Emson and Makin (No 2)
[2022] FedCFamC1A 58
•5 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Emson & Makin (No 2) [2022] FedCFamC1A 58
Appeal from: Emson & Makin [2021] FedCFamC1F 62 Appeal number(s): NAA 54 of 2021 File number(s): NCC 212 of 2018 Judgment of: AUSTIN, CHRISTIE & SCHONELL JJ Date of judgment: 5 May 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the father appeals from final parenting orders providing for the children to live with the mother and the mother to have sole parental responsibility for the children and for the children to spend supervised time with the father for a period of six months – Adequacy of reasons – Where the primary judge’s reasons make plain the basis upon the conclusion was reached – Weight challenge – Where the father misunderstands the distinction between evidence and submissions – Where the father contends the operation of the final orders mean he is not meaningfully involved in the children’s lives – Where the orders of the primary judge struck a balance between the benefit to the children of a relationship with both parents and the risk to the children constituted by the different parenting proposals – Where no error is demonstrated – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65AA, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 35, 69
Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)
Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)
Cases cited: House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Number of paragraphs: 48 Date of hearing: 5 May 2022 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Weightman Solicitor for the Respondent: Mullane & Lindsay The Independent Children's Lawyer: Did not participate ORDERS
NAA 54 of 2021
NCC 212 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR EMSON
Appellant
AND: MS MAKIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, CHRISTIE & SCHONELL JJ
DATE OF ORDER:
5 MAY 2022
THE COURT ORDERS THAT:
1.The appellant’s oral application to adduce further evidence in the appeal is dismissed.
2.The appeal is dismissed.
3.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal in the fixed sum of $14,054.17.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Emson & Makin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCHRISTIE J:
INTRODUCTION
On 20 September 2021, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final parenting orders (“the final orders”) concerning X, Y and Z (“the children”).
A Notice of Appeal was filed on 9 December 2021 by the appellant father Mr Emson (“the father”) seeking the final orders be set aside and that the Full Court of the Federal Circuit and Family Court of Australia (Division 1) (“the Court”) re-exercise discretion and make final parenting orders.
The Independent Children’s Lawyer (“the ICL”) in this appeal filed a Submitting Notice on 16 February 2022.
The respondent mother Ms Makin (“the mother”) sought that the appeal be dismissed.
By way of uncontroversial background the parties separated on a final basis in November 2017 before the birth of the parties’ youngest child and the children have lived with the mother since separation and, after a period of no time, have spent time with the father pursuant to interim orders.
The mother alleged and the primary judge found that the father had engaged in family violence.
The mother contended and the primary judge found that the father had a fixed view that the mother suffered from mental health difficulties which impaired her parenting capacity. The single expert psychiatrist Dr L (“the single expert”), whose opinion was accepted by the primary judge, concluded that the mother’s diagnosis was major depressive disorder in remission (postnatal onset). Being in “full remission”, he concluded, there was no impact on her parenting capacity.
PROCEDURAL ISSUES IN THE APPEAL
On 28 January 2022, his Honour Austin J heard submissions from the father in person, counsel on behalf of the mother and solicitor advocate for the ICL, on the procedural issue of the father’s grounds of appeal. His Honour sitting as a single judge pursuant to ss 32(3) and 32(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) made procedural directions in the appeal under the power conferred upon him by ss 32(3) and 69(4)(b) of the FCFCA Act.
The effect of the orders made by his Honour on 28 January 2022 was to limit the grounds of appeal to the following:
Ground 10: That her Honour erred in that she made errors of law which include inter alia a failure to give adequate reasons, citing reasons 175 and 186 of the reasons for Judgement specifically.
Ground 16: Where her honour has erred in providing no weight to the father’s confirmation of his forgiveness in relation to the mother, but instead the judge referred to the father’s bitterness because of his honesty, which is a court requirement under oath.
Ground 26: Where the children do not have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.
