Murdock & Madden
[2011] FamCAFC 219
•23 November 2011
FAMILY COURT OF AUSTRALIA
| MURDOCK & MADDEN | [2011] FamCAFC 219 |
| FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals parenting orders of a Federal Magistrate – Where the proceedings before the Federal Magistrate were “finely balanced” – Where the mother alleges the Federal Magistrate made several errors of fact which “compounded” one upon the other – Whether the Federal Magistrate made the errors of fact alleged – Where the Federal Magistrate did err in some findings – Where such errors were but part of the ultimate findings of the Federal Magistrate and do not warrant appellate intervention – Where the mother alleges the Federal Magistrate erred in his approach to certain evidence, specifically, in the weight attached to certain evidence – Where no demonstrable error – Application of the rule in Jones v Dunkel – Whether the Federal Magistrate erred in the application of the rule – Where no demonstrable error. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| De Winter and De Winter (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513 House v R (1936) 55 CLR 499 In the Marriage of Norbis (1986) 161 CLR 513 Jones v Dunkel (1959) 101 CLR 298 MRR v GR (2010) 240 CLR 461 |
| LexisNexis Butterworths, Cross on Evidence, vol 1 (at Service 129) |
| APPELLANT: | Ms Murdock |
| RESPONDENT: | Mr Madden |
| FILE NUMBER: | ROC | 646 | of | 2009 |
| APPEAL NUMBER: | NA | 9 | of | 2011 |
| DATE DELIVERED: | 23 November 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, Coleman and Murphy JJ |
| HEARING DATE: | 1 November 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 January 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 60 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms J Hogan |
| SOLICITOR FOR THE APPELLANT: | Murdoch Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr R Hamwood |
| SOLICITOR FOR THE RESPONDENT: | O’Shea Dyer Solicitors |
Orders
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Murdock & Madden is approved 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 9 of 2011
File Number: ROC 646 of 2009
| MS MURDOCK |
Appellant
And
| MR MADDEN |
Respondent
REASONS FOR JUDGMENT
This is an appeal by the mother of a child (now aged almost six) against orders made by Coker FM on 21 January 2011, which essentially provided for the child to live with the father in W, but to spend significant periods of time with the mother, who lives in B, and for both parents to have equal shared parental responsibility for major long term issues relating to the child.
In the event that her appeal was successful, the mother sought a rehearing of the parenting proceedings.
The father opposed the appeal and sought to maintain the Federal Magistrate’s orders.
The parties separated after a relationship of some five years in 2008. Their only child, H, was born in February 2006. He was, then, about 2½ years old when the parties separated.
Two mediations in 2009 saw agreements between the parties for H to live with his mother and spend alternate weekends with his father and, later, five nights each fortnight. Half school holidays, time on special days and communication by telephone was also agreed to. About six months later, interim orders were made by Coker FM for H to “live with each parent on a fortnightly rotational basis”. That order was put into effect and was continuing at the time of the trial before Coker FM in December 2010. During the whole of that time and throughout the course of those arrangements, the parties lived some 300 kilometres apart – the mother in B and the father in W. Changeovers occurred in L.
It can be seen that the Federal Magistrate’s trial findings and ultimate orders were, then, made against a background which involved each of H’s parents being involved in his care (to one degree or another) during the post-separation period and, more particularly, for a period of about six months immediately prior to trial. Each of the parents gave evidence of extensive involvement by their respective extended families in H’s life.
The catalyst for the proceedings before his Honour was that H was starting school; the alternative fortnightly regime (or a similar regime) was no longer viable.
The issues in the proceedings before his Honour were also narrowed by competing proposals of the parties which, effectively, mirrored each other. Each party contended that an order should be made for equal shared parental responsibility, that H should live with them, and that the other parent should spend time with H each third weekend and during school holidays.
The Judgment and Grounds of Appeal
The final parenting orders made by Coker FM from which the mother now appeals can be seen to have emanated from proceedings conducted within narrow parameters and in which a number of matters underpinning central findings do not appear to have been the subject of any challenge. Those matters are also not challenged on this appeal.
