Lawson & Hill (No 2)

[2017] FamCAFC 243

FAMILY COURT OF AUSTRALIA

LAWSON & HILL (NO. 2) [2017] FamCAFC 243

FAMILY LAW – APPEAL – PARENTING – Where the father appeals orders for supervised time – Challenges to weight given to expert evidence – Exercise of discretion – Findings open on the evidence – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the fact that the appeal concerns parenting issues weighs in favour of the provision of transcript – Where the transcript is not necessary to proceed with the appeal – Where the grounds of appeal challenged the exercise of the primary judge’s discretion – Application dismissed.

FAMILY LAW – COSTS – Wholly unsuccessful – Impecuniosity is not a bar to a costs order – Costs ordered.

Family Law Act 1975 (Cth) ss 94(2A), 117

Edwards v Noble (1971) 125 CLR 296
Forbes & Bream [2008] FamCAFC 189
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Muldoon & Carlyle (2012) FLC 93-513
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550
Sampson & Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542

APPELLANT: Mr Lawson

RESPONDENT: Ms Hill

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1626 of 2012

APPEAL NUMBER: EA 15 of 2017

DATE DELIVERED: 15 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Aldridge & Foster JJ

HEARING DATE: 15 November 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 23 December 2016

LOWER COURT MNC: [2016] FamCA 1147

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hodgson

SOLICITOR FOR THE APPELLANT: King & York Lawyers

COUNSEL FOR THE RESPONDENT: Ms Giacomo

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lawrence

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The Application in an Appeal filed on 22 September 2017 is dismissed.

2. Appeal EA 15 of 2017 against the orders of Watts J made on 23 December 2016 is dismissed.

3. The appellant pay the respondent’s costs of and incidental to the appeal in the sum of $6,061 such costs to be paid within forty two days of today’s date.

IT IS FURTHER ORDERED BY CONSENT:  

1. Vary order 8.2 made by Watts J on 23 December 2016 to read:

   For four hours on four days in the second half of the fourth term school holidays such days to be nominated by the father to the mother on 28 days’ notice.

2. Vary order 14.3 made by Watts J on 23 December 2016 to read:

   The child’s time with the father is unable to occur as a result of either of the reasons referred to in order 14.1 or 14.2 then the mother shall arrange for

   
   

   make-up time to occur on the following weekend but if that is not possible, as soon as it can practicably be arranged, but unless the parties agree in writing, not added to the time the child is already to spend with the father.

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 Lawson & Hill (No. 2) 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 15 of 2017
File Number: SYC 1626 of 2012

Mr Lawson

Appellant

and

Ms Hill

Respondent

and

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

AINSLIE-WALLACE J

1. On 23 December 2016 Watts J made parenting orders following contested parenting proceedings between Mr Lawson (“the father”) and Ms Hill (“the mother”).  The proceedings concerned the parties’ only child C who was born in 2010.  On 20 January 2017 the father filed a Notice of Appeal against his Honour’s orders. 

2. The orders provided that the mother have sole parental responsibility for the child, and that the father spend supervised time with the child every four weeks during the school term, and during school holidays. The mother was to contribute the first $200 to the costs of supervision during school terms and the father was to pay the remainder and all supervision costs in the school holidays. The orders further provided that there be no electronic or telephone communication between the father and the child.

3. The primary judge’s orders also restrained the father from communicating with the child’s medical professionals and schools, attending the child’s extra‑curricular activities and school related events and communicating with the mother other than by short email in certain circumstances. His Honour also dismissed the father’s application that the child’s surname be hyphenated.

Provision of transcript

1. By Application in an Appeal filed on 22 September 2017 the father seeks that the Court order and pay for the transcript relevant to the appeal.

2. It must be first observed that the Family Court does not routinely provide transcript of proceedings for parties. Indeed, the Court does not have a budget for that provision and the cost of providing such a transcript would impinge on other expenditure necessary for the operation of the Court.

