GARRETY & STEYN
[2019] FamCAFC 124
•1 August 2019
FAMILY COURT OF AUSTRALIA
| GARRETY & STEYN | [2019] FamCAFC 124 |
| FAMILY LAW – APPEAL – PARENTING – Whether the primary judge failed to have regard to the totality of the relevant evidence, in particular the recommendations of the single expert – Whether the primary judge adequately considered conditions that the single expert’s recommendations were contingent upon – Where the parenting of the children by all parties fell short of adequate – Whether the appellant and respondent were equally blameworthy or culpable – Whether a change in residence posed an insurmountable challenge for the children – Where the children would not have a relationship with the respondent if they continued to live with the appellant, whereas the respondent would attempt to maintain all existing relationships – Where the reasons when taken as a whole are a consideration of the conditions and caveats attached to the single expert’s recommendations – Whether the primary judge failed to have regard to a number of relevant issues – Where the primary judge’s reasons and treatment of relevant issues were adequate and sufficient – Appeal dismissed – Wording of order varied. FAMILY LAW – APPEAL – COSTS – Where the appeal was entirely unsuccessful – Fixed costs – Where the written and oral submissions made on behalf of the respondent did not provide assistance – Appellant to pay costs of the respondent fixed in a sum ordered by the Court – Appellant to pay costs of Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) s 117(2A) |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Garrety |
| RESPONDENT: | Ms Steyn |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | NCC | 802 | of | 2013 |
| APPEAL NUMBER: | EA | 32 | of | 2019 |
| DATE DELIVERED: | 1 August 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Johnston JJ |
| HEARING DATE: | 30 May 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 March 2019 |
| LOWER COURT MNC: | [2019] FamCA 180 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPELLANT: | Gillard Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Page QC with Mr Duane |
| SOLICITOR FOR THE RESPONDENT: | Rankin Ellison Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Lawrence |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
The appeal be allowed in part.
Order 17 be varied by deleting the words “has leave to” and replacing them with the word “shall”.
The appeal be otherwise dismissed.
The appellant to pay the costs of the respondent fixed in the sum of $5,000.
The appellant to pay the costs of the Independent Children’s Lawyer fixed in the sum of $5,511.
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 Garrety & Steyn 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 32 of 2019
File Number: NCC 802 of 2013
| Mr Garrety |
Appellant
And
| Ms Steyn |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By a Notice of Appeal filed 3 April 2019, Mr Garrety (“the appellant”) appeals against parenting orders made by a judge of the Family Court of Australia on 27 March 2019. The orders concern Ms Steyn (“the respondent”) and the parties’ children, B, born in 2009 and C, born in 2011 (“the children”).
In accordance with orders made on 18 December 2014, after a contested hearing before the same judge, the children lived with the appellant who had sole parental responsibility for them. Although the orders provided for the children to spend time with the respondent, in practice, it occurred irregularly.
In short, the orders made on 27 March 2019, reversed the prior parenting arrangement and provided for the respondent to have sole parental responsibility for the children who were to live with her. The children were to spend no time with the appellant for a period of 10 weeks and after 10 weeks they were to spend time with the appellant as agreed between the parties, or failing agreement, for short periods of time in a contact centre and holiday time. The location of the contact centre was to be in the respondent’s area for a period of eight weeks and then alternating for a period of eight weeks between the respondent’s and the appellant’s areas.
On 18 April 2019, it was ordered that the appeal against the parenting orders be expedited.
The appeal is opposed by the respondent and the Independent Children’s Lawyer (“the ICL”).
Background
The parties met in 2008 and began living together in April 2009. The parties separated in March 2013.
The respondent has a son from a previous relationship, J, born in 2007, who at the time of the hearing lived with her in Suburb GG.
The appellant lives in E Town with his wife, Ms F, their child, DD, and Ms F’s child, G, from a previous relationship.
On 24 April 2017, the respondent filed an Initiating Application seeking to vary the orders made on 18 December 2014, which resulted in the Court reconsidering the parenting arrangements.
Both parties had accepted that the existing orders were not working. It was asserted that this was because of poor parenting by the respondent on the one hand and by the appellant and his wife on the other. It can safely be said that in some respects the parenting of the two children by all parties was, at times, appalling.
The appellant contended that the children live with him and that he have sole parental responsibility for the children. He proposed that the children spend only holiday time with the respondent. He also proposed various restraints on the respondent’s care of the children including how she was to permit interaction between her son, J, and the children.
The respondent effectively sought a reversal of the orders made on 18 December 2014. She also proposed that the children not be left in the unsupervised care of the appellant’s wife until the children were of a certain age.
Dr EE, a psychiatrist, was the single expert in the proceedings who prepared an extensive report on 15 January 2018. He considered that the conduct of the respondent was more confined in its focus and “reactive rather than unprompted”, than that of the appellant and his wife, which he considered to be “gratuitous and relentless” (Report of Dr EE dated 15 January 2018, p.62). This was the essential issue in the case, as Dr EE accepted that if the Court found the parties to be equally culpable then “probably that’s not a situation where you would envisage a change of residence” (Transcript 17 August 2018, p.688 line 33).
Dr EE also considered that a practical and potential problem that had to be overcome was whether the children could cope with a change in residence.
As we have seen, the appellant’s contentions did not succeed and the primary judge made orders along the lines proposed by the respondent. The primary judge also ordered that “the [appellant] do all things necessary to ensure that [the appellant’s wife] is not in attendance at, or within the vicinity of, a contact centre for any changeover.”
The Appeal
Grounds 2, 3.1, 3.2, 3.4, 5.2 – 5.7 inclusive and 6.2 were abandoned.
The appellant’s primary contention was that the recommendation of Dr EE was based upon two conditions set out above, which were not the subject of proper consideration and analysis by the primary judge.
It was submitted that the primary judge erred because, whilst she may have touched on the evidence that showed the respondent’s behaviour to be as culpable as that of the appellant, her Honour did not deal with it, or with the ability of the children to cope with a change in residence.
Did the primary judge fail to have “evident regard to the totality of the relevant evidence”, particularly, that of Dr EE? (Ground 6)
In essence, the appellant’s submission is that the primary judge did not deal with the oral evidence of Dr EE which, it was contended, made his recommendations contingent upon certain findings to be made by the Court. It is then asserted that this evidence was not considered and the relevant findings were not made.
In order to understand the submissions, it is necessary to place them in the appropriate factual context.
In his report, Dr EE identified the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent as being the issue “central to this case and it may well be the psychological factor which determines the ultimate outcome” (Report of Dr EE dated 15 January 2018, p.50).
The conclusion he reached was:
I have been asked specifically to address the issue of whether any of the adults in this matter have engaged in alienating or aligning behaviour with the children. From the material noted above and in the other areas of my conclusions, I formed the view that all three adults have done so, however that the conduct of [the appellant] and [the appellant’s wife] has been significantly more pervasive, focused, disruptive and possibly even premeditated than has that of [the respondent], which has more resembled lapses in judgment. I would emphasise that I say this not just because they have had far more opportunity to engage in alienating or aligning behaviour because of the children’s presence in their household for almost all of the time, but that what they appear to have done is far more likely to have been effective than would the acts so far perpetrated by [the respondent] had she had the same time with the children available to her.
(Report of Dr EE dated 15 January 2018, p.54)
This conclusion significantly informed Dr EE’s recommendations as to the orders that should be made:
Finally, and as a corollary of some of the matters noted above, I am very concerned that not just aligning behaviour, but alienating behaviour, has occurred within the [Garrety] home which has been reasonably effective in the case of [B] and less so in the case of [C].
