PROCTOR & PROCTOR
[2017] FamCAFC 110
•29 June 2017
FAMILY COURT OF AUSTRALIA
| PROCTOR & PROCTOR | [2017] FamCAFC 110 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – With whom a child spends time – Siblings separated – Mother given sole parental responsibility of youngest child – Father restrained from approaching and communicating with the youngest child – Primary judge’s decision within the proper exercise of discretion – No error established – Appeal dismissed – No order as to costs. FAMILY LAW – APPEAL – First instance judgment – Language and length of reasons considered – While the length, complexity and repetitiveness of the judgment came very close to obscuring the reasons, it was ultimately possible to discern the central ratio – No appealable error established. |
| Family Law Act 1975 (Cth) ss 61C, 65DAC |
| Bondelmonte v Bondelmonte (2017) 341 ALR 179 Fox v Percy (2003) 214 CLR 118 Hall and Hall (1979) FLC 90-713 H M Customs & Excise & Anr v MCA & Anr (2003) 2 All ER 736 T & Anor v P & Anor (2000) FLC 93-049 |
| APPELLANT: | Mr Proctor |
| RESPONDENT: | Ms Proctor |
| INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
| FILE NUMBER: | PAC | 1846 | of | 2014 |
| APPEAL NUMBER: | EA | 78 | of | 2016 |
| DATE DELIVERED: | 29 June 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ryan & Cronin JJ |
| HEARING DATE: | 9 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 March 2016 |
| LOWER COURT MNC: | [2016] FCCA 613 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Ford |
| SOLICITOR FOR THE APPELLANT: | David Leamey Solicitor |
| THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Beck |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
Orders
The appeal be dismissed.
There be no order as to costs.
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 Proctor & Proctor 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 78 of 2016
File Number: PAC 1846 of 2014
| Mr Proctor |
Appellant
And
| Ms Proctor |
Respondent
And
Mills Oakley Lawyers
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Orders made by Judge Harman on 23 March 2016 resulted in the separation of two siblings. X, then aged 13, remained with the appellant father, while Y, then aged 11, went to live with the respondent mother.
The orders restrain the father from having contact or communication with Y and contain no provision for Y to see X or her two older (adult) siblings who live with the father.
The father challenges the orders concerning Y, including an order for the mother to have sole parental responsibility. The Independent Children’s Lawyer (“the ICL”) supports the appeal. The mother did not participate in the appeal, but we were told that Y continues to live with her, and has not seen the father since judgment was delivered.
For the reasons that follow we find no merit in the appeal, notwithstanding our acceptance of the complaints about the language and length of the judgment.
Background
It is unnecessary to provide more than this brief background:
·following a vitriolic relationship, the parties separated in early 2014;
·all four children remained with the father after the separation;
·initially, the mother had little time with the two younger children until August 2014, when orders were made for them to spend time with her;
·the children thereafter saw the mother intermittently, but not as ordered;
·a Family Consultant recommended in her report that the children live with the father, X spend time with the mother as per his wishes, and that Y spend alternate weekends with the mother;
·the trial began in November 2015, but was adjourned until March 2016;
·despite contact orders, Y spent no time with the mother during the period of the adjournment, and allegedly decided she did not want to see her again, even though they previously had a good relationship.
The Grounds of Appeal
There were 11 grounds of appeal, but the father’s counsel only agitated six. Importantly, none of the grounds takes issue with the damning findings of fact the primary judge made about the father and his conduct toward the mother and his manipulation of the children’s attitudes toward her.
Ground 1 – separation of siblings and parental responsibility
By this ground the father asserts:
1. That his Honour erred in separating … [Y] … from … [X] … and making an order that the mother have sole parental responsibility for [Y], as this was against:
1.1the weight of the evidence; and
1.2the Recommendations of the Family Consultant; and
1.3the submissions of the Independent Children’s Lawyer,
such that the discretion miscarried and the orders are not in [Y’s] best interests.
We will deal first with the complaint about the order for parental responsibility, in relation to which his Honour relevantly found:
623.In light of the allegations of family violence that each party raises and in accordance with the discussion of those allegations above, I am not satisfied that it would be appropriate to impose the obligations which would arise as a consequence of section 65DAC of the Act upon these parent’s [sic] consequent upon the making of an Order for equal shared parental responsibility.
