FINDLEY & VITEZ
[2017] FamCAFC 246
•23 November 2017
FAMILY COURT OF AUSTRALIA
| FINDLEY & VITEZ | [2017] FamCAFC 246 |
| FAMILY LAW – APPEAL – CHILDREN – where the orders made by the trial judge provided for the child to move from living with his mother in South Australia to live with his father in Queensland – where those orders provided that the child’s time with the mother was to be supervised at a contact centre – where the mother appeals those orders – where the mother asserts the trial judge was biased against her – where the mother asserts the trial judge failed to take into account the interests of the child in the orders – where the mother asserts the trial judge made decisions contrary to the evidence – where no error demonstrated – where appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the mother sought to adduce further evidence in the appeal – where that evidence purported to establish that the care arrangements for the child provided for in the subject orders had been unsuccessful – where the evidence was controversial – where it was suggested that this demonstrated that the trial judge’s findings were not open or were wrong – where application dismissed. |
| Family Law Act 1975 (Cth) |
| Bondelmonte v Bondelmonte (2017) 341 ALR 179 Vakauta v Kelly (1989) 167 CLR 568 |
| APPELLANT: | Ms Findley |
| FIRST RESPONDENT: | Mr Vitez |
| SECOND RESPONDENTS: | Mr and Mrs Vitez Snr |
| INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
| FILE NUMBER: | BRC | 2858 | of | 2014 |
| APPEAL NUMBER: | NA | 61 | of | 2016 |
| DATE DELIVERED: | 23 November 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Kent & Cronin JJ |
| HEARING DATE: | 7 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 September 2016 |
| LOWER COURT MNC: | [2016] FCCA 2304 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr McQuade |
| SOLICITOR FOR THE APPELLANT: | All Family Law |
| COUNSEL FOR THE RESPONDENTS: | Mr Page QC |
| SOLICITOR FOR THE RESPONDENTS: | Michael Dwyer Solicitor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
Orders
The application in an appeal filed 15 February 2017 be dismissed.
The appeal be dismissed.
The appellant mother pay the costs of the first respondent father of and incidental to the appeal in the sum agreed or, failing agreement to be assessed.
The appellant mother pay the costs of the second respondents of and incidental to the appeal in the sum agreed or, failing agreement, to be assessed.
The appellant mother pay the costs of the Independent Children’s Lawyer of and incidental to the appeal in the sum agreed, or failing agreement to be assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Findley & Vitez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 61 of 2016
File Number: BRC 2858 of 2014
| Ms Findley |
Appellant
And
| Mr Vitez, and Mr and Mrs Vitez Snr |
Respondents
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ainslie-Wallace J
I have read and substantially agree with the reasons for judgment of Kent and Cronin JJ and with the orders proposed to be made in the appeal.
Kent and Cronin JJ
Ms Findley (“the mother”) appeals all orders made by Judge Coates in the Federal Circuit Court on 5 September 2016. After a trial of several days, Judge Coates removed the parties’ child P then aged seven years, from his mother, placing him with his father Mr Vitez (“the father”). Until those orders, P had lived with his mother in South Australia for six years subsequent to the parties’ separation in 2010. The change for P was significant not least because he had not seen his father during the two years prior to the orders.
These final orders for the mother to spend time with P were also controversial because, apart from the mother’s time initially being supervised, the contact was to take place in South East Queensland where the father lived. That meant the mother had to travel from South Australia.
The father and his parents (“the grandparents”) who are parties to the proceedings along with the Independent Children’s Lawyer appointed to independently represent the child’s interests in the proceedings, oppose the appeal. The grandparents were participants when the proceedings commenced as the father was then overseas. They did not seek specific orders on appeal.
In her appeal, the mother asserts that the trial judge was biased against her, had failed to take into account the interests of P in the orders and had made decisions contrary to the evidence. For the reasons that follow, we reject those assertions.
Section 60B(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) expresses, as an object of Part VII of the Act, ensuring 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.
That object finds reflection in the first of the two primary considerations set out in s 60CC(2)(a) as to how a court determines what is in a child’s best interests, namely; by requiring the court to consider:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents.