3. However, as was said in Forbes & Bream [2008] FamCAFC 189 at [35], where the interests of justice require it and the party seeking the provision of the transcript cannot afford it, the Court may, in the exercise of its discretion, agree to provide relevant parts of the transcript necessary to enable the appeal to proceed.

4. The Full Court in Sampson & Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 identified a number of matters that may be taken into account in determining an application for the provision of transcript at [16]. Relevantly to this application I take into account that the appeal concerns parenting issues, which is a factor that weighs in favour of transcript being provided. However, apart from the bare submission that the father could not afford to buy the transcript, nothing was put to me that identified what ground or grounds of the appeal required the provision of transcript or parts of it to enable it to be argued. Indeed, as I see the grounds of appeal, the challenges are to the weight attributed to evidence and his Honour’s findings of fact. No ground asserts that the primary judge mistook evidence or made findings which were unsupported by the evidence. To that extent then, I am not satisfied that the provision of transcript is necessary to enable the appeal to proceed.

5. No estimate of the cost of the provision of the transcript was made although I readily accept that it would not be inexpensive. 

6. The father’s affidavit in support of his application outlines his financial position. He states that he is on a pension without any other source of income, receiving $1,004.63 per fortnight. The father further submits that, in accordance with the orders under appeal, he is required to pay a significant proportion of the supervision fees, and indeed all of the fees for the time when he sees the child in school holidays.

7. There seemed to be no dispute that he is himself of limited means although it is tolerably clear that his costs of the parenting proceedings, said to have been in the order of $500,000, have already been met by his parents. 

8. As I have said it is also apparent that the grounds of appeal did not assert that the primary judge misconceived the evidence or made findings of fact not available. Rather, the grounds challenged the exercise of the primary judge’s discretion.  Counsel for the father properly conceded that position and as the argument on appeal developed, nothing arose which would otherwise require the provision of transcript.

9. In all of the circumstances I do not regard this as a matter in which, in the exercise of the court’s discretion, the court should bear the cost of the provision of transcript to the father and in my view, the father’s Application in an Appeal should be dismissed.

Background

1. In order to give context to the appeal and the manner in which I propose to deal with the grounds of appeal, I will set out findings from the primary judge’s reasons.  I understand from the grounds and the summary of argument of the father that, in the main, these matters are uncontentious.  The nub of the appeal is what conclusions should have flowed from the evidence and what weight or complexion ought to have been given to the evidence. 

2. The parties commenced cohabitation in either late 2009 or mid-2010, and the child was born in 2010. It appears that the parties’ relationship was tumultuous, with the parties separating and reconciling numerous times before separating on a final basis in February 2012. The child has lived with the mother since separation. On 21 May 2012 consent orders were made in the then Federal Magistrates Court that provided for the child to live with the mother and that the father would spend two hours each week with the child, that time to be supervised at a contact centre. These orders were conditional on the father attending upon a treating psychologist or psychiatrist and following reasonable directions in relation to ongoing treatment or medication. That time was later increased to five hours each alternate Sunday, the contact to be supervised by the paternal grandfather.  As his Honour observed, the visits and the supervision were beset with difficulties.  

3. In November 2015 the parties discussed the father making telephone calls to the child.  The mother agreed that the father could have such telephone time subject to conditions as to the day and time on which the call was to be made and as to the content of the conversations. The father did not agree to the conditions and sought to impose his own conditions.  It seems that eventually some telephone contact between the child and the father took place but difficulties ensued and the contact did not continue. Despite the number of attempts made to facilitate supervised time between the father and the child, the arrangements have broken down with some facilities refusing to continue to provide supervision services.

The father’s mental health

1. There was no dispute that the father has a mental illness. The issue to the extent that it is relevant, is that the father disputes the attributed diagnosis of what that illness is.  He has had admissions to hospital in the past and has, for some time, been under the care of both a general practitioner and a psychiatrist.

