FOLETT & LANGLEY
[2016] FamCAFC 191
•28 September 2016
FAMILY COURT OF AUSTRALIA
| FOLETT & LANGLEY | [2016] FamCAFC 191 |
| FAMILY LAW – APPEAL – CHILDREN – DELAY IN DELIVERY OF JUDGMENT – whether 16 month delay between trial and judgment rendered trial judge’s credit findings unsafe – whether delay assists in establishing other errors – relevance of delay in delivering judgment – where trial judge provided specific and satisfactory reasons for accepting or rejecting evidence of witnesses – error not established. FAMILY LAW – APPEAL – EXERCISE OF DISCRETION – nature of discretion involved in determining parenting orders – extent of need to have regard to expert evidence – central findings and mother’s proposed relocation where mother indisputably to remain primary carer – orders for time and communication – determination of order for mother to have sole parental responsibility. FAMILY LAW – APPEAL – ADEQUACY OF REASONS – need for reasons informed by nature of discretion involved – whether trial judge’s reasons adequate to explain orders made for parental responsibility and time with the father – whether trial judge bound to specifically address the submissions of the Independent Children’s Lawyer. FAMILY LAW – APPEAL – ERRORS – whether errors contended for enliven appellant intervention – no ground of appeal established – appeal dismissed. FAMILY LAW – COSTS – father wholly unsuccessful on appeal – order for costs made. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Legal Aid Act 1977 (ACT) |
| Adamson & Adamson (2014) FLC 93-622 |
| APPELLANT: | Mr Folett |
| RESPONDENT: | Ms Langley |
| INDEPENDENT CHILDREN’S LAWYER: | Mr J Tallarita |
| FILE NUMBER: | CAC | 1832 | of | 2012 |
| APPEAL NUMBER: | EA | 48 | of | 2016 |
| DATE DELIVERED: | 28 September 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Kent & Austin JJ |
| HEARING DATE: | 21 July 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 March 2016 |
| LOWER COURT MNC: | [2016] FamCA 137 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr R Harper |
| SOLICITOR FOR THE APPELLANT: | Barker & Barker |
| COUNSEL FOR THE RESPONDENT: | Mr J Levy |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McKeown | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr J Tallarita, Solicitor | |
Orders
BY CONSENT, the orders made on 8 March 2016 be varied by inserting after order (10) the following additional orders:
(10A)That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
(10B)That in the event of childhood illness or emergency the parent with whom the child or children are with, do contact the other parent forthwith to inform them.
(10C)That both parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress and each parent shall ensure that the children’s school have all necessary consent from the parties to provide such information and documents.
The appeal against the orders made on 8 March 2016 be dismissed.
The appellant father pay the costs of the respondent mother of and incidental to the appeal to be assessed if not agreed.
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 Folett & Langley 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 SYDNEY |
Appeal Number: EA 48 of 2016
File Number: CAC 1832 of 2012
| Mr Folett |
Appellant
And
| Ms Langley |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The trial of parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning the children, N (2002) and B (2006) between their parents, Mr Folett (“the father”), Ms Langley (“the mother”) and the Independent Children’s Lawyer (“the ICL”), was heard by Faulks DCJ on 22 to 25 July 2014 and 13 and 15 October 2014. At the conclusion of the trial judgment was reserved.
Given the time that had by then elapsed since the trial, in early January 2016 the trial judge invited the parties to make any applications they may wish to make to reopen the evidence.
The father took up that invitation, but on 18 January 2016, for reasons then given, the trial judge dismissed the father’s application in a case filed on
13 January 2016 essentially on the basis that rather than simply seeking to reopen evidence, the father sought, inter alia, interim parenting orders with respect to N. Such orders would have resulted in the children being separated, in terms of their living arrangements. There is no appeal from the trial judge’s order dismissing the father’s application in a case.
On 8 March 2016 the trial judge made final parenting orders and delivered reasons for judgment for those orders.
As will be discussed, the delay between the conclusion of the trial on 15 October 2014 and the delivery of judgment on 8 March 2016, a period of about 16 months, is the specific focus of two of the father’s grounds of appeal from the orders made on 8 March 2016; and is a factor relied upon in support of other grounds.
The trial judge ordered that the children live with their mother (order (1)); that the mother have sole parental responsibility for the children (order (2)); that the mother be permitted to relocate the permanent residence of the children (from Canberra to Newcastle (order (3)); that the children spend supervised time with their father for not less than two hours per month alternating between Canberra and Newcastle (order (4)); that the children communicate with the father by telephone or Skype weekly and in addition by telephone as the children sought (order (5)); and that the father pay the costs of supervision (order (6)).
The father appeals those orders. The balance of the orders the trial judge made are not the subject of this appeal.
Taken from the reasons for judgment of the trial judge, of central relevance to the orders referred to, and to the challenges of the father on appeal from those orders, are the following findings of the trial judge, expressed in summary and paraphrased form:
a)During the parents’ relationship the father engaged in family violence (within the meaning of s 4AB and s 61DA(2)(b) of the Act) (at [40] and [81]);
b)The father perpetrated “abuse” in the form of “sexual assault(s)” upon the child, C (his child from an earlier relationship), who was at the time “a member of the [father’s family]” within the meaning of those terms where they are used in s 4 and/or s 61DA(2) of the Act (at [34]);
c)There would be an unacceptable risk to the children if they were to spend substantial or unsupervised time with the father (at [46] to [50]);
d)The question of risk dictates in part the nature of the relationship the children must have with their father (at [78]);
e)The children should live with the mother and spend limited and supervised time with the father (reasons at [61] and [83]) and the mother should have sole parental responsibility for them (at [83]).