The Federal Magistrate found “an extreme difficulty arising … from primarily, the fact that both the mother and the father are no doubt, excellent parents” (at [3] of the Reasons). His Honour went on to say at the conclusion of the proceedings, “I have changed my mind three times during this trial as to what should be the outcome. It is incredibly finely balanced …” (transcript p 155, lines 12 – 13). The same expression and similar sentiments are used in his Honour’s Reasons.
As would be expected of a case that meets these descriptions, the analysis of many of the required statutory considerations reveals little to distinguish the parents. For example, as his Honour points out, the benefit of a meaningful relationship between H and each of his parents could hardly be doubted.
Equally, the parties properly conceded, and his Honour properly concluded, that, in light of H soon starting school and each of the parents’ intentions to remain in their current location irrespective of the outcome of the parenting dispute, neither an order for equal time nor an order for “substantial and significant time” as defined in the Family Law Act 1975 (Cth) (“the Act”) was “reasonably practicable”.
That is, the “practical assessment of whether equal time parenting [or substantial and significant time parenting] is feasible” (MRR v GR (2010) 240 CLR 461 at [15]) was to the effect that neither was. Accordingly, despite the fact that each of the parties agreed, and his Honour determined, that an order for equal shared parental responsibility should be made, no question arose at the trial as to whether “the Court has power to make a parenting order of that kind” (s 65DAA, the Act; MRR at [13]).
His Honour’s Reasons can be seen to focus upon a comparison of the willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other parent (s 60CC(3)(c); s 60CC(4), (4A)); the willingness of the respective extended families to do the same and, more broadly, the nature of the relationship between the child and those family members (s 60CC(3)(b)); and the attitude to the responsibilities of parenthood demonstrated by each of the parents (s 60CC(3)(i)). Asserted errors can be seen to pertain, in particular, to those central components of his Honour’s Reasons.
Central to this appeal is the appellant’s contention that his Honour made a number of factual errors. It is said that these factual errors “compounded” one upon the other and, taken together, they result in error in the findings crucial to his Honour’s ultimate orders.
The appellant’s Notice of Appeal relies upon the following grounds:
1. The Federal Magistrate erred as a matter of fact in finding:
a. that the Mother had denied that she had been the subject of physical discipline as a child at the hands of Mr [D] and;
b. that the child will ‘no doubt’ pick up on comments of a negative nature and/or the distaste that the maternal grandparents have for the father (there being no evidence upon which his Honour could rely for such finding and/or such finding being contrary to the evidence);
c. that each of the progressive steps were taken in relation to time being spent by the child with the father were the subject of necessary court applications
and, in a case considered by him to be ‘finely balanced’, such errors affected the ultimate conclusion that it was in the child’s best interests that he live with the father.
2. The Federal Magistrate erred, as a matter of law, in the manner in which he applied the principle established by Jones v Dunkel (1959) 101 CLR 298.
3. The Federal Magistrate erred by in the manner in which he approached the allegations of domestic violence raised in the Appellant’s case (in that he relied upon the absence of a Family Protection Order rather than proceeding to consider and make findings in respect of the same) and in so doing failed, properly, to have regard to s.60B(1)(b) and s.60CC(2)(b) of the Family Law Act.
4. The Federal Magistrate erred as a matter of fact in concluding that the Independent Children’s Lawyer recommended that there be an order for equal shared parental responsibility in circumstances where there was no Independent Children’s Lawyer.
5. The Federal Magistrate erred by failing to consider the potential for the negative view held by the paternal grandfather of the maternal family to impact upon the child’s relationship with the Appellant, particularly where the paternal grandfather was not called as a witness.
6. The Federal Magistrate erred, when considering the willingness of the parties to facilitate and encourage a close relationship with the other, by failing to take into account that, prior to the trial, the parties had, on 2 occasions, reached agreement about the (increased) time the child would spend with the father and such failure, in a case considered by him to be ‘finely balanced’, permeated and affected the ultimate conclusion that it was in the child’s best interests that he live with the Father.
It will be seen that ground 1 alleges three specific errors of fact. The written outline of argument filed on behalf of the appellant mother asserts two further errors of fact, neither of which are contained in the Notice of Appeal:
· Error in finding that there were incidents of violence in the mother’s own behaviour which were in no way acknowledged by her.
