JABBAR & GADE
[2017] FamCAFC 106
•7 June 2017
FAMILY COURT OF AUSTRALIA
| JABBAR & GADE | [2017] FamCAFC 106 |
| FAMILY LAW – APPEAL – Four appeals – Appeals against interim parenting orders and s 68B injunctions –Appeal against dismissal of contravention application – Where the appellant mother seeks a re-exercise of discretion and interim parenting orders – Whether the primary judge placed inappropriate weight on an untested expert report – Whether the primary judge afforded the mother procedural fairness – Risk of harm – Whether the primary judge appropriately balanced the risk of psychological and physical harm posed by the mother with the children’s relationships and stated views – Appeals dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the further evidence is said to be “helpful” – Where the evidence does not assist in determining error in the orders under appeal – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs from the appellant – Where the ICL seeks costs from the appellant – Where the appeals have been wholly unsuccessful – Where impecuniosity is no barrier to a costs order – Where costs can be met from the appellant’s property settlement – Applications for costs granted. |
Family Law Act 1975 (Cth) ss 68B, 69ZQ(1)(a), 70NAA(1), 70NEA, 94AAA(3), 94AAA(7), 117(1)-(2), 117(2A), 117(5)
Federal Circuit Court of Australia Act 1999 (Cth) ss 17A(2), 42
Caballes & Tallant [2014] FamCAFC 112
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Jabbar & Gade (No. 3) [2016] FamCAFC 218
Rice & Asplund (1979) FLC 90-725
| APPELLANT: | Ms Jabbar |
| RESPONDENT: | Mr Gade |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2265 | of | 2015 |
| FIRST APPEAL NUMBER: | EA | 46 | of | 2016 |
| SECOND APPEAL NUMBER: | EA | 118 | of | 2016 |
| THIRD APPEAL NUMBER: | EA | 28 | of | 2017 |
| FOURTH APPEAL NUMBER: | EA | 36 | of | 2017 |
| DATE DELIVERED: | 7 June 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 30 May 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 March 2016, 26 July 2016, 23 March 2017 & 20 April 2017 |
| LOWER COURT MNC: | Gade & Jabbar(No. 2) [2016] FCCA 1892, Gade & Jabbar (No. 5) [2017] FCCA 662, Gade & Jabbar (No. 8) [2017] FCCA 870 |
REPRESENTATION
| THE APPELLANT: |
|
| COUNSEL FOR THE RESPONDENT: | Mr Bithrey |
| SOLICITOR FOR THE RESPONDENT: | NLS Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Flintoff |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Appeal EA 46 of 2016 be dismissed.
Appeal EA 118 of 2016 be dismissed.
Appeal EA 28 of 2017 be dismissed.
Appeal EA 36 of 2017 be dismissed.
That the mother’s application to adduce further evidence in appeals EA 28 of 2017 and EA 36 of 2017 be dismissed.
That the mother pay the father’s costs of and incidental to these appeals in the amount agreed or as assessed. The payment is to be made from the mother’s entitlement as ordered pursuant to s 79 of the Family Law Act 1975 (Cth) at the same time as the mother is to receive that entitlement.
That the mother pay the costs of the Independent Children’s Lawyer of and incidental to the appeals in the amount of $5,160. The payment is to be made from the mother’s entitlement as ordered pursuant to s 79 of the Family Law Act 1975 (Cth) at the same time as the mother is to receive that entitlement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jabbar & Gade has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 46 of 2016; EA 118 of 2016; EA 28 of 2017; EA 36 of 2017
File Number: NCC 2265 of 2015
| Ms Jabbar |
Appellant
And
| Mr Gade |
Respondent
And
Legal Aid NSW
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Ms Jabbar (“the mother”) and Mr Gade (“the father”) are the parents of two children; a daughter, X, who was born in 2006 and a son, Y, who was born in 2012.
After the parties separated in mid-August 2015, what was a volatile situation in the family home turned into a hotly contested dispute and litigation pursuant to the Family Law Act 1975 (Cth) (“the Act”) as to the care of the children and financial settlement. In relation to the children, the allegations made by each party about the other and the risks they said the other posed to the children resulted in the involvement of numerous agencies, including police and child welfare authorities. There have been apprehended violence orders and charges against both parties.
On 31 August 2015 Judge Terry made interim parenting orders, the effect of which was that the children live with the father and for them to spend supervised time with the mother at a contact centre. For the children this involved a significant change in their lives. Until then they were used to being in the primary care of the mother who was a stay at home parent, whereas the father worked fulltime. It also meant that the children would no longer reside in the family home, where the mother remained in occupation. The children and the father moved into a rented apartment in nearby Newcastle. Because the father needed to work, his parents and other members of his family became involved in the care of the children.
The matter is docketed to the primary judge and she has been more extensively involved in the proceedings than the occasions which will be discussed. The point being that her Honour has a deep understanding of the entirety of the case as well as each individual dispute to which these appeals relate. All applications are listed for final hearing before the primary judge for five days commencing 7 August 2017.
Almost as soon as the ink was dry on the orders of 31 August 2015, an unbelievable array of applications to change the orders, contempt and contravention applications, appeals and associated applications were unleashed. Only a small number of applications were commenced by the father.
The situation now, with various interim orders in place, is that the children reside with the father in accordance with Order 1 of the orders of 31 August 2015. He has sole parental responsibility for them (Order 2 of 31 August 2015). Order 2 was varied so that, provided the children continue to live in Newcastle, they can visit other places (Order 2 of 26 July 2016). By Order 2 of 23 March 2017, pursuant to s 68B of the Act, the mother is restrained from approaching the children. All orders which otherwise enabled the children to spend time with the mother are now suspended (Order 9 of 20 April 2017). Both parties are restrained from removing the children from the Commonwealth of Australia (Orders 8 and 9 of 31 August 2015).
The mother has four appeals on foot (a number of applications in an appeal have been dismissed). Broadly stated (and excluding the appeal against the dismissal of her contravention application), the mother ultimately seeks that this court re-exercise the discretion of the primary judge and makes interim orders that she have sole parental responsibility for the children, for the children to live with her and to spend time with the father at a contact centre. Further, the mother wants the father charged with contempt for “providing fake evidence” and the trial be allocated to a different judge in a different registry. Notwithstanding her desire for a different judge, the mother was clear that she does not plan to participate in the final hearing. This is irrespective of constitution of the court.
It is helpful to indicate at this juncture that there is no appeal against Orders 1 and 2 of 31 August 2015. Thus merely setting aside the orders under appeal would not immediately result in orders that the children live with the mother. This can only be achieved if error in the relevant sense is established and the Court is persuaded it is appropriate to re-exercise rather than remit the matter for re-hearing. With a trial imminent there was no support for a remitted rehearing.
Any re-exercise must take into account the expert opinion of Dr A who was retained by the parties (and independent children’s lawyer (“ICL”)) to investigate and report upon the children and the parties. Indeed, all orders under appeal were made against a backdrop of this report having been commissioned (the first two appeals) or after its release (the third and fourth appeals). Although the report is untested, it is evidence which was given significant weight by the primary judge and which on any re-exercise I too would give significant weight. This is mentioned at the outset because it demonstrates the high hurdles faced by the mother to achieve her desired outcome at this stage.
In his lengthy report dated 20 March 2017, Dr A expressed the opinion that it is in the best interest of the children for them to live with the father and to not spend time with the mother.
In addition to his own interviews and observations of the children and parties Dr A analysed a large volume of material, including for example, records of the family’s consultations with a therapist and of the contact centre. Dr A considered that the mother presents with a severe personality disorder, that is, with narcissistic, borderline and some histrionic personality features [234]. He was clearly concerned about the manner in which she interacted with the children at the contact centre and in observation with him [282] and said that even in a supervised setting or the mother’s conduct involved a “risk of impact on the children’s character development, and disruption of the children’s wellbeing in the context of paternal care, and disruption of the children’s relationship with the father and paternal extended family” [218, 219].
Dr A explained that “the children have to work hard at meeting the mother’s emotional needs” [277], and have been exposed to “maternal emotional and physical abuse” [357]. He opined that there “are significant risks to the children in the care of the mother, and no significant risk in the care of the father” [386]. Their life experiences to date put them in need of “better-than-average-parenting” [362] which the father but not the mother could provide.
Notwithstanding the attempts made by the primary judge to encourage the mother to engage the trial process and understand the importance of testing the evidence raised against her; sentiments echoed by Ainslie-Wallace J (Jabbar & Gade (No. 3) [2016] FamCAFC 218) and I on a number of occasions, the mother was confident she could establish that the orders under appeal are plainly wrong and should be changed immediately.
Before the appeals are discussed in greater detail it needs to be understood that on 10 April 2017 the mother filed an application that Judge Terry be recused. Her application was heard on 19 April 2017 and dismissed on 20 April 2017. On 26 April 2017 I asked the mother whether she intended to appeal the dismissal. This was on the understanding that if there was to be an appeal, it would be dealt with in advance of the trial. The mother said she did not intend to appeal and she has not. As was explained to the mother during this hearing, it follows, even if error is established in some respect, there was no basis upon which I could remove the proceedings from Judge Terry.
As to venue, the mother did not seek leave to appeal the order/s against the interim order/s or purport to appeal without leave. The relief sought cannot be given.
Pursuant to s 94AAA(3) of the Act, the Chief Justice directed that these appeals be determined by a single judge.
The father and ICL seek to uphold the primary judge.
Background to the four appeals
The parties and their daughter moved from India to Australia in late 2008. They have dual Indian and Australian citizenship.
Having settled in Melbourne, in 2010 the family moved to Newcastle. In Newcastle, the father obtained fulltime employment as a medical professional and the mother completed her masters degree.
In the same year their son was born, the parties purchased a property at a suburb of Newcastle, which became the family home.
The father gave evidence about an incident on 9 March 2013. In short, he deposed to video recording the mother assaulting the daughter and screaming threats in his and their presence. Although the primary judge did not view a copy of the video until the hearing on 24 June 2016, she understood that the father claimed there had been an incident which was very troubling. In any event, the primary judge described the contents of the recording thus:
24. The video was clearly made with the mother’s knowledge because it shows her talking to the camera. At the beginning she is shown attending to baby [son] with [the daughter] nearby. However part way through the video she begins pacing around the room and screaming loudly in Hindi.
25. The mother can be seen wandering around the room screaming for several minutes while [the son] crawls on the floor and on a couple of occasions tries to pull himself up on her leg. [The daughter] tries to get [the son] and on several occasions the mother grabs hold of [the daughter] and whacks her repeatedly on the upper and lower back before letting her go. It is very unpleasant to watch.
26. Additionally concerning is the following which is included in the provisional ADVO taken out by the police:
The footage will require an interpreter however the victim states the defendant is saying; “I can’t do anything to this dog (points to the victim) but I’ll hit you, he is not signing the document I’ll kill you (pointing to [the daughter]). It was my mistake when I booked those units I added his name, I’ll hit you, I can’t do anything to him but I keep hitting you (indicating to [the daughter]). Watch I’ll not let her live (she was pointing to [the daughter] when she was saying this to the victim).
(Reasons delivered 26 July 2016) (footnotes omitted)
The video was eventually provided to police, which resulted in the mother being charged with common assault of the daughter. It is common ground that the mother was convicted and that her conviction was overturned on appeal. As a consequence of the conviction being overturned, it is the mother’s contention that neither the expert nor a court exercising jurisdiction under the Act could have any regard to the video and/or what took place. When regard is had to the different standards of proof which apply to a charge of common assault and in parenting proceedings and, in particular, Division 12A of Part VIII of the Act, without more, such an approach cannot be sustained.
The next matter of note occurred on 25 July 2015. At paragraph 11 of the reasons published on 26 July 2016, the primary judge recounted evidence given by the father about a text message the mother sent to him, as follows:
11. On 21 August 2015 the father filed an urgent application seeking orders that the children live with him and spend supervised time with the mother. He was particularly concerned about a text message the mother sent him in late July 2015 which said as follows:
This is a warning. Listen to me attentively. I am 99 per cent sure that you have paid your brother’s fee. Either you tell the truth otherwise the day it will be 100 per cent confirmed to me on that day, I will set the house on fire, shutting myself with the children inside this house. You still have time to tell the truth otherwise think. Now, I don’t have any limit. I need response within five minutes otherwise I’m standing next to the gas. I will set fire to this whole house. You don’t give me the answer I have boiling oil and your son is standing beside me. I will pour this wok over him.
(Reasons delivered 26 July 2016)
It would seem that this was the catalyst for separation, and on 19 August 2015 the father left the family home with the children. There is no dispute that during the interregnum, the mother continued to have a significant role in the children’s day to day care and they were often alone with her.
