Kroger and Yates and Anor
[2017] FamCAFC 66
•13 April 2017
FAMILY COURT OF AUSTRALIA
| KROGER & YATES AND ANOR | [2017] FamCAFC 66 |
| FAMILY LAW – APPEAL – CHILDREN – Weight – Adequacy of reasons – Exercise of the primary judge’s discretion – No appealable error demonstrated – Appeal dismissed – Appellant father to pay the respondent mother’s and the Independent Children’s Lawyer’s costs of the appeal. |
| Family Law Act 1975 (Cth) ss 11F, 60CC, 61DA, 62G, 65D, 65DAB, 68B, 69ZX, 117 Bennett and Bennett (1991) FLC 92-191 |
| APPELLANT: | Mr Kroger |
| RESPONDENT: | Ms Yates |
| INDEPENDENT CHILDREN’S LAWYER: | Krstina Wooi Lawyer |
| FILE NUMBER: | NCC | 2484 | of | 2012 |
| APPEAL NUMBER: | EA | 10 | of | 2016 |
| DATE DELIVERED: | 13 April 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Cronin JJ |
| HEARING DATE: | 25 October 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 December 2015 |
| LOWER COURT MNC: | [2015] FCCA 3492 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hanlon |
| SOLICITOR FOR THE APPELLANT: | Jenman Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mrs Kearney |
| SOLICITOR FOR THE RESPONDENT: | Peter Hamilton & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Graham |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Krstina Wooi Lawyer |
Orders
The appeal be dismissed.
The appellant father pay the respondent mother’s costs of the appeal as agreed and failing agreement as assessed.
The father pay the costs of the Independent Children’s Lawyer fixed in the sum of $4,560 to be paid within three months.
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 Kroger & Yates 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 SYDNEY |
Appeal Number: EA 10 of 2016
File Number: NCC 2484 of 2012
| Mr Kroger |
Appellant
And
| Ms Yates |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By a Notice of Appeal filed on 12 February 2016 Mr Kroger (“the father”) appeals final parenting orders, made on 9 December 2015 by Judge Terry of the Federal Circuit Court of Australia, concerning his two children B and C (“the children”). At the time of the trial, the children were aged 15 years and 11 years respectively.
The orders provided for the children to live with Ms Yates (“the mother”). The father was excluded from spending any time with the children but was permitted to send cards and gifts to them at Christmas and on their birthdays.
By his appeal, the father contends that rather than determining the nature of his relationship with the children based on his previous involvement in their lives, her Honour focused on his mental health status, as well as on the complaints about him by the mother. He complains that her Honour erred in not seeking evidence in the form of a comprehensive family report, which he maintained should have included an assessment of his mental health. The father challenges a number of other matters which are addressed below under the description of his grounds of appeal.
The mother opposes the appeal, as does the Independent Children’s Lawyer (“ICL”).
Background
The relevant background facts are:
·The father is aged 52 years and is currently a disability pensioner;
·The mother is aged 49 years and occupied in the care of the children;
·The parties married in 1996, separated in 2008 and divorced in 2013;
·After separation, the children remained with the mother but spent time with the father;
·In 2010, the father was diagnosed with what is now referred to as autism spectrum disorder;
·In December 2011, the father underwent surgery on his skull to alleviate some bleeding in his brain; further surgery associated with that occurred in June 2012;
·The mother commenced parenting proceedings in September 2012 and at an interim hearing in June 2013, consent orders were made which provided for the father to have supervised time with the children at a contact centre;
·In March 2014, the father was diagnosed with leukaemia and admitted to hospital. Contact between the father and children ceased;
·In September 2014, the mother filed an amended application seeking final orders that the father spend no time with the children;
·In February 2015, the parties and the children attended upon a family consultant who prepared a child and adolescent issues assessment report which was provided to the court and the parties;
·On 21 May 2015 with the parenting issues unresolved, the trial date of December 2015 was fixed;
·On 13 November 2015, the mother filed a further Amended Initiating Application for final orders; and
·On 7 December 2015, the final hearing proceeded over 2 days.
