Darley & Darley

[2016] FamCAFC 10

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY [2016] FamCAFC 10

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –Where the mother sought to adduce further evidence – Leave granted for transcripts only to be admitted.

FAMILY LAW – APPEAL – CHILDREN – CONSENT ORDERS – Where the trial judge made consent orders on the fifth day of the hearing – Where the mother asserts that she was coerced into agreeing to the consent orders – Where the mother did not raise concerns with the trial judge – Examination of the transcript of trial – Where no foundation for assertion that the orders resulted from undue pressure and influence from the trial judge – Where all remaining grounds of appeal have no proper foundation – Appeal dismissed.

FAMILY LAW – APPEAL – CHILDREN – Change of Name – Where the mother appeals final orders relating to the children’s surname – Where the mother sought to change the children’s surname to include the mother’s surname – Where the children have always identified with the father’s surname – Where the mother will retain married name – Where no evidence that the children will suffer embarrassment where their surname is different to their mother’s – Appeal dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the appellant seeks leave to appeal interim property orders – Where no error of principle or substantial injustice established – Where application is misconceived and entirely without merit –Application for leave refused.

Family Law Act 1975 (Cth) ss 93A(2), 60B, 60CC, 65DAC, 69ZN, 69ZQ

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc and Anor (1981) 148 CLR 170
CDJ v VAJ (1998) 197 CLR 172
Chapman and Palmer (1978) FLC 90-510
Fooks and McCarthy (1994) FLC 92-450
Gronow v Gronow (1979) 144 CLR 513
Jess and Ors & Jess and Ors (2014) FLC 93-620
Johnson v Johnson (2000) 201 CLR 488
Robinson and Willis (1982) FLC 91-215
Rutherford and Rutherford (1991) FLC 92-255
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
Thwaite v Thwaite [1981] 2 All ER 789

APPELLANT: Ms Darley

RESPONDENT: Mr Darley

INDEPENDENT CHILDREN'S LAWYER: Ms Fotheringham

FILE NUMBER: BRC 2317 of 2013

FIRST APPEAL NUMBER: NA 2 of 2015

SECOND APPEAL NUMBER: NA 3 of 2015

THIRD APPEAL NUMBER: NA 18 of 2015

DATE DELIVERED: 4 February 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Strickland, Murphy and Forrest JJ

HEARING DATE: 23 November 2015

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT ORDER DATE:  12 December 2014

15 December 2014

16 February 2015

LOWER COURT JUDGMENT DATE: 16 February 2015

LOWER COURT MNC: [2015] FCCA 317

REPRESENTATION

THE APPELLANT: In person

THE RESPONDENT: Not participating

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER :

Mr Haddrick

SOLICITOR FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Legal Aid Qld, Southport

Orders

1. Leave be granted to the mother to adduce as further evidence in the appeal the transcripts of the hearings on 13 May 2013, 3 June 2013, 10 December 2013 and 14 February 2014.

2. The Application for Leave to Appeal orders made on 15 December 2014 (Appeal NA3 of 2015) be dismissed.

3. The appeal against final parenting orders made by consent on 12 December 2014 (Appeal NA 2 of 2015) be dismissed.

4. The appeal against parenting orders pertaining to the children’s surnames made on 16 February 2015 (NA 18 of 2015) be dismissed.

5. Each party to each of the appeals shall bear their own costs of and incidental to each appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 2 of 2015; NA 3 of 2015; NA 18 of 2015
File Number: BRC 2317 of 2013

Ms Darley

Appellant

And

Mr Darley

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. The mother of two children who are currently aged nine and six years respectively, appeals three separate orders made by Judge Howard. First, she appeals final parenting orders made by consent on 12 December 2014. Secondly, she appeals the orders made on 16 February 2015 in relation to the children’s surname. Thirdly, the mother seeks leave to appeal an interlocutory order relating to chattels made on 15 December 2014.

2. The mother was self-represented before his Honour and also before this Court. She prepared the material upon which she relies before us. The father, who was also self-represented in the proceedings before his Honour, advised the Appeals Registrar in writing ahead of the appeals that he would abide the orders of this Court and did not intend to appear. He did not file any material in respect of any appeal. As it transpired, he did appear before us, but did not seek to make any written or oral submissions and confirmed that he would abide the order of the Court.

3. The Independent Children's Lawyer (“ICL”) supported below the parenting orders made by consent and opposed the order sought by the mother in respect of the children’s surnames. Through her counsel before us, she takes no position with respect to the mother’s application for leave to appeal the interlocutory orders relating to chattels but otherwise supports his Honour’s orders.

Applications in the Appeal

(a)      Applications to Amend

1. We gave leave to the mother to rely upon a Further Amended Amended Notice of Appeal in appeal NA2 of 2015. Her written summary of argument and the ICL’s summary of argument were each prepared by reference to the challenges therein contained and no prejudice to the ICL was apparent.

2. The mother also sought leave to add an additional order to this further Amended Notice of Appeal in the event that her appeal was successful.  Again, no prejudice could be asserted and leave was granted for that amendment to be made.

