LOOMIS & THURSTON - [2017] FamCAFC 85

FAMILY COURT OF AUSTRALIA

LOOMIS & THURSTON

[2017] FamCAFC 85

FAMILY LAW –APPEAL – CHILDREN – Parenting orders –Whether father denied procedural fairness – Findings were available – Weight afforded to evidence – Where the appeal does not raise any question of general principle – Reasons for decision in short form pursuant to s 94AAA(7) – Appeal dismissed.

Family Law Act 1975 (Cth) ss 61DA, 69ZN(4), 69ZQ(1)(c), 69ZX(1), (2), 94AAA(7)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
CDJ v VAJ (1998) 197 CLR 172

Gronow v Gronow (1979) 144 CLR 513
House v King (1936) 55 CLR 499

APPELLANT:

Mr Loomis

RESPONDENT:

Ms Thurston

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

1010

2012

APPEAL NUMBER:

2015

DATE DELIVERED:

5 May 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Ryan and Kent JJ

HEARING DATE:

27 April 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 November 2015

LOWER COURT MNC:

[2015] FCCA 2354

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Galloway (direct brief)

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The appeal be dismissed.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Loomis & Thurston 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 BRISBANE

Appeal Number: NA 90 of 2015

File Number: BRC 1010 of 2012

Mr Loomis

Appellant
And

Ms Thurston

Respondent
REASONS FOR JUDGMENT

INTRODUCTION

This is an appeal against parenting orders made by Judge Howard on 13 November 2015. The appellant, Mr Loomis (“the father”) is the father of the child KK (“the child”) to whom the orders relate. Ms Thurston is the child’s mother (“the mother”) and the respondent to the appeal.
The child was 26 months of age when the parties separated following which he remained in the mother’s care and spent time with the father. He was five years of age at the time of trial. In the intervening years, the child was exposed to his parents’ terrible personal relationship and the primary judge was required to consider a significant number of instances where one or other of the parties, indeed on occasion both, had behaved poorly in the presence of the child and demonstrated a real lack of insight into the effect on the child of their respective behaviour. The short and long term effects of this poor parental behaviour and judgment was in sharp focus before his Honour and in relation to which each of the parties was found to be wanting.
The father and the mother sought orders that the child live with him or her and spend time with the other parent. The mother proposed that the child have five nights per fortnight with the father and for his part, he sought that the child spend each alternate weekend with the mother. There was thus no issue that both parents would continue to be involved in the child’s life, but a significant issue was who would be primarily responsible for his day to day care. As a consequence of the poor parental relationship there was a question about whether an order that the parties have equal shared parental responsibility would be in the best interests of the child.
On the basis that:-
·   The evidence of a family consultant and a single expert psychiatrist did not exclude either party as the child’s long term primary carer,
·   The child was primarily attached to the mother,
·   Evidence of a family consultant that the child would “definitely suffer grief and feelings of dislocation if he were removed from her primary care” [132],
·   The mother understood the short and long term damage that the parental conflict caused and is likely to cause the child [74] whereas the father did not [76],
·   Which meant there were prospects the mother would take steps to eliminate or significantly reduce the child’s exposure to the parental conflict [80],
·   And, with the assistance of her partner, the child would live in a household where he was less likely to be exposed to negative views of the other parent than would be the case if he lived with the father and his adult daughter [80],
·   The primary judge concluded that it was in the best interests of the child to live primarily with the mother.
As to the child’s time with the father, the primary judge accepted the evidence of the family consultant that the level of conflict between the parties was such that they were incapable of cooperating to the extent needed to make a nine day-five day fortnight living arrangement work [111]. The family consultant’s evidence that the child should live ten days a fortnight with his primary carer was also accepted [113]. So as to minimise the child’s exposure to parental disputation, it was ordered that he live with the father four consecutive days in each fortnight during school term. During school holidays his time was shared equally and he would spend time with each of his parents on designated special occasions. The primary judge was satisfied that the child would thus have the benefit of ongoing, close and loving relationships with both of his parents and be able to enjoy his time with his father [85], [86] and [92].
As a consequence of findings that there had been family violence, the presumption of equal shared parental responsibility contained in s 61DA of the Family Law Act1975 (Cth) (“the Act”) did not apply. In any event, because of the poor parental relationship, equal shared parental responsibility would not be in the best interests of the child and, as the child was to live primarily with the mother, it was ordered that she have sole parental responsibility.
The father appeals against all of the orders. It is his contention that the orders should be set aside and the proceedings remitted for rehearing in the Family Court of Australia. As this is an appeal against orders of a judge of the Federal Circuit Court of Australia, any remitter must be to that court.
The mother resists the appeal and seeks to uphold the orders.
An independent children’s lawyer (“ICL”) was appointed to represent the child’s interests. The ICL contends that the appeal should be dismissed.
The appeal will be dismissed. The Court is of the unanimous opinion that it does not raise any question of general principle. The Court’s reasons in short form (s 94AAA(7) of the Act) follow.