The findings the trial judge made as to unacceptable risk were founded upon, or related to, a number of findings, again taken from the reasons for judgment and expressed in summary and paraphrased form as follows:
a)The father engaged in incestuous relationships with each of his older sister and his younger sister when he was aged 13 years and 15 years respectively, the latter relationship producing a child (at [24]);
b)The father retains an interest in incestuous sexual relationships and that subject formed part of his pornography collection (at [25] and [29]);
c)The father suggested to his daughter C that she might be attracted to her brother E (the father’s son from a previous relationship), and the father suggested to E that C may have some physical attraction towards him (at [26]);
d)At about the same time the father shared with C his pornography collection including that part of it which related to incestuous sexual relationships (at [27]);
e)The father’s respective accounts to the single expert, Dr D (a clinical forensic psychologist with a Master’s Degree in clinical psychology and a PhD in the area of interpersonal crime), and to the police, as to his reasons for collecting or retaining pornographic material were inconsistent (at [28]);
f)The father has an interest in immediately post-pubescent young women (at [30]);
g)The father had a prurient interest in his daughter C and installing a camera in her bedroom was one means of the father potentially satisfying that prurient interest (at [31] and [32]);
h)The evidence of C, as to the father physically abusing her by “placing his hands inside her panties and feeling her body generally … during evening cuddles before bed, which became more extended … as time went by” was accepted, and the father’s denial that this occurred was rejected (at [34]);
i)The father’s evidence concerning C’s allegations was “unconvincing” (at [35]);
j)
The father engaged in voyeurism “by taking up the skirt camera shots or looking up the skirts of women as they went up and down stairs”
(at [39]);
k)The father’s exposure of his children to his cultivation of marijuana shows a complete lack of boundaries and lack of self-control (at [42]);
l)The father has an inability, as assessed by the single expert at paragraphs 245, 247 and 252 of the single expert’s report, to put proper boundaries around his conduct (at [80]);
m)There exists the possibility that the father may engender in the children attitudes about sex which are not consistent with ordinary community acceptability (at [43]). The father has interests outside the normal mainstream of sexual activities (at [45]);
n)The risk to the children posed by the father would include, but not be confined to, the real possibility of the inculcation in them of attitudes which may affect their ability properly to develop and grow as young adults in contemporary society (at [47]);
o)The father’s engagement in family violence has provided inappropriate role modelling to the children about the resolution of conflict and doubt attends the children’s exposure in future to the father’s family violence (at [81]).
With respect to order (3) (permitting the mother to relocate with the children from Canberra to Newcastle) the trial judge set out relevant principles at [16] to [20] of the reasons. Having determined, by reference to the central findings referred to, that the children should live with the mother and spend limited supervised time with the father, the trial judge considered whether there existed legitimate reasons for constraining the mother’s freedom of movement (at [62] to [69]). Having resolved that there was no legitimate basis for so constraining the mother, the trial judge did not restrain the mother’s proposed relocation and determined the orders for the children’s time and communication with the father (at [70] and following of the reasons).
On 4 April 2016 the father filed his notice of appeal of orders (1) to (6) (inclusive) made by the trial judge.
On 29 April 2016 Benjamin J, on the father’s application filed on 22 April 2016 for a stay of those orders, granted a stay of order (3) regarding the mother’s relocation to Newcastle pending the outcome of this appeal, but otherwise dismissed the father’s application. There is no appeal from that determination.
The father’s challenges on appeal
At the outset of the hearing of the appeal counsel for the father confirmed that grounds 16 and 17 contained in the notice of appeal, which are not proper grounds of appeal, were abandoned.
Grounds 6, 7 and 8 each contend that the trial judge erred in failing to give any or any adequate reasons as to why he did not make orders for, respectively:
a)The mother being required to keep the father informed of her contact details (ground 6);
b)The mother being required to inform the father of any illness or emergency involving the children (ground 7);
c)Permitting the father to liaise directly with the children’s schools and/or sporting bodies regarding information relating to the children (ground 8).
In her summary of argument filed for this appeal the mother, in addressing these grounds, expressed her willingness to consent to orders in these terms as they appear in the father’s minute of orders (orders (6), (7) and (9)) within his case information document filed at trial.
At the hearing of the appeal we thus confirmed with the parties that we would, by consent, make such orders by way of variation of the parenting orders.
Nevertheless, these grounds were pressed by counsel for the father for the purpose of supporting the specific grounds (grounds 9 and 10) contending that the delay on the part of the trial judge in delivering judgment has been productive of appellable error.
Grounds 9 and 10, were supported by the ICL. Also, the ICL supported ground 5 which contends that the trial judge erred in failing to give any or any proper consideration to any “view” held by, or “recommendation” of, the ICL in respect of time between the father and the children. As is confirmed by the ICL’s summary of argument, the ICL did not seek to be heard on the other grounds of appeal.
Some of the father’s grounds of appeal were addressed together in his summary of argument and in counsel’s oral submissions and it is convenient that we likewise address them. Counsel for the father elected to confine his oral argument to only some of the grounds, being those containing challenges based upon the trial judge’s delay (grounds 6, 7, 8 and 10) and ground 1, the challenge to the trial judge’s order for the mother to have sole parental responsibility. Otherwise, counsel for the father relied upon the father’s summary of argument.
Counsel for the ICL addressed oral argument to those grounds referred to which were supported by the ICL.
The mother, save for her willingness to consent to the orders the subject of grounds 6, 7 and 8 as already referred to, opposed the appeal.
Common to several of the father’s grounds of appeal (grounds 3 to 5; and 11 to 13) are challenges to the effect that the trial judge’s discretion miscarried. Common to several other grounds (grounds 1 and 2; and 6 to 8) are challenges as to the adequacy of the trial judge’s reasons. Common to grounds 9 and 10 are challenges focused upon the trial judge’s delay in delivering judgment.
It is convenient to begin with an outline of the general legal principles engaged by the respective common focal points in these challenges, before dealing with each specific complaint in the grounds of appeal.
(a) Challenges to the exercise of discretion
As already noted, common to grounds 3, 4, 5, 11, 12 and 13 is that each contains a challenge that the trial judge erred in the exercise of his discretion in determining the subject parenting orders.
First, it bears emphasising the well-known difficulties a challenge to a discretionary judgment confronts (House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513 and Norbis v Norbis (1986) 161 CLR 513).
In Australian Coal & Shale Employees’ Federation & Anor v Commonwealth & Ors (1953) 94 CLR 621 Kitto J observed (at p 627):
… I shall not repeat the references I made in Lovell v. Lovell [(1950) HCA 52: (1950) 81 CLR 513, at pp. 532-534] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King [(1936) 55 CLR 499, at pp. 504, 505].
In the field of discretionary judgments it also is to be acknowledged that there are particular features of the nature of the discretion involved in determining parenting orders. These amplify the width of the discretion and the elements which legitimately may play a part in its exercise. In CDJ v VAJ (1998) 197 CLR 172 the plurality of the High Court (McHugh, Gummow and Callinan JJ) observed of applications for parenting orders and of their determination as follows (at 218-19):
… Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge. The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions …
(b) Challenges as to the adequacy of the trial judge’s reasons
The nature of the discretion exercised in determining parenting orders just discussed has a consequent effect upon the assessment of the adequacy of reasons given for its exercise. The adequacy of the trial judge’s reasons here are the specific subject of the challenges in grounds 1, 2, 6, 7 and 8 in the father’s notice of appeal.
