MAULDON & COOK - [2010] FamCAFC 48

FAMILY COURT OF AUSTRALIA

MAULDON & COOK

[2010] FamCAFC 48

FAMILY LAW – CHILDREN - PARENTING PROCEEDINGS – FATHER’S ACCESS TO CHILDREN – DISCRETION – APPEAL FROM FEDERAL MAGISTRATE – Not established that the Federal Magistrate had erred in defining the times which the father was to spend with the children – Not established that Federal Magistrate made erroneous findings of fact, or failed to have regard to relevant evidence - Not established that his Honour erroneously afforded weight to certain evidence or gave insufficient weight to other evidence – Not established that his Honour was biased against the father’s Counsel – Not established that, if admitted, further evidence would have rendered Federal Magistrate’s decision erroneous – Appeal dismissed.

Family Law Act 1975 (Cth) ss 61DA; 60CC(3)(j); 93A

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
De Winter v De Winter (1979) FLC 90-605

APPELLANT:

MR MAULDON

RESPONDENT:

MS COOK

FILE NUMBER:

CAC

686

2008

APPEAL NUMBER:

123

2009

DATE DELIVERED:

12 March 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Canberra

JUDGMENT OF:

Coleman J

HEARING DATE:

26 February 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

14 September 2009

LOWER COURT MNC:

[2009] FMCAfam 1194

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ezekiel-Hart

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Mr Gill

SOLICITOR FOR THE RESPONDENT:

Evans Yeend Family Lawyers

Orders

That the appeal be dismissed.
That there be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Mauldon & Cook is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 123 of 2009
File Number: CAC 686 of 2008

MR MAULDON

Appellant

And

MS COOK

Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed 12 October 2009 Mr Mauldon (“the father”) appealed against orders made by Federal Magistrate Neville on 15 September 2009 in parenting proceedings between the father and Ms Cook (“the mother”).
The effect of the learned Federal Magistrate’s orders was that the parties’ twin sons who are now aged nine and their daughter who is approaching six years of age reside with their mother, and spend time with their father for three periods of four hours per week as agreed between the parents, and such other occasions as the parents may agree.
The learned Federal Magistrate’s orders provided that the mother have sole parental responsibility for the children, and oblige the mother to advise the father of a variety of matters relating to the children’s schooling, medical, dental and general health.
In lieu of those orders, the father sought that the parties both have “equal shared parental responsibility” and that the children spend equal time with both parents. The mother resisted the father’s appeal and sought to maintain the learned Federal Magistrate’s orders.

Background

By way of background to the dispute it is appropriate to record a number of matters, which find expression in the Family Report which was before the learned Federal Magistrate, or in the unchallenged expert opinion evidence of two family consultants. These matters are largely uncontroversial for present purposes.
The parties cohabited from at least the time their twin sons were born in 2001 until 2006.
Subsequent to the separation of their parents, the children resided primarily with their mother and, until late 2008, spent time with their father on an ad hoc basis.
Court orders made on 27 August 2008 provided for the children to spend regular time with their father.
In early 2009 the children were spending time with their father, each Wednesday from after school until 7 pm, and on each weekend from Friday after school to 4 pm Sunday. By that time relations between the parents were strained.
By late 2009, for reasons which were disputed, the children were not consistently spending time with their father in accordance with the orders made in August 2008.
In the proceedings before the learned Federal Magistrate, the father sought that the children spend equal time with him and the mother. Both parents live within the ACT. The father’s proposal would not have obliged any changes to the children’s current schooling.
Before the learned Federal Magistrate it was “largely uncontested” that the father had been absent from the children’s lives, for not insignificant periods, due largely to time spent overseas subsequent to the separation of the parties.
The mother proposed that the children spend regular but limited defined time with the father.
A Family Report prepared by a family consultant in February 2009 recommended that the children spend time with their father “during the day time on weekends” in addition to several hours each Wednesday.
A Family Report subsequently prepared by a different family consultant in September 2009 recommended that the children spend “a few hours several times each week” with their father. As did the earlier report, the family consultant who wrote the second report anticipated that arrangements for the children to spend time with their father would be reviewed in the future in the light of the success of the orders which were proposed.
Although not necessarily so expressed, the orders made by the learned Federal Magistrate with respect to the time the children spent with their father were more in the nature of interim than final orders. The learned Federal Magistrate’s Reasons for Judgment [par 31] and the terms of Order 12 made by him support so concluding.
The significance of any distinction between interim and final orders would not be lost on legal practitioners. Put simply, a lack of success with his appeal to this Court does not mean that the father could not in future successfully contend that his children spend more substantial time with him.

