L & L

[2005] FamCA 596

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT CANBERRA Appeal No. EA 107 of 2004

File No. CAM 2093 of 2001

BETWEEN:

Appellant Father

- and -

Respondent Mother

REASONS FOR JUDGMENT

CORAM:  Finn J
DATE OF HEARING:        31 January 2005
DATE OF JUDGMENT:     11 July 2005

APPEARANCES:

Ms Tonkin of Counsel (instructed by Elrington Boardman Allport Solicitors) appeared on behalf of the appellant father.
Mr Clark of Counsel (instructed by Campbell & Co Solicitors) appeared on behalf of the respondent mother.

APPEAL SUMMARY

MATTER:  L and L
APPEAL NUMBER:  EA 107 of 2004
  (CAM 2093 of 2001)
CORAM:  Finn J
DATE OF HEARING:  31 January 2005
DATE OF JUDGMENT:               11 July 2005

CATCHWORDS: FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATE – RESIDENCE and CONTACT – Whether the Federal Magistrate erred in the weight that he attached to certain matters including the sibling relationship between the child of the parties’ and his half brother – Whether the Federal Magistrate erred in the weight that he attached to the weaknesses of the father and the father’s new wife in fostering the relationship between the child and his mother – Whether the Federal Magistrate erred in placing insufficient weight on the weaknesses of the mother.
FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE.

Caselaw cited:

Gronow v Gronow (1979) FLC 90-716
U v U (2002) FLC 92-112
Appeal dismissed.
Application to adduce further evidence dismissed
No order as to costs.

Introduction

This is an appeal by the father against orders made by Brewster FM on 7 October 2004 in proceedings between the father and the mother concerning residence of, and contact with, their son. The appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).
The effect of Brewster FM’s orders was that the child, who was six years old at the time of the trial, reside with the mother and have contact with the father on alternate weekends (from Friday night to Monday morning), overnight each Wednesday and for half of school holidays. The orders also included provision for contact on the child’s birthday, Mother’s Day, Father’s Day and over the Christmas period.
The father appeals all of the orders made by his Honour on 7 October 2004. He seeks that those orders be set aside and that there be a re-trial.
Also before me at the hearing of the appeal was an application by the father to adduce further evidence. I reserved my decision in relation to that application and I will discuss it in the context of the grounds of appeal to which it relates.

Factual background

The factual background, as found by Brewster FM, can be briefly stated as follows.
The father (aged 38 at trial) and the mother (aged 32 at trial) commenced cohabitation in 1992, married in October 1995 and had the child together in August 1998. The parties separated when, in January 2001, the mother left the matrimonial home and took the child with her.
The father filed an application for residence which came before Brewster FM on 26 February 2001. His Honour made interim orders for shared care on a week-about basis and for the parties to attend counselling. The parties were unable to resolve the matter through counselling, and so it was listed before Hartnett FM for final hearing on 26 June 2002, but those proceedings settled when the parties agreed to continue the shared arrangement.
The parties were subsequently unable to agree on various aspects of the child’s upbringing, being his schooling, and his involvement (at the father’s instigation) in the Roman Catholic Church and (at the mother’s instigation) in nudist activities. As a result, further applications were filed and various interim orders were made in relation to schooling by both Ryan FM and Brewster FM, and in relation to Church and nudist camp attendance by Brewster FM. Brewster FM left the final determination of all of these issues for the final residence hearing; however the parties subsequently agreed on arrangements for the child’s schooling and on his involvement in the Catholic Church.
The father has remarried and he and his new wife (“the stepmother”) had a son (“the brother”) born in August 2003. The mother has also re-partnered. Both the mother and the father concluded that a shared arrangement was unworkable and both sought residence of the child.

The trial judgment

The final hearing of the residence applications occurred before Brewster FM on 1 and 2 September 2004. His Honour made orders and delivered reasons for judgment on 7 October 2004.
In his reasons for judgment, his Honour set out the factual background (as summarised above) and then went on to examine the relevant s 68F(2) matters, which I will later discuss as they relate to the father’s grounds of appeal.
Following a consideration of the s 68F(2) factors, Brewster FM found, at paragraph 31 of his judgment, that this was “a finely balanced case”. Essentially, he was of the view that both parties had strengths and weaknesses, but he ultimately found that the child should reside with the mother. His conclusions were summarised in the following paragraphs of his judgment:
31.This is a finely balanced case. I am satisfied that [the child] will do well no matter which parent he were to live with. There is an advantage in his living with his father in that he would be living with his half brother …. On the other hand if he lives with his mother he can expect to see more of his grandparents. I have criticised each of the parties in this judgment. I regret that it has been necessary to do so and that I have not spoken more positively of them. However in litigation such as this it is often an analysis of parties’ weaknesses rather than their strengths which is decisive and it is so in this case.
32.In the end I regard the criticisms that I have made of the father as having more substance and being of more significance insofar as bringing up [the child] is concerned than the criticisms that I have made of the mother. I am particularly concerned as I have said that he is seeking to elevate the position of [his wife] beyond that which should properly be occupied by a stepmother in the circumstances obtaining in this case. In a situation where the biological mother is dead or not involved in a child’s life it might be appropriate to elevate a stepmother to the position of defacto mother. This is not the case here. I am concerned that the father does not appreciate the unique, vital and irreplaceable place in [the child’s] life occupied by his biological mother. I have concerns were [the child] to live primarily with his father that his relationship with his mother might not be promoted and might be compromised. For this reason I consider the appropriate order to be that [the child] live predominantly with his mother.

