GROTH & BANKS
[2017] FamCAFC 206
•4 October 2017
FAMILY COURT OF AUSTRALIA
| GROTH & BANKS | [2017] FamCAFC 206 |
| FAMILY LAW – APPEAL – Parenting – Relocation – Whether the findings of the primary judge were available on the evidence – Whether the primary judge failed to make findings in the context of unchallenged evidence of family violence – Where findings not made but evidence taken into account – Where case turns on its own facts – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Application for costs granted. |
| Family Law Act 1975 (Cth) ss 60CC(3)(j), 69ZT |
| Amador v Amador (2009) 43 Fam LR 268 CDJ v VAJ (1998) 197 CLR 172 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 513 |
House v The King (1936) 55 CLR 499
Johnson and Page (2007) FLC 93-344
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Maluka & Maluka (2011) FLC 93-464
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550
Weissensteiner v The Queen (1993) 178 CLR 217
| APPELLANT: | Mr Groth |
| RESPONDENT: | Ms Banks |
| FILE NUMBER: | MLC | 865 | of | 2012 |
| APPEAL NUMBER: | SOA | 5 | of | 2017 |
| DATE DELIVERED: | 4 October 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Ryan and Aldridge JJ |
| HEARING DATE: | 16 May 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 January 2017 |
| LOWER COURT MNC: | [2017] FamCA 3 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr North SC and Mr Williams |
| SOLICITOR FOR THE APPELLANT: | Nicholes Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hoult |
| SOLICITOR FOR THE RESPONDENT: | Ian Robertson Legal |
Orders
The appeal be dismissed.
The appellant father to pay the respondent mother’s costs of and incidental to the appeal in the amount of $15,000 within one month.
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 Groth & Banks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 5 of 2017
File Number: MLC 865 of 2012
| Mr Groth |
Appellant
And
| Ms Banks |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 18 January 2017, Mr Groth (“the father”) appeals against final parenting orders made by Thornton J on 13 January 2017. Those orders permit Ms Banks (“the mother”) to change their six year old son’s place of residence from Suburb N in Melbourne to Town D.
Town D is about 60 kilometres from the Melbourne Central Business District. The father lives in Suburb L on the other side of Melbourne, some 30-40 minutes’ drive from where the child lives with the mother. A move to Town D would increase the distance between the parties’ homes and, depending on the time of day, travel time to (in the vicinity of) 80 to 130 minutes [8].
In practical terms, the effect of these orders on the operative parenting orders was to extinguish the time the child spent with the father after school on Wednesdays. Otherwise the changeover venue was altered from a contact centre (which was in any event problematic for the child) to the child’s school or a fast food restaurant halfway between Town D and Suburb L.
It needs to be understood that it was common ground that it was in the best interests of the child for him to continue to live with the mother. What was in contention was whether the mother could change the child’s residence to Town D or, as was proposed by the father she should be required to maintain the child’s residence within particular geographic boundaries (in Melbourne). Oddly on one scenario she and the child could not live in the father’s suburb of Suburb L.
Eighteen grounds of appeal were raised and presented on the basis that all of the orders should be set aside; including those made by consent (Orders 1, 2, 12-32) and those made as sought by the father concerning school holidays and special days (Orders 5(b)-6). Neither the grounds of appeal, or argument, asserted error in relation to these orders, and there is no basis upon which we would interfere with them. No submissions were made in support of ground 12 and it cannot succeed.
In reality, the focus of the appeal was the order which permitted relocation (Order 3). In the event that this order was set aside, the father sought that we re-exercise the discretion of the primary judge and make orders in accordance with his Fifth Amended Initiating Application filed 19 February 2016 as amended.
The mother sought to uphold the orders. If the appeal was allowed, she opposed re-exercise and sought that the proceedings be remitted for rehearing.
Agreed facts and unchallenged findings
The decision to allow the mother to change the child’s place of residence was made in the context of important unchallenged findings and agreed facts. These include:
· The parties lived together in a relationship but separated some eight years before the child was born [2];
· The child is the only child of the parties;
· He has always lived with the mother who is his primary carer [236];
· The father was child focused when he conceded in cross-examination that it would be traumatic for the child if he did not live with the mother [166];
· The opinion of the single expert (wrongly described as the family consultant) that it was in the best interests of the child to live with the mother [166];
· The mother has reluctantly facilitated the child’s relationship with the father and the relationship has become a meaningful one for the child [152];
· The child has a meaningful and loving relationship with both parents and their respective partners and families [216];
· The mother and child lived with her parents in their home but they planned to sell and downsize [62];
· The mother met her partner, who lives in Town D, in April 2013. He lives in a property which he owns and in July 2014 the mother decided she wanted to move with the child to live with her partner [143];
· On the basis of orders obtained at the father’s behest, the mother was restrained from relocating with the child and thus she had been prevented from implementing her decision for well over two years [144];
· The father and his family were settled in Suburb L and he would not move to Town D [43];
· The father works part-time and has the capacity to implement the spend time arrangements referred to by the single expert should the child’s residence be relocated to Town D (as ordered) [220]; and
· Notwithstanding the mother’s attitude towards the child’s relationship with the father and some inappropriate behaviour on her part, the child has spent regular time with the father [150].