· Error in finding that if the child lived with the father there would be “obviously more significant involvement of ‘a parent’ in the day-to-day care of the child”.
The written summary of argument filed on behalf of the appellant mother goes on to address each of those asserted errors ([21] – [25] and [26] – [27] respectively). The written summary of argument filed on behalf of the respondent father makes no reference to the fact that each of those asserted errors of fact are not the subject of any ground of appeal. Further, that summary of argument deals substantively with each such additional allegation of error ([17] – [21] and [22] – [25] respectively).
The appellant did not seek to amend the Notice of Appeal at the outset of the hearing, nor did counsel for the respondent raise any issue with respect to it. Oral argument by each counsel touched on each of the matters referred to in the two additional alleged errors just referred to.
In the circumstances just outlined, we consider it in the interests of justice to fully deal with all matters alleged by the appellant which are said to taint the Federal Magistrate’s judgment. We propose, then, to deal with each of the two alleged errors of fact as if each was an additional ground of appeal and as if each was particularised as a further error of fact asserted in ground 1. That is how the written submissions on behalf of each of the appellant and respondent deal with each and it seems to us appropriate that we follow that path.
The argument as expressed by counsel for the appellant seeks to pay due regard to the familiar hurdles facing an appellant in seeking to appeal against a discretionary judgment (e.g. House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; In the Marriage of Norbis (1986) 161 CLR 513). In addition, the submission framed in the manner earlier indicated implicitly acknowledges that the appellant faces the hurdle referred to, for example, by the High Court in De Winter and De Winter (1979) FLC 90-605. There, Gibbs J said at 78,092:
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, 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 … But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
… 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.
The Denial of Physical Discipline – Ground 1(a)
Counsel for the respondent father delineated his submissions in respect of this asserted error from other asserted errors of fact in ground 1, submitting that there is only one error, if it be an error made by the Federal Magistrate, namely the error set out in ground 1(a) of the Notice of Appeal. Counsel submits that this error (if it be an error) may have played a part in the Federal Magistrate’s determination of issues of credibility. We consider it convenient to adopt a similar approach in dealing with the components of this ground.
The first error alleged to have been made by his Honour is the finding that the mother denied that her mother’s partner, Mr D (who was referred to throughout Coker FM’s judgment as the mother’s “step-father”) had physically disciplined her as a child. Coker FM said:
48.[Mr D], in fact, confirmed that he had smacked, as necessary, all of [his stepchildren] as they were growing up and that that included the mother. I inquired particularly in relation to that matter, because the mother’s evidence was very clearly to the effect that she had, “never been physically disciplined by Mr [D]”…
…
74.… I was concerned at [the mother’s] absolute denial that she had ever been the subject of similar physical disciple from Mr [D] when of course Mr [D]’s own evidence was that he had disciplined all of his stepchildren in a physical manner and the mother was certainly physically disciplined.
In respect of Mr D’s disciplining of both H and herself as a child, the mother said in evidence (transcript p 71, lines 1 – 23):
[H] has also said that [Mr D] has clipped him around the ears when he has misbehaved.
You have seen your stepfather do that?‑‑‑No, I have not.
Okay. But that is something he might do, isn’t it, give him a good clip over the head if he is ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ if he is misbehaving?‑‑‑No.
Okay. Any reason why [H] might say that if it hadn’t happened?‑‑‑I honestly – I don’t know.
Is he a truthful little boy, you think?‑‑‑He does elaborate.
Yes. But if there hasn’t been a clip on the ear there is nothing to elaborate on, is there?‑‑‑Well, there is – I’ve never seen anyone ‑ ‑ ‑
You have not seen it?‑‑‑I haven’t seen it, no.
But you would – did [Mr D] ever give you a clip over the ear when you were a kid?‑‑‑No.
According to Mr D (transcript, p 99, lines 5 – 20):
[HIS HONOUR:] I just have one question, Mr [D]. You and Mrs [M] have been a couple for a quarter of a century or thereabouts?‑‑‑Yes.
