POLLOCK & GRANTON
[2017] FamCAFC 132
•14 July 2017
FAMILY COURT OF AUSTRALIA
| POLLOCK & GRANTON | [2017] FamCAFC 132 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal against the primary judge’s exercise of discretion – Where there is no challenge to the primary judge’s statement of law or findings of important facts – Whether the primary judge erred in failing to find that the father’s mental health posed a risk to the child’s wellbeing – Whether the primary judge erred in finding there were no protective concerns for the child in the father’s care – Whether the primary judge erred in failing to give any or sufficient weight to the views of the family consultant – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where all parties are in receipt of Legal Aid – No application for orders for costs. |
| Family Law Act 1975 (Cth) ss 60CC(2)(a), 60CC(3)(d), 60CC(3)(f), 60CC(3)(m) |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Ms Pollock |
| RESPONDENT: | Mr Granton |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | LEC | 88 | of | 2013 |
| APPEAL NUMBER: | EA | 165 | of | 2014 |
| DATE DELIVERED: | 14 July 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Austin JJ |
| HEARING DATE: | 30 August 2016 8 September 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 November 2014 |
| LOWER COURT MNC: | [2014] FCCA 2493 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Carney Mr Priestley |
| SOLICITOR FOR THE APPELLANT: | Susan Green Legal Practice |
| COUNSEL FOR THE RESPONDENT: | Mr O’Brien |
| SOLICITOR FOR THE RESPONDENT: | Carolyn Kelly Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carty Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The appeal be dismissed.
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 Pollock & Granton 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 SYDNEY |
Appeal Number: EA 165 of 2014
File Number: LEC 88 of 2013
| Ms Pollock |
Appellant
And
| Mr Granton |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
By Notice of Appeal filed on 12 December 2014, Ms Pollock (“the mother”) appeals against a number of parenting orders made on 17 November 2014 by Judge Halligan pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The orders concern the parties’ daughter, X (“the child”) who was born in 2011.
The child was 15 months of age when, without discussion with the mother, Mr Granton (“the father”) removed her from the family home and moved to Town B, some two hours away from where the parties and child lived. Since then the child has remained in the father’s care and spent time with the mother. This was the arrangement in place at the time of hearing.
The primary judge was satisfied that from when the child was about five months of age and until separation the father was more involved than the mother in the child’s care [58]. As at the date of hearing the child was settled in the father’s primary care and in his care “her needs generally have been well met” [167]. He did not favour orders which would disrupt the child’s stable care with the father, particularly because of the uncertainty which surrounded “the mother’s household in the immediate future” [169].
Thus, it was ordered the child live with the father and spend time with the mother with different regimes to apply before the child commenced school and thereafter.
Stated broadly, until the child commenced school she would spend time with the mother for five nights each fortnight and upon the child starting school, this would change to each weekend, for half of the school holidays and on nominated special occasions. Because the parties live about 165 kilometres or 2.25 hours travel time apart, more extensive time during school term was impracticable. It was also ordered that the parties have equal shared parental responsibility for the child. The orders largely reflect those sought by an Independent Children’s Lawyer (“ICL”) appointed to represent the child’s interests.
The ICL and the father resist the appeal and seek to uphold the orders made on 17 November 2014.
Background facts
So as to give the appeal context it is appropriate to record some brief background facts.
The father was born in 1986.
The mother was born in 1990.
The parties commenced cohabitation in October 2009 and separated on 19 January 2013.
The child was born in 2011. For the first five months of the child’s life neither party was in paid employment and the mother was the child’s primary carer [55].
When the child was five months of age, the mother returned to work (part time) and the father took a greater role than the mother in the child’s care, even when the mother was not at work [56]. The mother’s evidence that the father limited her involvement in the child’s care was accepted [57].
Separation took place on 19 January 2013 when, without forewarning, the father left with the child and moved to Town B where his family live.
In the following weeks, the father refused to allow the mother to have unsupervised time with the child and in the four weeks between separation and the first court event, the child saw the mother on three occasions under the supervision of the father and his parents [62].
