PAPENDORF & PAPENDORF
[2018] FamCAFC 114
•22 June 2018
FAMILY COURT OF AUSTRALIA
| PAPENDORF & PAPENDORF | [2018] FamCAFC 114 |
| FAMILY LAW – APPLICATION IN AN APPEAL – DISPENSE WITH TRANSCRIPTS – DISMISSAL – where the appellant mother failed to file the complete trial transcripts in accordance with orders made of an Appeals Registrar – where the mother sought to proceed with the appeal in the absence of the complete transcripts or, alternatively, for the Court to allow her further time to raise funds to obtain them – where the respondent father sought that the mother’s appeal be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) for non-compliance – where it would not be a legitimate exercise of discretion to adjourn the hearing of the appeal – where the application to proceed without complete transcripts was allowed on the basis that the mother be prevented from advancing any ground of appeal or argument where reference to the trial transcript would be necessary in order for the Court to determine or consider the ground or argument – application to dismiss the appeal pursuant to r 22.45 dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the mother sought to adduce further evidence on appeal – where the further evidence was not capable of demonstrating error and did not meet any established criteria for the admission of further evidence – application dismissed. FAMILY LAW – APPEAL – PARENTING – where the mother appealed from orders which fundamentally changed the child’s living arrangements – where many of the mother’s stated grounds of appeal were not proper grounds of appeal – where many of the mother’s challenges were as to weight – where challenges to weight given by a trial judge to evidence can only succeed if an appellate court is satisfied the trial judge was plainly wrong – where nothing to which the mother referred on the hearing of the appeal provided any substance to her grounds of appeal – appeal dismissed – no order as to costs of the appeal. |
| Family Law Act 1975 (Cth) ss 60CC, 68L, 93A, 97(3), 117(2A) Family Law Rules 2004 (Cth) r 22.45 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Lenova & Lenova (Costs) [2011] FamCAFC 141 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Simmons and Anor & Kingley (2014) FLC 93-581; [2014] FamCAFC 47 |
| APPELLANT: | Ms Papendorf |
| RESPONDENT: | Mr Papendorf |
| INDEPENDENT CHILDREN’S LAWYER: | Marlene Ebejer, Ebejer & Associates Lawyers |
| FILE NUMBER: | MLC | 5616 | of | 2010 |
| APPEAL NUMBER: | SOA | 6 | of | 2018 |
| DATE DELIVERED: | 22 June 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Kent JJ |
| HEARING DATE: | 22 June 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 2990 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Staindl |
| SOLICITOR FOR THE RESPONDENT: | Knox Family Law Specialists |
| INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The mother is granted leave to rely on an Amended Notice of Appeal filed 22 May 2018.
The mother is granted leave to rely on her Summary of Argument filed 23 May 2018.
The father’s application to dismiss the appeal pursuant to r 22.45 is dismissed.
The mother’s application to proceed with the appeal absent all of the trial transcripts is allowed.
The mother’s application to adduce further evidence on appeal is dismissed.
The mother’s appeal from the orders made by Judge McGuire on 19 December 2017 is dismissed.
There be no order as to costs of the appeal.
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 Papendorf & Papendorf 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 6 of 2018
File Number: MLC 5616 of 2010
| Ms Papendorf |
Appellant
And
| Mr Papendorf |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Kent J
On 19 December 2017 Judge McGuire made final parenting orders[1] in the Federal Circuit Court with respect to X (“the child”) born in 2007, the only child of Ms Papendorf (“the mother”) and Mr Papendorf (“the father”).
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The relevant effect of those orders was, in summary, that:
a)the parents have equal shared parental responsibility for the child, save in respect of education, as to which the father was entitled to choose schools for the child to attend for 2018 and following;
b)the child live with the father and spend alternate weekends, one overnight period in alternate weeks, and half school holiday periods with the mother; and
c)the father was obliged to permit and encourage the child’s study towards, and participation in, her confirmation into the Catholic Church in 2018.
The orders fundamentally changed the child’s living arrangements from living primarily with the mother, as she had done since the parties’ separation in 2009, to living primarily with the father.
The mother appeals from those orders. The mother also applies to adduce further evidence on appeal pursuant to s 93A of the Act. The further evidence comprises, in summary, school reports for the child; February 2018 correspondence between the mother and the new school the child commenced to attend in 2018; and evidence that the mother has sought enrolment in a Parenting Orders Program pursuant to an order made by the trial judge for both parties to enrol and complete such a program.
The father opposes the appeal and the application to adduce further evidence. The lawyer appointed by the trial judge pursuant to s 68L of the Act to independently represent the child’s interests in the proceedings (“the ICL”), and who participated in the trial, does not participate in the appeal.
Father’s application to dismiss the appeal
On 22 March 2018 orders were made by an Appeals Registrar which were designed to ready this appeal for hearing. Those orders included an order requiring the mother to obtain and file, by no later than 21 May 2018, the electronic transcripts of the four (4) days of the trial of the proceedings.
On 22 May 2018 further orders made by an Appeals Registrar granted the mother’s application for a brief extension of time to file the electronic transcripts, that brief extension not being opposed by the father.
However, the mother has not complied with the orders for filing the trial transcripts. In the event, the mother obtained and filed only an extract of her own evidence at trial. At no point prior to the ordered time for the filing of trial transcript did the mother indicate an intention to file only an excerpt of transcript, nor did the mother file any application to dispense with transcript for the hearing of her appeal. The setting down of the hearing of this appeal obviously occurred on the basis that the complete trial transcripts would be available to the parties and to the Court.
