Green & Knowles
[2010] FamCAFC 248
•15 December 2010
FAMILY COURT OF AUSTRALIA
| GREEN & KNOWLES | [2010] FamCAFC 248 |
| FAMILY LAW - APPEAL – APPREHENDED BIAS – Appeal against refusal of trial Judge to disqualify himself for apprehended bias – Where comments made by trial Judge represented preliminary views – Apprehended bias by the trial Judge not established – No merit in this ground. FAMILY LAW - APPEAL – PARENTING – Appeal against discretionary judgment – Where trial Judge ordered the mother to have sole parental responsibility for decisions concerning schooling and health – Where orders made were open to the trial Judge in the exercise of discretion – No appealable error established. FAMILY LAW - APPEAL – COSTS APPEAL – Whether the trial Judge erred in making a costs order against the father – Where the findings of trial Judge were open to him on the evidence – No merit in costs appeal. |
| AMS & AIF (1999) 199 CLR 160 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Batey-Elton & Elton (2010) 43 Fam LR 6 CDJ v VAJ (1998) FLC 92-828 D & SV (2003) FLC 93-137 De Winter and De Winter (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 House v The King (1936) 55 CLR 499 Jones v Dunkel (1959) 101 CLR 298 Knowles & Green (Security for Costs) [2010] FamCAFC 31 KPR & MRS [2007] FamCA 1334 Penfold & Penfold (1980) 144 CLR 311 Re F: Litigants in person guidelines (2001) FLC 93-072 Strahan & Strahan (Disqualification) (2009) FLC 93-414 The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Truman & Truman (2008) 216 FLR 365; (2008) FLC 93-360); (2008) Fam LR 614 Vakauta v Kelly (1989) 167 CLR 568 |
| Family Law Act 1975 (Cth) – ss 60 CA, 60CC, 61 DA, 65 DAA, 65 DAC, 117, Part VII - Division 12A Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Green |
| RESPONDENT: | Ms Knowles |
| INDEDPENDENT CHILDREN’S LAWYER |
| FILE NUMBER: | MLC | 1172 | of | 2007 |
| APPEAL NUMBER: | SA SA | 31 68 | of of | 2009 2009 |
DATE DELIVERED: | 15 December 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Boland & Thackray JJ |
| HEARING DATE: | 3 May 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 April 2009; 25 June 2009 |
| LOWER COURT MNC: | [2009] FamCA 271; [2009] FamCA 541 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Green appeared in person |
| ADVOCATE FOR THE RESPONDENT: | Ms Knowles appeared in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Macgregor Barristers and Solicitors |
Orders
Appeal No SA 31 of 2009 be dismissed.
Appeal No SA 68 of 2009 be dismissed.
Each party pay their own costs of and incidental to the appeals.
The Registry Manager of the Melbourne Registry of the Family Court of Australia is directed to forthwith pay the husband the sum of $10,000.00 together with interest earned thereon deposited with the Registry pursuant to the orders of the Full Court made 5 May 2010.
IT IS NOTED that publication of this judgment under the pseudonym Green & Knowles is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 31 of 2009; SA 68 of 2009
File Number: MLC 1172 of 2007
| Mr Green |
Appellant
And
| Ms Knowles |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 20 April 2009 Mr Green (who, for convenience in these reasons, we will refer to as “the father”) sought to appeal all orders made by the Honourable Justice Mushin on 15 April 2009. The orders were made in parenting proceedings between the father and Ms Knowles (who, also for convenience, we will refer to as “the mother”).
By a document described as an Amended Notice of Appeal filed on 19 February 2010, the father also sought to appeal costs orders made by Mushin J on 25 June 2009. The father had filed a Notice of Appeal against these orders on 23 July 2009. The mother resisted both appeals. An independent children’s lawyer (“the ICL”) for the parties’ children was represented by counsel before the trial Judge, but unfortunately legal aid was not extended to the ICL to participate in the appeals.
The proceedings before the trial Judge concerned the parties’ two children; a boy, X who was born in June 2000 and their daughter, Y born in July 2003. It was not in dispute that X was diagnosed in 2000 as suffering with hemiplegic cerebral palsy. A major focus of the dispute between the parties surrounded X’s schooling and medical treatment.
The trial extended over 16 days. The father was represented by senior counsel for the first 11 days of the hearing, and thereafter represented himself. The mother was represented throughout the trial.
The parenting orders made by the trial Judge provide, in broad terms, that the mother have sole responsibility and duty for making all decisions about which school the children shall attend from time to time (and any special needs of X relating to all aspects of his education), and all aspects of X’s health, otherwise the parties are to have joint parental responsibility for the making of “all decisions with regard to the care, welfare and development of the children”. The orders also provide for the children to live with the mother, and spend time and communicate with the father during school terms each alternate weekend (or if the father lives in K or within a 15 km radius of the children’s school, the time to be spent with the children each fortnight may be increased to before the commencement of school on Tuesday), together with time each alternate Monday from after school until 7.00 pm, provided such time is spent within the Melbourne metropolitan area. Midterm school holidays are to be shared between the parents, except for the term two holidays which are to be spent exclusively with the father. Provision is also made for block periods during the Christmas school holidays and other special occasion time with the father.
In March 2010, a differently constituted Full Court heard an application filed by the mother for summary dismissal of the father’s appeals, and if that application was rejected, an application for security for costs. The Full Court ordered that the father deposit the sum of $10,000.00 with the Registry Manager, Melbourne Registry as security for the mother’s costs of the appeals, and otherwise dismissed the mother’s application. However, before us both parties were unrepresented, and the mother did not seek any order for costs in the event the appeal was dismissed.
Both parties are professionals. The mother is in permanent part-time employment with a bank.
The father’s Notice of Appeal against the parenting orders contained 138 grounds. In his costs appeal the father sought to agitate 26 grounds. We will return later to discuss how we propose to deal with the numerous grounds.
The father sought, in the event his parenting appeal was successful, that we should re-determine the matter and make the orders he had sought before the trial Judge. The mother acknowledged, if the appeal was allowed, the matter would require a rehearing.
Background
The relevant background insofar as the parenting appeal is concerned is found in paragraphs 5 to 11 of the judgment of the Full Court (Coleman, Boland and Austin JJ) (Knowles & Green (Security for Costs) [2010] FamCAFC 31) published 5 March 2010 and it is unnecessary that we repeat that material.
The grounds of appeal – the parenting appeal
Before us the father sought to rely on a further amended Notice of Appeal in respect of the parenting orders. At the hearing of the appeal we rejected the late amendments sought by the father.
We indicated at the hearing we would give our reasons for rejecting the father's proposed further amended grounds of appeal. The father had filed a document, not in the prescribed form, on 29 January 2010 in which he set out amended grounds of appeal. On 11 March 2010 the Appeal Registrar wrote to the father, and advised that any further amended Notice of Appeal was to be filed and served by 1 April 2010. The father did not file any amended Notice of Appeal by that day, and before us sought to rely on a document containing amended grounds. He sought to rely on the decision of the High Court in The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. He asserted the proposed amendments “don’t raise wholly new questions. They’re refinements of argument, if you like.” (transcript, 3 May 2010, p 8) The mother opposed the late amendment, and did not agree the nature of the proposed amendments was as asserted by the father.
We considered that the father had ample opportunity to amend the grounds of appeal in the additional time provided by the Appeal Registrar. We were also satisfied that the late amendment was prejudicial to the mother as she did not have adequate opportunity to consider and respond to the proposed amended grounds. In coming to our decision to reject the further amended grounds of appeal we took into account the principles discussed in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
We requested the father to endeavour to “group” the grounds relied on into “topics”, and/or to orally argue those grounds on which he placed the most weight. We suggested the latter course as not only does the Notice of Appeal contain so called grounds which are so general (for example ground 2) that they failed to identify to us, or we thought to the mother, the actual complaint being agitated, but also because similar issues were dealt with randomly throughout the Notice of Appeal. Unfortunately, notwithstanding his qualifications and experience, the father was unable to do so.
The earlier Full Court permitted the father to rely on a summary of argument which far exceeded that permitted under the Family Law Rules 2004 (Cth) (“the rules”) (r 22.22(2)(c)). At the hearing he sought to rely on a further amended summary. The mother initially opposed receipt of this summary, but during the hearing of the appeal agreed to its reception by us provided new material (paragraphs 3, 18, 19, 22, 28 and 29) was disregarded. We admitted the amended summary on that basis.
In the circumstances we have outlined, it was not surprising that the mother was unable to comprehensively reply to the father’s grounds and summary of argument. She did, however, carefully address his arguments relating to asserted apprehended bias by the trial Judge and what, as we will shortly demonstrate, were the majority of the grounds, being ones directed to the exercise of discretion by the trial Judge.
Doing the best we can, we have classified the grounds into the broad categories set out in the following paragraph. A number of the grounds overlap. We do not propose to deal with each individual ground, particularly those grounds which assert that the trial Judge erred by either giving insufficient weight to a particular factor, or taking into account an irrelevant factor in reaching his decision. Nor do we propose to set out the individual grounds in the text of these reasons. We have, however, annexed as Annexures “A” and “B” to these reasons, the parenting grounds of appeal and the costs grounds of appeal.
The grouping adopted by us is as follows:
(i) the apprehended bias ground;
(ii) the natural justice grounds;
(iii)the competing proposals and approach challenge;
(iv)s 65DAA and D & SV (2003) FLC 93-137 grounds;
(v)asserted factual errors or asserted error in failing to make factual findings and lack of evidence to support findings made grounds;
(vi)the Jones v Dunkel (1959) 101 CLR 298 ground; and
(vii)asserted errors in the exercise of discretion grounds.
The apprehended bias ground
The ground as pleaded in the Notice of Appeal asserted that the trial Judge had erroneously failed to disqualify himself after a comment made on the second day of the trial during the father’s cross-examination when an application had been made by the father’s senior counsel that he do so.
While the father’s ground of appeal is limited to one comment by the trial Judge, in his outline of argument the father referred to four exchanges between himself and the trial Judge during the course of the trial which he particularised as demonstrating apprehended bias.
On the second day of the trial the father was cross-examined by the mother’s senior counsel about his previous residential address, which was in close proximity to the mother’s residence, and his decision to move to V, an outer suburb of Melbourne. These questions were directed to the issue of the reasonable practicability of the father’s primary proposal of an equal shared care “week about” arrangement.
