Haward & Haward
[2023] FedCFamC1A 99
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Haward & Haward [2023] FedCFamC1A 99
Appeal from: Haward & Haward [2023] FedCFamC1F 47 Appeal number: NAA 47 of 2023 File number: SYC 6259 of 2018 Judgment of: MCCLELLAND DCJ, CAMPTON & Christie JJ Date of judgment: 22 June 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final orders providing for the child to spend time with the father during the day each Sunday and for the parents to equally pay a portion of the costs of the Independent Children’s Lawyer – Where the child has been exposed to significant and serious family violence between the parents and her older brother – Where the child has experienced psychological harm from being exposed to such violence – Where the child has anxiety and has expressed fear at the prospect of spending overnight time with the father – Where none of these factual findings were challenged by the father on appeal – Primary judge’s determination not clearly wrong – Unsuccessful challenges to the weight afforded to the child’s views and the expert evidence – Where the primary judge’s findings as to risk and conclusion that it was not in the child’s best interests to spend overnight time with the father were open on the evidence – Where the father asserts that the primary judge was in error in not applying an assumption that overnight time with a parent is automatically beneficial to a child – Where such assertion is made absent statutory foundation or authority – Where the primary judge did what she was empowered and required to do in considering the child’s best interests – Where the primary judge’s reasons for making the costs order were adequate – Where the father’s belated challenges grounded from s 117(5) of the Family Law Act 1975 (Cth) were misconceived – Appeal dismissed with costs. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 65DAA, 117 Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De Roma & De Roma (2013) 49 Fam LR 226; [2013] FamCA 566
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gahen & Gahen (No 2) [2013] FamCA 936
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Nardini & Legal Aid NSW [2019] FamCA 340
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 80 Date of hearing: 31 May 2023 Place: Sydney Counsel for the Appellant: Mr Hodgson Solicitor for the Appellant: Cameron Legal Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Santone Lawyers The Independent Children’s Lawyer: Did not participate ORDERS
NAA 47 of 2023
SYC 6259 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HAWARD
Appellant
AND: MS HAWARD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ, CAmpton & Christie JJ
DATE OF ORDER:
22 June 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Within 21 days of the date of these orders, the appellant pay the costs of the respondent fixed in the sum of $10,454.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haward & Haward has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, CAMPTON & CHRISTIE JJ:
By a Notice of Appeal filed 9 March 2023, the father appeals from some of the final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 9 February 2023. Those orders regulate the parenting of the younger of his two children with the mother (“the child”). The child has turned 12 years old. Her brother is now an adult who lives with the father (“the older child”).
The final parenting orders provide for the mother to have sole parental responsibility for decisions relating to the child’s education, for the child to live with the mother and spend time with the father as agreed between the parents or, failing agreement, on each Sunday from 10.00 am to 5.00 pm and for daytime periods on special days. Pursuant to the orders, the father can communicate with the child by telephone as agreed or, failing agreement, on each Tuesday and Thursday evening. The parents were each ordered to pay $5,000 to the costs of the Independent Children’s Lawyer (“ICL”).
In the appeal, the father did not challenge the order that the child should live with the mother. Notwithstanding what was contained in his Notice of Appeal, he confirmed during the appeal hearing that he did not challenge the orders as to parental responsibility nor as to the telephone communication between himself and the child. His appeal was directed to the orders regulating the terms of his time to be spent with the child, and the order requiring each of the parents to pay the costs of the ICL.
The mother resists the appeal. The ICL filed a Submitting Notice on 16 March 2023 and did not participate in the appeal.
For the reasons that follow, the appeal will be dismissed.
RELEVANT BACKGROUND
The older child was born in 2002. It was not controversial that the older child has experienced significant mental health challenges and exhibited behavioural difficulties. The primary judge made unchallenged findings that on at least three occasions while in the presence of the mother and the child, the older child had threatened to seriously harm himself (at [66], [68] and [75]–[77]).