The principles governing this appeal and the scope of the appeal

In considering the father’s grounds of appeal, it is important to remember the limited scope of an appeal against a judgment such as this, which is known as a discretionary judgment. It is in the nature of a discretionary judgment that there is no correct answer and that different Judges or Federal Magistrates may well decide the same matter differently. Given this, an appeal court can only interfere with such a decision if the Judge or Federal Magistrate:
·acted on a wrong principle;
·was influenced by extraneous or irrelevant matters;
·mistook the facts;
·failed to take into account a relevant matter;
·placed inappropriate weight on one or more relevant matters; or
·arrived at a decision which, in the opinion of the appeal court, was so unreasonable or plainly unjust as to be an improper exercise of the discretion.
In particular, an appellate court should be reluctant to interfere with a discretionary decision on the basis only of the weight which the trial Judge placed on particular matters.
These principles were expressed by the High Court in Gronow v Gronow (1979) FLC 90-716 (per Stephen J at 78,849):
… it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge.
and in U v U (2002) FLC 92-112 (per Kirby J at 89,094-095):
An appellate court will refuse to intervene unless a material error of principle is demonstrated. In considering suggestions that such an error has occurred, the appellate court will “avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved”. (Footnotes omitted)
The grounds of appeal contained in the father’s notice of appeal will be discussed in detail later in this judgment. However, they largely challenge the weight which his Honour gave to certain matters and in particular:
·the sibling relationship between the child and his brother as opposed to the relationship between the child and the paternal grandmother; and
·the perceived weaknesses of the father and the stepmother in appreciating and fostering the important relationship between the child and his mother, which had allegedly been demonstrated by the issue of a baptismal certificate showing the father and the stepmother as the child’s parents, and also by permitting the child to call the stepmother “mum” or “mummy”.

Grounds of appeal

I now turn to address the father’s grounds of appeal in the order that they were argued before me.

Ground one – the weight given to the sibling relationship

Ground one of the father’s notice of appeal asserts that:
1.The learned Federal Magistrate erred in law in acting up on a wrong principle and/or in failing to properly exercise his discretion in the following manner:-
(a)In failing to give any or sufficient weight to the significance of the sibling relationship;
(b)In determining that it was in [the child’s] best interests to live with his mother in circumstances where this would result in a diminution of his relationship with his brother...
Counsel for the father referred me to passages in the father’s affidavit (filed 12 August 2004) which was before the Federal Magistrate at the hearing on 1 and 2 September and in which the father deposes to the close relationship between the child and his brother. In particular, the father states that:
86.… [The child] loves to play with [his brother] and “look after him”. He spends hours on end with [his brother] talking to him and playing with him.
…
99.[The child] loves to play with his younger brother… and I think he would miss [his brother] too much should the [child] go and live with his mother.
100.Virtually every time that I pick [the child] up, he makes comments to the following effect:-
“I missed you dad. I missed you mum and my baby brother.”
It was submitted on behalf of the father that an order that the child reside with the mother would result in a diminution of this sibling relationship.
In his judgment, Brewster FM discussed the relationship between the boys when considering s 68F(2)(c) (being, the effect on the child of any separation from either parent or any other child or person with whom the child has been living). His Honour noted that the fact that the child was, at the time of trial, spending half of his time with his brother was “a factor which favours an order that he live with his father” (paragraph 13). The advantage to the child of living with his brother was again acknowledged by his Honour in paragraph 31 of the judgment (which I earlier quoted).
Notwithstanding Brewster FM’s consideration of the relationship between the children in the context of s 68F(2)(c), Counsel for the father argued before me that his Honour had erred in failing to also consider the relationship under s 68F(2)(b) (being, the nature of the child’s relationship with the parents and other persons). It was submitted that, in considering s 68F(2)(b) his Honour had put substantial weight on the less relevant relationship between the child and the paternal grandmother, yet had failed to further consider the relationship between the child and his brother; this failure, it was submitted, constituted an appealable error.
For my part, however, I have difficulty in seeing what difference a consideration under s 68F(2)(b) of the children’s relationship would have made to his Honour’s decision. His Honour clearly considered in the context of s 68F(2)(c) and again at the conclusion of his judgment, the relationship between the children to be a factor in favour of awarding residence to the father and he acknowledged the importance of that relationship. I do not think that an express consideration of the relationship under s 68F(2)(b) would have altered his Honour’s ultimate decision, and therefore I do not find this aspect of ground one is established.
In this context, submissions were also made to me on behalf of the father to the effect that there had been evidence before Brewster FM that the mother had undermined the relationships between the child and his brother and between the child and his stepmother, and that his Honour had erred in failing to give those matters weight and in failing to refer to them in his judgment.
I was taken, by Counsel for the father, to references in the stepmother’s affidavit (filed 12 August 2004) which had been before his Honour. Those references related to conversations which the stepmother had apparently had with the child in which the child had repeated negative comments that the mother had made about his brother. For example the child had, according to the stepmother, said to her “Mummy and Nanny tell me to hurt [my brother] when I am at [my father’s house]” (paragraph 27) and “…mummy told me not to love anyone at [my father’s house]” (paragraph 28).
When I asked whether Counsel for the father had, at trial, relied on this evidence in submissions to his Honour, I was taken to parts of the oral submissions contained in the transcript of proceedings on 2 September 2004. However, upon reading those extracts and the remainder of those oral submissions, I do not find any reference to the issue of whether the relationship between the child and his brother had been undermined by the mother. There is some discussion of whether the mother undermined the relationship between the child and his stepmother and also some discussion about the extent to which the father might undermine the relationship between the child and the paternal grandmother, were the father granted residence. There were also submissions made about the content of the Court appointed expert’s report which criticised the mother’s behaviour generally and at changeovers, but not in relation to the mother’s attitude or behaviour in relation to the relationships between the child and his brother or with his stepmother.
Later in his oral submissions before Brewster FM, Counsel for the father took the opportunity to return to two matters which he had apparently previously overlooked. One of these matters was the relationship between the child and his brother as a matter to be taken into account in favour of granting residence to the father, but again no emphasis was placed on any evidence which established that the mother had or would undermine the relationship between the children were she granted residence. The other matter related to whether the father would promote a relationship between the child and the paternal grandmother were he to be granted residence.
Therefore, at no point in oral submissions did Counsel for the father draw to his Honour’s attention the evidence of alienating conduct by the mother towards the brother, or to the effect that such conduct would have on the child’s relationship with his brother. Furthermore, these allegations do not seem to have been agitated in cross-examination of the mother by Counsel for the father.
Having received lengthy oral submissions which criticised many other aspects of the mother’s behaviour but failed to refer to or rely on the evidence concerning undermining behaviour of the mother towards the relationship between the children, his Honour cannot be criticised for failing to place any weight on that matter.
With respect to the complaint on behalf of the father that his Honour failed to adequately take into account undermining behaviour by the mother in relation to the relationship between the child and his stepmother, I also find that that complaint does not have substance. Brewster FM found in paragraph 24 of his judgment that “there is no evidence the mother is doing anything to destabilize that relationship”.
The written submissions by Counsel for the mother refer to passages in the father’s affidavit (paragraphs 43 to 45) in which the father reports the child saying that the mother had told him not to love the people at the father’s house (that is, his stepmother and his brother). The submissions then refer to the paragraphs in the mother’s affidavit in which the mother responds to those claims by the father. In those passages (paragraphs 114 to 116) the mother reports that the child can sometimes use negative comments, that she has heard him say that his stepmother and father have said “nasty things” about the mother. Given that none of these statements in the mother’s affidavit appear to have been raised in cross-examination of her by Counsel for the father, Counsel for the mother submits that his Honour was entitled to take them into account in the way he did; that is, by finding that the claims that the mother destabilised the relationship between the child and the stepmother (and between the child and his brother) were not founded. I agree that given the state of the evidence his Honour was entitled to treat these matters as he did.
I therefore find that ground one has not been established.

