NAILON & BOWKETT
[2018] FamCAFC 103
•30 May 2018
FAMILY COURT OF AUSTRALIA
| NAILON & BOWKETT | [2018] FamCAFC 103 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother filed an application to adduce further evidence – where the father opposed that application – where the application was heard in conjunction with the substantive appeal – where the further evidence did not meet any of the criteria for admission of further evidence on appeal by reference to the principles espoused by the High Court – application dismissed. FAMILY LAW – APPEAL – PARENTING – where the mother contended the trial judge erred in failing to give sufficient weight to the child’s views and to the recommendations of the family report writer – where the trial judge made a finding that the child’s views were manipulated by the mother – where the trial judge was not bound by any opinion or recommendation of the expert – where the trial judge plainly took the child’s views into account in determining whether the child should relocate to South Australia – where the trial judge’s orders were consistent with the mother’s proposal expressed during her closing submissions at trial as to the time the child should spend with the father – where such orders were a legitimate exercise of the trial judge’s discretion – where the mother asserted she had suffered procedural unfairness, that the trial judge was unreasonable and biased and the decision made was plainly unreasonable – where nothing to which the mother directed attention on appeal established such assertions or demonstrated error on the part of the trial judge – appeal dismissed – no order as to costs. |
| Family Law Act 1975 (Cth) s 93A(2) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Simmons and Anor & Kingley (2014) FLC 93-581; [2014] FamCAFC 47 |
| APPELLANT: | Ms Nailon |
| RESPONDENT: | Mr Bowkett |
| FILE NUMBER: | ADC | 3934 | of | 2013 |
| APPEAL NUMBER: | NOA | 3 | of | 2018 |
| DATE DELIVERED: | 30 May 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 30 May 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 3333 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
That the mother have leave to amend her Notice of Appeal to substitute the grounds of appeal stated in the Notice of Appeal with the grounds of appeal stated in her Summary of Argument.
That the mother’s Application in an Appeal to adduce further evidence on appeal filed on 29 May 2018 be dismissed.
That the appeal against the orders made by Judge Jarrett on 11 December 2017 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nailon & Bowkett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 3 of 2018
File Number: ADC 3934 of 2013
| Ms Nailon |
Appellant
And
| Mr Bowkett |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
These proceedings relate to final parenting orders made by Judge Jarrett in the Federal Circuit Court on 11 December 2017, following three days of trial which took place between August and November 2017.
Mr Bowkett (“the father”) and Ms Nailon (“the mother”) have one child, namely E (“the child”) who was born in 2004 and is currently 14 years of age.
As contained in her Notice of Appeal, the mother appeals Orders 1 and 2 of the orders Judge Jarrett made 11 December 2017. Those orders provide that:
1.The parents have equal shared parental responsibility for decisions concerning the major long term issues for the child [E] born … 2004 (“the child”).
2.The child spend time with the father, at all times as agreed between the parties, but no less than as follows:
(a)from 9:00am Saturday to 5:00pm Sunday for one (1) weekend per month as agreed between the parties and failing agreement on the third weekend of each month as follows:
(i)for the first weekend commencing in December, 2017 and each alternate month thereafter the time shall take place [in South East Queensland] with the costs of the father’s travel to be met by the father.
(ii)for the second weekend commencing in January, 2018 and each alternate month thereafter the time shall take place in [South Australia] with:
A. the child to arrive in [South Australia] no later than 9:00am local time on the Saturday;
B. the child to depart [South Australia] no later than 4:00pm local time on the Sunday; and
C. the costs of the child’s travel to be met by the mother.
(b)in [South Australia] for half (and in default of agreement between the parties, the first half in even numbered years and the second half in odd numbered years) of the Easter, June/July and September school holiday period with the parties to each meet one half of the child’s travel costs; and
(c)commencing in 2018, for two (2) weeks in the Christmas school holiday period as agreed between the parties and failing agreement for the two weeks in the middle of the school holiday period.
