Mck & E

[2006] FamCA 1394

[2006] FamCA 1394

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE

Appeal No. SA45 & 56 of 2005
  File No. MLF6006 of 2003

IN THE MATTER OF:

McK

Appellant Father

- and -

E

Respondent Mother

REASONS FOR JUDGMENT

BEFORE:                 Kay, Holden and Warnick JJ
HEARD:                   3rd day of October 2005
JUDGMENT:           23rd day of August 2006

APPEARANCES:            The Appellant Father was self represented.

Ms J Stewart of counsel (instructed by Kordell Lawyers, 32 Main Road, Ballarat, Victoria 3354) appeared on behalf of the Respondent Mother

Ms Dowler of counsel (instructed by Director, Victoria Legal Aid, 350 Queen Street, Melbourne, Victoria 3000) appeared as the Child Representative

Name of Appeal	McK & E
Appeal Number	EA 45 & 56 of 2005
File No.	MLF 6006 of 2003
Coram	KAY, HOLDEN AND WARNICK JJ
Date of Appeal Hearing	3 October 2005
Date of Publication of Judgment	23 August 2006

CATCHWORDS

FAMILY LAW – APPEALS – from decision of Family Court judge against a discretionary order

CHILDREN – Residence

LEGISLATION CITED/CONSIDERED:

Family Law Act 1975 (Cth) – ss 68F(2); 79

CASE LAW CITED:

Re F: Litigants in Person Guidelines (2001) FLC 93-072.

De Winter and De Winter (1979) FLC 90-605
Mallet v Mallet (1984) FLC 91-507; (1984) 156 CLR 605
Norbis v Norbis (1986) FLC 91-712; (1986) 161 CLR 513
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716

Appeal dismissed.

1. This is an appeal against orders made by Young J on 23 June 2005.  The orders appealed from are as follows:

   “1.THAT the mother and father each retain responsibility for the long term care, welfare and development of the children of their relationship, M born 19 April 1996 and A born 8 June 1998.

   2.THAT the children reside with the mother.

   3.THAT the mother have sole responsibility for the day to day care, welfare and development of the children save for periods when they are on contact with their father and when he shall then have such responsibility.

   4.THAT M be immediately returned to reside with her mother and be permitted to bring with her all of her personal possessions and belongings.”

His Honour also made extensive orders with respect to contact and other consequential orders which for present purposes we need not set out.

Background

1. The background facts as found by his Honour are that as at the date of trial the respondent mother was almost 42 years of age, and the appellant father was 40 years of age.  The parties cohabited from mid-1996 until their separation in April 1999.  The respondent mother has another child, J, who was almost 15 years of age and who was a permanent member of the respondent mother’s household.

2. His Honour found that M and A have largely been separated and living with a different parent through much of their lives; M being predominantly cared for by her father and A by her mother.  However, during 2002 and for the first half of 2003, his Honour found M was “more significantly” living with her mother  As at the date of trial, M was living with her father and A with her mother.

The judgment of the trial Judge

1. His Honour commenced by identifying the issue for determination which was the residence of and contact to the two children of the parties’ relationship.  He then observed that the appellant father was representing himself in the proceedings and that accordingly it was necessary for him to consider appropriate guidelines to ensure procedural fairness and for the appellant father to have every opportunity to put all matters, facts and evidence before the Court.  He then set out the guidelines found in Re F: Litigants In Person Guidelines (2001) FLC 93-072 and stated:

   “In the course of the hearing I have explained to the father his rights as to presenting his case, crossexamining the mother and otherwise, when required, as to evidence.  I am satisfied that his issues were before the Court.”

2. His Honour then set out the orders sought by each of the parties noting that at the conclusion of the trial, counsel for the children’s representative submitted that the two children should be reunited to reside together in the home of their mother and have alternate weekend and other contact with their father.  Having set out the evidence relied upon and the history of litigation between the parties, his Honour commented on his observation of the witnesses as follows:

   “23.I have had what I consider to be in this case the very real benefit of observing the mother and father and the father’s mother in giving their evidence on oath and observing them in the courtroom, their demeanour, their behaviour and character and also when they were cross-examined.  That observation of the witnesses, particularly parents and their behaviour, has been of real assistance in formulating appropriate orders and determining what is in the best interests of the children.”

Later, he stressed “that, in this case my court observations of the parties were of very real benefit and importance, more so than perhaps in many cases”.

1. His Honour then made findings as to the historical upbringing of the children and each of the parties’ residences, their financial circumstances and their health.