As Kirby J said in CDJ v VAJ (supra) at [186]:
… Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, whilst they must be adequate for the purposes of the exercise of any right to appeal cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision. This is true of the decision of the primary judge, expressing the combination of “main considerations” that led to his ultimate conclusion that the children should reside with one parent rather than another …
(footnotes omitted)
As noted, the plurality of the High Court in CDJ v VAJ referred to “perceptions, predictions and even intuition and guesswork” informing the exercise of discretion in the making of parenting orders. These features when present in a discretionary exercise also inform the enquiry as to the adequacy of reasons. For example, Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 is authority for the proposition that a judge assessing compensation by reference to the value of land “… is not obliged to explain each step in his reasoning, having regard to the larger scope for intuition, evaluation, judicial impression and guesswork in such decisions.”
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Mahoney JA said (at
p 386):
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard [case citations omitted] … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824, at 826.
The general principles applicable to a challenge as to the adequacy of reasons for a discretionary judgment are well-established and are often repeated by this Court (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (McHugh JA); Bennett and Bennett (1991) FLC 92-191 at 78, 266 (“Bennett”)), (see, also, the reference to Sun Alliance Insurance Ltd v Massoud [1989] VR 8 in Bennett at 78, 266).
These principles were recently discussed by the Full Court in Rafferty & Spencer (2016) FLC 93-710 (“Rafferty”) as outlined at some length in the summary of argument of the mother. It follows from the authorities referred to in Rafferty that a trial judge’s reasons are not required to mention every fact or argument relied upon by the losing party as relevant to an issue. The duty to give reasons does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceedings. What is necessary is that the essential ground or grounds upon which the decision rests should be articulated.
(c) Relevance of delay in the provision of reasons for judgment
It may be accepted at the outset of discussing this topic that, as was contended by each of counsel for the father and for the ICL, the trial judge did not provide any explanation for his delay in delivering judgment. Whilst in the reasons for judgment delivered on 18 January 2016 dismissing the father’s application in a case the trial judge observed that “[t]he delay in the delivery of … judgment is regretted”, neither those reasons nor the reasons delivered on 8 March 2016 contain any discussion by the trial judge about, or reasons for, the delay in delivering judgment.
That noted, it is well settled by authority that delay itself is not a ground of appellate intervention, rather error must be established to warrant such intervention. Delay may assist an appellant in establishing error by demonstrating that delay in giving judgment has contributed to an error or made a decision unsafe.
In NAIS & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 470 (“NAIS”) Gleeson CJ referred to Monie & Others v Commonwealth of Australia (2005) 63 NSWLR 729 (“Monie”) and at [5] said:
… A Court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself.
In Monie Giles JA at [3] cited Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76 where his Honour, with the concurrence of Hodgson JA and Young CJ in Equity, said:
[123] … Delay is of course undesirable, and is contrary to the public interest in the prompt resolution of disputes. But delay, however undesirable, does not itself mean that on appeal a different result is substituted or a new trial ordered … What must be considered is the effect of the passage of time on the quality of the decision-making, including the perception of an effect. The label of delay adds little.
In McCrossen and McCrossen (2006) FLC 93-283 (“McCrossen”) the Full Court (Bryant CJ, Finn and Coleman JJ) referring to authorities including NAIS said at [94]:
Whilst careful scrutiny is called for by the Appellate Court, subject to that scrutiny … delay is not itself a ground of appeal.
In McCrossen the Full Court (at [81] and [82]) quoted extensively from Monie, with apparent approval, including the lengthy summary in Monie of the applicable principles on appeal where delay attends delivery of judgment. We do not propose here to repeat that summary in full as it appears in the judgment of the Full Court, but we will make reference to it where necessary when we address the father’s specific challenges directed to delay.
We now turn to addressing each of the grounds, with the above principles in mind where relevant to the particular complaint raised.
Ground 1: That the Trial Judge was in error in failing to give any or any adequate reasons in ordering that the Respondent Mother have sole parental responsibility
The father’s summary of argument founded this ground on the premise that the presumption in s 61DA(1) of the Act applied (presumption of equal shared parental responsibility); and that it was necessary for the trial judge to specifically rebut that presumption in making an order for the mother to have sole parental responsibility.
That premise is misconceived.
Section 61DA(2) provides:
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
As already noted, the trial judge made specific findings as to family violence and as to abuse within the meaning of that subsection. As a matter of law, by operation of s 61DA(2) the presumption did not apply.
Thus, contrary to the written submissions advanced by the father, there was no “mandatory requirement” upon the trial judge to apply the presumption in s 61DA(1), nor was the trial judge required to give “explicit and cogent reasons why the presumption did not apply”.
So much was conceded by counsel for the father in the course of argument of this ground. During exchanges between the Bench and the Bar, counsel for the father confirmed that propositions in the father’s summary of argument that there was a mandatory requirement upon the trial judge to apply the presumption and that he was required to give explicit and cogent reasons why the presumption did not apply, were abandoned. It was conceded that the presumption did not apply.
Counsel sought to mount a different argument to that contained in the father’s summary of argument, in support of this ground. Counsel argued that, accepting that the presumption did not apply, the trial judge nevertheless failed to provide sufficient reasons for the order for the mother to have sole parental responsibility.
At [60] the trial judge said:
I have set out previously an analysis of the pathway through the legislation. In view of the conclusions I have reached above, it seems to me it would be inappropriate in the circumstances for the parties to have equal shared parental responsibility. This is so, notwithstanding that the Act imposes the presumption that it would be in the children’s best interests generally for that to be the case.
(emphasis added)
The conclusions the trial judge referred to included most of the central findings we have earlier summarised and paraphrased, as well as most of the findings the trial judge made as to unacceptable risk to the children, which likewise we have already set out in summary and paraphrased form.