By an Application in an Appeal filed on 6 June 2018 the father seeks that the mother’s appeal be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the FLR”) consequent upon the mother’s failure to file all of the transcripts of the trial as ordered. The mother opposes the application to dismiss her appeal and by a further Application in an Appeal filed on 8 June 2018, the mother seeks that her appeal proceed on the incomplete transcript available or, in the alternative, that she be afforded an extension of time to obtain the funds necessary to obtain the full transcript. That alternative would obviously entail an adjournment of the appeal at significant cost and disruption to the father, who is represented by solicitors and counsel for the appeal, as well as public cost and disruption to this Court and other litigants in appeals in circumstances where the judges constituting this Full Court all come from interstate and the hearing of this appeal has been set down since March 2018. Obviously, the setting down of the hearing of this appeal is in lieu of hearing other litigants seeking listings of their appeals and the adjournment and relisting of this appeal would obviously entail further delay in the hearing of other appeals.
In advance of this hearing, and consequent upon the mother’s default in failing to obtain complete trial transcripts, the parties were put on notice by the Appeals Registrar, at this Court’s direction, that this Court may, pursuant to r 22.45 of the FLR, dismiss the appeal by reason of the mother’s non-compliance with the orders referred to. The parties were further advised, in the alternative, that if this Court permits the appeal to proceed the mother may be prevented from advancing any ground of appeal, or any argument on appeal, where reference to the trial transcript would be necessary in order for this Court to determine or consider:
a)any oral evidence by any witness at trial relevant to the ground or argument raised;
b)whether the argument advanced on appeal was open to be raised at trial and was so raised;
c)the merits of the ground or argument; and
d)the merits of any argument in response.
In circumstances where the mother has appealed within time parenting orders which significantly changed the child’s care arrangements, the termination of the mother’s appeal as of right would obviously be a significant step. Save for the obtaining of full trial transcript, a matter it can be accepted on the mother’s evidence is attributable only to her financial inability to obtain it, the mother has shown reasonable diligence in preparing the appeal books and otherwise in proceeding with her appeal. That noted, it could not be concluded with any certainty on the mother’s evidence that the mother would have, in the foreseeable future, the capacity to comply with the orders for her to obtain and file complete trial transcripts for the appeal.
Balanced against that, the father emphasises that availability of transcript would assist him in responding to a number of the challenges the mother foreshadows by her appeal documents to advance on appeal. There is potential for prejudice to be occasioned to the father if the mother is permitted to advance all of the challenges foreshadowed in her Amended Notice of Appeal and Summary of Argument in the absence of complete trial transcript and indeed this Court would be constrained to properly entertain a rehearing of such issues without reference to the evidence at trial relevant to them.
At the hearing we resolved that having regard to the competing interests of the parties; the potential disruption to the Court and the competing demands of litigants in other appeals; and the application of principles of case management by reference to s 97(3) of the Act and relevant rules within the FLR (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175) it would not be legitimate to adjourn this appeal for some indeterminate period in the hope that the mother would at some point obtain and file the complete trial transcripts. We resolved that in the interests of justice and in fairness to both parties, the mother should be permitted to advance her appeal within the constraints foreshadowed in advance of the hearing. That is, that the mother not be permitted to advance any challenge or argument in her appeal where reference to the missing parts of the transcript would be necessary to properly consider and determine such challenge or argument. In the course of the hearing this morning that was explained to the mother and she expressed her agreement with the Court adopting that course. It is on that basis that the father’s application to dismiss the appeal pursuant to r 22.45 ought be dismissed and the mother’s application to proceed with her appeal despite her non-compliance with the orders for her to obtain the complete trial transcripts ought be allowed.
Determination of the trial judge
Taken from the reasons for judgment of the trial judge it can be seen that the following, by reference to careful consideration by his Honour of each relevant s 60CC consideration, were the central findings informing his Honour’s overall determination of parenting orders in the best interests of the child:
1)The mother was found not to be an impressive or honest witness. The trial judge found the mother to have fabricated evidence produced at trial from her mobile telephone and that in giving evidence the mother was “frequently evasive, manipulative and at times blatantly dishonest” ([33] and [58]).
2)The trial judge found the father and his wife Ms W to be witnesses of truth and to be child focussed, each with an objective insight into the child’s needs and vulnerabilities ([34]).
3)Whilst the child was found to have an attached and loving relationship with each of her parents, it was found that her relationship with her mother is “problematic” in that the child fears her mother’s responses if she is in any way complimentary of the father. The child has required professional assistance for her anxieties and the trial judge was satisfied that such requirement was due, at least in large part, to the conflict between her parents and/or her relationship with her mother ([45]).
4)The trial judge quoted, with apparent acceptance, the following evidence of the single expert family report writer, Ms R ([45]):
“[i]t is likely that if [the mother] is not able or willing to address the identified relationship challenges with her daughter, [the child] will increasingly experience and express substantial emotional distress. Consideration may need to be given to [the child] living in primary paternal care.”
5)The trial judge referred, with apparent acceptance, to evidence from the single expert that the child is more settled, calm and happy in the father’s household and that the child described to that expert that she would like to live with the father adding “it is fun and joyful” at the paternal home ([48]).
6)The trial judge found that the “thrust of the evidence suggests” that in the mother’s home the child is exposed to the mother’s own personal animosity towards the father whilst the trial judge accepted the evidence of the father and Ms W that, to the contrary, they make an effort to remove the child from such parental conflict ([49]).