2. His Honour then turned his attention to, what he referred to as, “a significant aspect of this case”, namely, the children’s schooling.  He accepted that when M lived with her mother, she missed approximately 60 days of schooling in her first year and a half.  He proceeded on the basis that M had established herself in the C Primary School and that there was a school place available in grade 4 for M at P Primary School if she was to return to live with her mother.

3. His Honour then referred to what he described as a “disgraceful and unfortunate incident” that occurred on or about 11 June 2003.  That incident involved physical violence and extremely abusive language exchanged between the parties.  He noted that each of the parties presented a somewhat different picture of the reasons for the incident, but found that he could “properly determine what is now in the best interest[s] of the children without further examination of that incident”.

4. His Honour then described the relationship between the parties as follows:

   “56.Simply put, there is no level of communication between these parents.  They have no respect or trust for one another.  It will be very difficult for children’s orders, be it residence or contact, to work with these personalities and with the environment they have created, certainly to expect there to be any level of discussion on children’s issues, education issues, welfare issues or ongoing contact is a forlorn hope.”

5. His Honour then made findings as to the parents’ involvement at M’s school.  He found that the respondent mother “seemingly has little or no understanding in previous years as to the requirement of children to be at school, to be punctual and to participate with their classmates in school”.  He accepted, however, that in later times the respondent mother has “shown some level of interest and involvement in the activities of the children at school”. 

6. He contrasted that with the appellant father who had not attended any formal parent/teacher meetings and who did not attend the school sports or other school events at the C Primary School when M was living with him.  He found the appellant father had “no understanding of his need, or of M’s needs, for him to be so involved”.

7. He expressed the view that he had “no confidence on an ongoing basis that the father could or would, himself or through his family, be involved in the education or social upbringing of the children”. 

8. His Honour then addressed, what he described as “a very central issue in the case”, being whether the children should be together or should be separated as they have been for a lengthy period.  He observed the appellant father had said the children were close and that they loved each other.  He observed that the appellant father acknowledged that the children should be together.  He found that the appellant father had a limited and somewhat distant relationship with A.

9. His Honour then turned to the report of the Family Court Counsellor, dated 22 November 2004.  He referred to para 28 of that report, which reads as follows:

   “If the court accepts that the best outcome is for the siblings to be placed together with one parent, then the counsellor is of the opinion that the preferred caregiver is the mother.  She has a history of being able to provide full-time care to all three siblings.  This is a tested arrangement, albeit it (sic) one subject to further conflict, but this was assessed to be more a symptom of the conflict rather than as a  result of her direct care abilities.  The alternative, to place the children with the father, is not a proposal that he has seriously considered and appears to be a reaction to the mother’s application rather than a strongly held parental conviction.”

10. He then referred to para 30 of the report, which read as follows:

    “Negative attitudes nurtured by their mother about their father are likely to impact negatively on future contact arrangements.  There is a clearly established pattern of contact difficulties, and an immediate change in residency is unlikely to change the mother’s strongly held beliefs about the father.  She appears to communicate messages that provoke and antagonise the father and was insatiable in her efforts to undermine him.  She is unlikely to emphasise the importance of the girls seeing their father regularly, and the girls now understand that not attending contact visits is an option for them.”

11. His Honour then said:

    “66.I do regard this observation of the counsellor as extremely important.  I am mindful of the toxic relationship between the parties.  They have no care or trust, one for the other.  They clearly have no respect, one for the other.  How these children can be brought up in that environment is a matter of great concern, but the reality is that the children will either both have to live with their mother or their father or otherwise be separated.  I have considered and evaluated all of the evidence in relation to the separation of the siblings, but in particular the evidence of the mother and father that that is not in their best interests.  With that I agree, and in this case I will ensure that the children are reunited with each other.  That means that they will live in the same household and attend the same school.”

12. Because of some of the appellant father’s grounds of appeal, we feel it appropriate that we should include in these reasons the following passage from his Honour’s reasons for judgment:

    “68.The father cross-examined Ms H on the report and what he believed to be the unbalanced or biased aspects of the report. The counsellor acknowledged that the father felt persecuted or victimised by either the system or her report. That is both unfortunate, and as I read the report, inaccurate. It was clearly established that the counsellor did spend a period of one hour and 10 minutes with the father and slightly longer with the mother and that her report was prepared after interviews on the day in B. It was not done in the rushed manner that the father sought to cross-examine the witness upon and portray to the court. Ultimately in my determination that family report is but one factor. It is not a dominant factor. As a report it merely raised a number of issues which I have considered, but ultimately and in the best interests of the children, the orders that I make are in regard to all of the evidence and facts in this case, and in particular my consideration throughout this judgment of the relevant s. 68F(2) factors.”

