GRAINGER & GRAINGER

[2019] FamCAFC 145

FAMILY COURT OF AUSTRALIA

GRAINGER & GRAINGER [2019] FamCAFC 145

FAMILY LAW – APPEAL – PARENTING – Where the orders made by the trial judge deliberately provided for no face-to-face contact between the father and the child – Where the father appeals on multiple grounds including procedural fairness and alleged errors of law – Where the father alleged the orders were based on inconsistent findings and findings not supported by evidence – Where the trial judge conducted the trial within the meaning of Division 12A of Part VII of the Family Law Act 1975 (Cth) – Where the trial judge gave adequate reasons – Where findings made by the trial judge were open on the evidence – Where the appellant failed to demonstrate any error in the manner that the trial judge dealt with the evidence or exercised discretion – Where the Full Court accepts the trial judge’s findings closely resembled the expert’s evidence and were open – Where the Full Court considers the orders made by the trial judge were guided by the paramountcy of the child’s best interests – Where the father failed to demonstrate procedural unfairness – Where no appealable error is demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the trial judge invoked the slip rule to make clear that an order made by a judge in 2017 did not operate to suspend the property settlement order made in 2015 – Where the father’s appeal is limited to his complaint that the trial judge corrected an order made by another judge – Where no error is established – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal is wholly unsuccessful – Application by the respondent for the appellant to pay her costs of and incidental to the appeal in a fixed amount – Where the respondent failed to comply with orders made by the Appeals Registrar to file and serve a cost schedule – Where factors under s 117(2A) of the Family Law Act 1975 (Cth) are considered – Where the Independent Children’s Lawyer did not seek a costs order against the appellant – Where there is no order as to costs – Application dismissed.

Family Law Act 1975 (Cth) Div 12A, Pt VII, Pt VIII, ss 4AB, 60B, 60CA, 60CC, 61B, 61DA, 65AA, 65DAC, 69ZN, 69ZX, 117

Family Law Rules 2004 (Cth) r 17.02(e)

House v The King (1936) 55 CLR 499; [1936] HCA 40

APPELLANT: Mr Grainger

RESPONDENT: Ms Grainger

INDEPENDENT CHILDREN’S LAWYER: Holmes Donnelly & Co Solicitors

FILE NUMBER: SYC 8552 of 2015

APPEAL NUMBER: EA 28 of 2019

DATE DELIVERED: 23 August 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge, Watts & Austin JJ

HEARING DATE: 14 August 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 11 February 2019

LOWER COURT MNC: [2019] FamCA 56

REPRESENTATION

THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr Ford

SOLICITOR FOR THE RESPONDENT: Fay Frischer Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Holmes, Solicitor Advocate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Holmes Donnelly & Co Solicitors

Orders

1. The appeal is dismissed.

2. No order as to costs. 

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 Grainger & Grainger 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 28 of 2019
File Number: SYC 8552 of 2015

Mr Grainger

Appellant

And

Ms Grainger

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 11 February 2019, a judge of the Family Court of Australia pronounced orders as between the appellant father and the respondent mother to quell their dispute over their only child, a daughter then aged nine years, and also to clarify the operation of a property settlement order made between them some years before in separate proceedings. The father appeals from those orders by way of Notice of Appeal filed on 11 March 2019.

2. In respect of the parenting dispute, the trial judge ordered that the child live with the mother, who would have sole parental responsibility for the child, and deliberately made no orders at all to either prescribe or prohibit the child’s future face-to-face contact with the father.

3. In respect of the dispute over the property order, the trial judge invoked the slip rule to amend an interlocutory order made on 25 May 2017 so as to make plain that it did not operate to suspend the operation of the property settlement order made between the parties on 18 June 2015.

4. The father’s appeal should be dismissed for the reasons which follow.

The parenting appeal

Background

1. The proceedings before the trial judge, concluded by the appealed orders made on 11 February 2019, was the second round of litigation between the parties under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The first round of litigation was decided by Tree J in June 2015, who made orders which provided for the child to live with the mother and for her to spend supervised time with the father at a contact centre. The child was found not to be at risk of any harm in the father’s care, but rather, the need for her supervision when with him arose out of her staunch resistance to any contact with the father and the use of the contact centre was designed to regulate her re-introduction to him in a controlled way. Supplementary orders were made compelling the parties to retain a psychologist to meet with the child, before and after the first six supervised visits with the father, and giving the father liberty to apply to vary the orders after the first six visits.

3. The child first attended the appointed psychologist (Mr V) in August 2015, following which she was re-introduced to the father in early September 2015. The psychologist witnessed the re-introduction in his rooms and later reported it went quite well, but that was the last time the child spent any time with the father under any circumstances.

4. The trial judge described how the dispute between the parties then “stalled” and was only revived by the mother initiating fresh proceedings in December 2015 by seeking an order allowing her to take the child to the United Kingdom to attend a funeral. The father responded by opposing her application.

5. The parties’ pending interim applications were listed before Le Poer Trench J in May 2017, at which time his Honour suspended the 2015 orders and ordered the parties to engage with another expert (Dr J) for family therapy, with the objective of the child’s re-introduction to the father. The parties did engage with the expert between August and October 2017 but, for reasons which were contentious, no further contact visits between the child and father occurred. By a procedural order later made by Rees J in November 2017, the expert was ordered to prepare an expert family report for the trial.

6. Evidence from both the psychologist and the expert was adduced before the trial judge in August 2018. The psychologist, whose report was dated 5 January 2016, was not cross-examined. The expert, whose report was dated 7 May 2018, was cross-examined. Their evidence was generally consistent and was relied upon by the trial judge.