The Reasons for Judgment of the Federal Magistrate

Having recited the matters of background to which reference has earlier been made, the learned Federal Magistrate outlined the “jurisprudential considerations” to which he had regard in determining the proceedings before him. There is no suggestion that his Honour erred in his recording of the relevant statutory provisions, or was otherwise mistaken with respect to the law which he was obliged to apply to the determination of the proceedings.
The learned Federal Magistrate then turned his attention to the disputed issue of parental responsibility, and did so by reference to section 61DA of the Family Law Act 1975 (Cth) (“the Act”).
Reference was then made to the evidence of Ms L, a family consultant and registered child psychologist who prepared the first Family Report in February 2009. His Honour referred to Ms L’s evidence of the “fragile” relationship between the parents and observed that it “seemed not disputed or challenged” that the relationship between the parties was “at the very least, volatile”.
His Honour also referred to the later Family Report, prepared by Ms W, a family consultant who recorded the children “speaking, and being deeply concerned, about the fights between their parents”.
His Honour then said with respect to parental responsibility:
12.In the light of (a) this significant volatility, (b) the genuine if not abiding concerns expressed by the children for their own fears, and (c) the children’s perception of the negative impact of the parental contests on their Mother, in my view, it would not be in the children’s best interests for an order to be made for equal shared parental responsibility. Accordingly, the order sought by [Ms Cook] for sole parental responsibility to be with her will be made.
Notwithstanding that conclusion however, the learned Federal Magistrate imposed upon the mother a number of obligations to provide information to the father with respect to the welfare of the children.
The learned Federal Magistrate recorded, accurately there can be little doubt having regard to the transcript of the trial of the proceedings, that the scope of the evidence before him was “very limited”. The mother had not been required for cross-examination on her affidavit evidence.
It was further observed by the learned Federal Magistrate that the father’s evidence was “somewhat problematic” in that the father “showed rather limited insight into the concerns of the children as recorded by both Ms [L] and Ms [W]. Indeed, he challenged their opinions on many fronts, notwithstanding that he chose not to be present for the conference with Ms [W]”. As is not in doubt, the learned Federal Magistrate had the benefit of seeing and hearing the father cross-examined during the trial.
For reasons which he had thus advanced, the learned Federal Magistrate recorded that the evidence of Ms W and Ms L took on “even greater moment” than it might otherwise have, particularly as Ms W had seen the children only a matter of days before the trial of the proceedings before him.
By reference to the evidence of Ms W, which he accepted, the learned Federal Magistrate found that the children were “significantly concerned about, and deeply affected by, the volatile and disruptive fights which took place between their parents”.
His Honour then referred to passages in Ms W’s report wherein she reported statements made by the children which were consistent with her conclusion as to the children’s significant concerns.
The learned Federal Magistrate referred to Ms W’s consistently repeated concern that the children “have as secure a base as possible in an environment in which they felt as protected as possible”, and to the importance of protecting and alleviating feelings of vulnerability in the children by virtue of section 60B(1)(b) and section 60CC2(b) of the Act.
The learned Federal Magistrate then referred to section 60CC(3)(j) which provides:
60CC How a court determines what is in a child’s best interests
(3) Additional considerations are:
(j) any family violence involving the child or a member of the child’s family;
His Honour recorded that the provisions of that section reinforced the importance of protecting the children from psychological harm or exposure to family violence.
Addressing the wishes of the children, as he was obliged to by section 60CC(3)(a), the learned Federal Magistrate recorded that, notwithstanding the children’s ages and the reality that children’s views could change from time to time, the “security of their views that were expressed and the consistency of them…was of such a kind that the Court must take particular regard of their views”.
So far as the nature of the relationship of the children with their parents was concerned, the learned Federal Magistrate reiterated his essential concern “over the volatile and very fragile relationship between the parents and the impact that that has obviously had on the children’s feelings of security and vulnerability”.
His Honour added that:
26.…While ever that volatility in the parental relationship is maintained, and there is little done to ameliorate or to alleviate it, the risk of the children not having a secure and growing relationship with their Father in the current circumstances will remain.
The learned Federal Magistrate then turned his attention to the attitude to the children and the responsibilities of parenthood, including the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent. The learned Federal Magistrate referred, correctly, to the very limited evidence before him upon which any formal findings could be based and noted, by reference to the expert opinion evidence of Ms L, that the children had a loving relationship with both parents but felt “much more secure” and “much more closely attached” to the mother who was their “primary carer”.
The issues before him were encapsulated by the learned Federal Magistrate as “family violence, the very fraught relationship between the parents, the anxieties, and the protection, of the children”.
His Honour observed that there was insufficient evidence to render “traversing” the balance of section 60CC(3) to which he had not already referred by reason of the insufficiency of evidence before him.
Having concluded that the parties should not retain joint parental responsibility, the learned Federal Magistrate recorded, accurately there can be no doubt, that section 65DAA of the Act had no application. His Honour then referred to the suggestion made by him to Ms W during her cross-examination that “periods of three hours on approximately three occasions per week would be a good starting point for the time the children are to spend with their Father” such period being increased by an extra hour on each occasion after a few months.
Having noted that the father’s past level of reliability in relation to spending time with the children was contentious, and recording that the mother’s allegation that, until a very short time before the trial commenced, there was no indication of whether the father was going to return from overseas was “unrefuted”, the learned Federal Magistrate said:
34.Children (and those caring for them) need regularity, reliability and consistency in their lives. In the first instance, such matters must come from the parents in the ordering of their lives and in arrangements which they make for the care and welfare of their children.
Under the heading “Conclusion” his Honour said:
36.The evidence in this case is scant. The best evidence before the Court comes from the two experienced Family Consultants. Their concerns relate overwhelmingly about the conflict between the parents, the lack of parental insight, and the reliability, of Mr [Mauldon], and the genuine and consistently held (and expressed) anxieties of the children. The Family Consultants’ recommendations must carry the day as to what orders are in the children’s best interests.