13. His Honour then turned to an assessment of the significant adults in the children’s lives.  In respect of the father’s mother, he said as follows:

    “70.The evidence of Mrs J McK was both in affidavit and given to the court viva voce.  Her evidence was of critical importance in a number of aspects.  Firstly I am more than satisfied that she is anxious for the day to arrive that the father moves out of her home and into his own home.  It was for that reason that she so generously gifted him a block of land to build a home and that three-year venture is still ongoing.  Of even more importance in her evidence was the fact that she quite freely acknowledged that there had been no recent discussion with her of the father’s request for A to live with him and for her therefore to have the two children living with her in her home.  That evidence certainly highlights the findings of the counsellor that it was somewhat of an afterthought of the father put on the basis that if the children are not to be separated then both children should be with him.  The father’s mother is a quiet, modest lady who does have significant issues in her life and with her care of her schizophrenic son.  She does want to live her own life.  She has a partner some 12 years younger than her with whom she wishes to share her life and certainly from her evidence I did not understand that she was in any way supportive of having two young girls living full-time in her home on an ongoing and permanent basis.  That is a fundamental flaw in the father’s case.  He has no other home.  He does not want and could not apply for a housing commission home.  For two children his domestic circumstances are totally unsuitable.  Somewhat surprisingly to me, her involvement with the C Primary School was non-existent.  She has not been to any of M’s school or social functions or events as I might otherwise have expected of a grandmother in the particular circumstances of this case.”

14. His assessment of the respondent mother was as follows:

    “72.In these reasons for judgment I have been and I remain critical of the mother.  She has made a number of bad choices in relation to the children.  Initially M was delivered up to the father, as I understand her evidence, to show the father how hard it was to bring up a child and also to teach him a lesson.  If that was her motive, it was reprehensible.  That is not how children should be dealt with.  Likewise I have already expressed my concern as to her understanding of education and the need for children to be punctual, to be responsive and to be educated.   I well appreciate she has had her health issues, her obligation to care for her brother and all of the other emotions and conflicts that she has dealt with.  My observing her in court is that she does remain a somewhat agitated and tearful person.  I am sure the past is not wholly behind her and I do emphasise that I have reflected at length upon my concerns for the successful future contact to occur were she to have residence of the two girls.  That is one matter to which I have given the most careful of consideration in the orders that I concluded are proper.  I balance that with the fact that her evidence is that she now understand[s] and will work towards a good contact arrangement.  I hope so.  I do have concerns.  I have balanced all of these matters when determining an order that is in the best interests of the children.”

15. His assessment of the appellant father was as follows:

    “73.Clearly Mr McK is fragile, suffering emotional upset, a level of pain, grief and suffering over the children, his isolation from A and his conflicts as a parent.  His own environment, income and circumstances at the moment are very difficult for him and would be very difficult for the children.  His domestic circumstances of living in his mother’s home part-time and sleeping in a shack by the side of her property is a very depressing and difficult circumstance.  His need to complete his home and move in there is urgent, but that is likely to be a long way off.  He has other issues that are taking his time at the moment such as the repair of his motor vehicle so it can be driven, the repair of the bus and its gearbox problems so it can be driven, his need to have appropriate income, his need to provide for himself and from time to time to find some employment.

    74.I do accept that the father has shown some good guidance to M and her upbringing, even if it be a somewhat hands-off approach in relation to certainly education and perhaps generally other issues.  Nevertheless, when M needed a parent after separation it was the father who accepted the delivery up of M and made the best of it in somewhat difficult circumstances.  I do not expect that the father will ever obtain or hold down any permanent job in the usual sense of daily employment.  He needs to deal with a number of personal and emotional issues and somehow get his life back under control.  He is not having any ongoing psychological counselling or assistance or other medical assistance, but that is a matter that he might reflect upon and reconsider hereafter.  He does urgently need assistance.”

16. As required, his Honour then dealt with the relevant s 68F(2) factors set out in the Family Law Act 1975 (Cth) as follows:

    “75.I now return to the section 68F(2) factors and how the court is to determine what is in the best interests of these two children. In so doing I will incorporate and not repeat all of the detailed facts, evidence and findings that I have made on the contested factual issues. Pursuant to section 68F(2) of the Family Law Act 1975:

    The Court must consider:

    (a)any wishes expressed by the child and any factors that the court thinks are relevant to the weight it should give to the children’s wishes.

    …

    78.Sub-paragraph (b):

    the nature of the relationship of the children with each of the children’s parents and with other persons.

