Rodgers & Pisani
[2007] FamCA 1510
•20 December 2007
FAMILY COURT OF AUSTRALIA
| RODGERS & PISANI | [2007] FamCA 1510 |
| FAMILY LAW - SECURITY FOR COSTS – Application by the wife for security for costs in relation to an appeal instituted by the husband – Application dismissed. |
| Family Law Act 1975 (Cth) – s 117 |
| Sawer and Sawer [2007] FamCA 140 Beaumont and Cross (Security for Costs) [2007] FamCA 1129 Simpson and McGuren (2005) FLC 93,223 Jones and Jones (2001) FLC 93-080 Gronow v Gronow (1979) FLC 90-716 McAlpin and McAlpin (1993) FLC 92-411 Luadaka v Luadaka (1998) FLC 92-830; 24 Fam LR 340 |
| APPLICANT: | Ms Rodgers |
| RESPONDENT: | Mr Pisani |
| INDEPENDENT CHILDREN’S LAWYER: | Melanie Robb |
| FILE NUMBER: | MLF | 3306 | of | 2004 |
| APPEAL NUMBER: | EA | 78 | of | 2006 |
DATE DELIVERED: | 20 December 2007 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Bryant CJ, Finn & Mullane JJ |
| HEARING DATE: | 4 October 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 20 June 2006 |
| LOWER COURT MNC: | [2006] FamCA 536 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wearne |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Commission NSW |
| COUNSEL FOR THE RESPONDENT: | Mr Watkins |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Harper |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robb & Associates |
Orders
That the application for security for costs filed on behalf of the wife on 19 December 2006 be dismissed.
That the costs of and incidental to the application referred to in Order 1 of these orders be reserved as costs in the appeal of the husband against the orders made by the Honourable Justice Carter on 20 June 2006.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Rodgers & Pisani.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 78 of 2006
File Number: MLF 2206 of 2004
| Ms Rodgers |
Applicant
And
| Mr Pisani |
Respondent
And
| Melanie Robb |
Independent Children’s Lawyer
Reasons for Judgment
Bryant CJ and Finn J:
This is an application by the wife, Ms Rodgers, (filed on her behalf by a solicitor with the New South Wales Legal Aid Commission) seeking orders that the husband, Mr Pisani, be required to lodge security in the sum of $3,458.65 for the costs which might be incurred on the wife’s behalf in relation to an appeal which the husband has instituted against parenting orders made by Carter J on 20 June 2006.
Background
Her Honour’s orders of 20 June 2006, which were made after a six day hearing in February and March 2006, provided that the three children of the marriage of the husband and the wife should reside with the wife, but that they would have contact with the husband from Friday afternoon to Tuesday morning each alternate weekend and from Monday afternoon to Tuesday morning in the alternate week (that is, five nights in each fortnight) and for half the school holidays.
On 20 June 2006 Carter J also delivered lengthy reasons in relation to her orders made that day.
On 14 August 2006 Boland J granted the husband’s application (filed 4 August 2006) for an extension of time to file a notice of appeal against the orders of 20 June 2006. Boland J also made directions in relation to the contents and filing of the Appeal Books and also the filing of outlines of argument.
A notice of appeal was duly filed on behalf of the husband on 15 August 2006. Of the eleven substantive grounds of appeal contained in that original notice of appeal, five challenged the weight which the trial Judge had, or had not, accorded to certain matters, three grounds challenged findings of fact or inferences drawn by the trial Judge, one ground asserted a failure to follow the recommendations of a court counsellor, and the final ground challenged the credit finding made in favour of the wife.
On 19 December 2006 a solicitor with the New South Wales Legal Aid Commission filed an application on behalf of the wife seeking orders which included the following:
2. That the Husband pay, by way of security of costs, the sum of $3458.65 into the Trust Account of the Legal Aid Commission of New South Wales within 14 days of the date of this Order, in accordance with Item 205 and Item 108 of Schedule 3 of the Family Law Rules 2004.
3. That should the Husband failed [sic] to comply with Order 3 [sic] herein, the Husband’s Appeal be dismissed.
4. In the alternative to Order 4 [sic], that leave be granted to the Wife to list this matter at short notice in the event of the Husband failing to comply with Order 3 [sic] for consideration of an application to dismiss the husband’s application.
At some point after Boland J had made the original directions for the preparation and filing of the Appeal Books, it emerged that the proceedings before Carter J had not been recorded, and thus no transcript was available. Accordingly, on 1 March 2007 and again on 30 March 2007, orders were made by Boland J providing for affidavits to be filed by all parties or their legal representatives attaching the notes of the legal representatives made during the hearing before Carter J.
On 30 March 2006 Boland J also granted the husband leave to file an amended notice of appeal to add an additional ground of appeal relating to the lack of availability of transcript. On 28 June 2006 the husband filed an amended notice of appeal which added the following additional ground of appeal to the eleven original grounds already described:
1.That the unavailability of any of the Transcript of Evidence of the proceedings before Justice Cater in the Family Court at Albury has so severely compromised and prejudiced the Husband’s ability to adequately prosecute and conduct this Appeal having regard to the nature of the Grounds of Appeal set out below and in particular the factual matters raised, that a manifestly unjust and plainly unreasonable result will in all likelihood be achieved, unless the proceedings are remitted for a rehearing at first instance.
The Appeal Books were filed by the husband (now represented on a direct brief by Mr Hodgson of Counsel) on 13 August 2007. They contain affidavits from the legal representatives of the husband and the wife and also the Independent Children’s Lawyer attaching copies of their notes taken during the trial. We understand that it had been accepted by all parties that the wife’s application for security for costs in relation to the appeal could only be heard after the Appeal Books had been filed.
10. Before considering the submissions made in support of, or in opposition to, the present application for security, it will be useful to refer to the principles which govern such an application.
Principles
11. The principles governing the grant of security for the costs of an appeal as summarised by the Full Court recently in Sawer and Sawer [2007] FamCA 140 (Finn, May and Thackray JJ) are as follows:
19.The power in this Court to make an order for security for costs is to be found in s 117(2) of the Act, which is in the following terms:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
20.The provisions of s 117(2A) are as follows (- s 117(4) and (5) are not presently relevant):
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
21.The authorities establish that in exercising the discretion to order security for costs, it may also be relevant for the Court to consider in addition to the financial circumstances of the parties and the other five specific matters mentioned in s 117(2A), the following matters:
(a)the prospect of success of the litigation;
(b)whether the claim for security is made bona fide;
(c)whether or not an order for security would stifle the litigation;
(d)whether or not the litigation may involve a matter of public importance;
(e)whether or not there has been a delay in bringing the application for security;
(f)whether there would be difficulty in enforcing an order for costs
(Luadaka v Luadaka (1998) FLC 92-830; Jones and Jones (2001) FLC 93-080; Adult Guardian and Mother's Parents and B and Child’s Representative (2002) FLC 93-116.)
The submissions made in support of and in opposition to the application for security
12. The application for security filed on behalf of the wife on 19 December 2006 was supported by an affidavit from her solicitor who, as already mentioned, is a solicitor with the New South Wales Legal Aid Commission. In that affidavit after setting out some factual background and stating that the wife has been granted legal aid in relation to the appeal proceedings, the solicitor set out the following paragraphs from the trial Judge’s reasons:
36. During the course of these proceedings I suggested that the husband appeared to have no visible means of support. He works for his father at a vineyard but does not receive an income or salary. He can however have access to his parents’ funds and when he asks them for money it is apparently forthcoming. This was also apparently the situation during at least part of the marriage.
37.The husband lives with his partner in rented premises and the rental is paid by his parents. His partner was, at the date of trial, the proprietor of a dress shop and her income also was applied to family finances. The husband’s evidence was that he did not have any credit cards – he used his partner’s credit or key card. The husband does not even have a wallet.
13. The solicitor then recorded the position in relation to the husband’s child support liability, notably that he had last paid an amount in respect of child support, being $21.67, on 13 March 2006, and that he had arrears in the sum of $2,662.93.
14. The solicitor concluded her affidavit with the following statement which, it seems clear in the light of her later written and oral submissions to us, would appear to be the essential reason for the application for security now before us:
14.There is an apprehension that if the Appellant Husband is unsuccessful in these proceedings, the Legal Aid Commission of New South Wales will be unsuccessful in enforcing any costs order made against the Husband.