624.As it is clear that these parents cannot cooperate in any fashion and that to attempt to have them do so would be disadvantageous to each of them and to the children, I am not satisfied that an Order for joint and several parental responsibility pursuant to section 61C of the Act would be appropriate either.
His Honour’s reference to the possibility of an order being made for joint and several parental responsibility pursuant to s 61C of the Family Law Act 1975 (Cth) (“the Act”) demonstrates some misunderstanding of that provision. Orders cannot be made under s 61C, since its only purpose is to state “the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order ...”[1] However, nothing turns on this since an order was not made for “joint and several parental responsibility”.
[1]See the Note to the provision.
Section 65DAC imposes obligations on parents when an order is made for parental responsibility to be shared. If such an order is made, the parents must consult with one another when making major decisions about their children, and make a genuine effort to come to a joint decision. His Honour was properly satisfied there was no prospect of the parties doing either. Accordingly, unless the appeal against the order for Y to live with the mother succeeds, the appeal against the order for the mother to have sole parental responsibility must fail.
The ICL submitted at trial that the children should be allowed to decide the extent of their relationship with the mother. Contrary to what is implied by Ground 1, the rejection of that submission cannot, of itself, constitute error. As Pidgeon J said in rejecting the same argument in T & Anor v P & Anor (2000) FLC 93-049, “the decision as to what is in the best interest of the child is a decision to be made by the Judge and the Judge alone…” (at [55]). In any event, the primary judge was highly critical of the performance of the ICL. His detailed reasons for that criticism are not challenged in the appeal.
We also reject the premise in Ground 1 that a judge is bound to accept recommendations of a Family Consultant. This conflicts with well-established principle concerning the status of such recommendations: Hall and Hall (1979) FLC 90-713 at 78,819–78,820. His Honour was therefore right when he said:
376. A Family Report is an important piece of evidence. It is not, however, a Judgment of the Court nor unassailable. The Report and its recommendations are, appropriately, the subject of scrutiny and evidential testing ...
Accordingly, the only part of Ground 1 that requires serious consideration is the proposition that the decision was against the weight of the evidence. It is in this context that the Family Consultant’s evidence assumes importance.
The Family Consultant was called to give evidence at the start of the trial. She had earlier provided a report in which she recorded the mother’s belief that she and Y had always had a good relationship, while X was arrogant and rude to her. His Honour accepted the mother’s evidence, and was unsurprised about X’s behaviour, as indicated in this paragraph of the reasons:
398. The impact of a lifetime of exposure to the dysfunctional environment in which these children lived whilst their parents were under the one roof and to which, I am satisfied, these children have continued to be exposed since separation, including through the father’s campaign of denigration of the mother and active undermining of her relationship with the children, is acknowledged, in some small part, by [the mother] and as reported in the following portion of the Report:
[The mother] reported that [X] had been affected by witnessing the parental conflict and family violence. She stated that she had witnessed him calling [Y] a “bitch”, and threatening to hit her whilst they were visiting. [The mother] said that while she had asked him where he got that behaviour from, she knew that it was from [the father].
While accepting the mother’s evidence that X’s behaviour towards her and Y could be “warm and affectionate” when he spent longer periods of time away from the father, his Honour went on to find:
401. I am concerned that [X’s] behaviour as described is potentially impeding if not destructive of his relationship with his mother and also has the potential to impact upon the relationship between [the mother] and [Y] if both children are present at the same time.
402. To the extent that [Y] is described by [the mother], at the time of the Family Report interviews, as having a warmth of relationship with her mother (a position confirmed by [Y] in her own interview) I am concerned that ongoing behaviour by [X] of the nature described by [the mother] would have the potential to undermine [the mother’s] relationship with [Y].