7. The psychologist proffered plausible reasons for why the child was resistant to the father (at [8(f)]) but, on the basis of the single contact visit he witnessed in September 2015, he opined (at [8(g)]):

   …it is obvious that there will be difficulties translating this single positive experience in to an ongoing healthy relationship between father and daughter…

   While it is acknowledged that [the child] needs further desensitisation to her anxiety and opposition towards her father, it would appear that graded exposure in artificial supervised environments is not conducive to this process…

8. Similarly, following the expert’s failed fresh attempts to re-engage the child with the father in February and March 2018, she reported (at [17]):

   …the only option to the Court (is) to make extreme Orders for [the child] to live with one parent and spend no time with the other parent…

9. The trial judge recorded in the reasons for judgment (at [38], [44(g)]) that, during cross-examination, the expert said she “saw very little chance of reunification between the father and [the child]”.

10. The trial judge expressed his broad agreement with the opinion evidence given by both the psychologist and the expert and so gave their evidence “significant weight” (at [42]). His Honour ultimately reasoned (at [49(b)]):

    …when a highly skilled psychologist like [Dr J] has reached a conclusion that reconciliation [between the child and the father] is not possible, I can hardly ignore that opinion.

11. The trial judge was alive to the father’s credentials as a competent and loving parent, but nonetheless concluded:

    51.If the test to be applied was that a poor parent should be “punished” and a patient parent who has done little wrong, should be “rewarded” – then a change of residence in this case would be a proper result.

    52.However, as the High Court recently reminded us all in Bondelmonte v Bondelmonte [(2016) 259 CLR 662], that is not the test. The test to be applied and the question to be determined is what is in [the child’s] best interests,

    53.I have found this a very difficult case, but on balance, with the findings already made, it is in the best interests at the time that [the child] should live with the mother and the mother should have sole parental responsibility for major long term issues…

    (Original emphasis)

12. There can be no doubt that the trial judge well understood both the gravity and implications of the child’s continued residence with the mother. His Honour considered it the “least worse” of “two stark and extreme options” (at [28], [49]) and it would mean the child’s recovery of her relationship with the father would likely have to wait until her independence (at [45(b)], [49(a)], [54], [55], [56]).

Grounds of appeal

1. The father was self-represented at both the trial and in the appeal and his lack of legal representation impeded his capacity to advance the appeal in accordance with established legal principles but, given his diligent effort to do so, we will address the clear thrust of his grounds of appeal.

Procedural fairness (Grounds 3 and 10)

1. Two grounds of appeal contended the father was denied procedural fairness. First, he asserted he was unfairly rushed to complete his cross-examination of the expert at trial (Ground 3), and secondly, the sheer length of the parties’ litigious dispute over many years “adversely affected” his case in a “devastating manner” (Ground 10).

2. Dealing with the more specific complaint first, it was common ground the trial was initially set down by Rees J for four days of hearing time, but at the commencement of the trial the mother’s counsel announced to the trial judge that following “discussions with each of the parties at the bar table” it was believed they could “contain the case maybe within three days”.

3. Significantly, the father did not demur to the accuracy of the suggestion that he was involved in the anterior discussion and had agreed with the estimate about the likely length of the trial. His Honour concurred with the common estimate of the trial’s likely duration, conscious that large slabs of contentious evidence and much of the debate between the parties merged in the orders made by Tree J in June 2015, which orders were neither appealed nor invoked to restore to the list for final resolution the unresolved dispute about the child’s future interaction with the father. The mother’s counsel admitted that tranches of her evidence were liable to carry very little weight, even if admissible, and so, after some further deliberation, the mother chose not to read certain parts of her affidavit.

4. The trial judge granted the father’s application to use a “McKenzie friend” in the trial who, although not a lawyer, had legal training. The father was himself a law student, close to the completion of his degree. Armed with basic legal knowledge and such help, the father admitted he did not object to the mother’s evidence and understood what he had heard discussed between the trial judge and the mother’s counsel about the lack of weight some evidence attracted. The father also told the trial judge he understood the limitations of some evidence he had adduced concerning his theory of how the mother was alienating the child from him and how he would be free to cross-examine the expert about his theory.

5. The expert was called for cross-examination on the third day of trial. She was interposed during the father’s cross-examination, as her evidence needed to be completed so she could depart the court by 1.00 pm to catch a plane. The trial judge foreshadowed the parties would be afforded the chance to confer with the expert before her cross-examination commenced, which then occurred. The expert was sworn in at 10.52 am and was cross-examined first by the Independent Children’s Lawyer, followed by the father. The father commenced his cross-examination at 11.39 am and he voluntarily concluded it at 12.30 pm. After cross-examination by the mother’s counsel, the father asked for and was granted permission to ask a further question of the expert. At the conclusion of the expert’s answer, the transcript records the following interchange:

   [THE FATHER]: …Thank you.

   HIS HONOUR: Okay. There’s nothing else?

   [THE FATHER]: Nothing, your Honour.

   HIS HONOUR: Thank you, Doctor?

   [THE EXPERT]: Thank you.

   HIS HONOUR: That clock is fast, according to my watch?

   [THE EXPERT]: I’m right.

   HIS HONOUR: We had an extra minute left up out sleeve but there you go.

