ROZLAPA & HILLET
[2020] FamCAFC 276
•12 November 2020
FAMILY COURT OF AUSTRALIA
| ROZLAPA & HILLET | [2020] FamCAFC 276 |
| FAMILY LAW – APPEAL – CHILDREN – Where there is no obligation on the court to undertake “further investigation” – Where several grounds of appeal do not assert appealable error of the kind identified in House v The King (1936) 55 CLR 499 – Where the mother asserts the primary judge did not consider an email sent to chambers after the conclusion of the trial – Where it is inappropriate, whether by way of email or otherwise, for a party to directly provide evidence to the primary judge – Where it is rejected that the primary judge ignored the mother’s claims that the father had been domestically violent – Where the primary judge undertook an entirely orthodox risk assessment process, and, having carefully identified and evaluated the relevant evidence, assessed the risk – Where objection was taken to playing the recording however no objection was raised to the tender of the recording – Where a party is bound by the conduct of their case at trial – Appeal dismissed. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the mother sought leave to file an Application in an Appeal to adduce further evidence – Where no sensible explanation was advanced by the mother as to why the Application in an Appeal was sought to be filed so close to the hearing – Where material was controversial and of peripheral relevance – Leave refused. FAMILY LAW – APPEAL – COSTS – Where indemnity costs was quite properly not pressed by the father – Late filing of party/party costs schedule – Absence of any evidence of either party’s financial position – Father’s application for costs dismissed. |
| Family Law Act 1975 (Cth) s 60CC(3), 93A(2), 117(2A) Family Law Rules 2004 (Cth) r 22.39(1) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 |
| APPELLANT: | Ms Rozlapa |
| RESPONDENT: | Mr Hillet |
| FILE NUMBER: | BRC | 12135 | of | 2018 |
| APPEAL NUMBER: | NOA | 15 | of | 2020 |
| DATE DELIVERED: | 12 November 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Brisbane via video link |
| JUDGMENT OF: | Kent, Watts & Tree JJ |
| HEARING DATE: | 23 September 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 January 2020 |
| LOWER COURT MNC: | [2020] FCCA 81 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Foley |
| SOLICITOR FOR THE RESPONDENT: | Michael Dwyer Solicitor |
Orders
The mother’s oral application for leave to file an Application in an Appeal dated 22 September 2020 is dismissed.
The mother’s Amended Notice of Appeal in NOA 15 of 2020 is dismissed.
The father’s application for costs is 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 Rozlapa & Hillet 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: NOA 15 of 2020
File Number: BRC 12135 of 2018
| Ms Rozlapa |
Appellant
And
| Mr Hillet |
Respondent
REASONS FOR JUDGMENT
Introduction
On 21 January 2020 the primary judge pronounced final parenting orders relating to the parties’ only child, Z, born in 2014 and therefore presently six years of age (“the child”). Pursuant to those orders, the parties had equal shared parental responsibility for the child, who would live with Mr Hillet (“the father”) but spend alternate weekends and one school day afternoon each week with Ms Rozlapa (“the mother”) together with one half of school holidays. Orders were also made for the child to spend time with both parents on special days.
In addition to those orders, a number of restraints were also imposed, including that the child not be left in the sole care of the mother’s husband, Mr B, for more than 30 minutes, nor travel in a motor vehicle driven by him if he is unlicensed. Additionally, the mother was restrained from removing or attempting to remove the child from the Commonwealth of Australia, and an Airport Watch List order was made.
From those orders the mother appeals, however for reasons which follow, the appeal must fail.
Background
At the time of trial, the father was 46 years of age and the mother was 34 years of age. The mother was born in Country C and met the father whilst he was holidaying there. Subsequently they commenced a relationship in 2013. The child was born in Country C in 2014, but in May 2015, the parties and the child moved to Sydney, and later relocated to South-east Queensland in about December 2015.
The parties separated in May 2018. The mother commenced a relationship with Mr B the following month, and married him in late 2019.
Mr B was 36 years of age at the time of trial. He has a child to a previous relationship, who is two years older than the child, and at the time of the trial, was living equally between his mother’s home and Mr B and the mother’s home.
Initially, post separation, the parties had attempted an informal parenting arrangement in relation to the child, which saw her spending time in both households, although the precise amount of time spent in each household was disputed.
In July 2018, the child made disclosures to the father that she had touched Mr B’s penis. Ultimately those matters were investigated by relevant authorities, to whom no disclosures were made by the child.
In August 2018, after she was told of the child’s disclosures, the mother withheld the child from the father, and it was not until December 2018 that, pursuant to court order, the child resumed spending time with him. By the time of the trial, the child was living week about between the parties pursuant to consent orders made on 7 May 2019.
