KNOX & KNOX
[2018] FamCAFC 73
•17 April 2018
FAMILY COURT OF AUSTRALIA
| KNOX & KNOX | [2018] FamCAFC 73 |
| FAMILY LAW – APPEAL –PARENTING – Where the parties observe different religious practice – Whether the mother’s influence on the children’s religious practice posed an unacceptable risk – Whether the primary judge erred by not making an order she agreed to make – Mother’s failure to mediate with the father – Whether the findings of the primary judge were open on the evidence – Whether the primary judge considered all the evidence in making findings – Conduct of the Independent Children’s Lawyer – Appeal dismissed. FAMILY LAW – APPEAL –EVIDENCE – Whether the primary judge erred by not treating evidence as expert evidence. FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the evidence would not have affected the outcome – Application dismissed. FAMILY LAW – APPEAL – COSTS – Costs sought by the Independent Children’s Lawyer – Application for costs dismissed. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 |
| B and R and the Separate Representative (1995) FLC 92-636; [1995] FamCA 104 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550; [2016] HCA 22 |
| APPELLANT: | Mr Knox |
| RESPONDENT: | Ms Knox |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 2336 | of | 2013 |
| APPEAL NUMBER: | SOA | 39 | of | 2016 |
| DATE DELIVERED: | 17 April 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ryan, Aldridge & Bennett JJ |
| HEARING DATE: | 4 October 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 April 2016 |
| LOWER COURT MNC: | [2016] FCCA 751 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dr Anna Parker |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
The application to adduce further evidence in the appeal be dismissed.
The appeal be dismissed.
There be no orders as to costs.
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 Knox & Knox has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 39 of 2016
File Number: MLC 2336 of 2013
| Mr Knox |
Appellant
And
| Ms Knox |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 6 July 2016, Mr Knox (“the father”) appeals all parenting orders made by Judge Jones on 6 April 2016. The respondent Ms Knox (“the mother”) did not participate in the appeal over and above making a statement before us, with the assistance of a P language interpreter, that the appeal be dismissed.
The parties have three children, C and D born in December 2002 (“the twins”), and E born in May 2008 (collectively, “the children”). The children were 12 and 7 years old at the time of trial which was conducted over six days in September, October and December 2015.
An Independent Children’s Lawyer (“ICL”) was appointed to represent the children’s interests. The ICL did not support the father’s appeal and sought that it be dismissed.
The orders provide for the children to live with the mother (Order 3), for the mother to have sole parental responsibility (Order 2) but for the father to be consulted and advised of the mother’s decisions (Orders 4 and 5). The children are to spend time with the father by agreement, or in the absence of agreement, each alternate weekend from Friday after school (or 3:30 pm if a non-school day) to Tuesday before school (or 9:00 am if a non-school day) and for the first half of each school holiday (Order 7). The father is permitted to attend all appointments and functions relating to the health and education of the children (Order 10). Further, the mother is restrained from waking the children between 8:00 pm and 7:30 am for the purpose of prayer (Order 13). A number of other ancillary and non-denigration orders were also made.
The father seeks that the orders be set aside and the hearing be remitted to a judge other than the primary judge. The father also seeks that prior to a rehearing a new ICL be appointed and two new expert witnesses be called, being a family consultant and an expert on Islam. He seeks that the parties be able to decide on the terms of the reports to be prepared by the expert witnesses and that the parties and the expert witnesses participate in a conference prior to the rehearing. He seeks that at the rehearing the parties be granted leave to adduce new evidence and file fresh trial affidavits and outlines of case documents and that they each be provided with a transcript of this appeal.
The father’s Amended Notice of Appeal also sets out the interim and final parenting orders he seeks in the event that his appeal is successful. Stated broadly, in the interim he proposes that the children’s time with the parties be shared equally and on a final basis that the children live primarily with him and have substantial and significant time with the mother. In his summary of argument, the father also seeks that the Court “issue an Order finding” the family consultant and the ICL “in contempt of Court, gross professional misconduct and negligence”.
The main issue at trial was the parties’ conflicting views about how their adherence to Islam should be observed. A dominant issue for the primary judge was the impact of this intractable dispute on the children, primarily around how the children should and wished to practice Islam, and how best to craft orders to insulate the children from this conflict in the future.
The father’s Amended Notice of Appeal lists 23 grounds of appeal. We are not satisfied that any of the grounds warrant appellate intervention, and as such, the appeal will be dismissed.
Background
In order to understand the primary judge’s reasons and the party’s submissions it is helpful to provide a brief history of the matter.
The parties were both born in Country N. In 1988 the father immigrated to Australia. The parties married in Country N in August 2000 and moved to Australia in 2002. They separated in January 2013.
The parties and their children are Australian citizens.
The father contended that both parties came from moderate or progressive Muslim families and raised their children as such until 2011. At this time, the mother began attending religious classes and now practices a more conservative, or, in the father’s words, an “oppressive” form of Islam and Sharia law. The primary judge accepted the father’s evidence that the manner in which the mother practiced her faith had changed as alleged, albeit it was not accepted that the mother practiced Sharia law.