When the trial judge’s reasons for judgment are read as a whole it can be seen that his Honour determined that it was in the child’s best interests that he have a meaningful relationship with both of his parents. In the exercise of his discretion the trial judge determined that this would only occur by orders providing for the child to live primarily with the father and orders for the child’s time and communication with the mother.
In this appeal the mother seeks to characterise these central findings as the product of the trial judge’s bias against her, as distinct from findings supported by evidence. However, for the reasons which follow we are satisfied that the central findings were, on the evidence before the trial judge, open to his Honour, that evidence including the background facts now to be discussed.
Background
The mother and father lived together from 2008 to 2010 in South East Queensland. When their relationship came to an end, the mother took P to live in South Australia. The father issued proceedings in the then Federal Magistrates Court and final consent orders were made by Judge Coates on 28 June 2011. Under those orders, it was uncontroversial that P was to live with the mother in South Australia but clause 4 of the orders read:
That the child spend time with the FATHER at all such times as may be agreed between the parties.
In the 2016 final trial, the trial judge found that the mother had prevented P from spending time with his father without any genuine reason.
The inability of the father to have time with P led to the application being filed in the Federal Circuit Court at Brisbane on 31 March 2014 seeking that the 2011 orders be “enforced”. The grandparents also sought orders that should the father be unable to spend time with P, they be substituted for him. Like the 2011 hearing, this case was docketed to Judge Coates. When the proceedings began, they were predominantly about enabling the father to have time with P. Indicative of her position, the mother’s response was that the father’s application be dismissed.
Prior to the beginning of the final trial, Judge Coates held an interim hearing on 10 February 2015. His Honour discharged the 2011 orders on the reasonable assumption that they were not working and required that P spend time with his father or the grandparents every fourth Saturday in South Australia. The dispute was then set down for a final trial. In the intervening period, the father still had difficulty spending time with P and there also arose an issue of the mother’s cooperation about attending with P to complete the assessment for a family report as ordered by his Honour.
By the time of the trial, the father had not seen P for over two years. The trial judge was made aware of the mother’s objection to the father’s involvement with P which had as its foundation her assertions of alleged violence perpetrated by the father. Of those assertions, whilst his Honour found that both parties had been involved in confrontations, they preceded P’s birth and there was no evidence of threats after the consent orders in 2011. His Honour found the mother did fear the father but there was no unacceptable risk of harm to P in his care and in any event, the allegations had not precluded the mother agreeing to the 2011 orders.
Having found there was no unacceptable risk of harm to P, the trial judge turned his attention to the mother’s conduct in refusing to agree to any time occurring but also to her withholding P from the family consultant’s assessment designed, amongst other things, to have the expert observe P and his father together. His Honour was critical of the mother’s approach of keeping P away from any contact with the father and on a number of occasions during the hearing endeavoured to unsuccessfully persuade her to change her attitude.
The trial judge observed that despite the father’s original application only seeking enforcement of the 2011 orders, he had changed his position during the trial to seek P’s removal from the mother’s primary care and a change of residence. His Honour said that up until he had heard the evidence of the single expert witness, he would not have removed P, but upon hearing and accepting the family consultant’s evidence, a change of residence had become a possibility because of the mother’s refusal to facilitate any relationship between the father and P.
In addition to the history of the failure of the 2011 orders and because the mother had rebuffed all attempts to enable contact to occur, the trial judge held he had no confidence that she would ever allow it. That led to the finding that there was an unacceptable risk of harm to P in the care of the mother (at [228]) because the expert had opined that a relationship between the father and P was important. His Honour made the finding that it was in the best interests of P to live with the father.
APPLICATION TO ADDUCE FURTHER EVIDENCE
Before we deal with the grounds of appeal, it is necessary to mention the mother’s application to adduce further evidence on the appeal. This application in an appeal was filed on 15 February 2017 and was supported by three affidavits all of which were sworn by the mother’s solicitor.