   (Transcript, 15 August 2018, p.308 line 45 to p.309 line 7)

6. The expert then withdrew at 12.59 pm.

7. The father evidently conducted his cross-examination of the expert in an orderly and unhurried fashion. He completed his questions without being harried and was even granted extra time to ask a further question, allowing him to exhaust the enquiries he had in store for the expert. Nor did he ask for more time to interrogate the expert. We cannot see how he was “rushed”, as Ground 3 contended. During oral submissions in the appeal the father was unable to identify any passages in the transcript that would vindicate the assertion of him being rushed to finish his cross-examination of the expert, even after having been given time by us to find them.

8. Before breaking for lunch on the third day, the trial judge informed the parties and the Independent Children’s Lawyer he would ensure the trial finished that day, which was unexceptional. The case management principles embedded within Division 12A of Part VII of the Act obliged the trial judge to “actively direct, control and manage the conduct of the proceedings” (s 69ZN(4)), to conduct the proceedings “without undue delay” (s 69ZN(7)), and to reasonably limit the time taken in the trial (s 69ZX(2)). His Honour reiterated how the contentious issues were easy to identify and it was only the decision required of him which was difficult – a proposition with which everybody had already agreed.

9. After the lunch break on the third day, the father’s cross-examination resumed and it concluded at 3.24 pm. A discussion then ensued about other aspects of the evidence adduced in the trial and the possible engagement of therapists. The trial judge then adjourned the trial for about 20 minutes to enable the parties and the Independent Children’s Lawyer to collect their thoughts. Upon resumption, the Independent Children’s Lawyer made final submissions first, followed by the mother’s counsel, with the father last.

10. When the father was called upon, the transcript reveals the following discourse:

    [THE FATHER]: Thank you, your Honour. Before I start, I would just like to say that I’m feeling quite exhausted and emotional at the end of the three days.

    HIS HONOUR: I can ---

    [THE FATHER]: And ---

    HIS HONOUR: I can understand that, sir.

    [THE FATHER]: And my submission – I’ve been assisted in compiling my submissions from my notes by my very helpful [McKenzie friend].

    HIS HONOUR: Yes. And I have read your written submissions, which ---

    [THE FATHER]: My case outline.

    HIS HONOUR: --- of course, were before the evidence and the case outline.

    [THE FATHER]: Yes.

    HIS HONOUR: So I’m happy for you to, I guess, take me to why your preferred proposal is the one I should adopt ---

    [THE FATHER]: Yes, your Honour.

    (Transcript, 15 August 2018, p.365 lines 13-36)

11. The father then began his oral submissions and comprehensively argued the merits of his case. As can be seen, the father was given some time to collect his thoughts between the closure of the evidence and the commencement of the submissions, he was last to make submissions, he did not articulate any application to adjourn the trial into a fourth day to make or complete his submissions, he acknowledged the assistance he received from his McKenzie friend, he relied upon his written case outline which he prepared in advance of trial, and he was not precluded by either exhaustion or emotion from making all of the oral submissions he considered necessary or desirable.

12. Perhaps in retrospect, given his disappointment with the outcome, the father may regret he was not more persuasive, but it cannot be correct that he was denied the opportunity to “collect his thoughts, gather his composure or compile submissions” as he submitted in the appeal.

13. The father additionally complained in the appeal about his “very limited opportunity” to examine the documents produced in answer to subpoenas, stored in the Court’s registry. The documents, which were released for inspection, were available for each party and the Independent Children’s Lawyer to inspect at their leisure both before and during the trial. If the father did not avail himself of that opportunity, either at all or in a timely way, no fault rests with the trial process. Even if the Independent Children’s Lawyer did falsely represent to the father, as he alleged, that the documents produced in answer to subpoenas might be made available for his inspection at a regional registry and they were not, the loss of that opportunity does not manifest any unfairness in the procedural conduct of the trial and the orders which resulted. The father knew of his entitlement to inspect the documents and was free to make timely arrangements to do so before the trial began.

14. The history of the parties’ litigation has undoubtedly been a painful experience for both of them. They separated in August 2010, before the child’s first birthday, and litigation was commenced between them shortly thereafter in the Federal Magistrates Court (as it was then called) in NSW. The proceedings were transferred to the Family Court in Brisbane in April 2012. The first trial began before Tree J in August 2013, but was adjourned part-heard and did not resume until February 2015. In the interregnum, the child ceased spending time with the father in April 2014 and ceased communicating with him in September 2014. Tree J pronounced parenting orders in June 2015 but, as already recorded, the child only then spent time with the father once under the supervision of her psychologist in September 2015. Fresh proceedings were initiated in December 2015 by the mother, transferred to the Sydney registry in September 2016, tried in August 2018, and concluded by the appealed orders made in February 2019.

15. During the trial, the trial judge remarked how it was “extraordinary” the parties had been locked in litigation since 2010 and, in the reasons for judgment, compassionately acknowledged how “the delays in the Court processes have not assisted” (at [44(f)]). However, it is not correct, as was asserted in Ground 10, that the “duration” of the proceedings adversely affected the father’s case. Over the years, on several occasions, interim parenting orders were made in an effort to restore the child’s relationship with the father, but all were an abject failure. That was neither the fault of the Court nor the legal system.

1. In the first proceedings, the mother alleged the child was at risk of sexual abuse by the father, but Tree J found the alleged risk of harm was not borne out by the evidence. The interim orders for supervised contact between the child and the father, which were in place before that finding was made in the father’s favour, were simply to guard against the risk of the child’s harm until the evidence was thoroughly tested. Once tested, the interim orders made in June 2015 for supervised contact were only intended to facilitate the restoration of the child’s relationship with the father. Despite best intentions, they did not work and the father chose not to revive the dispute. When the mother commenced fresh proceedings in December 2015, no further orders were made until Le Poer Trench J considered the father’s interim application to reverse the child’s residence in May 2017. The application to reverse the child’s residence was dismissed, but another attempt was then made through interim orders to re-engage the child with the father with the expert’s therapeutic help. That failed too.

