Farmer & Rogers (No. 2) - [2012] FamCAFC 207

FAMILY COURT OF AUSTRALIA

FARMER & ROGERS (NO. 2)

[2012] FamCAFC 207

FAMILY LAW – APPEAL – CHILDREN – Where the appellant mother appealed from final parenting orders and subsequent orders providing for a slight variation of the changeover venue – Where the appeal was entirely without merit – No appealable error established.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), r 22.22

Farmer & Rogers [2009] FamCAFC 117

APPELLANT:

Ms Farmer

RESPONDENT:

Mr Rogers

INDEPENDENT CHILDREN’S LAWYER:

Linda Adcock

FIRST APPEAL NUMBER:

NA 101 of 2011

SECOND APPEAL NUMBER:

NA 44 of 2012

FILE NUMBER:

BRC 2790 of 2009

DATE DELIVERED:

7 December 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Ainslie-Wallace & Murphy JJ

HEARING DATE:

6 November 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE IN RELATION TO THE FIRST APPEAL:

29 November 2011

LOWER COURT MNC IN RELATION TO THE FIRST APPEAL:

[2011] FMCAfam 1277

LOWER COURT JUDGMENT DATE IN RELATION TO THE SECOND APPEAL:

17 April 2012

LOWER COURT MNC IN RELATION TO THE SECOND APPEAL:

Not applicable

REPRESENTATION

FOR THE APPELLANT:

Ms Farmer in person

FOR THE RESPONDENT:

Mr Rogers in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr George

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

Appeal NA 101 of 2011 be dismissed.
Appeal NA 44 of 2012 be dismissed.
The application in an appeal filed by the appellant mother on 22 October 2012 be dismissed.
The amended applications filed by the respondent father on 10 October 2012 be dismissed.
The appellant mother pay the Independent Children’s Lawyer’s costs of and incidental to the appeal as agreed or, in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farmer & Rogers (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

First Appeal Number: NA 101 of 2011
Second Appeal Number: NA 44 of 2012
File Number: BRC 2790 of 2009

Ms Farmer

Appellant

And

Mr Rogers

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Farmer (“the mother”) brings two appeals from decisions of Jarrett FM.
NA 101 of 2011 (“the first appeal”) concerns the Federal Magistrate’s decision delivered on 29 November 2011 and relates to parenting matters between the mother and Mr Rogers (“the father”) in relation to their child, C (“the child”), who was born in September 2008. The appeal from eight of those orders was first filed on 20 December 2011 and then amended on 2 October 2012.
After the orders of 29 November 2011 were made, the father filed an application to vary the terms of some of the orders made. Further orders were made by the Federal Magistrate on 17 April 2012. By NA 44 of 2012 (“the second appeal”), the mother appeals from most of those orders.
Both appeals were heard together.
On 10 October 2012, the father filed amended applications in each appeal seeking that the mother’s appeals be dismissed for want of compliance with r 22.22 of the Family Law Rules 2004(Cth). The complaint was directed at the mother’s summary of argument. In the affidavit in support of the application in the first appeal, the father says, “The appellant does not clearly, if at all, state specifically where the learned Federal Magistrate has made an error in law or fact”. He then cites a paragraph of the mother’s summary of argument and says, “The entire paragraph is without evidentiary foundation does [sic] not state where the learned Federal Magistrate made an error in fact or law, and the paragraph is a nonsense argument that is impossible to reply to and simply unfair to try to formulate a reply”. The father’s earlier application also seeking dismissal was heard by May J on 11 September 2012. Orders were made requiring the mother to file an amended notice of appeal and summary of argument.
The father’s applications that the mother’s appeals be dismissed were strongly supported by counsel for the Independent Children’s Lawyer who argued that to permit the mother to continue her appeals would amount to an abuse of process. He argued that the mother had had three hearings in relation to the same issue and had prosecuted two appeals. He too argued that nothing in the mother’s summary of argument demonstrated error, nor a denial of procedural fairness or natural justice.
A decision to dismiss an appeal for failure to comply with procedural requirements is not to be made lightly. In this case, the mother had otherwise complied with all directions, filed the appeal books, and made a genuine attempt to improve the summary of argument. Each party was otherwise ready to proceed.
Although there was some force in the father’s submission, supported by the Independent Children’s Lawyer, that the grounds of appeal as articulated in the Notice of Appeal and the mother’s summary of argument did not appear to raise any proper ground of challenge to the judgment, we are of the view that, as the mother represents herself, we would not take the robust approach urged on us and we will consider her appeals on their merits.

