Denny & Denny
[2008] FamCAFC 181
•27 November 2008
FAMILY COURT OF AUSTRALIA
| DENNY & DENNY | [2008] FamCAFC 181 |
| FAMILY LAW - APPEAL – From decision of a Federal Magistrate – CHILDREN – Where the Federal Magistrate ordered that the child live with the mother and spend substantial and significant time with the father – Whether the Federal Magistrate gave appropriate weight and consideration to the evidence – Whether the Federal Magistrate made appealable factual errors – Whether the Federal Magistrate erred in the exercise of discretion – Whether the Federal Magistrate properly applied the relevant provisions of Part VII of the Family Law Act 1975 as required – Whether the Federal Magistrate properly considered an application pursuant to s 118 of the Family Law Act 1975 – Whether the Federal Magistrate failed to accord natural justice to the mother - No merit found in the grounds of appeal - appeal dismissed. FAMILY LAW - APPEAL – From decision of a Federal Magistrate – COSTS – Where the Federal Magistrate ordered that the mother pay the father’s costs in bringing a partly successful contravention application – Whether the Federal Magistrate erred in the exercise of discretion – Whether the Federal Magistrate failed to properly consider the mother’s financial situation – Whether the order was against the best interests of the child – No merit found in the grounds of appeal - appeal dismissed. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Goode & Goode (2006) FLC 93-286 House v The King (1936) 55 CLR 499 Australian Coal and Shale Employees' Federation v Cth (1953) 94 CLR 621http://thomsonnxt4/links/Handler.aspx?tag=fc076f5ddc732495947f765f1a5541ef&product=cl Gronow v Gronow (1979) 144 CLR 513 Mallet v Mallet (1984) 156 CLR 605 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Bennett and Bennett (1991) FLC 92-191 Bellenden (formerly Satterthwaite) vSatterthwaite (1948) 1 All ER 343 Norbis v Norbis(1986) 161 CLR 513 Lovell v Lovell (1950) 81 CLR 513 Penfold v Penfold(1980) 144 CLR 311 |
| APPELLANT: | Mrs Denny |
| RESPONDENT: | Mr Denny |
| FILE NUMBER FOR FIRST APPEAL: | DGM | 3905 | of | 2005 |
| FILE NUMBER FOR SECOND APPEAL: | MLC | 11984 | of | 2007 |
| FIRST APPEAL NUMBER: | SA | 73 | of | 2007 |
| SECOND APPEAL NUMBER: | SA | 108 | of | 2007 |
| DATE DELIVERED: | 27 November 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Mushin J |
| HEARING DATE: | 7 May 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 23 July 2007; 11 December 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 462; [2007] FMCAfam 1098 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | N/A |
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
That the mother’s appeal filed on 20 August 2007, as amended on 22 February 2008, against the orders of Federal Magistrate O’Sullivan made on 23 July 2007 be and is hereby dismissed.
That the mother’s appeal filed on 12 December 2007 against the orders of Federal Magistrate McInnis made on 11 December 2007 be and is hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Denny & Denny is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 73 of 2007 and SA 108 of 2007
File Number: DGM 3905 of 2005 and MLC 11984 of 2007
| Mrs Denny |
Appellant
And
| Mr Denny |
Respondent
REASONS FOR JUDGMENT
Introduction
These two appeals by the mother were both argued before me by direction of Bryant CJ pursuant to s 94AAA(3) of the Family Law Act (1975) (“the Act”).
The first of these appeals (“the Substantive Appeal”) challenges certain paragraphs of final parenting orders made by O’Sullivan FM on 23 July 2007, which relate to the time the child is to spend with the father, telephone communication between the mother and the child during periods when the child is spending time with the father, the changeover location and the use of a communication book.
The second of the mother’s appeals (“the Costs Appeal”) challenges an order made by McInnis FM on 11 December 2007 which provided that the mother pay a portion of the father’s costs in bringing a successful Contravention Application against the mother in respect of her breach of certain paragraphs of the orders made by O’Sullivan FM referred to above.
Both parties were self-represented at the hearing of this appeal.
Despite many of her grounds of appeal challenging the Federal Magistrate’s factual findings and treatment of the evidence at trial, the mother has failed to produce the transcripts of those proceedings because, she says, she could not afford to do so. However, an excerpt of the transcript of proceedings before McInnis FM was put before me on the day of the hearing of the appeal.
During directions hearings in preparation of the appeals before Kay J on 12 December 20007 and myself on 8 February 2008 and 20 March 2008, the mother was warned that her ability to advance arguments with respect to their Honours’ findings on the evidence would be very difficult to establish without the aid of the transcript. That proposition was recorded in the respective orders. Nevertheless, the mother has largely failed to produce the transcripts resulting in the difficulties referred to below.
Background Facts
The parties married in Bulgaria on … February 2000, moved to Australia in September 2000 and finally separated on … December 2003.
There is one child of the marriage, L, born on … December 2002 who is presently aged 5 years and living in the primary care of the mother. L is the subject of these proceedings
At trial, the father had re-partnered and was living with his partner and her son. The mother had not re-partnered.
On 10 May 2004, some five months after separation, interim consent orders were made with respect to parenting which provided, inter alia, that the child live with the mother and have contact (as it then was) with the father.
On 10 March 2005, Brown J made final parenting orders which provided that the child live with the mother and have contact with the father each alternate weekend, for substantial periods during school holidays and for certain specified periods on special days. Her Honour also made final orders determining applications for alteration of property interests.
On 19 January 2006, upon the father’s application, Riethmuller FM found that the mother had contravened the orders of Brown J on eight occasions without reasonable excuse. His Honour ordered that the mother enter into a bond for 12 months requiring her to be of good behaviour, to attend upon a counsellor no less than once per month and to attend a post separation parenting program.
On 12 June 2007, the father filed an Amended Application for Final Orders, being the initiating application for the proceedings which are the subject of the substantive appeal.
Federal Magistrate O’Sullivan heard the trial on 21 and 22 June 2007. His Honour made final orders on 23 July 2007 providing, inter alia, that the child live with the mother and spend substantial and significant time with the father, namely six nights per fortnight. Certain paragraphs of these orders are the subject of the mother’s substantive appeal.
The father then brought a contravention application with respect to those orders of O’Sullivan FM alleging eight separate contraventions. On 11 November 2007, that application came before McInnis FM who found that the mother had contravened the orders on five occasions without reasonable excuse. These contraventions consisted of failing to deliver the child to changeover punctually on three occasions, failing to deliver the child to changeover at all on one occasion and abusing, insulting, belittling and degrading the father in the presence of the child. His Honour ordered that the mother be placed on a good behaviour bond in the sum of $100.00 for a period of twelve months and that she pay the father’s costs of the application fixed in the sum of $990.00 within three months of the date of his Honour’s order. The latter order is the subject of the costs appeal.
Application to Adduce Fresh Evidence
At the hearing of the appeal, the mother applied to adduce fresh evidence. Her Application in a Case and affidavit in support were received by the court late on the afternoon prior to the hearing. She sought leave to file it at the commencement of the hearing. Having been given an opportunity to read it, the father submitted that it should not be received because it was irrelevant and inadmissible. He also objected to its late filing.
The mother replied as follows:
In fact it’s very admissible because the evidence is so relevant to this appeal. It’s in fact about our child. I’m entitled to submit further evidence because we’re talking here about our daughter. I believe that everything is admissible in fact because it has relate - it’s related to the appeal as well, some of the orders I’m asking for which haven’t been considered by the magistrate. So I’m commenting on some of the points - the orders I’m asking for. Yes, so I believe it is admissible.