Against these factors, the gravamen of the decision to allow the relocation, can be seen at [244] – [246] of the trial reasons which are set out below.
244.In weighing up the competing proposals I have concentrated on the effect of those proposals on the welfare of the child. The mother’s relocation proposal provides the likely potential for improvement in her attitude towards the father, whilst the father’s proposal would effectively place constraints upon the mother which she will continue to resent. It would do nothing to mitigate the negativity which has been the source of difficulties for the child. Taking into account that the child has completed only his first year of schooling and is only six years old there is no evidence that he will be adversely affected by a change of schools. There is also the benefit of a relocation noted by [Mr P].
245.The mother’s financial circumstances have been adversely impacted by the costs of litigation and this forms part of her reasons for living with the maternal grandparents. This is not tenable in the long-term and the evidence that the maternal grandparents have a need to eventually sell their property was unchallenged.
246.As [Mr P] stated unless [the child] understands clearly and unequivocally that his mother genuinely supports and values his relationship with his father, he is likely to develop problems in the future. I am satisfied that permitting the mother to move with the child to live with her partner in [Town D] is more likely to result in an improvement in the parental relationship which on the evidence of the Single expert will clearly benefit the child. I am satisfied on all the evidence that the mother on relocation will continue to implement the alternate weekend spend time arrangements as she has done in recent times and that she will be prepared to support the child in spending half of the school holidays with the father. I am satisfied that her partner will also support this arrangement.
Grounds of Appeal
There is no challenge to the primary judge’s statement as to the approach to be adopted in cases such as this; rather the focus of the appeal is on specific findings and how these affect her Honour’s exercise of discretion.
By way of overview, the challenges raised assert error by the primary judge as follows:
· Failure to make findings based on unchallenged evidence given by the father and the father’s sister (“the paternal aunt”) which amounted to family violence perpetrated by the mother on and in the presence of the child (and others);
· Having failed to make the findings referred to above, misapprehended the evidence of the single expert that “it may be that if the behaviour of [the mother] is proven to have occurred, the risk to [the child]’s relationship with his father should the relocation occur may be too great”; and
· Specific findings which informed her Honour’s conclusions as to the mother’s attitude to the child’s relationship with the father, and that her attitude towards the father may improve if she and the child were settled at Town D were contrary to the evidence and not reasonably open.
The appeal is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Further, it is well settled by authority that an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight (Gronow v Gronow (1979) 144 CLR 513 at 520 per Stephen J). This is particularly brought into focus in respect of parenting orders which inevitably involve assessments as to the future (CDJ v VAJ (1998) 197 CLR 172 at 218) (“CDJ v VAJ”).
The unchallenged evidence as to family violence (Grounds 4, 5 and 7)
Before we commence this discussion, it is important to acknowledge that it has been necessary for the father to battle the mother so as to establish his relationship with the child. She opposed him being recorded and acknowledged as the child’s father and the process of achieving these outcomes has been very difficult. The first tranche of litigation was concluded after a defended hearing with final orders made in June 2013. Implementation of these orders insofar as they facilitated time between the child and the father was fraught and by July 2014 contact had broken down.
The father and his sister gave detailed affidavit evidence concerning the actions of the mother and her parents at changeovers during 2014 and early 2015 (including conduct by the mother which amounted to family violence) which led to the father’s decision to stop trying to enforce the June 2013 orders and to seek further assistance from the court. They were not cross-examined about the reliability of that evidence; indeed the paternal aunt was not cross-examined at all.
As to the mother’s case, her parents, who were present at the hearing and available to give evidence about these matters, did not [149]. Contrary to the findings of the primary judge at [141] that “the mother generally denied the description of her behaviour at changeover outlined by the paternal aunt in her affidavit evidence” it is common ground in the appeal that there was no challenge by the mother to either the father or the paternal aunt’s evidence and that in this regard her Honour misspoke.
At trial it was submitted by senior counsel for the father that this evidence established that the mother is incapable of accepting the father as the child’s parent. When this evidence is dovetailed with her more recent conduct, such as by failing to encourage the child to call his father “Dad” it was argued that the mother lacked the capacity to maintain and support the child’s relationship with the father from Town D.
