Gallea & Gallea (No 2)
[2021] FamCAFC 145
•9 August 2021
FAMILY COURT OF AUSTRALIA
Gallea & Gallea (No 2) [2021] FamCAFC 145
Appeal from: Gallea & Gallea [2020] FCCA 2602 Appeal number(s): EAA 147 of 2020 File number(s): CAC 265 of 2018 Judgment of: STRICKLAND, AINSLIE-WALLACE, WATTS JJ Date of judgment: 9 August 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant father was represented by experience counsel at the hearing before the primary judge, but failed to seek specific parenting orders – Where the appellant’s summary of argument does not advance any of the grounds of appeal – Where there is no error established – Where the appellant has failed to comply with orders that would provide a framework to unsupervised time – Short form reasons given pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) – Appeal dismissed – Orders made for the filing of costs submissions. Legislation: Family Law Act 1975 (Cth) ss 60CC, 94AAA(7) Cases cited: Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Division: Appeal Division Number of paragraphs: 26 Date of hearing: 28 July 2021 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Coleman SC Solicitor for the Respondent: Dimocks Family Lawyers
The Independent Children's Lawyer: Did not participate in the appeal ORDERS
EAA 147 of 2020
CAC 265 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR GALLEA
Appellant
AND: MS GALLEA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
STRICKLAND, AINSLIE-WALLACE & WATTS JJ
DATE OF ORDER:
9 AUGUST 2021
THE COURT ORDERS THAT:
1.The Appeal be dismissed.
2.Within a period of seven (7) days, the respondent mother file and serve any further evidence and submissions in support of the respondent’s costs application.
3.Within a further seven (7) days, the appellant father file and serve any further evidence and submissions in response.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallea & Gallea has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, AINSLIE-WALLACE & WATTS JJ:
INTRODUCTION
By Notice of Appeal filed on 15 October 2020, Mr Gallea (“the father”) appeals final parenting orders made by a Judge of the Federal Circuit Court on 18 September 2020. Ms Gallea (“the mother”) opposes the appeal. On 22 April 2021 the Independent Children’s Lawyer (“ICL”) filed a submitting notice in the appeal.
The hearing before the primary judge concerned the future parenting arrangements for the child of the marriage, then aged four years.
In this appeal, the father is a litigant in person. The father though, indicated that he had incurred legal costs in relation to this appeal and it appears that he has had that legal assistance in formulating the six grounds of appeal, but has not provided a Summary of Argument that complies with the procedural orders or in any way addresses any of the grounds of appeal. Despite that the father was given leave to make further oral submissions. The father, emotionally at times, said he was looking to resume his relationship with the child, that he was a good person, a good husband and father, that he had done nothing wrong and urged us to reunite him with the child (inferentially on an unsupervised basis). He said he was selfless and he wanted us to respect him for that and that he was the one who had suffered a lot. None of what the father said focused upon any error asserted in his Notice of Appeal.
In these proceedings, under s 94AAA(7) of the Family Law Act 1975 (Cth), this Court is entitled to give its reasons in short form in the event that the appeal is to be dismissed and if, in the opinion of the Full Court, the appeal does not raise any question of general principle. As these conditions are fulfilled here, we propose to give reasons in short form.
ORDERS AND REASONS OF THE PRIMARY JUDGE
Despite being represented at the hearing by experienced counsel, the father did not seek any specific parenting order but sought such order for the child to spend time with him as the Court determined was in the child’s best interests. The orders and notation made by the primary judge were substantially in the form sought by the mother with the ICL’s support, although the order for the child’s supervised time with the father continued beyond the period of six months as sought by the mother and supported by the ICL. That continuation was indefinite if the father did not make a new application having fulfilled the conditions imposed by the primary judge referred to below.
The primary judge ordered that the mother have sole parental responsibility subject to the mother consulting the father in relation to the child’s education and health prior to any decision being made, and that the child live with the mother.
The primary judge also made orders relating to the method of communication by the father with the child and with the mother; allowing the mother to travel overseas with the child and obtaining and holding the child’s passport together with other ancillary orders aimed at keeping the father informed and involved in aspects of the child’s life. Other orders made were aimed at ensuring the father’s prior behaviour of withholding the child from the mother on two occasions without foundation was not repeated.
The order for the child’s time with the father, expressed as a final order, is for an initial period of six months, for two hours each alternate Saturday and Sunday at a supervised contact centre (Orders 5 and 6). Orders were made for the father thereafter to obtain a mental health assessment on the basis that the professional making that assessment have available the contact centre’s notes; and for the father to obtain and comply with a mental health plan (Orders 7 and 8).
