GONG & WEI
[2017] FamCAFC 55
•4 April 2017
FAMILY COURT OF AUSTRALIA
| GONG & WEI | [2017] FamCAFC 55 |
| FAMILY LAW – APPEAL – CHILDREN – Interim parenting orders – Where the mother appeals against interim parenting orders which provide for equal shared parental responsibility, remove the previously ordered supervision of the children’s time with the father and increase that time – Where the primary judge did not err in her consideration of family violence allegations – Where the primary judge’s obligation to consider s 60CG and s 61DA of the Family Law Act 1975 (Cth) was met – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the mother seeks to adduce the Children and Parents Issues Assessment of the Family Consultant provided subsequent to her Honour’s Orders – Where the further evidence would not have produced a different result from that under appeal – Application dismissed. FAMILY LAW – APPEAL – COSTS – Mother ordered to pay the father’s costs of the appeal – Where the mother seeks to stay any costs orders made against her pending determination of the property proceedings – Where there were no grounds for making such an order – No order made. |
| Family Law Act 1975 (Cth) ss 60CG, 61DA |
CDJ v VAJ (1998) 197 CLR 172
| Eaby & Speelman (2015) FLC 93-654 |
| APPELLANT: | Ms Gong |
| RESPONDENT: | Mr Wei |
| FILE NUMBER: | SYC | 5655 | of | 2015 |
| APPEAL NUMBER: | EA | 177 | of | 2016 |
| DATE DELIVERED: | 4 April 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Forrest JJ |
| HEARING DATE: | 9 February 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 September 2016 |
| LOWER COURT MNC: | [2016] FamCA 830 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPELLANT: | Barkus Doolan |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney SC and Mr Dura |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
Orders
The appeal be dismissed.
The Application in an Appeal filed 21 December 2016 be dismissed.
The appellant mother pay the costs of the respondent father of and incidental to the appeal as agreed or, failing agreement, to be assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gong & Wei has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 177 of 2016
File Number: SYC5655 of 2015
| Ms Gong |
Appellant
and
| Mr Wei |
Respondent
REASONS FOR JUDGMENT
By her Amended Notice of Appeal filed 21 December 2016, Ms Gong (“the mother”) appeals against interim parenting orders made by Stevenson J on 30 September 2016. She originally appealed against other orders made by her Honour, but only the appeal against the interim parenting orders was pressed before this Court.
At the time of the hearing of the matter by the primary judge (5 September 2016) there were consent interim parenting orders in place that had been made on 20 April 2016. Those orders provided, relevantly:
1.Without admissions, the children… spend supervised time with the respondent father each Wednesday from 4.00 pm to 7.00 pm and each Sunday from 2.00 pm to 7.00 pm.
2. For the purposes of Order 1:
a. the children’s time with the respondent father be supervised by Connecting Families
b. the respondent father pay the costs of supervision
c. the supervised time on Wednesdays take place at the former matrimonial home at [B] Street [Suburb C]
d. the supervised time on Sundays commence and finish at [B] Street [Suburb C] but otherwise take place in locations at the discretion of the supervisor
e. that the applicant wife be restrained from remaining in or near [B] Street [Suburb C] during the children’s time with the respondent father
f. that the respondent father’s parents be permitted to accompany the respondent father during the children’s time with him
g. that the applicant wife do all things necessary to ensure the children’s time with the respondent father is not interrupted by any of her relatives and friends and the supervisor is specifically authorised to deny access to the house at [B] Street [Suburb C] to any persons other than the housekeeper, the respondent father and the respondent father’s parents
h. that the applicant wife ensure that [B] Street is vacated by everyone other than the housekeeper and the children at the commencement of the children’s time with the respondent father
i. that if the respondent father takes the children out on Sundays, he will send a text message to the applicant wife advising where he is taking the children.
At the hearing before her Honour, the contested parenting applications were but part of a suite of issues to be determined, including property settlement, spousal maintenance, child support departure, and injunctions. In the parenting proceedings, the father was seeking a variation of the existing parenting order. Specifically, he sought an express conferral of equal shared parental responsibility for the three children, for the children’s time with him to be increased, and supervision to be dispensed with.
