DITTMAR & DITTMAR (No.2)
[2020] FCCA 2518
•8 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DITTMAR & DITTMAR (No.2) | [2020] FCCA 2518 |
| Catchwords: FAMILY LAW – Parenting – Application in a Case to stay orders – where reasons for judgment and final orders were delivered on 31August 2020 – where orders were made for a change of residence of the child. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Cases cited: Aldridge & Keaton (Stay appeal) [2009] FamCAFC 106 Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No 1] [1986] HCA 13; (1986) 160 CLR 220, |
| Applicant: | MS DITTMAR |
| Respondent: | MR DITTMAR |
| File Number: | BRC 189 of 2019 |
| Judgment of: | Judge Middleton |
| Hearing date: | 8 September 2020 |
| Date of Last Submission: | 8 September 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 8 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms McLennan |
| Solicitors for the Applicant: | Cranston McEachern Lawyers |
| Counsel for the Respondent: | Mr Bunning |
| Solicitors for the Respondent: | Law Legal Practice |
ORDERS
That the Application in a Case filed on 31 August 2020 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dittmar & Dittmar (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 189 of 2019
| MS DITTMAR |
Applicant
And
| MR DITTMAR |
Respondent
REASONS FOR JUDGMENT
Ex Tempore:
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Background
The substantive proceedings involved a parenting application in relation to a young child who was born in 2017.
The child’s parents were married in 2008 and separated either in late 2017 or early 2018.
The applicant in those substantive proceedings was the father in circumstances where there was great difficulty in him spending time with the child.
The mother alleged that the father had engaged in sexually inappropriate behaviour with female school students in his care, that he had sexually assaulted the child, that he was addicted to pornography, that he had anally raped the mother repeatedly throughout the relationship, and that he taught this child to be secretive. The mother sought a finding that the father poses an unacceptable risk of harm to the child.
The father alleged that the mother posed an unacceptable risk of harm to the child due to
a)Exposing the child to all of the allegations relating to the father;
b)The mother’s unwavering view that the father is a paedophile;
c)The alleged failure of the mother to facilitate a meaningful relationship with the father;
d)The mother’s failure to manage her own anxieties and emotions and protect the child from those; and
e)The mother’s belief that she could not see any benefit in the child maintaining a meaningful relationship with the father.
On 31 August 2020 I pronounced orders whereby the child was to live with the father and spend supervised time with the mother until such time as the mother successfully completed a course of therapeutic counselling as recommended by Dr B.
It was not in dispute that the child was primarily attached to the mother.
The mother filed an application in a case seeking a stay of those orders on 31 August 2020, and subsequently filed a notice of appeal on 1 September 2020.
Issue for determination
Accordingly, the issue for determination today is whether I should grant a stay. The respondent also, by way of submissions, seeks an order that the applicant mother pay costs of today.
The Material
By way of material, the applicant relied upon:
a)An application in a case filed 31 August 2020
b)Her own affidavit filed 31 August 2020
c)A notice of appeal filed 1 September 2020.
The respondent relied upon:
a)Response to interim application filed on 3 September 2020;
b)His affidavit filed 3 September 2020; and
c)The reasons and orders of myself dated 31 August 2020.
The law
Turning to the law, this stay application relates to a child and accordingly it is relevant and important that I consider his best interests when determining this stay application.
The principles to apply in stay applications are well settled in this court. In Aldridge & Keaton (Stay Appeal) 2009 FamCAFC 106 the Full Court reiterated and adopted the principles relating to general law as well as family law, including such authorities as the Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No 1] [1986] HCA 13; (1986) 160 CLR 220, Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 and Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013.
All of those authorities stress that the stay application must be determined on its merits but it is a matter of the judge exercising a discretion. The principles by which that discretion is guided include that the onus in justifying the stay lies with the person who seeks it. It is not necessary for the applicant to demonstrate special or exceptional circumstances but the court must take into account that the person who has received the judgment is entitled to the benefit of it. The court is also entitled to start from a presumption that the person who has obtained a judgment is entitled to presume that the judgment is correct.