Background

In December 2007, the mother and father commenced a relationship. They never lived together and, in August 2008, their relationship ended.
In September 2008, the child was born. The father attended the birth of the child and he visited the child at the mother’s residence regularly.
In early 2009, the mother told the father that she would be moving to live in Adelaide. In March 2009, the father provided the mother with a document entitled “Notice of Intention” by which he set out matters which, if agreed to, would provide a structure for his continuing contact with the child in the event that she moved to Adelaide.
In March 2009, the mother moved to Adelaide and, on 31 March 2009, the father commenced proceedings in the Federal Magistrates Court seeking orders that the child spend alternating weeks with him and the mother and that, in the interim, the child spend time with him for five hours twice each week.
In April 2009, the father sought a recovery order. On 15 May 2009, after hearing the application, Coates FM made orders, including an order that the mother return the child to Queensland, and provided for the child to have time with the father.
On 5 June 2009, Coates FM made further orders which modified somewhat the orders of 15 May 2009.
The mother appealed against the orders of 15 May 2009 (as modified). That appeal was heard by a single judge pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”). The appeal was allowed on 10 July 2009 and the parties’ applications were remitted for rehearing before a different Federal Magistrate (Farmer & Rogers [2009] FamCAFC 117).
On 15 July 2009, the applications came before Baumann FM who appointed an expert, Ms J, to prepare a family report. The report was released to the parties in August 2009.
On 21 December 2009, the matter was heard by Baumann FM and, on 17 June 2010, the Federal Magistrate delivered his reasons and made interim orders which provided for an increasing regime of time between the child and the father to include overnight time. Because the orders were expressed to be on an interim basis, the Federal Magistrate determined that the mother could not move to Adelaide.
The mother unsuccessfully applied for an order staying the orders of 17 June 2010. She thus brought two appeals, one against the orders of 17 June 2010 and the other against the Federal Magistrate’s refusal to stay those orders. The appeals were heard together, the substantive parenting appeal was allowed and the stay appeal was dismissed (Farmer & Rogers [2010] FamCAFC 117). In the course of delivering the reasons on the appeal on 15 December 2010, the Full Court said:
184. In the amended notice of appeal against the judgment of 17 June 2010 there are 52 grounds of appeal… In the notice of appeal against the judgment of 29 July 2010, although the grounds of appeal are not numbered, there are perhaps 11 complaints by the Mother…
185. The written submissions of the Father filed on 27 September 2010 dealt with the grounds of appeal in the Mother’s original notice of appeal. It was contended that it was difficult to ascertain what grievances the Mother had with the conduct of the trial by the Federal Magistrate and ultimately his findings. The Independent Children’s Lawyer also complained that it was difficult to ascertain with precision the matters sought to be agitated by the Mother and that the grounds of appeal “in general, lack particularity”.
As we have said, the appeal was allowed, the orders of the Federal Magistrate set aside and the matter remitted for rehearing before another Federal Magistrate. The orders providing for time between the child and the father were continued as interim orders. The mother could not relocate to Adelaide.
In March and May 2011, the matter was heard by Jarrett FM and, on 29 November 2011, his Honour delivered reasons and made orders. It is not necessary to set out each order made. In brief, his Honour made orders that the parties have equal shared parental responsibility for the child, that the child live with the mother and that the child spend time with the father which increased to the point where the child would spend each alternate weekend with the father and overnight time with him in the other week. His Honour also made orders that the parties meet at a specified venue for the purpose of handing over the child before and after she spends time with the father.
The mother appeals from eight of those orders in the first appeal.
In April 2012, the father applied for a variation of the orders of 29 November 2011. It is not necessary to set out in detail the proposed changes other than to observe that they involved changing the commencement day of weekend time. The father also sought a slight variation of the location of where changeovers of the child would take place.
The application came before Jarrett FM on 17 April 2012. The mother opposed the proposed changes and sought to re-argue many of the issues determined by the Federal Magistrate in the substantive hearing. His Honour made the orders as requested by the father.
The mother appeals from 10 of these orders in the second appeal. No formal reasons for judgment were given. In order to determine the appeal, we have considered the transcript of the proceedings on 17 April 2012.
In the substantive hearing, his Honour had the benefit of a report from a family consultant, Ms Q. The mother had sought to rely on the evidence of a psychologist, Ms M. Ms M was not available to give evidence and her evidence was in the form of a report attached to the mother’s affidavit. His Honour found at [62] of his reasons of 29 November 2011 that Ms M’s report was of little value to his determination of the issues because she had not interviewed the father, she had not sought to observe the child’s relationship with him and she had not considered the nature of the child’s relationship with him other than as a reflection of the mother’s views.

