Hannigan & Sorraw
[2010] FamCAFC 257
•20 December 2010
FAMILY COURT OF AUSTRALIA
| HANNIGAN & SORRAW | [2010] FamCAFC 257 |
| FAMILY LAW - APPEAL – CHILDREN – International relocation |
| Family Law Act 1975 (Cth) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Wood (1976) FLC 90-098 Harris and Harris (1977) FLC 90-276; (1977) 29 FLR Bennett and Bennett (1991) FLC 92-191 |
| APPELLANT: | Mr Hannigan |
| RESPONDENT: | Ms Sorraw |
| FILE NUMBER: | SYC | 2143 | of | 2007 |
| APPEAL NUMBER: | EA | 119 | of | 2010 |
| DATE DELIVERED: | 20 December 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace and Watts JJ |
| HEARING DATE: | 10 November 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 September 2010 |
| LOWER COURT MNC: | [2010] FamCA 807 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Grieve QC |
| SOLICITOR FOR THE APPELLANT: | York Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Moira Ryan Lawyers |
Orders
Appeal dismissed
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Hannigan & Sorraw is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 119 of 2010
File Number: SYC 2143 of 2007
| Mr Hannigan |
Appellant
And
| Ms Sorraw |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the father, Mr Hannigan, against the orders of Cohen J made on 13 September 2010. His Honour’s orders permitted the mother, Ms Sorraw, to remove the child, [the child] “from the Commonwealth of Australia and relocate her to and reside with her in New York State, United States of America”.
The child, born in 2005 was living with her mother on the south coast of New South Wales prior to the orders being made.
The father was spending time with the child every week from 9:00am Monday until midday Thursday. At the hearing before the trial judge the father sought orders maintaining that shared care arrangement for the child. In the alternative the father proposed the mother be permitted to relocate to Sydney (which was the mother’s proposal in the alternative) on the basis that the above shared care arrangements for the child remained in place.
Factual Background
The father was born in Australia in 1977. The mother was born in the United States of America in 1977. The mother’s step-father to whom she is close, lives in a town not far from A in New York State. The maternal grandmother lives in California and Arizona. The mother has other family members in the A area and in New York City.
The parties met in New Zealand in 2003 and commenced a relationship.
In mid 2004 the parties travelled to Australia and then to the United States for approximately three months. They returned to Australia in late 2004 and subsequently became engaged. On their return to Australia the mother applied for residency under a de facto spouse visa. In late 2004 the parties settled in WL on the far south coast of New South Wales, purchasing a property and a business.
Prior to the birth the child the mother claims to have become increasingly concerned about the father’s drinking and use of marijuana. She asserted that he was emotionally abusive towards her, stating that he was “inclined to be highly critical of her and say very hurtful things about her”.
In April 2006 the parties moved from WL to a rented furnished home at P. The lease was originally for six months; however, on 8 June 2006 the father extended the lease on the property until 6 April 2007.
In early 2006 the parties discussed moving to the United States. They purchased airline tickets, departing on 13 June 2006 with a return date of 1 September 2006.
Before leaving for the United States the parties sold the WL property and much of the contents of their home.
The parties moved into a rented house in B, New York State. There the father and the mother obtained employment. The mother’s step father kept a holiday house near there and spent a good deal of time at B.
The parties separated in July 2006 while in the United States.
On 5 July 2006 there was a disagreement between the parties and on 11 July 2006 the mother moved out of their accommodation and into her step father’s home on the same street.
On 12 July 2006 the mother drove with the father to a local café. When the mother went to leave another incident arose and as a result the mother sought and obtained a Protection Order for two years in her favour against the father from the W C Court on 13 July 2006.
The father filed a similar petition against the mother in relation to the same incident. The father, too, obtained a two year Protection Order against the mother.
On 19 July 2006 the father returned to Australia, while the mother and child remained in the United States. Before his return to Australia the father spent time with the child each morning and evening.
In August 2006 the mother and the child moved to Arizona to live with the maternal grandmother. The mother obtained employment as the head of a department at a local school.
On 16 November 2006 at the father’s behest, proceedings were commenced for the child’s return to Australia under the provisions of the Convention on the Civil Aspects of Child Abduction (“the Hague Convention”). The father said that he did not seek to have the proceedings commenced earlier as he had agreed with the mother that the child did not have to be returned to Australia until 1 September 2006 and he had been advised not to commence proceedings until after that date.
On 24 November 2006, the mother was served with an application instituted under the provisions of the Hague Convention.
On 8 December 2006 orders were made in the District Court of Arizona requiring the child’s return to Australia “in the temporary custody of her father…until permanent custody is awarded by a court of competent jurisdiction”.
There was confusion between the parties as to the effect of the orders made on 8 December 2006 and whether the orders provided that the father could take immediate possession of the child.
