Maddax & Danner - [2016] FamCAFC 176

FAMILY COURT OF AUSTRALIA

MADDAX & DANNER

[2016] FamCAFC 176

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against final parenting orders which permit the mother to move with the child approximately 30 kilometres – Where the grounds of appeal allege errors of fact finding by the primary judge – Whether the primary judge erred in the treatment of the evidence of the family report writer – Whether the father was incompetently represented such that the trial miscarried – Application of OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 – Whether the primary judge misapplied the law ordering that the mother have sole parental responsibility and reducing the father’s time with the child – Appeal dismissed.

FAMILY LAW – APPEAL – Where after the father failed to obtain a stay of the final orders the father filed an application for interim parenting orders – Where the primary judge summarily dismissed the application as an abuse of the court’s process – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father sought to adduce further evidence in the appeals – Where the evidence was not relied upon at the hearing – Where the evidence sought to be adduced was controversial – Application of CDJ v VAJ (1998) 197 CLR 172 and Coulton v Holcombe (1986) 162 CLR 1 – Application allowed in part by consent of the parties.

FAMILY LAW – COSTS – Where the mother sought that the father pay her costs on an indemnity basis – Where counsel for the mother relied on an offer to settle – Parties ordered to file written submissions on the question of costs.

Family Law Act 1975 (Cth): ss 61B, 61C, 61DA, 65DAA, 93A(2)
Federal Circuit Court Rules 2001 (Cth): r 13.10(c)

CDJ v VAJ (1998) 197 CLR 172
Coulton v Holcombe (1986) 162 CLR 1
Goode and Goode (2006) FLC 93-286
House v The King (1936) 55 CLR 499
OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT:

Mr Maddax

RESPONDENT:

Ms Danner

FILE NUMBER:

BRC

5778

2014

FIRST APPEAL NUMBER:

2016

SECOND APPEAL NUMBER:

2016

THIRD APPEAL NUMBER:

2016

DATE DELIVERED:

5 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Strickland & Ryan JJ

HEARING DATE:

3 August 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATES:

12 February 2016,
5 April 2016 &
30 June 2016 (Amended 6 July 2016)

LOWER COURT MNC:

[2016] FCCA 68
[2016] FCCA 1230
[2016] FCCA 1717

REPRESENTATION

FOR THE APPELLANT:

In person with the assistance of an interpreter

COUNSEL FOR THE RESPONDENT:

Mr J Bunning

SOLICITOR FOR THE RESPONDENT:

MTM Lawyers

Notation

On 3 August 2016 the appellant discontinued Appeal NA 23 of 2016.

Orders

The Application in an Appeal filed on 19 July 2016 be allowed in part so as to receive into evidence in appeal NA 43 of 2016 documents 3, 4 and 6 contained in the disputed appeal book.
Appeal NA 17 of 2016 be dismissed.
Appeal NA 43 of 2016 be dismissed.
The respondent is to file and serve written submissions and any evidence in relation to the question of costs within twenty one (21) days.
The appellant is to file and serve submissions in response and evidence (if any) as to the question of costs within twenty one (21) days of service of the documents referred to in Order 4 above.
The respondent is to file any submissions in reply within a further seven (7) days of service of the submissions referred to in Order 5 above.

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 Maddax & Danner 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 Numbers: NA 17 of 2016; NA 23 of 2016; NA 43 of 2016
File Number: BRC 5778 of 2014

Mr Maddax

Appellant

And

Ms Danner

Respondent

REASONS FOR JUDGMENT

Strickland and Ryan JJ

These are appeals by Mr Maddax (“the father”) against various orders made by Judge Coker in three separate hearings.
By Amended Notice of Appeal filed on 30 May 2016 (NA 17 of 2016), the father appeals against a raft of final parenting orders made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) on 12 February 2016. This will be referred to as “the substantive appeal”. Stated broadly, his Honour ordered that that the parties’ daughter, X (“the child”) live with Ms Danner (“the mother”); that the mother have sole parental responsibility concerning long-term decisions for the child and be permitted to relocate the child from the R Region to within the catchment area of C Primary School at Suburb V. Suburb V is a suburb of Brisbane and approximately 30 kilometres from the R Region. The significance of this is that the family had settled on the R Region; where the father wanted the child to live and attend school. However, the mother wanted to move to where she had family and for the child to be able to attend school with her cousins.
As to the child’s time with the father, this was reduced from five nights each fortnight during school term to each alternate weekend, half school holidays and on identified special occasions. It will be immediately apparent that the orders significantly altered the child’s living arrangements and reduced the amount of time the child would, in the future, spend with the father.
By his Amended Notice of Appeal (NA 23 of 2016) filed on 30 May 2016 the father appealed against orders made on 5 April 2016 which dismissed his application for a stay of the substantive orders. The “stay appeal” was discontinued at the commencement of this hearing.
After the father failed to obtain a stay of the substantive orders and the mother and child relocated, he filed an application for interim parenting orders. The orders were premised on the father’s proposal that he would move to within 20 kilometres of the child’s school at Suburb V. The father also sought orders concerning contact by Skype and for him to spend time with the child in Germany in August 2016. The father’s application was summarily dismissed on 30 June 2016. He was ordered to pay the mother’s costs in the amount of $4,000 and was restrained from filing further applications for parenting orders pending determination of the substantive and stay appeals. By Amended Notice of Appeal (NA 43 of 2016) filed on 18 July 2016 the father appeals against those orders (“the third appeal”).
In circumstances where the three appeals were listed for hearing expeditiously and simultaneously, the father acknowledged that the only utility in the third appeal was in relation to time with the child in Germany and communication by Skype and thus he abandoned the other challenges contained in this notice of appeal. As to the August 2016 holiday, the father was due to fly to Germany the day after the appeal hearing and sought an immediate response to whether he would be able to spend time with the child while there. The mother and child were already in Germany for a family wedding. At the conclusion of the appeal hearing we informed the father that this aspect of his appeal would be dismissed and we would provide our reasons at the same time as we published our reasons in the substantive appeal.
On 19 July 2016, the father filed an Application in an Appeal seeking to adduce further evidence in the substantive appeal. That evidence is contained in the disputed appeal book and an affidavit of the father filed on 19 July 2016. He sought to have that evidence also received in the third appeal.
The mother sought to uphold the orders of the primary judge. It was agreed that we could receive some of the further evidence on which the father relied, albeit it was submitted this evidence could not demonstrate error by the primary judge.