…
I believe this should be considered because it’s been already since 2006 he filed his custody, his ridiculous custody application. It’s been - we are now in 2008, it’s been some time you know, things have happened. So, you know, I sat down and I wrote this having in consideration what’s best for our daughter.
I rejected the mother’s application to adduce further evidence, indicating that I would give reasons for that decision in my reasons for judgment. Accordingly, I now provide those reasons.
Section 93A(2) of the Act provides the discretionary power for an appellate court to receive further evidence upon questions of fact. In CDJ v VAJ (1998) 197 CLR 172, the majority of the High Court identified several factors which may be taken into account in exercising the discretion to allow further evidence. These factors include:
· the need for finality of litigation;
· whether the evidence was available at trial;
· whether the failure to call the evidence at trial was as a result of a wilful omission or innocent mistake;
· whether the further evidence is disputed; and
· whether the evidence relates to matters occurring after the trial (remembering that the appeal must be decided on the law and facts as they exist at the date of the appeal if appealable error is discovered by the Full Court); and
· the nature of the case.
Their Honours further held (at p 202) that:
…it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor 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 the 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 expense, inconvenience and worry of a new trial.
Turning now to an analysis of the mother’s affidavit outlining the fresh evidence she sought to adduce, I note that:
·much of the evidence is highly contentious. For example the mother asserts that “the husband is neglecting [the child]” and that he “leaves [the child] in the care of strangers” and, referring to VCAT proceedings without any corroborative tribunal documents, she further alleges that “[t]he violence I did suffer at the hands of the husband has been finally recognized [sic] in the court system”;
·some of the evidence concerns allegations of events prior to trial including those that were before his Honour and were satisfactorily dealt with in his Honour’s reasons for judgment, for example the mother’s complaints about the Contact Report which I will address in due course;
·other parts of the evidence concern events that occurred after the trial which if admitted would not have changed the result, for example alleging that the child returned from spending time with the father suffering from “bad sunburn” and various other ailments, and detailing continuing communication problems between the parties which are consistent with the findings made at trial;
·other parts of the evidence are argumentative, for example asserting that the father feeds the child “junk food” and stating “I believe that the husband should be stopped from his hysteria using the court system against me – COURT ABUSE [sic], trying to get back at me.”;
·other parts of the evidence are irrelevant, for example relating to the mother’s alleged complaints against the police; and
·other parts of the evidence are inadmissible, for example referring to mediation attempts.
In addition to the above matters, these proceedings have been before the Court for in excess of four years, making the need for finality an important factor. Taking all those matters into account, I determined that the application to adduce further evidence should be dismissed.
The Substantive Appeal
The Trial
At trial both parties were legally represented and the child was represented by an Independent Children’s Lawyer (“ICL”).
The father sought orders providing, inter alia, that the child live with him; that there be equal shared parental responsibility; that the child spend time with the mother each alternate weekend from Friday afternoon until Monday morning and on Thursday night in the other week, for half of school term holidays and for certain periods on special days, namely Christmas, Mother’s Day and Father’s Day. The father’s evidence, as accepted by his Honour, was that he filed his application as he “did not believe the mother [was] able to promote a relationship between [the child] and [himself]”; he thought the child would be “better off in a happy environment” and, additionally, because of his view that the mother’s “aggression towards” him had “impacted upon [the child’s] emotional well being”.
The mother sought, inter alia, that the child continue to live with her; that she spend time with the father largely in accordance with the orders of Brown J (namely each alternate weekend), but that certain paragraphs of her Honour’s orders providing that the child spend two periods of 7 consecutive days with the father each year until she commences school be suspended and thereafter that she spend one week in each school term holiday period and two weeks in each summer school holiday period with the father. The mother therefore sought that the father’s time with the child be reduced. The mother further sought that the father be declared a vexatious litigant and not be permitted to file any further application without leave of the Court.
Federal Magistrate O’Sullivan’s Reasons for Judgment
Federal Magistrate O’Sullivan delivered comprehensive reasons for judgment. Having set out the background facts, his Honour gave a summary of relevant aspects of the litigation history of the matter. His Honour noted several of the findings made by Brown J in her reasons delivered on 10 March 2005 with respect to the parties, their relationship with the child and the level of conflict between them.
His Honour made negative findings with regard to the mother’s credibility in the following terms:
18.Even allowing for the obvious stress proceedings of this nature inevitably cause, the behaviour of the mother both during her evidence and whilst sitting in the well of the Court reflected poorly on her. There were repeated outbursts as other witnesses gave evidence.
19.On occasions whilst giving evidence the mother took the opportunity to denigrate the father rather than simply answer questions put to her.
At times the mother’s answers contradicted her earlier evidence, appeared designed to buttress her bona fides or strained the bounds of credulity. In this regard I note her evidence that she had learned her lesson and would control herself from now on.20.Moreover, and notwithstanding the manifestly valiant attempts by her Counsel to remind her of her obligations, whilst she was sitting in the well of the Court it was necessary for the Court to also indicate that should she not refrain from making comment or interruptions, during the evidence of other witnesses, she would be removed.
His Honour made positive findings in relation to the father’s credit as follows:
21.In contrast, the father appeared open and honest in his evidence.
I found him a credible witness who tried to answer every question fully and honestly.His Honour then noted the paramountcy of the best interests of the child.
His Honour then summarised the various reports which were in evidence before him consisting of:
·a report from the Contact Service at which changeovers had occurred pursuant to Orders made on January 2006 (“the Contact Report”);
·a Family Report; and
·a Psychiatric Report being an assessment of both parties.
His Honour noted that the Psychiatric Report was “taken into evidence without objection”. His Honour referred to the Contact Report as having “been requested by and paid for by the father” and stated:
26.... The Contact Report noted the mother was not in agreement with the Contact Centre providing the Contact Report and that on several occasions including during the writing of the Contact Report the mother had expressed dissatisfaction with the Contact Centre.
His Honour referred to the Family Report which noted that:
33.… the observations made during the preparation of the Family Report were “very limited compared with the seven months of observation by the contact service.” This was a reference to the Contact Report…
His Honour then set out each party’s proposed orders and a summary of their evidence, together with the evidence of the Family Reporter.
With respect to the father, his Honour found:
56.The consistent theme throughout the father’s evidence was his stated (and I am satisfied) genuinely held concerns about the mother’s behaviour and the impact of that behaviour on the child.
57.As set out earlier the father impressed in his evidence consistent with the observations in the Psychiatric Report that he was “certainly someone… appropriate to be the custodial parent.”
However, his Honour stated that “It became clear… that [the father] hadn’t considered the impact on the mother were his application for the child to live with him to succeed” and that “it was clear the father had not turned his mind to the practicalities of those arrangements [with respect to the child’s transport to and from school were she to live with him] and the impact of those on the child.”
His Honour accepted the evidence of the child’s godfather, called as a witness to the proceedings by the father, as to the “emotionally unstable and at worst totally unacceptable” behaviour of the mother at changeovers and the father having been calm at changeover. His Honour also briefly summarised the evidence of the father’s partner, although his Honour made no explicit findings with respect to this evidence.
In his discussion of the mother’s evidence, his Honour noted that the mother did not agree with either the Contact Report or the Family Report, to the extent that the latter was based on the former. His Honour noted that the mother raised issue with the way she perceives that she was treated by the Contact Service staff and with the veracity and legitimacy of the Report given that, on her evidence, it was based on observation of “fifty minutes time altogether.” His Honour further cited the mother’s evidence that the father “proposed contact to occur at a Contact Centre” in order “to obtain a report that was favourable to him but which simply does not convey the truth [and that he then] used this Report as a strategy to continue with his residency application which has absolutely no merit”.