3. The mother also sought leave to further amend her Notice of Appeal in NA 18 of 2015 relating to the children’s surnames by adding a ground.  This ground was in essence repetitive of an existing ground (purporting to allege failure by his Honour to take account of relevant decided authorities).

4. Finally, the mother also sought leave to add an additional order to the Notice of Appeal in NA 3 of 2015.  We granted leave for that to occur because yet again no prejudice was apparent.

(b)      Application for Leave to Appeal

1. The mother agreed before us that she required leave to appeal the orders pertaining to chattels. Again, no prejudice was asserted and leave was given for her to make that application orally.

(c)      Application to Adduce Further Evidence

1. The mother sought leave to adduce further evidence in the form of a 200 page affidavit and certain transcript of previous hearings.

2. The principles relevant to this Court receiving further evidence pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) have been well traversed, principally by reference to the decision of the High Court of Australia in CDJ v VAJ.[1] Noting its “remedial nature” the High Court said:

   … Its principle purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.[2]

   [1] (1998) 197 CLR 172.

   [2]Ibid, at [109].

3. Their Honours also said:

   … [n]or can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expenses, inconvenience and worry of a new trial.[3]

   [3] Ibid, at [111].

4. The mother’s 200 page supporting affidavit contains approximately 170 pages of annexures. Much of the substantive part of the affidavit does not contain evidence at all but, rather, further submissions. The annexures include invoices, emails and correspondence from the father and his solicitors and a copy of the protection order obtained against the father, apparently subsequent to the proceedings before his Honour.

5. None of the material contained within the substantive part of the affidavit or in the annexures meets the test for the receipt of further evidence just referred to.

6. The transcripts the mother seeks to place before the Court are transcripts of proceedings which occurred on 13 May 2013, 3 June 2013, 10 December 2013 and 14 February 2014. The transcripts were advanced as purportedly demonstrating the error asserted in the first ground of appeal which will later be addressed.

7. The transcripts might have been in the appeal index filed by the self-represented mother but were not. It is appropriate that we have them before us. Thus we are prepared to admit them as further evidence.

The Nature of the Orders Made by the Trial Judge

(a)      Consent Parenting Orders (12 December 2014)

1. The final parenting orders made by consent provide, in broad terms, that the father and mother shall have equal shared parental responsibility for the children, that the children live with the mother and that they spend time with the father each alternate weekend and for specified periods of nights in school holidays.

2. There were other orders which were detailed and extensive. For example, the orders contained a prohibition on the father “smoking in the vicinity of the children” and an order that “the mother shall within two (2) working days hereof forward to the father a copy of a nationally recognised skin cancer body’s brochure that outlines their current recommendations for the protection of children in the sun AND the father shall adhere to such recommendation”, and that “the father shall not involve the children in any [community organisation] activity or allow them to attend any [community organisation] event”.

3. The 30 paragraphs of consent parenting orders extended over many pages.

(b)      Children’s Surname Order (16 February 2015)

1. It should be observed that despite extensive parenting orders having been made by consent on Friday 12 December 2014, a further parenting issue – which was of considerable significance to the mother – was exempted by her from those consent orders. This issue was adjourned to be heard by the court on the following Monday, 15 December 2014. His Honour delivered judgment and made orders on this issue on 16 February 2015.

(c)      Interim Property Orders (15 December 2014)

1. Despite the trial of all parenting orders extending, ultimately, over six days, a dispute as to financial issues remained. In anticipation of the later determination of that property dispute, his Honour made a number of orders expressed to be “until further order”. The mother seeks leave to appeal two of those orders which provide:

   3.That by no later than 5:00pm Friday 19 December 2014 the wife is to forward to the husband’s solicitors and to the Court by email the following:

   a.a list of the chattels that she intends to keep;

   b.a list of the chattels that she does not intend to keep; and

   c.confirmation that the wife will keep the chattels at the amount prescribed to them by the valuer.

   4.That by no later than 5:00pm Friday 26 December 2014 the husband is to forward to the wife and to the Court by email the following:

   a.a list of which of the remaining chattels the husband intends to keep;

   b.a list of the remaining chattels the husband does not intend to keep;

   c.confirmation that the husband will keep the chattels at the amount prescribed to them by the valuer.

The Consent Parenting Orders In Context

(a)      The Procedural Context

1. In the reasons for judgment given by his Honour in respect of the children’s surname, his Honour summarised the circumstances leading to the making of the consent orders two days previously:

   6.…After three days of hearing and on the morning of the fourth day of the trial (11 December 2014), counsel for the Independent Children’s Lawyer informed the Court that there was some prospect that the parties might be able to settle the parenting dispute.  Throughout the day on Thursday 11 December 2014 the parties negotiated. Fortunately, the parents were able to reach final agreement in relation to parenting orders. Final parenting orders were made by consent on 12 December 2014…

2. That summary by his Honour describes accurately enough the latter stages of the process resulting in the consent orders. However, as we explain later in these reasons, it is fundamentally important to understand in addition, that the proceedings in which those consent orders were made had been preceded by eight appearances before his Honour. During the course of those appearances, interim parenting orders were made.

