Dautry and Wemple (No 2)
[2015] FamCAFC 248
•23 December 2015
FAMILY COURT OF AUSTRALIA
| DAUTRY & WEMPLE (NO. 2) | [2015] FamCAFC 248 |
| FAMILY LAW – APPEAL – where final orders were made granting the father sole parental responsibility and moving the child from the mother’s residence to the residence of the father – where the appellant mother submitted that the orders were plainly unreasonable and manifestly unjust and punitive to her because they were based on adverse credit findings against her and there was no finding of unacceptable risk posed by the mother to the child – where the Full Court found that despite the trial Judge’s concerns regarding the mother’s credibility, he had recognised that parenting orders must ultimately be based on the best interests of the child and that there were a range of reasons for the orders beyond just concerns regarding the mother’s credibility– appeal dismissed – costs order made. FAMILY LAW – APPEAL – where in interim proceedings the trial Judge made a final order in relation to the schooling arrangements for the child – where the Full Court found it was an error to make final orders in relation to a child’s schooling where final orders in relation to parental responsibility and the residence arrangements for the child were yet to be made – appeal allowed – order set aside – costs certificates granted. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Gronow v Gronow (1979) 144 CLR 513 |
| APPELLANT: | Ms Dautry |
| RESPONDENT: | Mr Wemple |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Yeend |
| FILE NUMBER: | CAC | 1472 | of | 2013 |
| APPEAL NUMBERS: | EA EA | 7 11 | of of | 2015 2015 |
| DATE DELIVERED: | 23 December 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland and Aldridge JJ |
| HEARING DATE: | 29 June 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2013 18 December 2014 |
| LOWER COURT MNC: | [2013] FCCA 2376 [2014] FCCA 2847 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr N Ford |
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr N James |
| SOLICITOR FOR THE RESPONDENT: | Farrar Gesini Dunn |
| THE INDEPENDENT CHILDREN’S LAWYER: | Ms Yeend |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Yeend & Associates |
Orders
The appeal against the final order made on 20 December 2013 concerning the schooling arrangements for the child be allowed and that order be set aside.
(2)(a) There be no order for costs in relation to the appeal referred to in Order 1 of these orders.
(b) The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal referred to in Order 1 of these orders.
(c) The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal referred to in Order 1 of these orders.
The appeal against the final parenting orders made on 18 December 2014 be dismissed.
The appellant mother pay the respondent father’s costs of and incidental to the appeal referred to in Order 3 of these orders, with such costs to be assessed in default of agreement and to be paid within 90 days of agreement or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dautry & Wemple 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 SYDNEY |
Appeal Number: EA 7 of 2015; EA 11 of 2015
File Number: CAC 1472 of 2013
| Ms Dautry |
Appellant
And
| Mr Wemple |
Respondent
And
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are appeals by Ms Dautry, who is the mother of a female child, X (born in 2008), against orders made by Judge Neville of the Federal Circuit Court on 20 December 2013 and 18 December 2014.
The orders of 20 December 2013 included an order requiring, on a final basis, that the child, X, who was then living, and always had lived, with the mother, attend the school which her father, Mr Wemple, wished her to attend (being a suburban Catholic primary school rather than a more expensive Anglican grammar school which the mother wished her to attend).
Other orders made on 20 December 2013 provided on an interim basis for both parents to have equal shared parental responsibility for the child and for her to spend four nights each fortnight with the father. The mother was granted an extension of time on 27 March 2015 to appeal the orders of 20 December 2013, although the appeal, as argued, was directed only to the order concerning the schooling arrangements.
The orders of 18 December 2014, made on a final basis, granted the father sole parental responsibility for the child and required that for the future she would live with him and spend defined time with the mother, being essentially three nights each fortnight and half school holidays.
The father opposed both appeals. The Independent Children’s Lawyer also opposed the appeal against the final parenting orders made on
18 December 2014. However, although she considered that she was unable to make submissions in relation to the appeal against the schooling order because she had not been in the matter at the time that order was made, she ultimately informed us that she would support the appeal.
It will be convenient in these reasons to consider the appeal against the final parenting orders made on 18 December 2014, which changed the parental responsibility and living arrangements for X, before considering the appeal against the earlier order made on 20 December 2013 concerning her schooling. First, however, we will briefly outline the background common to both appeals.
Background to both appeals
The mother (who was born in 1982) and the father (who was born in 1976) commenced living together in 2007. The child, X, was born in 2008. The parties separated in the second half of September 2010, with X remaining living with the mother. The mother had a son, Z, from a previous relationship, who had been born in mid 2006, and who lived with the parties during their cohabitation and then remained with the mother and X after the parties’ separation.
During the parties’ cohabitation and following their separation and up until August 2012, the father’s employment as a police officer required him to spend periods overseas. The father began cohabiting with Ms K in March 2013.
