Gelbvieh & Senepol
[2007] FamCA 476
•24 May 2007
FAMILY COURT OF AUSTRALIA
| GELBVIEH & SENEPOL | [2007] FamCA 476 |
| FAMILY LAW – APPEAL FROM FAMILY COUR T OF AUSTRALIA – EXERCISE OF DISCRETION – Assertion that the exercise of discretion by trial Judge miscarried by virtue of a material error of fact not established. De Winter v De Winter (1979) FLC 90-605 cited. Complaint that trial Judge erred by failing to give sufficient weight to expert opinion evidence not established. Gronow v Gronow (1979) 144 CLR 513 cited. Challenge to the adequacy of trial Judge’s reasons for judgment not made out. Bennett and Bennett (1991) FLC 92-191 and Soulemezis v Dudley (Holdings) Pty Ltd (9187) 10 NSWLR 247 cited. Complaint that trial Judge erred in certain findings regarding the father’s capacity and relationship with the child not established. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 and CDJ v VAJ (1998) 197 CLR 172 cited. That trial Judge failed to have regard for the relative financial position of the parties not established |
| Bennett and Bennett (1991) FLC 92-191 De Winter v De Winter (1979) FLC ¶90-605 Gronow v Gronow (1979) 144 CLR 513 Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 CDJ v VAJ (1998) FLC 92-828 |
| APPELLANT: | MS GELBVIEH |
| RESPONDENT: | MR SENEPOL |
| FILE NUMBER: | DNF | 144 | of | 2005 |
| APPEAL NUMBER: | NA | 52 | of | 2006 |
| DATE DELIVERED: | 24 May 2007 |
| PLACE DELIVERED: | PARRAMATTA |
| JUDGMENT OF: | KAY, COLEMAN & WARNICK JJ |
| HEARING DATE: | 27 November 2006 |
| LOWER COURT JURISDICTION: | FAMILY COURT OF AUSTRALIA |
| LOWER COURT JUDGMENT DATE: | 09/06/06 |
| LOWER COURT MNC: | [2006] FamCA 492 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | R. D |
| SOLICITOR FOR THE APPELLANT: | JT J T Barrister & Solicitor |
| COUNSEL FOR THE RESPONDENT: | P M S.C. |
| SOLICITOR FOR THE RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | C B C B Family Lawyer D G D NT 0801 |
Orders
That the appeal be dismissed.
That written submissions in support of any application for costs of the appeal be filed and served within 28 days.
That written submissions in response to any submissions in relation to costs be filed and served within 56 days.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Gelbvieh & Senepol.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 52/2006
File Number: DNF 144/2005
| MS GELBVIEH |
Appellant
And
| MR SENEPOL |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed 6 July 2006 Ms Gelbvieh (“the mother”) appealed against orders made by Dawe J in proceedings between the mother and Mr Senepol (“the father”) on 9 June 2006.
Her Honour’s orders provided that the child of the parties E Gelbvieh born in May 2002 reside with the father, and that, in the absence of any contrary agreement, the mother have contact with the child for one half of all mid term school holidays, for one half of all Christmas school holidays and at such other times as the parties agree, together with reasonable telephone contact.
The orders included a series of “default” provisions and others made facilitating contact so far as transport arrangements and their cost was concerned.
The trial Judge made a series of detailed specific issues orders with respect to the care of the child whilst with either parent. Importantly for present purposes her Honour ordered that the mother “ensures that the child is not left alone in the presence of her brother on any occasion and for any period of time whatsoever” and further ordered that the mother “makes her best endeavours to ensure that no other maternal family members leaves [sic] the child alone in the presence of her brother […] on any occasion and for any period of time whatsoever”.
In lieu of those orders the mother sought that the child live with her and spend time with the father, in the absence of agreement in that regard, on substantially the same basis as the trial Judge ordered in the mother’s favour. No orders sought by the mother placed any restriction on contact between the child and the mother’s brother.
The father resisted the mother’s appeal and sought to maintain the trial Judge’s orders.
The Independent Children’s Lawyer, as the separate representative for the child at the time of trial had become when the appeal was heard, supported the mother’s appeal.
Background
A number of material facts are not in dispute and provide background to the appeal. The proceedings were heard by the trial Judge over a number of days, after which written submissions were received and, thereafter, further oral submissions were made.
The father is now aged 30 years, as is the mother.
At trial the father was working and living at a mining site outside D where he worked on a week-on/week-off roster, residing with his parents in D when not working.
The mother was living in rented premises near B and was not employed.
The parties commenced a relationship in 2001 and cohabited at various places until October 2003. Thereafter, and until May 2005, the child lived with the mother at various places. The father had contact with the child during that period.
In May 2005, when the child came to the father for the purpose of an agreed contact period, the father retained the child, in part as a result of concerns that the child may have been sexually abused by the mother’s brother.
The father commenced proceedings for residence of the child on or about 11 August 2005. The mother responded to that application on 17 August 2005.
On 19 August 2005 interim orders were made providing that the child E reside with the father and have contact with the mother on certain conditions, which conditions included the child not having any contact with the maternal uncle.
In October 2005 it was further ordered that the child reside with each parent on a five week about basis. The injunctive orders with respect to the wife’s brother were continued.
The trial Judge’s Judgment
The grounds of appeal agitated before the Court traverse many aspects of the trial Judge’s judgment. Understanding the various challenges raised on behalf of the matter is potentially assisted by referring extensively to her Honour’s reasons. The need to cite passages later in these reasons is also potentially reduced by so doing.
Having recounted the background matters to which we have referred, under the heading “Sexual Abuse Allegations and Investigations” the trial Judge detailed the events commencing in about May 2005 which gave rise to the issue of alleged sexual abuse, which issue assumed very considerable significance throughout the trial of the proceedings.
At that time, and whilst the child was staying with his father and paternal grandparents, the child was alleged to have exhibited symptoms of vaginal discharge. The father alleged hearing the child make disclosures of sexual abuse by her maternal uncle.
Her Honour referred to the child having been taken to a medical practitioner, Dr C, on 17 May 2005, at which time Dr C referred the matter to Family & Community Services.
On 26 May 2005 the child was again taken to a medical practitioner, Dr O, who ordered urine tests (which proved negative) and again referred the matter to Family & Community Services and the Sexual Assault Reference Centre.
On 12 June 2005 the paternal grandmother alleged that the child had again disclosed sexual abuse by the maternal uncle. That disclosure also resulted in the child being referred to the Sexual Assault Referral Centre where the child was examined by Dr W, during the course of which examination the child again made disclosures to Dr W although no physical evidence of abuse was then observed.
A police officer interviewed the child on 22 June 2005 in the presence of a community welfare worker. That interview was videotaped. The child, albeit after leading questions by the police officer, again made disclosures implicating the maternal uncle.
In her evidence, the paternal grandmother alleged further and similar disclosures by the child on 27 and 29 June 2005. In an interview with community workers from Family & Community Services on 1 July 2005 the child again allegedly disclosed, in similar terms to those of previous alleged disclosures, again purporting to implicate the maternal uncle.
The trial Judge recorded that “since 18 July 2005 E has been having therapy with D K, a psychologist, at the request of E’s father”. The child did not make disclosures of abuse by the maternal uncle during such therapy session.
The mother had contact with the child commencing on 6 September 2005, during which she alleged that the child made disclosures with respect to her brother in terms similar to those previously used, as well as alleging that the maternal grandmother’s partner, B C, had “touched my wee wee” and that the maternal grandfather “likes to sleep with boys”.
The trial Judge referred to the maternal uncle’s interview with police on 21 July 2005, the video tape of such interview having been tendered in evidence.
The maternal uncle swore an affidavit in the proceedings and was required for cross-examination on such affidavit. He was not available for cross-examination. The trial Judge recorded in that regard:
There was no medical evidence presented at that time or at any time relating to the maternal uncle’s condition. It was agreed that the uncle suffered from schizophrenia and had been hospitalised from time to time. I refused to receive the affidavit of the maternal uncle in these circumstances.
Her Honour referred to the video tape of the maternal uncle’s interview with police and found in reliance upon the videotape “that [the maternal uncle] suffers from schizophrenia and takes anti-psychotic medication” and had “denied ever touching E inappropriately and said that he might have applied nappy rash cream to her, commenting ‘it’s just normal’”.
