Rostem and Sammarra
[2017] FamCAFC 178
•21 August 2017
FAMILY COURT OF AUSTRALIA
| ROSTEM & SAMMARRA | [2017] FamCAFC 178 |
| FAMILY LAW – APPEAL – where appeal raises no question of general principle and reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – where the father challenges the orders the primary judge made in respect of parental responsibility and what time and communication the child was to have with the father – where the child was 14 years old – where the child had expressed a desire not to spend time or communicate with the father – where there is no merit in any of the grounds of appeal – appeal dismissed – application for costs of the independent children’s lawyer dismissed. |
| Family Law Act 1975 (Cth) |
| Devries v Australian National Railways Commission (1993) 177 CLR 472 Metwally v University of Wollongong (1985) 60 ALR 68 R and R: Children’s wishes (2000) FLC 93-000 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Vakauta v Kelly (1989) 167 CLR 568 |
| APPELLANT: | Mr Rostem |
| RESPONDENT: | Ms Sammarra |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 7973 | of | 2013 |
| APPEAL NUMBER: | NA | 74 | of | 2016 |
| DATE DELIVERED: | 21 August 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Aldridge & Kent JJ |
| HEARING DATE: | 21 August 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 September 2016 |
| LOWER COURT MNC: | [2016] FamCA 910 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr George |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The appeal be dismissed.
Pursuant to r 17.02 of the Family Law Rules 2004 (Cth), paragraph 19 of the orders made by the Honourable Justice Hogan on 23 September 2016 is varied by deleting “Australian” and substituting in lieu “Iranian”.
The oral application made by counsel for the Independent Children’s Lawyer for costs be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rostem & Sammarra has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 74 of 2016
File Number: BRC 7973 of 2013
| Mr Rostem |
Appellant
And
| Ms Sammarra |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Kent J
The father of B, born in 2002, a child aged 14 years at trial and who is now aged 15 years, appeals from parenting orders made by Hogan J on 23 September 2016 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The child’s mother and the lawyer appointed pursuant to s 68L of the Act to independently represent the child’s interest in the proceedings (“the ICL”) oppose the appeal.
Iran is the country of origin of the parents and the child. However, they left Iran to live in City L, Southeast Asia in 2007 and the final parental separation occurred in City L in about November 2008. The father permanently relocated from City L to Perth, Australia in June 2012 and has lived in Australia ever since. Subsequently, in October 2012, the mother and child together with the mother’s partner Mr G relocated from City L to Brisbane, Australia to make a permanent home and they have lived here ever since.
Despite the parties having left Iran in 2007, a Bill of Divorce was obtained in Iran in November 2008. An order was then made in Iran granting the mother custody of the child which provided that the child spend such time with the father as the mother agreed.
In circumstances where there was no issue at trial that the child should continue to live with his mother, as he had always done throughout his life, only two central issues joined between the parties ultimately fell for determination by the trial judge. First, the allocation of parental responsibility for the child and second, the parenting orders to be made for the child to spend time, or communicate, with his father.
Those central issues fell for determination in the context of the following fundamentally important established facts, unchallenged on this appeal:
a)Since the parental separation in 2008, when he was about six years of age, the child has spent very limited time with the father on only an intermittent basis and, prior to the trial in September 2016, had not had any contact at all with his father for many months beforehand;
b)The absence of interaction between the child and his father throughout most of the child’s life has contributed to the result that the child’s relationship with the father is fractured;
c)The child, aged 14 years at trial, has long expressed a clear desire to have no further interaction with his father and has himself implemented those views for a considerable period of time;
d)The parents have a demonstrated inability to communicate, lack trust in each other, and have significant differences including as to their approaches to parenting.
A feature pervading the father’s challenges on appeal is a steadfast avoidance, or obfuscation, of these fundamentally important facts which were central to the determination made by Hogan J.
Hogan J determined that it was in the child’s best interests for the mother to have sole parental responsibility for major long-term issues for the child, albeit that the mother was to seek and consider any views expressed by the father before deciding such an issue. As to time and communication, her Honour ordered that time spent occur as is reasonably requested by the child and that the mother facilitate telephone or Skype communication at the child’s request. The father was at liberty to send the child letters, cards and gifts.
