Parkin and Sykes
[2013] FamCAFC 87
FAMILY COURT OF AUSTRALIA
| PARKIN & SYKES | [2013] FamCAFC 87 |
FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders which provided for the child to live with the mother and the father’s time to be limited to supervised time on four occasions per year – Where the orders were not a result of any wrongdoing on the part of the father – Where the trial judge made orders in terms proposed by the Independent Children’s Lawyer and consented to by the mother – Where the litigation had spanned most of the child’s life, the parties were unable to cooperate and communicate and the mother was fixated on allegations of mistreatment of the child against the father – Whether the trial judge erred in making final orders – Whether the orders were in the child’s best interests – Where the father complained that the trial judge failed to deal with the alleged “root cause” of the ongoing litigation: the mother’s influence and behaviour in non-compliance with orders for the child to spend time with the father – Where the trial judge had regard to mother’s conduct and accepted that her non-compliant behaviour had been harmful to the child – Where the unchallenged evidence of the Court-appointed single expert was that the ongoing effects of the litigation far outweighed any supposed adverse effects of parenting, and that overall it was not in the child’s best interests to change the child’s residence to live with the father – Where the father did not seek or propose any orders before the trial judge like those he now seeks on appeal – Where in light of the expert evidence there was no utility in adopting orders which provided the parties with a further chance to attempt shared parenting arrangements – Where the real issue for the trial judge’s determination was what parenting orders would bring finality to the litigation and be in the best interests of the child – Where the trial judge properly considered each of the parties’ and the Independent Children’s Lawyer’s proposals, each of which had disadvantages, against these requirements – No appealable error established, appeal dismissed.
| Family Law Act 1975 (Cth) |
| Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Mr Parkin |
| RESPONDENT: | Ms Sykes |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC 1320 of 2007 |
| APPEAL NUMBER: | EA 55 of 2012 |
| DATE DELIVERED: | 5 June 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Faulks DCJ & May J |
| HEARING DATE: | 5 December 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 March 2012 |
| LOWER COURT MNC: | [2012] FamCA 187 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Vassili |
| SOLICITOR FOR THE APPELLANT: | Michael Vassili Barristers & Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Kennedy |
| SOLICITOR FOR THE RESPONDENT: | Tiyce & Partners Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parkin & Sykes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 55 of 2012
File Number: PAC 1320 of 2007
| MR PARKIN |
Appellant
And
| MS SYKES |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
This is an appeal from orders made by Johnston J on 29 March 2012 in relation to the parties’ only child, a boy aged 11 at the time of trial and now aged 12. Those orders were final, and provided for the mother to have sole parental responsibility and for the child to live with the mother.
The child’s time with the father was ordered to be supervised, and limited to only four occasions per year, each for a period of not less than two hours. It is appreciated that these orders are not a result of wrongdoing on the part of the father. As will be seen, the orders were made in the context of the parenting litigation dispute having spanned most of the child’s life, the parties’ inability to cooperate and communicate, and the mother’s fixation on allegations of mistreatment of the child against the father.
The thrust of the father’s appeal is twofold. First, it is asserted that the trial judge erred in failing to make orders which addressed the mother’s behaviour and provided a further opportunity for a shared parenting arrangement. Second, it is submitted that the orders for time with the father were not in the child’s best interests.
In an amended notice of appeal filed on 29 August 2012, the father asks the Full Court to re-exercise the trial judge’s discretion. He seeks orders providing for a shared parenting arrangement, continued therapy/counselling for the mother and a review of the situation by a Court-appointed expert in one year’s time.
The appeal is opposed by both the respondent mother and the Independent Children’s Lawyer.
Background
As the litigation history was a material factor in the trial judge’s determination of parenting orders, it is necessary to provide some background.
The parties commenced a relationship in 1999. The child was born in February 2001. At the time of trial the father was aged 57, the mother aged 50 and the child aged 11.
Litigation was first commenced in the Family Court in 2004 when the child was aged three. Since then there have been three final hearings. The first was before Flohm J, who on 22 March 2006 made orders that the child live with the mother and spend overnight time with the father on weekends and, “in time”, for half the school holidays.