Ground 11 – the relationship between the child and the paternal grandmother

The criticism made in the submissions in support of ground one that his Honour gave the relationship between the child and the paternal grandmother more significance than the relationship between the child and his brother is related to another criticism contained in the father’s notice of appeal. This is the complaint contained in ground 11 being to the effect that his Honour erred in finding that the relationship between the child and the paternal grandmother would be more likely to be encouraged if the mother was granted residence.
In the context of considering s 68F(2)(b) his Honour said:
11.… [The child] has both paternal and maternal grandparents living in Canberra and I accept that they have a good relationship with [the child]. One matter which is of some significance in this case is that the father has fallen out with his mother and they do not communicate. [The child’s] mother has a good relationship with the father’s mother. An order that [the child] live with the mother would facilitate greater contact between him and both grandparents than would be the case if I were to order that he live with the father.
Ground 11 is in the following terms:
11.The learned Magistrate erred on [sic] concluding, in the absence of any evidence, that it was more likely that the child would have contact with the paternal grandmother if residence was granted to the mother.
In his written submissions, Counsel for the father submitted that, while there was evidence that the mother had taken the child to visit the paternal grandmother each alternate Wednesday and that the mother and the paternal grandmother had a good relationship, there was no evidence that such contact between the child and the paternal grandmother would continue into the future. It was submitted that his Honour therefore erred in placing the weight that he did on this relationship when considering s 68F(2)(b) in paragraph 11 of his judgment and also at the conclusion of his judgment in paragraph 31 – that weight being above that which he placed on the relationship between the child and his half brother.

It was not in dispute that the father and his own mother had not had a good relationship for some time. I was taken to evidence which was before his Honour, that the mother and the paternal grandmother were on good terms and that the mother took the child to see the paternal grandmother on a regular basis. Counsel for the mother, in his written submissions, referred me to parts of the transcript which illustrate these matters. In my view, it was open to Brewster FM to find, in light of the evidence, that an order that the child live with his mother “would facilitate greater contact” between the child and the paternal grandmother than would be the case if the order was to be that the child live with the father.
While it may be unusual to place the weight which his Honour did on a relationship between a child and a grandparent as opposed to that between siblings, the situation in the present case was unusual. The relationship between the father and his own mother had clearly deteriorated, and the fact that the mother had, at least based on past behaviour, facilitated a relationship between the child and the paternal grandmother therefore became a significant factor in this case.
Whether another Judge would have placed the same weight on that relationship is not to the point. As I have said, given the evidence before his Honour as to the mother’s past facilitation of the relationship between the child and the grandmother, it was open to him to consider that that situation would continue and in the particular circumstances of this case to place a greater weight on that relationship than he placed on the sibling relationship. I therefore find that ground 11 fails.