Background facts

So as to provide context to the appeals, it is necessary to record a few background facts. His Honour provided scant context to his decision and it is only by reference to the record that we have been able to understand the factual basis on which the decision was made. This was unfortunate and no doubt fuelled the father’s disquiet about the reasons for judgment. Unless we indicate differently, we understand that the matters which follow to be uncontroversial.
The father was born in Germany in 1981.
The mother was born in Country A in South East Asia in 1981. She moved to Australia in 1996 and became an Australian citizen in 1998.
At some stage, the mother moved to Germany where she and her former partner lived in accommodation rented from the father’s parents. When the mother and her former partner separated, she remained in Germany and commenced a relationship with the father.
The parties commenced cohabitation in April-May 2009 and within a short time, the mother was pregnant with the child. Restrictions on the mother’s visa required her to leave Germany and in October 2009 she and the father travelled to Australia where they were married in 2009. Not long thereafter they returned to Germany.
The child was born in Germany in 2010.
In March 2011, the parties and child moved to Australia where they established themselves in the R Region in Queensland. According to the mother, prior to the parties’ separation she was primarily responsible for the child’s care, albeit with the father’s support. For his part, the father contends that the parties were equally responsible for the child’s care until the family moved to Australia at which point, he assumed primary responsibility for the care of the child. Although nothing turns on which of the parties was primarily responsible for the child’s care while they lived in Germany, as we will discuss when considering the grounds of appeal, the father says it is significant that the primary judge failed to appreciate that in the two years which followed he was primarily responsible for the child’s day to day care.
The parties separated on 9 March 2013. Although separated they continued to live in the same property and it was in June 2013 they moved into alternate and separate accommodation. The child remained in the care of the mother. The father moved into a flat he rented with another man and by agreement, the child, who had just turned three years of age, spent time with him from 9.00 am to 3.00 pm on three occasions during the week and on an ad hoc basis on weekends.
The father visited Germany for about two months in late 2013/January 2014 during which time the child remained with the mother.
In January 2014, the father sought to increase the child’s time with him so as to include time overnight. By then he had his own accommodation and was in a situation which he believed meant overnight time could occur. Negotiations between the parties were not fruitful and on 31 January 2014 the mother advised the father that until they reached a “legal” agreement the child would not be made available. True to her word, the mother withheld the child and the father did not see her for 18 days.
The parties attended a mediation conference on 18 February 2014 where they reached agreement as to the child’s care. They entered into a parenting plan which provided that the child would live with the mother and spend time with the father:
·from 28 February 2014, on each alternate Friday from 9.00 am until 5.00 pm and each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday; and
·from 15 August 2014 until further agreement (or order), each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday and in the other week from 9.00 am Friday until 5.00 pm Friday.
Provision was also made for special occasions. The child spent time with the father as provided for in this agreement.
In accordance with the parenting plan, the father collected the child at 9.00 am on 4 July 2014 from the contact centre changeover point. However, he withheld the child and, having retained legal representation, proposed that the parties enter into an, in effect, equal time arrangement. The child did not see the mother for 18 days.
The mother rejected the father’s proposal and on 10 July 2014 she commenced proceedings in the Federal Circuit Court of Australia for final and interim parenting orders. As to the child’s living arrangements, the mother proposed interim orders consistent with the parenting plan.
In response, the father sought interim orders that the child live with him and spend time with the mother on two occasions each fortnight for a total of six nights.
The interim applications were determined by Judge Spelleken on 22 July 2014 and orders were made which divided the child’s time between the parties as to nine nights in each fortnight with the mother and five with the father. These periods were broken up so that in each fortnight the child had two periods with the mother and two with the father. Changeovers were to take place at a contact centre and provision was made for weekly Skype or telephone contact. An order was also made for a family report.
Not long after the child returned to the mother, without reference to the father, the mother made arrangements for the child to commence “expressive therapy”. When, some months later, the father found out about it (from the child) he instructed the therapist to cease treating the child, which she did. In the meantime, he made repeated attempts to engage the mother in further mediation and about where the child would attend kindergarten the following year. The mother ignored his attempts and, without reference to him, in August 2014, she enrolled the child at H State School. Oblivious to this the father personally, and through his solicitors, continued to attempt to engage the mother in discussion about where the child would start school.
The father then unilaterally enrolled the child at B State School.
The Family Consultant met with the parties and child on 12 November 2014. In her report dated 31 November 2014, she made the following recommendations:
201.The following recommendations are not intended to be prescriptive. They are offered as a means of assisting the parents, and the Court in reaching an outcome that is in the best interests of [the child]:
(a)That if [the father] and [the mother] reside in the same area they have equal shared parental responsibility for the long-term issues involving [the child].
(b)That [the mother] is permitted to relocate to [Suburb E in Brisbane] with [the child] and that [the child] attends [C] Primary School at [Suburb V] with her maternal cousins.
(c)That if [the mother] is permitted to relocate to [Suburb E] and [the father] moves to a location within a 35-kilometre radius of this area the current care arrangements should progress over the next twelve months until [the child] is spending equal time with each parent.
(d)That if [the father] chooses to live in the [R Region] then [the child] should live with her mother and spend time with and communicate with her father as agreed between the parents and if they fail to agree then as follows:
i.From after kindergarten/school on Friday until before kindergarten/school on Monday and each alternate week thereafter.
ii.During the time [the child] is with her mother she is able to contact her father via phone or Skype
iii.When [the child] commences school, for half of the school holidays as follows:
a.[The child] will spend the first half of school holidays with her father in odd numbered years and the second half of school holidays with her father in even numbered years.
b.[The child] will spend the second half of school holidays with her mother in odd numbered years and the first half of school holidays in even numbered years.
iv.For Christmas and New year’s eve
a.In 2014 [the child] will spend Christmas Day with her father and New Year’s Eve and then for each alternate year thereafter.
b.The mother will have [the child] for Christmas Day in 2015 and New Year’s Eve and each alternate year thereafter
v.[The child’s] Birthdays
a.In 2015 and in odd numbered years thereafter the father will spend time with [the child]
b.In 2016 and in even numbered years thereafter the mother will spend time with [the child].
vi.Parents Birthdays, and Father’s day and Mother’s day
a.With Mother on the eve of these special occasions until 5.00pm or as negotiated between the parents
b.With Father on the eve of these special occasions until 5.00pm or as negotiated between the parents.
(e)That the changeovers should occur at [the child’s] school or at the [sic] public place such as a McDonald’s Family Restaurant.
(f)That [the father] and [the mother] establish an agreed communication method either by email or via a communication book, and take responsibility for communication about changes to standard arrangements, and communicate information about [the child’s] medical, health and emotional wellbeing, in a timely manner and without the threat of legal action or solicitor involvement.
(g)That both [the father] and [the mother] attend a Parenting Orders Program to assist them with their communication skills.
(h)That if the current court proceedings remain unresolved and the matter proceeds to trial, consideration of the following may assist the court:
i.      An Independent Children’s Lawyer be appointed to represent [the child] in the proceedings
ii.     A report from [the child’s] counsellor and from the parents’ counsellors
iii.     An Updated Family Report to assess future issues including:
a)The impact on [the child] if the parents’ ongoing conflict continues
b)The parents’ compliance with the above recommendations and court orders including their demonstration of co-parenting skills.
c)[The father] and [the mother’s] capacity to communicate respectfully with each other in relation to [the child]
d)Determination of [the child’s] future time with her father.
(i)As per the other conditions outlined considered by the Court in relation to the previous Family Court order.
(Family Report dated 31 November 2014, pp 40 - 41)
It is useful to observe at this stage that at the final hearing the family report writer moved away from her recommendation for an eventual equal time outcome (recommendations (b) and (d)) in favour of recommendation (d), wherever the parties live. This is a matter to which we will return.
In the meantime, the father filed an application concerning the schooling issue, for permission to take the child on holiday to Germany and to restrain further “expressive therapy”. This application was heard by Judge Spelleken on 18 December 2014, on which date various orders were made by consent and judgment in relation to overseas travel was reserved. As to the orders made by consent, the parties agreed that the child’s parenting arrangements would continue in accordance with the orders made on 22 July 2014. It was also agreed that the child attend H State School, the child would attend an independent counsellor, the parties would attend a post-separation parenting program, and various injunctions as to medical treatment would be put in place.
On 24 December 2014, Judge Spelleken made orders which enabled the father to take the child to Germany for three weeks in December 2014 - January 2015 and listed the proceedings on 1 July 2015 for the allocation of trial dates.