Early in 2006 the mother stopped the father’s overnight time with the child. In November 2006 the father again commenced proceedings.
At that time, Dr B was appointed as the single Court-appointed expert psychiatrist. He recommended there be a change in the child’s primary residence from the mother to the father, with frequent regular time between the child and mother. The basis for this was that the previous orders had failed, because the mother’s anxiety did not allow her to permit the child to have adequate time with the father.
On 21 August 2008 following a trial, Stevenson J made final orders by consent, providing that the parties have equal shared parental responsibility, the child live with the mother and spend substantial time with the father.
In early 2010 the mother made various allegations about the father’s behaviour towards the child, including leaving him unsupervised and hitting him on the head. She also raised serious concerns about the child’s behaviour in reaction to spending time with the father. The mother made a statement to the police and the child was interviewed by officers of the Joint Investigative Response Team.
June 2010 was the last time the father spent time with the child pursuant to the 2008 consent orders. On 5 October 2010 interim orders were made suspending those orders and the father’s time with the child, other than as agreed between the parties and the Independent Children’s Lawyer. At that time, Dr B was again appointed as the single expert psychiatrist.
In late October 2010 the father filed an application for final parenting orders. It was accepted that the proceedings were brought about by the mother’s failure to comply with the orders for the child’s time with the father.
In the trial before Johnston J, from which this appeal is brought, the father sought, subject to a range of conditions, that the child live with him and spend time with the mother. He sought that the child not spend any time with the mother for a period of six months, and subsequently spend only supervised time with her at a contact centre for six hours every second month, subject to an assessment by Dr B.
An alternative suggestion was that the child live with the father and spend time with the mother as determined by the Court.
The Independent Children’s Lawyer proposed orders in the terms ultimately ordered by his Honour, to which the mother had indicated she would consent.
The matter was heard over four days in August and September 2011. In preparation for the hearing Dr B again interviewed the child and the parties, and prepared a family report dated 28 January 2011.
Another expert, Dr K, the mother’s psychiatrist of more than five years, provided a report on 18 May 2011.
As the expert evidence was not challenged at the trial and is not now challenged on appeal, it is as well to consider the experts’ opinions as part of the summary of the trial judge’s reasons.
Reasons of the Trial Judge
As the father’s appeal against the orders is essentially a challenge to the trial judge’s reasoning and exercise of discretion, it is necessary to discuss at some length the reasons for judgment.
The trial judge commenced with an outline of the background to the matter, his findings on credit, and the mother’s allegations about the child’s reactionary behaviour in spending time with the father.
Having regard to the expert evidence of Dr B, his Honour made general findings about the allegations. He determined that in all the circumstances he was unable to find the father had hit the child in a manner other than involving some light touching. His Honour found it was more likely than not that the mother had not brought appropriate judgement to the child’s statements, instead interpreting his complaints without question, in order to support her own belief and case that the father was a bad parent.
The trial judge then proceeded to identify the statutory provisions under the Family Law Act 1975 (Cth) (“the Act”) that form the legislative pathway to be followed in consideration and determination of parenting proceedings.
Turning to the best interests of the child as required by s 60CC, his Honour first considered the evidence in relation to the additional considerations (reasons paragraphs 101-147).
In relation to the child’s views, the trial judge noted the child’s strong wish not to have anything to do with the father. His Honour listed the statements the child had made to Dr B, and also the expert’s views that the child was “quite [emotionally] immature and not capable of sophisticated thinking” (reasons paragraph 103). His Honour found that given the complex dynamics involved in this particular family, significant weight should not be given to the child’s expressed views.
For the nature of the relationship of the child with each parent, the trial judge explained the positive and negative aspects in each case. Dr B’s opinion was that the child had a close, loving relationship with his mother, who was his primary attachment figure. The effect of the mother’s anxiety and fear about losing the child was said to have an “insidious and continuous” effect on the child (reasons paragraph 106), such that he is concerned about the mother in a parentified way.