7)The trial judge was satisfied that the child is exposed by the mother to the mother’s own continuing hostility and bitterness towards the father and that this is directly relevant to the anxiety suffered by this child ([50]).
8)As to the child’s expressed preference to live with the father the single expert’s evidence, apparently accepted by the trial judge, is that the single expert thought the child’s preference “to be informed, mature and certainly not circumstantial” ([51]). The trial judge was satisfied generally that the child is making informed and considered positive statements as to where she prefers to primarily live (that is, with the father) ([52]).
9)The trial judge found the mother’s conduct in showing the family report to the child and directing the child to those parts of the report setting out the child’s stated preferences and views, as speaking volumes as to the lack of insight of the mother into the vulnerabilities of her 10 year old daughter who has historically suffered from anxieties requiring professional assistance ([54]).
10)The child and mother relationship is a mutually dependent one but with some dependency resting with the mother. The particular nature of the child’s relationship with her mother is such that this has contributed, to a large degree, to the child’s anxieties ([57]).
11)The father offers a more nuclear family unit with Ms W and her 13 year old daughter and there is evidence of a good relationship between the two girls ([56] and [57]).
12)In considering the likely effect of a change to the child’s circumstances of living primarily with the father, the trial judge was satisfied from his observations of the mother that the child would continue to be exposed to the mother’s vitriol and bitterness towards her father, and it is likely that this would be compounded by the child’s move to live with her father ([61]), but that such a move would remove the child to a degree from the anxieties that the expert family report writer suggests are connected to her living with her mother and what has been described as a “problematic” relationship between mother and daughter. It would give credence to the child’s preferences ([60] – [63]).
13)The trial judge quoted at [65], with apparent acceptance, the observations of Dr T, clinical psychologist, in her report dated 17 April 2017 relating to consultations in 2014 and 2015 as follows:
[The child] was guarded in her disclosure about her relationship with the mother... It did become apparent when we were challenging anxious thoughts that she did have concerns about how her mother treated her. [The child] worried about what her mother might yell at her and whether or not she might hurt her. There have been incidents where her mother would threaten to hit her or pull her hair. [The child] identified that her mother would ask her questions and then become very angry with her responses. She decided that she might minimise her mother’s anger if she didn't give her all of the details of the situation that she was asking about. [The mother] was invited to speak with me in relation to the school's concerns about [the child's] anxiety but she did not take up the offer.
[The child] attended sessions with her father... Initially she sat on her dad’s knee and dad was present in the room for a number of sessions. [The child] was obviously very close to her dad would report on the fun that she would have during the times that she was with him. She appeared to feel safe and secure in his presence. [The child] reported that she missed seeing her dad during the time that she spent with her mum and the fact that she couldn't speak to dad on the phone made it worse.
14)The trial judge found the father’s devotion to and understanding of his daughter’s emotional needs as obvious. The trial judge found that with respect to his wife Ms W, she responded to vigorous challenges as to her motivations in respect of the child coming into her household in objective and child focussed terms ([67]).
15)The trial judge accepted that the child, “at just 10 years of age”, is expressing a wish and preference to move from the mother’s care to the primary care of her father ([72]).
16)The trial judge accepted the evidence of the father and of the expert family report writer and of Dr T in finding that the relationship between the child and her father is a comfortable, loving and beneficial one ([73]).
17)The trial judge was satisfied that the father, and with the assistance of Ms W, has the capacity to attend to both the child’s emotional and physical needs. The trial judge was satisfied that the father has an understanding of the child’s intellectual needs and that he and Ms W are both skilled and insightful in this area. The trial judge was satisfied that the father would continue to encourage and facilitate the child’s relationship with the mother if the child was to live with him ([74]).
18)Whilst the relationship between the child and her mother was found to be an established and important one, it was also found to be a problematic relationship for the child in that she is fearful of her mother’s responses if she speaks in a complimentary fashion of her father and the child is afraid to tell her mother of her preference to live with the father. The child suffers anxiety and low self-esteem and her progress at school has been impacted accordingly. The trial judge was satisfied on the evidence that there was a nexus between the child’s emotional fragility or vulnerability and the nature of her relationship with her mother ([75]).
19)The trial judge was satisfied that the mother harbours residual bitterness towards the father and that the child is made aware of her mother’s attitude. This was found to in turn contribute further to the child’s emotional fragility. It was found that the mother’s criticism of the father seems unrelenting including as to his alleged moral ineptitude but the trial judge could find no objective justification for the mother’s criticisms ([77]).
20)The trial judge was satisfied that the mother has unhelpfully enmeshed the child in both the proceedings and in her own implacable acrimony towards the father ([78]).
21)The trial judge was satisfied on all of the evidence that the child has expressed a clear preference to live with her father and that preference is based on a positive, informed, rational and mature statement of her views and preferences ([79]).
22)The trial judge was satisfied that the father and Ms W are sufficiently skilled and altruistic so as to assist the child through any consequent difficulties of a change of the child living primarily with the mother to living in her father’s home both in assimilating into their home and in any ramifications in the child’s relationship with her mother ([80]).
23)The child has a problematic relationship with her mother and has low self‑esteem and suffers anxiety. The child feels more comfortable with her father and his parenting style and model. The trial judge was satisfied that the child simply wants to have a settled, happy and successful relationship with each of her parents ([81]).
24)Whilst the trial judge noted that there was no issue between the parents as to them having equal shared parental responsibility for the child, having regard to the parties’ conflictual relationship, and the mother’s strong religious views associated with schooling, the trial judge was satisfied that an order for equal shared parental responsibility (except for matters of education for which the father is to have sole parental responsibility) would be in the child’s best interests ([82] and [83]).