15. In both her written and oral submissions in support of the application, the wife’s solicitor drew attention to further paragraphs in Carter J’s reasons in addition to paragraphs 36 and 37, including the following:
54.During cross-examination he told Ms Boyle that he had engaged a private investigator to conduct this surveillance. He believed that it had commenced late 2004 and said that it had not stopped, as at the date of the hearing. The investigator was from Sydney, not a local person. Surveillance was carried out for three or four days “every couple of months”. He was not sure about the cost, saying that a bill was sent at the end of each period of surveillance. When pressed he told Ms Boyle that he thought the cost was about $3,000.00 for each such period and that there had been perhaps six such periods. All costs had been paid by his parents. When asked whose idea it had been to take this course of action he responded by saying it was a “general decision” reached after discussion with his parents.
…
363.The husband demonstrated an unimpressive appreciation of the financial responsibilities of parenthood in the paltry amount of child support that was paid, prior to the orders late last year. That must be contrasted with the expenditure of some $18,000.00 on surveillance. As Ms Boyle pointed out in her final submissions that financial resource or some part of it could well have assisted the wife on a day to day basis in providing and caring for the children. His refusal to accept that the lack of provision of financial support could have in any way contributed to the wife’s difficulties; his acceptance at face value of the children’s statements about their mother, when critical of her; and his avowed intention to continue to do so are also matters of concern to me.
16. It was then submitted that the husband has so structured his financial affairs that it was likely that the wife or the Legal Aid Commission would be unable to successfully enforce any costs order made against him in relation to his appeal, and that his own costs would be met by his parents. In relation to these matters reliance was placed on a statement by Kay J (with whom Faulks DCJ and Boland J agreed) in the recent Full Court decision in Beaumont and Cross (Security for Costs) [2007] FamCA 1129 at paragraph 7:
7.In particular, there is a general rule stated in Jones and Jones (above) that there is an exception to the general rule in security for costs for appeals, namely, that the impecuniosity of a litigant may of itself be a basis for requiring a provision for security.
17. It was further submitted in support of the application for security that in the absence of any summary of argument from the husband, his grounds of appeal, being essentially directed to matters of weight, appeared to have little prospect of success.
18. In the written submissions filed on behalf of the husband in opposition to the application for security, it was conceded that he “has no assets with which to satisfy a costs order” and that he “is reliant upon his father for living expenses and his own legal expenses”.
19. However it was also submitted that the husband was “bona fide in seeking to prosecute the appeal” and that he believed “that the best interests of the children are not served by the orders made by the trial Judge”. It was thus further submitted that an order for security “would be oppressive and prevent the appellant from pursuing [the appeal]”. In support of this further submission reliance was placed on the observations of the Full Court (Bryant CJ, Finn and Coleman JJ) in Simpson and McGuren (2005) FLC 93,223 at paragraph 22, that “the right of access to the Court is an important right and any attempt to restrict that right requires careful scrutiny”.
20. As to the merits or likely prospects of success of the appeal, particular emphasis was placed on behalf of the husband, on the absence in this case of a transcript of the trial, with it being submitted that the existence of a transcript of the evidence is necessary even in cases where the major challenges to the judgment are based on matters of weight.
Discussion
21. In this case it is conceded on behalf of the husband that he has no assets from which he could satisfy any costs order made against him. From this concession and also from the assertion made on his behalf that an order for security would prevent him from pursuing the appeal, it can be inferred that he has no assets to comply with an order for security (even for the relatively minor amount of just under $3,500 which is sought in the present application). We thus proceed on the basis that the husband is himself impecunious, although later it will be necessary to consider the submissions made on behalf of the wife, which are directed to the financial support which the husband receives from his father.
22. Although it was stated by the Full Court in Beaumont and Cross (Security for Costs) (supra) (at paragraph 7) relying on the earlier Full Court decision in Jones and Jones (2001) FLC 93-080, that “there is an exception to the general rule in security for costs for appeals, namely, that the impecuniosity of a litigant may of itself be a basis for requiring a provision for security”, it is necessary, in our view, to have regard to the full text of the relevant observations in Jones and Jones (supra) made by Ellis and Mullane JJ (with whom Kay J agreed):
21.It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person, will not of itself be a basis for ordering that person to provide security. There is, however, an exception to that general rule, namely in the case of appeals. See Cowell v Taylor (1885) 31 Ch D 34 at 38, J & M O’Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Paton v Campbell Capital Ltd (unreported, Federal Court of Australia, 1 July 1993).
22.The fact that the [appellant] would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the [respondent], but it is not the only or deciding factor.
23.If an appeal appears to have little merit, a court may be more disposed to make an order for security for costs. …
23. Thus while the impecuniosity of an appellant will be a significant factor in the determination of an application for security in relation to the costs of an appeal, “it is not the only or deciding factor”. As was said by the Full Court in Sawer and Sawer (supra) “it is a factor which must be balanced against other factors, particularly the prospects of the success of the [appeal]”.
24. In the present case it is particularly difficult for us to determine the prospects of success of the appeal. This is because of the absence of a transcript of the trial.
25. It is true that most of the grounds of appeal are directed to issues of weight and that it is difficult for an appeal against a discretionary judgment to succeed on an issue of weight (as explained, for example, in Gronow v Gronow (1979) FLC 90-716). However, as earlier mentioned, there are other grounds which are directed to findings of fact and also to a credibility finding.
26. It may well be that the Full Court which ultimately hears the appeal in this case will be able to conclude without the benefit of a transcript and purely on the basis of the notes taken during the trial by the legal practitioners, that there is no substance in any of the grounds of appeal. However that is not something that we are able to conclude on the basis of the material before us.
27. Moreover, it appears to us from a reading of the trial Judge’s reasons for judgment that there were a number of issues in this case which were finely balanced, and thus we would not be prepared to conclude that the appeal is entirely unmeritorious, or in some way vexatious, or lacking bona fides. We further note in this regard that the husband sought an extension of time to appeal very shortly after the expiration of the prescribed time to appeal and then filed his notice of appeal with its original eleven grounds well before the time when the problem concerning the transcript arose.
28. When these last-mentioned matters, together with our inability to reach any conclusion concerning the likely prospects of success of the appeal, are balanced against the husband’s admitted impecuniosity, it could only be concluded that it would be the husband’s impecuniosity alone which would justify the order for security against him. However we do not consider that his impecuniosity alone would justify an order for security which could well operate to prevent him pursuing his appeal against orders which he apparently considers not to be in the best interest of his children.
29. There is, however, another matter on which we understood the solicitor for the wife to rely in support of the application for security, and that is, the position of the husband’s father (or parents) as the funders of his litigation (as indeed was specifically acknowledged in the written submissions on behalf of the husband). The argument, as we understood it, was to the following effect.
30. The husband is impecunious and could not meet an order for costs or for security for costs. However, as his father has funded and is funding his litigation, an order for security should be made against the husband as it would presumably be complied with by the husband’s father lodging the security on behalf of the husband. Thus any costs order made in favour of the wife (in reality the Legal Aid Commission) would be able to be met from the secured fund provided by the husband’s father.
31. The complex considerations surrounding the making in this jurisdiction of an order for costs directed (or indirectly directed) to a third party, who is not a party to the proceedings, were discussed in detail in the judgments of the Full Court in McAlpin and McAlpin (1993) FLC 92-411 (Nicholson CJ, Baker and Maxwell JJ). It is unnecessary for us to repeat that discussion. We would only say that in light of that discussion, and in the circumstances of this case where no opportunity has been afforded to the husband’s father to be heard in relation to the present application, we do not consider that it would be appropriate to rely on the position of the husband’s father as a matter which would support the making of an order for security against the husband.
32. That is not to say that it would not be open to the wife in the event that the husband’s appeal is unsuccessful, to seek an order for costs against the husband’s parents. But that course would be appropriately taken in the context of an application for a costs order after the appeal has been heard and has failed rather than in the context of an application for security for costs, of which the husband’s father has apparently had no formal notice.
conclusion
33. We thus conclude that there is no justification for an order against the husband for security and we propose to dismiss the application made on behalf of the wife.
34. We propose to reserve the costs of the application for security as costs in the appeal.
Mullane J:
Introduction
35. I have read the Reasons for Judgment of the Chief Justice and Justice Finn. I adopt those reasons except in relation to the following findings and conclusions. I would grant the application for security for costs.
Financial circumstances of the parties
36. The mother’s financial circumstances are poor. She has satisfied the means test for Legal Aid at the hearing and in this appeal. At the hearing and the hearing of this application she was represented by a solicitor advocate from Legal Aid. The mother has the care of the three children of the parties.