On 13 December 2006 the Court granted the mother’s application to clarify the order made on 8 December 2006 and on 15 December 2006 made an order that the mother hand the child to the father within 15 days of 15 December 2006.
On 11 December 2006 the father and the paternal grandmother informed the mother that they would be taking the child for a short picnic. Without telling the mother, the father and the paternal grandmother flew with the child to Los Angeles on 11 December.
Upon learning that the father and child had left and were in Los Angeles, the mother went to Los Angeles and was able to obtain a ticket on the same flight to Australia as the father, the paternal grandmother and the child.
In an attempt to prevent the father from leaving the United States with the child, the maternal grandmother contacted the police informing them that the father had kidnapped the child and was wrongfully taking her to Australia. The father said that he was confronted by eight police officers as he attempted to board the flight to Australia with the child. When the father produced the order of 8 December 2006 he was allowed to board the flight with the child.
On 13 December 2006 the parties arrived in Australia. The father and the child stayed at his parent’s home in a Sydney suburb, New South Wales. The mother, who was unable to stay in the home, stayed at a nearby hotel.
On 17 December 2006 the father took the child to live in the rented accommodation the parties’ had previously shared. The mother lived in the house until 1 January 2007 when she obtained accommodation nearby. While she was living in the house with the father and the child, she continued to breast feed the child.
On 3 January 2007 the parties agreed to a two week alternating shared care arrangement for the child.
Proceedings were then commenced in the Family Court in Sydney and interim parenting orders were made on 19 March 2007 by a Judicial Registrar. The orders provided for the child to live with the mother and spend time with the father each week from 9:00am Monday until 6:00pm Wednesday and from 5:00pm Friday to 12:00pm Saturday.
In May 2007 the father brought an application in the Family Court seeking orders that the child live with him and spend time with the mother. He further sought an injunction restraining the mother from attempting to change the child’s place of residence to America. The mother’s response to that application sought an order permitting her to move to America with the child. Her response sought orders that would provide for the child to spend block periods of time with the father.
In July 2008 the parties entered into consent orders, which provided for the child to spend 3 nights per week with the father, from 8:30am Monday until 11:30am Thursday.
Grounds of Appeal
By amended Notice of Appeal, 14 grounds of challenge were made to the trial judge’s findings. Several grounds relate to the same subject matter and for convenience we propose to group them together in our discussion of the matter.
Credit and Demeanour findings
Grounds 1, 8 and 9
Ground 1 and 9
Ground 1 challenges His Honour’s findings adverse to the credit and character of the father as being “without proper evidentiary warrant, were in a number of significant respects, contrary to the evidence and reflected a failure to use and a palpable misuse of his position”. In Ground 8, the appellant challenges the trial judge’s findings that the mother was a “mostly credible witness” and in so finding His Honour failed “to appreciate that…her evidence was, in a number of significant respects, false and, in others most unsatisfactory.”
Ground 9 alleges a miscarriage of the trial judge’s discretion in that he failed “to take into account, as a material consideration, “the fact that the Respondent deceived the Appellant into travelling with her and [the child] to the United States of America in June 2005 (sic) on the pretext that they were merely visiting the country for a short period, when, in truth, she intended to resume permanent residence there with their daughter, compelling him to prevail upon the Commonwealth of Australia to take proceedings for the return of the child under the Hague Convention.” To the extent that this Ground raises credit findings, we will deal with it here. We will deal with ground 1 at the same time.
It is appropriate to note from the outset that His Honour made clear and unequivocal findings against the father and expressed those findings in strong terms. Minds might reasonably differ about His Honour’s use of language however, having considered the evidence before the trial judge we are of the view that there was abundant evidence on which His Honour was entitled to come to the findings he did.
It is helpful to set out the principles to be applied by an appellate court dealing with a challenge to credit findings and where it is claimed that findings were not open on the evidence. In Abalos v Australian Postal Commission (1990) 171 CLR 167 the High Court at 178 referred to the Lord Sumner’s comments in S.S. Hontestroom v S.S. Sagaporack, where it was pointed out that:
“not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.”
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v Thomas. (footnotes omitted).
In the later case of Fox v Percy (2003) 214 CLR 118 at 126-127 Gleeson CJ, Gummow and Kirby JJ further explained the relevant principles:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ”weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’
As this Court there said, that approach was “not only sound in law, but beneficial in ... operation”. (footnotes omitted)
While we do not propose to recite and analyse each challenged finding, it is appropriate that we illustrate our view by reference to some of His Honour’s findings about the father and the evidence before His Honour.
In the reasons for judgment [94] His Honour said:
I conclude that the father knowingly fabricated the claimed admission of the mother that she had planned not to return [the child] to Australia before she left for America. He is a deliberate liar who is prepared to exaggerate and embellish the facts for the purpose of gaining a forensic advantage in these proceedings rather than allow my decision to be based on the unadorned truth. His credit is severely undermined. His parental responsibility is too. A responsible parent would be keen to ensure that the proceedings are decided on their actual merits.”
