Dittmar & Dittmar
[2021] FamCAFC 127
•23 July 2021
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 2019APPEAL 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dittmar & Dittmar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KENT J:
On 31 August 2020 the primary judge in the Federal Circuit Court of Australia made parenting orders[1] following a trial of parenting proceedings between Mr Dittmar (“the father”) and Ms Dittmar (“the mother”) concerning their child X born in 2017.
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
At trial, both the mother and the father alleged that the other posed an unacceptable risk to the child. The mother contended that the father had sexually abused the child; had maintained sexually inappropriate relationships with school students (the father is a public servant) and had an addiction to pornography. The father contended that the mother had failed, and would continue to fail, to promote the child’s relationship with the father and that her allegations against him were false.
The mother sought orders that she have sole parental responsibility, that the child live with her, and that the child spend supervised time with the father for two hours each weekend and telephone time on Wednesday afternoons.
The father sought orders for equal shared parental responsibility, that the child live with him, and spend supervised time with the mother pending confirmation by a psychiatrist or psychologist that the mother had successfully engaged in counselling.
The orders made by the primary judge were in line with the orders sought by the father. Those orders provide for, in summary, the parents to have equal shared parental responsibility; the child to live with the father and spend supervised time with the mother pending her successful completion of therapy with a psychiatrist or psychologist. Thereafter the child was to spend unsupervised time with the mother on alternate weekends and in school holiday periods.
The orders made effected a significant change of circumstances for the child. The parents had finally separated in late 2017 or early 2018 when the child was yet to reach his first birthday. From living primarily with his mother, the orders effected the child living primarily with the father.
By Notice of Appeal filed on 1 September 2020 the mother appeals from the 31 August 2020 orders and seeks, primarily, that the proceedings be remitted for rehearing. The father opposes the appeal.
The appellate jurisdiction in relation to this appeal is exercised by a single judge pursuant to s 94AAA(3) of the Act.
For the reasons which follow this appeal ought be dismissed. As I am of the opinion that the appeal does not raise any question of general principle those reasons may be provided in short form pursuant to s 94(2A) of the Act. The singular lack of merit in this appeal renders the conclusion that reasons in short form is all that is necessary to dispose of this appeal.
Central findings of the primary judge
The reasons of the primary judge reflect an adequate consideration of the factual history and a proper articulation of the issues for determination. The primary judge correctly identified the competing parenting proposals of the parties and adequately articulated the law to be applied.
Taken from the reasons for judgment, the conclusions the primary judge reached as to parenting orders to be made in the best interests of the child were ultimately driven by the combined effect of the following central findings:
(a)The father is a witness of credit and the mother is not a credible witness (at [43]);
(b)Regardless of the findings of the primary judge, the mother would remain of the opinion that the father is a paedophile (at [45]);
(c)The mother did not want the child to have a relationship with the father and would make any allegation she could to ensure the child has no relationship with his father (at [94]);
(d)The father does not pose an unacceptable risk of harm to the child as a result of his relationship with student/s (at [60]) or his viewing of pornography (at [69]);
(e)There is insufficient evidence to establish that the father posed an unacceptable risk of harm to the child as a result of allegations that he sexually abused the child (at [80] and [90]–[91]);
(f)The mother and her family had discussed the father’s “many … failings” in the home with the child present (at [107]);
(g)The child was displaying anxious behaviour in the mother’s home as the mother was displaying signs of anxiety (at [133]);
(h)If the orders sought by the mother were made she would no doubt withhold the child, leading to further proceedings (at [159]);
(i)The mother would be unable to facilitate a meaningful relationship between the child and the father (at [126]) and, given the mother’s firm belief that there would be no real benefit in the child having a relationship with the father, the child would be at an unacceptable risk of harm in the mother’s care (at [134]); and
(j)The potential harm to the child could be mitigated by the mother engaging in therapeutic intervention (at [135]–[142]).
Challenges on appeal
The nature of the mother’s challenges on appeal brings into focus the peculiarly discretionary exercise involved in the making of parenting orders.