The father and child travelled to Germany between 28 December 2014 and 16 January 2015.
The child commenced kindergarten at H State School in 2015.
In June 2015, the child commenced therapy at a practice in Suburb O, Brisbane.
When the proceedings were unable to be resolved by agreement, they were listed for final hearing on 1 October 2015. At the final hearing, both parties were represented by counsel. As well as the parties, the family report writer was cross-examined. Otherwise, at the close of evidence, directions were made for written submissions. Those submissions were duly received, with the first in time provided on the father’s behalf under the hand of his solicitors, in response by counsel for the mother and finally, submissions in reply by the father himself.

The substantive appeal

The father appeared on his own behalf and drafted his grounds of appeal. Those grounds are drafted in broad terms and in many respects lack the particularity required to establish an error in the exercise of the discretion of the trial judge in accordance with the principles set out in House v The King (1936) 55 CLR 499, 504 - 505. Thus, we attempted to clarify with the father the essence of the challenges made by him. This was only partially successful and we will proceed on the basis that the father challenges his Honour’s orders as set out in his Amended Notice of Appeal, Summary of Argument and such particulars as he provided at the hearing.
The grounds of appeal are:
1.Error in finding of facts by [the primary judge], due to his failure to properly examine the documents provided from the father’s side.
2.Error in finding of facts by [the Family Report Writer], due to her failure to properly examine the documents provided from the father’s side.
3.Incorrect exercise of discretion by [the primary judge], due to his failure to give proper consideration to the evidence and facts provided from the father’s side.
4.Incorrect exercise of discretion by [the Family Report Writer], due to her failure to give proper consideration to evidence and facts provided from the father’s side.
5.[Counsel for the father], was in error, acting negligence [sic] on behalf of the father, failing to demonstrate important evidence to the court, failing to cross examine the mother’s witnesses and failing to properly cross examine [the Family Report Writer].
6.[The primary judge] was in error applying the wrong principal [sic] of law, failing to abide by the rule of law.
7.Procedural errors in course of the matter [file number omitted].

