Dambrose & Pacetti
[2023] FedCFamC1A 206
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dambrose & Pacetti [2023] FedCFamC1A 206
Appeal from: Pacetti & Dambrose (No 2) [2023] FedCFamC1F 616 Appeal number: NAA 232 of 2023 File number: PAC 2061 of 2018 Judgment of: MCCLELLAND DCJ, ALDRIDGE & HOGAN JJ Date of judgment: 4 December 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant mother appeals from final parenting orders for no contact with the child – Where the appellant makes an oral application to adduce further evidence – Where the application is dismissed – Where the appellant argued she had inadequate legal representation – Where the appellant argued that the trial judge failed to consider matters within their context or misconstrued them in a way which was adverse to her – Where the appellant argued the trial judge failed to consider or place appropriate weight upon a forensic psychological report sought to be relied upon at trial – Where the appellant’s grounds of appeal were not sufficiently clear – Where no ground of appeal succeeds – Appeal dismissed – Each party to bear their own costs. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Blinko & Blinko [2015] FamCAFC 146
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Forster & Forster [2016] FamCAFC 143
House v The King (1936) 55 CLR 499; [1936] HCA 40
Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155
Number of paragraphs: 51 Date of hearing: 22 November 2023 Place: Sydney Appellant: Litigant in person Counsel for the Respondent: Mr Liedermann Solicitor for the Respondent: Edwards Kirby Lawyers Counsel for the Independent Children’s Lawyer: Ms Shea Solicitor for the Independent Children’s Lawyer: Steiner Legal Pty Ltd ORDERS
NAA 232 of 2023
PAC 2061 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DAMBROSE
Appellant
AND: MR PACETTI
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ, ALDRIDGE & HOGAN JJ
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The appellant’s oral application to adduce further evidence is dismissed.
2.The appeal is dismissed.
3.There is no order as to costs.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Dambrose & Pacetti has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, ALDRIDGE & HOGAN JJ:
On 28 July 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final parenting orders (“the July 2023 orders”). The July 2023 orders provided for the parents’ then six-year-old child to live with the father and spend no time and have no communication with the mother. Such orders were supported by extensive Reasons for Judgment published that day.
The child had lived predominantly with her father since mid 2018; whilst final parenting orders made in the Federal Circuit Court (as that Court was then known) in August 2020 had provided for her to spend time with her mother on a gradually increasing basis, there was a lacuna in this between about January 2021 and August 2022; time between the child and the mother subsequently recommenced under supervision, although this too was attended by difficulties consequent on the mother’s conduct.
The mother (“the appellant”), who appeared on her own behalf, appeals the entirety of the July 2023 orders;[1] she asks that the matter be remitted for a “re-evaluation”. The father (“the respondent”) and the Independent Children’s Lawyer oppose the appeal.
[1]Which were amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by order made on 8 August 2023.
Application to adduce new evidence
In determining the appeal, the Court must have regard to the evidence given in the proceedings out of which the appeal arose[2] and has the power, in its discretion, to receive further evidence.[3] The purpose of the power to receive further evidence, which is remedial in nature and which exists to serve the interests of justice, is to ensure that the proceedings do not miscarry and to enable the Court to admit further evidence if satisfied that such evidence, if accepted, would demonstrate that the July 2023 orders are erroneous and that a different result would have ensued if the evidence sought to be relied upon at the hearing of the appeal had been available at the trial.[4]
[2] Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35(a).
[3] Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35(b).