Rather than relying upon the affidavits as evidence to show what had occurred after the final orders were made, counsel for the mother described the purpose of the application as intending to show that the orders had been unsuccessful and that the trial judge’s optimism that the father would encourage the relationship between the mother and P was misplaced. From that, it was submitted, the conclusion should be drawn that the findings of the trial judge were either not open or indeed, wrong. It was conceded that the facts alleged in the affidavits were controversial.
On the issue of the change of residence, the trial judge had contemplated which parent should be primarily responsible for the care of P but also whether he should live in South Australia with the mother or South East Queensland with the father. Having decided on P living with the father, these affidavits focussed on all of the problems of the mother obtaining contact with P after the final orders were made.
Whilst both the father and the Independent Children’s Lawyer did not oppose the filing of the affidavits, each submitted that they could only be relevant if error was established in the trial judge’s reasoning.
A fair reading of each of the affidavits shows complaints about such things as how the orders were to be implemented and the involvement of the grandparents as supervisors. Subsequent to the final orders, there were handover problems including the grandparents declining to be involved in the supervision. That led to the father issuing further proceedings before the trial judge and in December 2016, the orders were varied to change the supervision so that it occurred at a contact centre. There were then further disputes about a raft of issues but they were about the interpretation of the orders. The trial judge accommodated the parties by hearing those disputes at least up until the orders in December 2016.
Even allowing for the controversial nature of the allegations about the final orders, counsel for the mother did not take us to any specific parts of the affidavits to establish that the father was not promoting a relationship between the mother and P. Without testing of that evidence, it could not be accepted that there is any substance in the mother’s contention.
The test of whether or not to permit further evidence to be relied upon, is whether if that evidence had been tendered to the trial judge, it was likely to have produced a different result (see CDJ v VAJ (1998) 197 CLR 172). In our view the matters relied upon by the mother do not go to the question of whether or not the father would promote the child-mother relationship but rather, as to the nature and extent of the implementation of the orders. The mother had had the opportunity to rectify those logistical concerns in the hearing in December 2016. Accordingly, we are not satisfied that we should exercise the discretion to admit the evidence on the appeal as it cannot establish error on the part of the trial judge. The mother’s application in an appeal is therefore dismissed.
GROUNDS OF APPEAL
The mother relied on nine grounds of appeal although some contain a variety of sub-grounds. The first ground is said to underpin all grounds. It asserts that the trial judge failed to bring an impartial and unprejudiced mind to the resolution of the question that he was required to decide. As it is said to affect all grounds of appeal, it is appropriate to examine that first.
APPREHENDED BIAS
It is asserted by the mother that before the evidence began, his Honour formed the view that she was manipulative of the court process. That assertion is drawn from the words of the trial judge at the beginning of the case directed to the mother’s solicitor advocate when he said:
this circus is not continuing with your client in control of it.
(Transcript 13 June 2016, p 3, l 22)
That observation has to be seen in context.
As the trial began, his Honour was aware that the mother had not taken P to the family consultant assessment as he had ordered. His Honour observed that he had gone to the trouble of organising the interview so that P could be observed with his father. The transcript shows that the mother’s solicitor said she had been given instructions that her client would not attend the interview and would not comply with the order. Such was the concern of the mother’s solicitor that a discussion ensued about whether the appointment of a case guardian for the mother might be contemplated.
His Honour then addressed the mother personally and explained that the proposed interview was in a “safe environment” and that the court wanted an independent assessment of the relationship between P and the father. The mother’s response was that it was not just about safety but how P “felt”, something his Honour acknowledged he understood.
There was then an exchange between his Honour and counsel for the Independent Children’s Lawyer about the family consultant assessing whether or not the proposed observation should take place (commencing at transcript 13 June 2016, p 10, l 9 to l 39). His Honour then made a remark said to give rise to a second complaint of the mother. In her counsel’s outline of argument on the appeal, it was asserted that his Honour exhibited bias against the mother by forming the view that:
… in the remembrance of the child who was 20 months old at separation, the father was once an important figure.