During the parents’ relationship, the primary judge found that the father perpetrated family violence against the mother, which included an incident of physical violence on 10 March 2018 involving the father grabbing the mother, chasing her out of the family home and forcibly shoving her phone down her chest (at [49]).
The primary judge also found the father had been physically violent towards the older child, including making findings about an incident where the father punched the older child in the face (at [70]–[72]), a number of incidents in March and August 2016 when the father pinned the older child to the ground (at [74]) and an incident in September 2016 when the father responded to a threat by the older child that he would kill himself by saying “do it” (at [75]).
It was not controversial that the child witnessed many of the incidents of family violence between the father and the mother, and the father and the older child, leading the primary judge to conclude at [92] that she had been directly exposed to family violence.
None of the above findings were the subject of challenge in the appeal.
The parents physically separated in September 2018, upon the mother leaving the family home with the child. The father and the older child remained in the home.
The mother commenced proceedings on 28 September 2018, seeking orders for occupation of the family home and that both of the children live with her. Orders were made to that effect on 31 October 2018. The father then commenced spending time with the child, initially professionally supervised and then supervised by the father’s brother.
In October 2019, the older child commenced living with the father. He was 17 years old at that time. The mental health and behavioural challenges exhibited by the older child continued after this time. As recorded in the reasons, he self-harmed (at [87]), damaged furniture and caused damage to the father’s home while intoxicated (at [88]), and used cannabis frequently (at [89]). The reasons further record the older child being verbally abusive to the father in January 2022, and returning to the father’s home blood-stained and bruised after an altercation in an event venue in September 2022 (at [90]–[91]). Again, these findings were unchallenged on appeal.
On 20 January 2021, an order was made discharging the requirement for the father’s time with the child to be supervised, and providing for him to spend time with the child each Sunday from 10.00 am until 3.00 pm, during which time he was restrained from using the internet. That arrangement continued until the trial before the primary judge in early 2023.
The mental health of each of the parents, the older child and the child was a prominent feature of the proceedings. The treating clinicians of each of the parents and the older child were cross-examined. The child’s treating clinician provided a letter as to her presentation, diagnosis and prognosis, but was not cross-examined. The letter records that the child’s therapy has been focused on her anxiety, including about separating from her mother, and is ongoing occurring each fortnight (at [19]–[21]). It reported that the child’s anxiety is significant, such that she has difficulty getting out of the mother’s car and going into school (at [138]) but that she was making progress. The primary judge considered that she did not wish “to do anything which might jeopardise that progress” (at [139]).
Finally, the primary judge had the benefit of the evidence of the single expert psychiatrist, Dr L (“the single expert”), who prepared a report dated 20 October 2020 and who was cross-examined at trial.
THE PRIMARY JUDGE’S DETERMINATION
The scope of the dispute before the primary judge was how parental responsibility for the child should be allocated and the time that was to be spent by the child with the father.
The mother sought that she have sole parental responsibility for the child and that the child spend time with the father during the day on Sundays (at [3]). The father sought that the parents have equal shared parental responsibility for the child and that the child spend increasing time with him such that, by the commencement of the 2024 school year, she would live in an equal time arrangement between the parents (at [4]). The ICL proposed that the mother have sole parental responsibility, for the child’s time with the father increase to include one overnight a fortnight from the commencement of 2024 and for three night blocks during the school holiday periods.
The primary judge identified the issues in dispute as follows:
17.The mother’s case is that the father had been violent towards her and towards [the older child] and that [the child] does not want to spend overnight time with him. She contends that [the older child’s] violent behaviour in the past, as a consequence of [the older child’s] mental health difficulties, poses a risk to [the child’s] safety and that violence in the home during the marriage has caused [the child] to be anxious, have difficulty sleeping and experience night terrors. She contends that the father’s viewing of material the mother classifies as pornographic, and his [life choices], pose a risk to [the child], both because she might be exposed to his behaviour and the amount of time he spends collecting material and categorising his collection. However, she concedes that the latter is a minor consideration.