The mother’s appeal from those orders is being heard by me as a single judge exercising the jurisdiction of the Family Court in relation to an appeal pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
At the outset of the appeal hearing, it was confirmed with the mother that whilst she stated some seven grounds of appeal in her Notice of Appeal, the complaints she seeks to agitate on appeal are actually as set out in her Summary of Argument filed in support of her appeal. There are five grounds addressed in her Summary of Argument. The mother sought, and I granted, leave for her to amend her Notice of Appeal for those to be her grounds of appeal, the father raising no opposition to that.
The mother also filed, yesterday, an Application in an Appeal and a supporting affidavit seeking to adduce further evidence on appeal pursuant to s 93A(2) of the Act. The father opposes that application. As I explained to both parties at the outset of the appeal hearing, they could address submissions both in relation to the merits of the appeal and the further evidence application in conjunction.
The following brief chronology of relevant events is derived primarily from the reasons of judgment of the trial judge, but also to some extent from material in the appeal record.
The father was born in 1965 and is thus currently 52 years of age. The mother was born in 1967 and is thus currently 51 years of age. Each of them represent themselves on the hearing of this appeal.
In 2003 the parties commenced a de facto relationship in South Australia and, as I have already noted, the child was born in 2004.
In 2006 the parties separated on a final basis. Thus the relationship was a brief one of only some three years. In the event, from the time of separation the child did not see her father again until approximately October 2010.
In 2009 the mother and the child moved from South Australia to live in Tasmania. It seems the mother did not advise the father of this move until after the fact of its occurrence.
In 2010 the mother and child moved back to South Australia to live. Again, the mother did not tell the father that they had returned to South Australia. It seems that in about October or November 2010, by accident, the father ran into the mother and the child at local markets in South Australia and thus the father discovered that the child was living in South Australia again. It seems that the father spent the day with the child and the mother which was the first time he had spent with the child since she was only about two years old. The mother informed the father that she and the child were relocating to Town B in New South Wales.
It seems that between late 2010 and mid 2013 the mother led the father to understand that she and the child were living in New South Wales. She indicated to the father at some point that it was her intention to eventually move back to South Australia, at which time the child could spend time with the father again. Throughout the period under discussion, the father lived in South Australia as he continues to live.
On 6 July 2013 the mother’s adult daughter, Ms M, contacted the father and advised him that the child and the mother had not ever in fact moved to New South Wales and had been living in South Australia throughout the relevant period.
On 13 July 2013 the father attended the mother’s home and spent time with the child. It was at that time that the father agreed to sign a passport application so that the mother could take the child to Country O for a holiday.
Between about 1 October 2013 and 20 February 2014, the mother took the child to Country O.
On 21 October 2013 the father commenced proceedings for parenting orders in the Federal Circuit Court of Australia at the Adelaide registry.
In 2014 the mother relocated with the child to Town C, New South Wales and did not inform the father of that fact.
On 25 July 2014 interim orders were made by Judge Kelly in the Federal Circuit Court issuing a warrant for the mother’s arrest. Further interim orders were made on 29 June 2015 with Judge Kelly ordering the mother to attend Town C Police Station to enter into a bond and restraining the mother from relocating with the child again. On 20 July 2015 interim orders were made by Judge Kelly ordering the mother to enter into an amended bond.
On 29 November 2015 the father spent some time with the child and the mother pursuant to interim orders that had been made. It seems that it was not until December 2015 that the child was informed of the fact that the father was her father.
On 18 April 2016 Judge Kelly made interim orders which provided for the parties to commence mediation or co-parenting counselling. Further orders to that effect were made on 8 August 2016 providing for the father and the child to participate in reunification counselling at Centacare in New South Wales.
On 24 November 2016 interim orders were made by Judge Kelly providing for the earlier bond to be discharged and for the matter to be transferred to the Brisbane Registry for allocation of a final hearing before Judge Jarrett.
I interpolate here that whilst it is unnecessary to go into the reasons for this for present purposes, the reunification counselling that had been ordered did not, in fact, occur.
On 30 January 2017 Judge Jarrett made interim orders for the child to spend four hours with the father on the last Saturday of each month and for a family report to be prepared by a family consultant pursuant to s 62G of the Act.
In February 2017 the mother relocated with the child to South East Queensland.
It was on 19 May 2017 that the family report by the family consultant, Ms P, was published.
