Pandya & Pandya
[2023] FedCFamC1A 85
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pandya & Pandya [2023] FedCFamC1A 85
Appeal from: Pandya & Pandya [2023] FCWAM 25 Appeal number(s): NAA 19 of 2023 File number(s): 4863 of 2022 Judgment of: TREE J Date of judgment: 1 June 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from an interim order permitting the father to change the child’s school – Procedural fairness – Whether the primary magistrate failed to afford the mother procedural fairness – Where the mother failed to file any material – Where any opportunity to put on further material would not have been availed of – Where the mother was afforded ample opportunity to make submissions – Whether the primary magistrate failed to give proper consideration to the child’s best interests – Where the currency of the judgment makes it unlikely that material was overlooked – Weight challenge – Where the giving of weight to matters of fact is quintessentially a matter for the primary magistrate – Where no ground of appeal succeeds – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Maviglia v Maviglia [1999] NSWCA 188
Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 67 Date of hearing: 29 May 2023 Place: Perth Counsel for the Appellant: Mr Beckerling Solicitor for the Appellant: D’Angelo Legal Counsel for the Respondent: Ms Andrews Solicitor for the Respondent: Joss Legal Counsel for the Independent Children's Lawyer: Mr Worth Solicitor for the Independent Children's Lawyer: Maude Family Lawyers Pty Ltd ORDERS
NAA 19 of 2023
4863 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PANDYA
Appellant
AND: MR PANDYA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
TREE J
DATE OF ORDER:
1 June 2023
THE COURT ORDERS THAT:
1.The Re-Amended Notice of Appeal filed 3 April 2023 is dismissed.
2.The appellant is to pay the respondent’s costs in the sum of $5,000 within 28 days.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pandya & Pandya has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 9 January 2023, the primary magistrate made a number of interim parenting orders relating to the parties’ seven year old child, X (“the child”). One of those orders (Order 10) permitted Mr Pandya (“the father”) to enrol the child into the local government primary school in his catchment area.
By Re-Amended Notice of Appeal filed 3 April 2023, Ms Pandya (“the mother”) appeals from that order.
For the reasons which follow, that appeal fails.
BACKGROUND
The parents commenced cohabitation in 2013, married in 2014 and separated in November 2021. As well as the child the parties had together, the mother has an older child from a previous relationship who is currently 17 years of age.
In or about March 2022, the mother ceased the child spending time with the father. In or about May 2022, at the insistence of the mother, the father commenced spending supervised time with the child.
On 22 June 2022, the father commenced these proceedings.
On 6 December 2022, the matter was listed for interim hearing before the primary magistrate. Initially the mother did not appear, but after some time joined by telephone for the balance of the hearing. Orders were then made permitting the father to spend unsupervised time with the child. However, the mother thereafter failed to comply with those orders, and failed to attend two subsequent hearings before the primary magistrate.
This resulted in the primary magistrate making orders on 22 December 2022 for recovery of the child, and for him to live with the father. After unsuccessful attempts were made to locate the child, the mother was arrested and brought to Court on 23 December 2022, however since she continued to refuse to disclose the child’s whereabouts, she remained incarcerated. Police thereafter executed the recovery order and placed the child into the father’s care.
On 28 December 2022, after the child had been recovered, the mother was released from custody. Later that day, the matter was listed again before the primary magistrate with both parents in attendance, and orders were made, inter alia, for the mother to file her court documents and the matter adjourned to 9 January 2023.
On 9 January 2023, the primary magistrate made a number of interim parenting orders, only one of which is the subject of this appeal, namely, that which permitted the father to change the child’s school.
