Parra & Nicholas
[2021] FamCAFC 87
•7 June 2021
FAMILY COURT OF AUSTRALIA
Parra & Nicholas [2021] FamCAFC 87
Appeal from: Nicholas & Parra [2020] FCCA 3366 Appeal number(s): EAA 2 of 2021 File number(s): DUC 154 of 2020 Judgment of: AINSLIE-WALLACE J Date of judgment: 7 June 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders – Overnight time – Best interests of the child – Weight challenges – Decision of the primary judge not plainly wrong – No error of law – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, s 117(2A)
Family Law Rules 2004 (Cth) Sch 3
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
U v U [2002] 211 CLR 238; [2002] HCA 36
Division: Appeal Division Number of paragraphs: 81 Date of hearing: 1 June 2021 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Lawrence Solicitor for the Respondent: Kelly Hardie Solicitors ORDERS
EAA 2 of 2021
DUC 154 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS PARRA
Appellant
AND: MR NICHOLAS
Respondent
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
7 JUNE 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal to adduce further evidence filed on 19 May 2021 is dismissed.
2.The appeal against the orders of a judge of the Federal Circuit Court made on 10 December 2020 is dismissed.
3.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parra & Nicholas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
On 10 December 2020 a judge of the Federal Circuit Court made interim parenting orders concerning X (“the child”) the daughter of Ms Parra (“the mother”) and Mr Nicholas (“the father”). The child was born in 2015 and has just recently turned six years of age.
The parties were in a relationship from June 2014 until 24 December 2016 when they separated. Since separation the child has lived with the mother and spent time with the father. After separation it seems that he spent a considerable amount of time with the child although after he commenced his present relationship in about March 2018, the time spent with the child lessened.
BACKGROUND
The child is schooled at home by the mother. Her schooling commenced in 2020. The mother is engaged full time providing a service business from her house.
The child has a condition which is said to be a Paediatric Autoimmune Neuropsychiatric Disorder. She is under the care of a general practitioner and a paediatrician. The mother said that amongst other symptoms associated with the condition, when the child is unwell she exhibits behavioural difficulties including separation anxiety. A letter from a paediatrician who conducted a consultation with the mother and child in April 2020 noted that the child has anxiety about school and being separated from her mother.[1]
[1] Annexure “D” to the affidavit of the mother filed 24 July 2020 at page 3.
While there are issues between the parties about the child’s medical treatment and schooling, which no doubt will be fully ventilated in the final hearing, the issues for his Honour’s consideration in the interim hearing concerned parental responsibility, the time the child spends with the father, vaccinations and what restrictions if any would be placed on who or in whose company the child spends time.
As part of the orders made by the primary judge on 10 December 2020, he directed the preparation of a Family Report in preparation for the final hearing.
At the conclusion of the interim hearing on 2 November 2020, the primary judge made orders which, it seems addressed some of the mother’s concerns for the child, namely that any vaccination of the child would only take place with the joint consent of the parties and that the car seat in which she is transported by the father complies with the relevant Australian standards.
There was no dispute before the primary judge that the child would continue to live with the mother. The primary judge found (and it was undisputed) that both parents want the child to have a meaningful relationship with each of them (at [40] and [45]).
The issues for his Honour’s determination were:
Time
The father sought that, up until 27 January 2021 the child spend time with him each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, each Wednesday from 5.00 pm until 7.00 pm, time on special days and block time over December 2020 and January 2021. From 27 January 2021 onwards, the father sought orders for the child to spend time with him during each school term from the conclusion of school each alternate Friday to the conclusion of school on Monday, each Wednesday from 5.00 pm to 7.00 pm, half the school holidays and time on special days.
The mother proposed that up until 27 January 2021, the child spend time from 9.00 am until 3.00 pm each Saturday, 3.00 pm until 7.00 pm each Wednesday and time on special days. Further, from 27 January 2021, the mother proposed overnight time with the father each alternate weekend from 3.00 pm Friday until 3.00 pm Saturday, each Wednesday from 3.00 pm until 7.00 pm and for three separate days from 9.00 am to 3.00 pm in each week of the school holidays.
The mother’s proposed orders were to commence in January 2021, but subject to the caveats; “providing the child is continuing home-schooling” and “providing the child wants to stay overnight”.[2]
[2] Mother’s Response to Application for Final Orders filed 24 July 2020 at page 13.
