Lyons and Adder
[2014] FamCAFC 6
•31 January 2014
FAMILY COURT OF AUSTRALIA
| LYONS & ADDER | [2014] FamCAFC 6 |
FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – COSTS – Where the mother applied to have the appeal reinstated – Where it could not be said that the outcome of the appeal was a foregone conclusion – No order as to the costs of the appeal – Mother to pay father’s costs of application to reinstate appeal. |
| Family Law Act 1975 (Cth) |
| Fox v Percy (2003) 214 CLR 118 Norbis v Norbis (1986) 161 CLR 513-540 |
| APPELLANT: | Ms Lyons |
| RESPONDENT: | Mr Adder |
| FILE NUMBER: | LEC | 56 | of | 2012 |
| APPEAL NUMBER: | NA | 107 | of | 2012 |
| DATE DELIVERED: | 31 January 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, May & Hogan JJ |
| HEARING DATE: | 26 June 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 December 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1461 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Priestley |
| SOLICITOR FOR THE APPELLANT: | GJ Donaghy & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Mason |
| SOLICITOR FOR THE RESPONDENT: | David Nelmes & Associates |
Orders
The appeal be dismissed
There be no order as to costs in relation to the appeal.
The mother pay the father’s costs of and incidental to the application to reinstate Appeal NA 107 of 2012 filed 26 February 2013, to be assessed if not agreed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lyons & Adder has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 107 of 2012
File Number: LEC 56 of 2012
| Ms Lyons |
Appellant
And
| Mr Adder |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother brought parenting proceedings concerning the children T, a boy, born April 2003, and R, a girl, born September 2005. In those proceedings, Demack FM (as she then was) made parenting orders, the gravamen of which was to place the children predominantly in the care of the father, with the mother to spend time with the children on each alternate weekend, for one-half of school holiday periods, and on Mother’s Day. The mother appeals the decision on the basis that her Honour should have placed the children predominantly with her, and in not so doing, her Honour’s decision is occasioned by appealable error.
The mother, through counsel, accepts that this is an appeal against a discretionary decision and that an appeal against an exercise of discretion is governed by established principles, as enunciated in House v The King (1936) 55 CLR 499 at 505:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Norbis v Norbis (1986) 161 CLR 513, 540, Brennan J referred to Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345, in which Asquith LJ stated the rationale of an appellate court’s approach:
It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
Brennan J continued:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
The mother contends that there are discernible bases in the judgment for finding that the decision is plainly wrong and “exceeds the generous ambit within which reasonable disagreement is possible.”
An assessment of the evidence and reasons for judgment does not reveal that her Honour’s decision was plainly wrong or outside “the generous ambit within which reasonable disagreement is possible.” In our view, the mother has not established appealable error and the appeal must therefore be dismissed. Our reasons for so concluding follow.
Relevant Background
The relevant background emerges from her Honour’s ex tempore reasons for judgment. As there was no challenge to the parties’ history as her Honour recounted it (save for one matter), it is convenient to set out the following paragraphs of her Honour’s judgment:
1.This is a decision with respect to parenting arrangements for [T], who was born in April 2003 and his little sister, [R], who was born in September 2005. Their parents were in a relationship from 2002 until December 2007 and they are presently unable to agree as to what arrangements should be in place from this day forward.
2.They have, in time, since their final separation, been able to manage the arrangements of their children without court orders; that ended in January this year, when an application was commenced in early February, and orders have been in place since April of this year.
3.The parents’ competing proposals are that the children live with the parent who is before the court and spend time with the other parent. This is a trial, then, where each parent proposes that the children live with them.
4.The parents live about an hour and a half drive away from each other and equal time or substantial and significant time is not reasonably practicable just because of the distance. There was some time taken, during the trial, with examining whether one of the parents may have the capacity to move to live to the area where the area [sic] where the other parent is living but that is not something which either parent has any intention of taking up so, to that end, that is a futile part of the evidence.
5.The mother is the applicant; she was born in … 1972. She lives at [L]. She is an Aboriginal woman. She is presently in a relationship with Mr [RD] and has been since March 2012. The mother works on a permanent part-time basis. She has been a reliable and steady worker for most of her adulthood. She owns the home that she lives in, in [L].
6.The father lives in the [C] area, presently in [M] but has previously lived in [Y]. He is presently employed on a casual basis for the local council in a form of labouring job. He has only been so employed for the last couple of weeks and indeed, has only done, so far, two shifts. He was, earlier in his adult life, a professional [sportsperson]. He retains an interest in [sport], although is not presently working or being paid within [sport]. The father is, it is perhaps safe to describe, an extraordinarily tall man. He has an imposing presence upon standing up in his full height. He is not presently in a relationship, he is keen to remain living in the [C] area, where he has a solid social support network arising from his worshipping at a local Presbyterian church. He lives in rented accommodation and will shortly need to move to new rental accommodation.
7.The two children, [T] and [R]; [T] was born with mild cerebral palsy and he has learning difficulties. He also has attention deficit hyperactivity disorder (“ADHD”), for which he commenced taking Ritalin during the middle of 2011. The Ritalin is of particular assistance with him with retaining concentration during the schooling day and his use of Ritalin on weekends and holidays is described, by the treating doctor, as being optional. In the father’s care, the father chooses not to give [T] his Ritalin on weekends or holidays; in his mother’s care, I understand the mother continues to have [T] take Ritalin during weekends and school holidays.
8.The next and second child is [R], who was born in September 2005. [R] has no particular health issues.
9.The mother has an older child, a son, [E], who is aged about 20, who lives independently.
…
15.When the parents separated on a final basis, at Boxing Day 2007, the father shortly thereafter left [L] and went to live in [Y]; the children remained with the mother. The children were then both young; [T] had not yet started school and [R] was only a couple of years old.
16.They remained with their mother and spent time with their father with the parents, to some level, cooperating with each other for moving the children between the two households or the adults moving between the two households for the children to be able to see their parents. The parents, although having separated, both appeared to retain some, at least minimal, hope of reconciliation.
17.In January 2009, at a time when [T] was about to start school, the mother formed the view that she was experiencing difficulty parenting [T] and she asked the father to have [T] live with him and for him to start school from his father’s home.
18.The parents then, at that point in time, agreed, through whatever method and with whatever understanding that [T] would live with the father and [R] would live with the mother.
19.In July 2009, that same year, the mother obtained an apprehended violence order in her favour. [T] was, at that stage, living with the father and [R] was living with the mother.
20.That situation remained in place until October 2010, when the father returned [T] to the mother. The reasons for [T] being returned to the mother would appear to be that both of the parents, to some extent and the father, to a greater extent, believed that the children should live together, that is that the siblings should not continue to be separated. The father had formed that view.
21.The father, it seems, had also remained hopeful of a reconciliation with the mother. That reconciliation not being forthcoming and there being no intention of the mother, for [R] to leave her care and to live with the father, the father returned [T] to live with the mother. It is also at around about that time that the father received work in Sydney, which was back doing [sport], which has clearly been a passion for him. So, after [T] was returned to live with the mother, the father then, for a time, took himself to Sydney to do [sport].