Errors in fact finding – ground 1

As we commence our consideration of the father’s challenges to his Honour’s findings of fact, it is helpful for us to explain that the primary judge was not required to resolve every factual dispute even if he was asked to (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]). Rather, the task of a trial judge is to determine factual disputes, the resolution of which is relevant to the ultimate decision. It follows that a failure to make findings concerning disputed but immaterial facts could not, of itself, establish error. Nor can an appellate court intervene purely because, based on the same evidence, it might have reached a different decision. With this in mind, we will focus on those challenges which relate to matters of significance and do not propose to discuss those which did not influence the ultimate decision.
The essence of the challenge as to factual error is that the primary judge:
·erred in failing to find that until July 2013 the father was the primary carer of the child;
·erred in finding that the “parties have remained at war” ([75]) and there are clear indications of the child being distressed and of negative impacts therefrom on the child;
·should have found that the father made genuine efforts to communicate with the mother and that the mother refused to communicate with the father and involve him in major decisions for the child; and
·erred in finding (at [32]) that subsequent to the 2014 interim parenting orders, that “at least during that time the mother has continued to comply with the orders”.
It needs to be understood that no findings were made about who, prior to separation, had been primarily responsible for the child’s care. As a reading of the trial reasons reveal, the primary judge focused on the parenting arrangements post-separation. So did the family report writer. Given the passage of time since separation, and as it was common ground that the child loved and enjoyed meaningful relationships with both her parents and which it was in her interests to continue, his Honour was entitled to proceed in this fashion.
In any event, the gravamen of the evidence about the child’s care arrangements once the parties arrived in Australia is encapsulated in their affidavit evidence. As to this period, the mother said:
…
10.We moved to Australia in March 2011. After this I started doing work at the Sunday markets once per week towards the end of July. The markets would be completed by 1pm. Otherwise, I cared for [the child].
11.The Father and I opened a [small business] at the end of 2011. By early 2012 we were taking turns at working in the [small business]. [The child] was in day care 2 days a week. We both took turns at caring for [the child] during this time, however I was not away from her for more than 5 hours as the [small business] was only open between Wednesday and Friday from 9.30am – 3.00pm and Saturday from 9.30am – 2.00pm. Often [the father] would bring [the child] to me at the [small business] when he was caring for her.
…
(Mother’s affidavit filed 10 July 2014)
In relation to this period, the father deposed:
…
5.After [the mother] and I moved to Australia in March 2011, I became [the child’s] primary carer as I was on a bridging Visa and unable to work as a result. [The mother] worked at the Sunday markets on one day per week. In September 2011, [the mother] established her own [small] business in [the R Region]. [The mother] worked for between six to eight hours per day, three to four days per week. When [the mother] was not working in the [small business], she would often be busy attending to other aspects of running a business and was often not home to care for [the child]. I remained [the child’s] primary carer until separation in March 2013.
6.In response to paragraph 11 of [the mother’s] affidavit, I deny the allegation that we were taking turns at working in the [small business]. I was on a bridging Visa and therefore unable to work until December 2012 when I was granted permanent residency. In June 2013 I established my own online business and worked from home around [the child’s] routine. I do however admit to working a total of approximately 20 days in the [small business] between late 2011 and March 2013.
(Father’s affidavit filed 18 July 2014)
A comparison of this evidence suggests that the factual dispute was of relatively small compass and clearly established that during this period both parents were substantially involved in the child’s care.
Asked to explain how the finding for which the father contended was material, he told us that it pointed to errors in the opinion of the family report writer upon which his Honour relied. According to him, it was accepted by the family report writer and thus the primary judge that throughout the child’s life the mother had been the primary carer of the child. In support of this proposition, the father relied on the following statements contained in the family report:
170.[The child] presented as a happy little girl who is well cared for and is settled in her mother’s care with whom she has lived with for the majority of her short life. [The child] also presented as having a significant secure attachment to her maternal grandparents who also attended the appointment to care for her. No concerns were identified in relation to [the child’s] day to day care with her mother.
…
195.…
(c)[The child] has lived with her mother for all of her short life and has a secure and loving primary attachment to her. Given [the child’s] age and developmental level, change of her living arrangements and primary carer, would likely result in a considerably negative way on her wellbeing.
(Family Report dated 31 November 2014, pp 32 and 37)
There is a difference between the concept of primary carer and primary attachment, and it is to the latter that the family reporter writer’s opinion is directed. As to the child’s living arrangements, the father does not, and indeed could not, challenge the statements which acknowledge the child has lived with the mother for the majority of her life. The point being, that until separation it is undisputed that the child lived with both parents and thereafter primarily with the mother. In circumstances where the family report writer was not questioned in relation to her opinion as to the child’s attachment, his Honour was not obliged to determine whether, during the period the parties lived in Australia prior to separation, the father had been the child’s primary carer.
There is no doubt that the nature of the parental relationship, the parties’ capacity to communicate and co-operate in relation to their daughter and the risk she would be emotionally or psychologically harmed if caught in the midst of ongoing parental disputation, were central issues at trial and pivotal to both the family report writer and his Honour. The theme of “parents at war” permeates the trial reasons. It is that poor parental relationship which meant that frequent changeovers during school term were contraindicated, and to the extent possible, the child needed to be protected from the damaging effect of highly conflicted parents.
Under the heading “The evidence of the parties”, the primary judge discussed a number of events which underscore his conclusion that the parties were conflicted and “at war”. For example, the mother was criticised for denying the child contact with the father for 18 days in January 2014 ([30]), as was the father in July 2014 ([31]). At [32], his Honour commented unfavourably on the extent to which the mother has made unilateral decisions concerning the child’s attendance at school. Both parents were criticised in relation to the child’s attendance at expressive therapy; the mother for engaging a therapist after the father withheld the child but without raising that possibility with him or informing him; and as to the father for seeking details of the therapist so he could “be involved in any future treatment”, and then, without discussion, cancelling all subsequent appointments such that therapy ceased.
Another example of the parties’ inability to communicate and problem-solve is identified at [38] and points out that the father, without reference to the mother, provided their four year old daughter with a mobile telephone which the mother considered irresponsible. For his Honour, this highlighted the parties’ distrust of each other and their failure “to even consider appropriate discussions in relation to such issues [about the child]”.
As to the efforts the father made to communicate with the mother, at [34], the primary judge acknowledged that the father sought to engage the mother in family dispute resolution and she refused. In the same paragraph and also at [30], the primary judge seems to accept that the mother’s refusal had its genesis in her lack of trust of the father; even though in some respects her distrust was based on actions not dissimilar to her own. However, at [110], the primary judge expressed the view that “[t]he father does not communicate well with the mother and as a consequence of that, the mother’s communication with the father is also poor”. This would seem to be a reference to the mother’s evidence under cross-examination by counsel for the father as follows:
And most of the things that he rails about about you are you not discussing anything with him and simply making the choices because you really can’t be bothered. Isn’t that right? It’s all a bit hard?‑‑‑No, it’s not because I can’t be bothered – because I have issues of trust with him. I have issues of trust and issues of communication with him. That’s what, you know, what has happened, and ‑ ‑ ‑
But they’re issues between you and him, they’re not issues with [the child]?‑‑‑Well, they are issues between him and me, but if there is issues of trust it will become an issue of, you know, the inconsistently with [the child] – for [the child].
Well, why should he trust you when you withheld the children to get in first, when you unilaterally enrol the child in kindergarten without including him, you unilaterally enrolled the child at [H State] School despite at the time – the evidence is, is it not, that there were a number of requests going back and forth with dad for you to engage in choosing a school. That’s true, isn’t it?‑‑‑It is true, but that’s what I said before. It was really difficult for me after he has breached the court order not taking [the child] to kindergarten. And then I was – I was – it was very dramatic for me, and so I was seeking legal advice at the time because I couldn’t – I wasn’t able to really communicate with him myself. And I agree that I haven’t communicated with him in the past, you know.
And – but you didn’t communicate at all, did you?‑‑‑No, I have.
No, no, at that particular time and [H State School]?‑‑‑At that particular time, yes, and that’s when I was seeking legal advice to – yes.
(Transcript of proceedings, 1 October 2015, pp 15 - 16)
And:
And you withheld the child until mediation why?‑‑‑Because I wanted something official. We had an unofficial agreement which he could not abide to because he kept changing his mind. So I received quite a number of emails swapping and changing and times, and, yes, so I wanted something that was official and I was hoping that a parenting plan will do that. But like I said, even the parenting plan was difficult for him to abide to.
…
Now, the father actually tried, didn’t he, to get you to go to a second mediation, didn’t he, with Family Relationships in March?‑‑‑Three weeks later, yes – about that.
Yes, yes. Do you have any understanding of why he might have asked for that?‑‑‑Because he kept – he – no. Sorry. Because he changes his mind again, and that was just something that – I didn’t go because we just had a parenting plan done, and that was just three weeks after the parenting plan that was agreed to. So I sought legal advice, and I did not attend.
(Transcript of proceedings, 1 October 201, p 18)
Also:
[Counsel for the father]: Now, do you recall on or about 5 August 2014 the father sending text messages to you regarding discussing a primary school to be enrolled?‑‑‑Yes.
Did you reply to that?‑‑‑No, I didn’t. As I explained before, because he had just withheld [the child] and decided not to take her to kindy any more.
…
Something to do that was German specific. Here we go – German class. On 1 August, at paragraph 16 of your affidavit you state:
I received a text message from the applicant as follows: “Hi, [the mother]. I would like to let you know that [the child] won’t attend at kindergarten Mondays and Tuesdays in the future while she’s in my care, as I would like to take – to visit the German class and kinder gym with her. Please inform the kindergarten and other institutions involved about the new situation. Thank you.”
Now, that’s the text you received, isn’t it? That’s what’s in your affidavit?‑‑‑Yes.
Now, what did you feel about that?‑‑‑Well, I felt that he has breached a court order, and that was just – yes. He breached a court order, and he never actually took – took [the child] to German class.
What did you feel about his actions, personally?‑‑‑Personally I think it wasn’t in the best interests of [the child], but that was her routine, and she just missed out of kindy because he withheld her.
How did you feel about not being included in that decision?‑‑‑For me it was him breaching a court order, but ‑ ‑ ‑
So that’s as simple as it was? It was just the breach of a court order?‑‑‑It was a breach of a court order; a breach of a trust again, for me, so ‑ ‑ ‑
Breach of trust?‑‑‑Yes.
So you unilaterally acting on [the child’s] behalf, that’s not a breach of trust with the father; but it is a breach of trust when he does it? Is that correct?‑‑‑I have followed court orders, and if we had an agreement, I stuck to them. So ‑ ‑ ‑
(Transcript of proceedings, 1 October 2015, pp 19 - 20)
As to the negative impact this “war” had on the child, reference need only be made to the child having been twice withheld, being enrolled in different schools and having commenced therapy for it to be abruptly terminated, to demonstrate that finding too was open.
In order to understand the challenge made to [32], that paragraph is set out below:
But that is a matter in the past, and it is clear that there have been recent opportunities for the parents to each foster the relationship with the other parent since orders have been made. And at least during that time the mother has continued to comply with the orders. As I have indicated, the mother has made decisions and taken steps which, in hindsight, no doubt could have been handled more appropriately. They relate, to issues with regard to the decision as to the school that the child is currently attending as well as decisions in relation to the school that the child will attend in the future.
It will be recalled that the asserted error is the finding made in the second sentence of the paragraph. According to the father, the effect of the interim orders made on 22 July 2014 was that the parties were obliged to jointly make decisions concerning the child’s enrolment at school and to attend therapy. However, the orders are silent in relation to parental responsibility, the child’s attendance at therapy or enrolment at school. By operation of s 61B and s 61C of the Act each of the parties had parental responsibility for the child and which could be exercised individually (Goode and Goode (2006) FLC 93-286 at [37]). It follows that the challenge to [32] reflects the father’s mistaken understanding of the law.
Although the challenges referred to above cannot be made good, the father is able to establish that the primary judge made a number of findings which are in error. However, those errors are not germane to his Honour’s decision and do not warrant appellate intervention.
The father contended that his Honour’s statement at [46] that he said words to the effect “I don’t see her for up to 10 days and shorter terms may be better for her” misstated his evidence, and that his Honour’s conclusion that his proposal in fact reflected the father’s rather than the child’s needs was not open.
We agree that his Honour’s precis of the father’s evidence is mistaken. What the father actually said to his Honour was:
How is that stable for her? And explain to me why you’re seeking it?‑‑‑I think it is – it gives her – she has the – [the child] has the opportunity to get more the feeling that she is – she still has, kind of, both of us, you know? She can see – because she is five years old and I think it’s very important that she has both of us, you know, and that she can see both of us on a more regular base than just on a week-to-week base or even – at the moment she cannot see me for 10 days, so – yes – I think it’s important that because we are both important to her, you know – she loves both of us and we love her both, so – yes. It’s just very important that – yes – that it’s – I think it might be important to her that it’s shorter terms, you know, that she can see us, you know?
(Transcript of proceedings, 1 October 2015, p 45)
There can be no doubt the primary judge was concerned about what he said was “…the overwhelmingly significant factor that arises here”, namely “the child’s emotional wellbeing and the ongoing concern that the father is not able to sever his own wants from the appropriate course of parenting of this child” ([107]). The primary judge’s remarks at [46] are, in effect, one aspect of that broader concern. However, there is an abundance of evidence which independently of [46] justifies the conclusion reached at [107]. Reference need only be had to his Honour’s acceptance of the unchallenged evidence given by Ms L as to the difficulties the father caused at changeover on 30 January 2014, the father’s attendance when the child was at school at lunchtime, evidence from the contact centre about his behaviour at changeover and evidence given by the family report writer about remarks from the child sourced to the father about the dispute, to justify [107] and render the mistake at [46] immaterial.