I have been asked whether I have any recommendations in relation to orders. As would be evident from above, it follows that I am concerned that [the appellant] and [the appellant’s wife’s] behaviour has been gratuitous and relentless. While [the respondent] is not blameless, her activities have been more confined in their focus and reactive rather than unprompted in their motivation. If my view is correct, I see no reason for believing that [the appellant] and [the appellant wife’s] are going to change their attitude and it is my view that if that is the case, then things are only going to get worse for the [children]. Moreover, if the Court is satisfied that they have behaved in this way and that [the respondent’s] conduct has been less reprehensible, then it is my view that consideration could be given to the orders that the [respondent] is seeking. I have outlined some potential problems in this area, none of which I believe are insurmountable, and the potential benefits are positive relationships with both families and parenting which focuses more on achieving this than does the current situation. Moreover, the [children] are still of an age when a change of residence can work, even with children with stronger views and greater vulnerability than [B].
(Report of Dr EE dated 15 January 2018, p.62) (Emphasis added)
Her Honour accepted this, saying:
282.The parties agree, and I have concluded, that to continue with the current orders is not only practicably impossible but destructive for the children. The recommendation of the single expert was that there be a change of residence and for the reasons above, I consider that is the appropriate course, despite the disruption of the life they have known for more than five years.
The appellant did not accept this as an adequate or accurate summary of the recommendation, in particular of the bolded qualification. We shall return to that issue in due course.
The oral evidence relied upon by the appellant was the cross-examination of Dr EE, which focused on some out of many incidents that occurred between the parties, of which the first and last were said to “bookend” the conduct of the respondent. Each was designed to highlight the conduct of the respondent and to demonstrate that her conduct was indeed as “gratuitous and relentless” (Report of EE dated 15 January 2018, p.62) as that of the appellant and his wife.
The first set of incidents relied upon by the appellant was the failure of the respondent to attend to collect the children on the first two occasions that they were to spend time with her after the orders were made on 18 December 2018.
The submission was:
[COUNSEL FOR THE APPELLANT]: But the evidence also shows, in my respectful submission, as was contended and put to the [respondent], she had authorised and requested [Q Organisation] to contact the [appellant] to make sure he was at the new venue, but she didn’t in fact arrive.
(Transcript 30 May 2019, p.11 lines 4–7)
When questioned about the respondent’s failure to attend, Dr EE said:
[DR EE:] If the children had been built up to something like that, then I would – then – then I think it would have distressed them. If there hadn’t been a lot of build-up about it, bearing in mind that there had been interruptions previously, then perhaps not – not as much as one might expect.
(Transcript 17 August 2018, p.690 lines 15–18)
This was not all the evidence on the subject. In his oral evidence, the appellant said that there had been a miscommunication through Q Organisation, which led to the respondent not turning up. Her Honour made a finding to that effect at [45].
We would point out that even though he had accepted that there was a misunderstanding, the appellant did not seek to contact the respondent to find out why she was not there on either occasion. After waiting 20 minutes, he simply took the children home.
The next event taken up in the cross-examination of Dr EE occurred in February 2015, which was the first occasion on which the children spent time with the respondent after the orders were made on December 2014. The respondent erroneously referred to January 2015 as the relevant month in her evidence and this error was perpetuated in the submissions made in the appeal.
The respondent took the children to the police and, according to Dr EE’s summary of the police records, stated “that [the appellant’s wife] had hit [C] on the head and pinched her arm, and that she had a video recording of [C] telling her this” (Report of Dr EE dated 15 January 2018, p.38). She sought an Apprehended Domestic Violence Order for the protection of C. At the hearing, there was a suggestion that the video had been recorded at an earlier time, possibly in July 2014, before the parenting hearing which took place that same year.
The following passage of Dr EE’s cross-examination relied upon by the appellant, as is apparent, is premised on the video being taken in July 2014:
[COUNSEL FOR THE APPELLANT]: No. I was about to – but that’s – I don’t think you will get any dispute with what her Honour has had to say, surprisingly. But there’s also, of course, if it really be the case it was July 2014, the capacity and indeed expectation that that allegation would have been before the court at the trial in October?
[DR EE]: At the hearing, yes.
[COUNSEL FOR THE APPELLANT]: Without any need to bring it back, or anything else?
[DR EE]: Mmm.
[COUNSEL FOR THE APPELLANT]: All right. Especially in circumstances where the [respondent] was not shy in making allegations about incidents involving [C] at the time of trial?
[DR EE]: Mmm.
[COUNSEL FOR THE APPELLANT]: All right?
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: The pubic hair and those sorts of things?
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: If it be that these matters were known to the [respondent] at or before trial, you’ve agreed with me it’s a real concern that they suddenly emerge in January?
[DR EE]: Yes. It sounds like it’s a – well, some sort of an effort of manipulation of a situation, or trying to just get some advantage, yes.
…
[COUNSEL FOR THE APPELLANT]: And in some ways if it be the case that we’ve got a position where it was recorded in January of 2015, all right, so not in July or the October but the first time mum sees the children, there’s this leading questioning process?
[DR EE]: Mmm.
[COUNSEL FOR THE APPELLANT]: It’s many ways of even greater concern, isn’t it?
[DR EE]: I mean – well, if – if you mean that you sort of save it up until – until you’ve had the children, and then you can pretend that you just got it.
[COUNSEL FOR THE APPELLANT]: Well, that’s one
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: One interpretation
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: if part of the [respondent’s] evidence is to be accepted, it’s a gross manipulation of circumstances?
[DR EE]: Well, if that – if that’s the scenario, yes.
(Transcript 17 August 2018, p.693 line 21 to p.694 line 17)
Thus, in summary, if the respondent deliberately withheld the video from the hearing in October 2014, but then later used it in relation to another incident, it would be a “gross manipulation”. If the events had occurred as suggested, then Dr EE agreed that it “could be part of a pattern” and if it became pervasive, he expected “it would cause real issues for the children” (Transcript 17 August 2018, p.694 lines 34–36). As can be seen, the opinion is based on a number of premises which would need to be established on the evidence.
The primary judge did not refer to this incident and thus did not resolve the issue of the date of the video. This was, however, just one of many reports made to the police and to the Department of Family and Community Services (“FACS”) by both parties. Given the number of them, it would not be reasonable to expect the primary judge to discuss them all. It must be asked, how a discussion of every incident would have assisted in the resolution of the matter. Both parties had needlessly involved the police and FACS many times, which showed them in a poor light. A judgment which examined each incident in any detail would be excessively long and yet still would not answer the essential issue, which was not whether the respondent’s conduct was acceptable, but whether it was as blameworthy as that of the appellant and his wife.
The other “bookend” was an incident which occurred in November 2017. The primary judge recorded it in the following terms:
121.Later that evening the [respondent] said she was contacted by police who asked her to bring [C] into the police station and advised that they had received an adverse report about the [respondent’s] care of the child from the [appellant’s] wife. The [respondent] at first refused but after a second conversation agreed to take her in. There was a scene in the police station and it is apparent that the [respondent] believes that police had been drawn into the matter unnecessarily. That must be so.