THE APPEAL
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 (“House”) at 504–505 must be established. There, the majority of the High Court said:
… 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…
Ground 1
This ground provides:
1.The learned Magistrate erred in law by failing to provide the appellant (the “mother”) procedural fairness in making an order that the Respondent (“father”) have liberty to enrol the child, [the child] into the local Government Primary School in the father’s catchment area (the “Order”), by:
a.Failing, at the hearing on 28 December 2022 to clearly identify for the benefit of the mother, or at all that the issue to be determined at the hearing on 9 January 2023 was whether [the child] would change school;
b.Directing both parties to file and serve by 6 January 2023 which denied the mother an opportunity to know the case to which she was required to respond;
c.Listing the matter from 28 December 2022 to a hearing on 9 January 2023 where that was unnecessary and in all of the circumstances compromised the mother’s ability to file her material and take advice and the ICL's ability to make enquiries about [the child’s] schooling;
d.Not inviting or permitting the mother at the hearing on 9 January 2023 to make submissions in reply to the submission that Her Honour determined to be ultimately dispositive of the issue.
(As per the original)
Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582). However, it is only the opportunity to present evidence and argument which the interests of justice requires, not the actuality of it. Thus where a party has had a sufficient opportunity to put forward his or her case, it may be necessary for the court to make a decision for the sake of doing justice to the other party and to other litigants (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [94]).
As to sub-ground (a), the 9 January 2023 order permitting a change of school was first foreshadowed by the father at the hearing on 28 December 2022, when counsel for the father said:
[COUNSEL FOR THE FATHER]: … There was another issue that I didn’t raise earlier, which I should have, in relation to [the child’s] school. So the mother did mention [the child] does go to the same school and as the mother works and I appreciate it may not be an issue that your Honour is willing to consider today.
[THE MOTHER]: I will find somewhere else to work.
[COUNSEL FOR THE FATHER]: I’m not sure whether your Honour would need further affidavit material and, if your Honour was minded to consider on 9 January, we can try and get that filed so your Honour is in a better position than today to consider that.
HER HONOUR: Yes. I am aware that [the child] goes to the same school where the mother works, and I do have some concerns about that at the moment. I think, given how very fresh everything is, I will deal with that on the 9th. I think if [the mother] is able to find another place to be working, that’s probably preferable, but she’s not going to have been able to have done anything about that today and I don’t know how long that might take her. I don’t want to prevent her from working because that’s obviously very important.
[THE MOTHER]: I would resign today.
HER HONOUR: Well, [the mother], I’m not suggesting that you need to resign today, and I want to – I’m going to come back. We’re back on 9 January anyway. So that will give you an opportunity to get some legal advice if you choose to and you can further consider you position prior to then, but it’s not an order that I’m going to make today. All right.
(Transcript 28 December 2022, p.5 line 27 to p.6 line 9)
In her affidavit filed 8 May 2023 and by consent admitted as evidence in the appeal, the mother says that after the 28 December 2022 hearing “I did not understand the Court was going to decide whether [the child] would change schools” at the 9 January 2023 hearing (at paragraph 9). However notwithstanding that assertion, to my mind the mother’s statements on 28 December 2022 about finding somewhere else to work or resigning make it plain that she likely well understood that the child’s continued enrolment at the school was under consideration. Particularly from those statements it seems clear that the mother understood that the conflict was between the child’s enrolment at the school, and her working there, rather than between any restraining order in favour of the child and her working at the school, as counsel for the mother contended before me. In any event, as shall shortly be seen, even if I am wrong as to that, it ultimately makes no difference to the outcome of this appeal.
Later the following exchange between the Independent Children’s Lawyer (“ICL”) and the primary magistrate occurred:
[THE ICL]: I also notice that the – [the mother] hasn’t filed any documents at all. So I’m not sure whether the court is minded to make an order that [the mother] files documents or, if you are dissatisfied, a responding affidavit for the next hearing. I think a case information affidavit would be really useful.
…
HER HONOUR: All right. So the documents that you have previously been ordered to file are a form 1A response and a case information affidavit. Those documents are able to be downloaded from the portal as – sorry, from the Family Court website in blank form and then you would need to complete them and upload them to the portal. What I will do is I will extend the time for you to file those documents up until 6 January.