We also agree with the father that the primary judge’s criticism of his failure to pay child support after June 2014, and to appreciate he could not afford to live in Brisbane, were made in error. The father gave clear evidence that his primary source of income was welfare benefits. He had casual work and from time to time was able to have some financial support from family abroad. This evidence did not permit his Honour to conclude “…there was a considerable degree of flexibility available to the father, in relation to his financial circumstances” (at [57]). In a similar vein, the father was clear that he had made enquiries about rental costs in Brisbane and even with the lower costs of expenses at R Region he had about $50 a week for food. It follows, we do not accept that it was open to his Honour to find that the father could relocate his place of residence “…fairly easily, either by ending the rental arrangement or simply allowing the lease to run out and then looking at other alternatives” (at [58]).
Thus, on the evidence adduced at trial this was not a case of a parent who, irrespective of the benefits to a child of relocating, refused to also move, but rather of a parent who could not afford to follow if relocation was granted. But for the fact that the family report writer moved away from her support of an eventual equal time arrangement, in favour of an arrangement reflected in the orders (irrespective of whether the parties lived nearby), this error would have been troubling and may have led to appellate interference. However, as we will shortly discuss, his Honour was entitled to accept the ultimate opinion of the family report writer and in so doing, rendered this error also immaterial.
The final asserted error to which this ground relates is the failure of the primary judge to admit into evidence two affidavits filed in the father’s case. These affidavits are also the subject of an application to adduce further evidence in the appeal. In any event, it is submitted that because they were read by the family report writer, even though they were not relied upon by the father at the hearing, his Honour was obliged to read them. His Honour, as the trier of fact, was not required to have regard to the source material upon which the expert relied, although a judge in the position of the trial judge may do so.
The challenges raised by these grounds have no merit.

