Naparus & Frankham (No. 3)
[2021] FamCAFC 150
•17 August 2021
FAMILY COURT OF AUSTRALIA
Naparus & Frankham (No. 3) [2021] FamCAFC 150
Appeal from: Naparus & Frankham (No.7) [2020] FCCA 3139 Appeal number(s): SOA 96 of 2020 File number(s): MLC 1462 of 2016 Judgment of: AUSTIN, TREE & WILLIAMS JJ Date of judgment: 17 August 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders and dismissal of a relocation application – Apprehended bias – Where the primary judge did not err in ordering equal shared parental responsibility or considering the practicalities of orders made – Where the primary judge did not mistake the facts – Consideration of expert evidence – Weight challenges – Findings by the primary judge open on the evidence – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 61DA, 65DAA, 117(1), 117(2), 117(2A) Cases cited: Antoun v R (2006) 224 ALR 51; [2006] HCA 2
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
MRR & GR (2010) 240 CLR 461; [2010] HCA 4
Naparus & Frankham (No. 2) [2020] FamCAFC 238
Naparus & Frankham [2020] FamCAFC 32
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39
U v U (2002) 211 CLR 238; [2002] HCA 36
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Division: Appeal Division Number of paragraphs: 88 Date of hearing: 24 June 2021 Place: Heard in Melbourne (via video-link), delivered in Newcastle Counsel for the Applicant: Litigant in person Solicitor for the Respondent: Nick Graham Legal Counsel for the Respondent: Mr Kanarev Solicitor for the Independent Children's Lawyer: Bowlen Dunstan & Associates Pty ORDERS
SOA 96 of 2020
MLC 1462 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS NAPARUS
Appellant
AND: MR FRANKHAM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, TREE & WILLIAMS JJ
DATE OF ORDER:
17 AUGUST 2021
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 9 February 2021 is dismissed.
2.The respondent’s application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Naparus & Frankham (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, TREE & WILLIAMS JJ:
Ms Naparus (“the mother”) and Mr Frankham (“the father”) are the parents of X (“the child”), who is now six years of age. The parents have been in dispute about the care of the child for many years.
By way of an Amended Notice of Appeal filed 9 February 2021, the mother appeals from parenting orders made by a judge of the Federal Circuit Court on 26 November 2020.
The appealed orders provide that the parents have equal shared parental responsibility for the child, and the child to live with the mother in Victoria, provided she lives in reasonable proximity to the father’s home and the child spend each alternate weekend and half school holidays with the father. In the event the mother did not return to Victoria with the child, the orders provide for the child to live with the father and spend school holiday time with the mother in Perth.
The mother contended in the appeal that the orders were infected by judicial bias and numerous other legal, factual and discretionary errors.
Both the father and the Independent Children’s Lawyer (“the ICL”) resisted the appeal.
For the reasons that follow, this appeal must be dismissed.
BACKGROUND
The mother is 42 years of age and has lived in Australia since 1986. The father is 38 years of age and lives in Town F in regional Victoria.
The parties met online in about 2009, when the mother was living in Perth and the father in Victoria. In 2013, the mother moved from Perth to live in Victoria and they commenced living together in a domestic relationship in or about March 2014. The child was born in April 2015.
The parents separated in October 2015, and in December 2015 the parents entered into a parenting plan providing for the child to live primarily with the mother.
In February 2016, the father commenced proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
On 6 September 2016, final orders were made by consent providing for the parents to have equal shared parental responsibility, the child to live with her mother and spend time with the father each fourth weekend on Saturday and Sunday and for the mother not to be permitted to relocate further than 80 km from City B.
In January 2017, the parties recommenced living together under the one roof in City B, although there was a dispute about whether they reconciled, prior to separating again in June 2017.
The mother then recommenced proceedings under Pt VII of the Act in November 2017.
On 30 April 2018, interim parenting orders were made by a judge of the Federal Circuit Court which provided for the child to live with the mother and spend time with her father.
In October 2018, over a four day period, a judge of the Federal Circuit Court heard the substantive parenting case. On 28 February 2019, the judge made orders (“the February 2019 orders”) and delivered reasons providing for the child to live with the mother, subject to her living in Victoria. The orders also provided for the child to spend time with the father.