Further, having set out the history of the parents’ relationship (including at [2] where findings are recorded that the parents commenced cohabitation in 2001; were separated during 2002; reconciled in 2003 and finally separated in 2006) the trial judge recorded at [40]:
And there is the question of violence. It is conceded that the husband and the wife’s relationship was tempestuous even though not long-lasting. It is accepted that there was a degree of physicality about the disputes between the parties. Curiously the husband wants to blame the mother for these encounters and minimises his own involvement. Even if there was a degree of mutuality, that does not excuse his behaviour and I accept, as indeed he himself conceded, most if not all of the violent actions occurred. Curiously he fails to agree that one of them did where it is asserted he threw the mother over a couch. This is not so different in kind or gravity as to have warranted a special category of denial, if I can put it that way. I could not be satisfied that that particular incident occurred but his frank admissions about what else he did allow no other conclusion but that he was violent during the relationship.
(footnotes omitted)
As was pointed out by us to counsel for the father, at the trial counsel then appearing for the father submitted:
… and it’s certainly conceded that there is significant acrimony between the parents in this case – so the acrimony is one reason why you might not order equal shared parental responsibility …
(transcript 15.10.14 p 445 line 33)
Such a concession assumes importance in the context of a challenge to the adequacy of the trial judge’s reasons for the order for the mother to have sole parental responsibility.
We observe that there was ample evidence for the concession made by counsel for the father at trial and for the trial judge’s conclusion, in the context of violence in the relationship, that the parental relationship had been “tempestuous”.
The path of reasoning of the trial judge exposed in the reasons for judgment to the conclusion that there ought be an order for the mother to have sole parental responsibility is tolerably clear.
We are not persuaded of any failure on the part of the trial judge to provide adequate reasons for the order for the mother to have sole parental responsibility.
There is thus no merit in this ground.
Ground 2: That the Trial Judge was in error in failing to give any or any adequate reasons in making orders as to the time the children spend with the Appellant Father; and
Ground 3: That the exercise of discretion by the Trial Judge miscarried due to the failure of the Trial Judge to take into account the recommendations of the Court Expert regarding time between the Applicant Father and the children contained in paragraph 254 of the Court Expert’s Report dated 27 August 2013; and
Ground 4: That the exercise of discretion by the Trial Judge miscarried due to the failure of the Trial Judge to give any or any proper consideration to or to indicate what (if any) consideration was given to the recommendations of the Court Expert in respect of time between the Appellant Father and the children
As each of these challenges are directed to the orders for time made by the trial judge they are conveniently dealt with together.
Orders (4)(a) and (4)(b) of the orders made by the trial judge are the focus of these grounds. Those orders provide as follows:
(4)a. The children will spend time as agreed between the parents with their father, supervised by a person agreed between them or in default of such agreement by a professional supervisor.
b.The frequency and duration of such times will in part be affected by the means and finances and availability of the parents but should be not less than for two hours per month in either Canberra or Newcastle. If there is no agreement, provided the supervision is arranged in accordance with these Orders by the father in advance and he gives the mother not less than 7 days’ notice thereof, for a period of two hours on the first Sunday of each month (commencing in Canberra in April 2016), alternating between Canberra and Newcastle.
The contention in the father’s summary of argument in support of ground 2 that it is unclear whether order (4)(b) orders time of not less than two hours per month or states an aspiration is, with respect, disingenuous. By its terms order (4)(b) provides that, if there is no agreement between the parents, subject to the proviso expressed, the time is to be “for a period of two hours on the first Sunday of each month”.
At [10] the trial judge set out each of the orders sought by the mother. He did the same at [11] with respect to the orders sought by the father. The trial judge then moved to outline the applicable law and principles to a case involving allegations of sexual abuse and in respect of the mother’s proposal to relocate the residence of the children from Canberra to Newcastle. We note that none of the principles outlined by the trial judge are the subject of any challenge in this appeal; including as to the adequacy of that outline.
The trial judge then proceeded to make findings on the central issues including those which we have earlier summarised and paraphrased by reference to paragraphs of the reasons.
At [47] the trial judge found that the unacceptable risk to the children posed by the father “would include, but not be confined to, the real possibility of the inculcation in them of attitudes which may affect their ability properly to develop and grow as young adults in contemporary society.”
Having recorded the findings he did to that point and in summarising the risk to the children’s welfare posed by the father, the trial judge said (at [48]):
In the ordinary course of events, that could lead me to conclude that this was a matter in which it would not be in the children’s interests to spend time with their father at all. However, that is not what the mother has sought nor what the Single Expert recommended. (It is of course a long way from what the father has sought.) In such circumstances, I need to determine whether a risk to the children of abuse, whether physical or psychological, would be substantially obviated if the time that the children spent with their father were to be supervised.
(emphasis added)
Plainly enough, the trial judge did consider the evidence of the single expert in determining whether or not there should be any time or communication ordered at all between the children and the father.
To the extent that these grounds rest upon asserted failures by the trial judge to act upon or analyse the “recommendations” of the single expert, the trial judge was under no obligation to refer to every part of the evidence, including that of the single expert, and it was entirely a matter for the trial judge to determine what was to be made of the single expert’s evidence (see the authorities conveniently collected in Simmons and Anor & Kingsley (2014) FLC 93-581 at [42]).
The trial judge’s consideration of the orders for time necessarily had to be undertaken in light of the predominate central findings:
a)As to the unacceptable risk to the children posed by the father;
b)The inexorable conclusion, in light of the findings overall, that it was in the children’s best interests to live with the mother;
c)The fact that the mother proposed to exercise her right to live in Newcastle and the practical consequences of that; and
d)The fact that there was no evidence whatsoever to support a conclusion that the children living with the mother in Newcastle would deny them a meaningful relationship with the father.
In the context of those findings, it could not be open to any doubt that the children’s best interests were served by orders for the children to live with the mother. Commensurately the father’s proposal that there be an essentially shared care regime was not conceivably in the children’s best interests. The trial judge concluded (at [61]) that his analysis of risk resulted in the conclusion that the children should live with the mother and spend supervised time with their father.
As it was beyond dispute that the children should live with the mother, her proposal to relocate herself and the children from Canberra to Newcastle was necessarily considered in that context. The trial judge did so at [61] to [69].
In that context, the only potential legitimate basis for restricting the mother’s freedom of movement to choose where she lived was if there was evidence compelling a finding that such relocation would deny to the children the prospect of a meaningful relationship with the father in their best interests (see, for example, Adamson & Adamson (2014) FLC 93-622 and the authorities referred to in that case).
As was acknowledged by both counsel for the father and counsel for the ICL during argument of the appeal, there was no such evidence here, including in that respect the evidence of the single expert.