    79.This is a fundamental issue.  I have examined the relationship that both children have with their parents.  I am aware of the importance of J certainly to A but also to M.  If the children are living with their mother, then the three of them, including J, will be under the one roof.  I find that there is a level of importance in that relationship with J and any guidance which he as an elder brother could and should give to his younger sisters.  A has really only known her mother.  She has not been apart from the mother save for contact periods and then it seems on evidence the contact has been irregular and there have been lengthy periods where there is no contact.  A has never lived, as has M, with her father and there would be a significant emotional trauma for A to now be wholly removed from her mother.  I accept that the children will also have relationships with the various other adults who live in their respective homes at the moment, the most important of which would be M’s relationship with her grandmother.  I balance all of those relationships and their nature in the orders that I have made hereafter.

    80.Sub-paragraph (c):

    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from a parent with whom the child has been living.

    81.Again I have carefully evaluated this subsection because of the facts of this case, the domestic circumstances of the children and I understand that I must balance and have balanced the circumstances of M should she leave her father’s home and go to live in the mother’s home and thereafter have contact with the father on somewhat a more structured alternate weekend basis.  A’s separation from her mother would be devastating for her and I find should not occur.

    82.Sub-paragraph (d):

    the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.

    83.In this case, given the Centrelink payments provided to both families, given that they live only 30 kilometres apart and they each have a car and licence to drive.  I have regard to this sub-paragraph but particularly my concern is that the mother must ensure contact does regularly occur.  On balance and given her acknowledgement of her past errors I will trust her that she will be co-operative and she knows that otherwise the father will likely return to court.

    84.Sub-paragraph (e):

    the capacity of each parent, or of other persons, to provide for the needs of the child, including emotional and intellectual needs.

    85.I have largely developed this issue in the preceding reasons.   I have a concern about the capacity of both parents.  I have more of a concern about the ongoing capacity, involvement, interest and wellbeing of the father and that is one of the issues that has played a significant role in the orders hereafter pronounced.  The mother can and will cope with all three children.  The father will likely not cope as well and will not have the willing extended family support that he would need.

    86.Sub-paragraphs (g) and (i) deal with the need to protect a child from psychological harm or from family violence.  The history of this matter is before the court in this regard in the affidavits.  The incident of June 2003 has been referred to, but it does seem to me that of recent times the violence and the level of violence has decreased.  Nevertheless, as Ms S has emphasised, there is a background that cannot be overlooked, although there are also examples of the aggression or violence of the mother to others, including to the father’s mother that I heard about in evidence that was totally unacceptable and which I have balanced in the outcome that I will hereafter order.  I find the children would not be in any physical danger with either parent.

    87.Sub-paragraph (h):

    the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.

    88.Again I have reflected on this very important sub-paragraph.  The parents (sic) attitudes are not in keeping with community or reasonable standards.  From the time of separation there has been reasonable criticism that can be levelled at both the mother and the father in terms of the separation of the children and the upbringing of the children.  On balance I find that the mother would more likely now have a better attitude towards and better implement her role as a parent.

    89.Sub-paragraph (k):

    whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child or children.

    90.Really, this goes to the heart of the matter of how orders can be made and parties can then live their lives with the children in accordance with an independent determination.  The history of this matter shows that the parties have been in and out of court and I am not critical of the father in relation to the contravention application because seven of those matters were proved.  However, one can only hope that these parties will endeavour to look after their own children in their own appropriate way, being mindful of their obligations as parents and without coming back to court.  I find that to place the children with the mother would best comply with this sub-paragraph.”

1. His Honour then concluded:

   “In reflecting upon and evaluating all of the evidence and in applying the requirements of the Family Law Act I conclude that in their best interest, both short and long term M and A should live with their mother and have alternate weekend, holiday and other contact with their father.”

Grounds of Appeal

1. Ascertaining the exact grounds of appeal is problematic.  In an Amended Notice of Appeal the appellant father’s grounds were as follows:

   “1.      The orders were not made in childrens (sic) best interests.

   2.Perjury occured (sic) by other partys (sic).  (The Family Reporter and the mother.)

   3.Constructive fraud and subornation (sic) of perjury occured (sic).

   4.I wasn’t given a right of reply in the family report.

   5.I was kept in check not allowing re-examination.

   6.Child representatives did not act in childrens (sic) interests.

   7.Rules of conflict were ignored by other partys (sic).

   8.Summary of argument wasn’t factual. (histrionic).

   9.Joint case sumary (sic) document didn’t contain all evidence.

   10.There must have been a large credibility (sic) gap that was overlooked.

   11.Paragraph 30 of the family report was ignored making the orders against the civil rights of my children.

   12.It was unlawful litigation. (not to court rules or law).

   13.The proceedings have been emotionaly (sic) damaging to me and my children and have not been justified.