18.The father’s case is that there is no risk to [the child] in his home, either from him or from [the older child] and that any risk posed by [the child’s] anxiety about staying overnight with him is outweighed by the benefit to her of extended time. He contends that the mother’s anxieties have negatively influenced [the child’s] anxiety about spending overnight time with him.
Broadly, her Honour considered those issues and concluded, consistent with the evidence of the single expert, that the child has suffered psychological harm arising from the conflict and violence in the family home to which she was exposed and that she is fearful of being exposed to future conflict and violence (at [94]) and hence did not want to spend overnight time with the father. This finding was not challenged on appeal.
THE APPEAL
This is an appeal from a discretionary decision and the principles set out in House v The King (1936) 55 CLR 499 (“House v The King”) at 504–505 apply.
The Notice of Appeal prosecuted 15 grounds. Of those, all but two were challenges either to the weight given by the primary judge to particular evidence or to the factual findings made by the primary judge. It is convenient to observe the following appellate principles which apply to errors of those kind:
(a)Challenges to the weight afforded to evidence face a high bar. A discretionary decision is not wrong merely because an appeal court would have decided the case differently (see Gronow & Gronow (1979) 144 CLR 513 at 537–538). As confirmed by the High Court in Bugmy v The Queen (2013) 249 CLR 571, absent a finding that the result was manifestly wrong, challenges to weight are incapable, in and of themselves, of establishing appellable error. At best, they point to a circumstance that, when accompanied by other circumstances, might reveal the result being manifestly wrong.
(b)Challenges to factual findings are not competent by arguing that other pieces of evidence should have been accorded greater probative weight (Fox v Percy (2003) 214 CLR 118 at 127–129 and 138–147; Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]). Findings are either available on the evidence or they are not (Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307). Where a finding of fact is reasonably open on the evidence in the case, it will not be reversed merely because the appeal court would not have made the same findings.
One ground contended a challenge that the primary judge failed to identify and apply relevant principle (Ground 13). The ground challenging the order as to each party equally paying part of the ICL’s costs was framed as a complaint about inadequate reasons, but morphed during the hearing of the appeal to a contended failure of the primary judge to apply s 117(5) of the Family Law Act 1975 (Cth) (“the Act”) (Ground 15).
The father and mother each grouped the grounds of appeal for the purpose of written and oral submissions. These reasons adopt those groupings, reflecting the manner in which the appeal was conducted.
Ground 1
This ground was based on the fourth limb identified by the High Court in House v The King, and is articulated in the Notice of Appeal as follows:
1.That the Trial Judge was in error in the exercise of her discretion as the result embodied in her orders as to the limited amount of time which the child should spend with the Father in order to maintain a meaningful relationship is plainly unreasonable and manifestly unjust.
(As per the original)
The ground was prosecuted by the father in three limbs, being that:
(a)Time spent as determined for “seven hours on one day each week” by the child with the father was “not sufficient for the child to have a meaningful relationship” with him, identifying s 60CC(2)(a) of the Act (father’s Summary of Argument filed 27 April 2023, paragraph 20); and
(b)The primary judge failed to give adequate consideration (if any) to s 65DAA(2) of the Act; and
(c)In considering the need to protect the child from risk of harm as identified in s 60CC(2)(b) of the Act, the primary judge could have considered making a range of orders providing safeguards to mitigate risk.
Addressing the first limb, the argument that the child spending one day per week with the father would be insufficient to promote a meaningful relationship between them ignores the careful reasoning of the primary judge in which she recorded the historical facts, summarised and considered the expert evidence and cast her mind forward to the possible outcomes for the child in light of those findings.