22.The children then remained with the mother from October 2010 through to May 2011. Of course, during that time period, the children were living back together as a sibship and they had not lived together, full-time, as a sibship, since January 2009, when they had been separated by their parents’ agreed actions.
23.In May 2011, both of the children, with the agreement of the parents, left their mother’s care and went to their father’s care. The parents do not agree as to what the long term intention was, at that time but it is plain that the children went to live in their father’s care, by their mother causing that to have happened, by the mother having requested that of the father and the father having accepted that responsibility.
24.At this stage then, the children, in May 2011, were retained together as a sibship of two. It is important to note, at May 2011, that this is the first time that [R] has left her mother’s primary care. At that stage, she was aged five and a half and she had, up until then, lived in her mother’s primary care from the point of separation of her parents but had spent regular time with her father but had not experienced her father as her full-time carer.
25.In July 2011, [T] was commenced on Ritalin. Some time around about that time, there was a failed mediation between the parents.
26.In January 2012, when the children were with the mother during the school holiday period, in an arrangement which, it seems to me, is plain, was one which was agreed between the parents, the mother, at the conclusion of that time, chose not to return the children to the father’s care.
27.The mother then commenced proceedings on 1 February 2012. The father did not know that the mother had commenced proceedings and engaged solicitors when the children were not returned to him in time for the school year resumption. The father attended to documents for the filing of commencement of proceedings at which point in time he learnt through his solicitor that the mother had indeed commenced proceedings so the father then became a respondent.
28.In March 2012, prior to the matter coming on before the court for its first return date, the mother commenced her relationship with [Mr RD], such relationship continues until this day.
29.In April 2012 the matter came on for interim hearing and an order was made by the court that the children live with the mother and spend time with the father on an interim basis.
In addition to evidence from the parties, the only other evidence before the trial judge was that of Ms D, a psychologist and family consultant who had prepared a family report. Ms D was cross-examined by telephone on the contents of her report. Her report recommended, inter alia, that the children live with the father.
Grounds of Appeal
There are, in total, ten grounds of appeal. The mother abandoned ground 2 and indicated that there would be no separate submissions made in respect of ground 10, which was encompassed in the remaining grounds. It is convenient to set out the grounds of appeal:
1. Her Honour erred in failing to properly consider section 60CC(2)(b) of the Family Law Act 1975.
2. Her Honour erred in the exercise of her discretion by accepting and placing weight on the views of the family report writer and failing to consider the father’s dishonesty in the family report process.
3. Her Honour erred in failing to acknowledge the father’s withholding of the children from the mother over mid to late 2011 and erred in placing weight on the mother withholding the children in January 2012.
4. Her Honour failed to give proper consideration to the impact upon the children in changing longstanding living arrangements.
5. Her Honour erred in failing to give proper weight and consideration to the child [T’s] special medical needs and the location of all of his treating practitioners.
6. Her Honour erred in failing to place weight on the children’s cultural heritage and their involvement in the Indigenous community in [G].
7. Her Honour erred in failing to acknowledge the father’s perpetration of domestic violence against the mother and the effect of this on the mother and the children.
8. Her Honour erred in failing to place a greater weight on the father’s emotional abuse of the children and in her assessment of his parenting capacity.
9. Her Honour erred in failing to properly consider the father’s alcohol, substance abuse and mental health issues.
10. In considering the relevant section 60CC matters, His Honour [sic] erred and his [sic] discretion miscarried by placing emphasis on the father’s and/or the mother’s future intentions as opposed to their actual conduct as a parent and/or caregiver towards the child.
Before addressing the individual grounds of appeal in her written summary of argument, the mother contended that the decision was plainly wrong, and that upon a proper examination of all the competing factors her Honour was wrong to assess the father’s parenting capacity as superior to the mother’s. The specifics of her Honour’s findings and the reasons they were submitted to be erroneous were dealt with under the individual grounds, as set out.
Reasons for the Decision
Having traversed a number of issues which will be dealt with under the discrete grounds, her Honour tied a number of aspects together in coming to her ultimate conclusion that it was in the best interests of the children for them to live predominantly with the father. She found (at [128]) the parents “live a distance apart and the best that can be managed for the children is for them to be spending weekend and holiday time with the other parent.” There was no challenge to this finding.
Her Honour found (at [131]) that “[t]he father chooses not to medicate [T] on weekends when he is with him, and I find that that is as a result of the father’s superior parenting capacity in being able to manage [T’s] behaviours without the assistance of the medication.”
She found (at [133]) that:
[t]he children also create their own particular dynamic with the two of them together. Because they have spent part of their earlier life separated and because [T] has these particular needs, the sibling dynamic brings with it its own particular issues, as is plainly obvious by [R’s] comments to the family report writer about wanting someone normal in her family and not someone with cerebral palsy. That in and of itself no doubt creates an added complexity with respect to the parenting.
Her Honour concluded (at [134]) that:
[i]n terms of the capacity, then, of the parents to provide for the needs of the children, including their emotional and intellectual needs, I find in this head or this best interests factor in favour of the father.
At [137] her Honour said:
The other issue is that the mother has, of course, been a responsible working person who has the obligations of paying for her house and that may be contrasted with the father’s more relaxed approach to where he lives, the adult obligations of working on a regular basis. Neither of those factors though, it seems to me, weigh heavily in terms of the parenting of the children. It would seem that when the children were young, there was an understanding that the mother’s economic capacity was stronger than the father’s and that the father would be someone who was highly involved in the parenting. The father’s economic capacity strengths really comes from his [sport] which has been time-limited in nature, and it would also seem from the article from the newspaper that even within the [sport] some of the father’s personality features meant that he was not able to have the level of success that his innate skill may have suggested he could have.
At [139] her Honour found that despite the dysfunctional adult relationship between the parents, “[n]either of those issues mean that these parents are not taking their responsibilities of parenthood seriously.”
Her Honour then drew these matters together and set her conclusions at [141] to [148] inclusive:
141.In terms of an order that would be preferable, whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children, it seems to me this comes back to the difficulties that have been experienced in the past and whether there is the capacity of the parents now to be able to manage matters into the future. The mother has twice in the past caused the children to not live with her, firstly it was [T] alone and then secondly it was [T] and [R]. The matters which are different now for the mother include her present and ongoing relationship with Mr [RD] who I accept it a fine support of the mother. The next issue it that [T] is now medicated with respect to his ADHD on Ritalin and that that makes parenting of [T] something which the mother is better able to manage on an ongoing basis, and I accept that she had managed that well this year with the child being in her primary care.
142.The other things which have occurred are that the mother has become settled in her part time work arrangements so that she has good availability for the children with the use of some out of school care. The other thing which has happened is that [T] is now in the Cerebral Palsy Alliance which is only available in the [L] area and that access to the Alliance provides the mother with other supports and services for [T].