An important issue in dispute before the trial judge was the understanding on which the parties travelled to the United States of America in June 2006. The father contended that the mother had always intended permanently to return to live there but, knowing that he would not agree, tricked him into believing that they were going merely for a holiday. The father’s evidence was that sometime after 13 July 2006 and before the 17 July 2006 the mother admitted this ruse to him.
The father asserted that “some time after the 13th [of July]” the mother said “I planned on staying over here. I was going to mention it to you when we got here.” This is the “admission” to which His Honour referred in the quotation above. It was not disputed that the first mention made by the father of the asserted admission was in his evidence in the hearing. By then he had filed approximately six affidavits in Family Court proceedings and had caused proceedings to be taken for the return of the child from America.
Before His Honour, the father was asked:
Did you mention it in the Hague Convention proceedings?---Yes I did
You did. Right. And who did you tell it to?---I’m pretty sure I said it when I was in the witness box.
You said it in the witness box? Right. Okay?---possibly
Is that because you see me looking at a document---?---No
…
…Well, did you say it or not?---I can’t remember
In the Hague Convention proceedings the father was asked whether he had any discussions with the mother about his return to Australia “in connection with her potential return to Australia”, he replied:
…Yes, there were two times I remember clearly. On 14 July, [the mother] said to me... “When you get your plane tickets to leave sorted out, you can move back in with us for a couple of days before you leave and I will come back for J and J’s wedding on 1 September. (original emphasis)
In response to another question in the same proceedings about when he was told by the mother that she would not be returning to Australia with the child, the father said “about 31 August, just before she was due to come back…”. (original emphasis)
In an affidavit sworn in the Family Court proceedings on 12 February 2007, the father referred to the trip to America and said “[the mother] assured me that she would be returning to Australia with [the child] as planned on 1 September 2006. She did not return with [the child] and I instituted proceedings under the Hague Convention.” (original emphasis)
His Honour’s finding that the father had fabricated the asserted admission by the mother was well open to him on the evidence.
In argument on the appeal, Senior Counsel for the appellant argued that the evidence established that the mother had a definite plan not to return that she kept secret from the father knowing that he would object. In that event, it was contended we would find that it was probable that she did say something to the effect of the asserted “admission” to the father sometime before she was due to return and thus His Honour’s findings against the father were unsafe. The trial judge found [61] that the mother “did not plan or intend to trick the father into allowing her to take the child to the United States so she could abandon the father and keep the child there permanently.” His Honour found that the mother hoped to stay in America with the child and the father and intended to return to Australia in September if the father did not agree to remain in America.
We have considered the transcript of the mother’s evidence in this regard and we are not persuaded to a different view to that arrived at by His Honour.
In any event, we are unable to accept that argument. His Honour’s finding rested on his rejection of the husband’s evidence of the asserted admission, not whether the mother had indeed a settled intention not to return to live in Australia.
The father said that, while in America, he returned home on 13 July 2006 to find that the mother had “disappeared” with the child and he immediately called the Australian Embassy. He also claimed to the Family Consultant who interviewed him in preparation of a report for the Court (Appeal Book 442) that from that time until he returned with the child to Australia, the mother refused to allow him contact with the child. However, in his evidence he said that after separation and before he returned to Australia in late July 2006 he saw the child every day and when he returned later in that same year, he saw the child on an almost daily basis.
At [62] in His Honour’s judgment he found “[t]here is little doubt that the father did not intend to return to the business in [P] or [U]. It is noteworthy that the father lied about his intentions on this aspect when being cross-examined.” His Honour then referred to the transcript of the father’s evidence.
The father gave the following evidence:
And certainly before you left for America…where you and [the mother] and [the child] were to live on a permanent basis was very much a matter for discussion ---No, we were planning on staying in [P].
…because that’s where you had your business ---Well, that was consistent with our long-term plan at that time.
…Albeit you say because that’s where you had your business ---Yes, we had a business and also a block of land.
…I suggest that it’s not correct to say that that was your long term plan at all ---Well, it was open for discussion at that stage and ---
…
…We were proposing to change our plans, yes.
…So when you told his Honour…that that was your long term plan that just wasn’t the truth, was it ---No, it was still open for discussion. We hadn’t made any decisions.
The father then agreed that before leaving for America he had put the land and business up for sale and agreed that in relation to the sale of his business he had advertised “Owner moving overseas”.
The father’s position before the trial judge was that he would not visit the child in America were the Court to permit the mother to relocate with the child. He said that his mother too adopted the same position.
His Honour noted at [10] that it was submitted to him that the father held genuine fears for himself should he return to America, and even though His Honour might find no basis for those fears, they were genuinely held.
