HARRISON & HARRISON
[2019] FamCAFC 261
•20 December 2019
FAMILY COURT OF AUSTRALIA
| HARRISON & HARRISON | [2019] FamCAFC 261 |
| FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders providing for the mother to have sole parental responsibility and that the children live with her – Where the grounds of appeal do not expose appealable error – Where the father’s Summary or Argument repeats the grounds of appeal and fails to make any proper challenge to the primary judge’s orders – Appeal dismissed – Appellant father ordered to pay respondent mother’s costs. |
| Family Law Act 1975 (Cth) s 94(2A) |
| Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 |
| APPELLANT: | Mr Harrison |
| RESPONDENT: | Ms Harrison |
| FILE NUMBER: | MLC | 10386 | of | 2012 |
| APPEAL NUMBER: | SOA | 27 | of | 2019 |
| DATE DELIVERED: | 20 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Watts & Austin JJ |
| HEARING DATE: | 26 November 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 April 2019 |
| LOWER COURT MNC: | [2019] FamCA 263 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | Ella Thompson Legal |
Orders
Appeal SOA 27 of 2019 against the orders made on 18 April 2019 is dismissed.
Within twenty-eight (28) days of the date of this order, the appellant father to pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of $5,213. 00.
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 Harrison & Harrison 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 27 of 2019
File Number: MLC 10386 of 2012
| Mr Harrison |
Appellant
And
| Ms Harrison |
Respondent
REASONS FOR JUDGMENT
On 18 April 2019 a judge of the Family Court of Australia made final parenting orders in proceedings between Mr Harrison (“the father”) and Ms Harrison (“the mother”) in relation to the children of the parties’ marriage, Q, born in 2003, Y, born in 2010 and V, born in 2013 (“the children”).
His Honour’s orders provided for the mother to have sole parental responsibility for the children, that they live with her and that the two younger children spend time with the father at specified times. The orders provided that the father may send gifts cards and letters to the two younger children. No orders were made in relation to the oldest child. It was common ground that the oldest child had not spent regular time with the father since 2014 although the primary judge recorded that she had in recent times begun spending “sporadic” time with the father and the paternal family (at [45]).
The father appeals his Honour’s orders.
It is plain from the primary judge’s reasons that the dispute between the parties is trenchant, bitter and had been ongoing since at least 2012.
The issue for resolution by his Honour was whether one or the other parent posed an unacceptable risk of harm to the children in his or her care. The father asserted that the mother had physically harmed the children and subjected them to emotional abuse. The mother alleged that the father engaged in emotional and psychological abuse of the children.
His Honour noted:
27. Each, in large part, based the allegation of risk on comments made by [Y] and [V] about their Mother, alleging that the Mother had caused them harm. These comments have been made, primarily, to the Father, who has recorded a number of them and produced them to the Court. Comments have also been made to the Department of Health and Human Services Victoria (“DHHS”). The comments involve a range of complaints about the Mother, primarily relating to the Mother physically hurting the children, manipulating the children so that they refrain from complaining about her, and the Mother saying derogatory things about the Father’s family.
After a painstaking examination of the evidence including consideration of numerous conversations between the children and the father, which were recorded by him, the primary judge concluded that the mother posed no risk to the children of physical or emotional harm but found that the father’s conduct in embroiling the children in the dispute with the mother and exposing the children to the conflict between them as harmful. His Honour also found that the father’s actions have the potential to damage the younger children’s relationship with their mother and said, “[as] identified by the Family Report Writer, the Father’s conduct has the potential to provoke confusion, anxiety, anger, hatred and misunderstanding in Y, and poor emotional development” (at [340]).
Final parenting orders as between the parties were made in the Federal Circuit Court of Australia on 4 June 2015. Those orders provided for the children to live with the mother and spend time with the father. At the time of the hearing before the primary judge, the younger two children were spending time with the father in accordance with those orders.
It appears from the primary judge’s reasons that from about 25 June 2015 the father commenced expressing concern about the children’s welfare in the mother’s care (at [46]). Of principal significance in the father’s case were the reports to him by the child Y of the abuse meted out to him by the mother. The child V also complained about the mother’s treatment of her although her claimed abuse was not as severe as that complained of by Y.
The complaints which formed the cornerstone of the father’s case that the mother posed an unacceptable risk to the children were analysed in detail by the primary judge who assessed the complaints and where available, assessed them against objective evidence concerning the incident.
His Honour further took into account the reports of interviews of Y by the Department of Health and Human Services Victoria (“DHHS”) and of other third parties to whom the father took Y, concerned about the child’s account of being physically and emotionally abused by the mother. Apparently, the father arranged for Y to have a number of visits with a psychologist but no evidence was adduced from her.
