Miller and Miller
[2014] FamCAFC 114
•30 June 2014
FAMILY COURT OF AUSTRALIA
| MILLER & MILLER | [2014] FamCAFC 114 |
| FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against interim parenting orders that the child spend week about time with the mother and the father. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Goode & Goode (2006) FLC 93-286 Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 Ramsay v Watson (1961) 108 CLR 642 |
| APPELLANT: | Mrs Miller |
| RESPONDENT: | Mr Miller |
| FILE NUMBER: | BRC | 12122 | of | 2007 |
| APPEAL NUMBER: | NA | 13 | of | 2014 |
| DATE DELIVERED: | 30 June 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Murphy & Kent JJ |
| HEARING DATE: | 30 May 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 February 2014 |
| LOWER COURT MNC: | [2014] FCCA 427 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bunning |
| SOLICITOR FOR THE APPELLANT: | Browns Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kirk QC |
| SOLICITOR FOR THE RESPONDENT: | Keating Lehn Solicitors |
Orders
It is ordered
That the appeal be dismissed.
That the appellant mother’s Application in an Appeal to adduce further evidence be dismissed.
That the appellant mother pay the costs of the respondent father of and incidental to the appeal and of the Application in an Appeal to adduce further evidence such costs to be agreed or failing agreement to be assessed on a party and party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Miller & Miller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 13 of 2014
File Number: BRC 12122 of 2007
| Mrs Miller |
Appellant
And
| Mr Miller |
Respondent
SHORT REASONS FOR DECISION
In dismissing this appeal we are of the opinion that the appeal does not raise any question of general principle. We therefore give reasons for our decision in short form (s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”).
Context of the appeal
Mrs Miller (“the mother”) appeals against some of the interim parenting orders made by Federal Circuit Court Judge Purdon-Sully on 14 February 2014 (as amended on 20 May 2014) in relation to the parties’ child S (“the child”) born in 2006, following an interim hearing on 10 February 2014 (“the interim orders”). Mr Miller (“the father”) resists the appeal and seeks his costs of so doing.
The interim orders provided that final parenting orders made by consent on 15 November 2007 (“the 2007 orders”) be discharged, save for order 1 which provided for the parties to have equal shared parental responsibility. The interim orders increased the time the child spent with the father from the then operative regime under the 2007 orders of four nights per fortnight during the school term, to seven nights per fortnight during school terms.
The interim orders also provided, relevantly, for the child to live with each of the parties on a week about basis during the school term and for half of each school holiday period. The orders also required the parties to arrange for the child to attend upon a child psychologist; the parties to participate in periodic family dispute resolution up to four times a year; and that undertakings provided by the mother and her partner, Mr T, in orders dated 6 December 2013 continue. Those undertakings included that the mother not leave the child in the care of Mr T; that Mr T not drink any alcohol; that Mr T not expose the child to any domestic violence; and that Mr T comply with all recommendations of his treating general practitioner and psychiatrist.
By her Notice of Appeal filed 10 March 2014, the mother initially sought that several of the interim orders (1, 3, 4, 5, 6, 7, 11, 14, 16 and 19) be set aside and that the father pay the mother’s costs of and incidental to these proceedings.
However, in her summary of argument filed 24 April 2014 the mother sought, in addition to setting aside the orders referred to, an order “that the matter be remitted to a Federal Circuit Court Judge other than Judge Purdon-Sully for listing for trial”; and an order that both the mother and father be granted cost certificates pursuant to sections 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) “in relation to the appeal”.
On 20 May 2014 Judge Purdon-Sully issued an amended order to include the notation, “That Orders 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 18, 20 and 21 were made by the consent of the parties.” Thus, in appealing orders 4, 5, 6, 7, 11 and 14, the mother was appealing orders which were made by consent. The mother’s appeal against those orders was abandoned in the course of argument of the appeal.
By Application in an Appeal filed on 16 May 2014 the mother also sought leave to adduce further evidence in the appeal being the evidence contained in the affidavit of Dr C, psychiatrist filed 16 May 2014. That application was opposed by the father and he seeks his costs of that application.
The substantive proceedings are listed for final hearing in the Federal Circuit Court for two days commencing in October 2014. That raises a fundamental question as to the utility of this appeal.
What was the relevant context of the interim hearing?
The parties commenced cohabitation in 2004, married in 2006 and separated in 2007.
The child born in 2006 was thus seven months old when the parties finally separated and was seven years old as at the date of the interim hearing.
On 15 November 2007, when the child was about 11 months old, the parties, with the assistance of their respective lawyers, reached agreement on the 2007 orders.