Ms Q’s Report

Ms Q, in setting out the parties’ respective positions, said that the mother believed that the time then being spent between the child and the father was “too long” and that the mother preferred that the child’s time with the father be as recommended by Ms M. The mother told Ms Q that her preference was for the child to spend only one night per week with the father and one whole day in that same week.
The mother told Ms Q that she wished to move to Adelaide for the support and companionship of her family and that she had the opportunity to work there.
Ms Q recorded the mother’s allegation that the father had assaulted her on an occasion when she was handing the child over to him. Apparently she had sought a domestic violence order and, at the time of the interview, the matter was part heard. The complaint as recorded by Ms Q was that the father “…scratched her arm…” when he “…ripped [the child] out of [her] arms”.
Ms Q said that the mother’s decision to move interstate and thus requiring her two other children to move with her and undergo change is “…an example that she is able to put her needs first and/or have the children experience some short term discomfort for a longer term goal”. She continued, “I would suggest she needs to consider the inconveniences for [the child] in this light in that the short term problems she may experience will be outweighed by the longer term benefits of having a meaningful relationship with her father”.
Ms Q believed that both parents contributed to the communication difficulties between them and did not think that would change if the father were to have the child living with him.
Ms Q found the child to have a secure attachment to the mother and, if the child was to spend the majority of time in the mother’s household, given her age, she would need to spend at least two occasions with her father each week.
In considering the time that the child would spend with the father, Ms Q said, “Ms [Farmer] makes decisions for [the child] based on what she thinks her needs are and does not take into consideration her relationship with her father”.
In conclusion, Ms Q recommended that the child remain living with her mother and spend time with her father one night and one day on two occasions each week. She thought that, in about 18 months, the child would be able to spend one midweek night each week with her father and each alternate weekend from Friday until Sunday evening.