On 9 August 2017 the father paid all then outstanding child support arrears in the sum of approximately $19,000.
The final trial of the parenting proceedings took place before Judge Jarrett in Brisbane on 31 August, 1 September and 23 November 2017. At the end of the first day of trial, Judge Jarrett ordered that the child spend time with the father the following day from 9:00am to 3:00pm and then for the Court to be reconvened. The child’s time with the father on 1 September went poorly and Judge Jarrett ordered that the matter be adjourned in order to obtain a brief addendum report from the family consultant. On the final day of trial, the family report writer was cross-examined and final submissions were heard, the addendum to the family report being published on 16 October 2017. As earlier noted, Judge Jarrett made final orders and delivered reasons on 11 December 2017.
At trial, the father had sought an order that the child return to live in South Australia where she had lived until the mother moved her to South East Queensland in early 2017. The father sought orders that the child live with the mother in South Australia and spend alternate weekends and school holiday time with the father.
For her part, the mother did not agree to the child returning to live in South Australia. The mother sought an order for sole parental responsibility and initially sought orders that the child live with her and spend time with the father at the child’s discretion. However, as I pointed out in the course of hearing of this appeal, in her closing submissions on the final day of trial, the mother altered her position somewhat as is reflected in the following submission (at Transcript, 23 November 2017, p 9 ln 31 – 37):
[MS NAILON]: Well, it’s my submission that [the child] be given the chance to stay in her home area that she loves and keep – maintain the friendships that she has and the plans and the classes that she has, but that her father and her should have unlimited contact as far as Skype, phone, email goes; and if her father is having difficulty with coming up each month, perhaps we could do it one month [the child] goes down and one month [the father] comes up here. I could take [the child] down to [South Australia] for the initial time so that she doesn’t struggle to get on the plane or anything.
(Emphasis added)
Despite a finding that the mother had done all things necessary to thwart the child having a relationship with the father, the trial judge ultimately found that it was not in the child’s best interests to order her return to South Australia (reasons at [53]). The trial judge recognised that it was an order which essentially rewarded the mother’s alienating behaviour however, given the child’s strong views, the trial judge found that requiring the child to return to South Australia would be counterproductive to her relationship with the father ([55]).
The trial judge concluded that an order for equal shared parental responsibility was appropriate ([57] – [58]). Given the geographical distance between the places where the parents lived, the trial judge found that neither equal nor substantial and significant time with the father was reasonably practicable ([59]). The trial judge ultimately concluded that it was in the child’s best interests to spend one weekend each month with the father, unsupervised by the mother as well as school holiday time ([60] – [61]), with such time to alternate between South Australia and South East Queensland. This is, as it seems to me, entirely consistent with the mother’s proposal expressed to the trial judge during her closing submissions on 23 November 2017 already quoted.
I turn to address each of the mother’s grounds of appeal as addressed in her Summary of Argument.
Ground 1 – Acted on wrong principle
The mother asserts that the orders made by Judge Jarrett do not reflect the child’s wishes or the recommendations of the family report writer. The mother contends that his Honour erred in failing to give sufficient weight to the child’s views.
Reference to the reasons for judgment demonstrate that the trial judge specifically considered the child’s views from [49] to [55] of those reasons. His Honour made a finding that the child’s view of her father had been manipulated by the mother and that the child was “capable of acting in a way which is entirely inconsistent with her own best interests” (at [53] and [55]). This finding was consistent with the observations of the family report writer, Ms P, particularly at paragraphs 85 to 87 of the family report dated 18 May 2017 which state:
85.[The child] may not even be cognizant of the aforementioned influence her mother has upon her. [The child], it seems, has never experienced the need to reflect upon her mother’s behaviour and / or the influence it has upon her. This was particularly evident when [the child] was informed about the Judge being responsible for arranging her mother’s arrest, and not her father. She could not comprehend her mother may have been in the wrong or that she plays a part in why this matter was alive before a Judge.
86.[The child] presents as if she holds an overly positive perception of her mother; it could be argued she has an unbalanced, or at least, an unrealistic image of her mother. The fact [the child] is unable to separate from her mother to spend time with her father after about a year of time demonstrates a strong alignment with her mother and strengthening resistance to spending time with her father.