In summary, the 2007 orders relevantly provided for the parents to have equal shared parental responsibility; for the child to live with the mother and spend four nights per fortnight with the father, from 3.00 pm Thursday to 9.00 am Monday; and gradually increasing holiday time culminating in the child spending half of each school holiday period with each parent upon her commencing school. The child commenced year one of primary school in 2013.
The mother has been re-partnered with Mr T since late 2007 and commenced living with him from or by mid-2008. Mr T has a daughter, B, aged 16 years who primarily lives with her mother but spends regular weekends and holidays with Mr T. The mother has a daughter from a previous relationship, L, aged 15 years who was living primarily with the mother and visiting her own father.
On 6 March 2013 the mother, by email, informed the father that the child was struggling with her first year of school and was acting out with biting another student; not fitting in and returning home from school each day “stressed and disillusioned”. There was thereafter an email exchange culminating in an unfortunate email forwarded by Mr T to the father and copied to the mother on 23 March 2013 which ended cooperative efforts to resolve the issue.
On the evening of 2 April 2013 events occurred in the mother’s household which ultimately assumed prominence in the family report of Mr S and in the interim hearing. In summary, that incident involved family violence perpetrated by Mr T; with police becoming involved and escorting Mr T to the watch house and the bringing of an application by the police under State domestic violence legislation. Mr T was required to remain away from the mother’s home for a period, which is unclear, but as at the hearing of the domestic violence application both the mother and Mr T were opposed to the making of an order and upon certain undertakings the application was not pursued.
Interim orders sought by each party
Efforts by the father to have the mother participate in family dispute resolution did not meet with success and on 27 September 2013 the father initiated parenting proceedings in the Federal Circuit Court seeking, inter alia, final orders that the primary orders be varied such that the child live with the parties on a week about basis and interim orders including that a family report be prepared.
On 26 November 2013 the father, having by then learned of the content of subpoenaed material from police in relation to the 2 April 2013 events, filed an amended initiating application seeking interim orders, inter alia, reducing the child’s time with the mother for the forthcoming school holiday period.
The mother’s initial response filed on 2 December 2013 sought that the father’s application be dismissed and the mother sought an order that her application to dismiss “on the basis of no change in circumstances” be determined as a “threshold preliminary discrete issue” at the hearing listed for 6 December 2013. The mother also sought that the father’s application for a family report be dismissed.
In the event, on 6 December 2013 the trial judge ordered that a family report be prepared and the undertakings earlier referred to were provided with the proceedings to proceed to an interim hearing when the family report was available. That order is not the subject of this appeal.
Following the release of the family report the father sought, in his further amended application filed on 6 February 2014, that the primary orders be discharged, save for order 1 which provided for the parties to have equal shared parental responsibility; that the child live with the parties on a week about basis; and that there be a continuation of the undertakings given by the mother and Mr T as reflected in the orders of 6 December 2013.
Pursuant to her amended response filed on 20 January 2014, the mother sought, inter alia, orders for sole parental responsibility and a reduction in the father’s time with the child to 3.00 pm Friday to 5.00 pm Sunday each alternate weekend. However, at the outset of the interim hearing the mother changed her position and sought a continuation of the father’s time with the child pursuant to the 2007 orders, that is, that the child spend time with the father four days a fortnight, with the proceedings to be listed for a final trial.
Taken from the trial judge’s reasons for judgment, a central issue in the interim hearing concerned allegations of domestic violence in the mother’s home between her and Mr T. In particular, the incident on 2 April 2013 which resulted in the mother sustaining injuries and police attendance at the mother’s residence. According to subpoenaed police material, the child was “in the view/hearing range of the incident” during which time a shower screen door had been broken.
It was undisputed at the interim hearing that the child had engaged in antisocial behaviours particularly between March 2013 and October 2013. Those behaviours included aggression toward her peers at school and stealing from supermarkets.
In the result the trial judge made the orders outlined above against which the mother appeals.
The mother subsequently sought a stay of the interim orders pending her appeal. That application was dismissed by her Honour on 29 April 2014 following a hearing on 12 March 2014. The mother has not appealed that order.
Grounds of appeal
The grounds of appeal in the Notice of Appeal (with the amendment to ground 1 made with leave during argument of the appeal) are as follows:
1.That the court placed significant weight on the recommendations of Mr [S], such evidence forming only part of the evidence before her and therefore erred in law.
2. Whilst identifying that she was unable to determine disputes of fact on an interim basis the learned Judge then proceeded to make findings of fact and therefore erred in law.
3.The learned Judge made findings of credit in circumstances where she was unable to determine disputes of fact on an interim basis and therefore erred in law.