The transcript reveals his Honour enquired of the father about his understanding of the legislation, in particular, in respect of equal shared time and substantial and significant time. That enquiry raised issues relating to reasonable practicability of the proposals, and the ability or otherwise of the parents to communicate about the children. The transcript reveals the following exchange between the trial Judge and the father:
Then you move to [V]?---Yes. It was a long-term desire for me to live in the bush, your Honour, or been discussed frequently.
This long-term desire overrides the desirability of living close to each other?---No, your Honour, I think it’s perfectly feasible. I see no difficulty with the [K] arrangement.
Mr [Green], it is possible that I could find that if there’s one factor against an equal sharing it may be the distance. Okay? These are only maybes?---I appreciate that.
So is there any feasibility in your moving closer?---I don’t think it’s necessary, your Honour.
Okay. You want to hope that I agree with you, don’t you?---I sure do.
Let me make this quite clear. Remember this morning I said that the question of shared parental responsibility had become an issue for me?---Yes.
If I were to find that you two have enormous difficulty in communicating, particularly with respect to health issues regarding [X], dealing with doctors and with schools, it may be that it’s all or nothing for one or other of you?---In respect of those two issues?
No, in respect of the whole lot?---Everything?
Yes?---Well, that would be a very harsh result.
You may think that. I don't know whether that will be the case or not, but when you say that would be a very harsh result I realise from your point of view that would be a bitter disappointment?---And for the kids.
Don’t start buying Tattslotto tickets. Do you understand?---I understand, your Honour. (transcript, 16 October 2008, p 185)
Senior counsel for the father did not seek to be heard after this exchange and the proceedings for that day were adjourned shortly thereafter.
We were also directed to the transcript on 21 October 2008, firstly to page 295. The relevant passage, and the other complaints raised by the father all occurred when the father was cross-examined by counsel for the ICL. The relevant transcript discloses:
What was my question?---Your question was whether I could add anything nice about [the mother].
Yes. Am I entitled to arrive at an interpretation of your answer from what you’ve just said, which has been nonresponsive - do you know what that
means […]?---Yes.That your answer is, in one word, no?---I can say a lot of good things about her, your Honour.
Well, this is the third time you’ve had the opportunity and each time I’ve thrown you a life raft with a life jacket and a life ring attached, with the rescue boats hovering around and a helicopter overhead, and you’ve drowned?---Well, your Honour, I can honestly say that I hold no hatred of her. I hold no hostility to her, except insofar as she has marginalised me and thwarted me as being an equal parent. I have a high regard for her generally.
If it were possible for you to drown a second time, you’ve just done it. Go on, Mrs Hooper. (transcript, 21 October 2008, p 295)
The father, in his written submissions at p 2, paragraph (a), also drew our attention to the trial Judge’s remarks during his cross-examination by counsel for the ICL regarding the payment of child support (transcript, 21 October 2008, p 302).
The father also directed us to the trial Judge’s remarks later on the same day (transcript, 21 October 2008, p 328). That transcript reveals the following exchange:
That’s not a bad start. But does it concern you - you would say that I’m wrong, I was going to ask you does it concern you that it might be a good idea to change some of your behaviours?---I’m open to that, your Honour.
Are you?---Yes.
As a result of what has happened in the last four days, do you think there is anything you need to act on?---I need to find a way – we’ll see how this case goes, but if I’m still involved in [X]’s education and his health care, I need to find another way to deal with the problems that - - -
You can see which way the wind is blowing, can’t you?---You’ve made it very obvious, your Honour.
Part of the reason that I’ve been trying to make it obvious is that I’m desperately searching for you to demonstrate to me the sort of insight that I think you need into the way you act towards others, and how others perceive you, such as would give me confidence that your ongoing significant involvement with your children should continue. Do you understand?---I understand to some degree, your Honour. I’m not sure what you're looking for but - - -
What I’m looking for is the hook to hang my hat on to give you that opportunity to continue to be really involved with your children. I regard myself as having tried to find that hook over and over and over again. Two or three times I’ve told you that I’ve given you a life raft or a whatever, and this is all comparative because it’s only you and I haven’t heard the other side, I accept that entirely. I haven’t heard addresses or anything like that. But clearly after four days I begin to get an impression. You understand that?---Yes, your Honour. Well, in my humble view if you make an assessment of what [X] needs and what he has been getting. If you form the view that my complaints were reasonable and the school is doing nothing about it, and [the mother] was not helping, then you might change your view of me.
Yes, that’s something to be discussed in a couple of weeks’ time I think. Yes, Mrs Hooper.
MS HOOPER: If your Honour pleases. (transcript, 21 October 2008, pp 328-329)
In her written submissions, at paragraph 2, the mother explained:
The Appellant Husband’s Senior Counsel made an application for disqualification on the ground of apprehended bias on 22 October 2008, being day five (5) of the trial (refer Appeal Book pp. 1323-1333). No appeal was lodged against the Honourable Trial Judge’s refusal to disqualify himself because of apprehended bias and the case continued. The application was not renewed at any point over the ensuing five (5) mentions and eleven (11) hearing days. The Appellant Husband was represented by experienced Counsel, including Senior Counsel, except for the last five (5) days of the sixteen (16) day trial. It was not until the final day of the trial on 27 March 2009 that the Appellant Husband alluded to the fact that the case may go on appeal. (wife’s submissions, 22 April 2010, p 1)
She went on to submit that in either failing to renew his application to the trial Judge that he disqualify himself, or to appeal his Honour’s refusal to disqualify himself on 22 October 2008, the father had waived his right to do. In the alternative, she submitted, having regard to the relevant principles to be applied in determining apprehended bias, that the father had not established such a case, particularly in the context in which his Honour’s comments were made.
The Law
The relevant principles are well known. They have been discussed in two recent Full Court decisions (see Strahan & Strahan (Disqualification) (2009) FLC 93-414 at paragraphs 5 and 6; Batey-Elton & Elton (2010) 43 Fam LR 62 at paragraphs 61-64). We adopt as relevant to this appeal the paragraphs in the judgments just cited.
Discussion
We turn first to consider whether or not the father had, by not appealing immediately after his Honour delivered his reasons for judgment refusing to disqualify himself on 22 October 2008, effectively waived his right to agitate in this appeal his complaint of apprehended bias.
The question of waiver is discussed by the High Court in Vakauta v Kelly (1989) 167 CLR 568. Brennan, Deane and Gaudron JJ, having referred to comments made by a trial Judge said at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object…
Dawson J, at 575, explained the principles relating to apprehended bias and, at 579, said:
… In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it.
As is clear from the transcript to which we were referred by the mother, the father’s senior counsel on instructions did, reasonably contemporaneously with the exchanges said to demonstrate apprehended bias, make an application for the trial Judge to disqualify himself. Thus the circumstances were not directly analogous with the circumstances discussed by their Honours in Vakauta. While it was open to senior counsel for the father if she thought there was error by the trial Judge in his oral reasons for judgment delivered immediately after the application was made to have lodged an appeal, we do not think the failure to do so can be translated to say the father has waived the opportunity to now do so.
Senior counsel for the mother at trial made a number of submissions to the trial Judge during the course of the disqualification application. We think it useful to set out parts of senior counsel’s submissions as, having read the transcript of the first four days of the trial, they accord with our views on this topic. Those submissions are as follows:
MR KIRKHAM: Your Honour, can I start by indicating that my notes indicate your Honour made it perfectly plain that you had an open mind about the respective applications. You referred on occasions to the fact that you had not heard the wife cross-examined; take that into account. You indicated on a number of occasions that it was something that would assist you in making your mind up in relation to these if the husband addressed certain particular issues, which you put to him. You gave him the opportunity of doing so and made it perfectly plain, and it’s our submission that in doing so it was going to be of assistance to you and more particularly an opportunity for the husband to deal with issues that were present in your mind as relevant at this point in the trial.
…
I just stop there and say your Honour made it perfectly plain that anything you were saying was provisional and subject to hearing the wife on cross-examination and was designed to assist the husband to address the issues that were exercising your mind in this very complex case in relation to the children.
…
MR KIRKHAM: Your Honour, in our submission your Honour made it very plain that what you were doing was giving the husband an opportunity to deal with issues which were seemingly provisionally, to you, important to consider at this stage of a complex case. Indeed you indicated that on occasions you were throwing him a life belt. You gave him every opportunity - we would submit more than enough opportunities - to develop his case and meet the considerations which were then being considered by you as potential elements in your ultimate decision of this case.
We would say that this application is entirely misconceived. Indeed I would go so far as to say it’s part of the husband's modus operandi. In this case we’ve had so far I think four applications in four days. We’ve had a change of address last weekend and we’re met with this, this morning, and I foreshadow there will be other issues to be dealt with if the matter proceeds. (transcript, 22 October 2008, pp 356-359)
We also set out the submissions of counsel for the ICL who made it clear that the issue of equal shared parental responsibility was not a matter which was subject of agreement between the parties:
MS HOOPER: Your Honour, I don’t support the husband’s application. Mr Kirkham has really covered the field and - - -
HIS HONOUR: You adopt his - - -
MS HOOPER: I do.
HIS HONOUR: Yes.
MS HOOPER: The only thing I would like to add is that Ms Nikou said that there was an agreed position in regard to joint parental responsibility. That is a conditional - as I understand it, the wife had a conditional proposal about joint parental responsibility. It was subject to her having control of the medical and the educational - - -
HIS HONOUR: Yes.
MS HOOPER: Which is a position we would support. So it isn’t quite accurate to say it was a joint position in regard to parental responsibility. (transcript, 22 October 2008, pp 359-360)
Our reading of the transcript immediately preceding the words about which the father complains discloses that:
· the comment about the purchase of the lotto ticket occurred in the context of the discussion which indicated the trial Judge was making known to the father he was concerned that if the father’s proposal remained that the children live in a “week about arrangement” (which would involve them living each alternate week at V), that his Honour’s preliminary view was that such a proposal would not be practicable because of the necessary travelling the children would have to undertake each day;
· the first comment also occurred in the context of the trial Judge raising the issue of whether an order for equal shared parental responsibility could be made if the parties remained in conflict over health and education;
· the comment about drowning was made in the context of the father avoiding a direct answer to a question about whether he could say anything good about the mother (we note that the father did not resile from the proposition that he had on a number of occasions, including in text messages to her, referred to the mother as “a bitch”);
· the comment about child support was made in the context of the father being vigorously cross-examined by counsel for the ICL about his lack of payment of financial expenses over the previous three years, and his understanding (or lack of understanding) that such evidence was relevant to his parental responsibilities, capacity and future ability to provide for the children’s financial needs; and
· the comment about “which way the wind’s blowing” was also made in the context of the father’s cross-examination about his proposal to live in V, and was also to put him on notice that, after hearing his evidence, the trial Judge had concerns about the practicability of the proposals.