The Federal Magistrate’s Reasons for Judgment

In his reasons of 29 November 2011, the Federal Magistrate observed that a “significant issue” in the case for the mother was the frequency that the father’s work takes him away from the Sunshine Coast where he lives (at [21]). His Honour noted that the mother contended that the father works “regularly in Perth” and argued that he could then “call in” and visit the child on his way from Brisbane to Perth (at [21]).
His Honour said that he was not satisfied that the father does work regularly in Perth and said, “The evidence does demonstrate that Mr [Rogers] has worked in and travelled to Perth, but I am not satisfied that it is or will be a regular occurrence” (at [22]).
As to the father’s credit, his Honour noted that, while the mother’s cross-examination of him demonstrated “some inconsistencies between [the father]’s evidence before Baumann FM and before [his Honour]”, he was not satisfied that “those inconsistencies were of any consequence” (at [28]).
His Honour particularly considered the mother’s allegation that the father had assaulted her on an occasion that she was handing over the child for a contact visit. The father denied the allegation and was supported in that by the paternal grandfather who had been there and who had made notes of the occasion. His Honour found that the mother had not been scratched as she alleged and rejected her evidence about that incident (at [31]).
His Honour referred to evidence given by the father of one of the mother’s other two children. He accepted that evidence and found that the mother had been difficult and obstructive of his attempts to see his child (at [37]).
Turning to the credit of the mother, his Honour found that she indulged in “…hyperbole, exaggeration, speculation and she stated opinion or conclusion as fact…” (at [43]). His Honour found that, while not specifically finding that it was deliberately done, parts of her evidence were misleading and false and his Honour generally preferred the evidence of the father to that of the mother (at [43]).
His Honour identified, as a significant issue in the proceedings, the issue of whether the mother will facilitate a meaningful relationship between the father and the child. He concluded that he had a real concern that the mother does not believe there is any benefit to the child of that relationship and had “grave doubts” that the child’s relationship with the father will be fostered by the mother (at [53]). He found that the father had the capacity to ensure the child’s relationship with the mother is fostered and encouraged (at [54]).
After referring to Ms Q’s report, his Honour found that the evidence established that the child had a good relationship with each parent and was comfortable around each of them (at [60]).
However, he said:
66. I have a real concern that Ms [Farmer] does not demonstrate an unconditional willingness and an unfettered ability to facilitate and encourage a close and continuing relationship between [the child] and Mr [Rogers].
He further accepted the father’s evidence that the mother’s behaviour at changeover was difficult and concluded that the mother had no insight into the effect of her behaviour at those times on the child (at [68]).
His Honour accepted the father’s contention that the mother had never offered “make up time” on occasions when he had been unable to spend time with the child (at [69]).
He concluded:
70. I am satisfied that Ms [Farmer] will facilitate time between [the child] and her father but only to the extent that it suits her, or she otherwise agrees with it. If it clashes with her views, I am satisfied that she will act in the way in which she perceives will suit her purposes and those of [the child]. My view is consistent with the view of Ms [Q] set out in paragraph 113 of her report.
His Honour accepted Ms Q’s opinion that, if the child was to move residence, it would “cause her immediate distress in being separated from her mother and in adjusting to being cared for by her father who has only cared for her for one night at a time and therefore has only a limited knowledge of her routine and needs” (at [73]).
Further, his Honour accepted Ms Q’s opinion that, if the child moved to Adelaide and the father remained living in Queensland, “this is likely to have a significant impact on her ability to have a meaningful relationship with her father” (at [75]). He further observed that Ms Q’s conclusion was not “the subject of serious challenge” (at [76]).
In dealing with the mother’s contention that, if she moved to Adelaide, the father could come there to see the child, his Honour said that the evidence disclosed that between June 2010 and January 2011 the father had travelled twice to Adelaide for social purposes (at [82]).
His Honour also found that, on occasions when the child had been in the father’s care, his parents had looked after the child when he had to “slip out” (at [87]). He said that, “There is nothing extraordinary or inappropriate about that” (at [87]).
Again, accepting Ms Q’s opinion expressed in paragraph 113 of her report about the mother’s ability to put her needs before those of her children, his Honour said:
90. I am satisfied by the evidence that Ms [Farmer] has scant regard for [the child]’s entitlements under the orders that have been made by Baumann FM to spend time with her father.
He concluded that the mother engages in behaviour she knows will upset the father and has manufactured circumstances to justify withholding the child from the father (at [91]).
As to the mother’s proposed move to Adelaide, his Honour found that her reasons were genuinely held and that her parents and extended family live there (at [102]). He observed that Ms Q had said that the mother managed to successfully parent her other two children without the support and assistance of her family in Adelaide (at [102]).
His Honour rejected the mother’s contentions that the father had not been present at all times during the occasions when the child had been spending time with him and her “vague suggestion” that the paternal grandparents were not capable of looking after the child (at [105]). He found that the child was entitled to a relationship with the paternal grandparents (at [106]).

His Honour concluded that no evidence rebutted the presumption of equal shared parental responsibility but accepted Ms Q’s contention that, until the parents improve their parental relationship, there cannot be an equal time arrangement (at [110]).
He agreed that the child should continue to live with the mother because the child is primarily attached to her and, in this way, the child can continue her close relationship with her siblings in the mother’s household. He found that the child’s best interests were served by her living with her mother and having regular and frequent time with the father. He continued:
112. …Ms [Q] made it clear in cross-examination that the proposals that Ms [Farmer] makes will not suit [the child] in that it will not permit the development of a proper relationship between [the child] and Mr [Rogers].
As to the move to Adelaide, the Federal Magistrate said:
115. Ms [Farmer] wishes to live in Adelaide. A move to Adelaide carries no particular benefit for [the child]. She has extended family in Adelaide, but she has the same on the Sunshine Coast. Ms [Farmer] says that she has employment opportunities in Adelaide, but I am not satisfied on the balance of probabilities that Ms [Farmer] does have the employment opportunities in Adelaide that she claims. I am not satisfied that she has sought to secure employment in the Sunshine Coast area as she claims. Ms [Farmer] presently has real property on the Sunshine Coast.
…
118. I am satisfied that the orders proposed by the Independent Children’s Lawyer will best meet [the child]’s needs. They are predicated on the basis that she will remain living on the Sunshine Coast. The orders that I have set out above do not specify where Ms [Farmer] or [the child] should live. The orders do necessarily require that [the child]’s parents live close enough to each other for them to meet their obligations under the orders. Both parents presently live on the Sunshine Coast. Unless the parents agree otherwise, they will have to continue to live on the Sunshine Coast so that the current orders can be carried out.
119. Moreover, the order for equal shared parental responsibility will require the parties to agree on any changes to [the child]’s living arrangements (such as the location of her residence) that will make it significantly more difficult for her to spend time with either of her parents.
As we have already indicated, the father sought some minor variations to his Honour’s orders of 29 November 2011 and that application was heard on 17 April 2012. The purpose of the application was to vary the orders to conform to the opening hours of the venue at which changeovers of the child were to take place.
The transcript of the hearing is brief. His Honour sought the mother’s views. In responding that she opposed the orders sought, she raised matters which, as his Honour indicated, had been raised and determined in the earlier proceedings. The mother also sought to introduce further evidence on the issue of what occurred at changeover.
The following exchange occurred:
…
HIS HONOUR: Yes. Are they events that pre-date the trial?
MS [FARMER]: No. But at the trial I did say that that contacts [sic] were going fine – that I would just say goodbye to [the child], have a good time with Daddy and ---
HIS HONOUR: And ma’am, I didn’t believe you.
MS [FARMER]: That’s right. And I’m [sic] now have attached ---
HIS HONOUR: And I’m not about to revisit my credit findings about you.
…
His Honour made orders as sought by the father.