87.Moreover, [the child], it appears, has accepted and / or adopted her mother’s attitude towards her father without question. This too can be indicative of a child having a strong alignment with their parent. Both [the child] and [the mother] appear to completely define [the father] by his historical behaviour (if true), and they both appear to see no value in [the father] having a future role in [the child’s] life. Whilst I appreciate [the father’s] historical behaviour, particularly the examples [the child] referred to, if accepted by the Court, may cause her to have some doubt about him, I find it worrisome that she has not been able to reconcile these experiences and separate them from him as a whole, and from her present time with him.
The trial judge considered it appropriate to make orders for the child to spend specific time with the father as opposed to leaving this up to the child’s own discretion as to the time she spends with the father (as had been recommended by the family report writer and was initially sought by the mother). The trial judge also expressed concerns during closing submissions regarding the child being left to instigate communication herself with the father as is recorded in the transcript of 23 November 2017 from p 9 ln 46 to p 10 ln 4:
HIS HONOUR: So the problem with making an order – sorry. The problem with making an order that [the child] have full and free communication by electronic means and Skype is that you will leave it up to her and she will engage or not engage, depending on how she’s feeling on any particular day. And the history shows that it’s more likely than not that she won’t engage at all. Do you have any submissions - - -
The mother contends that an order for the child to spend overnight time with the father was inappropriate given the recommendations of the family report writer and the evidence before the trial judge. The monthly weekend visits with the father appear to have been proposed by the mother during final submissions as referred to above. Although it must be recognised that her proposal does not specifically state that the weekend time would include overnight time, in practical terms that was implicit in the mother’s own proposal as stated. Interim orders made throughout the matter had only provided for the child to spend approximately four to six hours with the father each month (often in the presence of the mother). It would appear from a reading of the material in the appeal record that the child had never spent overnight time with the father.
It can be seen from the reasons of the trial judge that his Honour placed significant weight on the child’s views that she wished to remain living in South East Queensland as opposed to relocating back to South Australia, despite the family report writer’s comments at paragraph 10 of the addendum to the family report which stated:
The chance of [the child] successfully developing a relationship with [the father] will increase if the parents lived in close proximity to one another. As I previously stated the current distance between [the child] and her father “does not allow them to spend the time required to establish a more intimate relationship.” Of the two parents, [the mother’s] circumstances seem to allow her to relocate with little difficulty.
Despite that opinion, the trial judge found that it would be counterproductive to her relationship with the father to require the child to return to live in South Australia against her wishes ([53] – [54]).
Despite disagreeing with much of the content of the family report, the mother contends that the family report writer’s recommendations ought to have been followed (specifically that the child dictate any time she spends with her father). The family report writer’s recommendations can be found in the family report dated 18 May 2017 from paragraphs 94 – 96 and in summary provide that:
a)The child live with the mother;
b)The child spend time with the father at her own discretion; and
c)the father communicate with the child by telephone on a weekly basis, by email regularly and receive information relating to the child’s education.
As earlier referred to, an addendum to the family report was ordered by Judge Jarrett after the first two days of trial. This addendum, dated 16 October 2017, provided recommendations for the child’s time with the father in the event that the Court ordered that she return to live in South Australia. Those recommendations state:
11. …I am of the view the best [the father] can hope for is that [the child] eventually spends full weekends with him on a regular basis, but I would recommend they start with one day a week, complimented by family counselling, and should [the child] wish to have more than this can occur…
The mother also raises concerns that there was no evidence before Judge Jarrett as to the state of the father’s residence in South Australia and that his home may be inappropriate for the child to spend time at. The mother indicates that the father often rents his couch to strangers and that the father may allow the mother’s other daughter, Ms M, to be present when spending time with the child. The mother contends that the child suffered verbal and physical abuse from her half-sister Ms M and does not wish to spend time with her. However from a reading of the appeal record, there does not appear to be any evidence to suggest that Ms M spends time at the father’s residence or lives with him.