When the trial began, the father did not have legal representation and had not complied with directions for the filing of a response setting out what orders he was seeking, nor had he provided any affidavit evidence. Notwithstanding that, and without explanation for his non-compliance, he sought, and was given permission, to file a response and a brief affidavit, both of which were handwritten. His response sought:
1.That the children have initial supervised time with their father. Leading into access every second weekend, and 1 week of each of the school holidays.
2.That the father has phone access to the children, once a week.
3.That the children need the father’s consent to obtain passports, and travel overseas.
(As per the original)
His accompanying affidavit was brief and contained two paragraphs that had some relevance to the issue in dispute, which said follows:
6.I say that I was an active and involved father. I assisted with homework, and attended school presentations. I taught [C] how to swim, and both the children how to ride a bike. I was also the assistant coach of [B’s] rugby team for 2 years!
7.Unfortunately since separation I have lost the meaningful and loving relationship that I once held with the children. This was mainly due to my contact with the children being ad-hoc, and sporadic.
(As per the original)
The father’s supervised time with the children after the June 2013 orders continued until May 2014 when he had become seriously ill. However, it was not just his illness that brought the time to an end; the contact centre had also declined to be involved. By the time of the trial, the father had not seen the children for almost a year. Importantly, the children were by then expressing the view that they did not want to see him at all.
At trial, the mother sought the following orders:
·That all previous orders be discharged;
·That she have sole parental responsibility for the children;
·That the children live with her and spend no time with the father;
·That under the Australian Passports Act 2005 (Cth), that she be able to obtain a passport for the children without the father’s consent; and
·That under s 68B of the Act, an order that the father be restrained by injunction from communicating with her.
The ICL supported the mother’s position.
Grounds of appeal
The father’s Notice of Appeal contained 17 “grounds”, many of which could more accurately be described as assertions. Counsel for the father approached the appeal on the basis of four groups of grounds. We propose to follow a similar pathway. Grounds 11, 12 and 14 were abandoned.
The lack of expert evidence (Grounds 8, 9 and 10)
Grounds 8, 9 and 10 were grouped together. The grounds are:
8.That the Learned Trial Judge erred by giving too much weight to the evidence of the Family Consultant who prepared the Child Inclusive Conference Memorandum to the Court.
9.That the Learned Trial Judge erred in failing to order the preparation of a Chapter 15 Expert Psychiatric Report relating to the father’s psychiatric status.
10.That the Learned Trial Judge erred in failing to order the preparation of a Family Report.
(As per the original)
In essence, by these grounds the father submitted that the primary judge placed too much weight upon the family consultant’s memorandum obtained on 27 February 2015 and that it did not provide an adequate foundation for her Honour’s decision. It was further submitted that the primary judge should have followed the family consultant’s recommendations and obtained a family report and a psychiatric report on the father’s mental condition, and that in the absence of these reports the evidence before the primary judge was not sufficient for her Honour to make the orders that she made.
Before turning to these precise complaints, it is important to observe that counsel’s written outline of argument began by recognising that this is an appeal from a discretionary decision (House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513). The father faces the significant difficulty that he must identify some error in the primary judge’s exercise of discretion. He needs to point to the judge having acted upon wrong principle; or having been guided by irrelevant matters; or having made mistakes as to facts; or failing to take into account something that is relevant. An appellant who seeks to challenge such a judgment on the basis of the weight given to various factors faces a high bar.
Weight given to the evidence of the family consultant
Prior to trial, the primary judge made an order under s 11F of the Family Law Act 1975 (Cth) (“the Act”) for the parties to attend a child inclusive child dispute conference with a family consultant. Following the conference, the family consultant produced a Child Inclusive Conference Memorandum.
The memorandum had been undertaken for a limited purpose, described by the family consultant in cross-examination as follows:
It is certainly a limited intervention, focused on what is happening for the children, so speaking with the children and trying to assist parents to better focus on the needs of the children in the dispute.
Despite the limited scope of the memorandum, the family consultant considered it necessary to express the view that the children spend no time with the father until further assessment and a final hearing.
The family consultant reported that there was no communication between the parents and because of the father’s “interacting style” it was appropriate that there be none. She thought it appropriate to say that the father had to recognise that it was not in the best interests of the children for him to continue to contact the mother or the children without a court order.