The Full Court in Tranh v Long (No. 2) [2008] FamCAFC 194 set out the relevant principles to be considered in stay applications. These principles include:
a)the mere filing of an appeal is insufficient to grant a stay;
b)the bona fides of the applicant;
c)a stay may be granted on terms that are fair to all parties. This may involve a court weighing the balance of convenience in the competing rights of the parties;
d)a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted. This will be a substantial factor in determining whether it will be appropriate to grant the stay;
e)some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case; and
f)the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of stay for a short period of time.[1]
[1] Accepted by the Full Court in Sheldon & Weir (Stay Application) [2011] FamCAFC 5.
I used my discretion when making the orders of 31 August 2020. The High Court in House v R [1936] HCA 40 set out principles to be considered when dealing with appeals from discretionary judgments as follows:
“But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Furthermore, it has been held that challenges to discretionary judgments based only on matters of weight have great difficulty in succeeding. (Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513)
The applicant sets out two grounds of appeal in relation to my asserted failure to place insufficient weight on particular aspects of the evidence.
Discussion
The mother in this particular case is absolutely adamant that the father is a paedophile. She gave oral evidence that it did not matter whether I found that the father was an unacceptable risk or not, her view of the father would not change.
There was clear evidence that the mother had unilaterally interfered with the child’s relationship with his father in circumstances where she believed the child was at risk. It is also clear, in my view, that the mother will never accept the decision from this court and potentially those above me, unless that decision is in line with her proposal. Indeed, immediately upon the pronouncement of the orders, the mother’s counsel rose to submit that she had instructions to seek an immediate stay of the orders.
It was clear that neither the mother, nor her legal advisors had read the reasons for my decision, because those reasons had not yet been provided to them. In those circumstances, I have real concern that the mother is not acting bona fide when she brings this appeal but rather, she is a disgruntled litigant who cannot or will not accept the decision I made.
The mother seeks an order in these terms: “That the Federal Circuit Court orders dated 31 August 2020 be stayed pending appeal.” I assume that the mother means pending the outcome of an appeal.
The mother also seeks an order that the child spend supervised time with the father each alternate weekend, “until such further orders are made”.
The father is entitled to receive the benefit of the decision that I made and furthermore, I am also entitled to start from the presumption that the father is entitled to presume the judgment is correct.
The orders sought by the mother, should I grant a stay, are precisely the orders she sought at the conclusion of the trial. I made a decision that the mother posed an unacceptable risk of harm to this child due to her unwavering belief that the father would cause harm to the child in circumstances where the evidence did not support such a finding, and furthermore, in circumstances where historically the mother had interfered with the child’s time with his father due to that unwavering believe, and I was satisfied that she would most likely do so in the future.
In making my decision I relied on the independent expert’s evidence with regards to what might cause this child greater harm. The competing harm, as referred to, were the harm to the child of having no benefit from a meaningful relationship with his father, as against the harm to the child from having been removed from his primary attachment. The expert evidence was that the greatest harm came from not having the benefit of a meaningful relationship with both parents as this was “fundamental”.
I was satisfied that this young child had been exposed to the mother’s poor view of the father and unfortunately to the mother identifying each and every allegation about the father to a psychologist in the presence of the child on more than one occasion.
In real terms, I was satisfied that this child had been harmed by the mother’s behaviour and will continue to be harmed by the mother’s behaviour.
It was suggested in submissions on behalf of the mother today that there was no evidence to support the fact that the child had been harmed. Well, I found that the mother had exposed the child to a very poor view of the father, and that was in paragraphs 104, 107 and 112 of my decision. And I discussed the impact on the child as a result of those findings, at paragraph 113, 132 and 133 and 134.
If I were to grant a stay, in my view, I would have to be satisfied that there is some arguable case present in the notice of appeal because otherwise I would be effectively placing this child back into the residence of a person whom I have decided will cause unacceptable harm to this child.
The mother argues that I have placed the child at an unacceptable risk of harm in the father’s care. Effectively, the same argument she ran at trial. She also argues that it would be disadvantageous to this child for him to live with his father until the appeal is heard in circumstances where if the appeal is successful, the child would be returned to the mother’s care.