Her Honour referred to the admission by the maternal uncle during the videotaped interview that he had “bathed E” in circumstances where “no-one else had been there” and had looked after E for “a couple of hours here or there””.
The trial Judge referred to the evidence in chief of the mother in which she deposed to E having “never been left alone in the care of my brother” and to the mother’s evidence in cross-examination that there had been “at least once when E might have been left alone with her brother” that possibly having been in about mid 2004.
Her Honour referred to the evidence of the maternal grandfather during which he denied “touching E inappropriately in any way or at any time”.
Under the heading “Assessment of evidence of the witnesses” the trial Judge recorded that the father had given evidence which was “straightforward” and had not been “significantly challenged on any matter”.
The evidence of the paternal grandmother was considered by the trial Judge who recorded that there had been, “no inconsistencies or significant challenges to her evidence”.
The evidence of R W, the co-ordinator of the Sexual Assault Referral Centre, was considered by the trial Judge to be entitled to “little weight” so far as the “conclusions which she draws” were concerned by reason of the “deficiencies disclosed” in R W’s evidence.
Her Honour referred extensively to the evidence of the mother. She concluded that:
There were several unsatisfactory aspects about the mother’s evidence. She contradicted her affidavit evidence. There are other serious omissions from her affidavit evidence.
Her Honour further concluded:
I do not consider the mother to be a reliable witness. I prefer the evidence of the father and his mother to that of the mother.
A number of aspects of the mother’s evidence led her to thus conclude.
The evidence of the maternal grandmother, J G, was found to have been “not significantly challenged”.
Reference was made to the evidence of Mr T M, a psychologist who the mother had consulted “regularly between July and September 2003”, and who had prepared a report on 25 November 2005.
Her Honour made reference to a number of aspects of the evidence of the maternal grandfather whose evidence appears to have been accepted as substantially reliable.
Reference was made to the evidence of Ms P, the Family Consultant who prepared the report of 2 February 2006 which formed part of the evidence before the trial Judge. Her Honour made a number of findings with respect to Ms P’s evidence. Ms P supported the return of the child to the primary care of the mother. The trial Judge recorded that in cross-examination Ms P had conceded:
…that she had not known what the mother’s living arrangements would be if E were placed in her care. She also conceded that it was possible that the mother needed other adult support when caring for E.
Her Honour further recorded that:
Ms P conceded that she had no concern about E if she continued to live with her father. In cross examination by counsel for the mother, Ms P said that if there was a negative view of the mother in the father’s household this could affect E’s adjustment.
Reference was made to Ms P’s concession that a “major part of the basis of the recommendations” made by her had been that there “has not been a substantiation of sexual abuse”.
Her Honour referred to a number of portions of Ms P’s evidence in cross examination and to a number of disclosures previously made by the child in relation to sexual abuse by the maternal uncle of which Ms P had not previously been aware.
Her Honour further recorded:
In questioning from me, Ms P also conceded that there may be a concern about the mother’s family encouraging an ongoing relationship between E, her father and his family. Ms P agreed that both sides were polarised and blaming the other for being in Court arguing about E’s care.
Ultimately, her Honour concluded that:
The evidence of Ms P and her report indicate that Ms P did not thoroughly explore the options for E’s future care. Rather, she relied upon the report from Family and Community Services Department that the sexual abuse allegation was not substantiated and the fact that the mother had been the primary care giver to E prior to the allegations of sexual abuse.
Having stated the relevant law, as it then was, and referred to the decision of the High Court in M v M 1988 166 CLR 69, and the later decision of this Court in W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 her Honour said:
It is clear that the question of whether or not sexual abuse has taken place is not the only matter to be determined. Indeed, the parties presented their case taking into account other significant factors such as the capacity of each of the parents to provide care for E even if the allegation of sexual abuse or unacceptable risk of abuse is not made out.
Her Honour concluded that:
Taking into account E’s age and the lack of detail provided about the alleged abuse by her [maternal uncle], I am not satisfied to the appropriate standard of proof that E was sexually abused by her [maternal uncle].
The trial Judge then recorded her “findings on main issues”. Having reviewed the evidence adduced before her in relation to the allegation that “E was sexually abused by her [maternal uncle]” her Honour ultimately concluded that “the evidence does not establish that there is an unacceptable risk that E would be subject to sexual abuse in the care of the mother”.
Under the heading “Capacity of the father to provide for E’s care” the trial Judge recorded a number of positive findings with respect to the father, including that the child was “happy and settled” and had “made friends”.
Her Honour did not find proved a number of concerns expressed by the mother and the child representative with respect to the “negative attitude in the father’s family (and in particular of the paternal grandmother)” with respect to the mother and its potential to “detrimentally affect the relationship between the mother and E”.
Under the heading “The mother’s capacity to provide appropriate care and stability for E” the trial Judge recorded findings that the mother was “presently living in suitable rented accommodation in R” and that her “possible future relationship” with her “boyfriend B” and “therefore E and B, was vague”.
Her Honour referred in that context to the evidence of the mother which indicated that “since November 2005 her boyfriend B has been spending 3 or 4 nights at her house”.
The evidence in relation to the mother’s psychological health was traversed by the trial Judge who concluded that there was “no evidence that the mother has suffered from a mental illness other than post-natal depression”.
Her Honour observed that “the mother’s oral evidence raised questions about her capacity to provide an appropriate role model for E”.
Her Honour referred to a number of aspects of the evidence of the mother and rather more critically the “dominating personality” of the mother’s father.
The trial Judge accepted that “E came to reside with the father in D in early May 2005 at the request of the mother because she was not managing well at that time”.
Her Honour considered the “effective change in E’s circumstances”, recording that “the mother was until May 2005 the primary caregiver for E”, that “E lived in the same household with her father and paternal grandparents for most of the period between July 2002 and October 2003”, that since October 2003 the father “had periods of contact with E” and that “since the allegations arose in May 2005 E has spent a considerable period of time in the care of the father and his parents”.
Her Honour found that “notwithstanding the disruptions to E’s care which occurred in May 2005 and the ongoing disruption of the cycle of 5 weeks in the care of each parent, E has adjusted well and her development has continued without obvious difficulties.
The trial Judge revisited her findings of fact which she had recorded in the preceding paragraphs of her judgment within the context of the legislative provisions governing the proceedings before her, Section 68F of the Act. She concluded that it would “not be appropriate” at E’s age to give her wishes any weight. Her Honour accepted that “E has a good close relationship with her mother, her father and her grandparents”.
Her Honour reiterated the history of E’s care in the following terms:
Until May 2005 E resided with and was primarily cared for by her mother. In the period before the parties separated E also lived with the father and paternal grandparents. Between May 2005 and September 2005 E resided with the father and paternal grandparents with no face to face contact with the mother. Thereafter contact has taken place and E has spent periods of five weeks with the father and five weeks with the mother.
She recorded that it was “accepted that the short term interim arrangements are not appropriate and cannot continue”.
Her Honour regarded as “one of the significant factors which needs to be taken into account” …the possible impact upon E of a change, particularly a change that affects her relationship with her parents”.
Her Honour further concluded that E had not been “significantly affected in her development nor in her relationships with those people closest to her” by virtue of the arrangements for her care which had operated from May 2005.
The trial Judge further concluded that “the father’s proposals involve a change in accommodation and care to the extent that he proposes to move to his own home and reduce his reliance upon the assistance of his mother and father in caring for E”.
Reference was made to the mother having “moved to new accommodation in November 2005”, to her current relationship with her boyfriend B and the absence of “evidence about the impact of this change in circumstances upon E”.
Ultimately, her Honour concluded that “the evidence supports the conclusion that the father is more likely to provide a stable consistent lifestyle for E than the mother”.
Reference was made by the trial Judge to the geographic distance which separated the parties, the father living in D, the mother living in B, observing that “the practical difficulty and expense of maintaining contact with the other parent will continue while the parents live such considerable distance from each other”.
The mother’s “intention to find employment which will assist her in contributing towards the cost of travel” and the father’s “capacity to contribute towards the cost of travel” were referred to by the trial Judge.
With respect to “capacity” and “attitude” her Honour concluded that “both parties have the capacity to provide for the practical needs of the child. The father has a greater capacity to provide stable and consistent care for the child with the ongoing assistance of his parents”.