Importantly, the primary judge at the end of the orders made the following notation:
A.In the event that the Father commences further proceedings in relation to the child, specifically in the event that he has undertaken six months of supervision in accordance with these Orders, and obtained a mental health assessment as required, no ‘Rice & Asplund’ point shall be taken by the Mother.
Absent a mental health assessment after the initial period of six months, the supervision order continues in force (Order 5(c)). The father told us that he was still seeing the child at the contact centre pursuant to that order as he had not taken any steps to comply with Orders 7 and 8, that is, to obtain a mental health assessment and (if appropriate) obtain and comply with a mental health plan, on the basis set out in those orders.
Orders were also made requiring the father to enrol in anger management and post-separation courses (Orders 24 and 25). The father told us that he had not complied with those orders.
The primary judge made significant adverse findings about the father’s presentation at the hearing, his behaviour, his mental status and his credibility.
The primary judge described the father as being regularly clearly distraught during a case management event and the two day hearing, including exhibiting extreme emotional outbursts.
As to the father’s previous behaviour, by way of example, the primary judge found that the father had retained the child from the mother on two occasions without any reasonable excuse. The first in June 2019 where the father retained the child for eight days until a recovery order was made, and then again in January 2020 where the father retained the child for 26 days until a second recovery order was made. On 31 January 2020 the director of the child’s early learning centre placed the centre in lockdown as a result of the father’s actions and called an ambulance for the father.
The primary judge took into account evidence by a psychiatrist engaged as a single expert that the father had concerning personality traits of rigidity, obsessiveness, overbearing behaviour and self-absorption. During the interview with the single expert, the father had displayed the same extreme distraught behaviour as observed by the primary judge. The primary judge specifically highlights at [8] a comment made in the single expert’s report that the father’s behaviour “had elements of a rather immature form of emotional outburst which one often sees in quite obsessional but naïve people”.
The father had failed to comply with a procedural direction to obtain and file evidence about his mental status.
The primary judge dealt with relevant s 60CC considerations but most importantly concluded, when considering s 60CC(2)(b) matters, that the child needed to be protected from the father’s aberrant behaviour.
The findings and conclusions of the primary judge were more than open based upon the answers provided by the father in his oral evidence, including the primary judge’s conclusion at [37] that he had no confidence in the father’s evidence.
GROUNDS OF APPEAL
The first ground challenges the primary judge’s conclusion that concerns about his mental health warranted an order for supervised time. The father indicated that he did not understand why the primary judge had reached a conclusion that he would benefit from an assessment as to his mental health. That conclusion was more than open to the primary judge upon the evidence and the observations made by his Honour during the hearing. Moreover the asserted error is not identified. The findings made by the primary judge, which underpin the conclusion, have not been demonstrated to be wrong by “incontrovertible facts or uncontested testimony” (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]).
The second ground asserts that the orders made were unclear and/or ambiguous and/or unable to be carried out and/or unenforceable. The father has failed to establish that they are any of those things, and indeed they are not.
The third and fourth grounds complain about the limited nature of the spend time with order and the real prospect that a further application for final parenting orders will need to be filed by the father. The justification for making the orders and notation sought by the mother and the ICL emerge from the reasons. The primary judge concluded that they were in the child’s best interests having regard to the findings he had made in relation to the father’s mental status. While the orders and notation made by the primary judge leave open the prospect of further litigation initiated by the father, it was open to the primary judge to conclude that those orders and notation, in the unusual circumstances of this case, were in the child’s best interests. The father said he understood the primary judge had left a path open for him to come back to the court and apply for unsupervised time with the child. However the father had not yet obtained the mental health assessment and if appropriate, obtained and complied with a mental health plan (in accordance with Order 8). Until he does this, it is likely that the current final orders for supervised time will continue.
The fifth ground complains about the primary judge’s order allowing the child to travel internationally with the mother but the ground does not identify the nature of the error apparently asserted by the ground or the basis of the appellant’s complaint.
The sixth ground complains about matters of weight and asserts that the primary judge drew adverse inferences which were not reasonably available to him on the evidence. Disagreement only on matters of weight by no means necessarily justifies a reversal of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519–520). The asserted erroneous adverse inferences are not identified.
The father has not demonstrated any appealable error and accordingly the appeal shall be dismissed.
COSTS
In the event that the respondent mother was successful, her Senior Counsel indicated that the mother sought a costs order against the father. He indicated though that because a written offer(s) had been made, the mother sought an opportunity to file further submissions.
Accordingly, we will make directions that within a further period of seven days the mother file any further evidence and written submissions in support of her application for costs and within a further seven days the father file any further evidence and submissions in response.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Ainslie-Wallace & Watts. Associate:
Dated: 9 August 2021
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