It was common ground that the parties’ divergent practice of Islam led to their separation. This conflict extended, and at the time of trial continued to extend, to how their children should practice Islam. For example, in 2012 and 2013, from when the twins were nine, the mother purchased Hijabs for them to wear, and encouraged the twins to pray with her on multiple occasions each day. The father strongly objected to the twins practicing Islam in this manner, and said this was demonstrative of the mother’s “oppressive” religious practices.
It was the father’s case that the mother had forced the children into following her practice of Islam, and that the mother’s actions in doing so were tantamount to abuse. Since separation, the twins (and increasingly, their younger sister) had endured their parents’ conflict over the practice of religion and lived in two vastly different households. In their mother’s household they wore the Hijab, prayed throughout the day and wore loose clothing, whereas in their father’s household they were prohibited from wearing the Hijab and loose clothing and were permitted to pray once a day.
The evidence of the family consultant aligned with the view of the primary judge; that while the children were encouraged by the mother to pray and wear the Hijab at a young age and were told to keep this as a secret from the father, this now reflects their preference, and the twins in particular were anxious and distressed at what they perceived to be their father’s lack of support for them and their choices.
The mother alleged that she was the victim of family violence perpetrated by the father. On 30 January 2013, the mother obtained an interim Intervention Order against the father in which the children were also named as affected family members. As part of that application the mother alleged that the father had been physically and sexually violent towards her.
The mother also alleged that the father sexually abused the youngest daughter; however she abandoned this allegation and stated that it was made by her counsel without instructions from her. The primary judge found this unlikely, considering this allegation was also contained in the mother’s police report [181]. In August 2013, a final Intervention Order was made following a contested hearing, naming the mother as the only affected family member. That order expired in February 2015.
On 13 June 2013 the Federal Circuit Court made interim orders providing that the children live with the mother and spend time with the father each Saturday for two to three hours, with a mutual friend of the parties to be in substantial attendance. The mother was also restrained by injunction from waking the children from 8:00 pm to 7:30 am for the purpose of prayer. In the six month period from the date of separation until the date of the order mentioned above, the father had only spent time with the children for a total of six hours.
In August 2013, the parties and the children attended upon Ms T, the family consultant, for the purpose of her preparation of a Family Report which was released on 11 September 2013.
Further interim orders were made on 4 October 2013 following Ms T’s report. The further interim parenting order increased the father’s time with the children on a progressive basis, with overnight time to be introduced in November 2013. The orders provided that from 10 January 2014 the children were to spend alternate weekends with the father.
In April 2014, the parties and the children were again assessed by Ms T for the purpose of the preparation of a Family Report. That report was released on 26 May 2014. Further interim parenting orders were made on 2 June 2014 which further increased the father’s time with the children by introducing time with the father on a Wednesday night each alternate week.
In 2014, the father was charged with four counts of rape of the mother, one count of recklessly causing injury and one count of making a threat to kill during the relationship.
In November 2014, the mother made an application to extend the Intervention Order and to include the children as affected family members. At the hearing on 12 February 2015, the mother withdrew her application to include the children. The Magistrates’ Court granted an interim Intervention Order against the father naming only the mother as an affected family member.
At the County Court of Victoria in May 2015, the father faced a jury trial of the criminal charges mentioned above. He was found not guilty of one count of rape and making a threat to kill. The jury was unable to reach a verdict on the balance of the charges. In June 2015, the Director of Public Prosecutions filed a Notice of Discontinuance in relation to the remaining charges.
At the time of trial the mother’s position was that she wanted the father to have a relationship with the children; however she did not resile from her view that the father was a violent, controlling and oppressive man. The primary judge was satisfied that there were “no risks to the children from physical or psychological harm, or being subjected to, or exposed to, abuse, neglect or family violence” [123].
In August 2015, the parties and the children were again assessed by Ms T for the purpose of the preparation of a third Family Report which was released on 18 September 2015. The report emphasised the ongoing and worsening level of animosity, conflict and mistrust between the parties and their inability to change their view of the other to effectively co-parent the children.
The final hearing occurred before the primary judge in late 2015.
On 6 April 2016, the primary judge made final parenting orders and published her reasons. It is from these orders that the father appeals.
The Grounds of Appeal
The father’s 23 grounds of appeal can be conveniently grouped into five main categories, being:
·The primary judge’s reliance on the evidence of the family consultant, Ms T, whom the father complains has been unprofessional and negligent (grounds 3 – 9);
·The mother’s behaviour; characterised by the father as an inappropriate influence over the children’s religious practices (grounds 10 – 14, 18, 19 and 21);
·The father’s allegation that the mother provided false evidence to the court and breached court orders (grounds 15 and 16);
·The mother’s unwillingness to mediate with the father about the children (grounds 17, 20 and 22); and
·Other miscellaneous grounds, being that the primary judge agreed to make an order but failed to do so (ground 1), erred by rejecting Dr F’s evidence as expert in nature (ground 2) and that the ICL failed to protect the children (ground 23).
