RLR & DB

[2005] FamCA 270

[2005] FamCA 270  JFRLRDB

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 17 of 2004

File No. PAF 2785 of 2001

IN THE MATTER OF:

RLR

Appellant/Mother

- and -

DB

Respondent/Father

REASONS FOR JUDGMENT

BEFORE:  Finn, Coleman and Boland JJ
DATE OF HEARING:        9^th day of November 2004
DATE OF JUDGMENT:     13^th day of April 2005

Name of Appeal  RLR & DB

Appeal Number  EA 17 of 2004

Date of Appeal hearing                   9^th day of November 2004

Date of Judgment  13^th day of April 2005

Coram  Finn, Coleman and Boland JJ

Catchwords:              Appeal against trial Judge’s orders with respect to residence and contact. 

The appellant’s contention that the trial Judge erred in relation to conclusions of fact with respect to the children’s primary attachment, not made out – her Honour found the children to be no more attached to either parent based on the evidence of the counsellor.  Despite this factor favouring the mother, the preponderance of factors with respect to the best interests of the children favoured them residing with the father.   

The complaint that the trial Judge erred in failing to view the mother’s attitude to the father more favourably by virtue of the father’s conduct during the marriage, unsuccessful – such argument not before her Honour at trial.

The appellant’s assertion that it was not open to the trial Judge to find that there was a close relationship between the paternal grandmother and the children, not made out.  No controversy with respect to paternal grandmother’s relationship with the children – not significant that she was not called to give evidence.  Her Honour’s finding was in reliance upon the appellant’s own evidence.

Application to adduce further evidence refused – further evidence would not render the trial Judge’s judgment erroneous - CDJ v VAJ (1998) 197 CLR 172 followed.

Appeal dismissed

Appellant to contribute $3,333 towards father’s costs

1. This is an appeal by RLR (“the mother”) against orders made by Flohm J on 12 January 2004 in proceedings between the mother and DB (“the father”) with respect to residence and contact of the two children of the former marriage between the mother and the father.  The trial Judge’s orders provided in essence that the children of the parties, C, born in November 1998 and A, born in January 2000, reside with the father and have contact with the mother.

2. The mother seeks that the children reside with her and have contact with the father. The father seeks to maintain the trial Judge’s orders.

3. At the hearing of the appeal the mother sought leave to adduce further evidence pursuant to s 93A of the Family Law Act 1975 (Cth) (“the Act”). The father opposed the granting of such leave but, in the event that leave was granted, sought to rely upon further evidence in response to that sought to be relied upon by the mother.

BACKGROUND

1. Both parties were born in 1972 and are currently 32 years of age.  The parties commenced cohabitation in March 1994.  Both parties were then employed. 

2. In late 1995 the parties purchased a home in the Blue Mountains which they then occupied.  The father at about that time commenced a business in southern Sydney, whilst the mother had employment in Sydney. 

3. In September 1998 the mother ceased employment and in November 1998 the first child of the parties, C, was born.  At about that time, the father was convicted of a drink-driving offence. 

4. In April 1999 the mother commenced to do clerical work for the father’s business.  From June to August 1999 the mother and C lived with the maternal grandmother in Newcastle, the mother experiencing ill health during her second pregnancy.  The mother and C travelled to the home in the Blue Mountains on the weekends.  After she returned to that home in the Blue Mountains in August 1999 the mother continued to do clerical work for the father’s business and travelled with C to the business premises two or three days a week.  On occasions the father, mother and C stayed overnight at the factory.

5. The second child of the parties, A, was born on 14 January 2000.  The mother then took both children with her to the factory, staying overnight on occasions.

6. In September 2000 the father closed the business.  The business had debts at that time. 

10.  From December 2000 the mother commenced to work full time as a florist. 

11.  The father was unemployed until mid January 2001.  The father provided the care of both children during the mother’s employment. 

12.  In mid January 2001 the father commenced in the Blue Mountains area and in about February 2001 the mother commenced employment each weekend and each Monday also in the Blue Mountains area.  Each parent cared for the children whilst the other was working.  If neither parent was available the paternal grandmother looked after the children.  The children attended daycare on Mondays.  The mother commenced to work on the fourth day of each week and the children stayed overnight with the paternal grandmother on Mondays and Thursdays.

13.  On or about 7 May 2001 the parties separated and the father moved to the paternal grandmother’s residence.  The father lost his employment in the Blue Mountains at that time and thereafter cared for the children whilst the mother was working.  The children were in the mother’s care on her non working days.

14.  On 17 May 2001 the mother filed an Application seeking to relocate to Newcastle with the children.  The father’s Response, filed 30 July 2001, opposed such move.  On 21 September 2001, in the Family Court at Parramatta, interim orders were made by consent which provided for the children to reside week about with each parent, including residing with the mother in Newcastle each alternate week.

15.  On 25 October 2001 the mother moved to reside at the maternal grandmother’s home in the Newcastle area. 

16.  In November 2001 the home in the Blue Moutains was sold. The father remained living in the area. 

17.  The week about residence arrangement continued pursuant to the terms of the consent orders, the parents sharing the travel between Newcastle and the Blue Mountains to facilitate such continuation. 

18.  In September 2002 the mother purchased a home near Newcastle with assistance from her mother and grandmother.

19.  In November 2002 the father and Ms W commenced cohabitation.

20.  These matters of background find expression in the trial Judge’s reasons for judgment and are not controversial. 

21.  The mother’s case at trial was that the children should reside with her and have contact with the father on alternate weekends, half school holidays and at other times.  The mother proposed shared transport arrangements to facilitate such contact.  The father sought that the children live primarily with him but with the mother on two out of three weekends and that school holidays be shared equally between the parents, subject to the mother having an extra weekend with the children during each term holiday period.

THE TRIAL JUDGE’S JUDGMENT

22.  Having referred to the background matters outlined above, the trial Judge discussed “THE RELEVANT PRINCIPLES”.  It is not suggested that any error was there involved. Her Honour recorded “MATTERS IN ISSUE BETWEEN THE PARTIES”. It is not suggested that any omission or inaccuracy therein appears.

23.  The trial Judge regarded the case as “finely balanced” finding that the “shared arrangement” of the previous two and a half years had, on the counsellor’s evidence, “worked well for the children” but could not continue as C was to commence school in 2004. The Court was thus obliged to “decide between two basically good parents who, through geography, cannot both continue the same level of involvement which over the last two years has resulted in a situation described by the counsellor” in his report in positive terms.

24. After a thorough and careful review of the evidence before her, and the significance of such evidence for the purposes of s 68F(2) of the Act, the trial Judge concluded that, on balance, the children’s best interests would be served by orders which continued the shared residency arrangements, but placed the boys primarily with the father. Having regard to the limited number of challenges to her Honour’s exercise of discretion, and their nature, it is not helpful at this stage to refer extensively to her reasoning save to say that its essence would seem to be as follows.

25.  Her Honour was “satisfied that the mother is either dismissive of the children’s deep feelings for their father or simply does not understand what the children feel whereas” she was satisfied that “the father is an insightful parent who understands the close emotional attachment that the children have to their mother and of the depth of their love for her and the need for her continuing support” (Judgment, paragraph 85). Her Honour was further satisfied that the mother was “generally dismissive of the importance to the children of their relationship with the father and the significance to them of what he contributes to their emotional wellbeing” (Judgment, paragraph 86).

26.  The trial Judge contrasted “each parent’s attitude” concluding that “the father is more insightful than the mother into the children’s emotional needs and of the two is the parent who has the capacity to better assume that role”, her Honour being satisfied that “he also demonstrates a superior attitude to the responsibilities of parenting” (Judgment, paragraph 92). For the reasons detailed earlier and subsequently in her judgment, the trial Judge did not “need to resort to a finding as to where the children’s primary attachment might lie to tip the balance in one or other parent’s favour in an otherwise finely balanced case”.

