GRETTON & MERRIN

[2018] FamCAFC 48

FAMILY COURT OF AUSTRALIA

GRETTON & MERRIN [2018] FamCAFC 48

APPLICATION IN AN APPEAL – FURTHER EVIDENCE – where the father’s application did not contain further evidence but instead sought to issue subpoenas – where the husband speculated that those subpoenas might produce relevant evidence – where the application was misconceived – application dismissed.

APPEAL – PARENTING – where the primary judge made parenting orders in relation to a five year old child – where the child had always lived with the mother and spent time with the father – where the parties relationship was brief – where the primary judge ordered that the mother have sole parental responsibility and that she have liberty to relocate with the child – where the primary judge ordered that the father spend time with the child according to a graded regime that increased over a two year period – where the father contended that the primary judge’s reasons did not give appropriate weight to evidence and were inadequate – where the father contended that his legal representatives failed to tender important evidence on his behalf – where there was no merit in the appeal – appeal dismissed.

COSTS – where in the event the appeal was dismissed the mother and the independent children’s lawyer did not seek an order for costs – where the parties were ordered to bear their own costs of and incidental to the appeal. 

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513

APPELLANT: Mr Gretton

RESPONDENT: Ms Merrin

INDEPENDENT CHILDREN’S LAWYER: Ms Claire Newton

FILE NUMBER: LEC 3 of 2014

APPEAL NUMBER: NOA 1 of 2017

DATE DELIVERED: 13 March 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 13 March 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 17 November 2016

LOWER COURT MNC: [2016] FCCA 3479

REPRESENTATION

FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Ms Kirkman-Scroope

SOLICITOR FOR THE RESPONDENT: MJO Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Claire Newton Family Lawyer

Orders

1. The Application in an Appeal filed by the appellant on 23 February 2018 be dismissed. 

2. The appeal be dismissed.

3. Each party to this appeal bear their own costs of and incidental to it.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gretton & Merrin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

File Number: LEC 3 of 2014
Appeal Number: NOA 1 of 2017

Mr Gretton

Appellant

And

Ms Merrin

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT[1]

[1]As indicated orally during the delivery of the reasons, the settled reasons will contain the quotations mentioned orally and citations for any cases, legislation or rules referred to.  Headings have also been added to the settled reasons for ease of reference.

1. On 7 December 2016, Judge Purdon-Sully pronounced parenting orders in respect of a child who turned five the previous day.  Her Honour’s reasons had been delivered ex tempore on 17 November 2016. 

2. Her Honour made 28 orders.  The father appeals Orders 1 – 9 and Orders 25 – 27.  The first of the appealed groups of orders provide for the child to live with the mother, for her to, “have liberty to relocate the residence of the child to … [Town B]” (which is approximately 70 kilometres from Town A where she had been living) and for the mother to have sole parental responsibility for the child, subject to an ordered process of consultation with the father in respect of major long-term decisions.

3. The father was ordered to spend time with the child, according to a graded regime that increased the duration of time and the duration and frequency of school holiday time, over a period of about two years post trial. 

4. The second group of orders, the subject of the father’s Notice of Appeal, pertain to him being provided with information about the child from her school and medical practitioners.  On its face, it is difficult to see why those orders would be challenged, but orders otherwise made by her Honour provide for restraints upon the father sending more than one email to the mother and from entering upon or loitering near her place of employment.  Those orders might explain why the second group of orders are challenged.

The Orders Challenged On The Appeal

1. The father represents himself on this appeal and prepared his own material.  Although the Summary of Argument is, with respect to him, somewhat confusing, it was supplemented by a document filed on 12 March 2018 which I have formally given him leave to rely upon.  Although the document purports to be a List of Authorities, it in fact contains both a list of authorities and what might be described as discursive argument based upon them.  More broadly, some of the arguments contained within that document cannot be related, at least by me, to the three grounds of appeal to which I will shortly refer.

2. Understandably in the circumstances of this case, no objection is taken to the father relying upon that document. 

3. By reference to the heading “Orders Sought in the Appeal” as contained in the father’s Notice of Appeal, it seems clear to me that his challenge relates to the substance of her Honour’s orders.  In short, the father would have this Court re‑exercise the discretion such that orders be made for the child to live with him, that parents have equal shared parental responsibility and that an Australian passport issue for the child for the purpose of yearly visits by the father and the child to Country D from where the father originally comes. 