37. The trial Judge found (and it is not challenged by the husband in his appeal or in the hearing before us):
36.During the course of these proceedings I suggested that the husband appeared to have no visible means of support. He works for his father at a vineyard but does not receive an income or salary. He can however have access to his parents’ funds and when he asks them for money it is apparently forthcoming. This was also apparently the situation during at least part of the marriage.
37.The husband lives with his partner in rented premises and the rental is paid by his parents. His partner was, at the date of trial, the proprietor of a dress shop and her income also was applied to family finances. The husband’s evidence was that he did not have any credit cards – he used his partner’s credit or key card. The husband does not even have a wallet.
38.It is perhaps not surprising therefore that he was assessed to pay child support of $21.67 per month. It should be noted however that when interim orders were negotiated on 30 November 2005, the husband proposed a notation to those orders to the effect that he would pay to the wife an additional $100 each week by way of child support. There is a notation to that effect on the handwritten minute of consent orders however it does not appear on the order as signed and issued. There have been payments made since last November and all payments have been made from Ms [A’s] account. The husband pointed out that he and Ms [A] were partners and that Ms [A’s] income was effectively family income.
38. In this hearing the husband did not dispute those findings and offers no evidence regarding his financial position.
39. There is evidence in support of the mother’s application that upon her making an application for administrative review of the Child Support payable by the husband, it was increased to $650 per month from 2 January 2007. The wife’s solicitor alleged, and the husband did not deny, that the husband has not paid any child support since he paid $21.67 on 13 March 2006. The husband did not offer any evidence and no submission was made that he has paid any child support since 13 March 2006. It is a reasonable inference that his legal representatives would have informed the Court if he had.
40. When the wife’s solicitor swore her affidavit of 19 December 2006 he owed $2,662.93 for the child support and pursuant to an agreement applying up to 2 January 2007 that he would pay the wife direct $100 per week towards the children’s support. At the hearing of this application he owed about $3,000 for the period up to 2 January 2007 and he owed $5,850 for the period since that date.
41. In his written submissions the husband’s counsel states: “The husband has no assets with which to satisfy a costs order. He is reliant upon his father for living expenses and his own legal expenses.”
42. On the evidence before us the husband does not have any property or income available to meet his own costs or any order for costs if his appeal is unsuccessful.
43. It also appears that given his failure since March 2006 to pay assessed child support and other amounts he agreed to pay for his children’s support, he is unlikely to voluntarily pay the wife any costs ordered, even if he had the funds.
Merit of the appeal grounds
44. In Luadaka v Luadaka (1998) FLC 92-830; 24 Fam LR 340 the Full Court acknowledged that the prospects of success of the litigation is a relevant matter, but is not usually assessed in detail because of the lack of material at the time the application is heard. Their Honours said (24 Fam LR at 354):
62.2.The prospects of success is a relevant matter to take into consideration: Parkinson & Co Ltd v Triplan Ltd (above). However, ordinarily the court will not undertake a detailed assessment of the likelihood of the applicant’s success unless it can be demonstrated that there is a high probability of success or failure: Porzelack KG v Porzelack (UK) ltd [1987] 1 WLR 420; Appleglen Pty Ltd v Mainzeal Corp Pty Ltd (1988) 79 ALR 634; Equity Access Ltd v Westpac Banking corp (1989) ATPR 40-972. This is because of the lack of material at the time the application is dealt with. However, such an assessment may be possible in circumstances where, as in this case, affidavits have been filed in which the case sought to be made out is set out.
45. In these proceedings the Appeal Books were available containing all the available material on which the appeal is to be argued.
46. The merit of the appeal should also be gauged in the context that the husband has had considerable time to settle his grounds of appeal and be able to demonstrate that they have merit. In particular:
·At the time of the hearing before us it was more than 16 months since the reasons of the trial Judge were delivered, and orders made;
·Because the appeal was not filed in time it was necessary for the husband to obtain an extension of time to file the appeal. The merit of the appeal was a relevant matter when that application was heard on 14 August 2006;
·There have been at least five other procedural appearances regarding the appeal;
·At trial the husband was represented by solicitors and counsel. Since then the husband has been legally represented. When Boland J made orders on 14 August first settling the Appeal Books Index she noted that Mr Hodgson of counsel was already briefed to appear for the husband at the hearing of the appeal. Mr Watkins of counsel was briefed and appeared on the husband’s behalf on 1 March 2007, 30 March 2007 and on the hearing of the present application;
·The husband was ordered on 14 August 2006 to file the Appeal Books by 30 November 2006, he obtained an extension of time to 9 February 2007, and another extension to 23 July 2007 and finally filed them on 23 August 2007; more than a year after the order to file the Appeal Books;
·At the time of the hearing it was more than nine months since the application for security and supporting affidavit were filed and served;
·At the time of the hearing before us the Appeal Books had been available to the appellant husband for at least six weeks; and
·The appellant husband with permission had amended the Notice of Appeal to insert the present Ground 1.
47. There are twelve grounds of the appeal and I will address the merit of each. At least eight are matters of weight and the other grounds are alleged errors, where conclusions the trial Judge made are challenged, but not her findings of fact that she relied upon to make those conclusions. I adopt the comments of the Chief Justice and Justice Finn about the rarity of grounds of weight being successful grounds on appeal from such a discretionary judgment.
48. This application is in the context that the Appeal Books contain copies of detailed handwritten notes of the evidence made by the husband’s solicitor, who instructed the husband’s counsel at the hearing, made by the solicitor instructing counsel for the Independent Lawyer for the Child, and made by the solicitor or advocate who appeared for the mother. The husband does not allege that the trial Judge’s findings in the judgment are inconsistent with any of those notes.
49. It should be noted that despite the above circumstances, at the hearing before us, the husband had filed no summary of argument for the appeal and the only written or oral submission for the husband purporting to address the merit of his appeal is in the “Short Submissions of the Appellant in Relation to the Respondent’s Application for Security of [sic] Costs filed 19 December 2006” and is:
Merits of the appeal and bona fides
The husband is bona fide in seeking to prosecute the appeal. The father believes the best interests of the children are not served by the orders made by the Trial Judge. On the question off merit, the failure to record the proceedings, of itself, is a compelling ground of appeal.
Ground 1:That the unavailability of any of the Transcript of Evidence of the proceedings before Justice Carter in the Family Court at Albury has so severely compromised and prejudiced the Husband’s ability to adequately prosecute and conduct this Appeal having regard to the nature of the Grounds of Appeal set out below and in particular the factual matters raised, that a manifestly unjust and plainly unreasonably result will in all likelihood be achieved, unless the proceedings are remitted for a rehearing at first instance.
50. Counsel for the husband, when asked, could not provide any authority for the proposition that the unavailability of transcript of the hearing is of itself a ground for appeal. My research did not reveal any legislation or case law to support the proposition.
51. It was not demonstrated that Ground 1 has any merit.
Ground 2:That the Trial Judge was in error in the exercise of her discretion in that she failed to place sufficient weight upon the combined effect of the deficits in the Wife’s parenting capacity namely:
(i)Her inappropriate disciplining of the children.
(ii)Her abusive and inappropriate language to and in front of the children.
(iii)Her concession that she had left the children for periods of time at home alone or in her motor vehicle unsupervised.
(iv)Her lack of attention to health and hygiene matters in respect of the children.
(v)Her denigration of the husband and his partner, Ms [A] in the presence of or in the hearing of the children.
(vi) Her endeavours to undermine the relationship between the Husband and the children.
52. As regards paragraph (i) there are relevant findings in the Judgment at Appeal Book 40, 42, 43, 44, and especially Appeal Book 54 to 71 inclusive.
53. The husband’s submissions did not identify, and I did not find, relevant findings as to matters under paragraph (ii). There is discussion and findings as to paragraph (iii) in the Judgment at Appeal Book 24, 25 and especially 71 to 75 inclusive.
54. Discussion and findings as to paragraph (iv) occur in the Judgment at Appeal Book 25, 27, 28 and especially 75 to 79. As to paragraph (v) there are findings and discussion in the Judgment at Appeal Book 24, 25, 42, 61, 62 and 91. There are discussion and findings regarding (vi) at Appeal Book 37 and 91.
55. At Appeal Book 81, 87 to 91 inclusive there are findings and discussion about the topics in Ground 2 generally.
56. The written submission of counsel for the husband did not include any submission as to the merit of this ground and when counsel was invited by us to make oral submissions on the merit of the grounds, he made no such submissions.