143.It is submitted on behalf of the mother that it does not require a combination of all three of those things to have the children being able to remain in her care without her needing to send the children to the father because of a future failure to be coping. It is submitted that each of those individually have been of assistance to the mother and that there is then the cumulative affect of all three of them.
144.The court is informed, of course, as to what the future might hold by what has happened in the past. The reality is that in the past the mother has struggled on two occasions to be able to parent the two children together. Her response at one time was to send one child only to the father. Her response on the second occasion was to send both children to the father. She had only had the children together in her care for a period of nine months before she experienced sufficient difficulty to ask the father to care for both children. The fact that [T] has now gone onto Ritalin is no doubt of a benefit to the mother and is no doubt a benefit to [T] in his education. It seems to me though that the mother has twice, in the past, experienced significant difficulties, such that she sought from the father his assistance to care.
145.The father has never likewise experienced such difficulty which has caused him to take the step of seeking that the mother care for the children. The return of [T] to the mother’s care in October 2010 I’m satisfied was done to have the children living together again. The father’s preference at that time would have been for [R] to be in his care, but failing that he then returned [T] to the mother’s care.
146.I’m satisfied that it would be preferable to make an order that would be least likely to lead to the institution of further proceedings and that that would come from the children being cared for by the father who has had the capacity in the past to parent them both and the mother has experienced the difficulties in the past.
147.When I then look at the section 60CC factors, the best interest factors, many of those factors [favour] both parents, neither parent is to be preferred. In the factors, though, where one parent is to be preferred, on each occasion it has been the father who has been preferred in this decision. Those were, with respect to the prefer ability [sic] to make an order least likely to lead to the institution of further proceedings, the capacity of the parents, the issue of the effect of change and the issue of the willingness and ability to facilitate and encourage a close and continuing relationship.
148.For those reasons I find that it is in the best interests of [T] and [R] to live with their father and to spend time with their mother. The orders will be then as set out in the father’s annexure A to the father’s response.
The matters that the mother asserts were plainly wrong appear at [147] of the judgment. In this penultimate paragraph, her Honour drew together in summary the matters she had previously considered, and concluded that the children’s best interests were met by placing them predominantly in the care of the father.
The mother contends that the three issues identified as underpinning her Honour’s conclusion are, on consideration of the evidence, flawed.
The first of those issues is her Honour’s conclusion that the father had the greater capacity to parent the children. The second is that the father was the parent most likely to be willing and able to facilitate and encourage a close and continuing relationship between the children and their other parent. The third is the effect of a change in the existing arrangements.
Counsel contended in oral submissions that there were 12 matters that favoured the mother that had not been given any, or any adequate weight by the trial judge. Those matters were:
1.The mother had been in employment since 1996. In 2011 she was having difficulty coping with the children but her capacity to look after the children has increased as she is now not in full-time employment. Her employment history compares with the father’s history of unstable employment.
2.Accommodation factors favoured the mother who has a family home owned by her compared to the father who has unknown and uncertain arrangements for the accommodation of the children. Although her Honour said it was not important, the father’s accommodation situation was unstable when compared to that of the mother.
3.R had been in the mother’s care for all but six months, effectively her whole life. T had been cared for by the mother from his birth in 2003 until separation in 2007. Her Honour did not give enough weight to this lengthy period of care by the mother of T prior to separation.
4.The Court found the children’s usual place of residence was Y rather than L which was an error.
5.T’s treating paediatrician was in the L area.
6.The mother has good family connections as opposed to the father who has no family support.
7.The mother’s connections to the B people.
8.The continuation of the children at their schools in L compared to the need for a change of school if the children live in Y with the father.
9.T’s school has a teacher’s aide available.
10.There would be no drug issues if the children remain with the mother but the trial judge did not rule out a potential relapse by the father who has been charged on two occasions with drug offences.
11.There is no history of violence by the mother to the father whereas there is a history of violence by the father.
12.The issue of the father’s religion and the children praying for their mother, which in the view of the family consultant amounts to borderline emotional abuse.
The mother contends that for those reasons, which should all have favoured her, an ultimate conclusion that the children should be placed predominantly in the care of the mother was irresistible and should have been made.
Suffice it to say that counsel enumerated in the foregoing paragraphs, all of the factors that favoured the mother. There were however, factors that favoured the father which her Honour found to be more compelling. We propose to deal with each of the mother’s complaints and how her Honour dealt with the various issues under the discrete grounds of appeal before returning to her conclusions.
Ground 1
Her Honour erred in failing to properly consider section 60CC(2)(b) of the Family Law Act 1975
Section 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:
(2) The primary considerations are:
(a) …
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Her Honour dealt with family violence in the following paragraphs:
49.In terms of the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. This requires some little consideration because the parents have a difficult, conflictual and argumentative relationship which has been evident whilst they were in an intact relationship and has remained evident and strongly conflictual ever since separation.
50.Insofar as their conflictual relationship amounts to family violence it is, it seems to me, the case that notwithstanding that for the most part the parents have been able to put into effect the practical matters that need to be put into effect with causing the children to move between the two households, the children are plainly aware that their parents argue. But even so the parents have been able to cause the children to spend time with each other, certainly under the present orders and prior to January 2012 when the mother did not return the children and then the children spent no time with the father until the court made orders in April 2012, the parents had been earlier able to have the children move between the two households.
51.Neither parent asserts that the children are exposed to abuse, neglect or family violence within each separate household as they presently stand.
…
53.Neither parent say that the children are subjected to any particular abuse by the parent in the other parent’s care. They both have some criticisms with respect to the other parent’s parenting in terms of disciplining or responding appropriately to the children. None of those criticisms, it seems to me, amount to abuse as such but rather it seems it is part of the ongoing conflictual and argumentative relationship between the parents.
54.In terms of family violence, that needs some further explanation and if possible potentially some classification. The mother seeks to have the court classify the family violence that she says was experienced in her relationship with Mr [Adder] and which she says continues to this day to be family violence which may be determined to be coercive and controlling in nature. The family report writer classifies the violence between the parents as situational or couple violence without a coercive or controlling element.
55.The issue of family violence and what it has meant for the parties has significance in the determination that I need to make because the mother submits that it was the subjection to domestic violence or family violence that she experienced during the relationship and that she continues to experience in the dysfunctional relationship with the father, that has had an impact upon her parenting which then can be said to be a reason for her seeking the father’s assistance with parenting the children at times when she has had difficulty coping.
56.Clearly, it is also important for trying to understand what the family violence might mean for the children in terms of being exposed to harm or in terms of any findings about any past instability on the mother’s part.
57.It would be [sic] seem to be a given that these parties have an argumentative relationship. They were argumentative before the family report writer at a time when it must have been plain to them both that the family report writer’s very presence was for the purposes of providing a report to the court. Neither of the parents were able to contain or control their reactions to each other so as to avoid an argument developing and then brewing before the family consultant.
58.There are two particular acts of physical assault or aggression between the parties which have been given some small attention during the trial. It would seem, indeed, during the relationship and in the time since separation, there have only been two physical altercations between the parents although there has been this ongoing conflictual argumentative style of communicating.