For her part, the mother sought the adjournment of the hearing of the father’s application to vary the parenting order until after the family’s attendance upon a Family Consultant in the Child Responsive Program scheduled for 4 October 2016, with a continuation of the existing interim parenting order in the meantime. She also sought the appointment of an Independent Children’s Lawyer.
At the hearing, her Honour discharged the April consent parenting orders and made a further interim parenting order. Relevantly, that order provided that:
…
(3)The parenting orders made on 20 April 2016 are discharged as at a date three (3) weeks from the date of these orders.
(4)(4.1) The parties will have equal shared parental responsibility for the children…
(4.2)The children will live with the mother.
(4.3) After the discharge of the orders made on 20 April 2016 the children will spend time with the father as follows:
(4.3.1) for a period of three months from the conclusion of school or 3.00 pm until 7.00 pm on Wednesday and from 3.00 pm until 7.00 pm on Saturday
(4.3.2)thereafter and for a period of three months, from the conclusion of school on Wednesday to the commencement of school on Thursday and from 12.00 noon on Saturday until 7.00 pm on Sunday during school term time and from 9.00 am until 7.00 pm on Wednesday and from 3.00 pm on Saturday until 7.00 pm on Sunday during school holidays
(4.3.3)thereafter, from the conclusion of school on Friday until the commencement of school on Monday each alternate weekend during school term time and for half of all school holidays.
The mother seeks that should the appeal succeed, the primary judge’s orders be set aside and the applications for interim parenting orders be remitted for
re-hearing by a trial judge of the Court other than the primary judge.
Mr Wei (“the father”) opposes the appeal.
Background
The mother was 27 years of age and the father 32 years of age at the time of the hearing before the primary judge. They commenced cohabitation in July 2007 and married in 2009. There is disagreement as to the date of their final separation. The mother says it was in August 2015 and the father says it was in February 2016. The determination of that issue is not relevant to this appeal.
There are three children of the parties’ relationship. N was seven years of age, O five years of age and P four years of age at the time of the hearing before the primary judge. Since their parents’ separation, the children have lived with the mother.
The mother commenced proceedings in the Family Court in August 2015 but discontinued them on 15 December 2015. She commenced further proceedings in respect of parenting and financial matters on 29 February 2016.
The hearing before the primary judge
At the hearing before her Honour, the mother was represented by counsel and the father was represented by senior counsel. At the commencement of the hearing, counsel for the mother handed the primary judge a document headed “Minute of Orders Sought by Wife”. It included, under the heading “Parenting”, a proposed order “[t]hat the husband’s Application to vary the Interim Orders shall be adjourned with liberty to restore the matter to the list after the parties have attended the Child Responsive Program on 4 October 2016”.
When counsel for the mother was making his oral submissions on the parenting issues, he urged the Court to “proceed very cautiously” and submitted that it was “premature to proceed beyond the current supervised time arrangements pending the child responsive program”, and that the Court would, thereafter, obtain “some initial assistance” in “how best to further deal with the parenting arrangements” for the three young children (Transcript of Proceedings, 5 September 2016, pages 11 – 12). Notably, he did not expressly urge her Honour to adjourn the proceedings without entertaining any further argument as to the proper interim parenting order to be in place and proceeded to refer to the allegations of violence and abuse that the mother made against the father as evidence supporting the cautious approach he urged upon the Court. He did, however, clearly submit that the requirement for supervision of the children’s time with the father should not be lifted before the child responsive interview had taken place.
The allegations of family violence made by the mother are summarised as follows:
·In 2010 she heard the father threaten to hit N and then say to her (the mother) “if you stand in the way, I will hit you too”. N was one year old at the time.
·In 2012 the father threw a pot of boiling water at the mother and the children resulting in O suffering a burn on her shoulder which left a scar. O was one year old at the time.
·In about 2013 the father physically disciplined N by smacking him on the bottom multiple times with force after which the child urinated in his own clothing. N was four years old at the time.
·In August 2014 the mother observed the father to kick P in her back and heard her cry out in pain. P was two years old at the time.
