Grier & Grier

Case •

[2023] FedCFamC1A 32

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Grier & Grier [2023] FedCFamC1A 32

Appeal from: Grier & Grier [2022] FedCFamC2F 967
Appeal number: NAA 185 of 2022
File number: BRC 11873 of 2018
Judgment of: MCCLELLAND DCJ
Date of judgment: 23 March 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final orders changing the children’s residence from mother to father following adverse findings regarding the mother’s insight and parenting capacities – Where the primary judge found that the children were at risk of psychological and/or emotional harm in the primary care of the mother – Primary judge’s findings that the mother involved the children in the dispute and did not support the children’s relationship with the father were open on the evidence – Finding that the mother failed to comply with Court orders open on the evidence – Where primary judge adequately identified and weighted relevant evidence in ordering a change of the children’s residence to the father – No merit in any of the grounds advanced – Appeal dismissed – Appellant to pay respondent’s costs in fixed sum.
Legislation:

Family Law Act1975 (Cth) ss 4, 43, 60CC, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r.12.17
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

de Winter v de Winter (1979) FLC 90-605

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236

Grier & Grier (No 2) [2021] FamCAFC 91

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

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Maclean & Greenwood (2022) FLC 94-117; [2022] FedCFamC1A 200

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255

Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 96
Date of hearing: 16 February 2023
Place: Heard in Brisbane (via videolink), delivered in Sydney
Counsel for the Appellant: Ms Wilson
Solicitor for the Appellant: Cate & Co Lawyers and Associates
Counsel for the Respondent: Mr Jordan
Solicitor for the Respondent: Wilsons the Family Lawyers
Counsel for the Independent Children's Lawyer: Ms Lyons
Solicitor for the Independent Children's Lawyer: Forest Glen Lawyers

ORDERS

NAA 185 of 2022
BRC 11873 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS GRIER

Appellant
AND:

MR GRIER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

23 March 2023

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.Within 28 days of the date of these orders, the appellant is to pay the costs and disbursements of the respondent in the fixed sum of $13,533.24.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

MCCLELLAND DCJ:

  1. This is an appeal against final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 29 July 2022, which included orders that the father, the respondent in this appeal, have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the children and that the children’s primary place of residence be changed from that of the mother to the father.

  2. The appellant mother seeks to appeal those orders on several grounds which, by way of broad summary, contend that the primary judge failed to have regard to the relevant considerations her Honour was required to consider in determining what orders were in the best interests of the children as set out in s 60CC of the Family Law Act1975 (Cth) (“the Act”). It is also contended that the primary judge made findings that were not reasonably open to her and that her Honour failed to give sufficient weight to the impact that the orders would have on the nature and quality of the children’s relationship with the mother.

    BACKGROUND

  3. The appellant mother is 38 years old and originally from South Australia. She has resided in Town A since 2010 and is currently employed as a fitness professional. Since June 2020, the mother has been in a relationship with Mr D, who is 67 years of age and owns a business.

  4. The respondent father is 51 years old and lives in Town A. He is a self-employed repair technician and conducts a business on leased land outside of Town E. He has one adult child from a previous relationship.

  5. The children who are the subject of the appealed orders are child X, aged 8 and child Y, aged 6.

  6. The parties commenced to cohabit in August 2010, were married in 2013 and separated in 2018. The children have primarily lived with the mother since separation.

  7. There has been a history of reports being made to the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) and Queensland Police regarding disclosures made by the children in relation to the father and the paternal grandmother. None of those reports have been found to be substantiated.

  8. The father commenced proceedings in 2018 in the Federal Circuit Court of Australia (as it was then known). The matter was originally heard in 2019 and 2020 by a judge of the Court who, unfortunately, passed away prior to delivering final judgment.

  9. The matter was then listed for further hearing on 4–7 May 2021 but it was adjourned due to a dispute as to whether an updated report should be obtained from the family report writer who had prepared earlier reports. That issue was the subject of appeal before Tree J,[1] who dismissed the mother’s appeal and ordered that the parties attend upon the family consultant for the purposes of having an updated family report prepared for the purpose of the substantive proceedings.

    [1] Grier & Grier (No 2) [2021] FamCAFC 91.

  10. The mother relocated to City F with the children in January 2022, resulting in the father filing an Application for a Recovery Order on 25 January 2022. On 1 March 2023, the children were ordered to return to the father’s care by a senior judicial registrar. The mother was also ordered to relocate to a location within 20 kilometres of Town A.