Errors by the family report writer – grounds 2, 3 and 4

By these challenges it is asserted first that the family report writer in effect made the same mistake his Honour did and failed to appreciate that, for a time prior to separation, the father was primarily responsible for the child’s care. Secondly, on a proper analysis of the evidence available to her, the family report writer could not have formed the opinion she did. And then, because the primary judge did no more than adopt this mistaken evidence, his decision is in effect no proper exercise of discretion.
As to grounds 2 and 4, although we agree with the submission made by counsel for the mother that these grounds could not establish appellable error, as we have already explained, we do not accept that the family report writer proceeded on the basis that prior to separation, the mother was the child’s primary carer. Counsel for the father cross-examined the family report writer with obvious regard to matters germane to the issues and, in so doing, demonstrated that the family report writer was indeed apprised of the evidence and understood the thrust of each party’s case.
Before us, the father suggested the family report writer changed her opinion at trial without proper foundation. In some respects, her recommendations were changed but not because she was unfavourably disposed to the father, rather as she explained, because the evidence contained in the trial affidavits revealed that in the 12 months between when the family report was provided and the final hearing, the relationship between the parties had deteriorated and she now believed the child was caught between two highly conflicted parents.
Under cross-examination by counsel for the mother, the family report writer expressed the opinion that even if the parties lived nearby it would be in the child’s best interests to live with the mother and during school term, to spend time with the father each alternate weekend. Her rationale for this is revealed in the following cross-examination of her by counsel for the mother:
Yes?‑‑‑And then it was being disrupted.
Yes. In all of the circumstances, in the event that the father remains living in the [R Region] – and he has indicated the court that he can’t move closer to Brisbane because he can’t afford it, he said – and the court says that [the child] can attend the [C Primary] School, is your recommendation for time between [the child] and her father an every second weekend type arrangement because of the distance?‑‑‑I – I think that if, since I saw them 12 months ago, the level of conflict is still occurring and this child is still being subjected to it, that consideration should be given to the child living with the mother.
About if they do live in the same area? Should it be the same type of arrangement even if they’re in, say, the same suburb? Should it still be, given what you just said about conflict and mistrust between – sorry. I withdraw that. Conflict between these two people and the effect upon [the child], should it still be something like Friday to Sunday or Friday to Monday, the arrangements?‑‑‑I think it should be Friday till Monday if she’s going to school, so that the transitions are at school.
Sure. And that’s irrespective of whether they live on opposite ends of Brisbane or in the same place?‑‑‑That’s correct.
And why – could you just explain clearly to his Honour, if you would, [the family report writer], why that is the case against what you’ve read and what you’ve heard by way of the background?‑‑‑When I read the affidavits, it appeared to me that, since I saw the family last, their level of cooperation has got worse, that in the past there was some sort of cooperation in terms of the mother driving the father to the airport.
Yes?‑‑‑And then, when the father went overseas, he didn’t facilitate any contact with the family. That sort of thing. So I – I think they – they all indicated to me that the situation seems to have got a bit worse in that there has been no – there has been no self-reflection about the situation. It’s still in an adversarial situation.
Yes. There’s no dissipation of the dispute?‑‑‑That’s correct.
It’s still raging?‑‑‑Yes.
But you wouldn’t recommend, would you, that there’s any reason why the parties could not, for example, share school holidays?‑‑‑No. I think school holidays is different, because it’s not as disruptive to the child going to school.
Sure. It’s all about the schooling and the week and ‑ ‑ ‑?‑‑‑That’s right.
‑ ‑ ‑ the homework and the books and the shoes for the tennis and all that sort of stuff?‑‑‑Yes.
(Transcript of proceedings, 1 October 2015, pp 112 - 113)
These matters were also the subject of cross-examination by counsel for the father as follows:
All right. So now here’s the curly one. Why can’t mum move to [Suburb E] and the child stay at the school she’s already at that mum previously chose?‑‑‑Because having considered all the – my report and the new evidence before the court, I would not be confident that the father wouldn’t continue to undermine the mother’s relationship with the child.
So you don’t see that if the mother stopped making unilateral decisions, that that would, in fact, in some way help to cure the father’s problems?‑‑‑I don’t think it’s – I think it’s deeper than curing the father’s problems just by that. I think it’s the father has an enmeshed relationship with the child and I think that that’s very concerning. And that to me is evidenced by the school business – going to the school for the – during the lunchtime and distracting her. That sort of stuff.
Okay. So – but you don’t see a connection at all between the mother was initially doing by way of unilateral action that in any way assisted the father to be in the position he’s in now. You didn’t see a correlation between the parents and their actions?‑‑‑No. I think that when I read the new evidence before the court, I think it would have been really beneficial, when the court made a decision that dad could take the child to Germany, if dad would have been demonstrating his support of the mother if he had facilitated the child seeing her other relatives while she was over there.
I understand your point?‑‑‑I – I haven’t seen any new stuff in the new evidence before the court where the father has made a shift in terms of being supportive, not alarming the child, and making sure that he’s really child-focused.
(Transcript of proceedings, 1 October 2015, p 122)
When regard is had to the totality of the written and oral evidence given by the family report writer, the facts upon which her opinion is based are identified and her reasoning process leading to the formation of her opinion is clear. We perceive no error by the primary judge, as the finder of fact, in determining that the family report writer’s evidence should be afforded significant weight. Nor do we accept that in so doing, his Honour subverted his fact finding to the opinion of the family report writer. In this respect, the primary judge made frequent reference to the impression he drew from the evidence and thus we must have regard to the well-known advantage of a trial judge in seeing and hearing the witnesses him or herself. That his Honour’s impressions and observations of the parties accords with those made by the family report writer is not persuasive of the proposition raised by ground 3.

