litigation; …”.
His Honour then concluded that the child should continue to live with the respondent father, and accordingly he made the orders which are the subject of this appeal.
the grounds of appeal
By a Notice of Appeal filed 8 June 2005, the appellant mother relied upon the following grounds:
“1.The Learned Judge failed to give sufficient weight to issue (sic) of Domestic Violence as outlined in the Appelants (sic) Material.
2.The Learned Judge failed to give sufficient weight to the reasons for the delay between the father keeping the child after contact in January 2003 + the mother filing a response to the father (sic) application (Nov 03) in January 2004.
3.The Learned Judge failed to give sufficient weight to the conclusions made by [the Mediator] in the family report.
4.That the appelant (sic) reserves the right to file further grounds for appeal subject to a grant of Legal Aid from the Legal Aid Office Brisbane to fund this Appeal”
appellate principles
It was submitted that the trial Judge, in the exercise of his discretion, failed to give sufficient weight to the factors enumerated in grounds 1-3. The leading authorities as to appeals against a discretionary judgment and orders, such as the present case, are well known: see House v The King (1936) 55 CLR 499; Australian Coal and Shale Employees' Federation & Anor v the Commonwealth & Ors (1953) 94 CLR 621 per Kitto J at 627 and Gronow v Gronow (1979) 144 CLR 513.
Specifically, in relation to matters of weight as Stephen J pointed out in Gronow at 519:
"The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight."
Ground 1:
In Ground 1 of the grounds of appeal the appellant mother criticises his Honour for not giving sufficient weight to the issue of family violence.
When the passages from his Honour’s reasons are read, it cannot be said that he did not have full regard to the issue of violence. His Honour took into account the following considerations; firstly, that there was no evidence suggesting that the child was at any risk remaining in the respondent father’s care, secondly, the appellant mother’s decision to allow the child to live with the respondent father and finally, the recommendations made in the family report. We are not persuaded that his Honour fell into error in the amount of weight he gave to the domestic violence issue.
Ground 2:
As to the asserted failure by the trial Judge to give appropriate weight to the reasons for the delay between the child’s change of residence in January 2003 and the appellant mother filing her response seeking residence of the child, the appellant mother submitted that the trial Judge was in error when he said “she did nothing”. She submitted that she had tried to explain to the trial Judge that within a week of the child taking up residence with her father, she had been to see a solicitor for advice, and subsequently others, and as a result of not being familiar with the family law process, she had relied on the “skill and judgment of [her] solicitor”. Further, she claimed that the delay was due to the solicitors not knowing the correct process either.
In his written submissions for the appeal, counsel for the respondent father said the following:
“19.….As his Honour noted, no letters were written to the Father, even by the Mother’s trial solicitors, nor were complaints made to the Department of Families, nor any other steps taken that might persuade a Court that promptly after [the child’s] arrival in her father’s care, the mother had set in train proceedings for her recovery.
20. The only proper implication to be drawn from these facts is that the Appellant was not moved, until the Respondent’s initiating Application, to take any steps to recover her child.”
It was further submitted, that “it was the fact of the delay rather than the reasons for it, that needed to be taken into account”.
We are of the opinion that his Honour addressed the appellant mother’s evidence about her delay in some detail. Furthermore, he later went on to suggest that perhaps he was hypercritical of the lateness in her response.
Ultimately, we form the view that the appellant mother’s delay in seeking orders for residence was not a particularly relevant matter in the circumstances of the case. Accordingly, we consider that there would be no justification for any interference by us with his Honour’s decision on the grounds of the weight which he accorded to the reasons for the appellant mother’s delay in filing her response and to the effect of that on her or the respondent father’s capacity as to residence of the child.
Ground 3:
Ground 3 of the appeal alleges his Honour failed to attach sufficient weight to the conclusion made by [the Mediator] in the family report.
The Full Court in Hall and Hall (1979) FLC 90-713 set out detailed comments upon the weight to be given to a welfare report. Commencing at 78,819, the Full Court said as follows:
“In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29. F.L.R.285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e)Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably, in some cases, equally ill served by either party.