The child’s living arrangements were regularised by interim parenting orders made by consent in a Local Court on 19 February 2013. The orders reflected the parties’ agreement that they have equal shared parental responsibility for the child, that the child live with the father and for her to spend time with the mother from noon Monday to noon Wednesday each week [8].
The child has been cared for by her parents in accordance with the interim orders in force from time to time [63].
Although it is not entirely clear when the father commenced a relationship with his now de facto partner Ms T it was no later than April 2013.
In mid-2013 the mother commenced a relationship with Mr R. He moved in with the mother, who lived at her parent’s property, in late 2013.
The interim orders were varied by consent on 28 November 2013 by making provision for the child to spend time with the mother over the Christmas period in 2013.
The primary judge thought it was likely that by December 2013 the father and Ms T were in a de facto relationship.
The hearing commenced on 3 March 2014 and continued over the following two days but because a witness was unavailable it was adjourned part-heard to September. However, before the hearing was adjourned, further interim orders were agreed on, the effect of which was to increase the child’s time with the mother so that it commenced Monday morning and finished Wednesday afternoon.
On 25 March 2014, the mother and Mr R’s son Z was born. By the time the part-heard hearing resumed the mother had asked Mr R to move out and the future of their relationship was uncertain.
The father and Ms T’s son Y was born on 27 March 2014.
The hearing resumed in September 2014 and the orders under appeal were pronounced on 17 November 2014.
Although the mother filed her Notice of Appeal on 12 December 2014, from that point on the Court experienced great difficulty in having the parties, in particular the mother and ICL, ready to participate in the hearing. Various hearing dates were offered and rejected. Although we question why they were given the opportunity to reject hearing dates the answer might lay with the fact that these are parties of modest means who live a considerable distance from Sydney and are in receipt of legal aid. It would seem the registrar sought to make the parties’ ability to participate in the appeal as easy as possible. Furthermore some directions were not complied with and then when the appeal was called on it was not ready to proceed and was adjourned. For our part we regret that we have taken longer to publish our reasons than we had hoped would be the case.
Important findings that are not challenged
We agree with the submission by counsel for the ICL that several unchallenged findings were pivotal to the decision that it was in the best interests of the child for her to continue to live with the father. In particular, findings that:-
· Since 19 January 2013 the father has been the child’s primary carer [59];
· Though the child has a good and close relationship with each of her parents, she has a stronger relationship with the father than the mother and a healthy attachment to him [133];
· The child has close and healthy relationships with both sets of grandparents, a maternal aunt and her parents’ partners [134];
· The child has spent time with her parents in accordance with the orders in force [63];
· The family report writer was laudatory of the father’s parenting [89], and his evidence was to the effect that the father had done a good job [119]; and
· Placing the child in the primary care of the mother would involve significant change for the child [168].
Devastating findings were made about the unreliability of the father’s evidence, whose credit was “destroyed” [32]. Similar criticisms were made of the father’s partner such that her evidence on controversial issues could not be accepted unless it was corroborated by a credible witness [46]. The paternal grandmother was “highly partisan” and her evidence on controversial matters was treated with caution [50].
On the other hand, the mother was accepted as being generally truthful [24] and the evidence given by her mother, step-father and partner was accepted.
Otherwise, the central ratio to the decision is evident in the following paragraphs:
167. Placing X with the father will maintain X in a settled care arrangement in which her needs generally have been well met. While there are grounds for concern about the father's lack of candour about his mental health, his failure to consistently maintain his involvement with his mental health professionals, and his failure in the past to remain medication compliant, there is no evidence that in the period since separation in early 2013 the father has displayed any signs of deteriorating mental health, despite the ongoing anxiety and stress of these proceedings. He has been able to meet X’s needs at a time of very rapid growth and development in the child’s life.
168. Placing X with the mother will involve a significant change for X. While she is comfortable with the mother and the mother can meet her needs, she will nonetheless have a change of home, a loss of the level of involvement with the father, father, Ms T, Y and the paternal grandparents with which she has become accustomed, and a change of pre-school with the need to make new friends there. It is unclear where she would be going to pre-school if living with the mother in [Town D]. It is uncertain whether Mr R would remain a member of the mother's household, and while he remains living in the mother's household at present, his relationship with the mother has broken down. If Mr R moves out, it is uncertain whether the mother will be able to afford the rent on her own and therefore if X moves to live primarily with the mother, she may be faced with yet another change of residence soon after moving to the mother.