59.The two times of physical altercations were matters of cross-examination, particularly for the husband. One of them was a time in 2009 when the mother and father were together in a motor vehicle. The father was driving. The parents were arguing with each other and within that argument the husband hit the mother on the side of the face with the back of his left hand.
60.The father says that he did not hit the mother with full force. He said he did not hit her with full force because he knows his level of strength and that that would have been something which would have hurt. He considers that what he did to the mother, at that time, would not have hurt her. He acknowledges that they were in an argument when he did it but also seeks to assert that he had sufficient control within that argument to limit the strength of the strike.
61.He has called the physical action different things at different times; something like a tap or a flick. I can not remember the precise terms. But he has had a variety of ways of describing it, all of which seek to include the impression that it was a minor physical altercation. Of course, any physical altercation in the course of an argument is very different kind of physical touch to that which occurs when parties are not arguing.
62.I do not accept that a test as to whether this was a matter of substance includes whether the person perpetrating the assault considers that the assault would have hurt the other person or not. I do not consider how much something hurts to be an indicator as to whether the wife should have been or, indeed, was affected by the act, so as to cause her to feel intimidated because of the act.
63.I consider that the act of the husband striking the wife, whilst in the car, during an argument, to be an act of family violence.
64.The other incident was one where the husband was said to have ended up with scars on his neck from the wife scratching him. I am unclear as to the date of this incident.
65.The wife’s firm position is that she scratched the husband’s throat at a time when he was holding her around the throat. So she scratched his neck in an effort to have him cease holding her around the throat. The husband’s evidence about this matter was wholly unsatisfactory. His repeated answers were that he could not remember. Why he could not remember was not explored. I do not know if that was as a result of his ongoing extensive cannabis use, or by being under the influence of alcohol, or whether he chooses not to remember. But it seems to me that if he was under the influence of alcohol or drugs at the time of the altercation, then his inhibitions would have been lower than if he was sober.
66.In the absence of an understanding as to why it is that the husband cannot remember whether he was holding the wife around the throat at the time, it seems to me more probable than not that the incident occurred as the wife describes; that is, the husband was holding her around the throat at the time that she then scratched his neck in an effort to be released.
67.I accept that this was an act of family violence and that the scratching by the mother was responsive to the husband’s hands on her throat.
Her Honour’s conclusions about the impact of the family violence are to be found in the following paragraphs:
69.However, I cannot further assess what that impact might be without reference to the other information to hand. The cause and effect, with respect to the emotional reaction to the arguments or family violence, it seems to me, is not clear-cut, and the examining of the dynamic in its entirety probably requires further understanding.
70.In front of the family report writer, the mother was well enough empowered and confident to engage in dispute with the father. The family report writer did not assess the dynamic between the parents to be one of coercive controlling behaviours by the father, and the family report writer assessed it to be situational couple violence. The wife’s personal or adopted assessment as having been the victim of family violence does not make it a fact that it was coercive or controlling violence.
71.Why was it that the mother placed the child, [T], in the father’s care in 2009 and then both children in the father’s care in 2011?
72.It seems to me it cannot just be plainly considered that the mother had an inability to cope with the parenting responsibilities at that time because of her past struggles with coercive and controlling family violence.
73.I do not find that her inability to cope with the parenting responsibilities at that time was as a result of long-standing exposure to coercive controlling violence at the hands of the father. Rather, it seems to me more likely than not that it was within the setting of an argumentative, conflictual relationship, and within whatever other stressors were then impacting upon the mother’s life.
74.The mother was struggling to provide the required level of parenting to the two young children who, of one, that being [T], presented challenges to the mother due to his special needs and high care needs, and who, together as a sibship, presented challenges due to the dynamics within the sibship.
75.Notwithstanding the two specific acts of family violence that the father perpetrated on the mother as described and found by me, I do not find that the relationship was one of a coercive, controlling type, but rather, I find, as Ms [D] describes it to be, a matter of situational couple violence.
76.In terms of what that means for the children and any care arrangement into the future, it seems to me that the court must be mindful of providing orders which will limit the parents’ necessity to be in contact with each other so as to minimise the opportunity for their conflictual relationship to play out, particularly in front of the children.
Counsel for the mother contended, correctly in our view, that the father’s version of events in relation to the two incidents of family violence were rejected in favour of the mother’s version. However, counsel for the mother contended that her Honour had treated family violence in an inappropriate way. Counsel contended that it did not matter whether the violence was called “situational violence” or “coercive violence”, it is a factor which must weigh against the father.
It goes without saying that the question of family violence is important and the Act requires that it be given significant weight. Nevertheless it must be seen in the context of each case. In this case, past arrangements that have been put in place by the parties could be seen to minimise the mother’s concern about family violence when she placed the children in the father’s care voluntarily. Counsel for the mother submitted that the mother placed the children with the father at a time when she needed support from him and she did so because she then conceded it was the best arrangement for the children. Counsel contended that now that the mother’s arrangements had altered and she was able to provide care for both children, the issue of violence should be a relevant factor if one party had been violent to the other.
Having found that she preferred the mother’s evidence as to the factual basis for the issue of what family violence had occurred, her Honour went on to consider whether she accepted the mother’s argument that the family violence was coercive and that she was intimidated by the father, which intimidation continued notwithstanding there had only been two incidents of violence. Her Honour did not find the violence to be coercive violence but rather situational violence and, whilst not condoning it, she considered it appropriate to examine “the dynamic in its entirety” (at [69]).
Her Honour found, from the comments of the family report writer, that the mother was well enough empowered and confident to engage in dispute with the father. Her Honour noted that the family report writer assessed the violence to be “situational couple violence”. That conclusion, which is not challenged in this appeal, led her Honour to consider that whatever future arrangements were put in place, and whether the children lived predominantly with the father or with the mother, it was necessary to ensure arrangements be made which kept the parties apart as much as possible to avoid conflict occurring when they were together (at [76]).
Ultimately, her Honour found that there were other matters which were of greater significance than the issue of family violence, particularly as we have already noted her Honour was aware that the mother had previously placed both children with the father notwithstanding her assertions about his violence. In making the decision, her Honour was clearly looking to the future, informed by the past. At [147] of her reasons for judgment she set out clearly those matters which she considered were the most important in this case. They were, having regard to the overarching need “to make an order least likely to lead to the institution of further proceedings, the capacity of the parents, the issue of the effect of change and the issue of the willingness and ability to facilitate and encourage a close and continuing relationship.” On the basis of all these considerations her Honour found that it was the father who could best meet the needs of the children. It is also instructive, in our view, to consider the submissions of the mother’s counsel to her Honour that both these parents were capable and that it came down to two factors of “stability and the religion”.
The second part of this ground related to the mother’s contention that the father praying with the children on a nightly basis for their mother to be saved from going to hell is an act of emotional and psychological violence. In particular, the evidence that the child R was experiencing some distress about this required her Honour to give significant weight to this emotional and psychological violence and this she failed to do.