[4]CDJ v VAJ (1998) 197 CLR 172 at [104] and [111]. Whilst this referred to the former s 93A of the Family Law Act 1975 (Cth), the terms of this section are analogous to s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
When the hearing of the appeal started, the appellant sought that the Court receive the following documents which were not before the trial judge:
(a)a print-out entitled “Digital National Police Certificate” dated August 2023 which contained the “disclosable court outcomes” recorded against her name; and
(b)an incomplete Certificate of Attendance from SS Counselling – although the appellant advised from the bar table that she had a certificate from that organisation dated March 2023 in relation to a course she had completed earlier in 2023; and
(c)correspondence dated July 2022 from TT Counselling addressed to a former Justice of the Family Court of Australia (as it then was) advising of her continued therapy with that service and, through this, her participation in cognitive behavioural therapy and dialectical behaviour therapy which incorporated, amongst other things, cognitive restructuring, anger management plan and mindfulness exercise; and
(d)correspondence dated October 2022 from Mr E, a clinical psychologist with TT Counselling, addressed “to whom it may concern” and advising, amongst other things, that he was seeing her for psychological counselling under a mental health plan in relation to an incident in October 2022; and
(e)email communication from the relevant contact centre in relation to the contact which was due to occur in October 2022, but which did not proceed because the centre failed to advise both parents of a change to the location of the same.
The appellant submitted that the Court should receive the documents because they established: that, contrary to assertions made at trial, she did not have a conviction for an offence; she had been engaged with a medical practitioner and had sought medical support and assistance in relation to her emotional dysregulation; and the contact centre’s part in changing the location of the contact scheduled to occur in October 2022.
The Independent Children’s Lawyer did not oppose the Court receiving the documents.
However, the respondent did oppose the Court having regard to the same in determining the appeal on the basis that all but the first of the documents were available prior to the trial and could have been tendered before the trial judge. Insofar as the first document is concerned, we understood the objection really to be that, given the grounds of appeal contained in the appellant’s Notice of Appeal, the Court’s receipt of it would not assist with the resolution of the appeal.
Given:
(a)the grounds of appeal; and
(b)the contents of the documents sought to be adduced by the appellant; and
(c)that all the documents other than that referred to at paragraph 5(a) were available prior to the trial; and
(d)Exhibit 22 before the trial judge contained a February 2023 report from Mr E; and
(e)that we consider that the further evidence would have no practical effect in determining whether the best interests of the child require the upholding, varying or setting aside of the July 2023 orders,
we are not persuaded that the “demands of justice” favour the appellant being granted leave to adduce the evidence sought to be adduced.
Consequently, the appellant’s oral application to adduce the same is dismissed.
Brief overview of the grounds of appeal
Given that grounds of appeal should be expressed as a “specific and concise statement of the points sought to be argued” by an appellant,[5] there is much in the submission made by counsel for the Independent Children’s Lawyer to the effect that neither the appellant’s Notice of Appeal nor her Summary of Argument particularise those errors she asserts were made by the trial judge in determining the matter. The absence of particularisation makes consideration of the appeal more difficult than would otherwise have been the case.
[5] Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2].
Doing the best that we can, it seems to us that the appellant’s grounds of appeal, as set out in the Notice of Appeal sealed 25 August 2023, may best be regarded as asserting that:
(a)those who appeared for her at the trial did so inadequately, with the consequence that she was not afforded procedural fairness and a miscarriage of justice ensued;[6] and
(b)the trial judge erred in assessing the evidence before her by either failing to consider matters within their context or misconstruing them in a way that was adverse to the appellant;[7] and
(c)the trial judge erred by failing to consider, or failing to place appropriate weight upon, a forensic psychological report which the appellant belatedly sought to rely upon in her case.[8]
[6] Notice of Appeal filed 25 August 2023, Ground 2.4.
[7] Notice of Appeal filed 25 August 2023, Grounds 1.1, 1.2, 1.3, 2.1 and 2.2.
[8] Notice of Appeal filed 25 August 2023, Grounds 2.3 and 2.5.
Insofar as the challenges to the exercise of discretion are concerned, it is, as always, apposite to have regard to the principles enunciated in House v The King that:[9]
... 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.
[9] (1936) 55 CLR 499 at 504–505.
Consequently, to the extent that the appellant’s complaint includes the expression of dissatisfaction with the exercise of discretion by the trial judge (including that certain considerations were not given adequate weight whilst others were given too much weight), she confronts these difficulties.