The mother’s challenges on appeal
The mother expresses 20 separately numbered grounds of appeal in her Amended Notice of Appeal filed on 22 May 2018 and the mother was given leave to rely upon that Amended Notice of Appeal. Self-evidently, many of those stated grounds of appeal are not proper grounds of appeal given their lack of particularity as to the error of the trial judge being asserted. In respect of some grounds, they are addressed to assertions of events occurring subsequent to the orders made and cannot on that basis be legitimate grounds of appeal. That was pointed out to the mother in the course of the hearing this morning and in respect of some of those grounds, the mother accepted that explanation and did not pursue those grounds. Many of the mother’s challenges amount to challenges only as to the weight given, or not given, by the trial judge to evidence or aspects of the case. It is well settled that challenges to weight given by a trial judge to evidence can only succeed if an appellate court is well satisfied the trial judge was plainly wrong, his decision being no proper exercise of his judicial discretion.[2] In summary and paraphrased form the mother’s grounds can be stated as follows:
[2]Gronow v Gronow (1979) 144 CLR 513.
a)Ground 1 – that the trial judge erred in failing to follow the recommendations of the family report writer;
b)Grounds 2 and 3 – that the trial judge erred in accepting false and misleading evidence supplied by the father, being Exhibit R2 (a photograph downloaded from the mother’s Facebook account dated 29 December 2016) and a series of text messages exchanged between the parents in 2013;
c)Grounds 4 to 6 – that the trial judge erred in placing weight on submissions advanced at trial by the ICL;
d)Ground 7 – that the trial judge made an error of fact in stating that the father and Ms W were “married” at [7] of his reasons;
e)Ground 8 – that the trial judge ought not to have relied upon the affidavit of Mr Q;
f)Ground 9 – that the father has not given the courts his confirmation of the enrolment of the child into any school for 2018 and 2019;
g)Ground 10 – that the trial judge erred in relying upon the report produced by Dr T;
h)Ground 11 – that the trial judge erred in his assessment of risk to the child in the father’s care;
i)Grounds 12 and 15 – that the trial judge erred in ordering changeover to occur at the child’s new school without considering the mother’s ability to arrange transport there (see Order 4(c));
j)Grounds 13 and 14 – that the trial judge failed to properly assess the risk of the father withholding the child from the mother again;
k)Grounds 16, 17 and 20 – that the trial judge erred in considering the mother’s history of being the primary carer for the child and her demonstrated ability to provide for the child’s care, welfare and development and failed to consider the father’s ability to care for the child;
l)Ground 18 – that the trial judge erred in asking Ms W questions about the family report as it amounted to a “breach of privacy”; and
m)Ground 19 – that the mother was not granted the opportunity to explain why she left the child home alone on a number of occasions.
Self-evidently, a number of the mother’s challenges necessarily involve consideration of evidence given at trial, or submissions made at trial, which cannot be the subject of proper consideration by this Court in the absence of the trial transcripts and as earlier referred to, the mother ought not be permitted to advance any such challenges on the hearing of this appeal untrammelled by the absence of such transcript.
It is within those constraints that the mother’s challenges are dealt with.
Evidence of the expert family report writer
The family report was prepared by Ms R and published on 5 September 2017. During the family report interviews, the child indicated to Ms R that she wanted to live with the father but she was concerned about her mother’s reaction to this:
27.…[the child] made comment without prompting that she would like to live with her father adding ‘it is fun and joyful’ at the paternal home. She added that she has talked to her father but not her mother in relation to this possibility. [The child] expressed feeling ‘in the middle of it all, it would help if mum and dad got along better’.
Despite the child’s views, Ms R ultimately recommended in her report that the child remain in the primary care of the mother.
The mother contends that the trial judge erred by failing to follow Ms R’s initial recommendations as recorded in her report. Those recommendations were as follows:
45. That [the child] remain in maternal care at this time and complete Year 5 at her current primary school.
46. [The child] to continue to have the on-going opportunity to spend time in paternal care in accordance with Final Orders made in June 2011.
47. That [the child] not be exposed to parental conflict, denigration of the other parents and non-acceptance of the importance of her relationship with each parent.
48. That [the child] engage in therapeutic counselling this actively involving [the mother] to address identified vulnerabilities with the relationship between mother and daughter. [The father] is also actively encouraged to engage in this process. (This counselling available at a Family Relationship Centre, [G Group] or with a private therapeutic child focused counsellor.
49. That if consideration is given to [the child] living in the primary care of the father, that she be provided with the planned and regular opportunity to spend meaningful time in the maternal care. Consideration to be given to the maternal preference for [the child] to continue to experience a Catholic education in the choice of future schools.
(Errors and omissions as per original)
However, the expert appears to have given different evidence during her cross‑examination at trial. The trial judge recorded at [19] that:
19. [Ms R] gave evidence and was cross-examined. [Ms R’s] report is, in some ways, an exercise in equivocacy in that it was difficult to isolate and understand her primary recommendations although [Ms R], in her evidence in Court, was at pains to explain that she considered it her task to investigate the various vulnerabilities of the child and the parties and the dynamics of their relationships. The family report includes a recommendation for [the child] to remain living primarily with the mother. [Ms R’s] evidence in Court elicited, however, perhaps a reliance upon a continuance of [the child’s] attendance this year (2017) at her current school as a significant influencing factor in that recommendation. Indeed, in her oral evidence, she appeared to move, under cross‑examination, to a position more favourable to [the child] living primarily with the father.