3. The first interim orders, made by consent on 3 June 2013, provided for the father to have supervised time. Some six months later, the second set of interim orders were made, but not by consent, on 10 December 2013. Those orders were made subsequent to the receipt of a Family Report prepared by Ms F and a Psychiatric Report from Dr G, each as a single expert. Those orders provided that the children were to spend unsupervised time with their father each Saturday from 9.00 am to 4.00 pm and, specifically, on Boxing Day between those same hours. On 4 February 2014, a further interim order was made varying the December orders as to the changeover location. Those orders also set down the final hearing of the matter for three days commencing 16 June 2014.

4. On 16 June 2014, the foreshadowed trial did not proceed and further interim orders were made for the father to spend time with the children each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday and for one half of the 2014 June/July school holidays, and for one half of the 2014 September/October school holidays. A further trial was ordered to proceed (over six days) commencing 8 December 2014. Prior to those orders being made, a further Family Report had been received from Ms F and, prior to the commencement of the adjourned trial in December, a further report from Dr G.

(b)      Factual Context:  The Central Issues

1. An appreciation of the broader serious issues confronting his Honour, emanating from the evidence before him if the matter proceeded to a determination, gives important context to the statements made by his Honour which the mother posits as central to her assertion of undue pressure to consent to the orders made.

2. The mother asserts centrally on this appeal that family violence perpetrated by the father upon her (and, it should be noted, the children) ought to have been taken into account by his Honour and, she says, it was not. She also apparently asserts that the consideration of that issue was rendered more acute by her self-represented status at the time the consent orders were made.

3. Those allegations of violence, and the impact it is said by the mother to have had on her, are central to her assertions that she was coerced into the consent orders by, implicitly, the ICL and, as she expressly asserts, expressly by his Honour. The mother relies upon specific passages of the transcript where his Honour made comments about the desirability of settlement and asserts that his Honour paid insufficient regard to her position as, in effect, a victim of violence and suggested to the mother that she should settle “on pain of losing the children” if she did not. In oral argument before us, the mother said that his Honour “held a gun to her head”. As will emerge, the mother was singularly unable to provide any foundation for that assertion, ultimately conceding that it “was a poor choice of words”.

4. It is important to stress that the serious assertions made by the mother were by no means the only serious assertions that would have required adjudication by his Honour if the matter proceeded to a determination before him. The father, too, made serious assertions to the effect that the mother was engaging in conduct designed to undermine and harm his relationship with the children. 

5. The central assertions by each of the parties, if either was established, had the potential to result in a finding that either or both of the parties had caused “physical [or] psychological” harm to the children.[4] Plainly, then, a determination by his Honour brought with it the risk of such a finding and as a result consequences for the orders sought by each party and, ultimately, for the orders that the court might determine were in the best interests of the two children.[5] 

   [4]          Family Law Act 1975 (Cth), s 60CC(2)(b).

   [5]           Family Law Act 1975 (Cth), s 60CC, particularly s 60CC(2)(b); (2A).

6. As a consequence, the potential for findings about each or both such issues was a highly relevant matter for each of the parties to consider in deciding whether to resolve co-parenting arrangements for themselves or, alternatively, to abdicate that decision about their children to his Honour.

7. The issues just described were not only the subject of evidence from the parties. Each had been referred to as crucial to a judicial decision about the best interests of the children by the single expert family report writer in each of her two family reports, Ms F concluding that:

   60.A major issue of concern is [which] parent will most support the non custodial parent have a ongoing relationship with the children? The father has said he wants the children to have a meaningful relationship with their mother. The mother on the other hand appears to be irrationally fearful and anxious that the children are not safe in the care of the father and therefore the father's contact needs to be brief and supervised.[6]

   [6]Affidavit of Ms F, 2 May 2014, p. 18.

8. Those conclusions build upon observations and opinions expressed in Ms F’s earlier Family Report:

   280.The father was observed for one hour with his daughters, the girls had a lovely happy time with him. [A] was a little reticent to begin with but soon warmed up, relaxed and engaged fully with her father. [B] has no such reticence and is soon sitting on her father's knee and climbing all over him. Mr [Darley] hugs and kisses the girls and tells them he loves them. The girls showed no signs whatsoever of being scared of their father.

   281.The mother has internalised the message that father's are violent, she grew up with a violent father, if Mr [Darley] is a father he must be violent, her family of origin stuff suggests she genuinely believes Mr [Darley] poses a risk to [A] and [B] just as her father posed a risk to her and her sister.

   …

   284.Ms [Darley] has significant unresolved childhood experiences interfering with her capacity to have a considered and objective view of Mr [Darley], the mother grew up in a family where she had to be hyper vigilante all the time with her and her sister never knowing from one minute to the next when they were going to get hit. Following her parents’ separation Ms [Darley] as a teenager had to support her mother both emotionally and financially. Ms [Darley] never saw her father again until she heard news that he was dying.

   285.Ms [Darley] probably does not understand that it is important for [A] and [B] to maintain a relationship with their father and other extended family members.

   …

   287.In my interview with Ms [Darley] she goes from saying the father has hit the girls between 15 and 30 times with a wooden spoon and other implements to her saying that the father was hitting the girls every day from the ages of one and two years old. There is the strong possibility that the mother genuinely believes the father is violent and her position is rooted in her childhood experiences.