In my judgment, the father does not demonstrate on appeal that Hogan J acted upon a wrong principle, or allowed extraneous or irrelevant matters to guide or affect her, or made any mistake as to the facts material to the decision, or failed to take into account some material consideration. Her Honour’s Reasons for Judgment make clear how she arrived at the result embodied in the orders and on the facts of this case, that result is incapable of being characterised as unreasonable or plainly unjust. As I am of the opinion that the appeal should be dismissed and that it does not raise any question of general principle, reasons for these conclusions can be given in short form (s 94(2A) of the Act). The singular lack of merit in the father’s challenges on appeal render the giving of reasons in short form all that is required.
As noted, the child had been living in Australia with his mother and her partner Mr G since they relocated from City L to Brisbane in October 2012 to make a permanent home in Australia. The father had relocated from City L to Perth in June 2012 to make Australia his permanent home. It was Australian law, specifically Part VII of the Act, which the trial judge was bound to apply in determining parenting orders. Leaving aside that the father ought not be permitted to raise arguments for the first time on appeal that were not raised at trial (Metwally v University of Wollongong (1985) 60 ALR 68), the attempt pervading some of the father’s grounds of appeal (for example, Grounds 2, 4, 7 and 17), and his arguments on appeal, to give the fact that Iran is the country of origin of the parents and the child, or that some litigation historically occurred in Iran resulting in orders, some juridical or other significant effect, is entirely misconceived. Likewise, in circumstances where the father relocated permanently from City L to Perth in June 2012, his attempts to characterise the mother’s subsequent relocation with the child from City L to Brisbane in October 2012 as “child abduction”, by reference to some historical order made in Iran or by reference to the Hague Convention on Child Abduction, is utterly misconceived.
For much the same reasons, the father’s complaint on appeal (Ground 7) to the effect that the trial judge denied him procedural fairness or natural justice in preventing his use of an Iranian interpreter is a sterile complaint. It can be seen that at trial the father sought to use the interpreter to prove the content of some historical Iranian Court documents (transcript, 19 September 2016 page 9 line 40 to page 12 line 45) and ultimately did not pursue use of the interpreter for that purpose.
The trial judge had an important advantage, given the factual issues between the parties concerning family violence occurring during the relationship, of seeing and hearing each of the parties give evidence under cross-examination. Nothing the father identifies on appeal suggests any misuse of that advantage by the trial judge or that this Court can legitimately displace findings of the trial judge founded upon her Honour’s assessments of credit (Devries v Australian National Railways Commission (1993) 177 CLR 472). It was open to the trial judge to accept the evidence of the mother in preference to that of the father (as the trial judge did – reasons at [102] to [106]) concerning the father’s physical violence and controlling behaviour towards the mother during their relationship, and his assault of the child when he was aged six years. The trial judge was, on the findings made as to family violence, plainly correct in concluding that the statutory presumption (s 61DA(1)) that it is in a child’s best interests that the parents have equal shared parental responsibility, did not apply (s 61DA(2)).
Moreover, given the trial judge’s careful and detailed consideration of the relevant s 60CC considerations and consequent findings in determining the child’s best interests (at [36] to [109]) it was plainly open to the trial judge to conclude that it would not be in the child’s best interests for an order for equal shared parental responsibility to be made. As that consideration and the findings made by the trial judge reflect, the father has had very limited involvement in the child’s life and one consequence of that is that the mother has borne essentially sole parental responsibility for the child, in practical terms, throughout his life. Allied with the findings the trial judge made about the poor nature and extent of the parents’ capacity to communicate and interact (at [114]); and that the child would continue to live with his mother as he had always done; it was plainly open to the trial judge to make the orders her Honour made as to parental responsibility.
The father’s challenges on appeal, founded upon a combination of asserted “public policy” considerations and the misconceived proposition that the mother “abducted” the child when the mother and child left City L for Australia in 2012 (Australia then being where the father had himself already moved), obfuscate the fundamental facts of this case upon which the issue of parental responsibility fell to be determined.
