Inwood & Brock
[2024] FedCFamC1A 72
•3 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Inwood & Brock [2024] FedCFamC1A 72
Appeal from: Brock & Inwood [2023] FedCFamC2F 1542 Appeal number(s): NAA 369 of 2023 File number(s): LNC 239 of 2014 Judgment of: RIETHMULLER J Date of judgment: 3 May 2024 Catchwords: FAMILY LAW – APPEAL – Parenting orders – Children opposed to contact with father – Application for orders for family therapy – No orders for family therapy as mother agreed to participate in family therapy – Whether primary judge required to make orders – Whether primary judge ought to have made orders for time between the children and the father following family therapy – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CC, 61DA, 67Z, 117 Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Dundas & Blake [2013] FamCAFC 133
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Maddax & Danner [2016] FamCAFC 176
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Number of paragraphs: 59 Date of hearing: 18 April 2024 Place: Parramatta Counsel for the Appellant: Litigant in person Counsel for the Respondent: Ms Borger Solicitor for the Respondent: Creative Family Law Solutions Counsel for the Independent Children's Lawyer: Dr Alexander Solicitor for the Independent Children's Lawyer: Culshaw Miller Badenoch Lawyers ORDERS
NAA 369 of 2023
LNC 239 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR INWOOD
Appellant
AND: MS BROCK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
3 MAY 2024
THE COURT ORDERS THAT:
1.Appeal number NAA 369 of 2023 be dismissed.
2.The appellant pay the respondent’s costs fixed at $12,500.
3.The appellant pay the Independent Children’s Lawyer’s costs fixed at $4,060.
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 Inwood & Brock has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
This appeal concerns parenting orders made on 30 November 2023 which provide that the mother have sole parental responsibility for the children, that the children live with the mother, and that the father spend time in accordance with the children's wishes, but only after family therapy has occurred. The father appeals this decision, seeking orders requiring the attendance of the parties and the children at family therapy and contact orders thereafter.
BACKGROUND
There are two children of the parties’ relationship, the eldest, aged 13 and the youngest, aged 12. The parties separated in 2013 after a relationship of almost five years, when the mother moved to Melbourne from Tasmania with the children. The children were three and one, respectively, at the time of the move. The father visited the children regularly after the mother relocated, which the mother facilitated. In 2014, the father moved to Melbourne and spent time with the children each week, progressing to five nights each fortnight pursuant to orders made in 2016.
The mother alleged that the children began to show signs of physical abuse from the father, as early as September 2015, when she said she noticed bruising on one of the children. From 2017, the mother began reporting allegations of physical abuse (that she said the children had told her about) to authorities. In January 2020, after another alleged incident occurred, the children made disclosures in an interview with the police and in February 2020, the children made disclosures to the child protection authority. In late 2020, a final intervention order was made in the state courts. Subsequently, the father only saw the children at their sport games. The deteriorating relationship between the father and the children was not assisted by the COVID-19 lockdowns.
By the time of the trial, the children had not had a relationship with the father for three years and were opposed to spending time with the father. Whilst the father had admitted to some inappropriate discipline many years ago, the primary judge was unable to be satisfied that the father had harmed the children thereafter.
However, the evidence of one expert witness, as the primary judge summarised (at [70]) was that:
“the father’s admission to physical castigation of the children when they misbehave demonstrates there is some basic truth in the children’s account that they have been struck by him; the duration of the allegations which extend over several years; and the behavioural changes of the children themselves, including those of physical aggressive which is a well-established marker in children who have been physically abused. … the children having repeatedly confirmed their claims of aggressive, punitive and draconian practices in the care of the father, which [the expert] considered would not be expected of children at their (then) ages. Further, that the children have broadly rejected [the father] since they ceased spending regular time in his care, which [the expert] considered correlates with having had adverse experiences with their father.
The primary judge concluded at paragraph 144:
Importantly, I also accept that the overwhelming evidence is that the children believe that the alleged family violence occurred in all respects as alleged and was occasioned by their father. That reality of itself amounts to an ongoing and serious risk to the children’s psychological and emotional well-being.