The Appeals

Appeal NA 101 of 2011: “The First Appeal”

The earlier quoted paragraph from the Full Court’s decision of 15 December 2010 determining the mother’s appeal against the orders of Baumann FM has particular resonance in this matter. The mother’s grounds of appeal (initially some 66 grounds) were amended and reduced to six.

The mother’s summary of argument (initially comprising some 44 pages) was again reduced by direction so as to ultimately comprise 10 pages of closely-typed submissions taking issue with nearly every paragraph of Jarrett FM’s reasons. The arguments, as the father submitted, “…[comprise] rambling nonsensical statements, which are essentially statements of complaint against the Federal Magistrate and the Findings of the Court”. We were not further assisted by, nor were the arguments clarified by, the mother’s oral submissions.
Counsel for the Independent Children’s Lawyer submitted that the mother misunderstood and misinterpreted findings in the reasons of Jarrett FM, the reasons delivered by the Full Court and in the evidence and that she sought to make her case based on that misinterpretation. We agree. We need to give but a few examples to illustrate.
The mother asserted that the Full Court had “…stated many times during the Appeal hearing ‘Why wasn’t an order made for the mother to relocate’”. No such statement was made. The mother seemed unable to be convinced of it.
In relation to paragraph 122 of the Federal Magistrate’s reasons, the mother asserted (errors in original):
NOT OPEN IN THE EVIDENCE TO FIND I HAD EVER BEEN ABUSIVE:
There was no evidence as above, in weight of evidence for the magistrate, to state, that my behaviour is abusive, just because the father falsely stated this, but could not at any time during both trials state a time or event where Ive said a bad word. Refer above.
Further, the mother asserted (errors in original):
At 56, of judgement: ERRED: when accusing of abuse. Im always positive, encourageing so that [the child] will go on contact to her father, without too much distress. [The child] is handed over very quickly, with only positive and encourageing words. This is now backed up when I have taped changeovers, because Mr [Rogers] continued to make false statements, through letters he has sent me, to form an untrue account of what occurs at changeovers, as in the appeal NA 44/2012 as I had this evidence to show Magistrate Jarrett to prove that the father made up these statements to gain the order to use the contact centre so he can be interstate working and instead of spending time with our child. The fathers letters are a form of intimidation, and emotional abuse, & I have reported on his letters, from 2009, & witnesses, including Dr [P], have reported the effects these letters have on me. There is much evidence on the fathers continueing letters to me, the effects, they have on me & my family, this should be considered under s.60cc[2][b].
The Federal Magistrate said:
56. Neither party suggests that there was a need to protect [the child] from harm by reason of being exposed to abuse, neglect or family violence. Mr [Rogers] gives evidence that changeovers between he and Ms [Farmer] have been difficult and he characterises Ms [Farmer’s] behaviour as confrontational, intimidating and abusive. To the extent that [the child] is exposed to that behaviour or to the anxieties of either parent at changeovers, it could be said that she is at risk of harm by reason of being exposed to a form of emotional abuse or family violence. Neither party put their case on that basis, however, and the Independent Children’s Lawyer did not suggest that this was a case where the harms identified in s.60CC(2)(b) were an important matter for consideration. The issues raised by the parties under this head can be more conveniently dealt with when considering the parties [sic] capacity to meet [the child]’s emotional needs.
At paragraph 68, the Federal Magistrate found that the mother’s behaviour at changeover is “difficult”. No finding that she had been abusive was ever made by his Honour. Nevertheless, the mother was determined that he had and the above submissions formed part of the matters advanced on the appeal.
In the first and substantive appeal, the mother raised six grounds of challenge to the Federal Magistrate’s determination.