2. The father’s treating psychiatrist gave evidence that in his view the father had both bipolar affective disorder and a personality disorder.  He also said that personality disorders were difficult to treat and that psychotherapy with the father had produced marginal improvement.  His opinion was that while the father was receiving medication for his bipolar disorder, its effects were hampered by the stress of the litigation and not spending time with the child (at [109]). The father’s treating psychologist and general practitioner also gave evidence about the treatment offered to the father and their opinion as to the effectiveness of that treatment.

3. The treating psychiatrist and the father’s general practitioner both expressed the view that the father’s condition may be ameliorated if he had more time with the child.  The primary judge said:

   111. It was put to [the father’s psychiatrist] that the father’s behaviour has the potential to cause unintentional emotional abuse to the child to which [the father’s psychiatrist] responded that in his opinion a greater emotional abuse would be done to the child if arrangements were not put in place for the child to have proper time with the father. [The father’s psychiatrist] has not seen the child at any time and has not seen the father and the child together. I am unable to place any weight upon this opinion expressed by [the father’s psychiatrist].  [The father’s psychiatrist] is also of the opinion that the father did lack insight into the effects of his behaviour arising from his bipolar disorder and personality disorder …

4. Both parties were interviewed by a court appointed expert, Dr E, for the purposes of preparing a report for the court.  Dr E is a psychiatrist.

5. His Honour said, referring to that evidence:

   129.[Dr E], psychiatrist, provided a Chapter 15 report to the court. In his September 2015 report [Dr E] opines that the predominant feature of the father’s condition has been, over time, an “unremitting elevation in his mood (hypomania)” which he says has resulted in “a very disorganising effect on his thinking, patience and judgement”. This elevated behaviour has been complicated, [Dr E] says, by “considerable rumination, doubting, checking and other intrusive thoughts and actions”. [Dr E] agreed with [the father’s psychiatrist] and [the father’s general practitioner] that the medication prescribed for the father has not been seen to have had any positive effect. [Dr E] concluded that there has not been a substantial improvement in the father’s mental state which has been evidenced by the breakdown in contact visits because of the father’s poor judgment and his conduct around the child’s health and hospitalisation. However, [Dr E] did concede that the father now has more insight into his condition and how his behaviour affects others. However, he said that this level of insight does not last long.

   130. [Dr E] opines that while the treatment and support provided by [the father’s general practitioner] and [the father’s psychologist] has resulted in some improvement in the father’s social judgment, the father only follows their advice for short periods and has not resulted in sustained improvement. …

6. His Honour concluded at [133] that the father had a long standing difficult mental status problem which was unlikely to be significantly improved by future treatment. His Honour also found the father had bipolar disorder and a personality disorder (at [134]).

7. The primary judge continued:

   134. … The combination of these two medical conditions means that the father behaves on a regular basis in a way which presents significant challenges to the mother in terms of dealing with the father as a parent. The father can often present himself as irritable and argumentative. His personality disorder creates a longer term problem particularly as the child grows older and has a direct effect on the father’s capacity to manage views expressed by the child and behaviours of the child with which the father disagrees or objects.

   135. Although the single expert, the father’s treating psychiatrist, the father’s treating psychologist, and his general practitioner, all disagree about the nature of the father’s personality disorder, they all agree that he has one. Although I would normally rely upon the treating psychiatrist’s diagnosis by way of preference, [the father’s psychiatrist] had not fully turned his mind to the nature of the father’s personality disorder (for example he was still working on DSM-IV diagnostic criteria). I am most comfortable with accepting the diagnosis of the single expert, namely, that the father has a mixed personality disorder with obsessional and hypomanic features.

   136. I also accept the single expert’s view that treatment for personality disorder is very problematic. The history of this matter is that over the long period that this case has been in the court, significant resources have been provided to the father to attempt to improve the difficulties he has with his mental status. Very little progress has been made by way of improvement. As I have found, the father has a very difficult, long standing mental status problem which is unlikely to be significantly improved by further treatment.