  11. As a result of the mother contending that one of the children had disclosed sexual abuse alleged to have been perpetrated by the paternal grandmother to her, the senior judicial registrar made orders restraining the father from bringing the children into contact with the paternal grandmother.

  12. The second trial was heard in City F from 28 June to July 2022, with oral submissions received in Brisbane on 15 July 2022. On 20 July 2022, the primary judge pronounced final orders and gave oral reasons in addition to the judgment under appeal.

    THE PRIMARY JUDGE’S REASONS

  13. The primary judge rejected the mother’s application to be permitted to permanently relocate with the children to City F. Instead, her Honour made orders for there to be a change in the children’s primary place of residence and for the children to spend time with the mother each alternative weekend if she continued to live in Town A or for one mid-term weekend if she moved to City F. In either case, the orders provided for the children to spend half school holidays with the mother. 

  14. In her reasons for judgment, the primary judge explained why she made those orders and additional ancillary orders. Relevantly, for the purpose of this appeal, the primary judge found:

    ·the mother had “no investment” in supporting the children’s relationship with the father (at [171]);

    ·the mother had involved the children in the parental conflict, including by taking them to a police station to make a report regarding alleged sexual abuse on the part of their 80 year old grandmother (at [73]);

    ·the mother had placed inappropriate pressure upon child X to pen a letter expressing his views to the Court that he desired to continue to live with the mother in City F (at [31]);

    ·the mother is unlikely to be able to manage any therapeutic response to address mental health concerns regarding child X, as the mother had no insight into her part in the dynamic that has caused or contributed to those concerns (at [113]);

    ·that, contrary to the mother’s assertions, the primary judge was satisfied that there was a positive attachment between the children and the father (at [39–[40]);

    ·that, while recognising the significance of the impact that the change in living arrangements would have for the children, the primary judge found that the father was capable of meeting the parenting challenges that may arise from such an order (at [131]); and

    ·it was more likely that the father would ensure that the children received appropriate counselling support to address their emotional and mental health issues (at [144]).

    GROUNDS OF APPEAL

  15. By Notice of Appeal filed 14 September 2022, the mother originally pressed 11 grounds of appeal. At the appeal hearing, counsel for the mother chose to abandon Grounds 3, 4 and 7. The remaining grounds of appeal pressed were as follows:

    1.That in investigating the primary considerations necessary to determine what was in the best interests of the children the trial judge erred in failing to find that the meaningful relationship with each parent was the result of the conduct of each parent.

    2.That the trial judge erred in that she failed to find that if the children would live with her, they would retain a good relationship with their father.

    …

    5.That the trial judge erred that the relocation of the children to [City F] was contrary to the terms of a court order in that no such order existed.

    6.That the trial judge erred in basing her criticism of the mother taking the children to the police without first notifying the father and/or bringing proceedings to have the Court intervene in the parenting arrangements in that she had no proper reference to the obligation placed on her by section 60CC(2)(b ).

    …

    8.The finding of the trial judge that the mother placed no value on Court Orders was not supported by any evidence before the court.

    9.The trial judge erred in finding that risk factors in the mother's house were greater than in the father's house.

    10.That in not making an order for equal shared parental responsibility the trial judge erred in that she thereby increased that likelihood of disagreement and tension between parents.

    11.That in providing that the children have no communication with the mother for a period of 28 days from the date of the orders the trial judge erred in that she had no regard to the evidence of the relationship of the children with the mother and failed to have any or any proper regard to the orders made relating to other orders.

    (As per the original)

    LEGAL PRINCIPLES

  16. The onus is held by the appellant to show that there is some error in the decision under appeal: Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39].

  17. As this is an appeal from a discretionary judgment, it is necessary for the mother to establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 505 and Norbis v Norbis (1986) 161 CLR 513 at 539–540. That is, appellate intervention may be required where the primary judge:

    (a)Acts upon a wrong principle; or

    (b)Allows extraneous or irrelevant matters to guide or affect the decision; or

    (c)Mistakes the facts; or

    (d)Fails to take into account some material consideration; or

    (e)Makes a decision that, upon the particular facts, is unreasonable or plainly unjust.

  18. Appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”: Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]. The difficulty in challenging findings of fact extends to “findings of secondary facts”, which are based on “inferences from primary facts”: FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236 at [203] referring to Lee v Lee (2019) 266 CLR 129 at [55].