Incompetent trial advocacy – ground 5

The gravamen of this ground is that it is said the trial miscarried because counsel for the father was both negligent and incompetent in his conduct of the father’s case. The principles relevant to the question of when an appellate court will allow an appeal on account of the incompetence of a legal practitioner are set out in OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 at 298 as follows:
[123] We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a re-trial, regardless of whether the result is apparently fair.
[124] On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
We agree with the submission by counsel for the mother that in a parenting case the effect of OP is that an appellant would need to establish that:
·counsel was incompetent or the forensic decisions were wrong;
·those decisions affected the judgment; and
·but for those matters, a different result would have been reached.
The first difficulty which the father faces is that he failed to adduce any evidence in support of this ground. His unsworn assertions about what passed between him and his counsel are not evidence. When this was drawn to the father’s attention, he argued that the incompetence is apparent on the face of the record, namely, in counsel’s decision to not cross-examine the mother’s lay witnesses and to not rely on the father’s lay witnesses. As to the witnesses called in the mother’s case, it is assumed by the father that cross-examination had to result in evidence more favourable to him than was contained in their affidavits. That assumption cannot be safely drawn. As to the father’s lay witnesses, it cannot be assumed that by calling those witnesses and their undergoing cross-examination that would not have resulted in evidence which damaged the father’s case. It follows, that the allegation of incompetence falls at the first hurdle.
Otherwise, the varied matters upon which the father contends that his counsel “failed to demonstrate a fact” is more accurately phrased as “failed to demonstrate the facts successfully”. On our review of the transcript, it can be seen that counsel for the father was actively engaged in the trial and, perhaps unlike the father, was able to distinguish between matters likely to be of interest to the primary judge and those of lesser significance.
This ground cannot succeed.

Misapplied the law – ground 6

Two matters arise for consideration here. The first concerns the order that the mother have sole parental responsibility for the child. The second is to the effect that on a proper application of the law, the father’s time with the child should not have been reduced and orders along the lines he proposed made.
As to the order for sole parental responsibility, the essence of this challenge is that the primary judge misapplied s 61DA of the Act. This provision is concerned with the application of the presumption of equal shared parental responsibility including, relevantly, when the presumption will be rebutted or does not apply.
The primary judge was satisfied that it would not be in the best interests of the child for the parties to have equal shared parental responsibility for her. This accords with the opinion of the family report writer and, even more tellingly, the orders sought by each of the parties. The orders sought by the father at trial are set out in the Case Outline filed on his behalf and dated 24 September 2015. The first order sought is that the father have sole parental responsibility. Closing addresses were made in writing where, again, the father sought an order that he have sole parental responsibility. For her part, the mother sought an order that she have sole parental responsibility for the child.
It follows, that one of the matters upon which the parties were agreed is that it would not be in the best interests of the child for an order that they have equal shared parental responsibility. Although his Honour was not bound by that approach, he was entitled to take their approach to this issue into account which he did.
The primary judge was also moved to make an order for sole parental responsibility because:
110.…the parties cannot communicate appropriately with each other, do not trust or respect each other as the parent of [the child], and as such it would be nonsensical to suggest that they should engage in communication and decision-making which is presently beyond their capacity…
There being no error by the primary judge in making an order for sole parental responsibility, it follows that the condition precedent to the application of s 65DAA (court to consider child spending equal time or substantial and significant time with each parent in certain circumstances) was not met. Thus, it fell to his Honour to evaluate the proposals pressed by each party, of which there were only two. The father’s case was that the child’s time be shared equally which, during school term, in each fortnight would see the child live for two periods with the mother and two with the father. The mother’s sole proposal was that she and the child move to the Suburb V area.
Having determined that the mother was more likely to foster the child’s relationship with the father than the reverse, the primary judge reasoned that it was in the child’s interests for her to be involved with other family members (other significant people) and for those relationships to also be fostered and developed. It is implicit in the order for the child to attend the nominated school, that the primary judge was satisfied that it was beneficial to the child to attend the same school as her cousins and, as he went on to state explicitly, through those family associations to enhance her South East Asian/Australian heritage.
These grounds do not succeed.