Before commencing our consideration of the father’s grounds of appeal, we note that in his summary of argument the father referred extensively to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”). This section provides to an aggrieved person a right of judicial review from an administrative decision made in breach of rules of natural justice, or with a failure to observe necessary procedures, in an excess of or without jurisdiction or which has been induced or affected by fraud or where there was no evidence justifying the making of the decision or the decision was contrary to law. The ADJR Act has no relevance to this case at first instance or in this appeal.
It must also be noted that this is an appeal against an exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
Application to adduce further evidence in the appeal
On 19 September 2017 the father filed an application in an appeal to adduce further evidence, being an affidavit. The affidavit relates to grounds 2 to 7 and 23. Annexed to the affidavit is a page of the Y School’s journal as well as photographs showing the twins wearing Hijabs whilst performing in a school music concert.
The father submitted that the photographs disprove the twins’ statement to the family consultant that the father made them remove their Hijabs before going into school to appear in the concert and demonstrates that the mother had coached the children to lie about that event to the family consultant.
Before us the father acknowledged that he had possession of the photographs depicting the girls wearing Hijabs at the concert when the relevant Family Report was published on 16 September 2015, but that he overlooked paragraph 40 of the report, which outlined the twins’ unhappiness in complying with the father’s request to remove the Hijab for the concert, and that he had been unable to find the photographs until after the trial concluded in December 2015. Having located these photographs, he seeks to rely on them in this appeal.
The authorities on the admissibility of fresh evidence are well settled. Pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”), the Full Court has the power to exercise a discretion to receive further evidence upon questions of fact, through an affidavit, oral examination or as otherwise provided for in Division 2 of Part XI of the Act. The circumstances, however, in which the discretion this Court has under s 93A(2) of the Act is appropriately exercised in favour of receiving evidence are constrained (CDJ v VAJ (1998) 197 CLR 172).
It was the mother’s case before the primary judge that the children wore their Hijabs at the school concert. That is, the fact that the girls wore their Hijabs during the school concert was a matter of common ground as opposed to being a factual dispute which required the primary judge to resolve. In other words, the photographs do no more than accord with the agreed facts. It follows that the twins did mislead the family consultant. However, the photographs could not establish whether they did so of their own accord, mistakenly or under their mother’s influence. If this was thought to be a relevant matter it was an issue for cross-examination at trial, which did not happen.
Further, we accept the submissions of the ICL that the admission of the evidence per se at the final hearing would not have affected the outcome of the case, and can be said to be irrelevant. For these reasons the father’s application to adduce further evidence in the appeal will be dismissed.
The “agreed” order (Ground 1)
In Ground 1 the father contends that the primary judge erred by not making an order that she said she would – that is, a parental responsibility order which would allow the father to raise the children according to his religious beliefs when the children are in his care. He claims that her Honour failed to do so, and did not explain the reasons for not making the order. The father relies on the following exchange between the primary judge and his counsel:
[COUNSEL FOR THE FATHER]: Well – well, your Honour, it would be not just in his house, but during his time which could involve in public – issues of being in public and what have you. Your Honour, we’ve discussed ‑ ‑ ‑
HER HONOUR: Well, I will put this way, when the children are in his care.
[COUNSEL FOR THE FATHER]: Yes, your Honour. And that – it’s just to avoid any confusion whether, your Honour, it’s part of the reasons or whether it’s an order. It’s something that, in my submission, needs to be mentioned in order to avoid the possibility of confusion. We talked about just a moment earlier that about suspending holiday – alternate weekend time during the holidays to avoid confusion. Likewise, it may be appropriate that this issue bears a clear understanding as to what is meant by sole parental responsibility in relation to religion and the impact that it has. Your Honour, can I now go into further submissions in relation to the evidence in the case.
HER HONOUR: Yes. Thank you.
(Transcript, 18 December 2015, page 494, lines 5 – 20)
The full context of the discussion between the primary judge and counsel for the father is clear from earlier parts of the transcript:
[COUNSEL FOR THE FATHER]: And, your Honour, in my submission there needs to be an order which spells out – and this is, again, part of the fallback position, that the practice of the religion in each home is such that the – no parent has a right of veto over the other one. No parent can dictate how the religious – religion instruction or practice of the children is administered in the household of the other parent.
HER HONOUR: I think that’s unnecessary because the – it’s well recognised that what the parties do in their day to day – the day to day care whilst the children are in their care is for the parties themselves. As I’ve said, the religion, as I understand it, the parties agree on – it’s Islam.
…
HER HONOUR: I do understand the father’s position that he believes it’s oppressive for the young girls as they grow up, but it seems to me it’s unnecessary to require that because – well, it’s – because even if the mother has sole parental responsibility in relation to religion, she doesn’t have – she cannot control what occurs in the father’s home because the religion itself is agreed.
[COUNSEL FOR THE FATHER]: Your Honour, so long as that is clear because we’re concerned
HER HONOUR: I think it’s pretty clear. I’m sure [counsel for the mother] will explain to his client.
[COUNSEL FOR THE FATHER]: Yes. The concern is, though my – up till now – [counsel for the mother] has just said it has happened for three years. But up till now, the mother has not had sole parental responsibility.
HER HONOUR: No.