(Summary of argument of the mother at paragraph 3)
His Honour actually said:
So I find it really hard to think that a seven year old is so against seeing a person who was important in his life.
(Transcript 13 June 2016, p 10, l 43-44)
Of those two remarks, the first about a “circus” was obviously hyperbole from a busy trial judge who knew that previous parenting orders had not been successful and his pre-trial directions for the attendance on a family consultant had not been obeyed. The second remark about a “seven year old” can be seen to be no more than musing but in the context of what was then happening, it was appropriate for his Honour to observe that he struggled to understand the explanation about P’s feelings being the basis not to undertake a professional assessment by a family consultant.
For the reasons that follow, in our view, those and other nit-picking criticisms of statements of the trial judge, considered in the context in which they were said, could not give rise to an assertion of prejudgment.
To the extent the impugned remarks could be said to be an expression of a judicial view, counsel for the mother pointed to the observations of the Full Court in Jurchenko & Foster (2014) FLC 93-598; (Bryant CJ, Thackray and Duncanson JJ) about judicial utterances. That case does not assist the mother because there, the magistrate had been asked by the parties to give a preliminary view about the potential outcome. Here, the trial judge was endeavouring to ensure that, as it was a parenting case, all available evidence was there to assist the court (see s 69ZQ(1)).
Other complaints by the mother include that the interventions by the trial judge during the trial precluded the mother’s solicitor from certain lines of cross–examination and that those “rulings” undermined the proper presentation of the mother’s case, giving rise to an appearance of bias.
In our view, the difficulty for the mother is that at the time the various statements were made, she was represented by her solicitor-advocate who raised no complaint or concern with the trial judge. Counsel for the mother now argues that prejudgment can never be waived but in our view, that was not what occurred here.
Counsel for the mother submitted that whilst the general principle is that remaining silent in the face of judicial remarks and conduct at trial can be seen as a waiver, the rule relating to apprehended bias is founded on the need for public confidence in the judiciary and as such, ought not be waived. In our view, there is no merit in that submission.
In Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta”), Brennan, Deane and Gaudron JJ observed at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object.
The logic behind that principle is that wrong impressions of bias can be rectified during a trial. Had the mother’s solicitor raised any such concerns, the trial judge would have had the opportunity to clarify his remarks or could have endeavoured to reassure the mother that he was not prejudging matters.
Another of the mother’s complaints is that his Honour did not assess the father’s capacity to move to South Australia as distinct from his evaluation of the mother’s capacity to live in Queensland. It was asserted that the trial judge formed the view that as the mother was an “[entertainer]”, she could work anywhere. This assertion also has no merit. Counsel conceded that the mother’s solicitor had not cross-examined the father on the issue albeit there was some cross-examination on it by the Independent Children’s Lawyer. The determination of which of the two parties could relocate had therefore been left to his Honour. To the extent that it is still asserted that the expression of such a view exhibits a suspicion of bias, the observations of Dawson J in Vakauta (supra) are pertinent here. Dawson J at 575 repeated what had been said in Re J.R.L.; Ex parte C.J.L. (citation omitted):
…suspicion of bias may well be ineradicable where the bias is thought to result from preconceptions existing independently of the case. That is so, but it is not to say that bias is inevitably displayed merely because a judge holds preconceptions or reveals that he does.
Thus, even if some suspicion of bias might be said to have arisen from such a statement or view, the mother again faces the difficulty that her solicitor not only took no exception to any such notion in the hearing, but did not test the evidence of the father about the issue of relocation.
On the question of waiver, contrary to what was submitted by counsel for the mother, in Vakuata (supra), Toohey J at 583 said:
The appellant appeared to concede that actual bias is capable of being waived, though not apprehension of bias, while contending that nothing done by the appellant’s counsel amounted to waiver. It was the respondent’s case that there was no bias, actual or ostensible, in anything said by the trial judge or in anything appearing in his reasons for judgment; that actual and ostensible bias may each be waived; and that, if there had been bias, it had been waived in respect of anything said during the course of the hearing. It was not suggested that there had been or could have been waiver of any bias to be found in the reasons for judgment.