We observe that the trial Judge made it clear his comments were “preliminary views”, and made without the benefit of the expert evidence, or more significantly cross-examination of the mother. However his Honour, at this stage of the proceedings, had observed the cross-examination of the father over four days.
While there can be no doubt his Honour’s comments were robustly expressed, those expressions must be seen in the context of a hearing where, at all relevant times, the father was represented by senior counsel experienced in the jurisdiction. . In such circumstances, we are satisfied his Honour was doing no more than that which the authorities on modern trial process recognise as appropriate conduct having regard to the level of sophistication of the particular litigant.
His Honour’s conduct must also be seen in the context of the conduct of proceedings under Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”), having regard to the objects and principles of that Division whilst ensuring the principles of natural justice are observed. (see Truman & Truman (2008) 216 FLR 365; (2008) FLC 93-360; (2008) 38 Fam LR 614).
We are satisfied that his Honour, as permitted by authority, was no more than expressing preliminary views, at a stage when he had (as distinct from a common law trial) the benefit of reading all of the affidavit material, hearing the father extensively cross-examined and had experienced the benefit of observing the father in the witness box. We are satisfied, applying the “reasonable observer” test referred to in the authorities, that his Honour’s remarks could not be construed as demonstrating an apprehension of bias. We find no merit in this ground.
The natural justice grounds
Before commencing our discussion of this aspect of the father’s appeal we make these preliminary comments. First, at the commencement of the trial, his Honour raised specifically whether or not the parties were seeking that he decide which school the children should attend, or whether one parent should be vested with that responsibility. His Honour explained:
… My usual modus operandi in these things is unless somebody can persuade me that a particularly-given school is contrary to the best interests of a child, rather than make the choice of which school I more often - and I’m not saying I will do it, but I more often make a decision that X or Y will make the decision as to which school the children are to go to … (transcript, 15 October 2008, p 7)
At that point his Honour raised with senior counsel for the father that there was no evidence, other than that of the father, who did not qualify as an expert, on the topic of the child X’s educational needs. Secondly, we observe that grounds 38 to 41 are directed to complaints about the ICL and not his Honour’s reasons and orders. We propose to disregard those grounds as incompetent.
We now propose to deal with the challenges we identified from the remaining grounds asserting a denial of natural justice. Before doing so it is appropriate that we should refer briefly to the relevant principles pertaining to natural justice and procedural fairness. Coleman J, exercising the appellate jurisdiction of the Court in KPR & MRS [2007] FamCA 1334, conveniently set out a number of extracts from the authorities which include:
[60]In National Companies and Securities Commission Ltd v News Corporation Ltd (1984) 156 CLR 296 at 312; 52 ALR 417 at 427 Gibbs CJ said:
“The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.”
[61]In Kioa v West (1985) 159 CLR 550 at 612; 62 ALR 321 at 368 Brennan J said that:
“The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.”
[62]In Allesch v Maunz (2000) 203 CLR 172; 173 ALR 648; 26 Fam LR 237; [2000] HCA 40 at [35]-[36] at 184 – 185 Kirby J said:-
“[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.” [footnotes omitted]
(a) Asserted refusal to allow the husband to adduce evidence from Dr J or Dr K
The father’s written submissions, so far as are relevant to the trial Judge’s orders, assert that he proposed to call Dr J but the trial Judge repeatedly refused to allow the father to bring that evidence. No transcript references are provided in the father’s written submissions on this ground. In his oral submissions the father referred us to the transcript of the fifth day of the trial, 22 October 2008, at page 371.
On the fifth day of the trial, immediately after his Honour delivered reasons refusing the disqualification application, the father’s senior counsel referred to the fact there was no expert evidence before the trial Judge relevant to the child X’s educational needs, and submitted that the names of two or three experts should be considered by the parties. His Honour, having indicated, given the voluminous material already before him, that he was not entirely sure that further evidence was needed, agreed to permit the parties to have further discussions on the issue, but noted there was no formal application before him (transcript, 22 October 2008, p 373).
The passage of the transcript to which the father directed our attention discloses the following:
HIS HONOUR: What’s that name?
MS NIKOU: Dr [J]. I haven’t checked that person’s credentials - - -
HIS HONOUR: No, I know the name. I can’t place him but - - -
MS NIKOU: - - - and whether this is the right person for the job that needs to be done but it’s a name that - - -
HIS HONOUR: He’s a psychiatrist or a psychologist?
MS NIKOU: I don’t know, your Honour, I need to check. (transcript, 22 October 2008, p 371)
We observe shortly after that exchange, to make it clear at that point there was no application before him for the appointment of a single expert, his Honour addressed the mother’s senior counsel as follows:
HIS HONOUR: It is not yet an application.
MR KIRKHAM: No.
HIS HONOUR: At such time it’s an application, I’ll determine it. Yes, when Ms Nikou wants to make an application, I’ll consider it. Ms Nikou, is that clear? (transcript, 22 October 2008, p 373)
After an exchange with us, the father provided further transcript references which he said demonstrated that his senior counsel had “sought to raise the issue on about six occasions” (transcript, 3 May 2010, p 51). We note the first reference provided by the father was a request by his senior counsel for Dr K to attend X’s school the following Monday to observe him. The application was opposed at that point by the mother’s counsel, and the father’s senior counsel conceded that the arrangement had not been approved by the child’s school. At that stage of the proceeding (17 October 2008) the trial Judge declined the application, but made it clear he would, upon an appropriate application being made to him, consider it (transcript, 17 October 2008, p 226).
On 23 October 2008, the sixth day of the trial, the father’s senior counsel, in response to a statement by the trial Judge, confirmed she wished to make an application that Ms N be appointed as the single expert, and accordingly an order to that effect was made (transcript, 23 October 2008, pp 456–458).
We see no merit in this challenge. The trial Judge was hearing the matter under Division 12A guided by the principles of that division. Section 69ZQ required his Honour to determine which of the issues at the proceedings required full determination. The father’s senior counsel was unable to inform his Honour what qualifications Dr J held which would make his appointment as a single expert an appropriate one, and the application made on behalf of senior counsel for the father was that Ms N be appointed as single expert. No formal application was later made in respect of Dr K. There was no denial of procedural fairness or natural justice in these circumstances.
(b) Asserted failure to permit the father to adduce evidence from School Principals
We are satisfied that the complaint about the asserted failure of the trial Judge to bring evidence from the Principals of H school, K Primary and K East Primary as to how the child X’s needs could be accommodated at their respective schools denied the father procedural fairness is without merit. The father’s submissions contained no transcript reference to any application by him to call these witnesses and we have been unable to locate in the transcripts any such application.
It was clearly made known to the parties at the outset of the hearing that his Honour’s preliminary view was that, in the event the parties remained in significant conflict over X’s educational needs and medical treatment, an order which provided for the parties to share parental responsibility, and thus impose obligations on them under s 65DAC, would be unworkable. The only practical way to resolve the dispute in the best interests of both children, particularly X, was to give, as his Honour ultimately did, one party responsibility for matters relating to X’s education and health, rather than determining which school the children should attend. We see no error of procedural fairness or lack of natural justice in the approach adopted.
Further, it must be remembered that the father initiated the parenting proceedings and, at the commencement of the hearing, adduced no expert evidence in respect of alternate schools, or any relevant expert evidence about X’s educational needs.
(c) The written submissions complaint
The father’s complaint about the trial Judge’s “denial” of the opportunity to provide written submissions until the last day of the trial is, with respect to the father, misconceived. At the commencement of the hearing it was obvious that the time originally allocated for the hearing would be insufficient. The mother’s senior counsel suggested that, rather than, as is the usual course, the matter conclude with oral submissions, time could be saved by the parties providing written submissions after the conclusion of the oral evidence. His Honour correctly pointed out that such a procedure would involve an elapse of some weeks, would delay the production of his reasons for judgment, and mean that he would not have the opportunity of raising matters of concern to him with each party’s counsel. At the conclusion of the hearing, again as is often the case in superior courts, the trial Judge allowed the parties to provide a written outline of their oral submissions made at the conclusion of the evidence.
We discern the father has mistaken the difference between a matter concluded without oral submissions, and only written submissions, and one in which a written skeleton of the oral submissions is provided for assistance to the judge by way of an aide memoir.
(d) Asserted failure to explain relevant legal principles
We also see no merit in the father’s assertion of denial of natural justice by the trial Judge failing to explain “relevant decision making principles”. In Re F: Litigants in person guidelines (2001) FLC 93-072 the Full Court has given guidance to judicial officers hearing a case involving a litigant in person. The guidelines, at paragraphs 228 – 230, are as follows:
228. The knowledge and skill base of litigants in person can vary widely. As pointed out in the recent publication of the Australian Institute of Judicial Administration (2001) Litigants in Person Management Plans: Issues for Courts and Tribunals, Carlton:
“Where a litigant appears in person they will ordinarily be at a disadvantage because of their lack of legal skill. The court has an obligation to diminish this disadvantage so as to ensure a fair and just trial. However this obligation is subject to the need for the court to maintain its position of neutrality in the proceedings. The court must not confer an advantage on the litigant in person over the represented party.
The extent of the obligation on the court to assist litigants in person is contextual and may depend on the litigant, the nature of the case and the litigant’s intelligence and understanding of the case. The court may also have regard to the position of the other party or parties concerned and the efficient conduct of the proceedings.”
(at p 6, footnotes omitted)
229. With these matters in mind, we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served. Therefore, the application of the guidelines must depend on the circumstances of the particular case.
230. We have noticed that a number of litigants in person are endeavouring to use the alleged breach of the guidelines as a ground of appeal in itself. We do not think it is appropriate for the guidelines to be used in this way as there may well be good reason in particular cases to depart from some of the guidelines but always remembering the Court’s obligation to provide procedural fairness and a fair trial. Thus, if in the circumstances of a particular case, a trial judge does not follow the guidelines, it does not follow that there has not been procedural fairness and a fair trial.
For the first 11 days of the hearing the father was represented by senior counsel very experienced in the jurisdiction. As reading the transcript discloses, at various times throughout the trial his Honour made very clear the task he was required by the legislation to undertake (see for example, transcript 15 October 2008, p 31; 23 October 2008, p 472; 10 November 2008, pp 614, 616).