·In early 2015 the mother observed the father hit P with a plastic pole from a golf club set on her legs and thighs, after which the mother observed bruising and heard the child cry uncontrollably. P was three years old at the time.
·In February 2015 the mother observed the father attempt to kick P in her back but when the child moved he inadvertently kicked the maternal grandmother in the shin, from which she suffered bruising. P was three years old at the time.
·On at least three occasions over two years the father forced P to stand up straight in her bed when she refused to go to bed and told her that she was not permitted to go sleep.
·When O was two years of age the mother observed the father slap her across the face.
·The mother observed the father verbally abusing the children and shouting at them in an aggressive fashion no less regularly than weekly and heard him say demeaning and offensive things to the children.
·The mother claims to have been the subject of regular verbal abuse from the father throughout the marriage on not less than a weekly basis and also to have been subject to controlling behaviour by him.
·The father speaks to the children in a disparaging way including having told O that her mother is dead.
·The father regularly slammed doors and threw objects about the house in anger.
In affidavit evidence, the mother also deposed to the following:
20.On 18 August 2016, I was informed by Ms…, Preparatory Co-Ordinator at [[P’s] school] that [P] had made a disclosure to her at the school that, “My dad has been hitting me on the head”.
…
23. Subsequent to my discussion with the school, I received a telephone call from Family and Community Services (FACS). I was advised that they had received a notification concerning [P]. I was not told who had made the notification.
(Affidavit of the Mother filed 1 September 2016, p 27)
Counsel for the mother, in his oral submissions at the hearing before her Honour, also referred to that evidence about the child’s disclosure at school as being “even more cause for concern” in the matter.
The father made a general denial of all of the allegations of violence and abuse made against him by the wife, asserting that they were made up.
Counsel for the mother made no submissions to the primary judge in respect of the issue of parental responsibility; the presumption that must be applied in respect of parental responsibility when making a parenting order; or the provisions of the Family Law Act 1975 (Cth) (“the Act”) that provide for the presumption to be rebutted or not to apply in certain circumstances (s 61DA).
Senior counsel for the father, at the commencement of his oral submissions, acknowledged that the mother was seeking to adjourn the proceedings and to have the existing interim order remain in place. However, in responding to the oral submissions made for the mother, he joined issue as to the proper interim parenting order to be in place and went on to submit, referencing notes of the supervisors of the children’s time with the father that the father had adduced into evidence, that there was a “plethora” of independent evidence of the “true nature of the relationship” between the father and the children, before then submitting that the father’s proposal was “superior” to the mother’s proposal “unless there is real substance to the allegations that he’s in some way an unacceptable risk to these children.”
Senior counsel for the father went on to submit that the Court could be satisfied that making orders in accordance with the father’s proposal, or something substantially approaching it, would be in the children’s best interests.
Thus, the issue before her Honour was whether, at that point in time, a continuation of the supervision of the children’s time with the father was required to overcome any unacceptable risk of harm to the children presented by the father if that time was unsupervised.
The primary judge’s reasons
Her Honour began her consideration of the parenting matter by setting out the competing proposals for parenting orders under the heading “Interim Parenting Issues”. Her Honour set out those competing proposals, including the mother’s proposal that the supervision of the children’s time with the father continue, albeit without expressly acknowledging that the mother had sought an adjournment of the father’s application until after the parties had attended at the Child Responsive Program interviews ([55]-[56]).
Her Honour observed that the principal issue in the parenting dispute was whether the children’s time with the father needed to be supervised. Her Honour further observed that the mother relied on the allegations that the father had directed physical violence and verbal abuse at the children in support of her position that supervision of the children’s time with the father should continue. Her Honour acknowledged the particulars of such allegations and the historical nature of some of the alleged incidents before going on to record that all of the allegations were denied by the father ([57]).
Her Honour then stated, incorrectly, we accept, that the mother alleged that P had complained to her teacher on 18 August 2016 that her father had been hitting her on the head. In fact, the mother’s evidence was that the teacher had told her on 18 August 2016 of the child’s report that her father “had been hitting” her on the head ([58]). There was no evidence as to exactly when the child made the comments to the teacher.