(f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.” [our emphasis added]
In BBT and JMT (1980) FLC 90-809 at 75,100 Wood SJ followed the observations of the Full Court in Hall and Hall (supra) as to the weight to be attached to family reports:
“No particular advantage or presumption attaches to the evidence of the Court Counsellor on issues of fact merely by reason of his office. The question of his credit is to be determined in the same way as that of any other witness.”
We have already set out above the parts of his Honour’s reasons that deal with the family report. We are able to glean from his Honour’s reasons why he came to a different conclusion to [the Mediator] as he sufficiently explained his reasons for doing so.
It is clear from the authorities above that it is the trial Judge, not the welfare reporter, who makes the decision as to what is in the best interests of the child. We therefore see no foundation for the assertion that the trial Judge failed to take [the Mediator’s] opinion into account or that he inappropriately disregarded his opinions.
additional matters raised by the mother:
In support of her appeal, the mother filed a nine page summary of argument in which she addressed not only the matters raised by the grounds of appeal (being the weight attached by his Honour to the evidence of domestic violence suffered by the mother in front of the children, to the delay of the mother in instigating residence proceedings and the reasons for that delay, and to the evidence of the author of the Family Report), but also raised a range of other matters.
The mother must understand that to the extent that her summary of argument raises factual matters which were not part of the evidence before his Honour, we cannot have regard to such matters, at least in the absence of an application to adduce further evidence. We would, however, observe that it seems most unlikely to us that any of the material now sought to be raised by the mother would be capable of being the subject of a successful application to adduce further evidence.
Also in relation to factual matters raised in the mother's written summary of argument, we do not consider that any of the mistakes of fact alleged by the mother to have been made by the trial Judge would have affected his ultimate decision. It is fair to say that most of the material in the mother's written summary of argument is directed to the trial Judge's failure to consider the matters referred to in s 68F(2) of the Act, at least in what might be termed the conventional way.
Whilst his Honour did not adopt “the preferable approach” of considering each of the matters in the sub-sections in s 68F(2) of the Act separately and make findings in relation to each of them having regard to the evidence relevant to that matter (see for example in this regard Smith and Smith (1994) FLC 92-488 at 81,084; see also Taylor and Taylor (1996) FLC 92-661; Brear v Corcoles-Alfaro (1997) FLC 92-768; and Paskandy and Paskandy (1999) FLC 92-878), it was not an error of law for his Honour not to have followed that approach. It is sufficient that we as the appellate court can be satisfied, as we can be from a reading of his reasons for judgment, that in his reasons his Honour dealt with each of the relevant considerations under that section (again see in this regard Brear v Corcoles-Alfaro (supra).
Conclusion:
In our view, his Honour has met his obligation to identify the respective proposals of the parties and weigh the evidence and the submissions as to how each of the proposals of the parties would hold advantages and disadvantages for the child’s best interests. Furthermore, in addressing the section 68F(2) factors, his Honour adopted the submissions as set out in the Summary of Argument prepared on behalf of the respondent father and in doing so, we are able to ascertain how his Honour concluded that the child would continue to do well in her father’s care.
So far as any complaints are made by the appellant mother regarding the conduct of the trial, for example the fact that the grandmother was not cross-examined, it has to be remembered that the mother was legally represented at the trial. Similarly, if anything was said or done by the Judge during the trial which might have founded a claim of apprehended bias on the part of his Honour, these would be matters which should have been raised with his Honour by the mother's legal representatives during the trial.
Accordingly, we propose to dismiss the appeal.
Costs
The respondent father sought costs in the sum of $5000.00 in the event that the appeal was dismissed. Whilst we acknowledge both parties are of little means, the fact is that the father has the care of the child with little child support. Therefore, we propose to order that the appellant mother contribute to the respondent father’s costs fixed in the sum of $2000.00.
Orders
That the appeal be dismissed.
That the appellant pay the respondent’s costs fixed in the sum of $2000.00.
I certify that the preceding 54 paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court
Associate
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