Given that we do not have the full transcript of Ms R’s evidence, this Court cannot go beyond presuming the correctness of the trial judge’s own observations of that oral evidence as recorded by the trial judge at [19].
Moreover, in any event the trial judge was not obliged to accept or act upon any recommendation by the expert. It is well settled that the determination of parenting orders is a matter for a trial judge considering all of the evidence and a trial judge is not bound to adopt any recommendation of an expert.[3] Given the trial judge’s careful consideration of the relevant s 60CC considerations and his Honour’s central findings as earlier summarised, it is clear from the reasons of the trial judge that this is what his Honour did.
[3] See Simmons and Anor & Kingley (2014) FLC 93-581 and the authorities referred to at [42].
There is no merit in Ground 1.
Findings as to false evidence
The mother contends that the following evidence produced by the father during the course of the trial was false or altered:
1)Exhibit R2 tendered on 19 October 2017 by counsel for the father. Exhibit R2 is a copy of a photograph of the mother and the child dated 29 December 2016 which the father asserted he had downloaded from the mother’s Facebook page; and
2)Text messages exchanged by the parents in 2013 referred to throughout the father’s trial affidavit.
The mother raised her assertion that these documents had been fabricated or altered by the father during the course of the trial.[4]
[4] Transcript, 18 October 2017, p 52 ln 39 – 46; Transcript, 19 October 2017, p 34 ln 30 to p 31 ln 16.
The background to Exhibit R2 is as follows. On the first day of trial, 18 October 2017, the mother tendered a photograph (Exhibit A1) of her and the child which included the timestamp “8:18am, 2 October 2017”. The mother tendered this evidence in an effort to disprove the father’s assertion that the mother had left the child home alone on that date.[5]
[5] Transcript, 18 October 2017, p 5 ln 18 to p 8 ln 46.
On the second day of trial, the father tendered Exhibit R2 which was a seemingly identical photograph to the one tendered by the mother the day prior but which was dated 29 December 2016. During cross-examination, the mother initially agreed that the photographs were the same however altered her position and suggested that they were similar but different.[6] The mother contended that the child was in fact in the father’s care on 29 December 2016 and therefore she could not have taken the photograph on that date. Counsel for the father called for the mother to open her Facebook account. The same photograph was identified as having first appeared on the mother’s Facebook page on 13 June 2016.
[6] Transcript, 19 October 2017, p 2 ln 15 to p 6 ln 46.
The mother maintained that the photograph dated 13 June 2016 and/or 29 December 2016 was a different photograph to the one she claimed to have taken on 2 October 2017.[7]
[7] Transcript, 19 October 2017, p 9 ln 1 to p 12 ln 34.
The father’s counsel also showed the mother the father’s mobile telephone call log from 2 October 2017 which demonstrated that the father was on the telephone with the child during the time the mother suggested her photograph was taken (being 8:18 am).
The trial judge considered this evidence and made the following finding at [33] of his reasons:
…I am completely satisfied that the images are absolutely identical and that the mother therefore fabricated her own mobile telephone evidence…
The mother contends the trial judge erred in making this finding. However, the finding was plainly one open to be made on the evidence.
In relation to the text messages exchanged between the parents in 2013, the mother confirmed during cross-examination that she could not recall exchanging those messages.[8] In relation to some text messages, the mother also raised her assertion that certain messages had been fabricated.[9]
[8] Transcript, 18 October 2017 p 19 ln 1 to p 25 ln 1.
[9] Transcript, 18 October 2017, p 43 ln 6 to p 46 ln 26; Transcript, 18 October 2017, p 52 ln 39 – 46; Transcript, 19 October 2017, p 35 ln 1 – 16
Self-evidently, the trial judge reached findings of fact in relation to evidence and the fabrication of evidence having had the benefit of a trial at which the parties were cross-examined. A court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or “contrary to compelling inferences”.[10]
[10] Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43] citing Fox v Percy (2003) 214 CLR 118 at [28] – [29] and Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at [76].
Nothing to which the mother directs us on the hearing of this appeal would legitimately entitle this Court to disturb the findings of fact made by the trial judge within those constraints.
There is no merit in Grounds 2 and 3.
The ICL’s evidence or submissions at trial
The mother asserts that the trial judge erred in placing weight on the evidence and recommendations of the ICL for the following reasons:
1)that the ICL incorrectly indicated that the child was performing “average to below average” academically;
2)that the ICL provided no reasons for recommending that the child live with the father; and
3)that the ICL was not appointed until half way through the final hearing and therefore was not fully aware of the background of the matter.
As to the first point, I note that it was the father’s counsel who put to the mother that the child was “academically average to below average”, not the ICL.[11] This was a reference to information provided by the child’s school principal, Ms P, to the family report writer. In any event, the trial judge did not mention this evidence in his reasons for judgment and did not appear to give this information any weight. It is not apparent what error the mother asserts the trial judge made in this regard.
[11] Transcript, 18 October 2017, p 70 ln 37 to p 71 ln 29.
In relation to the ICL’s recommendation that the child live with the father, the mother contends that the ICL put forward no real reason for this recommendation other than that the child thought her father’s house was “fun”.
The mother also contends that the ICL did not have sufficient knowledge of the matter, having only been appointed after the second day of the four day hearing. As per the interim orders made by the trial judge on 19 October 2017, the ICL was to be provided with a copy of all documents filed by the parties in the matter, as well as a copy of the transcript of proceedings from 18 and 19 October 2017. The matter was also mentioned on 14 November 2017 in order to ensure that the hearing was ready to proceed.