An appeal from a discretionary judgment of any kind is constrained by the well-known principles set out in House v The King (1936) 55 CLR 499. The peculiarly discretionary exercise involved in determining parenting orders for the future parenting arrangements in relation to children has been emphasised by the High Court of Australia in several cases. In CDJ v VAJ (1998) 197 CLR 172 the plurality of the High Court (McHugh, Gummow and Callinan JJ) observed of applications for parenting orders and of their determination as follows:
151....Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
152.The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions…
To similar effect, and relevant to the topic of challenges as to the weight given by a primary judge to evidence, in U v U (2002) 211 CLR 238 Gummow & Callinan JJ (with whom Gleeson CJ, McHugh & Hayne JJ agreed) said:
90.…The appellant’s submission is that the trial judge gave too much weight to the child’s short term welfare, and commensurately too little to her long term welfare, and that the Full Court erred in failing so to hold. That is, as the respondent submits, no more than a complaint about the weight which the trial judge attached to admittedly relevant considerations. Just how far ahead it is possible for a trial judge to look, and how reliable long term predictions about domestic, marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ. The exercise, of looking to, and making orders for the future, is peculiarly a discretionary one…
As will be discussed, the majority of the mother’s discernible challenges in this appeal essentially devolve into complaints about the weight the primary judge attached to relevant considerations.
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 father
4.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).
Having reviewed the “trial documents” referred to I am far from persuaded that the mother was not advancing the case referred to. That aside, in my judgment the contention of error on the part of the primary judge in this respect is devoid of any substance. Review of the oral evidence of the mother provided at trial reveals that her statements of belief were expressed in unequivocal terms and the primary judge was entitled, if not obliged, to rely upon the mother’s own direct evidence as to her state of mind in reaching the findings the primary judge expressed as to the mother’s beliefs.
Nothing to which counsel for the mother directed attention on the hearing of the appeal demonstrated that the orders made by the primary judge were against the weight of evidence or were not supported in law.
There is no substance in this ground.
Ground 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
Ground 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 father
Counsel for the mother addressed these grounds together.
The submissions in support of these grounds do little more than simply restate the propositions advanced in these grounds without furnishing further particulars of alleged errors.
Properly viewed these are challenges only to the weight given by the primary judge to evidence. They do not establish error. The contentions that the primary judge took into account “irrelevant matters” or “[failed] to properly take into [account] significant issues that were raised” is uninformed by any submissions of substance identifying any such errors.
There is no merit in these grounds.
Ground 4 – 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
Psychologist Ms D provided an affidavit in support of the mother’s case upon which the mother sought to rely. Ms D’s clinical notes were called for in advance of the trial and were admitted into evidence on the first day without objection.
Despite never directly receiving any disclosure of abuse from the child; despite never having met the father let alone interviewed him; nor ever having observed the child’s interaction with his father; Ms D purported to provide extensive and robustly adverse opinions about the father and the father–child relationship. In doing so Ms D relied entirely on history provided by the mother in sessions in which the child was present in the same room whilst the mother relayed the information relied upon by Ms D.
Unsurprisingly in these circumstances, the father sought to have Ms D appear in person and be cross-examined if the mother sought to rely upon Ms D’s opinions. Equally unsurprisingly, the primary judge assessed that fairness dictated that the father have that opportunity.
Thus it was that on the first day of trial the primary judge made a ruling that, if the mother sought to rely upon Ms D’s evidence, Ms D was to attend in person to make herself available for cross-examination.
On the first day of the trial, in the face of that ruling, Ms D’s notes were admitted into evidence. Ms D’s notes were tendered into evidence without objection. This occurred at a time when the application for Ms D to attend to give evidence via telephone had failed and it was assumed she would subsequently attend the trial in person.
In the course of her cross-examination on the first day of trial the mother was cross-examined about her sessions with Ms D and the fact that the child was present in the same room when these sessions occurred. Parts of Ms D’s affidavit evidence and some of the contents of her notes were put to the mother whilst under cross-examination. The complaint on appeal that some of Ms D’s material was entered into evidence when she was not permitted to give evidence by telephone is entirely misconceived given the circumstances in which the material was received into evidence as outlined.