So there will be a further order that the time for [the mother] to file and serve a form 1A response and case information affidavit to be extended to close of registry on 6 January 2023. I appreciate that it might be somewhat difficult, given the time of year, for [the mother] to get legal advice and so on, but hopefully, that is something that – we can at least have some setting out of exactly [the mother’s] position is.
(Transcript 28 December 2022, p.8 line 45 to p.9 line 24)
In due course the primary magistrate made orders to that effect (Order 8) and also that “[b]y no later than close of Registry on 6 January 2023, the parties have permission to file and serve an affidavit of themselves, limited to 7 pages and no more than 2 annexures” (Order 7).
On 6 January 2023, the father filed his affidavit pursuant to that order. In part it said as follows:
[THE CHILD’S] SCHOOL
32.[The child] currently attends Perth [School B] in [Suburb C]. This is the school that [the mother] works at. She has worked there as “[a staff member]” for around 9 years.
33.This school is around 15 minutes’ drive from the [Suburb E] property where I currently reside. I have rented this property from my [relative], for several months. He has told me that [the child] and I can stay there for as long as we need. I do not have any intentions of leaving the property at this stage, as I want to provide some stability for [the child] at this residence.
34.[The mother] and I had many disagreements during the relationship about [the child’s] schooling. I was supportive of [the child] attending a mainstream school, whilst [the mother] supported [School B] education. My view is that a mainstream school would be beneficial for [the child].
35.I have made some enquiries with local schools that would be suitable for [the child]. I have purposefully not included the name of the school in this affidavit given that there are injunctions in place restraining [the mother] from coming within 50 metres from [the child]. Given that [the mother] has disregarded Court orders in the past, I am concerned that she may also disregard that Order and if she knows what school he is attending, I am concerned that she may attempt to take him from school.
36.I am proposing that [the child] attend a local Primary School that caters for children from Pre Primary to Year 6. My residence is within the catchment of the school. As it is a government school I understand that he is guaranteed enrolment.
37.I understand that this school re-opens for the year on Friday 27 January 2023, and the term starts on Wednesday 1 February 2023.
38. I am willing and able to take [the child] to and from this school each day.
39.[The child] has attended Perth [School B] since he was in Kindergarten. I understand that [the mother] expressed strong views during the hearing on 28 December 2022 that [the child] should remain at this school, and that she would resign “today” if it means [the child] would remain there.
40.I appreciate that there will be an adjustment for [the child] changing schools given that he has attended the school for several years, but I am concerned about [the child] remaining at Perth [School B] even if [the mother] were not to work there.
41.Towards the end of our relationship, [the mother] would associate only with people who shared her extreme views about pro-veganism, anti-vaxxing or conspiracy theories. This includes some teachers at the school, and some parents of the students who attend the school.
42.Given [the mother’s] disregard for previous court orders and her associations at this school, I am concerned that [the child] may not be adequately protected at Perth [School B].
43.I am also concerned about the lack of structure at Perth [School B]. Although [the child] is very mature for his age, he struggles with reading. My firm view is that [the child] would benefit from following a rigid structure rather than teaming at his own pace at a [School B].
44.I was also concerned reading [the child’s] school reports from 2022, learning that [the child] was either absent or late for between 25% to 30% of each school day in 2022. I feel that he may have had a disrupted year of learning at the school based on this. I was not made aware of this until reading the school reports…
Notwithstanding the orders made relating to her filing material for the 9 January 2023 hearing, the mother filed no material, whether comprising an affidavit, response, case information or financial statement. In part that might be because her beliefs may not support such procedures, or at least require her to physically post documents (see for example Transcript 9 January 2023, p.6 line 35), but nothing turns on that, as plainly electronic filing applies to all litigants.