The primary judge considered that, in the circumstances of the proceeding before her, the 11F memorandum alone provided sufficient evidence to proceed to trial:
20.The 11F memorandum is comprehensive and thorough, and as will become apparent during these reasons the concerns the Family Consultant raised about the father as a result of her interaction with him on the day of the interviews and the issues the children spoke of are consistent with concerns raised in other documents tendered during the hearing.
21.I am satisfied that it was appropriate to proceed to trial with only the 11F memorandum. It would have been hard on the children and the mother if they had been required to attend a further interview so that a Family Report could be prepared.
In order to understand the father’s submissions as to the weight the primary judge gave to the evidence of the family consultant, it is necessary to understand how her Honour relied upon the family consultant’s s 11F memorandum. Her Honour relied on the memorandum in two key ways.
First, her Honour accepted the family consultant’s evidence about the children’s views.
Her Honour considered the currency of the views of the children and said:
62.The 11F memorandum was prepared 10 months ago but I have no reason to suppose that the children’s views have changed since then. The mother said that they hadn’t and in my view the evidence in the case makes it very unlikely that the children’s views would have changed.
In short, the elder child had told the family consultant that he wanted nothing to do with his father. The family consultant reported that the elder child was exhausted by the actions of his father and did not want to spend any time or communicate with him. Reference was made to various text messages that the father had sent which the elder child found very disturbing. He found not spending time with his father a relief and that things were worse when his father was in his life. Until March 2014, when there had been supervised time at a contact centre, the elder child said that his father would talk about his mother until the supervisor put him “back on track” and that his father tried to get information out of him about what was happening at home. The family consultant reported that the elder child wanted the judge to know:
I just don’t want anything to do with the whole thing, this Court case, the whole thing. It is nothing to do with me … I just don’t want to be dragged into his [the father’s] crap… It’s his life and he just tells people crap. He keeps going with it as long as he can. It can burn you out and I want nothing to do with it.
The family consultant observed that the younger child was distressed throughout the interview. She was said to be mourning the loss of the ability to have a “normal” relationship with her father. The family consultant thought that it was not the loss of time that the child missed but rather the notion that she could have a father figure who was interested in her and who could focus on her needs. The younger child was equivocal, however, because she said that she would like to see her father but, at the same time, would not. The younger child told the family consultant that she would like to see her father in limited circumstances in the presence of someone else. The primary judge recorded the family consultant’s opinion as being that what “[the younger child] was wanting was a normal relationship with a father and that she was grieving over not being able to have such a relationship rather than grieving over not being able to see the father” (at [61]).
Secondly, the primary judge accepted the family consultant’s evidence as to the father being difficult to deal with (at [68]-[75]). However, that evidence did not stand alone; it was corroborated by other evidence, to which the primary judge also referred:
77.The psychologist said that it was difficult to obtain information from the father because he was very focused on the past and provided over-inclusive information when answering questions. He was difficult to interrupt and keep on track and the session went for over an hour because despite the father being late it was difficult to end the session and he was not aware of social cues that the session was over.
78.The father is difficult to deal with because of his mental health issues. He was diagnosed with Asperger’s [now referred to as autism spectrum disorder] in 2010. In a letter dated 25 October 2010 a psychologist said:
[The father] was also assessed for Asperger’s disorder and I believe that [the father] displays very strong Asperger’s traits that impact on his emotional and social relationships.
79.The letter also refers to the father suffering high levels of depression and stress.
80.In a letter dated 25 November 2014, Dr [D], a clinical psychologist said that the father had autism spectrum disorder and co-morbid mood disturbances, specifically his anxiety and depression and said that he was suffering from:
Major depressive disorder, autism spectrum disorder, generalised anxiety disorder and social pragmatic communication disorder.
81.Dr [D] referred to the challenges posed by the father’s condition. She said:
Such challenges include executive functioning deficits, impulsive behaviour and intrusive ruminating thoughts which severely impair his functioning and wellbeing.
82.In summary there is abundant evidence that the father, to put it in very broad general terms, can be very difficult to deal with. The children are 11 and 15 and they have found him difficult to deal with. I accept the evidence about that in the 11F memorandum.
(Emphasis as per the original) (Footnotes omitted)
The father agreed to the primary judge reading those documents. He did not dispute their accuracy and the approach her Honour took in admitting them into evidence is not challenged on appeal.