1. Having read the initial Family Report (and, among other material, the parties’ affidavits) Dr G offered the opinion in his second report that “the mother’s personality vulnerabilities lie in the obsessive compulsive range and that there may be a degree of somatisation of distress”. The doctor noted that the mother’s general practitioner recorded that “the mother in particular appeared to present with a high degree of anxiety about the children with their physical health and was a frequent presenter for her own physical problems, as well as the health concerns with respect to the children”. The psychiatrist also referred to the family report writer’s opinion that:

   … there were characteristics of ‘coaching’ and the details given by the children and that they indicated a wish to have contact with their father despite the allegations made by the mother.

(b)      The Legislative Context

1. Even before Division 12A of the Act became law, the High Court had reminded litigants that:

   At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.[7]

   [7]Johnson v Johnson (2000) 201 CLR 488, at 493 per Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ.

2. Their Honours went on to say:

   Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.[8]

   [8] Ibid.

3. In our respectful view, their Honours’ comments are equally applicable to judicial comments made about the desirability of parents deciding for themselves the co-parenting arrangements for their children in lieu of abdicating that task to a judge.  By way of corollary, their Honours’ comments are also equally applicable to comments made by a judge about the risks of potential outcomes if parties adopt the latter course.

4. Since those statements were made in the High Court, Division 12A of the Act now underscores the same points by its stated principles and mandatory obligations cast upon judges when hearing parenting matters.[9] More broadly, as was pointed out to the mother during the hearing of this appeal, the Act’s provisions pertaining to children are all underpinned by the express legislative desire to see parties agreeing about the parenting of their children thereby avoiding the court doing so for them. For present purposes, it is perhaps unnecessary to look further than the Objects and Principles enshrined within Part VII, and, specifically, the principle that “parents should agree about the future parenting of their children”.[10]

   [9]          See, for example, Family Law Act 1975 (Cth) ss 69ZN(4),(7) and s 69ZQ.

   [10]Family Law Act 1975 (Cth), s 60B(2)(d).

5. The proper encouragement by a judge to have parties agree is no more or less than the encouragement to do that which the Act contemplates and that which is consistent with the judge’s duties.

The Appeal Against Consent Parenting Orders

(a)      The Grounds as Pleaded

1. With all respect to her, many of the mother’s grounds of appeal cannot be seen as meeting that description. Many contain discursive argument. In summary, they assert:

   The learned trial judge erred or failed by:

   1)Securing the appellant’s agreement to the consent orders by undue duress and influence;

   2)Making an order in the terms provided where it was clear from the evidence that the terms were not a reflection of the appellant’s position;

   3)Not considering or giving weight to the impact and evidence of family violence and continuing incidences of violence towards the appellant and children;

   4)Making orders for equal shared parental responsibility, and thus, failing to protect the children and the appellant from “risk of physical and psychological harm and from being subjected to, or exposed to abuse, neglect or family violence”, which should have rebutted the presumption of equal shared parental responsibility;

   5)Making orders that the children spend significant and substantial time with the father, and thus, failing to make orders in the best interests of the children;

   6)Making inferences and findings of fact, which were largely improbable with respect to Ms [Darley]’s credibility;

   7)Treating the Family Report as fact because:

   (i)The report writer did not have the requisite “specialised knowledge in family violence and Autism” (s 79(1)); and

   (ii)The report was based on assertions and unscientific theories, not on admissible evidence.  

   8) By not considering the evidence in its entirety before prejudgment and by excluding admissible evidence and by allowing conjecture, irrelevant and inadmissible evidence;

   9)By being unduly guided by or placing undue weight on the opinion/conjecture of the ICL, who was not acting impartially or in the best interests of the children.

   AND

   10)The ICL erred by not acting in the best interests of the children and by failing to protect them from harm.

(b)      Consent Orders and Appealable Error

1. This Court said in Robinson and Willis,[11] that the authorities illuminated the following relevant principles:

   1.The fact that an order is made by consent does not make that order of any different nature from an order made otherwise … The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties.

   2.Amongst other conclusions which follow from that is that such an order may, subject to important qualification, be the subject of appeal in the same way as any other order. The important qualification is that as a consent order is made as a consequence of the consent of the parties to the court making that order, and not an adjudication by the court, the order may not be challenged by an appeal which is directed to the correctness of that order, that is, it cannot be appealed against on the merits. However, other grounds of appeal remain available as for example, fraud, mistake, fresh evidence, absence of jurisdiction …

   (Italics in original; underlining added).

   [11] (1982) FLC 91-215, at 77,161 per Fogarty J.

2. Reference was made in that case to the decision of the English Court of Appeal in Thwaite v Thwaite,[12] where the Court of Appeal said that:

   Similarly, as orders of the court, [consent orders] must be subject to the provisions which apply to appeals from orders made at first instance, though with one important exception. Where the court of first instance has not adjudicated on the evidence, its decision cannot be challenged on the ground that the court has reached a wrong conclusion on the evidence before it. Final orders of all kinds, however, can be challenged on appeal and may be set aside on other grounds.

   [12] [1981] 2 All ER 789, at 794.