The father commenced parenting proceedings in the Federal Circuit Court in relation to X on 25 September 2013. By his initiating application, he sought that the parties have equal shared parental responsibility for her and that she live with each of the parties on an equal shared basis.
The decision made on 20 December 2013
As already indicated, interim orders were made by Judge Neville on
20 December 2013 providing for the parties to have equal shared parental responsibility for X and for her to spend four nights each fortnight with the father. The orders of 20 December 2013 also provided on a final basis for X to attend the school favoured by the father.
The decision made on 18 December 2014
Following a three day trial in July and September 2014 and the filing of submissions in November 2014, his Honour delivered lengthy reasons for judgment on 18 December 2014 and made the final orders, also earlier referred to, whereby the father was granted sole parental responsibility for X and she was moved to live with him.
We will later examine in some detail his Honour’s reasons for making what might be described as somewhat surprising orders involving a change of residence for a six year old child from the parent with whom she had always previously lived.
However, it will be useful to explain at this early point in our reasons, that
his Honour’s concerns about the mother’s credibility or lack thereof, particularly in relation to allegations which she made against the father, emerge strongly and clearly from his Honour’s reasons, although he did expressly recognise (at [11]) that parenting orders must ultimately be based on the best interests of the subject child “rather than solely or significantly on the bases of the veracity or credibility of any particular witness.”
It will also be useful to explain at this point that, as will be seen from the following paragraphs which appear towards the end of his Honour’s judgment, there were a range of reasons, albeit for the most part clearly traceable to the mother’s conduct, for the orders which he made:
277.In my view, the Mother’s conduct, particularly in claiming
(and continuing to claim) that she and [X] were stalked by the Father when he was clearly in Melbourne, and where he provided clear, cogent and incontrovertible documentary evidence that this was the case, is a matter of very grave concern to me. Her abject refusal to accept the evidence, and also to claim that it had been concocted by the Father, and that he has hacked her emails
(with the Mother never having provided a jot of evidence to support this often-made allegation), is no less concerning. She exhibited an alarming inability to face any reality that did not suit her own purposes.278.In the light of the detailed evidence before the Court, in my view it is clear that the parties are unable to communicate; they are unable to trust each other. The Mother has made, and continues to make, unfounded accusations against the Father. The parenting relationship is severely fractured, and to mix medical metaphors, it is severely poisoned. While-ever the Mother continues with conduct that she has exhibited over the past 12 months or so, I have the gravest doubts that the parenting relationship can or could be repaired. As such, the presumption of equal shared parental responsibility, pursuant to s.61DA of the Act, is clearly rebutted. An order for sole parental responsibility must be made in favour of the Father. In my view, the actions of the Mother have decidedly led to this result. I fear that, in the light of her evidence, she will not accept such a judgment. As she has done with almost everything else, it will be sheeted home to someone else, particularly the Father and his partner, [Ms K]. She will not accept any responsibility for either her actions or the consequences that must necessarily flow from them.
279.With such an order having been made, it is unnecessary to consider the terms and operation of s.65DAA.
280.In my view, the orders as sought by the Father are in [X’s] best interests.
Importantly, it must be noted that, as his Honour recorded in his reasons
(at [7]), the Independent Children’s Lawyer supported the change of residence for the child, as also did the Family Consultant (albeit “[c]onditional on the Court’s findings”).
The appeal against the final parenting orders made on
18 December 2014
The content of the grounds of appeal directed to the final parenting orders and the scope of the arguments put in support of those grounds necessitate that we first identify the essential complaints contained in the grounds before examining more closely his Honour’s reasons for those orders in order to determine if there is substance in those complaints, and thus error in the making of the orders.
There were twenty-one substantive grounds of appeal in the notice of appeal (filed 14 January 2015). Grounds 1 to 6 and Ground 18 were directed to the orders of 20 December 2013 concerning the schooling arrangements
(in anticipation of the grant of an extension of time to appeal those orders).
Of the remaining fourteen grounds which were directed to the final parenting orders made on 18 December 2014, three, being Grounds 12, 16 and 21, were expressly abandoned during the hearing of the appeal.