Decision
169. In circumstances where I am satisfied that other matters are evenly balanced between the parties’ proposals, maintaining X’s current stable care arrangements assumes particular significance in this case, particularly due to the uncertainties surrounding the mother's household in the immediate future.
170. On balance, I am satisfied X’s best interests will be met by remaining in the father's primary care and spending time with the mother.
(As per original document)
The grounds of appeal
Before we commence our analysis of the various challenges, it needs to be remembered that this is an appeal against his Honour’s exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Disagreement by an appellate court only on matters of weight by no means justifies a reversal of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519). In parenting cases, although the views of appellate judges about what is in the best interests of a child may conflict with those of the primary judge, absent legal error or a plainly unjust result, the order of the primary judge must stand (CDJ v VAJ (1998) 197 CLR 172 at 218-219).
Counsel who appeared before us for the mother on the first day of the hearing adopted the submissions of counsel for the ICL about the nature of the appeal and the difficulties inherent in an appeal against an exercise of discretion. Counsel spoke frankly about the difficulties which the mother faced to achieve appellate intervention. This is because the grounds of appeal overwhelmingly attack the weight given or not given to certain facts; no challenge is made to his Honour’s statement of the law or, as we mentioned earlier, to various important findings of fact.
Of the 14 remaining grounds of appeal (ground 8 was abandoned), grounds 6 and 12 were described as “foundational” and as such, they will be considered first.
The father’s mental health and capacity to parent
By ground 6, the mother contended that the primary judge erred in failing to find that the father’s mental health posed a risk to the child’s wellbeing, which was greater if she was in his fulltime care and that the father’s attempts to mislead the court about it had deprived the judge of the ability to properly assess that risk. These matters dovetail with ground 12 which alleged error in finding there were no protective concerns for the child in the father’s care.
As these grounds suggest, the father has a history of mental ill health which assumed some prominence in the hearing. It was uncontroversial that the father, at 18 years of age, was diagnosed with paranoid schizophrenia. He was hospitalised and stabilised on medication. Further hospital admissions followed and when he was 20 years of age, the diagnosis was changed to post traumatic stress disorder. His Honour accepted that if the father’s mental health symptoms became acute he would be unable to care for the child [81]. Against a background of unreliable adherence to medication prescribed to assist his mental health, the primary judge was not confident the father would be compliant in the future [86]. Notwithstanding that the father was not attending a mental health professional, the primary judge accepted:
87. ... that the paternal grandmother has been a significant support for the father in the past in managing his mental health, and that as she sees him almost daily, she is in a position to, and will in fact, recognise any warning signs and ensure the father seeks appropriate intervention if he does not initiate that intervention himself.
The fact finding process was undoubtedly complicated by the lack of expert evidence in the father’s case about his mental health and prognosis. At [88] the primary judge said this paucity of evidence was “very concerning”. However, the totality of the evidence enabled him to assess the manner in which the father’s mental health issues had affected his parenting to date and, having made that assessment, to moderate the identified risk as to any future adverse impact on the child. This could be achieved by ensuring that if the child lived primarily with the father, he would be obliged to attend medical mental health advisors as required by them.
His Honour’s conclusions as to the ramifications of the father’s mental ill health are as follows:
89. The father has had the primary care of X since separation, a period now in excess of 18 months, and for almost all of that time has been involved in the stressful and anxiety-inducing process of this litigation. Yet over that period, there is no evidence to suggest that the father has failed to meet X’s needs, either in the mother's evidence or in the Family Report. In fact, the Family Report writer was laudatory of the father's parenting. This seems inconsistent with any suggestion the father’s parenting capacity has been compromised over that period due to his mental health issues or for any other reason, whether or not he has been medication compliant and whether or not he has completed appropriate clinical programs with his treating medical professionals.