The matter returned before the primary magistrate on 9 January 2023. The transcript of that event demonstrates that the mother was well aware the prospect of the child’s school changing was on the agenda for determination that day, and she engaged in debate on that very issue, without any complaint that she was in any way impeded in doing so. Specifically, the mother did not:-
(a)complain that she had been unable to get any legal advice she may have wished to obtain;
(b)assert that she had been unable to prepare any affidavit she wished to rely upon relating to the child’s schooling;
(c)claim to have been taken by surprise by the father’s affidavit filed 6 January 2023;
(d)ask for the hearing to be delayed or adjourned in order for her to properly marshal material or arguments;
(e)otherwise complain she was unable or unwilling to proceed with the hearing.
Moreover, despite her claim in her affidavit filed 8 May 2023 that she “did not understand the Court was going to decide whether [the child] would change schools” at the 9 January 2023 hearing, she does not venture any evidence as to:-
(a)when she first became aware that a change of schooling would be considered on 9 January 2023, although her counsel contended it was 6 January 2023;
(b)what she would have done differently had she known on 28 December 2022 that the change of the child’s school was for consideration on 9 January 2023, and particularly:
(i)that there was any evidence relevant to that issue which she would have sought to put on;
(ii)that she would have sought legal advice;
(iii)that she would have sought to adjourn the 9 January 2023 hearing.
(c)any change in her position that the Court had no authority over her, or that she had altered her position that her material could only be mailed to the Court.
Therefore, even if as she contends, it was not until 6 January 2023 that the mother became aware that the change of the child’s school was for consideration on 9 January 2023, how that effected any injustice of any kind, whether procedural unfairness or otherwise, is wholly unclear, and in any event without any evidentiary foundation. In that sense, the primary magistrate’s decision was inevitable (Stead v State Government Insurance Commission (1986) 161 CLR 141), as any opportunity to put on further material would not have been availed of.
In saying that, I do not overlook that at the 9 January 2023 hearing she did seek to hand up some material to the primary magistrate. Particularly, early on in that hearing she said:
[THE MOTHER]: Your Honour, for the record, I wish to maintain the honour of the court. I am [Administrator] (indistinct) (indistinct) [Ms Pandya]. I am a sovereign tenant under the title for flag within the [F Corporation] located in [Country D]. Performance contracted, the [Administrator] of our world (indistinct) I am here on special Appearance to settle the account and claim back my cargo.
I am happy to comply in the correctness in my standing as a federal [Administrator] for the facts as the facts under the authority of the title for flag in the correct sentence structure, communication (indistinct) syntax, grammar performance within the now space. Your Honour, for the record, I have these documents that I wish to submit to you and the clerk of the court. These documents contain the evidence, the builds of the ladings, the evidence of my cargo that has already been salvaged as well as the evidence of the fraud committed. Your Honour, for the record, please consider taking these documents to consult a judge’s lexis, to check the validity of my documents. So I would like to hand that to your Honour (indistinct) the court.
(Transcript 9 January 2023, p.5 lines 28–50)
This submission continued for a little more, but it is unnecessary to recite it further. It thus appears clear that such material as she then wanted to put before the Court did not deal with the schooling issue at all.
Moreover, from a letter dated 5 January 2023 tendered into evidence in the appeal, it seems clear that the mother had previously mailed the same or similar material to the Court, but had been advised it was rejected as it needed to be filed electronically on the Court’s portal.
Also tendered into evidence on the appeal was a letter dated 23 January 2023 from the principal of the School B explaining that the mother’s employment there could be managed in a way that saw her not able to come into contact with the child. However, the letter self-evidently post dated the 9 January 2023 hearing and could not have been prepared in time for tendering at that hearing because, as the mother says “[t]he school was closed then for the holidays, and my mobile phone, containing all my contacts including [the school principal’s] was confiscated by police on 23 December 2022, and not returned to me until on or about 10 January 2023” (mother’s affidavit filed 8 May 2023, paragraph 7). As to this, it must be remembered that Ground 1 does not challenge any finding of fact by the primary magistrate such that this new evidence might see that finding revisited; the ground only asserts procedural unfairness. Absent the primary magistrate being alerted to those matters – and she was not – how they speak to procedural unfairness is entirely opaque.