After referring to that evidence, her Honour went on to express doubt that a paid supervisor would have permitted the father to hit the child in his or her presence. Her Honour then referred to other evidence of the mother that teachers at P’s school had reported behaviour on P’s part that caused the mother concern, as well as evidence of the mother that she had observed the children reacting well after spending time with the father before her Honour expressed the view that “there are a number of potential explanations for [P’s] behaviour” ([58]).
Her Honour observed that the parties’ respective positions reflected mutual concessions that the children would benefit from a meaningful relationship with each parent before saying:
60. I am not satisfied that the mother has established that there exists a need to protect the children from physical or psychological harm or exposure to family violence in the unsupervised care of the father…
Her Honour pointed out that there was no independent evidence as to the children’s views about the time they spend with the father, but then observed that their views would carry “no significant weight in any event” because of their young ages ([61]).
Her Honour then discussed the evidence, adduced by the father, of the supervisors’ recorded observations of “warm, loving and comfortable interactions between the children and the father”, and she directly quoted some of those recorded observations before noting that no supervisor had reported any matter of concern in relation to the father’s conduct or any apparent fear or reticence on the part of the children when seen in his care ([62]-[64]).
Her Honour expressed the view that those supervisors’ notes were “indicative” of the need to foster and encourage the children’s relationships with the father rather than curtailing them ([65]).
Her Honour then said:
66.I am not satisfied that the evidence leads to a conclusion that the presumption of equal shared parental responsibility has been rebutted or should not apply because the father has engaged in family violence. Accordingly I will order that the parties have equal shared parental responsibility…
Her Honour then discussed matters pertaining to the time the children were to spend with the father and decided to order a move to unsupervised time, increasing in duration over time ([67]-[69]).
THE APPEAL
The mother makes three broad challenges to her Honour’s orders. The first asserts errors of principle in the way in which the disputed issue of family violence was considered in the determination of the interim parenting orders. The second asserts error in the evaluation of the mother’s evidence. The third asserts error in failing to adjourn the application for interim parenting orders until the Child Responsive conference had been concluded or, in the alternative, in failing to give any or any adequate reasons for declining to adjourn the hearing. The first two contended errors were argued together and we will address them in the same way.
The family violence allegations and s 61DA(3)
It was argued for the mother that in addressing the allegations of violence, and how they might impact upon the decision that she had to make, her Honour failed to have regard to the provisions of s 61DA(3) of the Act as she was required to do.
Relevantly, s 61DA provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Senior counsel for the mother further contended that her Honour erred in not at least considering s 61DA(3) of the Act, particularly having regard to the mandatory terms of s 60CG(1)(b).
Section 60CG provides:
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In Salah & Salah (2016) FLC 93-713 (at [37]) the Full Court observed that it is very common in interim parenting proceedings that factual disputes “cannot be determined without the evidence being tested in the context of a trial”. As the Full Court said in Goode and Goode (2006) FLC 93-286 (at [68]) the procedure for making interim parenting orders is an abridged process within which the scope of the enquiry is “significantly curtailed”. The Full Court also observed (Goode, [68]) that “[w]here the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case”. The less contentious matters, such as the agreed facts and issues not in dispute are what the Court will generally look to in determining interim parenting orders.
That said though, such an approach does not mean that issues of disputed fact must be disregarded in interim proceedings or the case determined solely by reference to the agreed facts (Eaby v Speelman (2015) FLC 93-654 at [18]). However, the need for findings in disputed interim proceedings to be “couched with great circumspection” was stressed in Eaby v Speelman.
Thus her Honour, in considering the application and while clearly conscious of the dispute as to the allegations of violence, took into account other evidence before her in the determinative process.
It was also argued that her Honour’s error in finding that the date on which P complained to the teacher was 18 August 2016 rather than it being the date on which the mother was informed of the child’s comments by the teacher, led her Honour to wrongly diminish the weight of the violence allegations in the determinative process.