2. The father’s case was that the child was unable to achieve a viable filial relationship with him because the mother intentionally thwarted it, which contention was well understood by both Tree J in the first trial and by the trial judge in the second trial. Each judge thoroughly engaged with the father’s case.

3. As the trial judge recognised, Tree J earlier found the father did not represent an unacceptable risk of harm to the child (at [30(b)]), though the mother genuinely believed he did (at [30(c)]), as a consequence of which there was a high risk she would continue to wholly deprive the child of any relationship with the father and members of the paternal family (at [30(d)]). Nonetheless, Tree J ordered the child to remain living with the mother and valiantly tried to re-engage the child with the father.

4. The trial judge independently found that the mother, for a number of reasons in combination, could not genuinely support the child’s relationship with the father (at [44(a)]). However, his Honour was not satisfied the mother was overtly alienating the child from the father in some “vindictive or calculated way”, even though the father genuinely believes it to be so (at [44(d)]). The trial judge found the child would not be at any risk of “physical, sexual or emotional harm” in the father’s care (at [45(b)]) and it was the mother’s behaviour which effectively denied his interaction with the child (at [45(e)]). His Honour concluded the child’s residence could not feasibly be reversed and any further attempt to re-engage the child with the father would be futile.

5. Those unchallenged findings collectively demonstrate how both judges in both trials were attuned to the father’s case, evaluated the validity of his case by reference to the available evidence, and made the necessary findings to decide it. No aspect of the procedure employed to hear and determine the proceedings was shown to be lacking. On the contrary, the trial procedure was eminently fair. Rather, it is only the trial judge’s decision in the second trial requiring the child to remain living with the mother which dissatisfies the father, but that is the subject of other grounds of appeal yet to be addressed.

6. The father submitted in the appeal that the evidence demonstrated the mother’s contempt for the various orders made by the Court throughout the litigation, for which she was not held to account. The flaw in his grievance is that the Court record does not disclose him ever having prosecuted the mother for her alleged contempt and the trial judge’s findings do not reveal any sound basis for the mother to be held in contempt of court orders. Although the father honestly feels the trial judge’s orders reward the mother for frustrating the child’s relationship with him, as the trial judge recited (at [51]-[52]), the paramount consideration was the child’s best interests; not the parties’ sense of righteousness.

7. The father failed to demonstrate any procedural unfairness, so Grounds 3 and 10 must fail.

8. Before leaving these grounds, it should be acknowledged that the nature of Ground 10 transformed during oral submissions to a complaint of how the long period over which the litigation endured caused the trial judge to over-emphasise the importance of, or to give too much weight to, the desirability of making orders which are least likely to lead to the institution of further proceedings in respect of the child (s 60CC(3)(l)). We are unable to see how that submission is made good. The Act required the trial judge to take that consideration into account, the expert gave evidence of how it was an important consideration (at [17], [42]), the Independent Children’s Lawyer emphasised the point (at [25]), and his Honour took it into account without apparently elevating its importance above several other important features of the evidence.

Alleged error of fact (Ground 4)

1. The trial judge made the following finding about the oral evidence given by the expert:

   38.During examination by the [Independent Children’s Lawyer], Dr [J] confirmed that the need to consider extreme orders, was based on her view (at the end of therapy) that she saw very little chance of reunification between the father and [the child]…

2. This ground of appeal contended the finding of fact was not supported by the evidence but, as particularised, the father’s real complaint under this ground was not that the finding was wrong; only that he had “no recollection” of the expert giving such oral evidence at trial.

3. It is true the expert did not give evidence in those exact terms, but the effect of her expert evidence was abundantly clear. At several points during her cross-examination the expert gave evidence to vindicate the trial judge’s finding. For example, the expert said:

   [THE EXPERT]: …I mean, I – I can’t – I don’t – I don’t have a lot of hope that – and – and – and I guess the concern I have from that is that that is setting – setting [the child] up for more stress, the father up for more disappointment, more stress on – on the mother, and – and, you know, with the possibility, then, of further proceedings.

   (Transcript, 15 August 2018, p.278 line 46 to p.279 line 3)

   [THE EXPERT]: …I guess I’m struggling to see whether there – there – there’s hope of that being able to be – to be implemented, based on what I’ve observed and what other – other – others have observed before me.

   [THE INDEPENDENT CHILDREN’S LAWYER]: And is it your observation that the stress on [the child] of trying to introduce contact is now just getting too much for her?

   [THE EXPERT]: Certainly…

   (Transcript, 15 August 2018, p.280 lines 2-7)

   [THE EXPERT]: …I haven’t been able to observe any relationship between the father and [the child]. I’ve observed [the child]’s reaction at the possibility of coming into contact with the father…

   (Transcript, 15 August 2018, p.281 lines 27-29)

   [THE EXPERT]: Well the handover – would need – would – as so often happens in – in this context, the changeover would need to happen facilitated by, you know, perhaps someone from [court counselling services] or – or – but it would be highly – highly – highly traumatic [for the child].

   (Transcript, 15 August 2018, p.282 lines 14-17)

   [THE EXPERT]: …I just can’t see how – we haven’t been able to get [the child] into the same room as her father, so I don’t know that that’s a tenable option at all.