The expert concluded that the child had had a close, loving relationship with the father, which progressed “extremely well” until the Christmas holidays of 2009/2010 (reasons paragraph 107). The relationship with the father was said to have deteriorated since then, to the point where it is not a positive one.
The willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent was a key consideration in this case.
It was accepted that the father was able to facilitate a relationship between the child and mother, and that he genuinely wanted the child to be able to have time with each parent. There was no evidence of the father endeavouring to undermine the child’s relationship with the mother.
The mother’s ability in this respect was however, “very much in question during the entirety of the period since the parties separated” (reasons paragraphs 112). The evidence of the two experts diverged on the issue of the mother’s ability in the future.
The mother’s treating psychiatrist, Dr K, expressed the view that she had made a genuine and earnest effort towards facilitating time, and she had “[come] to act constructively to support contact” (reasons paragraph 115). His evidence was that the mother’s approach to contact was adequate to give opportunity for the development of a close and continuing relationship between the child and the father.
Dr K suggested that the failed development of the child’s relationship with the father was more likely due to factors in the father and the way he related to the child. Dr K did not consider the mother had undermined contact, interrogated the child or imposed negative perspectives on him. On this basis, the expert considered the mother would be able to comply with court orders for time with the father.
The trial judge preferred the contrasting view of Dr B. His Honour referred to the expert’s early view, formed prior to the 2008 orders, that if the child lived primarily with the mother then she would not be able to facilitate a relationship with the child. The expert had also suggested that the more time the child spent with the father, the more threatening it would be for the mother, the stress of which would be transferred to the child.
In the intervening time between the two trials, the single expert’s predictions had eventuated. This earlier prediction was in part the basis of the trial judge’s decision to prefer Dr B’s opinion that the mother would not be able to comply with orders facilitating a close and continuing relationship between the child and the father.
The likely effect on the child of separation from the mother, with whom he had always lived, was a further key consideration.
Johnston J first acknowledged Dr B’s earlier view that the child would cope well enough with a change of primary residence from the mother to the father. His Honour then noted the change in relationships with both parents. The child had not developed a positive relationship with the father. The child’s relationship with the mother was a closer attachment, though characterised by anxiety and worry. These changes had caused Dr B to revise his earlier recommendation, and in his second report he concluded that a move from the care of the mother to the father would not be in the child’s best interests. Dr B considered the anxiety and worry would become greater if he moved to reside with the father.
He concluded that it would be too difficult, profound and would have a substantial impact on the child’s development. It was accepted that the loss of the relationship with either parent, for this child, would be akin to them having died. His Honour accepted Dr B’s opinion.
His Honour then turned to the other important consideration of the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs.
The experts agreed that the mother did not have a psychiatric illness, and was an adequately functioning parent. Dr K said she was functioning well in life, but considered she may suffer from post-traumatic stress disorder.
Dr B disagreed with the suggestion of post-traumatic stress disorder, due to the mother’s parental functioning ability. He did consider, however, that she had high anxiety and emotionally-dependent needs. This was said to translate into poor parenting, because it created anxiety in the child and an over-reliance on the relationship between her and the child.
It was accepted there was no evidence of any mental health disorder in the father. Dr B assessed him as sensitive and caring towards the child, and understanding of the child’s need for socialisation, education and a relationship with the mother.
In considering the factor of family violence, his Honour referred to his initial findings in relation to the mother’s allegations about maltreatment of the child by the father. He reiterated the finding that on the evidence it was unlikely there had been any abuse.
The final additional consideration, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings, was of considerable importance in this case. As it is also a primary issue in the appeal, we repeat the trial judge’s reasons:
146.Dr [B] said that if the child was living primarily with his father and spending regular time with his mother, the mother would probably find it extremely difficult to return the child to his father. Dr [B] thought that this would almost invariably cause the family to resort to further litigation which would be damaging for the child. Dr [B] also thought a shared parenting arrangement would be unrealistic and (by inference) would lead to further litigation. Accordingly, he thought things had reached the point where the best interests of [the child] required that he live with one or other parent and spend little time with his other parent.