Her Honour reiterated her earlier stated conclusion that she was “not satisfied” that “the father and his family will discourage or interfere in any way with the relationship between E and the mother”, and specifically recorded that she was “satisfied that the father and his parents will continue to support the relationship between E and the mother”, and specifically concluded that “the father has a greater capacity to provide for the needs of E” than does the mother and had “a more appropriate attitude towards the responsibilities of parenthood including the responsibility to provide an appropriate role model”.
Her Honour was “satisfied that the mother and father are able to protect E from any physical or psychological harm particularly if the mother complies with an order to prevent E from being left alone in the care of the maternal uncle” and that the “father and his family will protect E from psychological or emotional harm” and not “damage E’s emotional attachment to her mother”.
Under the heading “Summary and conclusions”, the trial Judge reiterated her conclusion that the evidence did not “support a finding on the requisite standard of proof that E was sexually abused by her [maternal uncle]”, that the evidence did not support a finding “that E was coached or encouraged in any way to make the allegations” which she did with respect to the maternal uncle and that “[t]he steps taken by the father and his mother to investigate E’s statements and behaviour were appropriate in the circumstances”.
Whilst recording that E’s “primary attachment” was with the mother, the trial Judge concluded that the child had “also bonded closely with the father and his parents”.
Her Honour referred to the evidence of the counsellor suggesting a risk of E being “affected if the primary care of her mother is disrupted” notwithstanding which the evidence indicated that E had “adjusted well and is developing well notwithstanding the disruptions which have occurred since May 2005”.
The trial Judge repeated her conclusions that the father had a “greater capacity to provide stable and consistent care for E” and presented as “a better role model for E”.
Her Honour thus concluded that:
Taking into account all the factors to be considered and weighing each of the factors, I am satisfied that it is in the best interests of E that she reside with the father and have regular contact with the mother.
and added that:
The benefits of the father’s stable care and attitude outweigh the possible impact of moving E from the care of the mother who was the primary caregiver.
Grounds of Appeal
Counsel for the mother first addressed grounds 3 and 4 of the Notice of Appeal which provided:
3.That Her Honour erred in finding that the Family Report Writer did not thoroughly explore the options for E’s future care.
4.That Her Honour erred in failing to give sufficient weight to the Family Report Writer’s recommendations.
It was submitted that the two grounds were “closely linked”. Her Honour was submitted to have “fallen into significant error by concluding that the Report writer ‘did not thoroughly explore the options’”.
It was submitted that there was “no more” which the Report Writer could reasonably have done and the likely consequence of her error was that the Judge “erroneously placed no weight on her conclusions and proceeded to determine the hearing with no, or inadequate, regard to her highly experienced and valuable assessment”.
Counsel for the Independent Children’s Lawyer (ICL) supported the mother’s appeal, and addressed grounds 2 and 3 together, submitting that the trial Judge had erred in “discounting” the evidence of the Family Report writer in a number of material respects.
The trial Judge referred to the concession by the family report writer that she had “not known what the mother’s living arrangements would be if E were placed in her care”. There is no suggestion that such finding was other than reasonably open to her Honour. In a case where stability of care was a major issue, as her Honour identified under the heading “main issues” of her reasons for judgment, her Honour was entitled to regard that as a matter of significance.
With respect to the Family Report writer, the failure to explore the question of the mother’s proposed living arrangements with her was in the circumstances of this case an unfortunate oversight or deficiency in the Family Report. It has not been suggested in this Court that the trial Judge’s identification of the mother’s ability to provide stability for the child as an issue at trial was erroneous. The trial Judge referred, accurately there is no doubt, to the evidence of the Family Report writer that “it was possible that the mother needed other adult support when caring for E” and to the absence of concern of the Family Report writer if the child continued to live with the father and to the possible adverse affect on the child’s “adjustment” if “their was a negative view of the mother in the father’s household”.
Her Honour referred initially to the Family Report in the following terms:
It having now been established by the authorities that there is nil evidence of such abuse, the best course of action would appear to be to restore the child’s residential arrangements to those that existed prior to the disruption precipitated by the present Court action.
Her Honour was clearly aware that the Family Report writer considered that “E’s primary attachment was with her mother”, and that:
The evidence of Ms P and her report indicate that Ms P did not thoroughly explore the options for E’s future care. Rather, she relied upon the report from Family and Community Services Department that the sexual abuse allegation was not substantiated and the fact that the mother had been the primary care giver to E prior to the allegations of sexual abuse.
The evidence of the Family Report writer in cross examination was considered by the trial Judge who recorded:
Later during questioning, the following exchange took place:
Q: And would you also agree that a mother’s or father’s ability to respond appropriately to the physical and emotional needs of the child could be impacted by those sorts of medical health issues like depression?
A: Depression, untreated, is very potent.
Q: And would you also agree that part of the – the potency of that is aggressive and irrational behaviour?
A: Certainly not necessarily.
Q: Well, what - ?
A: Depression can be just total withdrawal; doesn’t have to have any anger expression. No, it doesn’t have to. It can be that the child finds it so difficult to get the parent’s attention because the parent is just sunk into themselves. That’s part of the difficulty.
Q: And if there was any – any unpredictability?
A: On the parent’s behaviour?
Q: Yes?
A: This can be unsettling for a child.
Q: Now, finally, it appears from your report that you did not consider the physical living arrangements of E?A: I noticed that they would be very discrepant, that the father’s family would be able to offer her materially more, and under this heading I came back – and it was not known at that point just how – what [the mother’s] living arrangements would be; she was in the process of trying to arrange them and, as I understand it, she was given some specific orders by the Court as to whom she may or may not live. Then I noticed that she had – I think it might have even been pointed out to me – but I noted that she usually chose to live with someone and I thought that could be a wise move. I wouldn’t suggest she do otherwise if that’s how she feels best, but anyway, I came back to my belief that in dispute [sic] such as this the fact that one family is able to offer materially more than another is not a primary concern, particularly from myself when investigating and reporting.
Reference was also made by her Honour to evidence of the Family Report writer during cross examination by the child representative during the course of which the Report writer was asked “Why do you say that the child’s interests will be better provided for when in care of the mother than in care of the father?” to which the Counsellor responded, “because of trying to restore some continuity and stability with what the child has known and where she was starting to form her views of the world”.
Her Honour also referred to a question which she had asked the Family Report writer, namely whether the mother “having a relationship with someone and that man spending three or four nights a week at E’s home” was “a significant factor as far as E’s care is concerned?” to which the Report Writer responded “it makes it a different situation than the one that I assessed. It doesn’t necessarily make it bad, but I don’t know”.
A number of matters of which the Family Report writer had been unaware were then recorded, albeit those matters are peripheral for present purposes.
Also referred to was a concession by the Family Report writer that there may be a concern about the mother which her Honour interpreted as a possible “concern about the mother’s family encouraging an ongoing relationship between E, her father and his family”. It is relevant in this context to recall the learned trial Judge’s findings in relation to the attitudes of the members of each parent’s household to the members of the other parent’s household, those unchallenged findings being essentially benign in terms of the father and his family, but critical of the maternal grandfather.
It was submitted that the Family Report writer had either correctly reflected significant matters in her report or made “correct assumptions” with respect to other matters as the evidence at trial confirmed. It was submitted that the Family Report writer, contrary to the trial Judge’s conclusion, relied upon a more extensive range of facts and circumstances than her Honour had suggested in her judgment.
Reliance was placed upon the evidence of Ms P with respect to “attachment issues” and in particular to her evidence that the child had spent “such a bulk of her time with her mother in those formative years that no matter how excellent the father’s family is, it remains the foundation of her security”.
Reliance was also placed upon the evidence of the Family Report writer that it was “important, if it is possible, to restore what had been a stable situation, and no matter how excellent facilities are, or how devoted a relationship there may be, I don’t see that that means it is appropriate to disrupt what has been the situation where the child was developing her early view of the world… It’s to do with emotional attachment and the developing child and their psyche and their emotions, which is different from planning very appropriate, excellent situation for the child to live in”.
Counsel for the mother also relied upon the evidence of the Family Report writer that “there could be some risk even that she [the child] would emotionally experience rejection from her mother, where she had earlier belonged, not meaning that anyone would have to say that to her but she could feel that”.