(e) The asserted intimidation complaint
The father’s next complaint of denial of natural justice is his assertion that the trial Judge attempted to “influence the evidence of the father and his partner by intimidating them” (father’s submissions, January 2010, p 3, paragraph 7). The ground refers to paragraph 207 of the trial Judge’s reasons. There his Honour said:
While recognizing that the factor presently under consideration refers to the “child’s parents’” ability to promote the relationship with the other parent, it is pertinent to refer to [Ms R] at this point. At paragraphs 14 and 15 of her affidavit of evidence in chief, [Ms R] swore to the relationship between the children and their mother in very positive terms. However, in the early part of her cross-examination by Senior Counsel for the mother, she expressed herself in similarly negative terms about the mother as did the father. I strongly remonstrated with her and her ensuing evidence was far more balanced and considered. [Ms R] has significant insight into those matters, presumably at least in part because of her professional work, and her change of approach was most welcome. I appreciate that she has received some very negative approaches from the mother which have influenced her attitudes. However, in light of her initial reaction, I maintain some degree of concern with regard to her attitude to the mother.
We observe that Ms R’s evidence in chief was contained in her affidavit, so that the complaint can only be directed to the testing of her evidence in cross-examination. The trial Judge recorded his observations of Ms R during cross-examination, and made a positive finding that she showed “insight”. We see no basis for the father’s complaint.
(f) Alternate proposals complaint
The father has asserted in grounds 136, 137 and 138 a denial of natural justice to him in respect of the treatment of “alternate proposals”. We will deal with those complaints when dealing with the challenges to his Honour’s treatment of the competing proposals.
The competing proposals and approach challenge
The father asserted that the trial Judge had relied inappropriately on a pleading point by not considering his alternate proposal, namely that he would live in K, and the children would go to a school in the K area. He asserted his Honour “seemed to be making fine distinctions between [K] locale, [K] area, vicinity of [K]” (transcript, 3 May 2010, p 56).
At paragraph 144 of his reasons, the trial Judge said:
[Ms MC] explained that if the children were to live with their father at [K] on four or five nights per week and otherwise live the other week with the mother in [L], that would not satisfy the neighbourhood requirement described above. Accordingly, on all of the evidence, the father’s proposal that the children attend [K] Primary School or [K] East Primary School must fail. [Ms MC] provided the father with some solace to the extent that she volunteered that there were some schools in the vicinity of [K] which did not have caps on their enrolment. She named such schools. However, the father did not vary his ultimate proposal to include one of those latter schools. (our emphasis)
His Honour first summarised the competing proposals before him, at paragraph 4 of his reasons, as follows:
The children attend a private school in [the inner city]. The mother proposes continuing to live in [L] and the father proposes continuing to live at [V]. Accordingly, there is a substantial distance between them requiring significant driving times to enable both parties to continue to be involved with the children to a high level. Also as part of the father’s proposal, the children should leave their present school and go to a State school approximately equidistant from each of the parents, allegedly at least in so far as driving time is concerned.
Later, at paragraphs 43 to 48, his Honour set out more fully the parties’ competing proposals. At paragraph 43 the trial Judge referred to the father’s amended minute of order sought (“F 20”). Our examination of that document discloses that the father sought an alternate week shared care arrangement (paragraph 4(a)) and that from February 2009 the children attend a government school in a suburb of K, “or as close thereto as possible as may be agreed between the parties, from February 2009 for the balance of their schooling” (paragraph 2(b)).
It was not disputed before us that no formal application was made by the father to amend this document to include specific named schools in the K area, or to include the father’s third proposal that the children reside, during the week they were to be in his care, in his rented premises at K.
At paragraphs 44 and 45 his Honour set out the father’s primary proposal which was that the children should live each alternate week with him at V and attend a school in or around the suburb of K.
We observe at this point the statement on which the father relied as demonstrating the trial Judge had ignored his third proposal, is unsustainable. His Honour accurately recorded that no application was made to amend the document, which became F 20, to nominate a particular school or schools, after evidence was given by an employee of the Department of Education and Early Childhood Development in the State of Victoria that the children would not satisfy the Department’s requirements for enrolment at either K Primary School or K East Primary School.
As the father argued his Honour’s treatment of the parties’ competing proposals was unfair, because he did not consider the father’s third proposal (albeit because he asserted he failed to amend his application, as noted by the trial Judge in paragraph 144), we will examine that complaint.
At paragraph 48 of his reasons the trial Judge explained as follows:
During the trial there was considerable discussion around the possibility of the father living in his rented premises in [K] during weekdays when the children live with him. The father told me that were I to order him to live in [K] in those circumstances, he would do so. On the basis of all of the evidence, I have concluded that the father would only very reluctantly accept such an order and accordingly, I treat his proposal as being that which I have set out above. In particular, I treat that proposal as being that he and [Ms R] will continue to live at [V], no matter what order I make with regard to the time which each party should spend with the children.
We consider, particularly in the context of an overall reading of his Honour’s reasons, and his ultimate decision to effectively determine the issue of schooling on the basis of the parental responsibility orders as foreshadowed by the trial Judge both in opening and closing submissions, that his Honour gave the third proposal such weight as was appropriate in his brief consideration of it, and there was no denial of natural justice to the father, or failure to consider the proposal.
Consideration of s 65daa and the D & SV grounds
In a number of grounds of appeal the father submits that the trial Judge failed to properly consider an equal time arrangement from both a best interests consideration and reasonable practicability, and that his Honour also failed to make orders for substantial and significant time (as defined in the Act) because his Honour’s orders do not allow him to be involved in the children’s schooling on a day to day basis, nor do they consider the practical impediments to the children having friendships in the K (or perhaps the V) area which can be fostered on a day to day basis after school.
Also encompassed in these challenges is the assertion that, as the distance between the mother’s home and the father’s residence at V is 56 kms, such distance should not have been relevant to the consideration of an equal shared time regime.
Reference to his Honour’s reasons at this point is instructive.
At paragraph 248, his Honour referred to the legislation (by implication s 61DA and s 65DAA) and said it was unclear “in circumstances in which I have determined that shared parental responsibility should be qualified”, whether he was required to “decide whether the children should spend equal or substantial and significant time with the parents”.
As we did not have the benefit of argument on that point, it is unnecessary for the purposes of this appeal we should determine the issue. However, our tentative view is, given the wording of s 61DA which refers specifically to “equal” shared parental responsibility that s 65DAA is not automatically triggered if an order is made for limited aspects of joint parental responsibility. Of course, that is not to say if orders for equal time or substantial and significant time are sought by a party, that a court will disregard the orders sought or the considerations in s 65DAA which, together with s 60CC(2) and s 60CC(3) are designed to facilitate the making of orders which are in the best interests of children in accordance with s 60CA of the Act.
In this case it is very clear, notwithstanding the uncertainly expressed by his Honour, that he did, having earlier carefully considered all of the relevant s 60CC factors, go on, in paragraphs 249 to 262, to consider equal time as well as substantial and significant time.
Insofar as the father’s grounds submit error by not treating his application as one to which the principles in D & SV applied, it is unnecessary we do more than refer to paragraph 250 of his Honour’s reasons where he said:
As a result of the last paragraph, travel between [V] and [the inner city] on a regular basis is contrary to the best interests of the children. But in addition, [Mr P]’s evidence is very relevant. I agree with his view that all other things being equal, the distance from [V] would not be the determinative factor. If the parties were able to agree on the parenting of their children and part of such an agreement were that the parties would equally share the time which they spend with them, the father living at [V] and the mother living in [the inner city], the issue of the distance incorporated in the father living in [V] would not be an issue. It only becomes an issue at the point at which the relationship between the parties is as bad as it is. Accordingly and with regret, I find against the father’s proposal for equal shared time.
Having discussed the orders sought by the mother and the ICL and whether he should make orders for substantial and significant time, his Honour explained, at paragraph 260, that the orders he proposed to make afforded the father, if he took up the option to live in the property at K, which he informed the trial Judge he was renting, during the time the children were with him that he would have the option of spending weekday time with the children. Thus we are satisfied there is no merit in these grounds.
Asserted factual errors or asserted failure to make factual findings, or lack of evidence to support findings made
The father’s complaints in these grounds were wide ranging and included asserted error (either because of contrary evidence or because there was no supporting evidence) in finding that:
· the mother worked on a part-time basis;
· the father claimed he had “expert knowledge”;
· the mother had been more involved in X’s attendance on Dr S and other medical professionals than had the father;
· the mother had taken X to Dr S about “disorientation” when she had “unilaterally and on her own visited Dr [S]”;
· an email written by the father to Dr S was “quite accusatory and critical of Dr [S] and was written in an aggressive tone”;
· the father’s behaviour to Dr S was “harassing, aggressive and confrontational”;
· the father’s application sought orders in respect of Dr S;
· the parties had enrolled X at C School shortly after his birth;
· the sending of copies of the decision in [proceedings under the Discrimination Disability Act 1992 (Cth)] to teachers and others involved in the care of X resulted in these persons feeling intimidated;
· the father sought the appointment of Ms N as a single expert;
· an email to the children’s school dated 9 May 2008 was aggressive when his complaint was well founded;
· the father’s relationship with school staff had broken down and several staff members were reluctant to work with the father;
· no evidence had been called regarding H School or an alternate school in the K area when the father had filed affidavit evidence about these schools;
· there was no guarantee that a disabled student in a State school would receive the full benefit available under a government program;
· neither child could be enrolled in K Primary School or K East Primary school;
· Mr P, the expert psychologist, was familiar with his notes;
· the children have a primary relationship with the mother;
· the father’s arrogance went to the point he could not change his ways; and
· the father said “professionally I can be abusive”.
Before discussing these challenges it is appropriate we refer to the relevant appellate principles. In De Winter and De Winter (1979) FLC 90-605 Gibbs J said at 78,091-78,092:
It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v. Storie (1945) 80 C.L.R. 597 , both Latham C.J., at p. 600, and Rich J., at p. 604, cited from the judgment of Viscount Simon L.C. in Blunt v. Blunt (1943) A.C. 517, at p. 526:
If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court’s discretion will have been exercised on wrong or inadequate materials . . . .
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.
In AMS & AIF (1999) 199 CLR 160 Kirby J explained at paragraph 150:
Ninthly, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
We regard a number of the issues raised, such as the complaint about the mother’s working hours of 36 hours per week being wrongly described as part-time, or the fact the enrolment at the children’s school was an expression of interest rather than actual enrolment, as trivial having regard to the serious issues which the trial Judge was called upon to determine, and we do not propose to discuss them.
The father’s complaints about the factual findings made in respect of the schools in the K area and the funding available to a student, overlook the fact there was expert evidence before the trial Judge which his Honour accepted. It was unnecessary in those circumstances for the trial Judge to place any weight on the father’s uncorroborated evidence of hearsay conversations about the schools.