4. Favourably to the self-represented father, I will assume for the purposes of this hearing that he challenges the whole of the orders made by her Honour.  That such an approach is appropriate seems clear to me from the nature of the arguments advanced by him; the document to which I have just referred; his written Summary of Argument; and the oral submissions made by him.  No prejudice is asserted in that respect by either counsel for the respondent or counsel for the Independent Children’s Lawyer (“ICL”).

5. On 31 January 2018, the Chief Justice made an order, pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it is appropriate for the jurisdiction of the Family Court in relation to this appeal to be exercised by a single judge and it was heard by me today on that basis.

The Substance Of The Appeal

1. The father not only represents himself, but, it seems clear, prepared all of his own material including the Notice of Appeal.  The Notice of Appeal contains three grounds:

   1.The Honourable trial Judge did not give appropriate weight to my evidence at final hearing.

   2.The Honourable trial Judge did not provide reasons for final judgment.

   3.My legal representatives did not tender important evidence on my behalf at final hearing, contrary to my instructions.

2. The proceedings below commenced by way of an Initiating Application, filed by the father in late 2013, whereby he sought orders that the child live with him.  The father maintained that position until shortly before trial.  The mother opposed that order and sought that the child live with her and have regular time with the father.

3. At the trial, the father agreed to the substance of a proposal made by the ICL that saw the child continuing to live with the mother, her having sole parental responsibility and the father having regular and increasing time.  The father did not agree with the child and mother living in Town B and the mother’s proposal for time was more “cautious”, as her Honour described it, than that which was proposed by the ICL.  Thus, the main issues at trial were what time the child should spend with the father and whether the mother and child could live in Town B, rather than in Town A. 

4. It will be appreciated that the triable issues were, as a consequence, very narrow.  Equally, it will be appreciated that the father’s challenge is to the substance of orders with which he agreed at trial.  No ground challenges the integrity of his consent.

5. Notwithstanding the father’s mooted order for equal shared parental responsibility, the father seeks no specific order for time between the child and her mother in the event that the child was to live with him.  When pressed on this issue, the father proposed no specific order.  Rather, he contended that he would “be reasonable”. 

6. It will be appreciated, immediately I think, that significant hurdles confront the father in this appeal. 

7. The relationship between the parents was described by her Honour, accurately with respect, as brief.  They did not live together at any stage.  The father has two adult children, with whom he has a good relationship.  The mother has a child from a previous relationship.  At the time of the hearing before her Honour both parties resided in Town A.

The Child’s Circumstances

1. The subject child has always lived with the mother, although pursuant to interim orders made in early 2015, the child spends time with the father each week. 

2. At the time of the trial before her Honour, the child was attending kindergarten in Town A, although her Honour noted that she would be commencing school the following year.  The litigation history between the parties over this still young child has seen some 12 separate orders, made by different judges in the Federal Circuit Court of Australia. 

3. Her Honour described the parties’ relationship history as being characterised by “poor communication, a lack of trust, and an overall inability to effectively negotiate and problem solve” (at [5]). 

4. Although her Honour stated the father “has a great deal to offer [the child]” her Honour also found that the “principal hurdle in resolving the parents’ dispute is the father” (at [6] and [7]).

The Reasons Challenge

1. The second ground of appeal, challenging the adequacy of her Honour’s reasons, can be readily disposed of. 

2. Her Honour gave, with respect, careful and comprehensive reasons delivered ex tempore.  Importantly, as it seems to me, and with respect to her Honour, those reasons predominated the issue of risk to the child, as her Honour found it to be, to which I will make greater reference shortly.

3. Equally importantly, her Honour, whilst predominating that issue, balanced it against the benefit of a meaningful relationship between the child and her father in making the orders that her Honour did. Her Honour also dealt carefully and specifically with the matters emerging relevantly from the evidence, as required by s 60CC of the Act.

4. Taken together, there can be no doubt that the path of reasoning by which her Honour reached the orders that her Honour ultimately made, is clear and comprehensive.

5. Again importantly, as it seems to me, her Honour’s reasons can also be seen as explaining, for the benefit of the now self-represented father, precisely why her Honour made the orders that she did.  Ground 2 has no substance.

The Weight Challenge

1. The matters to which I have just referred also pertain to the challenge made in Ground 1, which is that her Honour failed to give appropriate weight to the evidence of the father.  It was, with respect to the father, difficult to understand precisely what this challenge comprises.

2. As teased out in oral argument it appears to be based on a number of assertions.  They include predominantly, it seems, that her Honour did not consider or give weight to the fact that the mother’s then partner had a police record that included serious offences.  Secondly, at least as agitated by the father before me, it seems that the challenge is that the mother “lied on the stand” and that her Honour failed to give weight to that consideration.  Thirdly, it is said that her Honour failed to have regard to a “child protection report” and failed to give the matters contained within it significant or, it seems asserted, any weight. 