Asserted inadequacy of legal representation
Whilst the grounds of appeal assert that the alleged inadequacy of legal representation arose due to “limited time for preparation” – which was asserted to have compromised the thoroughness and fairness of the proceedings – there is nothing to suggest that counsel who appeared for the appellant at the trial applied to the trial judge for an adjournment of the trial on that basis: that is, no application was made for an adjournment to facilitate further preparation of the appellant’s case.
Rather, the unsuccessful application to adjourn the trial, made by the appellant’s counsel on the second morning of the hearing, was based on the assertion that the matter would not finish within its allocated time. In refusing the application, the trial judge imposed limits on the duration of cross-examination to be undertaken by counsel for each of the parents and the Independent Children’s Lawyer and also extended the usual court sitting hours to ensure that the hearing could be completed.
Reference to the transcript of the proceedings also makes it clear that counsel who appeared for the appellant at the trial cross-examined the respondent and each of the authors of expert reports prepared to assist the Court in its deliberations.
Reference to authority establishes the following:
(a)legal representation is essentially a matter between the party and his or her lawyer; a trial judge is not responsible for the competence, expertise or diligence of a legal practitioner;[10] and
(b)an appellate court may allow an appeal on account of the incompetence of legal representatives if either of the following two circumstances are established:[11]
(i)the incompetence of the legal representatives is of such a nature as to affect the conduct of the trial so that it ceases to be a fair trial – in which case a retrial may be ordered regardless of whether the result at first instance is apparently fair; and
(ii)incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result – in which case an appellant must establish that such decisions were wrong or incompetent and also that their effect was likely to have brought about a different result if they had not been made.
[10] Forster & Forster [2016] FamCAFC 143 at [141].
[11] OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281.
Whilst, in order to succeed on this ground, the appellant must persuade that the actions, conduct or decisions of the legal practitioners who represented her at the trial were wrong or incompetent, there is simply insufficient particularisation in the Notice of Appeal and her written outline to persuade of such a conclusion.
We consider that the appellant has failed to identify those actions, conduct or decisions made by her legal representatives at trial which she contends were wrong or incompetent; she has failed to identify how such actions, conduct or decisions were wrong or incompetent; she has failed to identify any bases on which the Court could be satisfied that, but for whatever asserted incompetence she alleged to have occurred, the result of the trial would have been different. She has also, in our view, failed to persuade that the asserted (but unparticularised) incompetence of her legal representatives was of such a nature as to so affect the conduct of the trial that it ceased to be a fair trial.
Asserted errors in the assessment of the evidence by either failing to consider matters within their context or misconstruing them in a way that was adverse to the appellant
The absence of particularisation does not assist the consideration of the following general complaints made by the appellant about the trial judge’s disposition of the proceedings:
(a)asserted failure to “conduct a thorough investigation into the circumstances surrounding the breach of Apprehended Violence Order (“AVO”)”; and
(b)asserted failure to consider the appellant’s asserted changed circumstances; and
(c)asserted failure to consider the evidence about the “supportive factors” available to the appellant; and
(d)asserted misinterpretation of the appellant’s statement “everything is possible” as a “promise” when it was intended to convey a sense of hope and positivity; and
(e)asserted error in misconstruing the events of October 2022 and, we infer, placing too much weight on the same.
Asserted failure to “conduct a thorough investigation into the circumstances surrounding the breach of Apprehended Violence Order (AVO)”
The details of the specific breach of the AVO are unclear from the appellant’s Notice of Appeal and the Summary of Argument. However, if, as anticipated by the Independent Children’s Lawyer, she is referring to a breach which occurred in early 2021 (which resulted in the child’s time with her being suspended until August 2022), the trial judge made specific findings in relation to this issue at paragraphs 39–42 of the Reasons for Judgment and later discussed the context surrounding it at paragraphs 115–122 and 189–191 of the Reasons for Judgment.
Asserted failure to consider the appellant’s asserted changed circumstances and asserted failure to consider the evidence about the “supportive factors” available to the appellant
The issue of the appellant’s attendance on a psychologist to assist her to regulate her emotions and express them appropriately was discussed in the Child Impact Report produced by Ms PP, a psychologist, which was released on 16 November 2021.[12]
[12] Child Impact Report dated 16 November 2021, paragraph 8.