Injunctions
The mother sought that the father’s new partner be enjoined from attending any of the child’s medical appointments and an order that the child not receive vaccinations without the mother’s consent.
She further sought that the child’s time with the father’s family (save for Ms B) be supervised by a third person agreed between the parties and that the child not come into contact with Ms B.
Overnight time with the father
The mother’s evidence was that from separation the father spent significant time with the child, and at the mother’s suggestion after a few months, the child was spending time with the father each second weekend from Friday afternoon until Sunday evening. This arrangement continued until July 2018. In addition in 2017 the father would visit the child at the mother’s house during the week and on the weekends when she was not otherwise staying over with him.
It seems, at least according to the mother that this previous harmonious agreement faltered when the father re-partnered and, while the child continued to spend time with the father every second weekend until July 2018, the father did not visit her at the mother’s house. Apparently overnight time was stopped by the mother from July 2018 until September 2018 until the mother had met the father’s new partner and had visited their home.
The mother asserted that having begun a relationship with his new partner, the father’s interest in seeing the child lessened. He contended that the mother began curtailing his time. There is however agreement that in 2019, the child spent limited time with the father although spent a week with the child in December 2019. Thereafter from March 2020 until May 2020 the child only spent day times with her father and overnight time re-commenced in mid-May. The mother contends that the child “refused sleepovers on most occasions”, reverting on those occasions to spending day time only with the father.[3]
[3] Mother’s affidavit filed 24 July 2020 at paragraph 64.
As to the child’s time with the father, the primary judge found that there was no evidence to restrict the child’s time with the father to only day time, especially given that she had spent regular overnight time with him before. His Honour further found that overnight time would enable the child to develop a more meaningful relationship with the father rather than the limited times preferred by the mother. So too, his Honour found the child’s meaningful relationship with the father would be enhanced by an additional weeknight overnight period in the week in which the father did not have the child for the weekend (at [44]–[46]).
The presence of the father’s new partner
The mother expressed a number of concerns in her affidavits filed in the hearing before the primary judge that the father’s new partner was seeking to usurp the mother’s role and take the child to medical appointments to cause the child to be vaccinated or to commence different medications or enrol the child in school without her knowledge.
It is to be observed, that, apart from the mother’s expressed concerns, there was no evidentiary basis to support the mother’s concerns or suspicions.
His Honour quite correctly found that there was no evidence that would require any restraint on the partner’s time with the child nor any need for the father to be present when the child was with the partner (at [47]).
The father’s family
The mother said that the relationship between her and the father’s family was hostile and bitter. She said that they had resorted to denigration of her and she refers to an incident when the child returned home from spending time with the father and his extended family, and made a rude and insulting comment about the mother and when asked who had told her that, the child said Mr E, the father’s brother.[4]
[4] Mother’s affidavit filed 24 July 2020 at paragraphs 49 and 50.
The mother’s difficulty with the father’s family was a significant theme in her affidavit which contained not only detailed accounts of disputes, insults and contretemps, but copies of text messages between the father and family members. The mother takes particular exception to the father’s sister, Ms B who she said had continually tried to cause trouble to the point when the mother cut off all contact with the father’s family.
The primary judge determined that the child was not to be alone in the company of the father’s relatives to ensure that denigratory or negative comments about her were not made to or in front of the child. His Honour did not make an order excluding Ms B from being in the child’s presence in the company of the father.
Parental responsibility
The father sought an order for equal shared parental responsibility while the mother sought an order for sole parental responsibility.
The mother cited in particular the differences of opinion between her and the father about the child’s medical treatment and the nature of the child’s schooling.
The primary judge concluded that it was in the child’s best interests that, pending final hearing, the parents have equal shared parental responsibility which will require joint decision making for long term parenting decisions.
Thus the primary judge made orders giving effect to these findings.
THE APPEAL
The mother appeals. The mother appears for herself and drew the grounds of appeal.
Ground 5
By this ground, the mother contends that the primary judge was biased in that he found favour in the father’s proposed orders. While the ground is couched in terms which would suggest that the mother is contending actual bias, it is tolerably clear that she is raising apprehended bias.
I will deal with this ground first. Claims of apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other substantive issues are decided.[5]
[5] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117].
Whether conduct gives rise to an apprehension of bias is answered by considering whether a fair-minded and informed lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the case, such that he or she was not open to persuasion, rather than whether he or she did so.[6]
[6] Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]–[8].