Although counsel for the father’s submissions in the appeal hearing minimised the terms and impact of the family violence to which the child was exposed, there was no challenge to the primary judge’s findings of fact which formed the landscape against which she was asked to determine what parenting arrangements were in the child’s best interests (as recorded at [20] above). In that context, the primary judge said:
104.Although I am required to give greater weight to the need to protect [the child] from psychological harm, I am also required to consider the benefit to her of having a meaningful relationship with both of her parents.
It was uncontroversial that the father and the child currently enjoy a close relationship. The primary judge found:
106. That relationship has been able to be maintained even though since October 2018 it has been fostered by [the child] spending initially only four hours a week with the father under supervision and since January 2021, for five hours each week unsupervised.
The primary judge weighed and accepted the evidence of the single expert:
128. [The single expert] in cross-examination, said that it would be detrimental to [the child] to spend overnight time with her father if she is expressing concerns and fears about doing that. She also said that it is possible that [the child] will blame her mother if she is forced to spend overnight time with her father and that would negatively affect their relationship. Alternately, she said, [the child] might be resentful of her father and thus their relationship would be affected.
129.[The single expert] said that if [the child] were to spend a night with her father and anything untoward occurred it would be very difficult to ever persuade her to go again.
130. In cross-examination by counsel for the mother, [the single expert] said [the child’s] anxiety will be exacerbated if she is forced to spend overnight time with her father against her wishes. She agreed that, if [the child’s] anxiety was heightened, then increasing the sessions with [the child’s treating clinician], to address [the child’s] anxiety, would be disruptive to [the child’s] schooling and that having to increase therapeutic involvement so that [the child] can cope with something she doesn’t want is “not necessarily a good thing”.
In light of her findings about the competing considerations, the primary judge weighed each against the other in a substantial and considered manner (at [93]–[106]), which lead her to the conclusion expressed at [107] that it was “not necessary for [the child] to spend overnight time with her father to maintain their existing meaningful relationship”. In doing so, the primary judge did exactly what she was empowered and required to do by s 60CC(2) of the Act.
Indeed, it was conceded by the father’s counsel at the appeal hearing that the evidence established that the child spending overnight time with the father would cause her anxiety. What seemed lost on the father at the appeal hearing was that the orders made by the primary judge were not designed to limit the child’s relationship with him but were protective of that relationship.
The second limb of this ground had no foundation. The presumptions contained in s 65DAA of the Act were not engaged in this case, in circumstances where:
(a)The primary judge found at [145] that the presumption of equal shared parental responsibility was rebutted; and
(b)The presumption did not apply in any event, given her Honour’s findings as to family violence.
The third limb was that the primary judge “failed to countenance” six specific “safeguards” to mitigate any risk to the child in spending time with the father, as identified in paragraph 23 of the father’s Summary of Argument filed 27 April 2023.
One such safeguard was a proposal that the older child would not be permitted to be present at the father’s home during the child’s time spent there. That proposal was extensively considered by the primary judge (at [94]–[97]). It was rejected on an assessment of the evidence as not being “reasonable, considered or practicable” (at [97]).
The balance of the five identified safeguards were not proposed in the father’s Minute of Order prosecuted at trial, nor were they the subject of submissions before the primary judge. The father said that the primary judge ought to have identified these safeguards from the father’s cross-examination of the mother.
As the Full Court of the Federal Court of Australia identified in Bahonko v Sterjov (2008) 166 FCR 415:
3.…This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
(Emphasis added)
Counsel for the father could not take us to any reference in the transcript where the specific safeguards proposed on appeal were raised with the mother at trial (in cross-examination or otherwise). He did not draw any nexus between the five safeguards and the conduct of the trial. It would be inappropriate for this Court to examine the minutia of the evidence before the primary judge so as to establish whether the safeguards were indeed raised at trial, what the evidence supporting the safeguards was, and whether the primary judge was in error in refusing to implement the safeguards (if they were indeed raised). An inference is available that those safeguards were not pursued by the father at trial.