The trial Judge, under the heading “The father’s disputes with individual staff members of the school”, made general findings at paragraph 121 of his reasons. In the following paragraphs, his Honour referred to the evidence of Mrs B, the school principal, recording his observations of her cross-examination, particularly her cross-examination by the father. His Honour recorded that the school had found it necessary, for what he understood to be the first time, to have a solicitor present at a Program Support Group meeting to take notes because of the school’s concerns about “the father’s attitude and conduct”. (paragraph 125)
At paragraph 130 of his Honour’s reasons, the trial Judge set out a letter written by Ms O, X’s teacher in 2007, to the school principal in which she complained about the father’s “bullying behaviour”, insulting messages to her in the child’s diary, and her concern about the father’s behaviour which led her to seek guidance, adoption of appropriate strategies and consideration of whether, because of the father’s attitude, X’s interests would be better met at another school.
His Honour also referred, at paragraph 133, to the evidence of Ms E, who had resigned her role as X’s school speech pathologist because she had been unable to establish a good clinical relationship with the father.
At paragraph 135, his Honour referred to an email from Ms M, a staff member at X’s school, and then referred to the terms of the father’s response to that email at paragraph 136. Although the trial Judge also referred to a meeting Mrs B had with X’s then current class teacher, at which the class teacher reported behaviour by the father which caused her to become extremely upset, his Honour did not place significant weight on that evidence. Notwithstanding that fact, there was compelling evidence both from witnesses before his Honour and corroborating documents which more than adequately supported his Honour’s findings in paragraph 121.
The evidence before the trial Judge about the father’s interaction with Dr S was compelling. This specialist had, as a result of the father’s actions, refused to continue treating X, notwithstanding that he had been the child’s treating specialist since he was aged approximately six months old. The finding made was supported by the evidence.
We have earlier discussed the circumstances in which Ms N was appointed and it is unnecessary we further refer to this matter.
The father’s submissions in respect of the trial Judge’s findings about Mr P’s evidence and the findings about a primary relationship with the children’s mother, demonstrate to us the father’s lack of understanding, or misunderstanding, of the role of the trial Judge, and the use of expert evidence. We discern that when his Honour made his observations about Mr P he was recording his observations of the manner in which this very experienced expert gave his evidence which demonstrated that he, Mr P, was thoroughly conversant with the matters in issue. Mr P interviewed the parties and the children and observed the interaction of the children with each of the parents. He was eminently qualified to give the evidence he did about the children’s primary attachment to the mother, and his Honour was entitled to accept that evidence.
Although we think it of little moment, we note that in exchange with counsel for the mother, the father conceded his manner at times was professionally abrasive. We acknowledge that the trial Judge’s reasons which refer to the father acknowledging he said he could be “abusive” is in error. That mistake is not one which warrants interference by us. It could not be said to affect the overall result.
In summary we find no merit in these challenges.
The Jones v Dunkel challenge
In ground 15 the father asserted that the trial Judge failed to apply “the principle from Jones v Dunkel in reference to the failure to give evidence for the Mother by the following witness”. The named witnesses were:
·Dr S (the child’s treating neurologist);
·Mrs L (X’s prep teacher);
·Ms O (X’s grade 1 teacher);
·Ms G (X’s grade 2 teacher); and
·Ms M (Head of Individual differences).
The principle in Jones v Dunkel is described in Butterworths Cross on Evidence Australian Edition as follows:
In Australia the principles under discussion are commonly termed “the rule in Jones v Dunkel”. They can be summarised thus.
First, that unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case. The rule can operate against parties not bearing the burden of proof and parties which do bear it as well. The appropriate circumstances exist where it was within the power of the party to tender the evidence which was not tendered … (footnotes omitted) (p 1091)
We were not directed by the father to any submissions made by him about the failure to call these witnesses. However, our reading of the submissions made to the trial Judge by the father, demonstrates that in his submissions in reply the father indicated to the trial Judge that the mother should have called Dr S. The following submission was made to his Honour:
[Dr S] is one of many neurologists in Melbourne who could treat [X] and his absence is pretty significant in this case because the whole of the mother’s case on the neurologist depended on him coming along and saying, “I’m essential for [X], for whatever reason, no-one else could conveniently do it. I’m far better than [Dr H].” (transcript, 27 March 2009, p 1372)
Earlier, at p 1365, the father referred to the fact that Ms O had not given evidence to rebut the father’s evidence in which he asserted she had told him X should not be at the school. The father made a similar submission about the failure to call Ms L (transcript, 27 March 2009, p 1365). We did not locate any Jones v Dunkel submission in respect of the failure to call Ms G or Ms M. In our view, the submissions the father did make lacked the necessary foundation to demonstrate why the rule in Jones v Dunkel applied. In our view, the father has misinterpreted the rule.
Insofar as the asserted failure to call Dr S is concerned, it must be remembered that X’s diagnosis was not in dispute. Further, it was not in doubt that the father’s correspondence with Dr S resulted in the specialist withdrawing his professional services from the child.
The submissions on costs prepared by the ICL refer to the fact the trial Judge granted leave to the father to compel Dr S’s attendance by subpoena, but the father did not take up the opportunity to do so.
At the commencement of the trial, and again in closing submissions, his Honour made it clear that, if he found the parties were unable to reach agreement about X’s medical treatment and educational needs, it would be inappropriate to make an order for equal shared parental responsibility or to determine which school or treating medical specialist X should attend. That was the manner in which his Honour ultimately determined the issues he identified at the commencement of the hearing. We do not accept it was necessary for Dr S to be called, or that the failure to call him should have resulted in an inference that his evidence would not assist the mother’s case.
Similarly, we are satisfied there is no merit in this ground in respect of each of the teachers identified by the father. We discern the father has asserted error by the trial Judge by failing to accept his view of his relationship with these teachers as the only relevant and accurate evidence, rather than appreciating his Honour accepted and preferred other evidence, including evidence such as Ms O’s letter to the school principal, and the principal’s evidence.
Asserted errors in the exercise of discretion
We indicated at the commencement of these reasons there were a vast number of grounds of appeal on which the father sought to rely. The majority of the grounds we have identified are an attack on the exercise of discretion by the trial Judge.
Before we deal with this major thrust of the father’s appeal, we propose to refer to parts of his Honour’s reasons, and to the principles applicable to this challenge. We have also, by reference to the father’s oral submissions, endeavoured to identify the matters he raised as asserted significant errors relative to the exercise of discretion.
The trial Judge’s reasons
At the commencement of his reasons, the trial Judge noted that the proceedings involving the children had been “extremely protracted and bitter”. His Honour went on to note “[t]he single most important fact is that [X] suffers from certain disabilities, requiring a high level of management of his health and schooling”.
Having recited that, after the making of consent orders in 2006, arrangements for the care of the children appeared to have worked reasonably successfully, his Honour explained that in December 2007 the father and his partner moved from the L area to live at V. The trial Judge described that event as having “a profound effect on these proceedings”.
His Honour then recorded that the children attend a private school in the inner city, that the mother proposed to continue living in L and the father proposed to continue to live at V. This, he explained, resulted in a substantial distance between the parents requiring significant driving times to enable them to be both involved with the children. His Honour also noted it was part of the father’s proposal that “the children should leave their present school and go to a State school approximately equidistant from each of the parents, allegedly at least in so far as driving time is concerned” (paragraph 4).
In the following paragraph, his Honour highlighted what he described as “fundamental issues”, including the differing position of the parties in regard to shared parental responsibility, whether “exceptions be made with regard to one of the parties having the sole responsibility to determine all matters with regard to [X’s] health and the schooling of both children; and the proportion of time during which each of them is to care for the children”.
Having set out background details about the parties and the children, including referring specifically to X’s disabilities, his Honour moved to the issue of credibility. His Honour then referred to the parties’ proposals and noted that the ICL essentially supported the mother’s proposal. Under the heading “Two Individual Issues Relating to [X]”, the trial Judge considered issues relevant to X’s health.
At paragraphs 63 and 64 of his reasons, his Honour set out each party’s contentions about X’s disabilities and, at paragraph 65, his Honour noted:
For present purposes, it is sufficient to rely on the statements of the parties quoted in the last two paragraphs. The real issues are the ways in which [X]’s health problems manifest themselves and the consequent requirements for special needs education.
Under the heading “Dr [S]”, at paragraphs 66 to 92, the trial Judge dealt with medical issues with specific emphasis on X’s treatment by Dr S and the father’s correspondence with this specialist. At paragraph 76 of his reasons, the trial Judge referred to an email that the father had sent to Dr S and made findings about that correspondence:
… It was quite accusatory and critical of [Dr S] and was written in an aggressive tone. It commenced with an assertion that the mother had told the father that she intended to see [Dr S] without [X] or the father but had in fact attended with [X]…
Having set out extracts of the father’s email correspondence with Dr S the trial Judge referred to Dr S’s response in which he requested the father to “see your GP for referral to someone else”. (paragraph 82)
At paragraph 85, his Honour explained:
It is common ground that the father did not consult the mother with regard to any part of the above exchange and, in particular, his acceptance of [Dr S]’s resignation. The mother swore:
“I was very concerned that [the father’s] behaviour had resulted in [Dr S]’s refusal to continue treating [X].”
Commencing at paragraph 93 under the heading “[X’s] Education”, his Honour explained the course he had adopted at the beginning of the trial as follows:
… I discussed with all Counsel the manner in which it was open to me to make decisions with regard to that issue. I informed Counsel that my usual practice was to decline to make specific decisions with respect to schooling, particularly an actual choice of school, but rather to consider providing for how the parties are to have the power, duty and responsibility of making decisions with respect to schooling if that were an issue which the parties were unable to agree on and it was otherwise in the best interests of the children.
His Honour went on to observe that it was “a fundamental part” of the father’s case that he should make “specific decisions with regard to the schooling of the children, particularly with regard to [X’s] special needs”. His Honour explained:
… As that is an issue which is raised by the parties and it is essential that I not necessarily impose general decision-making but rather make a decision in this matter on its own facts, I proceed to a consideration of the relevant issues.
The trial Judge then set out the history of the children’s enrolment at C School (“the school”).
His Honour explained that the mother had called one witness from the school, Mrs B, the school principal. He also explained that he heard from several other witnesses regarding various issues of X’s education and potential schools and, in particular, evidence of Ms N, a clinical neuropsychologist, who was initially appointed to assess and report on X’s educational needs.