His Honour noted that the mother gave evidence “that she believed the father had used the court system to cause her further detriment emotionally and financially”; that she “had a low opinion of the father” but denied denigrating him in front of the child; and that she repudiated the “reservations of the father” and his witnesses about her care of the child. His Honour held:
76.The only reference in the mother’s oral evidence to the father’s positive role with the child appeared to be more of an afterthought than anything else and designed to buttress her proposed orders.
His Honour found that the mother’s denials that she “remained angry” were “not consistent with the other evidence including the matters set out in” records of Victoria Police relating to the mother’s criminal record and records of Relationships Australia relating to the parties’ use of the Contact Service.
His Honour noted that the Family Reporter considered that the matter was “very vexing” and “very difficult”. She ultimately recommended that the child should live with the mother and spend substantial and significant time with the father, being six nights per fortnight. His Honour further noted the Family Reporter’s evidence that “it was in [the child’s] best interests that she spend as much time as possible with the father.” These recommendations were supported by the ICL.
His Honour then set out and proceeded to apply the law with respect to determining parenting orders, referring to the relevant provisions of Part VII of the Act and the approach outlined by the Full Court in Goode & Goode (2006) FLC 93-286.
Whilst his Honour expressed concerns about the parties’ abilities to communicate and parent cooperatively, he noted that it was their mutual desire for there to be an order for equal shared parental responsibility and that there had been no suggestion by any of the parties, including the ICL, that the presumption in s 61DA should be rebutted. His Honour then found:
106. Given the recommendations of the report writer and the Independent Children’s Lawyer, having paid careful regard to all of the evidence in this case I am satisfied it is appropriate to apply the presumption.
His Honour then turned his mind to the question of equal time and found that such an arrangement would not be “either reasonably practicable, viable or in the child’s best interests”. His Honour referred to the father’s application that the child live with him and found:
112. The report writer’s evidence and the recommendations of the Independent Children’s Lawyer taken together were, decisive on the issue of the father’s application.
…
117.The evidence in this case is that the child is lucky to have what the father referred to as a “good mother”.
118.The evidence in this case indicates that the child is attached to both parents and her good relationship with her father can be maintained by spending substantial and significant time with him.
His Honour then proceeded on the basis that the child would live with the mother and turned to a consideration of whether the child ought to spend substantial and significant time with the father. His Honour undertook a thorough analysis, over nine pages of his judgment, of each of the relevant primary and additional considerations contained in s 60CC of the Act. His Honour’s discussion of these provisions may be summarised as follows:
·S 60CC(2)(a) - As to the primary consideration of the benefit to the child of having a meaningful relationship with her parents, his Honour noted that counsel for the father, in his closing submissions, acknowledged that the child has a meaningful and loving relationship with both parties. His Honour found with respect to the mother’s submissions that:
124.In a way the submissions on the mother’s behalf imply that the mother would not have a meaningful relationship with her daughter if she was living with her father and that she would lose her daughter were that to be the case.
His Honour held that he was “satisfied it is in this child’s best interests that she maintain a good relationship with her mother and her father” and stated:
128.I am satisfied that if the child lives with the mother and spends time with her father in accordance with the recommendations of the report writer and the Independent Children’s Lawyer that her good relationship with the father will be maintained and allowed to further develop and such an arrangement is in her best interests.
·S 60CC(2)(b) - As to the primary consideration of the need to protect the child from physical or psychological harm, his Honour noted the father’s submission that his application had been brought bona fides to protect the child from harm as well as the evidence of the report writer that “she didn’t believe the mother’s behaviour had had a long term impact on the child”. His Honour held:
133.Ultimately it is not possible to find on what is before me that either the mother’s emotional volubility or histrionic personality was having an adverse impact on the child such as to warrant the Court ordering that she move to live with her father.
134.Whilst the matter is finely balanced when regard is had to all the evidence including the evidence of the report writer I accept the recommendation of the Independent Children’s Lawyer that the child continue to live with the mother.
·S 60CC(3)(a) – child’s views – his Honour accepted the ICL’s unchallenged submission that this factor should be given little weight.
·S 60CC(3)(b) – nature of the relationships between the child and the parents – his Honour referred to submissions of both the ICL and the father that the child has a strong bond with each of the parents, noted that the overwhelming evidence was that the mother is a “good mother” and noted that “the child enjoys the support of the father’s extended family”.
·S 60CC(3)(c) – willingness and ability to facilitate and encourage a close relationship between the child and the other parent – his Honour held that he was “satisfied that the mother lacks insight into the effect that her ‘voluble’ personality might have on others including the impact that might have on the child’s relationship with the father”, but was “not prepared to find that she no [sic] insight into the effect of her behaviour on the child.” His Honour further stated:
Fortunately, the evidence of the report writer which I accept is that the impact of the conflict between these parties does not appear to have had a long term impact on the child according to the report writer (at least at this stage).
·S 60CC(3)(d) – likely effect of any change in the child’s circumstances – his Honour held that he was satisfied that this factor did not weigh against the recommendations made by the ICL and family reporter.
·S 60CC(3)(e) – practical difficulty and expense of spending time – his Honour found that this was not a relevant factor.
·S 60CC(3)(f) – capacity of each parent or other person to provide for the child’s needs – his Honour found that “this was a significant factor” and stated:
159.Whilst I accept that the mother is motivated to do the best that she can for the child I have concerns about her capacity to be able to successfully parent the child and allow her to achieve her full potential on the proposal she puts to the Court. The evidence of the report writer in this regard reinforced those reservations.
160.However, I also have concerns about the father’s proposal for the child to live with him. The Independent Children’s Lawyer noted in closing submissions that there were issues arising out of the father’s evidence concerning the day to day arrangements for the child were she to live with him and what would happen in relation to schooling and associated care arrangements as both the father and his partner were working.
·S 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and the parents – his Honour noted that “much was made during the hearing of the mother’s emotional volubility” and accepted the ICL’s submission that the mother had “significant problems dealing with her histrionic personality”. His Honour concluded:
166. … However, as to the effect of that personality on the child it is not possible to find on what is before me that either the mother’s emotional volubility or histrionic personality was having an adverse impact on the child such as to warrant the Court ordering that she move to live with her father. Neither the report writer nor the Independent Children’s Lawyer recommended to the contrary.
·S 60CC(3)(i) – the attitude each parent has demonstrated to the responsibilities of being a parent – his Honour found that “the parents do not communicate and have a poor relationship” and he accepted the ICL’s submission that “no order the Court could make could alter the attitude of the parents”.
·S 60CC(3)(j) and (k) – family violence – his Honour found that despite the reference to “incidents at changeover” and expired Intervention Orders throughout the trial, “neither party made any specific submission on this issue.”
·S 60CC(3)(m) – any other fact or circumstance – his Honour found that it was not necessary to consider any other fact or circumstance and that no party had suggested anything to the contrary.
·S 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child – his Honour stated “I do have some doubts about the prospect of further proceedings” and concluded:
174.Unfortunately, I have come to the conclusion that these parents have focused on the dispute rather than the ongoing needs of their child. I consider that it is unlikely that this will change and I expect that there will be difficulties with this family into the future.
175.However, I accept the Independent Children’s Lawyer [sic] submission that an order changing the residence of the child is more likely to lead to further proceedings.