    CONSIDERATION

    Ground 1

  19. This ground contends that the primary judge erred in “failing to find that the meaningful relationship with each parent was the result of the conduct of each parent.” 

  20. In circumstances where I found this ground to be ambiguous, I sought clarification from counsel for the mother.  Specifically, I sought clarification as to whether this ground of appeal related to either of the following:[2]

    (a)was it contended that, in circumstances where the children had a good relationship with the father, the primary judge should have inferred that the mother had encouraged that relationship, or

    (b)was it contended that the primary judge failed to have regard to the fact that the children’s primary relationship and their primary attachment figure was their mother? 

    [2] Transcript 16 February 2023, p.7 lines 17–26.

  21. Counsel for the mother clarified that the mother’s contention was the latter of those. That is, I should construe this ground of appeal as being a submission that the primary judge failed to give consideration or adequate consideration to the fact that, at the time of the orders made by the trial judge, the children’s primary relationship was with their mother, who was their primary attachment figure. 

  22. Viewed in that light, as clarified by counsel for the mother, this ground of appeal is without merit for the following reasons. 

  23. At [44] of the reasons for judgment, the primary judge notes that:

    …it is unchallenged that the mother was the children’s primary carer during the relationship, a care arrangement both parents viewed to be in the best interests of the children and one they continued following their separation. This is a significant consideration for the Court in its assessment of the parties’ proposals, particularly given the young ages of the children and where the proposal of the mother would continue a care regime with which they were familiar.

    (Emphasis added)

  24. No challenge was made to that finding which, appropriately, the primary judge noted to be a “significant consideration” (emphasis added), particularly given the young ages of the children.

  25. Having noted the significance of that connection between the children and their mother, the primary judge nonetheless concluded at [127] that, for reasons which she explained in her judgment in great detail, “the benefits afforded to the children of maintaining [the mother’s primary care] of them” were overridden by the mother’s “propensity towards elevating her adult needs over the children’s best interests”, which the primary judge found was a situation that was likely to continue. The finding by the primary judge in that respect was also repeated at [176].

  26. Accordingly, this ground of appeal is without merit.

    Ground 2

  27. In support of Ground 2, it was also contended at page 2 of the mother’s Summary of Argument filed 15 December 2022 that the primary judge erred in basing her decisions on the final report of the Family Report writer by allocating the greater cause of the marital discord to the mother. It is not clear what relevance that assertion has to Ground 2 but, in any event, it is incorrect. It was not the responsibility of the Family Report writer nor the primary judge to consider which of the parties was most responsible for the parties’ marital discord and no such determination was made by the primary judge.

  28. In support of this ground, the mother contended that it was not disputed that, prior to the orders of the primary judge, the mother was the primary carer of the children. It is to be noted that fact was accepted by all parties, as extracted above. Additionally, however, the mother submitted that the evidence established the mother had encouraged and fostered a good relationship between the children and the father. It was further contended that the evidence established that the children had a solid attachment to both parents and there is no evidence to suggest that, had this living arrangement continued, the mother would interfere with the relationship between the children and the father.[3]

    [3] Reference was made to [44] of the reasons for judgment by the primary judge dated 29 July 2022.

  29. In considering this ground of appeal, it is noted that it was not disputed, by either party, that it was in the best interests of the children to have a meaningful relationship with both parents (at [170]).

  30. While not expressed by reference to the specific phrase “meaningful relationship”, at [41], the primary judge referred to and accepted the opinion of the Family Report writer that the children have “well-established bonds and secure attachments with each parent”.

  31. It appears to be contended by the mother that in circumstances where the children have a meaningful relationship with both parents, the primary judge should have found, as a corollary, that both parents have contributed to that positive relationship and, further, that the Court should have found, by way of inference, that situation would continue into the future. 

  32. The difficulty with that argument is, however, that the primary judge specifically found to the contrary. That is, the primary judge found at [121] that the mother “is wholly negative about the father” and, further, that her capacity to foster a relationship between the children and the father “is compromised as a consequence of her being overwhelmed in her own psychological self and adult focus.”

  33. As found by the primary judge at [147], this was evidenced by the mother’s “poor attitude to her parenting responsibilities inter alia by reason of her failure to comply with Court Orders” and her “frustration of the father/child relationship,” most relevantly, by unilaterally moving with the children to City F. 