Dr EE summarised the police records in the following manner:
I note an Event dated October 2nd 2017. This records [the appellant] informing them that he had dropped the [children] off with [the respondent] on September 27th 2017 for a week, and that [the respondent] had contacted him on October 2nd via email requesting [the appellant] to collect both children as she could not handle having them at her home. It appears that he collected [B] but [the respondent] refused to pass [C] over. It appears that the police contacted [the respondent] about [C’s] whereabouts. She refused to provide the location except in possibly general terms. When asked why she had not given her back she said that this was because [C] was going to be psychologically assessed that week. I note an Event dated October 3rd 2017. It was noted that [the respondent] attended [Suburb E] Police Station with [C] on the advice ("coercion") of her current partner because [C] was saying that she did not wish to return to [the appellant] because he "hits her". The police apparently spoke with [C] who said that [the appellant] sometimes smacks her when she is naughty and that the smack is with an open hand in the middle of her back or on her bottom but that it hurts. She also said she did not wish to return to [the appellant] because [B] “dobs on me". On the other hand she expressed excitement about going on the (balance of the) holidays to [City TT] with [the appellant] and [her] siblings. The police advised [the respondent] that these allegations may fall within the area of "lawful chastisement" and may require a formal interview to determine whether it met the threshold for assault. [The respondent] expressed the view that a formal interview would be too traumatic for [C], and she did not wish to make a statement to the police. The police described [C] as a happy, articulate child. It was noted that she had not mentioned being isolated from her family or locked in her room. I note an Event dated November 18th 2017. I note however that the whole of this record has been redacted.
(Report of Dr EE dated 15 January 2018, p.40) (Original emphasis)
The cross-examination of Dr EE continued (and we have quoted more extensively than the passages relied on by the appellant):
[COUNSEL FOR THE APPELLANT]: Yes. Indicative of – having regard – and I’ve taken you to two bookends for the moment of history – of an involvement of [C] in allegations in relation to [the appellant]?
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: That can only – without repeating them – have the style of adverse impacts upon [C] that we’ve spoken about?
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: And if it be the case that she is being put under pressure by this conduct – cause real problems for the relationships that we’ve spoken about?
[DR EE]: Yes, it could – yes.
[COUNSEL FOR THE APPELLANT]: Real problems for behaviour in relation to [the respondent]?
[DR EE]: Well, it – sorry, do you mean in terms of refusing to go or - - -
[COUNSEL FOR THE APPELLANT]: Yes. And indeed, playing up when she’s there?
[DR EE]: Yes – yes.
[COUNSEL FOR THE APPELLANT]: It’s disruptive on every level for a child, isn’t it?
[DR EE]: It is.
[COUNSEL FOR THE APPELLANT]: Right. And it’s the sort of thing that – where we’re dealing, here, with – in some instances – railway track accounts of what children are saying to each parent in each household?
[DR EE]: Sorry, when you say railway track – I’m not - - -
[COUNSEL FOR THE APPELLANT]: We know [the appellant] says children come home and say to him various things; all right?
[DR EE]: Yes – yes – yes. So you’re saying - - -
[COUNSEL FOR THE APPELLANT]: [The respondent] says - - -?
[DR EE]: But it’s the same thing happening in both households, sort of thing.
[COUNSEL FOR THE APPELLANT]: And putting these children in an immensely conflicted position?
[DR EE]: Well, certainly, if it’s happening in both households – as I say – as I said at the beginning – I thought that it probably was, to some extent, really that the issue in this case was whether you could differentiate between the two in terms of severity.
[COUNSEL FOR THE APPELLANT]: And if we see this suggestion of – from the very first time up until – and it’s not the last – but close to the last time – this involvement of [C] in relation to allegation of hitting – it’s that sort of pervasive problem, isn’t it, that we spoke about earlier?
[DR EE]: Well, if, as you say, you’re just presenting the bookend of what is actually a series of similar sort of incidents, then – yes.
[COUNSEL FOR THE APPELLANT]: And if it was that, then it’s the sort of gratuitous and relentless conduct that you criticise the [appellant] or characterise the [appellant’s] conduct as?
[DR EE]: That’s true.
[COUNSEL FOR THE APPELLANT]: All right. That incident – that is, the October incident, also provides, doesn’t it, some insight, I would suggest, into the [respondent’s] ability to manage the children when they are acting out?
[DR EE]: What – in terms of sending [B] back and threatening to send [C] back?
[COUNSEL FOR THE APPELLANT]: Yes?
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: I mean, it’s – in any circumstance, a reasonably serious thing to do to children?
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: And for these particular children, given their history – a very serious thing to do?
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: Because we’ve heard the contention that the children, because of things that the [appellant] has done, might take that they’re not wanted or unloved or in some way rejected and whether that – or not be true for the moment, this style of behaviour is the very thing that communicates that sort of thing to the children, doesn’t it?
[DR EE]: Well, you know, even if she felt that she had – that she was sort of unendurably provoked – you know, that doesn’t mean the children won’t see themselves as – how can I say – that the children won’t see themselves as being rejected even if – even if their behaviour was completely unacceptable.
[COUNSEL FOR THE APPELLANT]: And splitting the children then adds another complexion to it, doesn’t it?
[DR EE]: Yes, it could – yes.
[COUNSEL FOR THE APPELLANT]: Right. In terms of leading to potential tensions, rivalries, conflicts between them?
[DR EE]: Well, that’s right. I mean, I – I guess the – I suppose the [respondent] has got some sort of account for this – so presumably the court has got to decide whether or not – you know, where on the spectrum of acceptability her response was.
(Transcript 17 August 2018, p.703 line 7 to p.704 line 29)
The appellant submits that in these questions the issue of the respondent’s culpability was clearly raised, yet this question was never adequately considered by her Honour. For example, these passages were not referred to in the trial reasons.
Senior counsel for the appellant accepted that the primary judge did not need to refer to and consider every piece of evidence (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447). However, as we have already said, the central submission was that the primary judge failed to engage with the proposition that the behaviour of the respondent was as blameworthy as that of the appellant and his wife. However, we consider that the whole of her Honour’s reasons answer that central issue. In doing so, the primary judge concentrated on what she considered to be the high points of each party’s case and on what matters distinguished their behaviour.
Her Honour said:
151.I conclude that the children need relief from the situation they find themselves in. First, and perhaps most importantly, the relationship between the children as [siblings] is being eroded by the different positions that they have taken in relation to spending time with [the respondent].
152.In the home of the [appellant], time with the [respondent] is probably regarded by the adults as an irksome duty both for them and the children. In the home of the [respondent], the [respondent] is desperate to have enjoyable time with the children but struggles with their reactive behaviour.
153.A different parenting regime is required.
As we have said, both parties agreed that the existing orders were not working. Nonetheless, the primary judge was well aware of the behaviour of the respondent and the challenges ahead, saying:
157.The [respondent] also appeared to be aware that both she and the [appellant] have been guilty of systems abuse, particularly with reference to contacting the police to conduct welfare checks on the other household. Neither parent in my view seriously considers that the children were at risk of not being physically well cared for in the home of the other but was sending messages through the police as a means of protest, criticism or simply to annoy.
…
159.By pressing for the orders she does, the [respondent] is taking on a most demanding task of restoring her relationship with the children whilst not destroying the relationship they have with [the appellant], his wife and their step-sister [G] and half-sister [DD].
…
161.To her discredit the [respondent] has behaved immaturely at times. She sent a photograph falsely suggesting that she and [J] might be leaving the country (perhaps with the children) by the posting on social media of an old photograph taken in a plane. Likewise, she probably referred at least in the early years to the [appellant’s] wife as “[WW]” rather than [her first name] and the children picked up on it.
162.To her credit the [respondent] conceded that such behaviour was immature.