Notwithstanding the importance of these matters to the father’s case, by reference to s 69ZT of the Family Law Act 1975 (Cth) (“the Act”), her Honour at [149] declined to “make any findings about the details of the behaviour of the mother during the controversial changeovers in 2014 and February 2015” recorded in the evidence of the paternal aunt.
However, at [150] the primary judge accepted that the paternal aunt’s evidence about the mother’s conduct at changeovers in 2014 and February 2015 was probative of the opinion of the single expert that historically the child had been exposed to the mother’s negative attitude towards the father. In her discussion of s 60CC(3)(j) of the Act her Honour repeated this observation and in so doing also took into account the father’s unchallenged evidence. It follows that this evidence was accepted by the primary judge and undoubtedly given weight. However her Honour found that since early 2015, namely after the last of the incidents referred to in this tranche of the evidence, that the mother’s attitude to the child spending time with the father had slowly improved and would likely continue to improve if she was able to settle with her partner and the child in Town D [157]. In this respect it is uncontroversial that the child regularly and reliably spent time with the father. Greater weight was given to this improvement than her previously demonstrated negative attitude and prior conduct. We pause to observe that whether the finding as to the improvement in the mother’s attitude was open on the evidence is challenged by ground 8.
But for her Honour’s decision to not make specific findings in relation to this unchallenged evidence, her approach was unremarkable. In relation to the relevance and thus necessity to make specific findings as to family violence, her Honour correctly observed at [210] that neither party asserted the child was in need of protection, whether in relation to exposure to family violence or other risky behaviour. This finding informed her Honour’s conclusion that she would not make any findings of family violence [against the mother] “because of the seriousness of the allegations which are denied” [224]. It is difficult to understand what this means. Doing the best we can with the somewhat discursive reasons on the point, it seems that the primary judge declined to make the findings for which senior counsel for the father contended because the primary judge either mistakenly believed that it was in the best interests of this child to not make findings about the mother’s conduct during the period in question or that this unchallenged evidence required testing in order to satisfy the evidentiary onus that rested on the father. Neither proposition is sound. Nor was her reliance on s 69ZT. Section 69ZT “provides that certain rules of evidence do not apply and neither party sought any other order” [149]. We do not accept that s 69ZT could justify a decision not to make findings in accordance with unchallenged evidence relevant to the welfare of a child.
The proper approach to unchallenged evidence is explained in Weissensteiner v The Queen (1993) 178 CLR 217 per Mason CJ, Deane & Dawson JJ at 227 thus;
…[I]t has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because un-contradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it….
The Full Court decisions in Johnson and Page (2007) FLC 93-344, Amador v Amador (2009) 43 Fam LR 268 and Maluka & Maluka (2011) FLC 93-464 adopt a common approach to s 69ZT. The effect of these decisions as to the purpose of the provision accords with the submission made in the appeal (par 3.9 summary of argument) by senior counsel for the father. Namely;
Rather than operating so as to enable the avoidance of making relevant findings (here such findings were clearly relevant to the sec 60CC determination), properly understood sec 69ZT is concerned only with the admission of evidence and no more. It operates so as to effectively remove specified rules of evidence in a parenting proceeding absent an order to the contrary.
But for the fact that we are satisfied that this evidence was in fact taken into account, grounds 4 and 5 (erred in failing to accept the evidence of the father and paternal aunt) and ground 7 (failure to make findings concerning this evidence) would have been successful.
The child’s relationship with the father would not survive relocation - Grounds 1 -3, 6 and 11
Grounds 1-7 and 11 were argued together. We have already discussed grounds 4, 5 and 7. The remaining grounds to which this unchallenged evidence relates concern how this evidence ought to have affected the outcome. In broad terms, the father contends that:
·The primary judge ought to have had significant concerns that the relationship between the child and his father would not be maintained in the event that the child resided with the mother in Town D (grounds 1 and 6);
·The primary judge gave insufficient reasons for rejecting the recommendations of the single expert (ground 2);
·The primary judge failed to make findings as outlined in ground 3; and
·Her Honour’s finding at [158] that the mother’s attitude towards the father is likely to improve if she can relocate was contrary to the evidence and opinions expressed by the single expert and the reasons were inadequate (ground 11).
As to ground 3, although it may have been open to her Honour to make the findings suggested the evidence was not so unambiguous that she was compelled to make them. These were not matters where the evidence on the point solely comprised incontrovertible facts or uncontested testimony. Certainly aspects of the evidence were, but her Honour was concerned with the entirety of the evidence. As to evidence which weighed against the findings for which the father contends, see for example paragraph 11 of the second family report and her Honour’s findings at [140], [148] and importantly at [150] to the effect that while in the mother’s care the child has developed a good relationship with the father and post-February 2015 the child spent regular time with him.