We do not accept this challenge. Her Honour’s simple error in respect of what the mother said had happened on 18 August 2016 did not derogate from the appropriateness of the inference that the child’s complaint was most likely directed to the time she was spending with the father under supervision. We are fortified in that finding by reference to the evidence of the mother that after she had been informed of P’s disclosure by the school she received a call from the Department of Family and Community Services (“FACS”) and was advised that FACS had received a notification concerning P. Although the mother said she was not told who had made the notification, counsel for the mother in the hearing before her Honour made the following submission:
One can obviously understand where that notification has come from, so it’s sufficiently serious that the school has reported the incident to Family and Community Services (Transcript of Proceedings, 5 September 2016, page 11).
It is not unreasonable, in these circumstances, for her Honour to have accepted that the school notified FACS of P’s disclosure. It is also not unreasonable to accept that the school would have notified FACS and the mother of the child’s disclosure in a timely fashion after such disclosure was made. That would make it likely that the child’s disclosure was made to the school relatively close to 18 August 2016, if not on that day.
The child P was four years old in August 2016. The supervision of her time with her father commenced in April 2016, four months before the time the said disclosure to the school was most likely made. We are not satisfied that it was unreasonable and not open to her Honour to have inferred that the child’s reported disclosure related to a time when she was in the care of her father under supervision or to have considered it “most unlikely” that a paid, independent supervisor would have permitted the father to hit the child.
We do not accept that the mistake of fact made by her Honour was material or led her into any error in her evaluation and weighing of the evidence. Considering that both parents conceded that the children would benefit from a meaningful relationship with each parent and the fact that the mother was not urging that the children should spend no time with the father, her Honour clearly also balanced and weighed the factual matters alleged by the mother with the observations of the independent, professional supervisors reporting upon the “comfortable and loving interaction” between the children and their father when deciding on the proper interim parenting order to make. Her Honour was obliged to do that in the discretionary determination of what was in the children’s best interests. We do not accept that error in her Honour’s evaluation of the evidence has been demonstrated (De Winter & De Winter (1979) FLC 90-605 at 78,091 – 78,092).
We also consider it is quite clear that her Honour had regard to the obligation imposed by s 60G(1)(b) of the Act, although she did not expressly refer to the section, by her expression of a lack of satisfaction that there was actually a need for a continuation of supervision of the children’s time with their father, notwithstanding the disputed allegations of violence. Similarly, we do not accept the submission that her Honour did not consider whether in the circumstances she would find the presumption of equal shared parental responsibility not to apply in accordance with s 61DA(3) of the Act. Although her Honour did not expressly refer to that subsection, or any of the subsections of s 61DA, that in itself is not sufficient to establish a failure to consider the matters contained therein. Her reasons clearly demonstrate that her Honour took all of the matters contained in the relevant statutory provisions into account.
Her Honour acknowledged and discussed the mother’s allegations and the father’s denials, as well as the other independent evidence of observations of the children’s relationships and interactions with their father. Her Honour then expressly observed that she was not satisfied that the evidence led her to a conclusion that the presumption of equal shared parental responsibility was rebutted (s 61DA(4)) or that the presumption should not apply because of a belief that the father had engaged in family violence (s 61DA(2)). Clearly then, she considered s 61DA, albeit without direct reference to it. Consequently, her Honour went on to determine that she would order that the parents share equally the parental responsibility for the children.
Clearly also implicit in those reasons, is a consideration of
s 61DA(3) of the Act. As her Honour has:
(i) determined the presumption provided for in s 61DA(1) has not been rebutted (s 61DA(4)) or shown not to apply (s 61DA(2));
(ii) not expressed the view that she considers it would not be appropriate in the circumstances surrounding the making of the interim parenting order for the presumption to be applied (s 61DA(3));
(iii) gone on to order equal shared parental responsibility; and
(iv) expressed a lack of satisfaction that supervision of the children’s time with the father is necessary to ameliorate unacceptable risk,
then the obligation to properly consider the legislative provisions of s 60CG and s 61DA, including s 61DA(3), has been met.