Grounds 7, 8, 9, 10 and 11
Grounds 7, 8, 10 and 11, which were argued first by counsel for the mother in his oral submissions and were argued as a group, assert that the trial Judge was in error in the exercise of his discretion:
·as the result embodied in his orders is plainly unreasonable and manifestly unjust (Ground 7);
·[in] placing such undue weight upon his severely adverse findings as to the Mother’s credit that this has excessively impacted upon his consideration and determination as to what is in the best interests of the child and is in effect punitive of the Mother (Ground 8);
·[in] failing to place any or sufficient weight upon the uncontroverted evidence that the Mother had been the primary carer and at time, the sole carer of the child essentially from the time of the child’s birth (Ground10);
·[in] failing to place any or sufficient weight upon the impact upon the child of separation from her half sibling, [Z], in circumstances where the children had been members of the same household since the child’s birth
(Ground 11).Ground 9 was said by counsel for the mother to particularise the complaint in Ground 8 (Appeal Transcript of 29 June 2015, p 5, lines 6-29); it does so in the following way :
9.That the Trial Judge permitted his severely adverse view of the Mother to impact upon his decision to such an extent that he made a notation that a recovery order issue in chambers without further notice if the Mother failed to return the child to the Father in accordance with his orders in circumstances where there was no evidence that the Mother had previously failed to comply with orders relating to the Father spending time with the child, thereby in essence denying the Mother natural justice.
The submissions made in support of Grounds 7, 8, 10 and 11 were that the final parenting orders were in their result “plainly unreasonable and manifestly unjust” in that they had removed the child from the care of the mother with whom she had always lived, to the care of the father, and provided for the child to spend less time with the mother than had been sought by the
Independent Children’s Lawyer, and than the father had with the child under the interim orders made in December 2013, and as such the orders were “punitive” to the mother. It was also submitted that the orders had the effect of separating the child from her half brother, Z.
It was further submitted that it was difficult to see how the credit based findings against the mother, which did not involve a finding of “unacceptable risk”, could lead to a change of residence for the child and to such
“a punitive … spend time arrangement” for the mother (Appeal Transcript of 29 June 2015, p 19, line 26-27).
The attempted amendment to Ground 7: the judgment of the
ACT Supreme Court
We mention in this context that at the commencement of his oral submissions in support of this group of grounds, counsel for the mother sought leave to amend Ground 7 by the addition of the words “or there was a palpable misuse of his Honour’s advantage at trial”. This amendment would have resulted in Ground 7 reading in full:
7. That the Trial Judge was in error in the exercise of his discretion as the result embodied in his orders is plainly unreasonable and manifestly unjust or there was a palpable misuse of his Honour’s advantage at trial.
In conjunction with seeking leave to amend Ground 7, counsel also sought to put before us, apparently as further evidence, a copy of a judgment given by Mossop AsJ of the Supreme Court of the Australian Capital Territory on
11 May 2015, in which his Honour refused the mother here an extension of time to institute an appeal from a decision of the Magistrates Court of the Australian Capital Territory, given on 27 May 2014. In that decision the mother’s application for a domestic violence order against the father was dismissed.
In his judgment Mossop AsJ had observed (at [82]):
82. There is, in my view, a real issue concerning the date of the assault alleged in December 2010. Having regard to the lapse of time since the incident was alleged to have occurred it is likely that any witness would, in attempting to fix the precise date, be reconstructing their evidence on the basis of documents now available. Thus, in assessing any attack on credibility based upon the date of the alleged event, particular care would need to be taken that too great an emphasis was not placed upon an incorrect specification of the date of the event.
The Associate Judge had then proceeded to examine in some detail the contents of the documents which were then available and apparently before him, and he ultimately concluded (at [97]) that there would be an arguable ground of appeal against the decision of the Magistrates Court, being to the effect that in the light of such documentary material a different assessment of the credibility of the mother might have been made by that Court.
Although before us counsel for the mother initially sought to rely on this conclusion by Mossop AsJ in support of the application to amend Ground 7 of the grounds of appeal before us to assert “a palpable misuse” by Judge Neville of his “advantage at trial”, after some discussion with us, the application for leave to amend Ground 7 was withdrawn (Appeal Transcript of 29 June 2015,
p 15), with only the application that Mossop AsJ’s judgment be received by way of further evidence being pressed. However, when that application was ultimately opposed by counsel for the father, it also was not pressed by counsel for the mother, at least in so far as we understood the position.
Should it be, however, that we have misunderstood the position of counsel for the mother on this matter, we make it clear that we would not have received the judgment in question as further evidence. This is because we do not accept that that judgment would establish that Judge Neville’s conclusions regarding the mother’s credibility were not open to him. As will be seen when we examine his judgment in light of the mother’s complaints, his Honour was able to identify other instances which demonstrated the mother’s lack of credibility apart from the alleged assault in December 2010 which was the subject of Mossop AsJ’s observations.
Ground 17
The only other ground of the grounds which were ultimately pressed, and which was addressed orally by counsel for the mother, was Ground 17 which asserts:
17.That the Trial Judge in his determination as to the Mother’s credit had regard to place [sic] undue weight upon matters to which she had referred relating to her educational qualifications and work history.
We will return to this ground when we consider in greater detail his Honour’s reasons for judgment, although we note here that there are clearly errors in its drafting, but that to the extent that it is a challenge based on weight, it must face the obstacles which all challenges to discretionary judgments which are based only on weight must face (Gronow v Gronow (1979) 144 CLR 513).