Cross-examination of the mother demonstrates that many matters were discussed by the mother with Ms D with the child present in the same room. It seemed to me that on the hearing of the appeal there was an exercise in obfuscation about the prospect of the child overhearing what transpired between the mother and Ms D in those sessions. Put simply, the mother acknowledged at one point in her cross-examination that the child “probably” could hear what was being said. It was reasonable for the primary judge to draw the inference that the child probably overheard what transpired between the mother and Ms D. At the very least that real prospect was not eliminated by any measures taken by the mother or Ms D.
The primary judge rightly, in my judgment, regarded it as extraordinary that Ms D would have permitted this to have occurred.
In the course of exchanges between the primary judge and counsel on the first day of trial, the primary judge flagged the possibility of the Court of its own motion issuing a subpoena for Ms D’s attendance at the subsequent resumption of the trial. However, the primary judge noted that it was essentially a matter for the mother as to how she conducted her case and that it was thus for the mother to cause a subpoena to issue if she was minded to rely upon Ms D’s evidence, given the ruling that same could only occur if Ms D attended in person to be cross-examined.
In the result, the mother made no application for a subpoena to be issued. All that occurred was that on the second day of hearing, after the interval in the trial, a repeat application was made by the mother for Ms D to give evidence by telephone. Given that a ruling had already been made on this topic it is unsurprising that the primary judge refused the application for a second time. Notably, it bears emphasis that there was no application for an adjournment of the trial nor was any other basis shown for Ms D’s affidavit to be received into evidence without her attendance for cross-examination. Indeed, counsel for the mother at the trial advised that the mother would not seek to rely upon Ms D’s opinions or affidavit in the circumstances.
No error on the part of the primary judge is demonstrated with respect to this ground of appeal. The father legitimately sought to confront Ms D in cross-examination by having her attend in person. Just as legitimate was the primary judge’s ruling, in all the circumstances, that the father should have that opportunity.
There is no substance in this ground of appeal.
Ground 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
The mother’s first complaint under Ground 5 is that the primary judge did not implement the recommendations of Ms J, the family report writer. Those recommendations included that the child live with the mother and spend time with father, gradually increasing to be each alternate weekend and half school holidays. However those recommendations are contained in a report dated 22 June 2019, some six months prior to when the mother unilaterally suspended the child's time with the father in January 2020.
It is well settled by authority that the primary judge was not bound to adopt or follow any recommendations of the family report writer. That evidence fell to be considered in the balance with all other evidence in the primary judge’s determination of the orders to be made in the child’s best interests (Simmons and Anor & Kingley (2014) FLC 93-581 at [40]–[42]). The primary judge amply explained in his reasons for judgment why he made the orders ultimately made and these ultimately turned on the central findings identified earlier in these reasons.
Again, the mother also seeks to challenge a number of adverse findings the primary judge made in relation to her, namely:
(a)That she had exposed the child to allegations relating to the father;
(b)That she had an unwavering view that the father is a paedophile;
(c)That she has continued to look for evidence to prove that the father poses an unacceptable risk to the child, or has attempted to have the father punished criminally; and
(d)That the evidence of Dr B shows the mother does not want the child to have a relationship with the father.
In relation to the finding that the mother viewed the father as a paedophile, the father’s Summary of Argument filed on 20 November 2020 refers to an exchange that took place between counsel for the father and the mother during cross-examination:
[COUNSEL FOR THE FATHER]: Okay. Do you think [the father’s] a paedophile?
[THE MOTHER]: Yes.
(Transcript 5 August 2020, p.60 line 19)
The finding that the mother does not want the child to have a relationship with the father derives from the evidence of Dr B, where he records that the mother “could see no benefit to the child of having an ongoing relationship with the father” (affidavit of Dr B filed on 11 July 2019, page 14). The following exchange took place between counsel for the father and the mother during cross-examination:
[COUNSEL FOR THE FATHER]: Okay. Do you think [the father’s] a paedophile?
[THE MOTHER]: Yes.
[COUNSEL FOR THE FATHER]: Okay. But he should still spend time with your son?
[THE MOTHER]: Supervised.
[COUNSEL FOR THE FATHER]: Yes. What you really want, madam, is, isn’t it, for my client to disappear and you never to hear of him again? That’s what you really want, isn’t it?