The mother successfully appealed the February 2019 orders and the proceedings were remitted for re-hearing (Naparus & Frankham [2020] FamCAFC 32).
In 2020, the primary judge made a series of interim orders in an effort to restore the child’s interaction with the father, given she had not spent any time with him under former interim orders since August 2019 (at [61]). The fresh interim orders made by the primary judge were frustrated by a combination of the social restrictions imposed during the COVID-19 pandemic and the mother’s decision to move back to Western Australia with the child. Eventually, the primary judge issued a recovery order and ordered, on an interim basis, that the child must live with the father (at [67]). The recovery order was executed and the child returned to Victoria with the father in July 2020, closely followed by the mother (at [71]–[72]). Only two days later, the mother took the child back to Western Australia, where they remained at the time of trial (at [30] and [73]–[74]).
The mother filed multiple appeals from the interim orders made in June and July 2020, but the appeals were dismissed in September 2020 (Naparus & Frankham (No.2) [2020] FamCAFC 238 (“Naparus & Frankham (No.2)”)). The dismissed appeals included an appeal from an interim decision of the primary judge made on 21 July 2020, when he refused to disqualify himself, because the mother asserted bias. The mother’s pursuit of the appeals from the interim parenting orders was futile, given the trial was listed to commence in October 2020. The proximity of the trial was also why the father did nothing to try and enforce the existing interim orders.
The trial ensued before the primary judge in October 2020 and the appealed orders were made on 26 November 2020.
On 9 December 2020, the primary judge stayed the appealed orders until resolution of the appeal.
GROUNDS OF APPEAL
In her Amended Notice of Appeal filed 9 February 2021, the mother sets out five stated grounds of appeal, although some grounds of appeal are clearly submissions and rhetorical questions. The grounds of appeal, adopting the mother’s terminology are, Err at Law, Bias, Mistake of Facts, Discretion/Weight and Plainly Wrong.
Ground 2 - Bias
We will firstly address the issue of bias and then each of the subsequent grounds of appeal. This is because a finding of either apprehended or real bias must result in a retrial, irrespective of the outcome of the findings on other issues. In Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577, Kirby and Crennan JJ said at [117]:
117.… An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues…
Neither this ground of appeal nor the written submissions made in support of it betrayed any awareness of the distinction between actual and apprehended bias. Given that claims of judicial bias should usually be confined to only apprehended bias (R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258) and because the mother’s written submissions did not expressly engage principles relating to actual bias (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72], [127] and [176]), despite her indiscriminate implications of actual bias in oral submissions, we will proceed to determine this ground on the basis that it contends for only an apprehension of the primary judge’s bias.
It is clear from the mother’s submissions that her contention of bias (in whatever form it takes) springs from two sources: first, from the comments of the primary judge made during the hearing, and secondly, comments in the reasons for judgment.
The relevant test to be applied to determine apprehended bias is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6], namely whether a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” to be decided.
At [8] of Ebner, in the context of an application to disqualify a judge on the grounds of apprehended bias, an applicant must first identify the precise conduct it is alleged might lead the judge to decide the case other than on its legal and factual merits and secondly, articulate the connection between the identified conduct and the reasonably apprehended deviation from the duty of impartiality.
In Johnson v Johnson (2000) 201 CLR 488 (“Johnson”), the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) stated at [12]:
12.… At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(Citation omitted)
The mother complains that from the start of the mother’s cross-examination, as is evidenced by the transcripts, the primary judge demonstrated that he did not believe the mother’s evidence. She does not refer to the particular paragraphs of the transcript, but rather to her cross-examination about when she enrolled the child in school and what she describes as the primary judge’s sarcastic remark and his lack of impartiality which is to be found in his reasoning, which infected his final orders. She fails to identify how the reasoning was so tainted.
It is permissible for a trial judge to engage with counsel during a trial and to comment about evidence. In Johnson, the plurality said at [13]:
13.… Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
Similarly, it is appropriate for a judge to ask questions of a witness during cross-examination, as occurred during the trial (Antoun v R (2006) 224 ALR 51).