57. It does not appear that Ground 2 has any merit.
Ground 3: That the Trial Judge was in error on the evidence in finding that the husband’s complaints as to the deficits in the Wife’s parenting capacity individually and in combination lacked frequency chronicity and significant substance
Ground 7:That the Trial Judge was in error in the exercise of her discretion in placing undue weight upon the engagement by the Husband of a private investigator to conduct surveillance in respect of the Wife to obtain information for strategic purposes and to bolster his case, and,
Ground 8: That the Trial judge was in error in the exercise of her discretion in finding that the Husband whilst expressing concern about the children’s undesirable and/or unsafe environment basically did not act upon those concerns or take steps to address them.
58. The trial Judge found that the husband had arranged surveillance of the mother (and particularly her parenting) by a private enquiry agent.
59. The trial Judge held:
53.The husband revealed to Ms [B], the Court Counsellor, during his interview in May 2005 that he had had the wife’s “parenting under professional surveillance for months, and (had) evidence of an ongoing pattern of parental neglect”. He told Ms [B] that “his legal advice was not to give details” at that stage, but did outline examples of the wife’s poor parenting, described by Ms [B] as, for example, leaving the children unattended in the car while she shopped.
54.During cross-examination he told Ms Boyle that he had engaged a private investigator to conduct this surveillance. He believed that it had commenced late 2004 and said that it had not stopped, as at the date of the hearing. The investigator was from Sydney, not a local person. Surveillance was carried out for three or four days “every couple of months”. He was not sure about the cost, saying that a bill was sent at the end of each period of surveillance. When pressed he told Ms Boyle that he thought the cost was about $3,000.00 for each such period and that there had been perhaps six such periods. All costs had been paid by his parents. When asked whose idea it had been to take this course of action he responded by saying it was a “general decision” reached after discussion with his parents.
60. The DoCS file regarding the children became an Exhibit. The trial Judge held:
55.During cross-examination by Ms Wearne the husband was taken to communications with the Department of Community Services (“DOCS”). The child representative had caused a subpoena to be issued requiring DOCS to produce documents and this subpoena had been complied with. Ms Wearne put to the husband that the first time he rang DOCS was on 21 May 2005 but the husband denied this, saying that he had telephoned them some half dozen times. He was of the belief that the first time he rang DOCS was before Christmas following the separation, and the last occasion was approximately six months prior to the hearing. The husband had deposed in his trial affidavit that he had made a number of reports about the children’s safety and well-being to DOCS, but believed that nothing had been done. He went on to say that he had never been contacted by DOCS in relation to any of his complaints and that he had rung DOCS “recently” in respect of an allegation against the wife’s partner, but did not know whether or not they had acted upon that complaint.
56.Part of the DOCS file relating to the children was tendered on behalf of the wife and was received in evidence as Exhibit W7. …
57.… Further details are set out in the assessment record and in particular in what was described as the “Stage 2 Initial Assessment”, for example it was recorded that, in a video surveillance conducted a few weeks beforehand the mother was “caught” leaving the children in a car for 25 minutes outside a local supermarket. This was said to happen “all the time”. It was recorded that [K] had told her father that the mother put the children “out at night” and that they had “mozzie” bites all over them. This was said to have happened in the summer months but was being reported at that stage because the husband had been told that people do not take husbands seriously. [T] was described as being currently ill with a fever, with ear infection and tonsillitis. It is recorded that the husband said that “four to six weeks ago” [T] had a black eye, and he did not know how this was caused.
58.It was noted on page 4 of the assessment record in the Stage 1 Initial Assessment that there was no prior history of “ROH” (which I understand to be risk of harm) concerns to [J] and [T], and further that an extensive search had been conducted, utilising their names, dates of birth, “phonetic” and addresses. …
…
62.There is a subsequent file entry which records that the husband left a message on the answering service on Saturday, 16 July 2005 saying that he wanted to speak to someone in connection with a report involving an incident with his daughter. That telephone call was returned and the file note records that the husband explained that his call had been in relation to [K]. … The entry records that the process of making reports was explained to the husband who advised that he had in the past made reports. He was said to have advised that he did not have any confidence in the Department, as he had been told that DOCS did not take matters seriously when it is the “ex husband”. It was explained to him that all reports received were taken seriously however decisions were made based on many factors. He was also advised that once a report had been made, it could then be followed up at the local office and he was advised that when he did this he should ask to speak with the manager (whose name was given) who would be able to provide him with feedback as to the outcome of report of information. It was recorded that the husband said he “felt better to know this”.
63.There was no record of any subsequent complaint or call made by the husband.
64.When Ms Wearne told me that she wished to tender part only of the DOCS file she pointed out that other counsel might wish to tender the whole of the file. I asked Ms Boyle and Mr Hodgson whether they wished to tender any part of the file and I was told by both counsel that they did not.
65.The file had been earlier released for inspection by all parties. Given that Mr Hodgson did not wish to tender any part of that file, I can safely infer that there was no corroboration in that file for the husband’s assertions that he had made at least half a dozen telephone calls to DOCS, commencing prior to Christmas 2004.
66.I do not recall it ever being submitted that the DOCS file was incomplete.
67.The DOCS file was tendered without objection. Section 69 of the Evidence Act (Cth) provides an exception to the hearsay rule, and permits representations contained in business records to go into evidence as proof of their truth. That is not to say of course that opinions contained in such records are admissible unless the person providing such opinion is qualified to do so.
68.It can be the case that even in the best run businesses or institutions records may be incomplete. Given the statutory duties imposed upon DOCS, I think it is unlikely that any other reports made by the husband would not be recorded. Nor can I ignore the delay in reporting what had been allegedly ascertained by video surveillance conducted “a few weeks” prior to the husband’s call to DOCS.
69.The husband told Ms Wearne that he had raised “some” of his concerns about the wife’s care of the children directly with her. When asked for the specifics he said that the question of the children having head lice was “about all” that he raised with her and that he told her she needed to “do” their hair and “do” their sheets and pillow cases.
70.He further confirmed that he had last telephoned DOCS at least six months prior to the trial and when asked whether this meant he therefore had no further concerns he responded that this was not so, that he had felt “let down” by the Department and ignored by them and accordingly he had taken such issues to his lawyers. It will be recalled that the last contact recorded by DOCS in the part of the file that was tendered was in the middle of July 2005, about seven months before the trial commenced, and that the husband was recorded as having “felt better” about the information received.
71.It is clear that the covert surveillance carried out was done for the purposes of gathering evidence against the wife. If, as he said, the husband had received legal advice not to disclose to Ms [B] the details of “an ongoing pattern of parental neglect” by the wife he was obviously entitled to accept that advice. However the husband took no apparent steps to redress the situation, for example by way of interim application and did not even comply with the Trial Notice orders, causing this case to be placed in the Defaulters’ List with consequential delays. I do note the husband’s evidence that his barrister was in Sydney and indeed there is a note on the Court file which indicates that Registrar Sikiotis was told during the Defaulters’ List hearing that the husband’s counsel was overseas and was not returning until late July 2005. Further, and notwithstanding his alleged concerns, orders were made by consent in November 2005, with no proviso that the wife should be available to care for and supervise the children.
72.I will deal in greater detail elsewhere with the husband’s allegations however I record here that the foregoing matters do not sit comfortably with a fear for the welfare of his children.
61. Counsel for the husband made no submission as to the merit of Grounds 3, 7 and 8, either in his written submission or orally. The husband does not submit that any of the factual findings the trial Judge relied upon in reaching the conclusions set out in Grounds 3 and 8 were not open to her on the evidence, or that such conclusions were not open on the factual findings. No submission or elaboration was offered regarding Ground 7.
62. These three grounds appear to have no merit.
Ground 4: That the Trial Judge was in error in the exercise of her discretion in failing to place sufficient weight upon the wishes of the two eldest children of the marriage as to the parent with whom they wish to reside.
63. The two eldest children are K and J. In the Judgment at Appeal Book 81 to 83 the trial Judge discusses the children’s wishes and her findings there are in accordance with extensive findings earlier in the Judgment as to the evidence of the wishes of K and J.
64. In neither written nor oral submissions of counsel for the husband was there any submission as to the merit of this ground. It appears that the approach of the trial Judge was open on the factual findings made.
65. The husband’s case does not indicate that this ground has any merit.
Ground 5: That the Trial Judge was in error in the exercise of her discretion in failing to follow the recommendations of the Counsellor that if the allegations made by the parties were not made out, that “a well defined shared arrangement together with parental commitment to effect a parenting partnership would be most beneficial to the children in the long term”.