Grounds 13, 14, 15, 19 and 20
Grounds 13, 14, 15, 19 and 20 were not the subject of any oral submission by counsel for the mother, but as they were not formally abandoned, we must regard them as still pressed on the basis of the written submissions directed to them.
Ground 13 asserts:
13.That the Trial Judge was in error in determining that there was a risk to the Father’s relationship with the child in the event that she continued to reside in the Mother’s care in circumstances where the Mother had clearly encouraged the relationship between the child and the Father prior to the time when interim orders were first made in late 2013 and notwithstanding that the Father continued to have a “good and close” relationship with the child from this time onwards.
The written submissions in support of this ground provide no assistance in identifying the precise finding made by his Honour to which this ground is directed. We can only assume that it is directed to the finding made in [268] of his Honour’s reasons in the context of his consideration of the matters contained in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), specifically s 60CC(3)(d) which is concerned with the effect of changes in the child’s circumstances:
268.On the other hand, there is some risk to the Father’s relationship with [X] while-ever she remains living with her Mother, according to the Father’s evidence, that of [Ms K], and that given by the Family Consultant. I formed the same view very clearly in the light of the Mother’s long stint in the witness box. As I have noted on a number of occasions, I found her evidence to be very concerning. For the Mother, attention to detail and truth was a disposable commodity. Further, she lacks significant insight into the consequences of her conduct, particularly with respect to proper, basic prudential parenting.
The complaint appears to be that this finding was not open to his Honour given the evidence that the mother had in the past encouraged the relationship between the child and the father, and that the father and the child did have a “good and close” relationship (presumably at the time of the trial before his Honour). Again we will later return to this ground.
Grounds 14, 15, 19 and 20, to which we will also return, face the obstacles faced by all challenges to discretionary judgments based only on weight, in that they allege error on his Honour’s part in failing to place any, or sufficient, weight on:
· the fact that [Ms K], who had been the Father’s de facto partner for only some twelve months and with whom the Judge was highly impressed, would now be playing a significant role in the care of the child as opposed to the Mother (Ground 14);
· the fact that the Father had made no criticisms of any substance of the Mother’s care of the child from the time of her birth (Ground 15);
· the Father’s failure to pay the child support to the Mother in respect of [X] for a period of some seven months whilst [X] was primarily in her care because he had been previously credited with [X’s] private school fees to attend [the school favoured by the mother] (a situation from which he has now reneged) that this had apparently created a credit which obviated him from paying child support for that period of time (Ground 19);
· the evidence that the child had only spent limited time overnight with the Father since the time of separation in determining the amount of time which the child should now spend with the Father upon an overnight basis (Ground 20).
Summary of complaints in the grounds of appeal
It can be seen that many of the grounds of appeal raise issues of weight in that they assert that in making his final parenting orders, his Honour placed:
·either undue weight on:
- his adverse findings concerning the mother’s credit (Ground 8); and
- on her educational and work history in making those adverse credit findings (Ground 17);
·or insufficient weight on:
- the mother’s position as primary carer of the child since birth (Ground 10);
- the separation of the child from her half sibling (Ground 11);
- the limited period during which Ms K, who would now play a significant role, had been the father’s partner (Ground 14);
- the fact that the father had made no criticisms of any substance of the mother’s care of the child since birth (Ground 15);
- the father’s attitude to his child support responsibilities (Ground 19); and
- the limited amount of overnight time which the child had previously spent with the father (Ground 20).
Apart from matters of weight, the grounds also complain:
· that his Honour erred in finding that there was a risk to the relationship between the father and the child if she continued to reside with the mother (Ground 13); and
·
that the orders were plainly unreasonable and manifestly unjust, essentially because they were based on the adverse credit
findings against the mother, and were, in effect, punitive to her
(Grounds 7 and 8).
Consideration of the trial Judge’s reasons in light of the mother’s complaints
Against the background of our summary of the mother’s complaints as contained in her grounds of appeal, we now return to consider more closely his Honour’s reasons for the final parenting orders which he made.
In the course of the seven introductory paragraphs ([1] to [7]) of his reasons, his Honour referred to the fact that the mother had been found “to have given dishonest evidence, in certain respects, in apprehended violence proceedings against the Father” in the ACT Magistrates Court, and that before his Honour, as his reasons would show, “she had also been found to provide evidence that was clearly false and misleading”, and he foreshadowed that it would be in the child’s best interests, “indeed it is essential that she now reside with her Father and spend regular but limited time with her Mother”.