  34. Further, at [34]–[35] of the reasons, the primary judge accepted the opinion of the Family Report writer that, based on the evidence presented in the proceedings, there were “some indications to suggest that [the mother] had intentionally sought to influence the children’s views wishes and opinions” negatively towards the father. This included what the primary judge found at [31] to be her conduct in placing pressure on child X to pen a letter to the Court channelling the mother’s views and, also, facilitating the children attending a police interview to give evidence against their paternal grandmother falsely accusing her of sexually abusing them (at [62]–[63]).

  35. Having regard to that evidence, the primary judge found that, given that history, the Court could have no confidence that the mother would, in the future, support and foster the children’s relationship with the father because she placed no value on it (at 102]).

  1. Those findings were based on a detailed factual analysis conducted by the primary judge and were reasonably open to her on the evidence, as were the inferences drawn from those findings. 

  2. No error has been established in respect to the factual findings made by the primary judge related to this ground of appeal, nor in respect to the conclusion by the primary judge, based on those factual findings, that the mother would not support the children’s relationship with their father in the future.

  3. Accordingly, Ground 2 is without merit. 

    Ground 5

  4. In support of this ground, it was contended that the Order 1 of the orders of Judge Middleton made on 20 November 2020 (as amended 10 December 2020) discharged all previous orders and parenting plans. This included an order previously made by Judge L Turner on 31 January 2019 which specifically restrained the mother from relocating the residence of the children beyond 30 kilometres of the Town A central business district.

  5. That is accepted to be the case, however, this ground of appeal is nonetheless misconceived. Order 2 of the orders made by Judge Middleton on 20 November 2020 provided that both the mother and the father have equal shared parental responsibility for making decisions regarding the long-term issues of the children. Section 4 of the Act defines major long-term issues in relation to a child as meaning issues about the “care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature”, including in respect to “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent”.

  6. It was not disputed that the mother had unilaterally relocated from Town A to City F with the children.  Her actions in doing so without consulting the father were, accordingly, contrary to the order made by Judge Middleton for the parties to exercise equal shared parental responsibility. 

  7. Moreover, I respectfully agree with the contentions of both the father and the Independent Children’s Lawyer (“ICL”) that if error occurred on the part of the primary judge in failing to appreciate that the order of Judge Middleton made on 20 November 2020 had discharged the specific restraint imposed upon the mother by Judge L Turner on 31 January 2019, it was not an error that impacted the outcome of the proceedings: de Winter v de Winter (1979) FLC 90-605.

  8. In that respect, the mother’s conduct in unilaterally relocating with the children from Town A to City F precluded the mother from complying with Order 6 of the orders made by Judge Middleton. That order required the mother to facilitate the children spending time with the father each alternative weekend and every Monday and Wednesday from 3.00 pm to 6.00 pm. It was not reasonably practical for the mother to comply with that order in circumstances where she lived in City F. 

  9. Accordingly this ground is also without merit.

    Ground 6

  10. It appears that this ground of appeal relates to [63], [64], [67] and [68] of the reasons for judgment.

  11. It was submitted in respect of this ground, at page 5 the mother’s Summary of Argument filed 15 December 2022, that “when the mother was told of the children’s alleged sexual assault by the paternal grandmother, she acted appropriately without first informing the father or speaking to the grandmother”.

  12. The difficulty for the mother is, however, that her failure to advise either the father or the paternal grandmother of the children’s allegations before the children were taken to the police to provide a statement is but one aspect of the evidence considered by the primary judge in reaching the conclusion at [59] that “the mother had no genuine protective concerns about the grandmother” and, further, at [53] that:

    …the mother used the children’s alleged disclosures of 6 January 2022, namely that their grandmother had tried to kiss their “privates”, for forensic advantage in her quest to remain in [City F], the mother having unilaterally relocated with the children there contrary to a Court order that she knew restrained her from doing so.

  13. The primary judge made those findings after detailed consideration of the evidence regarding the manner in which the mother reported the children’s disclosures of the paternal grandmother’s alleged sexual abuse (at [49]–[77]). That is, the concerns expressed by the primary judge regarding the manner in which the mother conducted herself in reporting the children’s allegations to police and involving the children in the police interview process went far deeper than that reflected in Ground 6 of the mother’s Notice of Appeal filed 14 September 2022 and the supporting Summary of Argument filed 15 December 2022.

  14. Firstly, the allegations were made in the context where the children had previously been involved with Queensland Police and the relevant child protection department in Queensland regarding unsustained allegations of sexual abuse by the father (at [62]).