   (Transcript, 15 August 2018, p.284 lines 9-11)

4. Such evidence was not given by the expert hypothetically. She tried to re-engage the child with the father twice – once in February 2018 and again in March 2018. Both attempts failed. On the first occasion the child glared, exposed her teeth at, and ran away from the father. On the second occasion, the child huddled into a foetal position in the corner. The trial judge set out the circumstances in greater detail in the reasons for judgment (at [37]).

5. In his Summary of Argument, the father actually conceded the trial judge’s finding about the unlikelihood of his reunification with the child “may be reasonable”, if the child was to remain residing with the mother, as did transpire. We accept the trial judge’s finding closely resembled the expert’s evidence and was well open.

6. The remainder of the father’s submissions bore little or no correlation to the particularised ground of appeal and so we do not take them into account.

Alleged errors of law (Grounds 1, 2, 5, 6, 7 and 8)

1. Although described in different terms by the grounds of appeal, the father seemed to essentially assert the trial judge erred at law by:

   (a)Failing to consider, under s 60CC(2)(b) of the Act, the risk of harm to the child due to her subjection or exposure to family violence in the mother’s care (Ground 1);

   (b)Failing to provide adequate reasons to explain why the presumption of equal shared parental responsibility was rebutted by the evidence under s 61DA(4) of the Act (Ground 2);

   (c)Failing to make orders to mitigate the unacceptable risk of harm to which the child is exposed by living with the mother (Ground 5);

   (d)Failing to take into account the material consideration of the mother’s potential incapacity to care for the child due to her diagnosis with cancer (Ground 6);

   (e)Failing to take into account the material consideration of the parties’ respective attitudes to the child and the responsibility of parenthood under s 60CC(3)(i) of the Act (Ground 7); and

   (f)Failing to make an order restraining the mother from home-schooling the child, which failure was described as “irrational” (Ground 8).

Ground 1

1. In his trial affidavit, the father deposed:

   218.The child has been subjected to coercive and controlling behaviours by the mother and maternal grandmother, causing the child to be fearful of her father, meeting the criteria for family violence as defined in s4AB(1) [of the Act].

   219.The child has been denied relationships with her paternal family by the mother, meeting the criteria for family violence as defined in s4AB(2)(i) [of the Act].

2. In his written Case Outline document, the father submitted:

   26.The father is of the view that the mother and [the maternal grandmother] are engaged in a folie a deux (shared psychosis) and that while the child lives with the mother (and [the maternal grandmother]) the child will be at risk of educational neglect, psychosocial deprivation and emotional abuse fitting the definition of family violence in s4AB of the [Act].

3. As can be seen, the totality of the father’s evidence and his submissions on the point of family violence were no more than his bare opinion that the child would be subjected to “emotional abuse” by the mother and, inferentially, orders should be made to protect the child from the harm she would suffer from such abuse, which he considered amounted to “family violence” within the definition of s 4AB of the Act. He contended the only way to afford the child such protection was to reverse her residence.

4. It is true the trial judge did not treat the mother’s failure to support the child’s relationship with the father as “family violence”, as the father contended his Honour should, and so s 60CC(2)(b) of the Act was not invoked by the trial judge as an influential consideration, but that did not manifest legal error. The father’s uncorroborated opinion that the mother’s conduct amounted to her perpetration of family violence upon the child was liable to carry little probative weight, since her conduct was not “family violence” merely because he asserted it was.

5. The inherent premise of “family violence” is that the subject conduct is productive of certain consequences: either it coerces or controls another family member or causes the family member to be fearful (s 4AB(1)). No aspect of the evidence suggested the mother ever acted in a way which “coerced” the child or made her “fearful”. While the mother may have exerted some “control” over the child, optimally and in the broadest sense, every parent should be capable of controlling a child in his or her care. The father’s belief the mother controlled the child in a way which impaired, or even destroyed, the child’s relationship with him did not, however, require the mother’s conduct to be characterised as something it was not. It was open to the trial judge to disregard the mother’s alleged prevention of the child from keeping her connection with the father as a form of “family violence”, despite the father’s contention it was such in reliance upon s 4AB(2)(i) of the Act. The apparent purpose of s 4AB(2) is to merely set out examples of behaviour that “may” constitute family violence if the elements of the definition found within s 4AB(1) of the Act are otherwise made out.

6. The trial judge found the mother’s behaviour and her view of the father was “likely to distort the child’s emotional wellbeing”, though the extent and effect upon the child of the mother’s attitude and behaviour “cannot really be assessed” (at [45(b)]). The validity of that finding was not challenged and, significantly, it is not a finding that the child needed protection against any “psychological harm” she would suffer by reason of subjection or exposure to family violence for the purpose of application of s 60CC(2)(b) of the Act.

7. However, the mother’s inability to support the child’s relationship with the father was still an important aspect of the evidence, about which the trial judge made extensive findings (for example, at [40(e)], [44(a)], [44(d)], [45(b)] and [45(e)]) and quite properly took into account under ss 60CC(3)(f) and 60CC(3)(i) of the Act (at [45(g)]).

Ground 2

1. The trial judge dealt with the conferral of parental responsibility for the child in the following way (at [53]):

   I have found this a very difficult case, but on balance, with the findings already made, it is in the best interests at this time that [the child] should live with the mother and the mother have sole parental responsibility for major long term issues. The lack of any communication between the parents and the findings already made satisfy me that applying the presumption is against [the child]’s best interests.

2. Although his Honour did not expressly mention s 61DA of the Act at that point, the provision was referred to earlier in the reasons (at [16]). The reference to the application of the presumption of equal shared parental responsibility being contrary to the child’s best interests was obviously a reference to the operation of s 61DA(4) of the Act, which the father accepted. The trial judge found the evidence of the parties’ “lack of any communication” rebutted the presumption for an order for equal shared parental responsibility, which finding was open.