8. His Honour concluded:

   203. In [Dr E’s] report dated 14 September 2015, he states that despite his best intentions, the major problem with the father continues to be that whatever is his immediate priority overrides many other social expectations and conventions of cooperation and collaboration such that his behaviour becomes overwhelming and intrusive to the point that it is inappropriate and the child’s wellbeing is compromised. He says that “much of his interaction with [the child] is a form of unintentional emotional abuse.” He concluded that “it is my view that until there has been an improvement in [the father’s] overall stability, his time with [the child] runs an unacceptable risk of being harmful to [the child] unless it is properly supervised.”

   204. I find there is an unacceptable risk of the child’s time with his father being harmful to him unless that time is properly supervised.

9. As to the supervision of the child’s time with the father his Honour said:

   309.… When he is in an elevated mood the father cannot be controlled or contained. …

   …

   311. … [Dr E] agreed that the father had been under a number of pressures impacting on his mental vulnerabilities … [Dr E] accepted that at the end of the litigation an order for unsupervised time would remove those types of pressures. [Dr E] did however go on to say that the question was whether or not the improvement in the father’s behaviour brought about by the removal of those pressures could be predicted to be sufficient where a point was reached beyond the threshold which required supervision. [Dr E] did not express an opinion about that ultimate question but I am unable to find that the end of the litigation and the removal of supervision will create such a beneficial change to the father’s behaviour that supervision would no longer be required.

10. Thus the primary judge concluded that the time the child spent with the father should be supervised.

11. His Honour found the presumption of equal shared parental responsibility rebutted having found the father to have engaged in family violence, but more particularly because of the parties’ “total inability” to communicate with each other (at [252]). His Honour concluded that this inability arises primarily from the father’s mental illness.

12. The father also sought an order that the child’s surname be hyphenated to accommodate both his and the mother’s surnames.  It was undisputed that at the child’s birth, his two forenames were the names of his paternal grandfather and great grandfather.  The parties agreed then that the child should have the surname of his mother.

13. The primary judge concluded that while the time he proposed to order that the child spend with the father would be limited, it would be sufficient for the child to continue to know the father and, taking into account the effect on the child of now changing his name, it was not in his best interests that that happen (at [274]).

14. Equally, he rejected the father’s application that the child’s school be changed on the basis that such a change was not in the child’s best interests (at [291]).

15. His Honour also made orders which enabled the child to experience the father’s religion (at [306]).

The appeal

1. Pursuant to s 94(2A) of the Family Law Act 1975 (Cth) (“the Act”), this Court is entitled to give its reasons in short form in the event that the appeal is to be dismissed and if, in the opinion of the Full Court, the appeal does not raise any question of general principle. As these conditions are fulfilled here, I propose to give reasons in short form.

2. The father’s Notice of Appeal raises 18 grounds of challenge to his Honour’s orders.  Counsel for the father indicated that Grounds 6 and 8 are not pressed. 

3. At the outset of his oral submissions, counsel for the father made what he described as two over-arching submissions.

4. The first was that Dr E, in his first two reports dated 13 November 2012 and 8 January 2014, was supportive of the father having more time with the child than what counsel termed the “very restrictive orders” made by the primary judge, which counsel accepted were supported by the opinion expressed by Dr E in his final report, especially at page 26 of that report. The submission was that the change in Dr E’s opinion was not justified by any conduct of the father.

1. I do not accept this.  One only needs to look at the report from the XX Contact Service about an incident which took place on 26 June 2015 and that which took place at a public swimming centre in September 2014 (discussed by the primary judge at [160]–[162] and  [164]–[166]) to understand the seriousness of those incidents.  Furthermore, his Honour had before him evidence of the father’s deteriorating mental health.

2. Thus I reject the submission that the primary judge went “over the top” in framing the orders he did for the amount of time spent between the child and the father in its limited form.