  15. Additionally, the mother’s conduct was in circumstances where she herself advised police in her interview with them in January 2022 that she did not regard the grandmother’s actions as being malicious (at [64]), which was a position confirmed by the mother during the course of giving evidence.[4]

    [4] Transcript 29 June 2022, p.151 lines 37–40; Transcript 30 June 2022, p.307 lines 24–40.

  16. Despite the mother’s perception that she did not consider the grandmother’s actions to be “malicious,” the mother nonetheless acted in a manner to “create a sense of urgency” and the need for immediate “protective action” (at [58]).

  17. On that basis, the primary judge found at [66] that the conduct of the mother needed to be examined through the prism of the fact that the mother would have known by the afternoon of 6 January 2022 “that if she wanted to suspend the father’s time it was necessary for her to bring an urgent application to the Court”, a fact that she had reported to her caseworker.

  18. Viewing the mother’s conduct through that prism, the primary judge placed significance upon the mother’s conduct subsequent to presenting the children for interview at the local police station, including her actions in advising the father, through her then solicitors by letter dated 12 January 2022 and annexed to the father’s trial affidavit dated 2 June 2022, that she would not facilitate the children spending time with the father and asserting that the children “have been the victims of an alleged sexual assault by their grandmother”.  In that respect, at [60], the primary judge found the communications sent by the then mother’s solicitors to the father’s solicitors were “at odds with the submission that she was the mere passive reporter of information relating to her by the children”. It is to be noted that the primary judge referred to a letter dated 12 February 2022 sent by the mother’s then solicitors when, in actual fact, it appears that the letter containing that assertion was a letter dated 12 January 2022. This is not, however, a material error that can reasonably be said to have impacted upon the decision.

  19. In summary, the fact that the mother had not conferred with either the grandmother or the father before reporting the children’s disclosures to police was but one aspect of the evidence considered by the primary judge in arriving at the conclusion that the mother had opportunistically used the children’s report of their grandmother’s conduct for the purpose of advancing her case in the litigation, rather than as a result of genuine concerns that the paternal grandmother had in actual fact sexually abused the children. It was reasonably open to the primary judge to reach that conclusion based upon her detailed consideration of the evidence to which I have referred. 

  20. Accordingly, this ground of appeal is without merit.

    Ground 8

  21. This ground of appeal contends that the finding by the primary judge that the mother places no value on Court orders was not supported by any evidence before the Court. 

  22. In this respect, the mother’s Summary of Argument focuses upon the mother’s failure to attend the second session with the Family Report writer. Specifically, it was contended that the mother had a cogent excuse for “her delayed travel from [Town A] due to flooding”. In support of this ground, the mother’s Summary of Argument referred to [98] of the reasons for judgment.

  23. There is, with respect, substance in the submissions of the father and the ICL that the relevant paragraphs in the mother’s Summary of Argument do not appear to relate to this ground of appeal and refer instead to the considerations of Ground 5 as referred to above.

  24. At [98] of the reasons for judgment, the primary judge gave reasons for rejecting the submission by counsel for the mother that the Family Report writer had demonstrated antipathy towards the mother, including by reference to her arriving after the scheduled interview time.  Relevantly, the primary judge specifically stated that “whether he fairly or unfairly postulated about her delayed travel because of flooding is irrelevant to the overall thrust and strength of his evidence”. 

  25. During the course of the appeal, I sought clarification from counsel for the mother regarding this ground of appeal. Counsel for the mother confirmed that this ground of appeal related to the primary judge’s finding in respect to the mother’s failure to attend the second of three appointments with Mr C.[5]

    [5] Transcript 16 February 2023, p.13 lines 37–44.

  26. In that respect, at [81], the primary judge recorded that she found the mother “has failed to comply with Orders of this Court”, accepting the submission made by the ICL that the mother had made “attempts to abort the family reporting process”.

  27. During the appeal, it was pointed out to counsel for the mother that the mother referred to extensive flooding between Town A and City F as the reason for the lateness of her arrival to the third appointment with Mr C.[6] In that respect Mr C recorded, in his third report as annexed to his affidavit filed 26 May 2022, that the mother was “scheduled to attend a half day assessment at 9.00 am, although she arrived at 11.30 am”.

    [6] Transcript 16 February 2023, p.15 lines 26–44.

  28. It was pointed out to counsel for the mother that the mother’s failure to attend the second appointment with Mr C as outlined in the Family Report dated 5 April 2022 was not stated to be due to flooding, but occurred in circumstances where, on 22 March 2022, the mother sent correspondence to Mr C confirming that she was unable to attend the scheduled appointment “due to financial circumstances” and that she did not give permission to Mr C or any of his colleagues “to interview either directly or indirectly either of the children in this matter”.