Under the heading “Overview”, his Honour then said:
8.To speak generally, the parenting contest on display in these proceedings dealt with the following matters:
(a) allegations by the Mother against the Father that he had hacked her email account(s) and otherwise falsified SMS and other messages between the parents;
(b) the general credit and credibility of the Mother’s evidence, not least in the light of her clearly erroneous evidence in another court about proceedings and [lack of] orders in this Court;
(c) allegations by the Mother against the Father that he stalked the Mother and child [in Canberra] at a time when documentary evidence confirmed that the Father was in Melbourne, where he had undergone … surgery; faced with this evidence the Mother simply and pointedly said that she “saw what she saw”. Among other things, when such things occurred during the trial, it made her look foolish and rather immature, rather like a child who had been found out, so to speak, but who refused to accept the truth or reality of the situation; and
(d) the Mother’s “obsession” (to use the word of her own Counsel) to ensure [the child’s] attendance at [the school which the mother favoured].
9. Also to speak generally, the evidence exposed the remarkable lengths to which the Mother would go (and has gone) to expose what she said was, among other things (as I have just noted), the Father’s intimidating and predatory conduct towards her, which included stalking her and [the child], as well as hacking her emails and text messages. No evidence has ever been produced to support such serious allegations. They assume even greater import because they have been made against [the father as a serving police officer]. Consistently, the Father provided detailed evidence that contradicted the Mother’s claims.
10. One very clear consequence of the Mother’s actions was that it placed her conduct and her “credit” as a witness very much at the forefront of the trial. …
(Footnotes omitted)
Importantly, his Honour then expressly recognised, as we earlier noted, that the best interests of a child must be determined by reference to the matters in
Part VII of the Act rather than on the basis of the credibility of a witness:
11. In saying this, of course, the parenting orders ultimately made must be on the basis of the best interests of [the child] as determined according to the legislative scaffold in Part VII of the
Family Law Act 1975 (“the Act”), rather than solely or significantly on the bases of the veracity or credibility of any particular witness.(Footnotes omitted)
This statement by his Honour is extremely important for present purposes because it shows that he was well aware that in the determination of the future living arrangements for the child, matters other than the mother’s credibility had to be taken into account, and we can here indicate that we are satisfied that he did indeed take into account matters other than only the issue of the mother’s credibility when making his final parenting orders.
Then, and still “by way of overview”, his Honour provided some examples, which “give some indication of the Mother’s evidence and its import for the parenting contest.” It was in this context that his Honour referred
(at [14] to [21]) to various claims by the mother in relation to her educational and work history which he considered to be exaggerations or embellishments. It will be recalled that one of the mother’s complaints on this appeal
(in Ground 17) is that his Honour placed undue weight on these matters in reaching his adverse credit assessment of her. We consider there is no substance in that weight-based complaint.His Honour next provided details of the erroneous evidence which the mother had provided in the ACT Magistrates Court about proceedings in the
Federal Circuit Court and which he had referred to earlier in [8(b)] of his reasons. Because of the seriousness of this matter and its relevance to the adverse credit findings against the mother, we will set out what his Honour said about it:23. In this regard, and more tellingly, in ex parte AVO proceedings before the Magistrates Court of the ACT on 25th February 2014, she claimed in oral evidence that (a) the Father never had the children ([X] and her brother [Z] – the Mother’s child from a different relationship) overnight: yet there are voluminous text and other messages between the parties (attached to the Father’s affidavit material filed in this Court) over a long period that confirm the Father regularly had the children overnight; and (b) there were no parenting orders in place. Yet it is incontestable that there were parenting orders made by this Court in December 2013, at which event the Mother was present in Court when they were pronounced. Indeed, there were parenting orders earlier made by the Court, by consent, on 14th October 2013, and further orders were made on
19th February 2014.24. Obviously on instructions, the Mother’s then solicitor contended in this Court that (a) the transcript from the Magistrates Court was not accurate, and (b) the Mother did not say the things recorded in that transcript.
25. To deal with these contentions, the Court obtained a copy of the audio recording of the ex parte application in that Court and played it in open court with the parties and their lawyers present
(and the ICL). The audio recording confirmed (a) the accuracy of the transcript, (b) the Mother’s erroneous evidence before the Magistrates Court, and in consequence, (c) her erroneous claims in this Court. The Mother’s then solicitor confirmed that he
would give advice to her about the evidence given in the
Magistrates Court, and any likely import of it in the proceedings in this Court.(Footnotes omitted)
A little later his Honour provided details of the unfounded allegation of stalking which the mother had made against the father, and which again because of their relevance to the credit findings against the mother, we set out:
31. To give a further and very significant example of the parenting contest and her highly distorted claims, the Mother asserted
(with particulars given later in these reasons) that in March 2014 the Father stalked her and [X] by following her car on a particular date and time. The Father produced a large number of documents, including plane boarding passes and a number of
time- and date-stamped Eftpos receipts, which confirmed that he was in Melbourne (where he was having surgery at the … Hospital) for a period of time that included the date and time the Mother contended she was followed or stalked by him in his car.(Footnotes omitted)
Towards the conclusion of the “Overview” section of his reasons, his Honour made the following finding regarding the credit of both parties:
38. I record here that where-ever there is any conflict between the evidence of the parties (including that of the Father’s de facto Wife, [Ms K]) I should be taken to prefer and accept the evidence of or in support of the Father to that of the Mother. I found the Mother to be a most unsatisfactory witness. In my view, there is little that she would not say or do to achieve her own ends, especially to thwart the Father’s time with and care of the child. On the other hand, I found the Father’s evidence, and that of his partner in particular, to be measured, candid, and almost invariably supported by significant documentary evidence.