DID THE PRIMARY JUDGE ERR?

At the commencement of the hearing of the appeal, counsel for the father was given leave to rely on an amended summary of argument which recast the numerous challenges advanced by the father into a form which properly grappled with the fact that this is an appeal from a discretionary judgment (House v King (1936) 55 CLR 499). Towards the end of closing addresses, we were further advised that the 75 particulars contained in the father’s further amended notice of appeal filed on 29 July 2016 were relied on as background information. The point being that even if established they would not impugn the trial judgment and it was acknowledged we need not give them further consideration. When regard is had to the trial record, we agree that the “particulars” could not establish appellable error.
In the event, the various challenges ultimately pressed, were distilled into assertions that the primary judge erred by:-
· Denying the father procedural fairness by failing to permit him to rely on a particular affidavit and proceeding with the hearing,
· Failing to give sufficient weight to expert evidence and evidence of the mother’s suicidal threats and suicidal behaviour, and
· Failing to find that statements made by the child and recorded by the father and his daughter on 6 May 2015, are based in fact and not as his Honour found, an “invented...story” [55].
To put the procedural fairness challenges in context, it needs to be understood that these proceedings commenced in early 2012 and that an earlier trial had been adjourned. In preparation for this trial, the primary judge made procedural orders and directions on 4 December 2014. By order 17 of these orders, the parties were required to file a single affidavit setting out their evidence in chief by 25 April 2015. This was in preparation for a final trial which was listed to commence on 25 May 2015. Order 7 set out the consequences of a failure to comply with order 17 and notation “A” to the orders repeated the requirement that there be but one trial affidavit and for it to be filed “within the time stipulated”.
In the life of the proceedings the father filed a number of affidavits, but relevantly an affidavit by him filed on 10 April 2015 (comprising 212 pages of text plus a large number of annexures) was the only affidavit under his hand filed in compliance with the trial directions. One might anticipate that an affidavit of this length provided more than ample scope for the evidence which the father wanted to give. However, he filed a further affidavit on 18 May 2015 upon which he sought to rely. This was an extremely prolix document (comprising 236 pages of text along with hundreds and hundreds pages of annexures) with only one paragraph (paragraph 563) that dealt with events which occurred subsequent to 25 April 2015. Objection was taken to the late filing of this document and, on the basis that “…the father has not put forward any submission upon which the court could exercise its discretion to grant him leave to rely upon any trial affidavit filed outside the time limit” the primary judge refused permission for the father to be able to rely on it. The father’s trial affidavit was, thus, the affidavit of 10 April 2015.
It would seem that the father also sought to rely on an affidavit of his filed on 30 January 2014, the effect of which was that he hoped to persuade the court to accept (and have the mother and ICL deal with) some 2000 pages of affidavit material from him, the majority of which was filed in contravention of the trial directions. When regard is had to s 69ZN(4) of the Act, which requires the court to actively direct, control and manage the conduct of the proceedings, s 69ZQ(1)(c) which imposes a duty on the court to make directions about the timing of steps that are to be taken in the proceedings and ss 69ZX(1) and (2) which deals with the court’s general duties and powers relating to evidence, it is clear that the approach adopted by the primary judge was one of orthodox and necessary trial management.
Nor was there a denial of procedural fairness to the father because the primary judge refused to entertain yet another application by him for legal expenses or in refusing his application for an adjournment based on a doctor’s certificate which said the father suffered “nervous exhaustion”. As the trial transcript demonstrates, the primary judge accepted the submission by counsel for the ICL that the father had had ample time within which to arrange legal representation, the legal expenses application mirrored earlier applications and for the same reasons they had failed the current application was doomed to failure, it was in the best interests of the child that the matter proceed and in the overall interests of the administration of justice that the costs, time and expenses of the trial not be wasted. We similarly find no error in the decision to refuse the father’s application for an adjournment predicated on the basis of the medical certificate. As his Honour undoubtedly anticipated and is apparent from the trial record the father was able to fully conduct his case. The reliance placed on the principles which emerge from Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 was apt.
Turning then to the challenges made in relation to the weight afforded to the evidence of the family consultant and single expert psychiatrist, it is well settled by authority that an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight (Gronow v Gronow (1979) 144 CLR 513 at 520 per Stephen J). This is particularly brought into focus in respect of parenting orders which inevitably involve assessments as to the future (CDJ v VAJ (1998) 197 CLR 172 at 218).
It needs to be understood that notwithstanding evidence of the mother’s historical psychological difficulties including her suicidal threats and suicidal behaviour, the psychiatrist was of the opinion there was “…no psychiatric reason why the mother would not be able to appropriately care for the child unsupervised” (report of Dr OO dated 15 October 2012 page 13). In a subsequent report dated 16 April 2014 at page 14 the psychiatrist expressed similar sentiments, opining that
…I would have no concerns that the child would be at risk of significant harm in the care of either parent on either a supervised or unsupervised basis except insofar as they continue to expose the child to the ongoing conflict between the parties and fail to protect the child from their own anxieties and emotional valance.
Although in an early report the family consultant had recommended that the child live with the father, she moved away from this recommendation and by the time the proceedings came to trial the family consultant was of the opinion that the child should live with the parent best able to provide stability and “protection…against the rigours of parental warfare.” Who that might be was a matter for the Court. The primary judge was entitled to accept this evidence and he did.
It follows that the expert evidence does not support the father’s contention that the mother, by reason of her history of suicidal threats and behaviour, posed an unacceptable risk to the child such that he should not remain in her long term care and any order other than for the child to live with him was plainly wrong. Otherwise, his Honour accepted recommendations made by the psychiatrist of strategies which would be of assistance to the parties and orders were made requiring each of them, for example, to engage a mental health professional.
The only other matter requiring consideration relates to the recordings of 6 May 2015 which are discussed at [48] – [56] of the trial reasons. Having recounted the detail of the conversations of the child’s statement and the circumstances under which they were recorded, the primary judge noted the father’s evidence that the child concluded his statement with the words “just tricking.” The primary judge came to the view that the child’s statement was not a reliable recitation of a real event and explained his reasoning thus:
55.I have come to the conclusion that it is more likely than not that the child did state the words attributed to him by [the father’s daughter] and the father relating to the truck incident. I have also come to the conclusion that it is more likely than not that the child has invented this story. There is no independent verification of any such incident. The father did not report to the police what the child had told him. The father did not make a report to the Department of Child Safety or to any other person in relation to this incident. I have come to the conclusion that it is more likely than not that the father did not in fact believe that the incident had occurred. If the father had in fact believed the child’s story then he would have taken the step of contacting the police. These parents are engaged in a parental conflict which is intractable. The father has not, in the past, hesitated to pursue the mother in this litigation by any means possible. The mother, similarly has pursued the father by any means possible. In particular, the mother recently contacted the police and made an allegation of fraud against the father (in or about January 2015) in relation to the father accessing the mother’s Queensland Transport account online.
56.In those circumstances I have no doubt whatsoever that the father, if he had believed what young [the child] had told him on 6 May 2015, would have contacted the police and would have acted protectively and not returned the child to the mother. The father has attempted to use the story told to him by the child as evidence against the mother.
These reasons more than adequately explain why the primary judge came to the view that he did. In so doing he did not take into account irrelevant facts or fail to take into account matters which were relevant. The conclusion reached was plainly open.

CONCLUSION AND COSTS

It has not been demonstrated to our satisfaction that, in reaching his decision, the primary judge erred in the approach he adopted or in principle, that he failed to take into account any relevant factor, that he took into account any irrelevant factor, that he was mistaken as to the facts or that the result embodied in the orders was clearly wrong or unreasonable or plainly unjust.
All that remains is for us to again express our thanks to counsel for the father who cogently and clearly put all submissions which, in the circumstances of this case, were reasonably available to him having regard to the applicable appellate principles and the trial record.
Neither the mother nor the ICL sought costs against the father and an order will be made that there be no order as to costs.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan & Kent JJ) delivered on 5 May 2017.

Associate:

Date: 5 May 2017