Ground two – the weight placed on the parties’ weaknesses

Counsel for the father then moved to the father’s second ground of appeal, which asserts an error of law on the part of the Federal Magistrate and is in the following terms:
2.The learned Federal Magistrate acted upon a wrong principle in finding that “it is often an analysis of the parties’ weaknesses rather than their strengths which is decisive.”
It will be recalled that that quote from his Honour’s judgment appears at the end of paragraph 31. It was submitted by Counsel for the father that the statement constitutes an error of law in relation to what is the decisive factor in a case such as this. Counsel for the father further submitted that his Honour failed to properly consider the s 68F(2) factors and erred in concluding on the basis of the weaknesses of the parties, and in particular of the father, that the child should reside with the mother.
His Honour expressed concerns at paragraph 16 in his judgment about the father’s appreciation of the child’s emotional needs. The particular criticisms are discussed in more detail below, but it is sufficient to say at this point that his Honour concluded at paragraph 21 that the father did not fully appreciate the importance of the child’s relationship with the mother. Although his Honour also criticised various aspects of the mother’s behaviour (paragraphs 22 to 26), and in particular her failure to improve her behaviour at changeovers following the Court report which had highlighted a need for her to do so in order to make changeovers easier of the child, he eventually found at paragraph 32 that the weaknesses of the father were of greater substance and had more significance in relation to the bringing up of the child.
In the written submissions of Counsel for the mother, it was submitted that the approach adopted by his Honour, whereby he weighed all the factors in favour of each parent having residence, but ultimately found that given the finely balanced nature of the case, it was their weaknesses which differentiated them, was a proper approach to be adopted.
I agree with these submissions on behalf of the mother. I certainly do not view his Honour’s statement at paragraph 31 that “it is often an analysis of the parties’ weaknesses rather than their strengths which is decisive” as a statement of the test or principle which is applicable to the determination of residence applications. I see it as no more than an observation made in passing and based on his Honour’s long experience in this jurisdiction, of what is often the ultimate result of the analysis required to be made by the Court of the matters contained in s 68F(2). His Honour had over the preceding 23 paragraphs analysed each relevant matter contained in s 68F(2) to determine which residence arrangement would be in the child’s best interests. Having done so, he concluded that the case was finely balanced, but that ultimately, it was the parties’ weaknesses which differentiated them. Ultimately, something has to distinguish one parent from the other. I do not accept that his Honour acted on a wrong principle and I therefore do not find substance in ground two.