Toohey J went on to say at 587:
There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed.
Thus, when a party is in a position to object but takes no steps to do so, they cannot be heard to complain later that the judge was biased.
There were ample opportunities for the mother to complain and having not done so, she cannot do so now and ground 1 fails.
THE REMAINING GROUNDS
Other grounds of appeal assert that the following findings were not supported by the evidence:
a)The mother flouted and breached orders (ground 2);
b)The mother did not respond to the father’s 2012 request for time with P (ground 3);
c)The mother was dependent on P (ground 4);
d)There was an unacceptable emotional and developmental risk (of harm) to P in the mother’s care (ground 5); and
e)The mother only sought psychiatric intervention to obtain favourable evidence (ground 6).
The remaining grounds thereafter assert that the trial judge:
a)Failed to give proper consideration to the relevant provisions of s 60CC and s 60B of the Act as he was required to do (ground 7);
b)Failed to consider alternative options to removing P which would have ensured the father and son relationship could have occurred (ground 8); and
c)Made orders which were unreasonable and unjust and accordingly, the exercise of discretion miscarried (ground 9).
GROUNDS 2 TO 6
Grounds 2 to 6 all assert that findings were unsupported by the evidence so it is convenient to deal with them together.
The mother faces significant difficulty challenging on appeal findings of a trial judge based upon weight. To succeed, the mother must establish that the trial judge acted upon a wrong principle, allowed extraneous or irrelevant matters to affect his decision, mistook the facts, failed to take into account a material consideration or reached a result that is unreasonable, unjust or plainly wrong: House v The King (1936) 55 CLR 499 (see also Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519 to 520).
To begin with, the mother asserts that the trial judge found that she had breached all orders. At [27] of the reasons for judgment , the trial judge said:
Although the father’s application originally was merely for the child to spend time with him, as the matter progressed over the months, he subsequently sought shared care but then a change of residence - as all orders made for the child to spend time with him were flouted and breached by the mother.
The emboldened words appear in that manner in the judgment. The words might have been expressed more clearly but a fair reading of those words in context leads us to conclude that the trial judge was repeating the father’s case; they do not represent a finding at all.
With respect to what the trial judge said at [55] of the reasons for judgment, in the context of a discussion about the mother’s fear of the father, she complains that the trial judge inaccurately used the word “unsupervised” as a description of the father’s entitlement to time under the 2011 orders. She asserts that the 2011 orders were not unsupervised because the orders provided that arrangements had to be made between the parties. She submitted that that meant she had control over the father’s time with P. If correct, a refusal by her of the father’s time could not have led to his Honour’s finding that she had breached the orders. Here again, and with the emphasis on the mother’s fear of the father rather than whether the orders were or were not to be under supervision, the trial judge emboldened his words and said:
It is important to recognise that:
a)These events occurred before the child was born;
b)Before the mother consented to the orders of 2011 for the child to spend unsupervised time with the father, and
c)There is no evidence to form a view that events like this will occur again.
Nothing was drawn to our attention to indicate that the mother conducted her case before the trial judge on the basis that the 2011 orders contemplated the child’s time with the father being supervised. In the mother’s trial affidavit, her evidence was that the father had time with P after the 2011 orders in her absence although she and her mother were apparently observing covertly. She described her “rationale” for agreeing to the 2011 orders without the inclusion of specific times to be so that she could “monitor how [P] was”. Our attention was not drawn to any cross-examination of the father about time being supervised and in her final address, the mother’s solicitor made no such reference. His Honour found that the father had been to South Australia “many times” and had been refused time with P (at [171]). We do not accept that there was any “misdescription” by the trial judge. Even if there had been some infelicity of expression, we do not accept that it had any relevance to the determinations the trial judge had to make because the mother’s implacable position of there being no contact was clear.
A continuation of this theme can be seen in ground 3 where the mother asserts that the trial judge’s finding that she did not respond to the father’s 2012 “request for time” was not supported by the evidence and was against the weight of the evidence.
At [7] of the reasons for judgment, his Honour found that between late June 2012 and December 2012, the father sent six requests to spend time with the child to which there were no responses by the mother.