On 24 August 2022 (that is, about six months before the trial began), the trial judge made a specific notation that there was very limited information in the appellant’s trial affidavit in relation to her mental health and no affidavit from her treating mental health professional.
Despite this, when the trial began on 22 February 2023, the appellant’s case did not include any evidence from her treating mental health professional, although she had previously filed an affidavit by a Mr E, a psychologist, on 29 May 2020 (of which one paragraph was tendered into evidence by the respondent at the trial).[13]
[13] Exhibit 10.
No explanation was provided by the appellant for her failure to call Mr E as a witness in her case.
On the second last day of the trial (9 March 2023), counsel for the appellant tendered a number of documents authored by Mr E, which were admitted by the trial judge and marked as Exhibit 22 on the basis that she would consider the weight – if any – to be accorded to the same given the absence of Mr E as a witness in the appellant’s case and the associated inability of both the respondent and the Independent Children’s Lawyer to challenge his assertions and/or opinions via cross-examination.
The material tendered by counsel for the appellant included:
(a)a document titled “Appointment Dates”, a mental health care form of Dr H dated July 2021; and
(b)a GP referral from Dr H to Mr E, a clinical psychologist, dated September 2022; and
(c)a mental health care plan of Dr H dated September 2022; and
(d)a document titled “Letter to the Court” which was an anger management plan by Mr E; and
(e)a document titled “Psychological counselling of [Mr E]” dated February 2023.
The issue of the appellant’s attendance on a psychologist was mentioned on a number of occasions in the Reasons for Judgment:
(a)at paragraph 233: the trial judge noted that the appellant told the first expert that “she was working with a psychologist to regulate her emotions and to express them appropriately”; and
(b)at paragraph 295: the trial judge recorded that, as well as having interviewed the family on two occasions (including interviewing the child and observing the child with the respondent in person), the first expert also had access to a “wide range of material”, including documents produced on subpoena from the appellant’s psychologist.
Further, paragraph 381 of the Reasons for Judgment is as follows:
Although it is known that the mother [appellant] has been engaged in therapy with a psychologist for a number of years she did not call this psychologist as a witness in her case and gave no explanation for her failure to do so. This in my view is a significant omission as it had been identified at a court event on 24 August 2022 that the [appellant’s] trial affidavit had very limited information in relation to her mental health functioning, that no affidavits had been filed from her treating health professionals and that the ICL identified (and the Court agreed), that further evidence relating to the [appellant’s] conduct and capacity to control her emotions was expected, having regard to the final recommendations of the first expert in her report. As a result, there is insufficient evidence to enable a finding that the [appellant’s] emotional dysregulation and associated conduct is associated with any mental health disorder or that the [appellant] has attempted to address any such condition that may have been diagnosed.
Given that no application was made on the appellant’s behalf to seek leave to rely on evidence from Mr E or to have him available to be cross-examined, there is much in the submission made on behalf of the Independent Children’s Lawyer that it is now difficult for the appellant to assert that the trial judge failed to consider whatever changes she asserted she had made to her functioning, especially where, despite the necessity of her having evidence to support any asserted functional improvements having been raised well before the trial, the appellant failed to ensure that such evidence was properly adduced at the trial.
Asserted misinterpretation of the appellant’s statement “everything is possible” as a “promise”
The trial judge did not find that the statement “everything is possible” was a promise made by the appellant. Rather, the trial judge noted that the contact centre notes for January 2023 mentioned the incident where the appellant told the child that “everything is possible”, and that the contact centre had suggested the appellant not talk too much about the future and that she not make promises to the child.[14]
[14] Reasons for Judgment at [222].
Asserted error in misconstruing the events of October 2022
Reference to the Reasons for Judgment reveals that the trial judge discussed the October 2022 incident in the course of her consideration of a number of events which caused her to make findings about the appellant’s behaviours which she found to be of concern;[15] the trial judge also accepted the Independent Children’s Lawyer’s submission that this event was one of a number of examples of the appellant’s difficulties and/or limitations with emotional dysregulation.[16]
[15] Reasons for Judgment at [226].