3. Here, the parties were entitled to have the trial proceed to its conclusion and have his Honour “adjudicate it on the facts” including the competing serious assertions made by both parties and the single experts. However, they did not. By their respective applications to have his Honour make the orders they had each agreed to, each party was asking his Honour not to adjudicate upon the issues. Further, each party was, by their respective application, asserting that the orders proposed to be made were in the best interest of the children.

4. As a consequence, the “important qualification” on the right to appeal consent orders referred to by Fogarty J in Robinson & Willis (above), disposes of all but the first of the grounds of appeal relied upon by the mother.

(c)      “Undue Duress and Influence” – Ground 1

1. The mother makes a clear assertion that she was coerced, hectored or badgered into agreeing to the consent orders by his Honour. In her words, the trial judge “put a gun to her head” to have her agree to the orders. That allegation is serious, involving as it does an allegation of the failure of judicial responsibility. With that in mind, we required the mother to refer us to those parts of the transcript which were said by her to provide the foundation for that assertion. We made it clear to the mother that if she asserted that the words of the transcript did not reveal a tone or intonation upon which she relied, she should specify any such passage and we would together refer to the audio recording of the proceedings. The mother did not refer us to any such passage.

The Mother’s Words and Actions Prior to the Making of the Consent Orders

1. It is important to underline that the mother’s assertions of “undue duress and influence” in the making of the consent orders and her assertions of “prejudgment” occur against a (non-controversial) background that includes the following features:

   ·   At no time during any of the numerous appearances before his Honour over a period of approximately 18 months prior to the final hearing did the mother ever raise with his Honour any issue of prejudgment;

   ·   No such issue was raised by her during the final hearing;

   ·   The mother did not at any time raise any issue with his Honour to the effect that she felt under pressure, “put upon”, hectored or badgered in arriving at the ultimate consent orders;

   ·   Nothing to which the mother referred us, nor anything which we have ourselves read in the record would suggest any such thing;

   ·   His Honour was advised that terms were agreed at about 5.30 on the evening of the third day. Draft orders were handed to his Honour the following morning. Despite that overnight interregnum, the mother raised no issue about pressure, nor did she give any indication of having “second thoughts” about the orders when they were handed to his Honour;

   ·   Despite agreeing to substantive parenting orders, the mother reserved for determination by his Honour a parenting issue considered by her to be very important (that is, the children’s surnames); and

   ·   That issue was heard the following Monday. Again, despite the weekend interregnum, the mother raised no issue about pressure nor did she give any indication of having “second thoughts” about the substantive orders when the proceedings in respect of the children’s names were heard. 

The Mother’s Words and Actions When the Consent Orders Were Made

1. After asking the father whether he agreed “with the orders on a final basis” to which he responded affirmatively, his Honour turned to the mother. The mother said she had “just two things” that she wished to raise. Importantly, in the context of her assertions about undue duress and influence resulting from family violence, the mother said “I have a domestic violence order, your Honour, and I don’t think it’s in the best interests for the changeover to occur at school when it is closed”.[13] The mother then offered a proposal which was accepted by the father and his Honour and formed part of the consent orders.

   [13]         Transcript of proceedings 12 December 2014, p. 499.

2. The mother then addressed her second point, it being the only other matter raised by the mother in response to his Honour’s open ended question as to whether she had any issues in respect of the orders. The mother said “In relation to holidays, your Honour. This was discussed yesterday, your Honour, that the applicant was to pick up and return the children during holiday time…”.[14] Again, discussion ensued about that issue. Again, as a result, that which was suggested by the mother was agreed to by the father and his Honour and incorporated within the orders.[15]

   [14]         Ibid, at p. 501.

   [15]         Ibid, at p. 502.

3. His Honour then addressed the mother as follows:

   …So the orders will reflect that agreement … subject to the inclusion of the notations which, of course, are notations. They’re not part of the orders but they have already been stipulated. You consent to these parenting orders on a final basis, noting that you reserve the right to argue further in relation to the surnames of the children.[16]

   The mother responded in the affirmative.

   [16]        Ibid.

4. His Honour raised the “possible inclusion” of a further paragraph “relating to the question of [the community organisation] and/or Catholicism” and again addressed the mother: “Subject to those items, are you willing to confirm that as far as parenting is concerned, these are the final orders by consent, including what I verbally confirmed this morning on the record?”. The mother responded, “Yes, your Honour, with the notations”.[17]

   [17]         Transcript of proceedings 12 December 2014, p. 503.

The Mother’s Transcript References to the Judge’s “Undue Duress and Influence”

1. We asked the mother to provide examples by reference to the transcript of where and how she asserted that his Honour brought undue pressure to bear upon her or otherwise improperly sought to influence her in giving her consent.  

2. Included among the transcript references referred to by the mother, were passages of the proceedings which had occurred before his Honour on 10 December 2013. That is, the mother asserted that things said by his Honour 12 months prior to the making of the consent orders operated as a form of “undue duress” and “influence” upon her, where the orders were made after four days of trial some 12 months later. The lack of a temporal connection renders the assertion difficult to sustain but, in any event, nothing to which the mother refers was indicative of the duress, pressure or influence she alleges.