It is important too to understand as Von Doussa J explained in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668:
38.… The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision…
Turning then to the mother’s argument. The Summary of Argument does not throw particular light on the ground. For example at paragraphs 5(a) and (e) the mother said that the primary judge “seemed very focussed on my inability to give exact work hours” and “seemed preoccupied with discussing my work hours and the [f]ather’s partner attending change over rather than the actual issues at hand, regarding the [c]hild”.
The context in which the primary judge asked the mother questions about her work hours was in exploration of her request that when the child was picked up and delivered after spending time with the father, that it happen at her house. In fact, his Honour’s questions were as a result of the mother’s enquiry: “[w]hat happens if I physically cannot take her because of work?”.[7]
[7] Transcript 2 November 2020, p.18 line 47.
The mother’s evidence about how many hours she worked each day was, having regard to the transcript, not easy to understand. His Honour made valiant efforts to attempt to clarify the hours she worked in order, it seems to determine when the father would collect and return the child.
Part of the mother’s contention was that the father’s work hours were not equally questioned. The only issue before his Honour that concerned the father’s working hours was the time at which he would pick up the child on Wednesday afternoon. He said he could not collect her before 5.00 pm. This was accepted by the mother.
Given the apparent straightforward issue of the father’s work hours, it is hardly surprising that the primary judge did not feel the need to question him.
It is important to understand the context in which his Honour was considering the evidence. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, are parenting orders which are determined in accordance with provisions of Pt VII of the Family Law Act 1975 (Cth) (“the Act”). In deciding the arrangements which will promote the best interests of a particular child the Court is required to consider a series of principles, objects and considerations there identified. As part of that process, the primary judge is entitled to ask questions and explore matters which may assist him or her to determine those important issues. Clearly then the mother’s work hours and her availability to take the child after spending time with the father was important to his Honour’s decision.
No apprehension of bias is made out.
Ground 1
Returning to the remaining grounds of appeal, Ground 1 contends that the primary judge failed to properly consider the evidence, particularly the medical evidence regarding the child’s separation anxiety and that he failed to properly understand her medical condition. The mother also says the primary judge failed to consider her evidence about the conduct of the father’s family.
It is clear that the primary judge was well aware of the issues as the mother outlined them both in her submissions and in her affidavit, the thrust of this ground is that the primary judge did not give the evidence the weight or importance that the mother contended he ought to have.
For example, at paragraph 1(c) of the Summary of Argument, the mother asserted that the child’s welfare was at risk because the father’s new partner “gives the [f]ather medical advice”, she not being qualified to do so. As I have earlier indicated, the mother expressed significant concerns about the child in the presence of the father’s new partner but other than the articulation of the concern, gave no evidence about the basis for them. Equally, there was nothing in her trial affidavits which supports her concerns about this particular aspect. There was, in short, no evidence that there was a risk to the child from the father’s new partner.
The mother made submissions to the primary judge and in the course of those submissions argued that she should have sole parental responsibility for medical matters for the child because she said, the father was subject to manipulation by his family. Although the mother submitted that there were no difficulties about medical issues until the father’s new partner came along, she made no submissions supporting the matters she sought to raise in the Summary of Argument.
In oral submissions, the mother argued that the primary judge failed to consider the evidence in context and thus erred. She argued that the child was not used to spending overnight time with the father, and that his Honour’s conclusion was wrong. In support of that submission, the mother said that although the child did indeed spend overnight time with the father after separation, some of that time was when he was living with her sister and the mother sought to portray that fact as explaining why the child enjoyed her time with the father.
Equally, the mother complained that the primary judge failed to give proper weight to the “risk” facing the child from the father’s family. While the mother conceded that his Honour did indeed take note of her complaints about the father’s family and made an order requiring the child not to be alone in the company of the father’s family, she contended that had he given proper weight to the evidence he would have made the orders she sought.
The weight or importance attached to evidence in the determination of issues is a matter for the trial judge and with which an appeal court will be slow to interfere.[8] Here, no error has been exposed and this ground will not succeed.
[8] House v The King (1936) 55 CLR 499.
Ground 2
This ground contends that the primary judge failed to afford the mother procedural fairness in that he permitted the father to “submit evidence via tender bundle (via email) to respond to [the mother’s] affidavits”.
At 2(b) of the mother’s Summary of Argument, she argues that she was not given the same opportunity to “gather evidence and respond to [the father’s] new affidavits and documents”.