Procedural errors – ground 7

By this ground, the father challenges various interim and interlocutory orders made by Judge Spelleken in 2014 and 2015. The father requires an extension of time in order to do so. No explanation was provided for his failure to appeal as of right and this challenge will be rejected. Lest these remarks be misunderstood, we do not intend to convey the idea that an appeal against those orders had any prospects of success.

The third appeal

We gave the father permission to amend his Amended Notice of Appeal so as to incorporate the orders sought in his Summary of Argument filed 22 July 2016. The effect of this is that the father sought orders to the effect that:
·the orders made 30 June 2016 be set aside;
·the child spend time with him in Germany for eight days in August 2016;
·changeover in Germany take place at a nominated railway station; and
·the child have contact with her parents by Skype each Wednesday and Friday between 5.00 pm and 5.30 pm.
It will be recalled that on 30 June 2016 the primary judge summarily dismissed the father’s application for these and other orders. At [28] of his reasons for judgment, the primary judge declared himself satisfied that the father’s application was an abuse of the court’s process and, consistent with r 13.10(c) of the Federal Circuit Court Rules 2001 (Cth), it should be dismissed. In essence, an abuse of process was occasioned because these issues were dealt with in the final hearing and were already the subject of orders.
As to Skype contact, by Order 12 made 12 February 2016 the primary judge ordered:
That the Mother and the Father shall be able to Skype with the child between 5:00pm and 5:30pm on Wednesday and each alternate Friday at 5:00pm, or telephone the child during these designated times when the child is not in their care and if Skype is not available then the parent will be able to communicate with the child by telephone.
It can be seen that Order 12 requires the parties to facilitate contact by Skype at the relevant times and makes provision for telephone contact as an alternative when Skype is not available. According to the father, the mother has refused Skype contact on the basis it has been unavailable. The order sought in the third appeal would not advance the position. If the father was able to establish the availability of Skype, the issue should have been raised as one of enforcement and not variation.
As to arrangements for the child to spend time with the father in Germany in August 2016, Order 15 of the orders made on 12 February 2016 provides:
That notwithstanding Order 14 herein, the Mother be permitted to take the child on an overseas trip to Germany in August 2016 to attend a family wedding. The Father’s time with the child shall be suspended during that period and the child shall communicate with the Father by Skype during the period of the overseas trip.
The rationale for that order is contained in counsel for the mother’s written submissions made at first instance:
The mother also seeks to take [the child] on a holiday to Germany in August 2016 for a wedding. The father appears not to object to same. [The child] has already been to Germany once with the father. The Court could comfortably make that order.
(Mother’s Submissions filed 23 October 2015, [98])
The father provided a written response to those submissions and did not resist an order in the terms proposed, nor seek to spend time with the child whilst she holidayed with the mother. We have no hesitation in agreeing that in the absence of evidence which established a relevant change in circumstances sufficient to warrant another hearing on the issue, the issue having been resolved on a final basis, the subsequent application constituted an abuse of process.

It follows that subject to the receipt of further evidence in the appeal, error has not been established.

Application to adduce further evidence

Error having not been established, it is thus necessary to consider the father’s application to adduce further evidence in the appeals. The circumstances in which the Full Court can receive further evidence in an appeal pursuant to s 93A(2) of the Act are considerably constrained and as discussed in CDJ v VAJ (1998) 197 CLR 172. The principal purpose of s 93A(2) is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous.
As we mentioned earlier, the further evidence is contained in the disputed appeal book and an affidavit of the father filed 19 July 2016.
The father’s affidavit comprised copies of correspondence between him and the Legal Services Commissioner and him and his Honour’s chambers. Following discussion with the bench, the father accepted both sets of correspondence were irrelevant and we understood him to withdraw that aspect of the application. If there be any doubt about this, we do not accept that the father’s correspondence with the Legal Services Commission could assist us in determining whether or not the father was incompetently represented at trial or how correspondence in relation to an application to reopen evidence, when that application was subsequently withdrawn, could demonstrate error.
Turning then to the documents contained in the disputed appeal book, counsel for the mother agreed we could receive documents 3, 4 and 6. These comprise the father’s application to reopen the hearing so as to adduce evidence from his counsellor Ms Z (document 5 in the book).
Given the application to reopen was withdrawn, we accept the submission by counsel for the mother that the only relevance of documents 3, 4 and 6 is that they establish the father took the opportunity to make the application but before it could be determined, it was withdrawn. It follows that although we will receive this evidence, it could not demonstrate that the orders under appeal are erroneous.
As well as document 5, objection was taken to documents 1 and 2 of the book. These are affidavits of two witnesses filed in the father’s case on 18 July 2014. They contain evidence as to the father’s parenting capacity, observations of him with the child and, as to witness S, the child’s care arrangement between April 2011 and July 2013. Fatal to receipt of this evidence in the substantive appeal is the fact that these affidavits were not relied upon at the final hearing. This was a forensic decision by which the father is bound (Coulton v Holcombe (1986) 162 CLR 1, 7 - 8). As to Ms Z, if the father considered her evidence was important, it was incumbent on him to pursue his application for its admission so that it could be tested and considered by his Honour.
It would be inconsistent with the principles discussed in both Coulton and CDJ for us to receive any of this controversial evidence.

Conclusion & Costs

The father has failed to establish error and the appeal will be dismissed. In the event the appeal was dismissed, an application was made by the mother that the father pays her costs calculated on an indemnity basis. Because the mother proposed that we receive offers of settlement, we determined that the question of costs would be deferred until after we published our reasons in the appeals. Provision will be made in the orders for us to receive evidence and submissions in relation to the mother’s application for costs, which will be determined in chambers.

Thackray J

I have read the judgment of Strickland and Ryan JJ in draft. I agree with the reasons and the orders proposed.

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Ryan JJ) delivered on 5 September 2016.

Associate:

Date: 5 September 2016