27.  Her Honour was:

“…satisfied that there is less likelihood of the children being psychologically damaged if they are supported by the father in dealing with the reduction of contact to the mother than if it is the mother on whom they will be dependent for support as she is, consistent with her evidence in these proceedings, unlikely to even acknowledge their loss, let alone sensitively support them through the adjustment.” (Judgment, paragraph 101)

28.  Her Honour recorded that, after “balancing” the evidence and the findings made by her, “some matters favour the mother’s proposal, some favour the father’s proposal and some favour each parent equally” but that the preponderance of factors favouring the father meant that “the children’s best interests are served by orders which continue a shared residency arrangement, but which place the boys primarily with the father” (Judgment, paragraph 102).

RELEVANT LAW

29.  It is well established that an appellate Court should be slow to interfere with discretionary orders of a trial Judge on the basis only of the weight which the trial Judge has given to a particular matter.  In that regard, in Gronow v Gronow (1979) FLC 90-716 at 78,849, Stephen J held that:

“When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight:  it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial Judge.  Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial Judge can do, an appellate Court should be slow to overturn a primary Judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.”

30.  In Norbis v Norbis (1986) 161 CLR 513 at 539 – 540, Brennan J referred to Bellenden (formerly Satterthwaite) v. Satterthwaite (1948) 1 All ER 343 at 345, in which Asquith LJ stated the rationale of an appellate court’s approach:

“ ‘…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order.  We are here concerned with a judicial discretion, and it is of the essence of such discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’

The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.”

THE GROUNDS OF APPEAL.

31.  The mother’s formal Further Amended Notice of Appeal raised numerous grounds.  Learned and vastly experienced Senior Counsel, who drafted the mother’s Outline of Submissions, sensibly limited the complaints which were pursued. From Senior Counsel’s Outline it is evident that grounds 4, 7 and 8 of the Further Amended Notice of Appeal were abandoned. Grounds 2, 3, 5, 6, 8 and 9 were said to be “not necessary to be dealt with separately” and covered by the “main thrust of the appeal in grounds 1 and 7.1”.  Whilst it is not necessary to express a concluded view, our reading of the Appeal Books suggests that the mother’s case was in no way compromised by the abandonment of the grounds indicated and the approach to the other grounds identified above.  Objectively, the areas potentially enlivening the intervention of this Court were those identified and advanced by learned Senior Counsel for the mother.

GROUND 1

32.  Ground 1 asserted that the trial Judge “Failed to give sufficient weight to the finding that the children’s primary attachment was likely to lie with the mother”. 

33.  In support of this ground, reliance was placed upon the trial Judge’s finding that, until the date of separation, the child C’s primary attachment was to the mother.  It was submitted that the trial Judge “seems to have accepted that the probability was that the children’s primary attachment was still to the mother” (Outline of Submissions for the Appellant Mother at 3).  Reference was made to a number of statements by the trial Judge in her Reasons for Judgment.  In those passages her Honour said:

35.“The relevance to the court’s overall determination of the children’s primary attachment is addressed in paragraphs 21 and 22 of the second report, and is expanded in the counsellor’s oral evidence from which the following excerpts are taken:

(a)“Absent an observable primary attachment one has, in effect, to speculate where it might lie, and the literature would suggest that it is likely to lie with the parent who has provided the primary care of the children throughout their lives and particularly in their formative years.”

…

(c)The counsellor, when asked by the Court:

“Let us assume that I can determine that as a factual matter.  It is your use of the word ‘speculation’ that has prompted this question.  Even if I can determine that, it still remains speculation, doesn’t it, that the children’s primary attachment would be with the primary carer?”

answered:

“Sure, all I could say is that the literature and practice indicates that when children are exposed to one or other adult in their formative years then the primary attachment is to that adult.  And I am speculating that in this case that would also apply.”

…

(e)In further evidence on the issue the counsellor explains:

“But for my understanding, attachment in the literature refers to a process which occurs very early in the child’s life, and bearing in mind the mother’s appropriate responses to the child creates an important link between the primary carer and the child which I think, especially in young children, ought to be preserved to sustain the optimum adjustment… for the child.

(f)In later evidence the counsellor was asked the following question:

“Now, does the way in which, as you have identified yourself, the children and particularly C, but both, have adapted to separation from their mother for in excess of two years, separation from her on a weekly basis, does that suggest that the initial attachment was a strong one so that they could therefore separate from her in a manner that appears to have been successful, or is this a case where you would have to think that their attachment to their father is also a strong attachment, or is it both?”

To which the counsellor responded:

“I think that the level of emotional security these children have suggests a good attachment to the primary carer, apparently the mother, and that in the event of the mother’s unavailability to provide that role then the father could certainly do so.”

…

(j)When asked:   “Well, your view is that they will suffer insecurities?”

The counsellor answered:

“I said they would have an adjustment task if they were to be in their father’s care…They would have an adjustment task if they were to be suddenly placed in their mother’s care and not have the benefit of the current level of presence the father has for them.  All I can say is that there would be an adjustment task.  And without looking at this matter with a judicial eye but with a social science eye, it seems to me that this matter is fairly finely balanced, and the only point which occurs to me as being significant, and which may tip the balance, is determining who the primary attachment figure was.”

…

36.I accept [the counsellor, Mr L’s,] evidence.  I am satisfied that in the absence of firm evidence as to where the children’s primary attachment does lie, not identified or, according to the counsellor, not identifiable during the course of two assessments of the children and their parents, that speculation as to where it is likely to lie favours the mother if she was the primary carer in the children’s formative years.”

34.  It was submitted that the counsellor “in the finally [sic] balanced situation as he saw it perceived the primary attachment as likely to be the factor tipping the balance” (Outline of Submissions for the Appellant Mother at 3).  It was asserted that the trial Judge “turned away from this crucial factor” and looked instead to what was submitted to be a much less significant factor “namely which was the party more likely to facilitate the adjustment process when the existing week and week about arrangement came to an end” (Outline of Submissions for the Appellant Mother at 3).  It was submitted that “The two years of the week and week about arrangement clouded and confused what would have been quite clear on a prompt determination of the issue”. 

35.It is trite but true to record that the trial Judge was obliged to decide the case on the evidence presented to her.  How the case may have been decided two years earlier was not, without more, of relevance.  We have not been referred to anything to suggest that the time which passed between separation and the hearing before her Honour was referable to anything done or not done by or on behalf of the father to delay the determination of the proceedings, or otherwise a matter which ought have been taken into account to his detriment. 

36.The Court was directed to a number of passages of the father’s evidence and in particular to the following exchange as supporting a concession by the father of the children’s primary attachment to the mother:

“HER HONOUR: Can I just ask you something – and it may assist [Counsel for the mother]. DB, do you agree that up until the time of separation that the children were primarily cared for by their mother?---Not quite, your Honour. Up until, up until about Christmas I agree - - -
Christmas 2000?---Christmas before the separation, which was, yes, 2000, Christmas in 2000, she was but after that I took a much major role in the caring of the children.

All right. Well, there’s a concession which means that you probably don’t need to go back further….
[COUNSEL FOR THE MOTHER]: Thank you for that. I’m indebted to your Honour.
HER HONOUR: It’s a concession made by the father if that’s what you’re after.” (Transcript page 159)

37.  Counsel for the mother submitted, because the mother had been the children’s primary caregiver, and because of the counsellor, Mr L’s, evidence about primary attachment, that the trial Judge should have treated the question of the transition of the children to the care of one parent and the sensitivity of that parent to the children’s needs as a secondary question. He relied on the following further exchange:

“HER HONOUR: Mr L, I take it, though, from what you have just said, that even when I - even when the Court determines who had been the primary carer of the children prior to the shared arrangement, where there - - - ?---[MR L] Sorry, prior to the - I guess the separation, I think.