4.Whilst the learned Judge correctly referred to the legal principles contained in Goode and Goode [2006] FamCA 1346 she incorrectly also had regard to the legal principles contained in Heath v Hemming (No 2) [2011] FamCA 689 and therefore erred in law.
5.The learned Judge erred in dismissing the Appellant’s Application that the proceedings be listed for Trial, gave insufficient reasons in that regard and therefore erred in law.
6.The learned Judge placed insufficient weight upon the evidence of Doctor [C] Psychiatrist, that the Appellant’s de facto partner [Mr T] poses no ongoing threat or danger to the child […] and therefore erred in fact.
7.The learned Judge made findings of fact in relation to the evidence of Dr [C] and therefore erred in both law and fact.
8.The learned Judge erred in making Interim Orders providing for a significant change in the parenting arrangements in respect of the child, basing such Orders upon untested evidence and therefore erred in law and fact.
9.The learned Judge incorrectly applied the principles of Section 60B of the Act and therefore erred in law.
10.The learned Judge erred in determining that [the child’s] primary attachment was not with the Appellant, gave insufficient weight to the submissions in that regard and further failed to consider the evidence in relation to that issue and therefore erred in fact and in law pursuant to Section 60CC (3) (b).
11.The learned Judge failed to consider the effect on [the child] pursuant to Section 60CC (3) (d) of the Orders she proposed gave insufficient weight to the submissions in that regard and therefore erred in law.
12.The learned Judge erred in making findings of fact about the incident of 2 April 2013 and therefore erred in law and fact.
13.The learned Judge gave insufficient weight to the submissions in that regard and therefore erred in law.
14.The learned Judge erred in not considering the evidence of the Appellant of the communication difficulties between the parties and how the parties would be able in those circumstances to implement an equal time arrangement and therefore erred in both fact and law.
15.After identifying as she did the issues in dispute (at paragraph 41 of the Reasons) the learned Judge erred in law and fact making Orders 4, 5, 6 and 7 of the Orders consistent with the Respondent’s Application in circumstances where:
a.She did not have evidence to do so,
b.Did not hear from the parties as to the Orders to be made, having already identified the issues on which she was asked to decide at paragraph 41 of the Reasons.
16.The Reasons are otherwise insufficient to support the Orders made.
In the hearing of the appeal, grounds 8 and 16 were abandoned as was the challenge to the orders made by consent earlier referred to, thus ground 15 also was not pursued.
Contentions on appeal
A challenge pervading, and duplicated in, several of the grounds of appeal (grounds 2, 3, 8, 12 and 13) was that the trial judge made concluded findings on disputed issues of fact in the context of an interim hearing where evidence was not tested by cross-examination.
In argument of the appeal that challenge crystalized into a contention that the trial judge made findings of fact as to the events in the mother’s household on 2 April 2013 based upon what was recorded in police records, subpoenaed for the hearing.
However, in argument it was confirmed by Counsel for the mother that there was no evidence below challenging the accuracy of the information the Queensland Police Service recorded in their records as to what police were told by each of the mother; Mr T; the child and each of B and L respectively.
Moreover, Counsel for the mother acknowledged that there was no evidence below from either the mother or Mr T attempting to explain or reconcile what they respectively imparted to the police (which were inconsistent, one with the other) with their affidavit evidence.
Thus the challenge as crystalized evaporated. That is, Counsel for the mother acknowledged that the contention that the trial judge erroneously made concluded findings of fact in dispute was not sustainable as the facts recorded by the police were not put in issue below.
Counsel for the mother abandoned the argument that the trial judge’s findings, to the extent she made findings, concerning the 2 April 2013 incident and the evidence of the mother and Mr T in respect of that incident, founded any basis for contending that the trial judge impermissibly made findings of fact.
Afforded the opportunity to so do, Counsel for the mother did not pursue any other aspect of the trial judge’s reasons to substantiate in any way that the trial judge impermissibly made findings of fact on disputed issues.
There is therefore no merit in any of the grounds of appeal agitating that contention.
Evidence of Dr C
It was contended (by Grounds 6 and 7) that the trial judge erred in failing to place sufficient weight upon the evidence of Dr C, the treating psychiatrist of Mr T and erred in dealing with that evidence. In particular, the conclusion of Dr C that Mr T “has never been a threat to the safety of anyone and he is not, in my professional opinion, posing any ongoing threat in any way to the safety of any adult or child” was asserted to have been given insufficient weight by the trial judge; and was contended as precluding the trial judge’s conclusions on that issue.
As is recorded in the report of Dr C his opinions are premised, wrongly, on the assumption that Mr T did not perpetrate “a violent incident on 2 April 2013 or on any other date.” Even leaving aside the police information, the affidavit of each of the mother and Mr T confirm that the latter did perpetrate “a violent incident” on 2 April 2013 when he pushed the mother with sufficient force for her to fall to the ground injuring her elbow and knee in the process.