In addition, it is important to recall that her Honour had the opportunity to observe the mother in the witness box and to form an impression of the mother and how she might parent in the future; including whether she should accept what the mother said on the topic. These matters plainly influenced her Honour’s approach to the findings postulated by ground 3 and in our view it would be wrong for us to conclude that the evidence compelled the primary judge to make the findings sought. Ground 3 does not succeed.
Central to the remaining challenges is the contention that the single expert shared the father’s concern that the move to Town D would result in the relationship between the father and the child being unsustainable. In turn, that the unchallenged evidence discussed earlier provided the factual foundation for what it is said the single expert opined would see the father and son relationship fail.
The single expert knew the parties and child well and had been engaged with them since 2012, including to provide expert opinion in the proceedings. The primary judge gave the single expert’s evidence detailed attention and said it was given considerable weight [145]. If, however, the evidence given by the single expert was that her Honour could not reach the conclusion that the mother’s attitude had slowly improved and from Town D was likely to continue to improve it is accepted that her Honour misunderstood the gravamen of the evidence. The point is ultimately a question of degree; between the single expert holding concerns about these matters and certainty that the concerns would come to pass.
In support of this challenge, the father emphasised paragraphs 24-29, 53, 56 and 57 of the first report prepared by the single expert dated 26 November 2015 (“first report”). It is unnecessary to record that body of evidence and sufficient to recount paragraph 53 which establishes the point about the single expert’s concern:
Not surprisingly, the relocation places pressure and stress on an already difficult situation. At one level [the father] is not seeking to remove [the child] from [the mother’s] care but in the event that she moves to [Town D], he will seek for [the child] to reside in his care. I think there is no likelihood that [the mother] will move to [Town D] without [the child]. [The father] would like [the mother] to live somewhere in Melbourne so as to make his relationship with [the child] more manageable and sustainable. His concern is not only will the tyranny of travel be tiresome and difficult for [the child] but that with the passage of time, it will be increasingly difficult for [the child] to remove himself from his home environment to spend time away. The underpinning to this is that [the father] remains fundamentally concerned that [the mother] does not value the relationship, will not value the relationship, will not support [the child] and will give to [the child] the clear message of ambivalent restraint until [the child] refuses to see him. Put simply, [the father] believes that the move to [Town D] is the thin edge of the alienation wedge. If what he has to say about the behaviour of [the mother] is proven to be correct then I would think there is significant reason for him to be concerned and I would share that concern.
(As per original)
However, her Honour also took into account the evidence of the single expert contained in his second report which is dated 31 August 2016 and his oral testimony. At paragraph 11 of the second report the single expert said:
[The mother] acknowledged that communication between her and [the father] remains difficult, and she does not believe that it is [the father] who writes his own emails. She further explained that this makes communication with him extremely difficult, and creates an impasse to improved relations. She told me that she fully accepts [the father], that he is most definitely a part of [the child’s] life, and that despite what [the father] thinks, she wants to genuinely nurture their relationship, that she wants [the child] to be the best that he can possibly be, and that achieving his potential will be enhanced if [the father] is actively involved in [the child’s] life. She told me that in the majority, [the child] is coping well, that for the majority, [the child] makes the transition to his father unremarkably, and for the most part, the relationship appears to be progressing well. She does not believe that the ongoing litigation is helpful, adding that she feels, that the aggressive communication from [the father’s] solicitors only antagonizes the situation. Generally, [the mother] was optimistic about a better outcome for herself and [the child] and for their life together in [Town D]; she did not believe a move would compromise [the child’s] relationship with his father at all.
And further at paragraphs 19-20:
19. The paradox may well be that by [the child] moving to [Town D] will place a clear and immutable physical boundary between his parents that will allow for a more comfortable transition, avoid triangulation, and him having to manage those difficult emotional exchanges. A move to [Town D] however, would also undeniably change the nature of his relationship with his father, and would probably do nothing to alter his understanding of his mother’s feelings towards his father and about him having a relationship with his father. It is a crucial consideration to understand the underlying basis for why [the child] perceives his mother to be worried, to not feel that he is safe and why he feels the need to protect her; it is my view that [the child] understands his mother’s possibly less than conscious ambivalence about him having a full, complete and equal relationship with his father.
20. Whilst it may be that creating distance and ending litigation may result in a lessening of the importance of this issue to [the mother], the core message of restraint heard by [the child] is in my opinion unmistakably clear, and I suspect has been the message that he has heard since the time he was an infant.