[COUNSEL FOR THE FATHER]: And one of the issues about sole parental responsibility is the child’s religion.
HER HONOUR: Yes.
[COUNSEL FOR THE FATHER]: And it could cause confusion as to exactly what that means in terms of, “If this is a child’s religion, I am now telling you this child will be praying five times a day. This child will be wearing the Hijab and I’ve got the sole parental responsibility. That’s how this child is going to be raised.” And so, therefore
HER HONOUR: I really can’t see the mother being able to dictate to the father what he does in his home and he well understands, I’m pretty confident, that the religion is Islam and that the way it’s practiced is up to the parents in their homes. The issue that needs to be considered is how the children’s wishes are dealt with. But that’s a completely separate matter.
(Transcript, 18 December 2015, page 492 line 42 to page 493 line 43)
The father contends that because the primary judge failed to make an order which she said would be made he was denied procedural fairness. We do not agree. It is clear that while counsel for the father canvassed the need for an order which spelled out that each party could practice religion without a right of veto over the other, her Honour did not agree to the making of such an order. The essential premise of the asserted error is thus not made out. We also note that while Order 2 provides for the mother to have sole parental responsibility (with input from the father), this was qualified by Order 13, which placed a restraint on the mother waking the children between the hours of 8.00 pm to 7:30 am for the purposes of prayer, in line with a key concern of the father’s.
In discussion with us, the father confirmed that he was not contending that the primary judge ought to have excluded religion from matters for which the mother has sole parental responsibility. It seems that the father in fact sought to assert that the primary judge erred by failing to make an order which would require the children to observe their faith in a significantly different way between homes which is neither an application he made nor an order which would have been properly made in the circumstances of this case.
This ground does not succeed.
Evidence of Dr F (Ground 2)
Ground 2 relates to the evidence of Dr F, given via affidavit. Dr F was the father’s witness who deposed to matters related to the practice of Islam and Sharia law. The father submits that the primary judge was wrong to “disqualify” this evidence, a decision which, he claims, was made with no notice and therefore procedurally unfair.
Of Dr F’s evidence, the primary judge said:
19. Although the affidavit of [Dr F] was relied upon by the Father for the purpose of expert evidence, I have not treated the affidavit as expert evidence, as it does not comply with r.15.07 of the Federal Circuit Court Rules 2001, which provides that an expert witness should be guided by the Federal Court Practice Note (“Practice Note”) setting out directions for expert witnesses. There is no indication that [Dr F] has read the Practice Note, nor understood that he was not an advocate for the Father, but owed a duty to the Court. It is apparent from his opening in paragraph [1], in which he deposes that “I am the Expert Witness appearing from the Applicant husband’s side”, that he sees himself as an advocate for the Father.
The father frames this challenge as one of procedural fairness, his point being that the primary judge did not raise any concerns about this witness’ failure to comply with the rule referred to in the reasons for judgment. The father is correct that the primary judge did not raise this concern at trial and in this respect the approach adopted by the primary judge was unfair. But not every instance of unfairness amounts to appealable error, and for the challenge to be made good it was necessary for the father to establish that the unfairness had a material and adverse impact on his case. This he failed to do. This is because on a proper reading of the trial reasons it is apparent that notwithstanding her Honour’s approach to r 15.07 of the Federal Circuit Court Rules 2001 (Cth) discussed in her reasons for judgment the evidence given by Dr F was in fact admitted into evidence. Thus the worst that that can be said of the finding made in [19] of the trial reasons is that although the logical consequence of that finding is that the evidence of Dr F would not have been admitted, this did not occur. It follows that the finding did not materially affect the outcome and this aspect of the challenge has not been made out.
As would be expected, her Honour provided the other parties the opportunity to cross-examine Dr F. Both counsel for the mother and ICL declined to do so, a matter about which the father sought to complain to us. There was no basis for his complaint.
There is no merit in this ground.
Complaints about the family consultant (Grounds 3 – 9)
Grounds 3 to 9 relate to the father’s complaints about the family consultant, Ms T. In the father’s summary of argument he addressed ground 3 separately, grounds 4 to 7 together and grounds 8 and 9 together. We will adopt the same approach.
By ground 3 the father asserts all three family reports did not comply with Div 15.5.5 (specifically, rr 15.62(1)(c) and 15.62(2)) of the Family Law Rules 2004 (Cth) (“the Rules”) and as such the primary judge should not have admitted these reports as evidence and should have ordered a new trial. Further, her Honour’s inconsistent approach in admitting this evidence while disqualifying Dr F’s evidence resulted in procedural unfairness to the father.
The father’s challenge about the admission of Dr F’s evidence has already been addressed. The question to be answered thus relates to the father’s complaint about the asserted inconsistent application of the Rules cited above. His challenge is misconceived. The Rules relate to the form of expert reports required to be admitted, and, as per r 15.41, have no application to Family Reports. Further, as this matter was heard in the Federal Circuit Court, these particular rules, which were made by the judges of the Family Court of Australia, did not apply to the case at hand.