Finally, the mother contends that the trial judge erred in overlooking the history of physical and sexual abuse the mother alleges was perpetrated against her by the father. Paragraphs 23 and 36 – 39 of the mother’s trial affidavit filed 10 August 2017 records the mother’s allegations of physical and sexual abuse at the hands of the father. However none of these allegations appear to have been raised at trial, nor was the mother cross-examined in relation to them. The mother’s Notice of Risk states that there was no family violence or risk of family violence, although it does assert that the child was at risk of harm from her half‑sister, Ms M, and that the father would ignore the child’s needs.
In relation to allegations of family and/or domestic violence, the trial judge recorded the following findings in the reasons for judgment:
39. Neither party seems to seriously suggest that this child is at an unacceptable risk of physical, psychological or emotional harm by reason of being exposed to abuse, neglect or family violence in the household of one or other of these parents. That is not to say that the way in which the mother has manipulated [the child] and her relationship with her father in this case has not been damaging to [the child]. In my view, it probably has and it is plainly emotionally abusive of her.
…
58. For those reasons, I am satisfied that it is in [the child’s] best interests for there to be an order for equal shared parental responsibility. More than that, it seems to me that the evidence does not suggest that the presumption spoken about in s.61DA(1) of the Act does not apply. There are no circumstances here, that I accept, which demonstrates there has been violence between the parents to this application, and I am not satisfied that there has been any violence by [the father], towards [the child]. In those circumstances, the presumption applies, in any event. There will be an order for equal shared parental responsibility.
The mother also alleges that the father gave evidence that he had stalked the mother and the child which was ignored by the trial judge. Upon a reading of the record and the transcript, it is clear that the father gave evidence as to his attempts to locate the mother in March 2014 in order to effect service of his Initiating Application after being advised by the Australian Federal Police that the child and the mother had returned to Australia from Country O on 20 February 2014 (Transcript, 31 August 2017, p 17 ln 34 to p 18 ln 13). That cannot sensibly be characterised as “stalking” behaviour.
It is important to recognise that the trial judge was not bound by any opinion or recommendation of the expert family consultant (see the authorities collected in Simmons and Anor & Kingley (2014) FLC 93-581 at [42]). The task of the trial judge was, taking into account all the evidence, his Honour having had the advantage of seeing and hearing the witnesses throughout the days of trial referred to, to determine parenting orders in the best interests of this child. In parenting cases that is a real advantage (Gronow v Gronow (1979) 144 CLR 513 per Stephen J; CDJ v VAJ (1998) 197 CLR 172).
In the exercise of that discretionary judgment, it is plain that his Honour took into account clearly not only the child’s expressed views but, in some detail, the history of events concerning the child’s interactions, such as it was, with the father and the mother’s role in that.
Given that the trial judge could not be bound to simply adopt the recommendations of the family consultant, and given the other matters referred to, I find there is no merit in the contention by the mother that the trial judge acted on some wrong principle in determining the parenting orders he made in the exercise of discretion.
I therefore find no merit in Ground 1.
Ground 2 – Procedural fairness
The mother contends that she was not able to properly prepare for cross‑examination of the family report writer on the third day of trial on 23 November 2017 due to “severe tooth pain”. Both parties appeared via telephone on that date of the trial.
The mother had filed an affidavit on 22 November 2017 setting out the details of what had occurred between 1 September 2017 and November 2017 and also indicating that she suffered severe tooth pain on 12 November 2017 for which she received a medical certificate on 15 November 2017 (paragraph 48 of the mother’s affidavit filed 22 November 2017).
The mother asserts that she sought the father’s agreement to an adjournment and that the father would not so agree. However, none of this was raised with the trial judge as a preliminary issue on 23 November 2017. The mother did not formally apply for any adjournment on that date. In that context then, the complaint about procedural fairness is sterile.
Whilst the mother is also critical that the child was not appointed an Independent Children’s Lawyer throughout the proceedings and suggests therefore she was not properly represented given that she “has only been given the opportunity to speak to court staff twice”, the child was in fact interviewed in detail on the following occasions:
a)by Family Consultant Ms Q on 15 July 2016 for the purpose of preparing a report pursuant to s 11F of the Act; and
b)by Family Consultant Ms P on 19 May 2017 for the purpose of preparing a report pursuant to s 62G of the Act.
