Hood & Weaver (No 2)
[2022] FedCFamC1A 205
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Hood & Weaver (No 2) [2022] FedCFamC1A 205
Appeal from: Hood & Weaver (No 2) [2022] FedCFamC2F 728 Appeal number(s): NAA 146 of 2022 File number(s): NCC 1156 of 2020 Judgment of: ALDRIDGE J Date of judgment: 8 December 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where there had been a change in circumstances since the final orders were made – Interim orders – Where the primary judge dismissed the application made by the mother insofar as it related to the two younger children, but granted it as to the eldest child – Where the mother’s appeal is against the primary judge’s refusal to make orders insofar as they relate to the two younger children – Findings open on the evidence – No error established – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.08
Cases cited: Bayer & Wynne [2021] FamCAFC 131
Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lindfield & Romano [2022] FedCFamC1A 81
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
Number of paragraphs: 62 Date of hearing: 4 November 2022 Place: Newcastle Counsel for the Appellant: Ms Goodchild Solicitor for the Appellant: Meares Law The Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Petrie Solicitor for the Independent Children’s Lawyer: Coast Law ORDERS
NAA 146 of 2022
NCC 1156 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HOOD
Appellant
AND: MR WEAVER
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
8 DECEMBER 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hood & Weaver (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction
This is an appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) in proceedings between Ms Hood (“the mother”) and Mr Weaver (“the father”). The parties have two children – Y born in 2015 and Z born in 2018. There is a third child subject to the orders, X, born in 2011, who is the mother’s son with her former partner, Mr B. Mr B has never been involved in X’s life and was not a party to the proceedings.
Prior to 10 February 2022, X lived with the mother, while Y and Z lived with the father. On that date, after a contested hearing, final orders were made that all three children live with the father who was to have sole parental responsibility for them.
On the day the orders were made, that is 10 February 2022, apparently after being informed of the orders by the mother, X rang NSW Police and alleged that the father had been hurting him a lot over the past three weekends, pulling his hair and slapping his face. The mother took X to the police station that day.
On 15 February 2022, a Provisional Apprehended Domestic Violence Order was issued which provided that the father was to have no contact with X and was not to approach him, his school or come within 100 metres of the mother’s home. The father was charged with common assault occurring between 16 January 2022 and 23 January 2022.
The father entered a plea of not guilty and the matter was fixed for final hearing on 16 September 2022. It was not in dispute that on that date the charges were dismissed.
On 10 March 2022, the mother filed a Notice of Appeal against the 10 February 2022 orders. The appeal was dismissed.
As the mother had retained all three children, the father then filed an Initiating Application on 21 February 2022 seeking the return of the children. In her Response filed 11 April 2022, the mother sought a reconsideration of the 10 February 2022 orders.
The matter was fixed for hearing on 21 April 2022 on the following issues:
4. …
(a)On a preliminary basis, whether the mother’s application to commence parenting proceedings (insofar as they relate to Y and Z) should be dismissed in reliance of the principle espoused in the decision of Rice and Asplund; and
(b)Subject to a determination of the preliminary issue, what parenting orders should be made in relation to the children in circumstances where the parties agreed that the mother’s application (insofar as X was concerned) must proceed because there had been a significant change in circumstances.
(Footnote omitted)
On 8 June 2022, the primary judge dismissed the application made by the mother insofar as it related to Y and Z, but granted it as to X. An interim order was made that X live with the mother who was to have sole parental responsibility for him. The father was to have no contact with him.
Thus, following those orders, the children are now living with the same parties that they had been living with prior to the 10 February 2022 orders.
The mother has now appealed against the orders insofar as they relate to Y and Z.
The appeal was opposed by the Independent Children’s Lawyer.
The father did not comply with the orders of the appeal judicial registrar to file a Summary of Argument. He appeared at the hearing of the appeal, indicated that he opposed it, and then simply adopted the position of the Independent Children’s Lawyer.
The primary judge’s reasons
In order to understand the appeal, it is useful to look briefly at her Honour’s reasons.