3. This ground asserted the trial judge failed to provide adequate reasons for why his Honour was satisfied the evidence rebutted the presumption of equal shared parental responsibility, though the submissions made in support of the ground were much broader and strayed to complaint about the absence of any order regulating the child’s future interaction with the father and the asserted inconsistency of the decision reached by the trial judge with the earlier decision of Tree J.

4. So far as the complaint of inadequate reasons for the order conferring the mother with sole parental responsibility is concerned, which is the solitary complaint within the ground of appeal, we reject the father’s complaint and find the trial judge’s reasons quite adequate. The mother sought sole parental responsibility for the child (at [19]), which proposal coincided with the recommendation of the expert in her report. Even the father sought sole parental responsibility for the child, though obviously conditional upon the child living with him as he proposed (at [22]). The parties and the expert, therefore, all agreed the residential parent should have exclusive parental responsibility for the child. Little wonder then that the trial judge came to the same conclusion, cognisant that the parties’ inability to communicate effectively would hamper their capacity to share parental responsibility in the manner contemplated by the Act (s 65DAC). Few reasons were required to illuminate the resolution of that narrow legal issue and those given were sufficient.

Ground 5

1. The father contended the child was at unacceptable risk of harm in the mother’s care, which could only be averted by orders providing for the child to live with him instead. He asserted the trial judge fell into legal error by failing to make orders in accordance with those he proposed, but he failed to identify any error of the type catalogued in House v The King (1936) 55 CLR 499 at 504-505 to justify appellate intervention. In effect, the father disagrees with the trial judge’s exercise of discretion, but is unable to demonstrate how it was unsound.

2. It is worthwhile noting at this juncture that most of the father’s submissions, regardless of the ground of appeal to which they were addressed, defaulted back to the proposition that the appealed orders produced an “irrational” result, which we interpret to mean “unreasonable or plainly unjust” in the House v The King sense. These reasons attempt to explain why that is not so, even though one may sympathise with the father’s disappointment. The trial judge was faced with a difficult task and made a decision his Honour found distasteful, but that did not render the decision wrong at law.

3. As already noted under Ground 1, despite the father’s wish it were otherwise, the trial judge did not find the child was at unacceptable risk of any psychological harm in the mother’s care. Rather, it was found the mother’s behaviour and her view of the father was “likely to distort the child’s emotional wellbeing”, though the extent and effect upon the child of the mother’s attitude and behaviour “cannot really be assessed” (at [45(b)]). The finding against the mother was more benign than the father sought. Nonetheless, the trial judge acknowledged his strong criticisms of the mother (at [50]), but correctly recorded the ultimate outcome was dictated by the child’s best interests (at [52]).

4. Numerous considerations collectively motivated the trial judge’s conclusion that the child’s best interests were served by her living with the mother: the child refused to even spend time with the father, let alone live with him (at [1], [45(c)], [45(d)], [54]); save for one visit under the supervision of her psychologist in September 2015, the child had not spent any time with the father since April 2014 (at [5(e)], [8(d)]); the child’s psychologist was pessimistic about the child’s reconciliation with the father (at [8(g)]); the expert recommended one parent would most probably need to be shut out of the child’s life (at [17], [32], [38]) and that should probably be the father because the child’s reunification with him cannot likely be achieved (at [44(g)]); the recommendation that such an outcome would reduce the chance of more litigation (at [25], [42]); the child’s strongest relationship is with the mother (at [44(d)]); over recent years the child has had little opportunity to develop any relationship with the father (at [40(f)]); and the father underestimated the challenges the child would present if her residence was reversed (at [44(g)], [49(b)]).

5. Of course, there were counter-vailing considerations, most notably the mother’s inability to support the child’s relationship with the father, but his submissions failed to demonstrate how the trial judge’s decrees were foreclosed by those material considerations. The findings were open on the evidence and the exercise of discretion was regular.

Ground 6

1. In February 2016, the mother was diagnosed with cancer and conveyed to Sydney for surgery and treatment. Thereafter, she chose to establish her permanent residence in an area reasonably close to Sydney. Unchallenged medical evidence adduced at the trial revealed the mother still had regular quarterly check-ups, but her prognosis was “good with a high chance of cure” and her condition was not considered to compromise her long-term care of the child.

1. In his Case Outline document, the father submitted:

   The father also holds concerns that the mother’s … cancer diagnosis carries a high mortality rate, which raises concerns for the care of the child if the mother’s sought orders are adopted and should the mother then succumb to the disease before the child reaches adulthood.

   …

   The real likelihood of relapse of the mother’s cancer requires [the child] to have an alternate parent in her life. His Honour Justice Le Poer Trench made comment at the end of the mention on 6 February 2017 words to the effect that, “Given the mother’s health concerns it is important that this child know who her father is”.

2. In respect of the mother’s health and its potential influence upon her parenting capacity, the trial judge found (at [44(b)]):

   I accept that the mother did suffer a severe illness requiring urgent surgery in early 2016. The untested medical evidence before the Court supports a finding, which I make, that the mother needs monitoring. However, I am not satisfied that her current condition (so far as the diagnosis of … cancer is concerned) requires her to live as close to [Hospital D] as she asserts. In my view the mother could live in Northern New South Wales and travel to Sydney as required…

3. As can be seen, the trial judge did take into account the evidence which bore upon the mother’s parenting capacity. The contrary contention in this ground of appeal that the trial judge did not do so, therefore, cannot be sustained. Moreover, the available medical evidence could not justify any contrary finding about likely impairment of the mother’s parenting capacity by ill health, as the father contended at trial. The father’s “concerns” about the mother’s former diagnosis and an encouraging casual comment by another judge at an interlocutory stage of the proceedings about the desirability of increasing his involvement in the child’s life could not sustain the father’s submission at trial that there was a “real likelihood” of the mother’s relapse and her consequent inability to care for the child.