Her Honour dealt with this issue in a number of paragraphs as the matter appeared to have assumed significance before her. From [77] to [92] inclusive her Honour considered this issue, noting that the father presently worships at a Presbyterian Church and has reengaged with his faith at times of greater stress. The children have attended worship and Sunday school while in the father’s care and her Honour said (at [79]): “There they have learned that if a person has not accepted Jesus Christ as their saviour and lord, then that person will not be going to heaven and will be going to hell.” Her Honour noted that the children are aware that their mother has not accepted Jesus Christ as her saviour and when they are with the father they pray with him for the mother to be saved.
Her Honour observed (at [82]) that the children had learned this “as young Christians that anyone who does not accept Jesus Christ goes to hell. They learned this at church and at Sunday School.” Her Honour also noted that the mother was aware the father was going to church and there was no objection to him going to church or exposing the children to going to church. Her Honour noted the views of the family consultant that the father would need to ensure that the children were less concerned about their mother’s spiritual state, otherwise the father praying with the children to save their mother was bordering on emotional abuse.
Her Honour noted that in Australia there is freedom of expression of faith and religion and that a parent’s faith was only of applicability in proceedings if there was some risk of harm to the children from being exposed to it. She observed further that whether the children are in the father’s full-time care or are exposed to him at all, the children will continue to be able to share their father’s faith and have discussions with him about it and to participate in it with him, for example, through prayer. Her Honour further observed that as the children become older they will form their own views. Her Honour acknowledged that the children and particularly R were experiencing some distress because of this issue but she did not consider it amounted to harm such as would mean that it was determinative as to which parent the children would live with, particularly as they would continue to be exposed to the father’s practices and beliefs whatever arrangement was put in place.
Accordingly we do not consider that her Honour fell into error in failing to properly consider the question of family violence, both physical and emotional.
Ground 3
Her Honour erred in failing to acknowledge the father’s withholding of the children from the mother over mid to late 2011 and erred in placing weight on the mother withholding the children in January 2012
In this ground it is asserted essentially that her Honour erred in failing to make a finding of fact that the mother and father had agreed for the children to reside with the father only on a temporary basis as asserted by the mother. It is further contended that if her Honour had made such a finding she would not have been so critical of the mother for withholding the children from the father without his consent in January 2012.
We accept that this issue appears to have played some part, although by no means the only part, in her Honour’s ultimate conclusion about the parent who was most likely to facilitate an ongoing relationship between the children and the parent in whose home they would not be primarily residing. At [97] of the reasons for judgment her Honour noted the arrangements whereby the children had lived with each of their parents prior to January 2012, noting in particular that R had always lived with her mother apart from the months between May 2011 and January 2012. T had lived for long periods in his life with his father, at times separated from his sister R. Her Honour noted (at [102]) that “up until January 2012 the mother had facilitated the children having a relationship with the father.” Her Honour observed (at [103]) that it was only “when we get to the period from May 2011 and then through to January 2012 that there becomes an issue with respect to how the parents facilitate the children having a relationship with the other parent.”
As the written submissions for the mother indicate, the mother urged her Honour to make a finding of fact with respect to what the circumstances were in May 2011 when the children were placed in the father’s care by the mother. Her Honour said (at [106]):
It is submitted on behalf of the mother that I must make a finding of fact with respect to what the circumstances were at that time. I do not know whether it is necessary for me to make a finding of fact about it, but it seems to me that it is worthy of some further consideration.
Her Honour noted the uncontroversial facts that in May 2011 the mother had been parenting the two children together for a period of about nine months and that nine-month period had been the first time the mother had parented the two children together since January 2009 when T had gone into his father’s care. It was common ground that the mother’s inability to parent the two children together reached a point where she chose to seek from the father that the children go to live with him. Her Honour found (at [109]) that:
[i]f the mother conveyed to the father a notion that the children’s move to live with the father at that stage was temporary only in nature I find that she did that without conveying any clear or particularised sense as to what temporary meant. It was certainly not within the father’s understanding that it was a temporary move. The parents’ communication about all matters of significance or importance is wholly lacking. I cannot find that they would have been clear with each other as to their respective understandings.
Her Honour went on to observe that given the children’s move into the father’s care necessarily required the children’s schools being changed, them moving to live in a different community, and having regard to the range of support, services and medical intervention required for T, there was no reason to consider that the father had in mind this was only for a short period. At [111] her Honour concluded that:
[u]nless the mother had been so particular or precise or obvious about what she was seeking of the father, the father could not possibly have understood what length of time she considered to be temporary, and the mother was not plain to the father about what she considered to be the length of time, and that was the mother’s evidence.
It was this asserted temporary arrangement that the mother used to justify her withholding the children from the father when they were with her for a short and agreed visit. Her Honour found that, having accepted the father’s evidence that there was no time limit within which the children were to remain with him, the mother was not entitled to demand the return of the children at her whim and that when she took matters into her own hands and kept them without his consent, she tricked the father into allowing the children to stay with her for an extra week and retained them in a “planned, underhanded and unilateral way” (at [112]).
Her Honour then went on to find, again, uncontroversially, that from January 2012 until the matter came to court in April 2012, the mother chose not to make the children available for the father, failed to answer telephone calls so as to limit his capacity to speak with her about spending time with the children and only allowed the children to speak with him on the telephone on a couple of occasions. Although being satisfied that the mother acted in this way because she considered that if the children spent time with the father he would likewise withhold the children from her, there was no evidence that he would have done so and the effect, importantly, was to prevent the children from having any opportunity to spend time with him. It is hardly surprising that at [116] of the reasons for judgment the trial judge concluded that when it came to the facilitation and encouragement of a close and continuing relationship between the children and the other parent she necessarily found the father must be preferred to the mother on that aspect.
The mother was cross-examined on this issue and we were not taken to any evidence that would suggest that that trial judge’s findings were erroneous or contrary to reasonable inferences which were open to her. We are also conscious of the unique position of the trial judge who sees and hears the witnesses (see Fox v Percy (2003) 214 CLR 118, 125 [23]). In addition, consistent with the principles of appellate review, findings of fact cannot be set aside on appeal “merely by identifying evidence which, if accepted, was capable of supporting contrary findings” (our emphasis) (Yousif v Commonwealth Bank of Australia (2010) 193 IR 212, 221 [34] per Kenny, Tracey and Jagot JJ).
Accordingly ground 3 must fail.
Ground 4
Her Honour failed to give proper consideration to the impact upon the children in changing long-standing living arrangements
The issue identified in the written submissions, and to which counsel for the mother added in oral submissions, was that her Honour failed to give any or sufficient weight to the fact that the children had been living with the mother for 12 months prior to the hearing in the home that they had known since birth and that they were in settled and stable arrangements. This, it was asserted, was because her Honour erred in finding that it was improper for the mother to seek to rely upon settled and stable arrangements when she had been the source of instability by putting into effect an unplanned and unilateral move of the children. However her Honour’s finding needs to be seen in its context. At [125] her Honour said:
It would seem to me that it is improper for a parent who has been the source of instability by putting into effect an unplanned and unilateral move for children to then seek to rely upon the length of time between when that happens and when final hearing happens to say that there are now settled and stable arrangements in place which cannot be changed because it is important for the children not to experience further changes (our emphasis).