As it transpired, the 9 January 2023 hearing proceeded fairly uneventfully. Thus, initially counsel for the father said:
[COUNSEL FOR THE FATHER:] With regards, your Honour, to the changing of the schools, we have set that out in quite a bit of detail within our affidavit material and I do not intend on taking your Honour through all of that. Again, however, your Honour, whilst it is appreciated that [the child] has been in the school his entire schooling life, it is not out of the realm of possibility or it’s certainly normal for children to change schools.
It is appreciated that my learned friend has said that he has been through a traumatising period, but that also being said, his actions does not seem to be that he is facing any sort of trauma, in fact, he is not asked about seeing his mother or [his half-sister] to date, he seems to just accept what the status quo is and should there be any sort of change, this would be an appropriate time, given his age. In addition to that, flowing on from comments that your Honour has made in the past with respect to [the child’s] exposure to people, the likeminded society and a way of thinking, that would certainly continue should he continue to go to the [School B].
It is not just a question of whether the mum works there and certainly had opportunities for the mum to have contact, but also having other people in the school, family friends having access to this child and continuing that sort of way of thinking. On top of that, your Honour will have noticed within our affidavit material that there is a drop in his attendance at the school and that he’s not quite reading at the same level he should as such in more structured schooling would likely to be in his best interest, and again, your Honour, we emphasise that at this age, it is a prime age for him to change schools, children do it all the time.
(Transcript 9 January 2023, p.4 lines 16–49)
To this the mother responded:
[THE MOTHER:] …The difference of opinion between my ex and I should be kept separate from what is best for [the child]. The schooling, [the child] has attended the same school since he was eight months old; we’re a very small school. He has his, you know, very strong bonds with his friends, with the staff, with the parents of his friends. That is what makes [the child] settled and calm and peaceful.
It’s the surrounding that he has been provided with his entire life. For his entire life, we have provided safety and security and calm and peace and this is the child that the child advocate has seen now is the product of all the years. Changing the school now is the [School B] system and a mainstream system is completely different. The format is different, the running of the day is different. It will be significant disruption, he has had his mum taken away, his sister taken away, his living, his home is taken away.
Now his friends as well, that’s too much trauma to ask and to put onto a child. Yes, he’s well-adjusted and he’s calm and loving again, it’s the product of everything that we’ve put into this. Our marriage deteriorated and ended at the end and we’ve still managed to keep this child in such good standing. It is the consistency that he has always had. The living arrangements, what happens when his dad has to start going back to work?
Does that mean more disruption? Is someone else picking him up from school, dropping him off again? Is that still more disruption that’s going to be added to his life? All I’ve been asking for from the beginning is that the children stay together. Just because mum and dad don’t want to be together anymore, don’t see eye to eye, that doesn’t mean the children need to be separated. So if – they’re very – they have a very strong bond, they have a very loving relationship.
(Transcript 9 January 2023, p.7 line 35 to p.8 line 21)
Thereafter the father exercised his right of reply to the mother’s submissions, which then saw the mother respond further, as follows:
[THE MOTHER:] …It is what is in the best interests of the child, so I know this is only a short term and there’s no point changing [the child’s] school for a short term.
I understand he wants to change his school because it’s closer to where he lives, however, it’s a five minute extra drive. For the five minute inconvenience, we’re going to turn the whole child’s life upside down. It’s close, [Suburb E] and [Suburb C], it’s right there and once we move to shared care, then what? It’s the same thing, just leave him in the comfort and safety where he is, at least the school is the same, then he goes and stays with Dad, then he goes and stays with Mum, then he goes Dad, Mum, but at least he’s going back to the safety and consistency of the same school. So, for a five minute extra drive, I think the school needs to stay the same for [the child’s] benefit. That’s - - -
(Transcript 9 January 2023, p.14 lines 25–44)
There is therefore simply no room for doubt that the mother was well aware that the child’s school was an issue to be determined on 9 January 2023, and not only did she not raise any inability to proceed fairly on that day, in fact she made lucid submissions on the relevant issues.