The mother argued that the requests of the father and the responses were in evidence but an examination of the record shows that save for one example, the mother’s responses through her solicitor relate to the period before June 2012. The exception to that can be seen on 13 June 2012. The solicitors for the mother wrote to the father by facsimile transmission and indicated that the father could not have overnight time. Whether this letter was sent and/or received by the father was contentious. At [7] of the reasons for judgment, his Honour referred to a handwritten fax message from the father dated 7 June 2012.
The transcript of cross-examination of the father shows that he conceded that he did receive the response, but his view was that the mother responded that he was to have no time whatsoever (Transcript 14 June 2016, p 146, l 38 - 41). The mother’s solicitor had written on 13 June 2012 rejecting the overnight time and offering the father daytime in South Australia.
We accept that the trial judge was incorrect at [7] of the reasons for judgment to indicate that the father received no response but the error has no significance. At Transcript 14 June 2016, p 147, l 31-34, his Honour was told by the father that the 13 June 2012 letter had been received but he went on to say that there were proposals missing which had been “knocked back” a considerable amount of times including in one instance where the solicitor for the wife did not respond. The transcript shows that the mother’s solicitor did not pursue the matter further. Thus, to the extent that the finding was that the father had not received the letter, it would not matter if, as his Honour seemed to do, he accepted that there were many other requests of the father which had not been answered. All of this is again largely immaterial in the incontrovertible context that the mother was implacably opposed to the child spending any time at all with his father from no later than 2015 onwards.
Thus, the complaints in grounds 2 and 3 have no substance.
Grounds 4 and 5 are conveniently dealt with together as each are directed to the trial judge’s findings concerning the mother’s dependency on the child.
In ground 4, the mother complains that contrary to what the trial judge found about her dependency on P, the evidence fell far short of establishing that.
It was not disputed that the trial judge had the benefit of expert evidence of the family consultant to the effect that parental dependency or a co-dependency on a child meant that the parent was not child-focussed. The evidence was that such a “state” would be detrimental to a child because it would hinder the child’s ability to become independent and form healthy relationships.
In her family report dated 30 October 2014 prepared by family consultant Ms S that expert opined that the mother’s behaviour both then and historically would suggest that she was not invested in being supportive of facilitating contact for P with his father.
In the second family report dated 9 May 2016 prepared in South Australia by Mr M, the following opinion about the mother was offered:
… It is unclear whether or not there is delusional thinking on these matters or whether or not there is some measure of reality to this. Should this matter proceed to Trial these are issues which will need to be tested by the evidence.
That evidence was tested and as to Mr M’s concern of the mother’s “delusional thinking”, the trial judge also had the benefit of the evidence of the mother’s psychiatrist Dr R who opined that the mother was not delusional but rather, had “irrational thoughts or over-valued ideas”. His Honour was therefore entitled to conclude that the mother was deliberate in her thinking about what relationship the father should have with P. That becomes important when considering the issue of the mother’s dependency on P.
His Honour also had the family consultant’s evidence about the mother’s relationship with P. The expert said:
I think the mother has co-dependent tendencies and whether or not it would be classified as a state, I’m not quite sure, partly because of the related aspect of rigid and fixed views and I’m not sure if that is – if that’s – it’s a position that she’s taking for the purpose of litigation or if it’s a 100 per cent entrenched view. I still suspect that, to some degree, there’s a bit of leeway that she’s not going to move until the very final moment.
(Transcript 22 July 2016, p 464, from line 17)
It is upon that evidence that the mother now argues that a finding of dependency could not be made. Whilst the family consultant was not entirely sure about the mother’s “state”, the trial judge had the evidence of the psychiatrist and he observed the various witnesses. His Honour also noted the number of times during the trial that he had endeavoured to convince the mother that her position was untenable. The trial judge found the evidence supported a conclusion of dependency. Considering the expert’s proposition about the brinkmanship of the mother, his Honour was entitled to find she was dependent on P because of her implacable resistance to the father’s relationship with P. That resistance did not alter in the final address of the mother’s solicitor in which the mother maintained there should be no contact.