His Honour was troubled that the Family Consultant had discounted the mother’s claim about having been the victim of violence by relying on statements by people who had not given evidence, or who had not given credible evidence (at [121] and [410]–[411]). However, his Honour recorded these concessions made by the Family Consultant when she was recalled at the conclusion of the trial:
413.... it was unclear from the evidence which of the parties, if not both, had perpetrated family violence … the children’s exposure to substantial family violence might well explain elements of, in particular, [X’s] behaviour both towards [the mother] and alignment with his father.
414.... if the children have been routinely exposed to such behaviour, with the father and adult children as aggressors towards the mother, that the children might protectively gravitate towards their father.
415.... exposure to such an environment, significant family violence and conflict whilst the parties resided under the one roof and the father’s ongoing denigration and undermining of the mother’s relationship with the children post separation, would cause them significant difficulties in adolescence and adulthood …
416.... if such undermining behaviours on the part of [the father] (as regards the children’s relationship with their mother) were ongoing that this would represent a danger to the children’s emotional and mental health, although those dangers needed to be weighed up against “the risks” for the children of removing them from their present placement, separating them from their siblings as well as practical considerations such as “voting with their feet”.
417.... such ongoing undermining of the mother’s relationship and exposure to the father’s behaviours in that regard might well assist in explaining, absent any other evidence to suggest a basis for it, [Y’s] suggested change of view …
…
420.... [Y’s] apparent change of heart having, in the space of three months, gone from desiring a relationship with her mother to now allegedly rejecting such a relationship, might well reflect that further pressure has been brought to bear upon her …
The primary judge found that the father had “taken active steps to interfere with and undermine” the mother’s relationship with the children (at [429]). His Honour also found that the father had continued to expose the children to conflict following separation, and had involved them in discussion of “adult issues and inappropriate topics” (at [449]). He concluded that the father was incapable of permitting the children to have a relationship with their mother. Contrary to the father’s assertions, his Honour found nothing to suggest the mother’s parenting was deficient, while the father’s parenting was “poor and inappropriate” [453] and “clearly deficient and corrupt” (at [855]).
There is no challenge to these findings. Nor is there challenge to the findings concerning deficiencies in the Family Consultant’s report. In particular, his Honour was concerned about the Family Consultant’s failure to explore adequately the reasons why X had adopted the position he had towards his mother. He was especially critical of the Family Consultant for having “sought to become a tribunal of fact” (at [590]).
His Honour considered the Family Consultant’s opinion about the separation of the two younger children in the following paragraph (bolded emphasis added):
419. It was put to the Family Report Writer that it might be better to move both children away from the influence of their father and that, in any event, there might be benefit for [Y] of doing so. The Family Consultant opined that a move from the father’s home would likely work better for [Y], she being younger and not yet holding views of such strength and firmness as [X] (although there was real possibility that [X’s] views reflected an entirely false and manufactured reality), and that if such a move occurred [the mother’s] proposal for a moratorium upon communication between [Y] and her father (and members of the household) for some time would be worthwhile.
His Honour returned to the topic of the possible separation of the two younger siblings later in his reasons (bolded emphasis added):
548. During the Family Consultant’s second round of cross-examination I had raised with the parties and the Independent Children’s Lawyer, as well as with the Family Consultant, the stark reality that irrespective of the parent with whom the children live (whether they live with the same parent or different parents) that there is no reasonable likelihood that a relationship could be maintained with the other parent or members of their household. The Family Consultant, both as regards this stark proposition and the proposal by [the mother] from a moratorium on time and then a period of supervision, accepted these realities and proposals.
…
597. The Family Report Writer was also clear that if the Court felt that there was such a significant degree of influence by [the father] upon the children and their relationship with the mother (such that the relationship has not been practised since January 2016) that it may be in the children’s best interests to live with their mother.
598. This was tempered, as regards [X], with the concern that [X] may not remain in the mother’s care and may run away or “vote with his feet”. Similarly, concern was raised that [X’s] behaviour and now entrenched attitudes towards the mother might be counter‑productive to [X’s] relationship with his mother (if forcibly placed with her) or may impact negatively upon the mother’s relationship with [Y] if both were placed with her.
599.With some real regret I accept that this caveat has validity. I do not go so far as to accept the submission of the Independent Children’s Lawyer, a submission to the effect that “the damage is done” and such that in the circumstances neither child should be addressed.