147.And Dr [B] was quite emphatic that it is very important for the child’s best interests that there really needs to be a final parenting order rather than an order which would involve a trial period of say three months as proposed by the father.
Given the trial judge’s reliance on the evidence of Dr B, we interpose at this point the essential parts of that evidence as recorded in the doctor’s written report and also his oral evidence.
In his last report dated 28 August 2011 (the fourth by him in the course of the proceedings) the doctor said (from page 12-14):
…the mother presents as an overly anxious person who needs the child close to her for her own needs and this intern [sic] increases the child’s problems. The child’s separation anxiety and the mother’s separation anxiety has been a continuing problem. This has obviated the mother’s ability to see what the issues are. I also don’t believe [the mother] has intentionally disrupted the child’s relationship with the father. I do believe that the high anxiety levels between her and [the child] prevent her from being able to make a balanced judgement about the child’s relationship with the father and be able to contain her own anxiety.
It was clear from the court proceedings in 2004 that [the mother] was unable to manage her anxiety and so this is why I made the recommendation in 2007 that there be a change of residence to prevent further prolonged litigation. However, we are now at a situation where litigation has been continuing close to 10 years. This poor child has been subject to continued stress and burden from this struggle and acrimony between the parents which has far outweighed the supposed adverse effects of parenting.
…
…the window of opportunity for this child to be in a more positive emotional environment and be able to still maintain a relationship with both parents is fast closing or is closed.
…
RECOMMENDATIONS
…
2.… I stand by my original report which indicated that if the child were in the care of the father that this would have closed the litigation and there would have been a healthy robust relationship between the child and both parents. At this stage now the child is older, whilst I believe that there still is the possibility of a change of residency and maintaining a … relationship with both parents it has become more complex.
3.If the court decided that in conclusion there was only one choice which was the residence with one parent and virtually no contact with the other parent, then I would probably favour the child remaining in the mother’s care because of the closer relationship with the mother. The least detrimental alternative would probably [sic] for the child to remain in the mother’s care and have no contact with the father or perhaps some recognition contact two or three times per year for a few hours. This undesirable outcome would be preferable to ongoing litigation, where there can only be further active damage to the child.
The oral evidence of Dr B both confirmed and expanded on his clear opinion in his written report. In response to questions from the counsel for the Independent Children’s Lawyer, the doctor said (transcript of proceedings,
1 September 2011, page 220):
[MS WARD]: I’m wanting to get at her capacity if that scenario arose – her capacity to enjoy time with [the child], in a way that protected him from her own anxiety about what was going on when he was living with his dad? --- I think she has difficulty with that.
And if this is speculative, please say so, but does that raise the possibility that if [the child] was living with his dad and having regular contact with his mum, she might find it difficult to comply with orders requiring her to return [the child] to dad at the end of the weekend or the end of some school holiday time? --- I think she would find it extremely difficult.
Does it then follow that this family might continue to depend upon litigation in this court, to try and resolve their parenting arrangements for [the child]? --- Well, that’s – I think that’s now my overriding fear and concern for the child, that he’s had, up to the age of 10, or his only memory, really, of life is in an environment that’s coloured by litigation; that’s a very high risk of litigation continuing for the next few years, that, really all of his childhood would have been spent in litigation.
So my fifth proposition, I think you may have already answered, but it was that further litigation is detrimental to [the child’s] interest? --- Absolutely.
In addition Dr B said (transcript of proceedings, 1 September 2011, pages 221, 224, 226):
[MS WARD]: Neither scenario is attractive but one might regrettably be necessary? --- I fear that that’s the case. I fear that we are no longer looking at trying to find an optimal solution for the child where he can have a good relationship with both parents, albeit not perfect. I think we are looking at perhaps a least detrimental alternative where we can try and now limit further damage on the child.
…
--- I think that the ultimate outcome of a shared parenting arrangement in my experience with high conflict cases such as this is unrealistic There needs to be a high degree of sophisticated communication and cooperation between parents to be able to maintain a shared arrangement so I think that that would be, in my mind, completely unrealistic. So it would really need to be coming to one major proposal or the other which is where the child resides with one parent or the other parent.