The Trial
The trial proceeded on 4 and 5 November 2019. At its commencement, counsel for the father sought leave to rely upon three late filed affidavits, sworn by the father and two of Mr B’s former de facto partners. Although initially, counsel for the mother foreshadowed an application for an adjournment based upon that late filed material (Transcript 4 November 2019, p.5 lines 4–6), her Honour suggested that a more appropriate way of dealing with it might be to stand the trial down briefly, to enable the mother to give her lawyers relevant instructions, and if need be, she could provide some oral evidence-in-chief at the beginning of her oral evidence in answer to any of the late filed material (Transcript 4 November 2019, p.6 lines 28–32). The matter then adjourned for half an hour, and when it resumed, counsel for the mother indicated that he was ready to proceed (Transcript 4 November 2019, p.8 lines 1–3).
Thereafter the father gave his oral evidence, followed by both of Mr B’s former de facto partners. Later that day, the mother gave her oral evidence, including about five minutes of evidence-in-chief which responded to one matter raised in the father’s late filed affidavit (Transcript 4 November 2019, p.41 line 40 to p.42 line 41).
On the second day Mr B gave his evidence. Under cross-examination, initially he denied a number of asserted conversations which the father said he had with him, but was later forced to concede a significant conversation on 28 September 2018 had occurred in the terms which the father suggested, when a recording of it was played to him. Although the mother’s counsel initially objected to the recording being played, ultimately he did not oppose its admission into evidence (Extract of Transcript 5 November 2019, p.24 lines 24–35).
Once Mr B’s cross-examination concluded, the Family Report writer gave evidence and oral submissions ensued.
By the conclusion of the trial, both parties agreed that they should have equal shared parental responsibility for the child. As to the child’s living arrangements, the mother contended that the child should live with her, and spend six nights a fortnight and one half of school holidays with the father. The mother justified those orders on the basis that the child was not coping well with equal care, and it would be best if she were to live primarily in her household.
For his part, the father contended that the child should live with him, and spend alternate weekends and one half of school holidays with the mother. The father supported those orders not by reference to Mr B posing a risk of sexual harm to the child, but rather that Mr B’s hostility towards him meant that so long as the child was living in the mother’s household with Mr B, his relationship with the child would not be supported.
The Primary Judge’s Reasons For Judgment
In her reasons for judgment, the primary judge commenced by reciting the parties’ relevant backgrounds, the course of their relationship and relevant post separation events. A significant post separation sequence identified by her Honour was as follows (at [9]–[18]):
a)on 13 July 2018 the child disclosed to the father that she had touched Mr B’s penis;
b)the father thereupon sought advice from a Family Relationship Centre, and on 17 July 2018 was contacted by police in relation to the child’s disclosure, with the child being interviewed by police later that day;
c)on 27 July 2018 the father told the mother of the child’s disclosures;
d)on 1 August 2018 the mother applied for a protection order against the father;
e)on 10 August 2018 the mother obtained the interim protection order; and
f)on 18 August 2018 the mother unilaterally suspended the child spending time with the father, which was not reinstated until December 2018 by court order.
At least in part, the mother’s reasons for withholding the child from spending time with the father, was his failure to respond to an email she sent to him on 24 September 2018 which outlined “[t]hings [the father] [n]eeded to [i]mprove”, “[t]hings [the father] needs to stop doing”, and financial matters he needed to attend to, in order to have time recommence (at [19]–[21]).
Next, as we have earlier indicated, on 28 September 2018, Mr B had a telephone conversation with the father in which he confirmed that the child would not see the father again until “he had done everything the mother required of him” (at [23]). Unbeknownst to Mr B, that phone call was being recorded, and the recording assumed some prominence at the hearing before the primary judge.
The final aspect of the chronology was the father commencing the proceedings on 19 October 2018, albeit, for some reason which is unclear, the mother was not served until 21 November 2018 (at [24]).
Her Honour then identified the material which the parties relied upon, and stated (albeit inaccurately as regards to the mother’s proposal, although nothing turns on that) their competing proposals. She then turned to consider the relevant issues which required her determination in the case, and at [53] of the reasons said as follows:
It is my view that the most significant and relevant issue that remains in dispute is whether [the child’s] relationship with her other parent is best promoted by an order which would see her living primarily with her mother and Mr B or with her father.