·S 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent – his Honour deemed it unnecessary to “rehearse the matters” previously discussed in his reasons and concluded: “I accept the submission of the Independent Children’s Lawyer that neither party can tick all the boxed in relation to this consideration.”
Finally, His Honour held:
189.The key factors that lead me to make an order that the child continue to live with her mother [and spend 6 out of 14 nights with the father] are the recommendations of the report writer (which were supported by the Independent Children’s Lawyer) as well as the submissions of the Independent Children’s Lawyer.
…
200.Given the weight of the evidence of the experts in this matter as well as the recommendations of the report writer and the Independent Children’s Lawyer I am satisfied that the orders set out at the beginning of these reasons are in the child’s best interests.
In addition, his Honour gave consideration to the practicability of his orders with respect to the parties’ communication and cooperation with one another and, concluded that it was appropriate that there be an order providing for the use of a communication book. His Honour’s reasons for this were stated as follows:
103.The evidence in this case concerning the relationship between the father and the mother is such that there must be reservations regarding their ability to effectively co-parent this child into the future.
104.It appears common cause that these parents cannot come into contact without the situation rapidly spiralling out of control. Whilst there was agreement on this issue the parties nonetheless maintained that they should have equal shared parental responsibility for the child. This issue is puzzling given, by way of example the evidence of the father that he couldn’t (and hadn’t) discuss[ed] issues of the child’s schooling with the mother and the behaviour of the mother more generally.
105.Nonetheless, given their determination to exercise equal shared parental responsibility and the recommendations of the contained [sic] in the Family Report, the Psychiatric Report and of the Independent Children’s Lawyer. I am satisfied they should use a communication book and there be a process for resolving disputes about these orders.
With respect to his Honour’s orders in relation to the changeover location, which the mother has also sought to challenge by this appeal, his Honour’s reasons are as follows:
193.The Independent Children’s Lawyer’s recommendations were made notwithstanding that it was submitted that it appeared these parties had not moved on since the proceedings in 2005 and that it was almost “guaranteed that there would be intractable conflict into the future.”
194.The frank submission made on behalf of the Independent Children’s Lawyer in closing was that it appeared on the evidence that even the intervention of a professional contact changeover service had failed to address the possibility of conflict between these adults at changeover.
195.Accordingly, it was submitted that the only alternative was the parties not come into contact with each other and where changeover wasn’t being effected at the child’s kinder or school it be at a police station. I accept this recommendation…
The Grounds of Appeal and Orders Sought
In her Amended Notice of Appeal filed on 22 February 2008, the mother indicated that the orders she sought to challenge were paragraphs 4(a), (d), (f), (j); 5; 6; and 12 of O’Sullivan FM’s orders, which are as follows:
(4)That the child spend time and communicate with the father:
(a)Each alternate week from the conclusion of kindergarten or school on Thursday (and if on a non school day, 3.30 pm) until the commencement of kindergarten or school on Tuesday;
…
(d)On the father’s birthday for not less than 3 hours by agreement, failing agreement from 4.00 pm until 7.00 pm;
…
(f)In 2007 and each odd numbered year thereafter from 3.00 pm Christmas Day until 3.00 pm Boxing Day;
…
(j)During the period of Greek Easter from 3.00 pm Sunday until 3.00 pm Easter Monday;
…
(5)When the child is spending time with the father the mother may telephone the child from 6.00 pm and 6.30 pm.
(6)That changeover for the purposes of time spent in paragraph 4 herein occur at the child’s kindergarten or school, however if it falls on a non kindergarten or school day then changeover occur at the Narre Warren Police Station.
…
(12)The parties forthwith commence and maintain a communication book with respect to the said child, which book shall travel with the said child between the parties’ respective places of residence.
The mother’s grounds of appeal are as follows:
1.The Magistrate has made some serious errors in his Judgement [sic] in recording and interpreting the facts as they were presented before him in the documents filed in these proceedings.
2.There are many contradictions in the Reports filed in these proceedings which are not recognised or noted.
3.The Magistrate contradicts himself with his Judgement [sic] – e.g. on one hand saying 10 times that all the evidence proves that I am a good mother, and on the other – making hurtful, insulting comments against me.
4.There are many errors in facts and inconsistencies recorded in the Judgement.
5.The Magistrate has obviously failed to serve me with the natural justice I deserve.
6.The immaturity, irresponsibility of the [father] and the fact that the [father] has made a fool of himself (recording the Judgement [sic]) have not been acknowledged by the Magistrate.
7.The deliberate, false “evidence” of the [father]’s “witnesses” [sic] have been recorded in the Judgement [sic], but not my response to it or the documents and the evidence I provided.
8.Wrong exercise of discretion in a few places in the Judgement [sic].
9.The Magistrate has taken into consideration a lot of the documents and evidence on the side of the [father] only. This is because the Family reporter [sic] has taken into consideration the [father]’s documents only. (I had no [sic] prepared documents on my behalf at that stage when the Family report was done.)
10.The Magistrate has failed to apply properly to this case s. 61DA, 60B, s 65DAA and s. 60CC.
11.It has not been recognised in the Judgement [sic] that the bottom line is that these are VINDICTIVE, VEXATIOUS PROCEEDINGS [sic] designed to hurt me and get back at me! Looking at the whole case and long history of endless proceedings proves the obvious truth.
12.I have filed this Appeal more to prevent ANY [sic] further proceedings in the future initiated by the [father] like always. I AM SICK AND TIRED OF VEXATIOUS COURT PROCEEDINGS [sic], all I want is to get on with my life and make the best out of it for the sake of my loving child [L].
Under Part E the mother expressed the orders she seeks as follows:
1.That I accept the Orders of FM O’Sullivan only because they incorporate the new reforms in the Family Law Act, not because I believe they are justified.
2.That BY CONSENT [sic] the orders be very similar to the current orders with the following small changes:
(4)(a)Each alternate week from the conclusion of school on Thursday (and if on a non school day, 3:30pm) until the commencement of school on Monday;
(4)(d)On the mother’s and father’s birthday [sic] by agreement, failing agreement after shool [sic] (3:30 pm) or if it falls on a weekend from 3:30 pm until commencement of school or 11 am on the next day.
(4)(f) For half of all school term holidays by agreement, failing agreement for the second week; Contact during the summer holidays to be no more than 4consecutive [sic] days on every weekend in the second half.
(4)(j)Amendment: It is not Greek Easter, it is Eastern Orthodox Easter.
(5) When the child is spending time with the father the mother may telephone the child at any reasonable time and the father provide the mother with an alternative landline phone number to do so.
(6)That changeover when not at the school to occur at Casey Arc Aquatic Centre near reception area.
(12)That the parties communicate by phone or email. That the use of communication book be suspended.
FURTHER ORDERS SOUGHT
(23)That the father not be permitted to file any further unnecessary application to the Court.
(24)That the father pay the mother’s costs of $12,000 of an [sic] incidental to the proceedings and deposit this money into an account opened for the benefit of the child …
(25)That the father pay assessed child support on every 15th of each month for that particular month into the mother’s bank account.
(26)That if [the child] has to attend any lessons, activities, social events, functions or whatever else in her best interests, the father be cooperative in making any alternative contact arrangements or take the child himself to any arranged lessons or activities.
(27)That the father sign all such documents and do all such things to release the funds (approx.$700) held by the Australian Scholarship Group to the mother and the mother to use [sic] this money to pay for extra curricular activities and lessons for [the child].
(28)That the father attend a Post Separation Parenting Program, run by the Family Mediation Centre and provide a Certificate of Completion to the mother.
(29)That in the event of any future issue in relation to the parenting of the child [L], the parties make all reasonable attempt and effort to resolve it themselves by respectful and cooperative communication.
(30)That the mother be responsible for enrolling the child in any extra curricular activities and lessons and the cost be equally shared.
4.That I am respectfully seeking the Orders to be amended as per the Orders sought in my Appeal WITHOUT [sic] any further hearing.
Discussion
I turn to an examination of each of the mother’s grounds of appeal. For convenience, I have grouped together various similar grounds.
By way of preliminary point, I note that the onus is on the mother to establish her grounds of appeal. (See House v The King (1936) 55 CLR 499; Australian Coal and Shale Employees' Federation v Cth (1953) 94 CLR 621http://thomsonnxt4/links/Handler.aspx?tag=fc076f5ddc732495947f765f1a5541ef&product=cl, at 627 per Kitto J; Gronow v Gronow (1979) 144 CLR 513 at 519-20, 537-8 per Stephen J and Aickin J respectively; Mallet v Mallet (1984) 156 CLR 605 at 614-15, 622 per Gibbs CJ and Mason J respectively; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 per Mason J). As she was previously warned, without the transcript she was unable to prove any appealable factual error.
Grounds 1 and 4
These two grounds of appeal relate to the Federal Magistrate’s factual findings and his consideration of the evidence before him.
At the hearing of this appeal, the mother spent the bulk of her time addressing ground one. The gist of the mother’s argument was that the Federal Magistrate:
·did not consider her evidence and the “clear explanations” given in her affidavits;
·said offensive things about her which had no basis;
·had not interpreted the facts as they should have been interpreted; and
·the proceedings were a “farce”.
Further, the mother submitted that she felt humiliated by the judgment which she conceded that she had not read in its entirety because it upset her.
On several occasions, I invited the mother to specify factual findings which she submitted were in error or were the subject of incorrect interpretation of the evidence by his Honour. Notwithstanding this request, the mother’s submissions were for the most part very generalised and often irrelevant to the issue at hand. The specific facts that the mother was able to point to were in part:
·his Honour’s response to the parties’ submissions about the child’s clothing to which his Honour allegedly responded by saying “this is not a fashion discussion”; and
·his Honour’s findings in paragraphs 17 – 20 of his reasons for judgment quoted above in which the mother asserted that his Honour incorrectly said the mother made “repeated outbursts” during the proceedings and made “such big comments” about her behaviour.
The above points require the production of the transcript of proceedings and in its absence must fail.
In addition the mother referred to the contents of paragraphs 28 to 30 of the judgment in which his Honour referred to evidence of threats made by the mother to the Contact Centre and to records of criminal charges against the mother. The relevant exhibits have been produced. They do in fact support his Honour’s findings. Accordingly, this point must fail.
Finally, the mother submitted that his Honour was in error with respect to certain facts contained within the Contact Report. Essentially, the mother submitted that his Honour erred by making factual findings which were based on this report because, essentially,:
·the Contact Report was biased because the Contact Centre was instructed by the father’s solicitor and the report was written for the father’s benefit;
·the evidence contained in the Contact Report was unreliable and, in part, false because most of the evidence contained in the Report was provided by one worker who did not “get on” with the mother from the start;
·the observations which gave rise to the Contact Report were limited, being only 16 or so occasions of 5 minutes duration each; and
·his Honour did not consider the mother’s explanation for the events and behaviour recorded in the Contact Report.
His Honour in his reasons for judgment stated:
68. The mother deposed that:
“The father was the one who originally proposed contact to occur at a Contact Centre and I believe his reason for doing so was to obtain a report that was favourable to him but which simply does not convey the truth. The father then used this Report as a strategy to continue with his residency application which has absolutely no merit.” [Footnotes omitted]
69.The mother took issue with the validity of the observations in the Contact Report which she said was based on “fifty minutes time altogether”.
70.The mother’s evidence regarding the child’s distress at the Contact Service was:
“…it may be true that [the child] was upset on some occasions. This only happened at the Contact Centre. At the time, in the state of mind I was due to physical and emotional pain, I thought that the father was “poisoning” her against me. After we stopped having changeover at the Contact Centre in August and I was picking [the child] up from her child care centre she was absolutely fine.
…
When I saw [the child] was upset I was heartbroken. One of the contact workers in particular, who has provided most of the “observation” for the Report treated me in an arrogant manner from the beginning and really hurt my feelings.
…
I expected to be treated with empathy and compassion… Instead I felt that I was being “watched” at all time as though I was not a good person.”
71.The mother’s evidence was she didn’t agree with the Contact Report or the Family Report. In relation to the latter the mother’s evidence was that was because it was based on the observations of the Contact Centre workers and the Contact Report. [footnotes omitted]
The mother’s evidence summarised by the Federal Magistrate, as quoted above, largely reflects the submissions she made before me. The above quoted paragraphs establish that his Honour has properly taken into consideration the mother’s evidence and “explanations” with respect to the Contact Report. His Honour was entitled to accept the evidence before him. Again, in the absence of the transcript the mother is unable to establish any error.
I note also that in her written summary of argument, the mother additionally sought to challenge the Contact Report on the basis that it contained hearsay evidence. This challenge has no basis. The proceedings were heard under Division 12A of the Act, as the initiating application was filed after 1 July 2006, and hence, pursuant to s 69ZT(1)(c) of the Act, Part 3.2 of the Evidence Act 1995 which relates to hearsay evidence does not apply unless the trial Judge determines otherwise in accordance with s 69ZT(3).
Accordingly, grounds one and four must be dismissed.
Ground 2
This ground relates to the Federal Magistrate’s alleged failure to recognise what, the mother submits, are contradictions in the Reports that were in evidence before his Honour.
As I have already discussed, there is nothing in the reasons which persuades me that his Honour made any error in his consideration of the Contact Report and without recourse to the transcript the mother’s challenge in this respect must fail.
With respect to the Family Report, the mother provided no particularity as to the contradictions she says exist therein. Rather, she submitted that one could not understand how the Reporter came to the conclusions and recommendations she did, given the many examples throughout the Family Report where positive statements about and observations of the mother were made. The mother submitted that the Federal Magistrate took into account only the “negative side of the Family Report” and failed to consider the positive observations contained therein.
His Honour was engaged in a process of weighing the qualities of two parents with competing “lives with” applications where the expert evidence before him stated that both parents were capable of being the resident parent, while noting that there were concerns with respect to the mother’s care but not – at least to the same extent – with that of the father. In this context his Honour’s treatment of the Family Report was open to him. Further, I note that his Honour’s conclusions were that the mother is a “good mother” and he made orders that she be the resident parent.
Each of the challenged reports were before me on appeal and I have read and considered them both. They both contain observations and analysis of the mother which is critical of her as well as those which are positive. Given the evidence that both parents were capable of being the resident parent, it is largely the critical comments which are the distinguishing features and, given that some of those are prima facie quite concerning, I find that it was reasonably open to his Honour to summarise and consider the evidence in the way he did. The mother was represented by legal counsel who cross-examined the Family Report writer and had the opportunity to challenge the admissibility of the Contact Report and to call the Contact Centre staff as witnesses in the proceedings. Without the aid of transcript the mother has not established that his Honour has not appropriately dealt with the substance of any such cross-examination or submissions on her behalf. This ground of appeal must therefore fail.
Ground 3
This ground relates to the mother’s assertions that his Honour’s reasons for judgment contain contradictions. Save for what I have already dealt with above, nowhere in her Notice of Appeal, her written summary of argument or her oral submissions did the mother particularise those contradictions. I again note that the mother conceded at the hearing of this appeal that she had not read the judgment in its entirety.
Despite my pointing out to the mother on several occasions during her submissions that she needed to particularise those contradictions, she failed to do so. Accordingly, the mother has failed to make out this ground.
Grounds 5
This ground relates to the mother allegedly having been denied natural justice.
In her written summary of argument the mother submitted:
19)I did not have the opportunity to object to the Contact Centre Report being used in the proceedings.
20)The Contact Centre Report should not have been provided to the Family Report writer, as it was without my knowledge or permission.
21)Hence the Family Report writer has been erroneous in using its content in her report, as the Family Report then is contradictory in its content – describing me in positive terms, but utilizing the Contact Centre Report in her recommendations and conclusion.
22)This series of errors has compounded my access to natural justice and has lead to the difficult circumstances today.
Because of the absence of the transcript, the mother has not established that she did not have the opportunity to object to the Contact Report being used in the proceedings.
The family reporter’s use of the Contact Report would, in the absence of a particular reason to the contrary, be an appropriate course to take and may well be open to criticism if not considered. The mother has not established that there was any objection to the use of the Contact Report by the family reporter at trial or that that was done without her knowledge or permission. Accordingly she has not established that the use of the report by the family reporter was “erroneous” and it cannot be said that she has as a result been denied natural justice.
Otherwise the issue of the Contact Report has been determined in my discussion of grounds one, two and four above. This ground must also fail.
Ground 6
The mother did not press this ground at the hearing of the appeal and her written summary of argument did not particularise it. She did not give any example or particulars of the father’s “immaturity and irresponsibility”.
The mother has failed to establish that it was not open to his Honour to make the findings he did with regard to the father in paragraphs 21, 46, 56 to 58 and 129 to 130. Accordingly this ground must also fail.
Ground 7
This ground was not pressed at the hearing of the appeal. However the mother made reference to it in her written summary of argument, submitting that his Honour failed to take into account the following:
·the mother’s affidavit filed on 1 February 2007, which was in response to the father’s affidavit sworn on 10 July 2006;
·the mother’s affidavit filed on 20 June 2007, which was largely in response to the father’s affidavit filed 12 June 2007;
·the affidavits of the mother’s witnesses.
·“a positive letter” sent from the mother to the [father].
The mother sought to rely on the above affidavits in this appeal, all of which I have read. Certain matters within them have not been directly addressed in his Honour’s reasons. However, his Honour is not, and could not possibly, be expected to traverse in his judgment every single paragraph, fact and issue raised in each affidavit upon which the mother relied. The Full Court decision of Bennett and Bennett (1991) FLC 92-191 provides well-established authority for the proposition that the trial judge must provide adequate reasons so as to enable an appellate court to ascertain the path by which he or she reached the final result. The Full Court held in that case at 78,267:
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
His Honour quoted from the mother’s affidavit filed on 1 February 2008 and discussed in detail a number of issues raised therein. Accordingly his Honour obviously had regard to that affidavit. His Honour also referred to four other witnesses called on behalf of the mother. The mother did not particularise her reference to the “positive letter” and I am therefore unable to identify that evidence.
In her written summary of argument the mother states that “evidence about violence of the [father] not [sic] acknowledged” and refers to “Exhibits of my Affidavit filed 1st of February 2007” having not been taken into consideration. At paragraph 170 of the judgment where the Federal Magistrate is addressing s 60CC(j) and (k), he held:
Any family violence
170.Notwithstanding the frequent reference to incidents at changeovers over the last few years and that Intervention Orders (which have now expired) were taken out in the past neither party made any specific submission on this issue.
Without access to the transcript, the mother is unable to prove the manner in which family violence was treated as an issue in the proceedings and I cannot therefore find that his Honour has failed to consider a relevant matter, failed to properly consider evidence or made any appealable error in relation to it.
Accordingly, this ground of appeal must fail.
Grounds 8 and 10
These grounds of appeal seek to challenge his Honour’s exercise of the discretion vested in him by the Act and his application of certain provisions of Part VII of the Act.
The mother did not press these grounds at the hearing of the appeal. However, in her written summary of argument she made certain submissions that may be considered as being referable to these grounds, as follows:
8)…Orders are clearly made to satisfy the applicant husband as he was the one to initiate these vexatious proceedings – e.g. an order about [L] spending time with the father on the father’s birthday.(?!) [sic] There is no order though about MOTHER’S BIRTHDAY!!?? [sic] This is in contradiction with Section 60CC which concentrates on the fact that ORDERS SHOULD BE FOR THE BEST INTERESTS OF THE CHILD, not the parent who brings an application to the Court!
…
15)Specific orders I sought which allow flexibility and making mutually suitable arrangements by respectful communication and cooperation have not been considered. My positive attitude and willingness to communicate and cooperate have not been acknowledged.
16)The provision of the Act that an order for a significant and substantial contact time of the father can be made only when there is a high level of cooperation – which is unfortunately not in our case [sic].
17)The Goode and Goode case is not relevant to our case.
His Honour’s judgment contains no reason for declining to make an order with respect to the child’s time with the mother on the mother’s birthday. When considering his Honour’s reasons as a whole together with the orders, to my mind the only conclusion that can be drawn is that this was simply a mistaken omission by his Honour. It could be easily corrected through an application of the slip rule and, in my view, does not represent an appropriate basis for appellate intervention.
With regard to paragraphs 15 and 16 of the mother’s summary of argument, quoted above, I note that his Honour made findings with respect to the parties’ ability to communicate and cooperate and his orders are in line with those findings. I see no error with respect to this.
The mother’s assertion with respect to Goode & Goode (2006) FLC 93-286 is contrary to law. This case is the leading authority guiding the court in its application of Part VII and is therefore inherently relevant to every determination under Part VII.
It was apparent that there were excerpts of the judgment and his Honour’s orders which bitterly upset the mother but she has not been able to discuss how those orders represent a miscarriage of discretion.
The orders that the mother seeks on this appeal do not represent a significant change to the orders made by his Honour. This alone would indicate prima facie that his Honour’s decision was within the ambit of reasonable disagreement (Bellenden (formerly Satterthwaite) vSatterthwaite (1948) 1 All ER 343 at 345; Norbis v Norbis(1986) FLC 91-712 per Brennan J at 75,178) and was therefore a proper exercise of discretion. Indeed, in her Notice of Appeal under Part E the mother states:
1.I accept the Orders of FM O’Sullivan only because they incorporate the new reforms in the Family Law Act, not because I believe they are justified.
As noted above, the expert evidence of the Family Report writer was that the matter was “very vexing” and “very difficult”; the expert evidence of the Psychiatric Report indicated that both parents were capable of being the resident parent. The mother’s personality was a matter of concern during the trial, a matter which has been amply demonstrated by her on the hearing of this appeal.
In my view, the logical sequence of his Honour’s reasoning was clear and thorough. He has correctly applied the legislation, in correct sequence and in accordance with the decision of the Full Court in Goode & Goode (supra), and he has gone out of his way to explain his decisions. The orders made by his Honour were entirely consistent with that process and constitute an appropriate exercise of his discretion. Grounds 8 and 10 must also fail.