3. Each and all of those assertions can, in my view, be answered by reference to the clear and comprehensive reasons which her Honour gave.

4. In light of the matters which the father agitates before me and which seem, in many respects with all due respect to him, to be a re­-agitation of the matters argued by the father before her Honour, I think it important to quote the relevant passages of the reasons.  Firstly and crucially, her Honour found:

   30.In terms of findings and some preliminary observations on the evidence, I find that the principal difficulty in effecting improvements in the parties’ co-parenting relationship is, as I indicated earlier, the father.   He has evidenced poor insight into the family dynamic and his contribution to that.  He has made a concerning level of unfounded complaint of the mother’s parenting of [the child] based on asserted welfare concerns.  He has evidenced a propensity to go to lengths to prove his case against her, notwithstanding the outcome of his complaints and the weight of the evidence being against such a conclusion. 

   31.I find the level of his texting to the mother and the nature and extent of his ongoing complaints about her a form of harassment of her. 

   32. I find that his propensity to complain to the authorities in support of baseless complaints against the mother potentially exposes [the child] to systems abuse. Whilst [the child] has not to date been interviewed by the police or Family Services, that does not mean that that may not happen in the future if the father continues to make complaints. The risk remains, I should say, that the father may continue to take matters into his own hands because of a refusal to accept the veracity of information provided to him by the mother. Whilst the orders of the ICL supported by the father address, for example, medical matters to do with [the child] and the risk of duplication of medical response, the risk remains that the father will continue to make complaint to the authorities, and this potentially exposes [the child] to not only parental conflict and dispute but, as I have said, potential departmental interview and/or police interview.

   33.Whether legally represented or not during these proceedings, at some point the father should have taken stock, stood back and critically assessed the evidence in relation to his welfare concerns. Whilst I am challenged to conclude that he could not have done that without legal advice, he was legally represented at the commencement of the trial, and throughout the trial.

   34. At some stage the evidence required him to question whether, in light of the inaction of the police and Family Services, in light of two detailed reports of an expert appointed by the Court whose assistance he sought, a report by a qualified psychologist who went above and beyond in his assessment, in light of there being no evidence from the child’s day care centre, by way of example, to suggest any welfare concerns for [the child] from its perspective, it was open to him to stand back and ask the question as to whether he was simply wrong, and that his welfare concerns were baseless.

   35. The father, however, presented at trial maintaining his concerns. His case against the mother was not only unsupported on the tested evidence but wholly at odds with the orders he sought. I do not accept his explanation that a bad mother is better than no mother, where that parent is abusive, or that having the child 50 per cent of the time logically and in any child focused way could be a response to an unacceptable risk of abuse. It was evidence that said more about the father than the mother.

   36. It not only called into question his insight and judgment, but the risks he posed to [the child] because of his continued belief that there was a “smoking gun”, to use the words of [the family report writer], his continued belief that the mother was harming [the child] and/or exposing her to harm in her household.

5. Importantly, her Honour recorded at [44]:

   Two family reports were prepared by [the family report writer], who, as I said, conducted a home visit and spoke to various family members.  I pause here to place on the record the Court’s thanks to [the family report writer] and acknowledge the efforts he undertook to assist this family.  I accept that he would have been, as he said, deeply disappointed to learn whilst under cross‑examination that the father has made a formal complaint to Canberra about [the family report writer], seeking the appointment of another report writer.

6. Again, that paragraph of her Honour’s reasons mirrors precisely the arguments raised by the father before me which sought to criticise the family report writer and matters that were contained within his report.

7. Importantly, in light of the specific assertions made by the father at trial and again before me this morning relating to the weight which he says was not given to his evidence, her Honour found at [39]:

   There is no persuasive evidence that [the child] is at an unacceptable risk of harm in the mother’s care either by way of: the mother’s misuse of alcohol; the mother drinking above the legal limit and driving with [the child] in the car; problematic use of cannabis by her whilst [the child] is in her care; not feeding [the child] properly; failing to ensure [the child] obtained medical assistance and following that advice; neglecting [the child’s] dental health; smoking in enclosed spaces when [the child] has asthma; not attending extracurricular activities; abusing her elder daughter … presenting a risk that the mother may do the same to [the child]; and beating [the child] as a form of physical discipline.