It was conceded by Counsel for the ICL that the trial Judge had in fact found that there was “some risk to E if she was not to return to reside primarily with the mother”, but submitted that her Honour had failed to refer to “the important evidence of Ms P [the Family Report writer] as to the quantum of that risk.”. Counsel for the ICL placed reliance upon the absence of “evidence since May 2005, that E had been significantly affected in her development nor in her relationships with those people closest to her”, inferentially the mother and her mother’s family.
Counsel for the ICL criticised the trial Judge for failing to “deal in her Judgment with the impact of the proposed contact which on the evidence would mean that every alternate year E would have some six months without physical contact with the non residential parent, particularly given that the child had resided her entire life with the mother, solely or in conjunction with others until May 2005.” Reliance was placed upon the evidence of the Family Court Report Writer in support of the submission that such level of contact was “deleterious” to the child.
Although it was conceded that the trial Judge recorded in her reasons for judgment “that both parents were either entering into or had recently entered into new accommodation arrangements and new relationships”, the trial Judge was criticised for having failed to “deal with” the father’s reliance upon his mother for assistance which was submitted to be “a considerable further change for E”.
It was ultimately submitted that “[w]hilst clearly Her Honour is not bound to follow the Family Report writer, by rejecting her recommendation and the bases for it underlines the errors in the findings, the failure to take into account the relevant factors and also the lack of appropriate weight to be attributed to the restoration of E’s stability of placement with her Mother”, thus enlivening appellate intervention.
On behalf of the father it was submitted that the trial Judge’s conclusion that the Family Report writer had not thoroughly explored the options was “a finding based on clear evidence.” We agree with the submission on behalf of the father that the trial Judge had, and was entitled to have regard to matters other than those relied upon by the Family Report writer, and that the Family Report writer had herself conceded, as the trial Judge correctly recorded, that the “principal reason” she had arrived at her recommendation was that there had not been a “substantiation of sexual abuse” whilst the child was in the mother’s care. It was acknowledged that whilst making the concession that it had been “the principal reason” the Family Report writer suggested that there had been “other factors which I considered”, all of which the trial Judge accurately referred to in her reasons for Judgment.
Counsel for the father reminded the Court that her Honour had recorded in her reasons that the Family Report writer “had not known what the mother’s living arrangements would be if E were placed in her care” and had “also conceded that it was possible that the mother needed other adult support when caring for E”. Counsel for the father made reference to the evidence of the Family Report writer in cross examination which is consistent with that submission.
It was submitted that the trial Judge had regard to a number of other matters which were “crucially relevant to the issue of E’s residence”.
On behalf of the father it was further submitted that the “assertion as to the lack of weight also appears to proceed on the presumption that Ms P’s evidence was to the effect that the mother represented the only residence option in E’s best interest” when “the opposite is true”. That submission was supported by reference to evidence of Ms P to which her Honour recorded that Ms P had no concerns for E’s well being if she continued to live in the father’s household.
It was thus submitted on behalf of the father that the trial Judge had not erred in any of the ways asserted by either of these grounds. As is apparent from their terms, these grounds raise two distinct issues. The first is the contention that the exercise of the trial Judge’s discretion miscarried by virtue of a material error of fact. It was submitted on behalf of the mother and the ICL that, having erroneously found as a fact that the Family Report writer did not “thoroughly explore the options for E’s future care” the exercise of her Honour’s discretion had miscarried as the weight to be given to the Report writer’s expert opinion evidence was a major factor in such exercise of discretion.
In De Winter v De Winter (1979) FLC ¶90-605 Gibbs J said at 78,092:
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p.137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth (1953) 94 C.L.R. 621, at p.627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. … The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
The second limb of these challenges is in issue that, the trial Judge failed to afford the expert opinion evidence of the Family Report writer appropriate weight.
In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519 – 20:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial Judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial Judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
As is clear from the cross examination of the Family Report writer, albeit not the only factor which led her to believe that the welfare of the child would be better served by her residing with her mother, as was conceded, her “principal reason” for so concluding was the absence of a finding of a “substantiation of sexual abuse” of the child whilst she had been in the mother’s care. The trial Judge referred to that evidence in her reasons for judgment. As the trial Judge also recorded, the Family Report writer had been unaware of a material fact or circumstance in that she had “not known what the mother’s living arrangements would be if E were placed in her care” and had “also conceded that it was possible that the mother needed other adult support when caring for E”, the latter matter having been “mentioned in her report”. As the submissions of Counsel for the father suggest, there were other relevant matters with respect to the mother’s proposals of which the Family Report writer had been unaware.
We are not persuaded that the learned trial Judge erred in concluding that the Family Report writer “did not thoroughly explore the options for E’s future care”, but rather relied “upon the Report from Family and Community Services Department that the sexual abuse allegation was not substantiated and the fact that the mother had been the primary caregiver to E prior to the allegations of sexual abuse”.
It is not suggested that her Honour’s reliance on the facts or circumstances upon which she based her conclusions was not open to her. To the extent that other facts and circumstances to which her Honour did not expressly refer have been raised, they do not in our view establish that her Honour’s conclusion was other than reasonably open to her or, had she considered them, which we are not persuaded she did not, would have led to a different conclusion. As her Honour recorded there were “many other issues” which needed to be “considered when determining what is in E’s best interests” as, in fairness, the Family Report writer herself acknowledged in the passage which the trial Judge quoted in her reasons and which we have set out above.
Where the issue of stability of care was a major issue in the proceedings, as the Family Report writer herself stressed during her cross examination, not knowing what the mother’s proposed living arrangements were, or the possible impact on the child of those arrangements, or what the implications of the child of the mother’s new relationship might be were shortcomings in the Family Report upon which her Honour was entitled to rely when determining the weight to be given to its author’s expert opinions.
The absence of inquiry in those important respects is consistent with the trial Judge’s impression, reinforced by the Family Report writer’s own evidence that the recommendation in the Report was heavily reliant upon the absence of substantiation of the sexual abuse allegations of the child while she was in the mother’s care.
Whilst it may not have been the only finding of fact reasonably open to her on the evidence, it has not been established that her Honour erred in finding as she did in relation to the Family Report. We are not thus persuaded that alleged “errors of fact” could have initiated the trial Judge’s exercise of discretion.
So far as the “weight” challenge is concerned, as the submissions of all Counsel sensibly acknowledged, her Honour was not obliged to accept the expert opinion evidence of the Family Report writer that the welfare of the child would be better served by her residing with her mother than with her father. Her Honour was obliged to consider that evidence and to give it the weight which, in all the circumstances, she considered appropriate.
As is not in doubt, the trial Judge heard lay witnesses tested in relation to the facts and circumstances to which the Family Report writer’s expertise was applied for the purpose of forming her opinion with respect to the best interests of the child.
The trial Judge was charged with determining the proceedings before her having regard to the best interest of the child by reference to the provisions of Section 68F. As is apparent from their terms, the statutory provisions to which her Honour was obliged to have regard extended beyond matters to which, understandably, the Family Report writer had regard. Moreover, the trial Judge heard evidence on oath or affirmation tested by cross examination, an advantage not shared by the Family Report writer.
In Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 (“Makita”), Heydon JA (with whom Priestly JA and Powell JA agreed) said:
“… The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.” (per Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40, within Makita at 729-730).
To evaluate these complaints requires a consideration of the trial Judge’s reasons dealing with the evidence of the Family Report writer. We have earlier referred in considerable detail to the trial Judge’s reasons for judgment, and will again do so in the course of considering other grounds. It is relevant to note at the outset that none of the findings of fact in relation to the lay evidence before the learned trial Judge has been successfully challenged by the grounds of Appeal, and indeed the most crucial single finding made by her Honour was not adverse to the mother.
The weight appropriate to be given to the expert opinion evidence of the Family Report writer was entirely a matter for her Honour to determine. How she did so, and why, are not in doubt. Absent it having been established that the weight given by her to that opinion evidence was in the circumstances inadequate, this Court cannot interfere with the exercise of discretion in that regard. Others may have given the opinion evidence more weight but that is not the test. The issue was not without complexity as her Honour’s reasons for judgment, and acceptance of parts of the expert opinion evidence confirm.