Her Honour made the following findings as to the appellant and his wife:
165.The [appellant] in the witness box presented as quite calm, as a dutiful, loving and kind father, however he also presented as an unimaginative man. On many occasions he repeated a sequence of events involving the children in this way: He was told something by them; he reported it to an appropriate authority; and he felt concerned about what was said. I conclude that what he has been unable to do is to tune into the difficulties that the children are experiencing because of him and [the respondent] and their step-mother.
166.I conclude that he has found the children’s erratic behaviour inexplicable. His own experience of them is generally of polite and compliant children. On those occasions when their behaviour has been described as something very different, that they had yelled and screamed and abused [the respondent] he had difficulty accepting that, but even more difficulty in understanding why they would behave that way if they did.
…
170.I conclude that the [appellant] does not see his own reactions as contribution to the children’s dilemma. They have both, in my view, tried very hard to please [the appellant] and step-mother ever increasingly by criticising their treatment at the [respondent’s] hands in melodramatic terms. The [appellant] has accepted and reported but has not understood.
…
187.I conclude that the [appellant] and his wife have solemnly sat with the children, listening to their comments over the years, commending them for having told them and reporting their statements without empathy for their painful conflict of loyalties.
…
189.It is hardly surprising that [the appellant’s wife] enjoys having the group of four [children] in her care, her own two [children] and her husband’s two [children] together and takes pride in the way that they are presented and cared for, but her hostile competitive attitude to the [respondent], reciprocated, has created a corrosive loyalty conflict for the children.
…
201.[The appellant’s wife] presented as a confident and self-assured person. Her evidence is that she and the [appellant] had had big talks with the older child [B] to try to get her to telephone [the respondent]. That together, they were unable to get it to happen in September 2016 on the day of [B] turning seven, is simply not credible.
202.It is probable that the child had offered her unwillingness which was warmly received and there was no genuine emotional approval for the child to have a telephone call with [the respondent] and enjoy it. There can be no other explanation for why a seven year old child who had loved [the respondent] apparently refused even speaking to her on the telephone.
203.With her quick response to the question as to whether or not she had smacked [C], “Of course I’ve smacked [C]”, I conclude that [the appellant’s wife] has no difficulty whatsoever with causing the children to comply, to be obedient and to watch their manners. If she has been unable, alone or together with the [appellant], to persuade the children to behave well with [the respondent], to love [the respondent] and to enjoy their time with her, it is because she has not seen the value in doing so.
This led to the following conclusions:
212.The [appellant] together with his current wife has been unable to assist the children to enjoy a relationship with [the respondent]. I conclude that part of the reason for that is that neither of them have understood their own contribution to the children’s distress and increasing rejection of [the respondent]. They themselves see the [respondent] as an inadequate parent and a persistent nuisance. They are entitled to their views but to the extent to which the [appellant] and his wife believe that the children do not know about their negative views of the [respondent] is a revelation of their lack of empathy for children who have been hiding how much they love [the respondent].
…
214.However, and most significantly, the [respondent] has remained committed to the children and although she has ceased seeing the children at times more recently, she is determined to do what she can to restore relationships. I am certain of that.
215.Whether or not she has understood since separation the importance for the children of maintaining relationships with both parents I conclude that the [respondent] does know that now. She has watched the corrosive impact of competitive parenting on the children and felt relationships with her two [children] slipping away.
216.Despite all of the risks of emotional damage, I conclude for these reasons and those that follow in the assessment of mandatory considerations, that a change of residence to the [respondent] is necessary.
This was a weighing of the risks posed to the children by each of the parties. Her Honour placed considerable weight on the finding that the children would not have a relationship with the respondent if they continued to live with the appellant because such a relationship was not valued in his household, whereas the respondent would attempt to maintain all existing relationships. This is a significant difference as to the conduct of the parties.
Her Honour was also aware that the appellant had been found to have contravened the orders made on 18 December 2014 on five occasions and, on 22 September 2015, he was placed on a 12 month bond. He was ordered to pay costs.
On 30 May 2017, the appellant again was found to have contravened the orders and again placed on a bond and ordered to pay costs.
The weighing of risk continued in the following passages:
222.There is a risk that moving the children to live with the [respondent] will see relationships with her improve, but fall away with the [appellant]. That would be a most destructive result.
223.The children do need protection from psychological harm.
224.The scorn and disapproval that [the appellant’s wife] feels for [the respondent] has hurt them. Her committed level of physical care cannot ameliorate the emotional harm.
225.The [appellant’s] puzzled frustration over why things have gone so badly is unlikely to change.
226.The [respondent] has been able despite her frustration and anger to comply with orders despite extended periods where the [appellant] chose not to do so and blamed her.
227.In the balance of risk the children are better protected living with the [respondent].
…
229.There is a negative attitude towards the [respondent] in the [appellant’s] household.
…
274.The [appellant] has not demonstrated an ability to understand the children’s feelings of love for [the respondent], nor their feelings of confusion and hurt over the competition between the [respondent] and [the appellant’s wife].
275.Loyalty to the paternal family appears to have been required of the children at the cost of the natural love and affection for the maternal family.
Finally, we refer to her Honour’s finding at [241]:
I conclude that the [respondent] has not attempted to undermine the children’s relationship with the [appellant] despite her undoubted feelings of vengeful anger towards him.
It follows from the above that the primary judge was satisfied that the conduct of the respondent was not as pervasive or relentless as that of the appellant and his wife. Her Honour did not find that the parties were “equally culpable”, to use the words of Dr EE. Thus, the premise upon which Dr EE opined that a change of residence was in the best interests of the children was established.
It is put that, nonetheless, there must have been an active consideration by the primary judge of the precise issue posed by EE and its resolution.
As we have just explained, we consider that her Honour did give this issue active consideration, particularly in the passages that we have extracted above. Whilst it might have assisted the reader to have posed the issue directly and perhaps by direct reference to the evidence of Dr EE in particular, it was not an error not to do so, provided the essential task of dealing with it was undertaken.
Finally, we turn to the subsidiary issue as to whether a change in residence posed an insurmountable challenge for the children.
The appellant relied upon the answers given by Dr EE as to the difficulties the children would face if they moved to live with the respondent. He said:
[COUNSEL FOR THE APPELLANT]: No, no. It’s not a criticism. And one of, as I understand it, those practical problems or potential problems that need to be surmounted are firstly that the [children] can cope with a change of residence, in the event that that was to be ordered?
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: And that there be – and some – and I read here particularly from – and I’m sorry, Doctor, I don’t need you to go to it unless you want to, but I give the reference for her Honour?
[DR EE]: Yes – no, that’s fine.
[COUNSEL FOR THE APPELLANT]: Page 54, where you say this:
The question before the court comes down to whether there is material before the court which will enable the court to bring stability into the children’s lives, or if not, which orders are likely to yield the greater stability.
[DR EE]: Yes.
[COUNSEL FOR THE APPELLANT]: One of the issues that the court needs to find is surmountable, or not insurmountable?
[DR EE]: Mmm.
[COUNSEL FOR THE APPELLANT]: is that there can be a certain predictable, stable arrangement for the children, whatever outcome it is that’s to be adopted?
[DR EE]: Yes.
(Transcript 17 August 2018, p.684 lines 21 to 41)
Again, the primary judge was alive to this issue saying:
249.A change of residence is likely to have a most significant impact on both children. They are likely to feel bewildered and possibly angry. The move will mean moving away from the school that they, and their older [sibling] attend together. It will mean the loss of the regular day to day relationship between the two subject children with their older and younger siblings. [B] is especially close to [G]. [C] takes a maternal interest and pleasure in the baby [DD].