Yes, all right, prior to the separation. Let us assume that I can determine that as a factual matter. It is your use of the word ‘speculation’ that has prompted this question. Even if I can determine that, it still remains speculation, doesn't it, that the children's primary attachment would be with their primary carer?---Sure. All I could say is that the literature and practice indicates that when children are exposed to one or other adult in their formative years, then the primary attachment is to that adult. And I am speculating that in this case that would also be the - would also apply.
But you didn't see anything in you observations to indicate that the children were more attached to one parent than the other?---My observation indicated to me that both parents were important to the children, and that is as far as my observations go. I think one has to consider, though, the developmental issues which aren't apparent at the time of observation, but which are inferred from the knowledge presented by the parties, and that is that the father, as I understand it, had a business to maintain and the mother, although involved in the things, was less - was more available to the children during those formative years. If that is the case then it could infer - I could infer, and the literature will indicate that the children will be primarily attached to the mother.

On that basis?---On the basis that all things being equal - - -

That they have spent more time with one parent than the other?---Yes. When you are talking about children developing from birth to, say, nine months, then on to about 18 months, those primary attachments occur. And it is those primary attachments which I think underpin the quality of the relationships which follow, and which are the more damaging if broken.
Mr [L], I am just going to take some notes of what you said. Excuse me, [Counsel for the mother], I want to come back and ask something else.

[COUNSEL FOR THE MOTHER]: Yes, your Honour.

HER HONOUR: Yes, all right.

If that is the case, I suppose this is what is - this is what I need clarification about. If you can help me. If you can accept that I understand - I think I understand - the significance of the early period of children's lives and the time at which primary attachments are formed, and you have just indicated a 9 to 18 month period, and if I can say to you, ‘Well, that seems to fit in with what I understand the situation to be.’ What I am interested in is, if it were the case that the primary attachment to a child is formed at that time, and remains therefore their primary attachment, because it forms at that particularly relevant time, wouldn't the logical follow-up to that be that every time there was a separation of parties - and of course, I see a lot of that and so do you - that it would be - it would go without saying that the primary attachment was to the parent or the person who had provided that care at the significant time?---Yes.
Because, if that was the case, we so often see, though, don't we, Mr [L], that that is not the case? That children's primary attachments are often quite expressly identified in counselling reports as being to a parent or person who didn't provide that initial care, and that is why I am interested. It seems, based on the number of family reports that I have seen, that it is quite possible that over time a closer attachment to one parent than the other can develop, notwithstanding that earlier time. Now, am I wrong about that? I mean, should that always be the determinate?---My comments, your Honour, are based on all things being equal. A child can be attached to a primary carer in a pathological way.
Just a moment, Mr [L]. Yes, so your comments, and all things being equal, yes?---In a pathological way. Now, if the mother had some difficulty relating to the child, had some emotional damage herself, and behaved in such a way as to not be able to provide that child with security, et cetera, then the child could develop a - what I would call sort of a pathological attachment whereby it would be in the literature classified as insecure, or in some way inappropriate.
Yes?---I don't think there is any evidence in the mother, which was presented to me, which would suggest - - -

That is not part of the father's case?---Mm?

It is not part of the father's case?---No, no. Which would suggest that she was an inadequate mother. And in addition, in the event of a primary caregiver dying. Children, as your Honour indicates, can find solace and comfort in developing a relationship with, or a closeness with, another significant adult. And that is often what happens in matters which come before this Court where residency is contested, and decisions are made. And the decisions don't go in favour of the hitherto primary carer. But for my understanding, attachment in the literature refers to a process which occurs very early in the child's life, and bearing in mind the mother's appropriate responses to the child creates an important link between the primary carer and the child, which I think, especially in young children, ought to be preserved to sustain the optimum adjustment - - -” (Transcript pages 232-234)

38.  In his submissions, learned Counsel for the father suggested that the trial Judge had “carefully considered the question of primary attachment”, referring the Court to paragraphs 32, 33, 34, 35, 36, 37 and 38 of the reasons for judgment.  We have earlier set out paragraphs 35 and 36 of the reasons.  In paragraphs 32, 33, 34, 37 and 38 her Honour recorded:

32.  “The children’s close relationship with each of their parents has been referred to in the counsellor’s reports.  In the first report it is observed:

24.“Both children played easily with their mother.  Their interaction was characterised by much laughter and closeness.  [The mother] gently guided their play, with the children remaining relaxed and interested in the activities.  They appeared to be attached to their mother and willing to accept her guidance.”

25.“As with their mother the children related warmly with their father.  He provided gentle encouragement and was able to guide them through various activities.  They impressed as being close to [the father] and to be attached to him.  They showed no sign of anxiety and remained comfortable throughout the session.”

26.“Nothing emerged from observation of the parties and the children which indicated that the children’s best interest would be served by them residing with one parent in preference to the other.  A and C appear to have a close relationship with [the father] and [the mother].”

I accept the counsellor’s evidence.

33.  In the second report it is observed:

18.“They interacted enthusiastically with [the father] and happily accepted Ms W when she entered the room.  It was apparent the children are close to their father and take pleasure in his presence.  He managed them with care and affection.  Likewise with [the mother], the children played happily and they were responsive to her warmth and encouragement.  When the maternal grandmother joined the children and their mother the children’s affect remained animated and they acknowledged and included her without hesitation.”

19.“As with the previous assessment, this assessment does not discriminate between the parents in terms of their parenting capacity.  The children related closely to each parent and [the father] and [the mother] responded appropriately to them.  They were also close to the other adults involved however it would be expected that they would be more attached to the maternal grandmother than to Ms W whose relationship with them has been shorter.”

I accept the counsellor’s evidence.

34.  Despite two assessments by the counsellor, one about three months after separation and a second one just over two years later, there is no expert evidence before me that the children are more attached to one parent than the other.  There is expert evidence before me, of a speculative nature, as to where the children’s primary attachment might lie.

…

37.I am satisfied that the father was an involved parent up until the time of separation particularly in the period after an arrangement was put in place, initiated, I am satisfied, by the father, whereby the mother came to live at the factory with C, and later A, for part of the week.  I am satisfied that the mother originally sought to minimise the father’s role prior to separation in the children’s day to day care until concessions were made by her in cross-examination.  Nonetheless, I am satisfied that the mother was the children’s primary carer until separation.  That concession is fairly made by the father who did not ever assert that he was the primary carer, but that the mother was minimising his considerable involvement.

38. I am satisfied, on the counsellor’s evidence, that that finding and the speculation it gives rise to as to where the children’s primary attachment might lie, should not determine per se the outcome of this case but that it could tip the balance in the mother’s favour in circumstances where the case is so finely balanced that there is no clear outcome.”

39.  In addition reliance was placed upon the evidence of the counsellor in the lengthy passage quoted earlier (Transcript pages 232-234).

40.  It was submitted that there had not been “evidence available to find that there is a primary attachment with the mother” (Outline of Submissions for the Respondent Father at 3) and that nothing which the trial Judge concluded, or failed to conclude, in that regard, was not reasonably open to her on the evidence before her, particularly having regard to the evidence of the counsellor. 

41.  On behalf of the father it was further submitted that the counsellor, who saw the children within three months of separation, could do no more than speculate about the primary attachment of the children at the date of trial.  It was thus submitted that her Honour’s observations with respect to the week about arrangement were an accurate statement of the evidence and had not “clouded and confused the issue”. 