8. The litany of complaints there encompassed by her Honour and the finding that none were substantiated by persuasive evidence before her, gives some indication of the nature and extent of the complaints made by the father, which lie at the heart of the reasons given by her Honour for the orders that her Honour made.  Those same complaints plainly continue to occur as the arguments made by the father before me plainly indicate.

9. It is also important to record in relation to the specific allegations that the mother “lied on the stand” that her Honour found at [58]:

   I found the mother to be a credible witness with a clear, confident and good recall of the facts.  My view of her as an overall witness of truth was not dented by her evidence with respect to her “social” drug use and what [the family report writer] may have recorded in that regard.  Nor was it dented by her failure to tell [the family report writer] about a neighbour dispute.  Nor was it dented by a former partner having a criminal history.

10. It is obvious from that paragraph alone, but also from a fair reading of her Honour’s comprehensive reasons, that her Honour did, in fact, have regard to the very evidence to which the father asserts her Honour had no regard.  The challenge embraced by Ground 1 should be rejected. 

11. In that respect, it also bears recording of course what was said in well-known authorities including for example Gronow v Gronow,[2] about the difficulties confronting an appellant challenging attributions of weight on an appeal and all the more so in parenting matters. (By reference to, for example, what was said by Kirby J in CDJ v VAJ[3]).

    [2](1979) 144 CLR 513.

    [3](1998) 197 CLR 172 at 230 – 231 [186].

1. For the sake of clarity, I consider it important to make clear, that within the reasons given by her Honour, the following appear as a basis for the orders made by her Honour.  I repeat that the triable issues before her Honour were very narrow, namely, whether the mother and child should live in Town B and what orders for time should be made for the father with his daughter. 

2. Her Honour’s reasons can, I think, be summarised relevantly in this form: 

   a)The father has demonstrated “poor insight into the family dynamic and his contribution to that.  He has made a concerning level of unfounded complaint of the mother’s parenting of the child, based on asserted welfare concerns” (at [30]).

   b)The father’s “propensity to complain to the authorities in support of baseless complaints against the mother potentially exposes [the child] to systems abuse” (at [32]).  I have already referred to what her Honour said at [35] and further reference should be made in respect of the finding that the father’s case of the mother being neglectful “was not only unsupported on the tested evidence, but wholly at odds with the orders he sought” (at [2], [40] and [88]). 

3. It should not be forgotten that one of the central background facts in this case was that, as her Honour found, “the mother has been [the child’s] historical primary carer” and the child’s “primary bond is with the mother” (at [71]), and, further, that the child has a “warm and positive relationship” with the father (at [76]). 

4. Her Honour made further findings in the latter paragraph and, indeed, expressly said that she was giving that factor “significant weight, namely, the child’s historical difficulty with separation anxiety from her mother and transiting between her parents, when leaving her primary attachment figure, resulting in problematic changeovers and how the parents have historically reacted to that, on the evidence of the family consultant” (at [76]).

5. Her Honour also made findings about the father’s capacity to care for the child and the fact that the ultimate orders made by her Honour enabled regular time between the child and her parents, regardless of whether the mother moved with the child to Town B or not. 

6. Her Honour found that there were “benefits, principally emotional, to the mother in putting some physical distance between her and the father and that the parental conflict was draining on both parties.  Her Honour also made a specific finding that the benefit to the mother in moving will “likely flow to the child”. 

7. In those latter respects, reference is also made to the following:

   77. Whilst the father has the capacity to care for [the child] when in his household, [the child] is not ready emotionally for overnight time with the father and will not be for some time, and that is now reflected in both of the proposals that are before the Court. Notwithstanding the strides [the child] was observed by [the family report writer] to have made between his interviews for the two reports, I accept his evidence in particular with respect to [the child’s] history that increasing time and any attempts to rush increases or move too quickly would “almost irretrievably be counterproductive and trigger regressive reactions in [the child] which would undermine all the success of the past 12 months”. This was a strong and well-reasoned recommendation by [the family report writer] supported on the whole of the evidence, which I accept.

   …

   102. On the mother’s proposal the father’s time with [the child] will immediately increase. There is no diminution in the time that the father is currently enjoying if the mother relocated to [Town B].

   …

   104. In relation to practical difficulties and expense, all proposals enable [the child] to maintain personal relationships and direct contact with each of her parents on a regular basis.

   105. Whilst [the solicitor] for the father raised issues to do with the expense to the father, there is no persuasive evidence to enable the Court to conclude that it will place a significant impost on him.

   106. Neither parent is a person of significant means. Both will be involved in the travel arrangements. I also have to take into account the father’s evidence in relation to his intention to obtain paid employment.