The evidence supported a finding that the child had a strong bond with his father and a secure attachment to him. The evidence also supported a finding that the father has the capacity to meet the needs of the child. In those circumstances, I am not satisfied that in living with the father, this child would be disadvantaged.
I do accept, however, that removing the child from his mother will cause him trauma. I took that into account in making my decision, particularly in deciding that the child should spend ongoing supervised time with the mother rather than, as was sought by the father, a moratorium.
In those circumstances I cannot see where I could grant the stay in terms that would be satisfactory to this child.
The appeal will not be deemed nugatory if a stay is not granted. If the appeal is successful and my order is discharged, the child will return to live with the mother. If the appeal is unsuccessful, the child will remain in a stable and safe living arrangement.
When I turn to the grounds of appeal there are five listed. The first ground is that the orders I made: “…were against the evidence and the weight of the evidence and were otherwise not supported in law.”
When I consider my judgment I am not satisfied that this ground amounts to an arguable case. My judgment carefully considered each and every aspect of the evidence in relation to the allegations the mother made and, importantly, I gave due consideration to the weight I should attach to that evidence.
I do not understand the argument that the orders are not supported in law. The second ground of appeal is that I:
“…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.”
These are the two primary considerations set out under section 60CC of the Family Law Act 1975 Cth. At paragraphs 44 to 129 of my judgment I carefully set out my findings in relation to those two primary considerations having regard to the evidence that supported whether one party or the other would facilitate a meaningful relationship and the evidence that would support a finding of unacceptable risk in relation to either party.
I specifically inquired of the family consultant as to what would be more harmful to this child, as I have previously set out. In reliance upon her evidence my decision was to remove the child from his primary attachment.
In real terms, I decided there was a need to protect the child from psychological harm from being exposed to family violence in the form of the mother denying the child the right to have a relationship with his father and paternal family members. In those circumstances, I do not believe ground 2 amounts to an arguable case.
The third ground of appeal is that I:
“…erred in taking into account irrelevant matters and failing to properly take into significant issues that were raised, in particular, the disclosures the child makes against the father.”
In the mother’s affidavit in support of the application in a case she makes no mention of what the irrelevant matters are that I took into account. It was submitted by counsel today that the findings I made in relation to Ms D were not open to me. It was submitted that I had found that exhibit 4 was clear evidence that she had diagnosed the father and made findings about the father. That submission is wrong in fact. Paragraph 20 of my judgment says this:
“In the report annexed to Ms D’s affidavit it is clear that Ms D has made adverse findings about the father and diagnosis concerning the father without ever having spoken to him or, indeed, reading any material relating to him.”
When one turns to that affidavit, paragraphs 7, 8, 42, 43 45 46, 47, 48, 49, 66 and 69 all relate to findings and potentially, on one occasion, diagnosis of the father by Ms D. That submission must fail.
The second part of this ground of appeal is that I failed to properly take into account significant issues that were raised, in particular, the disclosures the child made against the father. As I said earlier, I carefully considered each and every allegation raised against the father and gave reasons as to why I found the evidence could not support a finding that the father was an unacceptable risk. In my view, there is no arguable case.
The fourth ground of appeal is that I:
“…erred in not allowing the child psychologist to testify in the proceedings because she could not attend in person.”
The psychologist referred to in the notice of appeal is Ms D. The mother’s legal representatives were put on notice that she was required in person, having regard to the nature of her evidence. This was done prior to the first day of trial. Notwithstanding being put on notice, counsel for the mother made an oral application that Ms D be permitted to give her evidence via the telephone in circumstances where Ms D lived in Bundaberg. I heard argument from both counsel in relation to the application and gave an ex tempore decision in relation to the application and decided that Ms D would be required to attend in person.