A reading of the transcript of 27 October 2020 leads to the conclusion that the primary judge certainly engaged in robust discussion about the mother’s failure to comply with previous orders to return the child to Victoria, his pleas to the mother to return the child without the necessity for a recovery order and his scepticism about the mother’s professed change of attitude. The proposition that the mother had failed to comply with previous court orders and had failed to return the child to Victoria, so that the child could not spend time with the father, was not controversial and is clearly supported by the evidence. In the context of the mother’s persistent failure to comply with court orders and the necessity for a recovery order to be issued, it is not surprising that the primary judge expressed his scepticism and frustration with the mother’s position that she would in the future comply with orders, which was a central issue of the proceeding. That is particularly so, when the mother had previously told a judge of this Court that she would comply with orders, only to return to Western Australia a couple of days after that statement (at [73]–[74]).
Notably, after the exchanges between the primary judge and the mother, there was no application by the mother’s counsel during the course of the trial for the primary judge to recuse himself on the basis of actual or apprehended bias. The mother faces significant difficulty raising this issue on appeal.
Dawson J in Vakauta v Kelly (1989) 167 CLR 568, at 579 said:
In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it.
The mother was clearly aware of her rights to make an application for the primary judge to recuse himself on the basis of actual or apprehended bias, as she had done precisely that in the former appeal (Naparus & Frankham (No.2)). We are of the view that she has waived her right to objection in this regard.
The mother’s complaints about bias in the reasons of the primary judge are not clearly articulated, but appear to be her dissatisfaction with unfavourable findings at [75], [120], [127], [157], [170] and [172] about her credibility, behaviour, attitude towards parenting, her capacity to facilitate a face-to-face relationship between the father and the child and the impracticality of the father moving to Perth.
The mother’s complaints pertain to the conclusions and impressions of the primary judge, after he observed the mother giving evidence and being subjected to cross-examination. Whilst the language is no doubt highly unpalatable to the mother, the primary judge is entitled to assess the credibility of each witness in reaching his determination. Subsequent to his description of the mother’s attitude, the primary judge (at [127]) refers to the facts which informed his description of her attitude, namely that she had removed the child from Victoria to Western Australia on two occasions, contrary to court orders, and on the second occasion after promising a superior court judge that she would not do so, and thereafter attempted to unconvincingly rationalise her actions.
The doubts expressed by the primary judge that there would be a consistent face-to-face relationship between the child and the father, if the child lived in Perth with the mother, were in the context of the primary judge evaluating the competing options for the future living arrangements of the child, as were the comments (at [172]) about the unlikely prospect of the father moving to Perth and the mother’s accommodation in Victoria. It is a task required of a trial judge to identify, contrast and compare the differing proposals or options, prior to reaching a determination about the living arrangements, which are in the best interest of the child.
The mother has failed to identify or articulate the logical connection between the matters identified by her and the deviation from deciding the case on its merits. It is not sufficient that she dislikes or disagrees with the findings and statements of the primary judge. None of her complaints, either individually or collectively, satisfy the relevant test, as stated in Ebner. The statements identified by her in the reasons for judgment could not be considered as giving rise to actual or apprehended bias on the part of the primary judge.
This ground of appeal must fail.
We will now consider the remaining grounds of appeal.
Ground 1 - Err at Law
In her Amended Notice of Appeal the mother contended three discrete legal errors:
(a)making an order for equal shared parental responsibility for the child without following the “prescribed considerations”;
(b)failing to adequately consider the practicalities of the parties’ proposals; and
(c)the orders for the child to spend time with the father are unsafe because of the amount of travel required.
In relation to the order for equal shared parental responsibility, the mother submitted that such an order was contrary to the findings of the primary judge about the nature of the relationship between the parents (at [150]), family violence (at [159]), the lack of improvement in the cooperation, trust and communication between the parents (at [160]), the legal pathway, the parties’ own proposals and the recommendations of the family consultant.
As to the legal pathway submission, it appears that the mother contends that the primary judge’s relevant findings when applied under s 61DA(4) of the Act ought to have been sufficient grounds to rebut the presumption of equal shared parental responsibility.
The primary judge (at [115]–[120]) embarked on an analysis of the allegations of family violence made by both parents against the other. At [118], the primary judge accepted that there was a fairly high degree of tension, conflict and argument in the parents’ short relationship, but it was effectively situational upon the relationship and its ending.