Insofar as the five safeguards did not form the father’s case before the primary judge, it is now too late to raise them. He is bound by his conduct of the trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71 (“Metwally”)).
Ground 1 fails.
Grounds 2, 3 and 4
These grounds were addressed together in both the father’s Summary of Argument and oral submissions. They are as follows:
2. That the Trial Judge was in error in the exercise of her discretion in placing undue weight upon the child's wishes as expressed to the Single Expert, over two years ago, that she did not wish to spend any time overnight with the Father.
3. That the Trial Judge was in error on the evidence in failing to contemplate a re-evaluation of whether the child should spend time overnight with the Father after she spends more time with him and becomes more comfortable in his care and gets older, such re-evaluation being consistent with the recommendations of the Single Expert in her Report.
4. That the Trial Judge was in error on the evidence in determining that if the child’s wishes were accepted and respected and she should not spend any time overnight with the Father, there should not be any significant increase in the time which the child should spend with the Father during daytime, if time overnight was to be excluded.
(Notice of Appeal filed 9 March 2023, as per the original)
Each of these grounds concerned the views and wishes of the child, which formed a central part of the primary judge’s reasons. Inexplicably, the first ground in this group (Ground 2) criticised the primary judge for relying too heavily on the report of the single expert, implicitly because it was outdated, while the next ground (Ground 3) was critical of the primary judge for not putting enough weight on that same evidence.
Accepting as a starting point that the single expert’s report as to the child’s views and wishes was produced more than two years prior to the trial, there was no suggestion in the evidence before the primary judge that those views had since shifted such that the report was no longer reliable. The single expert gave updated opinion evidence in cross-examination (at [30] above) as to the foundations for these views and expressed an opinion as to the weight to be attached to them in the circumstances of this particular child. No application was made by either party to obtain updating expert evidence on this subject matter, although it was open for each of them to make such an application. This forensic decision is unsurprising, given that neither parent seriously suggested in their own evidence that there had been a substantial change to the child’s expressed views. The trial proceeded on the basis that the evidence of the single expert remained relevant and attracted weight.
We were taken in oral submissions to the transcript of the evidence of the single expert said to be supportive of this ground. The difficulty with the father’s submissions at the appeal hearing was that they referred selectively to the transcript, failing to acknowledge that the single expert had anticipated in her report that the child’s views may change over time but accepted that if they had not, “substantial weight” should nonetheless be attached to them (see Transcript 3 February 2023, p.259 line 18 to p.260 line 2).
Insofar as the complaint is made that the primary judge should not have relied on the report of the single expert because it was outdated, it is rejected.
If the complaint was that the primary judge placed undue weight on the child’s views it is also rejected. The primary judge’s consideration of the child’s views accorded with the weight of the expert evidence and the principles set out by the High Court in Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[35].
Ground 2 fails.
As for Ground 3, the father accepted that the primary judge was not asked to make interim orders. The task before the primary judge was to finally determine the parenting proceedings. The father did not seek orders, as he suggested at the appeal hearing, for his time with the child to increase on satisfaction of certain conditions.
Ground 3 fails.
Ground 4 asserts error in the primary judge failing to make orders in line with a proposal neither of the parents raised at trial. For reasons similar to those identified in Grounds 1 and 3, that is not an error (see Metwally). During the appeal hearing, the father agreed that the primary judge was not obliged to step into his mind and speculate as to the appropriateness of orders that he may consider seeking in the future.
Ground 4 fails.
Grounds 5 and 6
These grounds were directed to the orders made (or rather, not made) for time to be spent by the child with the father during school holidays, as follows:
5. That the Trial Judge was in error in the exercise of her discretion by failing to provide for the child to spend any school holiday time whatsoever with the Father for consecutive days however not overnight, during such school holiday periods.