Next, her Honour extensively traversed the competing evidence relating to that issue, in the course of which she revisited the relevant chronology of events between August 2018 and December 2018 as follows:
76.A significant event in this matter however which raises concerns for me about the mother was her decision to withhold [the child] from her father from about mid-August 2018 until orders were made by me in December 2018 for her to resume time with her father. I turn firstly to the timing off [sic] that decision. I set out in the background to these reasons that the father informed the mother of [the child’s] disclosures on 27 July 2018 during a handover and on 28 July 2018 the mother, he says, invited him to her house to discuss, what he refers to as the matters in relation to Mr B whilst Mr B was interstate. The father understands that the mother collected Mr B from the airport on the afternoon of 30 July 2018 and on 31 July 2018 he received a telephone call from the mother accusing him of making up the allegations. The next day, on 1 August 2018, it is clear from exhibit 4 that the mother attended at police and completed a statement to support an application for a protection order which was then made on 10 August 2018 but later withdrawn.
At [84] of the reasons, her Honour listed the numerous complaints which the mother advanced about the father’s care of the child, which included him locking her in her bedroom, permitting her to ride a scooter inside his house, refusing to treat her for head lice, an asserted absence of routine in the father’s home, the fact that “random people” were living in the father’s home, her belief that the father was using drugs, and that one of the father’s friends “looks like a drug dealer or cooker of meth”.
Her Honour then considered the father’s allegations that the mother was influenced by, and subject to the manipulation of, Mr B (at [90]) and referred to the Family Report writer’s view that Mr B was “a man who would not remain in the background but would [sic] asserts his influence and opinions” which caused him to be concerned about the mother’s vulnerability in that relationship (at [92]).
At [94]–[95] her Honour referred to the 28 September 2018 telephone call between the father and Mr B as follows:
94.In relation to that telephone call I note that Mr B, when cross-examined by [counsel for the father] as to the content of that conversation, denied that he made many of the comments alleged by the father, however after hearing the recording, it is in fact clear that he made the following comments:
a)do not think you can text [the mother] weekly [about seeing [the child]] until you meet our demands. Go over [the mother’s] emails, do everything that she asks of you. Answer every one of those questions or you are not going to see your daughter. Do not text [the mother] about [the child] until you have parenting courses, until you have a financial plan in writing about every one of your plans [referring to a credit card debt with [a credit provider]];
b)at the moment we’ll give you nothing because the court has given us that. You abused every privilege you had. If you text [the mother] again, it is bullying, it is illegal and the reality is you have no other option then to answer all of our questions in an email. We will go to the police;
c)You think your clever mate? But you’re so far from it. You have a god complex. You think you’re above us. You’ve lost. No more fucking around [the father]. Grow up. Be a man. Rectify yow-fucking life.
95.The comments made by Mr B during that call are of real concern as was the tone and aggressive and intimidating way in which Mr B spoke to the father.
Her Honour dismissed the mother’s suggestion that the extract of the recording was either highly selective, or the conversation had, in effect, been deliberately provoked by the father for the purposes of recording it, in large part because it was similar to other communications between the father and Mr B, and communications between Mr B and one of his former partners (at [96]–[97]).
The primary judge then considered the evidence in relation to Mr B given by his two former de facto partners, and concluded that she could not “see that their claims that in their experience Mr B is an aggressive and intimidating person were really challenged” (at [98]). Her Honour then continued to review the relevant evidence about Mr B, including at [102]–[105] as follows:
102. In [the Family Report writer’s] conclusions, he said this in relation to Mr B:
128.Mr B presented poorly for these interviews. Initially polite and animated, his manner deteriorated quickly, and he became intensely preoccupied and speculative about [the father’s] character and relationship with his daughter. Although some leeway might be given to Mr [B] for his emotions in response to the allegations made against him, I am of the view that he is a controlling man by nature.
129.Of most concern was the language he used to characterise [the father’s] relationship with [the child], in addition to the proprietorial inferences made about his (Mr B's) relationship with [the child].
103. Ultimately although it was [the Family Report writer’s] view that the then current arrangements remain in place, he expressed a view that the mother’s relationship with Mr B posed a risk to [the child] given his attitude to [the child’s] relationship to her father and his generally controlling disposition.
104. Again in answer to a question from me asking [the Family Report writer] to expand on his concerns he said about Mr B:
I was far more concerned about the influence of Mr B in various ways. I thought that he is a very dominant person, and I think that he has been doing the mother no assistance in his role in this – in the matter from when they started their relationship, and at it’s worse I thought it would be possible that if the child were retaining an equal shared arrangement and things continued the way it had been, if Mr B presented similarly to your Honour and in other contexts the way he presented with me on the day of the interviews, I would have raised concerns about [the child’s] capacity to manage that between two households, and I think the mother is quite vulnerable to Mr B in that respect, too, because to an extent he plays to her biases about that, as well. …
105. He went on further when asked to an example of his concerns:
… the way in which he appeared to think that she had to be – the child had to be – had to recover from time with the father, you know, for example, talking about her toileting and having to give her smoothies to tell her toilet properly after she comes back from Dad’s place. I found that quite disconcerting and highly unusual in the context of everything else he said, as well. I think in my conclusions I thought maybe some credence would be given to him, given the allegations that have been made against him, but I found his presentation about the child’s relationship and the role that he now played in her life to be very concerning.