His Honour found after referring to the incident between the father and the police at Los Angeles Airport;
109. He claims that, because of this and the threat of arrest and imprisonment posed by the earlier protective orders made against him, he is unwilling to visit [the child] if she lives in the United State because he fears the mother will make some false allegations against him and he will be arrested and imprisoned and possibly otherwise harmed. As I have mentioned earlier, he even claims to fear the mother will pay someone to harm him.
110. I do not regard him as being genuine in this stance. I am quite satisfied he has adopted it as a tactical ploy which he believes will assist his case for the wife to be restrained from removing [the child] from Australia.
His Honour observed at [175] that the father would probably not go to America to visit the child as he had said and observed that “this will not be because he is afraid to but because he does not wish to…”.
It was argued that His Honour formed an adverse view about the father because of his insistence that he would not visit his child in America and wrongly found that the father’s fears were fabricated and/or groundless.
It is clear that His Honour did indeed form a view against the father’s capacity for insightful parenting because of this stance. It is further clear that His Honour did find the fears to be groundless. To the extent that this is a further attack on His Honour’s findings, we are of the view that there was evidence on which this view could be formed.
As to the basis for his fears the father said that he was concerned that the mother and maternal grandmother were making plans to put him in harm’s way. In amplification, he said that he believed that the mother would make false allegations against him and engage people to injure him physically. He conceded that there had been no attempts to harm him physically either in America or Australia and he said that there was no such risk to him here but insisted that it would happen in America.
His Honour also had the benefit of the father’s evidence that while he was in America and the mother had the equivalent of an Apprehended Violence Order in her favour, he knew that she had told local police that she did not want him arrested.
We are of the view that His Honour was entitled to come to the view that the father’s reasons for not being prepared to visit his daughter in America were not based on any genuine fear held by him. Further, his Honour was, in our view, entitled to take that finding into account in assessing the father’s parenting capacity.
Having found that it was open to His Honour to make the findings about the father’s credit as he did, it was also open to him to view the father’s other evidence with some hesitation before accepting it. We therefore find that there is no basis to the arguments as contained in grounds 1 and 9.
Ground 8
The trial judge’s findings at [12] about the mother’s credit were also challenged. It was argued that his finding of her to be a “…mostly credible witness. Largely, she seemed to me to be committed to telling the truth without exaggeration or bias in her perceived favour” was a finding not able to be sustained against what was said to be “scarcely credible” evidence.
It is to be observed that His Honour did not accept all of the mother’s evidence in preference to that of the father. His Honour specifically preferred the father’s evidence that the property purchased at WL was to establish a business there. The wife had asserted that it was purchased as an investment.
Senior Counsel for the appellant argued that His Honour’s finding about the mother’s credibility could not stand against and was in “complete disregard of her deceitful conduct in relation to the appellant about her supposed intent to return to Australia at the end of August 2006”.
It was argued for the appellant that the mother’s evidence about her intentions concerning the trip to America in 2006 when contrasted with the evidence in her affidavit illustrated why His Honour fell into error in accepting her.
We have considered the evidence to which Senior Counsel for the appellant referred. His Honour’s findings at [60] about the mother’s intentions on leaving Australia for America in mid 2006 were clearly open to him.
It was further argued that the mother had conceded in evidence that she had made the admission referred to by the husband. The submissions contend;
The mother had actually reiterated her admission in evidence before the judge. His failure to appreciate that glaringly obvious fact alone suffices to vitiate the whole of his judgment.
Senior Counsel for the appellant could not point to any part of the transcript in which the asserted concession was made and we find none.
It was argued that the trial judge failed to take into account or give proper weight to the circumstances in which sexual abuse allegations were made against the father.
His Honour considered this event at [124].
In mid July the mother told the father that the child said “ouch” or “no” during nappy changes and bathing. The father’s response indicated that he too had observed this. The father made an appointment with a general practitioner to examine the child, Dr O, on 2 July 2007 and indicated to the mother that she was welcome to attend. The father was the first to attend, the mother arrived a little later.
His Honour sets out in detail the consultation with Dr O which included her questioning whether the child had been left in the care of anyone else. At the conclusion of the consultation and apparently after the father had left, the doctor asked the mother whether she thought the father might be inappropriately touching the child. Dr O then gave the mother information and the telephone number for a sexual abuse hotline and a referral for counselling for the child. Dr O reported her concerns to the Department of Community Services who interviewed the mother and who is reported to have said that she had concerns that the father was inappropriately touching the child in the vulval area. The matter proceeded and there was a Joint Investigation Response Team investigation that concluded there was no substance in the reported concerns.
His Honour was critical of the mother in this incident. He doubted whether she was in fact alarmed by Dr O’s expressed concerns, but found at [128] that she had used this as a tactical advantage and at [131] misled Dr O. His Honour found that the mother manipulated the situation to her advantage. His Honour continued at [136];
…This is, in my experience, commonly a mother’s reaction to an insensitive, domineering and controlling father who the mother rightly believes is enforcing a way of life on a child which is not in the child’s best interests. This is what I regard as having occurred here. It is a weak excuse for the mother’s manipulation of what would otherwise have been a straight forward situation.