250.The children are likely very much to miss the family atmosphere of [the appellant’s] home and the activities that are organised for them. They will miss their school friends.
251.There will likely be a positive effect from the change in circumstances being an opportunity to restore the relationship with [the respondent] who was their primary carer when they were very young children, up until March 2013. That result will take time.
It follows that her Honour considered that although it would take time, the children would cope with the change. The issue of stability was, of course, very much caught up in the issue of the conduct of the parents.
We return to [282] of her Honour’s reasons. Whilst we accept that Dr EE’s opinion was more nuanced and conditional than appears in this paragraph and that it might, to that extent, misstate his conclusion, we are satisfied that reading the trial reasons as a whole, the primary judge had regard to the wider issues posed by him. In other words, the reasons when taken as a whole, demonstrate consideration of the conditions and caveats attached to Dr EE’s recommendations.
In the course of oral submissions, the appellant contended that the primary judge had not considered the appellant’s evidence as to his efforts to promote a relationship between the children and the respondent.
The appellant deposed that on 24 September 2018 he and his wife contacted Ms AA, a psychologist, with a view of being equipped with strategies to encourage the children to spend time with the respondent (Affidavit of the appellant filed 10 December 2018, p.6). At the time of swearing the affidavit (10 December 2018) they had consulted Ms AA on eight occasions.
The appellant also said that on 14 and 16 October 2018 the respondent posted comments on her Facebook page which made general comments about alienating parents saying that a person resorting to this type of emotional and psychological abuse was “a special kind of evil” (Affidavit of the appellant filed 10 December 2018, p.12). Clearly, the appellant regarded the comments as being directed to him and his wife.
The primary judge did not directly refer to this evidence. Indeed, at [266] her Honour said that although the appellant had arranged counselling for the children, he had not done so for himself. This was a reference to events that occurred before late 2018.
There is, however, force in the submission of counsel for the ICL that this evidence does not change the overall position and that the failure to refer to it is not material. He pointed to the following finding:
212.The [appellant] together with his current wife has been unable to assist the children to enjoy a relationship with the [respondent]. I conclude that part of the reason for that is that neither of them have understood their own contribution to the children’s distress and increasing rejection of [the respondent]. They themselves see the [respondent] as an inadequate parent and a persistent nuisance. They are entitled to their views but to the extent to which the [appellant] and his wife believe that the children do not know about their negative views of the [respondent] is a revelation of their lack of empathy for children who have been hiding how much they love [the respondent].
The counselling engaged in by the appellant and his wife does not seek to address that fundamental issue.
Further, the affidavit of the appellant filed 10 December 2018 itself suggests that little has changed. In addition to the reference to the respondent’s Facebook page, the affidavit describes an incident on 6 October 2018.
The children were to spend time with the respondent. They, however, behaved so badly that she proposed returning them to the appellant. In the end, only B was returned. The appellant criticised the respondent for separating the children.
The respondent had proposed returning the children at a Police Station. The appellant arranged with friends to collect the children. The friends contacted the respondent to arrange for a changeover at McDonald’s where B was returned.
As the appellant’s evidence makes clear, he did not contact the respondent at all, despite her ringing him twice and sending him text messages.
The affidavit also records the appellant speaking to the children and describing the respondent as “mummy [VV]” (as opposed to mummy, which was how the children called the appellant’s wife).
In other words, little has changed. Facilitating a relationship would appear to remain an irksome duty for the appellant (see [152]).
It is accepted that the primary judge failed to consider this evidence but we fail to see how it might have strengthened the appellant’s case. Indeed, considered in context, this evidence demonstrated that the Court could not have any confidence that professional assistance for the appellant might lead to a better outcome for the children qua contact with the respondent. This evidence worked in favour of the respondent and had it been taken into account, the result would have been the same. In other words, the oversight did not adversely affect the appellant’s case.
We are not satisfied that there is any substance in this ground.
Did the primary judge fail to have regard to a number of relevant issues? (Grounds 3 and 4)
Under these compendious grounds, the appellant submits that the primary judge failed to have regard to or make findings on eight separate relevant issues and also made four factual errors. It is necessary to deal with each by turn.
The respondent’s involvement of the children in the dispute by recording conversations and taking them to FACS and the police (Ground 3.3)
The appellant submitted that:
There not would seem to be any direct reference to, or analysis of (in particular), the evidence concerning the [respondent] recording conversations with the children and with involving the children in interviews with the Department of Community Services and the New South Wales Police.
(Appellant’s Summary of Argument, paragraph 19) (As per original)
The appellant also relied upon the submissions made under Ground 6.
Essentially, the appellant’s point is that the primary judge should have referred directly to the evidence, particularly to that of the respondent, as to her direct involvement of the children in reports made to FACS and the police. Again, the incident of February 2015 and the video recording, to which we have already referred, were highlighted. We accept that the respondent agreed that this was not a comfortable experience for the children (Transcript 9 August 2018, p.58, lines 29–30).
Precisely the same point could, however, be made by the respondent. The primary judge did not directly refer to every occasion where the appellant and his wife inappropriately involved FACS and the police in their family affairs.
Her Honour was, nonetheless, cognisant of this, saying:
157.The [respondent] also appeared to be aware that both she and the [appellant] have been guilty of systems abuse, particularly with reference to contacting the police to conduct welfare checks on the other household. Neither parent in my view seriously considers that the children were at risk of not being physically well cared for in the home of the other but was sending messages through the police as a means of protest, criticism or simply to annoy.
In essence, the appellant’s submission asserts that the respondent’s behaviour in taking the children to FACS and to the police was worse than his and should be highlighted.
The primary judge was clearly well aware of the poor behaviour of both parents in this regard but, as we have seen, ultimately considered the respondent to be less blameworthy.
That was a course that was open on the evidence and no error has been shown.
Where the respondent was to live with the children (Ground 3.5)
The appellant submits that the respondent’s evidence as to her proposed move from the I Region to Sydney was vague and imprecise and that she did not know where she was to live or how she could afford it. It was further submitted that the primary judge not only did not take this instability into account but also made factual errors about the proposed living arrangements.
It can immediately be accepted that the respondent’s evidence in chief and in cross-examination (which was early in the proceedings on 10 August 2018) on this subject was confused and unclear.
However, in an affidavit filed 16 January 2019 the respondent said:
50.I am currently living in an apartment in [Suburb GG]. My mother and step-father own a 3 bedroom home at [Suburb HH] which is about 5 minutes by road from [Suburb GG]. My mother and step-father are currently living between [City MM] and [Sydney]. In the event that [B] and [C] were to live with me, my mother and step-father have agreed that I can occupy their property at [Suburb HH] until I am in a position to find a suitable place in the area. My mother has said to me, "Whatever you need to assist with this transition." My mother would also be present to assist with a transition for the [children] if the [children] come to live with me.
51.I have also made enquiries with [Suburb GG] Public School where [J] attends and confirmed that a position there would be available for [B] and [C] if they were to be living with me.
(Affidavit of the respondent filed 16 January 2019, p.8)
The primary judge said:
13.The [respondent] has lived in [H Town] in the [I Region] area of New South Wales for the past five years but gave evidence that she had recently moved from that area. The [respondent] has moved into rented premises, a three bedroomed apartment in [Suburb GG], a suburb of Sydney. However, her evidence is that she is also maintaining her residence in [H Town].