6. That the Trial Judge was in error on the evidence in her consideration of the child spending time with the Father during school holiday periods that she was confident the Mother would facilitate additional time and even overnight time if the child so desired, given the lack of cooperation and communication which existed between the parties and their acrimonious relationship and her expression that she had no confidence that the parties would not even be able to agree upon the child's future schooling.
(Notice of Appeal filed 9 March 2023, as per the original)
Contrary to the assertion made by Ground 6, the primary judge’s conclusion at [144] that she was “confident that the mother will facilitate additional time if [the child] wants it” was plainly available on the evidence. It was not open to challenge by asserting the primary judge should have placed greater weight on the evidence as to the parents’ conflictual relationship than the mother’s accepted evidence that she would facilitate the child spending overnights with the father if the child wanted to do so (Transcript 31 January 2023, p.71 lines 15–22).
So too was the primary judge’s conclusion at [144] that she was not prepared to impose on the child “more time with her father than she can tolerate” open and supported by the evidence. As we have already observed, the primary judge was mindful of the impact of forcing this particular child to spend time with the father inconsistent with her wishes, and was alive to the possibility (consistent with the expert evidence) that doing so might risk damage to their relationship (at [128]).
Ground 5 contends error in the failure of the primary judge to make an order for the child to spend consecutive days (but not overnights) with the father during school holidays. This was the proposal of the ICL at trial, but not of the father. The father did not adopt the ICL’s position as an alternate proposal at trial. Having regard to the findings of fact unsuccessfully challenged by way of Ground 6, the primary judge’s conclusion could not be established as being plainly wrong in the manner identified in House v The King.
It is not to the point that another judge may have acceded to the ICL’s proposal for the child to spend additional time with the father during school holidays. That possibility does not establish error on the part of the primary judge. As we have observed, given the child’s level of maturity and understanding, the primary judge was, on the facts of this case, required to give due weight to the child’s strongly expressed views (s 60CC(3)(a) of the Act). This was particularly so in circumstances where the child’s views had been formed as a result of her lived experience of being exposed to acts of family violence. Having considered those views, together with the additional s 60CC considerations that she considered to be relevant to her determination, the primary judge made orders that were well within the appropriate exercise of her discretion. The primary judge explicitly acted cautiously and was not in error in so doing.
These grounds are without merit, and fail.
Grounds 7 and 14
These grounds, which each relate to the child’s relationship with her older brother (invoking s 60CC(3)(b)(ii) of the Act), are as follows:
7. The Trial Judge was in error in determining that she did not want to impose on [the child] more time with the Father than she can tolerate in circumstances where there was no evidence as to the time the child could or could not tolerate with the Father and the uncontroverted evidence of the Father was that the child really enjoyed the limited time she spent with him and with [the older child].
…
14.The Trial Judge was in error in failing to make orders significantly increasing the time which the child spent with the Father in circumstances where she acknowledged the close sibling relationship which the child shared with [the older child] and the evidence was that [the older child] would spend little if any time with the Mother and as such, he would in all likelihood only be prepared to spend time with the child when she was in the Father’s care.
(Notice of Appeal filed 9 March 2023, as per the original)
To the extent that Ground 7 is a challenge to the primary judge’s finding that caution ought to be taken in imposing on the child ‘more time with the father than she could tolerate’, it is rejected for the reasons already articulated. The submission that there was no evidence as to what time could be tolerated by the child ignored the findings of the primary judge, largely grounded from the expert evidence, at [36], [39], [94], and [124]–[130].
Insofar as both Grounds 7 and 14 were, in reality, complaints that the primary judge placed insufficient weight on the child’s enjoyment of her time with the father and the older child, it is rejected. Seen in this light, the complaint made by the father becomes a complaint that the considerations contended for by him were not given decisive weight. Such a complaint is no more than a submission that the primary judge erred by not accepting the father’s case and an invitation to substitute our view for his. That is not enough to demonstrate error. Different judges can quite properly achieve different outcomes on the same evidence (CDJ v VAJ (1998) 197 CLR 172 at 218–219).