And therefore, though you don’t have children of your own, Mrs [M]’s children are, to all intents and purposes, your children, and we heard [the mother] refer to you as dad in some of her evidence. What is your relationship – what was your relationship with the children like when they were growing up, [the mother]?‑‑‑Very good.
All right, and is the view that you have now about physical discipline the view you’ve always had in relation to physical discipline?‑‑‑Yes.
Did – I’ll call them your children, I don’t like the term stepchildren. Did your children, if they were naughty, get a smack on the backside?‑‑‑Yes.
And that was all of them, including [the mother]?‑‑‑Yes.
The argument on behalf of the mother centres on the (unchallenged) fact that, neither in response to questions nor in her affidavit evidence, did the mother ever give evidence that runs contrary to that evidence by Mr D. The only behaviour denied by her is Mr D giving her “a clip over the ear when [she was] a kid”. Further, it is argued that no evidence of Mr D suggests that he ever perpetrated that particular behaviour on the mother. It is also argued that the use by his Honour of quotations at [48] of the Reasons quoted above, when referring to the “very [clear]” effect of the evidence by the mother, highlights starkly the error because no such evidence was ever given by her.
It is argued by the respondent that the conclusion reached by his Honour with respect to the denial of physical discipline by the mother was open to him by reason of the context and tenor of the evidence. In particular, it is submitted that answers by the mother given when cross-examined indicate a denial of physical discipline generally as distinct from a denial of being “clipped over the ear” specifically.
We are not persuaded of that proposition. We consider that his Honour did in fact misapprehend the evidence given by the mother. We consider it significant, for example, that the relevant passage which appears at [48] of the Reasons is in quotation marks. However, we consider that there is merit in the alternative submission advanced by the respondent’s counsel that the specific finding is but one of a number of matters relied upon more generally by his Honour in rejecting aspects of the mother’s evidence.
We think there is merit in the respondent’s submission that the error should be seen in the same light as that to which Mason J referred in De Winter at 78,097. His Honour said:
… That this erroneous finding by the primary judge may have played a part in persuading him to reject the appellant as a witness of truth cannot be denied. But where an adverse conclusion as to the credit of a witness is based, as it was here, on a number of considerations, it is not enough to show that the primary judge was mistaken in one of the considerations upon which his conclusion as to credit is based. A conclusion as to the reliability of the evidence of a witness is inevitably based on a variety of factors. So it was here. The primary judge’s adverse opinion of the appellant’s veracity rested on a number of factors, including the advantage which he had in observing the witness’ demeanour.
We are, then, not persuaded that the error made by his Honour should result in appellate intervention.
The Necessity for Court Applications – (Grounds 1(c) and 6)
The errors alleged at grounds 1(c) and 6 can be seen to be closely related. It is convenient to deal with them together.
His Honour found (in the context of examining the “willingness to facilitate and encourage a close relationship between the child and the other parent” as “a significant factor”), that “each of the progressive steps that were taken in relation to time being spent by the child with the father, were the subject of necessary court applications” (at [122]). It is submitted on behalf of the appellant mother that this finding is contrary to the evidence.
It seems clear that the mother agreed to allow H to spend time with the father following separation upon the father’s undertaking that he would return H (Affidavit father, filed 23 April 2010, at [12] and Affidavit mother, filed 27 May 2010, at [30]). Both parties depose that, later, a parenting agreement was reached following mediation on 19 January 2009. There is nothing to suggest that this mediation followed an application by either party. In correspondence from his solicitors dated 7 August 2009, the father sought an equal time arrangement. While that correspondence indicated that, if the mother did not agree to that proposal, proceedings would commence, the parties agreed to the child spending an additional two days each fortnight with the father at a further mediation. It was only subsequent to those events that the father filed an Initiating Application seeking equal time in April 2010 (amended in May 2010). At an interim hearing, before Coker FM, alternating fortnightly time was ordered on 31 May 2010.
Plainly, H spending equal time with both his parents was a result of the father’s Initiating and Amended Applications. However, it would seem that prior to the father filing the Initiating Application on 23 April 2010, the parties had progressed in terms of parenting arrangements via mediation and agreement, rather than court applications by the father.