   107. [Town B] is only one hour away from [Town A] by car. The father will be able to continue his involvement in [the child’s] extracurricular activities until she commences school and possibly thereafter depending upon when those activities occur, particularly if they occur at a time when the father is spending afterschool time with [the child] and/or weekend time. I am satisfied it is not a distance in any event that would impact on [the child’s] ability to develop a meaningful relationship with the father where, as Kay J said in Godfrey & Sanders (2008) FLR 287 at [36]:

   Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

   108. I am not satisfied on the whole of the evidence that the proposed move by the mother would result in a diminution of the quality of [the child’s] relationship with the father.

   …

   111. I find that there are benefits, principally emotional, to the mother in putting some physical distance between her and the father. I accept that the mother feels overborne by the father. I accept [the family report writer’s] assessment that the parental conflict has been very draining for her, as it has the father. Whilst the orders should be detailed to assist the parents, it is not possible to cover every eventuality. The orders sought the ICL place greater weight on the child’s time with the father without adequate consideration of the impacts for the mother in facilitating time, here a parent of two children, not just [the child the subject of these proceedings]. That is not meant as a criticism, I should say, of the ICL who has done a very good job in these proceedings. It is a question of weight, and I accept that there can be legitimate differences of view about what weight should be applied where.

   …

   114. It is trite to say that if she views the place as having some benefits to her, those benefits are likely to flow to [the child]. My conclusions to this end are reinforced by the fluidity of the father’s living situation in the past few years and his intention to seek work away from [Town A]. There is no assurance that the father will continue to live in [Town A] in the future, or even relocate to [Town B]. He has applied for a job with [a government agency] in [Town X] and [Town Y]. He will know about this, on his evidence, in about January. [Town X] from [Town A] is about 50 minutes south. If he obtains employment in [Town Y] he proposes to stay overnight on his evidence for two or three days there, and [Town Y] is at a greater distance from [Town A] than [Town X], and [Town Y] is south of [Town X].

8. I reiterate that the father agreed ultimately to the child living with her mother.  This apparent contradiction is perhaps best explained by what her Honour said at [35], which I have earlier quoted.  Again, I emphasise that no challenge is made to the integrity of the consent given by the father to that process.

The Failure To Tender Evidence Challenge

1. The third and final ground asserts that, contrary to his instructions, the father’s legal practitioners failed to tender evidence on his behalf. 

2. That challenge, expressed in those terms, does not disclose appealable error.  In order to establish appealable error in that respect, the father would need to establish a form of procedural unfairness arising from the direct relevance of the evidence sought to be tendered and a clear assertion of a refusal to tender that specific evidence, such that a matter crucial to her Honour’s determination was not before the Court.  That, in turn, might inform a discretionary error that her Honour failed to take account (albeit through no fault of her Honour) a relevant consideration in the exercise of her discretion. 

3. The difficulty is that when pressed by me to identify precisely what evidence it is said that the practitioners did not tender on his behalf, the father was unable to do so.  When I pressed him further to give an example, having explained to him the importance of it in respect of the asserted ground, he said that his lawyers “didn’t tender texts”. 

4. I have already referred to what her Honour said about the extent, level and nature of text messages sent by the father.  Indeed, her Honour found, specifically, that it constituted a form of harassment by the father.  That finding by her Honour reflected an opinion offered by the family report writer, when talking about the degree of insight that the father has in respect of the impact of those matters upon the child. 

5. The father does not, in any event, identify any specific texts.  Secondly, even if he did, those texts must be seen in the broader context which I have just described.  Thirdly, and in an event, given her Honour’s findings, there may very well have been good forensic reasons for his practitioners not to tender texts, if, indeed, that is what has occurred.  There is no merit in Ground 3.

6. There being no merit in any of the grounds of appeal, nor in any of the other matters to which the father has raised on this appeal, the appeal will be dismissed.

7. In that event, the respondent mother does not seek an order for costs, nor does the ICL.

8. The orders that I will make then are:

   a)That the appeal by the father against orders made by Judge Purdon-Sully on 7 December 2016 be dismissed.

   b)Each party to this appeal bear the costs of and incidental to it.

Application To Adduce Further Evidence

1. During the course of the hearing I indicated that the father’s application to adduce further evidence would be dismissed.

2. In essence, the father did not seek to adduce evidence; rather he sought to issue subpoenas which he speculated might produce evidence potentially relevant to issues agitated at trial.  The application is, with respect, misconceived.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 13 March 2018.

Associate: 

Date:  26 March 2018