66. The Ground misstates the Counsellor’s statement. The actual words of the Counsellor in her second report were:
“60.Should the allegations lack determinative bearing then it is this reporter’s conclusion from the interviews and observations that a well-defined shared arrangement together with a parental commitment to develop better communication and an effective parenting partnership would be most beneficial to the children in the longer term.”
67. The “allegations” referred to were the husband’s allegations of “chronic deficits” in the wife’s parenting (Appeal Book 59, paragraph 221). Whilst the trial Judge found such allegations were not made out it is arguable that because of her finding that such allegations “lacked frequency, chronicity and significant substance”, they may have still have had “determinative bearing”, as indicators of unreasonable negativity of the husband’s attitude towards the mother.
68. The trial Judge held that in oral evidence the Counsellor expanded on that statement in her report. The trial Judge held:
223.She then went on to offer some comments, putting to one side the issue of these unresolved allegations. One of her recommendations was that both parents carefully consider the merits of “equitably sharing the living arrangements for the children”. Ms [B] was later to explain to Mr Hodgson that in using the term “equitably sharing” she was not to be taken to be “locked into the perception that (she) was recommending an exactly 50:50 sort of arrangement. People can be quite literal about that. Whether it’s 50:50 or around that, I’m saying that there should be a lot of sharing, if it were possible, rather than something which was more extreme. I wasn’t wanting to be exactly specific.”
227.Ms [B] concluded her report by saying that the most recent evaluation did not significantly change the conclusions and recommendations as to future residence of the children which was presented in her original report. In summary, the children would benefit from spending lots of time with parents and extended families, the husband and the wife might benefit from sharing the parenting burden and the practical circumstances were conducive to shared residence. She pointed out that the parental conflict was not so severe as to rule out the potential for the husband and the wife as competent adults, to overcome their antagonism. She suggested that they should be able, at least, to establish a system of minimum communication to support a viable shared arrangement.
228.In this second report Ms [B] noted that the relationship between the husband and the wife had improved, however only very modestly. The husband and his partner told Ms [B] that the wife had not communicated about the children’s needs, such as home routines and bed times which created difficulties for them, at least as far as [T] was concerned. The wife was recorded as telling Ms [B] that the husband uses [K] as the parental go between, which put pressure on her. The wife also made other criticisms of the husband’s parenting concerning alleged emotional manipulation of the children and lack of time spent with them. So far as the latter is concerned it is convenient to note there that Ms [B] explained this during cross-examination as being that the husband was trying to influence the children to want to live with him. She also explained that she saw no evidence of that from her conversations with or observations of the children.
229.For his part the husband told Ms [B] that his concern about the children’s welfare in their mother’s care had “continued rather than abated. If anything, he claimed, she had grown more devious in hiding her alleged negligent and partying behaviour. (The husband) asserted that the ongoing professional covert surveillance arranged by himself would show this. He gave an example or two.”
69. There are extensive relevant discussion and findings in the Judgment as to the recommendation of the Counsellor or as to how it should be treated (e.g. at Appeal Book 47 to 49, 56, 58, 61 to 66).
70. There was no submission for the husband as to what merit this ground has. It appears from the Judgment that it was open for the trial Judge not to adopt “a shared arrangement”. The recommendation of the counsellor for such an arrangement was conditional and qualified and there were findings of the trial judge that weighed against such an outcome. It appears that on the facts it was open to the trial Judge to find, as she did, that such an outcome would be contrary to the children’s interests.
71. Ground 5 was not shown to have merit.
Ground 6: That the Trial Judge was in error in the exercise of her discretion in inferring from the evidence of the counsellor that it was not of great importance as to the number of days that were in each “block arrangement” for the children to spend time with either party.
72. Parts of the Judgment concerning the relevant evidence of the counsellor, Ms [B], include:
At Appeal Book 46:
166.Commencing at paragraph 57 Ms [B] set out discussion and conclusions and I will return to some aspects of that in due course. At this stage however it should be noted that she formed the view that the children needed and wanted (as had been expressed by [K] and [J]) to spend lots of time with each of their parents. Ms [B] was of the view that sharing the working week and school days would achieve a better balance of family experience and responsibility. She noted that at that time [T] should be able to manage overnight stays with her father, especially in the company of her brother and sister and should advance relatively quickly from a single overnight stay to two consecutive overnight stays and then longer stays away from her mother.
At Appeal Book 47 to 48:
167.Ms [B] had discussed [K’s] wishes for a shared week about arrangement with both the husband and the wife. She recorded that the husband had told her that this proposal would not be suitable “as it lacks stability and would not protect the children from the alleged deficits in Ms [Rodgers’] parenting”. For her part the wife “promptly dismissed the possibility of a shared residential arrangement. Apart from [T’s] dependency needs of her mother, Ms [Rodgers] said that organising “school would be a total nightmare” and that the proposal was “ridiculous””.
168.Ms [B] however noted that [K’s] wish was not without merit, and that her parents should not dismiss it hastily. She pointed to various matters which support such an arrangement. She noted that an “equitably shared arrangement” would provide adequate time for the children with both extended families including their grandparents. She further expressed the view that such an arrangement “might quell power struggles and dissatisfaction by virtue of the perception by parent and child alike of fairness” between the husband and the wife. She pointed out that [K] and [J] were old enough to cope with a shared week about arrangement, particularly if some mid week contact and/or frequent telephone calls with the other parent occurred, and so far as [T] was concerned, her participation could be progressively extended commensurate with her increasing age and independence.
169.Ms [B] also pointed out a number of difficulties which can arise in a shared residential arrangement, however on balance was of the view that the potential advantages of such an arrangement were such that it could at least be worth trialling for a reasonable period of time, for example a school term.
170.She pointed out that the current arrangement was quite unsatisfactory in that it created an aggravating imbalance in parenting activities between the husband and the wife. In her view the children and parents needed to have both working/school week time and weekend recreational time together. There was also no provision for holidays and special occasions in the then current arrangement.
171.At the conclusion of this report Ms [B] set out her recommendations. They included that [K] have therapeutic counselling; that the wife attend personal counselling in relation to her feelings of hostility towards the husband and that the husband attend parenting programs and develop more supportive attitudes to the wife’s parenting; and finally that a child representative be appointed for the children. Ms [B] had also suggested that [J] might also benefit from therapeutic counselling (inter alia).
At Appeal Book 59:
219.In her first report Ms [B] explained that the report could not be conclusive as to future residence of the children based on the information from interviews alone. She pointed out that the Court would probably have available subpoenaed information and sworn affidavits as well as other important material such as the husband had foreshadowed. That information could assist the evaluation of the allegations made by both the parents which were crucial to the issue of how parental time responsibilities were to be shared.
At Appeal Book 59 to 61:
223.She then went on to offer some comments, putting to one side the issue of these unresolved allegations. One of her recommendations was that both parents carefully consider the merits of “equitably sharing the living arrangements for the children”. Ms [B] was later to explain to Mr Hodgson that in using the term “equitably sharing” she was not to be taken to be “locked into the perception that (she) was recommending an exactly 50:50 sort of arrangement. People can be quite literal about that. Whether it’s 50:50 or around that, I’m saying that there should be a lot of sharing, if it were possible, rather than something which was more extreme. I wasn’t wanting to be exactly specific.”
224.It should also be recalled that at the time of the first interviews [K] wanted to spend equal time with both parents. She did not express the same view when she saw Ms [B] for the purposes of the second report. She did express a desire to have more contact with her father between alternate weekends during school terms, feeling that the gap between visits was too long.
…
227. Ms [B] concluded her report by saying that the most recent evaluation did not significantly change the conclusions and recommendations as to future residence of the children which was presented in her original report. In summary, the children would benefit from spending lots of time with parents and extended families, the husband and the wife might benefit from sharing the parenting burden and the practical circumstances were conducive to shared residence. She pointed out that the parental conflict was not so severe as to rule out the potential for the husband and the wife as competent adults, to overcome their antagonism. She suggested that they should be able, at least, to establish a system of minimum communication to support a viable shared arrangement.