At the commencement of the hearing the mother raised a concern with the primary judge that the father’s solicitor had emailed documents to the court. The primary judge informed her that he had received a Case Outline document, which was a summary and not evidence.[9]
[9] Transcript 2 November 2020, p.2 lines 38–39.
According to the submissions of counsel for the father, and not apparently in dispute, in preparation for the interim hearing, directions were made for the filing of affidavits. The father filed an affidavit of his sister, Ms B on 26 October 2020 in accordance with the directions.
The father’s solicitor then sought to tender a few text messages which, the solicitor said were in answer to the mother’s evidence that the father was not complying with the orders for the return of the child and it was said that the text messages demonstrate that he had contacted the mother seeking her permission to be a little bit late. The mother objected to the tender of the text messages because they were in response to complaints she made in her affidavit, she had not had the chance to respond to the father’s affidavits and she complained that she was told that she had to submit her evidence by 26 October 2020. The primary judge nonetheless accepted those text messages.
The mother relied on two affidavits, the latter of which was filed on 26 October 2020. A considerable amount of material was attached to those affidavits.
It seems clear from reading the transcript that the mother confused the tender of the text messages with the filing of the affidavit by the father’s sister, which was filed in accordance with the directions.
However, at no point in the hearing did the mother indicate that there was other evidence which she wished to put before the court. In argument on the appeal, the mother said that she believed she would not be permitted to file any further material, and she said she had earlier, via email, sought an extension of time in which to file the documents, but that was rejected.
However, while the Summary of Argument contends that had the mother been able to respond to the affidavits she would have demonstrated inaccuracies in the evidence and would have identified lies told by Ms B. The summary does not identify even in the most general way the evidence that she would have put before the primary judge had she been permitted to do so.
By an Application in an Appeal filed on 19 May 2021, the mother sought to introduce as evidence in the appeal, an affidavit in which she takes issue with the evidence of Ms B and to which the mother annexed, among other things, copies of emails, text messages and Facebook posts going back to 2013. It is tolerably clear that this is the material that she would have liked to put before the primary judge. She argued that had this been before him he would have made an order excluding Ms B from being in the child’s presence. Even if it was accepted that this evidence might have had a material effect on the outcome, it is impossible to argue that the primary judge denied her procedural fairness in not permitting the mother to adduce further evidence when he was unaware that she wanted to. It too should be noted that the evidence the mother sought to adduce and which she said would have persuaded the primary judge to exclude Ms B from seeing the child was, in essence more of the same as the material annexed to her filed affidavit. However, I am not persuaded that had the primary judge had this further evidence before him, he would have made a more draconian order in relation to Ms B or the father’s family and on that basis this application will be dismissed.
No procedural unfairness has been demonstrated.
Ground 3
This ground asserts that the primary judge’s decision was “plainly wrong” in that he made orders for time that neither party sought in their applications. The orders, the subject of this ground are those relating to school holidays and overnight on a Wednesday evening.
Although the mother contended that the issue of holiday time was not before the primary judge, the father’s application sought orders for that time to commence from late January 2021.
As to the Wednesday overnight time, both parties sought an order for the child to spend time with the father on Wednesdays – the difference between them was whether the time started at 3.00 pm and concluded at 7.00 pm whereas the father sought from 5.00 pm to 7.00 pm because his work commitments prevented him from coming earlier. The mother in her submissions said it would be more beneficial to the child were the Wednesday time longer.[10]
[10] Transcript 2 November 2020, p.6 lines 37–45.
True it is that neither party sought the child’s time on Wednesday include overnight. However a judge is not bound by the orders sought by the parties. The judge is required to consider the child’s best interests. It is incorrect to suggest that the primary judge was confined to a choice between the suggestions of the parties.[11]
[11] U v U (2002) 211 CLR 238 per Hayne J at [171].
The mother argued that the child did not wish to spend overnight time with the father and had said as much, that the mother believed that the child should determine whether or not she spent time overnight with the father and “[i]t does not benefit [the child] in anyway [sic] to be carried off kicking and screaming for forced sleepovers”.[12]
[12] Mother’s Summary of Argument filed 11 May 2021 at paragraph 4(d).
None of this was in evidence before his Honour. True it is that while the mother’s evidence was that “[f]rom about mid May 2020, [the child] has refused sleepovers on most occasions”,[13] there was nothing in her evidence or indeed her submissions to the primary judge about the child being “carried off kicking and screaming”.