Critically, however, in relation to the single expert’s predictions for the future of the relationship between the father and child in the event of relocation, in cross-examination the single expert said:
[COUNSEL FOR THE MOTHER]: And the point, of course, is this: is that if my client lives – continues to live in [Suburb N], life goes on as it had last week and last year and the year before that. She might not change. He might not change. The prognosis of [the child] remains the same, correct?
[SINGLE EXPERT]: I think that, regrettably, [counsel for the mother], I think you’re correct.
(Transcript of 7 October 2016, page 242, lines 29-32)
As to the question of whether the child’s relationship with the father would be sustained upon relocation, the single expert’s final word on the subject was given in cross-examination by senior counsel for the father as follows:
[COUNSEL FOR THE FATHER]: Why wouldn’t you support the relocation if the court has those concerns?
[SINGLE EXPERT]: Because of what you asked me earlier and that is the risk to – risk for the thin edge of the wedge. I think in fairness, your Honour, that whole report needs to be considered in its totality but I say a little bit more than just that. I say that paradoxically it’s – may be that a move to – to [Town D] will put in place such a structure that the contact will have to happen. I think I say that. And I also say that if you were confident that – that [the child’s] relationship with his father could be protected and made a priority then I would support the move to – to [Town D]. So it’s not just that bit even though that’s certainly one part of the three options. And ultimately my position remains the same. If you’re confident that a move to [Town D] won’t compromise [the child’s] relationship with his dad, well, then I would support it. I think it’s a nonsense to even contemplate mid-week contact or three weekends out of five or three weekends out of four as the case may be. It just doesn’t work. It’s never sustainable in the long term. We should probably embrace the – the awkwardness of it all and it would have to be every alternate weekend, half the holidays and whatever telephone contact, etcetera. It’s possible. Albeit that already you’re seeing indication that telephone contact is going to be problematic. If, however, you – you’re concerned that this relationship is not invested in then I – I would be very concerned that it be the thin edge of a wedge where out of sight is out of mind. And of course there is the inevitable practical burden of travel and communication and costs and all those things.
(Transcript of 7 October 2016, page 236, lines 36-47 and page 237, lines 1-9)
There can be no doubt that throughout his evidence, the single expert was clear that it was a matter for her Honour to decide “…whether the historical matters and the behaviour of both parents in relation to the transition warrants particular attention” (first report, paragraph 56). In addition that he was concerned about the possibility that the proposed move was in fact “the thin end of the alienation wedge” (first report, paragraph 53). As at 26 November 2015, it is clear that based on the unchallenged evidence in particular the single expert was concerned that it might be. However, he did not express the opinion that it was and, by the time cross-examination was completed, he was of the opinion that there were also advantages for the child in the mother’s relocation proposal.
There can be no doubt that her Honour well understood the father’s “thin end of the wedge” concern and those of the single expert. Or that her Honour was concerned about the mother’s ability to facilitate the child’s relationship with the father. This is a recurrent theme in the trial reasons. Reference need only be made to [147]-[148], [151] and [211]-[212] to put this beyond doubt. So that it is clear we are completely satisfied that the reason why the primary judge gave such close attention to this issue is because she was similarly concerned about the future of the child’s relationship with the father. The primary judge specifically addressed the mother’s negative attitude and the manner in which it had affected the child. Her decision to distinguish between the mother’s attitudes and conduct pre- and post-February 2015 was available as was the weight she placed on her behaviour during those periods.
However, her Honour also saw advantages for the child in the relocation and in terms of the mother’s attitude towards the child’s relationship with the father and saw the “likely potential” for improvement if the relocation was granted. There can be no doubt that the primary judge’s approach to this difficult issue was nuanced and that her deliberations reflect finely balanced consideration of the evidence. The factors which ultimately weighed in support of her approach to the mother’s attitude to the child’s relationship were relevant considerations and were available on the evidence. It will apparent that the evidence in relation to this issue was complex and provided support for the case advanced by the father as well as that advanced by the mother. Thus her Honour was faced with a difficult decision and there is little reason to doubt that the different judges might have validly reached different decisions. But that is not the point because as we will demonstrate the ultimate decision results from a proper exercise of the discretion entrusted to the primary judge (CDJ v VAJ at [151], [186.2]).
The effect of this is that the challenges pressed by grounds 1, 2, 3, 6 and 11 are not made out.
Findings not open on the evidence (grounds 8, 9, 10, 13, 14, 16 and 17)
Grounds 8, 9, 10, 13, 14, 16 and 17 concern specific findings which influence, or wrongly failed to influence, her Honour’s assessment about the mother’s support of the child’s relationship with the father. In essence, it is argued that the particular findings were not open on the evidence and that the primary judge failed to appreciate the significance of a number of the findings contended for. Challenges that findings were not open on the evidence can be quite difficult to establish. This is because a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” (Fox v Percy (2003) 214 CLR 118 at 128 (“Fox v Percy”)). Or, they are “glaringly improbable” or “contrary to compelling inferences” (Fox v Percy at 128). See also Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550.