Following the “Overview” section of his reasons, his Honour set out, apparently in full, the orders sought before him by each of the parties and by the Independent Children’s Lawyer. He then listed the many documents tendered before him before setting out in great detail the evidence which was before him, being the father’s evidence (at [63] to [86]), the evidence of the father’s partner, Ms K, (at [87] to [104]), the mother’s evidence including her evidence in the Magistrates Court (at [105] to [195]), the maternal grandmother’s evidence (at [196] to [205]), and finally the evidence of the Family Consultant (at [206] to [245]). After recording the Family Consultant’s evidence, his Honour stated that he accepted that evidence
“without qualification”.His Honour next summarised the written submissions made to him by both parties and the Independent Children’s Lawyer following the conclusion of the third day of the trial, before turning to apply the provisions of Part VII of the Act, notably s 60CC which specifies the matters to which a court must have regard in determining what parenting orders will be in a child’s best interests (as required by s 60CA).
It is only necessary that we refer to those passages in his Honour’s consideration of s 60CC which demonstrate that there were a range of other matters in addition to the issue of the mother’s credit, which his Honour took into account in determining that the father should have sole parental responsibility for the child and that she should live with him, although as we indicated early in these reasons, those other matters did for the most part relate to the mother’s conduct.
In relation to the nature of the child’s relationship with each of the parents and other relevant persons (s 60 CC(3)(b)), his Honour stated:
264. The Family Consultant observed [X] to have a good relationship with the maternal Grandmother, [Z] and [Ms K]. There was also a clearly observed [sic] that [X] had good and close relationship with both parents.
This statement by his Honour can be regarded as a finding given his earlier stated unqualified acceptance of the Family Consultant’s evidence. It is an important finding particularly in so far as it concerns the child’s relationship with her father with whom under his Honour’s orders she would move to live.
Section 60CC(3)(c) is concerned with:
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
His Honour’s findings in relation to the matters in this paragraph are very significant for, and indeed are supportive of, the final parenting orders which he made; his findings are as follows:
265. In relation to s.60CC(3)(c), it is clear that the Mother has not involved the Father in a number of significant decisions relating to [X], for example and notably taking her to see a psychologist, and refusing (despite many requests to do so) to provide relevant information regarding this engagement of a health care professional. The Mother’s long-standing intransigence in relation to her school of choice for [X] could also be taken to be another important instance of her failure or refusal to communicate in a responsible, meaningful way with the Father. In my view, the evidence is clear that at every opportunity the Father has spent time and communicated with [X] in an appropriate manner. The Family Report supports such a view.
With respect to s 60CC(3)(ca), which is concerned with the extent to which a parent has, or has not, fulfilled his or her obligations to maintain the child, his Honour found:
266. With respect to s.60CC(3)(ca), notwithstanding various claims made by the Mother about financial support generally following the Father ceasing to pay [X’s] school fees for the [the school which the mother favoured] in 2013, there is no evidence that the Father has not paid child support (as assessed). Otherwise, in my view, no relevant issues or matters arise for separate consideration in relation to this paragraph.
(Footnote omitted)
These findings concerning the payment of child support by the father, in our view, dispose of the mother’s complaint in Ground 19 about that matter, given particularly that that ground is based only on weight, and does not assert an error of fact.
Section 60CC(3)(d) is concerned with:
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Many of the complaints raised by the mother on this appeal, notably in Grounds 10, 11, 13, 14 and 20, are directed to his Honour’s findings in relation to this matter of the effect on the child of separation from her mother, her
half-brother and her maternal grandmother. These findings (made by the acceptance of the submissions of the Independent Children’s Lawyer and also of the evidence of the Family Consultant) are significant and effectively operate to dispose of the grounds just mentioned (particularly Ground 13, which is the only one of the grounds in question not based solely on weight):267.In relation to the considerations embraced by s.60CC(3)(d), I accept the submissions of the ICL, which are to the following effect. The orders proposed by the Father will likely have a significant impact on [X], and notably her relationships with her Mother, the maternal Grandmother and her brother, [Z]. However, not only is there no evidence that her relationship with each of these persons is not secure; to the contrary, the evidence of the Family Consultant confirms that these are secure relationships for [X].