Ground 3 as expressed overlooks the fact that whilst the report of the single expert was prepared and dated 27 August 2013, the context in which that report was prepared was overtaken by events, in particular, the mother’s proposal to relocate from Canberra to Newcastle. The mother amended her application to this effect on 1 April 2014 subsequent to the report.
The oral evidence at trial given by the single expert took account of the mother’s proposed relocation. As already noted, counsel for the father and counsel for the ICL each acknowledged that there was no evidence whatsoever in the case, including that of the single expert, which supported a conclusion to the effect that the children would be precluded from continuing to have a meaningful relationship with the father by reason of their relocation with the mother to live with her in Newcastle. At [46] the trial judge concluded that there would be an unacceptable risk to the children “if they were to have substantial time with their father” (also at [89], in dealing with communication, the trial judge expressed his “deep concern” about the attitudes the father “might inculcate into the children if they were to spend significant time with him”).
Plainly the trial judge took account of the evidence of the single expert in resolving the question of whether any time or communication ought be ordered in the context of his principal findings.
Having concluded that supervision of the father’s time, and limited time, were necessary to address the risk as found, the trial judge had to consider the practicalities of orders in circumstances where the mother and children would be living in Newcastle with the father remaining in Canberra (unless he chose to move) absent any evidence to ground a finding that a meaningful relationship between the children and their father could not be maintained in that context. This the trial judge did at [70] and following of the reasons.
The trial judge’s path of reasoning to the orders he made for the father’s time is readily discernible. There is no substance in ground 2 challenging the adequacy of the trial judge’s reasons.
We are not persuaded of any failure by the trial judge to consider the evidence of the single expert, to the extent it was necessary to do so, in legitimately exercising his discretion in making the orders for the father’s time. Grounds 3 and 4 thus fail.
Ground 5: That the exercise of discretion by the Trial Judge miscarried due to the failure of the Trial Judge to give any or any proper consideration to or to indicate what (if any) consideration was given to any view held by or recommendations of the Independent Children’s Lawyer in respect of time between the Appellant Father and the children
Whilst expressions such as “views” and “recommendations” of an ICL, as appears in this ground, are common enough, it needs to be emphasised in this context that the statutory prescription of the role of an ICL in s 68LA of the Act includes, in subsection (3), the making of a submission to the Court.
That is, it is not the role of the ICL to inform the Court of any general “views” held, or to make “recommendations” in the abstract; rather the task mandated by the section is to make submissions, which of course must be
evidence-based.
Neither in the summary of argument of the father in support of this ground, nor in that of the ICL, is it identified how or in what specific respects the submissions of the ICL at trial were materially different to those of the father. By materially different we mean the manner and respects in which the ICL’s submissions were not encompassed by, or subsumed in, the father’s contentions on the central issues in the case we have already traversed or the orders to be made upon resolution of these contentions.
Our review of the transcript of the respective submissions made at trial by counsel for the father and counsel for the ICL does not reveal any material difference in the sense described.
Evidence at trial, or any aspect of that evidence, does not assume any greater significance to the task of the trial judge simply because an ICL seeks to so invest it. The essential task for the trial judge is to consider the evidence relevant to an issue to be determined. So too, submissions on any issue to be determined do not carry greater weight, per se, because they are made not only by or on behalf of a parent, but also by or on behalf of an ICL.
In his summary of argument the ICL seeks to elevate the following statement made by the Full Court of this Court in Cox & Pedrana (2013) FLC 93-537 (“Cox”) to a statement of principle of general application:
51.The judge was obliged to consider the submissions of the ICL especially in the very serious circumstances of this case and it is not possible to discern that he did so.
However, there is important context in which that statement in Cox was made. In Cox the issue was whether long-standing care arrangements in respect of a seven year old child ought be changed from the child living with his mother to living with the father. It was in that context that the ICL in Cox made a submission, amongst the final submissions made, that the child live with the father only temporarily until further reports were obtained from experts and, subject to what was contained in those reports, the child might be returned to the mother. In other words, the ICL contended that the best interests of the child would be best served by an interim, rather than final, order to allow cogent expert evidence to be obtained and considered for the purpose of making final orders. Immediately preceding what was said at [51] the Full Court in Cox said at [50]:
50.It is impossible to gauge whether the outcome of the decision might have been different had his Honour made reference to the orders as asked by the ICL, and explained why he did not regard that option as being in the best interest of the child.
It is readily apparent that the statement by the Full Court in Cox is not a statement of principle or guideline of general application to submissions made by an ICL in a parenting case. Importantly the statement was made in the context of the Full Court being left in doubt as to whether the outcome of the decision by the trial judge might have been different had the trial judge considered an order proposed by the ICL fundamentally different in substance to any orders proposed by either party, in circumstances where the Full Court in Cox concluded that the trial judge had erred in principle in making the orders made.
In this case, as distinct from the position in Cox, the trial judge did not fail to consider an issue only raised by a submission of the ICL and not otherwise raised by the parties on the evidence.
In oral argument before us counsel for the ICL contended that by not dealing with the submissions of the ICL at trial, the trial judge had “not properly looked at the relocation issue”. Counsel contended that at trial the ICL had submitted that it was not in the best interests of the children for the mother to relocate with them (from Canberra to Newcastle).
Leaving aside that it is clear that the father had at trial opposed the children being relocated and, as already discussed, that the trial judge considered and dealt with both the principles to be applied and that issue in the context of the evidence at various points of his reasons for judgment, it became apparent in the course of argument before us that the ICL’s argument misapprehended the law to be applied in this respect.
We repeat that in circumstances where the mother was, by reason of the central findings made by the trial judge, indisputably to continue her role as primary carer for the children; and the father was found to pose an unacceptable risk to the children; there had to be demonstrated legitimate reasons, in the children’s best interests, to impose constraints upon the mother’s freedom of movement to choose where she lived in carrying out her primary care role.
The apparent misapprehension within the ICL’s argument as to the law to be applied in this context, evidenced in argument before us, was similarly apparent in the submissions made to the trial judge, as review of the transcript of those submissions reveals.
Necessarily the trial judge had to consider the “relocation issue” by reference to the determination of the central issues in the case. Counsel for the ICL’s submissions at trial and before us demonstrated a failure to take into account that essential proposition.