As was mentioned earlier, the gravamen of ground 8 is that her Honour’s finding at [157] “that the mother’s attitude towards the child whilst spending time with the father had slightly improved since 2015” was contrary to the evidence and a finding not reasonably open on the evidence. It is the father’s contention that the only evidence to that effect is that given by the mother and that her evidence is self-serving and inconsistent with a proper analysis of the evidence as a whole. The submission should not be accepted.
At paragraph 4.3 of senior counsel for the father’s summary of argument, examples are given of conduct by the mother which it is said weighed against the impugned finding. Namely;
·The mother’s failure to include the father on the “online noticeboard site up to 24 August 2015” (also grounds 9 and 10);
·Her failure to include the father as an emergency contact point (also ground 16);
·Her failure to agree to a third party collecting the child from school when the matter was before the court;
·The mother’s refusal to promote overnight time midweek unless she could relocate; and
·Her refusal to encourage the child to call the father other than by his first name (also ground 17).
Turning to the first matter, this dovetails with grounds 9 and 10 which challenge the findings that the father’s complaints with respect to the online noticeboard might have been resolved by his speaking directly to the school (ground 9) and that the mother did not deliberately try to exclude the father from the online noticeboard (ground 10). Reference to the online noticeboard is to an online portal operated by the child’s school to which parents can gain access and receive information and updates about school activities. The father gave evidence that the mother ignored or did not assist him by providing her consent to the school for him to gain access to the site, despite numerous requests by him to do so throughout July and August 2015.
The mother accepted that she did not immediately authorise access and did not do so until she spoke with the single expert on 24 August 2015. However, her Honour’s findings at [157] that the mother “tried to modify the program to provide access for the father and also offered him the use of her login password” reflect the evidence which the mother gave and which are unchallenged in the appeal. Although it might have been open to her Honour to accept that the mother’s failure to take the steps which she did on 24 August 2015 sooner was a reason to be concerned about the mother’s attitude to the child’s relationship with the father, that inference was not the only available inference. Her Honour’s finding on this point was undoubtedly available and the challenges raised by this aspect of ground 8 and grounds 9 and 10 are not made out.
We accept that it is possible that her Honour was wrong when she found that the father could have resolved this issue directly with the school but if it is wrong it is an error without consequence. The salient point of [157] is that her Honour accepted the mother’s evidence that she had taken steps to enable the father to access the site, albeit steps which would have seen him share access with the mother.
The primary judge did not overlook the mother’s failure to include the father as an emergency contact point and this issue is mentioned at [88] of the trial reasons. It would seem that the mother’s evidence that when she completed the online noticeboard application details she was in a hurry and did so knowing that the father was already recorded as an emergency contact with the school was accepted. The primary judge was entitled to do so. However, her Honour does seem to have overlooked that when the child attended a new medical centre in an emergency situation the mother recorded her and her father as contact points. Had it not been an emergency it might be that this could have assumed some significance. However, in our view this misstep ought not to have influenced the outcome of the proceedings and the oversight is of no consequence.
We take the same view in relation to the two following points raised by ground 8, namely that these were insignificant matters that did not require separate discussion.
Otherwise in relation to the final aspect of ground 8 and ground 17, this issue was dealt with at [88] and [151] and it is clear that the potential significance of the mother’s failure to encourage the child to refer to the father as “Dad” was considered by her Honour. The effect of her Honour’s analysis of the evidence thus demonstrated that the mother continued to have difficulties encouraging the child in his emotional attachment to his father. However, greater weight was given to the fact that in the presence of the single expert the child referred to the father as “Dad” and that the child clearly identifies his father as such. Although her Honour might have taken this further and viewed the issue in the fashion contended for, she was not obliged to do so.
Ground 8 and the associated grounds have not been made out.
Ground 13 relates to her Honour’s findings in respect to an overseas holiday proposed by the mother. At [163] her Honour found that:
…the father was not prepared to cooperate with the mother in obtaining a passport for [the child] to travel to [overseas] in the school holidays in 2016 with his mother. He insisted that the mother sign consent orders as a condition for obtaining a passport….