Grounds five, six and seven – the Federal Magistrate’s criticisms of the father

As already mentioned, his Honour ultimately found that the criticisms which he made against the father were more substantial than those made against the mother. The criticisms of the father, which apparently led his Honour to conclude that the father did not appreciate the importance of the mother in the child’s life were twofold, being that the father had:
·allowed the child to, or had not discouraged him from, calling the stepmother “mum”; and
·allowed a baptismal certificate to be issued for the child showing himself and the stepmother as “parents”.
The passages in his Honour’s judgment where he discusses these matters and which occur in the context of his discussion of the matters contained in s 68F(2)(e) and (h) are as follows:
16.I am of the opinion that in two respects the father has fallen short of properly discharging his responsibilities as a parent. These lead me to have concerns as to whether he has an appreciation of [the child’s] emotional needs.
17.The first of these matters is that he permits [the child] to call [the stepmother] “mum”. In the mother’s household on the other hand [the mother’s partner] is called [by his first name]. [The child] at one stage called [the stepmother] “mummy [L]”. The mother, to her credit, did not object to this but does object to [the stepmother] being referred to simply as “mum”.
18.The second matter concerns [the child’s] baptism in the Roman Catholic Church. The baptismal certificate issued by the church names [the stepmother] as [the child’s] mother.
19.The father and [the stepmother’s] explanation for this was that on the part of the form one fills out to arrange baptism there is a provision for listing both parents. They say that [the stepmother] added the word “step” before the word “mother.” Notwithstanding this the baptismal certificate listed [the stepmother] as [the child’s] mother. The father gave evidence that when the error was discovered he went to the church to point the error out. Curiously he did not take the baptismal certificate back to the church to give it back to them with a request that a fresh and accurate certificate be issued. He said that when he spoke to a church official he was told that the error could not be corrected.
20.I found the father's evidence and that of [the stepmother] concerning this aspect of the case unconvincing. I found it is quite impossible to accept without corroboration that the church would insist on a perpetuation of error insofar as naming [the child’s] parents is concerned.
21.These matters cause me some concern as to the father’s attitude to the relationship between [the child] and his mother. In my opinion the position [the child’s] mother occupies vis a vis [the child] is both unique and irreplaceable. I am not confident that the father shares my opinion. I am concerned that he and [the stepmother] may be seeking to promote [the stepmother] to a place in [the child’s] life beyond that which a stepmother should properly have when the child concerned has a real mother in his life.
His Honour returned to these matters in paragraph 32 of his judgment which I have already quoted.
Several grounds of the father’s appeal attack these conclusions by his Honour. Ground five asserts that:
5.The learned Magistrate erred in concluding that the appellant “does not appreciate the unique, vital and irreplaceable place in [the child’s] life occupied by his biological mother”…
Ground six asserts that:
6.The learned Magistrate erred in finding that the appellant was attempting to elevate [the stepmother] to a position beyond that which properly corresponded to a stepmother to the detriment of the relationship between the child and his biological mother, a conclusion which was not open on the evidence.
Finally in this regard, ground seven asserts that:
7.The learned Magistrate erred in having regard to an irrelevant consideration being the appellant’s failure to correct a baptismal certificate issued by the Catholic Church that named [the stepmother] as the child’s mother, a matter which did not bear on the best interests of the child.
In relation to the issue of the child calling the stepmother “mum”, Counsel for the father did not dispute the fact that there had been evidence before his Honour that the child did indeed call the stepmother “mum” or “mummy”. (See, for example, the quote from the father’s affidavit to this effect at paragraph 20 of this judgment, above, in which the father reports the child as saying “I missed you mum and my baby brother.”) While the mother had given evidence (in her affidavit and orally) of her concern that the child called the stepmother “mum”, it was submitted on behalf of the father that the concern was not significant enough to warrant the weight which his Honour attached to that matter in deciding that the father had failed in his parental duties.
The mother’s affidavit evidence, to which I was taken, was that the mother was “concerned” that the father and stepmother were attempting to replace her by allowing the child to call the stepmother “mummy” (paragraph 51 of her affidavit filed 27 August 2004). I was also taken, by Counsel for the father, to parts of the transcript of the cross-examination of the mother where the following exchange occurred (Transcript 01/09/04 at p103-104):
[COUNSEL FOR THE FATHER:] And you’ve heard the evidence this morning that [the child] calls [the stepmother] “mum”?---Yes.
Does that upset you?---A little bit, yes.
He still calls you “mummy” doesn’t he?---Yes he does.
…
And he’s never not called you “mummy” or “mum” has he?---No he has not.
Do you tell him not to call [the stepmother] “mum”?---I try and get him to call her “Mummy [L]”. That is all.
…
…What do you say when you hear him say “mum and dad”?---I just say “Mummy [L] and daddy.
Is that every time?---Yes.
Because it’s very important to you, isn’t it, that he knows the difference between you as his natural mum?---Yes it is.
Counsel for the father also took me to the following passage of the cross-examination of the stepmother by Counsel for the mother (Transcript 01/09/04 at p75-76):
[COUNSEL FOR THE MOTHER:] And what does [the child] call you?---Mum. Mum.
Mum? He doesn’t call you Mummy [L]?---Not anymore, no.
When did that stop?---12 to 18 months ago.
And why did that stop?---[The child] just started calling me “mum”.
And you encouraged him?---I didn’t object to it. I’ve never encouraged it nor have I suggested it. He just started calling me that.
…
FEDERAL MAGISTRATE: Sorry. Just go back to the beginning of that. I – how it all started?---Shortly after their marriage separated [the child] started to refer to me as “mummy” which I didn’t believe was appropriate so I suggested that he call me “Mummy [L]” to give that distinction. He did so for some time and then he commenced calling me “mum”. As he was comfortable doing so I didn’t feel – feel that it was necessary to force him to call me something other than what he was comfortable calling me.
[COUNSEL FOR THE MOTHER]: And how long’s that state of affairs been?---About 12, 18 months.
12 to 18 months? I see. Don’t [you] think it might be confusing for [the child] to call you mum in dad’s house and to call his mother mum in her house?---I believe he always refers to [the mother] as “mummy”.
The evidence of the father to which I was taken was the following exchange during cross-examination (Transcript 01/09/04 at p48-49):
[COUNSEL FOR THE MOTHER:] What does [the child] call [the stepmother]?---Mum.
And for how long has that occurred?---It’s been a quite – quite a long time. I can’t remember how long.
And you encourage that?---I don’t make it a rule that he calls her that. That’s what he wants to call her.
So you don’t discourage it?---I just let him call her – I just let him call her that.
Do you think that might be confusing for [the child]?---He said it by his own choice. We didn’t tell him to.
… Do you think it might be confusing for [the child]?---No sir.
He’s got a mother hasn’t he?---Yes sir.
You’d assume that he calls his mother “mummy” or “mum”?---He refers to her as “mummy”.
Finally, I was taken to the cross-examination of the mother’s partner by Counsel for the father concerning whether the child calls him “daddy” (Transcript 02/09/04 at p127-128):
[COUNSEL FOR THE FATHER:] So anyone in the house if they hear him using the word mummy and daddy for dad and [the stepmother] he is correct [sic-semble corrected], is he?---He only has one mummy and daddy.
…
Yes. So is it every time he lets that slip he’s corrected?---No.
How often, are you able to say? If you can’t just say that you can’t?---Occasionally.
…
And is that what you say to him when he calls you daddy?---No, I say, “You can call me daddy if you want to, but you have one daddy,” which he does, “and one mummy.” I’m not his biological father and [the stepmother] is not his biological mother.
Yes, and he knows that you’re not his biological father, doesn’t he?---He’s a very smart child.
Yes. But you just gave evidence that you say to him, “You can call me daddy if you want, but I’m not your daddy”?---That’s correct.
…
Now, what’s the point of mentioning “[the stepmother] is not your mummy” when he calls you daddy?---Because he’s encouraged to call her mummy when he’s at his father’s house.
I see. And how often have you been at his father’s house and heard him encouraged to call her mummy?---I’ve never been to his father’s house.
Well, you don’t know that he’s encouraged to call her mummy at his father’s house do you?---That is the impression he gives us when he comes home.
In light of this evidence, his Honour was clearly entitled to make the finding which he did in paragraph 17 and to express the concerns which he did in paragraphs 16 and 34 of his judgment.
In relation to the baptismal certificate, Brewster FM placed weight, as has been seen in paragraphs 19 to 21 of his judgment, on the fact that the father had failed to present the baptismal certificate to the Church for correction and had difficulty believing the father’s evidence that the Church had said that such a correction was impossible. The submission made on behalf of the father about the findings his Honour made in relation to the baptismal certificate was that, in the absence of evidence that the failure by the father and the stepmother to have the baptismal certificate corrected was deliberate, it was not open to the Federal Magistrate to criticise the father to the extent that he did. Further, the failure to correct the certificate was, it was submitted, an irrelevant consideration which had no bearing on the welfare of the child.
Parts of the evidence to which I was taken relate to whether, as I understood the mother to have originally alleged, the father had failed to inform the mother that he was arranging for the child to be baptised. There was also evidence relating to whether the father had invited his mother, the paternal grandmother, to the baptism. As these matters are not the subject of any ground of appeal, nor the subject of submissions before me, I will not concern myself with them.
There was an issue at the hearing of the appeal as to whether the father and stepmother had sought to have the baptismal record (being the record or register kept by the Church) or the baptismal certificate (being the document issued to the baptised person or his or her family) corrected. There was also some discussion about a document called the “notification of baptism”. I do not think that much turns on whether the notification of baptism, which had apparently also showed the stepmother as mother, was corrected, and in any event it appears that any such document has been destroyed. But the distinction between the register and the certificate does have some significance.
The affidavit evidence of the father to which I was taken refers to the issue of the stepmother being shown as mother on the “Notification of Baptism”. At paragraph 63 of his affidavit (filed 12 August 2004), the father says that he had taken no steps to cause the error, but conceded that this mistake “would have been upsetting to [the mother]”.
The mother’s affidavit evidence to which I also was taken refers directly to the baptismal certificate. In paragraph 53 of her affidavit (filed 27 August 2004), after stating that the father had named the stepmother as the child’s mother on the certificate, the mother says:
This greatly distressed me and caused me to instruct my lawyer to apply to the Court to have this issue resolved.
The mother applied, in an application filed 20 July 2003, for (among other things) an order that the father have the Notification of Baptism withdrawn and advise the relevant bodies as to the child’s actual mother.
Counsel for the father took me to various parts of the transcript which discussed the baptismal certificate and any efforts which had been made to correct it. The matter was raised during cross-examination of the father by Counsel for the mother when the following exchange occurred (Transcript 01/09/04 at p57-58):
[COUNSEL FOR THE MOTHER:] There were strong objection to [the stepmother’s] name being placed on the baptismal certificate as the mother, wasn’t there?---[THE FATHER] It was a typo error by the church, sir.
…
…There was a strong objection to [the stepmother] being named as the mother on the baptism certificate, wasn’t there?---Yes.
Now, that information could’ve only come from you or [the stepmother]?---Yes, sir.
And you say, despite that, there was an error?---Yes.
Have you corrected the error?---We have taken all actions to have that corrected, sir.
Would you answer the question, have you had the baptism certificate altered to read “stepmother”?---No, sir.
Why not?---We asked the church to do it and they said they couldn’t.
…
…Who did you go and see? Which priest did you go and see?--- Father [W].
When did you see him?---Straight after – once we realised that [the stepmother’s] name was the mother on the – on the paperwork, we went straight there.
…
You go through the ceremony of baptism publicly in the church, during Mass. You have a look at the baptism certificate. You see that [the stepmother] is named as the mother?---I didn’t look at it – the certificate at the time.
You’ve looked at it subsequently and seen that [the stepmother] is named as the mother?---Yes.
And you’ve done nothing to correct it, have you?---Not on the certificate no, sir.
…
…You never went to the priest and you never asked him to alter it?---We went to the office and asked them to change the details that had to be changed, sir.
And it is your evidence that now in the baptismal register, there’s a correct entry?---I would assume there is, sir.
Have you checked?---No, sir.
The transcript continues with the father being cross-examined about what efforts were made to have the baptismal register and certificate corrected. The following exchange then occurred (Transcript 01/09/04 at p60):
[COUNSEL FOR THE MOTHER:]…And you’ve never lodged the certificate with them and said, “This is wrong. Fix it. Give me a proper one”? You’ve still got the original at home, haven’t you?---[THE FATHER] Yes.
You’ve never given it to the church to amend?---No.
You haven’t tried at all, have you, sir?---I have tried, sir.