(As per the original)
THE APPEAL
The final orders from which the father appeals find their foundation in the exercise of the primary judge’s discretion. Accordingly, the provisions of House v The King (1936) 55 CLR 499 at 504–505 apply:
… 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. …
Application in an Appeal
At the oral hearing of this appeal the father sought leave to adduce further evidence pursuant to s 35 of the FCFCA Act, being evidence contained in a contested supplementary appeal book. That application was opposed by the mother.
The contested material comprised 1011 pages and was material not before the primary judge. The father was asked to identify with particularity which documents were relevant to the surviving grounds. The father’s written submissions, to which we were referred in support of the application, made reference to isolated documents within the supplementary appeal book, predominantly previous affidavits of the father himself and their annexures. A close reading of those documents does not demonstrate error as asserted and accordingly the oral application to adduce that evidence will be refused.
Ground 10
The father alleges an insufficiency of reasons for the findings expressed at [175] and [186] of the judgment:
175.The outcome of this case is a balance of risk between the children losing their relationship with the father they love and the risk of their exposure to the father expressing vitriolic opinions of the mother they love.
…
186.Time will gradually progress to two day alternate weekends for all three children but no long periods of time. That is the point of balance between benefit and risk for the children.
The primary judge sets out, on the basis of the evidence before her, her conclusion that there is a need for supervised changeover and an initial period of supervision. Both of these Orders function to protect the children from exposure to the father’s opinions of the mother and the lack of possibility that the father will change his attitudes.
Starting with her Honour’s conclusion that it is in the best interests of the children that the changeovers be supervised. Her Honour made reference to the evidence of the child court expert at [118]–[119] of the reasons for judgment, where the child court expert recorded that the parties’ child Y (then aged three), when confronted with the possibility that his parents might be in the same room for the purpose of the observation exercise:
119.… [Y] turned to his mother and said “can you go when Daddy comes”. The mother told him she would and explained that she would be in a room nearby, “the child appeared comforted by this response.”
(Footnote omitted)
Her Honour then went on to set out in her reasons for judgment at [120], the evidence of the child court expert about this reaction on the part of the child as follows:
67.The report highlights that this is a significant response of the child, which the report writer suspects is an indication that the child is not fearful about his own interactions with the father, but he is fearful about his mother’s interactions with the father. This also indicates that the child does have some anxieties around the threats he perceives to his primary attachment figure (his mother), and that he is acting in protective ways. In most cases of separated parents, children still hold a strong desire to spend time with both parents together, and this has typically been the family consultant’s experience in the bulk of family reports completed. In this case, the child’s desire for his parents to be apart when he spent time with them is unusual, and perhaps indicative of the degree of family violence that the child has witnessed.
(Family Report dated 20 July 2018)
At [79] of the reasons for judgment, the primary judge specifically stated that the child court expert had given evidence which the Court accepted that “handover is a risk point”. Her Honour has given proper reasons for the conclusion reached.
The primary judge regarded the need for the initial time to be supervised at [182] of the reasons for judgment:
182.For six months, short periods of supervised time should be fun for the children. The presence of a supervisor has been ordered to ensure that the children are not exposed to any pent up feelings about the trial and its outcome which the father may be experiencing.
She made plain her reasons for ordering an initial period of supervision, those orders are clear, consistent with the evidence and child focused.
As to the need to protect the children from the father’s opinion of the mother, the primary judge concluded at [143] that the father has “impaired capacity to meet the emotional needs of the children”. This was consistent with her earlier finding that the father lacked insight into the impact “of his own belligerent conduct toward the mother and the apprehension his children feel when their parents are together” (at [138]).
The primary judge, concluded at [179] that the father “will continue to ‘tell his truth’ which in practice can result in his telling people what he thinks of them, and others, without holding back”. The primary judge’s conclusion in that regard was consistent with the evidence before her. The children may be present or may be the intended audience consistent with the father’s evidence:
[THE FATHER]: … If there’s something about that I find factually incorrect, I say to [the children] - you know, I will tell them what I – what – you know, what I think’s relevant for their age that’s factually correct.
(Transcript 17 August 2021, p.56 lines 31–33)
[THE FATHER]: … they need to be raised to understand what’s right and wrong. And when [the mother] is doing the wrong thing, and it gets called out, I have no issue with it.