The trial was originally listed for one day however it was quite clear that the matter would take at least one additional day. During the course of the first day of trial arrangements were made between the bench and counsel for the trial to continue one week later, on 12 August 2020. Prior to adjourning I made it very clear to the mother’s counsel that Ms D would be required to attend in person. Counsel for the mother informed me that it may be difficult but they would do their best, and then inquired whether I would issue a subpoena for her attendance and I declined.
On 11 August 2020 my chambers received an email with a letter from Ms D attached. This was brought to my attention however I did not read the material prior to commencing court on 12 August 2020.
On 12 August counsel for the mother inquired as to whether I had read the material and I informed her that I had not, as there was no application before the court. The mother’s counsel then brought an oral application for Ms D to appear via telephone. That application was opposed. And once again I gave an ex tempore decision dismissing the application.
The mother’s counsel then informed the court that in the circumstances they would not be relying upon Ms D. No application was brought for an adjournment so that Ms D could attend in person at a subsequent time.
In my reasons for decision dated 31 August 2020 at paragraphs 15 to 22, I once again set out the reasons why it was important for Ms D to attend in person. There were real issues as to her credit and I have real concerns about her evidence in circumstances where it was clear from an initial reading of her evidence, that she was aligned to the mother and, indeed, was providing advice to the mother as to how she could run her case.
Indeed, at first instance, I was not satisfied that Ms D’s report would be given much weight in those circumstances. Whilst I accept that the trial occurred during the COVID-19 pandemic, there was nothing about Ms D and the need for travel to Brisbane that was affected by the pandemic. The court was operating under a COVID-safe plan and the trial was conducted in person. For those reasons, I do not consider there is an arguable case on appeal.
The final ground of appeal is that my decision:
“…was unreasonable and unjust in particular in deciding to change the primary residence of the child from the mother to the father where there was no proper basis to do so.”
In my view, having, once again, perused my decision, I cannot see that there is an arguable case in relation to this ground of appeal. My decision carefully sets out the basis upon which my decision was made and although I acknowledge the mother is unhappy with my decision, I do not believe that it could be arguable that there was no proper basis to make the decision I made. In those circumstances, I am not satisfied that the mother has an arguable case on appeal.
I am unaware as to the length of time it will take for this appeal to be heard. I am aware that the mother in her affidavit in support gives evidence that she has instructed her solicitor to expedite an appeal.
If I were to grant this stay the child would return to live with his mother, who I have found poses an unacceptable risk to him and he would be required to spend supervised time with the father.
Prior to the trial concluding, the child was spending unsupervised time with the father. In all of those circumstances, I am not satisfied that there would be satisfactory arrangements that I could make for this child that would support the granting of a stay. As I say, at least two of the grounds of appeal raised by the mother in her notice of appeal relate to the weight I have attached to certain evidence.
In circumstances where it is a discretionary judgment, the mother’s prospects of a successful appeal are further limited. For these reasons, I am satisfied that I should dismiss the application in the case and accordingly I make that order.
Issue of costs
Section 117 of the Family Law Act relates to the issue of costs. Subsection (1) provides:
“Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.”
That is, in family law matters, the general proposition, general rule, is that each party will bear their own costs. Subsection (2) provides that:
“If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.”
That is, as a preliminary matter, I must be satisfied that there are circumstances that justify me in making a costs order.
Costs orders in this jurisdiction are the exception, not the norm; And that is particularly true when the proceedings relate to children.
The applicant today brings her application for a stay in circumstances where she has filed a notice of appeal. She has a right under the Act to file that stay, and a right to be heard in relation to that stay, as she has a statutory right to appeal. The fact that I have found, in my view, that there is no arguable case and that I should otherwise dismiss the application, does not inform the reasons for why the mother brought it.
That is, she believes she had a bona fide reason to bring the application in a case and obviously it was a necessary application in circumstances where she believes that I have erred in making the decision I have made.
It is often the case that in very high conflict children’s proceedings parties do appeal decisions made, and there are many applications brought before a final trial. That is the nature of litigation. It is unfortunate, but it is something that happens every day in this jurisdiction.
I will therefore make no order as to costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Associate:
Date: 12 October 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Stay of Proceedings
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Jurisdiction
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Procedural Fairness
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