I was also taken to the transcript of the cross-examination of the stepmother by Counsel for the mother, in which the following exchange occurred (Transcript 01/09/04 at p70-71):
[COUNSEL FOR THE MOTHER:] And was [Father W] the one that can’t alter the baptism certificate?---[THE STEPMOTHER] I’m not – [the father] had spoken to the – the clerk’s for want of a better word, at the Parish---
Yes?--- ---I was under the understanding that the records were – at the Church – were to be amended.
I’m asking about the baptism certificate. You’ve got it at your home, haven’t you?---Yes.
And it puts you down as the mother?---There was a type – a typing error.
I understand that. It puts you down as the mother, doesn’t it?---It does, yes.
Have you ever returned it to the Church to have it altered?---No.
Why not?---I don’t know.
You don’t think it’s important?---It’s a piece of paper. The official Church records, to my understanding, have been corrected.
…
And what did he tell you, the Priest, when [you and the father] went there?---When we spoke with the –the certificate, it wasn’t with the Priest. We spoke to the clerk at the Parish about the certificate….
Did you ever speak to Father [W] about the incorrect baptism certificate?---We had mentioned that it was incorrect but not directly to him about it being altered.
Then a little later, following the tender of the baptismal certificate, the cross-examination continued (Transcript 01/09/04 at p72):
[COUNSEL FOR THE MOTHER]:… Now, you were given that certificate on the day of the baptism?---[THE STEPMOTHER] Yes.
You looked at it?---Yes.
You saw it was wrong?---Yes.
What did you do about it?---Immediately we didn’t do anything about it.
What did you do about it subsequently?---We spoke to the clerk at the Parish and asked them to amend the records but – and we also asked them if they had the sheets that we had completed that stated me as stepmother, which they had subsequently told us had been destroyed.
Did you ask them to amend that certificate that’s now in evidence before his Honour?---We didn’t have the certificate with us at that time. We asked them to amend all the records.
Have you ever taken the certificate to the Church and asked them to amend it to reflect the correct position because you are not [the child’s] parent?---No.
Why not?---I don’t know.
After reviewing the affidavit and oral evidence before Brewster FM in relation to the baptismal certificate, it is clear to me that at no stage had the father or the stepmother returned the baptismal certificate to the Church for it to be corrected. His Honour’s findings, which were made after he had had the benefit of hearing the oral evidence, were, in my view, findings which he was entitled to make. He was entitled to hold, as he did, that the father’s account of events surrounding the baptism certificate was unconvincing. Further, it was open to his Honour to find, after considering this matter together with the matter of the child being permitted to call the stepmother “mum” that the father did not fully appreciate the unique role of the child’s mother in the child’s life.