So far as the challenge to the weight given to the Family Report writer’s evidence is concerned, having been entitled to find as her Honour did with respect to the failure to “thoroughly explore the options for E’s future care”, the contention that the learned trial Judge failed to give the Family Report writer’s evidence sufficient weight becomes difficult to sustain. As was sensibly conceded on behalf of the mother and the ICL in this Court, the trial Judge was not obliged to accept the Family Report writer’s expert opinion evidence, or adopt her recommendation. Her Honour was obliged to give that evidence the weight to which it was in all the circumstances entitled. Material to that determination was the fact that there were significant gaps in that evidence to which the trial Judge referred in the passages of her judgment to which we have referred.
It is instructive however to consider subsequent passages of her Honour’s reasons for judgment where the evidence of the Family Report writer is again referred to. Under the heading “Section 68F” her Honour reiterated her acceptance “that E’s primary attachment has been to her mother”. She then addressed the evidence of the Family Report writer that “there was some risk to E if she were not to reside primarily with the mother”.
Her Honour referred to the evidence of the Family Report writer in which she reiterated the “emphasis” which she placed on “continuity and stability with what the child has known and where she was starting to form her views of the world”. Having cited that evidence her Honour said: “One of the significant factors which needs to be taken into account is the possible impact upon E of a change, particularly a change that affects her The trial Judge Honour then recorded:
I take into account that since May 2005 E has either resided with her father or resided on a five week about basis with her father and mother. There is no evidence that she has been significantly affected in her development nor in her relationships with those people closest to her. The father’s proposals involve a change in accommodation and care to the extent that he proposes to move to his own home and reduce his reliance upon the assistance of his mother and father in caring for E.
It is not suggested that any finding therein recorded was not reasonably open to her Honour. Her Honour again referred to the evidence of the Family Report writer in the “summary and conclusions” of her reasons in the following terms:
The evidence of Ms P suggests that there is a risk that E will be affected if the primary care of her mother is disrupted. However the evidence indicates that E has adjusted well and is developing well notwithstanding the disruptions which have occurred since May 2005.
The significant matters of which the Family Report writer had been unaware, the “principal reason” for the Family Report writer’s recommendations and the other findings of fact with respect to the lay evidence from witnesses which her Honour had seen and heard tested over a period of days during the course of the trial were matters upon which the trial Judge was entitled to rely when determining the weight to be given to the evidence of the Family Report writer. It is not insignificant that the expert opinion evidence of the Family Report writer was accepted on a number of issues falling within her undoubted expertise and that the recommendation which was not accepted was not for cogent reasons. It is not suggested that her Honour had regard to extraneous or irrelevant facts or circumstances.
Nothing to which we have been referred persuades us that the trial Judge failed to give to the evidence of the Family Report writer the weight to which it was, in all the circumstances entitled.
Ground 1
Ground 1 of the mother’s Notice of Appeal provided:
That her Honour having found that she could not be satisfied to the appropriate standard of proof that E had been sexually abused and that she could not be satisfied that here was an unacceptable risk that E would be the subject of sexual abuse in her mother’s care, failed to give adequate reasons for ordering that the child’s residence be changed from the mother to the father.
It was submitted on behalf of the mother that, having referred to the trial Judge’s discussion of relevant Section 68F factors, her Honour had failed to make clear the process of her reasoning in relation to those factors. It was submitted that the trial Judge was obliged:
…to provide detailed reasons to explain why the father had a greater capacity to provide stable and consistent care, how and why he was a better “role model” and, most importantly, why these considerations outweighed the primary bonding and attachment. Given the further considerations that the father had never looked after the child himself, that his circumstances were intended to change and that nothing was known of his new partner, the presumed “stability” of his care were not a given. In summary, her Honour’s orders were a fundamental departure from the pre-existing circumstances and, in accordance with authority, required to be fully justified and supported by adequate reasoning.
Criticism was levelled at the trial Judge for ignoring the evidence that the child had “been of the understanding that the residence arrangements at least in the months following May 2005 were a ‘holiday’ and not a permanent state of affairs”.
We struggle to understand how this submission could advance the present challenge. Nothing to which we have been referred suggests that her Honour was under any misapprehension as to the basis of the child’s perception of the post May 2005 arrangements for her care. Moreover, how the child had adjusted and was developing were issues of fact, and it is not suggested that the trial Judge’s findings in that regard were not open to her on the evidence.
It was submitted on behalf of the mother that “reasons appropriate to the circumstances of a particular case are essential, inter alia;
·To demonstrate that a decision was judicial rather than arbitrary;
·To enable the parties to see which of their arguments had been understood and accepted as forming the basis of a judge’s decision;
·To further judicial accountability;
·To ensure justice is seen to be done.
In reply to the submissions on behalf of the mother, Counsel for the father submitted that the submissions on behalf of the mother themselves set out “in summary reform the path of cogent reasoning followed by the trial Judge in arriving at her decision”.
It was submitted that “what the appellant is really saying is that the trial Judge ought to have reached a different conclusion. That is an insufficient reason to attract the intervention of this Court”.
It was ultimately submitted that:
Contrary to that which is asserted by the appellant, the trial judge provided, with respect, a lengthy, careful and structured set of reasons for the conclusion she reached and (relevantly) dealt with, in order: Findings on the Main Issues; Capacity of the Father to Provide for E’s Care; The Mother’s capacity to Provide Appropriate Care and Stability for E and Effect of Change in E’s Circumstances before then going on to deal seriatim with each of the relevant s. 68F(2) factors.
In written submissions in reply, Counsel for the mother submitted that the thrust of the challenge embodied in this ground was that “where there was no attack on the mother’s care giving and the child’s primary attachment was to the mother, a reversal of the “status quo” for living arrangements for the child was bound to be a major decision which required strong logical and evidentiary justification”.
The “reversal” of the status quo was a fact or circumstance which the trial Judge was obliged to have regard, if, as was not necessarily the case, there was a clearly established “status quo”. No authority to which we have been referred elevates the significance of a “reversal” of the status quo to the status asserted on behalf of the mother. The decision made by her Honour was on the balance of probabilities, as it was required to be. Determining the balance of probabilities was not an easy task in the circumstances of this case, as her Honour’s reasons makes clear. To the extent that the trial Judge “reversed” the status quo why she did so is not in doubt. No fact or circumstance relevant to that decision has been shown to have been ignored, and no irrelevant fact or circumstance has been shown to have been considered.
It was then submitted on behalf of the mother in reply that:
The Appellant’s submission is that Her Honour’s reasons were inadequate in part because they failed to address key facts. These included:
1The father’s reliance on the paternal grandmother to provide care
2The father’s lack of experience and direct involvement in care-giving
3The father’s own instability in the future (her Honour’s decision at para. 203 + 4 being extremely limited)
4The significance of the failure of the father to criticise the mother’s provision of care
Ultimately, other than restating submissions previously made, it was asserted that:
Her Honour’s reasons were further inadequate because they failed to acknowledge or recognise the extent of the potential damage to the child and the enormity of the changes being made.
The law in relation to the adequacy of reasons for the decision of a trial Judge is not in doubt and does not require extensive restating in this Appeal.
In Bennett and Bennett (1991) FLC 92-191, the Full Court said at 78,266:
Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 – 282 McHugh JA said at 280:
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.
…
Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related “to the function to be served by the giving of reasons”. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal.
As our review of it earlier in these reasons makes clear, the path of the trial Judge’s reasoning in this case is discernable. There is force in the submission on behalf of the father that the submissions of Counsel for the mother themselves confirm this to be the case. Addressing the particular matters complained of, her Honour’s reasons for not accepting the recommendation of the Family Report writer, and for not acceding to the submission made at trial by Counsel for the ICL, are not in doubt, as our consideration of Ground 3 and 4 makes clear. In our view the trial Judge’s reasons in that regard were adequate as they provided ample elucidation of the factors which led her Honour to reject the report writer’s recommendations.
So far as the reasons in relation to the father’s “greater capacity to provide stable and consistent care, how and why he was a better “role model” and, most importantly, why these considerations outweighed the primary bonding and attachment” are concerned, a reading of her Honour’s judgment makes clear why she concluded as she did. The same is true of the fact that the father “had never looked after the child himself”.
To the extent that it was submitted that the trial Judge failed to reveal in her reasons the significance of the father’s circumstances being “intended to change and that nothing was known of his new partner”, the trial Judge’s finding of fact, was “that the father has a relationship with a girlfriend. There was little evidence about the future of that relationship”.