The trial judge made his position clear. At [224] of the reasons for judgment, he said:
Time and again throughout the trial I gave her opportunity to relent, and I would have been prepared to consider orders for the child to begin significant and substantial time with the father while remaining living with her, but she could not consider anything contrary to her views.
Thus, having considered all of the evidence, at [239] of the reasons for judgment his Honour said:
I also need to state that this is a most reluctant decision and I repeat, I attempted to allow the mother to make the decision for the child to spend time with the father, but she rebuffed all such attempts. I also considered an order of the type whereby the mother would be given an opportunity to co-operate and make the child available to the father, however, I have no confidence that she could ever make a decision to allow that, so the only viable best interests decision is for a change of residence.
By ground 5, the mother relies upon this Court accepting that the trial judge’s finding of dependency had no foundation. At [228] of the reasons for judgment, the trial judge said:
I will make a crucial finding, which is that the evidence confirms that the mother has a dependency on the child, and the child is being denied his right to have a relationship with his father because of her dependency and that is an unacceptable risk to the child.
Earlier (at [192]) the trial judge found that the expert evidence was that if the mother was dependent on P:
the child should go to the parent best equipped to assist him.
On the issue of a change of residence, the trial judge referred with apparent acceptance to the expert’s evidence that P was young, fairly adaptable and would cope (at [207]). As we have earlier concluded the finding of the trial judge that there was a dependency of the mother on P and that she was putting P at an unacceptable risk of emotional harm was open to him.
Thus, we find no merit in ground 4 or ground 5.
Ground 6 asserts that his Honour inappropriately found that the mother only sought the assistance of a psychiatrist (Dr R) to provide some favourable evidence to the court. Indeed, the trial judge found that she had not sought medical assistance until she was “actually” before the court.
It is not clear to us how this finding could be contended to make any difference to the determination of the trial judge, because it has no effect, one way or the other, on the overall conclusion as to the mother’s implacable resistance to the role of the father in the child’s life. The submission of the mother was that it was necessary to call some evidence because of the ultimate recommendations of the family consultant that the mother needed therapeutic counselling. That submission does not sit with the evidence of the psychiatrist.
The psychiatrist, whom we have already mentioned, wrote to the mother’s doctor explaining that his focus was on trying to help the mother get through her court proceedings as she was extremely anxious about how she would deal with those events. The psychiatrist opined that the mother was an anxiety prone person and that court proceedings were one of the things that she was worried about and it was likely she would remain prone to anxiety in relation to a wide variety of life stressors, such that he would not say that ending the court case would completely cure her of her condition.
Dr R told the trial judge that from the history taken, the mother had the problem for over seven years and apart from a visit to a hospital where she was treated by another psychiatrist, there was no indication that she had dealt with the problems until well into the court proceedings in 2015. Accordingly, in our view, the finding was open to the trial judge albeit in our view it made no difference to the determination. There is no merit in ground 6.
Ground 7 challenges two things. First, it asserts that the trial judge failed to give proper consideration to the requirements of s 60CC and s 60B of the Act and secondly, did not give appropriate weight to the evidence before him. Again, the difficulty for the mother arising from the authorities relating to this sort of challenge are clear.
At [15] and [16] of his reasons for judgment, the trial judge set out the relevant provisions of s 60CC and also made reference to s 60B. His Honour then said he would address those considerations when assessing the evidence and, it is not suggested that he did not do so. Thus, ground 7 devolves into a challenge as to the weight given to those matters.
This ground asserts that the trial judge “placed undue weight” on a number of matters. That list includes the mother’s mental health, the father’s alleged violence towards the mother, the likely effect upon P of the change of moving from South Australia to South East Queensland; and the father’s failure to contribute financially towards P. It was not submitted that the findings arising out of those factors were wrong. Some of the 17 factors listed are about undue weight whilst others are complaints about inadequacy of weight.