Contrary to that which is asserted by counsel for the respondent, we think it likely that his Honour did in fact misapprehend the evidence in relation to the genesis of the co-parenting arrangements. To that extent, error is made out.
However, we are not persuaded that it is an error which should result in appellate intervention. We have not been directed to anything in the record which indicates that the error had any influence upon his Honour’s ultimate findings or the orders that he made.
Erroneous Reference to Independent Children’s Lawyer – Ground 4
At [105] of the Reasons, Coker FM said:
I am not otherwise troubled by issues in relation to arrangements with regard to equal shared parental responsibility and noting that both parents seek such an order, that it is recommended by the Independent Children’s Lawyer and that I am not of the view that there is any factor that would rebut equal shared parental responsibility I intend to make the appropriate order in that regard.
The reference to an Independent Children’s Lawyer is clearly wrong; no Independent Children’s Lawyer had ever been appointed. Counsel for the mother argues that this “reference to a party which did not exist” would result in this Court being “disquieted”. Again in that context, counsel for the appellant seeks to emphasise that this error should be seen as reflective of the importance of this being but one of a number of “compounding” errors.
As submitted by counsel for the respondent father, the context in which the comment was made renders it highly likely that his Honour intended to say “family consultant” and erroneously referred to “Independent Children’s Lawyer” instead. Be that as it may, we are not persuaded that, either alone or taken in conjunction with any of the other matters raised by counsel, the error was at all influential in his Honour’s conclusions or the orders ultimately made.
It is his Honour’s sole reference to an Independent Children’s Lawyer – either in the Reasons or in the trial. Save for that single comment, we have not been directed to any part of the proceedings by which it could fairly be said that his Honour was confused about the parties before him or that the erroneous reference is indicative of other error. We cannot see that the erroneous reference played any role at all in his Honour’s Reasons or is indicative of a proneness to error more generally. Further if the erroneous phrase is removed, his Honour’s meaning is plain and in accordance with the whole of the evidence before him.
Child Will Pick Up on Comments - (Ground 1(b))
The Federal Magistrate found, at [38]:
… the child will, no doubt, pick up on comments made perhaps in his hearing, but certainly unknowingly made in his hearing, as well as the obvious distaste that the maternal grandmother and her partner, Mr [D], feel for the father.
There is no doubt that the findings in relation to the perception of the father held by the maternal family and resultant questions about their commitment to promoting a relationship between H and the father were a significant factor in his Honour’s decision that H should live with his father.
The Federal Magistrate’s finding (at [38]) that the child will “no doubt” pick up on comments made by the maternal family about the father falls to be considered, it is argued, against direct evidence from the maternal grandmother when cross-examined that, notwithstanding negative feelings she had toward the father, those were not transmitted in a way that H would hear or pick up on. Counsel for the mother argues that, in light of that direct evidence, his Honour needed to make a specific finding that he disbelieved the evidence of the maternal grandmother before making the finding at [38]. Counsel asserts that similar considerations apply to the rejection of the family report writer’s assessment that the mother’s commitment to promoting a relationship with the father was stronger than the father’s commitment to promoting a relationship with her.
However, those submissions should be rejected. It is, at heart, a challenge to a finding made about the credit or reliability of the evidence of one witness when compared to another. His Honour was not obliged to make a specific finding as alleged. His Honour’s obligation was to make findings consistent with the evidence and the weight attributed to that evidence by his Honour. It could not fairly be said that his Honour did not carefully turn his mind to the evidence of the maternal grandmother and the weight he should attach to it, including in respect of this specific issue. So much is plain from, for example, [31] to [39] of his Honour’s Reasons.
We are not persuaded that his Honour erred in the manner asserted by this ground; in our view, his Honour’s finding was open to him on the evidence.
Additional Errors
The first of the additional errors referred to in the appellant’s outline relates to what was said at [50] and [65] of the Federal Magistrate’s Reasons:
50.It was noteworthy, however, that it was only through [the mother’s father] that evidence came out as to the mother’s past, including the fact that she had a conviction for an assault of a male person in the late 1990s, obviously prior to her relationship with the father, and that she was convicted in respect of the charges laid.