[16] Reasons for Judgment at [366].
There is nothing in the Reasons for Judgment to suggest that the trial judge identified this particular incident as being of greater significance than any of the other incidents of concern about the appellant’s conduct which were the subject of particular discussion in the Reasons for Judgment.[17]
Asserted failure to consider or place appropriate weight upon a forensic psychological report sought to be relied on by the appellant at the trial
[17] Reasons for Judgment at [140]–[142] and [161]–[228].
On the second morning of the trial, the trial judge raised that the appellant’s solicitor had attempted to file an affidavit to which was exhibited (amongst other documents) a report, dated July 2021, entitled “forensic psychological evaluation” prepared by a Ms UU, a forensic psychologist upon whom the appellant had attended on in early June 2021 and late June 2021; this report was prepared on the basis of a consideration of only material provided by the appellant and without consideration of any material provided by the respondent or any “independent experts”.[18]
[18] Annexure “E” to the affidavit of Ms VV filed 23 February 2023.
After the trial judge informed counsel for the appellant that the affidavit had been “voided on the system” and that she would not be reading it, she also said:[19]
And if you’ve got any applications to make, they will be dealt with. Whatever it is that you’re seeking to do as counsel who has the conduct of the matter, of course, it will be dealt with in the usual way …
[19] Transcript 23 February 2023, p.4 lines 1–3.
The absence of any subsequent application on behalf of the appellant to tender Ms UU’s report makes any criticism of the trial judge’s asserted failure to admit the same unpersuasive.
Further, whilst the trial judge did not have Ms UU’s report in evidence before her, it is relevant to note that Ms UU’s assessment of the appellant was the subject of discussion in each of the Family Reports which were before the Court.
First, in the Family Report dated 10 May 2022 – based upon an interview with the respondent on 6 April 2022 and the appellant on 13 April 2022 – Ms PP discussed Ms UU’s assessment,[20] and noted that, the appellant moved between placating behaviour and becoming hostile and aggressive when interacting with her during their interview,[21] and there appeared to be a significant difference and incongruence between how the appellant had presented to Ms UU and herself. Ms PP thought this incongruence may be explained, at least in part, by the fact that Ms UU was a professional sought out by the appellant, whilst Ms PP in her role as Court Child Expert was part of a system that the appellant had a sense of mistrust for and held negative views about.[22] Ms PP also noted that the appellant had presented as confrontational and aggressive throughout the assessments for both the Child Impact Report and the Family Report – whilst her presentation gave the impression that she was aware of how she may have been perceived and she tried to alter her expression to suit the situation, she had difficulty with this when challenged.[23]
[20] Family Report dated 10 May 2022, paragraph 107–111.
[21] Family Report dated 10 May 2022, paragraph 73.
[22] Family Report dated 10 May 2022, paragraph 111.
[23] Family Report dated 10 May 2022, paragraph 112.
Secondly, in the Family Report dated 20 February 2023 – relevantly based on interviews with the appellant and respondent on 15 December 2022 by video and briefly by telephone in February 2023 – Ms QQ, a Court Child Expert, noted that the appellant had reported that she had requested and participated in a mental health assessment by Ms UU in June 2021 and that this, albeit limited, had found no evidence of any mental health concerns that would adversely impact her parenting capacity.[24] Ms QQ noted it did not appear that Ms UU made a formal diagnosis from this process.[25]
[24] Family Report dated 20 February 2023, paragraph 72.
[25] Family Report dated 20 February 2023, paragraph 118.
Reference to the Reasons for Judgment makes it clear that the trial judge made a number of findings about the appellant’s conduct which post-dated Ms UU’s 2 July 2021 report, which may be summarised as follows:
(a)on 27 August 2021: the appellant sent an email to the respondent, his solicitors, the Independent Children’s Lawyer, the Court and a supervision agency titled “Dying Wish” in which she claimed the maternal grandmother was dying and that it was her dying wish to speak with her only grandchild;[26] and
[26] Reasons for Judgment at [134].