It is also apparent that the submissions of the ICL before the trial judge, as they were before us, were founded on the proposition that C’s evidence as to the father’s sexual abuse of her ought not be accepted. Despite counsel for the ICL contending before us (in his summary of argument) that the ICL made no “direct submission” to the trial judge to the effect that [C’s] evidence should be rejected, it is not possible to interpret the submission made below “… there are too many issues with [C] …”, amongst others, as meaning otherwise. Notably, that submission made below was made in support of the further submission by the ICL to the trial judge that the children should immediately commence unsupervised time with the father, progressing to overnight periods, again ignoring the law to be applied in the context of the mother’s proposed relocation and inconsistent with the trial judge’s findings as to the unacceptable risk to the children posed by the father.
It was not incumbent upon the trial judge to separately traverse submissions on behalf of the ICL which, because of their features common to those made on behalf of the father, were dealt with by the trial judge in dealing with the father’s case and submissions. Nor was it incumbent upon the trial judge to specifically traverse submissions on behalf of the ICL based upon, either or both of, a misconceived view of the law to be applied (“the relocation issue”) or a view of the evidence utterly inconsistent with the findings upon that evidence ultimately made by the trial judge, which findings were open to him.
We find no merit in this ground.
Grounds 6, 7 and 8
As earlier referred to (see [14] to [17] above), the father relies upon the fact that the trial judge did not make each of the orders the subject of these respective grounds, and did not deal with them in his reasons for judgment, as “examples”, as the father’s counsel put it, of delay having infected the trial judge’s decision-making.
However, in our judgment it is readily demonstrated that if, assuming for present purposes that it was an accidental omission on the part of the trial judge that these orders were not made, such omission cannot be causally related to the delay between the trial and the delivery of reasons for judgment.
This is demonstrated by the feature that at [11] of the reasons delivered on 8 March 2016 the trial judge sets out, in full, the orders the father sought including the subject orders at 6, 7 and 9 within [11].
We therefore reject the father’s contention that grounds 6, 7 and 8 lend support to, or provide examples of, delay having infected the trial judge’s reasoning.
Moreover, we have already outlined the relevant principles concerning challenges on appeal to the adequacy of a trial judge’s reasons. Given the relatively minor importance of the issues the subject of these proposed orders, compared to the major and serious issues in the case that fell for determination, as earlier summarised and discussed, even if we were persuaded that the trial judge, by omission rather than deliberate choice in the exercise of his discretion, failed to make these orders, we could not conclude that such an error was other than de minimis and not such as to enliven appellate intervention.
Thus, grounds 6, 7 and 8 fail.
Ground 9: That the delay in delivery of Reasons for Judgment and making of Orders following the final hearing was manifestly such as to render unsound the Reasons for Judgment; and
Ground 10: That the delay in delivery of Reasons for Judgment and making of Orders following the final hearing was such as to render unreliable the findings of the Trial Judge as to the evidence and as to the credit of the parties
Ground 9 as expressed, and as informed by the summary of argument of each of the father and the ICL discernibly in support of it (grounds 9 and 10 are addressed together), can be seen to be no more or less than a complaint to the effect that delay of itself constitutes appellable error. By reference to the principles earlier discussed, that cannot be accepted. There is no merit in ground 9.
In argument in support of ground 10 each of counsel for the father and counsel for the ICL focused upon the trial judge’s acceptance of C’s evidence.
In particular, counsel for the father contended that the trial judge’s observations as to C’s demeanour, expressed at [38], rendered unsafe the trial judge’s acceptance of her evidence by reason of the operative delay between C giving evidence at trial and the delivery of judgment. C gave evidence at trial in late July 2014 and the father gave evidence in October 2014. In reasons for judgment delivered on 8 March 2016 the trial judge expressed his satisfaction that C’s evidence as to the father’s sexual conduct towards her should be preferred to the father’s denials. Thus the operative delay is between late July 2014 and 8 March 2016, a period of about 19 months.
The summary in Monie (at [43]), quoted in full by the Full Court in McCrossen as earlier referred to, includes this:
(5)But the trial judge’s advantage does weaken with time. Where there is a significant delay between seeing and hearing the witnesses and the delivery of judgment, the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made. If, for example, the judge is able to explain in the judgment given that contemporaneous notes had been made of the impressions formed of the evidence given by the relevant witnesses, confidence in the decision given would no doubt be maintained despite the delay.
(6)If, after such delay, the trial judge has not given specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance in the appeal, and where there does not exist any indication in the transcript or the evidence which clearly explains the judge’s finding, the appellate court is obliged to give careful scrutiny and consideration to those findings. Where there has been significant delay, there can be no assumptions that statements of a general assertive character made by the judge are based on a sufficient consideration of the evidence, or that evidence relevant to a particular finding not considered in the judgment has not been overlooked by the judge in making that finding where that evidence, if accepted, could have supported a different finding.
At [38] the trial judge recorded this with respect to C:
38.In the witness box she gave the impression of being nervy and nervous and without any disrespect intended to her at all, she seemed somewhat immature. All of those are factors which would reasonably contribute to her decision to withdraw the charges, or perhaps more accurately to seek that the prosecution not continue and to indicate that she did not want to cooperate.
However, to focus only upon that paragraph of the reasons in isolation, as counsel for the father sought in argument to do, is to invest it, and the finding as to demeanour, with a significance it does not have in the trial judge’s overall assessment of credit when [38] is read in the context of the findings leading to it.
Commencing at about [24], the trial judge sets out a series of findings in discussing the evidence which plainly informed his credit findings. For example, at [24] are findings concerning the father’s own history of involvement in incestuous relationships. At [25] is the finding of the father’s retained interest in incestuous sexual relationships and that this topic formed part of his pornography collection, which he shared with C (at [27]).
At [26] is the finding as to the father suggesting to C that she was attracted to her brother; and the father’s concession in evidence that he had suggested to his son (C’s brother) that C was attracted to him.
At [28] are the findings as to the father’s inconsistent versions to police and the single expert as to his reasons for retaining his pornography collection. At [29] is a further finding as to the father’s interest in incestuous sexual relationships.
At [30] is recorded the trial judge’s acceptance of the single expert’s evidence that the father was interested in immediately post-pubescent young women. At [31] and [32] are the findings as to the father installing a camera in C’s bedroom being done by the father to satisfy his “prurient” interest in C.
At [34] the trial judge summarises C’s evidence and refers to corroborative detail within C’s version which the trial judge found to be supportive of it. At [35] is recorded the trial judge’s finding that the father’s evidence was unconvincing.
At [36] and [37] the trial judge discusses, and records findings about, C’s cooperation in the father’s behaviour towards her and the context in which, at one stage of the police prosecution, C had withdrawn her allegations.