The application for further evidence

The father filed an application (on 19 January 2005) to adduce further evidence in support of the appeal which, it was submitted by his Counsel, had that evidence been before the Federal Magistrate, would have established that the error on the baptismal certificate was the fault of the Church and not the parties. It was submitted that, if this evidence had been available, there would have been insufficient evidence upon which his Honour could rely for his finding that the father had failed to discharge his parental responsibilities.
The evidence sought to be admitted was an affidavit from the Parish Priest of the Church (“the Parish Priest”) (filed 19 January 2005) where the child had been baptised. In the affidavit, the Parish Priest states that he had baptised the child on 8 June 2003 and that he had requested the Parish Secretary to add a notation to the Baptismal Register to particularise “the status” of the father, the stepmother and the child’s biological mother. The affidavit also states that in the normal course of events, names of parents “would not be summarily changed at the request of one of the parents” without the approval of the Parish Priest. (It is not clear whether reference is there being made to changes to the register or to the certificate.)
Counsel for the mother opposed the introduction of this further evidence, submitting that there was nothing in the affidavit which provided any indication of whether the father or the stepmother had sought to have the baptismal certificate changed, or that indicates what the Parish Priest’s response had been to any such request. The paragraph concerning the usual practice of the Church was, it was submitted, hypothetical and did nothing to assist the Court in determining what had occurred in this case. Counsel for the mother also indicated that, were the affidavit admitted into evidence, he would seek to cross-examine the Parish Priest which would require a new trial.
I agree with the submissions of the Counsel for mother and I do not propose to grant the father’s application to adduce the Parish Priest’s affidavit as further evidence in this appeal. The affidavit does not advance matters in the appeal as his Honour placed weight on the failure by the father to have the certificate, and not the register, corrected. The certificate is not mentioned in the affidavit.
In light of my discussion above of grounds five, six and seven and my refusal to allow the further evidence to be admitted, I therefore find that those grounds fail.

Grounds three and four – the weight given to the mother’s conduct

Grounds three and four are related in that they both raise criticisms of the weight which his Honour accorded to the conduct of the mother which the father asserted constituted a failure by the mother to discharge her parental responsibilities.
Ground three asserts:
3.The learned Magistrate erred in failing to give any or sufficient weight to evidence relevant under section 68F(2)(e) and (h), namely:
(a)Evidence from both the appellant and his wife that [the child] frequently quoted his mother and maternal grandmother encouraging him to misbehave at the appellant’s household and to harm his step brother…;
(b)Evidence about the respondent’s unilateral change of [the child’s] pre school which resulted in an application by the appellant and Court order restoring the status quo;
(c)Evidence that the respondent and her mother were engaging in conduct at changeovers which was detrimental to [the child].
Ground four is as follows:
4.The learned Magistrate erred in concluding that it was in the child’s best interests to reside predominantly with the mother in circumstances where he failed to give any or sufficient weight to the following:-
(a)The evidence and conclusions of [the Court appointed expert];
(b)The learned Magistrate’s finding that: “The mother appears to… have learnt nothing from [the expert’s] report”.
In relation to the complaints in ground three concerning evidence that the mother had removed the child from child care and had enrolled him in pre-school without consulting the father, his Honour acknowledged this at paragraph four of his judgment, when outlining the parties’ history, and again in paragraph 26 when his Honour when considering the capacities of each parent to discharge their parental responsibilities, his Honour said:
26.The mother is also criticised for unilaterally changing [the child’s] pre school. There is some substance to this criticism but I do not regard it as a serious indictment of her capacity adequately to discharge her responsibility as a parent.
Counsel for the mother submitted that his Honour properly took this matter into account and properly weighed it against the criticisms he made of both parents. I agree with that submission. His Honour has clearly taken the matter of the mother’s unilateral actions in relation to the child’s schooling into account in the difficult weighing exercise which he had to undertake in order to determine with which parent the child should reside. I do not find that his Honour’s ultimate finding, that this criticism is substantial but not as serious as those criticisms against the father, was outside the range of a reasonable exercise of his discretion.
Brewster FM, at paragraphs 22 to 23, also criticises the mother for her behaviour at changeovers, in relation to which evidence was provided by the Court-appointed expert. In that report the writer expressed her concerns about the mother’s lack of insight into the impact of her conduct on the child at changeovers. His Honour held (in paragraph 23) that “such conduct is entirely inappropriate and should cease immediately” and that “the mother appears to have learnt nothing from … [the] report”. However, he nonetheless went on to find, in paragraph 32, that the criticisms against the father had more substance and were more significant. In written submissions on behalf of the father, Counsel concedes that Brewster FM had criticised the mother for failing to improve her behaviour following the findings in the report, but further submits in the context of grounds three (in particular paragraph (a)) and four that his Honour had failed to “properly address the impact of the mother’s lack of insight upon [the child] and his continued development” (at paragraph 14 of the written submissions by Counsel for the father).
In light of his Honour’s statements about the changeover conduct and the need for such conduct by the mother to cease, I consider that his Honour has considered and balanced the evidence in relation to that matter. There is nothing which has been put to me which establishes that his weighing exercise in this regard was outside of his discretion and, as Counsel for the mother states in his written submissions, there is no imperative for the trial Judge to follow in all cases the recommendations of a court-appointed expert.
Finally, in relation to ground three, the father complains that his Honour erred in failing to give weight to the mother’s and to the maternal grandmother’s apparent encouragement of the child to misbehave while in the father’s care. This matter was only raised briefly before me in the context of submissions about whether the mother undermined the relationship between the children, which I have already addressed above (see paragraphs 25 to 31). In written submissions filed on behalf of the father, the complaint is not agitated at any great length save for the following submission (at paragraph 12):
… The learned Magistrate failed to adequately address the concerns raised by the father and [the stepmother] about the mother’s alienating conduct, matters that went to the heart of the mother’s responsibilities as a parent and had a direct impact on the welfare of the child.
As I have already observed in the context of ground one, Counsel for the father did not emphasise in his final oral submissions at trial the allegation that the mother encourages the child to have a negative attitude to his brother and to misbehave while in the father’s care, and accordingly his Honour cannot be criticised for failing to place significant weight on these matters. This is particularly the case in the context of lengthy oral submissions criticising many aspects of the mother’s behaviour.
Thus I do not find that the weight which his Honour attached to the matters contained in grounds three and four led to error in the exercise of his discretion. I therefore find that those grounds fail.