These grounds fail.
Grounds 8, 9 and 10
These grounds are:
8. That the Trial Judge was in error on the evidence in notwithstanding the evidence of the Single Expert that both children of the marriage were at a significantly reduced risk of physical or psychological harm in the care of either parent compared to the risk they were exposed to during the marriage, she determined that if the child stayed overnight in the Father's home, there was a real risk that there would be altercations between [the older child] and the Father which would adversely impact upon the child's psychological welfare.
9. That the Trial Judge was in error in failing to accept the uncontroverted evidence of the Father that there were no longer any physical altercations between [the older child] and himself and in accepting as valid, the Mother's concern that there is a real risk that such altercations between [the older child] and the Father of a kind that had occurred before would occur in the future.
10. That the Trial Judge was in error upon the evidence in that whilst accepting the evidence of [the older child’s] treating doctors that at the present time his mental health had improved, that none of the doctors suggested that his mental health might not decline in the future, in circumstances where these doctors had not been cross examined and it was open to the Trial Judge to equally conclude or speculate that [the older child’s] mental health would continue to improve.
(Notice of Appeal filed 9 March 2023, as per the original)
Each of these grounds were directed to the primary judge’s finding that:
101. I accept as valid the mother’s concern that, in the future, if [the child] is staying overnight in the father's home, there is a real risk that there will be altercations between [the child] and the father of the kind which have occurred before and that the father's reaction to [the child’s] behaviour will be violent as it has been before.
The grounds must be rejected having regard to the following:
(a)The primary judge’s finding at [101] was merely one part of her reasoning as to why she concluded it was not in the child’s best interests to spend overnight time with the father. It was not itself decisive. The child’s views and vulnerabilities were equally matters weighed by the primary judge in reaching that conclusion.
(b)The finding at [101] was reasonably open to the primary judge. The primary judge had regard to the absence of any suggestion that the older child’s mental health will not decline in future and evidence that the older child had previously not accepted his conduct as being violent. Regard was similarly had to the father’s continued denial of past violent conduct and the vacuum of evidence that the father has addressed his own violent behaviours (at [99]–[100]).
(c)It is the task of the trial judge to evaluate, weigh and determine the parties’ various contentions. It is not an error to favour one party’s case over another, unless an error of the kind identified in House v The King is established. It has not been. No mildly persuasive, let alone compelling, submission was made by the father to support these grounds.
(d)Finally, as was repeated on a number of occasions during the course of the appeal hearing, there was a misconception in the father’s submissions that the risk identified by the primary judge was of future physical altercations occurring between the father and the older child, and that it was violence of this particular kind to which the child feared she would be exposed. This was not the finding made by the primary judge. The submissions of the father reflected a simplistic view of family violence as being physical violence, when s 4AB of the Act makes plain that the definition is more broad.
Grounds 8, 9 and 10 fail.
Ground 11
This ground is nothing more than a reagitation of the proposal, rejected by the primary judge, for the older child to be excluded from the house while the child spent time with the father. We have addressed it in our consideration of Ground 1 above.
Ground 11 fails.
Grounds 12 and 13
These grounds raised a challenge to the primary judge’s consideration of the relationship between the child and the father, as follows:
12. That the Trial Judge was in error in whilst accepting that the Father and the child had a close, loving, and meaningful relationship, notwithstanding the limited time which they had spent together since October 2018, that it was not necessary for the child to spend overnight time with the Father to maintain their existing meaningful relationship and by inference it was not necessary for the child to spend any significantly increased time with the Father.
13. That the Trial Judge was in error in law in determining that there can be no assumption that overnight time with a parent is automatically beneficial and there must be evidence that there is some benefit to be gained by overnight time.