No error on the part of the trial judge is demonstrated as to the orders made in respect of parental responsibility.
As to the orders for time and communication made by the trial judge, the father seeks to emphasise what he contends to be the mother’s historical contribution to the child’s “severely fractured relationship with his father” as the father himself puts it (paragraph 10 of the father’s Summary of Argument). The father’s challenges largely devolve into asserted failures of the trial judge to attribute fault to the mother for the extremely limited amount of time the child has spent with the father historically, commencing subsequent to the parental separation in City L in 2008 when the child was only about six years of age.
The trial judge outlines the history of time spent at [11] to [14] and [19] to [25] of the reasons.
It cannot be doubted that given the parameters of the dispute, and the fundamentally important facts of this case to the issues which ultimately fell for determination as earlier identified, that her Honour was correct in giving significant, if not determinative, weight to the expressed views of a 14 year old child, given the child’s level of maturity and understanding (s 60CC(3)(a)).
The father’s criticisms of the trial judge’s reliance upon the evidence of the family consultant Ms M, to the effect that Ms M’s report was historical in that she interviewed the parties and the child when the child was aged 12 years, only serve to draw focus upon the fact that the expressed views of the child were of longstanding. There was ample evidence, including that of the mother and Mr G and the feature that the counselling process of Mr T, a psychologist took place, without success, in October/November 2015, to support the proposition that the child maintained the views he had expressed to Ms M.
It was within the trial judge’s discretion to accord the child’s views such weight as the trial judge considered appropriate in the circumstances of the case. It has long been recognised that it is undesirable, and probably impossible, to catalogue or confine the factors that may go to the weight that should be given to expressed views of children, as these will vary from case to case. It is recognised as being a process of intuitive synthesis on the part of any trial judge weighing up all of the evidence relevant to the views of the child and applying that in a common sense way, as one of the factors in the overall assessment of the child’s best interests (see R and R: Children’s wishes (2000) FLC 93-000).
The trial judge gave detailed and thorough consideration to the child’s views, allied with an assessment of the child’s relationships with each of his parents, at [47] to [80] of the reasons.
It can be seen from that discussion that the child is to be seen as being in a position to make a mature, responsible and considered assessment of his own position. Moreover, that his expressed views are held with strength and have been held for a long period of time. As her Honour’s analysis makes clear, the child’s views are based upon a choice that is well thought through and based on appropriate, as distinct from irrelevant or peripheral matters. The trial judge rejected the contention that the child’s views are the result of pressure on the child or emotional attachment by the child and that they in fact reflect the child’s own choice, informed as they are by the child’s own responses to experiences of his father, in the examples outlined in the discussion in the reasons referred to.
There is no substance in the father’s contentions on appeal to the effect that the trial judge ought to have concluded that the fractured child-father relationship is entirely the product of the mother’s influence upon the child, or that the child’s long-expressed views are likewise to be sourced to the mother. The evidence does not support such a conclusion. In any event, it is not the function of parenting orders to reward “good” parents and punish “bad” parents. The sole function of parenting orders is implementing those arrangements which serve the best interests of the child in accordance with findings upon the s 60CC considerations.
The order of 8 June 2016 of Hogan J, made some three months in advance of the trial and which ordered the setting down of the trial, carries the notation that the father was then given an explanation about process and procedure in accordance with Re F: Litigants in Person Guidelines (2001) FLC 93-072. The transcript of the trial is littered with examples of the trial judge explaining matters of evidence and process and procedure throughout the trial proceedings. In circumstances where these were “child-related proceedings”, Division 12A within Part VII of the Act required the trial judge to actively direct, control and manage the conduct of the proceedings. Those requirements obviously had to be balanced against the requirement to afford all parties procedural fairness. Nothing to which the father directed attention on appeal demonstrates any failure on the part of the trial judge in achieving the requisite balance.