After setting out the parties’ positions and a chronology, the primary judge summarised her findings made in the 10 February 2022 judgment as follows:
31. Within the final judgment I made the following findings/observations –
(a)The mother did not seek a restraint or any orders about protecting the children form family violence but the father and the ICL did, and given my findings, an order would be made restraining the parties from exposing the children to family violence (see paragraphs 103 to 106);
(b)There was an allegation that the father had punched Y, which was denied by the father (see paragraph 108);
(c)X made disclosures of having been smacked by both his parents and that the father also smacked Y and Z. The mother accepted this had occurred whereas the father did not. I found that both parties had engaged in physical discipline but that the children had not been abused or were at risk of being abused in a manner that would not otherwise fall within the category of physical discipline. Consequently, an injunction was ordered to protect the children from physical discipline (see paragraphs 109 to 119);
(d)During the trial, the make-up of the persons in the father’s household, the father’s working hours and the relationships the children have with some members of the household were explored and found expression within the final judgment (see for example, paragraphs 132, 145 – 147, 149 – 150, 169 – 170 & 211);
(e)The evidence of family violence and the disputation between the parties and those issues were explored with findings made (see for example, paragraphs 96 – 105 and 173 (b));
(f)In the context of a challenge to the child expert making findings or opining on mental health conditions or diagnoses, I found inadmissible any evidence opining on the mother’s observed behaviours or reported actions (see paragraphs 12 – 13). Consequently, the mother’s mental health was not a feature of the trial and other than as set out above, no findings were made in that regard;
(g)The mother made various allegations about the father’s care of Y and Z including concerns about their behaviours regressing, Z being at risk of inappropriate sexual behaviour and Y’s sore and red penis. The allegations were explored and findings made (see for example paragraphs 119 – 124);
(h)The veracity of Mr EE’s evidence was explored at trial and discounted, particularly because he did not appear as a witness for either party (see paragraph 99 (j)).
Her Honour then set out the mother’s evidence in some detail.
The primary judge referred to the relevant principles as to the reconsideration of parenting orders as discussed in Rice & Asplund (1979) FLC 90-725; Marsden & Winch (2009) 42 Fam LR 1; SPS and PLS (2008) FLC 93-363 and Carriel & Lendrum (2015) FLC 93-640 (“Carriel”) in a manner that was not the subject of criticism and does not call for comment.
Thus her Honour proceeded on the basis that the question was whether there had been such a change in circumstances as would warrant reconsideration of the existing orders, taking the mother’s evidence at its highest.
At [84], the primary judge explained why she did not consider that there had been a significant change to the circumstances of Y and Z. The potential detriment to the children and the likelihood of variation to the orders was dealt with at [87].
This led her Honour to conclude that:
88.The twin principles transcribed earlier mandate that the Court conduct these proceedings in a way that addresses the children’s needs and promotes cooperative and focused parenting. In my view, the dismissal of the mother’s parenting application insofar as it relates to Y and Z will satisfy both those principles because their lived experience will be unchanged.
The Appeal
This is an appeal from the exercise of a discretion and the following statement of principle from House v The King (1936) 55 CLR 499 at 504–505 applies:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Error is not shown by demonstrating that another outcome is possible or that a different judge would have come to a different conclusion.
Ground 7 was not pressed at the hearing.
Did the primary judge err by failing to find a significant and substantial change in the circumstances of Y and Z and did the primary judge err in prejudging the outcome of the criminal proceedings? (Grounds 1 and 2)
Counsel for the mother dealt with these two grounds together and it is convenient to follow the same course.
By way of preface, at the time of the hearing before the primary judge and the filing of the Notice of Appeal, the outcome of the assault charges against the father was not yet known. The dismissal of the proceedings was not referred to in the mother’s Summary of Argument filed on 11 October 2022.
It is agreed that the charges were dismissed.
The mother submits that this does not matter because the Court hearing the parenting case, if that occurs, could find that the assaults occurred having regard to the balance of probabilities (as opposed to beyond reasonable doubt) and that, in any event, the allegations of X and the other evidence before the Court was capable of satisfying a judge that the father posed an unacceptable risk of harm to the children such that they should be removed from his care. Thus, it was said, the allegations made by X were of such a nature and such a seriousness as to give rise to a real impact on Y and Z.
Therefore the mother submitted that the primary judge erred in finding that “there [was] not a likelihood that the final orders will be varied in a significant way” by disregarding or not giving significant weight to the very serious criminal charge (at [82]).
At [84(b)] and [84(e)], her Honour said:
84.Accepting the mother’s evidence at its highest, I am not satisfied there have been significant changes to the circumstances of Y and Z because:-
…
(b)The mother’s concerns about the father being physically abusive towards the children, using excessive discipline upon the children, the father’s supervision of the children, the make-up of the father’s household, the children’s exposure to family violence, the parental conflict between the parties (including taking various children to the police to make statements against the other party) and the cause of the adverse behaviours/physical signs the mother saw in the children (arising from neglect, poor hygiene, sexual abuse, inappropriate sexual behaviour and/or exposure to any of these factors) were all considered at trial.
…
(e)The parental conflict (and their attitude towards it) has continued unabated with allegations that each party has made (to use the mother’s language) vexatious complaints to the authorities either with or without the children being interviewed by third parties.
…
(Footnotes omitted) (Emphasis in original)
It must be recalled that X’s allegations referred mainly to assaults on him. He added that the “father had called Y a ‘smart ass’ and had pushed Y to the ground and held his (Y’s) hands behind his back ‘like a police man’” (at [35]).
Y and Z have lived primarily with the father since April 2020. In the 10 February 2022 reasons, the father was found not to have posed a risk of harm to either child (at [84(a)] and [84(b)]). Y and Z have made no relevant allegations since they were taken into the care of the mother.
It is plain enough that the primary judge looked into X’s allegations, which largely did not involve the other two children.
As to weight, her Honour took into account many factors that were relevant to the likelihood of the final orders being varied, some of which have already been noted above, but also included:
·Many of the allegations relied on by the mother, other than those raised by X, were rehashings of complaints already dealt with (at [92(a)]);
·The evidence established that Y and Z will more likely experience consistency and structure in the father’s home (at [87(a)]);
·The children have already been interviewed by an expert witness and Independent Children’s Lawyer and further interviews are undesirable (at [87(b)]–[87(d)]); and
·The parties have a propensity to take the children inappropriately to the police and report the children’s expressions or behaviour to support the allegations which will continue “unless this chapter of the litigation is closed” (at [84(b)] and [84(c)]).
Importantly, her Honour found that if Y and Z remained living with the father, “their lived experience will be unchanged” (at [88]).
Submissions that insufficient weight was given to a particular matter face a high bar (Gronow v Gronow (1979) 144 CLR 513 at 519; Norbis v Norbis (1986) 161 CLR 513 at 539). Counsel for the mother grasped the nettle and submitted that the insufficient weight given to X’s allegations rendered the outcome unreasonable and plainly wrong.
I am unable to agree. The findings made by the primary judge, having regard to all of the matters that were identified by her, were open to be made.
It is necessary to add that, contrary to the submission of the mother, the primary judge did not find that the criminal case against the father would not succeed.
These grounds do not succeed.
Did the primary judge fail to take into account the effects of the separation of the children? (Ground 3)
The mother submitted that the primary judge did not take into account the separation of X from Y and Z, adding that the orders foreclosed the possibility of the three children ever living together.
Leaving aside the issue of whether a threshold determination of the kind undertaken by the primary judge is an application for a parenting order invoking s 60CC of the Family Law Act 1975 (Cth) (Poisat & Poisat (2014) FLC 93-597 at [54]; Carriel at [61]), the best interests of the children loom large in the determination to be made. Either way, the benefit of sibling relationships is a relevant matter (s 60CC(3)(d)). It is clear enough that the benefit of re-establishing and maintaining the sibling relationship was a significant matter taken into account in arriving at the 10 February 2022 orders.
The primary judge was aware of the issue (Transcript 21 April 2022, p.4 lines 1–20 and p.63 lines 7–26). Relevantly, her Honour said:
77.Otherwise, the children’s living circumstances at the time of the trial were that X lived with the mother, Y and Z lived with the father and the children spent alternate weekends with each other in the parties’ respective households. There was no evidence that the children’s physical living and care arrangements have changed. Both boys continue to attend the Suburb G Public School.
…
82.For the reasons that follow and in relation to Y and Z, I am satisfied that firstly there is not a likelihood that the final orders will be varied in a significant way because there have been significant changes in the circumstances of the family and secondly, that the potential detriment to the children caused by the litigation itself outweighs the need to embark upon it.
83.There is no evidence that Y and Z’s age and developmental stages have changed since the final orders were made. Their living arrangements remain as they were when the trial was conducted, that is they live in a household separate to X but maintain regular contact him with him (albeit the time is now reduced by one weekend in a fortnightly cycle and a reduction in school holiday time).
84.Accepting the mother’s evidence at its highest, I am not satisfied there have been significant changes to the circumstances of Y and Z because:-
(a)The existing status quo has been a constant in the children’s lives since April 2020.
…
…
87. In summary this is because –
(a)The mother seeks that (relevantly) Y and Z live with her and she exercise sole parental responsibility for them. Y and Z have lived with the father for over two years and despite extensive testing of the mother’s numerous and detailed allegations, the Court determined that the children should remain living with the father. Y is six (6) and Z is almost four (4) and the family report opined that the children will more likely experience consistency and structure in the father’s home which is most important for Z over the next three to five years (see paragraph 174). The father has been making decisions about Y and Z for a considerable period of time and in light of the poor co-parenting relationship, the Court determined that whomever the children live with should be allocated this responsibility.
(Footnote omitted) (Emphasis in original)
There is no express reference to the value of sibling relationship but that does not mean the matter was not considered.
The point made in the above paragraphs was that pursuant to the 10 February 2022 orders, little changed for Y and Z apart from X coming to live with them and the father. X wished to live with his siblings and the expert evidence supported that course. As explained, the re-unity in the care of the father however did not take place.
The question was whether the benefit of reuniting the children was such that the Court should reconsider the orders that Y and Z live with the father. The above paragraphs explain why the primary judge considered that the existing order was unlikely to change. The status quo outweighed the benefit of resuming a full time sibling relationship. The children were still to spend time with each other.
I was not taken to any evidence that the effect of the children continuing to live in separate households would be profound and change the nature of the sibling relationship. It would simply remain as it had.
A trial judge is not obliged to record and deal with every argument in express terms (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259). In interim parenting matters, a judge is entitled to concentrate on the points of relevance and significance (SCVG & KLD (2014) FLC 93-582).
Taking into account the above, I am not persuaded that the primary judge failed to take the sibling relationship into account.
Did the primary judge err in making the notation that it was agreed Y and Z would spend an extra night a fortnight with the mother? (Ground 4)
The primary judge made the following notation:
THE COURT NOTES THAT:
A. The parties intend to informally extend the effect of order 5 (b) of the final orders so that Y and Z spend time with the mother each alternate weekend from Friday at 3.00pm until the commencement of school (or 9.00am) Monday.
That was clearly in accordance with the views expressed by the parties at the hearing (Transcript 21 April 2022, p.68). The fact that the father withdrew his consent on 8 June 2022 after judgment was delivered does not demonstrate error.
Further, no appeal lies against the making of a notation (Lindfield & Romano [2022] FedCFamC1A 81 at [31]; Oberlin & Infeld (2021) FLC 94-017 at [44]; Bayer & Wynne [2021] FamCAFC 131 at [3]).
This ground does not succeed.
Did the primary judge err by finding it incongruent that Ms SS had not referred to an incident which occurred on 9 April 2022 in her affidavit filed 11 April 2022 and sworn 7 April 2022? (Ground 5)
Ms SS is the maternal great-grandmother.
The mother gave evidence that on 9 April 2022, X sent her a text message that Y had been laying on top of Z, “kissing her on the lips and trying to touch ‘her private parts’” (at [46]). The evidence continued that Ms SS and X intervened.
Ms SS was a significant witness. However, she provided but one affidavit sworn 7 April 2022 which, of course, did not refer to the incident.
The primary judge said that:
84. …
(h)The events of 9 April 2022 are not corroborated by Ms SS. Given the mother’s contentions of what allegedly occurred, it is incongruent that Ms SS did not do so. As identified earlier, complaints of sexualised behaviour were heard and considered at the trial. The state of the mother’s evidence does not enable me to make a finding that a significant change of circumstances has occurred.
The primary judge was not referring to the 7 April 2022 affidavit but the failure to supply a further one.
No error has been demonstrated.
Did the primary judge err by rejecting most of the affidavit filed by Ms SS on 7 April 2022? (Ground 6)
Ms SS filed an extensive affidavit detailing events from December 2011. Her Honour rejected the bulk of it because:
·Incidents were not dated and therefore lacked probative value;
·The evidence could have been before the Court at the final hearing; and
·Some of the evidence had been the subject of the mother’s evidence and r 5.08(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) applied.
The mother submitted that the rejected evidence was relevant and probative of risk of physical abuse to Y and Z.
It is difficult to see the relevance of that evidence given the actual findings in the 10 February 2022 reasons. The matters that were in issue in the earlier proceedings were resolved by the judgment. The findings were relevant as to whether or not there had been a sufficient change in circumstances so as to warrant reconsideration of the parenting orders.
There was no error on the part of the primary judge.
Conclusion and Costs
It follows that the appeal will be dismissed. No order as to costs was sought.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 8 December 2022
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