(Notice of Appeal filed 9 March 2023, as per the original)
The essence of these grounds was that the primary judge was in error in not applying an assumption (either grounded in law or in fact) that it is beneficial for a child to spend overnight time with a parent. The father’s Summary of Argument filed 27 April 2023 recorded:
62.…It is submitted that it is self-evident that overnight time is usually beneficial to the welfare of a child and the enjoyment of the child’s meaningful relationship with a parent.
During the course of the appeal, counsel for the father could not identify any legislative foundation or relevant principle by established authority to support this bare assertion. It is not grounded in Pt VII of the Act. It is not grounded from the expert evidence in this case. At best it might be understood as a common sense maxim that ordinarily overnight time might be thought to aid a child’s meaningful relationship with a parent. Such maxims have no role to play. The primary judge was tasked with applying the law to the circumstances of this particular child and these particular parents and she did so appropriately. Reckless contentions such as these ought not be made. It is rejected.
Grounds 12 and 13, as constructed and advocated, are not competent grounds of appeal. They each fail.
Ground 15
This ground was articulated as follows:
15. That the Trial Judge was in error in making an order that the parties should both contribute to the costs of the Independent Children’s Lawyer in circumstances where there was no consideration by her of any of the relevant factors in Section 117(2A) of the Act.
(Notice of Appeal filed 9 March 2023, as per the original)
Section 117(2) of the Act affords the Court a power to award costs upon a finding that there are circumstances that justify it so doing. Section 117(2A) contains a non-exclusive list of factors to justify the making of a costs order. It is well established that s 117(2A) does not require more than one factor to be identified.
The primary judge recorded that the costs sought by the ICL were $16,030.25 (at [157]). Contrary to the complaint agitated by this ground that the primary judge failed to consider any of the relevant factors in s 117(2A), consideration was given to:
(a)The financial circumstances of each parent insofar as they had each spent in excess of $250,000 on their own legal fees; and
(b)Implicitly, the valuable role discharged by the ICL in representing the child’s interests in the litigation (see Nardini & Legal Aid NSW [2019] FamCA 340 (“Nardini”) at [22]–[23]).
That the primary judge’s reasons for making the order she did were brief does not indicate an erroneous exercise of discretion. As the High Court in Penfold v Penfold (1980) 144 CLR 311 at 315–316 made clear:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised. Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
(Citations omitted)
There was a disingenuous aspect of the father’s submissions on this issue in that his submission to the primary judge as to what costs order in favour of the ICL should be made, if any, was that “justice and equity would require… an order that [the parents] share the costs rather than one party solely meeting the costs” (Transcript 3 February 2023, pg.323 lines 34–36). The primary judge adopted this submission.
To the extent that the ground was a complaint as to the adequacy of the primary judge’s reasons, it is rejected. The primary purpose of giving reasons is to ensure parties understand why a decision was made (Bennett and Bennett (1991) FLC 92-191). The parents could have been left in no doubt, having been present when submissions were made as to costs at trial and having regard to the primary judge’s reasons at [157] and [158], why the costs order was made.
The father, in oral submissions, advanced the proposition that s 117(5) of the Act should be interpreted such that there is no imperative that the public purse should be protected. The reverse is true, as the authorities establish that legal aid bodies are to be treated as unfunded (see Nardini; Gahen & Gahen (No 2) [2013] FamCA 936; De Roma & De Roma (2013) 49 Fam LR 226).
CONCLUSION AND COSTS
No ground identified appellable error by the primary judge. To the extent that the grounds were reliant on an assertion that the judgment was manifestly wrong, such has not been established. The determination reached by the primary judge was open on the circumstances of the case. The appeal will be dismissed.
The ICL by way of the Submitting Notice filed 16 March 2023, indicated that they did not want to be heard on the issue of costs. The father conceded that if the appeal failed, a costs order should be made against him in the sum sought by the mother. We shall so order.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Campton & Christie. Associate:
Dated: 22 June 2023
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