From a review of the record it would not appear that the appointment of an Independent Children’s Lawyer was ever sought by either party, and significantly it does not appear that any expert family consultant ever recommended that such appointment was necessary.
In circumstances where the trial judge had the benefit of detailed family reports prepared by the experts, it is difficult to see what more the appointment of an Independent Children’s Lawyer would have added.
I am not satisfied that either of the bases contended for by the mother for asserting a lack of procedural fairness to her are made out.
I therefore find no substance in Ground 2.
Ground 3 – Unreasonable and biased
The mother asserts that the trial judge was “unreasonable and biased”. She provides the following examples in support of this assertion:
a)that the trial judge accepted the father’s evidence that the mother thwarted his attempts to communicate with the child, with the mother contending at trial that the father rarely attempted to contact the child ([46] of the reasons);
b)that the trial judge referred to the affidavit of the mother’s neighbour (from 2001 to 2009), Ms R, as “just pap” (Transcript, 31 August 2017, p 8 ln 24 – 47);
c)that the trial judge preferred the father’s “dodgy” evidence over that of the mother ([5], [6] and [51] of the reasons), especially in circumstances where the father did not commence parenting proceedings until 2013 and waited for the mother to take the child to Country O before commencing such proceedings;
d)that the trial judge led the mother to believe that he would be ordering the child’s return to South Australia by stating, “[t]he choice is, you either go to [South Australia] or I order you to go to [South Australia]. You either go voluntarily or it’s likely that I will order you to go there…” (Transcript, 1 September 2017, p 54). The mother asserts that this caused her and the child undue stress and upset; and
e)that the trial judge asked the family report writer whether the mother’s decision to tell the child of the possible move back to South Australia was “some sort of sabotage” to cease the child’s increasing communication with the father (Transcript, 23 November 2017, p 7 ln 25 – 38).
In relation to these complaints, the fact that a trial judge accepts the evidence of one party in preference to the other cannot of itself reasonably form the basis for the contention that the trial judge is biased. It is the duty of the trial judge to consider and assess the evidence of witnesses and this is what the trial judge did. The fact that the trial judge preferred the father’s evidence in this case does not, without more, demonstrate any unfairness or bias on the part of the trial judge.
Whilst the trial judge’s description of the affidavit of Ms R is colourful, it simply serves to demonstrate that the trial judge was indicating that no weight could be given to that affidavit or the evidence it contained in the form in which it was and having regard to relevance of evidence. That is not a matter of procedural unfairness or bias.
Again, the third point identified above, repeats that the trial judge preferred the father’s “dodgy” evidence over that of the mother. As I have already referred to, this was one of the matters it was for the trial judge to assess, he having had the benefit of hearing and seeing the witness and seeing them tested under cross‑examination.
As to the fourth example, it can be seen that the trial judge in the end did not order the child’s return to South Australia. To the suggestion that this caused the mother and the child undue stress and upset, all that needs to be said is that these were parenting proceedings to which Division 12A of the Act applied. The trial judge was bound to actively control the proceedings and in circumstances where both parties were open to be tested on their primary proposals before the Court. As noted, the trial judge did not in fact make the order referred to.
Likewise, in relation to the final example, it was open to the trial judge to ask questions of the family report writer concerning the mother’s decision to tell the child of the possible move back to South Australia. It was perfectly legitimate for the trial judge to test, in a case where one question was to what extent the child was influenced by the views of her mother, that proposition.
I find no merit in Ground 3.
Ground 4 – Decision plainly unreasonable
The mother’s submissions in support of this ground reiterate those contained in support of the grounds already discussed. The mother contends that given “the history, the nature of their relationship [referring to the child and the father] and how [the child] feels, the Orders are not reasonable”.