268.On the other hand, there is some risk to the Father’s relationship with [X] while-ever she remains living with her Mother, according to the Father’s evidence, that of [Ms K], and that given by the Family Consultant. I formed the same view very clearly in the light of the Mother’s long stint in the witness box. As I have noted on a number of occasions, I found her evidence to be very concerning. For the Mother, attention to detail and truth was a disposable commodity. Further, she lacks significant insight into the consequences of her conduct, particularly with respect to proper, basic prudential parenting.
269. I have no confidence at all that the Mother would promote [X’s] relationship with her Father. Indeed, I consider that while-ever [X] attends her current school, the Mother will endeavour to disrupt her daughter’s schooling with a view to frustrating the Father until ultimately, he will succumb, out of fatigue and or exasperation of the contest, with the Mother’s wishes. Likewise, I have no confidence at all that the Mother will desist from making outrageous allegations against the Father (and possibly [Ms K]), which will continue to require [the police force which employs the father] to expend further resources on them. Indeed, as noted at the end of this judgment, the Mother has continued this appalling cycle of allegation, complaint and investigation.
In relation to the capacity of the parents to provide for the needs of the child
(s 60CC(3)(f)), which is a matter which has obvious relevance to his final determination, his Honour found (again by way of acceptance of the Independent Children’s Lawyer submissions):271. I accept the ICL’s submissions that there are no issues regarding the parents being able to provide for the physical and intellectual needs of [X]. I share the concern about the Mother’s ability to provide for the child’s psychological needs.
Finally, in relation to s 60CC(3)(i) which is concerned with “the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents”, his Honour concluded:
273. In my view, in relation to s.60CC(3)(i), the [Independent Children’s Lawyer] rightly expresses significant concern about the Mother’s attitude towards parenting, particularly in her having with-held the child from the Father, refusing to consult with him, and her general intransigent attitude towards [X’s] school. Moreover, little seemed to have changed in the Mother’s attitude on any of these matters following the release of the Family Report. And as noted a number of times in the course of these reasons, the Mother’s evidence at trial often showed significant lack of insight into the impact of her conduct on [X].
Early in these reasons, we set out the four paragraphs ([277] to [280]) from
his Honour’s reasons where he can be read as reaching his conclusion in relation to the s 60CC matters. For the convenience of the reader, we repeat those paragraphs here:277. In my view, the Mother’s conduct, particularly in claiming
(and continuing to claim) that she and [X] were stalked by the Father when he was clearly in Melbourne, and where he provided clear, cogent and incontrovertible documentary evidence that this was the case, is a matter of very grave concern to me. Her abject refusal to accept the evidence, and also to claim that it had been concocted by the Father, and that he has hacked her emails
(with the Mother never having provided a jot of evidence to support this often-made allegation), is no less concerning. She exhibited an alarming inability to face any reality that did not suit her own purposes.278.In the light of the detailed evidence before the Court, in my view it is clear that the parties are unable to communicate; they are unable to trust each other. The Mother has made, and continues to make, unfounded accusations against the Father. The parenting relationship is severely fractured, and to mix medical metaphors, it is severely poisoned. While-ever the Mother continues with conduct that she has exhibited over the past 12 months or so, I have the gravest doubts that the parenting relationship can or could be repaired. As such, the presumption of equal shared parental responsibility, pursuant to s.61DA of the Act, is clearly rebutted. An order for sole parental responsibility must be made in favour of the Father. In my view, the actions of the Mother have decidedly led to this result. I fear that, in the light of her evidence, she will not accept such a judgment. As she has done with almost everything else, it will be sheeted home to someone else, particularly the Father and his partner, [Ms K]. She will not accept any responsibility for either her actions or the consequences that must necessarily flow from them.
279.With such an order having been made, it is unnecessary to consider the terms and operation of s.65DAA.
280.In my view, the orders as sought by the Father are in [X’s] best interests.
The first two of these four paragraphs confirm what will have emerged from our analysis of the earlier passages of his Honour’s judgment, being the seriousness of his concerns regarding the mother’s credibility. In our view, it certainly cannot be asserted (as Ground 8 endeavours to do) that undue weight was placed by his Honour on those concerns.
Moreover, those two paragraphs confirm another matter which will also have emerged from our analysis of the earlier passages of his Honour’s judgment, being that there were a range of other concerns regarding the mother, apart from the issue of her lack of credibility, which supported the making of orders which vested sole parental responsibility in the father and required
that the child should live with him. It cannot, in our view, be asserted
(as Grounds 7 and 8 endeavour to do) that those orders were “plainly unreasonable” or “manifestly unjust” or that they were made simply to punish the mother for her lack of credibility.In connection with the last of the above four paragraphs (being [280]), in which his Honour simply said that “the orders as sought by the Father” were in the child’s best interests, it needs to be said that there was criticism in the mother’s written submissions directed to Ground 7 that his Honour had provided no reasons for making all of the orders sought by the father, some of which were unduly restrictive for the mother (eg. the requirement that the child have her own bedroom when visiting the mother).