On the central findings of the trial judge earlier set out, it is plain to see the trial judge’s reasons for concluding that it was in the best interests of the child for her to live primarily with the father. It is readily apparent that this was not based upon either mainly, or at all, submissions or “evidence” provided by the ICL.
There is no merit in Grounds 4 to 6 of the appeal.
Error of fact – The father’s marital status
The mother contends that no evidence was provided throughout the trial that confirmed that the father and Ms W were, in fact, married. This challenge appears to be based entirely only on the mother’s observation that Ms W has not taken the father’s last name.
The fact of the father’s marriage to Ms W appears never to have been contested at trial. Every document filed (including those of the mother) appears to refer to Ms W as the father’s wife. Further, the mother was cross-examined in relation to text messages she sent the father following his wedding.[12]
[12] Transcript, 18 October 2017, p 37 ln 28 to p 38 ln 47 and p 43 ln 6 to p 45 ln 28.
It is not demonstrated that the trial judge made any error in accepting the uncontested evidence that the father and Ms W were married. Moreover, it is not demonstrated that any error in this respect could be remotely material to the conclusions reached by the trial judge as to the parenting orders to be made in the child’s best interests having regard to the central findings earlier discussed.
There is no merit in Ground 7.
Error of discretion – Mr Q’s affidavit
The mother appears to contend at Ground 8 of her Amended Notice of Appeal that the trial judge erred in relying upon an affidavit sworn by one Mr Q.
At [35] of his reasons, the trial judge noted that:
The father adduced evidence from a [Mr Q]. His affidavit was sworn 25 April 2017. The mother did not require him for cross-examination. His evidence relates to a period in March or April 2017 confirming the father’s assertion that the mother had moved from her home. The affidavit is short and of no other relevance.
On that basis, it appears that beyond relying upon Mr Q’s corroborative evidence concerning the period in March or April 2017 as to the mother’s then living circumstances, the trial judge placed no weight upon the affidavit or evidence of Mr Q.
No error being demonstrated, there is no merit in Ground 8.
Father’s failure to comply with orders
This ground of appeal (Ground 9) is misconceived for a number of reasons. First, it addresses itself to events subsequent to the making of the orders. Second, and perhaps more fundamentally, the orders made by the trial judge did not oblige the father to provide any confirmation to any court concerning his enrolment of the child at school. That misconception of the mother pervades not only this ground of appeal but her attempt to adduce as further evidence on the hearing of the appeal correspondence concerning the child’s enrolment at school in 2018.
Order 2 of the orders made by the trial judge obliged the father to advise the mother of his nominated schools for the child in 2018 and 2019 not later than 30 December in the preceding year, and that order also contains the authorisation for the mother to have “all access to the school, principal and teachers normally afforded parents”. It is thus obvious that the father was not obliged by order to do anything in relation to authorising the mother’s access to the child’s school.
There is thus no merit in Ground 9 of the appeal and moreover, the mother’s application to adduce further evidence on appeal relating to the child’s enrolment at school in 2018 appears to be founded on a misconceived basis which ought be rejected.
It will be a matter for enforcement of the orders if either party fails to comply with them.
Dr T’s report
Ground 10 of the mother’s Amended Notice of Appeal states that the report prepared by Dr T (clinical psychologist) included a “false address”. The mother contends that, as such, it ought not to have been relied upon by the trial judge.
The report prepared by Dr T dated 17 April 2017 was annexed to an earlier affidavit of the father. That affidavit is not contained in the Appeal Book filed, but reference to the reasons for judgment show that the expert family report writer made reference to that report as did, in turn, the trial judge.
The mother raised her concern about the address listed on the letterhead of Dr T’s report during cross-examination of the father. The father’s explanation for the difference was that Dr T had recently moved offices and used an old letterhead[13]:
[THE MOTHER]: Did you go to the sessions with [the child] at that address listed: [B Street]?---No. We didn’t go there. It was [H Street]. I believe she went – recently got her to do the report – she had mentioned she had moved offices and I won’t find her at the old offices.
[13] Transcript, 27 November 2017, p 4 ln 4 – 7.
An extract of Dr T’s report relied upon by the father is set out at [65] of the reasons for judgment. In this extract, Dr T asserts that the mother was invited to speak with her in relation to concerns raised by the child’s school however the mother did not take up the offer.
At [73] of the reasons, the trial judge accepted the evidence of Dr T provided by way of report annexed to the father’s affidavit. It was open to the trial judge to do so in circumstances where well prior to the trial, the mother had the opportunity to subpoena Dr T to give evidence if she sought to challenge what was expressed in Dr T’s report knowing as she did that the father relied upon the report, as did the expert family report writer.
Notably, the mother’s challenge at trial only went to whether she was invited to participate in the process of counselling being adopted by Dr T. There is no challenge to the fact that the child’s school was reporting difficulties the child was having at school. As these were child-related proceedings, Division 12A of the Act applied to them and it was not an error of the trial judge to rely upon a report of an expert or therapist for the child even though that witness was not called to give evidence at trial.
There is no merit in Ground 10.
Discussion with father’s solicitor
By Ground 11 the mother asserts that, following the final hearing on 19 December 2017, the father’s solicitor asked her whether the child could take a bus to spend time with the mother.
The mother appears to contend that this is evidence of the trial judge’s error to properly consider the risk to the child in the father’s care. It is not capable of so doing and indeed this ground is not a proper ground of appeal. There is no merit in it.