4. The absence of more and better medical evidence at trial, of which the father complained in the appeal, did not demonstrate any error in the manner the trial judge dealt with the evidence actually adduced.

Ground 7

1. This ground of appeal alleged the trial judge failed to take into account the material consideration of the parties’ respective attitudes to the child and the responsibility of parenthood under s 60CC(3)(i) of the Act, but the father is mistaken. The trial judge did take into account the evidence which was pertinent to that provision of the Act.

2. His Honour found (at [45(g)]):

   I do not make findings about the parents’ capacity and attitude to parenting beyond those already made, which I adopt for the purposes of s.60CC(3)(f) and (i) [of the Act].

3. The antecedent findings to which the trial judge was there referring were:

   (a)In respect of the mother: she is unable to genuinely support the child’s relationship with the father for a combination of reasons, but does not have the insight to realise the effect of her behaviour (at [44(a)]); she is not overtly alienating the child from the father in some vindictive or calculated way (at [44(d)]); the child is not at risk of neglect or physical harm in the mother’s care, but the mother is likely to distort the child’s emotional wellbeing (at [45(b)]); and she will meet the child’s physical needs and do her best to meet the child’s emotional needs (at [49(a)]); and

   (b)In respect of the father: he could meet the child’s needs and was a “thoroughly decent human being” (at [44(f)]); he would be willing to do almost anything to have a relationship with the child (at [44(g)]); he did not present any risk of harm to the child (at [45(b)]); but he probably under-estimated the challenges of taking on the child’s residence (at [44(g)], [49(b)]).

4. Self-evidently, the mother was found to have limited capacity to meet the child’s emotional needs, but that comparative limitation was but one of the factors which influenced the decision about with whom the child should live. In any event, in answer to this ground of appeal, it was a factor expressly taken into account.

Ground 8

1. This ground of appeal contended the trial judge erred by failing to make an order restraining the mother from home-schooling the child. Significantly, however, while the mother’s decision to home-school the child was a topical issue at trial, neither party nor the Independent Children’s Lawyer sought any order dictating the child’s educational instruction (at [19], [21], [22], [24]). The father submitted orally in the appeal that his omission to suggest alternative orders to the trial judge, beyond those set out in his Case Outline (at [22]), was attributable to his lack of legal representation. That may well be so, but the trial judge made no error by confining his adjudication of the dispute to the competing remedial orders proposed by the parties and the Independent Children’s Lawyer.

2. Given the currency of the issue, it was addressed tangentially in the reasons for judgment. The trial judge noted how the expert expressed concerns about the child being home-schooled (at [40(c)], [44(c)]), found the evidence did not demonstrate the child would encounter any difficulty being educated in a mainstream public school (at [44(c)]), and expressed hope the mother would decide to return the child to mainstream education, which his Honour thought would be best (at [49(a)]). However, the trial judge rejected the father’s theory that the mother chose to home-school the child to restrict his access to information about the child’s educational progress (at [44(e)(ii)]).

3. It was eventually common ground at trial that the residential parent should have sole parental responsibility for the child and, significantly, such responsibility would confer exclusive power to make decisions about the child’s education (s 61B). Absent any discrete application for an order to either restrain the mother from home-schooling the child or to compel her enrolment of the child at school, the issue merged in the order vesting the mother with sole parental responsibility. No error is demonstrated.

Allegedly unreasonable result (Grounds 9 and 11)

1. Again, although described in different terms by the grounds of appeal, the father asserted the appealed orders are manifestly unreasonable or plainly unjust apparently because:

   (a)The mother is vested with sole parental responsibility for the child, even though the trial judge criticised some aspects of her care of the child (Ground 9); and

   (b)The orders occasion “cruel and unusual punishment” to the father because, in the absence of any order regulating the child’s interaction with him, the mother will continue to alienate the child from him and the paternal family, even though s 60B(2)(b) of the Act entitles the child to regularly spend time and communicate with both him and the paternal grandparents (Ground 11).

2. The trial judge did strongly criticise the mother in some respects but, for numerous reasons already canvassed, his Honour considered the child’s best interests were served by her continued residence with the mother. Once that conclusion was reached, the mother’s conferral with sole parental responsibility for the child inevitably followed. The parties agreed the residential parent should have sole parental responsibility for the child, just as the expert recommended. It would have been absurd for the child to live with the mother, but for the father to exclusively hold all duties, powers, responsibilities and authority in respect of the child conferred by law (s 61B) when it was improbable the child will even spend any time with him. Ground 9 must fail.

3. As for Ground 11, s 60B(2) of the Act does no more than state the principles which underpin the objects set out within s 60B(1) of the Act. Although s 60B(2)(b) expressly recognises a child’s right to spend time and communicate regularly with both parents and other people of significance in his or her life, the principle is conditioned by the proviso that orders to that effect must serve the child’s best interests. Here, the trial judge expressly found it would not be in the child’s best interests for any orders to be made prescribing the time the child should spend with the father.

4. The appealed orders make some provision about how the child and the father may communicate in writing (Orders 7 and 8) but, as was observed during oral submissions, they do not prohibit the child from communicating with the father whenever she wishes, if and when she is free of the influence the father believes the mother exerts over her.