As can be seen, the primary judge has mistaken some of the facts but not in any material sense. In particular, the errors do not indicate that her Honour was placing the children in an unstable environment.
The risks to the children of the loss of their relationship with the appellant, his wife and their other children (Ground 3.6)
The appellant submits that the primary judge’s consideration of this issue was inadequate and superficial. The contention is that the primary judge should have expressly considered the following:
· Whether there would be “a continuation of any gratuitous or relentless conduct on the part of the [respondent], adverse to the interests of the children”;
· The ability of the children to cope with the significant change in circumstances (including the 10 week period when they could not spend time with their siblings); and
· The diminishment of the children’s time with the appellant.
The first point has already been considered under Ground 6.
As to the others the primary judge said:
249.A change of residence is likely to have a most significant impact on both children. They are likely to feel bewildered and possibly angry. The move will mean moving away from the school that they, and their older [step-sibling] attend together. It will mean the loss of the regular day to day relationship between the two subject children with their older and younger siblings. [B] is especially close to [G]. [C] takes a maternal interest and pleasure in the baby [DD].
250.The children are likely very much to miss the family atmosphere of [the appellant’s] home and the activities that are organised for them. They will miss their school friends.
…
254.However I do accept the need for a moratorium and consider that the [respondent] will need all of 10 weeks to attend to the following matters. To help the children settle in at her home with herself and their older half-brother [J]; when they are sufficiently settled, to enrol in a new school; and to adjust to the loss of day to day contact with the paternal family and friends. To use the term of the single expert the children are likely to “pine”, feel insecure and test [the respondent] relentlessly by their behaviour.
Importantly, her Honour expressly referred to the risk of a lessening of the relationship between the children and the appellant, saying:
214.However, and most significantly, the [respondent] has remained committed to the children and although she has ceased seeing the children at times more recently, she is determined to do what she can to restore relationships. I am certain of that.
This led to the conclusion:
216.Despite all of the risks of emotional damage, I conclude for these reasons and those that follow in the assessment of mandatory considerations, that a change of residence to the [respondent] is necessary.
…
280.I have concluded that the children will feel deeply distressed and disrupted by the change of residence especially [B].
281.The behaviour of the children which has been wildly uncontained, rude and disrespectful to the [respondent], may get more challenging before it improves. That is not to say it will inevitably do so. The [respondent] may find that she is unable to withstand and contain this behaviour. In those circumstances she would likely return the children to the [appellant] and withdraw from the relationship until the children are young adults. In 2017 she contemplated doing so but chose instead to make this application and allow the outcome of it to be decisive.
282.The parties agree, and I have concluded, that to continue with the current orders is not only practicably impossible but destructive for the children. The recommendation of the single expert was that there be a change of residence and for the reasons above, I consider that is the appropriate course, despite the disruption of the life they have known for more than five years.
The difficulty of the children adjusting to their new circumstances was the subject of discussion at [249]–[260].
It follows that, contrary to the submissions of the appellant, the primary judge did deal with these important issues. The submission that the treatment was inadequate or superficial raises the question as to whether the reasons sufficiently exposed her Honour’s reasoning process. This is a separate ground of appeal. For present purposes it is enough to say that, as we have been able to discern how the primary judge disposed of this issue, the reasons and hence her Honour’s treatment of the issue were adequate and sufficient.
Did the Court fail to consider and make findings as to the respondent’s actions, behaviour and motivations since 2014 and the oral evidence of Dr EE? (Grounds 4.1 and 4.2)
The appellant’s Summary of Argument simply asserts that these grounds have been addressed under other grounds, particularly Ground 6. No oral submissions were directed to them. For the reasons given in relation to Ground 6, they have not been established.
Did the primary judge fail to consider the willingness and ability of the respondent to obtain therapeutic support for the children? (Ground 4.3)
This ground is more limited than it suggests. The primary judge made an order granting leave to the respondent to give a copy of the orders and reasons for judgment and a copy of Dr EE’s report to any child psychologist engaged to provide therapeutic assistance to the children (Order 17).
The appellant submits that the order should have required the provision of the documents to the psychologist.
Her Honour found that the provision of these documents would be in the children’s best interests. She said:
260.Therapeutic assistance from an appropriately qualified and experienced child psychologist would assist. On that basis an order has been made for release to any such psychologist of these orders and reasons and also the report of the single expert. To be clear, the order specifies a child psychologist and does not apply to a counsellor or therapist of any other kind.
As to whether the provision should have been mandatory, the appellant pointed to the respondent’s agreement that in 2017 she provided many documents to FACS but did not provide any of the appellant’s material or the Court’s reasons for making the orders made on 18 December 2014 (Transcript 10 August 2018, p.190, line 24).
We consider that this evidence would support the making of a mandatory order. The primary judge did not refer to it or explain why the order was permissive only.
It follows that error has been established and that Order 17 should be amended by deleting the words “has leave to” and replacing them with “shall”.
Did the primary judge err in finding:
· the respondent has moved in “rented premises, a three bedroomed apartment in [Suburb GG]”?
· the first two visits due after the 2014 orders did not take place due to a misunderstanding?
· that although the respondent had stopped seeing the children, she remained committed to them? and
· the appellant did not have an independent relationship with the children?
(Ground 4.4)
We have dealt with the first two points elsewhere and there is no merit in either.
As to the third, this is a reference to the respondent ceasing to see the children in April 2018. After the hearing commenced, attempts were made to resume that time. In September 2018, the respondent returned the children to the appellant because of their behaviour. The appellant submitted that this was inconsistent with the respondent remaining committed to the children.
Her Honour clearly found that the respondent remained committed to the children and although she had recently ceased seeing the children, she was determined to do what she could to restore relationships (at [214]).
The primary judge said:
3.Until April 2018 the children irregularly spent time with [the respondent]. The [respondent] then made a decision to stop spending time with the children, for their sake and for her own. Time and communication had become increasingly chaotic and destructive.
4.When the trial was adjourned from August 2018 until the following January 2019 the [respondent] resumed spending time with the children, or at least attempted to do so during that period.
As to events that occurred in September 2018, her Honour found:
136.The [respondent] made a decision to return the children to the [appellant]. Tendered into evidence was a USB containing short video files of some of that behaviour. It was certainly unmanageable and whether or not the children were aware they were being filmed, it is easy to see that the [respondent] could not have gone on with the visit with the children behaving in that way.
Thus, the primary judge found that the withdrawals from the children at these times was considered by the respondent to be in the best interests of the children and did not indicate that she was not committed to them.
There was no challenge to the findings of fact in the above passages. At the request of the parties we viewed the videos contained on the USB. The primary judge’s record of what they showed was, if anything, understated. In any event, it was not suggested that the description was wrong. There was, therefore an explanation, accepted by her Honour, as to why the respondent had ceased time with the children, which was consistent with her remaining committed to the children.
So explained, no error has been identified.
The primary judge did find that the appellant lacked an independent relationship with the children. She said:
211.The second is the apparent lack of an independent relationship for the children with the [appellant]. He loves them and they would know that. That is not in issue. Rather there is no particular evidence of time alone for the subject children together, or as individuals, with [the appellant]. In his decision making the [appellant] has relied on consultation with his wife who provides the day to day care and supervision. He has probably missed their perspective as children with parents who each love them but apparently hate each other.
The appellant submits that the following evidence was evidence of his time alone with the children:
328.Most days during the week I leave for work at 7:15am in the morning. I will usually see the children when they get up and have breakfast. The children get dropped at school at 8:30am but some mornings for example Monday [G] and [B] both have dancing at the school and that starts at 8am. On Friday mornings [B] and [C] have netball training that starts at 8am. The children also have activities on other mornings.