600.I accept that there is real validity to the concerns expressed by the Family Consultant as to the potential impact of [X’s] obstreperous and obstructive behaviour in his relationship with the mother upon the mother’s relationship with [Y].
His Honour concluded:
613. The evidence taken in its totality satisfies me that the only way by which these children or either of them will be able to have a relationship with their mother is to leave the care of their father (being also the primary care of their elder sibling [Z]). To that end there may well be “different considerations” that apply to each child.
Counsel for the father submitted that that no-one canvassed with the Family Consultant the separation of the children such that their sibling relationships would be extinguished. This proposition is inconsistent with the finding his Honour made at [419], which we set out above and which is not challenged.
Furthermore, his Honour made it clear that the separation of the children was one of three “very real, active possibilities” (transcript, 3 March 2016, p 44). He also drew clearly to the father’s attention the unpalatable options he considered were available to him (transcript, 3 March 2016, p 92–93):
HIS HONOUR: I don’t know what order I’m going to make, sir, but the three options are there, aren’t they? They live with you, and in which case I accept from the evidence they are unlikely to ever have a relationship with their mother; they live with their mother, in which event, to ensure that they stay there, they would have no relationship with you; or I split them and they live one with mum and one with you and they will probably not see each other. They’re the options I see. I’m failing to understand how any order about time would have any meaning at all.
We consider it was open to his Honour to identify these options as the only ones available. The options flowed from the unchallenged findings concerning the extent of the influence exerted by the father on all the children, and the unfortunate family dynamic. The option ultimately chosen was not against the weight of the evidence as claimed but was instead strongly supported by it, especially by the concessions made by the Family Consultant in oral evidence.
There is therefore no merit in Ground 1.
Ground 2 - injunctions preventing contact and communication
This ground asserts:
That his Honour erred in making injunctions against the father pursuant to section 68B of the [Act] as this was against the weight of the evidence.
The injunction made pursuant to s 68B restrained the father from:
a)Approaching [Y] or attending upon or being within 100 metres of [Y’s] home or school;
b)Contacting or attempting to communicate with [Y] by any means including via third parties;
c)Taking [Y] into his care or having [Y] in his care.
Subsection 68B(1) confers power on a court to “make such order or grant such injunction as it considers appropriate for the welfare of the child”. To establish error in the exercise of such a wide discretion, the father would need to establish that his Honour acted upon a wrong principle; gave weight to extraneous or irrelevant matters; failed to give weight or sufficient weight to relevant considerations; or made a mistake as to the facts. Absent any of these features (none of which are asserted) we could only interfere if satisfied that the decision is unreasonable or plainly wrong: Bondelmonte v Bondelmonte (2017) 341 ALR 179 at [31].
The primary judge determined that it was in Y’s best interests to live with her mother and to have a relationship with her. His Honour considered that for Y to spend time with, or communicate with, the father would be counter-productive since:
963. If [Y] were cajoled to leave her mother’s care that would expose this family and these children to further proceedings which would be emotionally devastating for all but especially [Y].
Given this finding, and the history of the matter, we consider it was an entirely proper exercise of his Honour’s discretion to grant the injunctions.
There is therefore no merit in Ground 2.
Grounds 3 and 4 – failure to order contact
By these grounds it is asserted:
3.That his Honour erred in effectively making a ‘no time’ order between the father and [Y] ... as this was against:
3.1the weight of the evidence in that his Honour found at [J481] and [J784] that the children were not exposed to an unacceptable risk in the father’s care; and
3.2the Recommendations of the Family Consultant and the finding in the Family Report that there may well be a concern as to the unacceptable risk to the children in the mother’s care at [J602]; and
3.3the submissions of the Independent Children’s Lawyer,
such that the discretion miscarried and the orders were not in [Y’s] best interests.
4. That by reason of the matters set out in Ground 3 above, his Honour erred in ordering that the child [Y] ... live with the mother and that she is to have sole parental responsibility for the child.
We need not discuss Ground 4 for the reasons given in disposing of Ground 1.