…
--- I would probably fall on the side of saying, “Well, the child is better to stay with the mother if she’s having – if he’s having no contact with the father than to be with the father and have no contact with the mother” because of, I guess, the history and the closeness of the relationship. But that would obviously be a very bad outcome for the child either way.
[MS WARD]: Do you propose that the contact should be supervised in some way? --- Probably. It probably needs to occur in a way that prevents further litigation. So I think that that’s my major issue here; is that this child needs to have some of his childhood without litigation.
Yes. The purpose of the supervision would not be - - - ? --- It’s really to protect the non-residential parent.
Returning to the trial judge’s reasons for judgment, his Honour summarised the submissions of the parties, demonstrating his clear appreciation of their cases.
The Independent Children’s Lawyer’s position was that ongoing litigation was detrimental to the child and must stop. Final orders were urged, to provide the child with stability before reaching adolescence and beginning high school. This was consistent with the opinion of Dr B (transcript of proceedings, 1 September 2011, page 236).
It was submitted that the mother was unable to support the child having a relationship with the father. It was further suggested that the fact the family had returned to the Court for a third final hearing demonstrated there were real problems in the child’s ability to maintain a relationship with both parents.
The various proposals put forward by the father were resisted by the Independent Children’s Lawyer. The option requiring a revisiting of the situation with a view to shared parenting was said to be completely unrealistic and to not provide the child with the finality of litigation he deserved. The third proposal, for no time with the mother for six months and time thereafter being subject to a psychological assessment, was resisted on the same basis.
Despite the “good enough” parenting capacity of the father, the second proposal that the child live with him and spend time with the mother was considered by the Independent Children’s Lawyer to have too high an emotional cost.
The mother’s position was that the child’s secure base with her should be preserved. As mentioned, she indicated she would consent to the orders proposed by the Independent Children’s Lawyer.
We have already set out the applicant father’s position in paragraphs 15 and 16 above. He sought to rely on Dr B’s statements that there might still be some window of opportunity for a meaningful relationship with both parents if the child lived with him, and that the older the child becomes the less significant his primary attachment to the mother would be.
Having set out the largely unchallenged evidence of the experts, and the evidence and position of the parties, the trial judge returned to the primary considerations guiding his decision. As the conclusions reflect the core of his Honour’s reasoning, it is as well to set out the relevant parts of the reasons here:
166.On the two previous occasions involving final hearings, this Court has endeavoured to put in to place orders designed to enable the child to maintain and develop a meaningful relationship with both his parents. On each of those occasions the orders had broken down. The problem which has developed is that the consequences of orders designed to enable the child to have a meaningful relationship with each of his parents have exposed the child to quite harmful matters. These include firstly, a continuation of the litigation with the negative consequences of this referred to above. Secondly, some degree of psychological harm to the child which has arisen out of the very complex dynamics involved in this family endeavouring to implement the orders.
167.Dr [B] has indicated that his overriding concern about damage being done to the child is that major damage flows from the ongoing litigation. Dr [B] said that clearly it is anything but in the interests of the child for the litigation to continue. He also said that tragically for [the child], things appear to have arrived at the point where it is impossible for his best interests to be served by having opportunity for a relationship with each of his parents because of the negative consequences which flow from endeavours to provide such opportunity.
…
169.To make matters even more complicated, Dr [B] thought that the window of opportunity which had previously been open to permit [the child] to change his residence from mother to father with a reasonable prospect of success, had now probably closed.
170.In these circumstances, Dr [B] said that in order to spare the child the anxiety of endeavouring to live in the two different households and to spare him the almost inevitability of further litigation which would almost certainly follow if orders along those lines were to continue, the Court is really faced with a stark choice. That is, either the child lives with his mother and really has only recognition contact with his father, or vice versa.