In May 2017 the DHHS conducted a visit to the mother’s home and interviewed Q and then Y about his allegations of physical abuse. His Honour said of this visit:
231. The worker asked why [Y] had told her lies and he explained that his Father had told him to. She asked him what else had lied about and he told her that he lied about being locked outside and about being hit. The worker asked him whether he was hit and he responded no. The worker asked him what happened if he did not do his homework. He responded that he would get a smack on the leg, and demonstrated a light smack on the leg. At this point [Y] was quite upset and the worker invited the Mother and [Q] to come back down so they could resolve [Y’s] upset.
232. [Y] also told the worker that he had stayed with his Father for a long time at Easter because he had said that the Mother had hit him, and that he had said this because the Father had told him to.
His Honour had the benefit of a report by a Family Consultant (“the Family Report Writer”) and noted with apparent acceptance her opinion that Y was not managing the conflict between his parents which she said resulted in the child “telling both parents what it is that he thinks they need to hear” (at [252]).
Significant to his Honour’s conclusion, the Family Report Writer found the complaints against the mother to be unsubstantiated. His Honour quoted her recommendation:
261. Dependent upon findings as to risk posed by the Father the Family Report Writer recommended the following options:
a)If the Court finds that the Father is coaching the children and fixated on incriminating the Mother, this raises significant concerns regarding his motivation, behaviour and capacity to provide primary care to the children. If the Court finds that the Father poses an unacceptable risk to the children and there is consideration for the time spent to be supervised, the potential for ongoing litigation remains high as supervised time would have to be reviewed. If the risk to the children is deemed unacceptable, the Family Report Writer recommended that the children spend time with their Father between four to six times a year with cards, letters and gifts permitted. Such an approach would not provide meaningful relationship for the children with the Father.
b)Should the Court find that there is no ongoing unacceptable risk, [Y] and [V] should spend time with their Father each alternate weekend, initially during the day only for a period of not less than two months before proceeding to alternate weekends and one night during the other week as per the Orders made on 4 June 2015.
(Footnotes omitted)
The Family Report Writer further suggested that both of the younger children had a warm and genuine engagement with the father and, as Y approaches puberty he may wish to see more of his father (at [265]). The Family Report Writer was alive however to Y’s views. He said that he wished to live with his father and made negative reports about the mother. The Family Report Writer also formed the view that his complaint about his mother appeared “scripted” (at [268]).
Ultimately the Family Report Writer thought that all three children should live together with the mother.
His Honour turning then to the resolution of the issue of unacceptable risk concluded:
334. These matters cumulatively lead to two conclusions, each of which is important in determining whether either parent poses a risk to [Y].
335. The first is that the evidence does not show that the Mother has engaged in the behaviour said to establish her to be an ongoing risk to the children.
336. The second is that the evidence shows that [Y] has lied about his Mother engaging in the conduct said to show the risk. The two positively established examples seen in [Y’s] interaction with DHHS in May 2017 and with the Family Report Writer colour the other complaints made by [Y] about the Mother such that it should be concluded that [Y] has not been truthful on the other occasions where he has claimed that he has been the subject of abuse by the Mother.
337. The fact of [Y] lying about his Mother engaging in such conduct is not only significant in terms of considering whether she constitutes an unacceptable risk, but also significant as to the implications that it carries about the Father’s parenting, whether he is engaging in emotional abuse, and as to whether he presents a risk.
338. The Father has vigorously pursued his claims that the Mother is harming the children in this Court and in the Magistrate’s Court. He has taken [Y] to the police on multiple occasions, such behaviour being curtailed by the [Independent Children’s Lawyer’s] refusal of permission for him to do so (such permission being required by interim orders). The Father’s claims have been pursued in the context of false claims being made by [Y], false claims made generally in the context of [Y] being with or recently coming from the Father. The false claims made by [Y] were reflective of the Father’s criticism of the Mother and, on a number of occasions can be seen to have followed prompting by the Father.
339. The results of the Father’s influence upon [Y] are significant. One example is the competing DHHS interviews undertaken in September and October 2016. In September, having come from the Mother’s care prior to the interview, he said that he felt safe with his Mother, at times unsafe with the Father but that his Father had wanted him to tell the school principal that the Mother was rude. In contrast, when he came from the Father into the DHHS interview he said he had been hit by the Mother, locked outside, and that he wished that his Mother was dead.
340. Whether or not the Father intends to harm [Y] (it may be assumed that he does not) his conduct toward [Y] and [V], and in particular [Y], is harmful. He not only exposes them to, but also involves them in his conflict with the Mother. He damages [Y] and [V’s] relationships with the Mother in a manner likely to result in long term harm unless it is brought to an end. As identified by the Family Report Writer, the Father’s conduct has the potential to provoke confusion, anxiety, anger, hatred and misunderstanding in [Y], and poor emotional development. [Y] is carrying an “enormous emotional challenge.”