228.In this second report Ms [B] noted that the relationship between the husband and the wife had improved, however only very modestly. The husband and his partner told Ms [B] that the wife had not communicated about the children’s needs, such as home routines and bed times which created difficulties for them, at least as far as [T] was concerned. The wife was recorded as telling Ms [B] that the husband uses [K] as the parental go between, which put pressure on her. The wife also made other criticisms of the husband’s parenting concerning alleged emotional manipulation of the children and lack of time spent with them. …
At Appeal Book 80:
318.Ms [B’s] view was that if the allegations made by the respective parties of the other were not made out, then a “well defined shared arrangement together with parental commitment to effect a parenting partnership would be most beneficial to the children in the long term.” She retained that view throughout her cross-examination. Her thoughts were that there should be something in the nature of a “block arrangement” around alternate weekends. I inferred from her evidence that it was not of great importance as to the number of days that there were in each “block”.
319. She had pointed out in her first report that:
“A shared residential arrangement can be highly damaging for children if they are exposed to a high parental conflict or deficient parenting. Unless parents can implement an equally shared arrangement with minimal communication as is sometimes quite effective, the ideal high degree of communication and coordination between households requires sustained effort and can become tiresome for parents. Sometimes children also grow frustrated with or cannot adapt to the constant movement between households. Nevertheless the potential advantages of a shared arrangement are such that it could at least be worth trialling for [K] and her siblings for a reasonable period of time eg a school term. Success with shared arrangements does require parental commitment.”
73. It appears that the inference drawn in paragraph 318 was open to the trial Judge on the evidence. There is no submission for the husband arguing why it was not.
74. The ground does not appear to have merit.
Ground 9: That the Trial judge was in error in the exercise of her discretion in failing to place sufficient weight upon her finding that the Husband had a very close and loving relationship with the children and that the children had a positive relationship with his partner, Ms [A].
75. This is an issue of weight only. The trial Judge provided a Judgment of 88 pages setting out the reasons for her decisions. The husband made no submission as to the merit of this ground. This ground was not shown to have merit.
Ground 10: That the Trial Judge was in error in the exercise of her discretion in her determination upon the evidence that the proposal advanced by the Husband involved a change of great magnitude in the lives of these children and would involve the potential for adverse effect upon [T].
76. We did not have the benefit of any written or oral submissions as to the merit of this ground.
77. At Appeal Book 15 the trial Judge found the parties had separated nearly two years before the trial. The children had lived with the mother throughout. At first they had little contact with the husband. Interim Orders of November 2004 provided for the children to live with the wife and spend time with the husband each weekend – for T day time only and for the elder two children overnight for one night only. This contact generally occurred. It was found that from February 2006 T was included in overnight time with the husband and the time the children spent with him included one overnight stay in each second week and a period from end of school Friday to start of school Tuesday in every other week.
78. The trial Judge found the husband has been living with his partner (who was 21 at the time of the trial) since July 2004 and they were expecting the birth of their child in May 2006.
79. The husband was seeking orders that all three children live with him. He proposed the children have contact with the mother for half school holidays and in school terms for four hours after school once each week, and 9am Saturday to 6pm Sunday each second weekend.
80. The trial Judge found:
· During the marriage the husband worked from 6am to 6pm on six days per week. (Judgment paragraph 41)
· There would be a new baby and the three subject children living in the husband’s home if the husband’s application succeeded.
· The husband would continue his employment. (Judgment paragraph 43)
· Before separation “the majority of the care of the children … fell upon the wife”. (Judgment paragraph 75)
· The wife’s criticism of the inadequacy of time he spent with the children since separation was corroborated by K’s statements to the Counsellor on 6 January 2006. (Judgment paragraphs 233 and 234)
· “These parents lack good communication; they have different approaches to parenting, in particular as to methods of discipline and autonomy; their ability to cooperate is questionable; and their relationship lacks trust and respect.” (Judgment paragraph 321)
· “… the wife has been the primary care giver to all the children for all their lives.” (Judgment paragraph 333)
· “All the evidence is indicative of a close, warm and loving relationship between the children and their mother.” (Judgment paragraph 334)
81. There are then the following findings by the trial Judge:
(c) Likely effect of changes in the children’s circumstances
338.The effect of the orders sought by both the wife and the child representative would bring about only a modest change in the children’s lives.
339.The husband’s proposals, if accepted, would bring about a substantial change in the children’s lives. They would live with him and only see their mother on alternate weekends from 9.00am Saturday to 6.00pm on a Sunday and each Wednesday between 3.00pm and 7.00pm, during school terms. It should be recalled that they presently live with their mother and have contact with their father from Friday after school or after day care until the following Tuesday before school in alternate weeks.
340.Furthermore, it should be noted that the husband’s proposals have an important qualification and that is to say that the wife’s contact with the children should only take place, both in school terms and in holidays, if the wife is available to care for and supervise the children during those times. It is difficult to see how the wife would see the children during school holiday periods unless she relinquished her employment. It also appears to be the husband’s case that the wife could never, during periods of contact, arrange for any of the children to have a babysitter or to be minded by Mr [K] while, for example, she went to the supermarket.
341.The implications of change are particularly important in [T’s] case. When Ms [B] wrote her first report she suggested different arrangements for [T] than the arrangements which she had suggested for her older brother and sister. She had suggested that initially there should be less contact between [T] and her father and that this would be progressively increased as she got older. She felt at that stage that [K] and [J] were old enough to be able to “cope with” a shared week about arrangement, particularly if some mid week contact and/or frequent telephone calls with the other parent occurred. At the time she wrote her first report she was not of the view that [T] was of an age to be able to manage the same length of time away from her mother.
342.The husband did not propose any transition period and the effect of his proposal was that all three children would immediately come to live with him. His evidence as to the possible effect upon [T] changed during cross-examination. His final position was that [T] would have difficulties because of her age, however she could or would adjust. Ms [A] did not envisage any difficulties for [T], and when asked whether [T] would miss her mother Ms [A’s] evidence was that she did not appear to have missed her mother when she was with them for a period of four days.
343.When Ms [B] was cross-examined Ms Wearne asked her to give her opinion as to the likely consequences for [T] of a move into her father’s care without a transition period. Ms [B], and understandably so, could not be definite about that but said that it was possible that [T] would be distressed, unsettled, and confused about the sudden change in her routine, given that she was accustomed to being with her mother, that that routine would become unsettled, and obviously [T] did not have the mental maturity to understand when she would see her mother again.
344.The pattern of [T’s] life has been that she has always lived with her mother and since the first Court Orders were made, she has spent increasing but still relatively short periods of time with her father. How could she understand such a dramatic change to her life as that proposed by the husband? It is clear that the husband’s proposals involve a significant diminution of the time the children would spend with their mother, and in [T’s] case carry the possibility of negative consequences.
345.It is not just a question of the amount of time the children spend with each parent which is important, it is also the change in the way in which that time has been spent. At present the children’s time in their father’s household is largely, but not exclusively, recreational time. They have had little and only recent experience of sharing the working or school week time, with the myriad of aspects that differentiate this time from recreational time. It is also necessary to consider the impact upon the husband’s household which would occur with the birth of the child who had been anticipated at trial. Whilst I accept that Ms [B] observed that Ms [A] appeared to be taking all of this in her stride, there is a difference between expectation and experience. It would also be the case that the children would not have the undivided attention of their father and his partner. I note here that the wife told Mr Hodgson that she thought [K] would be “a doting sister” and indeed that the addition to the father’s household would be good for everyone. However I also note that [K] acknowledged to Ms [B] her worry that her father would “forget” her and her brother and sister, whilst at the same time she also conceded that he had reassured her to the contrary. I accept the wife’s evidence given in her second affidavit that she too has repeatedly attempted to reassure [K] that the new baby would not make any difference to her father’s affection for her or her brother and sister, together with the other matters she raised in this regard in the same affidavit.
346.In summary it can be seen that the proposals advanced by the husband involve a change of great magnitude in the lives of these children and, as seen, they also involve the potential for adverse emotional effect upon [T]. This is a very weighty matter.
82. There was no submission on the husband’s behalf as to the merit of Ground 10. Given the findings in the Judgment, the conclusion in paragraph 346 appears to have been open to the trial Judge.
83. It appears Ground 10 has no merit.
Ground 11: that the Trial Judge was in error in the exercise of her discretion in placing undue weight upon her determination that the Husband had demonstrated an unimpressive appreciation of the financial responsibilities of parenthood in the light of the paltry amount of Child Support that was made prior to orders made in late 2005, notwithstanding that such amount was paid in accordance with a Child Support Assessment.