(Transcript 18 August 2021, p.140 lines 44–45)
The impact of exposure to the father’s views of the mother or “his truth” was identified by the single expert and the child court expert in their oral evidence as a potential risk to the children’s emotional development.
As to the suggestion that the primary judge failed to give adequate reasons for concluding that there is a lack of possibility that the father will change his attitudes, her Honour reached that conclusion and set out with particularity the basis upon which she had reached it, relying predominantly on a combination of the single expert evidence and the father’s own evidence which is identified in the reasons for judgment.
The primary judge’s reasons make plain the basis upon which she has reached her conclusion and therefore cannot constitute an error of law.
Ground 10 fails.
Ground 16
The father contends in this ground that the primary judge gave insufficient weight to the evidence concerning his “forgiveness in relation to the mother”.
In his closing submissions, the father said to the primary judge:
[THE FATHER]: I think both parties just need to – without, like you said – there’s no resentment; I have forgiven the mother. I have moved on, personally. We all need to just move forward and say, right, this happened. There’s three fantastic children, and my opinion is, okay, God gave them their qualities; that’s just how I see the world. But, you know facilitate them being happy in the world. That’s the job.
(Transcript 20 August 2021, p. 330 lines 27–31)
The father’s argument before this Court misunderstands the distinction between evidence and submissions. The father certainly made a submission to the primary judge in closing that he had forgiven the mother. His appeal ground argues that her Honour failed to give that submission any or sufficient weight; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386.
The father submits that her Honour placed undue weight on his “bitterness” which he defends as the necessary consequence of being required to give honest evidence under oath.
Even if the father’s remark about forgiveness had been contained in his evidence as opposed to his submissions the primary judge would have been within her rights to accord it no weight given that it was in stark contrast to the father’s evidence when taken as a whole. His affidavit evidence was replete with complaints and regrets about the mother. His oral evidence was similar.
The primary judge was within her rights to conclude, as she did, that time for the children with the father created a risk “of their exposure to the father expressing his vitriolic opinions of the mother…” (at [175]).
There is no merit in this ground and so Ground 16 fails.
Ground 26
The father contends in this ground that the effect of the primary judge’s orders is that he is not meaningfully involved in the children’s lives, implying some legal error in the application of ss 60B, 60CA, 60CC(2)(a), 60CC(3)(b) or 65AA of the Family Law Act 1975 (Cth) (“the Act”).
The father’s ground picks up the language of the objects detailed in s 60B(1)(a) of the Act which provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child …
In 2005 Parliament brought forward the Family Law Amendment (Shared Responsibility) Bill 2005 (“the Bill”) which introduced s 60B to the Act. The explanatory memorandum presented with the Bill, set out that the object of s 60B(1)(a) was to recognise (at 11):
…the importance of ensuring that children are given the opportunity for their parents to have a meaningful involvement in their lives to the maximum extent possible, consistent with their best interests. The intention is to better recognise that children have a right to know their parents and the benefit to children of having a good relationship with both of their parents. However, it is also recognised that this may not be appropriate in situations such as where the safety of the child will be at risk.
Accordingly, it is necessary to understand what orders for time were made by the primary judge and whether or not in the circumstances for these children, they represent meaningful involvement to the maximum extent consistent with the best interests of these children. The mother, at the conclusion of the evidence, sought orders that the children live with her and their time with the father be limited to monthly supervised visits. The father, at the conclusion of the evidence, sought orders that the children live with him and their time with the mother be supervised (if she first undertook psychiatric or psychological therapy).