…
65.Similarly, it was troubling but only in the evidence of her father did it become clear that there were incidents of violence in the mother’s own behaviour, which in no way was acknowledged by her.
The essential submission made on behalf of the mother is that although it is correct to say that the evidence in respect of past behaviour emerged during the cross-examination of the mother’s father, the matter was never raised with the mother during the course of her cross-examination.
The argument raised in respect of the second of the two additional matters referred to in the appellant’s submissions (day-to-day involvement in the child’s life) emerges from [69] – [71] of the Federal Magistrate’s Reasons:
69.It would also be remiss of me not to comment, that the clear evidence given in relation to this matter was to the effect that, if the child were to be living primarily in the father’s household, though of course spending significant and substantial time with the mother, that there would be obviously more significant involvement of, “a parent”, in the day-to-day care of the child.
70.That arose clearly because of the injuries that the father had sustained as a result of the motor vehicle accident in the early part of 2009, and the fact that he and [his partner] had reached an apparent agreement, wherein it would be more appropriate for [his partner] to return to full time work and for the father to be responsible for the care, not only of [their daughter], but also of [his partner’s daughter from a previous relationship] and [H], if [H] were to be living in their household.
71.It is, perhaps, significant that that would occur, because whilst the mother clearly indicates that she has flexibility in relation to her employment such that she was able, for example, to make arrangements to work only during school hours, if [H] were in her care there would be, obviously, pressures and pulls placed upon her time balancing work and commitments of that nature with the obligations in relation to [H], which would not arise within the father’s household.
The written submissions on behalf of the mother contend (at [27]) that “[t]here was no real foundation” for his Honour’s finding. Further, it is submitted that “the evidence clearly established that in both households there was extensive involvement of members of the extended families in the care of [H]”.
Nothing to which we have been referred persuades us that the Federal Magistrate erred in reaching either of the two conclusions which he did. Each of the findings were, in our view, open on the evidence. To the extent that the first of the two matters is an error at all (which we doubt), we consider it, too, falls into the category of being but one of a matrix of factors by which ultimate credit findings were made. We see no basis for appellate intervention.
“Compounding” errors
It will be clear from what we have earlier said that the submission that there were errors which compounded and thereby invalidated the decision, cannot be accepted.
In that respect, we repeat what we have earlier said in relation to the manner in which the errors of fact which have been established should be viewed. Individually they are not productive of appellate intervention and we do not see that any such intervention is established by aggregating them. In aggregate, they amount to errors which are inconsequential in an appellate sense or form but a part of matters properly taken into account in assessing the credit of the parties and their witnesses.
Nothing to which we have been taken persuades us that appealable error is demonstrated in respect of the aggregate of those matters. The reference to De Winter earlier made is apposite.
Allegations of “Domestic Violence” – Ground 3
Counsel for the appellant mother refers in written argument to two passages from his Honour’s Reasons:
76.Whilst there are concerns that do exist in relation to the actions of both parents, particularly with regard to the issue of domestic violence, I am comforted by the fact that a state court, having fully heard the application in relation to domestic violence was not minded to make any orders with regard to the matter and I, certainly, am comforted by my own observations of the parties and, at least, what I would now consider to be the degree of respect that each holds for the other, in relation to the importance that they must have in the child’s life, now and into the future.
…
104.Whilst there is obviously indications of domestic violence within the relationship it was, what might be called, a, “two way street”, and there certainly was domestic violence perpetrated by each party upon the other, during the relationship. I am comforted, however, by the fact, as I noted previously, that a state court having fully heard such an application found that such an order was not appropriate and in any event I am not at all of the view that domestic violence would be a continuing factor, in relation to any dealings between the mother and the father.
Whilst ground 3 is framed in terms of the approach taken by his Honour, the argument would appear to turn, in substance, on assertions about the weight which was attached to aspects of the evidence.