In his summary of argument, the father asserted that the primary judge made the following errors in her analysis of the family consultant’s evidence about the father:
21.Within the Reasons for Judgment, Her Honour has provided no comment and has provided no explanation for failing to follow the recommendations of [the family consultant] in the said Child Inclusive Conference Memorandum…
22.All that was available to the Court were the reports of Dr [D] to Dr [E]. Neither … could be classified as an assessing Psychiatrist of the Father for the purpose of determining his mental health for the purpose of the Final Hearing.
23.A consequence of the failure to obtain a Family Report as recommended by [the family consultant] … meant that there was no detailed or appropriately detailed evaluation of each of the parties relationship with the children and/or the children’s relationship with each of the Father and the Mother available for the Final Hearing.
(As per the original)
The oral submissions were that the memorandum was prepared without information that could have been drawn from subpoenaed material. It was further submitted that the memorandum had been prepared for a limited purpose and that where the father was unrepresented and the proposed order would preclude him from having any role in the children’s life, the report was not “comprehensive and thorough” enough. The father submitted that since the primary judge accepted that the father was suffering mental health issues (described by his counsel as “depression and Asperger’s”), her Honour should have sought expert evidence as to how, if that was treated, things for the children might change.
Whilst it is true that the memorandum was a preliminary document and was not based on the fuller investigations and documents on which a family report might be based, we do not see that this meant this particular evidence should have been given little weight. This is particularly true if the views of the children were obtained in an unremarkable but thorough manner. The submission that there was a want of proper exploration of their views or the genesis of them is not supported by the evidence, as the following cross‑examination of the family consultant by the father establishes:
[THE FATHER]: Do you think the – well, I gather ….. do you believe the report is very limited because of the environment? Do you think that - because of the environment that the children have been subjected to, and myself, and all parties, it has just become very stressful and therefore it’s not reflective of a loving, caring family environment?
[FAMILY CONSULTANT:] I believe that it was comprehensive as it relates to the children’s views and their expressed views. I certainly spent quite a bit of time talking with them about that. In terms of looking at the broader circumstances, which I think you touched on earlier, in terms of the adversarial process and what had led to that and that they may be – there is certainly a complex matter, then yes, I think it is limited. And I didn’t have all of the information available. I didn’t look at any of the subpoenaed material.
[THE FATHER:] Wouldn’t you admit yourself there’s duress involved here, the children are being brought in to these circumstances?
[FAMILY CONSULTANT:] I don’t concede that, no.
In any event, the primary judge considered that the children’s views still had currency and were not formed as a result of the mother’s influence:
62.The 11F memorandum was prepared 10 months ago but I have no reason to suppose that the children’s views have changed since then. The mother said that they hadn’t and in my view the evidence in the case makes it very unlikely that the children’s views would have changed.
…
73.I am satisfied that the children have had numerous difficult experiences with their father over the course of their lives and that while they are aware of the mother’s views, their views about spending time with the father are the result of their own lived experiences and not the result of the mother putting things in their heads.
In this respect the present appeal is materially different from Maldera & Orbel (2014) FLC 93-602, for example, in which the primary judge’s reliance on a s 11F memorandum alone was considered to be unsafe.
The primary judge carefully considered the evidence of the family consultant and determined that she could rely on the s 11F memorandum. This was a course that was entirely open to her.
The primary judge’s findings as to the father’s mental condition were based on notes and letters from a psychologist as well as the consultant’s evidence.
Finally, the father’s submissions did not identify what evidence adduced by him should have been given greater weight. No doubt this is because there was a dearth of such evidence.
We are not satisfied that her Honour erred in giving too much weight to the memorandum.
Failure to order a family report and a psychiatric report
The second issue concerns the father’s complaint that her Honour did not seek a comprehensive family report and a report about his mental health.
The family consultant “strongly suggested” that there be an expert report in relation to the father’s psychiatric status. This report would then be given to a family consultant to assist with the preparation of family report for use at a final hearing. It is common ground that neither the psychiatric report nor the family report was obtained.
It should first be emphasised that decisions to order family reports and psychiatric reports are discretionary (see s 62G and s 69ZX(1)(d) of the Act respectively). As such, any challenge to the primary judge’s refusal to make an order for further evidence of this type faces a high bar.