329.In the afternoons I finish at different times depending on the needs of the family. For example, on a Wednesday afternoon we all get home at 3:30, I take [G] to [gym] and [B] comes with me. [Ms F] takes [C] to tutoring and she takes [DD] with her. On Tuesday afternoons I am home at 3:30 and look after the children whilst [Ms F] will take [G] and [B] for tutoring. I do help out with children in the afternoons. I am home for dinner. Sometimes I have dinner with two of the children and then [Ms F] gets home with the others after their activities.
330.I help the children with their homework. I am involved with their bed and bath time routine. I read to the children and night time before bed.
(Affidavit of the appellant filed 24 July 2018 p.43) (As per original)
The appellant also refers to the following paragraphs of his affidavit which expand on the children’s activities and interests:
333. The children love going camping. We go to the farm and camp and sometimes friends and their children will come with us. We enjoy going to the beach.
334. I love listening to the [children] chat and talk about what they want to be and do when they grow up. [B] want to go to Paris and produce shows. She loves dancing and also acting. She enjoys theatre. [C] want to work part time in [dance] school, but she wants to also run her own hotel in [E Town]. She wants [DD] to work for her. It's fantasy but the [children] talk about their dreams. The also chat to [G] about it.
335. [B] loves writing, dancing, [gym], playing with her [siblings], playing with babies. She enjoys time with her cousins and she also like to do craft. She spends time painting her nails, doing hair ups and playing dress ups. [B] has a special bond with [G] because of their ages. [B] has good friends at school.
336. [C] loves playing in the garden. She loves her little baby [sibling] [DD]. She enjoys playing the children's kitchen. She loves playing dress ups and get's [Ms F’s] high heels and plays with her [siblings]. They do hair ups and nails. She enjoys spending time with family and with her cousins. [C] has close friends at school.
(Affidavit of the appellant filed 24 July 2018 p.44) (As per the original)
There was, however, no challenge by the appellant to the accuracy of the following finding:
186.It is apparent that although the [appellant] and his wife consult and work cooperatively in raising the four children in their household, it is [the appellant’s wife] who is the day to day custodian and supervisor of all the children.
The impugned findings are consistent with this paragraph.
It follows that the findings were open on the evidence, including the evidence relied upon by the appellant.
Ground 4 does not succeed.
Were the primary judge’s reasons adequate? (Grounds 1 and 7)
The appellant submits that:
61.…Ultimately, failure to carry out an analysis of the evidence touching upon the statutory considerations, and giving reasons in a principled way as to which of the matters are ultimately of more importance in reaching the decision underlying the orders made is central. It is in this task, however described, that it is contended the Learned trial Judge failed in this instance.
(Appellant’s Summary of Argument, paragraph 61)
The appellant also submits that the primary judge erred by failing properly to consider the proposals of each of the parties.
In his oral submissions, the appellant pointed to paragraphs [280]–[281] and contended that they did not “draw the strands of those findings together” (Transcript 30 May 2019, p.29 line 46) so as to explain why the changes in residence would not be made.
In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267 the Full Court adopted the principles expounded in Sun Alliance Insurance Ltd v Massoud [1989] VR 8, saying:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 the Court said:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(References omitted)
We have already observed that it is not necessary for a trial judge to refer to or expressly consider every piece of evidence or every submission. Thus, a failure to refer to the respondent, for example, when discussing the appellant’s attitude to complying with orders (as her Honour did at [270]–[275]) does not bespeak error. In any event, it was not suggested that the respondent failed to comply with the orders. As we have indicated, unfavourable aspects of her approach to parenting were discussed elsewhere.
As to the balance of the submissions, we repeat that the reasons, when taken as a whole, explain why the orders were made. It is apparent that the primary judge found the respondent’s conduct to be less pervasive, culpable or blameworthy, to use the expressions of Dr EE, than that of the appellant and his wife. Her Honour also clearly found that there was little prospect of a relationship with the respondent being valued or fostered in the appellant’s household, whereas the respondent would attempt to maintain the children’s relationships.
As we can discern her Honour’s reasoning process, the reasons are adequate and these grounds fail.
Did the primary judge err in finding that the respondent would and had the capacity to support and maintain a relationship between the children and the appellant, the appellant’s wife and their siblings, where her position was that one parent needed to be eliminated from the children’s lives? (Ground 5.1)
The submissions made under this ground tended to range widely. No reference at all was made to the asserted position of the respondent that one parent needed to be eliminated from the children’s lives that appears in the ground. We shall not take that aspect of the ground further.
In the appellant’s Summary of Argument, it was submitted that the orders were presumably made on the “basis of an improvement on the one hand of the children’s relationship with [the respondent] and on the other a maintenance of a good or meaningful relationship with [the appellant] and other siblings and others” yet there was “nothing within the [r]easons for judgment which deal with this important topic” (Appellant’s Summary of Argument, paragraph 54).
In oral submissions, however, it was accepted that at [241] of the reasons the primary judge concluded that “the [respondent] has not attempted to undermine the children’s relationship with the [appellant]”. It was, however, submitted that this paragraph had difficulty standing against the evidence of Dr EE and that the primary judge failed to analyse the allegations of hitting, videoing, audio-taping and the involvement of police and FACS.
Essentially, the appellant’s submissions rest on the poor behaviour of the respondent but that is, to focus on only one side of the coin. The appellant’s behaviour was also poor and the fundamental issue was whether they were equally blameworthy or culpable.
As we have already indicated, her Honour’s reasons must be read in whole. The primary judge was well aware of the allegations made against the respondent. They, therefore, did not require a separate analysis under the rubric of the ability of the respondent to maintain a relationship between the children and the appellant and siblings.
Her Honour directly addressed the issue, saying:
159.By pressing for the orders she does, the [respondent] is taking on a most demanding task of restoring her relationship with the children whilst not destroying the relationship they have with [the appellant], his wife and their [step-sibling G] and [half sibling DD].
…
214.However, and most significantly, the [respondent] has remained committed to the children and although she has ceased seeing the children at times more recently, she is determined to do what she can to restore relationships. I am certain of that.
215.Whether or not she has understood since separation the importance for the children of maintaining relationships with both parents I conclude that the [respondent] does know that now. She has watched the corrosive impact of competitive parenting on the children and felt relationships with her two [children] slipping away.
…
222.There is a risk that moving the children to live with the [respondent] will see relationships with her improve, but fall away with the [appellant]. That would be a most destructive result.
Having made these findings, her Honour reached the conclusion set out earlier, namely, that the respondent has not attempted to undermine the relationship between the children and the appellant. We are satisfied that in making the finding her Honour took into account all of the material referred to earlier.
In doing so, the primary judge was directly facing the evidence of Dr EE that the Court would have to consider whether the respondent’s behaviour was “reactive or unprompted” (Transcript 17 August 2018, p.693 line 41).
Dr EE accepted that the episode when the respondent withheld the children could not be so described, but that is as far as the evidence went.
This ground does not succeed.
Conclusion
It follows that the appeal will be dismissed.
Costs
The ICL and the respondent sought an order for payment of their costs if the appeal was unsuccessful in the sums of $5,511 and $14,132.14 respectively.
There was, appropriately, no opposition to the order sought by the ICL and that order will be made.
The appeal was entirely unsuccessful. The appellant did not suggest that any other matter raised by s 117(2A) of the Family Law Act 1975 (Cth) was relevant. The circumstances justify an order that the appellant pay the respondent’s costs.