Senior Counsel for the appellant argued that despite these findings, His Honour made excuses for the mother’s conduct and erred in so finding. It was also argued that the mother’s conduct gives support to the father’s expressed fears should he travel to America, that is, she will make further false sexual abuse allegations against him.
We find no error in His Honour’s reasoning nor do we find any connection with his hypothesis and the orders ultimately made. To the extent that the submission asserted that the trial judge “made excuses’ for the mother, his Honour was correctly critical of the mother but was also entitled to make findings about the father which may have influenced her behaviour.
His Honour’s suggested explanation for why the mother did attempt to exploit that event to her advantage was not, as we understand it, the subject of evidence before him. His Honour’s views in this regard can have little weight. However, His Honour had made findings about the father’s relationship with the mother and his conduct that were open to him on the evidence. The insertion of His Honour’s opinion was not material and, perhaps on reflection, inadvisable. Nevertheless, we find no error in His Honour’s findings that were, as we have said open to him.
His Honour’s findings about the mother’s credibility and his use of that finding were well open to him on the evidence. This ground is not made out on the arguments presented to us.
Delay and Demeanour
Ground 10
Challenge was also made to the reliability of His Honour’s findings of credibility to the extent that they were based on the demeanour of the witnesses as observed by His Honour. A reading of the reasons for judgment and transcript make it plain that His Honour’s findings were made not solely on his assessment of the demeanour of the witnesses. His consideration of the demeanour of the witnesses formed part of what we regard to be a clearly reasoned analysis of the evidence before him.
It was argued that the delay between hearing and delivery of judgment, some 10 months, must have operated to undermine the trial judge’s recollection of the witnesses and the evidence to the point of vitiating his findings.
It is clear from reading the reasons for judgment that His Honour had access to a transcript of the evidence, and he made reference to it. In argument, Senior Counsel for the appellant submitted that His Honour did not have all of the transcript and, in particular, did not have the transcript of the father’s evidence. With leave, a further extract of transcript of an application for stay made to His Honour on 22 September 2010 was provided to us. Not only does this transcript not support the submission that His Honour did not have the father’s evidence, it is entirely to the contrary.
At page 20 His Honour said;
…I had the transcript of your client’s evidence…In particular my finding where…I held that he contradicted himself within about six questions came, directly from the transcript.
At an earlier part of the transcript at page 19, in the course of discussion with Senior Counsel then appearing for the appellant about the judgment, Senior Counsel said;
…from a judgment of Kirby J, where His Honour talks about the necessity for the trial judge, in delivering the judgment, to go back to contemporaneous note or contemporaneous recollection to explain why it is that the findings are being made in the way that they are.
His Honour said at line 13;
And I do make contemporaneous notes, as you might imagine, and I suspect I have already made it clear to you when there were final addresses what I thought about your client’s demeanour and his mother’s demeanour.
The appellant did not identify any particular finding or matter that he said was reflective of weakened recollection. A reading of the reasons for judgment as a whole taken with His Honour’s clear indication that he had both a transcript and contemporaneous notes leads us to find that the challenge to His Honour’s judgment based on delay must fail.
Ground 11
Ground 11 asserted that by reason of the delay, His Honour gave insufficient reasons “for the acceptance or rejection of the evidence of the father and paternal grandmother” and overlooking “evidence which, if accepted, could have supported a different finding.
His Honour made specific findings about the evidence of the paternal grandmother at [13] and took those into account in determining disputed issues of fact [14].
Senior Counsel did not point to any evidence “overlooked” that may have supported a different finding other than has been considered in dealing with the other Grounds of Appeal.
This Ground was not elucidated further during oral submissions.
We find no error. This Ground is not made out.
Shared Parenting
Ground 2
Ground 2 of the Amended Notice of appeal asserts:
The primary judge mistook the facts and failed to take proper account, among other things, of the fact that, pursuant to the Orders made on 19 March 2007 (varied by agreement on 1 July 2008) the parties’ daughter …had “shared residence” with each of the parties in practically equally (sic) proportions, which arrangement worked satisfactorily until the hearing in November 2009, and thereafter until the judgment of 13 September 2010, in consequence of which his decision was vitiated by an improper exercise of discretion.
Far from being an arrangement that “worked satisfactorily”, His Honour accepted the mother’s evidence and found that the arrangement was not satisfactory and further found that in the time after they returned from America, the father was controlling, insulting and humiliating of her.
From a time before separation, the mother had sought counselling from Ms E (to whose evidence we shall later return). Ms E’s notes record the mother’s complaints of the father’s treatment of her during this time and in which she alleges that he imposed “rules” by which the time spent with the child would occur and rigidly enforced a 50/50 time regime.