Ground 9
The mother complained that the Federal Magistrate had taken into account “a lot of the documents and evidence on the side of the [father] only” because, she submits, the Family Report writer only considered the father’s documents when writing her report. His Honour was not limited by the evidence before the Family Reporter. His Honour had before him all of the documents which the mother sought to rely on, which his Honour lists at paragraph 15 of his reasons for judgment and which are largely documents filed after the release of the Family Report. In his reasons for judgment his Honour referred to a number of documents filed by or on behalf of the mother, including:
·the mother’s response to the husband’s amended application filed 20 June 2007;
·the mother’s affidavit filed 20 June 2007;
·the mother’s affidavit filed 1 February 2007;
·affidavit of Mr K filed 1 February 2007;
·affidavit of Mr P filed 20 June 2007;
·affidavit of Ms T filed 1 February 2007; and
·affidavit of Ms S filed 1 February 2007.
The mother conceded, in the framing of this ground of appeal, that the reason her documents were not before the Report writer was because the mother had not yet filed them in breach of directions of the Court. The mother cannot seek appellate intervention in something caused by her own lack of compliance with court orders. Further, it is clear from paragraph 80 of his Honour’s judgment that the Family Reporter gave viva voce evidence at the trial and confirmed that subsequent to writing the Family Report she had read the further material filed by the parties. In the absence of the transcript, and particularly the oral evidence of the Family Reporter,I am unable to determine that any injustice was caused to the mother.
Accordingly, I find that the mother has failed to prove this ground.
Ground 11
This ground alleges that his Honour failed to take into account that the father’s application was, in the mother’s submission, vindictive and vexatious. In the mother’s response to the father’s initiating application she sought an order that he be declared a vexatious litigant and that he be prevented from filing “any further unnecessary applications [sic]”. I will therefore treat this ground of appeal as seeking to establish that his Honour failed to consider her application pursuant to s118 of the Act.
Aside from reproducing the orders sought by the mother, his Honour’s reasons for judgment do not refer to the s 118 application and do not give reasons for why he declined to make the order sought.
However, in his oral submissions at the hearing of this appeal, the father asserted that on the day judgment was being handed down by his Honour (that is, one month after trial) there was discussion of this issue and his Honour indicated that he was not prepared to make the order the mother sought for various stated reasons. The mother disputed this evidence of the father and claimed that he was not present on that day.
The mother has the onus to establish her grounds of appeal. This is a heavy onus where the decision appealed from is a discretionary one (Lovell v Lovell (1950) 81 CLR 513).In the High Court decision of House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ held (at p 504 - 5050):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
(See also, Australian Coal and Shale Employees' Federation v Cth (1953) 94 CLR 621http://thomsonnxt4/links/Handler.aspx?tag=fc076f5ddc732495947f765f1a5541ef&product=cl, at 627 per Kitto J; Gronow v Gronow (1979) 144 CLR 513 at 519-20, 537-8 per Stephen J and Aickin J respectively; Mallet v Mallet (1984) 156 CLR 605 at 614-15, 622 per Gibbs CJ and Mason J respectively; Minister forAboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 per Mason J),
In order to establish this ground, the mother has the onus of establishing that his Honour did not consider the mother’s s 118 application. In the absence of the transcript she has failed to do so and this ground of appeal must therefore fail.
Conclusion with respect to the substantive appeal
Having determined that each ground of appeal with respect to the orders of O’Sullivan FM made on 23 July 2007 have failed, I will accordingly dismiss the Substantive Appeal.
I note for completeness, that the mother’s written summary of argument filed on 18 August 2008 in support of this appeal contains several assertions which are either not relevant to the mother’s grounds of appeal; include fresh evidence, for which leave has not been granted to adduce; or may be interpreted as raising new challenges to the orders of O’Sullivan FM which are outside of the mother’s grounds of appeal. For example, in paragraph 2 and 3 of the said summary of argument the mother refers to the fact that final orders were already in place and asserts that “There was absolutely NO REASON [sic] to change them…” and further that “There was NO CHANGE IN CIRCUMSTANCES [sic] and therefore absolutely no reason for these custody proceedings”. The mother did not seek leave to amend her Notice of Appeal to include a ground relating to these assertions and I am therefore not in a position to address that issue or the other issues raised by the mother that do not fall within her grounds of appeal.
The Costs Appeal
Following the findings of McInnis FM that the mother had contravened the final parenting orders without reasonable excuse, his Honour made an order for costs against the mother in the following terms:
(3) Pursuant to ss.70NFB(1)(a) and 70NFB(2)(g) of the Act the Respondent Mother pay the Applicant Father’s costs fixed in the sum of $990.00 within three months of the date of this order.
The mother has appealed against that order.
At trial, the father was represented by counsel and the mother appeared on her own behalf.
Again, the mother did not obtain the transcript as she said she was unable to afford to. There was, however, a transcript of an excerpt of the proceedings which was put before me and to which the mother referred in her addresses.
Federal Magistrate McInnnis’s Reasons For Judgment
His Honour’s reasons for judgment with respect to costs were confined to the following three paragraphs:
Costs
54.I have been asked to make an order for costs. It is clear that one of the factors I can take into account, having regard to my conclusion that this is a matter to which Subdivision F of s.13A of the Family Law Act applies, in making an order that I must make under paragraph (2)(g) of s.70NFB is whether or not I am satisfied it would be in the best interests of the child concerned to make the order.
55.I am prepared to make an order for costs. It seems to me, had the costs sought not been in the sum of the amount of $990.00, I may well have reduced the costs, having regard to the interests of the child. I may well have also reduced the costs that I am asked to fixed, having regard to the fact that I have dismissed three of the alleged contraventions. But having regard to the schedule which applies, which clearly would involve a costs order of something in excess of $2,000.00, it is in my view reasonable in the circumstances to have regard to the interests of the child to make a more modest order and to make that order payable within three months; that is, to provide a stay.
56.I am not satisfied that the mother, having regard to her current situation, is unable to pay the sum of $990.00 in a three-month period. In addition ordering that the mother enter into a bond, I will further order that the mother pay the father’s costs which I fix in the sum of $990.00 to be paid within three months of the date of this order.
The Grounds of Appeal and Orders Sought
The mother’s grounds of appeal are as follows:
1.Order was made on the basis of my distressed behaviour at the end of the hearing and expressed dissatisfaction with the vicious circle of unreasonable court proceedings, in which I have been constantly involved by the vindictive ex and his solicitors for the last 4 years.
2.WRONG EXERCISE OF DISCRETION [sic]
3.I am a single parent bearly [sic] surviving on a very limited income, which got even less lately. This fact has not been taken into consideration.
4.The “contraventions” in question are of minor nature.
5.I did not have to be punished with a cost order. I feel that I am being punished for BEING A GOOD PARENT AND DOING THE RIGHT THING. [sic]
6.This cost order against me is definitely NOT in the best interest of my child, which should be taken into consideration pursuant to ss. 70 of the Act.
The mother seeks the discharge of the order for costs.
The mother’s written summary of argument was as follows:
SUMMARY OF ARGUMENT BY APPELANT
1)Pursuant to Section 70NFB for the Court [sic] should not make a Cost order if it is satisfied that it would not be in the best interests of the child concerned.
2)In my case, I am the primary care giver of [L] and she resides with me. Because my child comes first in my life and I raised her all by myself, we are currently barely surviving on my Centrelink payments.
3)I don’t see how the Magistrate [sic] has come into [sic] the conclusion that I can pay the costs of the [father], while the transcript there is a different story [sic]?
4)With my payments being cut from Centrelink and the Child support also reduced, definitely a Cost order against me is not in the best interests of [L].
