Dittmar & Dittmar

Case [2021] FamCAFC 127

FAMILY COURT OF AUSTRALIA

Dittmar & Dittmar [2021] FamCAFC 127

Appeal from: Dittmar & Dittmar [2020] FCCA 2373
Appeal number(s): NOA 55 of 2020
File number(s): BRC 189 of 2019
Judgment of: KENT J
Date of judgment: 23 July 2021
Catchwords:

FAMILY LAW – APPEAL – PARENTING – Where the primary judge found that the father did not pose an unacceptable risk to the child – Where the primary judge found that the mother did pose an unacceptable risk given the mother’s firm belief that there would be no real benefit in the child having a relationship with the father – Whether that finding was open on the evidence – Where the mother’s own evidence confirms that she has an unwavering view that the father is a paedophile and did not want the child to have a relationship with the father – Where the mother discussed adverse allegations about the father in the presence and hearing of the child – Whether the primary judge ought to have implemented the recommendations of the family report writer – Where those recommendations were made prior to the mother unilaterally suspending the child’s time with the father – Where the primary judge was not bound to adopt or follow any recommendations of the family report writer – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the father seeks that the mother pay his costs on a party and party basis – Where the mother’s appeal has been wholly unsuccessful – Where the parties’ financial circumstances are each constrained – Where the mother would appear to be in a substantially far worse financial position than the father – No order as to costs.  
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 94(2A), 94AAA(3)
Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Simmons and Anor & Kingley (2014) FLC 93-581; [2014] FamCAFC 47

U v U (2002) 211 CLR 238; [2002] HCA 36

Division: Appeal Division
Number of paragraphs: 56
Date of hearing: 9 February 2021
Place: Brisbane
Counsel for the Appellant: Mr Galloway with Ms McLennan
Solicitor for the Appellant: Cranston McEachern Lawyers
Counsel for the Respondent: Mr Bunning
Solicitor for the Respondent: LAW Legal Practice

ORDERS

NOA 55 of 2020
BRC 189 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS DITTMAR

Appellant
AND:

MR DITTMAR

Respondent

ORDER MADE BY:

KENT J

DATE OF ORDER:

23 JULY 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.There be no order as to costs of the appeal.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law…

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AGLC
Dittmar & Dittmar [2021] FamCAFC 127
Case
[2021] FamCAFC 127
Decision Date

CaseChat Overview and Summary

The appeal before the court was from Ms Dittmar, the mother, against a decision of the primary judge made in the Family Court of Australia. The primary judge had found that Mr Dittmar, the father, did not pose an unacceptable risk to the child, while the mother did pose an unacceptable risk due to her firm belief that there would be no real benefit in the child having a relationship with the father. The mother appealed against this decision, arguing that the primary judge erred in several respects, including by failing to consider the child’s disclosures against the father and by not allowing the child’s psychologist to testify.

The court found that the primary judge's findings were supported by the evidence, and the mother's contention that the primary judge erred in imputing certain beliefs to her was not substantiated. The mother's own evidence at trial supported the primary judge's findings about her state of mind and expressed beliefs. The court also found that the primary judge was not bound to implement the recommendations of the family report writer, and that it was not unreasonable for the primary judge to change the primary residence of the child from the mother to the father. The court concluded that there was no merit in the grounds of appeal and dismissed the appeal.

Regarding costs, the father sought an order for the mother to pay his costs of the appeal on a party and party basis. However, given the financial constraints of both parties, and the mother's substantially worse financial position, the court decided not to order the mother to pay the father's costs of the appeal. The court considered the appropriate order to be that there be no order as to costs of the appeal.

The final orders were that the appeal be dismissed and that there be no order as to costs of the appeal.

Orders

Orders of the court

NOA 55 of 2020

BRC 189 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS DITTMAR

Appellant

AND:

MR DITTMAR

Respondent

ORDER MADE BY:

KENT J

DATE OF ORDER:

23 JULY 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. There be no order as to costs of the appeal.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The mother’s Notice of Appeal filed on 1 September 2020 advances the following five grounds of appeal:1.The orders of the [primary judge] were against the evidence and the weight of the evidence, and were otherwise not supported in law.2.The [primary judge’s] discretion miscarried in prioritising the child to have a meaningful relationship with both parents over the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.3.The [primary judge] erred in taking into account irrelevant matters and failing to properly take into [account] significant issues that were raised, in particular the disclosures the child makes against the father4.The [primary judge] erred in particular in not allowing the child’s psychologist to testify in the proceedings because she could not attend in person.5.The [primary judge’s] decision was unreasonable and unjust in particular in deciding to change the primary residence of the child from the mother to the father, when there was no proper basis to do so.(As per the original)Ground 1 – The orders of the [primary judge] were against the evidence and the weight of the evidence, and were otherwise not supported in law As expressed, this ground is unaccompanied by sufficient particulars to identify the actual error or errors complained of, and is therefore not a competent ground of appeal. Neither the written or oral argument identifies any error of law as contended. Reference to the mother’s Summary of Argument filed on 6 November 2020 reveals that a central contention of the mother is that the mother held no fixed beliefs of the kind the primary judge attributed to her about whether or not the father had in fact sexually abused the child and was a “paedophile”; or whether the father’s communication and interaction with one of his students was “sexual” in nature. It is contended by the mother that the primary judge erred in imputing these beliefs to the mother when the evidence did not support this. However, this central contention is revealed as entirely erroneous. As the mother’s counsel confirmed via Supplementary Submissions tendered at the outset of the hearing of the appeal, and as was acknowledged by her counsel in the course of oral argument of the appeal, each and every of the primary judge’s findings as to the mother’s state of mind or expressed beliefs were in fact supported by the evidence the mother herself gave in oral evidence at trial. Driven to acknowledge that each of the primary judge’s findings about the mother’s beliefs was founded upon the mother’s own evidence at trial, the contention of error on the part of the primary judge morphed into the proposition to the effect that the mother’s “trial documents” did not support the findings. In other words, it was contended that because the mother in her trial documents was not making a case that the father “is an abuser, he is a paedophile and I have that unwavering view” it was submitted that the primary judge ought not to have made the subject findings (Transcript 9 February 2021, p.5 line 12).

Decision

Reasons for decision

No error is demonstrated by this ground.Conclusion and costs There being no merit in any ground of appeal the appeal must be dismissed. In the event the appeal was to be dismissed the father sought an order that the mother pay his costs on a party and party basis. Those costs were sought in a fixed sum of $12,010. The father is employed as a public servant earning $90,000 per annum. He owns a property worth $290,000 subject to a debt of $230,000. The father has primary care of the child and at least as at the time of the hearing of the appeal no child support assessment had been made with respect to the mother’s payment of child support. The mother opposed the order for costs sought. Her sole source of income as at the hearing of the appeal is Centrelink and she holds no assets. She lives with her parents in City C and her counsel informed the Court from the bar table that the mother is dependent upon her parents, at least in part, for her support. Whilst the mother’s appeal has been wholly unsuccessful, which is a justifying circumstance for an order for costs, the parties’ financial circumstances are each constrained albeit that the mother would appear to be in a substantially far worse financial position than the father. In all of the circumstances, and not without some hesitation, I do not consider that it would be appropriate to order the mother to pay the father’s costs of the appeal, and the appropriate order is that there be no order as to costs of the appeal.

Ratio Decidendi

Legal Principle Established

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