As was observed by the High Court in Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 at [9], citing Ramsay v Watson (1961) 108 CLR 642:
It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence.
It was thus not only open to the trial judge not to accept the conclusions and opinions of Dr C but it would have been an error for the trial judge to have done otherwise.
We are comfortably satisfied that the trial judge carefully considered all of the evidence, including the observations of Mr S concerning his interviews of the mother and Mr T as recorded in his report on this aspect, in reaching the conclusions which her Honour did with respect to the issue the subject of the report of Dr C.
The mother’s application for leave to adduce further evidence in the appeal is directed to a further affidavit of Dr C filed 16 May 2014. Nothing in the report attached to that affidavit (which repeats by inference the flawed premise referred to); nor any submission made in support of the application; persuades us of any basis consistent with CDJ v VAJ (1998) 197 CLR 172 as would justify the grant of that leave, and it is refused.
As we observed during argument, the issue for the trial judge was not simply whether Mr T posed a risk to the safety of the child directly, but whether, by reference to s 60CC(2)(b) there was a need to protect the child from harm from being subjected to, or exposed to, abuse, neglect or family violence. The police material contains statements of the child as to her being fearful for her own safety and that of her mother. Further, the trial judge had to make findings as to the application of the presumption in s 61DA of the Act.
We are satisfied that this is precisely what the trial judge did and that her findings in these respects were supported by the evidence (including the expert evidence of Mr S) and that her Honour’s careful approach to this aspect is exposed by her reasons.
Evidence of Mr S
The mother’s challenges to the effect that the trial judge placed too much weight on the opinions of Mr S do not withstand scrutiny. At paragraphs [50] and [51] of the Reasons her Honour recognised the place of Mr S’s evidence, then yet to be tested, to be weighed with other evidence. No identifiable error attended her Honour’s balancing of the evidence, including that of Mr S.
The further related challenge that her Honour’s Reasons at [108] somehow reflect a misapprehension about Mr S’s opinions was not sustainable on that part of his opinion said to demonstrate that challenge to which our attention was directed. Her Honour’s analysis of Mr S’s opinion was plainly right. There is no merit in the challenges concerning the trial judge’s approach to Mr S’s evidence.
Asserted errors of law
Grounds 4, 9, 10, 11, 13 and 14 articulate challenges, in various forms, asserting errors of law on the part of the trial judge. In argument these devolved into complaints that the trial judge either failed to give sufficient weight to, or misapplied principles as to, the status quo existing by virtue of the 2007 orders or the impact of changing that regime.
Nothing to which we were directed in either the written or oral submissions on behalf of the mother persuades us of any of the articulated, or any other, errors.
Having outlined in some detail the issues and having identified Goode & Goode (2006) FLC 93-286 as “the leading authority that guides the Court in interim parenting decisions”; the trial judge undertook a careful analysis of the competing considerations within the constraints of an interim hearing. In the course of so doing her Honour noted those areas in which concluded findings could not be made, given the nature of an interim hearing.
Thus it was that at [139] of thorough and detailed Reasons, the trial judge acknowledged the need to be cautious in effecting changes at an interim stage; identified and considered those factors in favour of maintenance of the status quo and those factors supporting change; and in the exercise of her discretion determined that balance, by reference to the child’s best interests, in favour of change. Her Honour’s reasoning to the result is fully articulated in the Reasons and is devoid of error.
There is thus no substance in any of the mother’s complaints.
Conclusion and costs
As there is no merit in the appeal it will be dismissed.
In the event that the appeal was unsuccessful the father sought an order that the mother pay his costs.
Section 117(1) of the Act provides for what is sometimes referred to as the usual “rule” in this Court that each party pay their own costs. That sub-section is subject to, inter alia, sub-section (2) which requires the existence of circumstances that justify the Court in departing from the usual rule.
It is accepted that the discretion conferred by s 117 is a broad one and satisfaction as to justifying circumstances is not to be equated with exceptional circumstances (see, for example, Penfold v Penfold (1980) 144 CLR 311).
This was an appeal from interim parenting orders. As already noted, the final trial is to occur in October 2014. The limited degree of difference between the child spending seven nights per fortnight, as opposed to four nights per fortnight, with the father in the period between the hearing of this appeal and a trial in October 2014 is obvious. This appeal was so lacking in merit as to fit the description of not being reasonably arguable. These factors combine with determinative effect in support of the conclusion that the mother pay the father’s costs and we will so order.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Kent JJ) delivered on 30 June 2014.
Associate:
Date: 30 June 2014
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