In relation to Grounds 4, 5, 6, and 7 the father contends that:
·The family consultant erred by not concluding that that the twins were forced by the mother to partake in religious activities (wearing a Hijab and praying);
·That the mother coached the twins into telling the family consultant that participating in these religious activities was their decision; and
·The mother and twins gave three different reasons as to why they wore the Hijab, and therefore their evidence should not be accepted.
The father also contends that the family consultant’s report was deficient because she failed to accept that the children had been influenced by the mother, that the mother had provided unilateral permission to allow the twins to engage in religious duties at school and evidence that the mother had denigrated the father to the children.
The father also challenges the family consultant’s opinion that the mother may not have reported family violence as it was customary for her to obey her husband and to expect him to act in a controlling and demanding way. In doing so, it was argued that the family consultant made an objective statement without any knowledge of Country N culture.
The father went on to make a number of other complaints about the family consultant, namely about things that she did not report, or conclusions that she made. He criticises her for reporting on what the mother told her about abuse she suffered at the hands of the father, including rape, and says that the mother’s statements to her were false and said she was biased and thus in breach of r 15.59 of the Rules (expert witness’s duty to the court) to give an objective and unbiased opinion, and be independent and impartial.
In essence, the father’s complaint is that the family consultant should have concluded that the children only wear the Hijab and participate in prayer because of the mother’s influence, and agreed with his views that the mother’s household was “oppressive”. However, a reading of the family reports show that the family consultant was alive to the above issues, particularly the father’s very strong views about the genesis and continuation of the children’s religious activities, and that his views were properly considered in the broader context of her interviews with the mother and the children.
In relation to this tranche of the evidence, while accepting that the mother made a unilateral decision to allow the twins to wear the Hijab and perform prayers with her in secret from the father [134], in relation to the father’s essential point that the mother subjected the children to an oppressive lifestyle, her Honour concluded:
146. There is no objective evidence that the children labour under an oppressive lifestyle. The undisputed evidence is that the children are happy, they attend secular schools, in which they thrive both academically and socially, and they engage in sporting activities. They also enjoy music, they play musical instruments and they go to parties of their peers from school. They mix with friends from different cultural backgrounds and, as far as I can see, they engage in all the activities which Australian children are entitled to benefit from.
Although these grounds tend to show that the father misunderstood the role of the family consultant, which is to apply his or her knowledge and experience to the facts as the family consultant understands them to be and to assist the court to determine what parenting arrangements are in the best interests of the children, for the challenge to be made good the father needed to establish that the primary judge erred in her treatment of this evidence. In our view her Honour’s findings at [146] were available to her and these objective facts about the extent of the children’s involvement in secular life provided a legitimate foundation for the conclusion that they are not oppressed by the mother. Or put differently, the primary judge had ample evidence that in the mother’s primary care the children were allowed to enjoy a lifestyle which inherently exposed them to a range of social influences, including the opportunity to observe and consider approaches to religious practice which differed from that embraced by the mother.
Turning now to grounds 8 and 9. The father contended that the primary judge failed to make a finding that the family consultant lied under oath about the existence of orders in relation to prayers and that the mother had not contravened these orders. He also contends that her Honour failed to provide reasons. These grounds can be dealt with swiftly. It was not a matter of contention that orders in relation to prayers existed, and the family consultant’s knowledge of them is irrelevant. Secondly, the primary judge was not required to make a finding about every contention put on behalf of the father nor to explain why no finding was made on matters which were of little consequence to the ultimate outcome.
Grounds 4 to 9 fail to make out error on behalf of the primary judge and must fail.
The mother’s behaviour towards the children (Grounds 10-14, 18, 19 and 21)
In his summary of argument, the father addresses grounds 11, 18 and 21 together, grounds 12 to 14 together and grounds 10 and 19 separately. The grounds relate to her Honour’s treatment of evidence about the mother’s behaviour and can be understood as follows:
· That her Honour erred by not considering all relevant facts and evidence and placed too much weight on the mother’s evidence in making a finding that the children are not inappropriately influenced by the mother (ground 10);
· That her Honour erred by not considering all the evidence and not making a finding that the mother attempted to remove the father from the children’s lives (ground 11);
· That her Honour erred in finding that the mother does not practice Sharia law, by not making a finding that the children do practice Sharia law and as to the harm caused by the mother’s unilateral decisions about the children’s religious practices (grounds 12 - 14);
· That her Honour should have found that the mother would not promote the children’s relationship with the father (ground 18);
· That her Honour erred by not considering all the evidence and making a finding that the mother subjected the children to abuse, family violence and neglect (ground 19); and
· That her Honour erred by not making a finding that the mother’s family violence and rape allegations against the father were false and vexatious, and how these allegations adversely impacted the father and the children (ground 21).
Grounds 11, 18 and 21 speak to the issue of parental alienation. The father asserts that he provided evidence, outlined in his trial affidavit, of 14 attempts by the mother to remove him from the children’s lives.