Seen in its proper context, it seems to us that her Honour was considering the argument not simply that there were settled and stable arrangements in place, but rather that they could not be changed because it was important to the children not to experience further changes. It seems to us it was this latter assertion which her Honour rejected. The focus may be subtle but it is not unimportant. In any event, at [126] her Honour dealt with the issue of the children being able to cope with further change if she determined they would move back into their father’s care. Her Honour said: “I do not consider that the stable arrangements that the mother has put into effect this year are a determining force such that they must override all other factors in this case.” It can be seen, in our view, that her Honour did not fail to give consideration to long-standing living arrangements; nor did she rely upon the mother’s actions in retaining the children. What she can be seen to have been doing is to observe that the children had already had many changes in their care and it was unlikely, on past experience, that they would be adversely affected by a further change. Her comments about the mother’s behaviour can be seen as only one reason for rejecting an argument that no further change should occur.
Her Honour was acutely aware of the mother’s assertion that the issue of stability for the children must be a significant factor in the decision (at [117] and [118]). However, her Honour observed that, because of the past choices of the parents, the children had moved “from household to household, from community to community, from school to school” and had been separated, reunited and then again moved between their parents’ households. Her Honour then considered (at [119] to [124]) the mother’s assertions as to why the present arrangements whereby the children lived in her care were stable and settled and why she wanted the children to remain with her.
The mother further contended that her Honour’s error was compounded by her failure to consider that the father had not arranged suitable accommodation for the children and that her finding failed to take account of the fact that the father had moved repeatedly since moving to Y and that the mother’s stable accommodation arrangements since 2000 should have been an overriding factor.
Her Honour did, it is obvious, consider the mother’s arguments but ultimately in the exercise of her discretion, she rejected them. She observed first that on the occasions when the father had the children living with him he had always been able to obtain adequate accommodation which was not the subject of complaint by the mother. Secondly, her Honour observed that the evidence of the family consultant was that it was ultimately the stability of parenting for the children that was important, not their accommodation, when the issue of accommodation and its provision had never really been an issue. Her Honour accepted that and found (at [122]) that stability for children comes from “the care of the adult and the adult’s management of any move.”
The mother also contended that her Honour erred in finding the change in schools would not be disruptive for the children. Her Honour observed (at [123]) that the mother’s contention was that there would be further instability for the children having to go to another school. Here, her Honour noted that the mother must take some responsibility for the change in schooling as it was she who sent them to a different school this year.
At [126] her Honour accepted the stable arrangements put into effect by the mother during 2012 but did not accept that they were of such a determining force that they should override all other factors in the case. She concluded at [127] that the father had previously been able to support the children and manage the change into his care and that she was satisfied that if he were to do so again he had “the capacity to ameliorate any of the negative effects of that change.”
These were all matters within the discretion of the trial judge. It has not been established that the trial judge failed to have any regard to relevant matters, to the contrary, it is clear that her Honour did have regard to the matters raised by the mother but that she did not regard them either individually or collectively as outweighing matters that she found to have been of greater importance. Accordingly this ground must fail.
Ground 5
Her Honour erred in failing to give proper weight and consideration to the child T’s special medical needs and the location of all of his treating practitioners
In written submissions at [18] the mother contended that her Honour was plainly wrong to find that the father could attend to the child T’s special medical needs in the face of the evidence which was:
a)All [T’s] medical practitioners and support services were located in the [L]/[A] area;
b)The father had made little effort to obtain information upon [T’s] treatment and medical needs other than making two telephone calls in a period of 8 months;
c)The father put no evidence before the Court as to what arrangements he had made for [T’s] medical needs to be met in the [Y] area.
At [19] of the written submissions the mother contended that:
[t]he father having been the person who opposed [T] being placed on Ritalin whilst he was in the care of his mother, it was the father who placed [T] on Ritalin in July 2011 shortly after [T] came into his care on a temporary basis demonstrating, it is submitted, that the father could not care for [T] without the assistance of medication. Taking all those matters collectively her Honour was plainly wrong in finding that it was [sic] [T’s] best interests to live with the father.
Again it is important, in our view, to put into context the complaints by the mother in relation to her Honour’s reasons. In January 2009 the mother asked the father to have T live with him because she was experiencing difficulty parenting him. The father cared for T throughout that period and dealt with his medical needs until October 2010 when the father returned T to the mother because he believed that both children should live together. In May 2011 both children, with the agreement of the parents, left their mother’s care and went to their father’s care. In July 2011 T was commenced on Ritalin. It was in January 2012 when the children were with the mother during the school holiday period that she chose not to return the children to the father’s care. Accordingly, the arrangements made by the mother for T’s medical treatment during the period when she withheld him from the father and he was solely in her care must be seen in the context that the father had been looking after him with the consent of the mother and with no apparent complaint about his medical treatment between July 2009 and October 2010 and from May 2011 until January 2012. Indeed, it can be inferred, from the fact that T commenced on Ritalin in July 2011 when he was living with the father, that the father was receiving and acting upon medical advice in relation to T’s medical needs.
T’s attendance at the Cerebral Palsy Alliance where he is accessing physiotherapy and occupational therapy services appears to be the new factor relied upon by the mother. Again, however, this needs to be seen in the context of T’s overall treatment and it is useful to set out the report of Dr A who is and has been the paediatrician treating T.
…
This letter is to outline the medical issues for [T] and his current management plan. I am happy for this document to be submitted during any Family Court proceedings.
Cerebral Palsy
[T] has mild cerebral palsy that predominantly affects his legs. [T] has been seen in the past by the Queensland Cerebral Palsy Health Service where he has been assessed and had Botox injections to his legs. More recently [T] is having Botox locally through Dr [I] and I am told he has an appointment with Dr [I] next month. [T] is linked in with the Cerebral Palsy Alliance where he is currently accessing physiotherapy and occupational therapy services.
Constipation
[T] has had long term problems with constipation. [T] requires daily medication to keep his poos soft and regular. Currently [T] takes Movicol on a daily basis when in his mother’s care. When [T] takes Movicol regularly he has no problems with his constipation. Today [T’s] abdomen felt soft with no hard faeces present.
ADHD
[T’s] ADHD symptoms are managed well on Ritalin LA 30 mg. [T] has been on this dose since 2012 and it has been working well. He is to continue to take this medication while at school and the use of it on the weekends and school holidays is optional. [T] is not getting any significant side effects from the medication currently.
[T] needs to be seen by a paediatrician on a six monthly basis with regard to the above issues.