90. I also note that the mother proposes that X spend overnight time with the father, including half of school holidays when she commences school. She has not proposed any orders requiring the father to maintain regular contact with his treating medical professionals, to take medication as prescribed, or to do anything else to seek to ensure a level of protection for X from the risks she says the child would be exposed to in the father's care if his mental health was not being properly treated. In my view that raises serious questions about the bona fides of the concerns the mother has expressed. Either her concerns are exaggerated, or she is content to expose the child to a risk of harm provided the child lives primarily with her.
91. Despite the serious issues with the father's credit, his past failure to remain medication compliant, and the singular lack of persuasive expert evidence about his current mental health and prognosis, on balance I am not satisfied that the father's mental health is a significant adverse factor for the child in the father's care, either on the basis of spending time with him or living primarily with him, although I am satisfied it remains a relevant issue to consider in framing any parenting orders.
92. I am satisfied that regardless of the time X spends with the father, there should be orders requiring him to attend on his treating medical professionals in relation to his mental health as recommended by them, to comply with all medication prescribed for him, and to check with his parents or another fully literate person each time he has a prescription filled to ensure that he has correctly understands the dose of the medication he is required to take and the frequency with which he is to take it.
His Honour returned to this issue at [149] and said:
149. The mother sought to make the case that because of the father's mental health issues and his suggested unreliability in remaining medication compliant, there was a real risk that the father would not be able to properly care for X. However, as I have explained, I am not satisfied that there is currently any appreciable risk that the father will be unable to care for X because of his mental health symptoms becoming acute. I am satisfied that whether X is to live with the father or spend time with him, there should be orders that the father attend on his treating medical practitioners and mental health workers as recommended by them, and that he take such medication as is prescribed for him from time to time as directed by his treating medical practitioners. I am satisfied that this is sufficient to address this issue.
Contrary to the argument raised by ground 12, it can be seen that at [149] the primary judge did not say in relation to the father’s mental health “that there were no protective concerns for [the child] within the father’s care” (Summary of Argument, para 35). That finding is to be found at [131] and is his Honours’ conclusion in relation to the application of s 60CC(2)(b) of the Act (about which there is no challenge), namely “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
What his Honour did say was there was not an appreciable risk that the father’s mental health difficulties would see him unable to care for the child. This is because the father had good family support which was attuned to his mental well-being (his mother) and he would be ordered to attend mental health professionals as required. It is clear that the father had been able to meet the child’s needs during a period of particular stress and no doubt, in placing weight on the good quality of care the father had provided in the period post separation, his Honour recalled the occasions on which the mother consented to orders the effect of which was that the child remained in the father’s care. This would explain the final sentence of [90] vis-à-vis the possibility that her concerns about the impact of the father’s mental health on his parenting capacity were exaggerated. The other possibility referred to in [90] is plainly discounted by his Honour’s references to the mother’s commitment and nurturing of the child.
We accept, as did his Honour, that it would have been preferable to have current medical evidence as to the state of the father’s mental health and his prognosis. Unfortunately, the medical and health professional witnesses who had sworn affidavits in the father’s case were not available for cross‑examination and were not relied on. Namely, a doctor from the local health district and a forensic psychologist. He also relied on a psychologist attached to a family support service but his expert opinion (as opposed to his observations) was given no weight. However, it is apparent that the father made a real attempt to adduce expert evidence on this point. The submission by counsel for the mother that the father deprived the court of evidence on the topic cannot be accepted.
We do not accept that the primary judge erred in the manner alleged and are satisfied that the findings as to the father’s mental health and its effect on his parenting capacity were open.
These grounds have not been made out.
The father moved away with the child
By ground 1 it is argued that the primary judge erred by giving insufficient weight to the father unilaterally relocating the child away from the mother due to animosity towards the mother and in disregard of the child’s best interests.
The challenge captures the essence of findings made at [60] of the trial reasons. Based on those findings, it is submitted that the only finding open on the evidence was that the father would not promote a meaningful relationship between the child and her mother and that he was not willing to facilitate and encourage such a relationship. In essence, the challenges raises the application of s 60CC(2)(a) of the Act which requires consideration of the benefit to the child of a meaningful relationship with both of the child’s parents and, in terms, the former s 60CC(3) of the Act.