42. It was further asserted that the trial Judge’s conclusions with respect to primary attachment had not been shown to be erroneous and that she had not erred in failing to elevate the issue of primary attachment above the issue of parental attitudes or any other matter. Consistent with the terms of s 68F(2) her Honour was said to have considered the question of primary attachment as one of the factors relevant to the exercise of her discretion.

43.  In the course of his oral submissions, learned Counsel for the father referred the Court to paragraphs 94 and 97 of the trial Judge’s Reasons for Judgment.  Her Honour there said:       

94.  “That, of course, does not mean that I do not take into account the evidence of the children’s likely primary attachment.  I take it into account along with all the evidence I have referred to and all the findings I have made pursuant to those sub-sections of S.68F(2) which I have identified as relevant to this case. Indeed, it is a significant factor in the mother’s favour, and I expressly take into account the counsellor’s evidence and the findings I have made at paragraphs 36 and 37 hereof, as to where the children’s primary attachment is likely to lie, including the following evidence, already referred to, which is particularly favourable to the mother’s case:

“But for my understanding attachment in the literature refers to a process which occurs very early in the child’s life and bearing in mind the mother’s appropriate responses to the child creates an important link between the primary carer and the child, which I think especially in young children ought to be preserved to sustain the optimum adjustment”.

…

97.  Included in the evidence I take into account is that despite the likelihood that the children are primarily attached to the mother, that is not reflected in the evidence provided by the counsellor during questions specifically on the issue: that no greater or different effort will need to be made by the father to assist the children adjust to a reduction in time spent with the mother than by the mother to assist the children adjust to a reduction in time with the father.”

CONCLUSION IN RELATION TO GROUND 1

44.  The counsellor had in fact prepared two reports.  In the first report, dated 13 September 2001 the counsellor concluded that “Nothing emerged from observation of the parties and the children which indicated that the children’s best interest would be served by them residing with one parent in preference to the other” and that both children appeared to “have a close relationship” with each parent.  The trial Judge accepted that opinion. 

45.  In the second Counsellor’s report, dated 13 June 2003 the counsellor suggested that his assessment did “not discriminate between the parents in terms of their parenting capacity”.  The trial Judge also accepted that opinion evidence.

46.  Nothing to which this Court has been referred demonstrates that her Honour’s conclusion that there was “no expert evidence” before her “that the children are more attached to one parent than the other” was not reasonably open to her.  Nor has it been demonstrated that her Honour’s suggestion, that there was “expert evidence” before her of a speculative nature as to where the children’s primary attachment might lie, was without foundation. 

47.  Her Honour referred to the evidence of the counsellor that “one would speculate” that the children would be “primarily attached” to the mother as “she was the more present carer when the children were in the very formative years”.  Her Honour also referred to the evidence of the counsellor that he would “infer and the literature will indicate that the children will be primarily attached to the mother… On the basis that all things being equal”. 

48.  In further evidence to which her Honour referred, the counsellor acknowledged that the children had coped well with the removal from each parent for periods of time during the previous two years and that his observations “would indicate they related positively to both parents and that they appeared to me to be emotionally secure children” who were “comfortable in moving around these different adults”.  The counsellor agreed that the children appeared to have adjusted well to the circumstances in which they had been living prior to trial.  The counsellor suggested that the children would have “an adjustment task” whether they were to be in the father’s care or the mother’s care and that the “only point” which occurred to the counsellor as “being significant, and which may tip the balance, is determining who the primary attachment figure was”.

49.  The counsellor agreed that “an important issue for the Court to consider” was the attitude of each parent to the other and the capacity of each parent to keep “their own true attitudes about the other person…removed from the children in the future, if they were the resident parent”.  Her Honour ultimately concluded that she was:

“… satisfied that in the absence of firm evidence as to where the children’s primary attachment does lie, not identified or, according to the counsellor, not identifiable during the course of two assessments of the children and their parents, that speculation as to where it is likely to lie favours the mother if she was the primary carer in the children’s formative years.”   

50.  It is apparent (reasons for judgment, paragraph 37) that her Honour was “satisfied that the mother was the children’s primary carer until separation”, as the father conceded.  Her Honour then, correctly in our view, suggested that “where the children’s primary attachment might lie, should not determine per se the outcome of this case but that it could tip the balance in the mother’s favour in circumstances where the case is so finely balanced that there is no clear outcome”.

51.  Her Honour’s subsequent statements (reasons for judgment, paragraphs 94 and 97) make it clear that her Honour at all times proceeded on the basis that the children’s primary attachment was to their mother until separation and that this was “a significant factor in the mother’s favour”.  Her observation that “despite the likelihood that the children are primarily attached to the mother, that is not reflected in the evidence provided by the counsellor during questions specifically on the issue” has not been shown to lack foundation.

52.  To the extent that this ground asserts that the trial Judge’s conclusions of fact with respect to the children’s “primary attachments” were erroneous, the challenge fails.  In our view, her Honour accurately recorded the expert evidence before her in relation to that topic and no evidence to which we have been referred causes us to doubt the accuracy of her findings and observations in that regard.  To the extent that it is suggested on behalf of the mother that, in the circumstances of this case, such findings should have been decisive of the issue, we cannot agree.  The statement made by her Honour to which we have referred above (reasons for judgment, paragraph 38) accurately reflects the law.  Her Honour was undoubtedly correct to suggest that, were the case so finely balanced that there was no clear outcome this factor could “tip the balance in the mother’s favour”.  As emerges from other parts of her Honour’s reasons that did not occur by virtue of the preponderance of factors giving rise to findings that the children’s best interests dictated they should live predominantly with the father. Nothing to which we have been referred demonstrates factual or legal error on the trial Judge’s part in relation to the question of the children’s “primary attachments”.

GROUND 7.1

53.  With respect to ground 7.1 it was asserted that the trial Judge “minimised the significance of the husband’s drinking problem” although that was conceded to be justifiable “in the sense that the evidence suggested that in the two years since separation the husband had not shown any drinking problem to which the children made reference or which came to the wife’s knowledge” (Outline of Submissions for the Appellant Mother at 4). 

54.  The real complaint however was that “the judge paid not [sic] attention at all to the effect upon the wife and the wife’s assessment of the husband that the husband had during the course of the cohabitation apparently a significant drinking problem” (Outline of Submissions for the Appellant Mother at 4). 

55.  It was further asserted on behalf of the mother that:

“The mother ultimately lost substantially because of her poor opinion of the husband and her distrust of the husband and her confidence that the children were going to be benefited by being with her rather than with the husband.  The husband’s drinking problem would obvious[ly] provide a significant part of the answer as to why the wife had that attitude but would also show that the mother’s concern for the children and her view of the father may be, in the light of the past, amply justified.  She was condemned for a poor opinion of the husband which on the face of it is likely to have arisen because of the husband’s conduct when they lived together.” (Outline of Submissions for the Appellant Mother at 4) 

56.  In support of these contentions the Court was referred to the affidavit evidence of the mother that:

49.“From the time the children were born [the father] and I had a lot of problems. [The father] drank alcohol every day.  When he came home from work he went immediately to the fridge for a beer.  He drank 1-2 longnecks every day.  He was angry and abusive.  He would say to me words to the effect:

“There should be beer in the fridge.  You’re stupid”.

…

51.When [the father] drank too much he became obnoxious.  [The father] talked a lot at me, and while I do not recall the actual content of what I call his  “raving’, I found some of the things he said to be hurtful and distressing.

52.[The father] also became physically abusive when he drank too much.