Ground 1: “Weight of evidence – where the Federal Magistrate made judgement, against the weight & didn’t put weight on Evidence”

In the mother’s summary of argument, some 54 paragraphs are taken up in advancing this ground which in turn refer to 66 of the 123 paragraphs of the reasons. We do not propose to set out those paragraphs but we have considered each. In each and every paragraph, the mother takes issue with findings made by the Federal Magistrate that do not accord with her evidence or submissions or the orders that she sought. Findings of fact that do not favour her are said to have been made wrongly. In essence, she argues in these paragraphs that the judgment is wrong. She continues to assert her allegations about the father and argues that the Federal Magistrate’s findings that do not accept them are made in error. Nothing advanced in that document in support of the ground of appeal raises any appealable error. Again, the point is exemplified adequately by two examples.
In the summary, the mother claims that the Federal Magistrate failed to “…weigh up evidence about Mr [Rogers’] work, & continuing travel, once he gained orders”. She argues that the father was not available to care for the child because, she asserts, he frequently travels with his work to Perth and other places.
This issue was considered by the Federal Magistrate (at [21] and [22]) and he found (with respect, correctly) that the evidence did not demonstrate that the father worked regularly in Perth.
We also observe that in considering the evidence before Baumann FM in the appeal against his orders, the Full Court observed that, before September 2008, he worked for himself as a consultant and his clients were based in Perth. In September 2009 the father changed employment and commenced working for a company and from then his work was “from home”. He further said that the work does not require him to travel from his home in the Sunshine Coast.
Nothing to which the mother referred in her summary of argument or in oral submissions on the point support the asserted error. Further, the material to which the mother referred did not support what appeared to be her contention which was that the father’s work caused him to be frequently absent from his home.
This ground of appeal is not made out.

Ground 2: “It was not open on the Evidence to find that I have ever been abusive towards the father at any time & this was proven during 2 x trials & during cross examination of the father - He couldn’t state a time”

We have already dealt with this argument earlier. The ground is misguided. No error has been demonstrated.

Ground 3: “Erred in facts of Evidence; when making judgement on relocation case, stating I offered 1 night in Brisbane when the contact offered was 12 x per year for over 7 days, 8 x in Adelaide, 4 x [Sunshine Coast]”

This ground is directed to paragraph 9 of the Federal Magistrate’s reasons where he said dealing with the parties’ proposals:
9. Ms [Farmer] proposes that [the child] live with her and that she be permitted to live in Adelaide. Her proposals for time between [the child] and her father are very difficult to determine. It seems that she contends that [the child] should spend one overnight period per month with Mr [Rogers] in Brisbane and that he could spend time with her whenever he came to Adelaide. She thought that Mr [Rogers] would be able to come to Adelaide regularly because of his working commitments.
The mother argued that in fact she offered considerably more than that to which the Federal Magistrate referred. She referred the Court to her proposals in her response filed 23 February 2011. She seeks 16 orders. The mother filed an amended response to the father’s application after she received the report of Ms Q, and the document indicates on its face that it is filed in response to that report. There are 37 proposed orders sought. They are difficult to follow. We empathise with the Federal Magistrate’s expressed difficulty in understanding her proposals. However, pertinently, his Honour’s interpretation of what the mother was offering by way of time between the child and the father was not material to his final decision or his orders. It is clear from his reasons that he understood the mother’s position to be that she move to Adelaide and the father could see the child there and on the Sunshine Coast.
The mother’s summary of argument asserts further errors of fact being findings with which she disagreed or positions the mother put to the Court which were not accepted by the Federal Magistrate.
No error has been demonstrated.