The former s 60CC(3) was repealed by amendment to the Act in 2011 and did not apply to these proceedings. However, by s 60CC(3)(m) the court may consider any other fact or circumstance that the court thinks is relevant. Thus, the mother was able to mount an argument based on the concepts captured by the repealed provision and, having done so, the challenge can be raised on appeal.
The fundamental difficulty with the finding for which the mother contends, is that the primary judge discussed in detail examples of the father’s conduct which resulted in his having “serious doubts about the father’s appreciation of the significance of the child’s relationship with the mother…and…real doubts that he will promote X’s relationship with her mother in the future” [146]. Nonetheless, his Honour was satisfied that in the father’s primary care the child had developed and maintained a meaningful relationship with the mother. In addition it was uncontroversial that over a lengthy period he had proved himself reliable in having the child spend significant time with her. Indeed it was common ground that the child is happy and smart and she loves both her parents. These uncontested matters stand in the way of the findings for which the mother contends and no doubt explain why, in his criticism of the father, the primary judge did not go as far as the mother said he should.
The asserted error has not been established.
Criticisms of the mother could not outweigh criticisms of the father
Grounds 2, 4, 5 and 14 were argued together and continue the challenge concerning the parties’ likely support of the child’s relationship with her other parent. By these grounds it is submitted that the primary judge erred;-
·In giving insufficient weight to the father’s failure to acknowledge the child’s need for a close relationship with the mother (ground 2),
·In giving insufficient weight to the father’s lack of capacity to facilitate a relationship between the child and the mother and the mother’s involvement in parenting the child (ground 4),
·In treating the mother taking the child to playgroup as a matter involving the exercise of parental responsibility (ground 5), and
·In failing to give sufficient weight to the father placing his needs ahead of the child’s (ground 14).
At [66] of the trial reasons the primary judge commenced a discussion that continued for three pages of conduct by the father which reflected adversely on his capacity to put the child first, to facilitate the child’s relationship with the mother and her involvement in parenting the child. The matters raised by these grounds and which weighed against the father were not overlooked. At [68] and the paragraphs which follow, other allegations made by the mother were discussed and either dismissed as revealing “an element of hypocrisy” in her criticism of the father or were effectively neutral in how they applied to the pivotal question of with whom the child should live.
It is contended that the primary judge wrongly offset the long list in these paragraphs of findings critical of the father with the few examples raised against the mother. We do not consider that this to be a fair analysis of the reasons. On a fair reading, it is apparent that the primary judge grappled with the difficulties inherent in comparing these attitudinal matters between a parent who had been overwhelmingly responsible for the day-to-day care of the child and a parent who had had far less time and in this respect is untested [151]. The point being, the predictive component of the exercise was almost inevitably going to be more factually rich in the case of a primary carer than it could be for the putative primary carer.
As the trier of fact, the primary judge saw signs in the mother that caused him to doubt that in this respect she would be any better than the father at caring for the child. It must be remembered that the primary judge had the unique advantage of seeing and hearing the parties give evidence and, in our view, this predictive component as to willingness and ability to promote relationships was quintessentially a matter for him.
The primary judge did not make the finding asserted in ground 5. Otherwise he saw the mother as making unfair, exaggerated and somewhat hypocritical complaints about the father. For example, in relation to his mental health and his failure to establish a Skype account. When the account was set up the mother didn’t use it. This fuelled his Honour’s concern about the mother’s contribution to the acrimonious nature of the parental relationship and his lack of persuasion that if the child lived with her “she would be better able to put [the child’s] interests above the parental conflict with the father” [151].
The mother has not established that these findings were not available.
Failure to implement the family consultant’s recommendation
By ground 3 it is argued that the primary judge erred in failing to give any or sufficient weight to the views of the family consultant. The family consultant gave his views on a range of matters and the focus of this challenge is on his recommendation as to with whom the child should live.
At [115] the primary judge correctly recorded that in his report, the family consultant expressed the opinion that “unless there is some adverse finding regarding the father’s mental health”, it was in the best interests of the child to remain in the father’s primary care. The evidence drawn during cross‑examination was then discussed and culminated in the finding at [117] as follows:
In cross-examination about matters relating to the father's mental health, the Family Consultant said he would change his recommendation that [the child] should remain living with the father. However, he did not during his cross-examination recommend that X live primarily in the mother's care.