All of the assertions about weight have to be seen in the context of the findings that the trial judge made. They include that the mother held the belief that the father would harm her but not P (at [74]); that P would be at a disadvantage without a relationship with his father; and, that if the mother was dependent upon P, he should “go to the parent best equipped to assist him” (at [192]). Most significantly, the trial judge was faced with the mother’s implacable position from which he had tried to dissuade her during the trial that she would not provide P an opportunity to have a relationship with his father (at [222]). The mother’s challenges as to weight include the finding that she had a dependency on P and the unacceptable emotional risk of harm to him, both of which we have already addressed.
The mother also asserted that the recommendations of the family consultants were unequivocal. However “the ultimate decision was for the trial judge and it was a matter for the trial judge’s discretion as to what weight was given to or what use was to be made of [expert evidence] in the context of all of the evidence to be considered” (Simmons and Anor & Kingsley (2014) FLC 93-581 at [42] and following).
Absent complaints unequivocally demonstrating an error about the weight the trial judge gave to various pieces of evidence, we are not persuaded that his Honour has erred in the weight attributed to them. In our view, each of the findings made was open on the evidence and none could be said to demonstrate a miscarriage of the discretion.
Ground 7 therefore fails.
Ground 8 asserts that the trial judge did not consider alternative options to removing P other than to order a change of residence. It was submitted that the trial judge gave no real consideration to P remaining with the mother in South Australia and making and enforcing orders for time to be taken by the father. On the contrary, the trial judge found that it did not matter what he did, the mother would not co-operate with any relationship between P and the father. The support for that finding can be seen in the mother’s response to attending the family consultant when ordered; and her attitude to making the 2011 orders workable. The exasperation of the trial judge evident throughout the reasons for judgment indicates that his Honour considered he had taken every step to attempt to have the mother alter her position. There is nothing else we can identify that his Honour ought to have done to consider alternative propositions when the mother was implacably opposed to the child having any meaningful relationship with his father. Ground 8 fails.
Ground 9 asserts that having regard to the evidence, the orders were unreasonable and manifestly unjust and amounted to an improper exercise of discretion.
In an emotive statement and by reference to the speed with which the orders removed P, it was submitted that the outcome was manifestly unjust. That submission should also be rejected. The trial judge contemplated such a drastic move because he observed (at [194]) that the mother maintained she would be destroyed if orders required P to live with the father and his Honour found that the mother’s approach represented a “cognitive inability” to separate her needs from those of P. His Honour specifically contemplated P’s removal from the mother noting that it was a “major consideration” for the court. Having regard to the mother’s position, his Honour saw no alternative.
To succeed on this appeal, the mother must show more than that another court may have taken a different view. As Barwick CJ said in Edwards v Noble (1971) 125 CLR 296 at 304:
…The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do : but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differing views do not establish that either view is wrong.
The mother has not demonstrated error in principle, or failure to take into account any relevant factor, or taken into account any irrelevant factor such that we could say the orders were clearly wrong, unreasonable or plainly unjust. They were within the wide ambit of a judge’s discretion.
None of the matters necessary to justify appellate intervention in relation to the trial judge’s exercise of discretion have been established (House v The King (1936) 55 CLR 499; Bondelmonte v Bondelmonte (2017) 341 ALR 179). On the contrary, in our view, his Honour accepted and relied upon the opinions of the experts in the context of other evidence demonstrating the implacable position of the mother. We consider the findings were open and we are unable to identify what else his Honour could have done having regard to the mother’s position.
No error having been established, the appeal must fail.
COSTS
As is our usual practice in order to avoid the need for further appearances or written submissions, we sought at the hearing of the appeal each party’s position with respect to costs of the appeal.
In the event the appeal was to be dismissed, each of the respondents including the Independent Children’s Lawyer sought an order for costs against the mother. Counsel for the mother frankly conceded that, in the event the appeal was dismissed, there existed no reason for the mother to resist the orders for costs sought.
Given that concession, and that the appeal has been wholly unsuccessful, we are satisfied that the costs orders sought ought be made.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Kent & Cronin JJ) delivered on 23 November 2017.
Associate:
Date: 23 November 2017
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