The submission on behalf of the mother in relation to the father’s intended change of circumstances is not supported by the trial Judge’s findings of fact. On the findings of fact which her Honour made, there was no more to have productively been referred to by way of reasons. The trial Judge made clear the nature and direction of the balancing of competing proposals, each of which had unknown and/or untested features.
We are not satisfied that her Honour’s reasons were inadequate in any respect. Her Honour’s judgment was structured, detailed and logical. A balanced reading of that judgment leaves no real scope for doubt as to why the case was decided as it was. We are not persuaded that any aspect of the reasons for judgment would enliven appellate intervention. We thus consider this ground to lack substance.
Ground 2
Ground 2 of the Notice of Appeal provided:
That Her Honour erred in failing to place weight or any sufficient weight on the fact that E’s primary attachment was to her mother.
No specific submissions were made in relation to this ground but submissions made in relation to other grounds, to which we have referred, or will refer, may in part be directed to this challenge. For the sake of completeness however, we record that nothing to which we have been thus referred establishes this complaint. That is unsurprising given the statement, by the trial Judge that:
The evidence supports the conclusion that E has a good close relationship with her mother, her father and her grandparents. I accept the evidence of Ms P that E’s primary attachment has been to her mother”.
Whilst E’s primary attachment was with the mother she has also bonded closely to the father and his parents”.
The evidence of Ms P suggests that there is a risk that E will be affected if the primary care of her mother is disrupted. However the evidence indicates that E has adjusted well and is developing well notwithstanding the disruptions which have occurred since May 2005.
The child’s primary attachment was a significant factor to be taken into account by the trial Judge. Her Honour did so, but, for reasons she articulated, concluded that the cumulative effect of other factors, to which she also referred, rendered the child’s primary residential placement being with the father in the child’s best interests. It has sensibly not been suggested that any of these factors were not relevant to that exercise of discretion.
We are not persuaded that this challenge has substance.
Ground 5
Ground 5 of the Notice of Appeal provided:
That Her Honour erred in finding that the father and his family would encourage and facilitate a relationship between the child and the mother.
In support of this challenge reliance was placed upon the evidence particularised earlier in the summary of argument under the heading “Factual Issues”. It was there submitted:
18.(iii) Paternal Family Hostility – critical to the dynamics of the whole case was the dominant personality and role of the paternal grandmother. It was she who seized upon the possible sexual abuse issue and who pursued it most vigorously. She, and to a lesser extent her son, had a very negative view of the mother and Her Honour has respectfully not fully grasped the enmity that existed.
19.Ms P noted about the paternal grandparents as follows:
“While they also portrayed their initial attempt to offer a supportive environment, their progressive disillusionment leading to forthright denigration of [the mother] as a person of any competence, in association with their specific allegations, was apparent”..
In her evidence she stated, “I certainly did hear a lot of detail against [the mother] from the [father’s] family which degenerated to the level of even talking about her level of excellence in washing dishes clean.” Later she noted it was “an entirely negative atmosphere about her limited capacity to be a good parent, including those statements about going to the casino.”
20.It was unsurprising that the Child Representative in her submissions stated:
“You Honour further needs to consider evidence given by the paternal grandmother regarding her attitudes towards the mother and the maternal family in considering the best interests of the child. The evidence of the paternal grandmother was so overwhelmingly negative about the mother and the mother’s family that You Honour would need to be concerned how that attitude, views and opinions will impact on the child’s relationship with the mother…Your Honour needs to consider the overwhelming impression and concern that the other professionals indicted about the presentation of the paternal grandmother and the way she spoke about the mother and the mother’s family.”
The Child Representative made it clear that she held concerns that the paternal grandmother would find it difficult or impossible to hide or qualify her feelings and views regarding the mother, such views being long held and very strong.
21.Ms P was asked the following question by the Child Representative:
“If the Court were to order a change of residence for E and she was removed to live in a household where the view held of her mother was almost entirely negative by the significant residents of that household, how do you think that would affect E’s adjustments and her future?....I’d anticipate it would have a considerable effect – negative, yes.”
22.She also stated that at:
“I do have concerns and I would suspect that whatever the outcome of this hearing the family members may still hold their opinions of her – their negative opinions and their concerns.”
23.Her Honour’s response to the overwhelming evidence of gross negativity was erroneous. She stated, without providing her reasons:
“I am not satisfied however that the father and his family will discourage or interfere in any way with the relationship between E and the mother.”
Based on the initial comments to the report writer, the actual evidence of the grandmother and father and the independent assessment of the Child Representative such a finding was erroneous. The risks and dangers to E from the orders actually made are self evident.
It was thus submitted on behalf of the mother that “[t]he degree of alienation in particular of the dominating paternal grandmother and to a lesser extent the father is striking. Her Honour has made a fundamental factual error which is of real significance. The effect of the current orders is to limit contact to twice a year and because of the sharing of costs in circumstances where the mother is unemployed and with limited financial resources, the negative effects of the enmity may only be compounded by infrequent visitation”.
Counsel for the ICL submitted that the trial Judge’s conclusion that the paternal grandmother’s behaviour was not “unreasonable nor does it indicate that the father and his family will not in the future encourage and facilitate a relationship between E and the mother” was contradicted by the evidence of the paternal grandmother who could “only ascribe competence in computer skills to the mother and provided a litany of complaints against the mother whilst she resided in D.”
Reliance was placed upon the evidence of the paternal grandmother in relation to how the child coped not seeing her mother between May and September 2005, in which the paternal grandmother said “E doesn’t show any remorse or, - I mean, E - because E is so occupied…”.
Reliance was also placed upon the evidence of the Family Report writer who recounted in her oral evidence having heard “forthright denigration of [the mother] as a person of any competence”. Reliance was placed on the evidence, asserted to have been unchallenged, of the Family Report writer in which she stated that she had “concerns” and “would suspect that whatever the outcome of this hearing the family members may still hold their opinions of (the mother) – their negative opinions and their concerns”.
On behalf of the father it was submitted that the trial Judge’s conclusion was reasonably open to her on the evidence and the findings of fact made with respect to it. Those findings in turn having been reasonably open to her Honour. It was submitted, in essence, that her Honour was uniquely placed to reach conclusions and draw inferences having seen and heard the witnesses whose evidence impacted upon those issues. The contention of the father was in part sought to be supported by the trial Judge’s particular findings with respect to evidence recorded by the trial Judge at various places throughout her judgment.
To better evaluate this complaint, it is again appropriate to have regard to the trial Judge’s reasons. It is clear from the “main issues” identified by the trial Judge at the commencement of her judgment that the attitude of the father and his family (the paternal grandmother in particular) towards the mother and its potential impact upon the “relationship between E and the mother, should E reside with the father” was a matter of which her Honour was and remained clearly conscious.
Her Honour made detailed findings with respect to the evidence of the witnesses she saw and whose testimony she heard. Under the heading “assessment of evidence of the witnesses” her Honour provided detailed and clear reasons for concluding as she did with respect to each of the witnesses who gave evidence during the trial.
Relevantly for present purposes the trial Judge found the husband’s evidence to be “straightforward”, he not being significantly challenged on any matter. Her Honour recorded that the paternal grandmother was “cross-examined at length” in relation to a number of topics the most significant of which her Honour referred to. Her Honour recorded that, with one exception which is not relevant for present purposes “there were no inconsistencies or significant challenges to her evidence”.
The trial Judge then recorded:
The grandmother’s view of the mother needs to be seen in the context of the relationship between the parties and the families over the years. The paternal grandmother admitted that she did not speak to the maternal grandfather describing him as “very rude and very abrupt”.
For reasons which she detailed at some length, the trial Judge concluded that “there were several unsatisfactory aspects about the mother’s evidence. She contradicted her affidavit evidence. There are other serious omissions from her affidavit evidence”. Her Honour added “I do not consider the mother to be a reliable witness. I prefer the evidence of the father and his mother to that of the mother”. Her Honour recorded that the mother’s mother J G had been “briefly cross-examined” she being “not significantly challenged”.
Under the heading “Capacity of the father to provide for E’s care” her Honour recorded:
The mother accepted that E loved and is well bonded with the father and paternal grandparents. Both the mother and Child Representative expressed concern that the negative attitude in the father’s family (and I particular of the paternal grandmother) would detrimentally affect the relationship between the mother and E.