Grounds of Appeal

In his Notice of Appeal, the father articulated eleven grounds. In his brief outline of submissions, the father made a series of submissions, none of which referred specifically to his Grounds of Appeal. As is apparent from reading them, many of the submissions are in the nature of submissions which may have been appropriate to make at trial, but which are not in the nature of appellate submissions.
In oral submissions, Counsel for the father made a series of submissions with respect to the “weight” which the learned Federal Magistrate was asserted to have erroneously afforded certain evidence or failed to afford other evidence. Those particular submissions will be dealt with, as will what effectively became an additional ground during the course of the hearing of the appeal.

Relevant Legal Principles

There is a presumption at law that a trial judge’s decision is correct, and the onus rests on the appellant to show otherwise (see Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 per Kitto J at 627 – 628; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 per Windeyer J at 206 – 208).
In House v The King (1936) 55 CLR 499 the High Court said at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the Judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 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.
Kirby J in CDJ v VAJ (1998) 197 CLR 172 explained the basis of appellate intervention at 230-231; 85,465 (at pars 186(1) and 186(2)) in the following terms:
Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.’
The principles which govern challenges to the weight afforded relevant matters are well settled, and do not require extensive restating in this appeal. In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. 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.

The law in relation to challenges to the exercise of discretion in reliance upon asserted errors of fact is not in doubt. In De Winter v De Winter (1979) FLC 90-605 Gibbs J said at 78,092:
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p.137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth (1953) 94 C.L.R. 621, at p.627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.… The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
In CDJ v VAJ (1998) 197 CLR 172 McHugh, Gummow and Callinan JJ discussed the scope of s 93A (2) of the Act, which relates to the admission of further evidence on appeal, at 109:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

Ground 1

Ground 1 of the father’s Notice of Appeal provided:
1. His Honor [sic] erred in his application of Part VII of the Family law Act 1975 (Cth)
Nothing to which the Court has been referred, either in the written outline of submissions or oral submissions at the hearing of the appeal advances this challenge.

Ground 2

Ground 2 provided:
2.His Honour fail [sic] to give appropriate weight to the claimed wishes of the children in the face of two opposing opinions of the two family consultants during cross examination.
The Court was not specifically referred to the asserted “opposing opinions” of Ms L and Ms W, the family consultants who prepared the two Family Reports which were in evidence before the learned Federal Magistrate.
The reports themselves were not inconsistent in any material respect to which the Court has been referred or discovered for itself. Nor has the Court been referred to anything in cross-examination of either of the Family Consultants which advances this challenge.
Not surprisingly, given that Ms W’s report was prepared shortly before the trial, some seven months later than the report of Ms L, the learned Federal Magistrate regarded the evidence of Ms W as having “particular importance”.
There was, as his Honour’s Reasons for Judgment revealed, a consistency in the reporting of the children’s wishes by both Ms L and Ms W. Ms L recorded that M was “uncomfortable spending time with his father overnight” whilst T reported that he did not “like sleeping overnight” at the father’s home. L did not specifically articulate wishes.
Seven months later, Ms W reported that L did not wish to see her father at “overnight times”. T, although generally expressing equivocal views of time spent with his father, clearly did not express a wish to spend time with the father overnight. M was reported by Ms W as being “adamant that he would not want to spend overnight time with his father” albeit he declined to provide reasons for so doing.