53.He would rampage through the house yelling insults at me and shouting.  He would grab anything which came to hand and throw it or break it.  On one occasion he threw at me a full packet of 100 wet nappy wipes, hitting me in the chest.

54.When he yelled at me C would start to cry.  I usually took him into his bedroom.  [The father] would follow me and stand within about 10cm of my face.  He continued to yell at me even whilst I was trying to calm C.

55.In June 1998 [the father] went to [a friend’s] house for a bucks party.  [The father] and his brother [...] came to our home [in the Blue Mountains].  [The father] and [his brother] had been arguing and they continued their argument.  I was present when [the father] smashed the rear vision mirror on his truck and [the father] then smashed the glass in the back door.

56.In July 1998 his brother [...] was married.  In the middle of the night [the father] woke me up screaming at me.  He said words to the effect:

“You’re a bitch.  You’re stupid.  You’re like your mother.”

57.I was pregnant with C at the time.  [The father] chased me through the house and ripped the light out of the room we had planned to be the child’s bedroom.  He hit the walls.

58.[The father] put his face very close to mine and screamed at me words to the effect:

“You’re a bitch”.

I was intimidated by him.    

…

60.There was another incident in about January 1999 when C was 3 months old.  [The father] and I and C had gone to a party at his business partner’s home in [E].  I was driving to the factory in [southern Sydney] and we stopped for petrol. [The father] was in the passenger’s seat.  He had been drinking beer all afternoon and was very drunk.  He slurred his words.  He was too drunk to drive.

61. I got the petrol and went to pay for it.  [The father] drove off with C in the car.  [The father] came back about 15 minutes later.  C was sitting on [the father’s] lap unrestrained while he was driving the vehicle.

62.There was an incident in December 2000 when I was sitting on a reclining desk chair and [the father] pushed the chair.  I thought I was going to fall backwards and he put his face very close to mine and he screamed at me.

63.[The father] made me very nervous and the children were also very nervous when around him.

64.But [the father’s] behaviour did not really change and we had arguments in front of the children all through the relationship.  [The father] has yelled at me in front of the children, has sworn at me in front of the children and engaged in threatening and intimidating behaviour when he puts his face close to mine and yelled at me at the same time, in front of the children.

65.When the children were unwell [the father] said to me:

“That’s your job to look after the kids”.

66.In April 2001 C and A both got the chicken pox although not at the same time, about 3 weeks apart.  The first day that C was sick was a Saturday.  [The father] looked after him and I went to work.  When I came home from work [the father] said to me words to the effect:

“I shouldn’t have to miss work because C’s sick.  That’s your job.  You’re the mother.”

[The father] did not speak to me for a week after that.”

57.  Further, in support of the mother’s contentions the Court was referred to the mother’s oral evidence in examination by Counsel for the mother:

“What is it that you found about [the father’s] drinking that caused you difficulty? --- I found that he would begin talking a lot.  He would repeat himself over and over and over.  I found it very annoying.  He would be all over me physically, pawing and cuddling and in the guise of affection but it wasn’t affectionate.  And I just wanted him to not be near me when he was drunk.  To not display that behaviour.
Would he say things?  He would say things ---

HER HONOUR: …, please don’t lead.

[COUNSEL FOR THE MOTHER:  Thank you, your Honour.

What else about his conduct caused you problems? ---He would talk a lot.  He would say over and over and over that he loved me.  “I love you, I love you, you know I really love you.”  And it wasn’t in a manner that I felt that he did love me.  He was just talking for the sake of talking.  He would get onto one of his favourite subjects such as they should increase the speed limits because that would stop traffic jams and there would be less accidents.  And he would go on and on.  There was – to my understanding, I didn’t think it was a rational argument when he was giving his argument.

[HER] HONOUR:  Yes, go on, ….

[COUNSEL FOR THE MOTHER]:  Thank you, your Honour.

And other than that type of conduct, was there anything else that he did that you recalled, when he was affected by alcohol? ---He would break things, throw things---
What sort of things? --- He broke the pane of glass in the back – our back door.  He broke a pot plant.  He broke ---
When you say he broke a pot plant, what happened? --- He picked it up and threw it.

Did he throw any other objects?

HER HONOUR: … stop leading, please.

[COUNSEL FOR THE MOTHER]:  What else did he do? --- Once, he picked up the coffee table and hurled it across the lounge room.  Once he threw a packet of nappy wipes at me and hit me in the chest.  He would throw remote controls around the window.  He would punch the walls and punch the doors.  And it seemed that he was trying to use objects and the punching as a means to emphasise his arguments and express his anger.

HER HONOUR: I will disregard that last bit.

[COUNSEL FOR THE MOTHER]:  Yes, your Honour.

Now, I will take you to an incident – I am referring to paragraph 60, your Honour.  Your Honour gave me some leave in relation to that paragraph.  I am referring to an incident, which occurred in January 1999.  Do you recall that? --- Yes, we were at a party.
Do you recall whose party that was? ---Yes, it was a party at the house of [friends], who [the friend] at the time was [the father’s] business partner.

HIS HONOUR:  Yes, go on, ….

[COUNSEL FOR THE MOTHER]:  How long were you there? --- Six to eight hours.

Whose company were you in?  --- I was in [the father’s] company.

What did you see him do? --- He drank a lot, he smoked a lot of cigarettes.  He talked a lot, told a lot of lewd jokes.

What was he drinking?---VB Stubbies, beer.

Are you able to estimate the number of VB stubbies of beer that he drank on that occasion? --- At least 15, maybe 20.

Did you have a discussion with him at any stage during that afternoon?

HER HONOUR: Well, what – … they were together for six to eight hours.

[COUNSEL FOR THE MOTHER]:  Well, perhaps I withdraw that, your Honour.

How did you get home? --- I drove home.  When we left the party [the father] asked if I would drive.  He said he wasn’t – he wouldn’t be able to ---
So did you have a discussion with him about going home, did you? --- Yes.  Yes.  He said he had drunk too much and he would be over the limit if he was breath-tested.

Thank you.

HER HONOUR:  So that was a responsible thing for him to do, of course? --- Yes.” (Transcript pages 23-25) 

58.  The father’s evidence in cross-examination by Counsel for the mother was also relied upon on behalf of the mother:

“All right.  So you say then that that problem that you had with alcohol occurred later do you, in 2000 – sorry in 1999?---I’m saying it happened possibly during 2000.  Towards the end of 2000.  In the last six months of the business closing down.” (Transcript page 158)

“You agree with that?---Yes.

Now, you see there'd been a problem, hadn't there - by the time of the separation there'd been a problem, hadn't there, for quite a number of months in terms of your use of alcohol?---Yes.
And in fact it went back further than that. There'd been problems with your use of alcohol from certainly after C was born?---From the closing down of the business, six months to prior closing down of the business I consider that I was drinking too much until the separation.
Well you certainly don't deny that you drank before the commencement of that period of about six months do you?---No. Certainly had a drink, yes.
And there was an incident, wasn't there, before C was born, which involved your behaviour and alcohol?---Yes.
And that was an occasion, wasn't it, when you chased the mother through the house and ripped the light out of the room that you were planning to use for C's bedroom?---Yes.

And you hit the walls?---Yes.

That's right, isn't it?---Yes, that is correct.

And you were well affected by alcohol on that occasion weren't you?---I'd had too much to drink, yes.
You don't distinguish between having too much to drink and being well affected by alcohol do you, on that occasion?---Pardon?
You don't distinguish, do you, when I put that - - -?---I had too much to drink, yes.

You agree, you were well affected by alcohol?---Yes.

HER HONOUR: How long ago was this?