His Honour then explained how the appointment of Ms N as a single expert had occurred. At paragraph 103 of his reasons, the trial Judge said that he found Ms N “a most competent professional”, and that he accepted her evidence in its entirety. Thereafter his Honour set out significant portions of reports prepared for the Court by Ms N.
His Honour then turned to discuss the evidence of Mrs B. His Honour found her to be “a highly professional, competent and compassionate person who has [X’s] best interests at heart” (paragraph 113). Having explained that he found Mrs B to be a witness of truth, whose evidence he accepted in its entirety, the trial Judge went on to say:
However, I note that the findings in this paragraph do not necessarily lead to a further finding that the school is necessarily providing [X] with everything he needs. Nor is it necessarily a finding that it is appropriate that [X] remain at that school. I must consider those matters separately. (paragraph 113)
His Honour then explained, in paragraph 114, that the school was impressed with Ms N’s work and had supported it.
At paragraph 115, his Honour set out those portions of Ms N’s report which dealt with the facilities provided for the child at the school. Having foreshadowed that he would thereafter deal with the question of the father’s relationships with members of staff at the school, his Honour made a finding that where the evidence of Mrs B conflicted with that of the father he preferred the evidence of Mrs B. (paragraph 116)
In paragraphs 117 to 120, the trial Judge set out the father’s criticisms of the school and the benefits he asserted the child would receive in the State system of education, including having a greater proportion of his special needs education delivered by a special needs teacher rather than a teacher’s aide. His Honour observed, at paragraph 120, “[t]he evidence does not give him any support for that proposition. He relies solely on his own contention”.
Under the heading “The father’s disputes with individual staff members of the school”, his Honour made a finding that the relationship between the father and the school had broken down.
Later, at paragraph 125, his Honour explained the breakdown of the relationship between the father and the school was illustrated in meetings conducted involving the father, including the fact that the school required its solicitor to be present to take notes at a meeting conducted in February 2007 as a result of the school’s concern about its legal position with regard to the father’s attitude and conduct.
His Honour then set out correspondence from X’s class teacher, Ms O, written on 22 June 2007 in which she described the father’s behaviour towards her as constituting “bullying behaviour”. His Honour found no inconsistency in the allegations made by Ms O and that they were “totally consistent with the entirety of the evidence relating to the father’s conduct” (paragraph 131).
At paragraphs 140 onwards, his Honour dealt with the father’s alternative proposals for X’s education by firstly referring to the evidence of Ms MC from the Department of Education and Early Childhood Development (we have earlier set out his Honour’s findings about the inability of the father to enrol the children at K or K East Primary Schools on the basis of the evidence given by Ms MC).
His Honour then dealt with the evidence of Mr I from the Department of Education and Training, who was called by the father. His Honour concluded, at paragraph 150:
Having reviewed the evidence, I make certain assumptions with regard to that submission. As discussed above, [Mr I’s] evidence referred to the various levels of funding for children with disabilities. In particular, he noted that in his view [X] would not qualify for funding above level 3. His evidence establishes that the 2009 funding for level 6 is $40,000. There is further evidence to establish that in quite exceptional circumstances, approval can be given for funding in excess of that level. On the basis of the evidence that [X’s] funding would not go beyond level 3 and there is not the slightest suggestion of eligibility for exceptional circumstances funding, the father’s submission is completely unfounded.
Having recited Mr I’s evidence that X would not be entitled to funding beyond level 3, his Honour concluded the father had not established his proposition that X would be entitled at a State school to funding of a higher amount, or perhaps even funding equal to that which he was receiving at the school.
Under the heading “Conclusions with respect to [X’s] education”, at paragraph 154, his Honour summarised his findings concluding that the father had not established that:
·the nature or standard of education provided to [X] by the school, particularly in response to his special needs, is inadequate in any way;
·the funding which might be received by an alternative school, particularly in the State system, would be any greater than that which is provided by the school; and
·the apportionment of any funding as between a special needs teacher and a teacher’s aide could not be guaranteed to be different as between the school and any other school.
Further, the evidence indicates that:
·neither child could be enrolled at either [K] Primary School or [K] East Primary School because of the residential neighbourhood requirement; and
·the relationship between the father and the school has totally broken down as a result of the father’s conduct and actions.
…
After referring to the relevant legal principles, his Honour discussed the further expert evidence in the proceedings being that of the Family Consultant, Mr SD, and Mr P, a psychologist in private practice. His Honour accepted Mr P’s evidence in its entirety.
In dealing with the first of the primary considerations (s 60CC(2)(a)) his Honour concluded, at paragraph 179, as follows:
… [Mr P] satisfies me that no matter how I structure the orders in this matter within the parties’ proposals, the children will have a meaningful relationship with both their parents.
In the subsequent paragraph he turned to consider the second primary consideration (s 60CC(2)(b)) and explained as follows:
… While I have already been critical of the father for a number of his actions and will make further comments on those matters below, I do not believe that his conduct can be characterised as causing harm to the children. In my view, it is possible that in the future, if his behaviour towards those with responsibility for caring for the children continues in the ways described earlier, there is a risk that such behaviour could become at least indirectly abusive of one or both of the children.
His Honour then proceeded to deal with each of the relevant s 60CC(3) considerations (“the additional considerations”). In dealing with the children’s views, his Honour noted that both children expressed very positive feelings towards both of their parents to the Family Consultant and Mr P and noted their expressed wish to continue their relationships with both parents.
His Honour, in dealing with the children’s relationship with their parents and others, found, based on Mr P’s report, that the children had excellent relationships with the father and his partner and also with the mother.
At paragraph 186, his Honour discussed the evidence which led to his conclusion that the children had a primary relationship with the mother.
At paragraph 188, his Honour turned to consider the ability of each parent to promote a relationship between the children and the other parent. His Honour explained “[i]n my view, this is an extremely important consideration in the context of this matter which requires considerable analysis”. He found that each parent was “extremely critical of the other” but there was a “qualitative difference in that criticism”. The trial Judge gave examples of the father’s conduct towards the mother, and referred to comments made by the father about the mother during his cross-examination. (paragraphs 190 – 191)
At paragraph 200 of his reasons, the trial Judge accepted the evidence of the mother as to the advice she had given the father about a change of dosage of X’s medication. His Honour went on to find the excess administration of the dose of the drug by the father whilst deliberate, was not malicious, but rather he made a mistake. However, his Honour criticised the father because rather than conceding his mistake, he blamed the mother. His Honour also referred to the fact that the father had sent numerous SMS text messages to the mother “referring to her as ‘Citag’ which is ‘predictive text for ‘bitch’” (paragraph 203).
Whilst acknowledging the mother was critical of the father, his Honour found her to be “more acknowledging of his positive role with the children than he is of her”. His Honour concluded, at paragraph 205, “[r]ather, her position, with which I agree, is that he fundamentally goes about his parenting in the wrong way and seriously so”.
Consequently, his Honour found, that as between the parties, the mother was more likely to promote the children’s relationship with the father than the father was with the mother.
His Honour then went on to consider any change to the children’s arrangements, noting that neither sought to maintain the status quo contained in the 2006 orders.
Insofar as X’s schooling was concerned, his Honour referred to Mr P’s evidence that the father’s proposal would involve X in a “sense of disconnection from a local peer group and a change in the social structure of familiarity of his life at [the school]”. His Honour found this was a factor which could not be ignored.
In dealing with practical difficulty and expense in the arrangements proposed by the parties, his Honour addressed the issue of the father living at V.
58. The Judge erred in concluding the Father uses [X’s] weight as a mechanism to criticise the Mother failing to consider the Father's testimony and evidence that showed that he is genuinely and justifiably concerned unlike the Mother.
59. The Judge erred in concluding that "[X] was enrolled by both parties at [C School] shortly after his birth" whereas there was no evidence of this while an 'expression of interest' was made at that time by both parties shortly after his birth: see paragraph 95.
60. The Judge erred in failing to take into consideration the fact that in the second half of 2005 the Mother, while living in [M], was jointly exploring school options at [M] with the Father then unilaterally moved to Melbourne and enrolled
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[X] at [C School] in January 2006.
61. The Judge erred in describing the Father's cross examination of [Mrs B] as displaying an antagonism towards her and that the manner of the cross examination demonstrated his “antipathy towards her and the school” (see paragraph 97) whereas there was no evidence of this while the Judge unreasonably attacked the Father as cross examiner in the early stages, during the course of her cross examination described the “every word” of the decision of [proceedings under the Discrimination Disability Act 1992 (Cth)] as “agonizing” to her, showed unreasonable indulgence towards her, made significant criticisms of the Father to [Mrs B] before her evidence was complete and ingratiated himself to her in an unreasonable fashion.
62. The Judge erred in saying that the Father applied for an order appointing [Ms N] as a single expert whereas the Father applied for [Dr J] to assess the educational in class needs of [X] and it was the Judge's insistence to appoint [Ms N], while the Father through his own Counsel repeatedly suggested to the Judge that she would be unable to assess the in class support required by [X] (see paragraphs 99 and 102) while [Ms N’s] own oral evidence was that she could not advise on the difference between a teachers aide and a special ed. teacher.
63. The Judge erred in failing to conclude that [Ms N] was unable to properly and fully assess the schools treatment of [X] because she was unable to comment on whether a special ed. teacher or a teachers aide would be better for [X].
64. The Judge erred in failing to properly describe [X’s] disabilities by failing to refer to or consider his auditory processing disorder: see paragraph 107.
65. The Judge erred in failing to appreciate or consider the effects of [X’s] disabilities including his epilepsy on his learning needs: see paragraph 107 and following.
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66. The Judge erred in failing to consider that the school had consistently failed to follow the recommendations of [Ms N’s] first report from December 2007: see paragraph 108.
67. The Judge erred in interpreting [Ms N] evidence that “on an absolute scale [of IQ] that [X] was performing at the same approximate level as he was at the time of her first assessment and report... [and that] by virtue of his increased age and the progress of the students around him, he was effectively going backwards in relative terms” (see paragraph 111) failing to consider that this evidence from [Ms N] was only in relation to psychomotor functioning which is only 1 of 11 subtests of overall IQ which she concluded had remained stable relative to his peers, i.e. in the mid range and in her report she stated that "his performance indicated absolute gains in all subtests and overall age appropriate development".
68. The Judge erred in failing to take into consideration the evidence from [Ms N] and [Mr P] that [X] would be unlikely to achieve the best of his ability in a highly academic school which is what [C School] is: see paragraph 111.