We reject the suggestion that her Honour did not appropriately consider these issues. Her Honour canvassed these issues at [13]:
The Father has two reasons for his proposed Orders. First, his conviction that the Mother has sought and will continue to seek to alienate the children from him. He bases this allegation on the fact that immediately after separation she unilaterally prevented him from seeing the children for a period of five months, and that at a hearing before the Magistrates’ Court on 26 March 2013, the Mother’s Barrister accused him of sexually abusing the children. These allegations were recanted by the Mother, who claimed that they were not the instructions she gave to the Barrister in question. He further argues that the Mother then sought to remove him from the children’s lives by making baseless accusations that he raped her, assaulted her and made threats to kill her. He argues the ultimate penalty for this would have been incarceration, which would have effectively destroyed any relationship with his children. He also argues that, as the Mother is well aware of the Father’s opposition to the imposition of her religious practices on the children, the Mother’s persistence with requiring, encouraging or facilitating the children’s practice of her fundamentalist religious practice (the Sharia faith of Islam) is designed to alienate or will have the effect of alienating the children from him.
After considering all the evidence however, the primary judge found:
186.… [T]here is no evidence before the Court that the children display the symptoms of alignment or alienation. I am satisfied that the evidence establishes that:
(a)the children are comfortable and happy about spending time with their Father, whilst remaining in their Mother’s primary care. The anxiety of the twins in their Father’s care relates to the wearing of the Hijab in public;
(b)there is no doubt that, at times, the children have mirrored complaints of the Mother to the Family Consultant over practical matters. These are not issues of substance, affecting their relationship with their Father; and
(c)the children love their Father and do not have a distorted image of him.
Ground 10 is an attack on [53] of her Honour’s reasons, which reads as follows:
Having considered the evidence, I am satisfied that the Mother did not coerce or force the twins, in particular, to wear their Hijab or to pray with her. I am satisfied that it is more than likely that her daughter’s, observing their Mother, their primary caregiver, wear the Hijab and perform prayers during the day, were initially curious and interested in joining in their Mother’s practices. I note here my satisfaction that the Mother did not coerce or force the twins into wearing the Hijab is supported by the observations of the Family Consultant in her Family Reports (see below). There is nothing arising from these Reports which would suggest that the twins are other than perfectly content, and indeed wish, to wear the Hijab.
There is no doubt that the father does not agree with her Honour’s findings above, or indeed, the observations of the family consultant. The father however, failed to establish how this finding was not available on the evidence and therefore an error of law, particularly in light of her Honour’s findings in the following paragraph:
54. I am also satisfied, however, that the Mother actively encouraged the twins, thereafter, to wear the Hijab and for the children to perform prayers along with her. I am further satisfied that the Mother, knowing the Father’s opposition to his twin daughters wearing the Hijab, brought the children into a secret, which was kept from the Father. This secrecy continued for, likely, around six months, until just prior to the parties’ separation.
Grounds 12 to 14 relate to the primary judge’s finding at [39] that the mother does not practice Sharia law:
I accept the Mother’s evidence, there being no contraindication, that she does not practice Sharia law. I accept her evidence, that the religious practice of Islam she follows derives from the Qur’an and the teachings of Muhammad.
The father cited a number of religious texts and teachings about why her Honour’s conclusion about whether the mother practiced Sharia law was erroneous, including the evidence of Dr F. The second aspect of this challenge is the father’s view about the risk of harm to the children as a consequence of the mother’s unilateral decisions and influence over the children on the question of religious practice. Reference need only be made to her Honour’s reasons at [30] to demonstrate that she was fully aware of this aspect of the father’s case:
30.The Father’s concerns arise from his strong belief, which he has consistently held, that the Mother practices Sharia law and imposes her fundamentalist practice of the Islam religion on their daughters. He argues that this is oppressive, and consequently not in the children’s best interests, as they will be prevented from integrating into the Australian community, as well as participating in educational opportunities, extracurricular activities, and engaging in age appropriate lifestyle.
After considering the evidence, her Honour came to a different view:
189. … [T]here is no objective evidence that the fact the children follow the religious practices in their Mother’s household is having deleterious effects on them psychologically or intellectually. As I have noted earlier, the objective evidence is that they are happy children, who are thriving academically and in their social interactions at school.
It is clear that the evidence and submissions before the primary judge were vastly divergent on the question of religion. The issue was canvassed extensively by both parties, particularly by counsel for the father. The mother was cross-examined by counsel for the father about her religious views and the basis for them, as outlined in the trial reasons under the hearing “The Question of Religion” [29] – [54].
That the primary judge preferred the evidence of the mother on these questions does not amount to appealable error; error does not flow merely because other findings or conclusions were available or may have been made by a different judge. As was explained in Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 (“Robinson Helicopter”) at [43], citing Fox v Percy (2003) 214 CLR 118:
… [A] court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or “contrary to compelling inferences”.
(Citations omitted)
The father has failed to establish that the findings and conclusions of the primary judge as to the mother’s practice of Sharia law were not open to her on the evidence as per the approach required by Robinson Helicopter. There is no merit in these grounds.
The final ground in this tranche is ground 19, that her Honour failed to make a finding that the mother subjected the children to abuse, family violence and neglect. These allegations were contained in the father’s trial affidavit. We repeat our point that the reasons demonstrate that her Honour was fully cognisant of each parties’ case and considered all the evidence, and that there was no error merely because she did not make the findings that the father wished her to make.