3. The second submission was that the primary judge erred in that, by providing such limited time, in effect he crafted the amount of time to be spent between the father and the child by reference to the amount of money the parties had to pay for the professional supervision of that time, not to the child’s best interests.

4. The primary judge’s findings at [307]–[312] that the child’s time with the father be supervised were not challenged.  The primary judge then turned to consider the amount of time to be spent between the father and the child.  While his Honour, entirely correctly in my view, took into account the cost of such supervision and the financial means of the parties to pay for it, his Honour also took into account the availability of supervision and the amount of time to be spent that would be in the child’s best interests (see [329] and [332]–[339]).

5. Thus I reject that submission.

6. Turning then to the asserted grounds of appeal.  The grounds challenge either the weight that the primary judge attributed to the evidence, both of the expert witnesses and the parties, the findings his Honour made based on the evidence and the exercise of his discretion. 

7. The weight or importance given to evidence in a trial is a matter quintessentially within the province of the trial judge.  As Stephen J stated in Gronow v Gronow (1979) 144 CLR 513 at 519:

   The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion …

8. Lest it be thought that the fact that evidence is given by an expert compels a trial judge to accept it, it is to be borne in mind that expert opinion is just that, an opinion. The weight attributed to expert evidence falls to be determined by the trial judge in light of all of the other evidence in the case (see for example, Muldoon & Carlyle (2012) FLC 93-513).

9. The bar then to demonstrating error in the apportionment of weight to evidence is set high indeed and nothing in the written summary or in the oral argument persuades me of relevant error.

10. Equally, challenges to fact finding will not attract appellate intervention unless it can be established that the finding was not available on the evidence.

11. In Edwards v Noble (1971) 125 CLR 296 Barwick CJ said at 304:

    The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differring views do not establish that either view is wrong.

    (See too Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550).

12. Potently, in relation to no ground was it suggested that any of the impugned findings were not open to his Honour on the evidence. The complaint is merely that other findings may have been available on the evidence.  That does not establish relevant error.

13. Finally, as to the exercise of a judge’s discretion, I observe that the father must establish some error in that exercise and demonstrate that the decision under review is unreasonable or plainly unjust (see House v The King (1936) 55 CLR 499 at 504 to 505).

14. In relation to none of the asserted grounds has the father established error and the grounds relating to his Honour’s exercise of discretion in my view should fail.

15. Thus I would order that the appeal be dismissed.

ALDRIDGE J

1. I agree with the reasons of, and the orders proposed by, the presiding judge.

FOSTER J

1. I agree with the reasons given, and the orders proposed, by the presiding judge.

AINSLIE-WALLACE J

1. Therefore the orders of the Court will be:

   (1)The Application in an Appeal filed on 22 September 2017 is dismissed.

   (2)Appeal EA 15 of 2017 against the orders of Watts J made on 23 December 2016 is dismissed.

Costs

1. In my view, in the circumstances a costs order should be made against the father for the following reasons, and the following reasons provide a reason for departing from the principle set out in s 117 of the Act.

2. The appeal has been wholly unsuccessful and although the father has little in the way of funds so too has the mother, and from her funds she is obliged to pay $600 towards the costs of the supervision of the father’s time with the child. It is well accepted that impecuniosity is no bar to a costs order if one is otherwise warranted and in my view such an order is warranted.

3. I would order the father to pay the mother’s costs of and incidental to the appeal in the sum of $6,061 within 42 days.

ALDRIDGE J

1. I agree.

FOSTER J

1. I agree with the reasons given and the order proposed.

AINSLIE-WALLACE J

1. The Court will further order:

   (1)The appellant pay the respondent’s costs of and incidental to the appeal in the sum of $6,061 such costs to be paid within forty two days of today’s date.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Foster JJ) delivered on 15 November 2017.

Associate: 

Date:  15 December 2017