It is argued that the family consultant in fact changed his recommendation to favour an order that the child live with the mother and hence, that the finding contained in the last sentence of [117] is wrong.
In support of this proposition the following passages from the trial transcript were emphasised:
[Counsel for the mother]: And if the documentary evidence were to show a consistent pattern of attending on medical professionals, support workers, and the like, purely for the purpose of bolstering this case, that is also something that would cause you significant concern as to being able to truly assess the impact of [the father’s] mental health on his parenting ability?
Family Consultant: Yes.
(Transcript of 18 September 2014, p 182 lines 24-28)
And also:
[Counsel for the mother]: If you were to be told that, in June ’13, [the father] was suffering flashbacks of his child sexual assault experiences as recently as June ’13, that would also be something that would give you some real concern as to the state of his mental health, wouldn’t it?
Family Consultant: Yes.
[Counsel for the mother]: Now, just in relation to the material that I’ve put to you in relation to [the father’s] mental health, if that were to be the whole story, and without some other significant intervening fact, would that meant (sic) the proviso that you stipulate in paragraph 60 of your report, that is, unless there is something adverse about [the father’s] mental health, would have been ignited or activated…?
Family Consultant: Yes.
[Counsel for the mother]: ...Yes. So that if – unless there was some other intervening event, you would actually say, “No, with that background, without there being something [Counsel for the mother] hasn’t put to me, I would change my recommendation”?
Family Consultant: Correct.
(Transcript of 18 September 2014, p 183 lines 27-40)
In addition:
[Counsel for the father]: All right. Well, I will perhaps – taking into account everything you have heard today in addition to the material in the report, your notes, the affidavit material that you’re allowed to consider, such of the material, particularly, that his Honour has informed you about the evidence to date, I’m putting to you as a proposition that it is in the child’s best interests to continue living with the father. Do you agree with that or not?
Family Consultant: No, and on the basis that I always have concern when parents conceal critical information from me in part of my assessment process and that is one factor. Secondly, the father and the – and the mother live such a great distance away it is incumbent – has been incumbent upon the father as the primary carer to ensure that the mother has been kept abreast of everything that he is intending to do with the child or attempt to facilitate that.
They are concerning factors for a child so young that the parent – that the father in this state – at this stage hasn’t acted with greater insight as to how that may, (a) affect the mother’s relationship, the child’s relationship with the mother, and improving the relationship between the parents. Every parent wants to know what’s going on with their child particularly when that child is not living in their primary care.
(Transcript of 18 September 2014, p 191 lines 9-24)
And also:
Family Consultant: That clearly an aspect of enhancing a child’s psychosocial development is the encouragement of the development of the relationship with the other parent. Now, if the evidence that I have been told about the father on a number of occasions has either neglected or purposely excluded the mother from certain events and information, that is contrary to that, certainly. I guess what I’m unaware of is – is that outweigh the amount of times that the father has been in communication with the mother about certain things. But what you have identified to me is clearly a negative and, certainly, is detrimental in terms of a child’s psychosocial development. My focus in that point was about how the child presented and how the father spoke about the child at that time and, certainly, the evidence provided today would be contrary to enhancing her psychosocial development.
(Transcript of 18 September 2014, p 197 lines 10-21)
However, these exchanges do not complete the picture and the following passages are also relevant:
His Honour: … and I think it’s going to be put to me that I should so find, whether I will or not remains to be seen. If I should find that, as I think was put to you, the reason why the father was not candid with you about what he was seeing Mr [T] about was to forestall the preparation of a report to the […] Tribunal about these very matters, his mental health and where he stood, bearing in mind that the point of going to the […] Tribunal is to seek compensation for the effects of criminal activity that he may have been a victim of, was to stop Mr [T’s] report coming into existence until after these proceedings, does that say anything to you about his likelihood of seeking appropriate help when necessary, particularly if he thought it might adversely affect the continuation of the child remaining with him?
Family Consultant: You would have to question his credibility, your Honour.
His Honour: Yes, I understand it affects his credibility as a witness but that wasn’t my question?