Ground 4: “Bias: Magistrate would yell at me when father would falsely state I had given him contact, he would do this assuming father is right”

The mother’s summary of argument makes further allegations but gives no transcript reference to support the assertions.
At one point, the mother says, “[The Federal Magistrate] Tell [sic] me he fell asleep reading my affidavits, & they were boring”. She gave no transcript reference to support this assertion but the Independent Children’s Lawyer did. In the submissions of the Independent Children’s Lawyer reference is made to the transcript of 22 March 2011. There the following exchange took place between the Federal Magistrate and the mother:
…
HIS HONOUR: Well, ma’am, you will have to take my attention to it because as you can see ---
MS [FARMER]: Okay. You’ve got an awful big file.
HIS HONOUR: --- there’s a lot of stuff there, and quite frankly, I fell asleep halfway through it. So you’re going to have to be particular.
…
A little later on in the exchange, counsel for the Independent Children’s Lawyer said:
…
MR GEORGE: Well just for the record, your Honour, that last comment of yours in relation to the volume of material, so that there be no doubt in the mother’s mind of course your Honour would have read all of the material.
HIS HONOUR: Yes, I did read it all. It was a struggle, and I did fall asleep halfway through, but I completed my reading.
…
His Honour did not say, as the mother asserted, that her documents were boring (although that might be considered a not unreasonable conclusion for her to draw from his Honour’s comments).
His Honour’s comment was, in our view, unfortunate and discourteous. Extremely voluminous though her material was, the mother could feel, quite properly, that her material was of scant interest to his Honour. Given the nature of this exchange, we carefully considered the other incidents to which the mother points as reflecting bias in the Federal Magistrate. Other comments might attract the same description earlier applied. But, none of those comments, either individually or taken together, establishes either that the Federal Magistrate had prejudged the issue or had not, ultimately, had regard to the evidence of the mother. Nor do those comments demonstrate that a

fair-minded lay observer might have reasonably apprehended that the Federal Magistrate might not bring an impartial and unprejudiced mind to the resolution of the question his Honour was required to decide. Indeed, despite the infelicitous comments, his Honour’s reasons exhibit, with respect, a careful analysis of the evidence and appropriate findings.
We are not persuaded that his Honour was biased or that the mother has made out her ground of appeal, despite, regrettably, the mother having been left with that impression.
The ground of appeal is not made out.

Ground 5: “Natural Justice: Not accepting evidence, witnesses affidavits, or allowing evidence from the child pychologist [sic], over the phone”

It is unnecessary to set out the mother’s contentions from her summary of argument. The foundation of the ground, and the thrust of the summary of argument is that the Federal Magistrate failed to prefer her evidence over the evidence of others and that the evidence of Ms Q “…should have been adddressed [sic], not just the few points that were pointed out in judgement [sic]”. As our summary of his Honour’s reasons makes clear, he was alive to Ms Q’s report and her conclusions and adopted many of them but, properly, only after proper analysis of all of the evidence. Having done so, his Honour pointed out that many of those recommendations aligned with his own findings on the evidence.
No error has been made out.

Ground 6: “Preconcieved [sic] View of Case: Magistrate didn’t like, that I had an Appeal, and won, didn’t want to know new orders, or read transcript/Reasons for Judgement”

The summary of argument illustrates that underlying this ground is the mother’s misconceived view that, in some way, the previous decision of the Full Court operated to decide issues in the case or, support her view of the facts, or that the reasons of the Full Court amounted to a declaration by it, as she asserts, “Why hasn’t an order made for the mother to relocate”.
No error has been demonstrated.
We will dismiss the first appeal, NA 101 of 2011.

Appeal NA 44 of 2012: “The Second Appeal”

The amended notice of appeal contains 2 grounds (the notice originally filed contained 22 grounds).

Ground 1: “Bias: There is an Appeal pending, magistrate didn’t step down, but at our retrial magistrate wouldn’t hear our case unless I discontinued the 2 Appeals pending, from first 2 hearings before him. Bias: The magistrate is extremely one sided, even when he has evidence against the weight. Belittled myself & my mother, has changed all days of contact, to suit the opening hours of contact centre when the father asked for this but not when mother asked. Extremely Bias. father doesn’t have to have his time”