His Honour accepted and referred to the fact that Ms E, as a person mandated to report concerns about the welfare of children, twice made reports to the Department of Community Services about the father’s care of the child.
His Honour at [120] noted the substance of Ms E’s report;
…she believed that the father’s “style of behaviour has negative implications for the welfare and emotional well-being of (the child) both now, and in the future”. I regard these actions as justified and accept the 30 October report as validly based and likely to be correct.
It seems to us then, that it is not in accordance with His Honour’s findings to assert as in this Ground that the arrangement worked satisfactorily. His Honour took into account these matters in coming to his ultimate decision.
It is important to restate the principles that relate to appeals against discretionary decisions.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ at 504-05 held:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance.
Paragraphs 519-20 of the decision in Gronow & Gronow (1979) 144 CLR 513, are also of relevance:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, 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.
His Honour, as the trial judge was required to assess and weigh the evidence before him in coming to the decision that he did. The arrangement for the care of the child after the parties returned to Australia in late 2006 was but one part of that evidence. It is clear to us that His Honour considered this evidence and took it into account in his final decision. We find no error demonstrated and this Ground of Appeal is not made out.
Expert Reports
Grounds 3, 4, 5, 6 and 7
The Grounds assert that His Honour gave insufficient reasons for not accepting “the evidence” of Ms M (Ground 3), gave insufficient weight to her evidence about the effect on the child of separation from the father (Ground 4), erred in “preferring his own assessment of the father’s parenting of the child over the assessment of Ms [T] and Ms [M]” in circumstances where both reporters had seen the child with the father (Ground 5) and erred in preferring the evidence of Ms E (Ground 6). Ground 7 alleged that His Honour had “erred in considering that (the mother’s) “evidence” which consisted of no more than a regurgitation of [the mother’s] uncorroborated allegations, many of which were admitted by her [the mother] to be false, had any probative value at all”
His Honour had before him three expert reports.
Ms E
Ground 6 and 7
Ms E is a counsellor at the P Community Health Centre. Between November 2005 and January 2008 the mother saw Ms E 24 times. Ms E did not meet the father. Ms E prepared a report, dated 30 October 2008 for the purpose of the proceedings before the trial judge. The report was based on her counselling notes and clinical observations of the mother over their sessions together.
Ms E found that the mother was the “victim of an abusive relationship” and was “fearful” of what the father may do.
She reports that on her return from America, the mother told her that the father was unwilling to negotiate on any point regarding the baby’s care and “at the same time he continued to berate her with claims that she was an unfit mother”.
As we have observed, Ms E noted that she had twice reported the father to the Department of Community Services, as a mandatory reporter.
His Honour at [32] and [33] considered Ms E’s evidence. He accepted that she had not interviewed the father and noted that her first contacts with the mother were when the mother was pregnant and had been identified at an ante natal clinic as possibly being under stress. His Honour recorded that the father’s counsel had submitted that Ms E, by virtue of her position, might be biased in favour of women and he was vigilant to that possibility. He noted her experience and qualifications. His Honour found her impressions contained within her report were “highly likely to be accurate and also think it is equally likely that the history given to her by the mother, and on one occasion her mother, is accurate and given without any motive other than the hope and expectation that this would facilitate effective counselling.” In accepting Ms E’s conclusions, his Honour at [34] took into account that when the mother first attended on Ms E, she was unlikely then to have been embarking on an attempt to deceive the Court.
His Honour at [35] also took into account his own experience of the father while giving evidence in front of him in assessing Ms E’s opinion of the husband gleaned through the mother’s account to her.
In submissions on the appeal, Senior Counsel argued for the appellant that Ms E’s evidence had no weight and His Honour ought to have rejected it. We disagree. True it is that her opinions were based on her interviews only with the mother, however, that of itself does not rob her opinions of weight. Her opinion contained in her report formed one part of the factual matrix on which His Honour was entitled to rely in coming to his decision. His Honour was alive to the weight to be attached to the report and, we are of the view, he clearly considered those before accepting her opinion. His Honour observed at [119] that the opinion Ms E formed of the father’s conduct coincided with his impression formed during the hearing.
Two family reports were prepared for the hearing. The first report was prepared in March 2007 by Ms T, a Family Consultant. At the time of the report the child was 14 months old. The second family report was prepared in July 2008 by another Family Consultant, Ms M, when the child was two and a half years old.
Ms T
Ground 5
In preparation of her report, Ms T interviewed the parties and made informal observations of each of them with the child in February 2007. Her report sets out the history of the parties’ relationship and the contact arrangements for the child. She noted that her interviews with the parents were brief because at that stage the parents told her that they believed the matter could be resolved by settlement. At the time of her report, the child was spending two days at a time with each parent.
Ms T found the child to be a “normal child for her age”, seeking “security from each of her parents”. She believed that the child had a secure attachment to each of he parents and appeared to be developing appropriately.