[COUNSEL FOR THE MOTHER]: Well - - -

HER HONOUR: Before C was born?

[COUNSEL FOR THE MOTHER]: I suggest to you that it was whilst the mother was pregnant with C?---Yes, in (indistinct) it was '98.

HER HONOUR: It was when?

[COUNSEL FOR THE MOTHER]: Sorry?---I think it was written - it was in the affidavit - it says about '98. After my brother's wedding.
Right. There was another incident, wasn't there, that - in June 1998 when you went to your mother's house for a bucks party is that right?---Yes.

And that was another occasion when you were well affected by alcohol?---Yes.

Then you smashed the rear vision mirror on your truck?---Yes, it was broken.

Well, you had an argument, didn't you, with your brother, [...] ?---Yes.

And the argument resulted in you smashing the rear vision mirror on your truck?---Not due to the argument but it was broken, yes.
Well, was there a fight or was there - did you do that - - -?---We didn't struggle. I was drunk.

Yes?---Affected by alcohol.

Yes?---And the mirror broke, yes.

And on that same occasion, in that same state, you smashed the glass, didn't you, in the back door of the home [in the Blue Mountains]?---Yes.
And shortly after that - and this is still before the birth of C and during the mother's pregnancy - in July 1998, this was on the occasion of your brother[‘s], [...] marriage, there was an occasion when you woke up - on that occasion you awoke in the middle of the night screaming at the mother. Do you recall that?---Yes, I was awake in the middle of the night and screamed at her, yes.

And you were - - -

HER HONOUR: That's the same night as the - that's the same excessive drinking as the night that you pulled the light out of the - okay?---Yes, your Honour.

Okay. Got that incident.

[COUNSEL FOR THE MOTHER]: Is it the same incident or a separate incident?---The same incident.

Thank you.

HER HONOUR: I gather from that, …, it was the same - it was the alcohol - it was the same drinking that caused both incidents. Is that right?

[COUNSEL FOR THE MOTHER]: I see. Thank you, your Honour?---Yes.

So the occasion that you ripped the light out of the room - C's prospective room - that was the night of your brother's marriage, is that what you're saying?---Yes.

Thank you.

HER HONOUR: You got drunk at the wedding, you ripped the light out and you woke up in the middle of the night and screamed at the mother. Is that right?---I - the story - like I had too much to drink. I came home - I was having an argument with [the mother] in the car. I came home. I went to sleep. I was awoken by [the mother] continuing to argue with me and then I ripped the light socket out of the roof.

Just a moment, …. Yes, go on, ….

[COUNSEL FOR THE MOTHER]: Well, you'd agree it's fairly deplorable conduct on your part wouldn't you?---Inexcusable and I do regret it greatly.

HER HONOUR: Sorry, [the mother]?---And I regret it greatly.

[COUNSEL FOR THE MOTHER]: And it was conduct that might perhaps intimidate the mother?---Yes, yes.
And you'd agree with her claim that she was intimidated by your conduct on that occasion?---Yes.
And the fact is she was intimidated by your conduct on other occasions wasn't she?

HER HONOUR: Put specific occasions, ….

[COUNSEL FOR THE MOTHER]: Well - - -

HER HONOUR: Otherwise it doesn't help me.

[COUNSEL FOR THE MOTHER]: - - - she was intimidated by you on other occasions through the period leading up to the closing down of your business?

HER HONOUR: In the six month period?

[COUNSEL FOR THE MOTHER]: In the six months. I put it on the basis of being a six month period, your Honour.

HER HONOUR: … I'll tell you what I'm assisted by; incidents please.

[COUNSEL FOR THE MOTHER]: Thank you, your Honour.

HER HONOUR: If you want to put to the father that there were incidents when he drank too much and behaved badly, put them please. He's made the concession that in the six month period prior to his business closing down and up until separation he drank too much.
[COUNSEL FOR THE MOTHER]: Thank you, your Honour, for that. You see, you drank too much in November 1998 didn't you?

HER HONOUR: Well, on one occasion? I mean - -

[COUNSEL FOR THE MOTHER]: I will put the scenario to him, your Honour.

HER HONOUR: …, I don't want - I don't want to make it sound like there's anything admirable about people getting drunk and behaving badly but people do it in our community. What I'm more interested in is whether it is a pattern of behaviour or whether people get drunk at weddings, at stag parties at - every Saturday, every day. I mean, I need - if you're trying to paint a picture of a man whose alcohol use then will in any way have any bearing whatsoever on what I decide for the future of these children, I need to know whether it is a pattern of drinking that would cause me concern about now and the future.

[COUNSEL FOR THE MOTHER]: Yes, I appreciate that.

HER HONOUR: Not isolated incidents of getting drunk, …, because as I say, although I don't condone it, I think a lot of people do that.
[COUNSEL FOR THE MOTHER]: Your Honour, I'm just seeking to obtain a concession to sort of put the jigsaw together.

HER HONOUR: All right.

[COUNSEL FOR THE MOTHER]: And there are some difficulties in doing that, your Honour.

HER HONOUR: Yes, all right.

[COUNSEL FOR THE MOTHER]: Look, you were charged with driving with a prescribed concentration of alcohol in November 1998 weren't you?---Yes.
And that - was that prior to or after the birth of C? Was that after the birth of C?---Yes.

And simply this; you were at the Bathurst Races weren't you?---Yes.

And when you left the races you were breathalysed by the police who were sitting outside the exit to Mount Panorama?---Yes.
And you lost your licence for six months?---Yes, I did, yes. It was suspended for six months. I went to Court. They gave it back to me - I think it was given back to me until the hearing. But it was suspended from - it was given back to me but I think I lost it for about four months.
So there'd been - there'd certainly been incidents of adverse drinking behaviour on your part, at least - certainly in mid 1998?---Yes.

Certainly around the time of C's birth. That's right, isn't it?---Yes.

You see, you told the mother, didn't you, that you thought you'd been hard done by because your mates at the races should have told you that you'd in fact sculled a whole bottle of bourbon the night before you were arrested?---I wouldn't exactly say I felt hard done by.

All right?---I was disappointed.

You agree, you agree do you that you had drunk a bottle of bourbon - - -?--- Not a whole bottle of - - -
- - - the evening before you were arrested for this offence?---Not a whole bottle of bourbon, no but I had consumed far too much alcohol before I went to sleep that night.
And you'd drunk so much that you didn't know what you had in fact ingested. Is that what you're saying?---I don't think so, no. I drank too much and went       to sleep and when I woke up in the morning I felt fine to drive when apparently I wasn't.

And you don't think it was fair of your mates not to warn you not to drive?

HER HONOUR: … I'm not interested.

[COUNSEL FOR THE MOTHER]: Thank you, your Honour. Now, when did you see the clinical psychologist, [Dr R]?---I saw him towards the end of our relationship. I think - I would say the start of April, maybe even - - -
You say you saw him around April, is that right?---Towards the end of March, the beginning of April I started seeing him.

2001?---Yes.

And you saw him how many times?---At least five to six times possibly, maybe seven.
So up to seven times you saw him?---Yes. I also saw - like that was part – I saw him with [the mother] as well.
And that assisted you, did it, in reducing the level of your consumption of alcohol?---I'd already started to - I'd already started to lower the amount of alcohol I was drinking before that. [The mother]still seemed to consider that I had a problem with drinking so I - after her saying she was going to leave me I decided I would go and see him and see what he thought of it. I saw him on two occasions and he said that he did not think that I had a problem with drinking and thought that it might be more preferable for [the mother]and I to see him together to try and sort out our differences.
Well, in your affidavit you say that you were drinking at the factory after work. I'm sorry, in your affidavit you say:

There was a time when I was suffering from stress as a result of financial problems in my business.