The mother made no application to the Federal Magistrate on 17 April 2012 that he recuse himself from hearing the father’s application for variation of the Federal Magistrate’s earlier orders. In any event, there was no basis for the Federal Magistrate to do so.
As can be seen from the summary of argument referable to this appeal, much of this ground of appeal relates to issues concerning the Federal Magistrate’s orders of 20 November 2011.
In her summary, the mother complains that the Federal Magistrate said that the child was entitled to have time with the father’s extended family but did not make orders providing for her extended family to have time with the child. In opposing the father’s application to vary the orders of November 2011, the mother submitted:
…
MS [FARMER]: …If Mr [Rogers’] interstate he can have anyone picking her up and that’s my main concern is – I want him to have the contact and we won’t know if he’s in the same state.
HIS HONOUR: No, but she’s entitled to have contact with extended members of his family, not just him?
…
The mother made no application on that day for orders that the child spend time with her extended family.
The mother’s summary of argument on this ground of appeal maintains the same challenges as in the summary in the substantive appeal, repeating that sufficient attention was not given to the report of Ms Q and asserting that the father’s work requires him to travel away from his home. Again, the arguments pertain to weight and confront the difficulties inherent in that to which numerous authorities have referred.
The mother asserts that the Federal Magistrate was biased against her and stated, “I didn’t believe you before and I don’t believe you now”. This is a misquotation. As we have set out in [57] of these reasons, the Federal Magistrate did indeed say that he did not believe her on that point in the trial but not that he did not believe her then but that he was “…not about to revisit [his] credit findings about [her]”. Once again, however, we are of the view that his Honour’s exchange with the mother might be seen as infelicitous and, again, it might be thought understandably that she could well have concluded that he was telling her that he did not believe her. So, too, in respect of another assertion by the mother of bias where she says the Federal Magistrate said to her, “Ma’am I have had enough of you, I really have”.
However, again, there is no basis for a finding that his Honour exhibited bias to the mother. We have considered the whole of the transcript of that proceeding and the father’s application. His Honour’s comments do not reflect bias.

Ground 2: “Not enough weight put on evidence – where magistrate had New Evidence of Intimidating, Abusive Falsely worded letters written by the father, with ipod transcribed evidence, proving letters are false & misleading. The magistrate ignore evidence”

The evidence to which this ground refers was attached to the mother’s affidavit filed in response to the father’s application to vary the contact orders. In it, the mother makes assertions against the father, refers to matters prior to the birth of the child and annexes affidavits of witnesses that were before the Federal Magistrate in the substantive trial but who were not required for cross-examination. His Honour indicated to her that he had read and considered her affidavit.
Given the contents of the affidavit, much of which seems to us to have been wholly irrelevant to the application then before the Federal Magistrate and the inclusion of which seems to have been an attempt by the mother to re-agitate the issues decided in the substantive hearing, it is little wonder the Federal Magistrate made no mention of it. That is not to say that he had not considered it. Again, with this ground, the mother argues error in circumstances where her propositions are not accepted.
The mother has not demonstrated error in this ground.

Application in an Appeal

On 22 October 2012 the mother filed an application in an appeal by which she sought leave to introduce further evidence and leave to issue subpoenas.
In the course of submissions on the application the mother indicated that if the application to issue subpoenas was granted but would have the effect of delaying the hearing of the appeal, she would not press that part of her application.
There was nothing in the affidavit in support of the application that would persuade us to grant leave to issue any subpoenas.
As to the further evidence, all of it was, in effect, an attempt to re-agitate issues heard and determined and was evidence available to the mother at the time of the trial.
For example, the mother asserted before the Federal Magistrate that she had been offered employment in Adelaide at an aquatic centre. She was not accepted on that assertion. She wished to introduce an affidavit from the person who, she said offered her the position. She said that she did not seek an affidavit from that person to file in the substantive hearing, saying that she did not think that the Federal Magistrate would not believe her.
There is no basis on which this, or any of the other material sought to be introduced could properly be included.
The mother’s application will be dismissed. The appeal should be dismissed.

Costs

As is usual we sought submissions from the parties on the question of costs in the appeal to save the time and expense of parties returning to argue the issue once judgment has been delivered.
The father conceded that he had incurred no legal costs and, in the event that the appeal failed, would not seek an order for costs.
The Independent Children’s Lawyer did seek an order for costs.
The mother opposed the making of an order for costs. She said that she was not working. She does own a house in Queensland with a mortgage but with some equity.
This appeal was entirely without merit. The mother is not able to accept the determination of the Federal Magistrate and the finality of proceedings which that brings. It is appropriate that an order for costs be made in favour of the Independent Children’s Lawyer, their costs being from resources provided by the Legal Aid Office (Qld). It was proper that the Independent Children’s Lawyer appeared and that counsel was briefed.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 December 2012.

Associate:

Date: 7 December 2012