The orders for time which the primary judge made are set out in Order 5.1 and Order 5.2 as follows:
5.That the father spend time with the children as follows, unless otherwise agreed in writing between the parties:
5.1For a period of six months from the fate of acceptance of the parties and children by Supervision Service B or another supervision service:
5.1.1On one day in each alternate weekend for two hours supervised by Supervision Service B or a similar supervision service, with the costs of supervision to be borne by the father;
5.2 Thereafter:
5.2.1 X and Y:
5.2.1.1Each alternate weekend from 10.00 am Saturday to the commencement of school Monday (or 10.00 am if not a school day)
5.2.2 Z:
5.2.2.1For a period of six months thereafter, on each alternate weekend from 10.00 am Saturday to 10.00 am Sunday;
5.2.2.2Thereafter until Z starts school, on each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday;
5.2.2.3From the time Z starts school each alternate weekend from 10.00 am Saturday to commencement of school Monday (or 10.00 am if not a school day);
5.2.3Whenever occurring in each year, if the children are not already in the father’s care:
5.2.3.1 From 10.00 am to 6.00 pm on Father’s Day; and
5.2.3.2From 2022 onwards from 3.00 pm on Christmas Day to 3.00 pm on Boxing Day.
In addition, her Honour made an order for the father to have telephone or electronic time in Order 8 as follows:
8.That the mother facilitate the reasonable an uninterrupted communication of the father with the children by means of telephone, email or internet-based communication as follows (if not already in the care of the father for that night):
8.1 Each Wednesday;
8.2 On the children’s respective birthdays; and
8.3 On the father’s birthday;
with the father to initiate the call between 6.00 pm and 6.15 pm, the mother to make the children available for the call, and the length of the call to be at the children’s discretion.
It is apparent that the time which the children have with their father pursuant to the final orders is regular and, to the extent that is occurs each alternate weekend, frequent. It is sufficient to maintain and sustain a relationship between parent and child according to the evidence of the child court expert (Transcript 20 August 2021, p.270, lines 32–34). It would appear, having regard to the evidence before the Court, that this was the maximum extent of time consistent with the children’s best interests, for reasons which the primary judge set out in her reasons for judgment (and discussed under Ground 10 above), including, the need to protect the children from the father’s views of their mother.
The primary judge, understood that her role was to strike a balance between the benefit to these children of a relationship with both parents and the risk to these children constituted by the different parenting proposals before her at trial. Her Honour appropriately satisfied the object of the Act in reaching the conclusion that she did based on the evidence before her.
Ground 26 has no merit and so must fail.
OUTCOME
Grounds 10, 16 and 26 presented before the Court are not established. Therefore, having found no merit in any of the grounds, the appeal will be dismissed.
COSTS
A costs order may be made pursuant to s 117(2) of the Act where the Court is of the opinion that there are circumstances that justify so doing. In exercising the discretion conferred on the Court to make a costs order it is necessary to have regard to any relevant matters in s 117(2A) of the Act.
The ICL in this appeal filed a Submitting Notice on 16 February 2022, in which he elected to not be heard on the question of costs. The ICL has not participated in the appeal after 16 February 2022 and no order for costs will be made in his favour.
The mother relies on her amended costs schedule filed 4 May 2022 and asks the Court to make an order pursuant to ss 117(2A)(a) and 117(2A)(e) of the Act where the appeal is “wholly unsuccessful” and based on her financial circumstances. Before us the mother sought to rely on a statement of financial circumstances which was received with the consent of the father. The father was given the opportunity, and took up the opportunity, to address us about his own financial circumstances. I accept that neither party is in a strong financial position but on balance, particularly having regard to their liabilities, the father is in a stronger position. Both of the sections identified in the submissions made on behalf of the mother are engaged and favour the making of an order for the mother’s costs.
Effectively the mother seeks a costs order be made requiring the father pay her costs in the sum of $14,054.17 which mother’s counsel confirmed represents party/party costs at scale and the Court will make that order.
SCHONELL J:
I agree with the reasons and orders as proposed by Christie J.
AUSTIN J:
I too agree with the orders proposed and the reasons given by Christie J and the orders will be as follows:
(1)The appellant’s oral application to adduce further evidence in the appeal is dismissed.
(2)The appeal is dismissed.
(3)The appellant shall pay the respondent’s party/party costs of and incidental to the appeal in the fixed sum of $14,054.17.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Austin, Christie & Schonell. Associate:
Dated: 10 May 2022
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