3. Similarly, no other example provided by the mother could fairly be described as matching any such assertion by the mother. Nor did any such example provide evidence of any prejudgment by his Honour. Rather, each and all of the examples provided by the mother were no more and no less than manifestations of his Honour seeking to point out to the parties that, in light of the competing serious allegations of harm made by both parties and the expert evidence before him, judicial determination might not result in the outcome that was desired.  Otherwise, his Honour’s statements and comments should be seen as a proper exhortation to the parties to themselves arrive at co-parenting arrangements for their children as opposed to the court doing so. 

4. We indicated those views to the mother during the hearing as other asserted examples from the transcript were referred to, and asked her to refer us to what she considered to be the most egregious example of her complaints. 

5. The mother referred us to a comment made by his Honour at a time immediately prior to lunch on the third day of the trial when, having earlier stood down at the request of the ICL to allow discussions to occur, the court was advised by counsel for the ICL that “we have reached agreement on significant issues”. Discussion ensued between Bench and bar table. It is during that discussion that his Honour said that he “would not allow that to happen” – a statement apparently seized upon by the mother as, it seems, an assertion by the mother that his Honour would make the consent orders irrespective of the mother’s attitude toward them. 

6. No such interpretation fairly arises from what his Honour there said.

7. It seems to us abundantly clear that what his Honour was seeking to make clear was that he well understood that the issue of the children’s surnames was both important to the mother and an issue not embraced by the consent orders and, consequently, yet to be determined. In the process of so doing, his Honour sought to make clear that he would not let that issue, as it were, stand in the way of the orders otherwise agreed with respect to the children’s parenting being made.

8. Given that the mother cites this example as particularly egregious we think it important to set out the relevant passage.  In doing so, however, we include here more of what his Honour said than what was referred to by the mother before us so as to provide proper context:

   MR SLADE JONES:   …   I just say, a reason that I invited your Honour to hear all of this is that – and I’ve made this very clear to the parties – that nothing [referring to the issue of the children’s surname] now becomes a deal breaker. 

   HIS HONOUR:   No.

   MR SLADE JONES:   In as much as nothing is contingent.  All of the above is agreed.

   HIS HONOUR:   Yes.  Yes.

   MR SLADE JONES:   To be absolutely clear on this.

   HIS HONOUR:   Yes, absolutely.

   MR SLADE JONES:   Nobody wants the bottom card of a house of cards to be pulled out at 3 o’clock this afternoon.

   HIS HONOUR:   No.  No.

   MR SLADE JONES:   That shall not occur.

   HIS HONOUR:   No, no.

   MR SLADE JONES:   All of the above is agreed.  There may be some devil in the detail, but all of it is agreed.  And if one of the parties – there can’t be two winners, so to speak, on the name change.

   HIS HONOUR:   No.

   MR SLADE JONES:   But that party shan’t be so aggrieved as to suggest that the whole deal is off.

   HIS HONOUR:   No, no, no.

   MR SLADE JONES:   That will not occur.

   HIS HONOUR:   Well, not only that, well, I won’t let it.

   MR SLADE JONES:   No.

   HIS HONOUR:   I would not allow that to happen.  The parties have indicated to the court openly now that what you have stated to the court as a broad outline is indeed correct, and I congratulate the parties in that regard.  You’ve both come a long way from when you first came to this court in May of 2013.  All right.  A lot of water under the bridge, so to speak.  So that will not be happening.  It seems to me, if anything, if anything, the name change may be an issue and then there’s the question of the property.  Okay.  So I would urge both of you to listen carefully to what the expert has to say about a child’s name, and obviously that will be what the impact is upon the child of that sort of situation.  Mr Slade Jones will communicate that to you both.  Nothing else at this stage then?

   MR SLADE JONES:   Not at this stage.[18]

   [18]         Transcript of proceedings 11 December 2014, pp. 444-5.

9. In our view, none of the matters specifically referred to by the mother or anything emerging from our own reading of the record, provide a proper foundation for the mother’s assertion that the orders made by consent were as a result of undue pressure and influence by the trial judge. For the sake of completeness, we should also add that nothing we have heard or read suggests that the mother was subject to improper pressure from either the father himself or from the ICL or her counsel.

10. As we have said, ground 1 seeks to align the mother’s assertions in respect of pressure with an apparently related assertion that his Honour prejudged issues that were before him.

11. Nothing we have heard or read, including our own review of the record, provides any example of his Honour saying anything more than explaining to each of the parties that the issues and allegations and counter-allegations raised by each of them would need to be decided by the court if consent did not occur and that this involved the inherent consequential risk that neither party might achieve the ultimate outcomes for which they contended.

(d)      The Remaining Grounds of Appeal

1. For the reasons identified earlier, we consider that each and all of the remaining grounds of appeal have no proper foundation.

2. Each assumes errors pertaining to an adjudication of issues which, as a result of the application for the making of consent orders by both parties, the court was never asked to adjudicate. Indeed, as we have said, the parties’ application is in essence an application that the court not adjudicate those issues. The principles referred to in Robinson and Willis (above), pertain. The consequence is that none of the grounds 2 through 10 have any foundation.

1. However, for the sake of completeness and in light of the mother’s self-representation before us, we should mention in addition three specific matters in respect of those grounds.