(emphasis in original)
As a result of this finding, the primary judge concluded (at [170]) that “there is an unacceptable risk to these children if time is introduced before family therapy can take place.” The nature of the risk was to the children’s “emotional welfare and development.” Having identified this risk, her Honour considered “that until such time as there can be a safe and facilitated opportunity for the father to address the past with the children, there is no way those risks can be satisfactorily ameliorated.”
GROUNDS OF APPEAL
The grounds of appeal are lengthy and drawn largely in the form of submissions.
Many of the grounds relied upon go to the weight that the primary judge gave to items of evidence. The proper approach to appeals concerning arguments as to weight was explained by Stephen J in Gronow & Gronow (1979) 144 CLR 513 at page 519-520, where his Honour said:
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.
As was said in House v The King (1936) 55 CLR 499, where a specific error (such as the judge acting on a wrong principle, taking into account irrelevant matters, or failing to take relevant facts into account) is not shown, then the father may persuade the appellate court that the judge failed to properly exercise the discretion if the decision is “unreasonable or plainly unjust”, thereby allowing the appellate court to infer that “there has been a failure properly to exercise the discretion ... although the nature of the error may not be discoverable”. As Kirby J said, in more straightforward terms, it is necessary to show that the primary judge was “plainly wrong”: see CDJ v VAJ (1998) 197 CLR 172 at [186].
Ground 1
Ground 1 complains that:
The [father] in the Final Hearing was not given [procedural] fairness due to none of the allegations made by the mother were put to the father in cross examination by either Counsel for the mother or the Counsel for the ICL The Father was not given opportunity to comment on contradicting allegations that have had a devasting effect on him.
The father faces two difficulties with this argument. First, the allegations were set out in the mother’s trial affidavit, and his responses to the allegations are contained in his trial affidavit. Therefore, the father was aware of the mother’s claims, had provided his evidence in answer to the claims, and there was no suggestion that the mother’s claims were unchallenged. Secondly, none of the relevant claims (set out in the affidavit by the mother and not the subject of cross-examination) were accepted by the primary judge. There was no procedural unfairness to the father in these circumstances. This ground is not made out.
Ground 2
Ground 2 makes lengthy references to the United Nations Convention on the Rights of the Child (1989). The Convention does not form part of the domestic law in Australia: the domestic law is that set out in the sections of the Family Law Act 1975 (Cth). Whilst one of the objects of Part VII of the Act (s 60B(4)) was to give effect to the Convention, the relevance of the Convention is limited as the Convention itself has not been enacted into local law. In Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [29], Gleeson CJ explained that “where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia's obligations.” As there was no ambiguity in the legislation that the primary judge was applying, which arose from the circumstances of this case, the Convention was not relevant to the determination of the matter.
The father also complains that the primary judge’s orders did not make a provision for the children to “spend time with their extended family being Grandparents, Aunties, Uncles, Cousins”. The father did not seek orders to this effect in either his application or his final submissions. There can be no criticism of the primary judge not considering orders addressing these issues when there was no application or submissions before her Honour seeking such orders.
This ground is without merit.
Ground 3
Ground 3 complains that the primary judge erred in concluding that the presumption of equal shared parental responsibility set out in s 61DA of the Act did not apply in this case, arguing that there were no reasons for the finding. The primary judge said at [173]:
The presumption pursuant to s.61DA of the Act that an order for the parents have equal shared parental responsibility for the children is in their best interests does not apply in this matter. I am satisfied the identified risks amount to unacceptable risk and it may well create risk for the parents to be required to make day-to-day or longer term decisions involving the children jointly following conclusion of these Court proceedings.