Her Honour concluded:
I accept that the paternal grandmother has expressed concerns about the mother’s mental health and has vigorously pursued the investigation of the allegations of sexual abuse. However, considering the paternal grandmother’s actions in the context of the events that were taking place at the time, including the behaviour of the mother, her past post-natal depression and the mental health of the maternal uncle, I do not consider her behaviour to be unreasonable nor does it indicate that the father and his family will not in the future encourage and facilitate a relationship between E and the mother.
The conclusions which give rise to this complaint were matters for determination by the trial Judge, who had the unique advantage of seeing and hearing the witnesses whose testimony impacted upon them.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 (“Earthline”), Gaudron, Gummow and Hayne JJ. In Earthline, having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial Judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment his Honour said at 619, paragraph 90:
The true advantages in fact-finding which the trial Judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial Judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial Judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial Judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
Nothing to which we have been referred persuades us that any of the conclusions and/or findings of fact made by the trial Judge in relation to the issue raised by this ground was not reasonably open to her on the evidence. We thus find this challenge lacks substance.
Grounds 6 and 7
Grounds 6 and 7 of the Notice of Appeal provided:
6.That Her Honour erred in finding that the evidence supported the conclusion that the father was more likely to provide a stable consistent lifestyle for E than the mother.
7.That Her Honour erred in finding that the father had a greater capacity to provide for the needs of the child and a more appropriate attitude to the duties and responsibilities of parenthood including the responsibility to provide an appropriate role model.
The concession was made that “the mother habitually has lived with others since separation and that she has had a number of residences and boyfriends”. It was submitted however that “the father’s employment and living arrangements were intended to change radically and he has never been tested as the primary caregiver to the child”.
The trial Judge was criticised for having “placed some weight on relatively trivial events”, a number of which were identified. One particular incident related to the incident involving the mother and paternal grandmother in which a teacup was thrown. It was submitted that the trial Judge had “unduly emphasised” that incident as it was submitted she had an assault committed by the mother as a “17 year old juvenile” in respect of which a good behaviour bond was imposed and no conviction was recorded.
There followed a series of complaints with respect to the line of cross-examination adopted at trial by counsel for the father in respect of which the trial Judge was criticised for having generally given “free reign”. Curiously it was then submitted that the “fishing-based attempt to crudely paint a picture of a long-term psychological/psychiatric instability” had “plainly failed as aside from some pre/post natal depression, the trial Judge correctly concluded that there was no history of psychiatric illness” but that “unfortunately however some of the mud appeared to stick and may have clouded or coloured her Honour’s assessment of the real issues”.
These criticisms of the trial Judge are in our view utterly without foundation, as the concession to which we have referred make plain. It is, without more, unfair to make the allegation contained in the concluding sentence of this paragraph of the outline. It is significant that it is not suggested what “mud” was alleged to have “stuck”, and that the highest the submission is put is that whatever that mud was “may have clouded or coloured” her Honour’s thinking, albeit in ways that are not even hinted at. To say more about this aspect of the complaint would be to dignify it to an extent which is quite unjustified.
Counsel for the ICL made submissions with respect to these grounds. In relation to Ground 6 it was submitted that the “finding on this issue failed to take a number of relevant matters into account”, including that the “paternal grandmother had a very significant role as caregiver to E since May 2005, in part necessitated by the father’s employment at a distant mine and extending to when the father was present in the paternal grandparents’ home”.
It was further submitted that the trial Judge failed to take into account:
In January 2004 the mother and E left the home of the maternal grandmother and travelled to live with the maternal grandfather and mother’s brother in M in Queensland.
A similar submission was made with respect to the father’s intention “to seek different employment in D” of which “no specifics were given” and the consequential decrease of the father’s “reliance on the paternal grandmother and grandfather”.
It was thus submitted to have been clear from the father’s evidence that there would be further and significant change for E but that the learned trial Judge failed to take that evidence into account in the exercise of her discretion. Beyond asserting in oral submissions that the trial Judge had failed to have regard to, or misunderstood evidence with respect to the father’s intentions, no further specific submissions were made in support of these complaints.
A balanced reading of the trial Judge’s reasons for judgment does not confirm that undue weight was placed on “relatively trivial events”. Moreover, the positive findings of fact made by the trial Judge with respect to the mother’s relationship with the child, her history of primary care and capacity to parent the child are all inconsistent with the “trivial events” referred to by Counsel for the mother having been so considered by the trial Judge. We need say no more about that aspect of these complaints. The father’s future arrangements however do require consideration. It is clear from the submissions of both the Counsel for the mother and for the ICL that considerable reliance was, and is, placed upon the reality that the father’s arrangements would change in the future.
It is instructive to have regard to the findings of the trial Judge in relation to the issue, it not having been suggested in support of this ground that any such finding was not reasonably available to her on the evidence.
Her Honour identified as one of “the main issues” the “capacity of the father to provide care for E”. She then identified, accurately, there is no doubt, the father’s current arrangements for the care of E, which were that he was “currently employed at a mine and is only at home in D every second week. In his absence E has been cared for by his mother and father”.
Her Honour further recorded that “the father proposed he would give up his work at the mine and obtain employment as an electrician in D. He proposed that he would thereafter reside in a house (which is currently rented) which he owns in a D suburb. His mother and father willingly indicated that they would give him what assistance he needed in caring for E”. E, as her Honour noted, had been “regularly attending preschool” and “was happy and settled” and made friends in her present environment in D.
Later in her judgment the trial Judge recorded that “one of the significant factors which needs to be taken into account is the possible impact on E in the change particularly as it affects her relationship with her parents”. Her Honour then recorded:
I take into account that since May 2005 E has either resided with her father or resided on a five week about basis with her father and mother. There is no evidence that she has been significantly affected in her development nor in her relationships with those people closest to her. The father’s proposals involve a change in accommodation and care in the extent that he proposes to move to his own home and reduce his reliance upon the assistance of his mother and father in caring for E.
Reference was then made to the mother’s move to new accommodation in November 2005, her relationship with a man who spends “approximately half the week sleeping at her home” and the evidence regarding the impact of that change in circumstances upon E.
Against that background, the trial Judge concluded that the “father had a greater capacity to provide for the needs of E”, and that he has “a more appropriate attitude towards the responsibilities of parenthood including the responsibility to provide an appropriate role model”.
Her Honour then again acknowledged that E’s “primary attachment was with the mother” and referred to the evidence of the Family Report writer that there was a “risk that E would be affected if the primary care of the mother was disrupted”, although E had adjusted well and was developing well notwithstanding the disruptions which had occurred since May 2005.
It is clear from the numerous passages in her Honour’s judgment that the trial Judge’s conclusion was influenced by the positive findings with respect to the capacity of the husband’s parents to support him in his care of E in the future and ability to preserve the child’s relationship with her mother. Her Honour was under no misapprehension as to what the father’s proposal was.
The case which her Honour was obliged to decide was finely balanced, and could have been decided in favour of either party. The fact that it could have been decided in favour of the mother is not a basis for appellate intervention. The trial Judge was well aware what the father’s proposal did involve a significant change in the care of E. Her Honour was clearly aware that the father had not had the sole care of the child at any time. Nothing to which we have been referred suggests that her Honour erred in finding that the father’s proposed arrangements would not be suitable for the child, a conclusion with which the Family Report writer agreed.
We have earlier dealt with challenges to the trial Judge’s conclusion with respect to the comparative ability of each parent to provide “stability” for the child. The trial Judge carefully detailed within the context of Section 68F the factors relevant to the determination she had to make. That exercise was undertaken against the background of a careful and detailed review of the evidence and clear findings in relation to disputed issues of fact, no challenge to any of which is relevant for present purposes, or successful in any event.
In CDJ v VAJ (1998) FLC 92-828; (1998) 197 CLR 172 Kirby J said:
A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another [Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 cited in G v G (Minors: Custody Appeal) [1985] FLR 894 at 898, 903]. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong [House v The King (1936) 55 CLR 499 at 504 – 505]. Obviously, what is "plainly wrong" will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power [So called Wednesbury unreasonableness: Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223]. The reference to "plainly wrong" is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions [In the Marriage of Lea (1981) 7 Fam LR 553 at 555 – 556; G v G (Minors: Custody Appeal) [1985] FLR 894 at 897 – 898]. This is an inescapable feature of the nature of this jurisdiction [In re K (Infants) [1965] AC 201 at 218 – 219; In the Marriage ofAbdo (1989) 12 Fam 861 at 870].We are thus not persuaded that a basis for appellate intervention has been established.