  29. At that point, counsel for the mother shifted her stance to contend that, in any event, the mother had a valid reason for failing to attend the second appointment with Mr C due to her financial circumstances.[7] That submission did not account, however, for the mother’s clear statement to Mr C that she would not permit the children to be interviewed by Mr C or any of his colleagues. The primary judge was entitled to have regard to that evidence in finding that the mother had failed to comply with orders of the Court, including by attempting “to abort the family reporting process”. The mother’s opposition to the children attending upon Mr C was contrary to the obligation imposed by the order of Tree J made on 11 June 2021 which required that “the parties and the children will attend family report interviews as directed by [Mr C]”. Ironically, those orders were made by consent.

    [7] Transcript 16 February 2023, p.15 lines 17–24.

  30. Irrespective of the mother’s financial circumstances, she had made a clear statement to Mr C that she was not prepared to facilitate the children attending an interview with him in accordance with those orders of the Court. The finding of the primary judge that the mother had failed to comply with orders of the Court, including by making attempts to abort the family reporting process, was therefore reasonably open on the evidence. 

  31. Additionally, as referred to in the respective Summaries of Argument of both the father and the ICL, the primary judge was entitled to find that the mother had failed to comply with orders of the Court by failing to facilitate the children spending time with the father in accordance with orders of the Court and by unilaterally moving from Town A to City F with the children. As noted above and in that latter respect, contrary to the order for the parties to exercise equal shared parental responsibility, the mother failed to consult with the father regarding the move. Additionally, as a result of the move, the mother was necessarily incapable of complying with the spend time orders that had been made by Judge Middleton on 20 November 2020, which were in place at the time she moved from Town A to City F.

  32. In summary, in respect to this ground, the findings of the primary judge that the mother had failed to comply with orders of the Court were reasonably open on the evidence,[8] and no appellable error has been established.

    [8] Edwards v Noble (1971) 125 CLR 296.

  33. Accordingly, this ground of appeal is also without merit. 

    Ground 9 

  34. Under this ground, the mother contends that the primary judge erred “in finding that risk factors in the mother’s house were greater than in the father’s house”.

  35. The relevant paragraph of the mother’s Summary of Argument that appears to relate to this ground of appeal is as follows:

    The trial judge erred in finding that risk factors in the mother’s house were greater than in the father’s house which is not supported by the evidence.

  36. There is, with respect, substance in paragraph 64 the Summary of Argument of the father filed 20 January 2023, which contends that “there is nothing in the [mother’s] outline to support Ground 9 other than simply repeating the ground” in the final paragraph of the mother’s Summary of Argument and that, consequently, “it is impossible to understand the error that the [mother] says her Honour has made in relation to Ground 9”.

  37. A number of authorities emphasise the importance of an appellant properly particularising the asserted error which they contend was made by the primary judge. As observed by the Full Court in Newett and Newett (No 2) (2021) FLC 94–051 at [34]:

    Unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors. This was explained by the Full Court of the Federal Court of Australia in Bahonko v Sterjov (2008) 166 FCR 415 as follows:

    3. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.

  38. During the course of oral submissions, counsel for the mother initially stated that this ground of appeal related to [185] of the reasons for judgment. When it was pointed out to counsel for the mother that [185] related to the issue of parental responsibility, rather than risk, the Court was then referred to [111] of the reasons for judgment. It is significant that [111] is positioned in the section of the judgment that addresses the issue of parental capacity (s 60CC(3)(f) of the Act). In that section, the primary judge set out her assessment of each of the parents’ respective capacities to provide for the needs of the children, including their emotional and intellectual needs. It is important that [111] is placed in context, including by reference to the two earlier paragraphs which read as follows:

    109.Both parents have the skill set to undertake the day to day parenting of the children.  However, a significant issue in this case is the mother’s incapacity to elevate the children’s needs above her own and her consequential impaired judgment and proportional response with impacts for the children’s emotional and psychological well-being.  I repeat and reply upon earlier findings relevant to this consideration.

    110.I accept his evidence of [Mr C] that whilst the mother loves the children and they her, she is a parent who has lost her way, one who is not operating at a healthy emotional equilibrium. It is an unaddressed circumstance that has escalated and is causing harm to the children.