Ms T reported that the father was “still coming to terms with the parental separation, and thus with the issues related to post-separation shared parenting.” She said that the mother presented as a “child focussed parent with an insightful understanding of [the child’s] emotional needs”.
She said that the parents were “able to communicate with relative ease around issues related to [the child] and her emotional and practical needs.”
According to her report, the issue between the parties at that time was the amount of time spent by the child with each parent. She makes no mention of any application by the mother to relocate to America. Ms T made recommendations about the time to be spent by the child with each parent.
His Honour considered that Ms T’s opinion suffered from a “lack of contemporaneity” and noted that the child was about 14 months old when observed by her and in circumstances where both parents were in the room together with the child.
His Honour said that her finding about the apparent ease of communication between the parents was “undermined by the extensive evidence to the contrary”. Senior Counsel for the respondent submitted that Ms T’s conclusions should be considered against the background of the parties believing that they could achieve a settlement of the issues between them. It was argued that her report’s utility was limited by the context in which it was provided. That is the effect of His Honour’s conclusion to which we have referred.
The material before His Honour shows that, over time, the parties’ relationship became increasingly one of conflict. His Honour noted at [167] that by March 2008 the father accused the mother of being deceptive, manipulative and dishonest.
Ms M
Grounds 3, 4 and 5
In July 2008, in preparation of her report Ms M interviewed the parties individually and together, and made observations of the child with each parent. By this time, the mother was seeking an order permitting her to take the child to live in the United States, in the alternative she wished to be permitted to live with her in Sydney.
Ms M reported the mother’s view that the father was controlling and hostile to her.
In her observations of the father, at paragraph 18 of her report Ms M found that:
[The father’s] behaviour over the course of the day was not consistent with a controlling, abusive person who has a pathological hatred for an ex-spouse. It is possible that [the father] was able to conceal those aspects of his personality during the Family report interviewing process and examination of the evidence will be necessary to ascertain this.”
At paragraph 21 of her report, Ms M noted that the father:
… alleged that [the mother] had “failed to facilitate physical contact between him and [the child] during the periods that he was in the United States of America after the separation”. He stated that he removed himself from the United States during the period before the Hague Convention proceedings were commenced, on advice, because he had been afraid that [the mother] might contrive to have him arrested …
[The father] appeared genuinely alarmed by his involvement with the police in the United States of America. He indicated that he remains fearful that, were relocation to the United States to occur, (the mother) would find a way of having him arrested in the event that he attempts to exercise his parental privileges…
At paragraph 32 of her report Ms M said;
…[the father] has expressed fear of going there to visit [the child]. While this could have been a manipulative ploy on his part, my impression was that his fear and distress in this regard, whether reasonably based or not, was genuine. He does not trust [the mother’s] intentions with regard to his relationship with [the child], he views [the mother] as manipulative…
She continued at paragraph 35;
On the other hand if [the mother’s] concerns and allegations are reality-based then [the father] has problems which compromise both his capacity to sustain a constructive relationship with his fellow parent and his ability to focus on his child’s needs above his own. Such an eventuality would strengthen [the mother’s] case for relocation, at least to Sydney.
Ms M found that each parent “provides capable, sensitive and loving care” for the child.
Ms M noted at paragraph 29 of her report that the mother’s “needs would be met by moving back to the United States”, and would be “likely to benefit [the child]”. However, she also noted that such a move would “involve a real loss for [the child]”.
She expanded on this opinion in paragraph 30;
Relocation to the United States of America without (the father) would effectively be the end of (the child’s) relationship with her father as she now knows it. This is because, apart from anything else, she is not of an age either to understand his absence other than as felt abandonment, or to sustain the relationship given the gaps of time involved between her seeing him.
She further said that if a relocation was to occur, the contact proposed by the mother between the child and the father would cause the child “considerable stress”.
Ms M recommended against relocation to the United States and for the continuation of the arrangements which then existed; continued residence in the South Coast area and for a continuation of the current shared care arrangement. Ms M expanded on her opinions in oral evidence in the hearing.
His Honour’s analysis at [144] of Ms M’s evidence commenced by comparing the history of events given to her by the parties with his findings on hearing. He found that the mother’s account was consistent with the history he found. He found that the father’s version was “distorted and untrue”.
His Honour observed that it appeared Ms M had formed a more favourable view of the father than he had.
His Honour’s assessment of the parties’ credibility and his findings of facts led him to not accept her opinion of the father’s parenting capacity nor her recommendations. Nonetheless he accepted her opinion of the child’s interaction with each parent as observed by her.
A consideration of the grounds of appeal as they relate to the evidence of the experts in the matter must commence with an acknowledgement that expert evidence forms part of the material on which the judge or trier of fact comes to the ultimate decision or determines a particular fact. While the evidence of an expert (or indeed a witness) may be highly persuasive, perhaps even conclusive, it is not necessarily so.