84. The obligation of a parent to support his or her children is not limited to the amount of any Child Support Assessment. That is contrary to common sense when one contemplates such an artificial arrangement as that between the husband and his employer whereby he works long hours for the employer for no wages and the Child Support is consequently assessed at the minimum amount. But it also is contrary to the clear and unconditional statement in subsection 3(1) of the Child Support (Assessment) Act, 1989:
“The parents of a child have the primary duty to maintain the child.”
85. The trial Judge found that in the initial period after separation the husband was assessed to pay and paid Child Support of $21.67 per month. When Interim orders were agreed upon in November 2005 he agreed to pay the wife an additional $100 per week. He then paid the assessment and the additional $100 per week until March 2006.
86. It is noted that in the initial period the Child Support he paid equated to less than $2 per week per child and in the second period it equated to only $35 per week per child. It was obviously reasonable to describe, as the trial Judge did, the Child Support the husband paid in the initial period as “pitiful”. (Judgment paragraph 110)
87. The trial Judge held:
237.In speaking of the wife’s antipathy towards her husband in her first report, Ms [B] said:
“Perhaps the strongest and most plausible target of (the wife’s) antipathy is (the husband’s) minimal Child Support. Reportedly the living standards for (the wife) and the children have dropped dramatically since separation and (the wife) has been obliged to take on paid work to support them, at the expense of quality parenting. She bitterly contrasted this with (the husband’s) affluence, the details of which he did not deny. (The husband) instead claimed that he tried to give (the wife) money directly which she refused. He claimed further that (the wife) spends money on herself and not the children. It also sounded like Mr [Pisani] felt disinclined to pay Child Support while he believed that (the wife) obstructed his contact …Moreover (the husband) might not want to pay Child Support to (the wife) not because he will not support his children – quite the contrary. He instead may prefer to provide financial support directly to his children.”
238.The husband was critical of the wife because she was working but did not accept this had anything to do with the fact that he only paid about $22.00 per month child support (prior to the end of 2005). At the same time he agreed that this amount of child support was not sufficient. He had said in his affidavit that he had given the children pocket money for school at weekends. However [K] had told Ms [B] that she did not get pocket money from her father “because he and Nunna (sic) reckon Mum will take it off me … yes, she would.” In his affidavit the husband also pointed out that he had paid the children’s school fees, although he conceded that he had not paid them for the current year. He also conceded that he did not contribute towards [T’s] child care expenses. As he said in his affidavit he had offered to pay the wife’s rent however she refused and requested that he give her cash instead. The wife’s refusal was quite understandable. The effect of it was that she was concerned that if the rent was not paid, she would suffer the consequences such as a bad credit rating or even eviction. So that she could not only ensure the rent was paid but also so that she would know that the rent had been paid, she wanted the husband to give the money to her.
239.The husband also pointed out in his affidavit that he purchased clothing and shoes for the children including school clothes. The wife, as I understand it, did not dispute that the husband was generous to the children, indeed in her first affidavit she pointed out that on almost every occasion when the children went on contact with their father, he purchased them a new and expensive toy. She made reference in that same affidavit to other expensive purchases made by the husband both for his residence and for the children, and concluded by saying that to the best of her recollection there had not been an occasion when the children had attended contact that they hadn’t told her about the new toys and/or clothes that their father had bought for them (see paras 77 and 78 wife’s first affidavit). The husband himself said in his trial affidavit that on most weekends the children were taken shopping and he usually purchased clothes, shoes and toys for them. He pointed out that he had left all of the children’s belongings and toys at the former matrimonial home when he left, which to my mind was as it should have been.
240.Ms [B’s] impression that the husband felt disinclined to pay child support while he believed that the wife obstructed his contact may have been correct early in the separation, however it is hard to understand why this should have continued after the orders were made at the Local Court. I do note however that Mr [Pisani] Senior, when questioned about the paucity of child support which he was told (correctly) that the husband was paying responded by saying words to the effect:
“If he doesn’t see the children why should he pay?”
241.Later on in her first report Ms [B] had said that managing all three children on her own during her working week was likely to be very demanding for the wife and that this might not optimally benefit her or the children. She went on to point out however that the husband’s financial contribution to the children’s daily care would not be adequate. She concluded that paragraph by saying:
“Doubt is raised about his commitment to their welfare; and his support of (the wife’s) parenting.”
242.I agree with Ms [B’s] comment about the husband’s commitment to the children’s welfare and his support of the wife’s parenting. I have no doubt that the wife felt the same way as well and her feelings must have been exacerbated by the knowledge that he was critical, for example, of the way she presented the children and accommodated them. At the same time he was contributing a paltry amount by way of child support and lavishing gifts upon them.
243.I have made reference earlier to the view expressed by Ms [B] in her second report of tensions which had and which would continue to arise between the husband and the wife around inevitable different parenting values and their contrasting financial positions. She noted that whereas the wife’s financial circumstances were very modest but not unusual, the [Pisani] family appeared to have a much greater financial capacity to spend money on the children. It was clear on the evidence that this was so, and that in fact the children in fact did receive many and varied and expensive presents both from their father and from his parents.
244.Ms [B] went on to say that it seemed true to say that the husband was somewhat insensitive as to how this disparity would aggravate tensions between the wife and himself about the children on the one hand. On the other hand however the wife might display her intolerance of this reality to the children to their detriment. I have to say I saw no evidence of the latter during this case. However the husband seemed sublimely indifferent to this issue, to the extent that about a month after Ms [B’s] report he gave [K] for her birthday a flat screen computer costing $1,100.00.
And later,
363.The husband demonstrated an unimpressive appreciation of the financial responsibilities of parenthood in the paltry amount of child support that was paid, prior to the orders late last year. That must be contrasted with the expenditure of some $18,000.00 on surveillance. As Ms Boyle pointed out in her final submissions that financial resource or some part of it could well have assisted the wife on a day to day basis in providing and caring for the children. His refusal to accept that the lack of provision of financial support could have in any way contributed to the wife’s difficulties; his acceptance at face value of the children’s statements about their mother, when critical of her; and his avowed intention to continue to do so are also matters of concern to me.
88. It was open to the trial Judge to make the findings in paragraph 363 of the Judgment. On the question of whether the trial Judge placed undue weight on those findings, there was no submission on the husband’s behalf.
89. On the material it appears Ground 11 has no merit.
Ground 12: that the Trial Judge was in error in the exercise of her discretion in preferring the credit of the Wife to that of the Husband in circumstances where the Wife’s allegations by way of criticism of the Husband’s parenting capacity were not made out.
90. The submissions for the husband did not identify the “allegations by way of criticism of the husband’s parenting capacity were [sic] not made out”. From my reading of the Judgment they appear to be as follows:
100.The wife returned to [G] on 22 August 2004 and concluded that someone had been in the house during her absence because the position of a number of objects had been altered. Before she had gone away she had left some photos on the table preparatory to putting them in a photograph album. On her return she noted that those photos had been strewn around and a number of them were ripped. On closer inspection she saw that her sister’s head had been ripped off in each photo. The remaining pieces of the photos were found on the back step and in the backyard.
101.The wife believed then, and still to this day, believes that the husband was responsible for this, if not personally, through some agent.
102.It is clear on the evidence that the husband was not in the [G] area during this particular period. This emerges from his evidence, the evidence of Ms [A] and Exhibit H1. Accordingly, I accept that the husband did not himself deface the photographs. I am not satisfied to the requisite degree that he arranged for some other person to do this. It is strange that it was only the photos of the wife’s sister that were defaced however that is not sufficient for the finding of such a serious allegation.
103.In any event, it was clear to me that the wife was indeed alarmed as a consequence of this event. She installed deadlocks on her home and bought a baseball bat to protect herself from the husband, he being the person that she believed was responsible for this vandalism. I do not accept that she told [K] that she was going to kill her father with this bat. I accept that the wife was frightened and this is so notwithstanding her behaviour on or about 28 August 2004.
…
220.She noted that the wife’s various allegations about the husband’s suitability as a parent included illegal drug trafficking. I pause here to say that evidently the wife made similar allegations about her father-in-law, given what was said in paragraph 33 of this report. If those allegations were true Ms [B] went on to say that the children’s physical and psychological welfare and their long term development could be put at risk. She noted that the husband and his father appeared to offer plausible counter explanations. Ms [B] went on to suggest that the husband had told her that he had strong evidence of chronic deficits in the wife’s parenting which threatened the children’s welfare.