This subset of the father’s grounds of appeal does not constitute error and grounds 10, 11, 12, 13, 14, 18, 19 and 21 have not been made out.
The father’s allegations that the mother gave false evidence and breached court orders (Grounds 15 and 16)
Grounds 15 and 16 relate to the mother’s conduct. These grounds criticise her Honour for not making a finding that the mother admitted to telling a lie to the court and gave false evidence, such that a finding that the mother committed perjury (ground 15) and contravened court orders should have been made (ground 16).
The specific “lie” the father refers to relates to the mother’s affidavit evidence that she wore a Hijab at her wedding. At the hearing, it was the mother’s case that she wore the Hijab in Country N, but that when she came to Australia she did not wear the Hijab as the father did not allow it. In re-examination, counsel for the father tendered a number of photographs which showed the mother in both Australia and Country N at various times throughout the parties’ relationship without a Hijab, including from the parties’ wedding. During the tender counsel for the mother and her Honour had the following exchange:
HER HONOUR: Well, I’m sorry, but I got the impression that the mother’s – what was being put to the father was that she was – she did wear a Hijab in [Country N] and she was religious.
[COUNSEL FOR THE MOTHER]: That’s right. Well, she was wearing the Hijab in [Country N] and then when she came to Australia the husband stopped her wearing it. That’s the case.
...
HER HONOUR: That’s what – yes, but, [counsel for the mother], if you want to run an argument that a woman who is religious can switch from not wearing her Hijab and then, during a wedding ceremony, Nika and Elena, but somehow does wear a Hijab the rest of time, the mother’s evidence is simply not there.
[COUNSEL FOR THE MOTHER]: Well, then, I will put that …
HER HONOUR: She has not produced one scintilla of evidence about that, except what she says in her affidavit material.
[COUNSEL FOR THE MOTHER]: She will depose to. Anyway, I won’t press that, your Honour.
HER HONOUR: And so it’s a question of her credibility versus the husband.
[COUNSEL FOR THE MOTHER]: Your Honour, on the issue of credibility on that particular issue, yes, that’s right…
(Transcript, 29 September 2015, p 168, lines 11 – 16 and p 169, lines 22 – 37)
The mother’s ultimate position was that the photographs on which the husband relied were taken in private places or in the homes of relatives, where she was not required to wear the Hijab, and the photographs of her wearing western clothing was a result of the father coercing her to wear these clothes against her wishes. Of the photographs themselves, in her reasons the primary judge said: “I found these exhibits to be of little assistance to the determination of the matters in dispute” [40].
On the issue of the disputed history of the parties’ religious practice, her Honour said at [41]:
In my view, it is more probable than not that the Father and Mother’s families adopted similar practices of the religion. In other words, I do not accept the Mother’s evidence that her religious practice today reflected those she adopted in her youth and practices immediately before the marriage to the Father”.
From the above it can be seen that while her Honour did not make a specific finding about the mother’s honesty, the father’s evidence on this matter was preferred. But the more pressing point is that her Honour found the matter to be of little import in determining the parenting orders she was tasked with making in the best interests of the children. In other words, if a finding had been made along the lines pressed by the father it would not have changed the outcome.
In regards to ground 16, in his written submissions the father referenced paragraphs 380 – 476 of his trial affidavit as evidence that the mother had contravened court orders. These paragraphs canvass a number of issues such as the mother’s failure to consult with the father and allow him to exercise parental responsibility (in line with interim orders for equal shared parental responsibility made on 13 June 2013), the mother’s allegations that the father sexually assaulted the youngest child, the children’s practice of religion and their home environment with the mother, their long-term medical needs (including that the mother unilaterally obtained a referral for a mental health plan), their education and the mother’s failure to encourage the children to contact him. The father did not expand in his submissions about contravention.
As we understood it, the gravamen of this challenge concerned the mother’s unilateral decision making and failure to consult with him in breach of interim orders for equal shared parental responsibility. It is clear that the issue of the parties’ failure to parent co-operatively was a key factor in her Honour making an order for sole parental responsibility in favour of the mother:
194. There is no dispute that the capacity of the parents to communicate is non-existent and that the level of conflict remains high. I am satisfied on the evidence before me, that these parents, sadly, have no capacity to communicate or, indeed, to resolve the high level of conflict. Despite the Family Consultant’s Reports exhorting the parents to attempt to improve their communication and to take steps to reduce the level of conflict, in the best interests of the children, the Father and the Mother have taken no steps at all to improve their communication and/or reduce the level of conflict between them. Over the period of this litigation, they have not changed their views of each other. They do not trust each other at all. The Mother holds firmly to her view that the Father is a dangerous, angry man and the Father holds firmly to his view that the Mother’s conduct has been the source of all the difficulties the children have experienced and will continue to experience. Neither parent has taken even the smallest step to accept some responsibility.
195. I am satisfied that the proposed parenting arrangements of an Order for equal shared parental responsibility will simply exacerbate the conflict between the parents, which is ultimately not in the best interests of the children.
196. Consequently, I will make an Order that the Mother have sole parental responsibility for the children. However, the Orders will require the Mother to advise the Father of her proposal and invite his response, to consider any response he makes and then notify the Father of her decision.