This was a case where, through a variety of circumstances, and the mother’s influence, this child has not had the opportunity to have and develop a meaningful relationship with her father. On the evidence, the child would benefit from such a meaningful relationship as was the finding of the trial judge. Indeed the mother herself was not opposed, at least on her final proposal as stated, to the child having some relationship with the father. Thus it was that the question of the child having the opportunity to have a relationship with her father was ultimately not in issue, it was a question of how that was to be achieved. Against the background and chronology to which I have made reference and to which the trial judge made careful and extensive reference in the reasons for judgment, in the exercise of his discretion his Honour determined the orders that should be made in the child’s best interests, despite whether those orders actually were concurrent or consistent with the child’s expressed views. It was a legitimate exercise of his Honour’s discretion and nothing to which the mother has directed attention on this appeal demonstrates that his Honour made any discretionary error (House v The King (1936) 55 CLR 499).
The mother contends that the child does not wish to comply with the orders made as she does not feel comfortable spending overnights with the father or flying to South Australia for extended periods of time. The mother contends that family counselling ought to have been ordered as she frequently suggested throughout the trial (which was also contained in the recommendations of the family report addendum but these were on the basis that the child be ordered to return to live in South Australia).
The harsh reality of this matter is that there may well be, in the future, a need for enforcement proceedings to be taken with respect to the orders. But the trial judge was well aware, as is demonstrated in his reasons for judgment, of the historical resistance of the child spending time with her father but against a finding, importantly, that this was the product of the mother’s influence upon the child. As is demonstrated in the reasons, the trial judge did not order the child’s return to live in South Australia in the hope that this would advance the prospects of a relationship between the child and her father being established and maintained. As already noted the orders the trial judge made, whilst including overnight periods, were not inconsistent with the submissions made by the mother in her final submissions as referred to.
Time is running out for this child at 14 to establish a relationship with her father during her childhood. His Honour plainly exercised a discretion to make orders which his Honour considered to be in the child’s best interests and the authorities, including authorities of the High Court, repeatedly emphasise the discretionary nature of parenting orders and the room for intuition, guesswork and speculation to legitimately play a part in the exercise of discretion in determining such orders (CDJ v VAJ (1998) 197 CLR 172).
I am not satisfied that anything to which the mother directs attention in these appeal proceedings establishes that the orders made by the trial judge were plainly unreasonable.
Ground 5 – Failure to take account of a material circumstance
The mother contends that her financial circumstances (namely her reliance upon Centrelink entitlements and child support) were not considered by the trial judge in ordering that the mother meet one half of the child’s travel costs to South Australia. The mother agrees that she should contribute, however expressed concern that there may be some months where she is unable to comply with such an order.
Again, compliance with orders is a serious matter and may be the subject of further litigation in these proceedings. However the orders made by the trial judge are consistent with the mother’s stated final submission as referred to and moreover, on the hearing of this appeal, in contending that she would accompany the child when addressing the issue of overnight time, the mother suggests that the orders should have provided for her to travel with the child and to obtain accommodation in South Australia for those visits. That does not suggest a lack of financial ability to assist with meeting one half of the child’s travel costs to South Australia on the periods that that is to occur.
I therefore find no merit in Ground 5.
There being no merit in any of the grounds of appeal, the appeal is to be dismissed.
I also record that in relation to the mother’s application to adduce further evidence on appeal, I am not satisfied that that evidence, which is objected to by the father, meets any criteria for admission of further evidence on appeal by reference to the principles espoused by the High Court in CDJ v VAJ (1998) 197 CLR 172. It was well known, as the reasons of the trial judge reflect, the difficulties concerning the child’s interaction with the father historically. It was thus well known that there may well be difficulties in the child adjusting to the orders made by the trial judge. It was for that very reason it seems that the trial judge declined to order the child’s return to South Australia in the hope that that would maximise the prospects of the child having a relationship with her father. Thus the further evidence going to further resistance by the child, as it seems to me, is incapable of demonstrating that the trial judge was in error in making the orders he made.
I therefore order:
1.That the mother have leave to amend her Notice of Appeal to substitute the grounds of appeal stated in the Notice of Appeal with the grounds of appeal stated in her Summary of Argument.
2.That the mother’s Application in an Appeal to adduce further evidence on appeal filed on 29 May 2018 be dismissed.
3.That the appeal against the orders made by Judge Jarrett on 11 December 2017 be dismissed.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 30 May 2018.
Associate:
Date: 31 May 2018
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