It is also unnecessary to discuss those parts of Ground 3 which assume error by the primary judge because of his disagreement with the position adopted by the Family Consultant and the ICL. It is sufficient to say that while his Honour was aware that the Family Consultant had proceeded in her original report “on the basis that there may well be concern as to unacceptable risk to the children in the mother’s care”, his Honour did not share that concern (at [602]).
The argument supporting Ground 3 otherwise focused on the finding that there was not an unacceptable risk of harm to Y in the father’s care. The finding on which the father relies appears in this paragraph:
784.I have real concerns as to the children’s welfare in the future particularly in light of the clear evidence that [the father] lacks any insight into the role that he plays in undermining the children’s relationship with their mother and, in so doing, causing serious emotional distress to these children. That most certainly constitutes a risk to these children although, in all probability, falling short (although only just), of that required by the case law discussed above to justify a finding of “unacceptable risk”.
It was submitted that it was plainly wrong to terminate contact with a parent in circumstances where it was found there was not an “unacceptable risk” to the child if left in the care of that parent. However, this outcome has to be seen in the context of the many findings which were not challenged, including:
· The father’s lack of insight into the role he played in undermining the children’s relationship with their mother, causing serious emotional distress for them (at [784]–[785], [810]);
· The father’s lack of insight into the children’s need to have a relationship with their mother (at [786]);
· The children’s exposure to derogatory taunts of their mother and the father stopping them from keeping a connection with her (at [808]–[809]);
· The father’s view of the mother as an entirely defective parent (at [815]); and
· The father’s failure to provide adequate and proper parenting (at [816]).
The fundamental finding was that it was in Y’s interests to live with her mother and for them to have a good relationship. His Honour reasoned that this relationship would be jeopardised if Y spent time with or communicated with the father or her sister, as appears from this extract:
481.I am satisfied that the evidence, taken in its totality, supports a finding that the children would be exposed to a risk in the father’s care, perhaps not a risk within the context of that discussed in the jurisprudence relating to “unacceptable risk” and, perhaps, not falling within the section 4 Family Law Act 1975 definition of “abuse”. The risk arises from the father’s continued exposure of the children to his views of the mother, his involvement of the children with his attitudes and views as well as in disputes between the parents.
482.Risk also flows from the children’s exposure to the views of at least their elder sibling [Z], which views they are exposed to frequently as she provides the preponderance of their care.
483.On the totality of the evidence I am satisfied that [Z] is, wittingly or unwittingly, an “ally” or “accomplice” of [the father] in undermining the children’s relationship with their mother, informing and fixing false and negative impressions of the mother in the minds of each of the children and in failing to support (if not actively undermining) the children’s participation in a relationship with their mother who is otherwise a capable and adequate parent wishing to pursue a relationship with them.
We see no error in his Honour’s reasoning and consider it was open to him to make the orders he did to protect against further damage being done to the relationship between Y and her mother.
The seemingly permanent nature of the injunction preventing the father having contact with Y was not the subject of separate consideration in the appeal, however some comment from us on that issue is warranted, especially as it may assist the parties in resolving future issues.
The mother proposed at trial that the children live with her and that the proceedings be adjourned for a period, during which the children would have no communication with the father for six months. At the conclusion of that time, the mother proposed that the children would have supervised time with the father at a contact centre. Accordingly, it was the mother’s position that the father should eventually have contact with Y.
His Honour’s failure to make orders which would allow this to occur seems to us at least to be inconsistent with this paragraph of his reasons:
957.To ensure that the transition for [Y] is as smooth as can be expected it will be necessary for [Y] to have a moratorium upon time and communication with her father and, regrettably, her siblings.
“Moratorium” implies a temporary cessation. However, while using that expression, his Honour went on to say:
960. But sadly, as a consequence of the circumstances that these parents have created (and, in the case of [the father] and the elder children who have become in the league with him), it is a “lose/lose” situation that has been foisted on the Court. There is no optimal outcome for these children. Just a weighing of disadvantage.
961. Thus, I propose to make Orders that will see [X] live with the father and with no provision for time spent by him with his mother.