Having considered that evidence, her Honour then identified the relevant statutory provisions which she was obliged to apply, and determined where parental responsibility should lie, noting that both parties sought an order for equal shared parental responsibility. Her Honour concluded (at [123]) that it was in the child’s best interests for there to be such an order, and then considered, as she was obliged to, whether an order for equal time was in the child’s best interests and reasonably practicable. Ultimately she concluded that such an order may not be practical, but in any event, would not be in the child’s best interests (at [125]).
She then considered whether the mother’s or father’s proposal was more in the child’s best interests, and particularly with whom the child should primarily reside, and concluded as follows:
130. …Whilst I accept that these are positive things for [the child] in the mother’s household and that there would be many benefits to [the child] living with her mother, they do not outweigh, in my view, the risk to [the child’s] relationship with her father if she remains living in her mother’s home with Mr B.
The primary judge then considered the suitability of the father as the primary parent for the child, and noted the Family Report writer’s evidence that, if the court found that the father was more likely to promote the child’s relationship with the mother than vice versa, he would recommend that the child live with the father. The primary judge indicated that such were her Honour’s concerns for the child’s relationship with the father should she reside primarily in the mother’s home, and her Honour concluded that the benefit of moving the child to live with the father outweighed the effect of that change. In reaching that conclusion, the primary judge took into account the concerns expressed by the Family Report writer (at [131] and [132]).
Her Honour went on to consider a number of other matters, including the time which the child should spend with the mother, and concluded that the father’s proposal was the most practical, as follows:
135. In relation to her time with her mother, it is very important because she has such a close relationship with her, that I make Orders to maximise the time she can spend with her mother. Given the distance the mother and father reside from each other and that I intend making an order for [the child] to attend the school the father proposes, the most practical order therefore is for each alternate weekend from after school Friday until before school Monday. I will add to those orders however an order for time each week after school on a day, or days, to be agreed between the mother and father.
Her Honour had previously determined that such a regime comprised substantial and significant time (at [52]).
The primary judge then addressed some specific matters in dispute, including the appropriate school for the child, the question of whether or not she should repeat her preparatory year, whether the Airport Watch List order and a restraint on overseas travel should be imposed, and whether there should be some restraint in relation to Mr B’s time alone with the child. Finally, her Honour addressed the appropriate orders for special days.
The Appeal
At the outset, it is useful to state that, given that the appeal is from a discretionary judgment, in order for it to succeed, error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) needs to be established. There, the High Court said:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
The mother’s Amended Notice of Appeal filed 12 May 2020 extends to 15 alleged grounds. However, perhaps because she was unfamiliar with House v The King, many of them are not proper grounds of appeal, and do not raise asserted errors on the part of the primary judge, but rather seek to revisit contentious issues at trial, including by reference to further evidence. Further, many of the grounds of appeal were not addressed in the mother’s Summary of Argument filed 17 July 2020, and more, that summary raised matters which were not captured within the grounds of appeal; we shall briefly address two of those additional matters in due course.
Finally, on the day before the hearing of the appeal, the mother sought to file an Application in an Appeal to adduce further evidence in the appeal. She had, by her Summary of Argument filed 17 July 2020, earlier foreshadowed that there was additional material that she wished to rely on, but did not identify what it was, as she did not want the father to be able to read it before the hearing, and hence have time to respond (mother’s Summary of Argument filed 17 July 2020, paragraph 40). We shall deal with that application for leave first, and then address the mother’s challenges made to the orders of the primary judge in the appeal.
The mother’s Application in an Appeal to adduce further evidence
Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) expressly provides for the receipt of further evidence on appeal. However, in the High Court decision of CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”), McHugh, Gummow and Callinan JJ observed:
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge’s decision. In that context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily on the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
117.The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interests in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
…
148.… [T]he power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
The nature of the material which the mother sought to adduce related to mostly post-trial events, including:
a)Mr B’s child spending increased time with him and the mother;
b)the child’s former school’s recommendation that she not repeat prep; and
c)some oblique criticism made by others of the father.
Insofar as it comprised pre-trial material, it was mostly text message conversations between the father and others.