All that need be observed about the father’s complaints on appeal to the effect that the trial judge demonstrated bias, or lack of impartiality, is that the father raised no such issue before the trial judge at any time during the trial (Vakauta v Kelly (1989) 167 CLR 568). The father’s assertions on appeal as to these complaints are founded upon entirely selective and distorted interpretations or constructions of what actually occurred at trial. Reference has already been made to what actually occurred concerning the father’s use of an interpreter. Another example, referable to the father’s complaint that he was refused the opportunity to cross-examine the expert Dr V, is what actually occurred at trial as can be seen by reference to the transcript (transcript, 19 September 2016, page 19 line 15 to page 20 line 45). It can be seen that the trial judge tested with the father what he hoped to achieve by cross-examining Dr V and the trial judge having explained to the father the process, it was the father who elected ultimately not to cross-examine Dr V. Likewise, none of the other examples pointed to by the father have any substance.
I am not persuaded that any of the complaints of the father on appeal to the effect that he was not afforded procedural fairness in some material respect has any substance. It bears repeating that the ultimate issues for determination by the trial judge were those earlier identified, and that those issues fell to be determined in the context of the centrally important and fundamental factual matters earlier outlined. The complaints the father now seeks to agitate lie at the very periphery of those central issues and fundamental facts and ought not distract focus from what actually had to be determined by the trial judge.
Finally, to the extent that the father challenges the adequacy of reasons of the trial judge, the path of reasoning of the trial judge to the result embodied in the orders is readily discernible. There is simply no substance in the contention that the Reasons for Judgment are in some way inadequate.
For these reasons I would order that the appeal be dismissed.
Given the agreement of all parties on the hearing of the appeal to this course, I would correct the reference in her Honour orders to the child’s passport. It is not in issue that there is an Iranian passport and not an Australian passport for the child. I would therefore correct Order 19 of the orders made by her Honour to make reference solely to the child having an Iranian travel document.
Aldridge J
I agree with the reasons given by and the orders proposed by Justice Kent.
Thackray J
I too agree with Justice Kent and the orders that he proposes. Accordingly, the formal orders of the Court are:
1. The appeal be dismissed.
2. Pursuant to r 17.02 of the Family Law Rules 2004 (Cth), paragraph 19 of the orders made by the Honourable Justice Hogan on 23 September 2016 is varied such that the word “Australian” is removed and the word “Iranian” substituted in its place.
The application before the Court now is that of the ICL for the appellant father to pay the costs of the appeal fixed in the sum of $3,975, of which $2,220 is counsel’s fee. Clearly the amount sought is modest and appropriate and no objection was made to it. There is a strong basis for an order for costs being made pursuant to the Act which provides that while ordinarily each party to proceedings will meet their own costs, in specified circumstances it is open to the Court to order one party to pay the costs of another party or the costs of the ICL.
One of the bases for ordering costs is that a party has been wholly unsuccessful. Whilst the father disagrees with the decision of the Court, the fact is that his appeal has been dismissed and he has therefore been wholly unsuccessful. The basis therefore exists for making an order.
The Act specifically provides however in s 117(4) that in proceedings in which an ICL has been appointed, if a court considers that a party would suffer “financial hardship” if he or she had to bear a proportion of the costs of the ICL, the Court must not make an order against that party in relation to the costs of the ICL.
We have received some brief information from the father from the bar table concerning his financial position. He has employment for which he is paid about $60,000 a year. He lives in a relationship with a woman who works in the security industry who he believes earns about $70,000 a year. Whilst there is therefore a moderately good income coming into the household, there are two children of the partner living in the home, one of whom has expensive medical needs. The father also has an obligation to pay child support for the child the subject of these proceedings at a rate of $500 a month. He says that he is only able to live by using his credit card. He has credit card debts totalling approximately $50,000 and also has a loan relating to another credit card liability of about $20,000.
It is the view of the Court that whilst there is a basis for an order being made, the father would suffer financial hardship within the meaning of the Act if he was ordered to pay the costs of the ICL. The order of the Court therefore is that the oral application of the ICL for costs be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Aldridge & Kent JJ) delivered on 21 August 2017.
Associate:
Date: 21 August 2017
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