962. I propose to make an Order that will see [Y] live with her mother and spend no time with her father. Indeed, I propose to make an Order for [Y’s] protection and pursuant to section 68B of the Family Law Act 1975 precluding [the father] from contacting or attempting to contact [Y] by any means whatsoever and, further, from approaching [Y].
We acknowledge his Honour made no order indicating when the “moratorium” might come to an end, but his reasons at [957] suggest that at some point it will be open to the father to seek to apply to spend time with, or communicate with, Y. The dismissal of the appeal should therefore not be interpreted as foreclosing the possibility of the orders being varied at an appropriate time.
Ground 6 - credit
The primary judge made a strong finding preferring the mother’s evidence over that of the father “particularly but not solely confined to issues of family violence and the particulars thereof” (at [107]). Curiously, given there was no challenge to this finding, Ground 6 seeks to undermine the parenting orders by challenging the rejection of the evidence of Z, the parties’ adult daughter.
This ground asserts merely:
6.That his Honour’s credit based findings against the parties’ eldest child … at [J314] are against the weight of the evidence.
Although the ground references only [314] of the reasons, it will provide context to set out the paragraphs preceding and following it, which were part of a very lengthy portion of the judgment where his Honour dissects a video depicting an argument in the home involving both parties and the four children:
310.What the video clearly shows is that neither parent, fully aware of the children’s presence, seeks to resolve or diffuse the situation. [The father] and [Z] very much “stoke the fire” throwing out comment and insult to “bait” [the mother] who responds. Rather than seeking to resolve or diffuse the situation [the father] very much seeks to escalate the situation and so as to involve all four children.
311.The two elder children are involved by [the father] very much as his co-conspirators so that the three ([the father] and the two adult children) are accurately described by Counsel for [the mother] as “ganging up on [the mother] like schoolyard bullies”.
312.The video, of course, is entirely contrary to that which [the father] suggested it would show. True it is that it shows [the mother] yelling and arguing in front of [X] and [Y]. But the party commencing the dispute, filming it, continuing and escalating the tension and drama, is [the father].
313.The video clearly depicts the influence that [the father] has upon [Z] and [X]. [The father] calls out to them to come and they come. Without having to be told or encouraged they join in the very behaviour that [the father] is engaged in.
314.The video, shown before [Z] gave her oral testimony, is completely at odds with her evidence and cannot permit any finding other than a lack of credit with respect to her evidence.
315.[Z] presents as a meek victim of her mother. In the video she is very much the aggressor. [Z] does not look fearful of her mother. The mother looks fearful of [Z]. [The mother] does not insult [Z]. It is quite the converse.
316.[The mother] complains that [the father] encourages [Z] in her behaviour towards her mother and it is very much borne out by the video. [The father], who depicts himself as a loving parent committed to a relationship between all four children and their mother, is shown to engage in behaviour entirely supportive of [Z’s] insults, abuse and berating of her mother and disrespectful of, if not destructive of, the mother’s relationship with [Z].
317.It is clear from the video that [the father] has his “crew” about him. It is a three pronged attack upon [the mother] with [the father] leading the frontal assault and each of [Z] and [X] in a pincer movement from the flanks.
These findings need to be considered in light of an earlier part of the judgment ([199]–[215]) where the primary judge discussed Z’s credibility. There, his Honour remarked on Z’s “highly unusual” demeanour in the witness box and how she “appeared more distressed when questioned by her father than by anyone else”. He made various specific observations regarding her evidence which do not require repetition here. It is sufficient to record that his Honour gave detailed reasons for his findings as to Z’s credibility, and that those findings did not turn on any singular factor.
The arguments advanced on appeal concerning Z’s credibility focused on whether his Honour was correct in understanding that he had heard Z call her mother “a slut” on the video, and whether he was correct in stating that Z had denied doing so in her evidence or whether she had merely said she did not remember giving evidence to that effect. We do not propose to give any credence to such submissions by discussing them. The time for the husband to correct the primary judge’s understanding about what was or was not said in the video was when his Honour was giving his running commentary on what he heard in the video when it was being played in court (or alternatively during the closing addresses). In any event, the finding at [314] was clearly based upon his Honour’s viewing not only of the video but upon his assessment of all of Z’s evidence. That assessment, in our view, cannot be successfully challenged merely by establishing that one minor part of his Honour’s assessment may have been incorrect.