2. First, despite cross-examining the family report writer in respect of the children’s surnames, the mother did not raise any issue as to her expertise with the report writer herself, nor were we referred to any part of the record where expertise (or experience) was otherwise raised. Secondly, we have been taken to no part of the record, nor have we read for ourselves any challenge by the mother to the admissibility of evidence or challenges to the evidence adverted to by the mother in her grounds of appeal. (Much of the evidence asserted to be inadmissible is not and yet other evidence which might be is, in the absence of an application pursuant to s 69ZT(3), rendered admissible in any event by that section).

3. Finally, we specifically reject the assertions made by the mother in her grounds of appeal impugning the conduct of the ICL. Neither the transcript nor any arguments advanced by the mother provides any basis for the unsubstantiated allegations made by her. The mother was singularly unable to particularise any proper allegation of substance.

THE APPEAL AGAINST THE ORDERS AS TO THE CHILDREN’S SURNAMES

1. As has been seen, the mother appeals the orders made by his Honour which was that both children “…shall retain the surname ‘Darley’ and that the mother be restrained from referring to the children by any other name”. The ICL opposes the appeal.

2. Success in the appeal sees the mother contending that, upon the orders being set aside, orders should be made to the effect that the reasons and orders be removed from publication on the website, that the children have hyphenated names (Mackenzie-Darley), that the children have their new surnames registered without requirement of signature from the father and that they be issued with new birth certificates.

3. There are ostensibly four grounds of appeal, but the first two grounds have 15 and 23 sub-grounds respectively.

4. Again, with all respect to her, many of the mother’s grounds of appeal do not meet that description at all. Examples include: “making irrational decisions and the reasoning is so flawed that it robs the decision of logic” and “[t]hat access to an appeal system and the opportunity for judicial review must be seen to exist for people to have confidence in the objectivity of, and consistency in, the application of the law. That not only must justice be done, it must be seen to be done”. So, too, the purported ground that “cases cited in the reasons are old/not in touch with modern times”. It is not at all clear to us how it is said that there was a “breach of the ICL guidelines” and how, in any event, any such purported breach impacted at all on his Honour’s decision or otherwise speaks of appealable error.

5. So, too, the response to a request by us for the mother to particularise her asserted material errors of fact reveals a lack of substance in the allegations. As an example, a central assertion by the mother is that the trial judge failed to find that the children would be embarrassed at a Catholic school by reason of having a surname different from their mother’s. The assertion does not involve an error of fact at all. As the mother ultimately conceded before us, his Honour was entirely correct in finding that there was no evidence whatsoever before him (apart from the mother’s unsubstantiated assertion) that any such embarrassment would, or might, occur.

6. Similarly, the mother sought to contend that a general finding adverse to the father’s credibility should have resulted in findings different to those made by his Honour. The mother conceded before us that the specific factual issues to which she asserts that the adverse finding of credibility pertain were not central (indeed, probably not relevant at all) to the exercise of his Honour’s discretion in respect of the issue of the children’s surname.

7. In a similar vein, the mother’s reference to “failing to consider relevant social science/research papers social science research” both misunderstands the evidentiary requirements if same are to be used properly by a judge and ignores the fact that, in any event, the mother did not herself seek to introduce or otherwise make submissions before his Honour in respect of any such “research papers or social science research”.

8. In a similar vein, the assertion that his Honour erred by considering cases involving a “full change of surname” and not a hyphenated name is without foundation. His Honour was aware of, and applied, the relevant legal principles.

9. To the extent that the mother’s challenge consists otherwise of recognisable categories of appealable error, they are all to the effect that more or less weight ought to have been attached to factors or issues enumerated within the grounds. Any such challenge of course faces a familiar and considerable hurdle; this is a quintessentially discretionary judgment.[19] That significant difficulty aside, we can, in any event, see no proper foundation for the challenges as to the attribution of weight made by his Honour. The same is true of Ground 2(p) which asserts that his Honour “failed to properly exercise the test in Chapman and Palmer”.[20] The argument as advanced was, again, simply a challenge as to the weight which his Honour attached to the matters referred to in that decision.  We can see no merit in it.

   [19]See, for example, the often-cited passage of Stephen J in Gronow v Gronow (1979) 144 CLR 513, 519.

   [20] (1978) FLC 90-510.

10. In fairness to the mother we consider that we should examine her challenge on a basis that asserts, in essence, that his Honour’s orders were not reasonably open to him on the evidence before him and that his Honour failed to take account of relevant considerations. In exercising his discretion, his Honour took into account, among other things:

    ·That the children’s birth certificates contained the surname Darley in each case;

    ·Each of the parties confirmed that the children identify with the name “Darley”;

    ·His Honour found as a fact, not challenged on this appeal, that the father is not likely to be capable of keeping his resentment from the children’s perception if their names were changed;[21]

    ·By reference to the somewhat complicated nature of the mother’s family of origin and names within it, his Honour found, and again it is not challenged on this appeal, that “the mother was not able to explain to the court how it was that she was related to or descended from anyone with the surname “Mackenzie” and, insofar as a relevant consideration in respect of the best interests of the children might have been identification with the mother’s broader family and any name attached thereto, his Honour found that “the mother was not able to confirm that she had ever met any relative with the surname ‘Mackenzie’”, nor was she able to name “any relative of hers with” that surname;