69. The Judge erred in concluding that the Father asked [Ms N] during cross examination to assess the schools performance in catering for [X’s] needs when that did not occur: see paragraph 112.70. The Judge erred in concluding that [Mrs B] was “a highly professional, competent, and compassionate person who has [X]’s best interests at heart” (see paragraph 113) whereas failing to consider the scope of the evidence from [Mrs B] which did not permit such conclusions.
71. The Judge erred in concluding that [Mrs B] gave evidence that the school had implemented the recommendations of [Ms N’s] first report (see paragraph 114) whereas there was no such evidence and it
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defies commonsense that a teacher would have sufficient time to implement the recommendations.
72. The Judge erred in relying on “the evidence of [Ms M] with regard to the Father's relationship with members of staff at the school” (see paragraph 116) to conclude that “at all points at which the evidence of [Mrs B] conflicts with that of the Father I prefer the evidence of [Mrs B]” whereas [Mrs M] did not even give evidence.
73. The Judge erred in failing to consider the evidence of the Father in his affidavit and oral evidence to the effect that at [H School] [X] would have
unlimitedaccess to the assistance of special education teachers “on tap” that is unlimited.
74. The Judge erred in concluding that the Father’s contention that [X] should have the predominance of his special needs education delivered by a teacher rather than a teacher’s aide was unsupported in any way by the evidence (see paragraph 120) failing to consider the evidence of such a proposition arose from [Mr I] (who the Judge described as having vast experience in the education of disabled children) and by the schools own admission in the PSG minutes of February 2007 confirmed in oral evidence by [Mrs B] during the trial.75. The Judge erred by concluding that [Ms N’s] inability to comment upon whether [X] would be better off with a special education teacher rather than a teacher's aide in no way diminished [Ms N’s] ability to comment on whether the school was meeting [X’s] needs whereas this is precisely the critical question: see paragraph 120.
76. The Judge erred in concluding the relationship between the Father and
the school had broken down (see paragraph 121) and that "several
staff members had said they are reluctant or unprepared" to work with
the Father whereas there is no evidence to support this proposition.
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77. The Judge erred failing to consider reasons for the schools wariness for the Father's position other than simply the Father's conduct (see paragraphs 122 to 125) whereas the school had every reason to be defensive about its treatment of [X] because they knew they were not providing him with optimum conditions while [Mrs B] conceded in oral evidence the Father was reasonably and solely motivated by [X’s] best interests.
78. The Judge erred by failing to consider the evidence that the school by its own admission as referred to in the February 2007 PSG minutes was not providing [X] with optimum learning conditions by failing to provide a special education teacher and continuing to make the claim that [X] did not have a disability relevant to his learning needs whereas the contrary was abundantly clear: see paragraphs 125 to 128.
79. The Judge erred in failing to consider the schools failure to provide the Father with information regarding [X’s] reading level as compared to his peers in a meaningful way despite repeated requests over a six week period in about March to May 2007, being a reasonable request with was dealt with in an unreasonable manner by the school: see paragraphs 130 to 131.
80. The judge erred in failing to consider the fact that [Mrs O’s] complaint to the school about the Father was never communicated to the Father in any way and the school failed to take any relevant action with respect to the Father, consistent with the conclusion the Father had done nothing wrong.
81. The Judge erred concluding the “contents of the letter [written by [Mrs O] being exhibit M2] were supported by [Mrs B]” by failing to take into consideration the fact [Mrs B] was not directly involved in any discussions or communications between the Father and [Mrs O] about [X’s] reading levels and [Mrs B] gave no oral evidence in support of the letter: see paragraph 131,
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82. The Judge erred in concluding that the final sentence of [Mrs O’s] complaint letter [exhibit M2] did not amount to an independent suggestion that [X] would be better off at another school whereas clearly this was the meaning of the sentence.
83. The Judge erred in failing to take into consideration the oral evidence of [Ms E] that it was entirely reasonable for the father to assume she would be interested in reading the decision of […]: see paragraphs 133 to 134.84. The Judge erred in failing to take into consideration the fact that [X] had received almost no one-to-one in class support from his teacher for the whole of term 1 in 2008 while [X] had been attending the school for over 2 years at that stage and by any measure required a great deal of in class teacher support, when concluding the Father's complaint dated Friday 9th May 2008 about lack of in class support was aggressive: see paragraph 135 to 137.
85. The Judge erred in concluding the Father's email dated Friday 9th May 2008 to the school complaining about the lack of in class support for [X] was aggressive whereas the complaint was well founded, contained no threat and was later conceded by the school to have been legitimate: see paragraph 135 to 137.
86. The Judge erred in failing to take into consideration the evidence that [X] had been placed on his own in class for most of term 1 in 2009 when referring to the evidence of the meeting between [Mrs SH], [Ms R] and the Father on the 19th March 2009: see paragraph 138.
87. The Judge erred in concluding that "no evidence was called" regarding [H School] or an alternative private school in the [K] area (see paragraph 145) by failing to take into consideration the Father's affidavit evidence about [H School] and [C School].
88. The Judge erred in ascribing "minimal weight" and failing to take into consideration to the clear and considered evidence of the Father and
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[Ms R] about their visit to [H School], extensive discussions with the principal and the benefits to the children of attendance at this school: see paragraph 145.
89. The Judge erred in failing to consider that were [X] to be placed in a State school the application of the funding under the Program for Students with Disabilities could not readily be applied to the provision of a special education teacher in preference to a teacher's aide: see paragraphs 147 to 150.
90. There was a denial of natural justice to the Father by not being able to have a paediatrician such as [Dr J] assess [X’s] education needs and express an opinion about the quality and quantity of support he should obtain under the State Governments Program for Students with Disabilities due to the Judge's refusal to allow the Father to call such evidence whereas [Mr I] stated that the funding assessment relied heavily on that sort of advice: see paragraphs 148 to 150.
91. The Judge erred in concluding that there was no guarantee in a State Government school that a disabled student would obtain the full benefit of the additional funding under the Program for Students with Disabilities by failing to take into consideration [Mr I] evidence was to the effect that such would be highly unlikely: refer paragraphs 152 to 153.
92. The Judge erred in concluding that the Father has not established that the education of [X] provided by [C School] "is inadequate in anyway" by failing to take into consideration the evidence of [Mr I] and the schools own admission that a special education teacher is better than a teacher's aide: refer paragraph 154.
93. The Judge erred in concluding that neither child could be enrolled at either [K] Primary School or [K] East Primary School by failing to take into consideration that both schools had told the Father that he needed “an address" in the area in order to qualify for admission and further that
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entry was ultimately at the discretion of the Principal: refer paragraph 154.
94. The Judge erred by examining the education of [X] at [C School] from the perspective of the school Principal rather than from the perspective of the child or the child's best interests: refer paragraph 155.
95. The Judge erred by failing to take into consideration the wishes of the Father as to the choice of school.
96. The Judge erred in making orders which do not allow the Father to participate in the children's daily routine at school or during school term.
97. The Judge erred in failing to take into consideration [Dr S’s] ethical obligation to act in the patients best interests by insisting that [X] be treated by another neurologist rather than seeking to exclude the Father: see exhibit JG 12 AMA Code of Ethics,
98. The Judge erred in failing to take into consideration the patient's right
to question medical advice: see exhibit JG 12 AMA Code of Ethics.99. The Judge erred in failing to take into consideration the patient's right to choose their doctor which in the present circumstances requires the agreement of both parents: see exhibit JG 12 AMA Code of Ethics.
100.The Judge erred in failing to take into consideration the evidence that the parents had jointly told [Dr S] in November 2006 that [C School] was not appropriate for [X] and could he recommend other schools.
101.The Judge erred in concluding that [Mr SD] was “thorough, even handed, professional in his work” by failing to take into consideration the fact that [Mr SD] could not read his own handwriting of his interviews with the parents and children: see paragraph 173.
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102.The Judge erred in failing to take into consideration the fact that [Mr SD] did not expressly deny the Father's evidence that he told the Father that [Y] had said that she did not want to see less of her Father.
103.The Judge erred in his conclusions about [Mr P’s] oral evidence in failing to take into consideration the evidence that his primary motivation in suggesting a 9/5 split of care in favour of the Mother was "a feeling" that [V] was too far away whereas this was contrary to the evidence and contrary to the principles espoused in D v. SV.
104.The Judge erred in his giving little or no weight to [Mr P’s] written report which was to the effect emphatically that the care of the children should be split equally between the parents.
105.The Judge erred in concluding that [Mr P] was "obviously familiar with his notes" when there was no evidence of that: refer paragraph 175.
106.The Judge erred in preferring the oral evidence of [Mr P] in support of a 9/5 split in favour of the Mother in preference to [Mr P’s] written report which was to the effect that there should unquestioningly be an equal split in the care of the children by failing to take into consideration that [Mr P] had admitted at the time of giving oral evidence that he had not recently reread the report so his oral evidence was 'off the cuff’.
107.The Judge erred by failing to give sufficient weight to the fact that both children expressed a wish to not spend any less time with their Father: refer paragraphs 181 to 184.
108. The Judge erred in concluding that the children have "a primary relationship" with their Mother (refer paragraph 186) whereas there was no evidence to such effect.
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109.The Judge erred by failing to take into consideration the fact the children currently spend an unequal greater number of nights at their Mother's house than their Father's house when considering the question of who the children were primarily dependent upon: refer paragraphs 186 to 187.
110.The Judge erred by giving insufficient weight and failing to take into consideration the significance of the relationship between the children and the Father’s partner, [Ms R] (refer paragraph 185) whereas the evidence was to the effect that the children could comfortably rely equally on any one of the Father, the Mother and [Ms R].111.The Judge erred in failing to take into consideration the Mother's conduct in attempting to marginalise the Father as described in the Father's affidavit at paragraph 155, when considering each parent's ability to promote the relationship between the child and the other parent: refer decision paragraph 188.
(i)See father's affidavit at par. 155,
112.The Judge erred in failing to take into consideration the Mother's application in the current proceedings the effect of which is to further marginalise the Father in considering each parent's ability to promote the relationship between the child and the other parent: refer decision paragraph 188.
113.The Judge erred in failing to take into consideration the Mother's trial affidavit which focuses strongly on personal attacks against the Father rather than the best interests of the children in considering each parent's ability to promote the relationship between the child and the other parent: refer decision paragraph 188.
114.The Judge erred in concluding the Mother did not advise the husband to in effect give [X] an overdose of trileptal in August 2008 by failing to take into consideration the evidence that the dosage was to significantly increase from the 26th August being 10 days after the Mother gave the
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Father a handwritten note describing the dosage she insisted upon: see paragraph 195 to 200.