While the ICL joins with the husband in advancing this ground of appeal, that position directly contradicts the submission of the ICL’s counsel at trial, namely that Z’s testimony had been “significantly damaged by what has come out in the evidence” (transcript, 3 March 2016, p 52).
Having seen and heard all of the witnesses, his Honour was in a far better position that we are to determine the credibility of witnesses: Fox v Percy (2003) 214 CLR 118 at 126.
We are therefore not persuaded there is any merit in Ground 6.
Ground 7 – use of metaphors and overly lengthy reasons
This ground asserts:
7.That his Honour erred in finding:
7.1… [X] …. has now been enlisted by the father as a child soldier into his “militia”, at [J322] was against the weight of the evidence; and
7.2… [Y] … has been actively recruited to [the father’s] “militia”, at [J323] and that her ability to resist [the father’s] call of duty, to serve the cause against “the enemy”, the mother, is beginning to waiver, was against the weight of the evidence,
such that his Honour erred in following the statutory pathway when considering sections 60CA, 60CC(2) and (3) of the [Act].
Stripped of the puzzling reference to “the statutory pathway” and the seemingly irrelevant mention of provisions of the Act, this ground is nothing more than a complaint that his Honour found that X was aligned with his father and that Y would become similarly aligned if she lived with him. Clearly such findings were open and there is no error in the ground as stated.
However, this ground was also used by the father and the ICL as a vehicle to assert that his Honour’s “use of flamboyant adjectives [and] employment of hyperbole and war-like metaphors may have clouded his Honour’s judgment”.
It was also submitted by the ICL that his Honour’s “emotive” language did not reflect the evidence and distracted from the facts. Counsel for the ICL went further and suggested that his Honour’s language was indicative of bias, but acknowledged there was no ground of appeal to this effect.
The passages to which offence is taken commence with his Honour’s description of the video:
319.The video gives a glimpse into the war zone in which these young children, indeed all four children, have lived their whole lives. It is made clear, graphically so, that conflict and “warring behaviour” between the parents and, as they have grown, [the two eldest children], joining in and being enlisted to [the father’s] “militia”, has been circumjacent to these children’s lives. This conflict is all they have known.
His Honour then added:
322. The evidence would suggest that [X] has now been enlisted by [the father] as a child soldier into his “militia”.
323. The evidence suggests that [Y] has been actively recruited to [the father’s] “militia” and that her ability to resist [the father’s] call of duty, to serve the cause against “the enemy” [the mother], is beginning to waiver [sic].
The use of military metaphors had its origins in the evidence of a witness who attended a handover on 9 January 2015 and who observed the father shouting at the children “don’t talk to her [the mother] she is the enemy”; and “ring the police if you need to, she is the enemy, she is not your parent”.
His Honour justified his use of military language as follows:
324. I have used this terminology of “militias” and “enemies” as it is a repetition or evocative of the language used by [the father] at the … Police Station 9 January, 2015 and as these children have, I am satisfied, grown up in a “war zone” between their parents in which they have had strategic objectives of destruction of and victory over the other by severance of any bond or alliance between that parent and the children.
While the employment of such metaphors in a judgment about parenting issues can be questioned, they do serve to highlight the point his Honour was trying to make – namely that relationships had broken down entirely and the children were placed in a position where they had little alternative than to choose a side in the conflict. Accordingly, rather than distracting attention from the facts, it might be argued that his Honour’s use of metaphor highlighted them.
We nevertheless consider that the use of metaphor was sustained almost to breaking point with references to “a three pronged attack”, “a frontal assault”, “a pincer movement from the flanks”, “children in warzones working in underground, bunkered schoolrooms whilst the shuddering blast of heavy munitions is heard above”; as well as the references to “warzones”, “militias”, “the enemy” and “warfare” (at [317]–[325]). The use of such language will rarely be desirable in a judgment, just as hyperbole, and emotive or unnecessarily pejorative language should be avoided. We are not, however, persuaded that excessive use of metaphor is indicative of appealable error.[2]
[2]Comment might also be made about some remarkable statements his Honour made during the trial but, again, these are more indicative of a distinctive judicial style rather than appealable error.