We have already set out the primary judge’s reasons for not seeking a family report at [19] and [22] above. The father’s submission was that in making these findings, her Honour erred because a family report would have been useful in a case where one of the outcomes in consideration was the children spending no time with the father.
Her Honour’s reasons implicitly accept that this was so but that the other considerations noted by her outweighed it. The primary judge took into account the comprehensiveness of the memorandum and that the concerns of the family consultant were mirrored in the documents before the court. The primary judge was also concerned about the adverse effects that a further interview would have on the mother and on the children.
It was not suggested that these were irrelevant considerations or that her Honour took into account irrelevant matters. We are satisfied that the decision was open on the evidence. There was, therefore, no error in the exercise of the discretion as to whether to obtain a family report.
We turn to the issue of whether reports should have been obtained as to the mental condition of the father.
The first point is that the father never asked the court to make orders for the appointment of a psychiatrist to assess his mental condition or for the preparation of a family report. He did not himself obtain a report as to his mental condition. As we have identified, his evidence was limited to a few brief paragraphs.
Indeed, her Honour had good reason to not make an order for a psychiatric report about the father’s mental health.
First, her Honour had the evidence of the family consultant that expediting a conclusion for the sake of the children was necessary and that all of the evidence pointed towards the children being resistant to any form of communication.
Secondly, her Honour expressed concerns about the impact on the mother of any order for the children to spend time with the father:
85.I am satisfied that there could well be a negative impact on the mother’s parenting capacity if I made orders for the children to spend time with the father and she was forced to keep dealing with issues of complying with the orders, dealing with the children’s feelings about being made to comply with the orders and even potentially dealing with the father.
86.The mother obtained a mental health care plan earlier this year. She has had counselling in the past. There is some fragility about her mental health and both of the children when talking to the Family Consultant referred to the impact on the mother of trying to cope with the father.
87.[The elder child] said that he was aware that the mother had struggled to cope with the situation and that it just drained her a lot. [The younger child] talked about the mother crying. The children recognise that the situation has had an impact on the mother.
88.I cannot afford to place the mother in a stressful and difficult situation. She is the children’s primary carer. She is the only person capable of providing for them on a day-to-day basis. It would not be acceptable for this Court to make orders that might cause the mother to become stressed and anxious.
But, thirdly, the father has had significant involvement with health professionals, all of whom he could have called upon to give assistance to the court. The father told her Honour that he had been diagnosed with Asperger’s Syndrome and had suffered from a cerebral haemorrhage and leukaemia, but otherwise seemed to think that any problems were due to his verbosity and communication.
The father had sought assistance from professionals, including for his leukaemia. He told her Honour that he was to have “the test to get my mental healthcare programme”. When he attended the family consultant appointment in February 2015, he was accompanied by his “advocate” whom the family consultant acknowledged had assisted the father. Thus, there were a number of people who could have provided evidence about whether, if at all, any treatment would make a difference to the problem about which the children and indeed others, were complaining.
After explaining the court process to the father, her Honour inquired whether he had any witnesses. His response was:
I haven’t chosen to do so, your Honour. I do have witnesses, but just with other time obligations, and obviously distal reasons, and – they’re – it’s a bit of a juggling act.
Her Honour again inquired whether he was calling anyone and he merely replied, “No”.
The decision not to proceed to seek a psychiatric report about the father was well justified, having regard to the oral evidence of the family consultant. Her Honour decided, as she was so entitled, not to pursue such expert opinion and advice. That is not to say that the father could not have pursued and provided that evidence, but he did not. Although unrepresented at trial, that was not the case in February 2015. Many months had gone by after the completion of the family consultant’s report and no evidence was provided by the father. It was conceded by counsel on the appeal that the father had been represented at the time of the family consultant’s interviews; that is, at a point where the matter was proceeding to trial.
There is no merit in grounds 8, 9 and 10.