?---Yes.

Did you say that. You say:

I was drinking at the factory after work.

?---Yes.

And sometimes had a beer at lunch time.

?---Yes.

And you say:

As a consequence of this I consulted Dr [R].

?---That's what it says, yes.

You didn't say anything in your affidavit about the involvement - [the mother’s] involvement in these problems did you?---No.
And you say in your affidavit you saw him on three occasions in 1999?---That must be - yes, that must be a mistake.

Well, that's not right is it?---No, I don't think so, no.

I mean - - -?---No, I don't, no.

You're telling us about consultations you had with Dr [R] in 2001?---Yes, that's when I had the consultations.

So to say that you saw him on three occasions in 1999?---Would be incorrect, yes.

Would be incorrect?---Yes, yes.

And you read your affidavit that you swore on 7 July carefully?---Yes.

Now, you also swore an affidavit on 14 August 2001 didn't you?---Yes.

In respect of your interim application?---Yes.

And in that affidavit you said this:

I was drinking at the factory after work and sometimes had a beer at lunch time. As a consequence of this I consulted Dr [R]. I saw him on three occasions in 1999.

?---Yes, that (indistinct)

Is that incorrect too is it?---It is incorrect, yes.

And of course you made that affidavit in August - sorry, you swore that affidavit in August 2001?---Yes.
And that affidavit was therefore sworn only within a few months, four to five months of the dates you now say you consulted Dr [R]?---Yes.
So are you saying that when you swore your affidavit in August 2001, your memory was that deficient?---I was confused and upset at that time, yes.

HER HONOUR: Go on …. I understand the point you make. People

make mistakes in their affidavit. I think your client's been accused of the same thing.
[COUNSEL FOR THE MOTHER]: Now, what you are saying to her Honour is this, that you really only had a problem with excessive use of alcohol because you were suffering from stress; is that the case?---Not because of it but it was helping - the cause of stress was making me drink more, yes. It was in that time when I was stressful that I was drinking the most, yes.

And of course what sort of strategies do you intend to adopt in terms of your future use of alcohol when you undergo another period of stress in your life?---I believe that I've already - sorry - I think I've improved my drinking already now to a level that's satisfactory.
You're confident now, are you, that you have control of your use of alcohol?---Yes.

HER HONOUR: So you've got control of your use of alcohol?---Yes.

Okay.

[COUNSEL FOR THE MOTHER]: And have you been provided - or you're provided by – did Dr [R] provide you with any sort of strategy or suggestion - - -?---Dr [R] wasn't concerned with my drinking when I saw him.
Doesn't your affidavit suggest that you saw Dr [R] because you'd been drinking too much?---I was concerned. [The mother] was concerned. Dr [R] didn't seem that concerned about it.
But it was certainly of a sufficient concern to you, wasn't it, to see this doctor?---Yes, I went to see this doctor, yes.
How much do you drink now?---I drink - I share with my partner one to two long necks a night. Not every night.
Is that all you drink, beer?---And wine. We might share a bottle of wine.

Do you drink spirits?---No.

Have you had any other drink drive incidents since the November 1998 incident?---No.
And would it be fair to say that the wife's - the mother's assertion that your behaviour over this period, up until - - -

HER HONOUR: Which period?

[COUNSEL FOR THE MOTHER]: The period of six months leading to the closure of the business and then subsequently through the separation, that your behaviour was such, in terms of your use of alcohol, that it became too difficult for her to remain?
HER HONOUR: Well, …, this witness can't answer that question. You can put to him things that were said to him by your client but he doesn't know why. He can't be expected to know why the relationship ended.
[COUNSEL FOR THE MOTHER]: Well, she complained - the mother complained to you about how much you were drinking didn't she?---Yes.

She complained to you frequently about how much you were drinking?---Yes.

And did she threaten to bring an end to the relationship because of how much you were drinking?---I think her words were that I was a terrible husband.
Was part of the reason that you were a terrible husband, were you told, because you were drinking far too much?---She may have said that, yes.
Certainly, your behaviour in terms of drinking, contributed to the breakdown of your relationship?---It was part of the reason, yes.
I want to take you to the period around your separation. The mother told you in April 2001, didn't she, words to the effect:

I want to leave. Our relationship isn't working.” (Transcript pages 163-171)

59.  It was submitted by learned Counsel for the father that, apart from the matters referred to in Senior Counsel for the mother’s Outline of Submissions to this Court, nowhere was it ever asserted by the mother that her attitude to the father was in any way referrable to her perception of his past or present conduct towards her, either in relation to financial matters, alcohol or anything else.  Counsel for the father asserted that the mother had at no time before the trial Judge conceded that her attitude was other than positive and acceptable. Learned Counsel for the father asserted that a different case was being presented to this Court than had been presented to the trial Judge, no submissions of the kind made to this Court having been made to the trial Judge.  Perusal of the transcript of concluding addresses supports this assertion. At no time was it asserted on behalf of the mother before her Honour that any unsatisfactory attitude on her part to the relationship between the children and their father should be regarded as referrable to her perception of his conduct towards her during cohabitation.

60.  In reality the complaint sought to be agitated pursuant to this ground is not that the trial Judge’s conclusions with respect to the mother’s attitude were erroneous, but that her Honour erred in not regarding that attitude less critically than would otherwise be appropriate.  The mother’s perception of the father’s treatment of her was said to explain her unsatisfactory attitude and allow a more benign view of it.  On behalf of the father it was submitted that the trial Judge was well aware of his past inappropriate consumption of alcohol.  The Court was referred to her Honour’s reasons in which she stated:

48.“As for sub-section (e) of S.68 F (2), as I have already said each parent’s capacity to provide for the children’s day to day physical care is not seriously disputed, nor could it be, given the consent orders made in excess of two years ago to continue the shared arrangement then in existence.  The father, in these proceedings, raises no criticism at all of the mother’s physical care of the children, either before or since separation.  The mother raises, in these proceedings, the father’s excessive drinking, based on her experience during their relationship.  However that was a period prior to the mother agreeing to an arrangement whereby the father would provide full time care of very young children for fifty per cent of the time, and I take that into account when assessing both the likely extent of the father’s drinking and the genuineness of the concerns the mother is raising.

49.I am satisfied that whilst there were earlier incidents of the father drinking too much, both on social occasions and in the home, and in November 1998, the month in which C was born, he was convicted of a drink-driving offence, his excessive use of alcohol on a regular basis appears mainly concentrated in the period in which the parents’ business was collapsing.  I am satisfied that the father’s drinking at that time impacted on the parents’ relationship and contributed to it’s [sic] ultimate demise.  That is not denied by the father whose evidence is that he acknowledged the problem by seeking professional advice in 2001 and reduced his drinking, one of the motivations being to save the deteriorating relationship.  I accept that evidence.

50.The father has given evidence of his current alcohol consumption, which is not, in my view, excessive.  The mother agrees that although she has not lived with the father since the current parenting arrangement commenced in September 2001, there has been nothing to suggest excessive drinking since then, including nothing reported to her by the children.  The mother concedes that the family reports do not suggest that the children are looked after by an abusive, drunken man and concedes that there appears to have been a change in the person she lived with, from the point of view of his alcohol consumption.  However, in making these concessions I formed the impression that the mother was begrudging in giving the father the benefit of the doubt.

51.I am satisfied that the father’s current use of alcohol does not impact adversely on his capacity to provide for the children’s needs as either the primary resident parent or as a contact parent.”