115.The Judge erred in his conclusions critical of the Father in relation to the trileptal overdose failing to take into consideration that the Father was obliged to follow the Mother's instructions pursuant to Court orders: refer paragraph 201.
116.The Judge erred in his consideration of the status quo by failing to consider the evidence that the children currently and have for the past 5 years spent approximately equal amounts of waking time with each parent: refer paragraphs 208 to 212.
117.The Judge erred in his consideration of the practical difficulties of each parties proposals in failing to consider that under the Mother's proposal (essentially what was ordered) in the weekends when the children are with the Father there is enormous difficulty for the children to have play dates, birthday parties and the like with their school peers who will live in the area of [the inner city] whereas this problem is alleviated if the school peer group is most centrally located around [K]: refer paragraphs 213 to 214.
118.The Judge erred in his consideration of the parent's capacity to provide for the needs of the children in failing to take into consideration the fact the Father and his partner can almost always provide the children with high level care in the afternoons after school, this is particularly important for [X]: refer paragraphs 216 to 217.
119.The Judge erred in his consideration of the parent's attitudes to children in failing to take into consideration the Mother's history of treating [Y] like a baby, permitting [X] to regularly sleep in her bed, permitting [X] to have 2-3 hours sleep less then he ought get at her house, making lifestyle choices for the children that have significantly contributed to [X] being obese: refer paragraph 218 and following.
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120.The Judge erred in considering the Father's attitude to the responsibilities of parenthood in concluding the Father thought he was "somehow at least [Dr S’s] professional equal if not better than him" whereas there is no evidence to support this proposition: refer paragraph 222.
121.The Judge erred in concluding that the Father had treated [Dr S] in a "confrontational, aggressive and intimidatory manner" where there was no evidence to support that: refer paragraph 222.
122.The Judge erred in concluding that the Father's arrogance goes to the point of his being unable to concede that he should change his ways while there was no evidence to support that: refer paragraph 222.
123.The Judge erred in concluding that [Mrs B] was "doing everything she can to further [X’s] interests" while he failed to take into consideration the clear evidence that [Mrs B] agreed that it would be better for [X] to have a special education teacher rather than a teacher's aide but she refused to do so because "then we would have to do it for everyone": refer paragraph 223.
124.The Judge erred in his consideration of the Mother's attitude to parenthood by failing to take into consideration the Mother's passive acquiescence and unquestioning attitude in relation to health and education matters relating to [X]: refer paragraph 224.
125.The Judge erred in considering the Father's attitude to the responsibility of parenthood by saying the Father's evidence was "professionally I can be abusive" while there was no evidence to support this and in fact the Father had referred to being capable of being professionally abrasive: refer paragraph 225.
126. The Judge erred in considering the Father's attitude to the responsibility of parenthood in his consideration of child support payments to the Mother by failing to consider the evidence that:
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(i) the Father had had a negatively geared rental property;
(ii)that as at the time of the start of the trial the Mother was only claiming about 6 months worth of payments from which one can only conclude that as of the start of 2008 the Father was up to date in this payments;
(iii)that there was a dispute between the parties as to the precise amount of money due and the Mother had withheld pursuing the amounts against the Father in order to raise it in trail;
(iv)the payment made to the Mother during the trial, as was told to the Judge at the time, covered payments 7 months in advance;
(v)the dispute over the amount had been referred off to the Federal Magistrates Court;
(vi)when the current child support agreement was entered into the Mother obtained legal advice prior to signing the agreement;
(vii)that at the time of signing the current child support agreement the Father gave up the right to pursue a claim of overpayment;
(viii)the challenge to the Father as to child support payments made was solely on the basis of cash payments made and did not deal with payments made by cheque;
(ix)the father's gross receipts for the 2007/08 financial year were about $150,000 and [Ms R’s] gross receipts were about $150,000 per annum;
127.The Judge erred in failing to consider how equal shared parenting would work and the factors in favour of it: refer paragraph 240.
128.The Judge erred while considering the childrens best interests in failing to consider the evidence that the issues in dispute between the parents were primarily of the mother's making: refer paragraph 244 and father's affidavit at paragraph 155.
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129. The Judge erred while considering the childrens best interests by failing to consider the evidence that the father has had a good relationship with the overwhelming majority of people dealing with [X’s] health and education: refer paragraph 245.
130.The Judge erred while considering the childrens best interests by failing to consider the evidence of the mother that the father was well able to continue to participate in the childrens health and education matters except that she ought to be able to choose the school and the neurologist: refer paragraph 245.
131.The Judge erred while considering the childrens best interests by failing to consider the fact the father’s conduct regarding [X’s] health and education had no detrimental effect and to the contrary had resulted in improved education support: refer paragraph 245.132.The Judge erred while considering the childrens best interests by concluding the father had an overwhelmingly negative attitude to the entirety of the mother's parenting whereas there was no evidence of this, rather the evidence was confined to specific issues: refer paragraph 246.
133.The Judge erred while considering the childrens best interests by concluding the father would not promote the childrens relationship with the mother whereas there was no evidence for such a conclusion while the evidence was that the father had almost never criticised the mother in front of the children: refer paragraph 246.
134.The Judge erred while considering the children’s best interests by failing to consider the evidence of the mother’s marginalising behaviour towards the father: refer father’s affidavit at paragraph 155.135. The Judge erred in considering the prospect of equal time sharing by concluding that since he had previously decided the mother ought to decide the school then equal time sharing was precluded (refer paragraph 249 & 250), whereas there was no reason to consider these
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matters in sequence and there was no reason to limit the court's discretion to refrain from prescribing a geographic location of the mother's choice of school.
136.There was a denial of natural justice whereby the Judge permitted the mother to rely on a primary and alternative proposal (refer paragraph257) but refused to allow the same consideration to the father.137.The Judge erred in refusing to consider the father's alternative proposal, referred to repeatedly by the father during the trial and in final submissions, that there be equal shared care with the children attending school in or around [K] and while the father rented accommodation nearby the school the children would stay with him there during the week: refer paragraph 251.
138.There was a denial of natural justice in that the Judge during final submissions failed to tell the father he would not consider the father's alternative proposal as described immediately above.
29 January 2010
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ANNEXURE “B”
Family Court of Australia
Filed 19 FEB 201.0
Southern Regional Appeal Registry
IN THE FAMILY COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
SA 68 OF 2009
MLC 1172 OF 2007
BETWEEN:
[MR GREEN] APPELLANT
-AND-
[MS KNOWLES] RESPONDENT
-AND-
INDEPENDENT CHILDRENS LAWYER
AMENDED NOTICE OF APPEAL
The Court erred by extending time within which the Mother and ICL were permitted to file and serve their application for costs when there was no such application to extend time by either the Mother or ICL.
The Court erred by failing to give sufficient weight to the merits of the Father’s case.
The Court erred by concluding the trial orders were weighted “marginally” in favour of the Father whereas the childrens time during the school holiday periods have been divided as to 9 weeks with the Father and 6 weeks with the Mother.
The Court erred in making its conclusions about “the financial circumstances of the parties” referred to in section 117 Family Law Act by focussing instead on the issue of the current and historical financial arrangements between the parties.
There was a denial of natural justice insofar as there was no reason to consider at the start of the trial that the financial agreement between the parties, the negotiations around it, the reasons for it and the amount of any alleged debt owed by the Father to the Mother would be relevant facts in issue at the trial and there was no further evidence or opportunity to cross examine on those issues for the purpose of the costs application.
The Court erred by failing to take into account the fact the Mother’s costs of the trial had been
totallymostly funded by the Mother's mother with no apparent obligation to repay or compensate the Mother's mother.The Court erred by relying on a simplistic assessment of the Mother’s financial obligations in respect of the children while she chooses to and insists on sending the children to expensive schools thereby putting herself in a poor financial state.
The Court erred by concluding the Mother had partly financed her costs of the proceedings in the amount of $96,000 while there was no evidence of any such self funding.
The Court erred by concluding the Father’s conduct during the trial prolonged the hearing.
The Court erred by concluding at [26] the expert witness Ms N had not released her report due to the Father failing to pay her account whereas in fact Ms N had been mislead by the ICL as to the question of who was obliged to pay Ms N, the Father did in fact pay Ms N as soon as her invoice was released, and Ms N’s in providing her report presumably due to work pressures was the only reason the report was released late.
11. The Court erred by failing to take into account the fact the Father was cross examined for about 4 days.
The Court erred by failing to take into account the fact the ICL’s counsel for an extended period asked questions repetitive of the Mothers counsel's cross examination of the Father.The Court erred by failing to take into account many of the final witnesses in the trial were the Court’s own witnesses and clearly required to properly examine the issue of the special needs of the elder child.
The Court erred by failing to follow the decision of the Full Court in D v SV to the effect that in the present case the Father did not have to justify his living at V just outside metropolitan Melbourne,
The Court erred by concluding the Father failed to amend his proposed final orders to provide for his living inside metropolitan Melbourne for an extended period thus permitting equal shared time in accordance with the judge's comments [refer paragraph 30 costs decision] whereas in fact the Father did indeed submit such a proposal during
early on inthe trial.The Court erred by concluding at [31] the Father did not disclose his surrender of the K property to the Mother: the Mother knew at all material times of the surrender of the K property and her knowledge of that fact was not raised with the Father by the Court.
The Court erred by concluding the Father had mislead the court as to his surrender of the K property since the question was hypothetical in the context of the possible orders of the court and the Father's response at the time was accurate and not misleading.
The Court erred by concluding the Father was not prepared to make any concession on the issue of the location of his residence.
The Court erred by “concluding the evidence against the husband was overwhelming” at [32] regarding the Father’s approach to the issues of the special needs of the older child and the choice of school for the children.
The Court erred by not concluding that following the Mother’s evidence the Father’s case had an excellent prospect of success even on the judge’s own comments.
The Court erred by concluding at [42] the Father
suggested the judge wouldignored geographical issues.
22. The Court erred by failing to give any or sufficient weight to the consequences of bankruptcy for the Father in making the costs order.
The Court erred by failing to give any or sufficient weight to the merits of the Father’s case.The Court erred by concluding the Mother is in a difficult financial position.
The Court erred at [45] by concluding the Mother has overwhelming financial responsibility for the children regarding the older child's disabilities.
The Court erred by failing to take into account the evidence in favour of the Father’s case.
27. The Court erred by failing to take into account the partial success of the Father’s case.
28. The Court erred by concluding the Father’s credibility issues prolonged the trial.
29. The Court erred by concluding at [44] the Father was relevantly “ignoring the weight of the evidence.”
23 June 2009
18 February 2010
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