341. Whatever his motivation, the Father has been emotionally abusive to [Y] and [V], and presents an ongoing risk of harm to them.
Thus his Honour made the orders now the subject of the father’s appeal.
The appeal
The father appeared for himself and his Amended Notice of Appeal filed
2 October 2019 contains one hundred and six apparent grounds, some of which are supported by lengthy particulars. The Summary of Argument filed 9 October 2019 in support of the appeal, in effect, covered much the same points as the Amended Notice of Appeal albeit in a more truncated form.
Many of the grounds amount to a parsing of his Honour’s reasons, paragraph by paragraph and with an accompanying assertion of error.
For example, Ground 8 contends:
At paragraph 46 of the judgment, his Honour erred in fact because the Father did not say that the incident occurred on 25 June 2015 but in fact on 23 June 2015 as deposed at paragraph 9 of the Father’s affidavit filed 18th July 2018.
(As per the original)
In a similar vein Ground 10 contends:
At paragraph 55 of the judgment, his Honour erred in fact because the father did not say that the incident occurred on 25 October 2015 but in fact on 23 October 2015 as deposed at paragraph 12 of the father's affidavit filed 18 July 2018. Furthermore, his honour failed to take into account the fact that the mother demonstrated to be an untrustworthy witness and failed to give weight to the fact that the mother gave oral evidence that she was "emotional" during this time due to the Sherriff attending her property to seize her car. As a result, his Honour erred by failing to find on the balance of probability that the Mother's untrustworthiness as a witness combined with her emotional state of mind at the time, may have led to her hitting and locking [V] in the toilet because she was crying.
(As per the original)
Equally, Ground 40 asserts:
At paragraph 146 of the judgment, his Honour erred in fact because he did not consider the Father’s oral evidence that [Y] meant that he was not hit with the wooden spoon or locked outside since his last appointment.
(As per the original)
Other grounds contend the primary judge erred in making findings for which the father did not contend. For example:
5. His Honour made an error in law by failing to properly apply s60B & s60CC of the Family Law Act 1975, resulting in the best interests of the children not been met and a miscarriage of justice due to the following reasons which would be explained in detail later;
a)His Honour erred in findings of facts and failed to consider and/or give appropriate weight to some facts
b)His Honour erred by failing to find that the Mother has committed family violence and abuse, and that the children are at risk of family violence and abuse in the Mother's care as evidenced by the facts in the case such as the fact that she confessed in her oral evidence to making derogatory comments about the children's paternal grandmother ([Ms K Harrison]) to them.
c)His Honour erred by failing to find on the balance of probability, that the Mother has committed family violence and abuse, and that the children are at risk of family violence and abuse in the Mother's care on the grounds that her evidence could not be trusted because she has demonstrated to be a witness with no credibility due to the appalling nature of her inconsistent evidence.
d)His Honour erred in his discretion to arrive at a clearly wrong decision that the children should live with the Mother despite her committing family violence and the risk of family violence in her care as evidenced by the facts in the case.
(As per the original)
Equally, Ground 7 contends:
At paragraph 45 of the judgment, his Honour erred because of his failure to consider important facts of the Father's evidence in relation to the time [Q] spent with him as deposed at paragraphs 57 &
the last sentence of59 in his affidavit filed 18th July 2018 and at paragraphs 8 & 23(b,c & d) of his affidavit filed 4th November 2018. The Father's evidence should have been preferred given the fact that the Mother has demonstrated to be a witness with no credibility.(As per the original)
The Summary of Argument does not illuminate the challenges being advanced but rather repeats the grounds of appeal.
The grounds of appeal and the written submissions do not expose appealable error, rather they provide a vehicle by which the father continues to assert the correctness of his position and his beliefs which were not accepted by the primary judge but which became a prism through which the primary judge’s reasons are attacked in the appeal.
In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court of the Federal Court of Australia said:
3. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable (sic) error.
(Citations omitted)
We do not propose to rummage around in the appeal documents filed by the father in the hope of distilling some semblance of a genuine challenge to his Honour’s orders.
Thus, as nothing in either the written or oral submissions support appealable error or any proper basis for challenging his Honour’s orders and the grounds of appeal do not appear to raise any question of general principle, we propose to dismiss the appeal with these short form reasons, as s 94(2A) of the Family Law Act 1975 (Cth) allows.
Costs
The mother was in receipt of a grant of legal aid and sought, if the appeal was unsuccessful a costs order in the amount of $5,213. The appeal has been wholly unsuccessful and it is appropriate that the father should pay the mother’s costs of the appeal which we propose to fix in the sum claimed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Watts & Austin JJ) delivered on 20 December 2019.
Associate:
Date: 20 December 2019
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