As she correctly anticipated, insofar as it was critical of the father, that material was controversial. That controversy could not be easily resolved by us.
However, more significantly, no sensible explanation was advanced by the mother as to why the Application in an Appeal had been sought to be filed so close to the hearing, when it ought to have been filed at least by 8 September 2020 (Family Law Rules 2004 (Cth), r 22.39(1)). That delay meant that the father was denied any proper opportunity to respond.
Finally, much of the additional material the mother seeks to put on in the appeal is of, at best, peripheral relevance.
Weighing all of those factors in the balance, we refuse the mother’s oral application for leave to file her Application in an Appeal dated 22 September 2020.
Ground 1
This ground asserts as follows:
1.FACS have completed a full Safety and Risk assessment and subpoena of this investigation was not considered by [the primary judge] when making her decision. Assessment stated there was no risk identified in my household nor from any member of my household.
This ground may be shortly dealt with. Both parties gave evidence about having had dealings with the New South Wales Department of Family and Community Services (“the Department”) in the context of the child’s disclosures of touching Mr B’s penis, and gave evidence about the absence of any intervention by the Department in consequence of those dealings.
The record to which the mother refers in this ground, was a letter to her from the Department dated 29 November 2018 (Annexure “M2” to the mother’s affidavit filed 14 January 2019). Relevantly it said:
I would like to inform you that we are now closing [the child’s] file, because it has been assessed that the reported concerns no longer require [the Department] to be further involved.
The reasons for this decision are that [the Department] have completed a full Safety and Risk assessment of the reported allegations, the outcome of the assessment identified that the allegations have not been substantiated. Furthermore it is, [the Department’s] view there are no Safety or Risk concerns in relation to [the child] in your care; nor in your current household, or with any persons in the household; therefore will [the Department] now close this matter.
(As per the original)
It will be appreciated that the Department’s involvement was primarily in the context of the child’s disclosures. We do not read that correspondence as in any way suggesting that the Department had undertaken a risk assessment in relation to the matter which was the primary judge’s focus, namely whether the mother’s household could support the child having a relationship with the father. Moreover, at trial, counsel for the mother did not assert that the Department’s conclusion that there was insufficient risk in either party’s household to justify intervention, was a relevant consideration in relation to the risk that the mother’s household would not support the father’s relationship with the child. Parties are bound by the way they conduct their case before the trial judge: Metwally v University of Wollongong (1985) 60 ALR 68 at 71 (“Metwally”).
There is no merit to the first ground of appeal.
Ground 2
This ground provides as follows:
2. The Family report writer… agreed that there is no risk regarding the sexual allegations, however, recommended the order that Mr B is not to be left alone with the Child stayed in place.
(As per the original)
Again this ground may be shortly dealt with. Whilst it is correct that the Family Report writer identified that Mr B posed no current risk of sexual harm to the child (and indeed, nor did the father so assert either), he did have great concerns about his attitude to the father, and his controlling disposition more generally. Further, on Mr B’s own evidence, he agreed to the restraint against him being left alone with the child being maintained (Mr B’s affidavit filed 1 November 2019, paragraph 1). In any event, ultimately counsel for the mother conceded in submissions the primary judge could order “… appropriate injunctions as your Honour sees fit in terms of whatever residual risk Mr B might pose to the child…” (Transcript 5 November 2019, p.116 lines 10–11).
Therefore not only does this ground not allege appealable error, but it is in any event without merit.
Ground 3
This ground provides as follows:
3.Court has not done any further investigation on that topic which cannot exclude that the father has made up false allegations against Mr B.
(As per the original)
This does not raise a proper matter of appeal. That is because there is no obligation on the court to undertake “further investigation.” The parties present their evidence before the court, rather than the court proceeding in an inquisitorial fashion. There is no merit to the third ground of appeal.
Ground 4
The fourth ground occupies three relatively long paragraphs in the Amended Notice of Appeal. It is unnecessary to recite it in detail; it generally challenges the order made by the primary judge in relation to the child’s school. Further, it asserts (unlike the mother’s case at trial) that she would be prepared to move so as to be closer to the child’s former school, if the child remained enrolled there.
The primary judge considered the choice of school for the child as follows:
136.In relation to the school, I intend making the order the father’s [sic] proposes simply because it is in closer proximity to the father’s home.
137.Further in relation to the school, [the Family Report writer] was asked about the benefit to [the child] of attending at the same school as [Mr B’s child], however [the Family Report writer] was concerned that may involve the father and Mr B coming into contact with each other and opined [sic], and I agree, that a different school may be more appropriate.