Changeover
Grounds 12 and 15 of the mother’s Amended Notice of Appeal assert that the trial judge failed to consider the mother’s ability to facilitate changeovers at the child’s new school nominated by the father to commence in 2018.
The mother asserts that she is unable to collect the child from her new school as there is no public transport available in the area. However, this does not appear to have been raised as a matter for consideration by the trial judge in the course of the trial.
Whilst this Court is unable to test the veracity of the mother’s assertion in this respect, all that need be said is that the trial judge cannot be said to have made any error with respect to an issue not raised at trial.
There is no merit in these grounds.
Mother’s accommodation
Ground 13 of the mother’s Amended Notice of Appeal seemingly relates to a period in March/April 2017 when the mother and the child were sleeping on the floor at the back of a shop the mother worked in (see [12] and [41]).
The mother contended that she had to spend all of her savings to retain solicitors to recover the child after the father over-held the child after learning of their living arrangement.
The mother criticises the trial judge for failing to consider the best interests of the child under this ground.
As can be seen from the summary of central findings of the trial judge informing his Honour’s determination as earlier set out, this aspect of the case did not feature in his Honour’s determination. It can be seen that the trial judge expressed at [76] satisfaction that the mother can provide for the child’s physical needs and that she had rectified any issues she had faced in April 2017 in respect of accommodation. The trial judge there records satisfaction that the mother is able to provide adequate financial support for the child.
There is no merit in Ground 13.
Ground 14 asserts that the father and Ms W admitted to planning to “kidnap” the child for 18 months. During cross-examination by counsel for the ICL, Ms W told the Court that she and the father had discussed filing an application to have the child’s residence changed prior to the mother filing her recovery application.[14] That does not amount to any plan to “kidnap” the child.
[14] Transcript, 28 November 2011, p 2 ln 18 to p 4 ln 7.
The trial judge was plainly aware of the mother’s assertion in this regard as can be seen from [38] of the reasons:
In summary, I understand the mother alleged the father over-held [the child] in April 2017 unnecessarily, opportunistically and consistent with his own long held plan to assume primary care of [the child].
Nothing to which the mother referred on the hearing of the appeal provides any substance to these grounds and there is no merit in them.
History of parenting arrangements/father’s capacity to care for the child
The mother asserts at Grounds 16, 17 and 20 of her Amended Notice of Appeal that the trial judge erred by failing to properly consider and/or place sufficient weight on the mother’s history as the child’s primary carer and the lack of ability of the father and Ms W to provide for the child.
The trial judge summarised the mother’s case at [36] – [40] of the reasons for judgment and specifically noted the historical care arrangements at [65]. As earlier noted the trial judge also made adverse credit findings in respect of the mother ([32] – [33] and [78]) and considered the evidence which demonstrated problematic aspects of the child’s relationship with her mother (at [75] – [77] and [81]).
The trial judge ultimately made a finding that while the mother could provide for the child’s physical needs, she was not providing for the child’s emotional needs, including by involving the child in the proceedings ([76] – [78]).
The mother asserts that the father and Ms W are unable to provide appropriate accommodation for the child as the child used to share a bedroom with her step‑sister, Y who is 13 years old. The evidence at trial was that the father and Ms W had purchased a home in around April 2017 so that Y and the child could have their own bedrooms. The mother questioned the timing of such purchase[15] however, it was open to the trial judge to accept that unequivocal evidence concerning the child’s accommodation in the father’s care.
[15] Transcript, 19 October 2017, p 21 ln 46 to p 22 ln 14; Transcript, 27 November 2017, p 7 ln 44 to p 8 ln 11.
The trial judge recognised that the father’s proposed change of residence would result in a significant change for the child (at [60]) however, ultimately found that the father and his new wife had “the capacity to attend to both [the child’s] emotional and physical needs” (at [74]).
The trial judge made the following finding at [80] in relation to the father’s ability to assist the child adjust to the change of residence:
I am mindful that any change from [the child] living primarily with her mother to living in her father’s home will bring a period of adjustment for [the child]. I am satisfied, however, that both the father and [Ms W] understand and expect such an adjustment reaction but are sufficiently skilled and altruistic so as to assist [the child] through any consequent difficulties both in assimilating into their home and in any ramifications in her relationship with [the mother].
The trial judge also found that “the father would continue to encourage and facilitate [the child’s] relationship with the mother if [the child] was to live with him” (at [74]).
Upon weighing all of the evidence, the trial judge found that it was in the child’s best interests to live primarily with her father, consistent with her views ([82]).
There is no substance in any of these challenges.
In respect of Ground 20 going to the assertion of the mother that the father will seek alternate people to assist in the care of the child, the mother engages in misstating the father’s evidence. At paragraph 22 of his affidavit filed 9 October 2017 the father deposes:
As [Ms W] and [Y] also keep school hours and we have friends and family in the area, I will also be able to access their assistance on the occasions that I am unavailable.
That a primary carer of a child might on occasions require assistance from others is hardly controversial or outside ordinary parenting experience. This aspect of the case does not demonstrate any incapacity on behalf of the father which the trial judge was obliged to take into consideration. There is no merit in Ground 20.
Breach of privacy
The mother asserts at Ground 18 of her Amended Notice of Appeal that the trial judge breached her privacy by discussing the family report with Ms W during her cross-examination.
Part of Ms W’s cross-examination has not been provided in the extract of transcript produced by the mother. It cannot be ascertained by the transcript provided to what this ground relates. For reasons already explained, the mother ought not be permitted to agitate complaints requiring review of the transcript. In any event, the notion that the trial judge asking questions of the father’s wife Ms W in cross-examination about the family report amounts to some breach of privacy is fanciful and is to be rejected. There is no substance in this ground.