Here, the primary judge found past family violence established, though not in as serious a form as the mother alleged (at [83], [115]–[117] and [159]). Nonetheless, the finding rendered the presumption of equal shared parental responsibility inapplicable under s 61DA(2) and so s 61DA(4) had no work to do. The primary judge could still make an order for equal shared parental responsibility, as he did, but first had to find such an order would be in the child’s best interests, as he did (at [175]).
As can be seen from the reasons (at [175]), the primary judge considered the opinions of the family consultant and the ICL, that the parent with whom the child lives should exercise sole parental responsibility. His Honour disagreed with that position and clearly stated the reasons why he considered an order for equal shared parental responsibility would be in the child’s best interests. Those reasons included that both parents were intelligent and child focused, albeit with a propensity for disagreement and that children can benefit from a breadth of viewpoint. His Honour further identified that the challenge for the parents was to contribute, negotiate and compromise and that an order for sole parental responsibility vested in one parent would be far more likely to lead to further conflict and probable litigation. The primary judge clearly explained why he did not accept the recommendations of the family consultant and the ICL pertaining to equal shared parental responsibility. In any event, a trial judge is not bound by the proposals of the parties or by the evidence of a witness (U v U (2002) 211 CLR 238 at [80]).
The mother complains that the primary judge failed to adequately analyse and compare the competing proposals of the parties.
As can be seen from an examination of the reasons, the primary judge embarked on a detailed comparison and analysis of the competing proposals, including the advantages and disadvantage of each proposal, particularly from the child’s perspective.
The primary judge (at [163]) analysed the positive aspects of the mother’s proposal to relocate the child to Western Australia. He also (at [164]) analysed the negative aspects of the mother’s proposal, which he considered were positives of the father’s proposal that the child not relocate to Perth. He continued to analyse (at [165]) the further option for the child to remain living with the mother in Victoria and (at [171]) raised the further option of the father relocating to Perth, although that was not explored during the trial.
After embarking on that analysis (at [174]), the primary judge clearly reached his conclusion on a finely balanced consideration of all of the relevant factors. It may have been that another judge might have reached a different conclusion on the same evidence, but without more, that does not permit appellate intervention.
As to the mother’s complaint about travel, in the grounds of appeal, the mother refers to MRR v GR, which presumably is a reference to MRR & GR (2010) 240 CLR 461 (“MRR & GR”). She does not explain the relevance of this authority other than in her Summary of Argument, stating that time spent needs to be practical and referring to the five hour travel distance between the father’s home and City B, where her Victorian accommodation is located.
The primary judge (at [109]) refers to MRR & GR in his consideration of the dual requirements of s 65DAA, that parenting orders be both in the child’s best interests and reasonably practicable. The orders made by the primary judge for the child to live with the mother in Victoria, should she choose to return, reflected the geographical distance between the parties, which had been in place for a number of years prior to the mother’s departure for Western Australia in April 2020.
The primary judge was cognisant of that distance between the respective parents and Order 2 of the orders, restrains the mother from living further from the father’s home, than the distance between the father’s current home in Town F and City B, in the event she chose to return to Victoria. Although the orders require extended travel between the parties’ respective homes, that has always been the situation for this family. In our view, the geographical distance between the parties’ homes in Victoria did not oblige the primary judge to find that orders requiring the child to spend time with the father on weekends and in school holidays would not be reasonably practicable to implement.
This ground of appeal must fail.
Ground 3 - Mistake of Facts
The mistaken facts identified by the mother in the reasons for judgment related to the comments of the primary judge (at [5]) that the father had not previously sought for the child to live primarily with him and the circumstances of her departure from Victoria to Perth.
At [5] of the reasons, the primary judge said:
5.Historically, and as will become apparent from the background and chronology to be included in these reasons, the father has not sought primary care of [the child]. He has been candid in articulating a preference that his time for [the child] occur on weekends and school holidays’ thereby delegating primary care to the mother. His position has changed after the mother’s unilateral removal of [the child] from Victoria to Perth on two separate occasions in April and July 2020. At the commencement of the trial the father agreed and adopted the position then taken by the Independent Children's Lawyer …
The mother seized on the phrase “the father has not sought primary care of [the child]” in isolation from the remainder of the reasons, asserting the observation was wrong because one of the father’s proposals at trial was for the child to live primarily with him. She furthermore submitted the father had wanted the child’s primary residence “from the beginning of the proceedings in 2016”.
That is plainly incorrect. Final orders were made in September 2016, with the father’s consent, providing for the child to live with the mother. The mother commenced fresh proceedings in November 2017, to which the father responded in January 2018. He did not then seek orders for the child to live with him. In August 2018, the father told the Family Consultant he wanted the child to remain living with the mother (Family Report dated 6 September 2018, paragraph 17). It was not until May 2020 that the father changed his mind about the child’s primary residence, because the mother’s recent conduct led to his loss of confidence that she could be trusted to support the child’s relationship with him, which reasoning he discussed with the Family Consultant (Family Report dated 25 May 2020, paragraph 10).
The phrase used by the primary judge at [5] is ambiguous when read in isolation. The mother read it to mean the father has not ever sought primary care of the child, but, when read with the remainder of the reasons, it was clearly meant to convey how the father had not sought primary care of the child in the past. The reasons went on to explain the conditional circumstances in which the father did seek the child’s primary care by the time of trial, having previously indicated his preference for the child to continue living with the mother if he could be confident the mother would support the child’s relationship with him (at [5], [7]–[8], [17], [83] and [108]). There was no mistake.
As to the mother’s complaint that the primary judge was mistaken about the facts surrounding the mother’s departure from Victoria, she failed to identify in either the reasons for judgment or the transcript, how the primary judge was mistaken about the facts of her departure from Victoria. Neither does she identify how that purported mistake has infected the reasoning of the primary judge.
The transcript of the cross-examination of the mother and exchanges between the primary judge and the mother which occurred on the second day of the trial, establishes that the mother does not resile from the fact that she removed the child from Victoria to Western Australia contrary to court orders.
This ground must fail.
Ground 4 - Discretionary error
The mother’s complaint under this ground is the failure of the primary judge to accord significant weight to her mental health, the assessment of the consultant psychiatrist, Dr Q (at [93]) of the mother’s mental health issues, and the consequential impact on her mental health, if the mother were to return to live in City B.
The mother seeks to challenge a discretionary judgment with all the difficulties that entails.
The applicable principles for appeals from discretionary decisions are stated by the majority of the High Court in House v The King (1936) 55 CLR 499 at 504–505, namely:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if, upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In relation to appeals which allege that a primary judge exercising discretion failed to give appropriate weight to particular matters, in Gronow v Gronow (1979) 144 CLR 513 at 519–520, Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
At [93] of the reasons, the primary judge sets out the mother’s history, as related to Dr Q, which he said is consistent with her affidavit material. At [94]–[97] of the reasons, the primary judge recites in detail paragraphs of Dr Q’s assessment pertaining to the mother’s diagnosis and prognosis, which is that her mental health was reasonably stable but there was “a risk of relapse of anxiety and dysthymia” if she was stressed by the litigation and contact with the paternal family. It is evident from those paragraphs of the reasons that the primary judge familiarised himself with Dr Q’s assessment and relied on the psychiatric assessment in reaching his ultimate conclusion.
In his conclusions (at [157]), the primary judge acknowledges that the mother’s happiness and mental health would be enhanced if she resided in Perth. However, the primary judge also found that the mother “is a tough and resilient personality and that in all likelihood she would cope with being in Victoria.”
At [161], the primary judge recognises that both parents have suffered historical diagnoses of mental health issues but both receive treatment and medication, which will attend to these concerns.
In his conclusion at [174], the primary judge again takes into account the mother’s mental health and said:
174.Consequently, and on a finely balanced consideration of all of the relevant factors against a background of [the child’s] best interests, I am persuaded that those interests are best attended by [the child] living primarily with the mother but to do so in Victoria. The father’s time with [the child] will by geographical necessity be limited to weekends and school holidays where the parents should share equally in the costs and efforts of travel. I stress that this determination is made on balance and taking into account all the factors including the mother’s historical mental health issues…
It is evident from the reasons that the primary judge has given weight to the issue of the mother’s mental health. Having expressly taken into account and given weight to considerations about the state of the mother’s mental health, how the weight attributed to them by the primary judge was insufficient was not explained by the mother. In any event, the degree of weight is quintessentially a matter for the primary judge.