It is sufficient to dispose of this ground to note that it asserts no appealable error of a House v The King kind. The fact that there may have been reasons for the child remaining at her former school, or that, if we were exercising the discretion for ourselves, we may have reached a different result, is insufficient to establish error which would justify allowing the appeal. The fourth ground of appeal fails.
Ground 5
Again this ground as cast is highly discursive, but in substance asserts that, after the trial had concluded, the mother had emailed the primary judge’s associate a copy of a report card from the D State School, which indicated that the child did not need to repeat prep in 2020.
The primary judge dealt with the issue of repeating prep at [138] of the reasons for judgment as follows:
In relation to whether she should repeat Prep in 2020, I have no evidence before me of any real substance other than that produced by the father of his communication with [the child’s] teacher and for that reason I will make an order that she repeat Prep.
If the mother had wished to properly bring evidence that had come into existence after the close of the trial to the primary judge’s attention, then the appropriate means to do so was by way of application to reopen her case. The mother did not do so. Importantly, whilst the mother was self-represented on appeal she was represented by solicitors and counsel throughout the trial stage.
It is inappropriate, whether by way of email or otherwise, for a party to directly provide evidence to the primary judge, and indeed proper chambers’ procedure ought ensure that the direct communication from the mother was never brought to her Honour’s attention. Certainly the failure of the primary judge to have regard to such material could not possibly comprise appealable error.
In any event, given that three terms of the child’s repetition of prep have now concluded, this ground of appeal is futile.
The fifth ground of appeal fails.
Ground 6
This ground is again discursive in nature, but in substance asserts that there was no reasonable basis for orders placing the child’s name on the Airport Watch List, or restraining the mother from taking the child overseas.
The primary judge dealt with this at two places in the reasons for judgment, as follows:
120.In relation to the mother’s request however that I remove [the child] from the Airport Watch List, given the serious concerns I have about the mother and Mr B’s ability to support [the child’s] relationship with her father and given no doubt their upset if I make an order that [the child] will live with her father, I would be concerned that the mother may present a flight risk. I have taken into account of course that Country C is a Hague Convention country but I also understand that the mother is not able to put up any security.
…
139.I have already referred to my decision with regard to the Airport Watch List. Of course that order does not prevent the mother, at some appropriate time in the future, from making an application to remove [the child] from the Airport Watch List and travel overseas with her.
There was obviously a legitimate concern held by the primary judge in relation to the prospect of the mother being unhappy with the change in the child’s primary care and living arrangements, and therefore the prospect that she may react adversely to that by returning with the child to Country C. Further, the primary judge was correct to note that, at any time, the mother can seek to have that order relaxed for particular proposed travel, and that course still remains open to her. Appealable error of the kind identified in House v The King is not established.
The sixth ground of appeal fails.
Ground 7
This ground provides as follows:
7.There are no basis for judgement that fathers relationship is undermined. Father has never raised such issue until [the Family Report writer] mentions it for the first time. I believe this is a subjective opinion of [the Family Report writer]. I strongly believe that [the Family Report writer] has chosen a side and made his opinion based on not the evidence or facts but his own personal experiences. [The Family Report writer] allowed father to play recording snippits, however, at that point there was a court order that the father shall not record the Child.
(As per the original)
Her Honour commenced upon considering the issue of the risk which the mother’s household posed to the child’s relationship with the father at [75] of the reasons, and thereafter, looming large in her Honour’s consideration, was the response of that household between August 2018 to December 2018, in withholding the child from spending time with the father until the mother’s list of demands had been complied with, including the discharge of certain liabilities in her name. Her Honour said at [80]:
…I have some real difficulty however accepting that the mother’s complaints about the father’s care of [the child] and her concerns about finances justified such an extreme response which resulted in [the child] spending no time with her father for four months and only with the benefit of a court order…
Further, at [83] of the reasons, the primary judge noted that the mother, after time recommenced, nonetheless continued to generate a number of complaints about the child’s welfare when in the father’s care. Particularly at [84] her Honour recited a list of some 18 complaints articulated in the mother’s affidavit filed 10 October 2019, some of which we have addressed at [22] of these reasons.
Her Honour then considered the mother’s vulnerability to Mr B’s manipulation (at [90]) and against that background, at [97] considered Mr B’s hostility towards the father, and in the context of considering a submission that the 28 September 2018 conversation was, in effect, atypical of Mr B, said as follows:
97. The difficulty however with those submissions is that there is other evidence including in text messages from Mr B where he has made other inappropriate and/or intimidating comments to the father including, as referred to earlier:
a)Karma is coming now she finally sees you thanku a war is never one battle these next months will be real doozy for u thanku now you tricks are up;
b)During a telephone call with the mother when it seems Mr B interrupted when told the matter was going to trial and said possibly in the earshot of [the child]:
I told you, I told you, I told you, you can't trust him, he was always going to Trial, what kind of father would want to repeat their kid and change schools so that she looses all her friends.
c)In a text message date 20 September 2019:
From [Mr B]: when you want to be a man he will treat you like a man, at the moment you act like a child.
d)In communication with [Mr B’s previous partner], just prior to trial, he referred to the father as a paedophile and the devil.