Ground 1(a) is without merit.
As to sub-ground (b), the complaint appears to be that instead of the simultaneous filing of affidavits as contemplated by Order 7 of the 28 December 2022 orders, a “tennis match” of filing and serving material was needed to properly afford the mother an opportunity to address any change of school. However the hearing was not until three days after the date for filing of material, and had the mother been taken by surprise, she could easily have said so. However as I have already observed, I am satisfied that the hearing of 28 December 2022 should have left her in no doubt what was being contemplated in the 9 January 2023 hearing.
Moreover it simply cannot be overlooked that the mother had failed not only to file the material which she had been ordered to file at the hearing on 28 December 2022, but in fact had never filed any material whatsoever in the proceedings. In large part that may be because it appears she disputed the authority of the Court over her (see for example Transcript 23 December 2022, p.2 lines 27–29; p.3 lines 42–47; p.4 line 22 and p.6 line 39).
Ground 1(b) fails.
As to sub-ground (c), in fact the 9 January 2023 hearing had been ordered on 14 December 2022, but subsequent events saw the matter brought on in the interim as explained above.
How the 9 January 2023 listing in any way impeded the mother from doing that which this sub-ground contends is entirely unclear. True it is that 28 December 2022 until 9 January 2023 falls in what is often accepted as a holiday period, but that of itself cannot stand as an insuperable obstacle to litigation when circumstances require it.
Moreover, as I have already observed, on 9 January 2023 the mother made no complaint that she had been unable to draft any material, take any advice that she wished to, or otherwise properly prepare for the hearing, nor does her affidavit of 8 May 2023 assert any such thing. Rather the mother’s history of not filing any material in the proceedings suggests that she simply did not intend to put any material before the Court in a proper way, and the 5 January 2023 letter to her confirms that she was, by then, well aware of what she needed to do to properly file material, but wilfully chose not to comply with the court’s processes.
Ground 1(c) is without merit.
Finally as to sub-ground (d), it is plain from the transcript of 9 January 2023 that the mother was afforded ample opportunity to make submissions as to the child’s schooling for 2023, and particularly whether it should change.
In traversing Ground 1(a) I have already explained that the course of the hearing saw the father make submissions to which the mother responded, to which the father replied, and in turn to which the mother further responded. In fact, the father thereafter further replied including:
[COUNSEL FOR THE FATHER]: Your Honour (indistinct) I appreciate that we probably want to wrap up soon. I would just like to address a couple of things here. I would just like to note for at least the respondent mother’s knowledge, it is not about an extra five minute drive, that is not the concerns about the school at all, it is about the society, the people he’s mingling with, the external influences that he has at that school.
(Transcript 9 January 2023, p.14 line 46 to p.15 line 2)
Submissions by the father’s counsel then continued. At the conclusion of that further reply, there occurred the following exchange:
[THE MOTHER]: Can I answer that? No.
HER HONOUR: No. I’ve heard enough. I’m prepared to make a ruling at this point now…
(Transcript 9 January 2023, p.15 lines 39–42)
It is this which the mother now contends was procedurally unfair, but patently it was not. Submissions had to be concluded somewhere, and they had already been more extensive than would usually be the case. In his oral submissions, counsel for the mother said that by the primary magistrate’s refusal to hear the mother further, she was precluded from addressing the issue of whether there was a risk to the child at the School B of being exposed to unconventional beliefs such as those held by the mother, albeit from others. As shall be seen, this was indeed a matter of significance in the primary magistrate’s determination.
The first difficulty for the mother in that regard is that it is quite unclear if it was that issue which the mother wanted to further respond in relation to. That is because it was but one of several matters in counsel for the father’s immediately concluded submissions, which also touched issues such as how far the School B was from the father’s house, the child’s vaccination history, the mother’s previous failure to act in the child’s best interests and her alleged tactical decisions as to whether or not to engage in court processes.
Moreover, very early on in her submissions, counsel for the father had in fact raised concerns about the mother’s involvement with “likeminded people” (Transcript 9 January 2023, p.3 line 34) which was seemingly a reference to the father’s 6 January 2023 affidavit, where at paragraph 41 he had said:
41.Towards the end of our relationship, [the mother] would associate only with people who shared her extreme views about pro-veganism, anti-vaxxing or conspiracy theories. This includes some teachers at the school, and some parents of the students who attend the school.
Plainly the mother had ample opportunity to address those concerns, and the primary magistrate bringing debate to a conclusion was not procedurally unfair.
Ground 1(d) is without merit and it follows that Ground 1 fails in its entirety.
Ground 2
This ground provides:
2.The learned Magistrate erred in law and in principle in making the Order by failing to give any or any proper consideration to matters relevant to determining [the child’s] best interests, particularly:
a.the fact of [the child’s] attendance at the Perth [School B] since kindergarten by agreement of the parents in the context of an extant order for Equal Shared Parental Responsibility and the effect upon him, in all of the circumstances of a further disruption; and
b.The ICL's observation that notwithstanding the father’s assertions about the [School B] environment, [the child] was a “delightful” “normal” boy…the “least affected by everything that has gone on around him.”
As to sub-ground (a), it is in two parts; firstly, a failure to give any consideration of the contended issue; secondly, a failure to give it proper consideration, which phrase seems rather to invoke something akin to a weight complaint and in any event will not justify appellate intervention unless the result achieved is unreasonable or plainly unjust (Hedlund & Hedlund (2021) FLC 94-065 at [37]).
It must be remembered that the reason why the child’s school had become problematic was because:
(a)the mother had not been facilitating the father’s time with the child;
(b)the mother appeared to have some unusual beliefs, perhaps consistent with some mental health issues;
(c)both of these had recently spiked to the point where the mother had concealed the child, been incarcerated for contempt, and police had to execute a recovery order against the child;
(d)that had led to the child being placed in the care of the father, initially with no orders for even supervised time between the child and the mother.
The 9 January 2023 orders included a regime of fortnightly supervised time between the mother and the child (Order 1) for at least four months (Order 5) at about which time the proceedings would be listed for mention (Order 15).
There were two central issues which made the child’s continuation at his then school problematic. The first was the mother’s employment at the school, and hence the real prospect of her spending considerable unsupervised time with the child there, notwithstanding the limited fortnightly supervised time provided for under the orders. The second was the prospect of the child continuing to be exposed to the sorts of beliefs which the mother embraced, albeit by others at the school.
As to those, the primary Magistrate’s reasons explicitly state:
18.Finally, then, turning to the issue of the child’s school – the father proposes that [the child] change to the school in his local catchment area; the mother proposes that [the child] continue at the [School B] which she say she has attended since he was around eight months old, and where, she says, he is very safe and comfortable. The independent children’s lawyer does not support a change of schools at this point in time.
19.The difficulty, I think, with [the child] continuing at the [School B] comes largely in relation to the belief system and people that he is otherwise exposed to at that school.
20.Firstly, of course, the mother works at that school, and she did indicate previously that she would cease her employment there, if required. I certainly wouldn’t require her to do that. She needs to maintain employment to be able to support herself and the children, so that is not an order that I would consider making. But this is a matter where the evidence that I have on behalf of the father – noting that I have no documents filed from the mother, suggests that the general nature of many of the children and parents associated with the [ School B] are of the similar vein to the belief system of the mother.
21.And in the circumstances, where [the child] certainly would not be able to be properly supervised in relation to any communications or conversations, it is my view that [the child] ought be able to change schools to the school in the father’s local catchment zone. I appreciate this is another change for [the child], but this is a child who has been – from what I have before me, has been exposed to a significant amount of conflict and some unconventional belief systems and conversations.