Child left alone
Ground 19 is not a proper ground of appeal. Neither the ground nor the Summary of Argument filed in support of it identifies what is said to be the error made by the trial judge in reaching his determination of parenting orders.
As is pointed out in the father’s Summary of Argument, whilst the mother was self-represented for the purposes of the trial, her affidavits filed in advance of the trial of 18 April 2017 and 21 September 2017 were prepared with the assistance of legal representation of the mother. The mother does not establish how she was not afforded sufficient opportunity to “explain” any aspect of the case.
The mother was given ample opportunity to clarify any issues during re‑examination, which the trial judge assisted her with.[16]
[16] Transcript, 19 October 2017, p 46 ln 27 to p 58 ln 12.
It ought be noted that closing submissions are not contained in the transcript extracts provided and therefore no observations can be made as to any final submissions made by the mother in this respect.
The mother does not establish by this ground any error.
Application to adduce further evidence
None of the matters the subject of the mother’s application to adduce further evidence on appeal satisfy the well-established criteria for this Court to admit further evidence.[17] The mother’s attempt by that evidence to establish that the child achieves above average academic results does not go to any issue determined by the trial judge as expressed in the reasons for judgment. The trial judge simply noted, in relation to the child’s academic performance, that it was adversely impacted by the fact that the child suffers from lack of self-esteem and anxiety and that there was a nexus between the child’s anxieties and the nature of the mother-child relationship. The trial judge did not record any finding that the child was achieving at a below average level academically. Rather, the trial judge recorded only that because the child has suffered anxiety and low self‑esteem, her progress at school has been impacted. At [75] of the reasons the trial judge recorded:
…She has been noted as suffering anxiety and low self-esteem. Her progress at school has been impacted accordingly. I am persuaded on the evidence that there is a nexus between [the child’s] emotional fragility or vulnerability and the nature of her relationship with her mother.
As a matter of common sense that finding was open but it was also one supported by evidence sourced to the child’s school. In short, the trial judge did not make any erroneous finding as recorded in the reasons for judgment as to the child’s academic performance. The further evidence thus sought to be adduced by the mother is irrelevant.
[17]CDJ v VAJ (1998) 197 CLR 172.
As to the feature that the mother has in fact enrolled in a Parenting Orders Program pursuant to the orders, that was envisaged by the order the trial judge made. It does not impact upon the determination of the trial judge. It is likewise irrelevant.
Finally, as earlier observed, the mother misconceives what the orders obliged the father to do in relation to enrolment of the child in school from 2018 onwards in the exercise of his parental responsibility in that respect. The correspondence the mother seeks to adduce as further evidence on the appeal in relation to the child’s enrolment in 2018 is irrelevant.
There being no basis upon which the discretion to receive further evidence on appeal would be legitimately exercised in favour of its receipt, the mother’s application to adduce further evidence on appeal ought be dismissed.
There being no merit in any of the mother’s grounds of appeal, in my judgment the appeal ought be dismissed.
Costs of the appeal
In the event the appeal is to be dismissed the father seeks an order for costs on the basis that the mother has been wholly unsuccessful within the meaning of s 117(2A)(e) of the Act.
In resisting the application for costs the mother emphasises her poor financial circumstances and the disparity between her position and that of the father. In oral submissions made to us on this issue, the combined income in the father’s household approximates $150,000 as compared to that of the mother which is slightly less than $60,000. The father has acquired an asset in the form of the home in which the father and Ms W live while the mother has no assets of note other than superannuation which both parties have.
Whilst it is well settled[18] that impecuniosity of a party is not determinative of the issue, and does not necessarily assume any greater importance than other factors, in this case there would appear to be some nexus between the mother’s financial circumstances and her capacity to facilitate time with the child as ordered. It may also be observed that the evidence in the case and the reasons of the trial judge give some emphasis to the need for the mother to access assistance to deal with the problematic aspects of her relationship with the child and obviously if the mother takes heed of that need there may be expense involved.
[18] See, for example, Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].
For these reasons, I would order that there be no order as to costs of the appeal.
Orders
I would make the following orders:
1)The mother is granted leave to rely on an Amended Notice of Appeal filed 22 May 2018.
2)The mother is granted leave to rely on her Summary of Argument filed 23 May 2018.
3)The father’s application to dismiss the appeal pursuant to r 22.45 is dismissed.
4)The mother’s application to proceed with the appeal absent all of the trial transcripts is allowed.
5)The mother’s application to adduce further evidence on appeal is dismissed.
6)The mother’s appeal from the orders made by Judge McGuire on 19 December 2017 is dismissed.
7)There be no order as to costs of the appeal.
Aldridge J
I agree with the orders proposed by Kent J and with his Honour’s reasons.
Ainslie-Wallace J
I also agree with his Honour’s reasons and the Court will make the following orders:
1)The mother is granted leave to rely on an Amended Notice of Appeal filed 22 May 2018.
2)The mother is granted leave to rely on her Summary of Argument filed 23 May 2018.
3)The father’s application to dismiss the appeal pursuant to r 22.45 is dismissed.
4)The mother’s application to proceed with the appeal absent all of the trial transcripts is allowed.
5)The mother’s application to adduce further evidence on appeal is dismissed.
6)The mother’s appeal from the orders made by Judge McGuire on 19 December 2017 is dismissed.
7)There be no order as to costs of the appeal.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Kent JJ) delivered on 22 June 2018.
Associate:
Date: 25 June 2018
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