It may well have been desirable for his Honour to provide some explanation for orders which while they might be described as ancillary in nature to his main orders, might nevertheless be regarded as onerous to either party. However, in the absence of any ground of appeal directed to the adequacy of his Honour’s reasons, and thus of any submissions in support of such a ground, we would not be disposed to interfere with the ancillary-type orders made by his Honour particularly in the circumstances of this case.
Conclusion in relation to the appeal against the final parenting orders
It should be clear from what we have already written, that we have found no merit in the three grounds of appeal which are concerned with matters other than matters of weight (being Grounds 7, 8 and 13).
It will also be seen that we have addressed all but one of the grounds which are concerned with matters of weight, and we have found no substance in the grounds addressed. The one ground directed to weight to which we have so far not referred is Ground 15. That ground asserts that his Honour placed insufficient weight on the fact that the father had made no criticisms of any substance of the mother’s care of the child since birth. It does appear that this was not a matter referred to by his Honour in his reasons. However, given all the other matters canvassed in his reasons which support the final parenting orders which he made, we would not be prepared to interfere with his orders on account only of this apparent omission.
We have not so far addressed Ground 9 other than to explain that it was said by counsel for the mother to particularise the complaint in Ground 8 (being that undue weight was placed by his Honour on his adverse credit findings against the mother to the extent that his orders were punitive to her). We have already concluded that the complaint in Ground 8 is without substance. In any event, however, Ground 9 could not succeed for the reason that it is directed to a notation, and a mere notation cannot be the subject of an appeal.
Therefore, as none of the grounds of appeal or the complaints contained in them have been found to have substance, the appeal against the final parenting orders must be dismissed.
The appeal against the order concerning schooling made on 20 December 2013
As already explained at the commencement of these reasons, on
20 December 2013 Judge Neville made interim parenting orders providing for the parents to have equal shared parental responsibility for the child and for her to spend four nights each fortnight with the father. Those orders were clearly based on the understanding that the child would continue to live with the mother. At the same time his Honour ordered on a final basis that the child should attend the school which the father wanted her to attend.Also as already explained, the mother was granted an extension of time to file an appeal against the orders made on 20 December 2013, but as argued the appeal was only directed to the final order concerning the school which the child is to attend.
His Honour published relatively lengthy reasons for both his interim parenting and final schooling orders made on 20 December 2013. Given the view which we take in relation to the appeal against the schooling order, it is unnecessary that we refer in any detail to his Honour’s reasons for his orders, although it is perhaps useful to explain that the essential reason for the schooling order related to the parties’ respective financial capacities to pay the much more expensive fees at the school favoured by the mother.
We also consider it unnecessary to set out the seven grounds of the mother’s appeal directed to the schooling order. We need only say that in essence they challenge the making of a final order concerning schooling arrangements in the context of an interim hearing conducted on the papers, and in circumstances in which final parenting orders were yet to be made.
It was clearly an appealable error to make final parenting orders in relation to the school which the child was to attend when final parenting orders, including orders concerning parental responsibility and the residence of the child, had yet to be made.
It might well be thought, however, that the fact that the father was ultimately granted sole parental responsibility for the child, and also the fact that the child was already attending the school favoured by the father, would render moot the appeal against the order requiring on a final basis that she attend that particular school. If the appeal was rendered moot, it would have to be dismissed.
However, before us an issue emerged as to whether this existing final schooling order would restrict the capacity which the father would otherwise have under his sole parental responsibility order to change the child’s school, should he consider it necessary to do so.
In these circumstances and while not deciding whether the father would be so restricted in the way suggested, we propose to allow the appeal against the schooling order and to set aside that order.
Costs of these appeals
At the conclusion of the hearing of these appeals, we received submissions in relation to the costs of both appeals.
In relation to the costs of the appeal against the final parenting orders, we consider that an order that the mother pay the father’s costs of that appeal would be justified given her lack of success on that appeal. We take this view notwithstanding the mother’s financial position but having regard also to the father’s financial position.
However, we do not consider that any order in favour of the Independent Children’s Lawyer would be justified.
In relation to the costs of the appeal against the schooling order, we do not consider that the circumstances would justify an order for costs in favour of any party (including the Independent Children’s Lawyer), but we would be prepared to grant costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to both the appellant mother and the respondent father.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Aldridge JJ) delivered on 23 December 2015.
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