   14.Their (sic) should be a law against this sort of thing.”

2. Both the respondent mother and counsel for the child representative appear, however, to have responded to the grounds of appeal as set out in the appellant father’s Summary of Argument, dated 16 September 2005.

3. Doing the best we can to summarise the grounds contained in the appellant father’s Summary of Argument, they are as follows:

   (1)That his Honour ought to have found that the conflicting relationship between the parties was brought about by false allegations by the respondent mother about the relationship.

   (2)That the appellant father was not given a right of reply to the Report.

   (3)That the Family Reporter was not honest in cross-examination.

   (4)That the child representative would not help the appellant father amend the Family Report.

   (5)That it was an error that certain subpoenaed material was not brought to the attention of the Court.

   (6)That the making of orders that all of the children reside with the respondent mother contradicted the conclusions of the Family Report.

   (7)That his Honour overlooked evidence that the respondent mother’s son, J, bullied the two children.

   (8)That A was emotionally manipulated to not favour the appellant father.

   (9)That M’s wishes were never that she wanted to reside with her respondent mother.

   (10)That his Honour erred in not finding that the respondent mother gave M to the appellant father to teach her a lesson.

   (11)That the respondent mother and her solicitor presented subjective and hearsay evidence which was untrue.

   (12)That the children have been and are manipulated to favour the respondent mother.

   (13)That his Honour erred in finding that the father’s mother wanted him to move out of her home.

   (14)That his Honour ought to have found that the respondent mother would prefer litigation as opposed to communication.

   (15)That the respondent mother denigrates the appellant father to the children.

   (16)That there were certain incorrect findings of fact about residence agreements, the appellant father’s aggression and depression and other findings.

   (17)That the children’s best interests should not come second to counsel’s representations and his allegations of oversight and mistruths.

4. The appellant father subsequently abandoned grounds 12, 13 and 14.

Applicable law

1. This is an appeal against a discretionary judgment.  Section 79 grants to the trial Judge a very wide discretion: see, generally, De Winter and De Winter (1979) FLC 90-605 at 78,092 per Gibbs J; Mallet v Mallet (1984) FLC 91-507 at 79,110; (1984) 156 CLR 605 at 608; Norbis v Norbis (1986) FLC 91-712; (1986) 161 CLR 513. That being so, the limited nature of the appeal process must be recognised, as the numerous authorities in relation to the appellate review of discretionary orders demonstrate: see, for example, House v The King (1936) 55 CLR 499 at 505; Lovell v Lovell (1950) 81 CLR 513 at 519; Gronow v Gronow (1979) FLC 90-716; (1979) 144 CLR 513 and Mallet (supra) at 79,111 and 79,119.

2. In the absence of an error in approach or principle, the failure to take into account relevant circumstances, or the taking into account of irrelevant circumstances, the challenge must be that the orders fell outside a reasonable exercise of discretion, that is, that the orders were “unreasonable or plainly unjust”.

3. In its widest formulation the discretion and its immunity from challenge was described by Brennan J in Norbis v Norbis (supra) at 75,178; CLR 539 - 540.  His Honour said as follows:

   “… Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable.  How does the Full Court arrive at that conclusion?  In Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All E.R. 343 at p. 345 Asquith L.J. stated the rationale of an appellate court’s approach:

   ‘…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order.  We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’

   The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community.  The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.”

Conclusion

1. In this case we do not find it necessary to go through the grounds of appeal (whatever they may be) seriatim.  Many of the so called grounds of appeal are not proper grounds of appeal and others seek to adduce fresh evidence without any application to do so.  We have set out in some considerable detail his Honour’s reasons for judgment.  We are satisfied that on the evidence his determination was open to him.  We are not satisfied that it has been demonstrated that there has been any error of principle, that his Honour overlooked any material matter or took into account any matter that he ought not to have taken into account.  As we have said, we are of the view that the judgment was reasonably open to him upon the evidence and that it was not manifestly unjust.

2. Orders with respect to parenting are always difficult for a Judge to make.  We are satisfied that the trial Judge took into account and carefully evaluated all material matters.  In the result, we are of the view that the appeal ought to be dismissed.
   Costs

3. At the conclusion of the hearing of the appeal we heard submission with respect to costs.  In the event that the appeal was dismissed the wife sought costs in the sum of $5,500 and the Child Representative sought costs in the sum of $2,617.

4. The financial circumstances of the parties are fairly parlous.  Given that it was an appeal against a parenting order which reversed a long standing status quo, we are of the view that there ought to be no order as to costs.

Orders

1.        That the appeal be and is hereby dismissed.

I certify that the preceding 33 paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate