NERANTSI & KALEKAS

[2017] FamCAFC 235

FAMILY COURT OF AUSTRALIA

NERANTSI & KALEKAS [2017] FamCAFC 235

FAMILY LAW – AMENDED NOTICE OF APPEAL – PARENTING – Appeal against interim parenting orders – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks his costs – Where there are circumstances which justify an order for costs being made – Where the appeal has been wholly unsuccessful – Where impecuniosity does not prevent an order for costs being made – Costs ordered in favour of the respondent.

Family Law Act 1975 (Cth) s 117

D & D (Costs) (No. 2) (2010) FLC 93-435
Hall and Hall (1979) FLC 90-713

APPELLANT: Ms Nerantsi

RESPONDENT: Mr Kalekas

FILE NUMBER: MLC 6126 of 2016

APPEAL NUMBER: SOA 98 of 2016

DATE DELIVERED: 10 November 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland J

HEARING DATE: 6 April 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 4 November 2016

LOWER COURT MNC: [2016] FCCA 2817

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Smith

SOLICITOR FOR THE APPELLANT: Carew Counsel

COUNSEL FOR THE RESPONDENT: Mr Nehmy

SOLICITOR FOR THE RESPONDENT: Barbayannis Lawyers

Orders

1. The appeal be dismissed.

2. The appellant mother pay the respondent father’s costs of and incidental to the appeal with such costs to be assessed in default of agreement.

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 Nerantsi & Kalekas 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 MELBOURNE

Appeal Number: SOA 98 of 2016
File Number: MLC 6126 of 2016

Ms Nerantsi

Appellant

And

Mr Kalekas

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 23 March 2017 Ms Nerantsi (“the mother”) filed an Amended Notice of Appeal against interim parenting orders made on 19 October 2016 by Judge Riley. The appeal is opposed by Mr Kalekas (“the father”).

2. The orders appealed provide for the child born in 2016, to spend time with the father on three days each week with the time of each occasion commencing with two hours and increasing to four hours by 21 July 2017. The orders also provided for the handover after 20 January 2017 to take place at the mother’s home, “provided that the mother’s brother, …, is not present”.

Background

1. The parties were both 42 years of age at the time of the hearing before the primary judge.

2. The parties never cohabitated and they separated before the child was born. They were in a relationship for approximately 18 months.

3. From shortly after the child’s birth until August 2016, the father spent approximately one hour each week with him at the mother’s home.

4. On 17 August 2016 orders were made by consent that the child live with the mother and spend one hour with the father on each Monday, Wednesday and Friday, based at the mother’s home. Further, the orders provided for the father to have the child for seven hours on one Monday for the purpose of the father “engaging in a tailored parenting program with [the child]” on the basis that the mother could be present, and for a family report to be prepared.

5. A family report dated 15 October 2016 was provided to the court, and the report writer recommended that initially the child spend one and a half hours, three times a week with the father, from 20 January 2017 that time increase to two hours unsupervised, and from 20 July 2017 it become two and a half hours unsupervised. In addition, one of the sessions each week should occur on a Saturday.

The appeal

Ground 1

In finding that it was important for the child to start spending time with his father without his mother present so that he properly develops an ‘attachment’ to his father, and that the child’s process of developing an ‘attachment’ to his father was at risk of being ‘disrupted or adversely affected in some way’, the learned judge at first instance:

(a)      Made findings which were not supported by the evidence; and/or

(b)      Failed to afford the appellant procedural fairness in taking into account extraneous material without affording the appellant the opportunity to be heard; and/or

(c)      Took judicial notice of matters to which she was not entitled.

1. The genesis of this ground is what her Honour said at [50], namely:

   I also consider that it is in [the child’s] best interests that he spend time with his father not in the presence of his mother.  The benefit of that is that [the child] can actually develop a relationship with his father where he does need to depend on his father to care for him and not constantly seek his mother’s support.  [The child] is now at a critical age in terms of his attachment. It is important for him to start spending time with his father without his mother there so that he does properly develop an attachment to his father.  If we leave it very much longer there is a risk that that process will be disrupted or adversely affected in some way.

2. The mother has seized on that as a reference to what is sometimes known in the world of behavioural science as “attachment theory”, and has correctly pointed out that there was no expert evidence before her Honour as to that theory.

3. However, the issue is whether her Honour was using the word “attachment” as a term of art, or simply as a description of what her Honour made of the evidence before her. In my view it was the latter, and there is no merit in this ground of appeal.

4. I consider that there was evidence before her Honour sufficient to ground the finding in [50], and it is identified by the father’s counsel in his written summary of argument filed on 4 April 2017, as follows:

   4.1The evidence before her Honour from the [mother] herself, was that:

   4.1.1Since the interim consent orders of 17 August 2016, the father had been attending her home on each Monday, Wednesday and Friday from 11.30am until 12.30pm;

   4.1.2That while “[The child’s] time with his father … [had] been proceedings (sic) well” such time had involved incidents of conflict between the parents where she asserted that the father behaved, inter alia, “in an intimidating manner”;

   4.1.3That continuing through the Court system was bound to escalate the hostility between the parties and that the [mother] was concerned that escalated hostility between the parties would affect their interactions and consequently negatively affect the child. The [mother] deposes as follows, “I also told [the father] that the escalated anger and hostility would likely negatively affect how we interact in the future and would affect [the child]. I told [the father] that I did not want [the child] to suffer and have problems because of us.”

   4.1.4Further, the [mother’s] evidence was that the father continued “to rely upon me to change and care for [the child] during their time together” and that the father had not been able to successfully settle the child. The [mother] describes the child as crying out and reaching for her during the father’s time with the child.

   4.2The father’s evidence before her Honour was that he had “conducted a great deal of research regarding secure attachment of infants with their parents. It is very important that I have regular and meaningful contact with … [the child] throughout the first few years of his life. This will enable him and I to have a secure and stable bond.” No issue was taken with this evidence by the mother.

   4.3      Additionally, it was the evidence of [the family report writer], that:

   4.3.1The father had “attempted to inform himself as to the developmental needs of babies and was aware of the significance of frequency of contact if attachment is to occur … [t]he limited time he has available does not provide a great deal of opportunity for engaging in all of the routines of the child.”; and

   4.3.2That “[b]oth parents report that tensions are coming to the fore when they are together and … [the father] spends time with the child … it is essential, from the child’s point of view, that such tensions be contained and not be allowed to escalate further. It is not in the child’s interest that he be exposed to any displays of open conflict as it is likely to seriously compromise (emphasis added) the relationship-building process that has begun.”

   5.In addition to the matters outlined above, the evidence from [the family report writer] was that the current arrangements for the child to spend time with the father were insufficient for the relationship between father and child to properly develop and progress. [The family report writer] said at [64] that:

   “When it comes to a child/parent relationship one cannot have quality without quantity. In other words, children need to spend extended periods of time with a parent so as to do all the mundane day-today (sic) tasks which help to nurture and develop close and intimate relationships. The arrangements currently in place are not conducive to this. [The father’s] time with the child is presently limited. He needs to spend more time with him if the relationship is to properly develop and progress. Three one hour blocks of time per week are insufficient for this to occur.”

   (Footnotes omitted)

5. Plainly, that evidence illustrated the need for the child to develop his relationship with the father, and that if it was not addressed at the time of the hearing there was a risk that that development would be adversely affected. Accordingly, on that evidence, it was open to her Honour to make the finding that she did in [50].

6. I observe that it is not to the point to refer, as the mother does, to what the family report writer said at [84] and [86] when favouring “the implementation of [a] slow and cautious approach” in order to “extend [the child’s] opportunity to further consolidate his attachment with [the father]”. Those statements were made at a time when the father was seeking not only far more time than he did at trial, but a far more rapid progression of increases to that time (see [32] of the family report), and the family report writer was expressing the opinion that moving at a slower pace would benefit the development of the relationship between the father and the child.

7. As can be seen from paragraph (b) of Ground 1, the complaint is also that the primary judge “[f]ailed to afford the appellant procedural fairness”. However, that complaint has no merit, and is in fact misconceived. It proceeds on the basis that “her Honour took into account extraneous material such as academic writings or expert evidence not on the court file,” and failed to “provide the parties with the opportunity to read and make submissions on such material”.

8. That would be a legitimate complaint if that was what happened, but to repeat, in my view, her Honour was not using the word “attachment” as a term of art, and there is no evidence that she took into account any extraneous material.

9. The same answer applies to paragraph (c) of Ground 1. In other words, there is no evidence that her Honour took “judicial notice” of “attachment theory” or related issues, rather her Honour made her findings on the evidence before her in the context of “attachment” being a pseudonym for “relationship”.

Ground 2

In making parenting orders providing for the child to spend time with the father as her Honour did, the learned judge at first instance failed to consider, or failed to adequately consider, or gave inadequate weight to, the recommendations of the family consultant.

1. The first comment to be made in response to this complaint is to refer to what the Full Court said in Hall and Hall (1979) FLC 90-713, at page 78,819 as to the weight to be given to a family report. The Full Court said this:

   (a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.

   (b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.

   (c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.

   (d)Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.

   (e)Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child’s welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.

   (f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court’s investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.

   …

2. Secondly, when analysed, it is apparent that although her Honour did not accept all of the recommendations of the family report writer, her findings were consistent with, and gave proper consideration to, the evidence of the family report writer.

3. As to the duration of the time the child should spend with the father, there was no doubt that it needed to be increased from the three one hour time blocks that were in place (see [64] of the family report). The preference of the family report writer (see [66] of the family report) was that the time initially be increased to one and a half hours and then to two hours, and finally to two and a half hours. However, her Honour determined that on the totality of the evidence, including that of the family report writer, the time should commence at two hours, then move to three hours, and then increase to four hours.

4. At [49] her Honour explained why she was providing for more time than the family report writer provided, namely:

   I appreciate that [the family report writer] is saying that it is necessary to proceed slowly.  However, these things are all relative.  What is sufficiently slow and cautious is a topic on which reasonable minds may differ.  It seems to me that, in a situation where both parents accept that by the time [the child] is about two, he ought to be spending overnight time with his father, it would be necessary to increase time gradually, starting now, and perhaps a bit more quickly than [the family report writer] recommended.

5. It should also be remembered that although these times were in accordance with those ultimately proposed by the father, that was not the case when the family report writer prepared his report. As referred to above, the father was seeking not only more time, but a far more rapid progression of increases to that time (see [32] of the family report), and the family report writer was of the view that moving at a slower pace was “likely to extend [the child’s] opportunity to further consolidate his attachment with [the father] before moving to more challenging [and extended] arrangements” (see [84] of the family report).

6. Plainly, her Honour was accepting of that opinion.

7. In concluding as her Honour did, her Honour clearly relied on the observations of the family report writer as to the positive interactions between the child and the father recorded at [50] of the family report.

8. I also observe that her Honour’s orders provided for there to be time spent on each Saturday in accordance with the recommendation of the family report writer (see [68] of the family report).

9. As to who should be present during the child’s time with the father, her Honour’s order that the mother not be present was consistent with the evidence of the family report writer that exposing the child to any displays of conflict is likely to seriously compromise the development of the relationship between the child and the father.

10. As to the presence of the mother’s brother, there was a concession by the mother’s counsel that although the allegations relating to the conflict between the father and the brother were in dispute, if the primary judge was prepared to order that changeovers take place at the mother’s house, rather than the library where the father wanted, it could be on the basis that the brother not be present (Transcript 19 October 2016, page 50 lines 8 – 14). Thus, there can be no error here by the primary judge.

11. In conclusion, it is instructive to note the submission by the mother’s own senior counsel to her Honour that the recommendations of the family report writer were “no more than recommendations, your Honour” (Transcript 19 October 2016, page 46 line 35).

12. There is no merit in this ground of appeal.

Ground 3

In making parenting orders providing for the child to spend time with the father as her Honour did, the learned judge at first instance made orders that were plainly wrong.

1. There are three matters raised by the mother in her written summary of argument in support of this ground of appeal.

2. First, it is said that her Honour “incorrectly identified the nature of the child’s relationship with his mother”. Paragraph 28 of her Honour’s reasons are pointed to, where her Honour observed that “[the child] apparently has a very solid relationship with his mother and the maternal side of his family”. However, it is suggested that this was contrary to the evidence of the family report writer who said that the child first needs to “become securely attached to [the mother] so as to be able to progress his relationship with [the father]”.

3. I do not agree that these statements are inconsistent. No assertions were made below by either party that the mother had anything other than a good relationship with the child, and it was open to her Honour to make the findings that she did at [28]. The statement by the family report writer was not about the relationship between the child and the mother, but about the progress of the child’s relationship with the father.

4. Secondly, in a similar vein, it is said that what her Honour found at [31] was contrary to the evidence of the family report writer at [53] and [86] of the report.

5. At [31] her Honour said this:

   It is not proposed that there be any substantial changes in [the child’s] circumstances, or any separation from anyone for more than a few hours.  It is unlikely that [the child] spending a few hours away from his mother will have any deleterious effect on him and will probably have a beneficial effect on him insofar as it promotes his relationship with his father.

1. At [53] of the family report, the report writer wondered whether “the distractions and other uncertainties about the name of the child has at some level hindered/undermined the process of [the mother’s] attachment to the child”, and at [86] of the report the family report writer states that:

   … the child stands to benefit from additional opportunities to consolidate his relationship with both [the father] and [the mother] …

2. Unfortunately though, I fail to see what the issue is; I can see no inconsistency between what her Honour said and what the family report writer said.

3. Thirdly, the mother says that it is “noteworthy that her Honour did not identify any agreed or uncontested facts”. However, nothing more was put than that submission, and in particular it is not explained how that renders her Honour’s decision “plainly wrong”.

4. This ground also has no merit.

Ground 4

The learned judge at first instance provided inadequate reasons.

1. There are two areas identified where it is said that her Honour’s reasons were inadequate, namely:

   42.1The learned judge at first instance failed to identify the basis upon which her Honour found that it was important that the child start spending time with the father without the mother ‘so that he does properly develop an attachment to his father’, and that there was a ‘risk that that process will be disrupted or adversely affected in some way’.

   42.2The learned judge at first instance failed to provide adequate reasons as to the weight to be afforded to the family report.

2. Certainly, her Honour’s reasons appear lengthy, but when analysed, that length is because of the extensive recital of the contents of the family report (11 pages), of previous orders (three pages), of the proposals of the parties (two pages), and of the relevant legislation (six pages), and not because of any fulsome exploration of the issues, and a detailed reasoning process. Nevertheless, there is just enough there to satisfy the requirement for reasons to be given.

3. As to the first issue, that of course was discussed above in the context of Ground 1, and arises in [50].

4. To repeat, the findings therein contained were clearly based on the evidence that was before her Honour, including from the mother herself, and of course from the family report writer. Particularly telling was what the family report writer said at [64] and [42] of the report, both of which are set out above in [11].

5. Thus, her Honour’s reasoning is exposed for all to see.

6. As to the second issue, all that needs to be said is that her Honour quoted extensively from the report of the family report writer, and she accepted some of his recommendations, and she departed from others. When her Honour departed, she explained the reasons for doing so. For example, I refer to [49] and [50] of her Honour’s reasons, both of which I have set out above.

7. Perplexingly, in her written summary of argument (at [46]), the mother complains that her Honour “does not address … whether the family consultant is appropriately qualified, whether the expert’s opinion is based on observed facts, whether the expert demonstrates the intellectual basis for the conclusions reached …”. However, there was no suggestion that the family report writer was not appropriately qualified, or that his opinion was not based on “observed facts”, or that he failed to demonstrate “the intellectual basis for the conclusion reached”.

8. There is also no merit in this ground of appeal.

Conclusion

1. There being no merit in any of the grounds of appeal the appeal must be dismissed.

Costs

1. At the conclusion of the hearing I sought submissions from the parties as to the question of costs depending on the result of the appeal.

2. In the event that the appeal was dismissed, the father sought an order for costs. That application was opposed by the mother, and she said that there should be no order as to costs.

3. Section 117 of the Family Law Act 1975 (Cth) governs the question of costs, and relevantly provides in (2) that an order for costs can be made if there are circumstances which justify that. Subsection (2A) sets out the relevant factors to be taken into account in determining whether there should be an order for costs or not, and what that order should be.

4. The father relies primarily on s 117(2A)(e) in support of the application, namely that the appeal has been wholly unsuccessful. On the other hand, the mother relies on her poor financial circumstances (s 117 (2A)(a)), and the fact that she has the ongoing care of the child, in support of her position.

5. Plainly, there are circumstances here that justify an order for costs being made, namely the lack of success of the appeal, and the only issue is whether the respective financial circumstances of the parties prevents an order being made.

6. The mother receives a single parent pension, and she has minimal assets, whereas the father is working and earns approximately $33,000 per year.

7. It is not the case that impecuniosity prevents an order for costs being made where there are circumstances otherwise that justify it (D & D (Costs) (No. 2) (2010) FLC 93-435). Here the father has been put to the unnecessary expense of opposing an appeal which has been found to lack merit, and he should not have to bear all of the costs incurred. Accordingly, I propose to make an order for party/party costs in his favour.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 November 2017.

Associate: 

Date:  10 November 2017