Grounds 8, 9, 10 and 11 of the Notice of Appeal were not pursued. It remains to consider ground 12.
Ground 12
Ground 12 provided:
That Her Honour erred in failing to have regard for the comparative financial position of the parties and erred in making orders that the parties share equally the costs of the child’s travel between the parties.
In support of this complaint it was submitted that:
Ground 12 (Costs shared equally for contact).
The mother was unemployed at the time of the hearing. By contrast the father is a skilled tradesman with a high income obtained from working in the mining industry. Order 10 that the parties share equally in the cost of transport arrangement for contact between the child and mother is unrealistic and unworkable. The father has the means to pay for this and the best interests of the child strongly suggest that contact should occur more frequently than currently ordered and with him to pay.
On behalf of the father a number of submissions were made, directed primarily to the substance of the contact order made by the trial Judge rather than to the issue of the costs of such contact, to which this ground appears primarily directed. Significantly however it was submitted that “in the circumstances where the evidence revealed that the father was employed and the mother was clear in her evidence in chief given at the trial, that she intended to find employment, it was entirely appropriate, and consistent with E’s best interests that Her Honour would order that the costs of contact be shared.”
On behalf of the mother the issue was rather more extensively canvassed in submissions in reply than it had earlier been. It was then submitted to be of significance that the evidence revealed the mother to have last had “paid employment in January 2002” and that there was “no evidence that she had a qualification with the evidence referring to her prior work in call centres”.
It was further submitted that:
Considering that the father worked full-time as an electrician in a remote mine in a well paid position, his capacity to earn was clearly significantly greater than the mother’s. The orders made as to costs were not in the child’s best interests because of the significant financial difficulties the mother was bound to face and a proportion of, say, at a minimum 90% costs to be born [sic] by the father would have been realistic.
The Court has not been directed to any part of the transcript of the trial in which the issue of the costs of contact was agitated. The Court was directed to a number of parts of the record, including the submissions on behalf of the mother at trial in relation to contact. In the course of Counsel’s 15 page written submissions to the trial Judge, under the heading “contact orders proposed by the mother”, the contact proposed by the mother in the event of the child living with the father was detailed. Nothing was then said about the cost of such contact.
Detailed minutes of order were submitted to the learned trial Judge by Counsel for the child representative, such minutes appearing in the Appeal Books.
The issue of contact was there extensively addressed. It was sought by Counsel for the Separate Representative that the child reside with the mother and the father have contact on the basis that until the father commenced to pay Child Support he “bear the cost of the child travelling to and from Contact” with him and that upon his commencing to pay Child Support the parties “share equally in the cost of transport arrangements for contact between the child and the father”. The minutes did not address the question of the cost of Contact should, contrary to the submission of the Counsel for the Child Representative, as in fact transpired, the trial Judge determine that the child should live with the father.
The Court was directed to the evidence of the father that he was currently earning approximately $80,000.00 per annum but that his income were he to move to D would be between $45,000 and $50,000 per annum.
The pleadings, case outline, submissions and other material during the course of the trial suggest to us that the question of the cost of travel for the purposes of contact was never agitated before the trial Judge. In those circumstances, to criticise the learned trial Judge for failing to make a particular order in that regard, and or to give detailed reasons for doing so is unfair. It is clear, that on such evidence as there was, the father appeared to have been in a superior financial position to the mother, and likely to continue to be so in the foreseeable future, even if his earnings decreased by about 50 per cent as a consequence of moving to D. On the other hand, there was nothing in the evidence to which we have been referred to suggest that the father would be likely to receive any financial assistance from the mother by way of Child Support. In the circumstances, it cannot be said that the trial Judge’s Order was one which fell outside the ambit of a reasonable exercise of an undoubtedly legitimate discretion.
It was submitted on behalf of the mother that the trial Judge was obliged to explore the financial circumstances of the parties. With that contention we are unable to agree. In circumstances where no one at trial raised issues in relation to financial matters associated with the cost of contact, her Honour was not obliged to address those issues beyond the extent to which she did in her reasons for judgment.
It is instructive to refer to the reasons her Honour provided in that regard as it is not suggested that the findings there detailed were not reasonably open to her. Her Honour found that “the mother had indicated her intention to find employment which will assist her in contributing towards the cost of travel”. She further found “the father has well paid employment and expects to be employed as an electrician. He will have the capacity to contribute towards the costs of travel”.
Although her Honour did not expressly say so, or need to in the circumstances of this case, the combination of the findings to which we have referred, the way in which the issue was dealt with, or not dealt with perhaps more correctly, at trial and the reality that the father would bear the greater proportion of the child’s living expenses in circumstances where there was no evidentiary basis for concluding that he would receive Child Support in the future rendered explicable and justifiable the trial Judge’s Orders with respect to the cost of contact. We thus do not consider this challenge to have merit.
Although not falling within the terms of the complaint raised by Ground 12 of the Notice of Appeal, Counsel for the mother submitted that the order for contact made by the trial Judge was “inadequate given the child’s young age and primary attachment”.
In response it was submitted on behalf of the father that the orders sought by the mother in her Notice of Appeal in the event of the appeal being allowed were “identical in terms of the quantity and frequency of contact” which the order complained of had provided.
As the learned trial Judge clearly perceived, and noted in her reasons for judgment, with one parent living in B and the other in D, whatever the outcome of the issue of residence, the child’s contact with the other parent would be comparatively infrequent.
To the extent that this complaint can be accommodated within Ground 12, or perhaps another ground considered earlier, we do not consider that it has merit.
Whilst these overlap our discussion of individual grounds, we shall shortly respond to the several paragraphs of “conclusions” advanced by Counsel for the mother.
It was submitted:
The trial judge’s decision to order that the child reside with the father was based on his perceived stability and greater capacity as a role model. The decision was not adequately explained by reasons and it flew in the face of compelling evidence from the Family Report writer. Her Honour’s decision to reject that assessment was itself not accompanied by adequate reasons.
We have earlier rejected the challenge to the adequacy of the trial Judge’s reasons. In our view the trial Judge’s reasoning process was discernable and has not been shown to have been “inadequate” as that term is to be understood in the light of the authorities to which we have earlier referred. To submit that her Honour’s decision “flew in the face of compelling evidence from the Family Report writer” though colourful, is not an accurate statement of the facts or a complaint that has been made out. Her Honour, having carefully considered the expert opinion evidence of the Family Report writer, as she was obliged to do, rejected the recommendation made by the Family Report writer. The evidence of the Family Report writer was not “compelling”, for reasons which the Trial Judge gave and which we have concluded to have been both adequate and reasonably open to her.
It was then submitted:
The fundamental significance of primary attachment in a young child is well known. No failing in the parenting and the provision of care by the mother was identified or relied upon by the trial judge which could have justified such a momentous change in circumstances. None was ever alleged by the father and his family.
This complaint proceeds on a number of false premises. The case was not decided on the basis which the complaint assumes that it was. The complaint appears to assert that the best interests of a child are primarily determined by reference to the child’s “primary attachment”. That is not the law. The basis upon which the “fundamental significance” of a child’s primary attachment is asserted is not apparent. Nor is the basis upon which such “fundamental significance” is said to be “well known”. This complaint lacks substance.
It was then asserted:
The failure of the trial judge to accept the overwhelming evidence that negative attitudes were held particularly by the paternal grandmother towards the mother and that these constituted a significant threat to the wellbeing of the child was a fundamental mistake of fact.
We have earlier dealt with the substance of this complaint. The evidence was not “overwhelming” in relation to the issue. The trial Judge concluded as she did, for reasons we have not found to be inadequate or unsustainable. This challenge fails.
The remaining complaints we have earlier dealt with, and need say no more.
Conclusion
No ground of appeal having been established, and orders varying the time the child is to spend with the mother having been made by consent earlier this year, it remains only to dismiss the appeal. Although so doing may be an unnecessary and academic exercise, we will provide for written submissions in relation to costs.
I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 24 May 2007
5
6
8