221.It is convenient to note here that the wife gave no evidence in either of the affidavits relied upon at the trial, or viva voce, as to allegations of use of illicit drugs or drug trafficking. …
…
234.… The fact that the husband arranged for his partner to take [K] to the swimming workshop whilst he took the other two children to his parents’ house also appears to be a matter which concerned the wife and which she apparently construed as indicating some lack of interest in [K]. It is clear from her evidence that, like the husband, she has also relied upon the children’s reports. To my mind both parents have been far too ready to accept at face value what the children have told them.
235.When cross-examined by Mr Hodgson Ms [B] confirmed that [K] had never expressed a view to her to the effect that her father did not bother to see the children or did not care about them. Ms [B] explained that the wife had been concerned about how much interested involvement the husband would actually have with his children, however her own view was that he seemed genuinely interested in a relationship with his children and being involved with them. She formed that view on the basis of the husband’s own account, that of his partner and also the account of the paternal grandfather. I accept that assessment which accords with my own, however having said that, given the matters I have discussed above, I can understand how the wife came to the view that she held.
91. The trial Judge made findings as to credit of the parties, generally and also on specific issues. In particular she held:
30.It is neither necessary nor desirable to make an overall finding as to credit. That said, I did find the wife to be a more reliable witness than the husband. In general, her memory was much better than that of the husband. Additionally, she made a number of admissions against interest in a frank and candid way, conceding a number of matters which could be seen to reflect adversely against her. The husband however could not remember or recall a number of things which one would have expected him to recall. For example, he did not recall calling the wife a slut during a telephone call just after his cousin’s wedding. Unless this sort of language was a frequent occurrence I would have expected him to remember, especially given the proximity to the wedding. Further he had difficulty remembering the proposals in his own application.
31.The relationship between the mother and the paternal grandparents has become conflictual. It is understandable that Mr and Mrs [Pisani] would be disappointed that they no longer have as much contact with their grandchildren as they previously had. It is also understandable that they would take their son’s side rather than that of their former daughter-in-law, given the familial relationship.
32.For her part, the wife is, in my view, hurt by what she sees as the lack of support given to her by both the husband and by his parents. She told Ms [B] that Mr and Mrs [Pisani] Senior “had turned against her”.
33.In my view the evidence of the husband and the wife and the husband’s parents has been coloured by their conflictual relationships.
34.It will not be necessary in this judgment to resolve all the disputed matters. Where necessary and relevant, issues will be determined. The various findings I make on various issues in this judgment reflect my conclusions on those issues, and my assessment of the reliability of the various witnesses, together with my assessment of their personality and character.
35.This is a case in which it is necessary to take into account different perceptions of situations and issues. However the most important issue of all is the welfare of these children, and I have been able to formulate from the whole of the evidence an assessment of their parents’ personalities and characters, insofar as their respective roles and proposals are concerned as well as the insight and capabilities that they bring to bear upon those roles.
92. The husband has offered no submission arguing Ground 12 has merit.
93. It appears the ground has no merit.
Third party funding
94. This is a situation where:
· The appeal appears to have no merit;
· The appellant admits he has no means of his own to meet any order for costs;
· This situation results from the artificiality of financial arrangements between him and his parents;
· The unchallenged findings of the trial Judge and evidence of subsequent events regarding the appellant’s failure to pay his Child Support liability for his children, and his attitude to the wife regarding financial matters, indicate he is unlikely to voluntarily pay any order for him to pay any part of the wife’s costs, even if he had the funds;
· The husband’s costs of the trial, the fees of a private enquiry agent to conduct surveillance of the mother to provide evidence for his case, and his appeal have been funded by his parents and he has generally been represented by counsel; and
· The wife’s means are very limited and she generally has been represented at the hearing before the trial Judge, and before us, by a solicitor advocate funded by Legal Aid.
95. In answer to a question from me, Ms Wearne for the wife informed us that no request has been made to the husband’s parents to agree to meet any costs order against the husband in favour of the wife.
The security sought
96. The husband does not say that the amount sought by the wife for security for costs ($3,458.65) is excessive. Details of the calculation are provided. It is a modest amount. It does not include GST. It is a minor amount compared to the costs of the husband for legal representation at the six day trial and the $18,000 for the private enquiry agent’s surveillance of the wife, both of which have been paid by the husband’s parents. It is also a modest amount compared with the total of almost $9,000 he owes the wife (directly and indirectly) for support of their children.
97. Given the financial support they have already given the husband in these proceedings it is likely that if security is ordered the husband’s parents will provide it, rather than have the husband prevented from pursuing his appeal. This is not a situation where the appellant has established that an order for security would stifle his appeal.
Conclusions
98. The Court is required by s 117 of the Family Law Act 1975 to have regard to the following matters listed in s 117(2A) when considering whether to order security for costs:
(a)the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
99. As regards s 117(2A)(g) the Full Court has in Luadaka v Luadaka (supra) referred to other matters that might be relevant:
59. In Quick on Costs, Vol 1, the learned editors, in identifying factors relevant to the exercise of the discretion to order security for costs which may at first instance be awarded to a party, at [4.9350] said:
"Some of the discretionary factors identified by the courts as relevant to the determination of applications for security for costs at first instance include:
(1)the circumstances of those behind the proceedings and whether it is reasonable for those persons to satisfy an order for security;
(2) the bona fides and prospects of success of the proceedings;
(3) whether the plaintiff is impecunious and whether the defendant's conduct has caused or contributed to this impecuniosity.
(4) whether the plaintiff is in effect a defendant because, for example, it has been forced to litigate to halt self-help measures by the defendant;
(5) whether it will be oppressive to order security for costs or such an order will prevent the plaintiff from pursuing the proceedings;
(6) whether the proceedings raise a matter of public importance;
(7) whether there has been an admission, offer or payment into court;
(8) whether there has been any delay in bringing the application for security which has occasioned prejudice;
(9) the cost of enforcement;
(10) the costs of the proceedings;
...
Given the unfettered nature of the discretion the factors are at best guidelines to its exercise."
60. The learned editors said at [4.9340] that no list of factors can be regarded as exhaustive because of the unfettered nature of the discretion.
61. In our opinion, when dealing with an application for security for costs the general rule provided for in s 117(1) applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs. However, if the court is satisfied that there are circumstances that would justify an order then the court may, subject to s 117(2A), make such order for security for costs as the court considers just. It is not necessary to establish that there are special circumstances. However, it is necessary to establish that there are justifying circumstances. The decision to order security for costs is discretionary, both as to whether to order security, and as to the amount to be secured.
Their Honours held: “The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion an injustice to the other.”
The matters that should be taken into account are:
1) The financial circumstances of the parties
The husband’s financial situation is not as strong as the wife’s. But his poor financial situation arises because of the artificial arrangement he has with his parents. But if he were paid wages for his work it appears his position as to his income and necessary commitments (including child support) could be stronger than the wife’s position as to income (including child support) and necessary commitments for her and their three children.
2) Legal Aid
The wife has a grant of Legal Aid. Legal Aid is not freely available. It is rationed. Applicants have to satisfy a merit test and a means test. Grants are also often capped. If there are further proceedings between these parties, the level of aid already provided to the wife for the six day hearing and the appeal may disentitle her to further aid or result in any further grant being capped.
3)The husband has been dilatory in the conduct of the proceedings. He failed to file the appeal in time and he has repeatedly failed to prepare the Appeal Books within the time ordered. Sixteen months have elapsed since the decision appealed against.
4)The appeal appears to have no merit and even 16 months after the decision appealed against, and with the benefit of Appeal Books, the husband made no real submission on this issue.
5)The husband is unlikely to voluntarily pay any costs of the wife he is ordered to pay.
6)The wife is an involuntary party as respondent to the husband’s appeal.
7)The husband’s parents, with whom he has an artificial financial arrangement that results in him having no income or means of his own, have met his costs of the six day trial, $18,000 for a private enquiry agent to conduct surveillance of the wife for evidence for use in the trial, and his legal costs so far in the appeal.
8)The amount of security sought is modest, the husband’s parents are likely to pay it if he wishes to continue the appeal, and there is no likelihood that an order for security would stifle the appeal.
9)The appeal hearing is pending, and if this application is refused, any application by the wife to have the husband’s parents provide the security may further delay the appeal.
It appears that the appeal will be unsuccessful. In all the circumstances it would occasion an injustice to the wife if the husband is allowed to proceed with the Appeal without providing security for the wife’s costs.
I would order that security of $3,458.65 be ordered to be paid by the husband within 7 days to the Legal Aid Commission Trust Account and in default the appeal stand dismissed with costs.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 20 December 2007
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