At paragraphs 29-31 of the reasons published on 26 July 2016 the primary judge explained why she was satisfied that the mother had indeed sent a message consistent with that deposed to by the father.
The mother was ultimately charged in relation to the threat to the children contained in the text message and, having been convicted, this conviction was also overturned on appeal. The mother mounts the same challenge against the admission of this evidence as is made in relation to the video. Nonetheless there can be no doubt that the primary judge was entitled to give this evidence significant weight when formulating the orders of 31 August 2015 and in dismissing the mother’s application to discharge/vary the orders on 26 July 2016.
The children commenced spending supervised time with the mother at a contact centre on 11 October 2015.
On 15 October 2015 the mother filed her first application to discharge or vary the orders of 31 August 2015 so as to have the children live with her. Her application came before the primary judge on 9 December 2015 on which occasion the mother was represented by a solicitor. Further parenting and other orders were made, which, relevantly included orders by consent that:
5. That the time the mother spends with [the children] pursuant to order 3 made 31 August 2015 will, subject to the Big Brown House or Rainbows Children’s Contact Centre or other contact service agreed to by the parties being able to accommodate the parties, occur for 2 hours per fortnight.
6. That other than as provided for in order 5 above, the mother be restrained from coming into contact or spending time with the children.
On 9 December 2015, the primary judge also adjourned the proceedings to a duty list on 11 March 2016, apparently for further directions and including, it would seem, to ascertain the progress made in obtaining the expert’s report and to see how the family fared. The mother’s application to have the children returned to her was otherwise dismissed.
In the meantime events unfolded which prompted a second application by the mother (filed on 17 February 2016) to vary the orders of 31 August 2015 and for her to assume the children’s fulltime care. This application was returnable on 11 March 2016.
On 13 January 2016 the mother made a complaint to police that the father assaulted her in March 2013. He had been charged with her assault but as at 11 March 2016 had not entered a plea. In April 2016 he pleaded guilty and an apprehended domestic violence order was made against him for the protection of the mother. As at 24 June 2016 he had not been sentenced (reasons 26 July 2016 par 18).
On 7 February 2016 the parties’ daughter was with the father’s mother at their local temple. The mother was also present and, when the child asked to leave with her, the mother took her home. On the application of the father, a recovery order issued on 11 February 2016 and the child was returned. But she ran away and was again returned. There have been no further incidents of this kind.
Following the incident at the temple, the father made a complaint to police as to the incident recorded in March 2013 and the 25 July 2015 text message. A provisional apprehended violence order was made against the mother for the protection of the father and the children on 17 February 2016. As I have already mentioned, the mother was charged with matters arising from these events and, having been found guilty on both counts, in February and March 2017 the convictions were overturned.
In support of her application filed on 17 February 2016, the mother filed a large affidavit, albeit predominately annexures. The affidavits, which were prepared by the mother’s solicitor, evidence an understanding that the mother would need to establish a sufficient change in circumstances to warrant the court considering the interim orders again (Rice & Asplund (1979) FLC 90-725). Thus, the affidavit focused on the effect on the children of separation from the mother and how it was she retained the daughter in contravention of orders. The mother also gave evidence of her complaint to police that the father assaulted her in March 2013. Finally, the mother sought to place context on “[my] text message sent on 25 July 2015” which she said “was the culmination of [the father’s] abuse” and “sent only with the intention to get response from [the father]”.
In short, the mother sought to establish that she should no longer be seen as posing an unacceptable risk to the children of serious family violence, that the children were not coping being separated from her and that the father posed an unacceptable risk to the children of family violence.
On 10 March 2016 the mother filed a contravention application which was returnable the next day. Her allegation being that on a date in late February 2016, the father failed to comply with Order 5 of 9 December 2015. The application was dismissed on 11 March 2016 and forms part of appeal EA 46 of 2016.
On 11 March 2016, which was a duty list, and having taken submissions from the mother and ICL for something like 35 minutes, the primary judge indicated the application to vary the parenting orders would also be dismissed. Nonetheless, the judge pressed on and attempted to assist the parties to resolve other disagreements about the children raised in exchanges. The order which dismissed the mother’s application to discharge Orders 1, 2 and 3 of 31 August 2015 comprises the balance of appeal EA 46 of 2016.