Importantly, we confirmed with counsel for the father during argument that it was not contended that the trial judge made any factual error in the observations he made or the findings he made in accepting C’s evidence.
We note in passing that footnotes to the transcript of the trial appear amongst the paragraphs of the reasons we have referred to. It is clear that the trial judge reviewed the transcript (and other footnoted written evidence) in formulating his reasons.
To adopt descriptions of the quoted paragraphs used by Austin J during the course of counsel’s argument, it can be seen that there was a “linear process of reasoning” and an “aggregation of factual findings” (none of which are challenged) of which the finding at [38] is only one, supporting the trial judge’s conclusion to accept C’s evidence and reject that of the father.
Expressed in terms of the Monie summary, it is clear that the trial judge did “give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made”; and the trial judge “has given specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance”.
Neither counsel for the father nor counsel for the ICL contended that evidence relevant to the trial judge’s acceptance of C’s evidence was not considered or was overlooked by the trial judge.
As is clear from the paragraphs of the reasons referred to, the trial judge specified in some detail his reasons for rejecting the father’s evidence and did not in that process rely upon demeanour. We find no substance in the complaint that the trial judge’s credit findings were rendered unsafe by delay in delivering judgment or that such delay infected the trial judge’s acceptance of C’s evidence and the findings he made in accordance with that evidence.
Counsel for the father argued, by reference to ground 10, that with respect to C’s evidence the trial judge chose to make a positive finding, based upon the acceptance of her evidence, that the abuse C alleged had occurred where, as counsel put it, “that was not necessary”. Reference was made by counsel to the trial judge’s task being to make an assessment of unacceptable risk (to the subject children) and it was in this context that counsel referred to it being “not necessary” for the trial judge to make a positive finding.
We clarified with counsel during his argument as to the link he sought to draw between this contention and delay on the part of the trial judge. We interpret counsel’s references to [38] and to “Briginshaw” (Briginshaw vBriginshaw (1938) 60 CLR 336 per Dixon J) in that context to mean that, given the seriousness of the positive finding, the trial judge’s assessment of C’s demeanour, given the delay between her evidence and judgment, rendered that finding unsafe.
However, as we have sought to demonstrate, when the reasons are read as a whole and [38] is read in context, the trial judge’s acceptance of C’s evidence cannot be characterised as relying wholly, or even substantially, upon the demeanour finding in [38]. The trial judge explained his acceptance of C’s evidence and also its corollary, the rejection of the father’s denials, by reference to a number of matters rather than simply relying upon an assessment of demeanour.
In circumstances where a then 19 year old C gave direct evidence of sexual abuse of her by the father when she was a minor, and the father gave evidence denying that conduct, it was not incumbent upon the trial judge to shirk from making a positive finding in resolving that contest in evidence if he felt impelled to so do (M v M (1988) 166 CLR 69).
The trial judge was plainly aware of the standard of proof in the circumstances referring as he did in the reasons (at [12], [13] and [14]) to each of Briginshaw; M v M (supra) and s 140(1) of the Evidence Act 1995 (Cth).
Otherwise, the contention in support of this ground is, in summary, that because of the delay in delivering judgment there was a need to update the evidence of the parties’ respective circumstances, including their financial circumstances, and to obtain updated expert evidence as to the current views of the children, before judgment was delivered.
However, as already referred to, in advance of delivering judgment the trial judge afforded the parties the opportunity to apply to reopen the evidence. The father filed an application and a supporting affidavit. So too did the mother file an affidavit.
Whilst the trial judge formally dismissed the father’s application, it is clear from the reasons for judgment (at [71]) that the trial judge took into account the affidavit evidence at least to the extent of allowing for the fact that N was expressing strong views to the effect that he wanted to live with the father and might “run away” from his mother if she moved to live in Newcastle.
However, given the trial judge’s findings as to unacceptable risk, to give effect to N’s views (assuming them to be as asserted by the father) would be to expose him to that unacceptable risk. The trial judge accounted for the prospect that N was expressing the views the father ascribed to N but nevertheless, in the face of the findings referred to, made the orders that he did. In context there was no error on the part of the trial judge in not obtaining an updated family report which, even if it had reflected that N’s views were as ascribed to him by the father, could not have impacted upon the overall determination given the findings as to unacceptable risk.
Notably, the father did not seek to reopen the evidence to update his evidence otherwise, including as to his current financial circumstances, notwithstanding the invitation of the trial judge. There is no appeal from the trial judge’s dismissal of the application the father made on the basis it was advanced for the purpose of seeking interim orders. It is not open to the father, on this appeal, to now complain about evidence he might have offered if the case was reopened when an invitation was made by the trial judge to so do, and the father elected not to avail himself of that opportunity in this respect.
We find no merit in these grounds.
Ground 11: That the exercise of discretion by the Trial Judge miscarried due to the Trial Judge permitting his strongly adverse view of the Appellant Father to impact upon his decision to such an extent that he failed to give proper consideration to what Orders were in the best interests of the children in respect of their relationship with the Appellant Father, thereby denying the Appellant father natural justice
Counsel for the father did not seek to address this ground in oral argument, electing to rely upon the father’s summary of argument.
Reference to that summary, specifically all of two short paragraphs in support of it, is not particularly illuminating as to the complaint actually agitated.
Absent the provision of any particulars whatsoever as to what is contended to constitute the trial judge’s “strongly adverse view” of the father, taken with the absence of any challenge that any finding made by the trial judge was not open on the evidence, this complaint is tantamount to a contention that the making of any finding adverse to the father demonstrates bias on the part of the trial judge. Such a contention is untenable.
Absent such particularity informing this ground we will not burden these reasons with speculation about what the ground might refer to in this respect.
It is contended that the orders the trial judge made for communication, permitting the children to instigate telephone communication on an unrestricted basis (order (5)(d)) are inconsistent with order (4)(b), restricting time to two hours per month, supervised.
In our judgment the only inconsistency revealed by this ground is that between the father’s complaint, on the one hand, that the trial judge’s “strongly adverse view” of the father impacted upon the orders made and, on the other, the fact that those orders included order (5)(d) for unrestricted telephone communication.
As is recorded by the trial judge at [10], the mother sought an order for supervised time once per month with the time alternating between Canberra and Newcastle. That was part of the mother’s case the father had to meet from the outset of trial. There could not be a “denial of natural justice” to the father by the making of an order always in prospect as one agitated for by the mother throughout the trial.