Weight challenges (Grounds 1, 2, 3, 4, 5, 6 and 7)
In essence, these grounds, again without particularisation, assert that the primary judge erred by failing to give weight (or any sufficient weight) to:
·The evidence of the father’s commitment to maintaining a parental relationship with the children (ground 2);
·The evidence of the father’s developed relationship with the children (grounds 1 and 3);
·The evidence of the father (grounds 4 and 5),
and that the primary judge failed to accept the evidence of the father and erred by:
·Giving too much weight to the evidence of the mother (ground 6); and
·Giving too much weight to the expressed wishes of the children (ground 7).
In his summary of argument the father identified the error arising under these grounds as:
8. At the Final Hearing there was not insignificant evidence of the Father’s involvement in the children’s lives and of the children’s relationship with the Father.
9. Her Honour has focussed on the mental health of the Father and on the Mother’s complaints regarding the Father.
10. Her Honour has failed to determine the nature of the relationship of the children with the Father in the face of evidence detailing the extent of the Father’s involvement in the children’s lives and of the children’s relationship with the Father.
Counsel for the father did not specifically address these grounds in oral argument.
In the father’s summary of argument, reference was made to what was described as the father’s evidence that, before separation, he was an active and involved father. The father’s own affidavit evidence could hardly support such an assertion but counsel pointed to the evidence of the mother about what the father did with the children. This evidence did not support the father’s case at all. It listed all of the mother’s complaints about the father’s behaviour and its impact upon the children. The father also referred to the notes of the contact centre, but those too referred to the father’s difficulty “focussing” on enjoying time with the children and reinforced why they did not to want to spend time with him. The contact centre time was unsuccessful and the service ceased involvement.
Reference was also made by counsel to the cross-examination of the father by counsel for the mother and the ICL. Those passages highlight the difficulties that the father had not just with the children but with other relationships. At its highest, the father’s evidence amounted to an assertion that both he and the mother contributed to the care, welfare and development of the children. The specific references contained in the outline of argument do not assist the father.
Her Honour made no significant finding about what the father was like as a parent before the parties’ separation. Findings about what happened thereafter did not support the role the father submitted he played with the children. Her Honour noted that the various pre-2013 visits between the father and the children were largely unsuccessful, as he persisted in discussing reconciliation with the mother in front of the children rather than spending quality time with them:
37.The mother facilitated the father spending time with these children for years, not just weeks or months, although she personally found the situation difficult because the father was obsessive in his efforts to try and get her to reconcile with him and he was also prone to trying to make people feel sorry for him.
The mother gave evidence of visits where bystanders expressed concern about her safety as a result of the conduct of the father.
Her Honour had no evidence about the prospect of a future successful relationship between the children and the father.
We find no error in relation to the “weight” given to the father’s evidence, because there was no evidence of relevance to which weight could be given.
So too, the father’s assertion that too much weight was given to the evidence of the mother has no merit, as nothing to which our attention was drawn justified such an assertion. The evidence before her Honour as to the facts of what had happened to the children was unchallenged and it was plausible. As such, absent some specific complaint which we are unable to see, we consider that her Honour gave all of the evidence appropriate weight.
The father also challenges the weight given to the expressed wishes of the children. Again, the father did not point to any specific examples in support of his complaint.
Nothing was drawn to our attention either in the written or oral argument of the father to justify an assertion that there was significant evidence about the father’s involvement in the lives of the children. Twice, the father said that he could bring a “PowerPoint presentation” of the things he did with the children; he mentioned “fishing” as an example. The father’s limited evidence as recited earlier did not give any temporal connection to indicate when those things occurred but because of the descriptions he gave, they might be seen as having been some years before, bearing in mind the children were 11 and 15 years respectively at trial.
Apart from references to the transcript where evidence showed what happened when the father met up with the mother and the children, most of which was not supportive of his argument, counsel for the father did not point to any specific evidence to justify the assertion that her Honour had evidence of any significant involvement with the children. Indeed, her Honour dealt with the issue thus:
36.The mother’s evidence about the time with these children was confusing. It appears that there was some overnight time although it may have been limited, and it appears that sometimes the mother was present but sometimes she was not.
…
70.The father maintained that there had been really good times with the children in the past and that any problems were more recent but [the elder child’s] comments to the Family Consultant suggest that he has found the father difficult for many years.
Of the more recent history, her Honour observed that the contact centre notes showed the father had difficulty focussing and that was consistent with how the elder child described his father. The evidence of the family consultant that the children did not want the sort of relationship that the father had in mind is telling.