Having filed EA 46 of 2016 on 30 March 2016, on 4 April 2016 the mother filed another application (her third) to discharge Orders 1, 2 and 3 of 31 August 2015 and for orders the children live with her and the like. This application was in identical terms to her application filed on 17 February 2016. In support of her April 2016 application, the mother relied on a short affidavit filed on the same day in which she put into issue that she made the threat contained in the text message of 25 July 2015 and repeated her concern about the effect on the children of separation from her.
The mother’s application and one by the father in which he sought to be able to take the children beyond Newcastle should the need arise were listed for hearing on 24 June 2016. On that occasion each of the parties appeared on their own behalf and the ICL also appeared.
The hearing commenced at 12:32 pm and was completed at 4:25 pm. In addition to the affidavit evidence the primary judge received 24 exhibits, including all which the mother sought to tender. Judgment was reserved and on 26 July 2016 orders were pronounced for which the primary judge published written reasons.
The mother’s application was dismissed (Order 1) and the order that the father have sole parental responsibility was varied so that he was “restrained from relocating the children’s place of residence from Newcastle or removing them from Australia” (Order 2). By Notice of Appeal filed on 4 August 2016 (EA 118 of 2016) the mother appeals against Orders 1 and 2.
Between the hearing and pronouncement of orders the father was sentenced (5 July 2016). He entered into a good behaviour bond for 14 months on the standard conditions. On the mother’s application an apprehended violence order was made against the father for her protection for a period of two years.
Dr A’s report was received by the Court on 23 March 2017. The matter was listed that day and the report was released to the parties and ICL. Based on the observations made by the expert, particularly in regards to supervised time and his recommendation that the children spend no time with the mother, the ICL was given leave to make an oral application to immediately “discharge the supervised time order” (Reasons for Judgment, 23 March 2017 at [13]). The primary judge refused to discharge the order but agreed with the submission made by the ICL that the mother’s time with the children should be suspended until the next court date on 19 April 2017. So as to give effect to the restriction on contact a series of injunctions were made pursuant to s 68B which restrained the mother from approaching the children or having contact with them. The injunctions are more comprehensive than those contained in Order 6 of 9 December 2015 but in reality with all orders for time suspended they merely achieved the same outcome.
By Appeal EA 28 of 2017 filed on 27 March 2017, the mother appealed against the s 68B injunctions and a suite of other procedural and financial orders made the same day. In the event, she withdrew the appeal insofar as it sought to challenge orders other than Orders 2, 3 and 4 (the s 68B injunctions).
On the adjourned date and having heard from the parties and the ICL the primary judge agreed with the father and ICL that the order for the children to spend time with the mother should be suspended pending the final hearing. By then, the contact centre had determined that the next occasion of contact, scheduled on 29 April 2017, would be the last. As Her Honour explained at [26] of her reasons, the practical effect of the decision to suspend the time orders was to deprive the mother and children of a couple of hours together on the nominated date, albeit the suspension would last for about four months. Orders were made to that effect and on 21 April 2017 the mother filed an appeal (EA 36 of 2017) against all orders made on 20 April 2017. In the end, this appeal was pressed only in relation to the suspension of time (Order 9).
Appeal EA 46 of 2016
It will be recalled that this appeal challenges Order 3 of 11 March 2016 which dismissed the mother’s contravention application and her application to vary Orders 1, 2 and 3 of 31 August 2015.
The Notice of Appeal is devoid of grounds of appeal. Nonetheless, and without objection from the other parties, the mother was given leave to rely on the ground identified in her written submissions filed on 28 November 2016. The effect of this is that the mother challenges the order on the basis that she was denied the opportunity to present her case; that is, she was denied procedural fairness.
Her Honour’s reasons are contained in the transcript of the hearing. From the transcript, it is apparent that the contravention application was dismissed because it lacked “utility”. As to the application to vary the interim parenting orders, the primary judge explained that without the expert’s report being available the orders should not be considered again.
Context is always important and in this case the primary judge was being asked inside seven months to consider a third application for interim orders as to with whom the children live. During that period the matter had been before the primary judge on a plethora of occasions, including a recent occasion when it had been necessary for her to make a recovery order to have the daughter returned to the father.