(As per the original)
There was ample material to support the conclusion which the primary judge reached, that the mother’s household presented a risk of undermining the father’s relationship with the child, quite apart from the Family Report writer’s opinion.
The seventh ground of appeal has no merit.
Ground 8
In essence, this lengthy ground of appeal asserts that the primary judge ignored the mother’s claims that the father had been domestically violent to her during the course of the relationship, and disregarded the temporary protection order which the mother obtained against him in August 2018.
We reject that the primary judge did as the mother alleges. Particularly at [15] of the reasons, the primary judge set out in summary form the grounds for the August 2018 domestic violence application, including events which were said to have occurred during the course of the relationship. Her Honour further noted that, having obtained the temporary protection order on 10 August 2018, the mother withdrew it on 12 December 2018 (at [16]).
Later at [122] her Honour said as follows:
Whilst I accept that the mother’s case that the father was violent to her prior to separation and acted in an intimidating way towards her including stalking her after separation and that she obtained, albeit for a short period, a protection order against him, could support an argument that the presumption for equal shared parental responsibility could be rebutted, both parents ask me to make that order.
Those passages make it clear that her Honour neither ignored the mother’s allegations of domestic violence, nor disregarded the temporary protection order. Further, to the extent that family violence had any significant role to play, her Honour was correct to identify that in this particular case, it primarily lay in whether or not the presumption of equal shared parental responsibility applied. Against that however, the mother’s own concession at trial that there should be orders for equal shared parental responsibility, could not be ignored.
Whilst it is true that the primary judge did not structure her judgment by slavishly addressing each and every primary and additional consideration enumerated in s 60CC(3) of the Act, her Honour correctly identified that the major issue which the case required her to resolve was which party was more likely to facilitate the relationship between the other parent and the child. Relevant to the importance of the issue of family violence in this case (s 60CC(3)(j)), the primary judge noted that the mother’s proposal was that the child would spend substantial and significant time with the father (at [52]). Even if there was some additional consideration which the primary judge did not specifically address, that cannot be said in relation to the allegations of family violence, because they plainly were referred to and considered by her Honour.
The eighth ground of appeal fails.
Ground 9
This ground commences as follows:
9. The judge did not have regards towards my evidence…
(As per the original)
It then goes on, over a further eight paragraphs, to assert matters which are not in fact referable to the heading of this ground, apart from a reference to the report card from the child’s school which the mother had emailed to the primary judge’s chambers to which we have already referred. Moreover, neither in her written Summary of Argument nor in her oral submissions, did the mother point to evidence which she relied upon which was not adverted to, and had regard to, by the primary judge in her reasons. Otherwise, we can discern no appealable error asserted in the paragraphs under this ground, which therefore must fail.
Ground 10
This ground asserts as follows:
10.Paragraph 17 in the reasons for judgement states the mediation was not successful. Yet the order is that the parents attend mediation in a case of a dispute. Mediation is not going to work and that’s why we are in court. Father’s controlling and manipulative behaviour showed that he is willing to say anything false to get his way.
(As per the original)
It was correct for the primary judge to identify that mediation was not successful, however that of itself does not mean that an order requiring the parties to first mediate any future dispute is erroneous. No appealable error is asserted in Ground 10. It must fail.
Ground 11
This ground asserts as follows:
11.No validation of what I have said in my email prior to withholding. Those things are true. There is a Court order that stops parents from badmouthing each other. I saw nothing wrong in asking exactly the same. I believe I did what was best for the Child at that point. The was a Protection order in place with the Child being a named person. In stead of communication via mediation and finding an agreement, father decided to file an application to Court. It was his plan to go for full custody and disslolve [sic] me from the Child’s life.
(As per the original)
This does not complain of any appealable error, and otherwise has no merit.
Ground 12
This ground asserts as follows:
12. Paragraph 31. Father insisted on D State School on the 5th of December 2018 and then moved to E Town in January 2020. This does not represent a careful thought of how that would affect the Child’s school life. Unless he already planned that this will change in future.
(As per the original)
This ground does not assert appealable error, and is otherwise without merit.