Her Honour dealt with the broad generalisations of the mother about the father’s role and, having regard to that evidence which the father did not challenge, her Honour was entitled to accept it. Even if the father could have pointed to the relevance of his historical involvement, the issue her Honour was grappling with was the impact of any orders on the children, one of whom was very resistant to spending any time with him.
Both children expressed the view that they did not want to spend time with their father. The family consultant agreed with counsel for the ICL that the children were “sick of (contact with their father) and they weren’t particularly wanting to engage” with him. Her Honour had evidence from the family consultant that there was a difference between the views of each child. The elder child was adamant about his position (see [23] above) and her Honour found it was longstanding (see above at [30]). Of the younger child, the family consultant said that it was not that the child “wanted a relationship with her father”, she wanted “a relationship with a father” (emphasis added).
Her Honour dealt with the issue of the views of the children by finding that they were formed as a result of their lived experiences and not as a result of their mother influencing them. Her Honour found (at [83]) the children were mature and their experiences were validated by other evidence which her Honour thought justified considerable weight. Consideration was given to their level of maturity.
By s 60CC(3)(a), her Honour was to consider the views of the children in the assessment of their best interests. Nothing to which our attention was drawn indicates that her Honour erred in her consideration of the children’s views or the weight to be given to them.
The father submitted that the primary judge should have undertaken a consideration as to how the children could spend some meaningful time with the father. That submission presupposes that there was a benefit to the children in spending time with him. The primary judge found that if they spent time with him they probably would not have a meaningful relationship. That finding was made as part of the consideration as to what time, if any, the children would spend with the father.
Her Honour said:
94.I could only consider ordering supervised time, but I am not satisfied that it would be appropriate to make an order for the supervised time.
95.The children do not want it. They are older children and it is likely that they would be bored and become resistant to going to the contact centre. There is evidence in the contact centre notes that the time at the contact centre in the past was not particularly good, and the father acknowledged that in his evidence.
96.It would cause unacceptable stress for the mother if I made an order for supervised time and she had to worry about getting the children there, dealing with their resistance if they did not want to go and possibly facing contravention proceedings.
97.I cannot see any benefit to the children in ordering supervised time.
98.If no order is made for the children to spend time with the father they will not have a meaningful relationship with him. However they would not necessarily have a meaningful relationship with him if they did spend time with him; in this particular case the reverse is probably likely to be true.
99.In her submissions the mother’s counsel referred to the case of Mazorski & Albright in which it was suggested that a meaningful relationship was one which was significant, valuable and important to the child. Another way I sometimes like to think of it is that a relationship is valuable to a child if a parent is capable of nurturing the child and producing a feeling of safety in the child and the father cannot do either of those things for these children.
100.The father’s own difficulties mean that he is incapable of nurturing the children and the children are likely to feel unsafe and miserable if they are forced to spend time with him.
(Footnote omitted)
The father did not seek to identify any error in this aspect of her Honour’s reasons other than to submit that there was limited evidence upon which these findings could be made. This is, in effect, a reference to the father’s submissions about the need to obtain further expert evidence, which we have already considered and rejected.
There is therefore no merit in grounds 1 to 7.
The primary judge erred in exercising her discretion (Grounds 13, 15 and 16)
Grounds 13, 15 and 16 allege the improper or inappropriate exercise of discretion. As set out in the Notice of Appeal, they assert:
13.….the Learned Trial Judge erred in the exercise of her discretion; and her discretion miscarried in the making of parenting orders;
15.That the Learned Trial Judge erred in failing to properly exercise her discretion with regard to the making of parenting orders.
16.That the Learned Trial Judge erred in failing to properly exercise her discretion.
These are not grounds of appeal at all but rather unparticularised assertions. Again, counsel for the father recognised the authorities about appeals against discretionary findings to which we have already referred, but nothing in the summary of argument, nor anything in oral submission, sheds any light on why the father argues that her Honour’s discretion miscarried. Counsel was asked whether he pressed these grounds and he responded by saying that he was “holding on” to them.
We have already dealt with the specific submissions put by the father. There is nothing we can discern to indicate that her Honour did not exercise her discretion judicially.