It is clear that a finding that the mother had in fact breached the orders as sought by the father would only serve to underscore the already well made point about the high level of conflict and mistrust between the parties.
The father has failed to establish error in these grounds.
The mother’s unwillingness to attend mediation and negotiate with the father (Grounds 17, 20 and 22)
By these grounds the father states that her Honour erred by:
·Failing to consider all offers of mediation and compromise made by the father, which should have led to a finding that the mother was unreasonable in not negotiating and finding common ground with him (ground 17);
·Failing to consider and make a finding that the father promoted the children’s relationship with the mother (ground 20); and
·Not acknowledging the father’s efforts to rebuild his relationship with the children, despite the mother’s attempts to remove him from their lives (ground 22).
We have addressed ground 20 in our discussion about alienation above. The balance of these grounds can be dealt with briefly. The primary judge’s reasons are replete with references to parental conflict and the deleterious impact on the children of a continuation of the parental conflict. For example, at [96] her Honour records the evidence of the family consultant that from a time prior to separation the parties have failed to co-parent and agree on many issues, the main being religion, but also on more mundane matters such as swimming lessons, and that the mother had no capacity to negotiate with the father due to her view that the father was “controlling, intimidating and dominating”. This point was reinforced at [105] where the primary judge said that the parties remained highly critical of each other, self-absorbed in their complaints about the other and that they each displayed little insight into the adverse impact of their conduct on the children.
There can be no doubt that the primary judge was alive to the parties’ entrenched conflict and their lack of cooperation.
The key difficulty with these grounds, however, is that the father did not demonstrate how, in all the circumstances of this case, a failure by the primary judge to make findings about the mother’s lack of preparedness to mediate or acknowledge the father’s efforts to rebuild his relationship with his children could have any bearing on the primary judge’s assessment of the best interests of the children. Indeed it is appropriate to observe that the argument as made to us and the evidence upon which the father relied tended to indicate that the primary judge may well have found that unless the mother was willing to concede to the father’s stance on these matters, mediation and the like would be an exercise in futility.
There is no merit in these grounds.
The conduct of the ICL (Ground 23)
By this ground the father contends that her Honour erred by not making a finding that the ICL failed to protect the children from “ongoing harm, abuse and family violence perpetrated by the Mother”.
In the father’s written submissions his complaints against the ICL broadened to include a failure to comply with procedural orders of 4 October 2013 that the ICL file and serve an affidavit setting out their evidence in chief and a case outline document. Such a failure is said by the father to be procedurally unfair and a breach of natural justice.
Further, the father states that the ICL failed in their duty in respect of the following:
·Failing to have the reports of the family consultant corrected, and not filing an application with the Court to have the reports corrected or disqualified;
·Failing to notify the Court of critical evidence referred to in grounds 9 – 20 and 22 of this appeal;
·Not being impartial and truly independent of the Court and the parties of the proceedings; and
·Acting in a manner inconsistent with the obligations of an ICL.
In regards to the ICL’s failure to comply with the procedural orders of 4 October 2013, the complaint is misconceived. As was submitted by the ICL, those orders pertained to a hearing listed for 2 June 2014 which did not proceed. Further, we agree with the ICL that they were not required to serve an affidavit of his evidence in chief, indeed it would have been inappropriate for the ICL to be a witness in these proceedings.
Further, it is not the role of an ICL to seek to change the family consultant’s evidence as to opinion or the facts upon which the opinion is rendered. As to the evidence of family consultant contained in a report, the role of the ICL is as set out in s 68LA(5)(c) of the Act: namely to analyse the report and to ensure that the matters most significant to the welfare of the children are brought to the attention of the court. This was done.
It was conceded by the ICL that they failed to file a case outline document. While regrettable, this did not prejudice the father, who was represented and whose counsel did not object when the matter was discussed on the first day of the hearing. We agree with the ICL that they are not required to disclose a view to the Court at the commencement of proceedings, and therefore there was no denial of procedural fairness (B and R and the Separate Representative (1995) FLC 92-636).
In respect of the father’s complaint about the primary judge’s failure to make the finding referred to in the ground, the ICL correctly submits that the primary judge was not asked to make such a finding. On an issue such as this a judge cannot be criticised for not doing something that they were not asked to do.
For the reasons set out above, this ground fails.
Conclusion
The father has failed to establish error and the appeal will be dismissed.
As is customary, following the hearing we sought submissions from the parties in relation to costs in the appeal. In the event the appeal was dismissed, the ICL sought an order for costs against the father.
The issue of costs of 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, if any order should be made for costs, the Court must have regard to the factors in s 117(2A).
In regards to a costs application by an ICL, s 117(4)(b) must also be considered. By that provision the court must not make an order in favour of an ICL if the court considers that making such an order would result in financial hardship to the affected party.
The father submitted that he had no assets and his only income is from a government assistance program, from which he receives $325 per week. In those circumstances, the ICL rightly did not press the application for costs. That application will therefore be dismissed.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 17 April 2018.
Associate:
Date: 17 April 2018
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