In short, the primary judge knew a great deal about the children’s circumstances and on 11 March 2016 she required little explanation from the mother in order to appreciate whether or not she might be able to establish that the nature and magnitude of the risks that had driven the first set of interim orders had changed. It is clear she discerned the risks were unchanged and was of the view that before she would change the orders she required expert opinion as to the risks and the children’s emotional and other needs. There is no doubt the primary judge well understood the daughter wished to return to the mother and that both children were missing her. These issues were at the heart of the mother’s application and demonstrate that the judge appreciated the gravamen of her case. Thus informed, although the primary judge indicated early in the hearing that the application would be dismissed, the record shows that the mother was given the opportunity to address the Court on the applications and to, in effect persuade the primary judge of the merits of both.
Section 69ZQ of the Act imposes important obligations on a court in relation to the conduct of child related proceedings and which applied to the mother’s variation application. Section 69ZQ(1)(a) provides that the Court must decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily. Although the primary judge did not explicitly refer to the subsection, there can be no doubt that her actions were informed by it. There was no denial of procedural fairness (see also ss 17A(2) and 42 of the Federal Circuit Court of Australia Act 1999 (Cth)).
The same observations apply in relation to the contravention application. At its highest, the mother said the father failed to make the children available on a single occasion at a contact centre. Ultimately, Division 13A of Part VII of the Act is concerned with “orders to enforce compliance with orders under this Act” (s 70NAA(1)). Her Honour was able to establish that the children regularly saw the mother in accordance with the orders and if there had been a difficulty caused by the father, it was far from clear that this would even come close to establishing a contravention in accordance with s 70NEA of the Act. It was also established that the father had offered makeup time which was not accepted. The point being the mother had already rejected the only reasonably available sanction. On a proper reading of the transcript, it can be seen that the primary judge formed the view that the application would certainly be dismissed. There is no basis to doubt the correctness of that assessment.
Section 69ZQ(1)(a) also applied to the contravention application and, in circumstances where the mother was given the opportunity to address the primary judge for a sufficient amount of time before the application was dismissed, she was not denied procedural fairness (See Caballes & Tallant [2014] FamCAFC 112).
The appeal will be dismissed.
Appeal EA 118 of 2016
This appeal does not raise any question of general principle and it is appropriate that the Court’s reasons are given in short form pursuant to s 94AAA(7) of the Act. This appeal concerns the orders made on 27 July 2016, to relevantly, dismiss the third variation application by the mother and grant the father’s variation to Order 2 of the orders made on 31 August 2015. Although the expert report was not yet available it is apparent that the primary judge considered it was appropriate to entertain the mother’s application and to revisit the operative orders.
The mother raised 11 grounds of appeal against Orders 1 and 2 of 26 July 2016. None of the grounds challenge the variation to the order for sole parental responsibility per se, however the issue of parental responsibility arises in the context of the mother’s application to vary Orders 1, 2 and 3 of 31 August 2015.
Grounds 2 and 11 are not proper grounds of appeal.
Grounds 1 and 3 assert the failure to consider relevant matters. As to ground 1, it is argued the primary judge failed to have regard to the mother’s affidavit evidence filed on 31 August 2015. Although this affidavit was not filed in support of the application under consideration, the mother asked her Honour to read it. As the transcript of the hearing demonstrates, the primary judge received all documents the mother sought to tender and, although the affidavit in question was not immediately available to her, a fair reading of the transcript suggests that the primary judge planned to read it once it was located. True it is, there is no reference to that document in the reasons, but the primary judge did not need to reference each and every document placed before her. There is no reason to assume that the affidavit was not read. Otherwise, the mother failed to identify any documents which she sought to tender and which were rejected.
As to ground 3, the same issue arises, albeit it is argued that various documents relating to text messages were rejected. The assertion by the mother is incorrect and the series of text messages were marked Exhibits G and V in the proceedings. The argument in relation to the text messages was clearly considered at [29-32], [42], [43] and [46] of the reasons. This ground must also fail.
Grounds 2, 5 and 7 were argued together. As has already been mentioned, ground 2 is no ground of appeal. The remaining grounds assert error as to weight and accordingly in the exercise of discretion as to the risk the father posed to the children. As to weight, it is well settled by authority that 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 (Gronow v Gronow (1979) 144 CLR 513 at 520 per Stephen J). This is particularly brought into focus in respect of parenting orders which invariably involve assessments as to the future, including as to risk (CDJ v VAJ (1998) 197 CLR 172 at 218) (“CDJ v VAJ”).