[13] Mother’s affidavit filed 24 July 2020 at paragraph 64.
It is also clear from the mother’s evidence that she had no concerns for the child in staying overnight with the father, her concerns were principally connected with the presence of the father’s partner and the prospect of the child coming into contact with the father’s family. In fact at the commencement of her submissions to the primary judge the following exchange occurred:[14]
HIS HONOUR: Do you wish to make some oral submissions to me in support of your application?
[THE MOTHER]: I’m not really sure how to do it.
HIS HONOUR: Well, it’s just a matter of having a chat, really. So I understand what the orders are that you want.
[THE MOTHER]: Yes. My main concern is his family having unsupervised contact.
[14] Transcript 2 November 2020, p.15 line 45 to p.16 line 6.
The mother’s response to the primary judge entirely correlated with the thrust of her affidavits and the attached text messages. In fact, the mother continued after the above exchange and addressed the primary judge about Ms B and the difficulties she caused.[15]
[15] Transcript 2 November 2020, p.16 lines 17–35.
It was thus made clear to the primary judge that the mother’s principle concern was the child’s contact with the father’s family and with the father’s new partner, a topic to which she returned.[16]
[16] Transcript 2 November 2020, p.18 line 6.
This focus of the mother’s case, together with the evidence of the child spending overnight time with the father in the past and the evidence of both parties that they child should enjoy a meaningful relationship with each of them, was a proper basis for his Honour making the challenged orders.
No error has been established.
Ground 4
This ground challenges the adequacy of his Honour’s reasons. The obligation of a judge to give reasons for decision are well known. The reasons must be sufficient to expose the reasoning process to the decision made.[17] Nor does the duty necessarily mandate lengthy or detailed reasons.[18]
[17] Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267.
[18] Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386.
Thus the question which should be posed under this ground is whether the primary judge’s reasons demonstrate the decision making process. However, the mother’s Summary of Argument makes it clear that her challenge to the reasons is not whether they are sufficient to indicate why his Honour came to the conclusion he did, but, that he had not given sufficient weight to the evidence which she considers to be important and that he failed to take into account this important evidence.
It is unnecessary to set out the mother’s complaints about the reasons’ inadequacy save to indicate that they relate in part to the mother’s allegations against the father’s family and her view that the father is unable to “stand up to his family”.[19] These submissions are in fact complaints that the primary judge did not approach the importance of the evidence as she did.
[19] Mother’s Summary of Argument filed 11 May 2021 at paragraph 4(b).
In short, the submissions demonstrate no error.
In a submission unrelated to any particular ground, the mother contends that the previous parenting orders made in July 2020 and November 2020 are still in force and she argues that there is a dispute as to what are the orders presently in force.
In July 2020 the primary judge made interim orders that the child live with the mother and spend time with the father each Saturday from 9.00 am to 3.00 pm and the father was also then restrained from permitting the child to be in the presence of his sister.
On 2 November 2020 orders were made at the commencement of the hearing which provided for the provision of a birth certificate, that any vaccination of the child would be the result of a joint decision of the parties and that the child be carried in a properly fitted car seat.
This baffling submission is readily disposed of. The orders of the primary judge made on
10 December 2020 as to the time that the child spends with the father and to the extent that they are different from those made in July 2020, the December 2020 orders are to prevail.
The appeal will be dismissed.
COSTS
On 19 February 2021 orders and directions were made by the appeal registrar as to the conduct of the appeal. Order 10 concerns any proposed application for costs and provided that a party seeking costs should file and serve a schedule of the costs sought by 4.30 pm on 25 May 2021.
A document was sent to the court by email on the morning of the hearing. Counsel for the father conceded that it did not conform to the order which directed that costs be calculated in accordance with Sch 3 to the Family Law Rules 2004 (Cth). It was however submitted that the mother should pay the father’s costs (which, it must be said were only those incurred by counsel in preparing for and appearing in the appeal). Counsel also conceded that if an order for costs was to be made, it was open to the court to determine a figure that was appropriate in all of the circumstances.
The mother opposed the costs order and argued that she was in receipt of Centrelink benefits, was not working because she had recently given birth and had no funds or resources from which she could meet a costs order.
Although the appeal has been wholly unsuccessful (s 117(2A)(e) of the Act), in this case I am of the view that it is not appropriate to make a costs order in favour of the father.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 7 June 2021
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