Grounds 8, 9 and 10

Counsel for the father did not make any oral submissions before me in relation to the remaining grounds of appeal, but instead directed me to the content of the written submissions he had filed on behalf of the father.
Those grounds relate largely to the mother’s involvement of the child in nudist camp activities and findings which Brewster FM had made in relation to those activities as well as inferences which his Honour had drawn concerning the father’s attitude to the child’s involvement in the activities.
Grounds eight, nine and 10 are in the following terms:
8.The learned Magistrate erred in finding that the respondent was entitled to infer that the appellant would have no objection to the child’s participation in nudist camp activities, a conclusion which was not open on the evidence.
9.The learned Magistrate erred in finding that the parties past sexual practices were relevant to the respondent’s involvement of the child in nudist camp activities.
10.The learned Magistrate erred in finding that the child’s participation in nudist camp activities was not inimical to the child’s welfare in circumstances where the appellant opposed such participation.
The written submissions in relation to these grounds filed by Counsel for the father assert that Brewster FM erred in failing to properly address whether the child should participate in nudist camps against the background of the father’s opposition to such participation and, further, that the parties’ past sexual practices (which had had no bearing on the child’s welfare) were not a relevant consideration in determining whether the child should be permitted to participate in nudist camp activities and in ascertaining whether the mother could infer that the father would not have objected to the child’s involvement.
Brewster FM found that there was “in theory” some force in the father’s criticism that the mother had taken the child to nudist camps without consulting the father (at paragraph 25 of the judgment). However, his Honour then went on to say that he doubted that “the mother would have anticipated any objection on the part of the father” and that the mother was “entitled to assume that the father had an attitude to nudity that was on the extreme edge of liberalism” given evidence which had been before him concerning the parties’ past sexual practices and internet activities.
Then at the end of his judgment, his Honour concluded that he would discharge the interim prohibition preventing the mother from taking the child to nudist camps saying as follows:
34.As I have indicated, there are in existence orders precluding [the child] being involved in religion and orders preventing the mother from taking [the child] to any nudist camp. As I have indicated the mother does not now press for the order concerning religion and I will discharge that order. That leaves the issue of nudism. I do not normally make orders prohibiting a parent involving a child in any activity unless there is evidence that the activity is inimical to that child’s best interests. There is no empirical evidence that being involved in nudism would be inimical to [the child’s] best interests. All the father’s counsel could say on this issue was to repeat the father’s concern that it would in some way compromise [the child’s] “innocence”. I can see no reason why I should prohibit the mother involving [the child] in her nudist pursuits. I will discharge the order that prohibited her from doing so.
While, as I have said, Counsel for the father submitted that his Honour erred in making the findings which he did, Counsel for the mother submitted (in his written submissions) that it was open to Brewster FM, based on the evidence which had been before him at trial, to find that the mother could infer that the father would not object to the child’s attendance at nudist camps and, further, that his Honour was correct in finding that there was no evidence which would suggest that the child’s attendance would be against his best interests and in therefore lifting the interim prohibition preventing him from so doing.
In my view, it was open to his Honour to make the findings which he did concerning the likely inference by the mother concerning the father’s attitude to nudism. Further, given the lack of empirical evidence presented by the father which would indicate that it would be against the child’s interest to attend the camps, it was also open to his Honour to find that there was no reason to prevent the mother from involving the child in that activity. Again, it is not to the point that another Judge may have reached different conclusions about these matters. I therefore find no substance in these grounds of appeal.

Conclusion

Having considered all of the father’s grounds of appeal and the submissions put in support of them, and having found that none of those grounds have substance, I must therefore dismiss the appeal.

Costs of the appeal

At the conclusion of the hearing of this appeal on 31 January 2005, I received oral submissions from both parties concerning costs of the appeal in the event that the appeal were allowed and also if the appeal were dismissed.
If the appeal were to be dismissed, as I have decided it should be, Counsel for the respondent mother made an application for an order for costs against the appellant father on the bases that the mother is legally aided and that, if the appeal was dismissed the father would have been wholly unsuccessful in the appeal.
Given that this appeal related to children’s matters, it was submitted on the father’s behalf that, if the father’s appeal failed, there be no order for costs.
In response to the application for costs on behalf of the mother, Counsel for the father informed the Court that the father is self-employed earning approximately $600 per week (gross) but with substantial mortgage repayments to meet.
I am not persuaded that the circumstances would justify an order for costs against the father.

Orders

That the appeal against the orders of Federal Magistrate Brewster made 7 October 2004 be dismissed.
That the application by the father to adduce fresh evidence be dismissed.
That there be no order for costs in relation to the appeal or the application to adduce fresh evidence.

I certify that the preceding 94 paragraphs are a true copy of the reasons for judgment of this Honourable Court

Associate

[2005] FamCA 596

11 July 2005

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