In that respect, it is again important to refer to the issues joined between the parties and the narrow parameters in which the case was litigated. H had spent significant amounts of time post-separation in the care of both parents and, for about six months pre-trial, in alternating households. The unchallenged finding is that he had “thrived”. Those matters provide significant context for the Federal Magistrate’s ultimate determination (at [137]) that the alleged family violence “… is not a factor which would significantly give rise to concerns in relation to the future parenting of this child”.
The written submissions on behalf of the mother refer to three specific matters that assert differing accounts by the father in respect of specific incidents. We agree with the submission made on behalf of the father that the findings made by his Honour and his overall assessment of the evidence encompass the three specific matters raised in the written submissions of counsel for the appellant mother.
But, family violence was referred to frequently in the course of his Honour’s Reasons (e.g. at [62] – [67]; [76]; [85]; [104]; and [137]). There was, in our view, a proper evidentiary foundation for the findings there made. Contrary to that which is asserted within the ground, we consider that his Honour gave proper consideration to s 60B(1) and s 60CC(2)(b) of the Act.
We reject the contention that the asserted reliance upon the absence of a Family Protection Order had the role in his Honour’s findings which ground 3 asserts.
No error is, in our view, demonstrated in how his Honour “approached the allegations of domestic violence raised in the Appellant’s case”.
The Paternal Grandfather and Jones v Dunkel – Grounds 2 and 5
As has been seen, ground 2 asserts an error of law in the application of the rule in Jones v Dunkel (1959) 101 CLR 298. Ground 5 asserts an error arising from the failure of the paternal grandfather to be called as a witness.
The two grounds can be seen to have a similar substratum. It is convenient to deal with them together.
The paternal grandfather was neither a deponent nor otherwise a witness. There is no doubt that the evidence before his Honour was to the effect that H had a very close and loving relationship with him. In addition, there is no doubt that the paternal grandfather had been recorded as having “blamed” the mother for truncating, or at least altering, that relationship. The appellant seeks to point out, in addition, that a crucial context to each (and both) grounds is that findings about the mother and maternal family’s attitude to the father and his family and how such attitudes might impact upon H was (as cannot be doubted) a crucial determinant of the ultimate decision arrived at by his Honour. It is said that this renders particularly important the failure of the paternal grandfather to give evidence, and to subject himself to cross-examination as each of the maternal grandmother and Mr D did.
This becomes particularly important, it is asserted, when regard is had to the fact that there is an admitted close relationship between the paternal grandfather and H and evidence of what might be called “negative attitudes” held by the grandfather toward the mother and the mother’s family. It is submitted (at [41] of the appellant mother’s written submissions), for example, that “… the Federal Magistrate did not consider anywhere in the Reasons for Judgment the potential for a negative view of the Mother to be imparted to the child in the same manner in which he determined was ‘likely’ from the maternal grandparents” (emphasis in original).
Within that context, the written submissions also refer (at [29]) to the fact that the family report writer reported that the paternal grandfather had “emphasised” during her interview with him (after providing a description of activities the child had engaged in whilst with him on the family property) that “that was [H]’s life until they took him …” (emphasis in original). The mother also deposed that, at changeovers when the paternal grandfather is present “he doesn’t talk to me at all. Not even a hello” and that H had said to her that “… he is not allowed to call my father … “Poppy [K]” by [the father] and his family” (Affidavit mother, filed 27 May 2010, at [13](e) and [14](a)).
His Honour addressed the application of the rule in Jones v Dunkel, and the father’s failure to call the paternal grandfather more generally at [95] to [100]. Relevantly, his Honour said:
96.It was certainly submitted on the part of the mother, that he was the, “elephant in the room”, and that with him not being called it could only be presumed, particularly applying the rule in Jones v Dunkel (1959) 101 CLR 298, that the evidence to be taken from him would not be favourable to the father’s case.
97.That might be a possible finding to be reached in relation to this matter but there is just as clearly the possibility, as was submitted on the part of the father, that it was not an, “elephant in the room”, but simply something that should be seen in light of the real evidence that was given, which particularly arose from the family report.
98.Ms [P] reported particularly, that [the paternal grandfather] had a close relationship with [H] and that they adored each other and that the paternal grandfather suffered a sense of grief and loss when the child was taken from the close interaction that had previously existed prior to the physical separation between the mother and the father. That evidence certainly is clear though it is also clear that, at least on the face of it, the paternal grandfather blamed the mother for that grief and loss that he felt, as a result of the separation from [H].