(b)In late 2021: the appellant sent an email to the president and various other members of a club of which the paternal grandmother was a member asking them to speak to the paternal grandmother about allowing the maternal grandmother to “say her last goodbye” to the child;[27] and
[27] Reasons for Judgment at [226].
(c)In December 2021: the appellant attended the child’s childcare centre without notice to, or the consent of, the respondent and informed the staff that she was leaving to return overseas and wanted to say goodbye to the child: as a result of the appellant’s refusal to leave, the childcare centre was placed in lockdown which meant that other parents were unable to enter the building and collect their children; the appellant continued to insist that she was permitted to be present at the centre; after being shown the operative orders, she continued to demand to see the child; she then stood next to the respondent’s car for a lengthy period of time and refused to leave while he remained inside the centre;[28] and
[28] Reasons for Judgment at [213]–[214].
(d)In February 2022: whilst in a shopping centre, the appellant behaved in a manner which caused police to ask her to “move on”; she started to scream loudly that she was scared of police, failed to leave the area as requested and began recording police – which resulted in police detaining her; whilst at the police station, she refused to give her name and made comments about self-harming which resulted in her being taken to the hospital for a mental health assessment;[29] and
[29] Reasons for Judgment at [215].
(e)the respondent and paternal grandfather received a large number of calls from private numbers which they deemed to be harassing – after the police identified the appellant as being responsible for these calls, she was arrested and charged in March 2022 with contravening the ADVO and using a telephone to harass or menace the respondent and paternal grandfather; she ultimately pleaded guilty to one contravention of the ADVO and the other two charges were withdrawn;[30] and
[30] Reasons for Judgment at [138]–[139].
(f)after the child’s fortnightly time with her started in August 2022, the appellant was spoken to by staff at the contact centre about her behaviour in August, September and on two occasions in October 2022:[31] and
[31] Reasons for Judgment at [226].
(i)In August 2022: the appellant was advised that she should not ask questions of the child that would lead to disclosure of personal information, particularly the child’s school;[32] and
(ii)In September 2022: after the appellant had a confrontation with a third party in the car park of the contact centre before the child’s supervised time, she became dysregulated and her mood escalated into crying – a staff member intervened to calm her down;[33] and
(iii)In October 2022: during the child’s supervised time, the appellant covertly put an item in the child’s pocket which had to be removed;[34] and
(iv)In mid October 2022: after she was told there had been a miscommunication about the location of supervised time on that day, the appellant behaved in a manner that caused the staff to suspend the provision of supervision services for two months – she raised her voice, continuously questioned the staff about the whereabouts of the child, banged on the door and glass, cried and pulled on the door handles and asked to stay in the building to see the child; she then drove back and forth through the single driveway at the carpark several times before attending at a police station where she told the police that the child was being kept from her;[35] and
(g)In December 2022: the supervision service was recommenced and, during her supervised time with the child, the appellant told staff (in the child’s presence) that “nanna used to smack [the child] when she did poo” or words to that effect – however, the child said “no, she doesn’t smack me, I don’t have a problem about poo”;[36] and
(h)In January 2023: the appellant discussed things she would do with the child in the future and was spoken to about this conversation by contact centre staff;[37] and
(i)In late January 2023: the appellant made negative remarks about the respondent’s household during the child’s time with her;[38] and
(j)In early February 2023: the appellant asked questions of the child which were considered by staff to be “investigative” (about circumstances in the respondent’s care) – when the child asked her “why can’t we go to your house like we used to”, the appellant said “ask your daddy”;[39] and
(k)In late February 2023: during her time with the child, the appellant raised her voice and argued with contact centre staff after she had removed the child’s underwear and washed it in the sink.[40]
[32] Reasons for Judgment at [217].
[33] Reasons for Judgment at [218].
[34] Reasons for Judgment at [219].
[35] Reasons for Judgment at [220].