5. The father also complained that the appealed orders make no separate provision for the child to spend time or communicate with the paternal grandparents, but they were not parties to the proceedings and those who were privy to the proceedings did not make any application for any orders to that effect.

6. While the father is understandably distressed by both him and the paternal grandparents being marginalised in the child’s life, the decrees made by the trial judge were necessarily guided by the paramountcy of the child’s best interests (ss 60CA, 65AA). As the trial judge endeavoured to explain, the decision at trial had nothing to do with punishing one parent or rewarding the other (at [51]). That the father honestly feels the orders occasion cruel punishment to him is not to the point, though one can readily empathise with his predicament. Nor is the dismissal of his appeal tantamount to endorsement of the mother’s conduct; it is only endorsement of the trial judge’s orders and reasons. Ground 11 fails also.

The property appeal

1. On 18 June 2015, following a trial, Tree J pronounced orders between the parties to determine their parenting dispute under Part VII of the Act and their property dispute under Part VIII of the Act.

2. Specifically in respect of the property settlement order, Tree J ordered that the parties’ former matrimonial home be sold at auction and, following the payment of attendant expenses, the net proceeds of sale to be divided 70/30 in the mother’s favour. The home has not been sold and the father still lives in it.

3. It will be recalled the mother commenced fresh proceedings in December 2015, but only to obtain more parenting orders under Part VII of the Act. No new matrimonial cause under Part VIII of the Act was raised in the fresh proceedings by either party.

4. When the parties’ competing applications for revised interim parenting orders were entertained by Le Poer Trench J on 25 May 2017, his Honour ordered (Order 1):

   The orders made on…18 June [2015] are suspended pending further order.

5. The remainder of the interim orders made that day related to the child.

6. The father interpreted the first order to suspend all of the orders made by Tree J on 18 June 2015; not just the parenting orders which were then under review. Conversely, the mother interpreted the order to apply to only the prior parenting orders and did not believe it operated to suspend the property settlement order. Their disagreement over the proper interpretation of the interim order remained unresolved until the trial in August 2018.

7. During the trial, the mother petitioned the trial judge to rectify the order made by Le Poer Trench J on 25 May 2017 under the slip rule (r 17.02(e) of the Family Law Rules 2004 (Cth)) to make clear that the order did not operate to suspend the property settlement order made by Tree J on 18 June 2015. The trial judge acceded to the mother’s request and made an order to that effect (Order 13).

8. The father’s appeal from that decree is simply limited to his complaint that the trial judge corrected the order made by Le Poer Trench J. The ground of appeal does not articulate any error made by the trial judge in so doing, though his written submissions were more expansive.

9. The father claimed:

   89.…the Honourable Justice Le Poer Trench, as one of the most senior judicial officers of this Honourable Court, would not make an error or oversight failing to exclude the property orders if he in fact had not intended to do so, when he made this 25 May 2017 order…

   …

   91.…Le Poer Trench J deliberately suspended all of the orders [made on 18 June 2015] because he knew the matter of residency of the child was set to be re-determined…

   (Original emphasis)

10. The father’s claim is rejected. The only matrimonial cause pending before Le Poer Trench J on 25 May 2017 was the parties’ parenting dispute under Part VII of the Act. Neither party made an application to Le Poer Trench J for any order to interfere with the integrity of the final property settlement order made between them on 18 June 2015, in which event his Honour had neither jurisdiction nor power to do so. Consequently, when his Honour made the interim order on 27 May 2017 to suspend the orders made on 18 June 2015, it could only have operated to suspend the parenting orders made under Part VII of the Act. His Honour may, and probably did, well understand that to be so. As the father contended, it is unlikely his Honour was mistaken. His Honour’s failure to then craft the suspension order with sufficient particularity to eradicate any ambiguity entertained by the father about the reach of the order was therefore easily cured by the trial judge’s resort to the slip rule on 11 February 2019.

11. The father submitted in the appeal that any implementation of the property settlement order made on 18 June 2015 now, four years later, would cause him “severe financial hardship and emotional distress”. It may, but the mother is entitled to the fruits of the property settlement order, of which she has been deprived for more than four years. As the trial judge correctly remarked in the reasons for judgment (at [69]):

    …If [either party] wish[es] to take some action to enforce, vary or set aside the property orders made 18 June 2015, which now are in full force and effect, then they are at liberty to do so.

Conclusion and costs

1. The appeal will be dismissed for lack of merit.

2. In that event, the mother sought an order for the father to pay her costs of and incidental to the appeal on an ordinary party/party basis in the fixed sum of $7,800. The application for costs is dismissed.

3. The mother was ordered by the Appeals Registrar on 24 April 2019 to file and serve a schedule of her scale costs no later than seven days prior to the first day of the appeal sittings, but she did not do so until less than two days before the appeal was heard, leaving the self-represented father little or no chance to consider it (s 117(2A)(c)). The father’s impecuniosity also weighed heavily against any order (s 117(2A)(a)), even though not an insuperable impediment. He is unemployed, receives a welfare benefit, and has few tangible assets. He must now vacate the former matrimonial home for it to be sold and he expects to receive only about $10,000 from the net proceeds of sale which he will need to find alternate accommodation. While the appeal was wholly unsuccessful (s 117(2A)(e)), it was the continuation of his understandably concerted campaign to try and ensure the child does not suffer the adverse consequences of his unnecessary elimination from her life (s 117(2A)(g)).

4. The Independent Children’s Lawyer did not seek any costs order against the father.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Watts & Austin JJ) delivered on 23 August 2019.

Associate: 

Date: 23 August 2019