Ground 13
This ground asserts as follows:
13 Excessive [weight] towards father’s evidence.
(As per the original)
Gronow v Gronow (1979) 144 CLR 513 establishes that the weight to be given to evidence is quintessentially a matter for the primary judge. Further, to the extent that this ground asserts that erroneous findings of fact were made as a product of excessive weight being given to the father’s evidence, it needs only be said that factual findings can only be disturbed on appeal if they were glaringly improbable or contrary to incontrovertible facts: Fox v Percy (2003) 214 CLR 118. Plainly such a test is not met by the mother here.
This ground of appeal has no merit.
Ground 14
This ground provides as follows:
14. Made a finding of facts on an important issue and did not have any evidence to support it.
(As per the original)
In neither her written Summary of Argument, nor her oral submissions, did the mother identify any finding of fact which did not have any evidence to support it. Independently we are unable to identify any such finding for ourselves. It therefore follows that this ground must fail.
Ground 15
This ground provides as follows:
15. Exercised her discretion to arrive at a decision which was clearly wrong.
(As per the original)
Whilst this ground does engage with the principles established by House v The King, we are not persuaded that this is one of those cases where the outcome was plainly unreasonable, unjust, wrong, or in the words of Kirby J in CDJ v VAJ at 231, “plainly wrong”.
Particularly, her Honour undertook an entirely orthodox risk assessment process, and, having carefully identified and evaluated the relevant evidence, assessed that the risk attaching to the mother’s household warranted the child moving to live with the father, albeit spending substantial and significant time with the mother.
Ground 15 therefore fails.
New Matters Raised in the Mother’s Summary of Argument
In her Summary of Argument filed 17 July 2020, the mother made complaint of several matters not encompassed within her Amended Notice of Appeal filed 12 May 2020. Whilst we do not propose to address them all, we should deal with two particular such matters. The first is that the mother was denied an adjournment of the trial on the basis of the father’s late filed material (mother’s Summary of Argument filed 17 July 2020, paragraph 3), however as we have noted earlier, counsel for the mother, having foreshadowed an application for an adjournment of the trial, after the matter had been stood down, expressly agreed that he was “[r]eady to go” (Transcript 4 November 2019, p.6 line 28 to p.8 line 5). Moreover, the primary judge made it clear to the mother’s counsel that her Honour would permit evidence-in-chief to be led from the mother in response to anything contained in the father’s late filed affidavits to which the mother would seek to respond, and this occurred.
The second is that the mother now complains that the recordings which the father made of his telephone calls with Mr B were illegal, and yet the “Judge still let him play it” (mother’s Summary of Argument filed 17 July 2020, paragraph 3).
Whilst the transcript of the oral evidence of Mr B shows that an objection was made by the mother’s counsel to the recording being played, on the ground that it had not been previously disclosed, no objection was taken on the grounds of illegality (Extract of Transcript 5 November 2019, p.21 lines 19–24). Further, no objection was raised to the tender of the recording (Extract of Transcript 5 November 2019, p.24 lines 26–35). We repeat that a party is bound by the conduct of their case at trial: Metwally.
There is no merit to either of these matters.
Outcome
No ground of appeal has been established, and therefore the appeal fails. It must be dismissed.
Costs
On 2 September 2020, a Registrar made orders in chambers requiring any party who intended to seek costs at the conclusion of the hearing of the appeal to file and serve a schedule of costs no later than seven days prior to the first day of the sittings in which the appeal is listed. Whilst the father filed a schedule within the contemplated time, it itemised costs on an indemnity basis, and not on a party/party basis. The father only filed a schedule calculated on a party/party basis on the eve of the appeal. Ultimately, the claim for indemnity costs was quite properly not pressed by the father.
In support of his claim for party/party costs, the father tendered into evidence before us correspondence from his solicitor to the mother dated 27 July 2020, offering to settle the appeal on the basis that it was dismissed with no order as to costs. The letter went on to warn that if that offer was not accepted, then costs would be sought on an indemnity basis. A failure to accept a reasonable offer to settle is a relevant matter in considering an application for costs: s 117(2A)(f) of the Act.
Whilst we must decry the father’s non-compliance with the Registrar’s orders by late filing of the relevant schedule, even disregarding that matter, we do not weigh the factors enumerated in s 117(2A) of the Act as justifying an order for costs in this case. The father has sought an order in the sum of $11,660. We have not however been provided with any information about the respective financial positions of the parties (s 117(2A)(a)). We are unable to conclude in this case that an order for costs against the mother would be just.
The father’s application for costs is dismissed.
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 (Kent, Watts & Tree JJ) delivered on 12 November 2020.
Associate:
Date: 12 November 2020
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