[THE MOTHER]: That’s your words.
[COUNSEL FOR THE FATHER]: No. Is that want you want?
[THE MOTHER]: Supervised time.
[COUNSEL FOR THE FATHER]: You don’t want my - - -?
[THE MOTHER]: I know how important it is to have both parents in your life. I’ve come from such a loving family, and having both parents in your life is such a good thing, but not when a child is at risk.
[COUNSEL FOR THE FATHER]: Have you always believed that it’s the best for your son to have both parents in his life?
[THE MOTHER]: Yes.
[COUNSEL FOR THE FATHER]: Always. You’ve always believed that my client has something to add to your son? Always, through the entirety of these proceedings and before?
[THE MOTHER]: With what has been going on, no. I don’t think with [the child’s] allegations and how all that has been going, that’s not good to add to a little boy.
[COUNSEL FOR THE FATHER]: Let’s just go back a step, and maybe you’re misunderstanding me. Have you always believed that it is in your son’s best interest to have his father in his life?
[THE MOTHER]: Yes.
[COUNSEL FOR THE FATHER]: Yes?
[THE MOTHER]: I think he needs to know where he comes from.
[COUNSEL FOR THE FATHER]: Always?
[THE MOTHER]: Yes.
[COUNSEL FOR THE FATHER]: Right?
[THE MOTHER]: Who he is.
[COUNSEL FOR THE FATHER]: Now, you’ve read Dr B’s report, haven’t you?
[THE MOTHER]: Yes.
[COUNSEL FOR THE FATHER]: And you know that Dr B is not being cross-examined in these proceedings? Do [you] know what that means? He’s not being challenged. And you don’t take any issue in your material, I see, with anything that Dr B reports that you said?
[THE MOTHER]: No.
[COUNSEL FOR THE FATHER]: No. But Dr B records this on page 5:
When I inquired as to what she felt would be the best outcome of the Family Court process, “I want him to leave us alone because the child does not need him.”
…
So that’s what you said to Dr B, is it not?
[THE MOTHER]: That’s not the full content, no.
[COUNSEL FOR THE FATHER]: Did you say that to him, or not?
[THE MOTHER]: No. I actually said that in these circumstances with what’s going on, with who this person is, with everything that has come out – if he doesn’t change, he will not be a good person in [the child’s] life.
(Transcript 5 August 2020, p.60 line 19 to p.62 line 6) (Emphasis added)
The primary judge correctly recorded at [44] of the reasons in relation to the evidence provided by Dr B:
44. The mother repeatedly gave evidence that she wanted the child to have a relationship with his father. However the mother informed Dr B that she saw no benefit in the child having any contact with the father. Dr B states this in his report:
“When I enquired as to what she felt would be the best outcome of the family court process,” I want him to leave us alone because the child does not need him.” “He’s got good male support with my father.” “He is only doing this because he is the property to the father, he is just an object.” “When I enquired if she foresaw any benefit to the child having contact with the father, she replied “no.”
Review of the transcript of the mother’s cross-examination demonstrates that the evidence amply established the foundation for the finding that the mother has discussed adverse allegations about the father in the presence and hearing of the child. Likewise, that discussions were had in the mother’s household living with her parents.
The mother’s own evidence confirms that she has an unwavering view that the father is a paedophile and the evidence of Dr B provided in his report plainly shows that the mother expressed the view to Dr B that she did not want the child to have a relationship with the father. That was likewise revealed in the mother’s cross-examination.
In short, each of the findings the subject of complaint in this ground of appeal was a finding open to be made on evidence available to the primary judge. The primary judge made those findings with the advantages enjoyed by a trial judge of seeing and hearing the witnesses give their evidence and assessing evidence as it unfolded at trial. It is not demonstrated on appeal that any of the findings of fact made by the primary judge are wrong by reference to “incontrovertible facts or uncontested testimony” or otherwise are “contrary to compelling inferences” (Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 266 CLR 129).
It bears repeating that the central findings of the primary judge outlined earlier provided a proper basis for changing the child’s primary residence in the discretionary exercise involved in determining parenting arrangements for the future.
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.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kent. Associate:
Dated: 23 July 2021
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