The mother further complains that the primary judge failed to accord proper weight to the practical circumstances facing the mother if she returned to City B and the consequential harm which would be visited on the child by living homeless. It is apparent from the reasons for judgment, and in particular at [172], that the primary judge acknowledged that the accommodation available to the mother was far from ideal and was in a less than reputable area and thus considered the mother’s submissions in that regard.
In the discussion of findings and conclusion, in the reasons for judgment, the primary judge is cognisant of and describes (at [165]) the possible consequences of requiring the mother to remain in Victoria and the subsequent impact on her demeanour, happiness and possibly her mental health. He considers that her personality suggests that requiring her to remain in Victoria, albeit as primary carer for the child, will accentuate her anger and bitterness towards the father and this Court. The detailed reference to the psychiatric assessment of the mother conducted by Dr Q, and the consideration of the impact on her of requiring her to remain in Victoria and the possible separation of the child from her mother, her primary carer, were clearly significant factors which weighed on the mind of the primary judge in reaching his determination.
This ground must fail.
Ground 5 - Plainly wrong
In her Summary of Argument the mother refers to CDJ v VAJ, which presumably is a reference to CDJ v VAJ (1998) 197 CLR 172, although she does not explain the relevance of that authority.
Both the mother’s grounds of appeal and her Summary of Argument pertaining to this ground are a litany of complaints about the recovery order made by the primary judge in interim proceedings in July 2020. She asserts the recovery order was made for the purpose of compelling her return to Victoria with the child in the middle of the COVID-19 pandemic, in circumstances where she asserts that she faced potential homelessness. It should be remembered that the orders made in July 2020 were not the subject of this appeal.
She also raises a number of rhetorical questions about the disposition of her appeals against earlier orders made by judges in the Federal Circuit Court and asserts that the primary judge made it clear in the transcript of the proceedings subject to appeal, that everything that happened was the mother’s fault.
Her final submission is that the final orders of the primary judge are a reflection of what he had prejudged to be in the child’s best interests and are not only plainly wrong but are unjust, biased and contrary to law [sic] principles.
This asserted ground of appeal does not constitute a valid ground of appeal, but rather is a statement of the mother’s view that the orders of the primary judge do not accord with her point of view. The mother has failed to identify any error or argument which supports the assertion that the primary judge was plainly wrong.
This ground of appeal must fail.
Conclusion
Having found no merit in any of the grounds of appeal, the Amended Notice of Appeal filed 9 February 2021 will be dismissed.
COSTS
The remaining issue for determination is whether or not there should be an order for costs.
Neither the mother nor the ICL sought orders for their costs of the appeal.
The father sought that the mother pay his costs of the appeal, on a party/party basis, which are calculated at $3,820.00, according to the Schedule of Costs filed by his solicitor. The mother opposed any order for costs.
Counsel for the father submitted an order for costs against the mother was warranted, if the appeal were dismissed, notwithstanding that both the mother and the father were unemployed and were of modest financial means, primarily for three reasons. First, because of the manner in which the mother had conducted the appeal, secondly, because the mother would be wholly unsuccessful, and thirdly, because during the trial the mother had offered to pay for the father to fly to Perth to spend time with the child, which was inconsistent with her asserted financial situation.
Counsel for the father appropriately conceded firstly, that the father did not file a Schedule of Costs until 21 June 2021, in breach of procedural orders made by the Appeal Registrar on 22 March 2021, providing for the filing of a Schedule of Costs seven days prior to the first day of the sittings in which the appeal was listed for hearing, and secondly, his breach militated against a costs order as sought.
The mother submitted that an order for costs as sought by the father would impose an onerous financial burden on her and that her previous offer to pay for a flight was substantially less than the amount of costs sought. The proposal to pay for a flight was made in the context of her anticipation of obtaining housing and employment in Perth. The ICL did not seek to make any submissions about the costs claimed by the father.
Section 117(1) of the Act, states, subject to the provisions of s 117(2), the general rule in proceedings in this Court, is that each party to proceedings, shall each bear his or her own costs. We are not persuaded, as between two impecunious litigants, and notwithstanding the lack of merit in the mother’s appeal, that the usual rule established by s 117, that each party should bear their own costs, is displaced. The father’s application for costs is dismissed.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Tree & Williams. Associate:
Dated: 17 August 2021
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