Ground 7 was also used as a vehicle for complaint that the primary judge’s reasons were “embedded in the judgment in a way that does not enable the reader and the father to ascertain the steps in the reasoning process”. This argument was strongly supported by counsel for the ICL who submitted that it was impossible for a self-represented litigant to understand the judgment, “it being hard enough for the legal representatives to wade through”.
Again, there is much substance in the complaint. The reasons ran to 236 pages, supported by 253 footnotes, with reference to 73 cases and nine articles. The father’s claim that he was the victim of “cultural imperialism” and “judicial activism’” rather than being ignored, drew forth page after page of judgment in which the reader was, inter alia, enlightened as to the first occasions in literature in which the expressions were used, and provided with citations from dissertations on the subjects including those his Honour found on the Internet. All of this notwithstanding his Honour’s observation at [739] that “the issue has no bearing upon the findings of fact that I must make in the case…”
Having completed his examination of the charge of “judicial activism”, the primary judge turned to the complaint of “cultural imperialism”. Promisingly his Honour began by saying:
749.The claim of “cultural imperialism” also lacks foundation. A lengthy discourse on the issue would be intellectually stimulating, however such discussion must await other times and fora.
Nevertheless, his Honour seemingly felt unable to avoid the issue altogether, since he went on to say (footnote omitted):
750.It would suffice to consider the definition of the term given by the Cambridge Business English Dictionary and being, “The fact of the culture of a large and powerful country, organisation, et cetera having a great influence on another less powerful country, et cetera”.
751.Like many such concepts the discourse around the term has arisen from a consideration of the commercial and economic influence of the United States and similarly powerful western countries (largely though not exclusively colonial or former colonial powers, dominantly Anglo-Saxon and English speaking) through trade, commerce and other behaviours associated, connected with or supporting commerce, the term having first been expounded by Schiller in 1976.
752.The term would not appear to have any ready application, even analogously, to the claim made by [the father].
753.A term which might have greater application to [the father’s] protest, is cultural hegemony, a Marxist theory generally associated with Antonio Gramsci and whereby a ruling elite (presumably, in this case, comprising or at least including the Court) manipulate the value system and mores of a society so that such manipulated views become normative and displace and replace all other views and values.
With the greatest respect to his Honour, whatever pretext may have been presented by the father, such vanities have no place in a judgment. They are but one of the reasons the judgment was inordinately lengthy, thereby making it very difficult even for a lawyer to comprehend.[3] The parties were entitled to a judgment which made clear why they won, or more importantly, lost. Instead they received a document of such length, complexity and repetitiveness that the otherwise well-considered reasons came very close to being obscured.
[3]The judgment also dealt with the division of property, but this occupied a comparatively small part of the reasons, albeit somewhat confusingly intermingled with discussion of the parenting issues.
The primary purpose of a first instance judgment is to enable the reader to understand the reasons for the decision. A judgment should contain all that is necessary for that purpose, and nothing that is not. Typically, that will require the judgment to state the issues, the principles to be applied, the necessary findings of fact, and the application of the law to those facts. Where exercise of a discretion is required, the reasoning applied to the exercise of discretion must be apparent. It is not the function of a judgment to serve as a platform for exposition of the judge’s philosophical, personal or policy views, nor as a vehicle for demonstration of the judge’s erudition. The inclusion of such extraneous material distracts from the primary purpose of a judgment.[4]
[4]We recommend for study Scheimann LJ’s judgment in H M Customs & Excise & Anr v MCA & Anr (2003) 2 All ER 736 which sets out the private and public consequences of overly lengthy judgments.
The judgment under appeal almost obscured the reasoning of the primary judge. However, after much tedious study, we have been able to discern the central ratio, which was well-supported by the evidence.
Conclusion
Grounds 5, 8, 9, 10 and 11 were abandoned. As none of the other grounds have merit, the appeal will be dismissed. There will, of course, be no order for costs.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ryan & Cronin JJ) delivered on 29 June 2017.
Associate:
Date: 29/6/17
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