CONCLUSION IN RELATION TO GROUND 7.1

61.  Nothing to which her Honour there referred has been shown to have been at variance with the evidence before her.  In reality the complaint raised by this ground is that the trial Judge did not adopt a more charitable view of the mother’s attitude towards the father notwithstanding that she was not asked to and that the mother at no time suggested her attitude to be other than acceptable.  There is no challenge to the accuracy of any of the trial Judge’s findings or conclusions with respect to the mother’s attitude to the father’s relationship with the children.  We are accordingly not persuaded that this ground has substance. 

GROUNDS 10 & 11

62.  Grounds 10 and 11 asserted that the trial Judge failed to give sufficient weight to the children’s relationship with the maternal grandmother and step grandfather.  It was submitted that the trial Judge erred in finding that the children’s relationship with the paternal grandmother was “a close relationship and one from which the children derive much pleasure” in the absence of evidence from the paternal grandmother.  It was submitted that, the paternal grandmother having not given evidence, the trial Judge could not properly draw inferences or reach conclusions with respect to the relationship between the children and the paternal grandmother and was “not justified in balancing out the grandparents against each other when there was one of them she had not seen at all who was not offered for cross-examination” (Outline of Submissions for the Appellant Mother at 5). 

63.  In response, it was submitted on behalf of the father that the father’s case was that he would primarily care for the children with the assistance of his defacto wife and that his mother played a less significant role in the children’s life than she had during the course of the marriage.  Reference was made to a number of paragraphs in the mother’s affidavit (40, 43, 46, 47, 55, 67 and 72) referring to the paternal grandmother.  It was submitted that in none of those passages was there any criticism of the paternal grandmother by the mother. Having read those passages we agree with that proposition.  Reliance was placed upon the passage in her Honour’s judgment wherein the issue of the paternal grandmother not giving evidence was discussed.  Her Honour there said:

21.“In circumstances where the consent orders were made when each parent knew that the other would be employed and need the assistance, from time to time, of grandparents, no issue is raised by either parent about the calibre of the care provided by the grandparents or that the children derive other than benefit from the time they spend with their grandparents.  Accordingly, I am of the view that there is no basis for the mother’s claim that the father’s case is in some way compromised by the failure of the paternal grandmother to file an affidavit in these proceedings.  In fact, in paragraph 40, 43, 46 and 47 of the mother’s own affidavit she deposes to the assistance with the children provided by the paternal grandmother to the young couple prior to separation, and in oral evidence in these proceedings it emerges that the mother thought that the children should be minded by the paternal grandmother in the week of the hearing when both parents were to be in court.”

Further her Honour said:

26.“As to sub-section (b) of S.68F(2), I will deal first with the children’s relationships with extended family members. I take into account the mother’s evidence, corroborated by the maternal grandparents, as to the many activities C and A share with the maternal grandparents, including frequent weekend and school holiday camping trips which sometimes last for more than a week at a time. I also take into account the mother’s evidence, also corroborated, of the maternal grandparents’ role as child carers when the mother is working and of the close relationship between the children and those grandparents. I accept that evidence, which is not disputed by the father, and I am satisfied that the children’s relationship with the maternal grandparents is a close relationship and one from which the children derive much pleasure.”

64.  In our view, this complaint lacks substance.  There was in our view no reason for the paternal grandmother to be called to give evidence.  There was no controversy as to her prior relationship with the children.  The trial Judge’s findings in that regard were consistent with the mother’s own evidence.  Her Honour in our view was able to conclude as she did, moreover, in reliance upon the mother’s own case. We are thus not persuaded that these grounds have substance.

THE FURTHER EVIDENCE APPLICATION

65. None of the grounds of appeal agitated before us has been found to have substance. It thus becomes necessary to consider the mother’s Application to adduce further evidence. The mother has relocated to the Blue Mountains area, a number of her circumstances changing as a result. Having read the further evidence, which the mother seeks to adduce, and the affidavit of the father in answer if leave be granted to adduce further evidence, it is apparent that the matters relied upon all post date the hearing before the trial Judge and are controversial. The evidence presumably would be relied upon to establish that the trial Judge erred in attaching the weight she did to the father’s preferable attitude to the duties and responsibilities of parenthood pursuant to s 68F(2)(h) in so far as events subsequent to the hearing have shown the father’s attitude to the relationship between the children and their mother be less than acceptable.

66.  In CDJ v VAJ (1998) 197 CLR 172 the High Court majority, McHugh, Gummow and Callinan JJ, explained the operation of s 93A of the Act:

“One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.” (at 201)

Their Honours further said that:

“… the operation of s 65D, which contemplates subsequent applications, has to be taken into account:

"(1) In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.

(2) Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order."

Applications for a variation of an order, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal.” (at 204)

67.  In our view, the further evidence sought to be adduced, if accepted, would not render the trial Judge’s decision erroneous. Without wishing to be seen as encouraging further litigation, as the High Court acknowledged in CDJ v VAJ (supra), evidence of changed circumstances, as this evidence would be if it were accepted, may well provide the basis for an application to vary orders for residence or contact, but it does not establish that the decision of the trial Judge was wrong, merely that circumstances may have changed in some respects since the orders were made.  It follows that the further evidence ought not be admitted.

CONCLUSION

68.  No ground of appeal having been made out, and the Application to adduce further evidence in support of the appeal having been refused, the appeal should be dismissed.

COSTS

69.  Learned Counsel for the father sought that, if the appeal was dismissed, the appellant pay the father’s costs which he assessed at $10,000.  Learned Senior Counsel for the mother conceded that $10,000 would not be unreasonable but disputed that an order for costs should be made against the mother. 

70.  Learned Senior Counsel relied upon a number of matters, the most relevant of which related to the mother’s financial circumstances.  The mother is a TAFE student with hopes of entering the workforce.  The mother currently pays child support of $40 per month.  The mother did not have Legal Aid for the appeal.  How the mother was able to obtain representation by Senior Counsel was not explained.  The mother still has the beneficial ownership of a property in the Newcastle area, which is subject to a mortgage and rented out. The outgoings on the property consume the rental. 

71.  The father lives in a rented home.  He is not on Legal Aid.  The father has employment as a subcontractor earning $33,000 per annum gross.  His partner earns $23,000 per annum gross.  It was submitted on behalf of the father that the appeal was ill advised, had no reasonable prospect of success, as should have been recognised.  It was thus submitted that circumstances justified an order for costs.

72. In our view, this appeal had no reasonable prospects of success. The trial Judge delivered a comprehensive, closely reasoned and careful judgment. Save in one respect, there has been no challenge to any finding of fact. The arguments presented on appeal allege that inadequate weight was given to a s 68F(2) factor (ground 1), a failure by the trial Judge to consider an explanation which was never suggested or urged upon her (ground 7.1), and a ground which was fairly conceded by learned Senior Counsel for the mother to be, in isolation, incapable of success, relating to the failure to call the paternal grandmother in circumstances where the mother’s own evidence contained numerous concessions as to the paternal grandmother’s prior and satisfactory involvement in the lives of the children. The further evidence was in our view not likely to be permitted for the reasons briefly stated earlier.

73.  Whilst the father may be in a superior financial position to the mother in terms of income at present, the mother would appear to be in a somewhat better position than the father in terms of assets, albeit each of them appears to be in modest financial circumstances.  Although through no demonstrated fault of the mother, the father bears the overwhelming financial responsibility for the care of the children.  In our view, circumstances justify making an order that the mother contribute towards the father’s costs of this appeal.  In our view an order that the mother pay one third of the father’s costs, or $3,333, would in the circumstances be appropriate and the Court will so order.

ORDERS           

1.   That the appeal be dismissed.

2.   That the Application to adduce further evidence be dismissed.

3.   That the appellant mother pay $3,333 towards the respondent father’s costs of the appeal.