Family Consultant: That’s a difficult question for me to answer, whether he would…
His Honour: But again if you’re unable to express an opinion – I’m not trying to require you to express an opinion where you’re not satisfied you have the necessary…to form a – so that’s question…?
Family Consultant: I was – I was…
His Honour: Whether or not…?
Family Consultant: I was about – I was about to say that’s difficult for me to answer.
(Transcript of 18 September 2014, p 215 lines 38-46 to p 216, lines 1-13)
In short, the family consultant moved away from the recommendation made in favour of the father but he did not go so far as to recommend that the child live with the mother. Counsel for the mother properly acknowledged that if the family consultant adopted a position of neutrality, the primary judge did not make the error for which the ground contends.
We are satisfied the evidence accords with the findings at [117] and accordingly, this ground is not made out.
The parties’ new relationships were uncertain
The gravamen of ground 7 is that the primary judge erred by giving too much weight to the mother’s current relationship instability. In essence, the ground contends that as counsel for the mother had succeeded in proving that the father and Ms T were quite dishonest about when their relationship started, the primary judge could not assess the nature and quality of that relationship. It followed that a comparison of the parties’ relationships could not be undertaken which in turn made the instability in the mother’s current relationship irrelevant.
It needs to be understood that no challenge is made to the findings about the lack of stability in the mother’s relationship with Mr R and the ramifications of that instability. In this respect, it is accepted that the mother had asked her partner to leave the home they shared and, if his casual employment came to an end he planned to move back to the Central Coast. The findings as to instability were drawn together at [104] which is set out below:
104. The mother's proposal that X live primarily with her involves X moving into what is a somewhat unstable and uncertain household. It is unknown whether or when Mr R may move out. It is uncertain if he does where he will move to and what that may mean in relation to demands on the mother's time to make Z available to spend time with his father. And where Mr R is the breadwinner in the mother's household, the absence of any evidence as to the mother's ability to afford the rent on the [Town D] property if Mr R moves out means it is unclear whether the mother may need to move again, and if so, where she would move to. The fact the mother and Mr R are jointly attempting to negotiate a 12 months lease on the [Town D] property when it is uncertain whether Mr R will remain living there heightens the uncertainty.
On the other hand, it is accepted that counsel for the mother did indeed expose inconsistencies in the father and Ms T’s evidence concerning their relationship and his Honour was very critical of the lack of integrity in their evidence about when their relationship commenced. The effect of this is that the primary judge was satisfied that the father and Ms T were in a de facto relationship earlier than either was prepared to acknowledge.
Neither parent included their partners in the family report interviews and to the extent it is argued that the father inappropriately withheld information from the family consultant the same argument can be made against the mother. His Honour did not criticise either party in this way and it is clear that his assessment of the father and Ms T’s relationship is based on the totality of the evidence on the issue. It is accepted that based on the findings as to unreliability of the father and Ms T’s evidence about when their relationship became a de facto relationship, it was open to the primary judge to be more reticent about its overall stability.
However those same facts establish that the father and Ms T had been in a more long term and settled relationship than was initially thought. His Honour had ample evidence of their having common residence, a child, Ms T’s active involvement in the subject child’s life and, for example, helping out with changeover and no evidence disharmony or anything as frank as the mother having asked her partner to move out. The effect of this is that his Honour was entitled to proceed on the basis that the father’s relationship with Ms T was more stable than was the mother’s with Mr R.
Error in the manner asserted has not been established.
Relationship instability
Grounds 9 and 10 were argued together and continue the focus on the approach of the primary judge to the comparative stability of the parties’ relationships.
By ground 9, it is argued that the primary judge erred in finding the failure of the mother to recall her current partner compounded the uncertainty of that relationship when she was not questioned about that failure. Both propositions contained in the ground are correct.
The findings in relation to this matter are at [97] – [104], in particular [98]. In these paragraphs the primary judge made a series of findings about the mother’s current circumstances, including in relation to the instability of her relationship with Mr R. It is at [98] that his Honour commented on the mother’s failure to recall her partner; the point being that he may have been able to resolve some of the uncertainties about which the mother gave evidence following from her request that he moves out. No inference adverse to the interest of the mother was drawn because of her failure to recall Mr R and we discern no error in his Honour’s approach.