Her Honour further cites the father’s demand for makeup time when the child did go on holiday (to Queensland) as an “example of lack of flexibility in dealing with the mother”. The father contends that this finding was not reasonably open and contrary to the evidence, which instead showed that the father was willing to sign the passport application, once a protocol was established for how it would be held and the countries the child could visit. A request for such a protocol is hardly, according to the father, a demonstration of a lack of flexibility in allowing the child to travel. That may be the father’s opinion but having regard to the evidence at [88] it was not how her Honour assessed the situation. Once again we are satisfied that on the evidence the finding was available.
Error in the manner alleged has not been made out.
Ground 14 again deals with a discrete matter about evidence that the father was being excluded from the child’s life; in this instance his medical care.
At [164] her Honour found that the “father has rigorously pursued the mother via email and through his solicitors about communicating with him regarding medical issues for [the child]…” and was somewhat critical of his approach in relation to an appointment with an urologist. Relevantly, her Honour stated that “[t]his evidence exemplifies what [the single expert] explained as the parties’ focus on the “ownership” of [the child] and the effects of protracted litigation.”
The father challenges his behaviour being characterised as having anything to do with “ownership” of the child. The essence of the complaint is that the father’s behaviour was not properly contextualised and occurred in circumstances where the mother had not informed the father about the child’s previous medical appointments despite being ordered to do so. Her Honour understood this but she was satisfied that the father had been given the opportunity to attend the appointment and yet through his solicitors he pursued the mother about the issue for forensic gain. She was not wrong to so conclude.
Otherwise as the primary judge recognised there was no doubt that the single expert had been concerned about the parties having adopted an “ownership” approach to their son [100] and in her view the matter discussed at [164] provided a simple vignette of “ownership”. For this challenge to be made good the father needed to establish that the approach adopted was not available. He has not done so.
Denial of procedural fairness (ground 15)
By this ground the father asserts that her Honour’s finding at [132] that he “gave the impression of relishing the litigation” was made without giving the father the opportunity to make submissions on the point and he was thus denied procedural fairness. In argument, senior counsel for the father sought to expand this challenge to include complaint about her Honour’s observation that the father adopted a particularly combative approach through his counsel. No issue is taken with the description of the approach adopted, but rather the complaint is made that the father was not responsible for the manner in which counsel approached the trial.
In support of this challenge, senior counsel for the father relied on Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 which, as counsel acknowledged, is a case primarily concerned with findings as to credibility. The finding impugned by ground 15 does not go to the question of the father’s credibility and is quintessentially her Honour’s observation of him. The primary judge was not obliged to invite submissions on the point.
Although we agree with senior counsel for the father that the father ought not to have been held to account for the manner in which his counsel approached the conduct of the trial, he was unable to demonstrate how these findings influenced the decision. Indeed, when invited to address this point, senior counsel for the father said:
[COUNSEL FOR THE FATHER]: Would it in and of itself alter the determination? No, it wouldn’t, your Honour. But it’s indicative of matters being determined, we would say, unfavourably to us and our side, and it is indicative, in our respectful submission, of a general approach in the reasons where the case being put to her Honour on behalf of the father isn’t squarely confronted…I might invite your Honours to look at what occurred at page 931 to 932 of the record, when my client – when the court was adjourned because of my client’s distress at recalling witnessing the discomfort and emotional pain of his son on one occasion, he didn’t appear to be a man who was taking relish in the events…
RYAN J: Her Honour refers to your client’s distress in her reasons.
…….
ALDRIDGE J: In fact, at paragraph 133 – the very next paragraph.
(Transcript of 16 May 2017, page 21, lines 26-44)
Ground 15 is not made out.
Evidence of the single expert (ground 18)
The gravamen of ground 18 is that the primary judge erred in failing to have any, or any adequate regard to the evidence of the single expert that:
a)The mother harboured hostility toward and an inability to accept the decision of Cronin J and that such hostility had persisted to the time of trial and intensified;
b)The mother was unlikely to be able to shift to a position where she sees the father as equal, important and relevant in the child’s life;
c)By persistently asserting that the father did not want a role in the child’s life, the mother projected onto the child her own desire that she did not want the father to have a role in the child’s life;
d)The mother’s conduct towards the father contradicted her stated desire to create a better working environment in that she had difficulty in performing any act that confirmed the father as having an important role in the child’s life;
e)The report writer did not think that there would be an improvement in relations between the father and the mother because he did not think that the mother would be able to shift to a position where she saw the father as equal, as important and as relevant in the child’s life as herself; and
f)If the behaviour of the mother was as alleged by the father, the prognosis for the child of the risk of future alienation from the father would be high in any relocation.
We will deal with each of these matters in turn.
In senior counsel for the father’s amended summary of argument, proposition (a) is sourced to the trial transcript at page 228. Having read the trial transcript we do not agree that the proposition is well made. Rather, the gravamen of the evidence given by the single expert on the point is that in August 2013 the mother felt aggrieved by the outcome of the first trial. The single expert said “...I can’t remember whether she was accepting or unaccepting. But she was certainly unhappy about it”.