The primary judge specifically addressed the issue of risk at [40], [67], [77] and [82] of the reasons and identified at [34-37] evidence of statements made by the daughter at the contact centre concerning the father and paternal grandparents. Her Honour ultimately came to the view that the children are not at risk of being abused in the father’s care. The mother has not demonstrated that this conclusion was not available.
As to the father’s “previous divorce efforts”, at [46] the primary judge revealed that she well understood the mother’s contention that the father’s case was essentially fabricated and the alleged risks of harm were prosecuted for “tactical reasons”. She did not need to do more.
There can be no doubt that the primary judge was entitled to place weight on the child inclusive memorandum (ground 10) and that in her reasons for the orders of 31 August 2015 she did. However, in the variation application, her Honour did no more than rely on the child dispute memorandum as providing an evidentiary platform for the possibility that the daughter may have been making statements about the father and paternal grandparents “to please the mother” [36 and 54]. The mother asserts, in ground 4, that the primary judge failed to give adequate consideration of the children’s age, sex, maturity and view, however in circumstances where the mother had acknowledged to the primary judge there “is nothing in any of your affidavits to suggest that [the father] has threatened to harm the children” (Transcript dated 24 June 2016 page 33), her Honour’s decision to approach the daughter’s remarks with caution was available.
Reference to the transcript also demonstrates that the mother was given ample, indeed extensive, opportunity to analyse the evidence raised against her and to supplement the written evidence filed in the case. There was no denial of procedural fairness as alleged by ground 8.
The asserted failure to balance the benefits to the children of being returned to the mother as compared to the risk of harm she posed (ground 6) can be readily addressed. In short, the primary judge remained of the view that the evidence of risk qua the mother was still unacceptably high. Her Honour was not willing to run a risk with the children that the evidence of the mother’s threats of the gravest harm to the children were “simply words intended to coerce” [71] rather than a real threat. Her Honour explained her reasoning thus:
80. It is rare for parents to harm children to get back at the other parent but it is not unknown and I feel a level of discomfort about the idea of changing the order for the mother’s time to be supervised at this point, let alone changing the children’s residence when the evidence suggests that they are coping with their current situation.
…
82. As the Independent Children’s Lawyer submitted this is a complex matter involving allegations about family violence, alignment and parenting capacity. It is impossible to know how things will look after the experts report is obtained and the evidence is tested; I cannot determine a large number of issues in dispute nor can I determine the weight to be given to such things as the children’s views, and sometimes the outcome at trial is very different to the outcome at an interim stage. At present however I concur with the view of the Independent Children’s Lawyer that it would be premature and not in the children’s best interests to change the existing interim orders.
Finally, as to ground 9, there is no basis to assume that the orders are based upon any finding made about property.
In my view, her Honour’s reasons demonstrate a carefully crafted analysis of the relevant evidence, were not distracted by irrelevancies and show an exercise of discretion conducted in accordance with the law.
Error as alleged has not been made out.
Appeal EA 28 of 2017
This is the mother’s appeal against the s 68B injunctions made on 23 March 2017.
The gravamen of the three grounds of appeal upon which the mother relies is that when making the injunctions, the primary judge erred by placing greater weight on the child dispute memorandum and expert report than the evidence adduced in the District Court about the provenance of the video footage and text messages (as well as the findings of the District Court Judge).
As the mother acknowledged in exchanges in this hearing, the issues for determination in the District Court were materially different to the question of whether it was in the best interests of the children for their time with her to be briefly suspended and injunctions made in support thereof.
The submissions made by counsel for the father in the appeal that the risk analysis undertaken by Dr A does not stand or fall on the video recording or text messages should be accepted. The expert’s investigations of the children’s and parents’ circumstances was far more wide reaching and, notwithstanding the outcome of the actions in the District Court, her Honour’s approach to what was intended to be orders of short duration was available.
The challenge made to these orders is not made out. That being the case, it will thus be necessary to consider the mother’s application to adduce further evidence in this and the fourth appeal.
Appeal EA 36 of 2017
It will be recalled that the effect of the discharge of the order for supervised time was that one scheduled visit between the mother and children on 29 April 2017 would not take place. No other proposals were advanced for supervision in a safe setting and, against her Honour’s previous risk analysis which was now informed by the expert report, in reality; the decision was of small compass.