In the absence of the Court having been referred to specific passages in the cross-examination of either Ms L or Ms W in support of this challenge, it is unnecessary to refer in detail to the cross-examination of either of the family consultants. The cross-examination of each family consultant however reinforces the central themes of the reports of each of them, and clearly reveals the nexus between the children’s wishes with respect to spending time with their father overnight, and their perception of the level of hostility existing between their parents.
Nothing to which the Court has been referred establishes this challenge.

Ground 3

Ground 3 provided:
3.His Honor [sic] was bias in that he refused to accept report written after 55 hours and prefer a conflicting one hour report of family consultant who told the court during cross examination that the children could change their mind when a different circumstance is presented. The children were brought for the one hour report by the respondent mother who do not wish to see the children with the appellant.
In Annexure “K” to the father’s affidavit of evidence in chief before the learned Federal Magistrate was a page from a report prepared by Ms B of the Families Together Program.
The six-page document from which that page was extracted was included in the father’s Appeal Book.
To the extent that the totality of the report was not before the learned Federal Magistrate, having regard to the transcript, that was because no attempt was made by the father to tender the report before the learned Federal Magistrate.
Dealing first with a page of the report which was before his Honour, nothing emerging from that document, which it transpires was prepared on 31 May 2007, demonstrates appealable error by the learned Federal Magistrate.
Turning then to consider the entire document, it is apparent from the written and oral submissions on behalf of the father that his contention before this Court is that the 55 hours of “direct contact” which Ms B there referred to entitled her opinions to greater weight than those of the Family Consultants.
Putting the matter within the context of an application for leave to adduce further evidence, as would clearly be the only way that the evidence could come before this Court, pursuant to section 93A of the Act, as that has been considered by the High Court in CDJ v VAJ (supra), the Court is not satisfied that, if accepted, Ms B’s report would render erroneous the decision of the learned Federal Magistrate.
Why that is so is largely understandable having regard to the contents of the report. As at the date of the trial, Ms B’s report was some two and half years out of date.
The learned Federal Magistrate had not only the benefit of more recent reports than that of Ms B, but further evidence of facts relevant to the welfare of the children. Even if, had it been before him, the learned Federal Magistrate should have accepted the recommendations of Ms B, as at May 2007, so doing would have posed no impediment to accepting the later contrary expert opinion evidence of Ms L and Ms W.
As for the complaint about the children changing their minds, the learned Federal Magistrate referred, accurately, to the “genuinely and consistently held (and expressed) anxieties of the children”. Moreover, this challenge ignores the subtleties of the children’s wishes. As the learned Federal Magistrate’s Reasons for Judgment carefully articulated, and the Family Consultants’ Reports established, there was a nexus between the children’s wishes and the “fragile” relationship between their parents.
The learned Federal Magistrate, both in his Reasons for Judgment and the orders he made, left open for the future the prospect of overnight contact should the relationship between the parents be ameliorated, and, no doubt in response, the wishes of the children change.
The challenge to the adequacy of the expert opinion evidence by reason of the duration of the interviews conducted by Ms L and Ms W was not sought to be supported by reference to any evidence before the learned Federal Magistrate giving rise to any basis for discounting the expertise of either family consultant, or the integrity of the reports each of them had prepared.
The learned Federal Magistrate described Ms L and Ms W as “experienced family consultants”. Nothing to which this Court has been referred suggests that regarding either Ms L or Ms W as experts was other than entirely appropriate.
As the learned Federal Magistrate noted, notwithstanding that the father challenged Ms W’s conclusions, he elected not to participate in the interviews which gave rise to her report.
This challenge lacks substance.

Ground 4

Ground 4 asserted:
4.His Honor [sic] was bias in that he fail to consider the report about the respondent violence on the children and the appellant in making his orders.
This ground appears to relate to the learned Federal Magistrate’s asserted failure to have regard to the complaint made by the father to the Australian Federal Police on 28 April 2007. The AFP’s report of that complaint is evidence of an allegation made by the father two and a half years earlier. Nothing to which this Court has been referred establishes that such evidence was relevant, or capable of being relevant to the learned Federal Magistrate’s decision.
Not insignificantly, at trial, when he was legally represented, the husband did not have his Counsel confront the mother with the allegations which he had made to the AFP two and a half years earlier.
Far from demonstrating “bias” in failing to refer to the report, so far as it relates to violence by the mother to the father, His Honour may well have been in error had he made the findings asserted by the father. Beyond recording the making of the allegations and the absence of any attempt to traverse them in cross-examination of the mother, his Honour could not have taken the allegations further. Not referring to a matter which does not warrant doing so does not constitute error.
So far as the asserted violence by the mother towards the children was concerned, again it is of significance that Counsel for the father did not cross-examine the mother at trial. Nothing emerging from the evidence of Ms L or Ms W in 2009 provided any basis for the learned Federal Magistrate concluding that the mother had been violent towards the children at any time, or that she was likely to be in the future.
The M Report, upon which the father sought to place significant reliance did not provide any evidence, save by way of unsubstantiated complaint by the father, with respect to any risk of violence towards the children.
The closest Ms B’s report came in that regard was when she said the following:
[Ms Cook] clearly loves and is very proud of her sons, but says they have been very demanding of her time and energy since birth. When we have discussed discipline, she has told me that she finds smacking the boys to be an effective way of shocking them into recognising when they are doing the wrong thing. When I discussed the importance of reducing physical punishment now that the boys are older, she seemed unsure of what else would work.
Further, Ms B said:
[L] has been with [Ms Cook] most times I have visited [Ms Cook], with the only exceptions being twice when she was in child-care. [Ms Cook] has told me that she prefers to care for her in their home, but she has used childcare occasionally to attend a parenting course or provide [L] with some respite from family conflict. From my personal experience, [L], is quite a serious little girl, but naturally chatty and lively when the mood in her home is light. I have noticed that she becomes very quiet when he mother is agitated, and tends to sit or stand very still without moving. On the occasions that I have witnessed [Ms Cook] disciplining her, I have noticed that [Ms Cook’s] response can be either gentle and affirming or intense and brittle [sic]. In [L’s] case, as in her brother’s, it seems there is very little space for her to express non-compliance or distress.
The recommendations made by Ms B at that time were at best equivocal. During oral submissions, Counsel for the father sought to rely upon a report from the Department of Disability Housing Community Services Children and Youth (DHCS). In particular Counsel relied upon reports recorded by the DHCS dating from February 2006 to March 2008.
It is unclear who made the reports in many instances, although it seems from the terms of the reports that a number of them which were critical of the mother may have been made by the father, and vice versa.
Not insignificantly, the DHCS either did not “recommend for appraisal” a number of the concerns or found them “unsubstantiated”. Significantly, the DHCS recorded subsequent to 5 March 2008 that the DHCS was not “currently providing intervention or support” to either of the parties or their children. Also, significantly, the report referred to a continuing “acrimonious relationship” an inability to make “equitable contact or arrangements” with respect to the children”.
Also importantly, the report concluded with the “assessments”:
All the time CPS ceased involvement in June 2007, it was noted that [Ms Cook] was seeing a Psychologist to address her emotional issues. It was also noted that Mental Health Crisis Service previously assessed [Ms Cook’s] mental health state and concluded she was in control and merely reacting to stress or emotional and physical abuse from Mr [Mauldon] when she threatened to harm herself. It was noted that at no time was she at risk of suicide.
Nothing to which the learned Federal Magistrate ought to have had regard in that report establishes that the mother had ever assaulted any of the children or that domestic violence towards them from her was a risk in relation to their future wellbeing.
This challenge lacks substance.

Ground 5

Ground 5 provided:
5.His Honor [sic] erred in aplication [sic] Goode & Goode [2006] FamCA 1346.
In what way the learned Federal Magistrate thus erred was not articulated, either in the written submissions provided on his behalf or in any oral submission made by the father’s Counsel at the hearing of the appeal.
Beyond accepting, and adopting the submission of Counsel for the mother in relation to this challenge, as articulated in paragraphs 10, 11 and 12 of his submissions, no more needs to be said about this challenge.
In his submissions, Counsel for the mother asserted:
10. His honour referred specifically to the legislative pathway set out in Goode at pr 8 of the judgement. His adherence to the proper decision making process is reinforced by the fact that at pr 10 – 13 he deals with the allocation of parental responsibility. He regards, as he was entitled to, the volatility of relationship, the concerns of the children and the children’s concerns as to the parental conflict and the toll that took on the Respondent as matters which legitimately meant that shared parental responsibility was not in the best interests of the children.
11. His honour then proceeded to work systematically through the relevant s60CC factors. He correctly noted at that his determination of the parental responsibility that presumption in respect of substantial time had not application.
12. His honour made specific reference to the wishes of the children. The primary source for his findings was the evidence of Ms [W]. Pages 2-5 of her report and 92, 93, 96, 97, 100 and 101 contain portions of her oral evidence relating to the wishes of the children. This material was clearly taken into account in the learned Magistrate’s reasoning process, and the assertion contained at ground 2 is not made out.

Ground 6

Ground 6 provided:
6.His honour [sic] erred in application of fact in that he reduced the existing appellant contact with the children without any significant change established by the respondent.
This complaint is devoid of merit. There were numerous findings of fact made by the learned Federal Magistrate in his Reasons for Judgment which demonstrated significant changes. Those related to the absence of contact pursuant to the August 2008 orders for a significant period of time, the father’s absences overseas, the continuing problematic relationship between the parents, and the consistent expression of wishes by the children which were not supportive of a continuation of overnight contact. These findings provided an ample basis in fact for deciding that reduced time was in the children’s best interests.
No challenge to any finding of fact made by the learned Federal Magistrate with respect to any of these matters has been successfully asserted in this Court.
This challenge fails.

Ground 7

Ground 7 provided:
7. His honor [sic] failed to consider the appellant written submission.
In what way the learned Federal Magistrate erred in this regard has not been suggested. In the absence of any suggestion that the learned Federal Magistrate failed to have regard to any relevant fact or circumstance referred to in such submission, this challenge must fail.

Ground 8

Ground 8 provided:
8.His Honor [sic] erred in failing to apply substantial time requirement in the best interest of the children and did not consider the mental health condition of the respondent in making the orders.
The logic underpinning this challenge is fatally flawed.
There was no admissible evidence before the learned Federal Magistrate which obliged him to consider any “mental condition” of the mother. Other than the unestablished assertions of the father, there was simply no evidence which obliged the learned Federal Magistrate to be on inquiry, much less to make adverse findings with respect to the mother’s “mental health”.
On the contrary, the evidence which was before his Honour or may have been, to which reference has been made, by what it actually said, or perhaps more significantly did not say, entitled his Honour to be satisfied that no aspect of the mental health of the mother militated against making any of the orders which his Honour made.
This ground has no substance.

Ground 9

Ground 9 provided:
9.His honor [sic] in failing to accept the report of J about children overnight stay with non resident parent after he had already said that he will allow further written submission denied the appellant natural justice.
The logic underpinning this challenge is flawed.
No “report of [C]”, presumably a reference to Professor C, was sought to be tendered before the learned Federal Magistrate during the trial. The transcript of the trial reveals that objection was taken to the tender of an abstract of an article by Professor C.
The learned Federal Magistrate quite properly asked “you don’t have the full article?”. After some prevarication, Counsel for the father appeared to concede that he did not have the full article, but rather an abstract.
His Honour then sagely observed:
It is a bit like Counsel relying on the head note of a case as opposed to the report itself. If you are able to provide the full article, then obviously we can all look at it, because as I recall what you read form the abstract it was, in a sense, prefaced by Professor [C] saying “it may,” so that it was somewhat conditional, was it not?
The learned Federal Magistrate reiterated that “it would be helpful if you were going to rely upon it [Professor C’s article] in any way to have the full article”.
Notwithstanding the discussion which had taken place, Counsel for the husband then sought to read from the abstract. The learned Federal Magistrate carefully explained to Counsel for the father the evidentiary principles governing the tender of Professor C’s article. Nothing to which this Court has been referred establishes that there was subsequently any attempt to tender the full text of Professor C’s article into evidence before the learned Federal Magistrate.
Notwithstanding the course of discussion before the learned Federal Magistrate, and the asserted significance of Professor C’s article, there has been no application in the appeal to this Court for leave to adduce the article as further evidence in the appeal.
These observations are sufficient to deal with this challenge. It might be noted that the Court has not been referred to any cross examination of Ms L or Ms W in purported reliance upon anything said by Professor C which caste doubt upon the expert opinion evidence of either of them.

In the absence of cross-examination of Ms L and/or Ms W in reliance upon the contents of an article by Professor C which raised doubts as to the expertise or methodology of the expert opinion evidence of Ms L or Ms W, it cannot be concluded that receiving Professor C’s article into evidence would have obliged the learned Federal Magistrate to view the evidence of either or both the Family Consultants differently to the manner in which he did.

Ground 10

Ground 10 provided:
10.His Honor [sic] became bias [sic] after he tried to disqualify my solicitor but failed to find fault that will disqualify him.
In what way the learned Federal Magistrate is suggested to have erred has not been identified by Counsel for the husband. Perusal of the transcript however reveals the only basis upon which the challenge could possibly be based.
At the commencement of the trial, Mr Ezekiel-Hart announced his appearance on behalf of the father.
The learned Federal Magistrate asked Mr Ezekiel-Hart whether he was entitled to practice and appear before him. As the transcript makes clear, his Honour had a reasonable basis for doing so which he stated in the following terms: -
“In your own matter a few weeks ago, I understood you to say that you work now as a soccer coach and so forth. Is that correct?”
To which Mr Ezekiel-Hart replied:
“Yes”.
There followed a discussion about Mr Ezekiel-Hart’s status as a legal practitioner and his Honour observed, not unreasonably in this Court’s view:
“How is it that you did not tell me this [that he was a qualified legal practitioner entitled to practice] when you were appearing in your own matter a few weeks ago?”.
There followed further discussion of no particular significance, and the learned Federal Magistrate permitted Mr Ezekiel-Hart to appear for the father, and the matter proceeded. At no time during the two days of the trial which followed did Mr Ezekiel-Hart ever complain to the learned Federal Magistrate that anything arising from the discussion in relation to Mr Ezekiel-Hart’s entitlement to practice gave rise to any actual or apparent absence of impartiality by his Honour.
Nor has it been sought to be demonstrated that, notwithstanding the absence of any complaint, anything said by the learned Federal Magistrate during the trial or in his Reasons for Judgment revealed any absence of impartiality prior to the conclusion of the trial before him. It is trite to record that adverse findings, inferences or conclusions in Reasons for Judgment delivered after a trial have been conducted are not of themselves evidence of any actual or apparent absence of impartiality during the trial process.