    111.Whilst in a more finely balanced case the risks identified by Counsel for the ICL in the father’s household may have assumed greater weight – for example, his own investment in the parental conflict and his confrontational style experienced by others across a range of scenarios - the risk factors for the children in the mother’s household are much greater. 

  39. A reading of the judgment as a whole establishes that the point being made at [111] is that the totality of the matters considered by the primary judge, including those set out above in the summary of the relevant findings, were such that primary judge found that this is not a finely balanced case. That is, the judgment makes clear that the primary judge had a number of concerns about the children remaining in the primary care of the mother, which her Honour found had been emotionally damaging to the children and had driven child X, in particular, to “breaking point in terms of his emotional stability and psychological function” (at [112]). The primary judge found that his situation was such that it required an urgent response. Those findings, the primary judge made clear, subsumed the risk presented in the father’s household, which was identified by the primary judge to be the father’s tendency to adopt a “confrontational style” (at [111]).

  40. The primary judge identified the relevant evidence to which she referred and the weighting she gave to that evidence in arriving at the conclusion that there should be a change in the primary residence of the children from that of the mother to the father. The reasons why her Honour formed that conclusion were clearly explained and it was a conclusion that was reasonably open on the evidence. 

  41. Again, this ground is without merit.

    Ground 10

  42. Ground 10 of the mother’s grounds of appeal is centred on the contention that “in not making an order for equal shared parental responsibility the trial judge erred in that she thereby increased that likelihood of disagreement and tension between parents”.

  43. The relevant paragraph of the mother’s Summary of Argument that addresses this ground is as follows at page 7:

    The trial judge made an error of law by incorrectly applying s65DAA of the Act. In the Reasons for Judgment at [185] page 70, the trial judge failed to properly adhere to the legislative pathway of s.65DAA, nor provide sufficient reasons why substantial and significant time with the mother was not in the children’s best interest. s65D (1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of s 61 DA and s 65 DAB which requires the Court to apply a presumption that it is in the best interests of the child, for the child's parents to have equal shared parental responsibility for their children. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child.

    (As per the original)

  1. During the course of the appeal, counsel for the mother was invited to make oral submissions clarifying this ground of appeal, but declined to do so.[9] I respectfully agree with the father’s Summary of Argument in that this ground is substantially misconceived because, once the primary judge made a decision for the father to have sole parental responsibility, the provisions of s 65DAA of the Act did not apply. This was made clear by the primary judge at [185].

    [9] Transcript 16 February 2023, p. 19 lines 15–17.

  2. In fact, the findings of the primary judge were directly contrary to the proposition advanced in this ground of appeal. In that respect, at [182]–[183], the primary judge noted that, as a result of the extensive conflict between the parents, their capacity “to make joint decisions in the best interests of the children was severely compromised.” That conclusion was not only reasonably open on the evidence, in my view, the evidence compelled that conclusion. Significantly, as noted by the primary judge at [183], that much was admitted during the course of the proceedings by the mother, who sought an order for sole parental responsibility in her favour. She did so on the basis that the parties did not have the capacity to manage shared decision-making. The primary judge noted that while the mother did seek an order for equal shared parental responsibility in the event of orders being made for the children to live primarily with the father, it was nevertheless the case that, given the extent of conflict between the parties, which was acknowledged by the mother, such an order would not be in the best interests of the children. This is because, as found by the primary judge, the parents “have no effective communication and cannot agree”.

  3. In other words, the primary judge specifically considered the potential impact of the parent’s ongoing parental dispute on the children and concluded that the children would be more adversely impacted by the parents sharing parental responsibility rather than one parent exercising parental responsibility. In this case, the primary judge ordered that, in circumstances where the children would be living primarily with the father, the father should exercise sole parental responsibility. That finding was directly contrary to the proposition advanced in Ground 10 of the mother’s Notice of Appeal and was a finding that was reasonably open to the primary judge on the evidence. Again, no appellable error has been established. 

  4. Accordingly, this ground of appeal is also without merit. 

    Ground 11

  5. This ground contends that, in imposing a moratorium on the children communicating with the mother for a period of 28 days from the date of the orders, “the trial Judge erred in that she had no regard to the evidence of the relationship of the children with the mother and failed to have any or any proper regard to the orders made relating to other orders”. 

  6. In support of this ground of appeal, the mother refers to the evidence of Mr C as set out at page 379 of the transcript, which was identified as describing the effect of the proposed moratorium in communication to be as follows:

    … I think it would probably do more harm, than good, to be honest.