DISCUSSION
Ground 1
There is nothing in his Honour’s reasons for judgment referring to the mother exhibiting distressed behaviour at the end of the hearing. The only reference his Honour made to the mother’s behaviour during the hearing was the following:
… It is clearly evident in the manner in which the proceedings were conducted that the mother has what could only be described as extremely strong and genuine feelings in relation to these proceedings. …
An examination of his Honour’s reasons as a whole and particularly that portion quoted above illustrates that there was no discussion of the mother’s conduct at the end of the hearing. Accordingly, I find that the mother has failed to establish this ground.
Grounds 2 and 3
In my view, it was reasonably open to his Honour to find that this was an appropriate case in which to depart from s 117(1). It was open to his Honour to find that he was satisfied that circumstances existed to justify an order for costs pursuant to s 117(2A). Those circumstances were: the modest financial circumstances of each of the parties; the fact that the proceedings were necessitated by the mother’s non-compliance with previous orders of the court; and the fact that the father was largely, though not wholly, successful on his contravention application. The circumstances demonstrate that the making of a costs order in the quantum which his Honour determined was not, of itself, an erroneous exercise of discretion.
While not expressly referring to s 117(2A), his Honour has considered the quantum of the order, particularly in light of the best interests of the child. His Honour held that the relevant schedule of costs “would involve a cost order in excess of $2,000”. His Honour was required by s 70NFB(1)(a) and (g) to make an order against the mother for costs unless he was “satisfied that it would not be in the best interests of the child to make that order… .” His Honour considered the child’s best interests and found that it was appropriate to reduce the quantum of costs in accordance with those best interests. The quantum that his Honour ordered was in accordance with the sum sought by counsel for the father.
His Honour took into account the mother’s “current situation” particularly in the context of those best interests on the basis of which he both reduced the quantum and stayed the order for a period of 3 months.
In his consideration he also referred to the fact that he had dismissed three of the alleged contraventions which accordingly resulted in the father having been not wholly successful in his application.
The High Court of Australia held in Penfold v Penfold(1980) 144 CLR 311 that the Court has a wide discretion with respect to costs orders and a failure to provide reasons or findings is not necessarily fatal. In their joint majority judgment, Stephen, Mason, Aicken and Wilson JJ discussed this wide discretion under s 117 and held at p 315:
Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under sec 117(2) in a `clear case'.
Subsection (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order... Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not, in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised...
The mother asserted that his Honour did not consider her financial circumstances, however, throughout the trial the following discussion occurred:
HIS HONOUR: Right. What do you say about costs?
[MRS DENNY]: I can’t afford to pay anything. I’m barely surviving. I’m barely surviving.
HIS HONOUR: Tell me your income.
[MRS DENNY]: They cut my payments from Centrelink now. I miss the job interview opportunity to get myself some work so I can survive.
HIS HONOUR: What do you get paid by Centrelink.
[MRS DENNY]: I get paid nothing now.
HIS HONOUR: Nothing?
[MRS DENNY]: I get paid (indistinct)
HIS HONOUR: What’s your income?
[MRS DENNY]: I survive on $100 per month.
HIS HONOUR: $25 per week.
[MRS DENNY]: On $100 per month.
HIS HONOUR: That’s $25 a week.
[MRS DENNY]: Yes, I survive on nothing, your Honour.
…
HIS HONOUR: Yes. Well, I’m trying to understand your current financial circumstances.
…
HIS HONOUR: You can’t re-pay a mortgage?
[MRS DENNY]: Of course I pay my mortgage.
HIS HONOUR: How much is that? How much?
[MRS DENNY]: It is 1200 per month.
HIS HONOUR: Per month. Are you up to date with that mortgage?
[MRS DENNY]: Yes, of course I am.
HIS HONOUR: Then if you only receive $100 a month, how is it you’re up to date with a mortgage that costs 1200?
[MRS DENNY]: No. I said after I pay my mortgage, I meant.
…
HIS HONOUR: I understand. You’re saying that after you pay your expenses, you’re left with $100 per month.
[MRS DENNY]: Yes, that’s right.
HIS HONOUR: Do those expenses include your mortgage? So after you paid the mortgage, after you pay your food, your rates, your electricity, your expenses, clothing, you’re left with $25 a week.
[MRS DENNY]: That’s right. I barely survive, you know. …
It is evident from both the transcript and the reasons for judgment that his Honour turned his mind to the mother’s financial circumstances. I find that in the circumstances his Honour’s order did not constitute a miscarriage of discretion and was within the “general ambit of reasonable disagreement” so as not to be overturned at trial.
This ground of appeal must fail.
Ground 4
His Honour’s reasons for judgment with respect to the husband’s substantive application found that the mother had breached orders of the Court without reasonable excuse. The contraventions alleged and the findings made with respect to them may be summarised as follows:
Nature of alleged contravention
Date of Alleged Contravention
Conceded by the mother?
Found proven without reasonable excuse?
The mother failed to deliver the child to changeover on time, being 30 minutes late.
9 August 2007
Yes
However, the mother submitted that she had a reasonable excuse.
Yes
The mother failed to deliver the child to changeover on time, being 45 minutes late.
16 August 2007
Yes
However, the mother submitted that she had a reasonable excuse.
Yes
The mother failed to deliver the child to changeover on time, being 1 and a half hours late.
6 September 2007
Yes
However, the mother submitted that she had a reasonable excuse.
Yes
The mother abused the father in the presence of the child by spitting in the father’s face.
11 September 2007
No
No
The mother failed to deliver the child to changeover for the purpose of the child spending a holiday period with F, in accordance with court orders.
28 September 2007
No
Yes
The mother “abused, insulted, belittled and denigrated” the father in the presence of the child by calling the father a “criminal” and a “bastard”.
4 October 2007
No
Yes
However, his Honour did not find that the word “bastard” was used.
The mother discussed family law proceedings in the presence of the child.
4 October 2007
No
No
The mother enrolled the child at primary school without consulting the father in accordance with court orders.
undated
No
Dismissed for want of particulars.
On the basis of the above table, I do not accept the mother’s assertion that these contraventions were of a “minor nature”. In my view there is nothing in the importance or significance of the contraventions found by his Honour to have been committed without reasonable excuse which establishes this ground of appeal.
The mother has not sought to appeal against his Honour’s findings in any respect, nor has she sought to appeal against his Honour’s treatment of the matter under subdivision F (relating to more serious contraventions) instead of subdivision E (relating to less serious contraventions).
Accordingly, this ground of appeal must fail.
Ground 5
I find that ground five has no basis. There was nothing in the transcript, reasons for judgment, written or oral submissions to establish that the mother was being “punished” as she asserts. Ground five must also fail.
Ground 6
As evidenced by the quoted paragraphs of his Honour’s reasons above, his Honour clearly had regard to the best interests of the child in making the costs order. I infer from his Honour’s statement that had the quantum of the order sought on behalf of the father been higher, he would have modified it in order to meet the best interests of the child. In making the order, his Honour was satisfied that the orders he made were in the child’s best interests.
Given his Honour’s finding that the mother had made multiple serious contraventions of court orders for the child to spend time with her father and to be protected from being exposed to her parents’ denigration of each other, I find that it was open to him to determine that it was in the best interests of the child that a costs order be imposed, the purpose of which was inevitably to enforce the children’s orders in place - those orders having been held by the Court to be in the bests interests of the child.
Accordingly, this final ground of appeal must also fail.
Conclusion on costs appeal
Having found that each of the mother’s grounds of appeal are unsuccessful, this appeal must be dismissed.
I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin.
Associate:
Date: 26 November 2008
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