By ground 10 it is argued that his Honour erred in failing to give any weight to the failure of the father to disclose his relationship status and in not treating the relationship as uncertain and unknown. The submissions made in support of this ground mirror those made in support of ground 7 and are no more persuasive in the current context than they were in the former.
The challenges raised by these grounds have not been established.
The mother and decision making
The gravamen of ground 11 is that the primary judge erred in finding and giving weight to not being satisfied the mother would not exclude the father from decision making in relation to the child. The issue raised by ground 11 mirrors that raised by grounds 2 and 4. As we have already explained, it is clear that at [66] of the trial reasons his Honour recorded a litany of occasions when the father had failed to include the mother in parenting decisions about the child. There were far fewer instances of the mother doing the same thing.
However, as we have already said at paragraphs 50-52, this predictive aspect of the decision was undoubtedly a matter for the primary judge. The basis for the prediction is not so thin that we could permissibly interfere.
For the same reasons the earlier challenges failed, so must this one.
The mother was better able to meet the child’s needs
The essence of ground 13 is that the primary judge erred in failing to find that the mother was better able to meet the child’s needs. As we understand it, the word “needs” is addressed to the child’s day-to-day needs and her long term need for a healthy role model.
Counsel for the mother fairly acknowledged that in broad terms the parties were agreed and other evidence demonstrated, that each of them was able to meet the child’s day-to-day needs. The primary judge also agreed. As to the child’s day-to-day needs, the point of difference relied on by the mother was that she is literate whereas the father “…is at best semi-illiterate”. His Honour did not overlook this fact and at [150] acknowledged that as the child progressed in her schooling the father would not be able to assist her with her school work to the extent the mother could.
Although his Honour did not expressly say so, it seems clear that when he took into account in favour of the father, the level of involvement in the child’s life of his parents and Ms T, he was satisfied that the impact of the father’s lack of literacy skills could be addressed by the child receiving assistance from these other people.
As to the role model argument, it is true, as the primary judge recorded, that the mother had paid employment whereas the father did not. He, however, was in receipt of a disability benefit and an attempt by him to return to paid employment had resulted in injury. It seems to us that the term “superior” work ethic is loaded with the notion that the father could work but refuses to do so. That fact was not established and we are not willing to adopt the proposition that of necessity a parent who is unable to engage in paid employment is somehow a poorer example to a child than a parent who is able to undertake paid employment.
His Honour did not find that the father’s lack of credibility as a witness in the proceedings had broader ramifications for him as a parent. Although it may have been open to him to do so, that he did not does not sound in error.
The final challenge is that the primary judge erred in finding that apart from stability in the child’s care arrangements all other matters were evenly balanced. The ground is a precis where, the primary judge explained that he viewed the case as evenly balanced but decided that the child’s living arrangements with the father compared to the uncertainties surrounding the mother’s household, tipped the balance in favour of the father.
In support of the ground, counsel for the mother argued that the individual findings fell squarely in favour of the mother and that it was not open to the primary judge to, in effect, decide the case by reference to the one factor which favoured the father.
Section 60CC(3)(d) makes it plain that the likely effect of any changes in the child’s circumstances is a relevant consideration as, pursuant to s 60CC(3)(f) is the parties’ capacity to meet the child’s needs. The weight given to these matters is quintessentially an exercise of discretion by the trier of fact. For this child, the reality of her life was that the father had been her primary carer and he had cared for her well. This was a highly relevant consideration and, ultimately, notwithstanding the matters which weighed in favour of the mother, his Honour decided not to visit the significant changes to the child’s life which a change in her primary carer required.
As has already been mentioned, his Honour was concerned for the child about the loss of involvement in the child’s life of, for example, her paternal grandparents, Ms T, her brother and, of course, the father. His Honour was entitled to give these matters the weight afforded to them.
Conclusion and costs
The mother has failed to establish error and the appeal will be dismissed.
As to costs, all parties were in receipt of Legal Aid and it was accepted that there should be no order as to costs.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Austin JJ) delivered on 14 July 2017.
Associate:
Date: 14 July 2017
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