…
The father refers to Dr A as having been T’s long-term paediatrician and there was no cross-examination of the father about any neglect in T’s treatment regime when he lived with the father. Other than to note T’s involvement in the Cerebral Palsy Alliance in his final address, counsel for the mother made no other reference to the capacity or willingness of the father in the future to appropriately care for T and his medical needs which would have justified her Honour in making an adverse finding against him or conversely placing significant weight on the fact that T was involved with the Cerebral Palsy Alliance in L.
The final basis on which her Honour’s judgment was attacked under this heading was the contention by the mother that whilst the father had opposed T being placed on Ritalin whilst in the mother’s care, it was in fact the father who placed T on Ritalin in July 2011, demonstrating that he could not care for T without the assistance of medication. Thus, it was contended her Honour was in error in concluding as she did that the father had a superior parenting capacity in being able to manage T’s behaviours without the assistance of medication.
The mother contended that the basis upon which her Honour concluded that the father had a superior parenting capacity was the fact that the father chose not to medicate T with Ritalin on weekends, whereas the mother did. Her Honour’s findings on this point appear in the following paragraphs:
129.In terms of the capacity of the parents to provide for the needs of the children, including their emotional and intellectual needs, the mother has previously experienced sufficient difficulty in the care of [T] to have [T] live with his father when he started school and for both [T] and [R] to go to live with the father in May 2011.
130.The mother now finds [T’s] care easier for her to manage since he has been on Ritalin, and it is clearly the mother’s preference for [T] to continue to take his Ritalin on days when he is not at school which seems to me to be plainly indicative of a preference for parenting the child when she has the assistance of him having the mediation [sic] which addresses some of his behaviours.
131.[T’s] behaviours, of course, are not only referable to his ADHD. He also experiences mild cerebral palsy and has learning difficulties. The father chooses not to medicate [T] on weekends when he is with him, and I find that that is as a result of the father’s superior parenting capacity in being able to manage [T’s] behaviours without the assistance of the medication.
132.The medication, of course, is in some ways primarily provided so that he is able to maintain his concentration levels at school. It is a choice for each parent whether they choose to use that at times when [T] is not at school, and I am satisfied, as I have said, that the father’s preference to not medicate [T] on weekends demonstrates a capacity for him to be parenting the child without the assistance of the child being medicated.
As this was one of the matters upon which her Honour placed weight in concluding the children’s needs were best met in the care of the father, it bears some examination. The mother contended that if the finding that the father’s capacity to parent was superior because of his weekend management of T without the assistance of medication was removed from consideration, then there was nothing left that favoured the father as far as capacity was concerned. The mother asserted that this was a very thin basis on which to assert superior parenting capacity. Further, because, according to the information provided by the parents to the family consultant weekend Ritalin is optional, the mother maintained that her Honour was not entitled to rely on it not being used on weekends as demonstrative of the father’s skilled parenting.
Her Honour found (at [130]) that it was easier for the mother to manage T’s care after he began taking Ritalin. The father’s management of T’s care involves not medicating him on the weekend. Cross-examination of the father bore on this issue. The father’s evidence (AB2 199 line 17) was:
I was told by the doctor – I was advised by the doctor that it’s advisable not to give it to him on the weekend as it has an appetite suppressant in it, and it would be to [T’s] best interests on weekends and holidays to allow him the time without the Ritalin so that he may eat well and maintain his weight.
The father’s strategy is indicative of a more deep-seated parenting capacity than the mother accepts. In January 2009, when T was not receiving any medication for ADHD, the mother was unable to deal with him and she sent him to live with his father. The mother acknowledged that she was having difficulty caring for T at this time. The mother’s actions in having the father look after T demonstrate that she acknowledged that the father, in those circumstances, had a greater capacity to parent T. The fact is that the medication has been of some assistance to T. However, the father finds it unnecessary to medicate him at weekends.
This supports her Honour’s finding that the father has better long-term capacity to deal with T in the absence of medication. It was therefore, in our view, not unreasonable for her Honour to find as she did at [131] and [132] that it was the father’s superior parenting capacity, at least in relation to T, that enabled him to manage T’s behaviours without medication on weekends.
There is, in our view, nothing contradictory or erroneous in that finding. That alone, however, was not the underpinning of her Honour’s decision and we find no merit in this ground.
Ground 6
Her Honour erred in failing to place weight on the children’s cultural heritage and their involvement in the Indigenous community in G
The mother contended in this ground that pursuant to section 60CC(3)(h)(i) and (ii) that an Indigenous child has a right to enjoy his or her culture and that in determining the best interests of children with Indigenous heritage the impact any proposed order would have on that right should be given substantial weight. The mother contended that there was evidence that the father held racist views towards Indigenous people and that there was no independent evidence about any steps the father was intending to take to support the children’s Indigenous heritage if they went to live in his care. The mother contended that her Honour’s finding at [138] of the reasons for judgment that there was “no evidence before this court which would inform the court that the children would be prevented from enjoying their culture in their mother’s care” (our emphasis) was not the correct focus and that the court should have been focused upon whether the children would be prevented from enjoying their culture in the father’s care. The mother’s complaint was that a proper consideration of this issue required the court to give a more detailed analysis of the evidence than that contained in [138]. In particular it was asserted the father had no involvement with the local Indigenous community in Y and there was no evidence that the school to which he proposed to send the children had any programs to support Indigenous culture or had other Indigenous students.
The evidence of the mother, which was unchallenged, was that at their current school they were exposed to the teaching of Indigenous issues and the school conducts specific Koori activities in NAIDOC week. The mother deposed to the maternal extended family being based in L, her parents and sister living in G and the children seeing their family regularly when they are at home and visiting their cousin. She also deposed to the children enjoying spending time with their distant cousins in the Koori community.
Her Honour dealt with the children’s Aboriginality in [138] of the reasons for judgment. She acknowledged that the children’s right to enjoy their culture must be provided for and the right to enjoy that culture with other people who share it, must necessarily be through the mother. She found that:
[w]hether the children live with the mother or spend time with the mother they will be able to do that. There is no evidence before this court which would inform the court that the children would be prevented from enjoying their culture in their mother’s care, and there is no basis for the court to form the view that in either arrangement the children will not be able to have a level of exposure and enjoyment and sharing of that culture with other people that will be sufficient for their needs (our emphasis).
Again these complaints must be seen in the context of the history of the relationship between these parents and the way in which they have chosen to parent their children. The mother having placed T and R in the father’s care at various times does not sit well with a complaint that he prevented them from enjoying their Indigenous culture, especially, as her Honour indicated, it is through the mother that the enjoyment of that culture is possible. The evidence in fact was not that the father would prevent the children from enjoying their Indigenous culture when in his care. The highest it was put in submissions to her Honour by counsel for the mother was in the following submission:
… nowhere in the father’s material does he discuss doing anything in terms of promoting the children’s connection with their Aboriginal heritage. It seems to be the father’s position that, “I’m not interested in that. Mum can do that”. That, your Honour, in my submission, shows a lack of child focus …
Thus in our view her Honour’s comment in [138] that the children’s right to enjoy their culture will be necessarily through their mother and will occur whether or not they live with her or spend time with her cannot be criticised and this ground must fail.