In his analysis of the nature of an expert opinion in Makita (Australia) Pty Ltd v Sproules [2001] NSWCA 305, Heydon JA (as he then was) said, referring to Ramsay v Watson (1961) 108 CLR 642 at 67:
One other important aspect of Ramsay v Watson is the following statement at 645:
"That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves `Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?'. "
In Friscioni& Friscioni [2010] FamCFC 108, the Full Court considered the nature of a Family Consultant’s report. In the course of their discussion, the Court cited with approval that which was said in Hall and Hall (1979) FLC 90-713 at 78,819 noting that while decided in 1979, it is still to the point:
…In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
The opinion of Ms M was informed, as her report reveals, by her observations of the parties and the child, her interviews with the parties and certain documents, set out in the preamble to her report. It is clear from her report and as illustrated in the extracts to which we have referred, that her opinion was founded in part on her assumption of particular facts. In some instances, particularly in relation to the mother’s allegations about the father’s conduct to her, Ms M’s opinion was expressed to be subject to an analysis of the evidence. It is implicit in both the general nature of that which she was required to do and explicit in her report that she was not able to determine disputed issues of fact between the parties.
His Honour had before him extensive evidence both in affidavit and oral form and had the undoubted advantage of seeing the witnesses give evidence. He further had information that post-dated Ms M’s report
His Honour clearly formed a view about the husband’s credit and his parenting capacity based on all of the evidence in the case, much of which was not available to Ms M. He determined the factual disputes to which she adverted, against the father.
His Honour was entitled in that case to not accept her opinion and the resultant recommendations and in doing so we find no error.
It is in our view, not material to a determination of this issue that both Ms T and Ms M observed the child in company of her parents as part of their assessment. While their observations of the interaction of the parents with the child was one of the bases on which their opinions was formed. That observation in all of the circumstances of this case, either alone or in combination with the other matters to which we have referred, is neither conclusive nor persuasive of error. There was no issue that the child had a close relationship with the father.
Nor do we accept that His Honour gave insufficient reasons for his conclusions. The principles relating to the adequacy of reasons also require little discussion, an appellate court must be able “to discern either expressly or by implication the path by which the result has been reached” Bennett and Bennett (1991) FLC 92-191 at 78,267.
His Honour’s extensive reasons for judgment demonstrate the path by which he reached the decision to not accept Ms M’s opinion.
It is clear from His Honour’s reasons for judgment that he was acutely aware of the effect on the child of an order which would separate her from frequent association with her father. His Honour was also clearly aware that in the event that the mother was permitted to relocate with the child to America, the father had set his face against travelling to America to see the child. At [175] His Honour traversed at some length the competing proposals of the parties and the respective advantages for each of them and the child and balanced those against the competing disadvantages.
His Honour at [203] said after consideration of the relevant issues;
If [the child] does move to the United States, her contact with the father will be emasculated. This is likely to have some adverse effect on her emotional wellbeing. If she does not, especially if she continues to live in [U/P], the mother is likely to feel isolated and be emotionally undermined by this feeling. That will have an adverse impact on her parenting of [the child]…
His Honour at [207] considered the practicality or as he framed it “the impracticality of (the child) living in the United States and seeing the father and said at [207];
…If she lives in America, the practical solution for contact with the father before she is able to fly on her own would be for the father to visit her there. It is not rendered impractical because the father refuses to accept it.
We find no error in His Honour’s approach and these Grounds of Appeal are not made out.
Ground 12
Ground 12 asserts that His Honour “made findings and gave weight to matters not in evidence before him”.
When this Ground was argued, Senior Counsel for the appellant pointed to His Honour’s finding at [85] in which he criticised the father for not commencing the proceedings under the Hague Convention before November 2006. His Honour accepted that the father had been advised not to commence proceedings until after September 2006 which is when he said the parties had proposed to return to Australia.
It was argued that any delay, if there was delay would not be attributable to the father because the proceedings would not be brought by him. If His Honour was in error in making the assumption that the father delayed in bringing the proceedings, we are not persuaded that it is determinative of the appeal.
This Ground and the appeal therefore fails.
Costs
Each party was invited to address us on the question of costs of the appeal. The father argued that, in the event that the appeal was unsuccessful, a costs order ought not be made against him because it was an appeal materially in relation to the child’s best interests. The mother argued that, ordinarily if the appeal was not successful, the mother should have her costs. Counsel conceded, appropriately in our view, that in this case neither party had any assets or income and, it seemed to us, he did not press an application for costs.
In any event, in this case, having regard to the issues raised we are of the view that it is one in which the general rule enunciated in section 117 of the Family Law Act 1975 (Cth) should be applied and we will not make a costs order in favour of the respondent.
I certify that the preceding one hundred and fifty three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Watts JJ) delivered on 20 December 2010.
Associate:
Date: 20 December 2010
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