Item (b) relates to a file note by the single expert concerning his meeting with the parties on 19 March 2014. In relation to that meeting the single expert observed “I don’t think there will be improvement, because I don’t think [the mother] will be able to shift to a position where she sees [the father] as equal, as important and as relevant in [the child’s] life”. The single expert said that this matter still concerned him. Her Honour’s reflection of this evidence at [127] is apt.
Proposition (c) reflects evidence given by the single expert. However, this answer was given in relation to a line of questioning concerning the mother’s position in 2012 and 2013 and in the context , as her Honour pointed out, of legal advice given to the mother that due to the circumstances of the child’s conception at law the father was not the child’s parent. The legal advice was wrong as was the mother’s position about the father’s desire to have a role in the child’s life. However, we do not consider that her Honour was obliged to take this evidence into account in a decision made in 2016 and with so much that had occurred in the meantime.
In support of the fourth proposition, the father relied on evidence given by the single expert at page 234 of the trial transcript. Again, the evidence does not go as far as the proposition suggests. The evidence given was:
[COUNSEL FOR THE FATHER]: On 21 May 2014 you observed of [the mother] that she wants to create a better working environment. The reality is – now, when you observed that she wants to, she articulated that she wanted to?
[SINGLE EXPERT]: I assume so. Yes.
[COUNSEL FOR THE FATHER]: Yes. And then you observed.
The reality is she is still quite critical and hostile and very negative towards [the father], and will not undertake to sign documents, in essence, to confirm his role as [the child’s] father.
That, I suggest, would indicate that, in your view, notwithstanding what she said, her conduct contradicts her desire to create a better working environment, in that she can’t readily perform an act that, in essence, confirms [the father] as having an important role in [the child’s] life?
[SINGLE EXPERT]: That has been my concern, your Honour.
[COUNSEL FOR THE FATHER]: Now, if it be the case that, when given the opportunity to name emergency contacts for [the child] and school-related noticeboards and apps for the school, she names her father rather than [the father]?
[SINGLE EXPERT]: names her father?
[COUNSEL FOR THE FATHER]: Her father?
[SINGLE EXPERT]: Mmm.
[COUNSEL FOR THE FATHER]: Would that suggest to you that she still has a difficulty in performing acts that confirms [the father’s] role in [the child’s] life?
[SINGLE EXPERT]: It may.
(As per original)
(Transcript of 7 October 2016, page 234, lines 1-23)
There is no doubt that her Honour had this evidence in mind at [127] and understood that the single expert was of the opinion that “the mother’s conduct does not necessarily reflect her assertions of acceptance of the importance of the father to the child.” The point being it was not overlooked and plainly taken into account in forming her assessment of the mother’s current and likely prospective attitude.
Proposition (e) is sourced to the trial transcript at page 233 to which reference has already been made. The opinion of the single expert that the mother was unlikely to see the father as her equal in the eyes of the child was considered at [127] and, it seems to us that it was accepted by her Honour and not overlooked.
As to the final point, this is a reference to paragraph 53 of the first report set out earlier. Again, the transcript references upon which reliance is placed do not go as far as the challenge contends. The gravamen of the evidence given by the single expert was that if her Honour was satisfied that the mother had not invested in the child’s relationship with the father then, the single expert was “very concerned that it [relocation] be the thin edge of the wedge where out of sight is out of mind”.
At [125]-[131] the primary judge provided an overview of the single expert’s oral evidence and, at [126] in particular, referred to the risks he had identified in the first report. Of necessity, this includes paragraph 53. However, as we have already discussed, her Honour was satisfied that there was other evidence which persuaded her that the mother’s attitude towards the child spending time with the father had improved since early 2015 and was likely to further improve “when her living arrangements are settled and the litigation subsides” [158]. These findings were open on the evidence and thus the substratum of facts to which the final proposition is addressed differs to the facts as found.
We are not satisfied that her Honour’s approach to the evidence was plainly wrong or that the manner in which she approached the question of weight justifies appellate intervention.
Conclusion and costs
The father has not established error and the appeal will be dismissed.
In the event the appeal was dismissed, an application was made by the mother that the father pays her costs in the amount of $15,000. Senior counsel for the father appropriately acknowledged that in the event that the father was unsuccessful, costs in the amount sought could be ordered.
In our view, that the father’s appeal has been wholly unsuccessful justifies a departure from the approach that each party bears their own costs, as well as an order for costs. An order in the amount sought will be made.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan & Aldridge JJ) delivered on 4 October 2017.
Associate:
Date: 4 October 2017
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