171.I do not consider it appropriate to adopt the father’s proposal that the child reside with him and after a period of three months there be an assessment by Dr [B]. There are numerous problems with it in my view. Firstly, Dr [B] said that this child needs conclusion and certainty about the parenting arrangements. In my view, for him to pass to his father in what might be perceived by him to be for a period of three months, would only exacerbate his uncertainty about his future arrangements. In my view, it would be almost inevitable that such a change would be met by further litigation. Neither the parents nor the child would know what the ultimate outcome would be likely to be. To the extent that this part of the father’s application is driven by his desire ultimately to achieve a shared parenting arrangement, in my view there is little reason to be confident that such an arrangement would ever be able to be managed by these parents. And it is inconsistent with the strong views of both Dr [B] and Dr [K].
172.In my view the last of the father’s three proposals has some similarity with his three month proposal. It would involve the child passing into the care of the father and Dr [B] reviewing arrangements, and particularly assessing the mother’s psychological condition, in effect to determine whether it would be appropriate for her to spend time with the child. At least to an extent, in my view, this suffers from the same difficulties of uncertainty as the three month proposal. I am not persuaded that such a proposal would be appropriate to the child’s circumstances.
173.That then leaves the competing applications by the mother on the one hand that the child continue to live with her and spend no time with his father and on the other hand by the father that the child live with him and spend time with his mother as determined by the Court. As indicated above, in my view for the reasons already indicated, the Court would only order recognition contact in such circumstances.
174.Accordingly, the Court has arrived at the position where it has to choose between each of the parents on the basis that it would be in the child’s best interests for the other parent only to have recognition contact.
175.The enormity of what this would mean for the child can be seen from the terms with which it was described by both experts. Dr [B] said, as indicated above, that for the child not to have a relationship with his father would be experienced by the child as being as though his father had in large part died. He said that this could have serious long term consequences for the child. These might include distorting the child’s ability to be able to trust in relationships and therefore fear relationships as well as risk of developing a psychiatric disorder.
176.Dr [B] said that on the other hand, if the child was removed from his mother’s primary care he would experience it as though his mother had died, she having been the parent with whom he has lived for almost the entirety of his life. He said that this would be a most significant factor to the best interests of the child. Dr [B] said that the child would become very anxious, he would be very worried for his mother, in fact it was more likely than not that he would be preoccupied by such grieving that he would be unable to concentrate. It would have a substantial impact on the child’s sense of security and similar longer term consequences as those referred to above if the child was not to have a relationship with his father would be likely to follow.
177.Both Dr [B] and Dr [K] said that if the child was to live with his father there would almost certainly be very serious challenges for the father in endeavouring to manage the child’s behaviour because of the likely reactions of the child. Both Dr [B] and Dr [K] had some reservations about whether the father would be sufficiently equipped to be able to deal with such challenges. The father suggested that he would rely on ongoing consultation with Dr [B] to assist him with any such difficulties as well as the support of various named persons.
178.The other consequence would be that the mother would become extremely distressed. Dr [K] thought that he would have his hands completely full in endeavouring to support the mother simply just to function in what would be regarded by her as absolutely devastating circumstances.
179.In my view, the benefits which might possibly flow from a change in residence for the child to that of his father, being a chance of being able to have a relationship with each of his parents, are outweighed by the risks associated with such a change as referred to above.
180.On the other hand, losing his relationship with his father would be likely also to have very serious consequences for the child. As Dr [B] said, it is a very bad situation for the child whichever course the Court decides to take. And what the Court is really faced with is a determination of the “least worst” course.
181.In the end, both psychiatrists expressed the view that it would be likely to be more damaging for the child to be removed from the parent who is his primary attachment figure namely his mother. I accept this.
The Appeal
The father’s amended notice of appeal filed on 29 August 2012 contains
11 grounds. Some of these grounds could not be properly regarded as challenges to the orders. At the hearing the solicitor appearing for the father clarified the basis of the appeal, and explained that there are two main complaints agitated.
The first is that the trial judge failed to address the cause of the ongoing litigation, namely the mother’s conduct in repeatedly terminating the child’s time with the father. It is argued that his Honour erred in not deciding a contravention application said to be outstanding, and not exercising the powers available to him to make orders other than final orders. (Grounds 1, 2, 3, 4, 5, 6, 8 and 11.)