As already discussed, order 4(b) imposes a minimum, not a maximum restriction, of two hours per month.
Having regard to the specific findings of the trial judge as to the discrete respects in which the children would be exposed to an unacceptable risk by the father, there is no inconsistency between an order for limited supervised time on the one hand, and telephone communication at the children’s instigation on the other. That is revealed by the trial judge’s discussion about “communication” commencing at [89] which discussion proceeds in light of the trial judge’s findings concerning risk.
There is no merit in this ground.
Ground 12: That the exercise of discretion by the Trial Judge miscarried due to the Trial Judge failing to take into account the best interests of the children by failing to make Orders that provided for the children to have the benefit of the Appellant Father having a meaningful relationship with the children; and
Ground 13: That the exercise of discretion by the Trial Judge miscarried due to the Trial Judge failing to properly take account of the relevant considerations in determining the best interests of the children
As these grounds were dealt with together in the father’s summary of argument, it is convenient for us to likewise deal with them.
We have already outlined the general principles apposite to challenges to the exercise of the discretion involved in making parenting orders. Moreover, much of the discussion in addressing grounds 3 and 4 above resonates with these challenges and we need not repeat that discussion.
We have also already referred to the concession that there was no evidence in the case, including that of the single expert, that the children would be denied a meaningful relationship with the father by the orders made by the trial judge.
In support of these grounds reference is again made by the father to the evidence of the single expert.
Dr D’s evidence was that the children’s time with the father should be for short periods of time and supervised (transcript 13.10.14 page 361 lines 25 to 35). In relation to N’s particular interest in go-karting activities (a particular matter agitated in the father’s summary of argument in support of these grounds) it was the single expert’s evidence that there ought not be separate arrangements for the siblings (transcript 13.10.14 p 377 line 45); and if N were to participate in these activities with the father that should be supervised (transcript 13.10.14 p 378 line 25).
We reiterate that it was a discretionary matter for the trial judge as to the use to be made of the evidence of the expert, which did not bind him. The point here is that the expert’s evidence does not support the father’s contention that the orders the trial judge made were inconsistent with the evidence of the expert.
As to the prospect of N reacting adversely to the orders made (the final matter specifically raised in support of these grounds), the trial judge was plainly cognisant of that prospect and addressed it at [70] to [74]; and [86] and [87].
We are not persuaded that in exercising his discretion to make the orders he did that the trial judge failed to take account of the benefit to the children of having a meaningful relationship with the father, nor that the trial judge failed to consider any relevant consideration material to that exercise.
These grounds fail.
Ground 14: That the Trial Judge was in error in finding that the supervisor “PA” is no longer willing to supervise time between the Applicant Father and the children
The trial judge did not make the finding asserted in this ground.
At [51] the trial judge said:
51.… On an interim basis, the parties had agreed on the father’s younger sister being the supervisor. There is no suggestion that that supervision has not worked adequately. However, it is detectable that “PA” (as the father refers to her) is, reasonably enough, no longer quite as enthusiastic about spending the time that she must necessarily spend in her supervisory activities.
This finding was consistent with both the affidavit evidence of the father’s younger sister and the evidence of the father himself.
At [93] the trial judge said:
93.… While I doubt that the parties will be able to reach agreement on a supervisor other than the father’s sister from the suite of suggestions made by the father, the father is ultimately the cause for the need for supervision and in such circumstances it is he who should make the payment that is necessary.
This ground, contending for an error of fact made by the trial judge, is not established. However, even if the error contended for had been made by the trial judge, it is not demonstrated how such error could be seen to be material to the decision, given its relative significance compared to the central issues in the case (De Winter and De Winter (1979) FLC 90-605).
This ground fails.
Ground 15: That the Trial Judge was in error in finding that the Applicant Father failed to see his younger sister as a victim of past conduct
We assume this complaint is directed to what the trial judge said at [87]. An assumption is necessary because the father’s single short sentence in his summary of argument in support of this ground does not identify where it is said the finding referred to was made.
At [87] the trial judge said:
87.I am also conscious of the fact that it was at this age that the father suffered the depredations he says he did, at the hands of his elder sister and ultimately, visited those upon his younger sister. I find it odd in the context of the father’s reports on these matters that he sees himself as the victim, and falls [sic] to see that he in turn in this process victimised his sister.
(emphasis as in original)
As the father’s summary of argument does not identify how, or in what respect, any error of the trial judge in this respect was even remotely material to the overall determination, and counsel for the father did not supplement the summary of argument with any oral argument; we assume it is contended (without elaboration of how this is so) that material error of fact affected the determination.
We fail to see how that could be so, and find no merit in such a contention.
This ground fails.
Conclusion and costs
As earlier foreshadowed, given the consent expressed by the parties to this course during the hearing of the appeal, we will order, by consent, that the subject orders be varied by adding to them orders in terms of orders (6), (7) and (9) as contained in the father’s minute of order at trial.
There being no merit in any of the grounds of appeal the appeal will be dismissed.
In the event the appeal was dismissed the mother sought an order for costs against the father. The father opposes that application.
The father has been wholly unsuccessful in the appeal within the meaning of s 117(2A)(e) of the Act.
The mother is in employment earning $90,000 per annum. Whilst she owns a property her mortgage debt has increased by about $200,000 through borrowing to fund her legal costs both for the trial and this appeal. We were informed that servicing her mortgage debt and supporting the children leaves her with little disposal income. There was a dispute on the submissions before us between the parents as to the level of child support being paid by the father.
The father is in employment earning $43,000 per annum. It was submitted he pays $230 per fortnight in child support (including for arrears). It may fairly be observed that the support of two children the ages of these children would be considerable.
The father is obliged to fund the supervision of his time with the children but we were told he avails himself of a free service in that respect.
In resisting any order for costs against the father, who was legally aided by the Legal Aid Commission of the ACT, counsel referred us to s 34 of the Legal Aid Act 1977 (ACT).
That section does not impose any impediment on a court making an order for costs against a legally assisted person. It simply provides that such a person may request that the Commission, and the Commission may accede to a request, pay ordered costs on behalf of the legally assisted person.
We are satisfied that in the circumstances of the father pursuing an appeal found to be without merit there ought be an order for costs in the mother’s favour. Nothing put to us concerning the parties’ respective financial circumstances outweighs that consideration in the overall circumstances of this case.
I certify that the preceding one-hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Austin JJ) delivered on 28 September 2016.
Associate:
Date: 28 September 2016
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