Whilst counsel for the appellant did not challenge the amount of costs sought by the respondent, we must fix costs in an amount that we consider to be just.
The oral submissions of senior counsel for the respondent consisted only of the following:
[COUNSEL FOR THE RESPONDENT]: Your Honours, it’s not often that judges have the assistance that the trial judge in this matter had, in that she had these people before them for 11 days in trial situations, both in 2014 and then in 2018, so it makes pertinent the attention to the dictum of Stephen J in Gronow which set out in my learned junior’s outline, in this matter particularly, and I don’t want to go over the factual bases but I do wish to draw to your attention parts of the reasons for judgment that her Honour gave, that, in my submission, do not indicate that this is a case in which reasons need to be examined. The trial judge set out and had determined for the reasons which she had given before that, that the children need – and it’s in paragraph 151 of her reasons:
I conclude that the children need relief from the situation they find themselves in. First, and perhaps most importantly, the relationship between the children as [siblings] is being eroded by the different positions they have taken in relation to spending time with [the respondent].
And in paragraph 152:
In the home of the [appellant], time with the [respondent] is probably regarded by the adults as an irksome duty, both for them and the children. In the home of the [respondent], the [respondent] is desperate to have enjoyable time with the children but struggles with their reactive behaviour. A different parenting regime is required.
Each of the parties agreed with that, because the [appellant], in his response, had set that out and her Honour comments about that in her reasons as having taken a pragmatic approach but nevertheless was to be orders that were different. So that it was important, then, that her Honour, having come to this conclusion which was completely open and isn’t criticised, as I understand it, that she then provide the – under the heading of The Presentation of the Parties, what she did in relation to the [respondent], in relation to the [appellant] and primarily, in my submission, or a little less – more importantly than the other two, the impression her Honour had of the [appellant’s] wife, [Ms F], and that covers paragraphs 171 over to 203.
There is significance in it only in its – not only in its – the weight that was given by her Honour to that assessment, but the fact is that none of that is the subject of the appeal, and it was a significant factor when her Honour came to determine what should be done, having considered the section 60CC factors, so that that then lead her Honour to – under the heading Additional Considerations, commencing at paragraph 228, her Honour said that:
The evidence is overwhelming that both of the subject children are emotionally damaged by the conflict between the parents. There is a negative attitude towards the [respondent] [in] the [appellant’s] household –
and her Honour formed the conclusion that:
The [appellant] regards orders for time and communication as an imposition into the orderly running of his household. The use of the words “Mummy [VV]” have become an artificial means of staying superficially polite about the [respondent]. Neither child has or does actually call the [respondent] by that name. They simply called her [VV] when referring to her.
So that that was the considerations which her Honour was able to make over 11 days of seeing these parties and hearing what they said about the circumstances, and whilst she wasn’t – her Honour was not short in criticising the actions of the [respondent], she was – she had determined – her Honour had determined that she must make a decision that was best able to see these children continue a stable life in terms of their relationship with the parents. She concluded that that was most likely by living with the [respondent], so that that really is the epitome of what we say in answer to the criticisms made of the various findings that were open. This was not a trial by [Dr EE].
He provided an opinion, but her Honour overcame that in terms of – in many ways, albeit that she followed that, they were clearly her own views in relation to what should happen to these children, and she set them out adequately to see how they were based. And those are really the basic submissions which I really can’t add to, other than what is in our outline.
(Transcript 30 May 2019, p.37, lines 28-47 to p.38, lines 1-47)
The submissions were so broad as to be entirely unhelpful.
As can be seen from the last paragraph, those “basic submissions” were intended only to supplement the written submissions.
We turn then to the Summary of Argument filed on behalf of the respondent on 24 May 2019. It too favours brevity over substance. This was an appeal that raised complex factual issues which were not addressed in anything but sweeping generalisations. The parts of the respondent’s Summary of Argument that deal with the grounds of appeal cover less than four pages, including the grounds of appeal set out in full.
Included in the submissions were the following:
This ground again seems to be asserting that the Court had to make findings as alleged in 3.2 to 3.6 and did not make any findings in relation to the matters referred to at 3.2 to 3.6. Each of those contentions is wrong.
The submissions did not then explain why each of those contentions were wrong other than by a sparse reference to paragraphs of the reasons.
The submission also said “[i]t is wrong to say the oral evidence of Dr [EE] was not considered.”
The submissions do not identify where it was considered.
As to Ground 5, it was said:
That the Court erred in finding (to the extent such findings were made) that:
5.1.That the respondent would and had the capacity to support and maintain a relationship between the children and each of the respondent, his wife and the children’s siblings, including in circumstances where the position of the respondent was that one parent need to be eliminated from the children’s lives;
5.2.The respondent had not attempted to undermine the children’s relationship with the appellant and members of his household;
5.3.The respondent had maintained a commitment to spending time with the children since 2014 and had complied with Orders providing for the same;
5.4.The respondent had acted protectively of the children in relation to [J’s] behaviour and had appropriately addressed his behaviour, including in the course of investigations;
5.5.The respondent’s version of the events of October and November 2017 was to be accepted;
5.6.The respondent had evinced any insight or acknowledgment of the inappropriateness of aspects of her behaviour vis-à-vis the children and the appellant;
5.7.The respondent had or has the capacity to appropriately parent the children, including managing the children’s behaviour.
This ground is somewhat unusually framed. Firstly, the contended findings do not accurately quote the findings in the judgment. Secondly, having regard to the relevant approach to appeals, it could not be said that any of the findings that were made were ‘not open’. This is not a case where there was no evidence available upon which to make such findings nor one where there was incontrovertible alternative evidence, for example, unchallenged documentation. Finally it cannot be said that any finding led to material error.
Again, the respondent’s Summary of Argument fails to identify the evidence referred to in the submission.
Faced with what it regarded as inadequacies in the respondent’s Summary of Argument, the Court directed counsel for the respondent to file and serve an addendum to the Summary of Argument filed 24 May 2019, “which identifies the evidence/findings (including any reference to the relevant page of the appeal books and transcript) which supports your summary of argument, by 4.00 pm on 29 May 2019”.
A three page addendum which contains just four references to the Appeal Book and transcript was received on 29 May 2019. It fell well short of what was required.
At the conclusion of the respondent’s oral submissions, counsel sought and obtained leave to file a further addendum identifying the passages of the Appeal Book and Transcript relied on in relation to Grounds 4 and 6. The document that was received on 4 June 2019 did not do so and addressed Grounds 3.6, 4.2 and 5 instead. The three paragraphs dealing with Ground 4.2 contained only three transcript references. It is instructive that although the opportunity to provide these further submissions was conditioned upon the respondent meeting any costs incurred by the appellant providing an answer, no such claim is made. This is because, as senior counsel for the appellant explained in his submissions in Response filed on 11 June 2019, the brevity and form of the submissions added nothing of substance and inferentially required little effort by way of response. We agree.
The fees for senior counsel were $7,500 and those for junior counsel were $3,950. This was a complex and fact rich appeal in which the evidence spanned a number of years. It will be apparent that we received no assistance from the written and oral submissions made on behalf of the respondent in relation to those matters and those raised by the appellant. Although the appellant has been entirely unsuccessful we do not accept that the costs of this advocacy should be visited on him.
Taking these matters into account, there will be an order that the appellant pay the respondent’s costs fixed in the sum of $5,000.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Johnston JJ) delivered on 1 August 2019.
Associate:
Date: 1 August 2019
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