The second is that the orders made for the child to spend time with the father are not in the child’s best interests. The trial judge is said to have erred in finding it necessary and in the child’s best interests to only have recognition or supervised contact with the father. (Grounds 7, 9, 10.)
Relevant Principles
The complaints raised by the father go to the exercise of the trial judge’s discretion in the making of parenting orders. The principles to be applied by appellate courts in the review of such decisions are well settled. It is as well to set out those principles which constrain us, for the benefit of the parties.
In Gronow v Gronow (1979) 144 CLR 513 the threshold which must be met before a discretionary judgment of a trial judge can be interfered with by an appellate court was discussed by Stephen J (at 519):
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ summarised the nature of errors which may lead to a finding of appealable error in the exercise of discretion (at 504-505):
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.
Appellant’s Submissions
The heart of the father’s appeal is that the trial judge failed to deal with the mother’s conduct in impeding the relationship of the father with the child, for which no blame had been attached to the father.
It is submitted that the trial judge incorrectly attributed the potential harm to the child to the ongoing litigation and failed to properly consider the “root cause”. That is, the mother’s influence and behaviour in non-compliance with orders for the child to spend time with the father.
This error is said to flow from failing to deal with an outstanding contravention application which had been transferred with the file from the Federal Magistrates Court. Alternatively, it is suggested the error flows from failing to properly consider and give sufficient weight to the mother’s behaviour. His Honour is said to have erred in placing too much weight on the litigation aspect of the harm to the child.
The father’s case before the trial judge and before us on appeal did not otherwise suggest how the “root cause” problem could be dealt with, other than by seeking the orders before the trial judge. Different orders are now sought in the appeal, though we note not in specific terms.
Counsel for the father argued that the trial judge ought to have made orders giving the mother a “second chance”, by upholding a shared parenting arrangement. It was suggested that a conditional “Sword of Damocles” order should have been made as a prior step before the final orders, which the appellant describes as a last resort. We understood this to mean that either by dealing with the contravention application or in the parenting proceedings themselves, his Honour should have provided for orders that gave greater contact and/or shared parenting time with the father, which if not complied with would lead in all likelihood to the child going to live with the father.
Independent Children’s Lawyer’s Submissions
In relation to the contravention application, the Independent Children’s Lawyer referred to the material that was before the trial judge and the list of documents upon which the appellant relied. It was submitted the father had not referred to or placed reliance on the contravention application.
Counsel for the Independent Children’s Lawyer emphasised that the purpose of the proceedings was not to punish the mother for her failure to comply with orders. The task was instead to ensure that the child could benefit from the “least worst” orders that the circumstances compelled his Honour to confront.
Reference was made to the transcript of the trial and the submissions made on behalf of the father in relation to the three alternate orders he proposed (transcript of proceedings, 2 September 2011, pages 257-268). It was pointed out that the trial judge took some time to “go through” these with the legal representative of the appellant.
The Independent Children’s Lawyer submitted that at the trial the father made no submissions as to how his Honour should use the coercive powers available to him. It was pointed out that on appeal, the appellant had put forward no specific proposition as to what alternative order his Honour should have made.
It was further said there was no evidentiary underpinning for any type of “Sword of Damocles” order that the appellant now says the trial judge should have made.
It was submitted that the expert evidence recorded that the mother believed that she was supporting the child’s contact with the father, but that she had not been able to move on from her anxieties. Reference was also made to Dr B’s observation that the parties lacked the high degree of sophisticated communication and cooperation required for shared parenting. It was said that the unfortunate but logical conclusion of this, as suggested by the doctor and accepted by the trial judge, was that shared parenting was completely unrealistic in the circumstances of this family (transcript of proceedings,
1 September 2011, page 221).
Respondent’s Submissions
At the hearing of the appeal, counsel for the respondent mother primarily relied on her written submissions. Those submissions refer to the evidence and recommendations of Dr B, and seek to defend the alleged errors in the trial judge’s decision.