[36] Reasons for Judgment at [221].
[37] Reasons for Judgment at [222].
[38] Reasons for Judgment at [223].
[39] Reasons for Judgment at [224].
[40] Reasons for Judgment at [225].
These findings about matters which occurred after July 2021 suggest that it is unlikely that the contents of Ms UU’s report would have assisted the appellant’s case in any event. Such a conclusion is also relevant to the assessment of the appellant’s contention about the inadequacy of her legal representation at the trial.
Concluding comments
It is clearly a serious matter for the Court to make orders that wholly prohibit a child, during their childhood and adolescence, from ever having any form of relationship with the non-resident parent. Such orders have been recognised to potentially have grave consequences for the child. Accordingly, the Court is required to carefully consider and evaluate a range of potential means by which the child could have some relationship with the non-resident parent.[41] We are satisfied the trial judge diligently undertook that task.
[41] Blinko & Blinko [2015] FamCAFC 146 at [30]–[31].
Having regard to the thorough and detailed Reasons for Judgment delivered in support of the July 2023 orders, in which the trial judge expressed the reasons for her disposition of the competing parenting applications in the manner provided for by the July 2023 orders, we are not persuaded that the trial judge failed to conduct a thorough investigation into the relevant circumstances; similarly, we are not persuaded that the trial judge failed to have proper regard to the relevant statutory considerations or that she failed to assess the circumstances completely or that she failed to prioritise the child’s best interests, assessed within the circumstances established by the evidence which included that which related to the appellant’s conduct over a number of years.
We are not persuaded that the trial judge overlooked the profound richness of the child’s cultural and familial roots – in fact, she particularly noted that:
(a)an underlying principle to the objects of the Family Law Act 1975 (Cth) is that children have a right to enjoy their culture;[42] and
(b)the appellant’s primary proposal for orders included that the child spend time with her on days of cultural significance, but the alternate orders where the appellant is found to pose an unacceptable risk did not include orders of that nature;[43] and
(c)given that the respondent did not propose any orders relating to the maternal cultural heritage, it would be likely there would be some loss to the child as there are no orders to promote her understanding of her maternal culture.[44]
[42] Reasons for Judgment at [339].
[43] Reasons for Judgment at [448].
[44] Reasons for Judgment at [449].
Contrary to the appellant’s contentions, we are not persuaded that the trial judge failed to carry out a comprehensive evaluation of the evidence before her or that she failed to consider the context within which those matters she found to have occurred took place. We are not persuaded that the trial judge failed to evaluate or analyse properly the evidence before her or that she failed to undertake a thorough investigation of the same or that she misapplied the “best interests” principle or that she misinterpreted the evidence before her in arriving at the conclusions expressed in the Reasons for Judgment she published. Nothing in the material before us persuades that the trial judge presided over a process that was unfair to the participants.
For the reasons expressed, the appeal is dismissed.
COSTS
Counsel for the respondent sought that, if the appeal was dismissed, an order be made for the appellant to pay the respondent’s costs of and incidental to the appeal in the amount of $12,400.
Counsel for the Independent Children’s Lawyer formally sought that an order be made requiring the appellant to pay the Independent Children’s Lawyer’s costs of and incidental to the appeal if it was dismissed. However, after the appellant’s responses to questions asked of her by the Court about her current financial situation, counsel quite properly, in our view, conceded that the same were such as to constitute financial hardship.
Whilst the appellant was wholly unsuccessful in the appeal and whilst impecuniosity of itself is no bar to the making of an order as to costs,[45]we are not persuaded that there are circumstances that justify departing from the statutory starting point that parties to proceedings under the Family Law Act 1975 (Cth) bear their own costs.[46]
[45] See, for example: D & D (Costs) (No 2) (2010) FLC 93-435.
[46] Family Law Act 1975 (Cth) s 117(1).
Consequently, we decline to make an order that the appellant pay the respondent’s costs of and incidental to the appeal.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Aldridge & Hogan. Associate:
Dated: 4 December 2023
6
3