There is no obligation on a trial judge in determining an interim parenting order to find that the presumption provided for in s 61DA(1) of the Act has been rebutted or shown not to apply, or to find that it would not be appropriate to apply it, simply because allegations of family violence have been raised by one parent against the other and are not able to be determined definitively one way or the other. Of course, such allegations must be considered carefully, particularly having regard to all the provisions of s 60CG and s 61DA, but such allegations are but part of the evidence that must be evaluated in determining the proper order to make in the children’s best interests and the part they play in the determination is a matter within the discretion of the trial judge.
As was submitted by senior counsel for the father on this appeal, it was perhaps unsurprising that her Honour’s determination on parental responsibility ultimately evinced satisfaction that it was in the children’s best interests for an equal shared parental responsibility order to be made given that counsel for the mother at the hearing made no submission to the contrary or at all on the issue of parental responsibility.
The challenge to her Honour’s order on these grounds is not made out.
The adjournment application
Senior counsel for the mother submitted that her Honour erred in that she did not deal with the mother’s application that the interim hearing be adjourned and, further, gave no reasons for not adjourning it. He submitted that had her Honour adjourned the hearing she would have had the benefit of the report of the Family Consultant which “gave forth direct and independent accounts of family violence issues raised by the children”.
Whilst an order adjourning the competing interim proceedings until after the family had been interviewed in the Child Responsive Program was included in the mother’s Further Amended Application in a Case filed on 1 September 2016 and in the draft Minute of Orders counsel for the mother handed to the Court, he did not expressly ask for the matter to be adjourned without further consideration when he addressed her Honour and made his submissions.
At the hearing before her Honour, the oral submissions of counsel for the mother were directed towards persuading her Honour that the existing interim parenting order plainly should continue in force pending further assistance being gained from a report that would emerge out of the Child Responsive Program. In the circumstances, where her Honour determined that on an interim basis it was in the children’s best interests for their parents to equally share parental responsibility for them and for the children to commence spending time with their father without the requirement for such time to be supervised, her Honour has clearly dealt with the position orally advanced to her by counsel for the mother, albeit by deciding it against him. It is difficult to find error with her Honour’s approach when counsel did not press the foreshadowed adjournment application but proceeded directly in oral submissions to the issue of the children’s time with the father. In our view, her Honour was entitled to conclude, as she clearly did, that the application was not pressed.
Application to adduce evidence
The mother made an Application in an Appeal to adduce evidence at the hearing of the appeal of the Children and Parents Issues Assessment of the Family Consultant, Mr D, released by the Child Dispute Services Division of the Court in 2016.
In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ considered the power of this court to admit further evidence. At 201 their Honours observed that the exercise of the power is remedial in nature, to give the Full Court discretion to receive further evidence where “that evidence, if accepted, would demonstrate that the order under appeal is erroneous”.
Though a principal purpose for which the discretion may be used is to allow the receipt of further evidence in circumstances where the Full Court is satisfied that the evidence would have produced, or at a new hearing would now produce, a different result from that under appeal, the evidence may nevertheless be adduced to “buttress the findings already made”(CDJ v VAJ, [109]).
Senior counsel for the mother submitted that the admission of the report was relevant because it provides an independent report of complaints by one of the children in relation to family violence and the evidence of those complaints by the child had it been before her Honour would have had the effect that the primary judge would not have removed the requirement that the father’s time with the children be supervised.
The report noted that the youngest child told the Family Consultant that she is “sometimes scared of [the father]” because he has hit her, though she was reported to have been unable to provide details about when she had been hit by him. At the same time, the Family Consultant reported that both the older children expressed a desire for more time with the father, without saying much that otherwise advanced either parent’s case in respect to the issue of violence against the children.
We do not accept that the report, if admitted, would have caused her Honour to come to a different conclusion about the supervision of the time with the children and thus it will not be admitted.
This ground of appeal is not made out.
Conclusion
Having found no merit in any of the challenges to her Honour’s order the appeal must be dismissed.
As the appeal has been unsuccessful, we are satisfied that the appellant mother should pay the respondent father’s costs of the appeal. Although senior counsel for the mother submitted that if a costs order is made against the mother it should be stayed pending determination of the property proceedings, we are not satisfied that there are grounds for such a stay and we will not make such an order.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Forrest JJ) delivered on 4 April 2017
Associate:
Date: 4 April 2017