In relation to the contravention application it is submitted that this was not an issue raised by the appellant at trial. As we do not intend to allow the appeal, it is unnecessary to consider the submissions for the mother in any further detail.
Discussion
In relation to the father’s argument that the trial judge ought to have made orders giving the mother a “second chance”, but making it clear that there would be dire consequences if she did not comply with those orders, the appellant conceded that he had not directly put any such order before the trial judge. His counsel submitted however, that his Honour ought to have exercised his statutory powers and considered it himself. It was further submitted his Honour erred in failing to provide reasons for not so doing.
The appellant conceded that the experts were not questioned about the feasibility of any such alternative orders, or specifically whether the mother’s behaviour could have been changed by a different order. The clear opinion of Dr B was that the mother’s behaviour would only change if a dramatic change in circumstances occurred. While the expert opined that the mother might eventually adapt to the child being in the care of the father, his view was that changing the child’s residence to live with the father was overall not in the child’s best interests.
A trial judge is not bound by the submissions of parties, nor is he or she required to conduct a party’s case or to create possible orders, but rather must focus on what is in the child’s best interests. In any event, the weight of the expert evidence in this case was clearly against the continuation of proceedings and the making of any orders other than final orders.
Those proposals which were put by the father were understood and considered by the trial judge as part of the determination of what orders were in the best interests of the child. We do not consider there to be any error in his Honour’s approach to those proposals.
It is apparent from the reasons for judgment that there was not in fact any doubt that the mother had failed to comply with orders. His Honour also accepted that the mother’s non-compliant behaviour had been harmful to the child. However his Honour was concerned, consistent with the expert evidence, with other factors that were also harmful to the child. The ongoing litigation, the continuation of impermanent parenting orders, and the unlikelihood that the mother was going to change (short of some major intervention), were other such concerns.
Based on these findings the proper approach was for the trial judge to hear the trial, rather than determine the contravention proceedings in isolation. The consideration of the mother’s behaviour, or the “root cause” as referred to by the father, was therefore a matter to be taken into account with many others.
The father has not demonstrated that the trial judge failed to properly consider or give proper weight to the mother’s behaviour. His Honour accepted that the mother’s conduct was a part of the difficulties the child presented with to the experts. The trial judge considered that behaviour and weighed it against the other relevant factors in the case.
The unchallenged expert evidence of Dr B before his Honour was that the “continued stress and burden [on the child] from this struggle and acrimony between the parents [had] far outweighed the supposed adverse affects [sic] of parenting” (single expert’s report, 28 August 2011, page 13). Without evidence to the contrary, his Honour could not properly have given more weight to the effects of the mother’s behaviour than to the effects of the ongoing litigation.
It can be seen from the expert evidence that there was no utility in adopting orders which provided the parties with a further chance to attempt shared parenting arrangements. Indeed if the child’s best interests were to remain paramount, on the expert evidence there was no choice for the trial judge but to make the kind of orders he did (see trial judge’s finding at paragraph 174).
In light of the elevated concern about the effect of continued litigation, the real issue for his Honour’s determination was what parenting orders would bring finality to that litigation and be in the best interests of the child. The proposals of the parties and of the Independent Children’s Lawyer, all of which had disadvantages, were considered against these requirements. We find no error in his Honour’s approach. The appeal will be dismissed.
Costs
We explained to the parties at the conclusion of the hearing that if the appeal was dismissed, as we have determined, that we would not be inclined to make an order for costs in this case due to an absence of justifying circumstances.
There is no part of the father’s case, including how it has been conducted, that would justify such an order. The fact that his appeal has not succeeded is merely a part of the long and sad history in this litigation.
Counsel for the Independent Children’s Lawyer made an application for costs pursuant to the grant of Legal Aid, however did not wish to be heard any further on the merits. In the circumstances of this case just referred to, it would not be appropriate to order that the father pay the costs of the Independent Children’s Lawyer.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Faulks DCJ and May J) delivered on 5 June 2013.
Associate:
Date: 5 June 2013
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