Ground 7
Her Honour erred in failing to acknowledge the father’s perpetration of domestic violence against the mother and the effect of this on the mother and the children
We have already dealt with this matter extensively under ground 1 and nothing further arises under this ground.
As ground 8 is a composite of earlier grounds we will deal first with ground 9 before returning to ground 8.
Ground 9
Her Honour erred in failing to properly consider the father’s alcohol, substance abuse and mental health issues
We perceive that this ground is relied on together with other grounds as having a cumulative effect when considering the overall suitability and capacity of each of the parties to effectively parent the children, rather than being matters that individually would inexorably disqualify the father as a parent. This is no doubt because, as her Honour indicated (at [52]), in relation to the mother’s allegation that the father’s past use of cannabis has a potential for neglect, that:
[s]he cannot take it much higher than that because she has in the past chosen to place the children in the father’s care so it would clearly be contrary to her own acts in the past for her to now assert that the children were at risk of neglect in the father’s care because by her very act of then placing the children, at times both of them and for one period of time for a lengthy period of time [T] only, a child with extensive special needs in the care of the father, for her to say that he was at risk of neglect because of his father’s cannabis use would demonstrate gross neglect on her part by having placed the child in the father’s care. So she cannot press that with any vigour.
Nevertheless her Honour did not entirely dismiss this issue and (at [136]) her Honour observed that although the father was not presently using cannabis she could not be certain that this position would prevail into the future but reiterated that the mother had in the past clearly overlooked this issue when placing the children in the care of the father. There was no submission made to her Honour regarding the father’s alcohol or mental health issues and as we earlier indicated counsel for the mother submitted to her Honour: “In my submission they’re both capable. In my submission what it boils down to is the two factors of stability and the religion.”
It cannot then be said that her Honour erred in failing to properly consider these matters and this ground must fail.
Ground 8
Her Honour erred in failing to place a greater weight on the father’s emotional abuse of the children and in her assessment of his parenting capacity
The mother’s written submissions on this ground go over all of the matters raised in the previous grounds, asserting in essence that the court was plainly wrong to assess the father’s parenting capacity as superior to the mother’s parenting capacity. But as we have indicated, the matters raised by the mother were all matters in existence when the mother on one occasion sent T and on another sent both children to live with the father. Those criticisms of him must be seen through the prism of her belief that in those periods the father was better able to care for one or both of the children than she was.
The strongest argument, it might be said, in favour of the mother was that she had been caring for the children for the past 12 months, the children’s schooling was going well, they were participating in Indigenous programs, T’s medical needs were being addressed and the mother had stable accommodation and was no longer working full-time (which in fairness may have contributed to her difficulties in parenting the children in the past). She also had the assistance of Mr RD, her partner.
Her Honour acknowledged that the mother was available to the children, had become settled in her part-time work arrangements, and had the assistance of out-of-school-hours care. Her Honour noted (at [142]) that T was, at the time of the hearing, provided with services and other supports by the Cerebral Palsy Alliance, which only operated in the L area.
Her Honour reflected on the mother’s submissions that, collectively, these various factors represented a considerable network of support for the mother, and that, further, any of these factors alone would bode positively for the mother’s capacity to have the children in her care. Her Honour stated that “[t]he court is informed, of course, as to what the future might hold by what has happened in the past” (at [144]). Although there was a range of current supports for the mother, her Honour observed that on two past occasions, the mother had struggled to parent the two children together. On the first occasion, the mother’s response was to send one child to the father; on the second, it was to send both children. Her Honour noted that the mother had only had the children together in her care for nine months after receiving T back from his father, and that by the end of this time, the mother was experiencing sufficient difficulties to have to ask the father to take on the care of both children.
Her Honour accepted that it was no doubt of benefit to the mother that T had gone on medication, and no doubt of benefit to T. But her Honour was mindful of the fact that the mother had twice sought the father’s assistance with parenting the children, whereas the father had never experienced difficulties of such magnitude that he resorted to asking the mother for assistance.
At [146], her Honour concluded the father was not likely to experience difficulties with the children’s care that would result in them having to move back to live with their mother. Thus the institution of further proceedings was least likely if the children were to live with their father. These conclusions were all open to her Honour, and the findings which underpin them were not challenged.
It may be true, as the submissions of the mother indicated, that there were many issues that her Honour could have found reflected poorly on the father. When weighed, according to the mother, these issues should have been overwhelming. But most of these matters were in the past and had not prevented the father from effectively parenting both children with the mother’s consent.
But as we have indicated, when the evidence is considered, her Honour’s findings about the father’s parenting capacity were of more substance than the mother’s submissions allowed. It is clear that her Honour took into account all of the matters raised by the mother and weighed them with those matters that she thought favoured the father. It is also clear that she was particularly influenced by the fact that on two occasions the mother had been unable to care for both children and for much of the time since separation she was unable to care for T.
In a discretionary judgment such as this, it is not to the point that another judge may have reached a different conclusion. We add to what we have said in [2] about discretionary judgments, the comments of Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519:
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. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, 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.
In our view the decision was open to her Honour on the evidence which was largely unchallenged and her reasons for judgment clearly reveal the process of reasoning by which she reached her decision. Accordingly, we find no error and the appeal should be dismissed.
Costs
The question of costs is governed by s 117 of the Act, which provides that subject to certain sections, each party to proceedings shall bear his or her own costs. Section 117(2) provides that if the court is of the opinion that there are circumstances that justify it in doing so it may make such order as to costs as it considers just. In determining what order to make the court must have regard to the matters in s 117(2A).
Counsel for the father advised that the father was in receipt of legal aid (s 117(2A)(b)) and as the appeal was unsuccessful an order as to costs in his favour should be made. Counsel for the mother advised that the mother was not legally aided and opposed an order for costs.
On 19 March 2013 May J made an order on the application of the mother to reinstate her appeal which had been deemed abandoned by virtue of her failure to file a draft appeal index in time. In granting the application her Honour noted, at [30]:
In this case there are circumstances which would justify an order for costs (see s 117(2A)). The father’s counsel informed me that he is legally aided. While there are a number of reasons why an order for costs could be made, the better course is to reserve the costs to the Full Court. Counsel for the father correctly in his submissions emphasised the merits of the appeal and the prejudice to the father. Should the appeal be dismissed, most likely the mother would be ordered to pay the costs, including the costs of this application.
Having heard the appeal we are of the view that although we have not found the trial judge’s discretion to have miscarried, there were matters weighing in the mother’s favour such that it could not be said, in our view, that the outcome was a foregone conclusion. Noting that the father was in receipt of legal aid but that the mother was meeting her own legal costs, in our view the appropriate order in relation to the appeal is that there be no order as to costs.
However, we are of the view that it would be appropriate for the mother to pay the father’s costs in relation to the application to reinstate the appeal which was ordered on 19 March 2013 and we will order accordingly.
I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Hogan JJ) delivered on 31 January 2014.
Associate:
Date: 31 January 2014
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