Nonetheless, her Honour described the decision as “difficult”, no doubt to convey her concern about the distress she knew a decision to suspend time would cause the mother and possibly the children. Her Honour explained her reasoning as follows:
44. In my view it is necessary for me to continue the suspension of the orders and not take the risk that something inappropriate and emotionally upsetting and possibly emotionally damaging may be said to the children at a session on 29 April.
45. The children had a relationship with their mother up until the orders were made on 31 August 2015. They continued to see her until quite recently. They are not going to lose their relationship with her if they do not see her for the next four months.
46. If the Court determines after a final hearing that it is appropriate that time be resumed then the children are not going to lack any ability to resume that relationship and as I observed during submissions this is not a case where there is compelling evidence at the moment that I should be concerned that if the children do not see the wife for the next four months and are exclusively in the care of their father that there is going to be denigration or undermining behaviour which will cause them to lose their relationship with the wife or have difficulty picking it up again.
The grounds of appeal and arguments made in support of the challenge to this appeal mirror those made in relation to appeal EA 28 of 2017. They are no less persuasive in this context than they were in that appeal and must fail.
Application To Adduce Further Evidence
In her summary of argument filed in support of appeals EA 28 of 2017 and 36 of 2017 the mother applied to introduce 23 documents (including a movie) as further evidence in one or both the appeals. Some of the documents were already before the court as exhibits and could be considered without regard to the application.
As each document was addressed, it became clear that a number were irrelevant and in that respect, the mother did not press for the admission of documents 4, 5, 6, 7, 10, 11, 13, 14, 15, 21 and 22.
Asked to explain why the remaining documents should be admitted, the mother said they would be “helpful”. Without more, this is no basis to admit further evidence in an appeal (see CDJ v VAJ).
I have approached the question of the admission of the remaining documents on the basis that it was hoped they would either demonstrate the decision made in the particular appeal was erroneous and/or as potentially relevant to a re-exercise.
As to the former, the various documents could not achieve that purpose and, error having not been established, the latter reason for their admission does not arise.
Conclusion And Costs
None of the mother’s asserted challenges to the orders have succeeded and the appeals will be dismissed.
As is customary, I sought submissions from the parties on the question of the costs of the appeals to save the time, trouble and expense of them making those submissions at a later time.
Both the father and ICL sought costs in the event that the appeals were unsuccessful. Counsel for the ICL provided a costs notice that indicated that the ICL’s costs were $5,160 inclusive of GST.
The mother argued that if the appeals were unsuccessful, costs should not be awarded against her. She pointed out that she is in a difficult financial situation and has had financial support from friends in the community in order to afford, for example, the cost of transcript for the appeals.
The issue of costs on an appeal is governed by s 117(1) of the Act which provides that each party to proceedings under the Act bear his or her own costs, unless the court is of the opinion that the circumstances justify the making of a costs order (s 117(2)). In determining what order (if any) should be made under subsection (2), the court must have regard to the factors in s 117(2A).
It is not possible to make specific findings about the financial circumstances of the parties. Suffice to say, the father is in fulltime employment. However, he has rental expenses and meets the children’s expenses.
The mother lives in the family home and has a research position (it would seem in a voluntary capacity) and is otherwise engaged in her PhD research.
There is an issue about whether she removed a significant sum of money from the parties’ joint account and has assets overseas. These matters cannot be determined and it is appropriate to proceed on the basis that the father can ill-afford to incur unnecessary legal expenses and an order for costs will occasion immediate hardship for the mother.
But it is well settled that impecuniosity is no absolute barrier to an order for costs. The mother’s appeals have been wholly unsuccessful and there can be no doubt that the father has incurred expenses unnecessarily. It is appropriate that the mother pays his costs.
Section 117(5) requires that I disregard the fact that the ICL is funded under a Legal Aid scheme. I am satisfied that the costs of the ICL have been incurred unnecessarily and can be ill-afforded. It is appropriate that the mother pays the costs of the ICL in the amount sought.
I am conscious that this will occasion hardship, and raised the prospect with the parties that any order for costs be paid from the mother’s entitlement to property as determined in the property settlement proceedings. There being no opposition to that approach from the father and/or the ICL, I will so order.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 7 June 2017.
Associate:
Date: 7 June 2017
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