    ·The children’s birth certificates note the mother’s surname as “Darley”;

    ·The mother has used the surname “Darley” in relation to all official documentation including, for example, bank accounts, home loans, drivers licenses and school registration for the children, since the date of the marriage;

    ·The children have not at any stage been known by the surname “Mackenzie” and the mother has, at all times, been known as “Mrs Darley” to the children’s school;

    ·The children do not identify with the surname “Mackenzie”; their name is and always has been “Darley”;

    ·There is no evidence that the children have or will be likely to suffer discrimination (contrary to the assertion by the mother) at a Catholic school because of the fact that their surname may be different to the surname of their mother;

    ·There is no evidence that the children would suffer any embarrassment in the event that their surname is different to the surname of the mother.

    [21]         See, for example, Fooks and McCarthy (1994) FLC 92-450.

11. Importantly, particularly in light of the finding made by his Honour in respect of the father and his potential resentment if the children’s names were changed, his Honour noted specifically that “the mother’s evidence [is] that she will retain the surname “Darley” in the event that the court decided that the children’s surname would remain as that”.

12. Each and all of the findings to which we have referred were open to his Honour on the evidence before him. All of the matters considered by his Honour in the exercise of his Honour’s discretion were relevant to the exercise of that discretion. No considerations, material to the exercise of his Honour’s discretion, were irrelevant to it. It has not been established before us that his Honour made any error of fact material to the decision with which his Honour was confronted. No written or oral argument by the mother persuades us that his Honour’s discretion miscarried or that his Honour’s decision was “plainly wrong”.

13. The appeal against the orders made in respect of the children’s surname should be dismissed.

Leave to Appeal Interim Orders Relating to Chattels

1. Despite the fact that there had been eight previous appearances before his Honour prior to the trial being heard, ultimately over six days, in December 2014, there apparently remained outstanding financial issues as between the parties. The mother seeks leave to appeal orders made by his Honour in contemplation of the further trial of those financial issues. The relevant orders of 15 December 2014 have earlier been quoted.

2. Despite recent statements by this Court that it was “attracted to the formulation of the test used in the Full Court of the Federal Court” in respect of the granting of leave to appeal, that issue was nevertheless “left for another day when it can be fully considered by a court as an integral part of the matter before it”.[22] That being so, the test for the granting of leave is that which has been expounded frequently by this Court based primarily on the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc.[23] If the mother is to be granted leave, she must establish an error of principle, or a substantial injustice.

   [22]Jess and Ors & Jess and Ors (2014) FLC 93-620, at [59], [66]. That decision referred to decisions of the Full Court of the Federal Court in, for example, Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238.

   [23] (1981) 148 CLR 170. See, for example, Rutherford and Rutherford (1991) FLC 92-255.

3. The issues raised by her (and the father) before the trial judge, even if important to the parties, can only be described as being of a minor nature. It cannot be said that an error of principle is involved. Nor can it be said that a substantial injustice is involved – the issues were entirely preliminary to the determination of issues pertaining to chattels, and property more broadly, at the continuation of the trial, the dates for which were to be allocated. Neither party is prejudiced in the pursuit of such remedies as might be available by his Honour’s orders.

4. Further and in any event, the orders made by his Honour do not have the meaning attributed to them by the mother. The orders are, in terms, plainly designed to have each of the parties identify such items as they might choose to keep at the value attributed to them by the single expert valuer. Contrary to that which is submitted by the mother, his Honour’s orders are not designed to impose upon either party either the acceptance of particular pieces or the value attributed to any such piece by the valuer.

5. Rather, the orders are intended to encompass the possibility of the parties agreeing to accept specific items of property at the value attributed to them by the single expert valuer if they so choose. As the orders make clear, and as reference to the transcript clearly reveals was intended, it is entirely open to each of the parties to choose no items at the value attributed.

6. His Honour’s purpose was to permit hope to triumph over expectation with the consequence – if that was to occur in whole or in part – that the issues upon which a judicial determination was necessary in that respect would be narrowed or eliminated. Of course, as his Honour also pointed out, if agreement did not occur then the extent to which either party might persuade the court of their entitlement to an item or of the value of an item of property would, sadly, be a matter for determination at trial.

7. Thus, not only is there no error of principle or substantial injustice involved in the mother’s challenge so as to enliven leave, the challenge is, in any event, misconceived and entirely without merit.

8. The application for leave to appeal should be refused.

Conclusion

1. For the reasons outlined:

   (1)Appeal NA2 of 2015 against the final parenting orders made by consent on 12 December 2014 should be dismissed.

   (2)Appeal NA18 of 2015 against the order made 16 February 2015 and in respect of the children’s surname should be dismissed.

   (3)The Application for Leave to Appeal interlocutory orders made 15 December 2014 pertaining to chattels should be refused.

Costs

1. The ICL does not seek an order for her costs of the appeal. The father, by dent of his approach to the appeal is not in a position to seek costs. There will be an order that each party bear their own costs of and incidental to the appeal.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy and Forrest JJ) delivered on 4 February 2016.

Associate: 

Date:  4 February 2016