22.The reason that the mother is having supervised time is because of those conversations and belief systems, and if he remains at that school, there is nothing to suggest that he would not otherwise be protected from those types of communications continuing with him. So I am minded to allow the father to enrol [the child] in the school in the father’s local catchment zone…
(Emphasis added)
From the first bolded part of [18] it is clear that, contrary to the assertion made by this ground, the primary magistrate was well aware of the child’s history of attendance at the School B, which, given that the parties equally shared parental responsibility, must have been done in the exercise of it. Further, the last bolded part demonstrates that the primary magistrate was well aware that what the father was seeking in relation to the child’s school was “another change” or in other words “a further disruption”. Plainly therefore, the complaint that no consideration was given to those matters is forlorn.
Moreover, the fact that the child may have been consensually enrolled at his then school speaks not at all against the undesirability of the mother having unsupervised time with the child there, and is only glancingly relevant to the risk of exposure to unconventional beliefs.
Of course, by the time of the 9 January 2023 hearing, the mother had filed no material. How therefore, the “fact” asserted by this ground was proved is unclear, particularly given that paragraph 34 of the father’s affidavit filed 6 January 2023 recited above puts a quite different light on the reason why the child was enrolled at the School B.
Turning then to the second aspect of Ground 2(a), there is no reason to think that the primary magistrate did not give “proper consideration” to either the child’s history of attendance at the relevant school or that changing it to another school would be disruptive, given that the decision was given ex tempore not long after the mother’s submissions to precisely that effect. It must be remembered that ex tempore reasons are not to be “picked over” (Maviglia v Maviglia [1999] NSWCA 188) and “the currency of the judgment makes it unlikely” that material was overlooked (Perdicari & Perdicari (2019) FLC 93-914). Moreover in her reasons, the primary Magistrate was not obliged to address every piece of evidence or argument relied upon by the mother (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
Insofar as this ground is a weight challenge, the weight which that matter should be afforded was quintessentially for the primary magistrate (Gronow v Gronow (1979) 144 CLR 513 (“Gronow”)).
Ground 2(a) fails.
As to sub-ground (b), as I have explained above in discussing Ground 2(a), the fact that the primary magistrate did not specifically address this submission in her ex tempore reasons does not mean she overlooked it, failed to properly consider it, or gave it no weight. Further, in the second bolded part of the primary magistrate’s reasons recited earlier at [52], the primary magistrate was clearly mindful that the ICL was not supporting the father’s application.
Ground 2(b) fails, and hence Ground 2 fails in its entirety.
Ground 3
This ground provides:
3.Further or alternatively, the learned Magistrate erred in the exercise of her discretion by giving no weight or no adequate weight to those matters summarised at 2(a) and 2(b) above and too much weight to:
a. the language used by the mother in court; and
b.the father’s evidence about the mother’s “society” and “belief systems” and the “general nature of many of the children and parents associated with the [School B].”
This ground may be swiftly dealt with. The giving of any, and if so what, weight to matters of fact is quintessentially for the determination primary magistrate (Gronow). That an appellate court may have given them some, less, or more, weight does not establish error of the kind identified in House, unless the outcome is unreasonable or plainly unjust, which is not the case here.
Ground 3 is forlorn.
CONCLUSION
No ground of appeal succeeds, and hence the appeal will be dismissed.
COSTS
In the event the appeal failed, the father sought that the mother pay his costs in the sum of $5,000. The mother opposed any such order on the basis that the default position established under s 117 of the Family Law Act 1975 (Cth) is that each party ought bear their own costs, and further, that the father was in a superior financial position to her.
Whilst the latter may be true by reference to income, the father is paying the mortgage over the house which the mother is residing in, and he is meeting the costs of private legal representation, as indeed is the mother.
I am satisfied that the mother ought pay the father’s costs as claimed within 28 days.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 1 June 2023
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