    (Transcript 1 July 2022, p.379 lines 17–18)

  7. Further, in response to the trial judge’s question whether that is “simply because they’re obviously bonded with their mother and she has been their primary carer”, Mr C replied “Absolutely… They are well bonded”.[10]

    [10] Transcript 1 July 2022, p.379 lines 20–24.

  8. I have earlier referred to the specific acknowledgement by the primary judge of the significance of a trial judge making orders for there to be a change in residence for a child including, relevantly to this case, the fact that the case concerns young children. Her Honour’s appreciation of that fact was consistent with her duty, as set out in s 43 of the Act, which provides that in exercising jurisdiction under the Act, the Court “must” have regard to “the need to protect the rights of children and to promote their welfare”. It has been established that this requires the Court to focus upon “the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being” (Bielen & Kozma (2022) FLC 94-123 at [30]).

  9. The primary judge clearly appreciated that orders imposing a 28 day moratorium on the children communicating with the mother, in order to facilitate the children’s adjustment to changing their primary place of residence from that of the mother to the father, would cause emotional distress to the children. The primary judge appropriately balanced that finding against her finding that the children were at risk of emotional and psychological harm in the care of the mother, with child X in particular being “at breaking point in terms of his emotional stability and psychological function” (at [112]) such that an urgent response was required.

  10. While the evidence of a single expert report writer is invariably important in parenting proceedings, the opinion expressed by the expert does not bind a trial judge who, in exercising the judicial power of the Commonwealth, is ultimately responsible for considering and giving appropriate weight to the totality of evidence presented in the proceedings (Maclean & Greenwood (2022) FLC 94-117 at [33]).

  11. Moreover, the evidence of the expert was far more nuanced than the limited extract set out in the mother’s Summary of Argument. As noted in the father’s Summary of Argument, while it is the case that Mr C stated that he thought that the imposition of a moratorium in respect to the children spending time with the mother “would probably do more harm than good”, he acknowledged that ultimately “it’s a bit of a judgement call”.[11] By way of further clarification, when asked about the suggestion of whether a “small moratorium of, say, a week or two” to see the children more settled in the father’s home before time recommenced with the mother might be beneficial, Mr C answered that it “allows the children to settle in and adjust” and would also provide an opportunity for the father to adjust to any potential “pushback”.[12]

    [11] Transcript 1 July 2022, p.379 line 17.

    [12] Transcript 1 July 2022, p.379 lines 33, 40–43.

  12. In summary, on the basis of the evidence presented in the proceedings, in the exercise of a broad discretion to make such orders as her Honour considered to be proper and in the best interests of the children, it was reasonably open to the primary judge to make the order deferring the time that the children would commence communicating with their mother for a period of one month after the date of the orders. Again, no appellable error has been established in respect to the manner in which the primary judge exercised her discretion in making that order.

  13. This ground of appeal is therefore without merit.

    CONCLUSION

  14. Having determined that each of the mother’s grounds of appeal are without merit, the appeal must be dismissed.

  15. Both the mother and the father indicated that they would seek an order for costs in the event that they were successful in the proceedings. The ICL did not seek an order for costs in respect to the appeal. 

  16. I am satisfied that an order for costs, pursuant to s 117 of the Act, is justified in this case. The appeal has been wholly unsuccessful, with the Court finding that each ground of appeal is without merit. The mother has not contended that her financial circumstances militate against an order for costs being made.

  17. Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) empowers the Court to make an order for costs of a specific amount. That amount, however, must be one that is fair, reasonable and proportionate to the nature of the proceedings and the issues in dispute. In this matter, the father has sought an order for costs and disbursements assessed on a party/party basis in the sum of $13,531.24. Those costs, which have been assessed at the appropriate scale, are marginally less than the costs assessed by the mother on the same basis. Although, it is to be noted that the mother has incurred some additional costs in respect to considering the judgment and in drafting the Notice of Appeal. Nevertheless, having regard to the items identified in the father’s schedule of costs and cross comparing those costs to those sought by the mother, I am satisfied that the costs sought by the father are fair, reasonable and proportionate.

  18. I therefore make an order for the mother to pay the costs and disbursements of the father in the fixed sum of $13,533.24.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       23 March 2023


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Grier & Grier (No. 2) [2021] FamCAFC 91
Mickelberg v The Queen [1989] HCA 35
Allesch v Maunz [2000] HCA 40