Ground 11

Ground 11 provided:
11.The orders have the potential of creating more conflicts and does not serve the cultural and sporting interest of the children.
To what this ground attempts to refer is unclear and has not been articulated by Counsel during the hearing of the father’s appeal.

Additional ground of appeal

The additional ground of appeal in essence provided that the learned Federal Magistrate had erred in failing to define by reference to days and hours of the week the times which the father was to spend with the children.
The submission in support of this complaint was in essence that, having relied significantly, as the learned Federal Magistrate undoubtedly did, upon the “significant volatility” and “fragile” relationship between the parents as a basis for making an order for sole parental responsibility in favour of the mother, His Honour had erred by making an order that the days and hours when the children were to spend (three, and later four hour periods) with their father, fell to be determined by agreement between the parties.
It was thus submitted that there was an inconsistency in the logic employed by the learned Federal Magistrate. In the alternative, at least inferentially, it was submitted that, having regard to the learned Federal Magistrate’s findings of fact with respect to the relationship between the parents, the order with respect to the time the children would spend with their father was unworkable.
Whilst acknowledging the thrust of the submission on behalf of the father, learned Counsel for the mother referred the Court to the learned Federal Magistrate’s Reasons for Judgment in which it was said:
33.I raise the issue of the regularity, consistency and reliability of Mr [Mauldon’s] time with the children because it was an issue raised in the course of the trial. This is to say that it was claimed, and not refuted, that Mr [Mauldon] could not be counted on the turn up at the agreed times to see the children, leaving aside the also unrefuted observation (or fact) that until a very short time before the trial commenced, there was no indication if Mr [Mauldon] was going to return from [overseas].
Although not specifically referred to by Counsel for the mother, paragraph 34 and 35 of his Honour’s Reasons for Judgment are instructive for present purposes.
His Honour said in those paragraphs:
34. Children (and those caring for them) need regularity, reliability and consistency in their lives. In the first instance, such matters must come from the parents in the ordering of their lives and in arrangements which they make for the care and welfare of their children.
35.For the sake of completeness, arrangements should also be made in relation to changeover so that the possibility and the frequency of interaction between the parents, at this stage, should be kept to a minimum. If at all possible, changeovers should be arranged at a neutral venue whether it be at school or otherwise.
The transcript of the conclusion of the trial is also instructive for present purposes. Having delivered his Reasons for Judgment, expeditiously upon completion of the trial, and indicated the orders which he proposed making, the learned Federal Magistrate invited Counsel for the husband to make further submissions.
Whilst Counsel for the husband responded to his Honour’s invitation, nothing was suggested then in relation to further definition of the orders for time to be spent with their father.
The Court is not persuaded in the circumstances that the learned Federal Magistrate erred in failing to further define the orders which he made.
In circumstances where the learned Federal Magistrate extended the opportunity to make further submissions, which could clearly have encompassed submissions with respect to further definition of the time the children were to spend with their father, and none was made, and the matter could in any event in this Court’s view be covered by the Slip Rule, the Court is not persuaded that appealable error has been established.

Conclusion

No ground of appeal having been established the father’s appeal will be dismissed.

Costs

Counsel for the mother was instructed to seek an order for costs on the basis that the mother had the benefit of Legal Aid.
Beyond so indicating, and conceding that any order made against the father would probably not be met, no submissions were made in support of the mother’s costs application.
Not without some misgivings, given the absence of merit in the father’s appeal, and reality that a number of his challenges could not have succeeded and were in some instances even disingenuous, the Court will not make an order for costs.

I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate:

Date: 12 March 2010