Section 65D(1) of the Act empowers a court to make such parenting order as it considers proper (subject to fulfilling the requirements of s 61DA and s 65DAB, neither of which is immediately relevant). Her Honour made clear findings of fact and balanced them in an endeavour to work out what she saw as ultimately being in the best interests of the children. In the end, her Honour (at [126]) said the orders were “the only appropriate orders” that could be made.
Her Honour can therefore be seen to have exercised her discretion properly and there is no merit in these three grounds.
Adequacy of reasons (Ground 17)
Ground 17 alleges that the primary judge “failed to provide any or any proper reasons for judgment”. In reality, counsel for the father’s complaint came down to the fact that the reasons were “brief”. Counsel acknowledged that the issue was really whether or not what was written was adequate from this Court’s perspective.
The authorities with respect to adequacy of reasons are well known and settled (Bennett and Bennett (1991) FLC 92-191). The adequacy depends upon the circumstances of the case. A judge’s reasons will be inadequate if this court is unable to discern from those reasons the foundation for the ultimate decision or if it appears that justice has not been seen to be done. Her Honour set out the evidence upon which she was determining the matter and reference can be seen to the various matters in s 60CC of the Act that guide a court in determining the best interests of the children. After considering a range of options and explaining why each was rejected, the no time order was the only one open on the evidence. Her Honour’s reasoning was clear that there was no alternative to the orders ultimately made.
We can therefore clearly see how her Honour arrived at the decision; her path of reasoning is readily apparent.
There is no merit in ground 17.
The appeal will be dismissed.
Costs
In the event the appeal was unsuccessful, the mother’s position was that the father should pay her costs.
Each party to proceedings under the Act is to bear his or her own costs unless the court is of the opinion that there are circumstances that justify a different order (s 117(1) and (2) of the Act). In considering whether any other order should be made, the court is required to have regard to the matters set out in s 117(2A).
The evidence of the parties’ financial positions (s 117(2A)(a)) was scant but it seemed clear that the father was living on a disability pension. His counsel advised that the father lived in an unencumbered unit that he owned. Whilst he had no savings, he had the financial capacity to afford his own costs on the appeal.
The mother’s position as articulated by her counsel was that she had no funds, received no child support and had to care for the needs of the two children. On the basis of the findings about the father’s ability to hold down employment, it would seem the mother will not receive financial assistance from him in the future.
The conduct of the proceedings (s 117(2A)(c)) is relevant. The Court is also entitled to take into account the conduct of the proceedings before the primary judge (s 117(2A)(g)) (see Parke & The Estate of the Late A Parke (2016) FLC 93-748 at 81,933 – 81,934). The father conducted the proceedings himself before the primary judge and did not assist in respect of providing any cogent evidence. He was fortunate that her Honour permitted him to file material on the morning of the first day of the trial. But having not provided any evidence and then having appealed against what we consider were proper orders, the father has put the mother to further and unnecessary expense. That is more so here where there was little particularisation of the grounds of appeal.
The father has been wholly unsuccessful on the appeal and that too must be taken into account (s 117(2A)(e)). Whilst some grounds were withdrawn, many were not and that put the mother to the expense of preparation. Counsel for the mother came well prepared and was only called upon for short submissions in answering the grounds of appeal but just the same, the preparation had to be undertaken.
The unsuccessful appeal alone justifies a costs order in favour of the mother. Despite his difficult financial state being on a disability pension, he has an asset. His financial position appears to us to be better than that of the mother.
In our view, there is no reason why the mother should not have an order for her costs.
The ICL also sought costs fixed in the sum of $4,560, which was said to be calculated according to the Legal Aid scale. Counsel for the father did not dispute the quantum.
Costs relating to an ICL are governed by s 117(4A) of the Act and for that purpose and relying upon what we have just said, there is no suggestion of legal aid here at least in respect of the father and we do not consider the payment of the ICL’s costs in the sum claimed would cause hardship when it is clear that the father funded his own appeal and has an unencumbered unit.
An order should therefore be made for costs. Counsel for the father said that if any such order was made, the father would require three months for payment. No objection was raised to that timeframe.
I certify that the preceding ninety five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Cronin JJ) delivered on 13 April 2017.
Associate:
Date: 13 April 2017
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