…
100.I must say that whilst it would, perhaps, have been of some assistance to have the paternal grandfather, who was clearly such a significant person in the child’s life, present before the Court and giving evidence in relation to the proceedings, I am not necessarily convinced that an adverse inference could or should properly be drawn from the fact that he did not give evidence, in relation to these proceedings.
With respect to his Honour, it is by no means clear to us from the Reasons precisely why his Honour made the ultimate finding that he was “not necessarily convinced” that an adverse inference “could or should” properly be drawn. But, for reasons about to be advanced, we consider that the conclusion is plainly right.
To the extent that his Honour accurately paraphrases, at [96], a submission that “it could only be presumed … that the evidence … would not be favourable …” it is, we think, necessary to point out that, even in circumstances where the pre-conditions to the application of the rule are made out, a court is not compelled to draw an adverse inference. Nor can it be presumed “that the uncalled evidence would have been damaging” (LexisNexis Butterworths, Cross on Evidence, vol 1 (at Service 129) [1215], citing HML v R (2008) 235 CLR 334; Brandi v Mingot (1976) 12 ALR 551 at 559-560).
But, there are pre-conditions to the application of the rule. No inference should be drawn unless and until “enough has been proved to warrant a reasonable and just conclusion” against the person not giving evidence. Moreover, it is only where “the nature of the case is such as to admit of explanation or contradiction” that the inference can sought to be drawn. (Jones v Dunkel per Windeyer J at 321 citing R v Burdett [1814-23] All ER 80).
The satisfaction of each of those preconditions might be seen to be more difficult in a court without pleadings and in parenting cases where the issues are more forensically diffuse. Moreover, Division 12A of the Act and, in particular for example, the duties contained in s 69ZX might (and arguably should) more readily admit of more circumspection on the part of practitioners and parties as to the evidence that should properly be called in a parenting case. In any event, here it is by no means clear what evidence it is said the grandfather had to meet in the sense explained in Jones v Dunkel. There was evidence from which his Honour could have reached conclusions about relevant attitudes and the responsibilities of parenthood exhibited by the grandfather. The desirability of there being evidence before the Court does not found an inference arising from the application of the rule; it is the forensic need to answer, explain or contradict that founds its potential application.
As we have explained, the scope for the operation of the rule in Jones v Dunkel in parenting proceedings appears limited, and recourse to it potentially unhelpful. To the extent that the learned Federal Magistrate had regard to the rule in this case, we are not persuaded that his Honour erred by so doing, or that he erred in declining to draw inferences in reliance upon the rule.
We agree with the submission made by counsel for the respondent that ground 5 is, in effect, a restatement of ground 2. To the extent that it differs, it seems to us to be a complaint about the weight that was attached (or, in this case, not attached) to particular evidence. No error is in our view demonstrated in the manner in which his Honour did so.
Conclusion
There being no merit in the Grounds of Appeal (including those which we have termed the “additional grounds”) the appeal must fail.
We will order that the appeal be dismissed.
Costs
At the conclusion of the appeal we sought submissions on costs so as to save the parties from any further expense consequent upon our decision.
Counsel for the respondent seeks an order that the appellant mother pay the costs of the appeal in the event that, as we have determined, the appeal fails. Axiomatically, the mother has been “wholly unsuccessful” within the meaning of s 117(2A)(e) of the Act.
Counsel for the mother points to the mother’s very modest financial circumstances in seeking to resist an order for costs (s 117(2A)(a)).
In terms of “conduct” within the meaning of s 117(2A)(c), counsel for the mother points to the fact that the decision by the Federal Magistrate can be seen to have changed the primary care arrangements for a young child that had existed for a large proportion of his life until the order for alternating fortnights made in May 2010. The mother’s conduct in pursuing an appeal should, it is submitted, be seen in that light.
We are not persuaded that the circumstances justify an order for costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Coleman and Murphy JJ) delivered on 23 November 2011.
Associate:
Date: 23 November 2011
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