Section 61DA(2) provides that “the presumption does not apply if there are reasonable grounds to believe that a parent… has engaged in: abuse of the child… or family violence.” The mother argued that s 61DA(2) was satisfied (and thus that the presumption did not apply) referring to the finding at [144] where the primary judge accepted that “the children believe that the alleged family violence occurred in all respects as alleged and was occasioned by their father” (emphasis in original). The primary judge then concluded: “That reality of itself amounts to an ongoing and serious risk to the children’s psychological and emotional well-being.” The findings by the primary judge as to the risk of emotional harm is about potential future harm “if time is introduced before family therapy can take place” (at [170). The future risks of emotional harm to the children by seeing the father (which is premised upon their reaction regardless of whether their beliefs as to past harm are true or false) cannot satisfy the temporal element of s 61DA(2) which requires past conduct.
However, at [75], the primary judge found that the father “said more directly that he understands that his behaviour toward the boys by smacking them was not appropriate.” Later in the reasons, the primary judge accepted the unchallenged evidence of an expert that the father had engaged in “physical castigation” of the children in the past (at [141]). The admission of inappropriate smacking falls within the definition of family violence set out in s 4AB of the Act. For this reason, s 61DA(2) was satisfied and the presumption was rebutted.
The mother also relied upon s 61DA(4) which allows the presumption to be rebutted by “evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility”. There must be an evidentiary basis for a finding that rebuts the presumption: Dundas & Blake [2013] FamCAFC 133 at [57]. The primary judge outlined (at [94] to [96]) a history of the parties being unable to communicate or make joint decisions (although her Honour did not make findings about whether the difficulty was the behaviour of one or both of the parties). At [97], the primary judge identified the mother’s clear belief that the father had harmed the children and that “this impacts her ability to co-parent with him.” Unlike the facts in Dundas there was an evidentiary basis for the findings made by the primary judge in the present case.
Whether the presumption applies or not does not change the requirement for an assessment of whether it would be in the children’s best interests for there to be orders for equal shared parental responsibility if this is in issue in the proceedings. The primary judge addressed what orders should be made with respect to parental responsibility at [173] to [175]. It is apparent that the primary judge formed the view that the best interests of the children required orders in the terms that her Honour made. Even if the primary judge erred by assuming that the presumption did not apply, it did not make a difference to the outcome as the primary judge concluded that orders for sole parental responsibility were in the best interests of the children, and such a conclusion rebutted the presumption (see s 61DA(4) of the Act). As a result, this ground of appeal cannot succeed.
Ground 4
The father challenges the reliability of the evidence contained in a response to a request for information from the child protection authority made pursuant to s 67Z of the Act. The father did not seek to have the author of the report called as a witness for cross-examination. Whilst the primary judge recounted the evidence (at [29]), there was no finding accepting the allegations set out in the report. The primary judge did not accept that any of the allegations that the father had struck the children were proved on the balance of probabilities (save for his admissions with respect to inappropriate smacking).
The father developed this point by referring to the use made of the s 67Z report by other experts, however, those experts were not cross-examined for the purpose of testing whether they would adhere to their conclusions in the event that the allegations in the s 67Z report were not true. It is not open to the father to pursue a different case on appeal in circumstances where this argument, if raised at trial, would have been the subject of further evidence by way of cross-examination of the witnesses: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Metwally v University of Wollongong (1985) 60 ALR 68 at 71.
The ground is not made out.
Ground 5
The father complains in Ground 5 that his solicitors failed to tender recordings contained on five electronic USB drives that were referred to in his affidavit.
Alleged errors or omissions by a party’s representative are generally not a basis for an appeal for two reasons: first, many tactical and strategic decisions are made in the running of a trial which may appear to be poor choices with the benefit of hindsight; and secondly, the corollary of a having chosen to be represented is that they must also accept that they are generally bound by the conduct of their representatives and that their remedy is a right of action against their representatives for any failures on their part which does not involve the other party in further litigation. There are some limited exceptions. In OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 at 298 (cited with approval in Maddax & Danner [2016] FamCAFC 176), the Full Court said:
[123] We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a re-trial, regardless of whether the result is apparently fair.
[124] On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
The father has not made any application to lead evidence on the appeal, nor has he provided an affidavit setting out the circumstances he relies upon. The father was aware that the electronic material was not provided to the court as he was present during the trial. Importantly, it does not appear that the descriptions that he set out in his affidavit were challenged when he was cross-examined.
As the father has not provided evidence to establish that he did not receive a fair trial nor that the effect of these events was likely to have brought about a different result, this ground cannot succeed.
Grounds 6 and 15
Grounds 6 and 15 complain that the primary judge failed to make orders requiring the parties to attend family therapy.
The primary judge made orders for the father “to spend time with the children after mutually agreed family therapy has occurred and in accordance with the children’s wishes”: see Order 5. The primary judge also made a notation to the orders, noting that “the mother, the father and the children may attend upon [a nominated] Counsellor for the purpose of Reportable Family Therapy” (see Notation A) and a number of other notations in the nature of machinery provisions dealing with payment and choice of alternative therapists if required.
Whilst the notations are drawn in the style of orders, notations are not enforceable orders and should ordinarily go no further than noting facts or circumstances. In this case, it appears that the notation was, in part, intended to record the representations of the parties with respect to participating in family therapy and the name of the therapist recommended by the Independent Children’s Lawyer. To the extent the notations go further than this they are not enforceable and ought not to have been made. Notions cannot be used as suggested orders or advice. Thus, the nature of the notations give rise to an argument as to whether the primary judge erred by not making orders to the effect of the notations.
Three issues arise with respect to these orders: first, whether family therapy should be a pre-condition to time between the father and the children; secondly, whether family therapy should be mandated by the court; and thirdly, whether time between the children and the father should inevitably follow family therapy.
The primary judge noted in the reasons for judgment that the mother and the Independent Children’s Lawyer had proposed orders making time between the father and the children contingent upon the commencement of family therapy and that the father had agreed to a minimum of six sessions as “a pre-condition to his time with the children”: at [183]. The primary judge also concluded that whilst the father’s time with the children would have to follow family therapy, it was not appropriate to make orders for a family therapist (rather than a judge) to determine when, if at all, the father should have contact with the children. The reasons of the primary judge effectively find that there can be no contact between the children and the father without the benefit of family therapy, and presumably “significantly change in circumstances” given the attitudes of the children to spending time with the father.
The father argues that the primary judge failed to address his primary proposal that family therapy should be mandatory as well as the orders he sought that automatically led to enforceable contact orders following family therapy. This position had some support in the conclusions of the family report writer: see para 69 and 70 of the family report of 22 July 2023. Reading the reasons as a whole it is clear that the primary judge was not persuaded that it was necessarily in the best interests of the children that there be time between the father and the children even after family therapy. This is not surprising given the evidence of the opposition of the children to time with the father; the finding that they are at risk of emotional harm if forced to see the father when they believe that he has previously harmed them; and the inevitable uncertainty as to the impact that family therapy may have on the children’s preparedness to spend time with the father.
The father could have sought an adjournment of the trial for the purpose of attempting family therapy, however, he does not appear to have made such an application at the trial (although such an application would generally be difficult if only made at trial). The decision must be seen in the context of a case where court proceedings between the parents first commenced in 2015 and the current proceedings commenced on 28 February 2020, over 40 months before the judgment. Whilst the restrictions imposed upon society as a result of COVID-19 covered a large part of this period, there was significant time following COVID-19 restrictions being lifted for further interim orders applications to be made by the father. In the absence of an application by the father for interim orders, the circumstances of the case were not such as to require the primary judge to explicitly consider making only interim rather than final orders in such a long running dispute.
It was open to the primary judge to accept that the mother was committed to engaging in family therapy (which was supported by the mother’s evidence in cross-examination) and decline to make orders on the basis that in these circumstances, specific orders were not required. If the mother fails to engage in family therapy, this may well be a sufficient change in circumstances to overcome the principle in Rice & Asplund (1979) FLC 90-725 at 78, 905. Such a possibility explains the primary judge’s conclusion at [190], declining to make orders requiring a family report prior to any further application for parenting orders: the circumstances that may found a further parenting application may not be such as to necessarily require the children to participate in a further family report.
The father has not shown that the primary judge’s discretion has miscarried in declining to make specific orders for family therapy or specific contact orders in the context of this case.
Ground 7
The father complains that the family report writer ought to have observed the father interacting with the children, and therefore argues that he was denied procedural fairness. The report identified the reason that such an observation did not occur and clearly identified the effect that had upon the expert’s evidence, saying at page 2:
An observation between boys and their father was not attempted due to previous and ongoing resolute refusal to spend time with him. An attempted observation may have provided useful information.
There was no objection to the report being provided in evidence. The report writer was available for cross-examination by the father. Whilst the lack of an observation of the children with the father was a limitation upon the report, it went to the weight that could be attached to the report and not to procedural fairness as the limitation was known to the father and he had the opportunity to object to the evidence and cross-examine the report writer. If the father sought orders that the report writer be required to observe him with the children, so as to be able to provide better evidence, the appropriate course was an interlocutory application prior to trial.
The father has not established this ground of appeal.
Ground 8
Ground 8 complains that the family report was released to the parties around two months after the date required by the trial directions. It was released seven days before the trial, after the father had filed his trial affidavit. The father does not set out how this caused him prejudice. The late release of reports is one of the risks of litigation. If an adjournment is necessary to answer the report, or leave to lead further evidence is needed, or it is appropriate to exclude the report from evidence, a party may make an application to the primary judge. In this case the father proceeded with the trial. As no application was made to the primary judge at the trial, the father must be taken to have waived any right to complain that the late release of the report caused procedural unfairness.
There is no merit in this ground.
Ground 9
The father argues that the primary judge erred in the findings concerning the reasons for the adjournment of the trial listed in October 2022, where her Honour said (at [36]):
A final hearing of this application was scheduled for 21 October 2022 but adjourned to allow for there to be a gradual increase from no face to face time to supervised time between the father and the children (following the father’s completion of 3 of 10 sessions with a forensic psychologist, a Ms [A]) and because it was considered that a further family report may be required prior to the final hearing. Other orders were made by consent on that day which included for both parents to complete specific parenting programs.
The father sets out some detail as to the positions of the parties with respect to the adjournment application. The matter was adjourned and supervised time was ordered, as requested by the father’s representative. Even if the reasons put forward by the mother and Independent Children’s Lawyer for the adjournment may have been different, it was open to the primary judge to conclude that the operative reason for the adjournment was to enable supervised time to be trialled. It has not been shown that the primary judge made findings that were not open on the evidence.
Ground 10
In Ground 10 the father argues that the primary judge failed to take account of the fact that the mother’s treating psychologist was charging the mother fees and the mother was paying those fees. There was no specific cross-examination or submission on this point. It does not appear that the primary judge was under any misapprehension that the psychologist was an independent expert rather than the mother’s treating psychologist. Other complaints are made about the weight that should be attached to the psychologist’s evidence. The primary judge did not accept that psychologist’s evidence uncritically, finding at [142]:
The family report writer was assessed as a credible witness and her view was preferred to that of [the psychologist] in some important respects on account of her objectivity. However, both [family report writer] and [the psychologist] concurred that the historical allegations of family violence have had significant impacts on [the children] in terms of their emotional development and, at least in the case of [one child], his behavioural development. Both were of the view that the historical allegations of family violence will have a bearing on the children’s development in the short and longer terms.
This ground is without merit.
Ground 11
The father argues that the primary judge failed to accord sufficient weight to the finding that the mother was having difficulty with the behaviours of the children, including the eldest child twice running away from home. The primary judge had regard to these difficulties and recounted them at paragraph 46 of the judgment.
The difficulty that the mother was having in parenting the children was considered by the primary judge. This ground goes only to the weight of the evidence. The real issue in the case was not the mother’s parenting capacity, but the refusal of the children to spend time with the father. The father has not shown that the primary judge failed to have regard to this fact, nor that the result was “plainly unjust” or “plainly wrong”.
Ground 12
The father complains that the primary judge recounted (at [1] and [136]) that the children had not had a relationship with the father for three years. It was not contended that the comments were inaccurate: rather, the father argued that they ought to have been contextualised by evidence of the conduct of the parents and the impact of the COVID-19 lockdowns.
The primary judge considered the various events that occurred over the three years in the judgment, particularly when recounting the children’s experiences. The father has not established that the primary judge failed to consider the facts and circumstances that provide context for the limited interactions between the father and the children in this period.
There is no substance in this ground.
Ground 13
The father did not pursue this ground.
Ground 14
The father argues that the primary judge failed to properly have regard to the views of the children, as required by s 60CC(3)(a) of the Act. The primary judge recounted the changes in the views expressed by each of the children: at [49] and [63]. Importantly, at [49], the primary judge identified the evidence of what the eldest child had said to the family report writer (in May 2023):
In May 2023, [the family report writer] interviewed [X] and recorded him at the outset as having denied the possibility of a relationship with the father which position moderated to an expression of his desire that his father be given time and the “opportunity to learn” and to hear his father say: “I want [Y] and [X] back very much”. [X] ultimately told [the family report writer]: “I do want to save our relationship. I wish we could save our relationship.”
Similarly, with respect to the youngest child, the primary judge said at [63]:
In May 2023, [Y] expressed to the family report writer his view that he would probably choose not to see his father because “I don’t like my Dad. He hurt us.”. [Y] also expressed the worry he felt about the attempted supervised visit in March 2023. He was worried about “having to see and talk to Dad”.
The primary judge specifically addressed s 60CC(3)(a) when considering the children’s best interests, saying (from [154] to [158]):
Significant store was sought to be placed in the views of [X] and [Y].
The evidence of the family report writer as to their maturity and degree of weight that should be placed on their views was objective and persuasive.
I accept that [X] is of an age where his views about his relationship with his father are to be respected and that he is sufficiently mature to be afforded the space, with the assistance of an objective and appropriately qualified professional, to explore his ideas in that respect in a manner that accommodates his diagnoses.
I accept that [Y] is fast approaching an increased level of maturity and brings a different perspective given his younger age at the time of his parents’ separation. Similarly, [Y]’s views should be respected and he should be given the appropriate opportunity to explore different options in relation to his father, also with the assistance of an objective and appropriately qualified professional.
That said, these children are just 13 and 11 years of age and still require substantial guidance, support and responsible parenting.
It is clear that the primary judge carefully considered the views of the children and the evidence as to the appropriate weight to be placed upon those views (see, for example [65]). The father has not shown that the primary judge failed to have regard to the evidence. In this ground of appeal, the father referred to a video recording, however, it was not in evidence before the primary judge or in the appeal.
Ultimately this ground is a challenge to the weight that the primary judge placed upon the various items of evidence and is without merit.
CONCLUSION
There is no doubt that the facts of this case presented the primary judge with considerable difficulties as the children appear to have become more estranged from the father over time. The delays caused by the COVID-19 lockdowns made the situation more difficult. However, the outcome reached by the primary judge was clearly open to her Honour, and not undermined by any error of fact, law or procedure. The appeal must be dismissed.
Submissions as to costs were taken at the end of the argument on the appeal. Costs are determined pursuant to s 117 of the Act. The father has been wholly unsuccessful on the appeal, following a detailed judgment by the primary judge. It is appropriate that the father pay the costs of the unsuccessful appeal. The mother claims costs of $12,500, the quantum of which is not disputed. The Independent Children’s Lawyer also claims costs in the amount of the legal aid grant of $4,060, which is far less than party and party costs that would be assessed on the court scale. It is appropriate that the costs be fixed rather than sent for assessment.
It is appropriate that the father pay the mother’s and the Independent Children’s Lawyer’s costs fixed at $12,500 and $4,060 respectively, and orders will be made accordingly.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 3 May 2024
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